[Federal Register Volume 63, Number 84 (Friday, May 1, 1998)]
[Rules and Regulations]
[Pages 24212-24237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11471]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 600



Magnuson-Stevens Act Provisions; National Standard Guidelines; Final 
Rule

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

[[Page 24212]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970708168-8073-02; I.D. 061697B]
RIN 0648-AJ58


Magnuson-Stevens Act Provisions; National Standard Guidelines

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

ACTION: Final rule.

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SUMMARY: NMFS revises guidelines for national standards 1 (optimum 
yield), 2 (scientific information), 4 (allocations), 5 (efficiency), 
and 7 (costs and benefits); and adds guidelines for new national 
standards 8 (communities), 9 (bycatch), and 10 (safety of life at sea). 
The guidelines are intended to assist in the development and review of 
Fishery Management Plans (FMPs), amendments, and regulations prepared 
by the Regional Fishery Management Councils (Councils) and the 
Secretary of Commerce (Secretary) under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The revisions 
and additions implement the October 1996 amendments to the 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. Numerous 
changes were made to the proposed rule based on comments received.

DATES: Effective June 1, 1998.

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

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

Background

    Section 301(a) of the 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, herein referred to as ``national standard guidelines,'' 
based on the national standards, to assist in the development of FMPs. 
In addition to amending several existing national standards, the SFA 
established three new national standards, which require consideration 
of impacts of fishery management decisions on fishing communities 
(national standard 8), bycatch (national standard 9), and safety of 
life at sea (national standard 10).
    On August 4, 1997, NMFS published a proposed rule at 62 FR 41907 to 
amend the national standard guidelines; comments were requested through 
September 18, 1997. The preamble of the proposed rule contained 
detailed descriptions of the proposed amendments, which are not 
repeated here. Thirty-seven sets of comments were received during the 
comment period, which are responded to in the Comments and Responses 
section of this preamble.
    Because of remaining issues regarding interpretation of the 
Magnuson-Stevens Act's provisions relative to overfishing and 
rebuilding overfished stocks, NMFS reopened the public comment period 
on national standard 1 on December 29, 1997 (62 FR 67608), for an 
additional 30 days. Comments were specifically requested regarding four 
issues: (1) Usage of the terms ``overfishing'' and ``overfished,'' (2) 
usage of the terms ``fishery'' versus ``stock,'' (3) rebuilding 
schedules for overfished stocks, and (4) exceptions for mixed-stock 
fisheries. The notice of reopening of the comment period on national 
standard 1 contained a detailed explanation of those issues, which is 
not repeated here. Thirty-four additional sets of comments were 
received during the reopened comment period; those comments are also 
responded to in the Comments and Responses section.

Changes from the Proposed Rule

    As a result of public comments received both during the initial 
comment period and the reopened comment period, NMFS has made the 
following changes from the proposed rule:

General

    NMFS reviewed the entire text of the guidelines to ensure that the 
terms ``shall,'' ``must,'' and ``should'' are used consistent with the 
definitions in Sec. 600.305. ``Shall'' is used only when quoting 
directly from the statute, ``must'' denotes a statutory obligation, and 
``should'' indicates that an action is strongly recommended to fulfill 
the Secretary's interpretation of the Magnuson-Stevens Act.

National Standard 1

    1. Section 600.310(c)(3) has been revised to indicate that a 
reasonable proxy for the MSY stock size is approximately 40 percent of 
the pristine stock size, rather than the range of 27-75 percent as 
previously included. This change was made to better reflect the 
findings of fishery science literature. (See also the response to 
comment 20 under national standard 1).
    2. Section 600.310(d)(4)(iii) has been revised to include a 
reference to guidelines issued under section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat. (See 
also the response to comment 18 under national standard 1.)
    3. Section 600.310(d)(6) has been revised to provide more 
flexibility in managing mixed-stock fisheries. The proposed guidelines 
would have allowed overfishing on one component of a mixed-stock 
fishery only if the rate or level of fishing mortality would not cause 
any stock or stock complex to fall below its minimum stock size 
threshold. Paragraph (d)(6)(iii) has been revised to remove that 
requirement. Paragraph (d)(6)(ii) has been revised to clarify that the 
intent of the required analysis is thorough consideration of measures 
that could prevent or mitigate overfishing of one or more stocks in a 
mixed-stock fishery. (See also the response to comment 35 under 
national standard 1.)
    4. Section 600.310(e)(4)(ii) has been substantively revised to 
elaborate on the length of rebuilding programs for overfished stocks. 
The proposed guidelines had simply repeated the statutory language from 
section 304(e)(4) of the Magnuson-Stevens Act. The notice reopening the 
comment period offered two options. After considering public comments 
(see comments 8-16 under national standard 1), NMFS has chosen the more 
flexible interpretation.
    To give meaning to the statutory requirement that a rebuilding 
program be ``as short as possible,'' the starting point in structuring 
a rebuilding program is the length of time in which a stock could be 
rebuilt in the absence of fishing mortality on that stock. If that 
period is less than 10 years, the factors in section 304(e)(4)(A)(i), 
including the needs of fishing communities, may be used to adjust the 
rebuilding period up to 10 years. If the stock cannot be rebuilt within 
10 years, because of the factors listed in section 304(e)(4)(A)(ii), 
the factors in section 304(e)(4)(A)(i) may be used to justify a 
schedule longer than the no-mortality period. To ensure that

[[Page 24213]]

the rebuilding period is not indefinite, the outside limit of the 
rebuilding period is the no-mortality period plus one mean generation 
time (or equivalent period based on the species' life-history 
characteristics).
    5. Section 600.310(f)(2)(i) and (ii) have been revised so as not to 
under emphasize the benefits to the Nation accruing from food 
production and recreational opportunities. (See also the response to 
comment 34 under national standard 1).
    6. Section 600.310(f)(4)(ii) has been revised so that the annual 
harvest level obtained under an OY control rule ``must'' instead of 
``should'' always be less than or equal to the harvest level under an 
MSY control rule. This change reflects the SFA's amendment to the 
definition of ``optimum.''
    7. Section 600.310(f)(4)(iii) has been revised to change the term 
``research fishing'' to ``scientific research'' to clarify that 
``fishing'' under the Magnuson-Stevens Act does not include scientific 
research activity conducted from a scientific research vessel. (See 
also the response to comment 45 under national standard 1.)

National Standard 2

    1. Section 600.315(e)(1) introductory text has been revised to 
clarify that SAFE reports are intended to summarize the most recent 
information concerning the biological condition of stocks and the 
marine ecosystems in the fishery management unit and the social and 
economic condition of the recreational and commercial fishing 
interests, fishing communities, and the fish processing industries. 
(See also the response to comment 4 under national standard 2.)
    2. Section 600.315(e)(1)(ii) has been revised to include safety as 
one of the types of information that should be summarized in SAFE 
reports. (See also the responses to comment 2 under national standard 2 
and comment 3 under national standard 10).

National Standard 5

    Section 600.330(b)(1) has been revised to replace the term 
``encouraging,'' with regard to efficient utilization of fishery 
resources, with the term ``considering,'' to make the wording 
consistent with the intent of Congress. (See also the response to 
comment 1 under national standard 5.)

National Standard 8

    Section 600.345(c) has been revised, replacing ``should'' with 
``must'' in order to reflect the obligation under national standard 8.

National Standard 9

    1. Section 600.350(b) has been revised in its entirety to clarify 
the consideration of bycatch effects of existing and planned 
conservation and management measures. (See also the response to comment 
11 under national standard 9.)
    2. Section 600.350(c) has been revised to add language to clarify 
that Atlantic highly migratory species harvested in a commercial 
fishery that are not regulatory discards and that are tagged and 
released alive under a scientific tag-and-release program established 
by the Secretary are not considered bycatch. Also, language was added 
to specify that bycatch includes the discard of whole fish at sea or 
elsewhere. (See also the responses to comments 7 and 8 under national 
standard 9.)
    3. Section 600.350(c)(2) has been removed. (See also the response 
to comment 7 under national standard 9.)
    4. Section 600.350(d) has been revised by replacing ``should'' with 
``must'' in order to reflect the obligation under national standard 9. 
The introductory text has also been revised to emphasize that NMFS 
believes the first priority for reducing bycatch should be to avoid 
catching bycatch species where possible. Additional text has been added 
to Sec. 600.350(d) to indicate that, in their evaluation of bycatch 
minimization measures, Councils must consider net benefits to the 
Nation. At the end of Sec. 600.350(d) introductory text, the word 
``shall'' has been changed to ``must'' to emphasize that the evaluation 
requirements of the Magnuson-Stevens Act under this national standard 
are not discretionary. (See also the responses to comments 24, 25, and 
28 under national standard 9.)
    5. The first sentence in section 600.350(d)(1) has been revised, 
replacing ``should'' with ``must'' in order to reflect the required 
provisions of a fishery management plan under section 303(a)(11) and 
(12) of the Magnuson-Stevens Act.
    6. Section 600.350(d)(2) has been revised to indicate that, in the 
absence of quantitative estimates of the impacts of each alternative, 
Councils may use qualitative ``measures'' (rather than ``estimates''). 
In addition, a sentence has been added to indicate that information on 
amount and type of bycatch should be summarized in the SAFE report. 
(See also the response to comment 31 under national standard 9).
    7. Section 600.350(d)(3) has been revised to include language that 
indicates that determinations of whether conservation and management 
measures minimize bycatch and bycatch mortality to the extent 
practicable must also be consistent with maximization of net benefits 
to the Nation. The paragraphs under Sec. 600.350(d)(3) have been 
redesignated to accommodate the addition of a new paragraph (d)(ii), 
which states that the Councils should, in selecting bycatch 
minimization measures, adhere to the precautionary principle found in 
the FAO Code of Conduct for Responsible Fisheries. (See also the 
responses to comments 33 and 35 under national standard 9.)
    8. Section 600.350(d)(4) has been revised to delete the terms 
``implement'' and ``implementation'' when referring to the Councils' 
required actions under national standard 9, because it is NMFS' 
responsibility, rather than that of the Councils, to implement 
management measures. This change was not a result of public comment.

National Standard 10

    Section 600.355(b)(3) has been revised to include language that 
clarifies that safety of the fishing vessel and the protection from 
injury of persons aboard the vessel are considered the same as ``safety 
of human life at sea.'' (See also the response to comment 5 under 
national standard 10.)

Comments and Responses

General

    Numerous commenters concluded that, in general, the proposed 
guidelines reflect fairly the intent of the SFA's amendments to the 
Magnuson-Stevens Act. Comments concerning specific aspects of the 
proposed revisions to guidelines for individual national standards are 
presented and responded to in the following paragraphs.
    NMFS received several comments on language contained in the 
preamble of the proposed rule. Because the preamble was intended only 
to explain and clarify material contained in the codified text, NMFS 
has not responded to comments that pertained only to the preamble. 
However, in instances where such comments pertained also to language in 
the codified text, or where such comments led to changes in the 
codified text from the proposed rule, NMFS has responded in the 
following paragraphs.
    Comment 1: Several commenters expressed their view that sufficient 
flexibility should be provided in the guidelines to provide managers 
with appropriate latitude to meet the objectives of the SFA while 
respecting the needs of communities and citizens.
    Response. NMFS agrees that some flexibility in application of the 
national standards was intended by Congress, is necessary to manage the 
diverse

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fisheries of the Nation, and should be provided to respond to the needs 
of fishery participants and communities, so long as the stocks upon 
which the fisheries are based can be rebuilt and their productivity 
sustained. However, any such flexibility must be consistent with all of 
the statutory requirements of the Magnuson-Stevens Act. In addition, 
NMFS believes that the guidelines must reflect the intent of the 
Magnuson-Stevens Act taken as a whole. After carefully considering the 
public comments received, the language in the SFA, and the legislative 
history, NMFS concluded that there is justification to introduce 
greater flexibility in certain aspects of the guidelines, most notably 
the rebuilding schedules for overfished stocks and for mixed-stock 
fisheries; those changes have been made in this final rule. (See also 
Changes from the Proposed Rule and responses to comments 9 and 35 under 
national standard 1.)
    Comment 2. One letter of comment stated that the final rule should 
clarify that the national standard guidelines are advisory and do not 
have the force and effect of law.
    Response. NMFS agrees that the guidelines do not have the force and 
effect of law and believes it made that point clearly in the preamble 
to the proposed rule. For example, the proposed rule contains the 
following statements:
    (1) ``These proposed guidelines are intended to provide direction 
and elaboration on compliance with the national standards and, in 
themselves, do not have the force and effect of law.''
    (2) ``The guidelines are intended to assist in the development and 
review of Fishery Management Plans (FMPs), amendments, and regulations 
...''
    (3) ``The proposed guidelines explain requirements and provide some 
options for compliance with the guidelines. Lists and examples are not 
all inclusive; rather, they are intended to provide illustrations of 
the kind of information, discussion, or examination/analysis useful in 
demonstrating consistency with the standard in question. The proposed 
guidelines are intended to provide for reasonable accommodation of 
regional or individual fishery characteristics, provided that the 
requirements of the Magnuson-Stevens Act are met. The guidelines are 
intended as an aid to decision making, with responsible conservation 
and management of valued national resources as the goal.''
    (4) ``The main purpose of the guidelines is to aid the Councils in 
fulfilling the requirements of the Magnuson-Stevens Act.''
    Throughout the proposed rule, the guidelines are referred to as 
advisory, explanatory, and interpretive. In addition, NMFS has 
attempted to make clear the distinction between ``must'' and ``should'' 
as used in the guidelines.
    Comment 4. One commenter stated that it will be very difficult for 
the Councils to meet the SFA's compliance deadlines for all fisheries, 
given the requirements set forth in the guidelines.
    Response. NMFS agrees that the statutory deadlines established by 
the SFA and reflected in the guidelines will be challenging to meet. 
However, NMFS is committed to working closely with the Councils to meet 
those deadlines.
    Comment 5. One commenter suggested that aquaculture activities 
should be considered in the guidelines because, even with the best 
regulatory controls and the restoration of wild stocks to levels that 
produce maximum sustainable yield (MSY), the demand for seafood 
products cannot be met from these sources alone.
    Response. Aquaculture is considered a fishery, as defined by the 
Magnuson-Stevens Act, so the national standard guidelines apply and 
should be followed by Councils as they consider integrating aquaculture 
activities into FMPs.
    Comment 6. One commenter questioned NMFS' ability to comply with 
several provisions of the SFA because of budgetary constraints.
    Response. Compliance with all of the provisions of the amended 
Magnuson-Stevens Act has been difficult, at best. However, NMFS has had 
significant success in implementation, within the available resources, 
using all of the available tools at its disposal. For example, the 
great majority of the deadlines established in the SFA that are within 
the control of NMFS have been met. In the few instances where deadlines 
have been missed, it has been primarily the result of providing 
additional time for public involvement and comment. NMFS' successes in 
meeting deadlines have been due in part to reprogramming of priorities 
and resources within NMFS to the maximum extent allowed by law, and to 
Congressional reprogramming of funds made available within NOAA.
    Comment 7. One commenter stated that NMFS must consider all 
affected users, including seafood consumers, in managing fisheries. The 
goal should be healthy, sustainable use for everyone's benefit.
    Response. NMFS agrees that all users must be considered in 
achieving the Magnuson-Stevens Act's goal of maximizing net benefits to 
the Nation.
    Comment 8. Two commenters stated that NMFS is inviting trouble by 
stating in the preamble that it will take considerable time and effort 
to bring all FMPs into compliance. Waiting until the October 11, 1998, 
deadline to amend all FMPs will cause a logjam of amendments, and 
conservation reforms will not be implemented in a timely manner.
    Response. NMFS has worked with the Councils from the earliest 
stages of implementation of the SFA to plan and prepare for necessary 
amendments of FMPs. In addition, NMFS has conveyed to the Councils 
that, on October 11, 1996, the day the President signed the SFA into 
law, many of the provisions of the SFA, such as national standards 8, 
9, and 10, became effective. All regulatory actions finalized after 
that date were required to comply with those standards, as well as with 
many other provisions of the SFA. In some cases, the details of 
implementation have had to be developed, such as the national standard 
guidelines that are the subject of this rule. Until those details are 
finalized, the Councils will not be able to take them fully into 
account in development of their management actions. As the specifics of 
those provisions are finalized, all of the Councils' proposed actions 
will be judged on the basis of those requirements, as well.
    Comment 9. Several commenters suggested that anecdotal information 
and public testimony should be allowed and treated as fact. A 
particular concern was that, in establishing objective and measurable 
criteria for determining the status of a stock, anecdotal information 
from fishermen, especially commercial information, is precluded from 
use in stock assessments.
    Response. The Magnuson-Stevens Act requires the use of the best 
scientific information available and the use of quantifiable parameters 
to manage fisheries. The inclusion of objective and measurable criteria 
in the guidelines applies the Magnuson-Stevens Act's approach to using 
reproducible, scientifically based information in stock assessments. 
This approach is necessary to preclude having to choose among 
unsubstantiated opinions about a stock's condition. The public is free, 
however, to submit anecdotal information to the Councils and to the 
Secretary, including through public testimony and comment during the 
development of plans and implementing regulations; all such information 
will be made part of the administrative record. While anecdotal 
information cannot be afforded the same status as scientific 
information obtained under a well-designed data collection

