[Federal Register Volume 62, Number 149 (Monday, August 4, 1997)]
[Proposed Rules]
[Pages 41907-41920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20588]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970708168-7168-01; 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: Proposed rule.

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SUMMARY: NMFS proposes revisions to the 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 proposed revisions and additions implement the 
October 1996 amendments to the Magnuson-Stevens 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.

DATES: Comments must be received by September 18, 1997.

ADDRESSES: Comments should be sent to Dr. Gary C. Matlock, F/SF, NMFS, 
1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: George H. Darcy, 301-713-2341.

SUPPLEMENTARY INFORMATION: On October 11, 1996, the President signed 
into law the SFA (Public Law 104-297), which made numerous amendments 
to the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). This proposed 
rule amend 50 CFR part 600, subpart D, to update the national standard 
guidelines and to implement some of the Magnuson-Stevens Act 
amendments.

Background

    Section 301(a) of the Magnuson-Stevens 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, based on the national standards, to assist in the 
development of FMPs. 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). This 
proposed rule would add those standards and associated guidelines to 
subpart D of 50 CFR part 600. Other provisions of the SFA necessitate 
significant revisions to the guidelines for national standard 1 
(optimum yield), as proposed in this rule. Minor revisions to national 
standards 2 (scientific information), 4 (allocations), and 5 
(efficiency) are also proposed to conform those standards and their 
guidelines to the Magnuson-Stevens Act, as amended. Additional 
technical changes would be made to Sec. 600.305 (general) and to 
guidelines for national standards 3 (management units)(Sec. 600.320) 
and 7 (costs and benefits)(Sec. 600.340) to update terminology.
    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 decisionmaking, with responsible conservation and 
management of valued national resources as the goal. The proposed 
revisions and additions are described below.

General

    The new and revised national standards apply to all FMPs and 
implementing regulations, existing and future. However, as Congress 
recognized by allowing the Councils 2 years from enactment (i.e., until 
October 11, 1998) to submit FMP amendments to comply with the related 
new requirements in section 303(a), it will take considerable time and 
effort to bring all FMPs into compliance with the Magnuson-Stevens Act. 
For example, national standard 9 requires that management measures 
minimize bycatch, but section 303(a)(11), which states exactly the same 
requirement, need not be fully implemented in all FMPs until October 
1998; NMFS will therefore not expect full compliance with standard 9 
until that date. Once issued in final, NMFS will use these guidelines 
to review all new FMPs and amendments to determine whether they comply 
with the new and revised national standards. The Councils should review 
existing FMPs for compliance with the new and revised national 
standards and submit necessary amendments by October 11, 1998.
    The main purpose of the guidelines is to aid the Councils in 
fulfilling the requirements of the Magnuson-Stevens Act. In the context 
of preparing an FMP or FMP amendment, the guidelines typically address 
only the Councils'

[[Page 41908]]

responsibilities, even though the Secretary has similar 
responsibilities in developing Secretarial FMPs or amendments to 
Secretarial FMPs (sections 304(c) and 304(g) of the Magnuson-Stevens 
Act). A new definition for ``Council'' would be added to Sec. 600.305 
to include the Secretary, as applicable, when preparing FMPs or 
amendments under section 304(c) and (g) of the Magnuson-Stevens Act, 
for efficiency of language and consistency throughout the national 
standard guidelines.
    The proposed guidelines seek as much precision as possible in the 
use of the words ``should'' and ``must.'' ``Must'' is used to denote an 
obligation to act and is used primarily when referring to requirements 
of the Magnuson-Stevens Act, the logical extension thereof, or other 
applicable law. ``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 that 
reviewers will look for in evaluating an FMP. Definitions of ``must'' 
and ``should'' in Sec. 600.305 would be revised to reflect current 
terminology. A definition for ``stock or stock complex'' would be added 
to Sec. 600.305 to clarify use of that term and the term ``fishery,'' 
as used throughout the national standard guidelines.

National Standard 1

    National standard 1 guidelines were last revised in July 1989; that 
revision focused on establishing a conservation standard, with the 
requirement that specific, objective, and measurable definitions of 
overfishing be established for each fishery managed under the Magnuson-
Stevens Act (then called the Magnuson Act). By 1993, more than 100 such 
definitions had been approved by NMFS. At that time, NMFS convened a 
panel of scientists from inside and outside the agency to review the 
approved definitions, investigate their strengths and shortcomings, and 
standardize, as much as possible, the criteria and basis for future 
evaluations of overfishing definitions. The goal of the review was to 
develop a scientific consensus as to the appropriateness of the 
definitions and the criteria used in their evaluation. The resulting 
analysis and report (Rosenberg et al., 1994) provided a set of 
scientific principles for defining overfishing. However, these 
principles were not incorporated into the national standard guidelines. 
The SFA introduced or revised definitions for a number of terms and 
introduced several new requirements for contents of FMPs. As a 
consequence of the 1994 report and the statutory amendments, revisions 
to the national standard 1 guidelines are proposed in this rule, as 
described below.

