[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Proposed Rules]
[Pages 67608-67610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33643]


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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; reopening of public comment period.

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SUMMARY: On August 4, 1997, NMFS published a proposed rule to amend the 
national standard guidelines under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The public 
comment period for the proposed guidelines ended September 18, 1997. 
Because of remaining issues regarding interpretation of the Magnuson-
Stevens Act's provisions relative to overfishing, NMFS is reopening the 
public comment period on national standard 1 for an additional 30 days.


[[Page 67609]]


DATES: The comment period reopens December 29, 1997; comments must be 
received on or before January 28, 1998.

ADDRESSES: Comments should be sent to Dr. Gary C. Matlock, Director, 
Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910.

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

SUPPLEMENTARY INFORMATION:

Background

    On August 4, 1997 (62 FR 41907), NMFS published a proposed rule to 
amend the guidelines interpreting the 10 national standards found in 
section 301(a) of the Magnuson-Stevens Act. Public comment received on 
the proposed rule indicated a broad range of views regarding 
interpretation of the provisions of the Magnuson-Stevens Act with 
respect to prevention of overfishing. Therefore, NMFS is reopening the 
comment period on the national standard 1 guidelines for an additional 
30 days to obtain additional comment on specific issues regarding 
overfishing.
    The Sustainable Fisheries Act (SFA), which amended the Magnuson-
Stevens Act in 1996, contained several provisions that affected 
national standard 1, which was not itself amended. That standard 
requires that conservation and management measures ``shall prevent 
overfishing while achieving, on a continuing basis, the optimum yield 
from each fishery for the United States fishing industry.'' The SFA 
added a definition of ``overfishing'' and ``overfished,'' changed the 
definition of ``optimum,'' required that each fishery management plan 
specify objective and measurable criteria for identifying when a 
fishery is overfished (section 303(a)(10)), and added a section 
(304(e)) on identifying and rebuilding overfished fisheries.

Issues

    While NMFS received numerous comments on the proposed guidelines, 
it believes further comment on the national standard 1 guidelines would 
be useful. In particular, NMFS would like commenters to address the 
following issues:
    1. Usage of ``overfishing'' and ``overfished.'' The SFA adopted the 
regulatory definition of ``overfishing'' (at Sec. 600.310(c)(1)), with 
two changes. The existing regulatory definition states: ``Overfishing 
is a level or rate of fishing mortality that jeopardizes the long-term 
capacity of a stock or stock complex to produce MSY on a continuing 
basis.'' The statutory definition in the SFA deleted the modifier 
``long-term'' and substituted ``fishery'' for ``stock or stock 
complex.''
    NMFS believes that the removal of ``long-term'' in the statutory 
language was intended to emphasize the need to address overfishing in 
the near term, and to rebuild overfished stocks to levels that would 
produce MSY (maximum sustainable yield) within a reasonably short 
period of time, rather than in some unspecified time frame. This 
interpretation is consistent with the fact that, taken as a whole, the 
SFA enacted several significant measures to address overfishing and 
rebuilding, including requiring specific time frames for action. Along 
with the amendment to the definition of ``optimum,'' under which the 
optimum yield cannot be set above the MSY level, the addition of the 
definition of ``overfishing'' in the SFA (without reference to ``long-
term'') seems to raise the standard to which conservation and 
management measures are held. Because NMFS understood deletion of the 
phrase ``long-term'' in the SFA to be significant, the proposed 
guidelines tie the meaning of ``overfishing'' to a rate or level of 
fishing mortality (i.e., removals of fish from the stock due to 
fishing) that jeopardizes the capacity of a stock to produce MSY, 
without regard to time frame.
    The issue is whether NMFS has correctly interpreted the definition 
of overfishing, or whether it should adopt a more elastic guideline 
with MSY as only an eventual target.
    2. ``Fishery'' versus ``stock.'' As explained above, the statutory 
definition of ``overfishing'' uses the term ``fishery'' rather than 
``stock or stock complex.'' Both ``fishery'' and ``stock'' are defined 
in the Magnuson-Stevens Act; both are used in section 304(e) and 
elsewhere somewhat interchangeably.
    The proposed guidelines, in large part, speak of ``overfishing'' 
and ``overfished'' in terms of a stock or stock complex. NMFS 
scientists who worked on the guidelines were concerned that a 
``fishery,'' in its most expansive sense, is not susceptible to being 
judged as overfished or not; only for a stock of fish can measurable, 
objective criteria of overfishing be established. The same applies to 
judging whether a fishery has been rebuilt; biologically, that can be 
determined only on a stock-by-stock basis.
    Some commenters believe the requirement to prevent overfishing 
should apply only to fisheries in a broader sense, in order to provide 
the greatest benefit to the Nation. They believe that fishers may have 
to forego substantial economic value from a mixed-stock fishery if it 
must be managed to restore the most depleted stock component (species) 
in the fishery to the level that would produce MSY. (See issue 4 
below.)
    The issue is whether NMFS should change its focus in the national 
standard 1 guidelines to a ``fishery,'' which may be comprised of 
dozens of stocks, or retain the requirements to prevent overfishing of 
stocks and rebuild overfished stocks.
    3. Rebuilding schedules. The proposed guidelines repeated the 
statutory requirement that overfished stocks must be rebuilt in a time 
period that is as short as possible, taking into account the status and 
biology of the stock, the needs of fishing communities, recommendations 
by international organizations, and the interaction of the overfished 
stock within the marine ecosystem. However, in no case may the 
rebuilding time exceed 10 years, except where the biology of the stock, 
other environmental conditions, or management measures under an 
international agreement dictate otherwise.
    NMFS received comments requesting clarification of the statutory 
language. One interpretation is that ``as short as possible'' means the 
length of time in which a stock could be rebuilt in the absence of 
fishing mortality on that stock. If that period is less than 10 years, 
then the factors listed in section 304(e)(4)(A)(i) of the Magnuson-
Stevens Act (i.e., the status and biology of any overfished stocks of 
fish, the needs of fishing communities, recommendations by 
international organizations in which the United States participates, 
and the interaction of the overfished stock of fish within the marine 
ecosystem) could be used to lengthen the rebuilding period to as much 
as 10 years. If the stock cannot be rebuilt within 10 years in the 
absence of fishing mortality on that stock, the rebuilding period based 
on the absence of fishing mortality would automatically become the 
maximum time for rebuilding, unless management measures under an 
international agreement dictate otherwise. Under this interpretation, 
the biology of the stock and other environmental conditions are taken 
into account in determining the rebuilding period that would be 
required, based on the absence of fishing mortality, and those factors 
would not be used to further extend the rebuilding period. Therefore, 
under this scenario, for a rebuilding period that exceeds 10 years, the 
only exception to allow extension of the rebuilding period beyond that 
based on an absence of fishing mortality would be for those instances 
that are dictated by measures under an