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plan, it can be particularly useful in identifying potential problems 
with scientifically obtained information and can be part of the basis 
for a redesign of the data collection program.
    Comment 10. Several commenters requested that, given the complex 
nature of the proposed guidelines, additional time be allowed for 
public comment. Others expressed serious concern that the lack of 
guidance on critical issues such as overfishing could compromise the 
ability of the Councils to comply with the new conservation 
requirements of the Magnuson-Stevens Act. Some commenters felt that 
delays in issuing final guidelines have undermined public confidence in 
NMFS' commitment and ability to effectively implement the conservation 
mandates of the Magnuson-Stevens Act and urged NMFS to complete the 
comment periods and proceed with advice and guidelines to the Councils 
as swiftly as possible.
    Response. Despite its commitment to publish final guidelines as 
soon as possible, after reviewing the diverse comments received during 
the first comment period, NMFS determined that it was in the best 
interest of the public to provide an additional opportunity for comment 
on the most problematic issues regarding national standard 1. However, 
the completion of the Report to Congress and notification of Councils 
of the list of overfished fisheries on September 30, 1997, placed an 
imperative on NMFS to complete the guidelines as quickly as possible. 
If Councils fail to submit rebuilding plans for all overfished stocks 
by September 30, 1998, the Secretary must develop rebuilding plans for 
the Councils for each overfished stock by June 30, 1999.
    Comment 11. One commenter disagreed with NMFS' determination that 
the proposed rule would not have a significant economic impact on a 
substantial number of small entities for purposes of the Regulatory 
Flexibility Act.
    Response. NMFS believes that its determination of no significant 
economic impacts on a substantial number of small entities in the 
proposed rule accurately reflects the effects of this action on small 
entities. Because this rule only amends guidelines, and does not have 
the force and effect of law, it does not, in itself, revise any 
existing regulatory programs or establish any new regulatory 
requirements. NMFS has no basis, at this time, to assess specific 
effects of possible future management actions that may result from this 
rule, except in the broadest sense. Only when future amendments to 
fishery management programs are implemented will potential impacts on 
small entities occur. At the time regulations are developed, the 
impacts on small entities of potential alternatives will be assessed; 
Regulatory Flexibility Analyses and other analytical documents will be 
prepared, as required by applicable law, and made available for public 
comment.
National Standard 1
    Comment 1. Several commenters objected to the fundamental role 
played by MSY throughout the guidelines for national standard 1. A 
variety of reasons were cited, including the lack of flexibility 
afforded by use of MSY, the difficulty of estimating MSY, and the fact 
that some fishery scientists disfavor the concept.
    Response. No change was made. MSY is key to the Magnuson-Stevens 
Act, even more so than under the former Magnuson Act. MSY now 
constitutes an upper limit on optimum yield (OY), as stated in section 
3(28)(B) of the Magnuson-Stevens Act; is established as the initial 
target for rebuilding an overfished stock or stock complex in section 
3(28)(C); and is the cornerstone of the definition of overfishing in 
section 3(29). In reviewing the language in the Magnuson-Stevens Act as 
a whole, and the legislative history of the SFA, NMFS believes the lack 
of flexibility imposed by ascribing such a fundamental role to MSY was 
clearly an intent of Congress. The difficulty of estimating MSY is a 
significant problem that will require the best efforts of NMFS and the 
Councils to solve. While it is true that some fishery scientists 
disfavor the concept of MSY, others find it very useful, and its 
application in international agreements is on the increase, 
particularly in the establishment of precautionary approaches to 
fishery management.
    Comment 2: Several commenters offered the following view relative 
to the usage of ``overfishing'' and ``overfished'': The terms 
``overfishing'' and ``overfished'' used in the SFA are intended to have 
the same meaning given to the term ``overfishing'' in the existing 
guidelines and are not intended to change the emphasis on or timeframe 
for addressing overfishing. The deletion of the modifier ``long-term'' 
from the regulatory definition of ``overfishing'' was not significant; 
the use of MSY is a target, not a constraint within which OY is 
determined. However, use of the term ``fishery'' instead of ``stock or 
stock complex'' in the SFA definition of overfishing and overfished was 
an intentional change from the wording in the existing guidelines to 
ensure that multi-species or mixed-stock fisheries are managed and 
considered as a unit.
    Other commenters agreed with NMFS' interpretation that removal of 
the phrase ``long-term'' in the statutory language is significant in 
that it raises the standard to which conservation and management 
measures are held.
    Response: NMFS disagrees that the definition for ``overfishing'' 
and ``overfished'' in the SFA did not change the emphasis on or 
timeframe for addressing overfishing or that MSY is only a target 
instead of a constraint. However, NMFS does agree that use of the term 
``fishery'' instead of ``stock or stock complex'' was an intentional 
change intended to allow for the management of mixed-stock fisheries on 
a unit basis (see also response to comments 35 and 36). The definition 
for ``overfishing'' and ``overfished'' (identically defined) has as its 
basis the current definition of ``overfishing'' in the existing 
national standard guidelines (50 CFR 600.310(c)(1)). That definition 
states: ``Overfishing is a level or rate of fishing mortality that 
jeopardizes the long-term capacity of a stock or stock complex to 
produce MSY on a continuing basis.''
    During the development of the Magnuson-Stevens Act's amendments, 
NOAA suggested to Congressional staff that the phrase ``long-term'' be 
deleted from the definition of ``overfishing'' to require Councils to 
stop overfishing sooner rather than later. Congress chose to delete the 
modifier ``long-term'' when referring to the capacity of a stock to 
produce MSY. NOAA considered this change to be significant. Other 
amendments to the SFA bolster this interpretation:
    (1) The rebuilding requirements (especially the 10-year maximum 
with three very limited exceptions, and the Secretary's obligation to 
develop rebuilding plans if the Councils fail to do so).
    (2) Congress' conclusion that the survival of certain stocks is 
threatened and that immediate action needs to be taken to protect those 
stocks (section 2(a)(2) of the SFA).
    In addition, floor debates in both the House and Senate expressed 
Congressional displeasure with the length of time Councils have taken 
in the past to address overfishing problems (see, for example, the 
statement of Senator Stevens at S10810, September 18, 1996).
    The SFA points to MSY as the goal of rebuilding programs and to 
maintenance of stocks at this level on a continuing basis. Unless MSY 
is established as a strict goal, the greatly enhanced benefits 
anticipated by enactors of the SFA

[[Page 24216]]

cannot be achieved. This position is supported by the following:
    (1) The intent of the SFA was to require Councils to ensure that 
fish stocks were not harvested beyond their MSY, as evidenced by the 
debate on the floor of the House, when members voted 304-113 to adopt 
the Gilchrest amendment specifically stating that OY could no longer 
exceed MSY. The new definition of ``optimum'' was maintained in the 
Senate bill that ultimately became law.
    (2) Section 3(28)(C) indicates that, for overfished fisheries, 
rebuilding is to occur until the stocks have reached a level that can 
produce MSY on a continuing basis.
    (3) Inclusion of a rebuilding requirement in the Magnuson-Stevens 
Act implies that stock size is relevant to the concept of 
``overfishing'' and ``overfished,'' and that MSY (a measure of biomass) 
is to be used as the measure against which the success of a rebuilding 
program is judged. A rebuilding requirement without a biomass 
foundation has no meaning.
    (4) The phrase ``on a continuing basis'' in the SFA definition of 
``overfishing'' indicates that stocks are to be maintained at levels 
capable of producing MSY (and OY) on a continuous (uninterrupted) 
basis; thus, short-term overfishing that causes populations to decline 
below these levels is not permissible. HR 39 would have allowed OY to 
exceed MSY for healthy fisheries, but that approach was rejected in the 
Senate bill, which became law.
    (5) Senator Hollings in the floor debate on the Sustainable 
Fisheries Act (Congressional Record - Senate, September 18, 1996) 
stated that ``The bill also: First, caps fishery harvests at the 
maximum sustainable levels and requires action to prevent overfishing 
and rebuild depleted fisheries; * * *''
    (6) The summary of the Managers Amendment to S. 39 (The Sustainable 
Fisheries Act), as printed in the Congressional Record - Senate on 
September 19, 1996, states in the discussion regarding definitions that 
``this change prevents the maximum sustainable yield of a fishery from 
being exceeded.''
    (7) Senate Report No. 104-276 regarding the Sustainable Fisheries 
Act states on page 4077 that ``Finally, the substitute would amend the 
existing definition of 'optimum' with respect to fishery yield to cap 
fish harvests at the maximum sustainable yield.''
    Comment 3. Several commenters objected to the proposed definition 
of MSY control rule in Sec. 600.310(c)(1)(ii) or to the identification 
of the maximum fishing mortality threshold with the MSY control rule in 
Sec. 600.310(d)(2)(i). Typically, the objections centered around the 
degree of flexibility afforded to the Councils in choosing the form of 
the MSY control rule (and thereby, the maximum fishing mortality 
threshold). Commenters generally felt that the language of the 
Magnuson-Stevens Act permits only one choice of MSY control rule--
namely, harvesting at a single, invariant rate, where this rate is 
chosen so as to maximize the resulting long-term average yield. Given 
this interpretation, the commenters stated that the Councils should be 
denied the option of varying the maximum fishing mortality threshold as 
a function of stock size.
    Response. No change was made. While the Magnuson-Stevens Act 
clearly requires that fishing mortality be prevented from exceeding 
rates or levels that would jeopardize the capacity of a stock or stock 
complex to produce MSY on a continuing basis, it does not indicate that 
such rates or levels cannot vary with stock size. In general, MSY 
control rules that allow for the fishing mortality rate to vary with 
stock size (i.e., those that decrease fishing mortality when stock size 
is low) provide a higher average catch and a lower probability of 
observing a seriously reduced stock size than those that require the 
fishing mortality rate to remain constant. NMFS believes both of these 
characteristics are very much in keeping with the letter and intent of 
the Magnuson-Stevens Act.
    Comment 4. Several commenters objected to the proposed inclusion of 
a ``constant catch'' example in Sec. 600.350(c)(2)(i), feeling that 
this particular MSY control rule is inefficient or potentially 
dangerous.
    Response. No change was made. The example is included partly for 
logical completeness. The commenters are correct that this control rule 
is a safe harvest strategy only when the catch level is chosen very 
conservatively, in which case some amount of potential yield is 
foregone. However, in cases where minimizing harvest variability is a 
primary concern, it is conceivable that the greatest net benefits might 
be realized by making such a tradeoff (i.e., by giving up a certain 
amount of catch, on average, in order to increase year-to-year 
stability of harvests).
    Comment 5. Several commenters objected to the proposed definition 
of MSY in Sec. 600.310(c)(1)(i). Concerns included the fact that the 
largest long-term average catch may vary with changes in the minimum 
size limit or selectivity pattern, the perception that the definition 
is invalid for stocks that are already overfished, and the difficulty 
of establishing a long-term average under current environmental 
conditions when those conditions do not prevail over the long term.
    Response. No change was made. As defined in Sec. 600.310(c)(1)(i), 
MSY does not vary with changes in the minimum size limit or selectivity 
pattern. While such changes can have an effect on long-term average 
catches, the guidelines view MSY in a more global sense. In other 
words, MSY is the largest long-term average catch across all possible 
management regimes, not just a single management regime characterized 
by a particular minimum size limit or selectivity pattern. In terms of 
its applicability to overfished stocks, the guidelines' definition of 
MSY is valid, providing that ``long-term'' is suitably defined. As to 
the relationship between MSY and environmental conditions, it should be 
noted that MSY is the largest long-term average catch that could be 
obtained if current ecological and environmental conditions were to 
remain constant indefinitely. Of course, ecological and environmental 
conditions do not remain constant indefinitely, which is one of the 
reasons for the guidelines' emphasis on the fact that MSY is a 
theoretical concept, rather than an empirical one.
    Comment 6. Several commenters were concerned that insufficient 
consideration was given to allowing for uncertainty in the estimation 
of MSY, for example due to errors in catch and other input data, 
estimation errors in stock assessments, frequency of stock assessments, 
and changes in environmental conditions.
    Response. No change was made. As emphasized in 
Sec. 600.310(c)(2)(ii), allowing for uncertainty in the estimation of 
MSY is important. The items listed in the above comment are excellent 
examples of factors that Councils are encouraged to consider in the 
process of incorporating appropriate consideration of risk into the 
estimation of MSY.
    Comment 7. Several commenters objected to the examples of 
alternatives to specifying MSY in Sec. 600.310(c)(3). A variety of 
reasons were cited, including the fact that some of the examples listed 
might not be appropriate in all cases, the fact that some possible 
alternatives were not listed, and the fact that the alternatives listed 
depend on estimated values rather than known quantities.
    Response. No change was made. As noted in Sec. 600.305(c)(9), 
examples (such as those listed in Sec. 600.310(c)(3)) are given by way 
of illustration and further explanation. They are not inclusive lists; 
they do not limit options. Thus,

[[Page 24217]]

the reference points listed in Sec. 600.310(c)(3) are intended to 
suggest some ways in which Councils might proceed in the event that 
data are insufficient to estimate MSY directly. The fact that a 
reference point is not included in Sec. 600.310(c)(3) does not 
necessarily mean that it may never be used as a proxy for MSY. Nor does 
the fact that a reference point is included in Sec. 600.310(c)(3) 
necessarily mean that it may always be used as a proxy for MSY. 
However, there is no escaping the conclusion that, regardless of 
whether MSY or a proxy is used, some sort of estimation will 
necessarily be involved.
    Comment 8. Several commenters objected to proposed paragraphs that 
contain references to a 10-year time period for rebuilding, but that do 
not contain the full text of the statutory language clarifying that 10 
years is a constraint rather than a target. In particular, some 
commenters objected to the mention of a 10-year time period for 
rebuilding in Sec. 600.310(d)(2)(ii), feeling that this contradicted 
the fuller discussion of the statutory language in 
Sec. 600.310(e)(4)(ii). More specifically, a stock that is below the 
MSY level, but not overfished under Sec. 600.310(d)(2)(ii), might take 
as long as 10 years to rebuild to the MSY level if fished at the 
maximum rate allowable under Sec. 600.310(d)(2)(i), even though the 
Magnuson-Stevens Act states clearly that the rebuilding period for an 
overfished stock or stock complex must be as short as possible, taking 
into account the status and biology of the stock or stock complex, the 
needs of fishing communities, recommendations by international 
organizations in which the United States participates, and the 
interaction of the overfished stock or stock complex within the marine 
ecosystem.
    Response. No change was made. The statutory timeframe for 
rebuilding is clearly a binding constraint on Council actions 
undertaken to rebuild a stock or stock complex that is overfished. No 
provision of the guidelines can, or is intended to, override the 
statutory language. The subject of Sec. 600.310(d)(2)(ii), the minimum 
stock size threshold, is distinctly different from the subject of 
Sec. 600.310(e)(4)(ii), the acceptable timeframe for rebuilding an 
overfished stock or stock complex. The former describes how to tell 
whether a stock or stock complex is overfished, while the latter 
describes what to do if a stock or stock complex is overfished.
    Comment 9. Several commenters asked that the guidelines contain an 
explicit interpretation of the statutory description of the time period 
for rebuilding summarized in Sec. 600.310(e)(4)(ii) of the proposed 
rule.
    Response. NMFS agrees; this request was a primary reason the 
comment period was reopened. As described under Changes from the 
Proposed Rule, Sec. 600.310(e)(4)(ii) has been substantially revised to 
interpret the statutory provision.
    Comment 10. One commenter stated that the biology of the stock does 
not dictate a rebuilding period of more than 10 years unless recovery 
is impossible in the absence of all fishing mortality.
    Response. The starting point in structuring a rebuilding program is 
the length of time it would take a stock to recover if fishing 
mortality ceased. That a stock is long-lived, or reproduces slowly, 
does not necessarily mean that it could not be rebuilt within 10 years. 
The initial relevant inquiry is the no-fishing mortality period. If it 
is less than 10 years, factors such as the needs of fishing communities 
may justify lengthening the schedule to 10 years. If the no-mortality 
period is longer than 10 years, the schedule can also be adjusted, 
relying on those factors, up to a limit based on the stock's life-
history characteristics.
    Comment 11. A number of commenters preferred the first option 
offered in the notice reopening the comment period. They believed the 
rebuilding period should not be indeterminate. For stocks that cannot 
be rebuilt within 10 years, even in the absence of fishing mortality, 
the commenters thought the factors in section 304(e)(4)(A)(i) of the 
Magnuson-Stevens Act should not be used to extend the rebuilding 
period.
    Response. NMFS agrees that the rebuilding period should not be 
indeterminate. For stocks that will take more than 10 years to rebuild, 
the guidelines impose an outside limit that is objective, measurable, 
and linked to the biology of the particular species. While the 
statutory language is subject to more than one interpretation, NMFS 
believes the factors in section 304(e)(4)(A)(i) may be used to extend 
the rebuilding period, whether the no-fishing mortality period is 
shorter or longer than 10 years.
    Comment 12. Two commenters argued that ``as short as possible'' 
means the time period should not be allowed to stretch to 10 years for 
stocks that could be rebuilt more quickly.
    Response. The guidelines allow a rebuilding program to extend to 10 
years, but only when the Council can justify that the needs of fishing 
communities or other factors in section 304(e)(4)(A)(i) of the 
Magnuson-Stevens Act outweigh the imperative to rebuild the stock as 
quickly as possible.
    Comment 13. Other commenters stated the outer limit should be 
``reasonable,'' perhaps based on life-history characteristics. 
Proposals included 10 years plus one reproduction cycle; one generation 
time; and the no-fishing mortality period plus a period linked to 
fishing mortality levels that will not prevent steady rebuilding. Some 
commenters believed that Congress did not intend for many fisheries to 
be closed if they could not be rebuilt within 10 years; rather, a 
reduced level of fishing should be allowed.
    Response. The guidelines strike a balance between the Congressional 
directive to rebuild stocks as quickly as possible, and the desire, 
expressed in national standard 8, to minimize adverse economic effects 
on fishing communities. For stocks that cannot be rebuilt within 10 
years, the guideline allows flexibility in setting the rebuilding 
schedule beyond the no-fishing mortality period, but places a 
reasonable, species-specific cap on that flexibility by limiting the 
extension to one mean generation time. Reduced fishing mortality that 
result in steady increases in the biomass are acceptable, if rebuilding 
goals can be met within the timeframe specified in the guideline.
    Comment 14. A few commenters thought there should be no upper limit 
on the rebuilding period, and that the length of a rebuilding schedule 
should be left to Council discretion.
    Response. Congress chose 10 years as the upper limit for the 
rebuilding period for most stocks; the exceptions in section 
304(e)(4)(A)(ii) of the Magnuson-Stevens Act are narrow. For stocks 
that fall within the exceptions, the mandate that they be rebuilt in 
``as short as possible'' a period indicates the need for a definite, 
measurable bound on the rebuilding schedule. The Congressional intent 
is very clear, that the previous practice of unlimited discretion in 
rebuilding stocks must be changed.
    Comment 15. Several commenters suggested that stocks whose 
rebuilding would not be affected by the cessation of fishing mortality 
should be exempt from the provisions of section 304(e)(4) of the 
Magnuson-Stevens Act.
    Response. NMFS understands that factors other than fishing 
mortality confound and handicap rebuilding efforts for some stocks, but 
can find no basis in the statute for exempting such stocks from the 
rebuilding requirement. (See also the response to comment 18 under 
national standard 1). The flexibility introduced in the rebuilding and 
mixed-stock provisions of the