Overview of Issues

    Revisions to the guidelines for national standard 1 center on the 
Magnuson-Stevens Act's definitions of ``overfishing,'' ``overfished,'' 
and ``optimum yield (OY);'' the requirement for the establishment of 
objective and measurable criteria for determining the status of a stock 
or stock complex; and the requirement for remedial action in the event 
that overfishing is occurring or that a stock or stock complex is 
overfished.
    The Magnuson-Stevens Act, in section 3(29), defines both 
``overfishing'' and ``overfished'' as a rate or level of fishing 
mortality that jeopardizes a fishery's capacity to produce maximum 
sustainable yield (MSY) on a continuing basis. Neither term was defined 
statutorily, prior to passage of the SFA. The existing national 
standard guidelines define overfishing somewhat differently, by 
qualifying ``capacity'' with the phrase ``long-term,'' and do not 
include a definition of ``overfished.'' The Magnuson-Stevens Act, in 
section 3(28), defines OY as the amount of fish that: (1) 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; (2) is prescribed on the 
basis of the MSY from the fishery, as reduced by any relevant economic, 
social, or ecological factors; and (3) in the case of an overfished 
fishery, provides for rebuilding to a level consistent with producing 
the MSY in such fishery. The main changes relative to the pre-SFA 
definition include the requirements that OY take into account 
protection of marine ecosystems, that OY be no greater than MSY, and 
that OY for an overfished fishery allow rebuilding to the MSY level.
    The Magnuson-Stevens Act, in section 303(a)(10), requires each FMP 
to specify objective and measurable criteria for identifying when the 
fishery to which the FMP applies is overfished (also referred to as 
``criteria for overfishing''), with an analysis of how the criteria 
were determined and the relationship of the criteria to the 
reproductive potential of stocks of fish in that fishery. The Magnuson-
Stevens Act also requires, in section 304(e), the Secretary to report 
annually to Congress and the Councils on the status of fisheries within 
each Council's geographical area of authority and identify those 
fisheries that are overfished or are approaching a condition of being 
overfished. For each fishery managed under an FMP or international 
agreement, the status is to be determined using the criteria for 
overfishing specified in that FMP or agreement. A fishery is to be 
classified as approaching a condition of being overfished if, based on 
trends in fishing effort, fishery resource size, and other appropriate 
factors, the Secretary estimates that it will become overfished within 
2 years.
    If the Secretary determines at any time that a fishery is 
overfished or approaching an overfished condition or that existing 
remedial action taken for the purpose of ending any previously 
identified overfishing has not resulted in adequate progress, the 
Secretary must notify the Council and request that remedial action be 
taken. Section 304(e)(3) of the Magnuson-Stevens Act requires that the 
Council then, within 1 year of notification, prepare an FMP, FMP 
amendment, or proposed regulations for the purposes of ending (or 
preventing) overfishing and rebuilding (or sustaining) affected stocks 
of fish.

Overview of Approach

    In developing the proposed revised guidelines, policy guidance was 
taken from the Magnuson-Stevens Act and other applicable law. Because 
the guidelines deal with technical subject matter, guidance was also 
taken from the scientific literature. In particular, the report by 
Rosenberg et al. (1994) was used to the extent that it is consistent 
with the Magnuson-Stevens Act and other applicable law.

Overview of Policy and Rationale

Sustainability

    Sustainable fisheries is a key theme within the Magnuson-Stevens 
Act. The idea of sustainability is inherent in MSY, a quantity that is 
central to the Magnuson-Stevens Act's definitions of both overfishing 
and OY. Closely related to the idea of sustainability is the phrase 
``on a continuing basis,'' which is used both in the Magnuson-Stevens 
Act's definition of overfishing and in national standard 1. The 
appropriate interpretation of sustainability or the phrase ``on a 
continuing basis'' is the one generally accepted in the fishery science 
literature, which relates to an average stock level and/or average 
potential yield from a stock over a long period of time.
    It is important to distinguish between the theoretical concept of 
MSY as an unconditional maximum independent of management practice, and 
actual estimates of MSY, which are necessarily

