[Federal Register Volume 72, Number 30 (Wednesday, February 14, 2007)]
[Notices]
[Pages 7016-7019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-681]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 020707B]


National Standard 1 Guidelines; Notice of Intent to Prepare an 
Environmental Impact Statement

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of intent (NOI) to prepare an environmental impact 
statement

[[Page 7017]]

(EIS); request for comments; notice of a public scoping meeting.

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SUMMARY: NMFS announces its intent to prepare an EIS and commencement 
of a scoping period in accordance with the National Environmental 
Policy Act (NEPA) of 1969 to analyze alternatives for guidance 
regarding annual catch limit (ACL) and accountability measures (AM) and 
other overfishing provisions of the Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act of 2006 (MSRA). Such 
guidance would be added to the National Standard 1 (NS1) guidelines.

DATES: Written comments must be received by April 2, 2007. A public 
scoping meeting will be held at the NMFS Silver Spring headquarters 
office on March 9, 2007 (see ADDRESSES) from 9a.m. through 3p.m.

ADDRESSES: The scoping meeting will be held at 1315 East-West Highway; 
Room 4527; Silver Spring, Maryland, 20910. NMFS may hold additional 
scoping meetings and informal public meetings during the scoping 
period.
    You may submit comments on issues and alternatives, by any of the 
following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#d2b3bcbca7b3befcb1b3a6b1bafcbebbbfbba696979b8192bcbdb3b3fcb5bda4"><span class="__cf_email__" data-cfemail="03626d6d76626f2d606277606b2d6f6a6e6a7747464a50436d6c62622d646c75">[email protected]</span></a>. Include ``Scoping 
comments on annual catch limit DEIS'' in the subject line of the 
message.
    <bullet> Fax: 301-713-1193.
    <bullet> Mail: Mark Millikin; National Marine Fisheries Service, 
NOAA; 1315 East-West Highway; Silver Spring, Maryland 20910.

FOR FURTHER INFORMATION CONTACT: Mark Millikin, National Marine 
Fisheries Service, 301-713-2341.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is available on the Government 
Printing Office's website at: www.gpoaccess.gov/fr/index/html.

Background

    The MSRA, signed into law by President Bush on January 12, 2007, 
set forth new requirements related to overfishing, including new ACL 
and AM provisions for federally managed fisheries in the U.S. exclusive 
economic zone (EEZ). NMFS is initiating this action to develop guidance 
related to these new provisions, specifically, requirements set forth 
under sections 103(b)(1) and (c)(3), 104(a)(10), (b), and (c) of the 
MSRA. NMFS intends to revise the National Standard 1 (NS1) Guidelines, 
50 CFR 600.310, through a proposed and final rule to incorporate 
guidance of these MSRA sections before the end of 2007. Because of 
potential policy implications of these MSRA provisions on Federal 
fishery management plans (FMPs and plans) and their stocks, NMFS has 
decided to issue this NOI. However, as it develops this action, NMFS 
will continue to re-evaluate the environmental review and analyses 
needed for NEPA purposes.

Public Scoping Process

    To help determine the scope of issues to be addressed and to 
identify significant issues related to this action, NMFS is soliciting 
written comments on this NOI through April 2, 2007, and will hold a 
public scoping meeting at the NMFS Silver Spring Headquarters, Building 
III, Room 4527, 9a.m. through 3p.m. on March 9, 2007. After considering 
comments received during the scoping process, NMFS will either develop 
a draft environmental impact statement (DEIS) and proposed rule or an 
environmental assessment (EA) and proposed rule. If NMFS issues a DEIS, 
it will provide for a 45-day comment period concurrent with public 
hearings. If NMFS issues a DEIS, then it will also issue a final 
environmental impact statement (FEIS). Following an EIS or EA and 
proposed rule, NMFS will issue a final rule in the Federal Register.

