24212 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 600

[Docket No. 970708168–8073–02; I.D.

061697B]

RIN 0648–AJ58

Magnuson-Stevens Act Provisions;

National Standard Guidelines

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS revises guidelines for

national standards 1 (optimum yield), 2

(scientific information), 4 (allocations),

5 (efficiency), and 7 (costs and benefits);

and adds guidelines for new national

standards 8 (communities), 9 (bycatch),

and 10 (safety of life at sea). The

guidelines are intended to assist in the

development and review of Fishery

Management Plans (FMPs),

amendments, and regulations prepared

by the Regional Fishery Management

Councils (Councils) and the Secretary of

Commerce (Secretary) under the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act). The revisions

and additions implement the October

1996 amendments to the MagnusonStevens Act, which resulted from the

Sustainable Fisheries Act (SFA).

Additional minor changes are made to

conform national standard guideline

language to the Magnuson-Stevens Act,

as amended. Numerous changes were

made to the proposed rule based on

comments received.

DATES: Effective June 1, 1998.

FOR FURTHER INFORMATION CONTACT:

George H. Darcy, 301–713–2341.

SUPPLEMENTARY INFORMATION: On

October 11, 1996, the President signed

into law the SFA (Pub. L. 104–297),

which made numerous amendments to

the Magnuson-Stevens Act (16 U.S.C.

1801 et seq.). This rule amends 50 CFR

part 600, subpart D, to update the

national standard guidelines and to

implement the Magnuson-Stevens Act

amendments pertaining to the national

standards.

Background

Section 301(a) of the MagnusonStevens Act contains 10 national

standards for fishery conservation and

management, with which all FMPs and

amendments prepared by the Councils

and the Secretary must comply. Section

303(b) requires that the Secretary

establish advisory guidelines, herein

referred to as ‘‘national standard

guidelines,’’ based on the national

standards, to assist in the development

of FMPs. In addition to amending

several existing national standards, the

SFA established three new national

standards, which require consideration

of impacts of fishery management

decisions on fishing communities

(national standard 8), bycatch (national

standard 9), and safety of life at sea

(national standard 10).

On August 4, 1997, NMFS published

a proposed rule at 62 FR 41907 to

amend the national standard guidelines;

comments were requested through

September 18, 1997. The preamble of

the proposed rule contained detailed

descriptions of the proposed

amendments, which are not repeated

here. Thirty-seven sets of comments

were received during the comment

period, which are responded to in the

Comments and Responses section of this

preamble.

Because of remaining issues regarding

interpretation of the Magnuson-Stevens

Act’s provisions relative to overfishing

and rebuilding overfished stocks, NMFS

reopened the public comment period on

national standard 1 on December 29,

1997 (62 FR 67608), for an additional 30

days. Comments were specifically

requested regarding four issues: (1)

Usage of the terms ‘‘overfishing’’ and

‘‘overfished,’’ (2) usage of the terms

‘‘fishery’’ versus ‘‘stock,’’ (3) rebuilding

schedules for overfished stocks, and (4)

exceptions for mixed-stock fisheries.

The notice of reopening of the comment

period on national standard 1 contained

a detailed explanation of those issues,

which is not repeated here. Thirty-four

additional sets of comments were

received during the reopened comment

period; those comments are also

responded to in the Comments and

Responses section.

Changes from the Proposed Rule

As a result of public comments

received both during the initial

comment period and the reopened

comment period, NMFS has made the

following changes from the proposed

rule:

General

NMFS reviewed the entire text of the

guidelines to ensure that the terms

‘‘shall,’’ ‘‘must,’’ and ‘‘should’’ are used

consistent with the definitions in

§ 600.305. ‘‘Shall’’ is used only when

quoting directly from the statute,

‘‘must’’ denotes a statutory obligation,

and ‘‘should’’ indicates that an action is

strongly recommended to fulfill the

Secretary’s interpretation of the

Magnuson-Stevens Act.

National Standard 1

1. Section 600.310(c)(3) has been

revised to indicate that a reasonable

proxy for the MSY stock size is

approximately 40 percent of the pristine

stock size, rather than the range of 27–

75 percent as previously included. This

change was made to better reflect the

findings of fishery science literature.

(See also the response to comment 20

under national standard 1).

2. Section 600.310(d)(4)(iii) has been

revised to include a reference to

guidelines issued under section 305(b)

of the Magnuson-Stevens Act for

Council actions concerning essential

fish habitat. (See also the response to

comment 18 under national standard 1.)

3. Section 600.310(d)(6) has been

revised to provide more flexibility in

managing mixed-stock fisheries. The

proposed guidelines would have

allowed overfishing on one component

of a mixed-stock fishery only if the rate

or level of fishing mortality would not

cause any stock or stock complex to fall

below its minimum stock size threshold.

Paragraph (d)(6)(iii) has been revised to

remove that requirement. Paragraph

(d)(6)(ii) has been revised to clarify that

the intent of the required analysis is

thorough consideration of measures that

could prevent or mitigate overfishing of

one or more stocks in a mixed-stock

fishery. (See also the response to

comment 35 under national standard 1.)

4. Section 600.310(e)(4)(ii) has been

substantively revised to elaborate on the

length of rebuilding programs for

overfished stocks. The proposed

guidelines had simply repeated the

statutory language from section

304(e)(4) of the Magnuson-Stevens Act.

The notice reopening the comment

period offered two options. After

considering public comments (see

comments 8–16 under national standard

1), NMFS has chosen the more flexible

interpretation.

To give meaning to the statutory

requirement that a rebuilding program

be ‘‘as short as possible,’’ the starting

point in structuring a rebuilding

program is the length of time in which

a stock could be rebuilt in the absence

of fishing mortality on that stock. If that

period is less than 10 years, the factors

in section 304(e)(4)(A)(i), including the

needs of fishing communities, may be

used to adjust the rebuilding period up

to 10 years. If the stock cannot be rebuilt

within 10 years, because of the factors

listed in section 304(e)(4)(A)(ii), the

factors in section 304(e)(4)(A)(i) may be

used to justify a schedule longer than

the no-mortality period. To ensure that
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24213

the rebuilding period is not indefinite,

the outside limit of the rebuilding

period is the no-mortality period plus

one mean generation time (or equivalent

period based on the species’ life-history

characteristics).

5. Section 600.310(f)(2)(i) and (ii)

have been revised so as not to under

emphasize the benefits to the Nation

accruing from food production and

recreational opportunities. (See also the

response to comment 34 under national

standard 1).

6. Section 600.310(f)(4)(ii) has been

revised so that the annual harvest level

obtained under an OY control rule

‘‘must’’ instead of ‘‘should’’ always be

less than or equal to the harvest level

under an MSY control rule. This change

reflects the SFA’s amendment to the

definition of ‘‘optimum.’’

7. Section 600.310(f)(4)(iii) has been

revised to change the term ‘‘research

fishing’’ to ‘‘scientific research’’ to

clarify that ‘‘fishing’’ under the

Magnuson-Stevens Act does not include

scientific research activity conducted

from a scientific research vessel. (See

also the response to comment 45 under

national standard 1.)

National Standard 2

1. Section 600.315(e)(1) introductory

text has been revised to clarify that

SAFE reports are intended to summarize

the most recent information concerning

the biological condition of stocks and

the marine ecosystems in the fishery

management unit and the social and

economic condition of the recreational

and commercial fishing interests,

fishing communities, and the fish

processing industries. (See also the

response to comment 4 under national

standard 2.)

2. Section 600.315(e)(1)(ii) has been

revised to include safety as one of the

types of information that should be

summarized in SAFE reports. (See also

the responses to comment 2 under

national standard 2 and comment 3

under national standard 10).

National Standard 5

Section 600.330(b)(1) has been revised

to replace the term ‘‘encouraging,’’ with

regard to efficient utilization of fishery

resources, with the term ‘‘considering,’’

to make the wording consistent with the

intent of Congress. (See also the

response to comment 1 under national

standard 5.)

National Standard 8

Section 600.345(c) has been revised,

replacing ‘‘should’’ with ‘‘must’’ in

order to reflect the obligation under

national standard 8.

National Standard 9

1. Section 600.350(b) has been revised

in its entirety to clarify the

consideration of bycatch effects of

existing and planned conservation and

management measures. (See also the

response to comment 11 under national

standard 9.)

2. Section 600.350(c) has been revised

to add language to clarify that Atlantic

highly migratory species harvested in a

commercial fishery that are not

regulatory discards and that are tagged

and released alive under a scientific tagand-release program established by the

Secretary are not considered bycatch.

Also, language was added to specify that

bycatch includes the discard of whole

fish at sea or elsewhere. (See also the

responses to comments 7 and 8 under

national standard 9.)

3. Section 600.350(c)(2) has been

removed. (See also the response to

comment 7 under national standard 9.)

4. Section 600.350(d) has been revised

by replacing ‘‘should’’ with ‘‘must’’ in

order to reflect the obligation under

national standard 9. The introductory

text has also been revised to emphasize

that NMFS believes the first priority for

reducing bycatch should be to avoid

catching bycatch species where

possible. Additional text has been

added to § 600.350(d) to indicate that, in

their evaluation of bycatch

minimization measures, Councils must

consider net benefits to the Nation. At

the end of § 600.350(d) introductory

text, the word ‘‘shall’’ has been changed

to ‘‘must’’ to emphasize that the

evaluation requirements of the

Magnuson-Stevens Act under this

national standard are not discretionary.

(See also the responses to comments 24,

25, and 28 under national standard 9.)

5. The first sentence in section

600.350(d)(1) has been revised,

replacing ‘‘should’’ with ‘‘must’’ in

order to reflect the required provisions

of a fishery management plan under

section 303(a)(11) and (12) of the

Magnuson-Stevens Act.

6. Section 600.350(d)(2) has been

revised to indicate that, in the absence

of quantitative estimates of the impacts

of each alternative, Councils may use

qualitative ‘‘measures’’ (rather than

‘‘estimates’’). In addition, a sentence has

been added to indicate that information

on amount and type of bycatch should

be summarized in the SAFE report. (See

also the response to comment 31 under

national standard 9).

7. Section 600.350(d)(3) has been

revised to include language that

indicates that determinations of whether

conservation and management measures

minimize bycatch and bycatch mortality

to the extent practicable must also be

consistent with maximization of net

benefits to the Nation. The paragraphs

under § 600.350(d)(3) have been

redesignated to accommodate the

addition of a new paragraph (d)(ii),

which states that the Councils should,

in selecting bycatch minimization

measures, adhere to the precautionary

principle found in the FAO Code of

Conduct for Responsible Fisheries. (See

also the responses to comments 33 and

35 under national standard 9.)

8. Section 600.350(d)(4) has been

revised to delete the terms ‘‘implement’’

and ‘‘implementation’’ when referring to

the Councils’ required actions under

national standard 9, because it is NMFS’

responsibility, rather than that of the

Councils, to implement management

measures. This change was not a result

of public comment.

National Standard 10

Section 600.355(b)(3) has been revised

to include language that clarifies that

safety of the fishing vessel and the

protection from injury of persons aboard

the vessel are considered the same as

‘‘safety of human life at sea.’’ (See also

the response to comment 5 under

national standard 10.)

Comments and Responses

General

Numerous commenters concluded

that, in general, the proposed guidelines

reflect fairly the intent of the SFA’s

amendments to the Magnuson-Stevens

Act. Comments concerning specific

aspects of the proposed revisions to

guidelines for individual national

standards are presented and responded

to in the following paragraphs.

NMFS received several comments on

language contained in the preamble of

the proposed rule. Because the preamble

was intended only to explain and clarify

material contained in the codified text,

NMFS has not responded to comments

that pertained only to the preamble.

However, in instances where such

comments pertained also to language in

the codified text, or where such

comments led to changes in the codified

text from the proposed rule, NMFS has

responded in the following paragraphs.

Comment 1: Several commenters

expressed their view that sufficient

flexibility should be provided in the

guidelines to provide managers with

appropriate latitude to meet the

objectives of the SFA while respecting

the needs of communities and citizens.

Response. NMFS agrees that some

flexibility in application of the national

standards was intended by Congress, is

necessary to manage the diverse
24214 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

fisheries of the Nation, and should be

provided to respond to the needs of

fishery participants and communities,

so long as the stocks upon which the

fisheries are based can be rebuilt and

their productivity sustained. However,

any such flexibility must be consistent

with all of the statutory requirements of

the Magnuson-Stevens Act. In addition,

NMFS believes that the guidelines must

reflect the intent of the MagnusonStevens Act taken as a whole. After

carefully considering the public

comments received, the language in the

SFA, and the legislative history, NMFS

concluded that there is justification to

introduce greater flexibility in certain

aspects of the guidelines, most notably

the rebuilding schedules for overfished

stocks and for mixed-stock fisheries;

those changes have been made in this

final rule. (See also Changes from the

Proposed Rule and responses to

comments 9 and 35 under national

standard 1.)

Comment 2. One letter of comment

stated that the final rule should clarify

that the national standard guidelines are

advisory and do not have the force and

effect of law.

Response. NMFS agrees that the

guidelines do not have the force and

effect of law and believes it made that

point clearly in the preamble to the

proposed rule. For example, the

proposed rule contains the following

statements:

(1) ‘‘These proposed guidelines are

intended to provide direction and

elaboration on compliance with the

national standards and, in themselves,

do not have the force and effect of law.’’

(2) ‘‘The guidelines are intended to

assist in the development and review of

Fishery Management Plans (FMPs),

amendments, and regulations ...’’

(3) ‘‘The proposed guidelines explain

requirements and provide some options

for compliance with the guidelines.

Lists and examples are not all inclusive;

rather, they are intended to provide

illustrations of the kind of information,

discussion, or examination/analysis

useful in demonstrating consistency

with the standard in question. The

proposed guidelines are intended to

provide for reasonable accommodation

of regional or individual fishery

characteristics, provided that the

requirements of the Magnuson-Stevens

Act are met. The guidelines are

intended as an aid to decision making,

with responsible conservation and

management of valued national

resources as the goal.’’

(4) ‘‘The main purpose of the

guidelines is to aid the Councils in

fulfilling the requirements of the

Magnuson-Stevens Act.’’

Throughout the proposed rule, the

guidelines are referred to as advisory,

explanatory, and interpretive. In

addition, NMFS has attempted to make

clear the distinction between ‘‘must’’

and ‘‘should’’ as used in the guidelines.

Comment 4. One commenter stated

that it will be very difficult for the

Councils to meet the SFA’s compliance

deadlines for all fisheries, given the

requirements set forth in the guidelines.

Response. NMFS agrees that the

statutory deadlines established by the

SFA and reflected in the guidelines will

be challenging to meet. However, NMFS

is committed to working closely with

the Councils to meet those deadlines.

Comment 5. One commenter

suggested that aquaculture activities

should be considered in the guidelines

because, even with the best regulatory

controls and the restoration of wild

stocks to levels that produce maximum

sustainable yield (MSY), the demand for

seafood products cannot be met from

these sources alone.

Response. Aquaculture is considered

a fishery, as defined by the MagnusonStevens Act, so the national standard

guidelines apply and should be

followed by Councils as they consider

integrating aquaculture activities into

FMPs.

Comment 6. One commenter

questioned NMFS’ ability to comply

with several provisions of the SFA

because of budgetary constraints.

Response. Compliance with all of the

provisions of the amended MagnusonStevens Act has been difficult, at best.

However, NMFS has had significant

success in implementation, within the

available resources, using all of the

available tools at its disposal. For

example, the great majority of the

deadlines established in the SFA that

are within the control of NMFS have

been met. In the few instances where

deadlines have been missed, it has been

primarily the result of providing

additional time for public involvement

and comment. NMFS’ successes in

meeting deadlines have been due in part

to reprogramming of priorities and

resources within NMFS to the

maximum extent allowed by law, and to

Congressional reprogramming of funds

made available within NOAA.

Comment 7. One commenter stated

that NMFS must consider all affected

users, including seafood consumers, in

managing fisheries. The goal should be

healthy, sustainable use for everyone’s

benefit.

Response. NMFS agrees that all users

must be considered in achieving the

Magnuson-Stevens Act’s goal of

maximizing net benefits to the Nation.

Comment 8. Two commenters stated

that NMFS is inviting trouble by stating

in the preamble that it will take

considerable time and effort to bring all

FMPs into compliance. Waiting until

the October 11, 1998, deadline to amend

all FMPs will cause a logjam of

amendments, and conservation reforms

will not be implemented in a timely

manner.

Response. NMFS has worked with the

Councils from the earliest stages of

implementation of the SFA to plan and

prepare for necessary amendments of

FMPs. In addition, NMFS has conveyed

to the Councils that, on October 11,

1996, the day the President signed the

SFA into law, many of the provisions of

the SFA, such as national standards 8,

9, and 10, became effective. All

regulatory actions finalized after that

date were required to comply with those

standards, as well as with many other

provisions of the SFA. In some cases,

the details of implementation have had

to be developed, such as the national

standard guidelines that are the subject

of this rule. Until those details are

finalized, the Councils will not be able

to take them fully into account in

development of their management

actions. As the specifics of those

provisions are finalized, all of the

Councils’ proposed actions will be

judged on the basis of those

requirements, as well.

Comment 9. Several commenters

suggested that anecdotal information

and public testimony should be allowed

and treated as fact. A particular concern

was that, in establishing objective and

measurable criteria for determining the

status of a stock, anecdotal information

from fishermen, especially commercial

information, is precluded from use in

stock assessments.

Response. The Magnuson-Stevens Act

requires the use of the best scientific

information available and the use of

quantifiable parameters to manage

fisheries. The inclusion of objective and

measurable criteria in the guidelines

applies the Magnuson-Stevens Act’s

approach to using reproducible,

scientifically based information in stock

assessments. This approach is necessary

to preclude having to choose among

unsubstantiated opinions about a stock’s

condition. The public is free, however,

to submit anecdotal information to the

Councils and to the Secretary, including

through public testimony and comment

during the development of plans and

implementing regulations; all such

information will be made part of the

administrative record. While anecdotal

information cannot be afforded the same

status as scientific information obtained

under a well-designed data collection
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24215

plan, it can be particularly useful in

identifying potential problems with

scientifically obtained information and

can be part of the basis for a redesign

of the data collection program.

Comment 10. Several commenters

requested that, given the complex

nature of the proposed guidelines,

additional time be allowed for public

comment. Others expressed serious

concern that the lack of guidance on

critical issues such as overfishing could

compromise the ability of the Councils

to comply with the new conservation

requirements of the Magnuson-Stevens

Act. Some commenters felt that delays

in issuing final guidelines have

undermined public confidence in

NMFS’ commitment and ability to

effectively implement the conservation

mandates of the Magnuson-Stevens Act

and urged NMFS to complete the

comment periods and proceed with

advice and guidelines to the Councils as

swiftly as possible.

Response. Despite its commitment to

publish final guidelines as soon as

possible, after reviewing the diverse

comments received during the first

comment period, NMFS determined that

it was in the best interest of the public

to provide an additional opportunity for

comment on the most problematic

issues regarding national standard 1.