[[Page 41909]]

conditional on some type of (perhaps hypothetical) management practice. 
Specifically, the proposed guidelines, in Sec. 600.310(c), describe the 
role of ``control rules'' in estimating MSY, where an MSY control rule 
is any harvest strategy that, if implemented, would be expected to 
result in a long-term average catch close to MSY. A Council could 
choose an MSY control rule in which fishing mortality is held constant 
over time at an appropriate rate, one in which escapement is held 
constant over time at an appropriate level, or some other control rule, 
so long as that control rule is consistent with the Magnuson-Stevens 
Act.
    Although the Magnuson-Stevens Act's definition of overfishing is 
expressed in terms of a stock's capacity to produce MSY on a continuing 
basis, nothing in the Magnuson-Stevens Act implies that such 
production, in the form of harvest, must actually occur. That is, a 
stock does not actually need to produce MSY on a continuing basis in 
order to have the capacity to do so.

Use of the Terms ``Overfishing'' and ``Overfished''

    The relationship between the terms ``overfishing'' and 
``overfished'' can be confusing. As used in the Magnuson-Stevens Act, 
the verb ``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. ``Overfishing,'' then, occurs whenever a stock or 
stock complex is subjected to any such rate or level of fishing 
mortality. Interpreting the term ``overfished'' is more complicated. In 
the Magnuson-Stevens Act, this term is used in two senses: First, to 
describe any stock or stock complex that is subjected to overfishing; 
and second, to describe any stock or stock complex for which a change 
in management practices is required in order to achieve an appropriate 
level and rate of rebuilding. (See, for example, section 303(a)(1)(A) 
and section 304(e)(1)) To avoid confusion, the proposed guidelines use 
``overfished'' in the second sense only. Both terms would be defined in 
Sec. 600.310(d).

Status Determination Criteria

    The Magnuson-Stevens Act, in section 303(a)(10), requires that each 
FMP specify objective and measurable criteria (status determination 
criteria) for identifying when stocks or stock complexes covered by the 
FMP are overfished. To fulfill the intent of the Magnuson-Stevens Act, 
such status determination criteria are comprised of two components: A 
maximum fishing mortality threshold and a minimum stock size threshold 
(see Sec. 600.310(d)(2)). The maximum fishing mortality threshold 
should be set at the fishing mortality rate or level defined by the 
chosen MSY control rule. The minimum stock size threshold should be set 
at one-half the MSY level, 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, whichever is greater. When data are insufficient 
to estimate any of these quantities, use of reasonable proxies would be 
required.
    It is important to note that, even if no minimum stock size 
threshold were set, the maximum fishing mortality threshold would 
define a minimum limit on the rate of rebuilding for a stock that falls 
below its MSY level. The reason for requiring a minimum stock size 
threshold in addition to a maximum fishing mortality threshold is to 
define the point at which this minimum rebuilding rate is no longer 
prudent. For example, in the case of a slow-growing stock, a rebuilding 
rate that satisfies the statutory deadline of 10 years would be 
considered prudent management. However, for a fast-growing stock, it 
might be possible to fall to an extremely low level of abundance and 
still rebuild to the MSY level within 10 years, which would not be 
considered prudent management. Thus, the definition of the minimum 
stock size threshold includes a constraint, equal to one-half the MSY 
level, to ensure that the 10-year allowance is not abused in the case 
of fast-growing stocks.
    Choosing an MSY control rule is thus key to satisfying national 
standard 1, because it defines the maximum fishing mortality threshold 
and plays a role in defining the minimum stock size threshold. Any MSY 
control rule defines a relationship between fishing mortality rate and 
stock size. This relationship is the maximum fishing mortality 
threshold, which may be a single number or a mathematical function. In 
addition, any MSY control rule defines a rate of rebuilding for stocks 
that are below the level that would produce MSY. The smallest stock 
size at which rebuilding to the level that would produce MSY is 
achieved within 10 years defines the minimum stock size threshold for 
that rule, unless such a stock size is less than one-half the MSY 
level. The MSY control rule also defines an upper bound on any OY 
control rule that might be specified.
    The proposed status determination criteria in Sec. 600.310(d)(2) 
would play a fundamental role in developing the Secretary's annual 
report to Congress and the Councils, as required by section 304(e) of 
the Magnuson-Stevens Act. Under the proposed guidelines, the 
Secretary's annual report would list all stocks or stock complexes for 
which the maximum fishing mortality rate has been exceeded or for which 
the minimum stock size has not been achieved. Thus, the Secretary's 
decision as to whether a stock or stock complex is listed in the annual 
report of overfished stocks would be based on either the current rate 
of fishing mortality or the current condition of the stock, regardless 
of whether that condition is associated with either previous or current 
overfishing.