[[Page 24218]]

guidelines should assist in management of these stocks.
    Comment 16. Two commenters suggested that the guidelines contain an 
explicit description of the starting point for the rebuilding period.
    Response. Section 600.310(e)(4)(ii) has been revised to indicate 
that the rebuilding period commences as soon as the first measures in a 
new or revised rebuilding program are implemented.
    Comment 17. Two letters of comment raised concern that rebuilding 
programs may not be adopted until the year 2000 due to delays in 
approving new overfishing definitions and the submission of rebuilding 
programs based on those definitions. The commenters believe that new 
overfishing definitions and rebuilding programs in accordance with 
those programs should be submitted by October 11, 1998.
    Response. NMFS agrees that rebuilding programs may be delayed 
beyond the year 2000, given the schedules established by the SFA, but 
will work with the Councils to implement revised definitions of 
overfishing and rebuilding plans as soon as possible. NMFS has clearly 
communicated to the Councils that section 108(b) of the SFA requires 
them to amend their FMPs not later than 24 months after enactment of 
the SFA (October 11, 1996) to bring them into conformance with the 
provisions of sections 303(a)(1), (5), (7) and (9)-(14) of the 
Magnuson-Stevens Act. Section 303(a)(10) specifically requires the 
specification of objective and measurable criteria for identifying when 
the fishery to which the FMP applies is overfished, and section 304(e) 
requires the submission of rebuilding plans for stocks that are 
determined to be overfished.
    On September 30, 1997, NMFS submitted a report to Congress that 
identified those stocks in their areas of jurisdiction that are 
overfished or approaching an overfished condition, based on existing 
overfishing definitions, as required by the Magnuson-Stevens Act. The 
Councils were notified that they have 1 year within which to submit 
rebuilding programs for those stocks identified as overfished. 
Therefore, the Councils are to be simultaneously working on both new 
definitions of overfishing and rebuilding plans, as necessary. As new 
overfishing definitions are approved, the status of stocks will need to 
be reassessed against those new criteria. It is likely that some stocks 
that were not listed as overfished when judged against the overfishing 
definitions in place in September 1997 will be determined to be 
overfished when compared to the criteria in new definitions. If and 
when that occurs, NMFS will notify the affected Council(s) and the 
public of that fact and the Council(s) will have 1 year from that date 
in which to submit a rebuilding plan.
    Comment 18. Two commenters suggested that the guidelines elaborate 
on the relationship between environment/habitat and the specified time 
period for rebuilding. In particular, the commenters wondered what is 
meant by the term ``environmental conditions,'' whether remedial action 
would still be required in the event that environmental conditions 
cause the minimum possible rebuilding time to exceed 10 years, whether 
MSY should be re-estimated if habitat capacity changes, and, if so, 
whether remedial action could appropriately address habitat issues as 
well as fishing mortality.
    Response. Except for a slight revision to Sec. 600.310(d)(4)(iii), 
as described below, no change was made. ``Environmental conditions'' 
means those biological or physical components of the marine ecosystem 
with which the overfished stock or stock complex interacts (also see 
revised Sec. 600.310(e)(4)(ii)). Council action is required whenever a 
stock or stock complex is determined to be overfished, regardless of 
whether it is possible to achieve rebuilding within 10 years. Regarding 
MSY, it is clear from the definition in Sec. 600.310(c)(1)(i) that MSY 
is conditional on the state of the environment, which includes habitat. 
As noted in Sec. 600.310(d)(4)(ii), environmental changes that affect 
the long-term productive capacity of the stock or stock complex require 
re-specification of one or more status determination criteria. As noted 
in Sec. 600.310 (d)(4)(iii), Councils should recommend restoration of 
habitat in cases where manmade environmental changes are partially 
responsible for a stock or stock complex being in an overfished 
condition. In addition, Sec. 600.310(d)(4)(iii) has been revised to 
reference the Councils' responsibilities in cases where essential fish 
habitat is concerned.
    Comment 19. Several commenters objected to the proposed requirement 
that each FMP specify, to the extent possible, both a maximum fishing 
mortality threshold and a minimum stock size threshold for each stock 
or stock complex covered by that FMP (Sec. 600.310(d)(2)).
    Response. No change was made. Section 303(a)(10) of the Magnuson-
Stevens Act requires the specification of status determination 
criteria, and sections 304(e)(1) and 304(e)(2) state that these 
criteria are to be used for the purpose of determining which fisheries 
are in need of action ``to end overfishing'' and ``to rebuild affected 
stocks of fish.'' The only way that both needs (``end overfishing'' and 
``rebuild affected stocks'') can be addressed is if the status 
determination criteria include measures appropriate to each--namely, 
one measure pertaining to the rate of fishing mortality and another 
measure pertaining to the size of the stock. That is, if only a maximum 
fishing mortality threshold were specified, it would be possible to 
determine which fisheries require action to end overfishing, but it 
would not be possible to determine which fisheries require action to 
rebuild affected stocks. Conversely, if only a minimum stock size 
threshold were specified, it would be possible to determine which 
fisheries require action to rebuild affected stocks, but it would not 
be possible to determine which fisheries require action to end 
overfishing.
    Comment 20. Several commenters objected to the proposed provision 
in Sec. 600.310(d)(2)(ii) that would allow the minimum stock size to be 
as low as 50 percent of the MSY stock size, conditional on an 
appropriate choice of MSY control rule. These commenters felt uniformly 
that Congress intended for any stock or stock complex below its MSY 
level to be considered overfished, and suggested that a stock size 
threshold be set at 80 percent (one commenter said ``at or above 80 
percent'') of the MSY stock size. The commenters were divided over 
whether this reference point should constitute a minimum threshold or 
an ``interim'' threshold, where an interim threshold was defined as a 
point that ``should trigger a review of what remedial action is 
necessary to prevent the decline from continuing.''
    Response. No change was made. A key question is whether Congress 
intended for each stock or stock complex that temporarily falls below 
its MSY level to be considered overfished, even if the rate of fishing 
mortality on that stock or stock complex has consistently been within 
the limit allowed by the MSY control rule. If the answer is ``yes,'' 
then any threshold below the MSY stock size is unacceptable: For 
example, a threshold set at 80 percent of the MSY stock size is just as 
unacceptable as one set at 50 percent of the MSY stock size. However, 
NMFS believes it is important to remember that natural variability is 
an inherent part of fishery systems, and that any stock or stock 
complex managed for MSY will sooner or later

[[Page 24219]]

fall below its MSY level, though only temporarily.
    Because the Magnuson-Stevens Act explicitly allows OY to be as high 
as MSY, NMFS believes that Congress must have intended to allow stocks 
to be managed such that stocks were capable of producing MSY, meaning 
that Congress must have been willing to accept the consequence that 
some stocks would fall below their respective MSY producing levels 
temporarily. Given this interpretation, the question becomes, ``How low 
is too low?'' While the fishery science literature does not provide a 
definitive answer to this question, NMFS believes that a prudent rule 
can be established as follows: Two of the best known models in the 
fishery science literature find that, on average, the stock size at MSY 
is approximately 40 percent of the stock size that would be obtained if 
fishing mortality were zero (the pristine level). (The actual values 
are 36.8 percent (Gompertz-Fox model) and 50 percent (Verhulst-Schaefer 
model). Also, the fishery science literature contains several 
suggestions to the effect that any stock size below about 20 percent of 
the pristine level should be cause for serious concern. In other words, 
a stock's capacity to produce MSY on a continuing basis may be 
jeopardized if it falls below a threshold of about one-fifth the 
pristine level. Expressing this threshold in terms of the stock size at 
MSY results in a minimum stock size threshold equal to 50 percent of 
the MSY level. A stock at 50 percent of its MSY level would typically 
be close to 20 percent of its pristine level, a threshold below which 
it must not be allowed to fall.
    Of course, the guidelines do not prohibit the Councils from setting 
as many ``interim'' stock size thresholds as they like, so long as 
these are above the minimum stock size threshold. However, it would be 
a mistake for the guidelines to require use of an interim stock size 
threshold set at 80 percent of the MSY level in all cases, insofar as 
some stocks may be incapable of rebuilding to the MSY level from such a 
threshold within the statutory time period, depending on the status and 
biology of the stock, the stock's interactions with other components of 
the marine ecosystem, and the choice of MSY control rule.
    Comment 21. Several commenters suggested that the guidelines 
contain an explicit prohibition against ``short-term'' or ``pulse'' 
overfishing.
    Response. No change was made. Taken together, 
Sec. 600.310(d)(2)(i), (e)(3), and (e)(3)(i) already indicate that 
exceeding the maximum fishing mortality threshold for even a single 
year is not permissible, except as provided under Sec. 600.310(d)(6). 
If ``short-term'' or ``pulse'' overfishing means that the maximum 
fishing mortality threshold would be exceeded for a period of at least 
1 year, then the guidelines clearly prohibit these practices.
    Comment 22. Two commenters suggested that the minimum stock size 
threshold should always be set equal to the MSY stock size. However, 
one of these commenters further suggested that it should be permissible 
for a stock or stock complex to fall slightly below its minimum stock 
size threshold on an occasional basis without being considered 
overfished.
    Response. No change was made. Setting the minimum stock size 
threshold equal to the rebuilding target means that natural variability 
will frequently cause stocks to be classified as ``overfished,'' even 
if no overfishing ever occurs. The suggestion to permit occasional, 
slight violations of the minimum stock size threshold would require 
establishing criteria for determining the acceptable rate and extent of 
threshold violation, which would undoubtedly be a problematic exercise.
    Comment 23. Several commenters suggested that the guidelines should 
incorporate, to the maximum extent possible, recent strides made in the 
application of the precautionary approach, such as those contained in 
the United Nations Treaty on Straddling Stocks and Highly Migratory 
Species.
    Response. No change was made. The guidelines are already very much 
in step with, and in some cases ahead of, recent strides made in the 
application of the precautionary approach in the international arena. 
In addition, as noted in the preamble of the proposed rule, further 
technical guidance regarding specification of a precautionary approach 
will be provided by NMFS in the near future.
    Comment 24. One commenter suggested that the guidelines should 
require all MSY estimates (both point estimates and ranges) and OY 
specifications (both single values and ranges) to be accompanied by 
confidence intervals, which the commenter felt to be a basic component 
of a risk-averse approach. The commenter suggested that such confidence 
intervals could be qualitative in nature, if necessary.
    Response. No change was made. NMFS agrees that a risk-averse 
approach is highly desirable, both for estimation of MSY and for 
specification of OY, but does not believe that requiring confidence 
intervals for these quantities is necessarily the best or only way to 
implement such an approach. For example, if point estimates are 
determined in an explicitly risk-averse manner, the addition of 
confidence intervals could prove more confusing than helpful, 
especially to a nontechnical audience. However, in those cases where 
Councils feel that confidence intervals would be helpful, 
Sec. 600.310(c)(2)(ii) already gives the Councils explicit latitude to 
use them. The same paragraph also requires that appropriate 
consideration of risk be incorporated into estimates of MSY, while 
Sec. 600.310(f)(5)(iii) states that criteria used to set target catch 
levels (such as OY) should be explicitly risk averse, so that greater 
uncertainty regarding the status or productive capacity of a stock or 
stock complex corresponds to greater caution in setting target catch 
levels.
    Comment 25. One commenter suggested that a precautionary approach 
is not appropriate for a management target such as OY.
    Response. No change was made. Contrary to this comment, NMFS 
believes a precautionary approach is particularly appropriate for a 
management target such as OY. If management is effective, harvests will 
typically be close to the target level, so if the precautionary 
approach is to have a substantial impact on fishery management, it 
needs to be applied to management targets at least as much as to 
management thresholds.
    Comment 26. One commenter suggested that the description of the 
precautionary approach should state that lack of information should not 
prevent a Council from taking reasonable steps to address fishery 
resource problems.
    Response. No change was made. This suggestion is already implicit 
in Sec. 600.310(f)(5)(iii), which states that greater uncertainty 
(i.e., greater lack of information) should correspond to greater 
caution in setting target catch levels. NMFS believes that prudent 
decision-making in the face of uncertainty is a cornerstone of any 
precautionary approach.
    Comment 27. Two commenters expressed concern over the target stock 
size for rebuilding. One commenter suggested that the target should be 
the OY stock size and felt that the guidelines erred in treating the 
MSY stock size as though it were the target. The other commenter 
suggested that the target ought to be the MSY stock size and felt that 
the guidelines erred in treating the MSY stock size as though it were a 
threshold.