However, the completion of the Report

to Congress and notification of Councils

of the list of overfished fisheries on

September 30, 1997, placed an

imperative on NMFS to complete the

guidelines as quickly as possible. If

Councils fail to submit rebuilding plans

for all overfished stocks by September

30, 1998, the Secretary must develop

rebuilding plans for the Councils for

each overfished stock by June 30, 1999.

Comment 11. One commenter

disagreed with NMFS’ determination

that the proposed rule would not have

a significant economic impact on a

substantial number of small entities for

purposes of the Regulatory Flexibility

Act.

Response. NMFS believes that its

determination of no significant

economic impacts on a substantial

number of small entities in the proposed

rule accurately reflects the effects of this

action on small entities. Because this

rule only amends guidelines, and does

not have the force and effect of law, it

does not, in itself, revise any existing

regulatory programs or establish any

new regulatory requirements. NMFS has

no basis, at this time, to assess specific

effects of possible future management

actions that may result from this rule,

except in the broadest sense. Only when

future amendments to fishery

management programs are implemented

will potential impacts on small entities

occur. At the time regulations are

developed, the impacts on small entities

of potential alternatives will be

assessed; Regulatory Flexibility

Analyses and other analytical

documents will be prepared, as required

by applicable law, and made available

for public comment.

National Standard 1

Comment 1. Several commenters

objected to the fundamental role played

by MSY throughout the guidelines for

national standard 1. A variety of reasons

were cited, including the lack of

flexibility afforded by use of MSY, the

difficulty of estimating MSY, and the

fact that some fishery scientists disfavor

the concept.

Response. No change was made. MSY

is key to the Magnuson-Stevens Act,

even more so than under the former

Magnuson Act. MSY now constitutes an

upper limit on optimum yield (OY), as

stated in section 3(28)(B) of the

Magnuson-Stevens Act; is established as

the initial target for rebuilding an

overfished stock or stock complex in

section 3(28)(C); and is the cornerstone

of the definition of overfishing in

section 3(29). In reviewing the language

in the Magnuson-Stevens Act as a

whole, and the legislative history of the

SFA, NMFS believes the lack of

flexibility imposed by ascribing such a

fundamental role to MSY was clearly an

intent of Congress. The difficulty of

estimating MSY is a significant problem

that will require the best efforts of

NMFS and the Councils to solve. While

it is true that some fishery scientists

disfavor the concept of MSY, others find

it very useful, and its application in

international agreements is on the

increase, particularly in the

establishment of precautionary

approaches to fishery management.

Comment 2: Several commenters

offered the following view relative to

the usage of ‘‘overfishing’’ and

‘‘overfished’’: The terms ‘‘overfishing’’

and ‘‘overfished’’ used in the SFA are

intended to have the same meaning

given to the term ‘‘overfishing’’ in the

existing guidelines and are not intended

to change the emphasis on or timeframe

for addressing overfishing. The deletion

of the modifier ‘‘long-term’’ from the

regulatory definition of ‘‘overfishing’’

was not significant; the use of MSY is

a target, not a constraint within which

OY is determined. However, use of the

term ‘‘fishery’’ instead of ‘‘stock or stock

complex’’ in the SFA definition of

overfishing and overfished was an

intentional change from the wording in

the existing guidelines to ensure that

multi-species or mixed-stock fisheries

are managed and considered as a unit.

Other commenters agreed with NMFS’

interpretation that removal of the phrase

‘‘long-term’’ in the statutory language is

significant in that it raises the standard

to which conservation and management

measures are held.

Response: NMFS disagrees that the

definition for ‘‘overfishing’’ and

‘‘overfished’’ in the SFA did not change

the emphasis on or timeframe for

addressing overfishing or that MSY is

only a target instead of a constraint.

However, NMFS does agree that use of

the term ‘‘fishery’’ instead of ‘‘stock or

stock complex’’ was an intentional

change intended to allow for the

management of mixed-stock fisheries on

a unit basis (see also response to

comments 35 and 36). The definition for

‘‘overfishing’’ and ‘‘overfished’’

(identically defined) has as its basis the

current definition of ‘‘overfishing’’ in

the existing national standard

guidelines (50 CFR 600.310(c)(1)). That

definition states: ‘‘Overfishing is a level

or rate of fishing mortality that

jeopardizes the long-term capacity of a

stock or stock complex to produce MSY

on a continuing basis.’’

During the development of the

Magnuson-Stevens Act’s amendments,

NOAA suggested to Congressional staff

that the phrase ‘‘long-term’’ be deleted

from the definition of ‘‘overfishing’’ to

require Councils to stop overfishing

sooner rather than later. Congress chose

to delete the modifier ‘‘long-term’’ when

referring to the capacity of a stock to

produce MSY. NOAA considered this

change to be significant. Other

amendments to the SFA bolster this

interpretation:

(1) The rebuilding requirements

(especially the 10-year maximum with

three very limited exceptions, and the

Secretary’s obligation to develop

rebuilding plans if the Councils fail to

do so).

(2) Congress’ conclusion that the

survival of certain stocks is threatened

and that immediate action needs to be

taken to protect those stocks (section

2(a)(2) of the SFA).

In addition, floor debates in both the

House and Senate expressed

Congressional displeasure with the

length of time Councils have taken in

the past to address overfishing problems

(see, for example, the statement of

Senator Stevens at S10810, September

18, 1996).

The SFA points to MSY as the goal of

rebuilding programs and to maintenance

of stocks at this level on a continuing

basis. Unless MSY is established as a

strict goal, the greatly enhanced benefits

anticipated by enactors of the SFA
24216 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

cannot be achieved. This position is

supported by the following:

(1) The intent of the SFA was to

require Councils to ensure that fish

stocks were not harvested beyond their

MSY, as evidenced by the debate on the

floor of the House, when members voted

304–113 to adopt the Gilchrest

amendment specifically stating that OY

could no longer exceed MSY. The new

definition of ‘‘optimum’’ was

maintained in the Senate bill that

ultimately became law.

(2) Section 3(28)(C) indicates that, for

overfished fisheries, rebuilding is to

occur until the stocks have reached a

level that can produce MSY on a

continuing basis.

(3) Inclusion of a rebuilding

requirement in the Magnuson-Stevens

Act implies that stock size is relevant to

the concept of ‘‘overfishing’’ and

‘‘overfished,’’ and that MSY (a measure

of biomass) is to be used as the measure

against which the success of a

rebuilding program is judged. A

rebuilding requirement without a

biomass foundation has no meaning.

(4) The phrase ‘‘on a continuing

basis’’ in the SFA definition of

‘‘overfishing’’ indicates that stocks are

to be maintained at levels capable of

producing MSY (and OY) on a

continuous (uninterrupted) basis; thus,

short-term overfishing that causes

populations to decline below these

levels is not permissible. HR 39 would

have allowed OY to exceed MSY for

healthy fisheries, but that approach was

rejected in the Senate bill, which

became law.

(5) Senator Hollings in the floor

debate on the Sustainable Fisheries Act

(Congressional Record - Senate,

September 18, 1996) stated that ‘‘The

bill also: First, caps fishery harvests at

the maximum sustainable levels and

requires action to prevent overfishing

and rebuild depleted fisheries; * * *’’

(6) The summary of the Managers

Amendment to S. 39 (The Sustainable

Fisheries Act), as printed in the

Congressional Record - Senate on

September 19, 1996, states in the

discussion regarding definitions that

‘‘this change prevents the maximum

sustainable yield of a fishery from being

exceeded.’’

(7) Senate Report No. 104–276

regarding the Sustainable Fisheries Act

states on page 4077 that ‘‘Finally, the

substitute would amend the existing

definition of ’optimum’ with respect to

fishery yield to cap fish harvests at the

maximum sustainable yield.’’

Comment 3. Several commenters

objected to the proposed definition of

MSY control rule in § 600.310(c)(1)(ii)

or to the identification of the maximum

fishing mortality threshold with the

MSY control rule in § 600.310(d)(2)(i).

Typically, the objections centered

around the degree of flexibility afforded

to the Councils in choosing the form of

the MSY control rule (and thereby, the

maximum fishing mortality threshold).

Commenters generally felt that the

language of the Magnuson-Stevens Act

permits only one choice of MSY control

rule—namely, harvesting at a single,

invariant rate, where this rate is chosen

so as to maximize the resulting longterm average yield. Given this

interpretation, the commenters stated

that the Councils should be denied the

option of varying the maximum fishing

mortality threshold as a function of

stock size.

Response. No change was made.

While the Magnuson-Stevens Act

clearly requires that fishing mortality be

prevented from exceeding rates or levels

that would jeopardize the capacity of a

stock or stock complex to produce MSY

on a continuing basis, it does not

indicate that such rates or levels cannot

vary with stock size. In general, MSY

control rules that allow for the fishing

mortality rate to vary with stock size

(i.e., those that decrease fishing

mortality when stock size is low)

provide a higher average catch and a

lower probability of observing a

seriously reduced stock size than those

that require the fishing mortality rate to

remain constant. NMFS believes both of

these characteristics are very much in

keeping with the letter and intent of the

Magnuson-Stevens Act.

Comment 4. Several commenters

objected to the proposed inclusion of a

‘‘constant catch’’ example in

§ 600.350(c)(2)(i), feeling that this

particular MSY control rule is

inefficient or potentially dangerous.

Response. No change was made. The

example is included partly for logical

completeness. The commenters are

correct that this control rule is a safe

harvest strategy only when the catch

level is chosen very conservatively, in

which case some amount of potential

yield is foregone. However, in cases

where minimizing harvest variability is

a primary concern, it is conceivable that

the greatest net benefits might be

realized by making such a tradeoff (i.e.,

by giving up a certain amount of catch,

on average, in order to increase year-toyear stability of harvests).

Comment 5. Several commenters

objected to the proposed definition of

MSY in § 600.310(c)(1)(i). Concerns

included the fact that the largest longterm average catch may vary with

changes in the minimum size limit or

selectivity pattern, the perception that

the definition is invalid for stocks that

are already overfished, and the

difficulty of establishing a long-term

average under current environmental

conditions when those conditions do

not prevail over the long term.

Response. No change was made. As

defined in § 600.310(c)(1)(i), MSY does

not vary with changes in the minimum

size limit or selectivity pattern. While

such changes can have an effect on longterm average catches, the guidelines

view MSY in a more global sense. In

other words, MSY is the largest longterm average catch across all possible

management regimes, not just a single

management regime characterized by a

particular minimum size limit or

selectivity pattern. In terms of its

applicability to overfished stocks, the

guidelines’ definition of MSY is valid,

providing that ‘‘long-term’’ is suitably

defined. As to the relationship between

MSY and environmental conditions, it

should be noted that MSY is the largest

long-term average catch that could be

obtained if current ecological and

environmental conditions were to

remain constant indefinitely. Of course,

ecological and environmental

conditions do not remain constant

indefinitely, which is one of the reasons

for the guidelines’ emphasis on the fact

that MSY is a theoretical concept, rather

than an empirical one.

Comment 6. Several commenters were

concerned that insufficient

consideration was given to allowing for

uncertainty in the estimation of MSY,

for example due to errors in catch and

other input data, estimation errors in

stock assessments, frequency of stock

assessments, and changes in

environmental conditions.

Response. No change was made. As

emphasized in § 600.310(c)(2)(ii),

allowing for uncertainty in the

estimation of MSY is important. The

items listed in the above comment are

excellent examples of factors that

Councils are encouraged to consider in

the process of incorporating appropriate

consideration of risk into the estimation

of MSY.

Comment 7. Several commenters

objected to the examples of alternatives

to specifying MSY in § 600.310(c)(3). A

variety of reasons were cited, including

the fact that some of the examples listed

might not be appropriate in all cases,

the fact that some possible alternatives

were not listed, and the fact that the

alternatives listed depend on estimated

values rather than known quantities.

Response. No change was made. As

noted in § 600.305(c)(9), examples (such

as those listed in § 600.310(c)(3)) are

given by way of illustration and further

explanation. They are not inclusive

lists; they do not limit options. Thus,
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24217

the reference points listed in

§ 600.310(c)(3) are intended to suggest

some ways in which Councils might

proceed in the event that data are

insufficient to estimate MSY directly.

The fact that a reference point is not

included in § 600.310(c)(3) does not

necessarily mean that it may never be

used as a proxy for MSY. Nor does the

fact that a reference point is included in

§ 600.310(c)(3) necessarily mean that it

may always be used as a proxy for MSY.

However, there is no escaping the

conclusion that, regardless of whether

MSY or a proxy is used, some sort of

estimation will necessarily be involved.

Comment 8. Several commenters

objected to proposed paragraphs that

contain references to a 10-year time

period for rebuilding, but that do not

contain the full text of the statutory

language clarifying that 10 years is a

constraint rather than a target. In

particular, some commenters objected to

the mention of a 10-year time period for

rebuilding in § 600.310(d)(2)(ii), feeling

that this contradicted the fuller

discussion of the statutory language in

§ 600.310(e)(4)(ii). More specifically, a

stock that is below the MSY level, but

not overfished under § 600.310(d)(2)(ii),

might take as long as 10 years to rebuild

to the MSY level if fished at the

maximum rate allowable under

§ 600.310(d)(2)(i), even though the

Magnuson-Stevens Act states clearly

that the rebuilding period for an

overfished stock or stock complex must

be as short as possible, taking into

account the status and biology of the

stock or stock complex, the needs of

fishing communities, recommendations

by international organizations in which

the United States participates, and the

interaction of the overfished stock or

stock complex within the marine

ecosystem.

Response. No change was made. The

statutory timeframe for rebuilding is

clearly a binding constraint on Council

actions undertaken to rebuild a stock or

stock complex that is overfished. No

provision of the guidelines can, or is

intended to, override the statutory

language. The subject of

§ 600.310(d)(2)(ii), the minimum stock

size threshold, is distinctly different

from the subject of § 600.310(e)(4)(ii),

the acceptable timeframe for rebuilding

an overfished stock or stock complex.

The former describes how to tell

whether a stock or stock complex is

overfished, while the latter describes

what to do if a stock or stock complex

is overfished.

Comment 9. Several commenters

asked that the guidelines contain an

explicit interpretation of the statutory

description of the time period for

rebuilding summarized in

§ 600.310(e)(4)(ii) of the proposed rule.

Response. NMFS agrees; this request

was a primary reason the comment

period was reopened. As described

under Changes from the Proposed Rule,

§ 600.310(e)(4)(ii) has been substantially

revised to interpret the statutory

provision.

Comment 10. One commenter stated

that the biology of the stock does not

dictate a rebuilding period of more than

10 years unless recovery is impossible

in the absence of all fishing mortality.

Response. The starting point in

structuring a rebuilding program is the

length of time it would take a stock to

recover if fishing mortality ceased. That

a stock is long-lived, or reproduces

slowly, does not necessarily mean that

it could not be rebuilt within 10 years.

The initial relevant inquiry is the nofishing mortality period. If it is less than

10 years, factors such as the needs of

fishing communities may justify

lengthening the schedule to 10 years. If

the no-mortality period is longer than 10

years, the schedule can also be adjusted,

relying on those factors, up to a limit

based on the stock’s life-history

characteristics.

Comment 11. A number of

commenters preferred the first option

offered in the notice reopening the

comment period. They believed the

rebuilding period should not be

indeterminate. For stocks that cannot be

rebuilt within 10 years, even in the

absence of fishing mortality, the

commenters thought the factors in

section 304(e)(4)(A)(i) of the MagnusonStevens Act should not be used to

extend the rebuilding period.

Response. NMFS agrees that the

rebuilding period should not be

indeterminate. For stocks that will take

more than 10 years to rebuild, the

guidelines impose an outside limit that

is objective, measurable, and linked to

the biology of the particular species.

While the statutory language is subject

to more than one interpretation, NMFS

believes the factors in section

304(e)(4)(A)(i) may be used to extend

the rebuilding period, whether the nofishing mortality period is shorter or

longer than 10 years.

Comment 12. Two commenters

argued that ‘‘as short as possible’’ means

the time period should not be allowed

to stretch to 10 years for stocks that

could be rebuilt more quickly.

Response. The guidelines allow a

rebuilding program to extend to 10

years, but only when the Council can

justify that the needs of fishing

communities or other factors in section

304(e)(4)(A)(i) of the Magnuson-Stevens

Act outweigh the imperative to rebuild

the stock as quickly as possible.

Comment 13. Other commenters

stated the outer limit should be

‘‘reasonable,’’ perhaps based on lifehistory characteristics. Proposals

included 10 years plus one reproduction

cycle; one generation time; and the nofishing mortality period plus a period

linked to fishing mortality levels that

will not prevent steady rebuilding.

Some commenters believed that

Congress did not intend for many

fisheries to be closed if they could not

be rebuilt within 10 years; rather, a

reduced level of fishing should be

allowed.

Response. The guidelines strike a

balance between the Congressional

directive to rebuild stocks as quickly as

possible, and the desire, expressed in

national standard 8, to minimize

adverse economic effects on fishing

communities. For stocks that cannot be

rebuilt within 10 years, the guideline

allows flexibility in setting the

rebuilding schedule beyond the nofishing mortality period, but places a

reasonable, species-specific cap on that

flexibility by limiting the extension to

one mean generation time. Reduced

fishing mortality that result in steady

increases in the biomass are acceptable,

if rebuilding goals can be met within the

timeframe specified in the guideline.

Comment 14. A few commenters

thought there should be no upper limit

on the rebuilding period, and that the

length of a rebuilding schedule should

be left to Council discretion.

Response. Congress chose 10 years as

the upper limit for the rebuilding period

for most stocks; the exceptions in

section 304(e)(4)(A)(ii) of the MagnusonStevens Act are narrow. For stocks that

fall within the exceptions, the mandate

that they be rebuilt in ‘‘as short as

possible’’ a period indicates the need for

a definite, measurable bound on the

rebuilding schedule. The Congressional

intent is very clear, that the previous

practice of unlimited discretion in

rebuilding stocks must be changed.

Comment 15. Several commenters

suggested that stocks whose rebuilding

would not be affected by the cessation

of fishing mortality should be exempt

from the provisions of section 304(e)(4)

of the Magnuson-Stevens Act.

Response. NMFS understands that

factors other than fishing mortality

confound and handicap rebuilding

efforts for some stocks, but can find no

basis in the statute for exempting such

stocks from the rebuilding requirement.

(See also the response to comment 18

under national standard 1). The

flexibility introduced in the rebuilding

and mixed-stock provisions of the
24218 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

guidelines should assist in management

of these stocks.

Comment 16. Two commenters

suggested that the guidelines contain an

explicit description of the starting point

for the rebuilding period.

Response. Section 600.310(e)(4)(ii)

has been revised to indicate that the

rebuilding period commences as soon as

the first measures in a new or revised

rebuilding program are implemented.

Comment 17. Two letters of comment

raised concern that rebuilding programs

may not be adopted until the year 2000

due to delays in approving new

overfishing definitions and the

submission of rebuilding programs

based on those definitions. The

commenters believe that new

overfishing definitions and rebuilding

programs in accordance with those

programs should be submitted by

October 11, 1998.