Preventing Overfishing

    The Magnuson-Stevens Act is clear in its requirement to prevent 
overfishing. Except under very limited conditions, discussed below, 
this requirement must be satisfied. The Magnuson-Stevens Act's 
requirement to take remedial action in the event that a stock becomes 
overfished is not a substitute for the requirement to prevent 
overfishing in the first place.
    Previous versions of the national standard guidelines have 
described limited conditions under which some amount of overfishing is 
permissible. Some of these conditions are retained in 
Sec. 600.310(d)(6) in the proposed revision, but they are tightened 
considerably. Although the Magnuson-Stevens Act requires that OY and 
overfishing criteria be specified for each fishery, it does not require 
a one-to-one relationship between the fisheries for which OYs are 
specified and the fisheries for which overfishing criteria are 
specified. For example, in a mixed-stock fishery, overfishing criteria 
may be specified for the individual stocks, even if OY is specified for 
the fishery as a whole (see Sec. 600.310(c)(2)(iii)). Thus, it is 
conceivable that OY could be achieved for the fishery as a whole, even 
while overfishing of an individual stock is occurring.

Ending Overfishing and Rebuilding Overfished Stocks

    In the event that overfishing occurs or is projected to occur 
within 2 years, or in the event that a stock or stock complex is 
overfished or is projected to become overfished within 2 years, the 
Magnuson-Stevens Act, in section 304(e), gives detailed requirements 
for Council action that must be undertaken in response. As described in 
Sec. 600.310(e) of the proposed guidelines, if overfishing is 
occurring, Council action must be designed to reduce

[[Page 41910]]

fishing mortality to a rate or level no greater than the maximum 
fishing mortality threshold. If a stock or stock complex is overfished, 
fishing at a rate or level equal to the maximum fishing mortality 
threshold will not meet the required rate and level of rebuilding. In 
such cases, Council action must go beyond that required for situations 
involving only overfishing.
    Although the Magnuson-Stevens Act implicitly sets the rebuilding 
target equal to the MSY stock size, this constitutes a minimum standard 
only. In general, management practices should be designed to achieve an 
average stock size equal to the stock size associated with OY (or the 
average OY, in cases where OY is determined annually), and rebuilding 
plans should be consistent with this goal. Because OY cannot exceed MSY 
on average, the stock size that would produce OY will generally be 
greater than the stock size that would produce MSY. Remedial action 
should do more than merely assure that the stock reaches the target 
level; rather, the goal should be to restore the stock's capacity to 
remain at that level on a continuing basis, consistent with the stock's 
natural variability. For example, a stock should not be considered 
rebuilt just because its current size matches the target level, which 
could result from a single good year class, if the stock's condition 
would not likely be sustained by succeeding year classes. In order to 
conclude that a stock has fully recovered, it may be necessary to 
rebuild the age structure, in addition to achieving a particular 
biomass target. This generally requires keeping fishing mortality at an 
appropriately low level for several years (approximately one generation 
of the species).
    Remedial action should be designed to make consistent and 
reasonably rapid progress towards recovery. ``Consistent progress'' 
means that no grace period exists beyond the statutory timeframe of 1 
year for taking remedial action, and that such action should include 
explicit milestones expressed in terms of measurable improvement of the 
stock with respect to its status determination criteria. The Magnuson-
Stevens Act, in section 304(e)(4), requires that the time period for 
rebuilding be as short as possible, but always less than 10 years, 
except in cases where the biology of the stock of fish, other 
environmental conditions, or management measures under an international 
agreement in which the United States participates dictate otherwise.