Magnuson-Stevens Act

    The Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) amended in 1996 by the Sustainable Fisheries 
Act, is the chief authority for fisheries management in the U.S. EEZ. 
The Act requires, among other things, achieving optimum yield on a 
continuing basis, preventing overfishing, and rebuilding overfished 
stocks in as short a time as possible. Section 301(a) of the Magnuson-
Stevens Act contains 10 national standards (NS) with which all FMPs and 
their amendments and implementing regulations must be consistent. 
Section 301(b) requires that ``the Secretary establish advisory 
guidelines (which shall not have the force and effect of law), based on 
the national standards to assist in the development of fishery 
management plans.'' Conforming to the NS guidelines (50 CFR part 600, 
subpart D) when preparing an FMP, FMP amendment and regulations is 
essential to properly addressing the intentions of Congress when it 
established and revised the Magnuson-Stevens Act. The NS guidelines, 
most notably NS1, are often cited in Court cases, and judges frequently 
refer to them when considering the merits of an FMP or FMP amendment 
and its regulations.
    NS1 provides that ``Conservation and management measures shall 
prevent overfishing while achieving, on a continuing basis, the optimum 
yield from each fishery for the United States fishing industry.'' 16 
U.S.C. 1851(a)(1). As this action focuses on MSRA's overfishing 
provisions, NMFS believes that it is appropriate to incorporate 
guidance on those provisions in the NS1 guidelines at 50 CFR 600.310.
    Ending overfishing of stocks undergoing overfishing, preventing 
overfishing of stocks approaching overfishing, and rebuilding 
overfished stocks to levels of abundance that can produce maximum 
sustainable yield (MSY) on a continuing basis, are essential to 
achieving the objectives and goals of the Magnuson-Stevens Act. Ending 
overfishing is paramount to more rapid and more certain rebuilding. 
According to the NS1 guidelines, overfishing occurs whenever the annual 
fishing mortality rate (F) is greater than the maximum fishing 
mortality threshold (MFMT), 50 CFR 600.310(d)(2)(i). Continued 
overfishing will depress a stock, on average, below the level that can 
produce MSY. While some rebuilding of stock abundance can occur if F is 
slightly greater than MFMT, rebuilding rates are more rapid when 
overfishing does not occur, and rebuilding occurs faster, the more that 
F is reduced below MFMT.

MSRA Section 104(a)(10): ACLs and AMs

    During the comment period on this NOI, and throughout development 
of this action, NMFS will seek input from the Councils and the public 
on implementation of the new MSRA overfishing provisions. To facilitate 
public comment in the following sections NMFS provides its preliminary 
interpretation of the new provisions, followed by an explanation of 
statutory deadlines and other timing considerations.
    Section 104(a)(10) of the MSRA amends section 303(a) of the 
Magnuson-Stevens Act to require that any FMP shall ``establish a 
mechanism for specifying annual catch limits in the plan (including a 
multi-year plan), implementing regulations and annual specifications, 
at a level such that overfishing does not occur in the fishery, 
including measures to ensure accountability.'' Species that have a life 
cycle of approximately 1 year (e.g., possibly some shrimp or squid 
species) are exempt from the requirements, unless the Secretary 
determines the species is undergoing overfishing. In addition, the ACL/
AM requirements would not apply if ``otherwise provided

[[Page 7018]]

for under an international agreement.'' Thus, the ACL/AM requirements 
may be applicable for some species managed under international 
agreements.
    Apart from the above exemptions, NMFS believes that section 
104(a)(10) requires ACL/AM mechanisms for each federally-managed 
``stock or stock complex'' contained in an FMP. Under the NS 
guidelines, ``stock or stock complex'' is used as a synonym for 
``fishery,'' and is defined 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...'' (50 CFR 600.305(c)(12)).
    NMFS understands an ACL to mean a specified amount of a fish stock 
(e.g., measure of weight or numbers of fish) for a fishing year that is 
a target amount of annual total catch that takes into account projected 
estimates for landings and discard mortality from all user groups and 
sectors. Per the MSRA, the ACL must be set ``at a level such that 
overfishing does not occur in the fishery.'' Under the NS1 guidelines, 
overfishing of the stock occurs when MFMT is exceeded (50 CFR 
600.310(d)(2)(i)). Thus, it is important to clarify the relationship 
between the ACL and the MFMT. While the MFMT is expressed as a rate of 
fishing, NMFS may recommend that FMPs be amended so that annual catch 
levels corresponding to MFMT--an overfishing level (OFL)--are specified 
along with ACLs in comparable units (e.g., weight or numbers of fish) 
to ACLs, to facilitate subsequent monitoring against the ACL. The OFL 
would be the maximum amount of annual catch from all sources (landings 
and discard mortality from all sectors) which does not result in 
overfishing. Once the ACL is reached, or projected to be reached, AMs 
established in the FMP will ensure that overfishing does not occur, or 
is appropriately mitigated (e.g., through payback provisions).
    NMFS believes that the extent of future management success using 
ACLs will depend largely upon ACLs being set sufficiently below the OFL 
for a fish stock, i.e., the size of the buffer needed between the OFL 
and ACL, to reduce the chance of exceeding the OFL. The types of ACLs 
used for a stock may vary depending upon the quality of data available 
for a fish stock and the fishery management goals. The size of the 
buffer needed between the ACL and OFL would depend upon quality of data 
available including: Knowledge of the stock's life history; 
availability and accuracy of current fishing year landings and 
historical landings data; accuracy and precision of fishery independent 
surveys; accuracy and precision of fishery dependent data; time since 
last stock assessment or update; frequency of stock assessments; 
discard mortality; recreational catches; and the extent of knowledge of 
the rate and magnitude of success or failure of recent management 
measures in ending or preventing overfishing for a fish stock. For 
discussion purposes in this NOI, ``data poor stocks'' are those stocks 
for which stock abundance is unknown or stock status with respect to 
overfishing and overfished is unknown. ``Data rich'' stocks are those 
for which annual catch values are known, and estimates of stock 
abundance or its proxy are available and sufficient to make overfishing 
and overfished status determinations. A broad gradation of data 
quality, quantity, and timeliness exists for various stocks which 
affects the accuracy and precision of ``overfishing'' and 
``overfished'' status determinations.
    With regard to ``measures of accountability'' (referred to herein 
as accountability measures or AMs) required by MSRA section 104(a)(10), 
NMFS' initial interpretation is that they are part of the ACL mechanism 
and FMPs should contain AMs for each stock. AMs could also be used for 
each fishery sector. Because there are variances in: operation of 
fisheries, monitoring of a fishery within a fishing year, and 
availability of stock abundance information, it may not be feasible to 
set ACLs with the same level of precision for all stocks. AMs thus are 
intended to work with their associated ACLs to prevent overfishing of a 
stock from occurring. AMs could take the form of inseason management 
techniques that prevent the ACL from being exceeded in a given year 
(e.g., closures, or restrictions on retention of a stock), and/or 
corrective actions that will be implemented in subsequent fishing years 
to address overages of a stock's OFL in previous fishing years (e.g., 
reduction of a subsequent year's ACL), and to ensure that overfishing 
is ended.