Response. NMFS agrees that

rebuilding programs may be delayed

beyond the year 2000, given the

schedules established by the SFA, but

will work with the Councils to

implement revised definitions of

overfishing and rebuilding plans as soon

as possible. NMFS has clearly

communicated to the Councils that

section 108(b) of the SFA requires them

to amend their FMPs not later than 24

months after enactment of the SFA

(October 11, 1996) to bring them into

conformance with the provisions of

sections 303(a)(1), (5), (7) and (9)-(14) of

the Magnuson-Stevens Act. Section

303(a)(10) specifically requires the

specification of objective and

measurable criteria for identifying when

the fishery to which the FMP applies is

overfished, and section 304(e) requires

the submission of rebuilding plans for

stocks that are determined to be

overfished.

On September 30, 1997, NMFS

submitted a report to Congress that

identified those stocks in their areas of

jurisdiction that are overfished or

approaching an overfished condition,

based on existing overfishing

definitions, as required by the

Magnuson-Stevens Act. The Councils

were notified that they have 1 year

within which to submit rebuilding

programs for those stocks identified as

overfished. Therefore, the Councils are

to be simultaneously working on both

new definitions of overfishing and

rebuilding plans, as necessary. As new

overfishing definitions are approved,

the status of stocks will need to be

reassessed against those new criteria. It

is likely that some stocks that were not

listed as overfished when judged against

the overfishing definitions in place in

September 1997 will be determined to

be overfished when compared to the

criteria in new definitions. If and when

that occurs, NMFS will notify the

affected Council(s) and the public of

that fact and the Council(s) will have 1

year from that date in which to submit

a rebuilding plan.

Comment 18. Two commenters

suggested that the guidelines elaborate

on the relationship between

environment/habitat and the specified

time period for rebuilding. In particular,

the commenters wondered what is

meant by the term ‘‘environmental

conditions,’’ whether remedial action

would still be required in the event that

environmental conditions cause the

minimum possible rebuilding time to

exceed 10 years, whether MSY should

be re-estimated if habitat capacity

changes, and, if so, whether remedial

action could appropriately address

habitat issues as well as fishing

mortality.

Response. Except for a slight revision

to § 600.310(d)(4)(iii), as described

below, no change was made.

‘‘Environmental conditions’’ means

those biological or physical components

of the marine ecosystem with which the

overfished stock or stock complex

interacts (also see revised

§ 600.310(e)(4)(ii)). Council action is

required whenever a stock or stock

complex is determined to be overfished,

regardless of whether it is possible to

achieve rebuilding within 10 years.

Regarding MSY, it is clear from the

definition in § 600.310(c)(1)(i) that MSY

is conditional on the state of the

environment, which includes habitat.

As noted in § 600.310(d)(4)(ii),

environmental changes that affect the

long-term productive capacity of the

stock or stock complex require respecification of one or more status

determination criteria. As noted in

§ 600.310 (d)(4)(iii), Councils should

recommend restoration of habitat in

cases where manmade environmental

changes are partially responsible for a

stock or stock complex being in an

overfished condition. In addition,

§ 600.310(d)(4)(iii) has been revised to

reference the Councils’ responsibilities

in cases where essential fish habitat is

concerned.

Comment 19. Several commenters

objected to the proposed requirement

that each FMP specify, to the extent

possible, both a maximum fishing

mortality threshold and a minimum

stock size threshold for each stock or

stock complex covered by that FMP

(§ 600.310(d)(2)).

Response. No change was made.

Section 303(a)(10) of the MagnusonStevens Act requires the specification of

status determination criteria, and

sections 304(e)(1) and 304(e)(2) state

that these criteria are to be used for the

purpose of determining which fisheries

are in need of action ‘‘to end

overfishing’’ and ‘‘to rebuild affected

stocks of fish.’’ The only way that both

needs (‘‘end overfishing’’ and ‘‘rebuild

affected stocks’’) can be addressed is if

the status determination criteria include

measures appropriate to each—namely,

one measure pertaining to the rate of

fishing mortality and another measure

pertaining to the size of the stock. That

is, if only a maximum fishing mortality

threshold were specified, it would be

possible to determine which fisheries

require action to end overfishing, but it

would not be possible to determine

which fisheries require action to rebuild

affected stocks. Conversely, if only a

minimum stock size threshold were

specified, it would be possible to

determine which fisheries require action

to rebuild affected stocks, but it would

not be possible to determine which

fisheries require action to end

overfishing.

Comment 20. Several commenters

objected to the proposed provision in

§ 600.310(d)(2)(ii) that would allow the

minimum stock size to be as low as 50

percent of the MSY stock size,

conditional on an appropriate choice of

MSY control rule. These commenters

felt uniformly that Congress intended

for any stock or stock complex below its

MSY level to be considered overfished,

and suggested that a stock size threshold

be set at 80 percent (one commenter

said ‘‘at or above 80 percent’’) of the

MSY stock size. The commenters were

divided over whether this reference

point should constitute a minimum

threshold or an ‘‘interim’’ threshold,

where an interim threshold was defined

as a point that ‘‘should trigger a review

of what remedial action is necessary to

prevent the decline from continuing.’’

Response. No change was made. A

key question is whether Congress

intended for each stock or stock

complex that temporarily falls below its

MSY level to be considered overfished,

even if the rate of fishing mortality on

that stock or stock complex has

consistently been within the limit

allowed by the MSY control rule. If the

answer is ‘‘yes,’’ then any threshold

below the MSY stock size is

unacceptable: For example, a threshold

set at 80 percent of the MSY stock size

is just as unacceptable as one set at 50

percent of the MSY stock size. However,

NMFS believes it is important to

remember that natural variability is an

inherent part of fishery systems, and

that any stock or stock complex

managed for MSY will sooner or later
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24219

fall below its MSY level, though only

temporarily.

Because the Magnuson-Stevens Act

explicitly allows OY to be as high as

MSY, NMFS believes that Congress

must have intended to allow stocks to

be managed such that stocks were

capable of producing MSY, meaning

that Congress must have been willing to

accept the consequence that some stocks

would fall below their respective MSY

producing levels temporarily. Given this

interpretation, the question becomes,

‘‘How low is too low?’’ While the

fishery science literature does not

provide a definitive answer to this

question, NMFS believes that a prudent

rule can be established as follows: Two

of the best known models in the fishery

science literature find that, on average,

the stock size at MSY is approximately

40 percent of the stock size that would

be obtained if fishing mortality were

zero (the pristine level). (The actual

values are 36.8 percent (Gompertz-Fox

model) and 50 percent (VerhulstSchaefer model). Also, the fishery

science literature contains several

suggestions to the effect that any stock

size below about 20 percent of the

pristine level should be cause for

serious concern. In other words, a

stock’s capacity to produce MSY on a

continuing basis may be jeopardized if

it falls below a threshold of about onefifth the pristine level. Expressing this

threshold in terms of the stock size at

MSY results in a minimum stock size

threshold equal to 50 percent of the

MSY level. A stock at 50 percent of its

MSY level would typically be close to

20 percent of its pristine level, a

threshold below which it must not be

allowed to fall.

Of course, the guidelines do not

prohibit the Councils from setting as

many ‘‘interim’’ stock size thresholds as

they like, so long as these are above the

minimum stock size threshold.

However, it would be a mistake for the

guidelines to require use of an interim

stock size threshold set at 80 percent of

the MSY level in all cases, insofar as

some stocks may be incapable of

rebuilding to the MSY level from such

a threshold within the statutory time

period, depending on the status and

biology of the stock, the stock’s

interactions with other components of

the marine ecosystem, and the choice of

MSY control rule.

Comment 21. Several commenters

suggested that the guidelines contain an

explicit prohibition against ‘‘short-term’’

or ‘‘pulse’’ overfishing.

Response. No change was made.

Taken together, § 600.310(d)(2)(i), (e)(3),

and (e)(3)(i) already indicate that

exceeding the maximum fishing

mortality threshold for even a single

year is not permissible, except as

provided under § 600.310(d)(6). If

‘‘short-term’’ or ‘‘pulse’’ overfishing

means that the maximum fishing

mortality threshold would be exceeded

for a period of at least 1 year, then the

guidelines clearly prohibit these

practices.

Comment 22. Two commenters

suggested that the minimum stock size

threshold should always be set equal to

the MSY stock size. However, one of

these commenters further suggested that

it should be permissible for a stock or

stock complex to fall slightly below its

minimum stock size threshold on an

occasional basis without being

considered overfished.

Response. No change was made.

Setting the minimum stock size

threshold equal to the rebuilding target

means that natural variability will

frequently cause stocks to be classified

as ‘‘overfished,’’ even if no overfishing

ever occurs. The suggestion to permit

occasional, slight violations of the

minimum stock size threshold would

require establishing criteria for

determining the acceptable rate and

extent of threshold violation, which

would undoubtedly be a problematic

exercise.

Comment 23. Several commenters

suggested that the guidelines should

incorporate, to the maximum extent

possible, recent strides made in the

application of the precautionary

approach, such as those contained in

the United Nations Treaty on Straddling

Stocks and Highly Migratory Species.

Response. No change was made. The

guidelines are already very much in step

with, and in some cases ahead of, recent

strides made in the application of the

precautionary approach in the

international arena. In addition, as

noted in the preamble of the proposed

rule, further technical guidance

regarding specification of a

precautionary approach will be

provided by NMFS in the near future.

Comment 24. One commenter

suggested that the guidelines should

require all MSY estimates (both point

estimates and ranges) and OY

specifications (both single values and

ranges) to be accompanied by

confidence intervals, which the

commenter felt to be a basic component

of a risk-averse approach. The

commenter suggested that such

confidence intervals could be

qualitative in nature, if necessary.

Response. No change was made.

NMFS agrees that a risk-averse approach

is highly desirable, both for estimation

of MSY and for specification of OY, but

does not believe that requiring

confidence intervals for these quantities

is necessarily the best or only way to

implement such an approach. For

example, if point estimates are

determined in an explicitly risk-averse

manner, the addition of confidence

intervals could prove more confusing

than helpful, especially to a

nontechnical audience. However, in

those cases where Councils feel that

confidence intervals would be helpful,

§ 600.310(c)(2)(ii) already gives the

Councils explicit latitude to use them.

The same paragraph also requires that

appropriate consideration of risk be

incorporated into estimates of MSY,

while § 600.310(f)(5)(iii) states that

criteria used to set target catch levels

(such as OY) should be explicitly risk

averse, so that greater uncertainty

regarding the status or productive

capacity of a stock or stock complex

corresponds to greater caution in setting

target catch levels.

Comment 25. One commenter

suggested that a precautionary approach

is not appropriate for a management

target such as OY.

Response. No change was made.

Contrary to this comment, NMFS

believes a precautionary approach is

particularly appropriate for a

management target such as OY. If

management is effective, harvests will

typically be close to the target level, so

if the precautionary approach is to have

a substantial impact on fishery

management, it needs to be applied to

management targets at least as much as

to management thresholds.

Comment 26. One commenter

suggested that the description of the

precautionary approach should state

that lack of information should not

prevent a Council from taking

reasonable steps to address fishery

resource problems.

Response. No change was made. This

suggestion is already implicit in

§ 600.310(f)(5)(iii), which states that

greater uncertainty (i.e., greater lack of

information) should correspond to

greater caution in setting target catch

levels. NMFS believes that prudent

decision-making in the face of

uncertainty is a cornerstone of any

precautionary approach.

Comment 27. Two commenters

expressed concern over the target stock

size for rebuilding. One commenter

suggested that the target should be the

OY stock size and felt that the

guidelines erred in treating the MSY

stock size as though it were the target.

The other commenter suggested that the

target ought to be the MSY stock size

and felt that the guidelines erred in

treating the MSY stock size as though it

were a threshold.
24220 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

Response. The Magnuson-Stevens

Act, in section 3(28)(C), implies strongly

that the MSY stock size is at least an

initial target for rebuilding. Of course, to

the extent that OY is lower than MSY

and that management is generally

successful in achieving OY on a

continuing basis, the OY stock size will

be greater than the MSY stock size; thus

the ultimate target level (OY stock size)

will be greater than the initial target

level (MSY stock size). The guidelines

are consistent in treating the MSY stock

size as a constraint rather than as a

threshold.

Comment 28. Several commenters

suggested that the method for

calculating rebuilding time requires

clarification. Assuming that some sort of

estimation is involved in calculating

rebuilding time, a number of

possibilities present themselves. Does

‘‘rebuilding time’’ refer to the expected

rebuilding time, the median rebuilding

time, some percentile of rebuilding

times, or something else?

Response. No change was made. The

commenters are correct that there are a

large number of ways to calculate

rebuilding time. In addition to statistics

pertaining to the time required to reach

some specified stock size, other

possibilities include various statistics

pertaining to the stock size achieved at

some specified future time—for

example, the expected stock size, the

median stock size, or some percentile of

stock sizes. While these choices pose

potentially substantive issues, NMFS

believes there are a number of

reasonable ways to calculate rebuilding

time that would be consistent with the

provisions of the national standard 1

guidelines. It is beyond the scope of

these guidelines to establish a single

method to be used in all cases.

However, it is possible that the

forthcoming technical guidance

regarding the precautionary approach

(as described in the preamble to the

proposed rule) could address these

issues.

Comment 29. One commenter

suggested that the maximum fishing

mortality threshold should be greater

than the fishing mortality rate

associated with the chosen MSY control

rule. The commenter noted that this

would be consistent with the approach

taken by Rosenberg et al. (1994)(see

preamble to the proposed rule).

Response. No change was made. The

commenter is correct insofar as the

report by Rosenberg et al. (1994)

interpreted the former Magnuson Act as

taking overfishing to be a rate of fishing

mortality somewhat greater than the rate

associated with any MSY control rule.

However, it is clear that the MagnusonStevens Act takes a different, more

conservative, approach by linking

overfishing much more directly to MSY.

Allowing the maximum fishing

mortality threshold to exceed the fishing

mortality rate associated with the MSY

control rule would thus be inconsistent

with the Magnuson-Stevens Act.

Comment 30. One commenter felt that

the proposed procedural requirements

for interim measures in § 600.310(e)(5)

are too burdensome. The commenter

stated that, under the proposed

guidelines, the Councils would

essentially have to develop the same

measures as part on an FMP or

amendment for implementation on a

more permanent basis, before

recommending the measures as interim

measures. Instead, the Councils should

be allowed to recommend an interim

action whenever there is a substantial

conservation benefit to be gained.

Response. No change was made.

NMFS agrees that actions to address

overfishing should not be constrained

unnecessarily. Section 304(e)(6) of the

Magnuson-Stevens Act states that

interim measures can be requested by a

Council during its development of an

FMP, an FMP amendment, or proposed

regulations to address overfishing as

required under section 304(e), until

such measures can be replaced by such

FMP, amendment, or regulations.

Section 305(c)(3)(B) of the MagnusonStevens Act establishes time constraints

on interim actions and makes

extensions contingent upon the

Council’s actively preparing an FMP,

FMP amendment, or proposed

regulations to address overfishing on a

permanent basis. Section 600.310(e)(6)

of the guidelines reflects these statutory

requirements.

Comment 31. One commenter

objected to statements in

§ 600.310(f)(1)(ii) and (f)(5)(i) to the

effect that OY cannot be achieved on a

continuing basis if status determination

criteria are not met. The commenter

contended that the purpose of the status

determination criteria is to measure

FMP performance, not to control

fishing, and that the present wording of

the guidelines might preclude a Council

from taking a gradual approach toward

bringing fishing mortality into

conformity with the maximum fishing

mortality threshold.

Response. No change was made.

NMFS believes that status

determination criteria are indeed

intended to control fishing. The

commenter is correct insofar as the

guidelines would preclude a Council

from taking a gradual approach toward

bringing fishing mortality into

conformity with the maximum fishing

mortality threshold. Once a Council is

notified that overfishing is occurring, it

must take action within 1 year to end

overfishing. A gradual approach is not

permitted.

Comment 32. One commenter

suggested that the guidelines should

include a clear statement to the effect

that, whenever overfishing is occurring,

remedial action is required.

Response. No change was made. The

statement already appears in

§ 600.310(e)(3)(i).

Comment 33. One commenter

suggested that the guidelines should

encourage adoption of target harvest

levels set safely below MSY.

Response. No change was made. The

statement already appears in

§ 600.310(f)(5)(i).

Comment 34. Several commenters

suggested that § 600.310(f)(2)(i) and

(f)(2)(ii) under emphasized the benefits

to the Nation accruing from food

production relative to those accruing

from recreational opportunities. Two

commenters suggested that

contributions to the surrounding

economies ought to be listed as a benefit

accruing from food production, as well

as from recreational opportunities. One

commenter suggested that the

guidelines seemed to equate recreational

fishing with non-consumptive use and

commercial fishing with consumptive

use, giving the impression that

recreational fishing does not contribute

to food production. One commenter was

concerned regarding the vague nature of

the ‘‘other non-consumptive activities’’

that were suggested to be ‘‘important to

the national, regional, and local

economies’’ in § 600.310(f)(2)(ii).

Response. Sections 600.310(f)(2)(i)

and (f)(2)(ii) have been revised. NMFS

believes that neither the benefits to the

Nation accruing from food production

nor those accruing from recreational

opportunities should be under

emphasized. Contributions to the

national, regional, and local economies

are now listed as benefits accruing from

both food production and recreational

opportunities. Contrary to one of the

comments cited, the proposed rule

explicitly acknowledged the

contribution of recreational fishing to

food production; this acknowledgment

is retained in the revised language. The

non-specific reference to ‘‘other nonconsumptive activities’’ has been

deleted from § 600.310(f)(2)(ii), insofar

as this paragraph is not intended to

provide an exhaustive list of nonconsumptive uses.

Comment 35. Several commenters

disagreed with the proposed guidelines’

allowance of an exception to the

requirement of preventing overfishing,
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24221

in the case of one stock component of

a mixed-stock fishery. They said that the

legislative history of the SFA supports

elimination of this exception, and

challenged NMFS’ authority to retain it.

Response. The legislative history of

the SFA does not directly address this

issue. The statute defines ‘‘overfishing’’

and ‘‘overfished’’ in terms of the

capacity of a fishery to produce MSY.

National standard 1 requires

conservation and management measures

to prevent overfishing while achieving

the OY from each fishery. Section 304(e)

of the Magnuson-Stevens Act requires

the Secretary to identify fisheries that

are being overfished. The Council must

then take steps to end overfishing in the

fishery.

A ‘‘fishery’’ is defined in the

Magnuson-Stevens Act as ‘‘one or more

stocks of fish which can be treated as a

unit for purposes of conservation and

management.’’ In a mixed-stock fishery,

several stocks are harvested together

and are managed as a unit. From the

SFA’s focus on ‘‘fisheries,’’ and the fact

that it did not amend national standard

1, NMFS infers that Congress did not

mean to eliminate entirely the longstanding practice of allowing a mixedstock fishery to continue, if certain

conditions specified in the guidelines

were met.

To respond to concerns that this

exception might become a huge

loophole, the proposed guidelines

considerably narrowed this exception

from the existing guidelines. To allow

overfishing of one stock in a mixedstock fishery, a Council must meet three

stringent conditions: (1) It must

demonstrate by analysis that the action

will result in long-term net benefits to

the Nation; (2) it must demonstrate by

analysis that a similar level of benefits

cannot be achieved by modifying fleet

behavior, gear selection or

configuration, or other technical

characteristic so that no overfishing

would occur; and (3) it must ensure that

the action will not cause any species or

evolutionarily significant unit thereof to

require protection under the

Endangered Species Act.