Optimum Yield

    One of the most significant changes made by the SFA is a 
requirement that OY not exceed MSY. Further, for overfished fisheries, 
OY must be based upon a rebuilding schedule that increases stock levels 
to those that would produce MSY. These changes are expressions of a 
precautionary approach, which should contain three features (see 
Sec. 600.310(f)(5)). First, target reference points, such as OY, should 
be set safely below limit reference points, such as the catch level 
associated with the maximum fishing mortality threshold. Second, a 
stock that is below its MSY level should be harvested at a lower rate 
or level of fishing mortality than if it were above its MSY level. 
Third, the criteria used to set target catch levels should be 
explicitly risk averse, so that greater uncertainty regarding a stock's 
status or productive capacity corresponds to greater caution in setting 
target catch levels. Because specification of a precautionary approach 
can be a complicated exercise, NMFS plans to supplement these 
guidelines in the near future with technical guidance for use in 
implementing such an approach. This additional guidance may be provided 
in a form similar to that developed to implement the 1994 amendments to 
the MMPA.
    The Magnuson-Stevens Act is clear in its requirement that 
specification of OY take into account protection of marine ecosystems. 
This is reflected in the new provisions concerning the identification 
and description of essential fish habitat (EFH). Proposed guidelines 
for designation of EFH were published in the Federal Register on April 
23, 1997, at 62 FR 19723. Due to the complex nature of marine ecosystem 
structure and function, qualitative methods may be used to satisfy this 
requirement wherever data or scientific understanding are insufficient 
to permit use of quantitative methods.
    NMFS recognizes the growing importance of non-consumptive uses of 
marine fishery resources. Such activities include ecotourism, fish 
watching, recreational diving, and marine education. These proposed 
guidelines are intended to accommodate such uses in specifying OY.

National Standard 2

    National standard 2 requires that conservation and management 
measures be based on the best scientific information available. 
Guidelines for national standard 2, at Sec. 600.315, would be revised 
to clarify that data to be considered include information on the marine 
ecosystem, and that information on the fishery should include 
information on fishing communities. These proposed revisions reflect 
increased emphasis placed on these areas by the SFA. In addition, 
Sec. 600.315(e)(3) would be revised to require that each Stock 
Assessment and Fishery Evaluation (SAFE) report contain a description 
of the maximum fishing mortality threshold and the minimum stock size 
threshold for each stock or stock complex, along with additional 
information to determine the stock status relative to the overfishing 
criteria.

National Standard 4

    Language from section 303(a)(14) of the Magnuson-Stevens Act would 
be added to Sec. 600.325(c)(3)(ii) to specify that, 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.

National Standard 5

    The SFA reworded this standard by replacing the word ``promote'' 
with ``consider.'' The proposed revisions to Sec. 600.330 would revise 
the national standard language and make other minor adjustments to 
bring the guidelines into conformance with that change, replace the 
term ``Magnuson Act'' with ``Magnuson-Stevens Act,'' and correct 
references to that statute.

National Standard 7

    National standard 7 requires that conservation and management 
measures shall, where practicable, minimize costs and avoid unnecessary 
duplication. Section 600.340(b) would be revised to clarify that, while 
the Magnuson-Stevens Act does not require that an FMP be prepared for 
every fishery, Councils must prepare FMPs 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.

National Standard 8

    National standard 8 requires that conservation and management 
measures take into consideration the importance of fishery resources to 
fishing communities, with a goal of providing for the sustained 
participation of those communities and minimizing adverse economic 
impacts to the extent practicable. In successive drafts of standard 8, 
Congress clarified that the

[[Page 41911]]

importance of fishery resources to fishing communities must be 
considered within the context of the conservation requirements of the 
Magnuson-Stevens Act by including in the final standard the phrase 
``consistent with the conservation requirements of this Act (including 
the prevention of overfishing and rebuilding of overfished stocks).'' 
Therefore, the proposed guidelines emphasize that national standard 8 
must not compromise the conservation goals of the Magnuson-Stevens Act.
    For the purposes of national standard 8, fishing communities are 
considered geographic areas encompassing a specific locale where 
residents are dependent on fishery resources or are engaged in the 
harvesting or processing of those resources. The geographic area is not 
necessarily limited to the boundaries of a particular city or town. No 
minimum size for a community is specified, and the degree to which the 
community is ``substantially engaged in'' or ``substantially dependent 
on'' the fishery resources must be defined within the context of the 
geographical area of the FMP. Those residents in the area engaged in 
the fisheries include not only those actively working in the harvesting 
or processing sectors, but also ``fishery-support services or 
industries,'' such as boat yards, ice suppliers, or tackle shops, and 
other fishery-dependent industries, such as ecotourism, marine 
education, and recreational diving.
    The term ``sustained participation'' does not mandate maintenance 
of any particular level or distribution of participation in one or more 
fisheries or fishing activities. Changes are inevitable in fisheries, 
whether they relate to species targeted, gear utilized, or the mix of 
seasonal fisheries during the year. This standard implies the 
maintenance of continued access to fishery resources in general by the 
community. As a result, national standard 8 does not ensure that 
fishermen would be able to continue to use a particular gear type, to 
target a particular species, or to fish during a particular time of the 
year.