[[Page 67610]]

international agreement to which the United States is a party.
    Another possible interpretation for those situations in which the 
rebuilding period would exceed 10 years in the absence of fishing is to 
treat the 10-year limit as a guide in determining the length of a 
rebuilding program. In these cases, the question that immediately 
arises is, how long can the rebuilding program be? Must it be 
constrained, as in the scenario above, or can it be longer? If so, how 
much longer? NMFS believes that it is not desirable to have an 
unspecified time period for rebuilding and that such an indeterminate 
rebuilding period would be inconsistent with the other provisions of 
the Magnuson-Stevens Act. The guidelines could potentially use the 
factors in section 304(e)(4)(A)(i) to interpret ``as short as 
possible'' to limit the time period beyond 10 years, but NMFS believes 
that any rebuilding program that exceeded the period based on no 
fishing mortality would need to be justified and constrained by the 
life history characteristics of the stock.
    The issue is the interpretation of the statutory language and how 
much flexibility the statutory language allows. NMFS is specifically 
seeking comment on whether or not it is correct in its interpretation 
that the duration of rebuilding programs should not be unspecified and, 
if so, what factors should be considered in determining that duration.
    4. Mixed-stock exception. The proposed guidelines, at 
Sec. 600.310(6), relied on the statute's use of the term ``fishery'' to 
justify retention of a limited exception to the requirement to prevent 
overfishing on all stocks. The exception would allow overfishing of one 
species in a mixed-stock complex, but only if certain stringent 
conditions are met (i.e., analysis demonstrates that it will result in 
long-term net benefits to the Nation and that a similar level of 
benefits cannot be achieved through other means; and the resulting rate 
of fishing mortality will not cause any species or ecologically 
significant unit thereof to require protection under the Endangered 
Species Act (ESA) or any stock or stock complex to fall below its 
minimum stock size threshold).
    This proposed provision has been criticized by those who believe 
the Magnuson-Stevens Act allows no exceptions to the requirement to 
prevent overfishing, even in mixed-stock fisheries. Others have 
criticized the provision as too stringent and believe the Magnuson-
Stevens Act allows overfishing on one or more stocks in mixed-stock 
fisheries, even if the result is to maintain, or reduce stocks to, an 
overfished status.
    The issue is whether to delete or liberalize the limited 
exceptions, and whether to add other exceptions. One suggestion is that 
the recovery of stocks listed under the ESA should be handled under 
that statute, not under the Magnuson-Stevens Act. Another is that 
stocks whose rebuilding would not be assisted by cessation of fishing 
mortality in the exclusive economic zone should be exempt from the 
provisions of section 304(e)(4) of the Magnuson-Stevens Act.
    NMFS will respond to comments received on national standard 1 
during this 30-day comment period, and to all comments received on the 
proposed national standard guidelines during the comment period for the 
proposed rule, in the preamble to the final rule.

    Dated: December 19, 1997.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 97-33643 Filed 12-22-97; 2:13 pm]
BILLING CODE 3510-22-F