MSRA Section 103(b) and (c)(3): Scientific and Statistical Committees 
(SSCs)

    Section 103(b) of MSRA includes new provisions relating to SSCs and 
peer review processes. Among other things, it specifies that SSCs shall 
provide their Councils with ``ongoing scientific advice for fishery 
management decisions, including recommendations for acceptable 
biological catch, preventing overfishing, maximum sustainable yield, 
and achieving rebuilding targets, and reports on stock status and 
health, bycatch, habitat status, social and economic impacts on 
management measures, and sustainability of fishing practices.'' Section 
103(b) also provides for the establishment of peer review processes. 
With regard to ACLs, section 103(c)(3) provides that a Council shall 
``develop ACLs for each of its managed fisheries that may not exceed 
the fishing level recommendations of its scientific and statistical 
committee or the peer review process established under subsection 
(g).''
    NMFS views these provisions as providing the SSCs or peer review 
processes with an important role in Council development of ACL 
mechanisms. NMFS would expect that SSCs or peer review processes would 
not only need to produce calculations of ACL and OFL, but also the 
probability that an ACL in combination with other factors such as 
retrospective patterns in stock assessments, e.g., overestimating stock 
abundance and underestimating actual fishing mortality rate (F), would 
or would not result in OFL being exceeded.
    MSRA Section 104(c) revises the rebuilding provisions of section 
304(e) of the Magnuson-Stevens Act to require that, when a Council is 
notified that a stock is overfished, the Council shall -- within 2 
years after such notification -- submit and implement an FMP, FMP 
amendment, or proposed regulations to end overfishing ``immediately,'' 
and rebuild the overfished stock in as short a time as possible. NMFS' 
preliminary review is that, because an FMP, FMP amendment, or 
regulations need to be implemented within 2 years of notification, a 
Council would need to submit the relevant action sufficiently in 
advance of the 2-year deadline (i.e., approximately one year and six 
months after notification) to ensure sufficient time (six months) for 
NMFS, on behalf of the Secretary, to finalize and implement the action.

Statutory Deadlines and Other Timing Considerations

    Per MSRA section 104(b), the ACL and AM requirements take effect in 
fishing year 2010, for stocks determined by the Secretary to be 
undergoing overfishing. Thus, NMFS believes that the Councils and NMFS 
would have to plan to have ACL and AM mechanisms in place for all 
stocks in their FMPs that can be used beginning with the 2010 fishing 
year, because it is unknown what stocks NMFS will have determined as 
undergoing overfishing just before the beginning of the 2010

[[Page 7019]]