[[Page 24220]]

    Response. The Magnuson-Stevens Act, in section 3(28)(C), implies 
strongly that the MSY stock size is at least an initial target for 
rebuilding. Of course, to the extent that OY is lower than MSY and that 
management is generally successful in achieving OY on a continuing 
basis, the OY stock size will be greater than the MSY stock size; thus 
the ultimate target level (OY stock size) will be greater than the 
initial target level (MSY stock size). The guidelines are consistent in 
treating the MSY stock size as a constraint rather than as a threshold.
    Comment 28. Several commenters suggested that the method for 
calculating rebuilding time requires clarification. Assuming that some 
sort of estimation is involved in calculating rebuilding time, a number 
of possibilities present themselves. Does ``rebuilding time'' refer to 
the expected rebuilding time, the median rebuilding time, some 
percentile of rebuilding times, or something else?
    Response. No change was made. The commenters are correct that there 
are a large number of ways to calculate rebuilding time. In addition to 
statistics pertaining to the time required to reach some specified 
stock size, other possibilities include various statistics pertaining 
to the stock size achieved at some specified future time--for example, 
the expected stock size, the median stock size, or some percentile of 
stock sizes. While these choices pose potentially substantive issues, 
NMFS believes there are a number of reasonable ways to calculate 
rebuilding time that would be consistent with the provisions of the 
national standard 1 guidelines. It is beyond the scope of these 
guidelines to establish a single method to be used in all cases. 
However, it is possible that the forthcoming technical guidance 
regarding the precautionary approach (as described in the preamble to 
the proposed rule) could address these issues.
    Comment 29. One commenter suggested that the maximum fishing 
mortality threshold should be greater than the fishing mortality rate 
associated with the chosen MSY control rule. The commenter noted that 
this would be consistent with the approach taken by Rosenberg et al. 
(1994)(see preamble to the proposed rule).
    Response. No change was made. The commenter is correct insofar as 
the report by Rosenberg et al. (1994) interpreted the former Magnuson 
Act as taking overfishing to be a rate of fishing mortality somewhat 
greater than the rate associated with any MSY control rule. However, it 
is clear that the Magnuson-Stevens Act takes a different, more 
conservative, approach by linking overfishing much more directly to 
MSY. Allowing the maximum fishing mortality threshold to exceed the 
fishing mortality rate associated with the MSY control rule would thus 
be inconsistent with the Magnuson-Stevens Act.
    Comment 30. One commenter felt that the proposed procedural 
requirements for interim measures in Sec. 600.310(e)(5) are too 
burdensome. The commenter stated that, under the proposed guidelines, 
the Councils would essentially have to develop the same measures as 
part on an FMP or amendment for implementation on a more permanent 
basis, before recommending the measures as interim measures. Instead, 
the Councils should be allowed to recommend an interim action whenever 
there is a substantial conservation benefit to be gained.
    Response. No change was made. NMFS agrees that actions to address 
overfishing should not be constrained unnecessarily. Section 304(e)(6) 
of the Magnuson-Stevens Act states that interim measures can be 
requested by a Council during its development of an FMP, an FMP 
amendment, or proposed regulations to address overfishing as required 
under section 304(e), until such measures can be replaced by such FMP, 
amendment, or regulations. Section 305(c)(3)(B) of the Magnuson-Stevens 
Act establishes time constraints on interim actions and makes 
extensions contingent upon the Council's actively preparing an FMP, FMP 
amendment, or proposed regulations to address overfishing on a 
permanent basis. Section 600.310(e)(6) of the guidelines reflects these 
statutory requirements.
    Comment 31. One commenter objected to statements in 
Sec. 600.310(f)(1)(ii) and (f)(5)(i) to the effect that OY cannot be 
achieved on a continuing basis if status determination criteria are not 
met. The commenter contended that the purpose of the status 
determination criteria is to measure FMP performance, not to control 
fishing, and that the present wording of the guidelines might preclude 
a Council from taking a gradual approach toward bringing fishing 
mortality into conformity with the maximum fishing mortality threshold.
    Response. No change was made. NMFS believes that status 
determination criteria are indeed intended to control fishing. The 
commenter is correct insofar as the guidelines would preclude a Council 
from taking a gradual approach toward bringing fishing mortality into 
conformity with the maximum fishing mortality threshold. Once a Council 
is notified that overfishing is occurring, it must take action within 1 
year to end overfishing. A gradual approach is not permitted.
    Comment 32. One commenter suggested that the guidelines should 
include a clear statement to the effect that, whenever overfishing is 
occurring, remedial action is required.
    Response. No change was made. The statement already appears in 
Sec. 600.310(e)(3)(i).
    Comment 33. One commenter suggested that the guidelines should 
encourage adoption of target harvest levels set safely below MSY.
    Response. No change was made. The statement already appears in 
Sec. 600.310(f)(5)(i).
    Comment 34. Several commenters suggested that Sec. 600.310(f)(2)(i) 
and (f)(2)(ii) under emphasized the benefits to the Nation accruing 
from food production relative to those accruing from recreational 
opportunities. Two commenters suggested that contributions to the 
surrounding economies ought to be listed as a benefit accruing from 
food production, as well as from recreational opportunities. One 
commenter suggested that the guidelines seemed to equate recreational 
fishing with non-consumptive use and commercial fishing with 
consumptive use, giving the impression that recreational fishing does 
not contribute to food production. One commenter was concerned 
regarding the vague nature of the ``other non-consumptive activities'' 
that were suggested to be ``important to the national, regional, and 
local economies'' in Sec. 600.310(f)(2)(ii).
    Response. Sections 600.310(f)(2)(i) and (f)(2)(ii) have been 
revised. NMFS believes that neither the benefits to the Nation accruing 
from food production nor those accruing from recreational opportunities 
should be under emphasized. Contributions to the national, regional, 
and local economies are now listed as benefits accruing from both food 
production and recreational opportunities. Contrary to one of the 
comments cited, the proposed rule explicitly acknowledged the 
contribution of recreational fishing to food production; this 
acknowledgment is retained in the revised language. The non-specific 
reference to ``other non-consumptive activities'' has been deleted from 
Sec. 600.310(f)(2)(ii), insofar as this paragraph is not intended to 
provide an exhaustive list of non-consumptive uses.
    Comment 35. Several commenters disagreed with the proposed 
guidelines' allowance of an exception to the requirement of preventing 
overfishing,

[[Page 24221]]

in the case of one stock component of a mixed-stock fishery. They said 
that the legislative history of the SFA supports elimination of this 
exception, and challenged NMFS' authority to retain it.
     Response. The legislative history of the SFA does not directly 
address this issue. The statute defines ``overfishing'' and 
``overfished'' in terms of the capacity of a fishery to produce MSY. 
National standard 1 requires conservation and management measures to 
prevent overfishing while achieving the OY from each fishery. Section 
304(e) of the Magnuson-Stevens Act requires the Secretary to identify 
fisheries that are being overfished. The Council must then take steps 
to end overfishing in the fishery.
    A ``fishery'' is defined in the Magnuson-Stevens Act as ``one or 
more stocks of fish which can be treated as a unit for purposes of 
conservation and management.'' In a mixed-stock fishery, several stocks 
are harvested together and are managed as a unit. From the SFA's focus 
on ``fisheries,'' and the fact that it did not amend national standard 
1, NMFS infers that Congress did not mean to eliminate entirely the 
long-standing practice of allowing a mixed-stock fishery to continue, 
if certain conditions specified in the guidelines were met.
    To respond to concerns that this exception might become a huge 
loophole, the proposed guidelines considerably narrowed this exception 
from the existing guidelines. To allow overfishing of one stock in a 
mixed-stock fishery, a Council must meet three stringent conditions: 
(1) It must demonstrate by analysis that the action will result in 
long-term net benefits to the Nation; (2) it must demonstrate by 
analysis that a similar level of benefits cannot be achieved by 
modifying fleet behavior, gear selection or configuration, or other 
technical characteristic so that no overfishing would occur; and (3) it 
must ensure that the action will not cause any species or 
evolutionarily significant unit thereof to require protection under the 
Endangered Species Act.
    The exceptions for mixed-stock fisheries have thus been 
significantly constrained by requiring that (1) demonstrated net 
benefits to the Nation be long-term, rather than short-term; (2) an 
analysis be performed to consider technical or operational alternatives 
to overfishing; and (3) the stock or stock complex not be driven to a 
dangerously low level.
    NMFS believes the guidelines strike the correct balance between 
preventing a stock from becoming overfished and achieving OY for the 
fishery as a whole.
    Comment 36. The notice reopening the comment period asked whether 
overfishing evaluations and rebuilding programs should be focused on 
individual stocks, or on a fishery. In response, many commenters 
pointed out that a stock-by-stock approach is the only scientifically 
justified method. Overlooking the condition of each stock is also 
inconsistent with Congressional intent to rebuild all fishery 
resources. Other commenters wanted to focus on fisheries, as part of an 
ecosystem approach to management. A mixed stock fishery should be 
managed as a unit, and should not be closed just because one component 
of the fishery is overfished.
    Response. A fishery comprised of many stocks cannot be judged as 
overfished or not; only for a stock or stock complex of fish can 
measurable, objective criteria of overfishing be established, as 
required by the SFA. The same concern applies to judging whether a 
fishery has been rebuilt; biologically, that can be determined only on 
a stock or stock complex basis. The Secretary's first report to 
Congress (September 30, 1997, under section 304(e)) identified stocks, 
not fisheries, as overfished.
    Focusing on stocks as a scientific endeavor is not inconsistent 
with managing a fishery as a unit. As explained in the response to 
comment 35 under national standard 1, identification of a stock as 
overfished does not necessarily mean that the entire fishery in which 
it occurs must be severely constrained while that stock is rebuilt. 
Scientific judgments on overfishing and rebuilding must be made, to the 
extent practicable, on a stock-by-stock basis, but management judgments 
on optimizing benefits can be made on the fishery as a whole. In other 
words, managers should be aware of the biological status of each stock, 
and should also be required to justify the continuation of overfishing 
of a stock in a mixed-stock fishery on the grounds of maximizing 
benefits.
    Comment 37. One commenter suggested that a discussion of 
``acceptable biological catch'' (ABC) be included in the guidelines, as 
in the 1989 version. The commenter felt that ABC is used by most, if 
not all, of the Councils and in many FMPs.
    Response. No change was made. NMFS believes that ABC, as typically 
used, is an example of the ``annual target harvest levels that vary 
with stock size'' described in Sec. 600.310(f)(4)(ii). Given that the 
term ``acceptable biological catch'' does not appear in the Magnuson-
Stevens Act (although ``allowable biological catch'' is used once, 
without definition, in section 303(b)(11)), NMFS does not believe that 
it is necessary to reference this additional term by name in the 
guidelines.
    Comment 38. One commenter objected to specifying minimum stock size 
threshold as a function of MSY stock size, as in 
Sec. 600.310(d)(2)(ii). The commenter was concerned that extreme 
changes in environmental conditions could lead to extreme changes in 
carrying capacity and could result in a mismatch between the minimum 
stock size threshold and the stock's new productive capacity.
    Response. No change was made. Section 600.310(d)(4)(ii) requires 
that status determination criteria be respecified if changes in 
environmental conditions cause the long-term productive capacity of the 
stock or stock complex to change. (See also the response to comment 18 
for national standard 1).
    Comment 39. One commenter objected to the statement in 
Sec. 600.310(f)(5)(i) that continual harvest at a level above OY would 
violate national standard 1, even if no overfishing resulted. The 
commenter felt that it is both physically and fiscally impossible to 
assure that quotas are not systematically exceeded.
    Response. No change was made. NMFS believes that the national 
standard 1 mandate for ``achieving, on a continuing basis, the OY from 
each fishery'' should not be interpreted to mean, ``achieving, on a 
continuing basis, the OY or some greater amount of harvest from each 
fishery.'' By definition, MSY is the greatest amount of harvest that 
could be achieved from a fishery on a continuing basis. Presumably, the 
reason that the Magnuson-Stevens Act makes explicit provision for 
setting OY at a level below MSY is that, where justified on the basis 
of relevant economic, social, or ecological factors, continual harvest 
at a higher level (such as MSY) is to be avoided. NMFS' experience has 
been that it is indeed possible to assure that quotas are not 
systematically exceeded. If, however, a Council finds that a systematic 
amount of harvest overrun is inevitable, quotas should be reduced by 
that amount.
    Comment 40. Several commenters suggested that the guidelines list 
examples of management actions required under a variety of fishing 
mortality rates and stock sizes.
    Response. No change was made. NMFS believes there are so many 
variables and contingencies specific to each fishery that it would not 
be meaningful to list examples of the type

[[Page 24222]]

requested. In general, though, it is clear that a Council's primary 
control will be over fishing mortality. If the fishing mortality rate 
on a stock or stock complex exceeds the maximum fishing mortality 
threshold, it must be reduced to the extent that it no longer exceeds 
that threshold, as described in Sec. 600.310(e)(3)(i) and (e)(4)(i). If 
a stock or stock complex is overfished, fishing mortality must be 
controlled such that the stock rebuilds to the MSY level within a time 
period satisfying the statutory requirements, as described in 
Sec. 600.310(e)(3)(ii) and (e)(4)(ii).
    Comment 41. In discussing fisheries that have large state 
components, one commenter said that states will have to cooperate to 
achieve the SFA's rebuilding objectives. He recommended that the 
possibility of preempting a state's authority over a fishery in its 
waters be specified in the guidelines.
    Response. The criteria and procedures for Federal preemption of 
state authority are set out in section 306(b) of the Magnuson-Stevens 
Act. In addition, NMFS would also comply with applicable requirements 
of Pub. L. 104-4, the Unfunded Mandates Reform Act of 1995, and E.O. 
12612, Federalism. NMFS sees no reason to reiterate these requirements 
in the guidelines, but agrees that consultation and state cooperation 
will be essential in meeting rebuilding schedules for some fisheries.
    Comment 42. One commenter stated that the guidelines should clearly 
point out that the SFA imposes the obligation to establish a strong 
domestic plan to rebuild stocks, within 10 years if biologically 
possible, and that obligation applies to international as well as 
domestic fisheries.
    Response. NMFS agrees that the obligation to establish a strong 
domestic plan to rebuild stocks, within 10 years if biologically 
possible, is a requirement of the SFA, regardless of the species 
involved. The guidelines, as proposed, reflect this view. There is no 
exception provided in the guidelines for any species or fishery beyond 
that provided in the SFA (section 304(e)(4)(C)). NMFS notes that the 
SFA requires that any rebuilding program for fisheries managed under an 
international agreement must reflect traditional participation in the 
fishery, relative to other nations, by fishermen of the United States. 
NMFS does not agree that additional clarifying language is necessary in 
the guidelines.
    Comment 43. With respect to highly migratory species such as tunas 
and billfish, one commenter believed expressions of yield and 
overfishing are meaningless on local scales. The commenter questioned 
what is required of the Councils and what the limits of authority are 
regarding ending overfishing and rebuilding overfished stocks in areas 
where the majority of the exclusive economic zone (EEZ) stock/fishery 
occurs in state waters (e.g., onaga) or in international waters (e.g., 
armorhead) where no agreements exist.
    Response. The Councils have the responsibility under SFA to do all 
they can to eliminate overfishing and to rebuild overfished stocks. The 
Councils are limited in their authority and their ability to correct 
overfishing in many cases. However, this limitation should not prevent 
the Councils from doing everything within their authority and 
capabilities to address overfishing. (See also the response to comment 
33 under national standard 1.)
    Comment 44. One commenter was concerned regarding NMFS' proposed 
requirement to implement regulations to end (or prevent) overfishing 
and to rebuild (or sustain) affected fish stocks that are considered to 
be overfished or approaching an overfished condition. The commenter 
objected to this provision's application to migratory fish stocks with 
international harvesters, especially when the majority of the harvest 
is taken by foreign fleets.
    Response: The SFA provisions concerning overfishing and rebuilding 
migratory fish stocks are not restricted to those situations where the 
U.S. harvest is a majority of the total fishing mortality. The SFA 
does, however, recognize the international aspects of migratory 
species, and provides that the period for rebuilding may exceed 10 
years if management measures under an international agreement so 
dictate. And, as noted in the response to comment 33 under national 
standard 1, the rebuilding program for fisheries managed under an 
international agreement must reflect traditional participation in the 
fishery, relative to other nations, by fishermen of the United States. 
The guidelines reflect these provisions of the SFA.
    Comment 45. One commenter said the proposed rule states that all 
fishing mortality must be counted against OY, including that resulting 
from bycatch, research fishing, and any other fishing activities, 
although the Magnuson-Stevens Act (section 3(15)) defines fishing in a 
way that does not include scientific research activity that is 
conducted by a scientific research vessel.
    Response. The proposed guidelines have been revised to reflect the 
fact that the term ``fishing'' does not include any scientific research 
activity that is conducted by a scientific research vessel. In 
Sec. 600.310(f)(4)(iii), the words ``research fishing'' have been 
changed to ``scientific research.'' However, the fishing mortality that 
occurs during scientific research requires estimation and inclusion in 
the accounting of all harvesting mortality to which stocks are 
subjected.
    Comment 46. One commenter stated that overfishing criteria do not 
provide any explicit treatment for hatchery stocks. The commenter 
assumed that hatchery stocks cannot be aggregated with wild stocks for 
the purposes of establishing overfishing criteria.
    Response. NMFS agrees with the commenter's assumption that hatchery 
stocks cannot be aggregated with wild stocks for purposes of 
establishing overfishing criteria.
National Standard 2
    Comment 1. One commenter suggested that NMFS should encourage the 
policy that fisheries management must be based on scientific facts.
    Response. NMFS agrees, and recognizes that additional factors, such 
as social and economic impacts, must be taken into consideration in 
formulating management measures.
    Comment 2. One commenter stated that the guidelines for national 2 
should expressly address data on bycatch and safety.
    Response. NMFS agrees and has amended Sec. 600.315(e)(1)(ii) to 
include safety. That section already includes a reference to bycatch.
    Comment 3. One commenter stated that data reporting requirements in 
national standard 2 are too burdensome and will inhibit fisheries 
management.
    Response. Section 301(a)(2) of the Magnuson-Stevens Act requires 
that conservation and management measures be based on the best 
scientific information available. The minimum information sets required 
in FMPs are described in section 303(a) and (b) of the Magnuson-Stevens 
Act. The guidance provided in Sec. 600.315 summarizes those statutorily 
required minimum requirements. Moreover, the Paperwork Reduction Act 
requires NMFS to minimize the burden of its information collection by 
ensuring the information will have practical utility.
    Comment 4. Two commenters suggested there should be more explicit 
guidance under national standard 2 regarding the data requirements 
related to fishing communities.
    Response. NMFS agrees. The language in Sec. 600.315(e)(1) 
introductory text has been revised to clarify that Stock Assessment and 
Fishery Evaluation (SAFE) reports are intended to summarize the most 
recent information

