[Federal Register Volume 67, Number 75 (Thursday, April 18, 2002)]
[Proposed Rules]
[Pages 19154-19155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9462]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[I.D. 040202C]


Magnuson-Stevens Act Provisions, Subpart H; General Provisions 
for Domestic Fishing

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

ACTION: Notice of receipt of petition for rulemaking and request for 
comments.

-----------------------------------------------------------------------

SUMMARY: NOAA announces receipt of a petition for rulemaking under the 
Administrative Procedure Act. Oceana, a non-governmental organization 
concerned with the environmental health of the oceans, has petitioned 
the U.S. Department of Commerce to promulgate immediately a rule to 
establish a program to count, cap, and control bycatch in U.S. 
fisheries. The Oceana petition asserts that NMFS is not complying with 
its statutory obligations to monitor and minimize bycatch under the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA), the 
Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), 
and the Migratory Bird Treaty Act (MBTA). The petition seeks a 
regulatory program that includes a workplan for observer coverage 
sufficient to provide statistically reliable bycatch estimates in all 
fisheries, the incorporation of bycatch estimates into restrictions on 
fishing, the placing of limits on directed catch and bycatch in each 
fishery with provision for closure upon attainment of either limit, and 
bycatch assessment and reduction plans as a requirement for all 
commercial and recreational fisheries.

DATES: Comments will be accepted through June 17, 2002.

ADDRESSES: Copies of the petition are available, and written comments 
on the need for such a regulation, its objectives, alternative 
approaches, and any other comments may be addressed to William T. 
Hogarth, Ph.D., Assistant Administrator for Fisheries, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910; telephone 301-713-2239. Comments 
may also be sent via fax to 301-713-1193, attn: Val Chambers. Comments 
will not be accepted if submitted via e-mail or Internet.

FOR FURTHER INFORMATION CONTACT: Val Chambers, telephone 301-713-2341, 
fax 301-713-1193, e-mail [email protected].

SUPPLEMENTARY INFORMATION: The petition filed by Oceana states that 
wasteful large-scale bycatch of birds, mammals, turtles, and fish is 
occurring in the United States and worldwide. The petition cites 
scientific estimates of bycatch poundage and indicates bycatch of a 
much larger magnitude. The petition asserts that NMFS is allowing this 
wastage to continue by not meeting its legal obligations for bycatch 
under the MSA, ESA, MMPA, and the MBTA.
    The petition cites specific legal responsibilities of NMFS for 
bycatch under each of these statutes and concludes that NMFS must 
count, cap, and control bycatch under the MSA, ESA, and MMPA and that 
NMFS must monitor and report bycatch of seabirds that occurs in fishing 
operations and take steps to reduce seabird bycatch. For the MSA and 
related regulations and Federal Court interpretations, the petition 
cites national standard 9 and other requirements for minimizing bycatch 
and related mortality, including a standardized reporting methodology 
for bycatch. The petition concludes that any FMP or regulation prepared 
to implement an FMP must contain measures to minimize bycatch in 
fisheries to the extent practicable and argues that greater observer 
coverage is required. For the ESA, the petition cites the prohibition 
on taking endangered species and protection of threatened species, 
including recovery plans to guide regulatory efforts, as well as 
consultation requirements and incidental take statements. For the MMPA, 
the petition cites requirements for a regulatory system to avoid and 
minimize takes of marine mammals reducing mortality or serious injury 
to insignificant levels, as well as take reduction plans and monitoring 
of marine mammal takes. For the MBTA, the petition cites the 
prohibition on taking any migratory bird, including seabirds, except as 
permitted by regulations issued by the Department of the Interior, and 
cites Federal case law and Executive Order 13186 as requirements that 
NMFS ensure that fishery management plans approved by NMFS comply with 
the MBTA. The petition also refers to the NMFS-issued National Plan of 
Action for reducing seabird bycatch and the need to prepare a national 
seabird bycatch assessment.
    The exact and complete assertions of nonconformance with Federal 
law are contained in the text of Oceana's petition which is available 
via internet at the following NMFS web address: http://www.nmfs/noaa.gov/sfa/sfweb/index.htm. Also, anyone may obtain a copy of the 
petition by contacting NMFS at the above address.
    The petition specifically requests that NMFS immediately undertake 
a rulemaking to meet its obligations under the above statutory 
authorities and that such rulemaking include the following four 
actions:
    ``1. Develop and implement a workplan for placing observers on 
enough fishing trips to provide statistically reliable bycatch 
estimates in all fisheries. This task involves several steps (taking 
into account the diversity of vessel category, gears used, and fishing 
region): (a) determining how many fishing trips must be observed, where 
observers should be stationed, and other details; (b) identifying 
funding sources to support such

[[Page 19155]]

observer coverage, including taxpayer subsidies, taxing landings or 
user fees; and (c) hiring, training, and deploying the necessary 
observers.
    ``2. Incorporate reasonable estimates of bycatch into all total 
allowable catch levels and other restrictions on fishing.
    ``3. Set absolute limits on the amount of directed catch and 
bycatch (including non-fish bycatch) that can occur in each fishery, 
and close the fishery when the applicable catch or bycatch limit 
(whichever is reached first) is met.
    ``4. Within 12 months of initiating rulemaking, develop, approve, 
and implement bycatch assessment and reduction plans for commercial and 
recreational fisheries. Such plans should include, at minimum, (a) an 
assessment of the fishery according to its bycatch, including its 
types, levels, and rates of bycatch on a per-gear basis and the impact 
of that bycatch on bycaught species and the surrounding environment; 
(b) a description of the level and type of observer coverage necessary 
accurately to characterize total mortality (including bycatch) in the 
fishery; (c) bycatch reduction targets and the amount of directed and 
bycatch mortality allowed in each fishery to meet the target; and (d) 
types of bycatch reduction measures (such as closed areas, gear 
modifications, or effort reduction) that will be employed in the 
fishery, including incentives for those who use gears that produce less 
bycatch. Beginning 12 months after rulemaking commences, NMFS should 
not permit fishing in any fishery that lacks a functioning bycatch 
plan.''
    The Assistant Administrator for Fisheries has determined that the 
petition contains enough information to enable NMFS to consider the 
substance of the petition. NMFS will consider public comments received 
in determining whether or not to proceed with the development of the 
regulations requested by Oceana. To this end, NMFS, by separate letter, 
has requested each of the Regional Fishery Management Councils to 
assist in evaluating this petition. Upon determining whether or not to 
initiate the requested rulemaking, the Assistant Administrator for 
Fisheries, NOAA, will publish a notice of the agency's final 
disposition of the Oceana petition request in the Federal Register.

    Dated: April 11, 2002.
John H. Dunnigan,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-9462 Filed 4-17-02; 8:45 am]
BILLING CODE 3510-22-S