The exceptions for mixed-stock

fisheries have thus been significantly

constrained by requiring that (1)

demonstrated net benefits to the Nation

be long-term, rather than short-term; (2)

an analysis be performed to consider

technical or operational alternatives to

overfishing; and (3) the stock or stock

complex not be driven to a dangerously

low level.

NMFS believes the guidelines strike

the correct balance between preventing

a stock from becoming overfished and

achieving OY for the fishery as a whole.

Comment 36. The notice reopening

the comment period asked whether

overfishing evaluations and rebuilding

programs should be focused on

individual stocks, or on a fishery. In

response, many commenters pointed out

that a stock-by-stock approach is the

only scientifically justified method.

Overlooking the condition of each stock

is also inconsistent with Congressional

intent to rebuild all fishery resources.

Other commenters wanted to focus on

fisheries, as part of an ecosystem

approach to management. A mixed

stock fishery should be managed as a

unit, and should not be closed just

because one component of the fishery is

overfished.

Response. A fishery comprised of

many stocks cannot be judged as

overfished or not; only for a stock or

stock complex of fish can measurable,

objective criteria of overfishing be

established, as required by the SFA. The

same concern applies to judging

whether a fishery has been rebuilt;

biologically, that can be determined

only on a stock or stock complex basis.

The Secretary’s first report to Congress

(September 30, 1997, under section

304(e)) identified stocks, not fisheries,

as overfished.

Focusing on stocks as a scientific

endeavor is not inconsistent with

managing a fishery as a unit. As

explained in the response to comment

35 under national standard 1,

identification of a stock as overfished

does not necessarily mean that the

entire fishery in which it occurs must be

severely constrained while that stock is

rebuilt. Scientific judgments on

overfishing and rebuilding must be

made, to the extent practicable, on a

stock-by-stock basis, but management

judgments on optimizing benefits can be

made on the fishery as a whole. In other

words, managers should be aware of the

biological status of each stock, and

should also be required to justify the

continuation of overfishing of a stock in

a mixed-stock fishery on the grounds of

maximizing benefits.

Comment 37. One commenter

suggested that a discussion of

‘‘acceptable biological catch’’ (ABC) be

included in the guidelines, as in the

1989 version. The commenter felt that

ABC is used by most, if not all, of the

Councils and in many FMPs.

Response. No change was made.

NMFS believes that ABC, as typically

used, is an example of the ‘‘annual

target harvest levels that vary with stock

size’’ described in § 600.310(f)(4)(ii).

Given that the term ‘‘acceptable

biological catch’’ does not appear in the

Magnuson-Stevens Act (although

‘‘allowable biological catch’’ is used

once, without definition, in section

303(b)(11)), NMFS does not believe that

it is necessary to reference this

additional term by name in the

guidelines.

Comment 38. One commenter

objected to specifying minimum stock

size threshold as a function of MSY

stock size, as in § 600.310(d)(2)(ii). The

commenter was concerned that extreme

changes in environmental conditions

could lead to extreme changes in

carrying capacity and could result in a

mismatch between the minimum stock

size threshold and the stock’s new

productive capacity.

Response. No change was made.

Section 600.310(d)(4)(ii) requires that

status determination criteria be

respecified if changes in environmental

conditions cause the long-term

productive capacity of the stock or stock

complex to change. (See also the

response to comment 18 for national

standard 1).

Comment 39. One commenter

objected to the statement in

§ 600.310(f)(5)(i) that continual harvest

at a level above OY would violate

national standard 1, even if no

overfishing resulted. The commenter

felt that it is both physically and fiscally

impossible to assure that quotas are not

systematically exceeded.

Response. No change was made.

NMFS believes that the national

standard 1 mandate for ‘‘achieving, on

a continuing basis, the OY from each

fishery’’ should not be interpreted to

mean, ‘‘achieving, on a continuing basis,

the OY or some greater amount of

harvest from each fishery.’’ By

definition, MSY is the greatest amount

of harvest that could be achieved from

a fishery on a continuing basis.

Presumably, the reason that the

Magnuson-Stevens Act makes explicit

provision for setting OY at a level below

MSY is that, where justified on the basis

of relevant economic, social, or

ecological factors, continual harvest at a

higher level (such as MSY) is to be

avoided. NMFS’ experience has been

that it is indeed possible to assure that

quotas are not systematically exceeded.

If, however, a Council finds that a

systematic amount of harvest overrun is

inevitable, quotas should be reduced by

that amount.

Comment 40. Several commenters

suggested that the guidelines list

examples of management actions

required under a variety of fishing

mortality rates and stock sizes.

Response. No change was made.

NMFS believes there are so many

variables and contingencies specific to

each fishery that it would not be

meaningful to list examples of the type
24222 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

requested. In general, though, it is clear

that a Council’s primary control will be

over fishing mortality. If the fishing

mortality rate on a stock or stock

complex exceeds the maximum fishing

mortality threshold, it must be reduced

to the extent that it no longer exceeds

that threshold, as described in

§ 600.310(e)(3)(i) and (e)(4)(i). If a stock

or stock complex is overfished, fishing

mortality must be controlled such that

the stock rebuilds to the MSY level

within a time period satisfying the

statutory requirements, as described in

§ 600.310(e)(3)(ii) and (e)(4)(ii).

Comment 41. In discussing fisheries

that have large state components, one

commenter said that states will have to

cooperate to achieve the SFA’s

rebuilding objectives. He recommended

that the possibility of preempting a

state’s authority over a fishery in its

waters be specified in the guidelines.

Response. The criteria and procedures

for Federal preemption of state authority

are set out in section 306(b) of the

Magnuson-Stevens Act. In addition,

NMFS would also comply with

applicable requirements of Pub. L. 104–

4, the Unfunded Mandates Reform Act

of 1995, and E.O. 12612, Federalism.

NMFS sees no reason to reiterate these

requirements in the guidelines, but

agrees that consultation and state

cooperation will be essential in meeting

rebuilding schedules for some fisheries.

Comment 42. One commenter stated

that the guidelines should clearly point

out that the SFA imposes the obligation

to establish a strong domestic plan to

rebuild stocks, within 10 years if

biologically possible, and that obligation

applies to international as well as

domestic fisheries.

Response. NMFS agrees that the

obligation to establish a strong domestic

plan to rebuild stocks, within 10 years

if biologically possible, is a requirement

of the SFA, regardless of the species

involved. The guidelines, as proposed,

reflect this view. There is no exception

provided in the guidelines for any

species or fishery beyond that provided

in the SFA (section 304(e)(4)(C)). NMFS

notes that the SFA requires that any

rebuilding program for fisheries

managed under an international

agreement must reflect traditional

participation in the fishery, relative to

other nations, by fishermen of the

United States. NMFS does not agree that

additional clarifying language is

necessary in the guidelines.

Comment 43. With respect to highly

migratory species such as tunas and

billfish, one commenter believed

expressions of yield and overfishing are

meaningless on local scales. The

commenter questioned what is required

of the Councils and what the limits of

authority are regarding ending

overfishing and rebuilding overfished

stocks in areas where the majority of the

exclusive economic zone (EEZ) stock/

fishery occurs in state waters (e.g.,

onaga) or in international waters (e.g.,

armorhead) where no agreements exist.

Response. The Councils have the

responsibility under SFA to do all they

can to eliminate overfishing and to

rebuild overfished stocks. The Councils

are limited in their authority and their

ability to correct overfishing in many

cases. However, this limitation should

not prevent the Councils from doing

everything within their authority and

capabilities to address overfishing. (See

also the response to comment 33 under

national standard 1.)

Comment 44. One commenter was

concerned regarding NMFS’ proposed

requirement to implement regulations to

end (or prevent) overfishing and to

rebuild (or sustain) affected fish stocks

that are considered to be overfished or

approaching an overfished condition.

The commenter objected to this

provision’s application to migratory fish

stocks with international harvesters,

especially when the majority of the

harvest is taken by foreign fleets.

Response: The SFA provisions

concerning overfishing and rebuilding

migratory fish stocks are not restricted

to those situations where the U.S.

harvest is a majority of the total fishing

mortality. The SFA does, however,

recognize the international aspects of

migratory species, and provides that the

period for rebuilding may exceed 10

years if management measures under an

international agreement so dictate. And,

as noted in the response to comment 33

under national standard 1, the

rebuilding program for fisheries

managed under an international

agreement must reflect traditional

participation in the fishery, relative to

other nations, by fishermen of the

United States. The guidelines reflect

these provisions of the SFA.

Comment 45. One commenter said the

proposed rule states that all fishing

mortality must be counted against OY,

including that resulting from bycatch,

research fishing, and any other fishing

activities, although the MagnusonStevens Act (section 3(15)) defines

fishing in a way that does not include

scientific research activity that is

conducted by a scientific research

vessel.

Response. The proposed guidelines

have been revised to reflect the fact that

the term ‘‘fishing’’ does not include any

scientific research activity that is

conducted by a scientific research

vessel. In § 600.310(f)(4)(iii), the words

‘‘research fishing’’ have been changed to

‘‘scientific research.’’ However, the

fishing mortality that occurs during

scientific research requires estimation

and inclusion in the accounting of all

harvesting mortality to which stocks are

subjected.

Comment 46. One commenter stated

that overfishing criteria do not provide

any explicit treatment for hatchery

stocks. The commenter assumed that

hatchery stocks cannot be aggregated

with wild stocks for the purposes of

establishing overfishing criteria.

Response. NMFS agrees with the

commenter’s assumption that hatchery

stocks cannot be aggregated with wild

stocks for purposes of establishing

overfishing criteria.

National Standard 2

Comment 1. One commenter

suggested that NMFS should encourage

the policy that fisheries management

must be based on scientific facts.

Response. NMFS agrees, and

recognizes that additional factors, such

as social and economic impacts, must be

taken into consideration in formulating

management measures.

Comment 2. One commenter stated

that the guidelines for national 2 should

expressly address data on bycatch and

safety.

Response. NMFS agrees and has

amended § 600.315(e)(1)(ii) to include

safety. That section already includes a

reference to bycatch.

Comment 3. One commenter stated

that data reporting requirements in

national standard 2 are too burdensome

and will inhibit fisheries management.

Response. Section 301(a)(2) of the

Magnuson-Stevens Act requires that

conservation and management measures

be based on the best scientific

information available. The minimum

information sets required in FMPs are

described in section 303(a) and (b) of

the Magnuson-Stevens Act. The

guidance provided in § 600.315

summarizes those statutorily required

minimum requirements. Moreover, the

Paperwork Reduction Act requires

NMFS to minimize the burden of its

information collection by ensuring the

information will have practical utility.

Comment 4. Two commenters

suggested there should be more explicit

guidance under national standard 2

regarding the data requirements related

to fishing communities.

Response. NMFS agrees. The language

in § 600.315(e)(1) introductory text has

been revised to clarify that Stock

Assessment and Fishery Evaluation

(SAFE) reports are intended to

summarize the most recent information
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24223

concerning a variety of aspects of the

fishery, including fishing communities.

National Standard 4

Comment 1. One commenter

suggested that the guidelines for

national standard 4 should be modified

by adding: ‘‘In all [FMPs] prepared by

any Council in a limited access fishery,

all permits must be treated equally and

fairly.’’

Response. No change was made. The

criteria that a Council must use in

developing a limited access program are

listed in the Magnuson-Stevens Act

(section 303(b)(6)). National standard 4

requires that all allocations, including

limited access permits, be handled fairly

and equitably.

Comment 2. One commenter

suggested that national standard 4

should contain a strict prohibition that

prevents any one state (such as Alaska)

from being granted (by any Council)

monopoly control of fisheries

management in Federal waters where

fishermen from several states harvest

under an approved FMP.

Response. The Magnuson-Stevens Act

provides that a state may regulate a

fishing vessel outside the boundaries of

that state (section 306(a)(3)). However,

management measures developed by a

state pursuant to this authority may not

discriminate between residents of

different states. Mechanisms exist for

ensuring that such authority does not

result in unfair treatment. For example,

two North Pacific Fishery Management

Council FMPs that defer the majority of

management authority to the State of

Alaska (the crab and salmon FMPs) have

mechanisms that provide for

individuals to challenge the State’s

management actions.

Comment 3. One commenter stated

that fishing sectors such as subsistence

fishing and aboriginal people

indigenous to the region should be

added to the commercial, recreational,

and charter fishing sections identified.

Response. No change was made. The

Magnuson-Stevens Act already requires

that all fishermen should be treated

fairly and equitably.

National Standard 5

Comment 1. Several commenters

stated that the guidelines do not

adequately reflect the revision from

‘‘promoting economic efficiency’’ to

‘‘considering economic efficiency’’ in

national standard 5, particularly in the

use of the term ‘‘encouraging’’ relative

to efficient utilization.

Response. NMFS agrees that the word

‘‘encouraging’’ should be replaced with

‘‘considering,’’ to make this standard

consistent with the intent of Congress;

§ 600.330(b)(1) has been revised

accordingly. The reference to limited

access systems is only an example of a

program that may contribute to

efficiency. No statements or references

are made that limited access is a

preferred alternative to increase

efficiency.

Comment 2. One commenter stated

that the use of the phrase ‘‘least cost to

society’’ in the national standard 5

guideline is inappropriate, because

achieving long-term benefits may

require costs that are greater than the

least available.

Response. The use of this phrase is

similar to its use in the national

standard 7 guideline, which refers to

minimizing costs. The phrase does not

mandate that the alternative with the

lowest cost be selected. Rather, it is

meant to provide guidance that efficient

utilization of resources is a way to

achieve benefits for the Nation, while

limiting the costs to society. Analysis of

alternative management measures,

including those that would offer greater

efficiency, are expected to estimate the

relative benefits and costs of those

measures.

National Standard 7

Comment 1. One commenter

suggested that the Councils should be

required to prepare an FMP for any

fishery that has recreational and/or

commercial catch.

Response. The Magnuson-Stevens Act

did not impose such a requirement. The

national standard guidelines do not

excuse the Councils from developing

FMPs that are necessary or appropriate.

The guidelines prior to the SFA stated

that an FMP should be prepared only for

fisheries in need of management. NMFS

believes no change is necessary, because

requiring an FMP for every fishery

could redirect critical funds needed for

resource surveys, data collection, data

or impact analyses, or other essential

activities, but result in little or no

incremental benefit to the Nation.

National Standard 8

Comment 1. One commenter stated

that the definition of ‘‘fishing

communities’’ needs to be amended to

include all components of the

recreational industry.

Response. No change was made. The

definition of ‘‘fishing community’’ in

the guidelines already includes

recreational fishing or directly related

fisheries-dependent services and

industries.

Comment 2. One commenter stated

that ‘‘sustained participation’’ referred

to in this standard does not guarantee

any specific rights, practices, or access

to a specific fishery. Two other

commenters stated that the intent of

Congress in reference to ‘‘sustained

participation’’ was not to cause

fishermen to change gear or species,

particularly since some communities are

dependent on specific gears and/or

fisheries.

Response. No change was made.

‘‘Sustained participation’’ means

continued access to the fishery within

the constraints of the condition of the

resource. This standard requires that the

importance of fishery resources to a

community be taken into account in

conservation and management

measures; however, the long-term

conservation and/or rebuilding of stocks

may require limits on particular gears

and the harvest of specific stocks.

Comment 3. One commenter stated

that proposed § 600.345(b)(2) captures

the intent of Congress that this standard

does not allocate resources to particular

communities, while § 600.345(c)(3) has

implicitly allocative language in its

focus on ‘‘levels of dependence on and

engagement in’’ the fishery.

Response. No change was made. The

language in § 600.345(c)(3) reflects the

meaning of the Magnuson-Stevens Act,

which refers to communities being

‘‘substantially engaged’’ and

‘‘substantially dependent.’’ The levels of

dependence on and engagement in a

fishery need to be ascertained in order

to identify communities, whether

located in rural or metropolitan areas,

that may be potentially affected.

Further, dependence, engagement, and

sustained participation are not

measured solely in terms of the percent

of fishing activity in relation to the

entire economic base of the community;

there are other social, cultural, and

economic assessments specifically

focused on the harvesting, processing,

and fishery-support industries.

Comment 4. One commenter stated

that, in § 600.345(b) and (c), the

definitions and explanations are so

broad as to render them useless in

identification of fishing communities.

Response. NMFS disagrees. The

guidance reflects the language and

intent of Congress to be inclusive of

fishing communities. The definitions

and explanations in § 600.345(b) and (c)

are acceptable operational definitions

for use by social scientists and

economists in undertaking data

gathering and analysis.

Comment 5. One commenter stated

that, in § 600.345, all components of the

recreational fishing industry in fishing

communities should be described and

analyzed in the same manner and depth

as commercial fishery components.
24224 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

Response. NMFS agrees. The

guidance in the national standard

guidelines covers all sectors.

National Standard 9

Comment 1. Several commenters

stated that the guidelines as written

diverged significantly from the statute

and Congressional intent and require a

substantial rewriting. One commenter

was concerned that the Councils would

not have to take action to amend their

FMPs to minimize bycatch and would

still be found to be in compliance with

national standard 9.

Response. NMFS disagrees. The

Councils and NMFS must review all

existing FMPs and all future FMPs and

FMP amendments for compliance with

national standard 9. Existing FMPs will

be amended, if necessary, to ensure

compliance with this standard. The

Councils are required to re-examine the

conservation and management measures

contained in their FMPs for ways to

reduce bycatch below current levels. In

addition, the Councils must revisit the

measures periodically to ensure that

bycatch is reduced as much as

practicable. No change in the guidelines

is necessary.

Comment 2. Several commenters

stated that the SFA sent a very clear

message that bycatch is a serious

problem and that the Councils are

required not to study the problem, as

suggested in the proposed guidelines,

but to amend FMPs to include measures

to ‘‘minimize bycatch and to minimize

the mortality of such bycatch that

cannot be avoided.’’

Response. NMFS agrees that bycatch

is a problem in many of the Nation’s

fisheries. The amendments to the

Magnuson-Stevens Act require that

conservation and management measures

minimize bycatch to the extent

practicable and, to the extent bycatch

cannot be avoided, minimize the

mortality of such bycatch. The

requirement is clearly not discretionary.

NMFS disagrees that the guidelines only

require the Councils to study the

bycatch problem; the Councils must

take action to minimize bycatch and

bycatch mortality to the extent

practicable. No change in the guideline

is necessary (also see the response to

comment 1 under national standard 9).

Comment 3. Several commenters

observed that national standard 9

recognizes bycatch as an integral

component of the total fishery, with

biological if not economic value. The

commenter stated that this national

standard encourages the redeployment,

or perhaps the elimination, of

destructive, non-selective gears.

Response: NMFS agrees. The Councils

have a range of options available to

them to satisfy the requirements of

national standard 9; the commenter

mentioned only two of the options

available. However, the legislative

history of the SFA includes a floor

statement by Congressman Young that

‘‘it is not the intent of Congress that the

[Councils] ban a type of fishing gear or

a type of fishing in order to comply with

this standard.’’

Comment 4. One commenter observed

that national standard 9 applies not only

to commercially valuable species, but

also to all finfish, shellfish, and

invertebrate species with no commercial

value.