[[Page 24223]]

concerning a variety of aspects of the fishery, including fishing 
communities.
National Standard 4
    Comment 1. One commenter suggested that the guidelines for national 
standard 4 should be modified by adding: ``In all [FMPs] prepared by 
any Council in a limited access fishery, all permits must be treated 
equally and fairly.''
    Response. No change was made. The criteria that a Council must use 
in developing a limited access program are listed in the Magnuson-
Stevens Act (section 303(b)(6)). National standard 4 requires that all 
allocations, including limited access permits, be handled fairly and 
equitably.
    Comment 2. One commenter suggested that national standard 4 should 
contain a strict prohibition that prevents any one state (such as 
Alaska) from being granted (by any Council) monopoly control of 
fisheries management in Federal waters where fishermen from several 
states harvest under an approved FMP.
    Response. The Magnuson-Stevens Act provides that a state may 
regulate a fishing vessel outside the boundaries of that state (section 
306(a)(3)). However, management measures developed by a state pursuant 
to this authority may not discriminate between residents of different 
states. Mechanisms exist for ensuring that such authority does not 
result in unfair treatment. For example, two North Pacific Fishery 
Management Council FMPs that defer the majority of management authority 
to the State of Alaska (the crab and salmon FMPs) have mechanisms that 
provide for individuals to challenge the State's management actions.
    Comment 3. One commenter stated that fishing sectors such as 
subsistence fishing and aboriginal people indigenous to the region 
should be added to the commercial, recreational, and charter fishing 
sections identified.
    Response. No change was made. The Magnuson-Stevens Act already 
requires that all fishermen should be treated fairly and equitably.
National Standard 5
    Comment 1. Several commenters stated that the guidelines do not 
adequately reflect the revision from ``promoting economic efficiency'' 
to ``considering economic efficiency'' in national standard 5, 
particularly in the use of the term ``encouraging'' relative to 
efficient utilization.
    Response. NMFS agrees that the word ``encouraging'' should be 
replaced with ``considering,'' to make this standard consistent with 
the intent of Congress; Sec. 600.330(b)(1) has been revised 
accordingly. The reference to limited access systems is only an example 
of a program that may contribute to efficiency. No statements or 
references are made that limited access is a preferred alternative to 
increase efficiency.
    Comment 2. One commenter stated that the use of the phrase ``least 
cost to society'' in the national standard 5 guideline is 
inappropriate, because achieving long-term benefits may require costs 
that are greater than the least available.
    Response. The use of this phrase is similar to its use in the 
national standard 7 guideline, which refers to minimizing costs. The 
phrase does not mandate that the alternative with the lowest cost be 
selected. Rather, it is meant to provide guidance that efficient 
utilization of resources is a way to achieve benefits for the Nation, 
while limiting the costs to society. Analysis of alternative management 
measures, including those that would offer greater efficiency, are 
expected to estimate the relative benefits and costs of those measures.
National Standard 7
    Comment 1. One commenter suggested that the Councils should be 
required to prepare an FMP for any fishery that has recreational and/or 
commercial catch.
    Response. The Magnuson-Stevens Act did not impose such a 
requirement. The national standard guidelines do not excuse the 
Councils from developing FMPs that are necessary or appropriate. The 
guidelines prior to the SFA stated that an FMP should be prepared only 
for fisheries in need of management. NMFS believes no change is 
necessary, because requiring an FMP for every fishery could redirect 
critical funds needed for resource surveys, data collection, data or 
impact analyses, or other essential activities, but result in little or 
no incremental benefit to the Nation.
National Standard 8
    Comment 1. One commenter stated that the definition of ``fishing 
communities'' needs to be amended to include all components of the 
recreational industry.
    Response. No change was made. The definition of ``fishing 
community'' in the guidelines already includes recreational fishing or 
directly related fisheries-dependent services and industries.
    Comment 2. One commenter stated that ``sustained participation'' 
referred to in this standard does not guarantee any specific rights, 
practices, or access to a specific fishery. Two other commenters stated 
that the intent of Congress in reference to ``sustained participation'' 
was not to cause fishermen to change gear or species, particularly 
since some communities are dependent on specific gears and/or 
fisheries.
    Response. No change was made. ``Sustained participation'' means 
continued access to the fishery within the constraints of the condition 
of the resource. This standard requires that the importance of fishery 
resources to a community be taken into account in conservation and 
management measures; however, the long-term conservation and/or 
rebuilding of stocks may require limits on particular gears and the 
harvest of specific stocks.
    Comment 3. One commenter stated that proposed Sec. 600.345(b)(2) 
captures the intent of Congress that this standard does not allocate 
resources to particular communities, while Sec. 600.345(c)(3) has 
implicitly allocative language in its focus on ``levels of dependence 
on and engagement in'' the fishery.
    Response. No change was made. The language in Sec. 600.345(c)(3) 
reflects the meaning of the Magnuson-Stevens Act, which refers to 
communities being ``substantially engaged'' and ``substantially 
dependent.'' The levels of dependence on and engagement in a fishery 
need to be ascertained in order to identify communities, whether 
located in rural or metropolitan areas, that may be potentially 
affected. Further, dependence, engagement, and sustained participation 
are not measured solely in terms of the percent of fishing activity in 
relation to the entire economic base of the community; there are other 
social, cultural, and economic assessments specifically focused on the 
harvesting, processing, and fishery-support industries.
    Comment 4. One commenter stated that, in Sec. 600.345(b) and (c), 
the definitions and explanations are so broad as to render them useless 
in identification of fishing communities.
    Response. NMFS disagrees. The guidance reflects the language and 
intent of Congress to be inclusive of fishing communities. The 
definitions and explanations in Sec. 600.345(b) and (c) are acceptable 
operational definitions for use by social scientists and economists in 
undertaking data gathering and analysis.
    Comment 5. One commenter stated that, in Sec. 600.345, all 
components of the recreational fishing industry in fishing communities 
should be described and analyzed in the same manner and depth as 
commercial fishery components.

[[Page 24224]]

    Response. NMFS agrees. The guidance in the national standard 
guidelines covers all sectors.
National Standard 9
    Comment 1. Several commenters stated that the guidelines as written 
diverged significantly from the statute and Congressional intent and 
require a substantial rewriting. One commenter was concerned that the 
Councils would not have to take action to amend their FMPs to minimize 
bycatch and would still be found to be in compliance with national 
standard 9.
    Response. NMFS disagrees. The Councils and NMFS must review all 
existing FMPs and all future FMPs and FMP amendments for compliance 
with national standard 9. Existing FMPs will be amended, if necessary, 
to ensure compliance with this standard. The Councils are required to 
re-examine the conservation and management measures contained in their 
FMPs for ways to reduce bycatch below current levels. In addition, the 
Councils must revisit the measures periodically to ensure that bycatch 
is reduced as much as practicable. No change in the guidelines is 
necessary.
    Comment 2. Several commenters stated that the SFA sent a very clear 
message that bycatch is a serious problem and that the Councils are 
required not to study the problem, as suggested in the proposed 
guidelines, but to amend FMPs to include measures to ``minimize bycatch 
and to minimize the mortality of such bycatch that cannot be avoided.''
    Response. NMFS agrees that bycatch is a problem in many of the 
Nation's fisheries. The amendments to the Magnuson-Stevens Act require 
that conservation and management measures minimize bycatch to the 
extent practicable and, to the extent bycatch cannot be avoided, 
minimize the mortality of such bycatch. The requirement is clearly not 
discretionary. NMFS disagrees that the guidelines only require the 
Councils to study the bycatch problem; the Councils must take action to 
minimize bycatch and bycatch mortality to the extent practicable. No 
change in the guideline is necessary (also see the response to comment 
1 under national standard 9).
    Comment 3. Several commenters observed that national standard 9 
recognizes bycatch as an integral component of the total fishery, with 
biological if not economic value. The commenter stated that this 
national standard encourages the redeployment, or perhaps the 
elimination, of destructive, non-selective gears.
    Response: NMFS agrees. The Councils have a range of options 
available to them to satisfy the requirements of national standard 9; 
the commenter mentioned only two of the options available. However, the 
legislative history of the SFA includes a floor statement by 
Congressman Young that ``it is not the intent of Congress that the 
[Councils] ban a type of fishing gear or a type of fishing in order to 
comply with this standard.''
    Comment 4. One commenter observed that national standard 9 applies 
not only to commercially valuable species, but also to all finfish, 
shellfish, and invertebrate species with no commercial value.
    Response. NMFS agrees. The definition of ``fish'' in the Magnuson-
Stevens Act includes finfish, shellfish, and invertebrate species, and 
all other forms of marine animal and plant life except marine mammals 
and birds; by extension, bycatch applies to these forms of marine life.
    Comment 5. One commenter stated that the guidelines are not clear 
on exactly what is required for compliance with this national standard 
and what the consequences would be of not meeting that requirement. The 
commenter also suggested that such requirements would likely not be 
followed because they are too time/staff/data intensive. Another 
commenter stated that the guidelines suggest that measures to minimize 
bycatch need not be implemented if they are determined to be 
``inconvenient'' with respect to, for example, ``changes in fishing, 
processing, disposal, or marketing costs,'' or ``changes in fishing 
practices and the behavior of fishermen.''
    Response. The Secretary is required to ensure that all FMPs are in 
compliance with the national standards. FMPs or FMP amendments that are 
not in compliance will not be approved. Inconvenience is not an excuse; 
bycatch must be avoided as much as practicable, and bycatch mortality 
must be reduced until further reductions are not practicable. Adherence 
to the national standards is not discretionary.
    Comment 6. One commenter suggested that, in the definition of 
bycatch in Sec. 600.350(c), NMFS strike the parenthetical in the 
definition of bycatch and the phrase, ``or that enter commerce through 
sale, barter, or trade.''
    Response. The language in Sec. 600.350(c) is consistent with the 
Magnuson-Stevens Act; commercial fishing, as defined in section 3(4), 
``means fishing in which the fish harvested, either in whole or in 
part, are intended to enter commerce or enter commerce through sale, 
barter or trade.'' While the term ``sale'' is inclusive of barter and 
trade, the phrase has been kept in the guidelines to ensure that there 
is no ambiguity as to what is considered bycatch. NMFS believes the 
parenthetical in the definition of ``bycatch'' provides useful 
clarification of ``harvested in a fishery.'' No change was made.
    Comment 7. Several commenters recommended removing the definition 
of discard in proposed Sec. 600.350(c)(2) because they believed the 
term was included by NMFS without support in the Magnuson-Stevens Act 
or its legislative history. They stated that the definition is in 
conflict with the law and allows the continuation of fishing methods 
and practices that involve great amounts of bycatch, like roe stripping 
and shark finning.
    Response. The definition in Sec. 600.350(c)(2) has been removed; 
however, NMFS has retained the interpretation that ``bycatch'' includes 
the discard of whole fish--not the discard of unwanted parts. Nothing 
in the definitions of ``bycatch'' or ``economic discards'' suggests 
that the discard of unwanted parts of fish is addressed accordingly 
(see the response to comment 12 under national standard 9 for a 
discussion of practices such as shark finning).
    Comment 8. One commenter requested that NMFS add to the last 
sentence in the definition of bycatch in Sec. 600.350(c) the words ``or 
Atlantic highly migratory species harvested in a commercial fishery 
that are not regulatory discards and that are tagged and released alive 
under a scientific tag and release program established by the 
Secretary.''
    Response. NMFS agrees and has added the suggested language to 
Sec. 600.350(c).
    Comment 9. A commenter asked whether any fish caught and sold would 
be considered bycatch.
    Response. According to the definition of bycatch in the Magnuson-
Stevens Act, the sale of any fish removes it from being considered 
bycatch.
    Comment 10. A commenter stated that fish that are ground up and 
thrown overboard are not counted as discards.
    Response. NMFS disagrees. Whole fish that are ground up and thrown 
overboard would be considered bycatch.
    Comment 11. One commenter suggested that, in Sec. 600.350(b), the 
second sentence be replaced with: ``Bycatch can, in four ways, impede 
efforts to protect marine ecosystems, achieve sustainable fisheries and 
the full benefits that they provide to the Nation.'' The suggestion was 
also made

[[Page 24225]]

that the following sentence be added to Sec. 600.350(b): ``First, 
removing unknown amounts of commercial or non-commercial biomass as 
bycatch affects marine ecosystems in ways that are poorly understood at 
best.''
    Response. The first suggestion was adopted, because sustainable 
fisheries are predicated on healthy marine ecosystems. In addition, 
Sec. 600.350(b) was revised to combine the concepts of increased 
uncertainty concerning total fishing related mortality and the impact 
of bycatch on other uses of fishery resources.
    Comment 12. One commenter stated that portions of fish not used or 
retained (e.g., finned sharks) are incidental catch (and are therefore 
bycatch). Other commenters stated that sharks could be harvested for 
fins and discarded without being counted as discards.
    Response. The Magnuson-Stevens Act does not define incidental 
catch; however, it defines ``bycatch'' as fish that are harvested in a 
fishery, but that are not sold or kept for personal use. The Magnuson-
Stevens Act does not specify that the entire animal or plant must be 
sold or kept for personal use. This does not mean, however, that 
wasteful practices should not be of concern, nor that they may not be 
restricted by the Councils on some other basis. The issue of how much 
of a fish should be retained is a utilization issue, which is distinct 
from the bycatch issue.
    Comment 13. One commenter stated that damaged and/or mutilated 
(e.g., shark-bitten) target species that are discarded are bycatch.
    Response. NMFS agrees. Such fish are considered bycatch if they are 
not sold or kept for personal use.
    Comment 14. Economic discards of target species, such as tunas 
during times of market surplus, including dumping of fish on land, are 
bycatch.
    Response. NMFS agrees. Such discards are considered bycatch.
    Comment 15. One commenter observed that the Magnuson-Stevens Act's 
definition of bycatch does not mention unobserved fishing mortality and 
recommended that the parenthetical inclusion of unobserved fishing 
mortality in the definition of bycatch in Sec. 600.350(c) of the 
regulations should be removed.
    Response. NMFS disagrees. The statute does not limit Council 
actions only to observed bycatch. Unobserved fishing-related mortality 
is implicitly included in the definition because it constitutes a 
harvest of fish that are not sold or kept for personal use. NMFS notes, 
however, that there is little information available on unobserved 
fishing-related mortality and believes that primary emphasis should 
initially be placed on minimizing observed sources of fishing-related 
mortality.
    Comment 16. One commenter noted that unobserved fishing-related 
mortality should be given prominence in the proposed guidelines.
    Response. NMFS disagrees. Given the many sources of bycatch 
mortality, NMFS believes that unobserved fishing-related mortality is 
sufficiently prominent in the guidelines as proposed.
    Comment 17. One commenter asked how NMFS will ever assign a 
poundage to unobserved mortality and what scientific basis will be used 
to determine unobserved mortality.
    Response. NMFS recognizes that determining unobserved fishing 
mortality will be extremely difficult. However, all significant sources 
of fishing-related mortality need to be considered when developing 
conservation and management measures. While there are some existing 
technologies that could be used to estimate unobserved fishing 
mortality (e.g., video-based systems), new methods will need to be 
developed. This will involve an experimental process, including 
rigorous peer reviews of the results.
    Comment 18. One commenter noted that the amount of discards by the 
recreational fishery has a significant impact on fish stocks.
    Response. NMFS agrees. Discards by recreational anglers are 
considered to be bycatch unless they are specifically exempted in the 
Magnuson-Stevens Act. All mortality associated with recreationally 
caught fish must be considered in the determination of OY and MSY; this 
is addressed in the guidelines for national standard 1.
    Comment 19. One commenter observed that fish released alive in 
recreational catch-and-release and tagging programs do die and should 
be counted as bycatch and against OY.
    Response. NMFS agrees that all bycatch mortality and mortality 
attributable to exempted tagging and release programs should be 
considered in determination of OY. As noted in the response to comment 
25 under national standard 9, the Magnuson-Stevens Act exempts only 
Atlantic highly migratory species harvested in a tag-and-release 
program established by the Secretary. This is further addressed in the 
guidelines to national standard 1.
    Comment 20. One commenter stated that the SFA specifically excludes 
recreational catches from the requirements for bycatch reduction and 
avoidance. The commenter felt that a specific reference to the value of 
catch-and-release fisheries under the guidelines to national standard 9 
would be useful.
    Response. NMFS disagrees. Fish caught and released alive under an 
approved catch-and-release fishery management program are exempt from 
being considered bycatch under section 3(2) of the Magnuson-Stevens Act 
(see also the response to comment 21 under national standard 9). 
Management regulations (e.g., minimum size limits and bag limits) that 
result in the release of fish by recreational anglers are not 
considered catch-and-release programs and, therefore, such catches are 
considered to be bycatch, even though the fish are released alive. 
Increased efforts to release recreationally caught fish in healthy 
condition may partially satisfy the requirement in national standard 9 
that mortality of bycatch that cannot be avoided be minimized to the 
extent practicable.
    Comment 21. One commenter asked what is meant by the exclusion of 
``fish released alive under a recreational catch-and-release fishery'' 
under the bycatch definition.
    Response. A definition of the term ``catch-and-release fishery 
management program'' has been added to Section 600.350(c) as follows: a 
catch-and-release fishery management program is one in which the 
retention of a particular species is prohibited. In such a program, 
those fish released alive would not be considered bycatch.
    Comment 22. One commenter stated that highly migratory species in a 
commercial fishery managed by the Secretary that are tagged and 
released alive in the Atlantic are not considered bycatch. The same 
commenter asked whether the provision also extended to Pacific highly 
migratory species managed by the Western Pacific Council, and if not, 
why not?
    Response. NMFS agrees that the Magnuson-Stevens Act specifically 
exempted fish caught in highly migratory species tag-and-release 
programs in the Atlantic from being considered bycatch. This exemption 
was not extended in the SFA to Pacific highly migratory programs. 
Therefore, fish tagged and released in highly migratory species tag-
and-release programs in the Pacific are considered bycatch.
    Comment 23. One commenter stated that definitions of bycatch as 
``catch which is not retained or utilized'' and incidental catch as 
``catch which is retained in whole or part but not necessarily 
targeted,'' as adopted by the Western Pacific Fishery Management 
Council, are not consistent with the Magnuson-Stevens Act or with the