National Standard 9

    National standard 9 requires that the Councils and NMFS consider 
the effects of conservation and management measures on bycatch. This 
standard applies to all existing and planned conservation and 
management measures, because most of these measures can affect amounts 
of bycatch or bycatch mortality in a fishery, as well as the extent to 
which further reductions in bycatch are practicable (but see discussion 
above under ``General''.
    Specifically, national standard 9 requires that conservation and 
management measures, to the extent practicable, minimize bycatch and, 
to the extent that bycatch cannot be avoided, minimize the mortality of 
such bycatch. Bycatch occurs when fishing methods are not perfectly 
selective or when fishermen catch more than they are able to or choose 
to retain. A fishing method is perfectly selective if it results in the 
catch and retention only of the desired size, sex, quality, and 
quantity of the target species, without causing other fishing-related 
mortality; few, if any, fishing methods meet these strict criteria. 
Bycatch results in fishing mortality because some portion of the 
bycatch does not survive, even if it is returned to the sea or escapes 
after an encounter with the fishing gear. Bycatch mortality affects the 
ability to achieve sustainable fisheries and the benefits they can 
provide to the Nation.
    For purposes of national standard 9, the term ``bycatch'' means 
fish that are harvested in a fishery, but that are not sold or kept for 
personal use. Fish released alive under a recreational catch-and-
release fishery management program are not considered bycatch if they 
are not regulatory discards (fish released because regulations require 
it). Fish released dead under a recreational catch-and-release program 
are considered bycatch. Atlantic highly migratory species harvested in 
a commercial fishery managed by the Secretary under section 304(g) of 
the Magnuson-Stevens Act or the Atlantic Tunas Convention Act (16 
U.S.C. 971d) that are not regulatory discards and that are tagged and 
released alive under a scientific tagging and release program 
established by the Secretary are not bycatch. Bycatch also does not 
include any fish that are legally retained in a fishery and kept for 
personal, tribal, or cultural use or that enter commerce through sale, 
barter, or trade. Fish donated to a nonprofit organization are bycatch 
if the retention of the donated fish otherwise would be prohibited.
    ``Fish,'' as defined in Sec. 600.10, includes all forms of marine 
animal (including sea turtles) and plant life, other than marine 
mammals and birds. Thus, national standard 9 does not apply to the 
incidental catch of marine mammals or birds. Incidental catches of 
these species are governed under other statutes such as the MMPA, the 
ESA, or the Migratory Bird Treaty Act.
    Bycatch includes fish taken by fishing gear but not captured by a 
fisherman (i.e., unobserved fishing-related mortality). For purposes of 
national standard 9, unobserved mortality is restricted to mortality 
resulting from direct interaction with fishing gear. Examples of 
unobserved bycatch mortality include mortality resulting from injuries 
to fish that escape through net mesh; mortality of crabs or other 
benthic organisms that are crushed by on-bottom gear; mortality of fish 
that are hooked, but not landed; or mortality of fish due to ghost 
fishing of abandoned or lost fishing gear. Mortality due to other than 
direct interactions of fish with fishing gear is not included as 
bycatch; however, the ecosystem or other effects of such mortality can 
be important.
    ``Discard'' refers only to the discard of whole fish at sea or 
elsewhere. Bycatch and bycatch mortality can be reduced by changing 
how, when, where, and how many fish are caught, how many fish are 
discarded, and how fish are handled before being discarded. Bycatch can 
be decreased either by decreasing the catch of fish that would be 
discarded or by retaining fish that otherwise would be discarded. 
National standard 9 establishes a priority first to reduce bycatch, and 
then to increase the survival rate of fish that are discarded.
    Reducing bycatch by simply retaining juvenile fish that would 
otherwise have been discarded will not eliminate the problem of 
foregoing the potential growth of those fish. This approach may be 
substantially less beneficial than avoiding the catch of the juvenile 
fish in the first place. Therefore, alternatives that include reduction 
in the catch of juvenile fish should be considered.
    The proposed national standard 9 guidelines acknowledge that 
bycatch and discard survival data, information to assess impacts on the 
population and ecosystem, and data on social and economic effects of 
alternative management measures to reduce bycatch may be limited. Due 
to these limitations, precise estimates of bycatch, bycatch mortality, 
or associated effects of alternative conservation and management 
measures may not be possible.
    Councils should support monitoring programs to improve estimates of 
total fishing-related mortality and bycatch, as well as those to 
improve other information used to determine the extent to which it is 
practicable to reduce bycatch and bycatch mortality. Sources of this 
information could include at-sea observer programs, new technology to 
monitor catch weight and species composition, or better use of 
industry-reported catch and discard information. The importance of this 
activity is emphasized in section 303(a)(11) and (12) of the Magnuson-