Response. NMFS agrees. The

definition of ‘‘fish’’ in the MagnusonStevens Act includes finfish, shellfish,

and invertebrate species, and all other

forms of marine animal and plant life

except marine mammals and birds; by

extension, bycatch applies to these

forms of marine life.

Comment 5. One commenter stated

that the guidelines are not clear on

exactly what is required for compliance

with this national standard and what

the consequences would be of not

meeting that requirement. The

commenter also suggested that such

requirements would likely not be

followed because they are too time/staff/

data intensive. Another commenter

stated that the guidelines suggest that

measures to minimize bycatch need not

be implemented if they are determined

to be ‘‘inconvenient’’ with respect to, for

example, ‘‘changes in fishing,

processing, disposal, or marketing

costs,’’ or ‘‘changes in fishing practices

and the behavior of fishermen.’’

Response. The Secretary is required to

ensure that all FMPs are in compliance

with the national standards. FMPs or

FMP amendments that are not in

compliance will not be approved.

Inconvenience is not an excuse; bycatch

must be avoided as much as practicable,

and bycatch mortality must be reduced

until further reductions are not

practicable. Adherence to the national

standards is not discretionary.

Comment 6. One commenter

suggested that, in the definition of

bycatch in § 600.350(c), NMFS strike the

parenthetical in the definition of

bycatch and the phrase, ‘‘or that enter

commerce through sale, barter, or

trade.’’

Response. The language in

§ 600.350(c) is consistent with the

Magnuson-Stevens Act; commercial

fishing, as defined in section 3(4),

‘‘means fishing in which the fish

harvested, either in whole or in part, are

intended to enter commerce or enter

commerce through sale, barter or trade.’’

While the term ‘‘sale’’ is inclusive of

barter and trade, the phrase has been

kept in the guidelines to ensure that

there is no ambiguity as to what is

considered bycatch. NMFS believes the

parenthetical in the definition of

‘‘bycatch’’ provides useful clarification

of ‘‘harvested in a fishery.’’ No change

was made.

Comment 7. Several commenters

recommended removing the definition

of discard in proposed § 600.350(c)(2)

because they believed the term was

included by NMFS without support in

the Magnuson-Stevens Act or its

legislative history. They stated that the

definition is in conflict with the law and

allows the continuation of fishing

methods and practices that involve great

amounts of bycatch, like roe stripping

and shark finning.

Response. The definition in

§ 600.350(c)(2) has been removed;

however, NMFS has retained the

interpretation that ‘‘bycatch’’ includes

the discard of whole fish—not the

discard of unwanted parts. Nothing in

the definitions of ‘‘bycatch’’ or

‘‘economic discards’’ suggests that the

discard of unwanted parts of fish is

addressed accordingly (see the response

to comment 12 under national standard

9 for a discussion of practices such as

shark finning).

Comment 8. One commenter

requested that NMFS add to the last

sentence in the definition of bycatch in

§ 600.350(c) the words ‘‘or Atlantic

highly migratory species harvested in a

commercial fishery that are not

regulatory discards and that are tagged

and released alive under a scientific tag

and release program established by the

Secretary.’’

Response. NMFS agrees and has

added the suggested language to

§ 600.350(c).

Comment 9. A commenter asked

whether any fish caught and sold would

be considered bycatch.

Response. According to the definition

of bycatch in the Magnuson-Stevens

Act, the sale of any fish removes it from

being considered bycatch.

Comment 10. A commenter stated that

fish that are ground up and thrown

overboard are not counted as discards.

Response. NMFS disagrees. Whole

fish that are ground up and thrown

overboard would be considered bycatch.

Comment 11. One commenter

suggested that, in § 600.350(b), the

second sentence be replaced with:

‘‘Bycatch can, in four ways, impede

efforts to protect marine ecosystems,

achieve sustainable fisheries and the

full benefits that they provide to the

Nation.’’ The suggestion was also made
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24225

that the following sentence be added to

§ 600.350(b): ‘‘First, removing unknown

amounts of commercial or noncommercial biomass as bycatch affects

marine ecosystems in ways that are

poorly understood at best.’’

Response. The first suggestion was

adopted, because sustainable fisheries

are predicated on healthy marine

ecosystems. In addition, § 600.350(b)

was revised to combine the concepts of

increased uncertainty concerning total

fishing related mortality and the impact

of bycatch on other uses of fishery

resources.

Comment 12. One commenter stated

that portions of fish not used or retained

(e.g., finned sharks) are incidental catch

(and are therefore bycatch). Other

commenters stated that sharks could be

harvested for fins and discarded without

being counted as discards.

Response. The Magnuson-Stevens Act

does not define incidental catch;

however, it defines ‘‘bycatch’’ as fish

that are harvested in a fishery, but that

are not sold or kept for personal use.

The Magnuson-Stevens Act does not

specify that the entire animal or plant

must be sold or kept for personal use.

This does not mean, however, that

wasteful practices should not be of

concern, nor that they may not be

restricted by the Councils on some other

basis. The issue of how much of a fish

should be retained is a utilization issue,

which is distinct from the bycatch issue.

Comment 13. One commenter stated

that damaged and/or mutilated (e.g.,

shark-bitten) target species that are

discarded are bycatch.

Response. NMFS agrees. Such fish are

considered bycatch if they are not sold

or kept for personal use.

Comment 14. Economic discards of

target species, such as tunas during

times of market surplus, including

dumping of fish on land, are bycatch.

Response. NMFS agrees. Such

discards are considered bycatch.

Comment 15. One commenter

observed that the Magnuson-Stevens

Act’s definition of bycatch does not

mention unobserved fishing mortality

and recommended that the parenthetical

inclusion of unobserved fishing

mortality in the definition of bycatch in

§ 600.350(c) of the regulations should be

removed.

Response. NMFS disagrees. The

statute does not limit Council actions

only to observed bycatch. Unobserved

fishing-related mortality is implicitly

included in the definition because it

constitutes a harvest of fish that are not

sold or kept for personal use. NMFS

notes, however, that there is little

information available on unobserved

fishing-related mortality and believes

that primary emphasis should initially

be placed on minimizing observed

sources of fishing-related mortality.

Comment 16. One commenter noted

that unobserved fishing-related

mortality should be given prominence

in the proposed guidelines.

Response. NMFS disagrees. Given the

many sources of bycatch mortality,

NMFS believes that unobserved fishingrelated mortality is sufficiently

prominent in the guidelines as

proposed.

Comment 17. One commenter asked

how NMFS will ever assign a poundage

to unobserved mortality and what

scientific basis will be used to

determine unobserved mortality.

Response. NMFS recognizes that

determining unobserved fishing

mortality will be extremely difficult.

However, all significant sources of

fishing-related mortality need to be

considered when developing

conservation and management

measures. While there are some existing

technologies that could be used to

estimate unobserved fishing mortality

(e.g., video-based systems), new

methods will need to be developed.

This will involve an experimental

process, including rigorous peer reviews

of the results.

Comment 18. One commenter noted

that the amount of discards by the

recreational fishery has a significant

impact on fish stocks.

Response. NMFS agrees. Discards by

recreational anglers are considered to be

bycatch unless they are specifically

exempted in the Magnuson-Stevens Act.

All mortality associated with

recreationally caught fish must be

considered in the determination of OY

and MSY; this is addressed in the

guidelines for national standard 1.

Comment 19. One commenter

observed that fish released alive in

recreational catch-and-release and

tagging programs do die and should be

counted as bycatch and against OY.

Response. NMFS agrees that all

bycatch mortality and mortality

attributable to exempted tagging and

release programs should be considered

in determination of OY. As noted in the

response to comment 25 under national

standard 9, the Magnuson-Stevens Act

exempts only Atlantic highly migratory

species harvested in a tag-and-release

program established by the Secretary.

This is further addressed in the

guidelines to national standard 1.

Comment 20. One commenter stated

that the SFA specifically excludes

recreational catches from the

requirements for bycatch reduction and

avoidance. The commenter felt that a

specific reference to the value of catchand-release fisheries under the

guidelines to national standard 9 would

be useful.

Response. NMFS disagrees. Fish

caught and released alive under an

approved catch-and-release fishery

management program are exempt from

being considered bycatch under section

3(2) of the Magnuson-Stevens Act (see

also the response to comment 21 under

national standard 9). Management

regulations (e.g., minimum size limits

and bag limits) that result in the release

of fish by recreational anglers are not

considered catch-and-release programs

and, therefore, such catches are

considered to be bycatch, even though

the fish are released alive. Increased

efforts to release recreationally caught

fish in healthy condition may partially

satisfy the requirement in national

standard 9 that mortality of bycatch that

cannot be avoided be minimized to the

extent practicable.

Comment 21. One commenter asked

what is meant by the exclusion of ‘‘fish

released alive under a recreational

catch-and-release fishery’’ under the

bycatch definition.

Response. A definition of the term

‘‘catch-and-release fishery management

program’’ has been added to Section

600.350(c) as follows: a catch-andrelease fishery management program is

one in which the retention of a

particular species is prohibited. In such

a program, those fish released alive

would not be considered bycatch.

Comment 22. One commenter stated

that highly migratory species in a

commercial fishery managed by the

Secretary that are tagged and released

alive in the Atlantic are not considered

bycatch. The same commenter asked

whether the provision also extended to

Pacific highly migratory species

managed by the Western Pacific

Council, and if not, why not?

Response. NMFS agrees that the

Magnuson-Stevens Act specifically

exempted fish caught in highly

migratory species tag-and-release

programs in the Atlantic from being

considered bycatch. This exemption

was not extended in the SFA to Pacific

highly migratory programs. Therefore,

fish tagged and released in highly

migratory species tag-and-release

programs in the Pacific are considered

bycatch.

Comment 23. One commenter stated

that definitions of bycatch as ‘‘catch

which is not retained or utilized’’ and

incidental catch as ‘‘catch which is

retained in whole or part but not

necessarily targeted,’’ as adopted by the

Western Pacific Fishery Management

Council, are not consistent with the

Magnuson-Stevens Act or with the
24226 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

proposed national standard 9

guidelines.

Response. The Western Pacific

Council’s definition of ‘‘bycatch,’’

though not identical, is not inconsistent

with the new definition in the

Magnuson-Stevens Act. The definition

of ‘‘incidental catch’’ is not inconsistent

with anything in the Act or the

guidelines.

Comment 24. Several commenters

disagreed with the following statement

in the preamble to the proposed

guideline: ‘‘Bycatch can be decreased

either by decreasing the catch of fish

that would be discarded or by retaining

fish that would otherwise be

discarded.’’ They also stated that

avoidance should take precedence over

retention and that retention of bycatch

fails both tiers of national standard 9 in

that it neither avoids nor minimizes it.

Response. NMFS agrees that priority

must first be given to avoiding bycatch

to the extent possible. To the extent that

it is not possible, priority must then be

given to minimizing bycatch mortality.

Any proposed conservation and

management measure that does not give

first priority to avoiding the capture of

bycatch species must be supported by

appropriate analyses, including

determination of the net benefits to the

Nation. Section 600.350(d) introductory

text has been revised accordingly.

Sections 313(i) and 405(d)(3) of the

Magnuson-Stevens Act suggest that

retention and utilization are viable

solutions to some bycatch problems.

Comment 25. Several commenters

stated that the proposed rule would

make national standard 9 a

discretionary option for the Councils by

using the word ‘‘should’’ at the end of

§ 600.350(d). The commenters believed

the proposed guidelines fail to require

any Council to select and implement

measures to minimize bycatch.

Response. The requirements of the

Magnuson-Stevens Act are not

discretionary. The Councils must

consider the requirements in

§ 600.350(d) when evaluating

conservation and management measures

relative to the national standards. To

ensure that this point is made, the word

‘‘should’’ in § 600.350(d) introductory

text has been changed to ‘‘must’’ to

emphasize the mandatory nature of

Council actions under this national

standard.

Comment 26. One commenter stated

that the proposed language for national

standard 9 neglected to include ‘‘to the

extent practicable’’ when discussing

reduction of mortality of bycatch that

cannot be avoided. The commenter

stated that Congress explicitly

recognized that the costs of reducing

bycatch at some level outweigh the

benefits, and that the Magnuson-Stevens

Act does not demand that bycatch be

decreased to the point of technical

feasibility, just to the point that it still

makes sense to reduce it.

Response. NMFS agrees; the

guidelines already contain the language

suggested. For the purposes of this

national standard, the term

‘‘practicable’’ is not synonymous with

the term ‘‘possible,’’ because not all

reductions that are possible are

practicable. NMFS recognizes that in

some fisheries it may not be practicable

to eliminate all bycatch and bycatch

mortality.

Comment 27. One commenter stated

that, as stocks approach overfished

conditions or are below their optimum

levels, harvests (including bycatch)

should be limited to well below the

threshold at which there is a risk of

precipitating or contributing to a

decline.

Response. NMFS agrees. Bycatch

mortality is a component of total fishing

mortality and must be incorporated into

stock assessments. To the extent that

stock assessments include information

on the types and magnitude of bycatch,

total allowable catch determinations

will reflect that information.

Comment 28. Several commenters

stated that the guidelines ought to point

out specifically that economics cannot

justify bycatch that has a negative

impact on the health of any stock in a

multispecies fishery.

Response. NMFS agrees. The primary

responsibility of the Councils is to

develop conservation and management

measures that, to the extent practicable,

minimize the capture of bycatch species

and that, to the extent bycatch cannot be

avoided, minimize the mortality of such

bycatch. The economic consequences of

dealing with bycatch is one of the

factors that determines the extent to

which it is practicable to reduce bycatch

or bycatch mortality in a particular

fishery. The determination must be

based on the net benefits to the Nation

resulting from particular management

measures. Language has been added to

§ 600.350(d) introductory text to

indicate that the net benefits to the

Nation include, but are not limited to,

negative impacts on affected stocks;

incomes accruing to participants in

directed fisheries in both the short and

long term; incomes accruing to

participants in fisheries that target the

bycatch species; environmental

consequences; non-use values of

bycatch species, which include nonconsumptive uses of bycatch species

and existence values, as well as

recreational values; and impacts on

other marine organisms.

Comment 29. One commenter

believed that, by allowing the Councils

to prioritize their actions to address

bycatch, NMFS would effectively (and

unfairly) penalize those fisheries that

have voluntarily collected and

submitted bycatch data. The commenter

felt that bycatch reduction should be

done in a coordinated fashion, involving

all harvesters.

Response. NMFS disagrees with the

first part of the comment. The collection

of such data was voluntarily initiated by

the fishing industry because it was

recognized that bycatch is a problem

that must be dealt with; the fishing

industry is to be commended for taking

initiative in dealing with bycatch. The

guidelines specifically list activities that

the Councils must undertake to satisfy

the requirements of this national

standard. No fishery is exempt from the

requirements. However, for practical

reasons, the Councils will have to

determine their priorities for

development of management actions

and the basis for setting those priorities.

Comment 30. One commenter stated

that non-selective, destructive gear—

specifically longlines, gillnets, and

trawls—ought to be specifically

mentioned in the section on bycatch as

gear to which special attention ought to

be paid in the development of any

fishery management measures.

Response. NMFS disagrees. The

Councils will need to prioritize their

actions, not only with respect to various

fisheries, but also to various gears. The

Councils will need to determine, during

the development of fishery management

measures, which gears to allow and

which ones need special attention. No

change in the guidelines is necessary.

Comment 31. Several commenters

suggested that SAFE reports are

important tools in minimizing bycatch

and that a requirement be added that

information on the amount and type of

bycatch be summarized in the SAFE

report.

Response. NMFS agrees and has

added appropriate language to

§ 600.350(d)(2). NMFS notes that

§ 600.315(e)(1)(ii) of the guidelines for

national standard 2 already contains

this requirement.

Comment 32. Several commenters

stated that the list of factors in

§ 600.350(b)(3) is comprehensive and

invites the Councils to use those factors

as loopholes to avoid taking action.

Commenters questioned why such a

comprehensive list is needed for this

standard and none of the others.

Response. NMFS disagrees. The lack

of complete and perfect information is
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24227

not an excuse for not taking action.

Uncertainty concerning the desirable

and undesirable effects of minimizing

bycatch and bycatch mortality should be

dealt with similarly. (See also the

response to comment 35 under national

standard 9).

Comment 33. One commenter stated

that there are no criteria or methods for

establishing criteria for determining

how much bycatch is too much.

Response. NMFS disagrees. Section

600.350(d)(3) provides a list of criteria

for evaluating the impacts of bycatch.

Each Council must determine how

much bycatch is too much by balancing

the various factors that will maximize

the net benefits to the Nation (see also

the response to comment 24 under

national standard 9). Language that

includes the maximization of net

benefits to the Nation has been added to

§ 600.350(d)(3). The legislative history

of the SFA includes the following floor

statement by Congressman Young:

‘‘’Practicable’ requires an analysis of the

cost of imposing a management action;

the Congress does not intend to

...impose costs on fishermen and

processors that cannot be reasonably

met.’’

Comment 34. Several commenters

stated that Councils should prioritize

their actions to address those fisheries

that have not only the greatest bycatch

rate, but also the greatest amount of

bycatch.

Response. NMFS agrees that the

Councils will need to prioritize their

actions to address those fisheries where

actions to reduce bycatch can have the

greatest impact. Each Council will have

to determine the basis for setting its

priorities.

Comment 35. One commenter stated

that the final rule must clearly reflect

that Councils are not constrained from

acting when faced with uncertainty

surrounding one or several items

included in § 600.350(d)(3).

Response. NMFS agrees. The Councils

must take action to ensure the

sustainability of the Nation’s marine

fishery resources. National standard 2

specifically requires that conservation

and management measures be based on

the best scientific information available.

Where there is uncertainty surrounding

any of the items in § 600.350(d)(3),

Councils should adhere to the

precautionary approach stated in the

Food and Agriculture Organization of

the United Nations (FAO) Code of

Conduct for Responsible Fisheries

(Article 6.5). The Code specifically

states, ‘‘The absence of adequate

scientific information should not be

used as a reason for postponing or

failing to take measures to conserve

target species, associated or dependent

species and non-target species and their

environment.’’ Language to that effect

has been added to § 600.350(d)(3).

Comment 36. Several commenters

noted that requirements to implement

monitoring programs in FMPs may

prevent approval. Such requirements

could be an administrative burden for

the Councils and be very costly to

implement.

Response. NMFS disagrees. Section

303(a)(11) of the Magnuson-Stevens Act

specifically requires the Councils to

establish, for each fishery, a

‘‘standardized reporting methodology to

assess the amount and type of bycatch

occurring in the fishery.’’ The statute

makes no allowance for the financial or

administrative burden of establishing

such reporting programs. It is clear that,

in order to be able to assess the amount

and type of bycatch occurring in various

fisheries, monitoring programs must be

established.

Comment 37. One commenter stated

that data collection from all fishermen

must be made a high priority.

Response. NMFS agrees and notes

that the uncertainty surrounding

estimates of the types and amounts of

bycatch cannot be reduced without the

cooperation and involvement of all

components of the fisheries.