[[Page 24226]]

proposed national standard 9 guidelines.
    Response. The Western Pacific Council's definition of ``bycatch,'' 
though not identical, is not inconsistent with the new definition in 
the Magnuson-Stevens Act. The definition of ``incidental catch'' is not 
inconsistent with anything in the Act or the guidelines.
    Comment 24. Several commenters disagreed with the following 
statement in the preamble to the proposed guideline: ``Bycatch can be 
decreased either by decreasing the catch of fish that would be 
discarded or by retaining fish that would otherwise be discarded.'' 
They also stated that avoidance should take precedence over retention 
and that retention of bycatch fails both tiers of national standard 9 
in that it neither avoids nor minimizes it.
    Response. NMFS agrees that priority must first be given to avoiding 
bycatch to the extent possible. To the extent that it is not possible, 
priority must then be given to minimizing bycatch mortality. Any 
proposed conservation and management measure that does not give first 
priority to avoiding the capture of bycatch species must be supported 
by appropriate analyses, including determination of the net benefits to 
the Nation. Section 600.350(d) introductory text has been revised 
accordingly. Sections 313(i) and 405(d)(3) of the Magnuson-Stevens Act 
suggest that retention and utilization are viable solutions to some 
bycatch problems.
    Comment 25. Several commenters stated that the proposed rule would 
make national standard 9 a discretionary option for the Councils by 
using the word ``should'' at the end of Sec. 600.350(d). The commenters 
believed the proposed guidelines fail to require any Council to select 
and implement measures to minimize bycatch.
    Response. The requirements of the Magnuson-Stevens Act are not 
discretionary. The Councils must consider the requirements in 
Sec. 600.350(d) when evaluating conservation and management measures 
relative to the national standards. To ensure that this point is made, 
the word ``should'' in Sec. 600.350(d) introductory text has been 
changed to ``must'' to emphasize the mandatory nature of Council 
actions under this national standard.
    Comment 26. One commenter stated that the proposed language for 
national standard 9 neglected to include ``to the extent practicable'' 
when discussing reduction of mortality of bycatch that cannot be 
avoided. The commenter stated that Congress explicitly recognized that 
the costs of reducing bycatch at some level outweigh the benefits, and 
that the Magnuson-Stevens Act does not demand that bycatch be decreased 
to the point of technical feasibility, just to the point that it still 
makes sense to reduce it.
    Response. NMFS agrees; the guidelines already contain the language 
suggested. For the purposes of this national standard, the term 
``practicable'' is not synonymous with the term ``possible,'' because 
not all reductions that are possible are practicable. NMFS recognizes 
that in some fisheries it may not be practicable to eliminate all 
bycatch and bycatch mortality.
    Comment 27. One commenter stated that, as stocks approach 
overfished conditions or are below their optimum levels, harvests 
(including bycatch) should be limited to well below the threshold at 
which there is a risk of precipitating or contributing to a decline.
    Response. NMFS agrees. Bycatch mortality is a component of total 
fishing mortality and must be incorporated into stock assessments. To 
the extent that stock assessments include information on the types and 
magnitude of bycatch, total allowable catch determinations will reflect 
that information.
    Comment 28. Several commenters stated that the guidelines ought to 
point out specifically that economics cannot justify bycatch that has a 
negative impact on the health of any stock in a multispecies fishery.
    Response. NMFS agrees. The primary responsibility of the Councils 
is to develop conservation and management measures that, to the extent 
practicable, minimize the capture of bycatch species and that, to the 
extent bycatch cannot be avoided, minimize the mortality of such 
bycatch. The economic consequences of dealing with bycatch is one of 
the factors that determines the extent to which it is practicable to 
reduce bycatch or bycatch mortality in a particular fishery. The 
determination must be based on the net benefits to the Nation resulting 
from particular management measures. Language has been added to 
Sec. 600.350(d) introductory text to indicate that the net benefits to 
the Nation include, but are not limited to, negative impacts on 
affected stocks; incomes accruing to participants in directed fisheries 
in both the short and long term; incomes accruing to participants in 
fisheries that target the bycatch species; environmental consequences; 
non-use values of bycatch species, which include non-consumptive uses 
of bycatch species and existence values, as well as recreational 
values; and impacts on other marine organisms.
    Comment 29. One commenter believed that, by allowing the Councils 
to prioritize their actions to address bycatch, NMFS would effectively 
(and unfairly) penalize those fisheries that have voluntarily collected 
and submitted bycatch data. The commenter felt that bycatch reduction 
should be done in a coordinated fashion, involving all harvesters.
    Response. NMFS disagrees with the first part of the comment. The 
collection of such data was voluntarily initiated by the fishing 
industry because it was recognized that bycatch is a problem that must 
be dealt with; the fishing industry is to be commended for taking 
initiative in dealing with bycatch. The guidelines specifically list 
activities that the Councils must undertake to satisfy the requirements 
of this national standard. No fishery is exempt from the requirements. 
However, for practical reasons, the Councils will have to determine 
their priorities for development of management actions and the basis 
for setting those priorities.
    Comment 30. One commenter stated that non-selective, destructive 
gear--specifically longlines, gillnets, and trawls--ought to be 
specifically mentioned in the section on bycatch as gear to which 
special attention ought to be paid in the development of any fishery 
management measures.
    Response. NMFS disagrees. The Councils will need to prioritize 
their actions, not only with respect to various fisheries, but also to 
various gears. The Councils will need to determine, during the 
development of fishery management measures, which gears to allow and 
which ones need special attention. No change in the guidelines is 
necessary.
    Comment 31. Several commenters suggested that SAFE reports are 
important tools in minimizing bycatch and that a requirement be added 
that information on the amount and type of bycatch be summarized in the 
SAFE report.
    Response. NMFS agrees and has added appropriate language to 
Sec. 600.350(d)(2). NMFS notes that Sec. 600.315(e)(1)(ii) of the 
guidelines for national standard 2 already contains this requirement.
    Comment 32. Several commenters stated that the list of factors in 
Sec. 600.350(b)(3) is comprehensive and invites the Councils to use 
those factors as loopholes to avoid taking action. Commenters 
questioned why such a comprehensive list is needed for this standard 
and none of the others.
     Response. NMFS disagrees. The lack of complete and perfect 
information is

[[Page 24227]]

not an excuse for not taking action. Uncertainty concerning the 
desirable and undesirable effects of minimizing bycatch and bycatch 
mortality should be dealt with similarly. (See also the response to 
comment 35 under national standard 9).
    Comment 33. One commenter stated that there are no criteria or 
methods for establishing criteria for determining how much bycatch is 
too much.
    Response. NMFS disagrees. Section 600.350(d)(3) provides a list of 
criteria for evaluating the impacts of bycatch. Each Council must 
determine how much bycatch is too much by balancing the various factors 
that will maximize the net benefits to the Nation (see also the 
response to comment 24 under national standard 9). Language that 
includes the maximization of net benefits to the Nation has been added 
to Sec. 600.350(d)(3). The legislative history of the SFA includes the 
following floor statement by Congressman Young: ``'Practicable' 
requires an analysis of the cost of imposing a management action; the 
Congress does not intend to ...impose costs on fishermen and processors 
that cannot be reasonably met.''
    Comment 34. Several commenters stated that Councils should 
prioritize their actions to address those fisheries that have not only 
the greatest bycatch rate, but also the greatest amount of bycatch.
    Response. NMFS agrees that the Councils will need to prioritize 
their actions to address those fisheries where actions to reduce 
bycatch can have the greatest impact. Each Council will have to 
determine the basis for setting its priorities.
    Comment 35. One commenter stated that the final rule must clearly 
reflect that Councils are not constrained from acting when faced with 
uncertainty surrounding one or several items included in 
Sec. 600.350(d)(3).
    Response. NMFS agrees. The Councils must take action to ensure the 
sustainability of the Nation's marine fishery resources. National 
standard 2 specifically requires that conservation and management 
measures be based on the best scientific information available. Where 
there is uncertainty surrounding any of the items in 
Sec. 600.350(d)(3), Councils should adhere to the precautionary 
approach stated in the Food and Agriculture Organization of the United 
Nations (FAO) Code of Conduct for Responsible Fisheries (Article 6.5). 
The Code specifically states, ``The absence of adequate scientific 
information should not be used as a reason for postponing or failing to 
take measures to conserve target species, associated or dependent 
species and non-target species and their environment.'' Language to 
that effect has been added to Sec. 600.350(d)(3).
    Comment 36. Several commenters noted that requirements to implement 
monitoring programs in FMPs may prevent approval. Such requirements 
could be an administrative burden for the Councils and be very costly 
to implement.
    Response. NMFS disagrees. Section 303(a)(11) of the Magnuson-
Stevens Act specifically requires the Councils to establish, for each 
fishery, a ``standardized reporting methodology to assess the amount 
and type of bycatch occurring in the fishery.'' The statute makes no 
allowance for the financial or administrative burden of establishing 
such reporting programs. It is clear that, in order to be able to 
assess the amount and type of bycatch occurring in various fisheries, 
monitoring programs must be established.
    Comment 37. One commenter stated that data collection from all 
fishermen must be made a high priority.
    Response. NMFS agrees and notes that the uncertainty surrounding 
estimates of the types and amounts of bycatch cannot be reduced without 
the cooperation and involvement of all components of the fisheries.
National Standard 10
    Nine commenters commented specifically on national standard 10. All 
were positive and most substantive comments were directed at making the 
standard more restrictive. Several commenters gave unqualified support 
to the standard. One commenter urged that NMFS work aggressively with 
the Councils ``to ensure that safety is constantly considered in 
fishery management.''
    Comment 1: One commenter noted that no criteria were provided for 
the phrase ``to the extent practicable'' in national standard 10, as 
were provided for national standard 9.
    Response: NMFS disagrees. Section 600.355(b)(2) directly addresses 
these concerns.
    Comment 2: One commenter noted ``while it is stated clearly in the 
opening paragraph of the regulatory text (Sec. 600.355(b)(1)) that this 
standard [is] not meant to 'give preference to one method of managing a 
fishery over another,' the suggested mitigation management measures are 
replete with inappropriate implicit endorsement of ITQs (individual 
transferrable quotas) that directly undermine that provision.'' These 
references include ``limiting the number of participants in the 
fishery,'' ``spreading effort over time and area,'' and ``implementing 
management measures that reduce the race for fish.''
    Response: The mitigation measures do not necessarily endorse ITQs. 
While ITQs may be one way to solve some problems with safety of life at 
sea and reduce the ``race for fish,'' they are not the only way. 
Vessel/license limitation systems have been and are being adopted 
without ITQs, such as in the Alaska crab and groundfish fisheries. In 
New England, the use of ``days at sea'' has spread effort over time and 
area without creating a ``race for fish.'' The term ``race for fish'' 
was used in the discussion of the bill that became the SFA, to describe 
the intensive fisheries that have developed at the expense of safety. 
As a primary reason for the establishment of this national standard, 
NMFS believes the term captures the intent of Congress and the 
legislation.
    Comment 3: One commenter recommended that the national standard 10 
guidelines require that Councils establish mandatory, standardized, 
accurate, and complete injury reporting requirements.
    Response: NMFS agrees in part. Domestic fishing vessels are already 
required to report this information to the U.S. Coast Guard (USCG) 
under provisions at 46 CFR parts 4 and 28. This information can be made 
available through the USCG, and reports compared against vessels 
participating in the fisheries. Guidance on contents of SAFE reports at 
Sec. 600.315(e)(1)(ii) has been revised to include consideration of 
safety issues.
    Comment 4: One commenter recommended that the statement ``This 
standard is not meant to give preference to one method of managing a 
fishery over another,'' should be deleted or replaced by, ``While this 
standard is not meant to give preference to one method of managing a 
fishery over another, it should be considered a significant factor in 
allocation and other management decisions and the Council should 
provide rational justification why the safest method is not being 
used.'' Common sense would dictate that the safer management regime be 
used.
    Response: NMFS disagrees and believes the guidance, as proposed, is 
accurate.
    Comment 5: One commenter recommended that the term ``safety of 
human life at sea'' should be modified to read ``safety of human life 
and limb at sea'' to emphasis reduction in injuries as well as loss of 
life.
    Response: NMFS considers the term ``safety of human life at sea'' 
to include not only safety of life, but safety of limb and the general 
operating environment, as well, to the extent that fishery

[[Page 24228]]

management measures may affect that safety. The discussion of the term 
at Sec. 600.355(b)(3) has been revised to reflect this point.
    Comment 6: One commenter recommended that this standard require 
that an FMP specify qualifications for individuals who are responsible 
for maintaining and controlling the stability of a fishing or fish 
processing vessel.
    Response: Such a requirement is outside the scope of this 
rulemaking. Other than requiring employment and income information, 
neither NMFS nor the Councils have specified individual qualifications 
for fishermen. Individual professional qualifications for the master 
and crew come under the authority of the USCG, as specified by the 
Commercial Fishing Industry Vessel Safety Act. NMFS does have the 
authority to require permits of fishing vessel operators under the 
Magnuson-Stevens Act, section 303(b)(1)(B).
    Comment 7: One commenter recommended that this standard consider 
more than the stability of the vessel and include safety of machinery 
and processing equipment, as well. FMPs should require processing 
vessels to meet and maintain safety standards developed in consultation 
with the Department of Labor's Occupational Safety and Health 
Administration (OSHA) as a condition of participation in the fishery.
    Response: Onboard safety concerns, to the extent they are caused by 
fishery management measures, are addressed by the guidelines at 
Sec. 600.355(c)(2). As noted in the comment, the USCG and OSHA have the 
primary responsibility for machinery and processing safety on board 
fishing vessels. Vessels are already required to comply with those 
standards; additional FMP requirements would therefore be redundant.
    Comment 8: One commenter stated that Sec. 600.355(c)(3) does not 
direct the creation of a mechanism for fisheries to be closed due to 
adverse weather conditions.
    Response: While a mechanism to close, delay the opening of, or 
otherwise halt the fishery during adverse weather can improve safety, 
NMFS does not consider such a mechanism mandatory. Rather, it is one 
mitigation measure available to the Council, as noted in 
Sec. 600.355(e)(1).
    Comment 9: One commenter recommended that OSHA, the National 
Institute of Occupational Safety and Health, and the National 
Transportation Safety Board be consulted for vessel safety, in addition 
to the USCG.
    Response: NMFS does not believe that requiring consultations with 
all these agencies is necessary at this time. These agencies are 
outstanding sources of information on specific issues, and consultation 
with one or more of them may be appropriate in certain circumstances. 
However, routine consultation with these agencies is not necessary and 
would become burdensome to the Councils and to the agencies involved. 
NMFS encourages the Councils to use these and other groups, including 
industry groups, in formulating safer management measures.
    Comment 10: One commenter recommended that a risk analysis be 
conducted for future amendments that include allocations between gear 
types, inshore-offshore processing allocations, seasonal openings, area 
openings or closures, and possibly others.
    Response: NMFS does not believe that requiring a specific safety 
risk analysis for all these actions is necessary at this time. While a 
risk analysis may be appropriate in situations where there are a number 
of alternatives whose effects on safety are not clear, in others, the 
alternatives may be constrained by other national standard or legal 
restrictions, or their effects are very clear and a risk analysis is 
unnecessary. NMFS prefers to allow each Council to conduct a risk 
analysis at its option, based on consultations with the USCG and the 
fishing industry.