[[Page 41912]]

 Stevens Act, which requires that FMPs establish a standardized 
reporting methodology to assess the amount and type of bycatch 
occurring in the fishery. Timely summaries of the amount and type of 
bycatch for each fishery should be collated for each fishery; SAFE 
reports required under Sec. 600.315(e) provide a vehicle for these 
summaries.
    Because limited resources are available to the Councils and NMFS to 
address bycatch problems, and a variety of bycatch problems exists in 
most fisheries, each Council should identify and prioritize the bycatch 
problems in its fisheries, based on the benefits to the Nation expected 
to accrue from addressing these problems.

National Standard 10

    This new standard states, ``Conservation and management measures 
shall, to the extent practicable, promote the safety of human life at 
sea.'' It requires that FMPs, FMP amendments, and other regulations 
consider impacts of management measures on safety of life at sea and 
attempt to minimize any adverse impacts. The proposed guidelines 
interpret the phrases ``to the extent practicable'' and ``safety of 
human life at sea,'' and include guidance on safety considerations, a 
consultation process, and possible mitigation measures to be used to 
avoid or lessen the impact of management measures on the safety of 
fishermen.

Classification

    This rule has been determined to be significant for purposes of 
E.O. 12866, although a determination has not been made whether the 
actions associated with the guidelines will have an annual impact on 
the economy of $100 million or more.
    The main thrust of the guidelines, in carrying out the 1996 
revisions to the Magnuson-Stevens Act, is to reduce overfishing 
immediately, rebuild overfished stocks within a set timeframe, and 
reduce bycatch and bycatch mortality to the extent practicable. An 
economic analysis quantifying the expected benefits and costs is not 
available at this time. However, it is expected that as fish stocks are 
rebuilt, long-term benefits will significantly outweigh short-term 
costs of management regimes developed under these guidelines. The 
relative benefits and costs associated with the implementation of the 
guidelines will be determined as individual FMPs are revised to meet 
the new provisions of the Magnuson-Stevens Act.
    Nevertheless, a rough estimate of the total potential benefits can 
be made, assuming that all stocks are rebuilt to their maximum 
sustainable levels. Over the long term, and summed for all fisheries 
within the exclusive economic zone, the potential increase in net 
revenues is estimated at $2.9 billion annually, along with an 
additional 300,000 jobs nationwide. As the flow of fish from rebuilt 
stocks to consumers increases, price fluctuations may begin to flatten, 
and employment will stabilize, thereby providing additional benefits to 
the Nation. The costs associated with programs developed under these 
guidelines will include short-term reductions in fishing effort and 
investment in new fishing gear. Each amendment to an existing FMP and 
all new FMPs will contain detailed analyses of the benefits and costs 
of the management programs under consideration, to ensure compliance 
with E.O. 12866.
    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 proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. This proposed rule would add to and update 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 proposed 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. As a 
result, a Regulatory Flexibility Analysis for this proposed rule was 
not prepared.

Reference

    Rosenberg, A., P. Mace, G. Thompson, G. Darcy, W. Clark, J. Collie, 
W. Gabriel, A. MacCall, R. Methot, J. Powers, V. Restrepo, T. 
Wainwright, L. Botsford, J. Hoenig, K. Stokes. 1994. Scientific review 
of definitions of overfishing in U.S. fishery management plans. NOAA 
Tech. Memo. NMFS-F/SPO-17, 205 p. Nat. Mar. Fish. Serv., Office of 
Science and Technology, 1315 East-West Hwy., Silver Spring, MD 20910.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing.

    Dated: July 30, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 600 is 
proposed to be amended as follows:

PART 600--MAGNUSON 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 follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    3. In Sec. 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:


Sec. 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

[[Page 41913]]

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:


Sec. 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.
    (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 long-term average catch 
approximating MSY.
    (iii) ``MSY stock size'' means the long-term 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, 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 Sec. 600.315) and must incorporate 
appropriate consideration of risk (see Sec. 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 somewhere in the range of 25-75 
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.