National Standard 10

Nine commenters commented

specifically on national standard 10. All

were positive and most substantive

comments were directed at making the

standard more restrictive. Several

commenters gave unqualified support to

the standard. One commenter urged that

NMFS work aggressively with the

Councils ‘‘to ensure that safety is

constantly considered in fishery

management.’’

Comment 1: One commenter noted

that no criteria were provided for the

phrase ‘‘to the extent practicable’’ in

national standard 10, as were provided

for national standard 9.

Response: NMFS disagrees. Section

600.355(b)(2) directly addresses these

concerns.

Comment 2: One commenter noted

‘‘while it is stated clearly in the opening

paragraph of the regulatory text

(§ 600.355(b)(1)) that this standard [is]

not meant to ’give preference to one

method of managing a fishery over

another,’ the suggested mitigation

management measures are replete with

inappropriate implicit endorsement of

ITQs (individual transferrable quotas)

that directly undermine that provision.’’

These references include ‘‘limiting the

number of participants in the fishery,’’

‘‘spreading effort over time and area,’’

and ‘‘implementing management

measures that reduce the race for fish.’’

Response: The mitigation measures do

not necessarily endorse ITQs. While

ITQs may be one way to solve some

problems with safety of life at sea and

reduce the ‘‘race for fish,’’ they are not

the only way. Vessel/license limitation

systems have been and are being

adopted without ITQs, such as in the

Alaska crab and groundfish fisheries. In

New England, the use of ‘‘days at sea’’

has spread effort over time and area

without creating a ‘‘race for fish.’’ The

term ‘‘race for fish’’ was used in the

discussion of the bill that became the

SFA, to describe the intensive fisheries

that have developed at the expense of

safety. As a primary reason for the

establishment of this national standard,

NMFS believes the term captures the

intent of Congress and the legislation.

Comment 3: One commenter

recommended that the national standard

10 guidelines require that Councils

establish mandatory, standardized,

accurate, and complete injury reporting

requirements.

Response: NMFS agrees in part.

Domestic fishing vessels are already

required to report this information to

the U.S. Coast Guard (USCG) under

provisions at 46 CFR parts 4 and 28.

This information can be made available

through the USCG, and reports

compared against vessels participating

in the fisheries. Guidance on contents of

SAFE reports at § 600.315(e)(1)(ii) has

been revised to include consideration of

safety issues.

Comment 4: One commenter

recommended that the statement ‘‘This

standard is not meant to give preference

to one method of managing a fishery

over another,’’ should be deleted or

replaced by, ‘‘While this standard is not

meant to give preference to one method

of managing a fishery over another, it

should be considered a significant factor

in allocation and other management

decisions and the Council should

provide rational justification why the

safest method is not being used.’’

Common sense would dictate that the

safer management regime be used.

Response: NMFS disagrees and

believes the guidance, as proposed, is

accurate.

Comment 5: One commenter

recommended that the term ‘‘safety of

human life at sea’’ should be modified

to read ‘‘safety of human life and limb

at sea’’ to emphasis reduction in injuries

as well as loss of life.

Response: NMFS considers the term

‘‘safety of human life at sea’’ to include

not only safety of life, but safety of limb

and the general operating environment,

as well, to the extent that fishery
24228 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

management measures may affect that

safety. The discussion of the term at

§ 600.355(b)(3) has been revised to

reflect this point.

Comment 6: One commenter

recommended that this standard require

that an FMP specify qualifications for

individuals who are responsible for

maintaining and controlling the stability

of a fishing or fish processing vessel.

Response: Such a requirement is

outside the scope of this rulemaking.

Other than requiring employment and

income information, neither NMFS nor

the Councils have specified individual

qualifications for fishermen. Individual

professional qualifications for the

master and crew come under the

authority of the USCG, as specified by

the Commercial Fishing Industry Vessel

Safety Act. NMFS does have the

authority to require permits of fishing

vessel operators under the MagnusonStevens Act, section 303(b)(1)(B).

Comment 7: One commenter

recommended that this standard

consider more than the stability of the

vessel and include safety of machinery

and processing equipment, as well.

FMPs should require processing vessels

to meet and maintain safety standards

developed in consultation with the

Department of Labor’s Occupational

Safety and Health Administration

(OSHA) as a condition of participation

in the fishery.

Response: Onboard safety concerns, to

the extent they are caused by fishery

management measures, are addressed by

the guidelines at § 600.355(c)(2). As

noted in the comment, the USCG and

OSHA have the primary responsibility

for machinery and processing safety on

board fishing vessels. Vessels are

already required to comply with those

standards; additional FMP requirements

would therefore be redundant.

Comment 8: One commenter stated

that § 600.355(c)(3) does not direct the

creation of a mechanism for fisheries to

be closed due to adverse weather

conditions.

Response: While a mechanism to

close, delay the opening of, or otherwise

halt the fishery during adverse weather

can improve safety, NMFS does not

consider such a mechanism mandatory.

Rather, it is one mitigation measure

available to the Council, as noted in

§ 600.355(e)(1).

Comment 9: One commenter

recommended that OSHA, the National

Institute of Occupational Safety and

Health, and the National Transportation

Safety Board be consulted for vessel

safety, in addition to the USCG.

Response: NMFS does not believe that

requiring consultations with all these

agencies is necessary at this time. These

agencies are outstanding sources of

information on specific issues, and

consultation with one or more of them

may be appropriate in certain

circumstances. However, routine

consultation with these agencies is not

necessary and would become

burdensome to the Councils and to the

agencies involved. NMFS encourages

the Councils to use these and other

groups, including industry groups, in

formulating safer management

measures.

Comment 10: One commenter

recommended that a risk analysis be

conducted for future amendments that

include allocations between gear types,

inshore-offshore processing allocations,

seasonal openings, area openings or

closures, and possibly others.

Response: NMFS does not believe that

requiring a specific safety risk analysis

for all these actions is necessary at this

time. While a risk analysis may be

appropriate in situations where there

are a number of alternatives whose

effects on safety are not clear, in others,

the alternatives may be constrained by

other national standard or legal

restrictions, or their effects are very

clear and a risk analysis is unnecessary.

NMFS prefers to allow each Council to

conduct a risk analysis at its option,

based on consultations with the USCG

and the fishing industry.

Classification

OMB has determined this rule to be

economically significant under E.O.

12866 because this rule provides

guidance on implementing statutory

changes that may have large economic

impacts on specific sectors of the

economy. Each amendment to an

existing FMP and all new FMPs will

include detailed analyses of the benefits

and costs of the management programs

under consideration to ensure

compliance with E.O. 12866.

In addition, OMB has determined this

rule to be ‘‘major’’ under the Small

Business Regulatory Enforcement and

Fairness Act Congressional Review

provision (5 U.S.C. 801 et seq.).

Pursuant to authority at 5 U.S.C. 808(1),

this major rule conducting a regulatory

program for commercial and

recreational activities related to fishing

will be effective June 1, 1998.

The main purpose of these guidelines,

in carrying out the 1996 amendments to

the Magnuson-Stevens Act, is to reduce

overfishing immediately, rebuild

overfished stocks within a set

timeframe, and prevent by catch and

reduce mortality of unavoidable bycatch

to the maximum extent possible. The

effects of these guidelines can only be

described qualitatively; quantified and

monetized estimates of benefits, costs

and other effects cannot be developed

until specific regulatory actions are

indentified and proposed. Changes in

employment, regional economic

development, and a variety of

distributional concerns are examples of

the important effects not otherwise

captured in estimates of social costs and

benefits.

Producers will bear costs

implementing programs and regulations

developed under these guidelines to

restore fisheries stocks. These costs will

take a variety of forms, such as

mandatory investments in new fishing

gear to reduce bycatch; restrictions on

the level of fishing effort, which raise

average costs; and other measures

intended to reduce the quantity of fish

harvested. Consumers also will bear

costs, primarily in the form of lost

consumers’ surplus resulting from

reduced market supply and concomitant

higher prices. These costs will rise to

the extent that consumer tastes continue

to evolve toward greater preference for

fish and shellfish over other foods.

Once fisheries stocks have recovered,

producers will gain benefits in the form

of reduced costs of production.

Consumers also will benefit to the

extent that restored stocks permit

increases in the allowable harvest

compatible with sustainable yield.

Summed over all fisheries in the

exclusive economic zone over the long

term, the potential increase in net

revenues is estimated at $2.9 billion

annually. Social benefits will equal the

fraction of this amount remaining after

all costs are deducted.

In the short-run, fisheries

employment will likely fall as producers

adapt to rules and restrictions

undertaken to restore long-term

sustainability. These job losses will be

at least partially offset by increases in

employment elsewhere. Once fisheries

stocks have recovered, however,

fisheries employment could increase by

up to 300,000 jobs over present

employment levels. As in the case of

short-term job losses, these employment

gains will be at least partially offset by

reductions in jobs elsewhere. Changes

in employment do not translate directly

into benefits or costs, however, and

must be evaluated instead as a separate

class of effects resulting from individual

rules and regulations promulgated

pursuant to this guidance.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule will not have a significant

economic impact on a substantial
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24229

number of small entities. This rule adds

to and updates the national standards

and accompanying explanatory and

interpretive language to implement

statutory provisions of the SFA. The

SFA’s amendments to the national

standards make it necessary for the

Councils to examine their existing FMPs

and all future proposed management

measures to ensure that they comply

with the national standards; FMPs

found out of compliance will need to be

amended. These guidelines are intended

to provide direction and elaboration on

compliance with the national standards

and, in themselves, do not have the

force of law. Should Councils propose

regulations as a result of the SFA, those

actions may affect small entities and

could be subject to the requirement to

prepare a Regulatory Flexibility

Analysis at the time they are proposed.

Any future effects on small entities that

may ultimately result from amendments

to FMPs to bring them into compliance

with the Magnuson-Stevens Act would

be speculative at this time. One

comment was received regarding this

determination; the commenter believed

that the impacts of these guidelines

would have a significant economic

impact on a substantial number of small

entities. However, as explained in the

response to general comment 8 above,

NMFS believes that, while significant

impacts could result from future

management actions, the guidelines

themselves have no such effect.

Furthermore, NMFS has no basis upon

which to assess, at this time, the

impacts of regulations that may result

from these revisions to the guidelines,

except in the broadest sense. As a result,

a Regulatory Flexibility Analysis for this

rule was not prepared.

List of Subjects in 50 CFR Part 600

Administrative practice and

procedure, Confidential business

information, Fisheries, Fishing, Fishing

vessels, Foreign relations,

Intergovernmental relations, National

Oceanic and Atmospheric

Administration, Penalties, Reporting

and recordkeeping requirements,

Statistics.

Rolland A. Schmitten

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 600 is amended

as follows:

PART 600—MAGNUSON-STEVENS

ACT PROVISIONS

1. The authority citation for part 600

continues to read as follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801

et seq.

2. The part heading is revised to read

as set forth above.

3. In § 600.305, paragraph (c)(13) is

removed and the second and third

sentences of paragraph (a)(2), the last

sentence of paragraph (a)(3), and

paragraphs (c)(1), (c)(3), (c)(11), and

(c)(12) are revised to read as follows:

§ 600.305 General.

(a) * * *

(2) * * * The Secretary will determine

whether the proposed management

objectives and measures are consistent

with the national standards, other

provisions of the Magnuson-Stevens

Act, and other applicable law. The

Secretary has an obligation under

section 301(b) of the Magnuson-Stevens

Act to inform the Councils of the

Secretary’s interpretation of the national

standards so that they will have an

understanding of the basis on which

FMPs will be reviewed.

(3) * * * FMPs that are in substantial

compliance with the guidelines, the

Magnuson-Stevens Act, and other

applicable law must be approved.

* * * * *

(c) * * *

(1) Must is used, instead of ‘‘shall’’, to

denote an obligation to act; it is used

primarily when referring to

requirements of the Magnuson-Stevens

Act, the logical extension thereof, or of

other applicable law.

* * * * *

(3) Should is used to indicate that an

action or consideration is strongly

recommended to fulfill the Secretary’s

interpretation of the Magnuson-Stevens

Act, and is a factor reviewers will look

for in evaluating a SOPP or FMP.

* * * * *

(11) Council includes the Secretary, as

applicable, when preparing FMPs or

amendments under section 304(c) and

(g) of the Magnuson-Stevens Act.

(12) Stock or stock complex is used as

a synonym for ‘‘fishery’’ in the sense of

the Magnuson-Stevens Act’s first

definition of the term; that is, as ‘‘one

or more stocks of fish that can be treated

as a unit for purposes of conservation

and management and that are identified

on the basis of geographic, scientific,

technical, recreational, or economic

characteristics,’’ as distinguished from

the Magnuson-Stevens Act’s second

definition of fishery as ‘‘any fishing for

such stocks.’’

4. Section 600.310 is revised to read

as follows:

§ 600.310 National Standard 1—Optimum

Yield.

(a) Standard 1. Conservation and

management measures shall prevent

overfishing while achieving, on a

continuing basis, the OY from each

fishery for the U.S. fishing industry.

(b) General. The determination of OY

is a decisional mechanism for resolving

the Magnuson-Stevens Act’s multiple

purposes and policies, implementing an

FMP’s objectives, and balancing the

various interests that comprise the

national welfare. OY is based on MSY,

or on MSY as it may be reduced under

paragraph (f)(3) of this section. The most

important limitation on the

specification of OY is that the choice of

OY and the conservation and

management measures proposed to

achieve it must prevent overfishing.

(c) MSY. Each FMP should include an

estimate of MSY as explained in this

section.

(1) Definitions. (i) ‘‘MSY’’ is the

largest long-term average catch or yield

that can be taken from a stock or stock

complex under prevailing ecological

and environmental conditions.

(ii) ‘‘MSY control rule’’ means a

harvest strategy which, if implemented,

would be expected to result in a longterm average catch approximating MSY.

(iii) ‘‘MSY stock size’’ means the longterm average size of the stock or stock

complex, measured in terms of

spawning biomass or other appropriate

units, that would be achieved under an

MSY control rule in which the fishing

mortality rate is constant.

(2) Options in specifying MSY. (i)

Because MSY is a theoretical concept,

its estimation in practice is conditional

on the choice of an MSY control rule.

In choosing an MSY control rule,

Councils should be guided by the

characteristics of the fishery, the FMP’s

objectives, and the best scientific

information available. The simplest

MSY control rule is to remove a

constant catch in each year that the

estimated stock size exceeds an

appropriate lower bound, where this

catch is chosen so as to maximize the

resulting long-term average yield. Other

examples include the following:

Remove a constant fraction of the

biomass in each year, where this

fraction is chosen so as to maximize the

resulting long-term average yield; allow

a constant level of escapement in each

year, where this level is chosen so as to

maximize the resulting long-term

average yield; vary the fishing mortality

rate as a continuous function of stock

size, where the parameters of this

function are constant and chosen so as

to maximize the resulting long-term

average yield. In any MSY control rule,
24230 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

a given stock size is associated with a

given level of fishing mortality and a

given level of potential harvest, where

the long-term average of these potential

harvests provides an estimate of MSY.

(ii) Any MSY values used in

determining OY will necessarily be

estimates, and these will typically be

associated with some level of

uncertainty. Such estimates must be

based on the best scientific information

available (see § 600.315) and must

incorporate appropriate consideration of

risk (see § 600.335). Beyond these

requirements, however, Councils have a

reasonable degree of latitude in

determining which estimates to use and

how these estimates are to be expressed.

For example, a point estimate of MSY

may be expressed by itself or together

with a confidence interval around that

estimate.

(iii) In the case of a mixed-stock

fishery, MSY should be specified on a

stock-by-stock basis. However, where

MSY cannot be specified for each stock,

then MSY may be specified on the basis

of one or more species as an indicator

for the mixed stock as a whole or for the

fishery as a whole.

(iv) Because MSY is a long-term

average, it need not be estimated

annually, but it must be based on the

best scientific information available,

and should be re-estimated as required

by changes in environmental or

ecological conditions or new scientific

information.

(3) Alternatives to specifying MSY.

When data are insufficient to estimate

MSY directly, Councils should adopt

other measures of productive capacity

that can serve as reasonable proxies for

MSY, to the extent possible. Examples

include various reference points defined

in terms of relative spawning per

recruit. For instance, the fishing

mortality rate that reduces the long-term

average level of spawning per recruit to

30–40 percent of the long-term average

that would be expected in the absence

of fishing may be a reasonable proxy for

the MSY fishing mortality rate. The

long-term average stock size obtained by

fishing year after year at this rate under

average recruitment may be a reasonable

proxy for the MSY stock size, and the

long-term average catch so obtained may

be a reasonable proxy for MSY. The

natural mortality rate may also be a

reasonable proxy for the MSY fishing

mortality rate. If a reliable estimate of

pristine stock size (i.e., the long-term

average stock size that would be

expected in the absence of fishing) is

available, a stock size approximately 40

percent of this value may be a

reasonable proxy for the MSY stock size,

and the product of this stock size and

the natural mortality rate may be a

reasonable proxy for MSY.

(d) Overfishing—(1) Definitions. (i)

‘‘To overfish’’ means to fish at a rate or

level that jeopardizes the capacity of a

stock or stock complex to produce MSY

on a continuing basis.

(ii) ‘‘Overfishing’’ occurs whenever a

stock or stock complex is subjected to a

rate or level of fishing mortality that

jeopardizes the capacity of a stock or

stock complex to produce MSY on a

continuing basis.

(iii) In the Magnuson-Stevens Act, the

term ‘‘overfished’’ is used in two senses:

First, to describe any stock or stock

complex that is subjected to a rate or

level of fishing mortality meeting the

criterion in paragraph (d)(1)(i) of this

section, and second, to describe any

stock or stock complex whose size is

sufficiently small that a change in

management practices is required in

order to achieve an appropriate level

and rate of rebuilding. To avoid

confusion, this section uses

‘‘overfished’’ in the second sense only.

(2) Specification of status

determination criteria. Each FMP must

specify, to the extent possible, objective

and measurable status determination

criteria for each stock or stock complex

covered by that FMP and provide an

analysis of how the status determination

criteria were chosen and how they relate

to reproductive potential. Status

determination criteria must be

expressed in a way that enables the

Council and the Secretary to monitor

the stock or stock complex and

determine annually whether overfishing

is occurring and whether the stock or

stock complex is overfished. In all cases,

status determination criteria must

specify both of the following:

(i) A maximum fishing mortality

threshold or reasonable proxy thereof.

The fishing mortality threshold may be

expressed either as a single number or

as a function of spawning biomass or

other measure of productive capacity.

The fishing mortality threshold must

not exceed the fishing mortality rate or

level associated with the relevant MSY

control rule. Exceeding the fishing

mortality threshold for a period of 1

year or more constitutes overfishing.

(ii) A minimum stock size threshold

or reasonable proxy thereof. The stock

size threshold should be expressed in

terms of spawning biomass or other

measure of productive capacity. To the

extent possible, the stock size threshold

should equal whichever of the following

is greater: One-half the MSY stock size,

or the minimum stock size at which

rebuilding to the MSY level would be

expected to occur within 10 years if the

stock or stock complex were exploited

at the maximum fishing mortality

threshold specified under paragraph

(d)(2)(i) of this section. Should the

actual size of the stock or stock complex

in a given year fall below this threshold,

the stock or stock complex is considered

overfished.