Classification

    OMB has determined this rule to be economically significant under 
E.O. 12866 because this rule provides guidance on implementing 
statutory changes that may have large economic impacts on specific 
sectors of the economy. Each amendment to an existing FMP and all new 
FMPs will include detailed analyses of the benefits and costs of the 
management programs under consideration to ensure compliance with E.O. 
12866.
    In addition, OMB has determined this rule to be ``major'' under the 
Small Business Regulatory Enforcement and Fairness Act Congressional 
Review provision (5 U.S.C. 801 et seq.). Pursuant to authority at 5 
U.S.C. 808(1), this major rule conducting a regulatory program for 
commercial and recreational activities related to fishing will be 
effective June 1, 1998.
    The main purpose of these guidelines, in carrying out the 1996 
amendments to the Magnuson-Stevens Act, is to reduce overfishing 
immediately, rebuild overfished stocks within a set timeframe, and 
prevent by catch and reduce mortality of unavoidable bycatch to the 
maximum extent possible. The effects of these guidelines can only be 
described qualitatively; quantified and monetized estimates of 
benefits, costs and other effects cannot be developed until specific 
regulatory actions are indentified and proposed. Changes in employment, 
regional economic development, and a variety of distributional concerns 
are examples of the important effects not otherwise captured in 
estimates of social costs and benefits.
    Producers will bear costs implementing programs and regulations 
developed under these guidelines to restore fisheries stocks. These 
costs will take a variety of forms, such as mandatory investments in 
new fishing gear to reduce bycatch; restrictions on the level of 
fishing effort, which raise average costs; and other measures intended 
to reduce the quantity of fish harvested. Consumers also will bear 
costs, primarily in the form of lost consumers' surplus resulting from 
reduced market supply and concomitant higher prices. These costs will 
rise to the extent that consumer tastes continue to evolve toward 
greater preference for fish and shellfish over other foods.
    Once fisheries stocks have recovered, producers will gain benefits 
in the form of reduced costs of production. Consumers also will benefit 
to the extent that restored stocks permit increases in the allowable 
harvest compatible with sustainable yield. Summed over all fisheries in 
the exclusive economic zone over the long term, the potential increase 
in net revenues is estimated at $2.9 billion annually. Social benefits 
will equal the fraction of this amount remaining after all costs are 
deducted.
    In the short-run, fisheries employment will likely fall as 
producers adapt to rules and restrictions undertaken to restore long-
term sustainability. These job losses will be at least partially offset 
by increases in employment elsewhere. Once fisheries stocks have 
recovered, however, fisheries employment could increase by up to 
300,000 jobs over present employment levels. As in the case of short-
term job losses, these employment gains will be at least partially 
offset by reductions in jobs elsewhere. Changes in employment do not 
translate directly into benefits or costs, however, and must be 
evaluated instead as a separate class of effects resulting from 
individual rules and regulations promulgated pursuant to this guidance.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule will not have a 
significant economic impact on a substantial

[[Page 24229]]

number of small entities. This rule adds to and updates the national 
standards and accompanying explanatory and interpretive language to 
implement statutory provisions of the SFA. The SFA's amendments to the 
national standards make it necessary for the Councils to examine their 
existing FMPs and all future proposed management measures to ensure 
that they comply with the national standards; FMPs found out of 
compliance will need to be amended. These guidelines are intended to 
provide direction and elaboration on compliance with the national 
standards and, in themselves, do not have the force of law. Should 
Councils propose regulations as a result of the SFA, those actions may 
affect small entities and could be subject to the requirement to 
prepare a Regulatory Flexibility Analysis at the time they are 
proposed. Any future effects on small entities that may ultimately 
result from amendments to FMPs to bring them into compliance with the 
Magnuson-Stevens Act would be speculative at this time. One comment was 
received regarding this determination; the commenter believed that the 
impacts of these guidelines would have a significant economic impact on 
a substantial number of small entities. However, as explained in the 
response to general comment 8 above, NMFS believes that, while 
significant impacts could result from future management actions, the 
guidelines themselves have no such effect. Furthermore, NMFS has no 
basis upon which to assess, at this time, the impacts of regulations 
that may result from these revisions to the guidelines, except in the 
broadest sense. As a result, a Regulatory Flexibility Analysis for this 
rule was not prepared.

List of Subjects in 50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, National Oceanic and Atmospheric 
Administration, Penalties, Reporting and recordkeeping requirements, 
Statistics.
Rolland A. Schmitten
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 600 is amended 
as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

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

    2. The part heading is revised to read as set forth above.
    3. In 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 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 as explained in 
this section.
    (1) Definitions. (i) ``MSY'' is the largest long-term average catch 
or yield that can be taken from a stock or stock complex under 
prevailing ecological and environmental conditions.
    (ii) ``MSY control rule'' means a harvest strategy which, if 
implemented, would be expected to result in a 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,

[[Page 24230]]

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 approximately 40 percent of this 
value may be a reasonable proxy for the MSY stock size, and the product 
of this stock size and the natural mortality rate may be a reasonable 
proxy for MSY.
    (d) Overfishing--(1) Definitions. (i) ``To overfish'' means to fish 
at a rate or level that jeopardizes the capacity of a stock or stock 
complex to produce MSY on a continuing basis.
    (ii) ``Overfishing'' occurs whenever a stock or stock complex is 
subjected to a rate or level of fishing mortality that jeopardizes the 
capacity of a stock or stock complex to produce MSY on a continuing 
basis.
    (iii) In the Magnuson-Stevens Act, the term ``overfished'' is used 
in two senses: First, to describe any stock or stock complex that is 
subjected to a rate or level of fishing mortality meeting the criterion 
in paragraph (d)(1)(i) of this section, and second, to describe any 
stock or stock complex whose size is sufficiently small that a change 
in management practices is required in order to achieve an appropriate 
level and rate of rebuilding. To avoid confusion, this section uses 
``overfished'' in the second sense only.
    (2) Specification of status determination criteria. Each FMP must 
specify, to the extent possible, objective and measurable status 
determination criteria for each stock or stock complex covered by that 
FMP and provide an analysis of how the status determination criteria 
were chosen and how they relate to reproductive potential. Status 
determination criteria must be expressed in a way that enables the 
Council and the Secretary to monitor the stock or stock complex and 
determine annually whether overfishing is occurring and whether the 
stock or stock complex is overfished. In all cases, status 
determination criteria must specify both of the following:
    (i) A maximum fishing mortality threshold or reasonable proxy 
thereof. The fishing mortality threshold may be expressed either as a 
single number or as a function of spawning biomass or other measure of 
productive capacity. The fishing mortality threshold must not exceed 
the fishing mortality rate or level associated with the relevant MSY 
control rule. Exceeding the fishing mortality threshold for a period of 
1 year or more constitutes overfishing.
    (ii) A minimum stock size threshold or reasonable proxy thereof. 
The stock size threshold should be expressed in terms of spawning 
biomass or other measure of productive capacity. To the extent 
possible, the stock size threshold should equal whichever of the 
following is greater: One-half the MSY stock size, or the minimum stock 
size at which rebuilding to the MSY level would be expected to occur 
within 10 years if the stock or stock complex were exploited at the 
maximum fishing mortality threshold specified under paragraph (d)(2)(i) 
of this section. Should the actual size of the stock or stock complex 
in a given year fall below this threshold, the stock or stock complex 
is considered overfished.
    (3) Relationship of status determination criteria to other national 
standards--(i) National standard 2. Status determination criteria must 
be based on the best scientific information available (see 
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 time frame (also see paragraph (e)(4)(ii) of this section). 
Status determination criteria need not be respecified.
    (ii) If environmental changes affect the long-term productive 
capacity of the stock or stock complex, one or more components of the 
status determination criteria must be respecified. Once status 
determination criteria have been respecified, fishing mortality may or 
may not have to be reduced, depending

[[Page 24231]]

on the status of the stock or stock complex with respect to the new 
criteria.
    (iii) If manmade environmental changes are partially responsible 
for a stock or stock complex being in an overfished condition, in 
addition to controlling effort, Councils should recommend restoration 
of habitat and other ameliorative programs, to the extent possible (see 
also the guidelines issued pursuant to section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat).
    (5) Secretarial approval of status determination criteria. 
Secretarial approval or disapproval of proposed status determination 
criteria will be based on consideration of whether the proposal:
    (i) Has sufficient scientific merit.
    (ii) Contains the elements described in paragraph (d)(2) of this 
section.
    (iii) Provides a basis for objective measurement of the status of 
the stock or stock complex against the criteria.
    (iv) Is operationally feasible.
    (6) Exceptions. There are certain limited exceptions to the 
requirement to prevent overfishing. Harvesting one species of a mixed-
stock complex at its optimum level may result in the overfishing of 
another stock component in the complex. A Council may decide to permit 
this type of overfishing only if all of the following conditions are 
satisfied:
    (i) It is demonstrated by analysis (paragraph (f)(6) of this 
section) that such action will result in long-term net benefits to the 
Nation.
    (ii) It is demonstrated by analysis that mitigating measures have 
been considered and that a similar level of long-term net benefits 
cannot be achieved by modifying fleet behavior, gear selection/
configuration, or other technical characteristic in a manner such that 
no overfishing would occur.
    (iii) The resulting rate or level of fishing mortality will not 
cause any species or evolutionarily significant unit thereof to require 
protection under the ESA.
    (e) Ending overfishing and rebuilding overfished stocks-- (1) 
Definition. A threshold, either maximum fishing mortality or minimum 
stock size, is being ``approached'' whenever it is projected that the 
threshold will be breached within 2 years, based on trends in fishing 
effort, fishery resource size, and other appropriate factors.
    (2) Notification. The Secretary will immediately notify a Council 
and request that remedial action be taken whenever the Secretary 
determines that:
    (i) Overfishing is occurring;
    (ii) A stock or stock complex is overfished;
    (iii) The rate or level of fishing mortality for a stock or stock 
complex is approaching the maximum fishing mortality threshold;
    (iv) A stock or stock complex is approaching its minimum stock size 
threshold; or
    (v) Existing remedial action taken for the purpose of ending 
previously identified overfishing or rebuilding a previously identified 
overfished stock or stock complex has not resulted in adequate 
progress.
    (3) Council action. Within 1 year of such time as the Secretary may 
identify that overfishing is occurring, that a stock or stock complex 
is overfished, or that a threshold is being approached, or such time as 
a Council may be notified of the same under paragraph (e)(2) of this 
section, the Council must take remedial action by preparing an FMP, FMP 
amendment, or proposed regulations. This remedial action must be 
designed to accomplish all of the following purposes that apply:
    (i) If overfishing is occurring, the purpose of the action is to 
end overfishing.
    (ii) If the stock or stock complex is overfished, the purpose of 
the action is to rebuild the stock or stock complex to the MSY level 
within an appropriate time frame.
    (iii) If the rate or level of fishing mortality is approaching the 
maximum fishing mortality threshold (from below), the purpose of the 
action is to prevent this threshold from being reached.
    (iv) If the stock or stock complex is approaching the minimum stock 
size threshold (from above), the purpose of the action is to prevent 
this threshold from being reached.
    (4) Constraints on Council action. (i) In cases where overfishing 
is occurring, Council action must be sufficient to end overfishing.
    (ii) In cases where a stock or stock complex is overfished, Council 
action must specify a time period for rebuilding the stock or stock 
complex that satisfies the requirements of section 304(e)(4)(A) of the 
Magnuson-Stevens Act.
    (A) A number of factors enter into the specification of the time 
period for rebuilding:
    (1) The status and biology of the stock or stock complex;
    (2) Interactions between the stock or stock complex and other 
components of the marine ecosystem (also referred to as ``other 
environmental conditions'');
    (3) The needs of fishing communities;
    (4) Recommendations by international organizations in which the 
United States participates; and
    (5) Management measures under an international agreement in which 
the United States participates.
    (B) These factors enter into the specification of the time period 
for rebuilding as follows:
    (1) The lower limit of the specified time period for rebuilding is 
determined by the status and biology of the stock or stock complex and 
its interactions with other components of the marine ecosystem, and is 
defined as the amount of time that would be required for rebuilding if 
fishing mortality were eliminated entirely.
    (2) If the lower limit is less than 10 years, then the specified 
time period for rebuilding may be adjusted upward to the extent 
warranted by the needs of fishing communities and recommendations by 
international organizations in which the United States participates, 
except that no such upward adjustment can result in the specified time 
period exceeding 10 years, unless management measures under an 
international agreement in which the United States participates dictate 
otherwise.
    (3) If the lower limit is 10 years or greater, then the specified 
time period for rebuilding may be adjusted upward to the extent 
warranted by the needs of fishing communities and recommendations by 
international organizations in which the United States participates, 
except that no such upward adjustment can exceed the rebuilding period 
calculated in the absence of fishing mortality, plus one mean 
generation time or equivalent period based on the species' life-history 
characteristics. For example, suppose a stock could be rebuilt within 
12 years in the absence of any fishing mortality, and has a mean 
generation time of 8 years. The rebuilding period, in this case, could 
be as long as 20 years.
    (C) A rebuilding program undertaken after May 1, 1998 commences as 
soon as the first measures to rebuild the stock or stock complex are 
implemented.
    (D) In the case of rebuilding plans that were already in place as 
of May 1, 1998, such rebuilding plans must be reviewed to determine 
whether they are in compliance with all requirements of the Magnuson-
Stevens Act, as amended by the Sustainable Fisheries Act.
    (iii) For fisheries managed under an international agreement, 
Council action must reflect traditional participation in the fishery, 
relative to other nations, by fishermen of the United States.
    (5) Interim measures. The Secretary, on his/her own initiative or 
in response

[[Page 24232]]

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 
together with its attendant contributions to the national, regional, 
and local economies, and utilizing the capacity of the Nation's fishery 
resources to meet nutritional needs.
    (ii) The benefits of recreational opportunities reflect the quality 
of both the recreational fishing experience and non-consumptive fishery 
uses such as ecotourism, fish watching, and recreational diving, and 
the contribution of recreational fishing to the national, regional, and 
local economies and food supplies.
    (iii) The benefits of protection afforded to marine ecosystems are 
those resulting from maintaining viable populations (including those of 
unexploited species), maintaining evolutionary and ecological processes 
(e.g., disturbance regimes, hydrological processes, nutrient cycles), 
maintaining the evolutionary potential of species and ecosystems, and 
accommodating human use.
    (3) Factors relevant to OY. Because fisheries have finite 
capacities, any attempt to maximize the measures of benefit described 
in paragraph (f)(2) of this section will inevitably encounter practical 
constraints. One of these is MSY. Moreover, various factors can 
constrain the optimum level of catch to a value less than MSY. The 
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 levels that vary with stock size. Such target 
harvest levels may be prescribed on the basis of an OY control rule 
similar to the MSY control rule described in paragraph (c)(1)(ii) of 
this section, but designed to achieve OY on average, rather than MSY. 
The annual harvest level obtained under an OY control rule must always 
be less than or equal to the harvest level that would be obtained under 
the MSY control rule.
    (iii) All fishing mortality must be counted against OY, including 
that resulting from bycatch, scientific research, and any other fishing 
activities.
    (iv) The OY specification should be translatable into an annual 
numerical estimate for the purposes of establishing any TALFF and 
analyzing impacts of the management regime. There should be a mechanism 
in the FMP for periodic reassessment of the OY specification, so that 
it is responsive to changing circumstances in the fishery.
    (v) The determination of OY requires a specification of MSY, which 
may not always be possible or meaningful. However, even where 
sufficient scientific data as to the biological characteristics of the 
stock do not exist,