fishing year. Stocks not determined to be undergoing overfishing will 
need ACLs and AMs by the 2011 fishing year, including stocks with 
unknown or undefined status regarding overfishing (i.e., the new 
requirement applies also to data poor stocks).
    MSRA section 104(c), which revises the requirements for rebuilding 
overfished fisheries, takes effect 30 months after the enactment of the 
MSRA, i.e., effective date of July 12, 2009. Thus, any fisheries 
determined to be overfished by the Secretary after that date would fall 
under the MSRA amendments to the rebuilding provisions of section 
304(e)(3), instead of the current Magnuson-Stevens Act section 
304(e)(3) provisions. Pursuant to the Magnuson-Stevens Act section 
304(e)(3), within one year of being notified by NMFS, that a stock is 
overfished, a Council needs to prepare and submit an FMP, FMP 
amendment, or proposed regulations to rebuild the overfished stock and 
end overfishing. As discussed earlier, under the MSRA amendments to 
section 304(e)(3), within two years of being notified by NMFS, anytime 
on or after July 12, 2009, that a stock is overfished, a Council needs 
to prepare and NMFS needs to implement an FMP, FMP amendment, or 
proposed regulations to rebuild the overfished stock and end 
overfishing immediately.
    NMFS intends to complete its revisions of the NS1 guidelines 
pertaining to this action before the end of 2007. Upon implementation 
of the final rule, NMFS will review each Council's current provisions 
for ACLs and AMs and recommend any revisions it deems are appropriate. 
Some FMPs may already contain management measures that will meet the 
definition (or forthcoming criteria) of ACLs and AMs. If not, the FMPs 
will need to be amended to establish or revise ACLs and associated AMs 
consistent with the MSRA requirement and revised NS1 guidelines, by the 
relevant statutory deadlines.
    NMFS previously issued an advance notice of proposed rulemaking (68 
FR 7492, February 14, 2003), and a proposed rule (70 FR 36240, June 22, 
2005), to revise the NS1 guidelines. NMFS did not issue a final rule 
because it decided to wait to see if the Magnuson-Stevens Act would be 
reauthorized before revising the NS1 guidelines. This action is not 
expected to make the full set of revisions to the NS1 guidelines as was 
proposed in 2005, because of the urgency to establish guidance related 
to new provisions in the MSRA.

Issues Under Consideration

    In considering potential guidance related to MSRA's overfishing 
provisions, NMFS has identified the following list of issues related to 
ACLs, AMs, and overfishing. NMFS seeks public comment on the scope of 
this NOI generally and the list of issues and potential alternatives 
for this action set forth below.
Issues for Developing Guidance for ACLs and AMs
    <bullet> The role of the SSC and other peer review processes in 
setting ACLs and AMs
    <bullet> The relationship between ACL and OY
    <bullet> Revision of existing overfishing definitions to include 
OFL
    <bullet> Variability in data currently available for each stock 
(e.g., data rich, data poor, and stocks with data quality falling 
between data rich and data poor)
    <bullet> Setting ACLs for stocks with unknown status
    <bullet> Circumstances in which a numerical ACL can not be set for 
a stock, and in such situations, recommendations for adequate and 
appropriate alternatives to setting a numerical ACL (e.g., 
prohibitions)
    <bullet> Setting ACLs for stock complexes, stock assemblages, and 
similar stock groupings
    <bullet> Variability in the accuracy of management approaches in 
achieving target fishing levels
    <bullet> Setting a buffer between ACL and OFL to prevent 
overfishing, and how to determine the size of the buffer needed
    <bullet> Establishing the appropriate probability that an ACL will 
prevent overfishing for a stock
    <bullet> Establishing recommendations for inseason management 
authority and methods to be used as AMs to prevent overfishing
    <bullet> Limiting the extent of overfishing, should it occur
    <bullet> Establishing corrective actions to ensure accountability 
in a subsequent year for an overage of the OFL for a stock in a 
previous year
    <bullet> Establishing AMs for various sectors of a stock, if an ACL 
is subdivided for a stock, and the need to still prevent exceeding the 
overall OFL for the stock
Preliminary ACL and AM alternatives
    <bullet> No action. Do not publish ACL and AM guidelines. Councils 
are statutorily required to implement ACLs and AMs, but the statute 
provides little specificity about the meaning of these terms. Without 
guidelines, Councils may develop and submit FMP amendments that the 
Secretary determines to be inadequate. Secretarial disapproval of an 
FMP amendment will require the Council to modify their amendment and 
resubmit it, making it unlikely that measures can be implemented by the 
statutory deadline of 2010, for stocks subject to overfishing and 2011, 
for all other stocks.
    <bullet> Alternative 2. Develop ACL and AM guidelines that provide 
performance standards that ACLs and AMs must meet, but do not provide 
guidance on specific mechanisms. Performance standards may be hard to 
develop, or it may be hard to adequately judge the degree to which 
proposed mechanisms will satisfy the performance standards.
    <bullet> Alternative 3. Develop ACL and AM guidelines that provide 
performance standards that ACLs must meet, and develop ACL and AM 
guidelines that provide specific guidance on one or more mechanisms to 
implementing ACLs and AMs that NMFS considers to meet the statutory 
requirement and the standards for Secretarial approval.

Special Accommodations

    The public meeting to be held in NMFS Silver Spring headquarters on 
March 9, 2007, will be accessible to people with physical disabilities. 
Requests for sign language interpretation or other auxiliary aids 
should be directed to Mark Millikin (301-713-2341), by March 4, 2007.

    Dated: February 9, 2007.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 07-681 Filed 2-9-07; 2:12 pm]
BILLING CODE 3510-22-S


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