(3) Relationship of status

determination criteria to other national

standards—(i) National standard 2.

Status determination criteria must be

based on the best scientific information

available (see § 600.315). When data are

insufficient to estimate MSY, Councils

should base status determination

criteria on reasonable proxies thereof to

the extent possible (also see paragraph

(c)(3) of this section). In cases where

scientific data are severely limited,

effort should also be directed to

identifying and gathering the needed

data.

(ii) National standard 3. The

requirement to manage interrelated

stocks of fish as a unit or in close

coordination notwithstanding (see

§ 600.320), status determination criteria

should generally be specified in terms of

the level of stock aggregation for which

the best scientific information is

available (also see paragraph (c)(2)(iii) of

this section).

(iii) National standard 6. Councils

must build into the status determination

criteria appropriate consideration of

risk, taking into account uncertainties in

estimating harvest, stock conditions, life

history parameters, or the effects of

environmental factors (see § 600.335).

(4) Relationship of status

determination criteria to environmental

change. Some short-term environmental

changes can alter the current size of a

stock or stock complex without affecting

the long-term productive capacity of the

stock or stock complex. Other

environmental changes affect both the

current size of the stock or stock

complex and the long-term productive

capacity of the stock or stock complex.

(i) If environmental changes cause a

stock or stock complex to fall below the

minimum stock size threshold without

affecting the long-term productive

capacity of the stock or stock complex,

fishing mortality must be constrained

sufficiently to allow rebuilding within

an acceptable time frame (also see

paragraph (e)(4)(ii) of this section).

Status determination criteria need not

be respecified.

(ii) If environmental changes affect

the long-term productive capacity of the

stock or stock complex, one or more

components of the status determination

criteria must be respecified. Once status

determination criteria have been

respecified, fishing mortality may or

may not have to be reduced, depending
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24231

on the status of the stock or stock

complex with respect to the new

criteria.

(iii) If manmade environmental

changes are partially responsible for a

stock or stock complex being in an

overfished condition, in addition to

controlling effort, Councils should

recommend restoration of habitat and

other ameliorative programs, to the

extent possible (see also the guidelines

issued pursuant to section 305(b) of the

Magnuson-Stevens Act for Council

actions concerning essential fish

habitat).

(5) Secretarial approval of status

determination criteria. Secretarial

approval or disapproval of proposed

status determination criteria will be

based on consideration of whether the

proposal:

(i) Has sufficient scientific merit.

(ii) Contains the elements described

in paragraph (d)(2) of this section.

(iii) Provides a basis for objective

measurement of the status of the stock

or stock complex against the criteria.

(iv) Is operationally feasible.

(6) Exceptions. There are certain

limited exceptions to the requirement to

prevent overfishing. Harvesting one

species of a mixed-stock complex at its

optimum level may result in the

overfishing of another stock component

in the complex. A Council may decide

to permit this type of overfishing only

if all of the following conditions are

satisfied:

(i) It is demonstrated by analysis

(paragraph (f)(6) of this section) that

such action will result in long-term net

benefits to the Nation.

(ii) It is demonstrated by analysis that

mitigating measures have been

considered and that a similar level of

long-term net benefits cannot be

achieved by modifying fleet behavior,

gear selection/configuration, or other

technical characteristic in a manner

such that no overfishing would occur.

(iii) The resulting rate or level of

fishing mortality will not cause any

species or evolutionarily significant unit

thereof to require protection under the

ESA.

(e) Ending overfishing and rebuilding

overfished stocks— (1) Definition. A

threshold, either maximum fishing

mortality or minimum stock size, is

being ‘‘approached’’ whenever it is

projected that the threshold will be

breached within 2 years, based on

trends in fishing effort, fishery resource

size, and other appropriate factors.

(2) Notification. The Secretary will

immediately notify a Council and

request that remedial action be taken

whenever the Secretary determines that:

(i) Overfishing is occurring;

(ii) A stock or stock complex is

overfished;

(iii) The rate or level of fishing

mortality for a stock or stock complex is

approaching the maximum fishing

mortality threshold;

(iv) A stock or stock complex is

approaching its minimum stock size

threshold; or

(v) Existing remedial action taken for

the purpose of ending previously

identified overfishing or rebuilding a

previously identified overfished stock or

stock complex has not resulted in

adequate progress.

(3) Council action. Within 1 year of

such time as the Secretary may identify

that overfishing is occurring, that a

stock or stock complex is overfished, or

that a threshold is being approached, or

such time as a Council may be notified

of the same under paragraph (e)(2) of

this section, the Council must take

remedial action by preparing an FMP,

FMP amendment, or proposed

regulations. This remedial action must

be designed to accomplish all of the

following purposes that apply:

(i) If overfishing is occurring, the

purpose of the action is to end

overfishing.

(ii) If the stock or stock complex is

overfished, the purpose of the action is

to rebuild the stock or stock complex to

the MSY level within an appropriate

time frame.

(iii) If the rate or level of fishing

mortality is approaching the maximum

fishing mortality threshold (from

below), the purpose of the action is to

prevent this threshold from being

reached.

(iv) If the stock or stock complex is

approaching the minimum stock size

threshold (from above), the purpose of

the action is to prevent this threshold

from being reached.

(4) Constraints on Council action. (i)

In cases where overfishing is occurring,

Council action must be sufficient to end

overfishing.

(ii) In cases where a stock or stock

complex is overfished, Council action

must specify a time period for

rebuilding the stock or stock complex

that satisfies the requirements of section

304(e)(4)(A) of the Magnuson-Stevens

Act.

(A) A number of factors enter into the

specification of the time period for

rebuilding:

(1) The status and biology of the stock

or stock complex;

(2) Interactions between the stock or

stock complex and other components of

the marine ecosystem (also referred to as

‘‘other environmental conditions’’);

(3) The needs of fishing communities;

(4) Recommendations by international

organizations in which the United

States participates; and

(5) Management measures under an

international agreement in which the

United States participates.

(B) These factors enter into the

specification of the time period for

rebuilding as follows:

(1) The lower limit of the specified

time period for rebuilding is determined

by the status and biology of the stock or

stock complex and its interactions with

other components of the marine

ecosystem, and is defined as the amount

of time that would be required for

rebuilding if fishing mortality were

eliminated entirely.

(2) If the lower limit is less than 10

years, then the specified time period for

rebuilding may be adjusted upward to

the extent warranted by the needs of

fishing communities and

recommendations by international

organizations in which the United

States participates, except that no such

upward adjustment can result in the

specified time period exceeding 10

years, unless management measures

under an international agreement in

which the United States participates

dictate otherwise.

(3) If the lower limit is 10 years or

greater, then the specified time period

for rebuilding may be adjusted upward

to the extent warranted by the needs of

fishing communities and

recommendations by international

organizations in which the United

States participates, except that no such

upward adjustment can exceed the

rebuilding period calculated in the

absence of fishing mortality, plus one

mean generation time or equivalent

period based on the species’ life-history

characteristics. For example, suppose a

stock could be rebuilt within 12 years in

the absence of any fishing mortality, and

has a mean generation time of 8 years.

The rebuilding period, in this case,

could be as long as 20 years.

(C) A rebuilding program undertaken

after May 1, 1998 commences as soon as

the first measures to rebuild the stock or

stock complex are implemented.

(D) In the case of rebuilding plans that

were already in place as of May 1, 1998,

such rebuilding plans must be reviewed

to determine whether they are in

compliance with all requirements of the

Magnuson-Stevens Act, as amended by

the Sustainable Fisheries Act.

(iii) For fisheries managed under an

international agreement, Council action

must reflect traditional participation in

the fishery, relative to other nations, by

fishermen of the United States.

(5) Interim measures. The Secretary,

on his/her own initiative or in response
24232 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

to a Council request, may implement

interim measures to reduce overfishing

under section 305(c) of the MagnusonStevens Act, until such measures can be

replaced by an FMP, FMP amendment,

or regulations taking remedial action.

(i) These measures may remain in

effect for no more than 180 days, but

may be extended for an additional 180

days if the public has had an

opportunity to comment on the

measures and, in the case of Councilrecommended measures, the Council is

actively preparing an FMP, FMP

amendment, or proposed regulations to

address overfishing on a permanent

basis. Such measures, if otherwise in

compliance with the provisions of the

Magnuson-Stevens Act, may be

implemented even though they are not

sufficient by themselves to stop

overfishing of a fishery.

(ii) If interim measures are made

effective without prior notice and

opportunity for comment, they should

be reserved for exceptional situations,

because they affect fishermen without

providing the usual procedural

safeguards. A Council recommendation

for interim measures without noticeand-comment rulemaking will be

considered favorably if the short-term

benefits of the measures in reducing

overfishing outweigh the value of

advance notice, public comment, and

deliberative consideration of the

impacts on participants in the fishery.

(f) OY—(1) Definitions. (i) The term

‘‘optimum,’’ with respect to the yield

from a fishery, means the amount of fish

that will provide the greatest overall

benefit to the Nation, particularly with

respect to food production and

recreational opportunities and taking

into account the protection of marine

ecosystems; that is prescribed on the

basis of the MSY from the fishery, as

reduced by any relevant economic,

social, or ecological factor; and, in the

case of an overfished fishery, that

provides for rebuilding to a level

consistent with producing the MSY in

such fishery.

(ii) In national standard 1, use of the

phrase ‘‘achieving, on a continuing

basis, the OY from each fishery’’ means

producing, from each fishery, a longterm series of catches such that the

average catch is equal to the average OY

and such that status determination

criteria are met.

(2) Values in determination. In

determining the greatest benefit to the

Nation, these values that should be

weighed are food production,

recreational opportunities, and

protection afforded to marine

ecosystems. They should receive serious

attention when considering the

economic, social, or ecological factors

used in reducing MSY to obtain OY.

(i) The benefits of food production are

derived from providing seafood to

consumers, maintaining an

economically viable fishery together

with its attendant contributions to the

national, regional, and local economies,

and utilizing the capacity of the

Nation’s fishery resources to meet

nutritional needs.

(ii) The benefits of recreational

opportunities reflect the quality of both

the recreational fishing experience and

non-consumptive fishery uses such as

ecotourism, fish watching, and

recreational diving, and the contribution

of recreational fishing to the national,

regional, and local economies and food

supplies.

(iii) The benefits of protection

afforded to marine ecosystems are those

resulting from maintaining viable

populations (including those of

unexploited species), maintaining

evolutionary and ecological processes

(e.g., disturbance regimes, hydrological

processes, nutrient cycles), maintaining

the evolutionary potential of species

and ecosystems, and accommodating

human use.

(3) Factors relevant to OY. Because

fisheries have finite capacities, any

attempt to maximize the measures of

benefit described in paragraph (f)(2) of

this section will inevitably encounter

practical constraints. One of these is

MSY. Moreover, various factors can

constrain the optimum level of catch to

a value less than MSY. The MagnusonStevens Act’s definition of OY identifies

three categories of such factors: Social,

economic, and ecological. Not every

factor will be relevant in every fishery.

For some fisheries, insufficient

information may be available with

respect to some factors to provide a

basis for corresponding reductions in

MSY.

(i) Social factors. Examples are

enjoyment gained from recreational

fishing, avoidance of gear conflicts and

resulting disputes, preservation of a way

of life for fishermen and their families,

and dependence of local communities

on a fishery. Other factors that may be

considered include the cultural place of

subsistence fishing, obligations under

Indian treaties, and worldwide

nutritional needs.

(ii) Economic factors. Examples are

prudent consideration of the risk of

overharvesting when a stock’s size or

productive capacity is uncertain,

satisfaction of consumer and

recreational needs, and encouragement

of domestic and export markets for U.S.-

harvested fish. Other factors that may be

considered include the value of

fisheries, the level of capitalization, the

decrease in cost per unit of catch

afforded by an increase in stock size,

and the attendant increase in catch per

unit of effort, alternate employment

opportunities, and economies of coastal

areas.

(iii) Ecological factors. Examples are

stock size and age composition, the

vulnerability of incidental or

unregulated stocks in a mixed-stock

fishery, predator-prey or competitive

interactions, and dependence of marine

mammals and birds or endangered

species on a stock of fish. Also

important are ecological or

environmental conditions that stress

marine organisms, such as natural and

manmade changes in wetlands or

nursery grounds, and effects of

pollutants on habitat and stocks.

(4) Specification. (i) The amount of

fish that constitutes the OY should be

expressed in terms of numbers or weight

of fish. However, OY may be expressed

as a formula that converts periodic stock

assessments into target harvest levels; in

terms of an annual harvest of fish or

shellfish having a minimum weight,

length, or other measurement; or as an

amount of fish taken only in certain

areas, in certain seasons, with particular

gear, or by a specified amount of fishing

effort.

(ii) Either a range or a single value

may be specified for OY. Specification

of a numerical, fixed-value OY does not

preclude use of annual target harvest

levels that vary with stock size. Such

target harvest levels may be prescribed

on the basis of an OY control rule

similar to the MSY control rule

described in paragraph (c)(1)(ii) of this

section, but designed to achieve OY on

average, rather than MSY. The annual

harvest level obtained under an OY

control rule must always be less than or

equal to the harvest level that would be

obtained under the MSY control rule.

(iii) All fishing mortality must be

counted against OY, including that

resulting from bycatch, scientific

research, and any other fishing

activities.

(iv) The OY specification should be

translatable into an annual numerical

estimate for the purposes of establishing

any TALFF and analyzing impacts of

the management regime. There should

be a mechanism in the FMP for periodic

reassessment of the OY specification, so

that it is responsive to changing

circumstances in the fishery.

(v) The determination of OY requires

a specification of MSY, which may not

always be possible or meaningful.

However, even where sufficient

scientific data as to the biological

characteristics of the stock do not exist,
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24233

or where the period of exploitation or

investigation has not been long enough

for adequate understanding of stock

dynamics, or where frequent large-scale

fluctuations in stock size diminish the

meaningfulness of the MSY concept, the

OY must still be based on the best

scientific information available. When

data are insufficient to estimate MSY

directly, Councils should adopt other

measures of productive capacity that

can serve as reasonable proxies for MSY

to the extent possible (also see

paragraph (c)(3) of this section).

(vi) In a mixed-stock fishery,

specification of a fishery-wide OY may

be accompanied by management

measures establishing separate annual

target harvest levels for the individual

stocks. In such cases, the sum of the

individual target levels should not

exceed OY.

(5) OY and the precautionary

approach. In general, Councils should

adopt a precautionary approach to

specification of OY. A precautionary

approach is characterized by three

features:

(i) Target reference points, such as

OY, should be set safely below limit

reference points, such as the catch level

associated with the fishing mortality

rate or level defined by the status

determination criteria. Because it is a

target reference point, OY does not

constitute an absolute ceiling, but rather

a desired result. An FMP must contain

conservation and management measures

to achieve OY, and provisions for

information collection that are designed

to determine the degree to which OY is

achieved on a continuing basis—that is,

to result in a long-term average catch

equal to the long-term average OY,

while meeting the status determination

criteria. These measures should allow

for practical and effective

implementation and enforcement of the

management regime, so that the harvest

is allowed to reach OY, but not to

exceed OY by a substantial amount. The

Secretary has an obligation to

implement and enforce the FMP so that

OY is achieved. If management

measures prove unenforceable—or too

restrictive, or not rigorous enough to

realize OY—they should be modified;

an alternative is to reexamine the

adequacy of the OY specification.

Exceeding OY does not necessarily

constitute overfishing. However, even if

no overfishing resulted from exceeding

OY, continual harvest at a level above

OY would violate national standard 1,

because OY was not achieved on a

continuing basis.

(ii) A stock or stock complex that is

below the size that would produce MSY

should be harvested at a lower rate or

level of fishing mortality than if the

stock or stock complex were above the

size that would produce MSY.

(iii) Criteria used to set target catch

levels should be explicitly risk averse,

so that greater uncertainty regarding the

status or productive capacity of a stock

or stock complex corresponds to greater

caution in setting target catch levels.

Part of the OY may be held as a reserve

to allow for factors such as uncertainties

in estimates of stock size and DAH. If an

OY reserve is established, an adequate

mechanism should be included in the

FMP to permit timely release of the

reserve to domestic or foreign

fishermen, if necessary.

(6) Analysis. An FMP must contain an

assessment of how its OY specification

was determined (section 303(a)(3) of the

Magnuson-Stevens Act). It should relate

the explanation of overfishing in

paragraph (d) of this section to

conditions in the particular fishery and

explain how its choice of OY and

conservation and management measures

will prevent overfishing in that fishery.

A Council must identify those

economic, social, and ecological factors

relevant to management of a particular

fishery, then evaluate them to determine

the amount, if any, by which MSY

exceeds OY. The choice of a particular

OY must be carefully defined and

documented to show that the OY

selected will produce the greatest

benefit to the Nation. If overfishing is

permitted under paragraph (d)(6) of this

section, the assessment must contain a

justification in terms of overall benefits,

including a comparison of benefits

under alternative management

measures, and an analysis of the risk of

any species or ecologically significant

unit thereof reaching a threatened or

endangered status, as well as the risk of

any stock or stock complex falling

below its minimum stock size threshold.

(7) OY and foreign fishing. Section

201(d) of the Magnuson-Stevens Act

provides that fishing by foreign nations

is limited to that portion of the OY that

will not be harvested by vessels of the

United States.

(i) DAH. Councils must consider the

capacity of, and the extent to which,

U.S. vessels will harvest the OY on an

annual basis. Estimating the amount

that U.S. fishing vessels will actually

harvest is required to determine the

surplus.

(ii) DAP. Each FMP must assess the

capacity of U.S. processors. It must also

assess the amount of DAP, which is the

sum of two estimates: The estimated

amount of U.S. harvest that domestic

processors will process, which may be

based on historical performance or on

surveys of the expressed intention of

manufacturers to process, supported by

evidence of contracts, plant expansion,

or other relevant information; and the

estimated amount of fish that will be

harvested by domestic vessels, but not

processed (e.g., marketed as fresh whole

fish, used for private consumption, or

used for bait).

(iii) JVP. When DAH exceeds DAP,

the surplus is available for JVP. JVP is

derived from DAH.

5. In § 600.315, paragraphs (e)(3) and

(e)(4) are redesignated as paragraphs

(e)(4) and (e)(5), respectively; new

paragraph (e)(3) is added; and

paragraphs (c)(2), (c)(3), (e)(1)

introductory text, (e)(1)(ii), and newly

redesignated (e)(4) are revised to read as

follows:

§ 600.315 National Standard 2—Scientific

Information.

* * * * *

(c) * * *

(2) An FMP should identify scientific

information needed from other sources

to improve understanding and

management of the resource, marine

ecosystem, and the fishery (including

fishing communities).

(3) The information submitted by

various data suppliers should be

comparable and compatible, to the

maximum extent possible.

* * * * *

(e) * * *

(1) The SAFE report is a document or

set of documents that provides Councils

with a summary of information

concerning the most recent biological

condition of stocks and the marine

ecosystems in the FMU and the social

and economic condition of the

recreational and commercial fishing

interests, fishing communities, and the

fish processing industries. It

summarizes, on a periodic basis, the

best available scientific information

concerning the past, present, and

possible future condition of the stocks,

marine ecosystems, and fisheries being

managed under Federal regulation.