[[Page 41914]]

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 
Sec. 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 
Sec. 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 
Sec. 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 timeframe (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 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.
    (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 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 ecologically significant unit thereof to require 
protection under the ESA, or any stock or stock complex to fall below 
its minimum stock size threshold.
    (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 timeframe.
    (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,

[[Page 41915]]

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 is 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. However, in no case 
may the timeframe for rebuilding exceed 10 years, except where the 
biology of the stock or stock complex, other environmental conditions, 
or management measures under an international agreement in which the 
United States participates dictate otherwise.
    (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 to a Council request, may implement interim measures to 
reduce overfishing under section 305(c) of the Magnuson-Stevens 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 Council-
recommended 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 notice-and-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 long-term 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, and 
utilizing the capacity of U.S. fishery resources to meet nutritional 
needs.
    (ii) The benefits of recreational opportunities reflect the 
importance of the quality of the recreational fishing experience and of 
the contribution of recreational fishing to the national, regional, and 
local economies and food supplies. Such benefits also include the 
quality of non-consumptive fishery experiences such as ecotourism, fish 
watching, recreational diving, and other non-consumptive activities 
important to the national, regional, and local economies.
    (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 
Magnuson-Stevens 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

[[Page 41916]]

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 should 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, research fishing, 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, 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 Sec. 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:


Sec. 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 the most recent

[[Page 41917]]

biological condition of stocks and the marine ecosystems in the FMU and 
the social and economic condition of the recreational and commercial 
fishing interests 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 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.
* * * * *
    (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, and ecological information pertinent to the success of 
management or the achievement of objectives of each FMP.
* * * * *
    6. In Sec. 600.320, the last sentence of paragraph (c) is revised 
to read as follows:


Sec. 600.320  National Standard 3--Management Units.

* * * * *
    (c) * * * The Secretary designates which Council(s) will prepare 
the FMP, under section 304(f) of the Magnuson-Stevens Act.
* * * * *
    7. In Sec. 600.325, paragraph (c)(3)(ii) is revised to read as 
follows:


Sec. 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 Sec. 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:


Sec. 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 encouraging 
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 Magnuson-Stevens 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 Sec. 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 Sec. 600.340, paragraph (b)(1) is amended by revising the 
second sentence to read as follows:


Sec. 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:


Sec. 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

[[Page 41918]]

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 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 fisheries-dependent 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 should 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 
Magnuson-Stevens 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.


Sec. 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 three ways, impede efforts to achieve 
sustainable fisheries and the full benefits they can provide to the 
Nation. First, failure to include bycatch in estimating allowable catch 
in a directed fishery may result in unintended overfishing. Second, it 
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. Finally, bycatch may preclude other more productive uses of 
fishery resources.
    (c) Definitions--(1) Bycatch. The term ``bycatch'' means fish that 
are harvested in a fishery (i.e., removed permanently from the 
population as a result of fishing), but that are not sold or kept for 
personal use. Bycatch includes economic discards, 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.
    (2) Discard. The term ``discard'' refers only to the discard of 
whole fish at sea or elsewhere.
    (d) Minimizing bycatch and bycatch mortality. The priority for 
reducing bycatch under this standard is to minimize or avoid catching 
bycatch species where possible. Fish that are bycatch and cannot be 
avoided should, to the extent practicable, be returned to the sea 
alive. To evaluate conservation and management measures relative to 
this and other national standards, as well as to evaluate total fishing 
mortality, Councils should:
    (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 should 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

[[Page 41919]]

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 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 estimates.
    (3) Select measures that, to the extent practicable, will minimize 
bycatch and bycatch mortality. A determination of whether a 
conservation and management measure minimizes bycatch or bycatch 
mortality to the extent practicable, consistent with other national 
standards, should consider the following factors:
    (i) Population effects for the bycatch species.
    (ii) Ecological effects due to changes in the bycatch of that 
species (effects on other species in the ecosystem).
    (iii) Changes in the bycatch of other species of fish and the 
resulting population and ecosystem effects.
    (iv) Effects on marine mammals and birds.
    (v) Changes in fishing, processing, disposal, and marketing costs.
    (vi) Changes in fishing practices and behavior of fishermen.
    (vii) Changes in research, administration, and enforcement costs 
and management effectiveness.
    (viii) Changes in the economic, social, or cultural value of 
fishing activities and nonconsumptive uses of fishery resources.
    (ix) Changes in the distribution of benefits and costs.
    (x) Social effects.
    (4) Implement and 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, implementation 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.


Sec. 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 is considered the same as ``safety of human life at 
sea.'' The safety of a vessel and the people aboard it 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 noninclusive 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 
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

[[Page 41920]]

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. 97-20588 Filed 7-31-97; 2:30 pm]
BILLING CODE 3510-22-F