[[Page 24233]]

or where the period of exploitation or investigation has not been long 
enough for adequate understanding of stock dynamics, or where frequent 
large-scale fluctuations in stock size diminish the meaningfulness of 
the MSY concept, the OY must still be based on the best scientific 
information available. When data are insufficient to estimate MSY 
directly, Councils should adopt other measures of productive capacity 
that can serve as reasonable proxies for MSY to the extent possible 
(also see paragraph (c)(3) of this section).
    (vi) In a mixed-stock fishery, specification of a fishery-wide OY 
may be accompanied by management measures establishing separate annual 
target harvest levels for the individual stocks. In such cases, the sum 
of the individual target levels should not exceed OY.
    (5) OY and the precautionary approach. In general, Councils should 
adopt a precautionary approach to specification of OY. A precautionary 
approach is characterized by three features:
    (i) Target reference points, such as OY, should be set safely below 
limit reference points, such as the catch level associated with the 
fishing mortality rate or level defined by the status determination 
criteria. Because it is a target reference point, OY does not 
constitute an absolute ceiling, but rather a desired result. An FMP 
must contain conservation and management measures to achieve OY, and 
provisions for information collection that are designed to determine 
the degree to which OY is achieved on a continuing basis--that is, to 
result in a long-term average catch equal to the long-term average OY, 
while meeting the status determination criteria. These measures should 
allow for practical and effective implementation and enforcement of the 
management regime, so that the harvest is allowed to reach OY, but not 
to exceed OY by a substantial amount. The Secretary has an obligation 
to implement and enforce the FMP so that OY is achieved. If management 
measures prove unenforceable--or too restrictive, or not rigorous 
enough to realize OY--they should be modified; an alternative is to 
reexamine the adequacy of the OY specification. Exceeding OY does not 
necessarily constitute overfishing. However, even if no overfishing 
resulted from exceeding OY, continual harvest at a level above OY would 
violate national standard 1, because OY was not achieved on a 
continuing basis.
    (ii) A stock or stock complex that is below the size that would 
produce MSY should be harvested at a lower rate or level of fishing 
mortality than if the stock or stock complex were above the size that 
would produce MSY.
    (iii) Criteria used to set target catch levels should be explicitly 
risk averse, so that greater uncertainty regarding the status or 
productive capacity of a stock or stock complex corresponds to greater 
caution in setting target catch levels. Part of the OY may be held as a 
reserve to allow for factors such as uncertainties in estimates of 
stock size and DAH. If an OY reserve is established, an adequate 
mechanism should be included in the FMP to permit timely release of the 
reserve to domestic or foreign fishermen, if necessary.
    (6) Analysis. An FMP must contain an assessment of how its OY 
specification was determined (section 303(a)(3) of the Magnuson-Stevens 
Act). It should relate the explanation of overfishing in paragraph (d) 
of this section to conditions in the particular fishery and explain how 
its choice of OY and conservation and management measures will prevent 
overfishing in that fishery. A Council must identify those economic, 
social, and ecological factors relevant to management of a particular 
fishery, then evaluate them to determine the amount, if any, by which 
MSY exceeds OY. The choice of a particular OY must be carefully defined 
and documented to show that the OY selected will produce the greatest 
benefit to the Nation. If overfishing is permitted under paragraph 
(d)(6) of this section, the assessment must contain a justification in 
terms of overall benefits, including a comparison of benefits under 
alternative management measures, and an analysis of the risk of any 
species or ecologically significant unit thereof reaching a threatened 
or endangered status, as well as the risk of any stock or stock complex 
falling below its minimum stock size threshold.
    (7) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens 
Act provides that fishing by foreign nations is limited to that portion 
of the OY that will not be harvested by vessels of the United States.
    (i) DAH. Councils must consider the capacity of, and the extent to 
which, U.S. vessels will harvest the OY on an annual basis. Estimating 
the amount that U.S. fishing vessels will actually harvest is required 
to determine the surplus.
    (ii) DAP. Each FMP must assess the capacity of U.S. processors. It 
must also assess the amount of DAP, which is the sum of two estimates: 
The estimated amount of U.S. harvest that domestic processors will 
process, which may be based on historical performance or on surveys of 
the expressed intention of manufacturers to process, supported by 
evidence of contracts, plant expansion, or other relevant information; 
and the estimated amount of fish that will be harvested by domestic 
vessels, but not processed (e.g., marketed as fresh whole fish, used 
for private consumption, or used for bait).
    (iii) JVP. When DAH exceeds DAP, the surplus is available for JVP. 
JVP is derived from DAH.
    5. In 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 information concerning the most recent 
biological condition of stocks and the marine ecosystems in the FMU and 
the social and economic condition of the recreational and commercial 
fishing interests, fishing communities, and the fish processing 
industries. It summarizes, on a periodic basis, the best available 
scientific information concerning the past, present, and possible 
future condition of the stocks, marine ecosystems, and fisheries being 
managed under Federal regulation.
* * * * *
    (ii) The SAFE report provides information to the Councils for 
determining annual harvest levels from each stock, documenting 
significant trends or changes in the resource, marine ecosystems, and 
fishery over time, and assessing the relative success of existing state 
and Federal fishery management programs. Information on bycatch and 
safety for each fishery should also be summarized. In addition, the 
SAFE report may be used to update or expand previous environmental and 
regulatory impact documents, and ecosystem and habitat descriptions.
* * * * *

[[Page 24234]]

    (3) Each SAFE report should contain a description of the maximum 
fishing mortality threshold and the minimum stock size threshold for 
each stock or stock complex, along with information by which the 
Council may determine:
    (i) Whether overfishing is occurring with respect to any stock or 
stock complex, whether any stock or stock complex is overfished, 
whether the rate or level of fishing mortality applied to any stock or 
stock complex is approaching the maximum fishing mortality threshold, 
and whether the size of any stock or stock complex is approaching the 
minimum stock size threshold.
    (ii) Any management measures necessary to provide for rebuilding an 
overfished stock or stock complex (if any) to a level consistent with 
producing the MSY in such fishery.
    (4) Each SAFE report may contain additional economic, social, 
community, essential fish habitat, and ecological information pertinent 
to the success of management or the achievement of objectives of each 
FMP.
* * * * *
    6. In 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 considering 
efficient utilization of fishery resources, this standard highlights 
one way that a fishery can contribute to the Nation's benefit with the 
least cost to society: Given a set of objectives for the fishery, an 
FMP should contain management measures that result in as efficient a 
fishery as is practicable or desirable.
* * * * *
    (c) Limited access. A ``system for limiting access,'' which is an 
optional measure under section 303(b) of the Magnuson-Stevens Act, is a 
type of allocation of fishing privileges that may be considered to 
contribute to economic efficiency or conservation. * * *
    (1) * * * Two forms (i.e., Federal fees for licenses or permits in 
excess of administrative costs, and taxation) are not permitted under 
the 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 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

[[Page 24235]]

needs, and includes fishing vessel owners, operators, and crew, and 
fish processors that are based in such communities. A fishing community 
is a social or economic group whose members reside in a specific 
location and share a common dependency on commercial, recreational, or 
subsistence fishing or on directly related 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 must examine the social and economic 
importance of fisheries to communities potentially affected by 
management measures. For example, severe reductions of harvests for 
conservation purposes may decrease employment opportunities for 
fishermen and processing plant workers, thereby adversely affecting 
their families and communities. Similarly, a management measure that 
results in the allocation of fishery resources among competing sectors 
of a fishery may benefit some communities at the expense of others.
    (2) An appropriate vehicle for the analyses under this standard is 
the fishery impact statement required by section 303(a)(9) of the 
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 two ways, impede efforts to protect marine 
ecosystems and achieve sustainable fisheries and the full benefits they 
can provide to the Nation. First, bycatch can increase substantially 
the uncertainty concerning total fishing-related mortality, which makes 
it more difficult to assess the status of stocks, to set the 
appropriate OY and define overfishing levels, and to ensure that OYs 
are attained and overfishing levels are not exceeded. Second, bycatch 
may also preclude other more productive uses of fishery resources.
    (c) Definition--Bycatch. The term ``bycatch'' means fish that are 
harvested in a fishery, but that are not sold or kept for personal use. 
Bycatch includes the discard of whole fish at sea or elsewhere, 
including economic discards and regulatory discards, and fishing 
mortality due to an encounter with fishing gear that does not result in 
capture of fish (i.e., unobserved fishing mortality). Bycatch does not 
include any fish that legally are retained in a fishery and kept for 
personal, tribal, or cultural use, or that enter commerce through sale, 
barter, or trade. Bycatch does not include fish released alive under a 
recreational catch-and-release fishery management program. A catch-and-
release fishery management program is one in which the retention of a 
particular species is prohibited. In such a program, those fish 
released alive would not be considered bycatch. Bycatch also does not 
include Atlantic highly migratory species harvested in a commercial 
fishery that are not regulatory discards and that are tagged and 
released alive under a scientific tag-and-release program established 
by the Secretary.
    (d) Minimizing bycatch and bycatch mortality. The priority under 
this standard is first to avoid catching bycatch species where 
practicable. Fish that are bycatch and cannot be avoided must, to the 
extent practicable, be returned to the sea alive. Any proposed 
conservation and management measure that does not give priority to 
avoiding the capture of bycatch species must be supported by 
appropriate analyses. In their evaluation, the Councils must consider 
the net benefits to the Nation, which include, but are not limited to: 
Negative impacts on affected stocks; incomes accruing to participants 
in directed fisheries in both the short and long term; incomes accruing 
to participants in fisheries that target the bycatch species; 
environmental consequences; non-market values of bycatch species, which 
include non-consumptive uses of bycatch species and existence values, 
as well as recreational values; and impacts on other marine organisms. 
To evaluate conservation and management measures relative to this and 
other national standards, as well as to evaluate total fishing 
mortality, Councils must--
    (1) Promote development of a database on bycatch and bycatch 
mortality in the fishery to the extent practicable. A review and, where 
necessary, improvement of data collection methods, data sources, and 
applications of data must be initiated for each fishery to determine 
the amount, type, disposition, and other characteristics of bycatch and 
bycatch mortality in each fishery for purposes of this standard and of 
section 303(a)(11) and (12) of the Magnuson-Stevens Act. Bycatch should 
be categorized to focus on management responses necessary to minimize 
bycatch and bycatch mortality to the extent practicable. When 
appropriate, management measures, such as at-sea monitoring programs, 
should be developed to meet these information needs.
    (2) For each management measure, assess the effects on the amount 
and type of bycatch and bycatch mortality in the fishery. Most 
conservation and management measures can affect the amounts of bycatch 
or bycatch mortality in a fishery, as well as the extent to

[[Page 24236]]

which further reductions in bycatch are practicable. In analyzing 
measures, including the status quo, Councils should assess the impacts 
of minimizing bycatch and bycatch mortality, as well as consistency of 
the selected measure with other national standards and applicable laws. 
The benefits of minimizing bycatch to the extent practicable should be 
identified and an assessment of the impact of the selected measure on 
bycatch and bycatch mortality provided. Due to limitations on the 
information available, fishery managers may not be able to generate 
precise estimates of bycatch and bycatch mortality or other effects for 
each alternative. In the absence of quantitative estimates of the 
impacts of each alternative, Councils may use qualitative measures. 
Information on the amount and type of bycatch should be summarized in 
the SAFE reports.
    (3) Select measures that, to the extent practicable, will minimize 
bycatch and bycatch mortality. (i) A determination of whether a 
conservation and management measure minimizes bycatch or bycatch 
mortality to the extent practicable, consistent with other national 
standards and maximization of net benefits to the Nation, should 
consider the following factors:
    (A) Population effects for the bycatch species.
    (B) Ecological effects due to changes in the bycatch of that 
species (effects on other species in the ecosystem).
    (C) Changes in the bycatch of other species of fish and the 
resulting population and ecosystem effects.
    (D) Effects on marine mammals and birds.
    (E) Changes in fishing, processing, disposal, and marketing costs.
    (F) Changes in fishing practices and behavior of fishermen.
    (G) Changes in research, administration, and enforcement costs and 
management effectiveness.
    (H) Changes in the economic, social, or cultural value of fishing 
activities and nonconsumptive uses of fishery resources.
    (I) Changes in the distribution of benefits and costs.
    (J) Social effects.
    (ii) The Councils should adhere to the precautionary approach found 
in the Food and Agriculture Organization of the United Nations (FAO) 
Code of Conduct for Responsible Fisheries (Article 6.5), which is 
available from the Director, Publications Division, FAO, Viale delle 
Terme di Caracalla, 00100 Rome, Italy, when faced with uncertainty 
concerning any of the factors listed in this paragraph (d)(3).
    (4) Monitor selected management measures. Effects of implemented 
measures should be evaluated routinely. Monitoring systems should be 
established prior to fishing under the selected management measures. 
Where applicable, plans should be developed and coordinated with 
industry and other concerned organizations to identify opportunities 
for cooperative data collection, coordination of data management for 
cost efficiency, and avoidance of duplicative effort.
    (e) Other considerations. Other applicable laws, such as the MMPA, 
the ESA, and the Migratory Bird Treaty Act, require that Councils 
consider the impact of conservation and management measures on living 
marine resources other than fish; i.e., marine mammals and birds.


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 and the protection from injury of persons aboard the 
vessel are considered the same as ``safety of human life at sea. The 
safety of a vessel and the people aboard is ultimately the 
responsibility of the master of that vessel. Each master makes many 
decisions about vessel maintenance and loading and about the 
capabilities of the vessel and crew to operate safely in a variety of 
weather and sea conditions. This national standard does not replace the 
judgment or relieve the responsibility of the vessel master related to 
vessel safety. The Councils, the USCG, and NMFS, through the 
consultation process of paragraph (d) of this section, will review all 
FMPs, amendments, and regulations during their development to ensure 
they recognize any impact on the safety of human life at sea and 
minimize or mitigate that impact where practicable.
    (c) Safety considerations. The following is a non-inclusive list of 
safety considerations that should be considered in evaluating 
management measures under national standard 10.
    (1) Operating environment. Where and when a fishing vessel operates 
is partly a function of the general climate and weather patterns of an 
area. Typically, larger vessels can fish farther offshore and in more 
adverse weather conditions than smaller vessels. An FMP should try to 
avoid creating situations that result in vessels going out farther, 
fishing longer, or fishing in weather worse than they generally would 
have in the absence of management measures. Where these conditions are 
unavoidable, management measures should mitigate these effects, 
consistent with the overall management goals of the fishery.
    (2) Gear and vessel loading requirements. A fishing vessel operates 
in a very dynamic environment that can be an extremely dangerous place 
to work. Moving heavy gear in a seaway creates a dangerous situation on 
a vessel. Carrying extra gear can also significantly reduce the 
stability of a fishing vessel, making it prone to capsizing. An FMP 
should consider the safety and stability of fishing vessels when 
requiring specific gear or requiring the removal of gear from the 
water. Management measures should reflect a sensitivity to these issues 
and provide methods of mitigation of these situations wherever 
possible.
    (3) Limited season and area fisheries. Fisheries where time 
constraints for harvesting are a significant factor and with no 
flexibility for weather, often called ``derby'' fisheries, can create 
serious safety problems. To participate fully in such a fishery, 
fishermen may fish in bad weather and overload their vessel with catch 
and/or gear. Where these conditions exist, FMPs should attempt to 
mitigate these effects and avoid them in new management regimes, as 
discussed in paragraph (e) of this section.
    (d) Consultation. During preparation of any FMP, FMP amendment, or 
regulation that might affect safety of human life at sea, the Council 
should consult with the USCG and the fishing industry as to the nature 
and extent of any adverse impacts. This consultation may be done 
through a Council advisory panel, committee, or other review of the

[[Page 24237]]

FMP, FMP amendment, or regulations. Mitigation, to the extent 
practicable, and other safety considerations identified in paragraph 
(c) of this section should be included in the FMP.
    (e) Mitigation measures. There are many ways in which an FMP may 
avoid or provide alternative measures to reduce potential impacts on 
safety of human life at sea. The following is a list of some factors 
that could be considered when management measures are developed:
    (1) Setting seasons to avoid hazardous weather.
    (2) Providing for seasonal or trip flexibility to account for bad 
weather (weather days).
    (3) Allowing for pre- and post-season ``soak time'' to deploy and 
pick up fixed gear, so as to avoid overloading vessels with fixed gear.
    (4) Tailoring gear requirements to provide for smaller or lighter 
gear for smaller vessels.
    (5) Avoiding management measures that require hazardous at-sea 
inspections or enforcement if other comparable enforcement could be 
accomplished as effectively.
    (6) Limiting the number of participants in the fishery.
    (7) Spreading effort over time and area to avoid potential gear 
and/or vessel conflicts.
    (8) Implementing management measures that reduce the race for fish 
and the resulting incentives for fishermen to take additional risks 
with respect to vessel safety.
[FR Doc. 98-11471 Filed 4-30-98; 8:45 am]
BILLING CODE 3510-22-F