* * * * *

(ii) The SAFE report provides

information to the Councils for

determining annual harvest levels from

each stock, documenting significant

trends or changes in the resource,

marine ecosystems, and fishery over

time, and assessing the relative success

of existing state and Federal fishery

management programs. Information on

bycatch and safety for each fishery

should also be summarized. In addition,

the SAFE report may be used to update

or expand previous environmental and

regulatory impact documents, and

ecosystem and habitat descriptions.

* * * * *
24234 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

(3) Each SAFE report should contain

a description of the maximum fishing

mortality threshold and the minimum

stock size threshold for each stock or

stock complex, along with information

by which the Council may determine:

(i) Whether overfishing is occurring

with respect to any stock or stock

complex, whether any stock or stock

complex is overfished, whether the rate

or level of fishing mortality applied to

any stock or stock complex is

approaching the maximum fishing

mortality threshold, and whether the

size of any stock or stock complex is

approaching the minimum stock size

threshold.

(ii) Any management measures

necessary to provide for rebuilding an

overfished stock or stock complex (if

any) to a level consistent with

producing the MSY in such fishery.

(4) Each SAFE report may contain

additional economic, social,

community, essential fish habitat, and

ecological information pertinent to the

success of management or the

achievement of objectives of each FMP.

* * * * *

6. In § 600.320, the last sentence of

paragraph (c) is revised to read as

follows:

§ 600.320 National Standard 3—

Management Units.

* * * * *

(c) * * * The Secretary designates

which Council(s) will prepare the FMP,

under section 304(f) of the MagnusonStevens Act.

* * * * *

7. In § 600.325, paragraph (c)(3)(ii) is

revised to read as follows:

§ 600.325 National Standard 4—

Allocations.

* * * * *

(c) * * *

(3) * * *

(ii) Promotion of conservation.

Numerous methods of allocating fishing

privileges are considered ‘‘conservation

and management’’ measures under

section 303 of the Magnuson-Stevens

Act. An allocation scheme may promote

conservation by encouraging a rational,

more easily managed use of the

resource. Or, it may promote

conservation (in the sense of wise use)

by optimizing the yield in terms of size,

value, market mix, price, or economic or

social benefit of the product. To the

extent that rebuilding plans or other

conservation and management measures

that reduce the overall harvest in a

fishery are necessary, any harvest

restrictions or recovery benefits must be

allocated fairly and equitably among the

commercial, recreational, and charter

fishing sectors of the fishery.

* * * * *

8. In § 600.330, paragraphs (a) and

(b)(1), the first sentence of paragraph (c)

introductory text, the last sentence of

paragraph (c)(1), and paragraph (c)(2)

are revised to read as follows:

§ 600.330 National Standard 5—Efficiency.

(a) Standard 5. Conservation and

management measures shall, where

practicable, consider efficiency in the

utilization of fishery resources; except

that no such measure shall have

economic allocation as its sole purpose.

(b) * * *

(1) General. The term ‘‘utilization’’

encompasses harvesting, processing,

marketing, and non-consumptive uses of

the resource, since management

decisions affect all sectors of the

industry. In considering efficient

utilization of fishery resources, this

standard highlights one way that a

fishery can contribute to the Nation’s

benefit with the least cost to society:

Given a set of objectives for the fishery,

an FMP should contain management

measures that result in as efficient a

fishery as is practicable or desirable.

* * * * *

(c) Limited access. A ‘‘system for

limiting access,’’ which is an optional

measure under section 303(b) of the

Magnuson-Stevens Act, is a type of

allocation of fishing privileges that may

be considered to contribute to economic

efficiency or conservation. * * *

(1) * * * Two forms (i.e., Federal fees

for licenses or permits in excess of

administrative costs, and taxation) are

not permitted under the MagnusonStevens Act, except for fees allowed

under section 304(d)(2).

(2) Factors to consider. The

Magnuson-Stevens Act ties the use of

limited access to the achievement of

OY. An FMP that proposes a limited

access system must consider the factors

listed in section 303(b)(6) of the

Magnuson-Stevens Act and in

§ 600.325(c)(3). In addition, it should

consider the criteria for qualifying for a

permit, the nature of the interest

created, whether to make the permit

transferable, and the Magnuson-Stevens

Act’s limitations on returning economic

rent to the public under section 304(d).

The FMP should also discuss the costs

of achieving an appropriate distribution

of fishing privileges.

* * * * *

9. In § 600.340, paragraph (b)(1) is

amended by revising the second

sentence to read as follows:

§ 600.340 National Standard 7—Costs and

Benefits.

* * * * *

(b) * * *

(1) * * * The Magnuson-Stevens Act

requires Councils to prepare FMPs only

for overfished fisheries and for other

fisheries where regulation would serve

some useful purpose and where the

present or future benefits of regulation

would justify the costs. * * *

* * * * *

10. Sections 600.345, 600.350, and

600.355 are added to subpart D to read

as follows:

§ 600.345 National Standard 8—

Communities.

(a) Standard 8. Conservation and

management measures shall, consistent

with the conservation requirements of

the Magnuson-Stevens Act (including

the prevention of overfishing and

rebuilding of overfished stocks), take

into account the importance of fishery

resources to fishing communities in

order to:

(1) Provide for the sustained

participation of such communities; and

(2) To the extent practicable,

minimize adverse economic impacts on

such communities.

(b) General. (1) This standard requires

that an FMP take into account the

importance of fishery resources to

fishing communities. This

consideration, however, is within the

context of the conservation

requirements of the Magnuson-Stevens

Act. Deliberations regarding the

importance of fishery resources to

affected fishing communities, therefore,

must not compromise the achievement

of conservation requirements and goals

of the FMP. Where the preferred

alternative negatively affects the

sustained participation of fishing

communities, the FMP should discuss

the rationale for selecting this

alternative over another with a lesser

impact on fishing communities. All

other things being equal, where two

alternatives achieve similar

conservation goals, the alternative that

provides the greater potential for

sustained participation of such

communities and minimizes the adverse

economic impacts on such communities

would be the preferred alternative.

(2) This standard does not constitute

a basis for allocating resources to a

specific fishing community nor for

providing preferential treatment based

on residence in a fishing community.

(3) The term ‘‘fishing community’’

means a community that is substantially

dependent on or substantially engaged

in the harvest or processing of fishery

resources to meet social and economic
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24235

needs, and includes fishing vessel

owners, operators, and crew, and fish

processors that are based in such

communities. A fishing community is a

social or economic group whose

members reside in a specific location

and share a common dependency on

commercial, recreational, or subsistence

fishing or on directly related fisheriesdependent services and industries (for

example, boatyards, ice suppliers, tackle

shops).

(4) The term ‘‘sustained participation’’

means continued access to the fishery

within the constraints of the condition

of the resource.

(c) Analysis. (1) FMPs must examine

the social and economic importance of

fisheries to communities potentially

affected by management measures. For

example, severe reductions of harvests

for conservation purposes may decrease

employment opportunities for

fishermen and processing plant workers,

thereby adversely affecting their

families and communities. Similarly, a

management measure that results in the

allocation of fishery resources among

competing sectors of a fishery may

benefit some communities at the

expense of others.

(2) An appropriate vehicle for the

analyses under this standard is the

fishery impact statement required by

section 303(a)(9) of the MagnusonStevens Act. Qualitative and

quantitative data may be used,

including information provided by

fishermen, dealers, processors, and

fisheries organizations and associations.

In cases where data are severely limited,

effort should be directed to identifying

and gathering needed data.

(3) To address the sustained

participation of fishing communities

that will be affected by management

measures, the analysis should first

identify affected fishing communities

and then assess their differing levels of

dependence on and engagement in the

fishery being regulated. The analysis

should also specify how that assessment

was made. The best available data on

the history, extent, and type of

participation of these fishing

communities in the fishery should be

incorporated into the social and

economic information presented in the

FMP. The analysis does not have to

contain an exhaustive listing of all

communities that might fit the

definition; a judgment can be made as

to which are primarily affected. The

analysis should discuss each

alternative’s likely effect on the

sustained participation of these fishing

communities in the fishery.

(4) The analysis should assess the

likely positive and negative social and

economic impacts of the alternative

management measures, over both the

short and the long term, on fishing

communities. Any particular

management measure may economically

benefit some communities while

adversely affecting others. Economic

impacts should be considered both for

individual communities and for the

group of all affected communities

identified in the FMP. Impacts of both

consumptive and non-consumptive uses

of fishery resources should be

considered.

(5) A discussion of social and

economic impacts should identify those

alternatives that would minimize

adverse impacts on these fishing

communities within the constraints of

conservation and management goals of

the FMP, other national standards, and

other applicable law.

§ 600.350 National Standard 9—Bycatch.

(a) Standard 9. Conservation and

management measures shall, to the

extent practicable:

(1) Minimize bycatch; and

(2) To the extent bycatch cannot be

avoided, minimize the mortality of such

bycatch.

(b) General. This national standard

requires Councils to consider the

bycatch effects of existing and planned

conservation and management

measures. Bycatch can, in two ways,

impede efforts to protect marine

ecosystems and achieve sustainable

fisheries and the full benefits they can

provide to the Nation. First, bycatch can

increase substantially the uncertainty

concerning total fishing-related

mortality, which makes it more difficult

to assess the status of stocks, to set the

appropriate OY and define overfishing

levels, and to ensure that OYs are

attained and overfishing levels are not

exceeded. Second, bycatch may also

preclude other more productive uses of

fishery resources.

(c) Definition—Bycatch. The term

‘‘bycatch’’ means fish that are harvested

in a fishery, but that are not sold or kept

for personal use. Bycatch includes the

discard of whole fish at sea or

elsewhere, including economic discards

and regulatory discards, and fishing

mortality due to an encounter with

fishing gear that does not result in

capture of fish (i.e., unobserved fishing

mortality). Bycatch does not include any

fish that legally are retained in a fishery

and kept for personal, tribal, or cultural

use, or that enter commerce through

sale, barter, or trade. Bycatch does not

include fish released alive under a

recreational catch-and-release fishery

management program. A catch-andrelease fishery management program is

one in which the retention of a

particular species is prohibited. In such

a program, those fish released alive

would not be considered bycatch.

Bycatch also does not include Atlantic

highly migratory species harvested in a

commercial fishery that are not

regulatory discards and that are tagged

and released alive under a scientific tagand-release program established by the

Secretary.

(d) Minimizing bycatch and bycatch

mortality. The priority under this

standard is first to avoid catching

bycatch species where practicable. Fish

that are bycatch and cannot be avoided

must, to the extent practicable, be

returned to the sea alive. Any proposed

conservation and management measure

that does not give priority to avoiding

the capture of bycatch species must be

supported by appropriate analyses. In

their evaluation, the Councils must

consider the net benefits to the Nation,

which include, but are not limited to:

Negative impacts on affected stocks;

incomes accruing to participants in

directed fisheries in both the short and

long term; incomes accruing to

participants in fisheries that target the

bycatch species; environmental

consequences; non-market values of

bycatch species, which include nonconsumptive uses of bycatch species

and existence values, as well as

recreational values; and impacts on

other marine organisms. To evaluate

conservation and management measures

relative to this and other national

standards, as well as to evaluate total

fishing mortality, Councils must—

(1) Promote development of a

database on bycatch and bycatch

mortality in the fishery to the extent

practicable. A review and, where

necessary, improvement of data

collection methods, data sources, and

applications of data must be initiated for

each fishery to determine the amount,

type, disposition, and other

characteristics of bycatch and bycatch

mortality in each fishery for purposes of

this standard and of section 303(a)(11)

and (12) of the Magnuson-Stevens Act.

Bycatch should be categorized to focus

on management responses necessary to

minimize bycatch and bycatch mortality

to the extent practicable. When

appropriate, management measures,

such as at-sea monitoring programs,

should be developed to meet these

information needs.

(2) For each management measure,

assess the effects on the amount and

type of bycatch and bycatch mortality in

the fishery. Most conservation and

management measures can affect the

amounts of bycatch or bycatch mortality

in a fishery, as well as the extent to
24236 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

which further reductions in bycatch are

practicable. In analyzing measures,

including the status quo, Councils

should assess the impacts of minimizing

bycatch and bycatch mortality, as well

as consistency of the selected measure

with other national standards and

applicable laws. The benefits of

minimizing bycatch to the extent

practicable should be identified and an

assessment of the impact of the selected

measure on bycatch and bycatch

mortality provided. Due to limitations

on the information available, fishery

managers may not be able to generate

precise estimates of bycatch and bycatch

mortality or other effects for each

alternative. In the absence of

quantitative estimates of the impacts of

each alternative, Councils may use

qualitative measures. Information on the

amount and type of bycatch should be

summarized in the SAFE reports.

(3) Select measures that, to the extent

practicable, will minimize bycatch and

bycatch mortality. (i) A determination of

whether a conservation and

management measure minimizes

bycatch or bycatch mortality to the

extent practicable, consistent with other

national standards and maximization of

net benefits to the Nation, should

consider the following factors:

(A) Population effects for the bycatch

species.

(B) Ecological effects due to changes

in the bycatch of that species (effects on

other species in the ecosystem). (C) Changes in the bycatch of other

species of fish and the resulting

population and ecosystem effects.

(D) Effects on marine mammals and

birds.

(E) Changes in fishing, processing,

disposal, and marketing costs.

(F) Changes in fishing practices and

behavior of fishermen.

(G) Changes in research,

administration, and enforcement costs

and management effectiveness.

(H) Changes in the economic, social,

or cultural value of fishing activities and

nonconsumptive uses of fishery

resources.

(I) Changes in the distribution of

benefits and costs.

(J) Social effects.

(ii) The Councils should adhere to the

precautionary approach found in the

Food and Agriculture Organization of

the United Nations (FAO) Code of

Conduct for Responsible Fisheries

(Article 6.5), which is available from the

Director, Publications Division, FAO,

Viale delle Terme di Caracalla, 00100

Rome, Italy, when faced with

uncertainty concerning any of the

factors listed in this paragraph (d)(3).

(4) Monitor selected management

measures. Effects of implemented

measures should be evaluated routinely.

Monitoring systems should be

established prior to fishing under the

selected management measures. Where

applicable, plans should be developed

and coordinated with industry and

other concerned organizations to

identify opportunities for cooperative

data collection, coordination of data

management for cost efficiency, and

avoidance of duplicative effort. (e) Other considerations. Other

applicable laws, such as the MMPA, the

ESA, and the Migratory Bird Treaty Act,

require that Councils consider the

impact of conservation and management

measures on living marine resources

other than fish; i.e., marine mammals

and birds.

§ 600.355 National Standard 10—Safety of

Life at Sea.

(a) Standard 10. Conservation and

management measures shall, to the

extent practicable, promote the safety of

human life at sea.

(b) General. (1) Fishing is an

inherently dangerous occupation where

not all hazardous situations can be

foreseen or avoided. The standard

directs Councils to reduce that risk in

crafting their management measures, so

long as they can meet the other national

standards and the legal and practical

requirements of conservation and

management. This standard is not meant

to give preference to one method of

managing a fishery over another. (2) The qualifying phrase ‘‘to the

extent practicable’’ recognizes that

regulation necessarily puts constraints

on fishing that would not otherwise

exist. These constraints may create

pressures on fishermen to fish under

conditions that they would otherwise

avoid. This standard instructs the

Councils to identify and avoid those

situations, if they can do so consistent

with the legal and practical

requirements of conservation and

management of the resource. (3) For the purposes of this national

standard, the safety of the fishing vessel

and the protection from injury of

persons aboard the vessel are

considered the same as ‘‘safety of

human life at sea. The safety of a vessel

and the people aboard is ultimately the

responsibility of the master of that

vessel. Each master makes many

decisions about vessel maintenance and

loading and about the capabilities of the

vessel and crew to operate safely in a

variety of weather and sea conditions.

This national standard does not replace

the judgment or relieve the

responsibility of the vessel master

related to vessel safety. The Councils,

the USCG, and NMFS, through the

consultation process of paragraph (d) of

this section, will review all FMPs,

amendments, and regulations during

their development to ensure they

recognize any impact on the safety of

human life at sea and minimize or

mitigate that impact where practicable.

(c) Safety considerations. The

following is a non-inclusive list of safety

considerations that should be

considered in evaluating management

measures under national standard 10.

(1) Operating environment. Where

and when a fishing vessel operates is

partly a function of the general climate

and weather patterns of an area.

Typically, larger vessels can fish farther

offshore and in more adverse weather

conditions than smaller vessels. An

FMP should try to avoid creating

situations that result in vessels going

out farther, fishing longer, or fishing in

weather worse than they generally

would have in the absence of

management measures. Where these

conditions are unavoidable,

management measures should mitigate

these effects, consistent with the overall

management goals of the fishery.

(2) Gear and vessel loading

requirements. A fishing vessel operates

in a very dynamic environment that can

be an extremely dangerous place to

work. Moving heavy gear in a seaway

creates a dangerous situation on a

vessel. Carrying extra gear can also

significantly reduce the stability of a

fishing vessel, making it prone to

capsizing. An FMP should consider the

safety and stability of fishing vessels

when requiring specific gear or

requiring the removal of gear from the

water. Management measures should

reflect a sensitivity to these issues and

provide methods of mitigation of these

situations wherever possible.

(3) Limited season and area fisheries.

Fisheries where time constraints for

harvesting are a significant factor and

with no flexibility for weather, often

called ‘‘derby’’ fisheries, can create

serious safety problems. To participate

fully in such a fishery, fishermen may

fish in bad weather and overload their

vessel with catch and/or gear. Where

these conditions exist, FMPs should

attempt to mitigate these effects and

avoid them in new management

regimes, as discussed in paragraph (e) of

this section.

(d) Consultation. During preparation

of any FMP, FMP amendment, or

regulation that might affect safety of

human life at sea, the Council should

consult with the USCG and the fishing

industry as to the nature and extent of

any adverse impacts. This consultation

may be done through a Council advisory

panel, committee, or other review of the
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24237

FMP, FMP amendment, or regulations.

Mitigation, to the extent practicable, and

other safety considerations identified in

paragraph (c) of this section should be

included in the FMP.

(e) Mitigation measures. There are

many ways in which an FMP may avoid

or provide alternative measures to

reduce potential impacts on safety of

human life at sea. The following is a list

of some factors that could be considered

when management measures are

developed:

(1) Setting seasons to avoid hazardous

weather.

(2) Providing for seasonal or trip

flexibility to account for bad weather

(weather days).

(3) Allowing for pre- and post-season

‘‘soak time’’ to deploy and pick up fixed

gear, so as to avoid overloading vessels

with fixed gear.

(4) Tailoring gear requirements to

provide for smaller or lighter gear for

smaller vessels.

(5) Avoiding management measures

that require hazardous at-sea

inspections or enforcement if other

comparable enforcement could be

accomplished as effectively.

(6) Limiting the number of

participants in the fishery.

(7) Spreading effort over time and area

to avoid potential gear and/or vessel

conflicts.

(8) Implementing management

measures that reduce the race for fish

and the resulting incentives for

fishermen to take additional risks with

respect to vessel safety.

[FR Doc. 98–11471 Filed 4–30–98; 8:45 am]

BILLING CODE 3510–22–F