[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 6317-6338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00405]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 1512-01999-6969-02]
RIN 0648-BF51
Standardized Bycatch Reporting Methodology
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule interprets and provides guidance on the
requirement of the Magnuson-Stevens Fishery Conservation and Management
Act (MSA) that all fishery management plans (FMPs), with respect to any
fishery, establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in a fishery. The final rule
establishes requirements and provides guidance to regional fishery
management councils and the Secretary of Commerce regarding the
development, documentation, and review of such methodologies, commonly
referred to as Standardized Bycatch Reporting Methodologies (SBRMs).
DATES: Effective February 21, 2017.
ADDRESSES: Copies of the Categorical Exclusion/Regulatory Impact Review
(RIR)/Final Regulatory Flexibility Act Analysis (FRFAA) prepared for
this action can be obtained from: Karen Abrams, National Marine
Fisheries Service, 1315 East West Highway, Room 13461, Silver Spring,
MD 20910. An electronic copy of the CE/RIR/RFAA documents as well as
copies of public comments received can be viewed at the Federal e-
rulemaking portal: http://www.regulations.gov/ (Docket ID: NOAA-NMFS-
2012-0092).
FOR FURTHER INFORMATION CONTACT: Karen Abrams, 301-427-8508, or by
email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 303(a)(11) of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) requires that any fishery management plan (FMP)
prepared by a regional fishery management council (Council) or the
Secretary of Commerce with respect to any fishery establish a
standardized reporting methodology to assess the amount and type of
bycatch occurring in the fishery, and include conservation and
management measures that, to the extent practicable, minimize bycatch
and bycatch mortality (16 U.S.C. 1853(a)(11)). See also 16 U.S.C.
1854(c) and (g) (authorizing Secretarial FMPs. Hereafter, ``Council''
includes the Secretary of Commerce as applicable when preparing FMPs or
amendments under 16 U.S.C. 1854(c) and (g). See 50 CFR 600.305(d). This
standardized reporting methodology is commonly referred to as a
``Standardized Bycatch Reporting Methodology'' (SBRM). This final rule,
which is promulgated pursuant to 16 U.S.C. 1855(d), sets forth NMFS'
interpretation of section 303(a)(11) and establishes national
requirements and guidance for developing, documenting, and reviewing
SBRMs. A proposed rule for this action was published on February 25,
2016 (81 FR 9413), with public comments accepted through April 25,
2016.
Section 303(a)(11) was added to the MSA by the Sustainable
Fisheries Act of 1996 (SFA). The MSA does not define ``standardized
reporting methodology'' or any of the words contained within the
phrase. Similar to section 303(a)(11), National Standard 9 (NS9) (16
U.S.C. 1851(a)(9)) requires that conservation and management measures
``shall, to the extent practicable, (A) minimize bycatch and (B) to the
extent bycatch cannot be avoided, minimize the mortality of such
bycatch.'' However, NS9 does not address SBRM.
Prior to this rulemaking, NMFS never issued regulations that set
forth the basic requirements of the SBRM provision. To implement the
1996 SFA Amendments, NMFS developed NS9 guidelines in 1998, and amended
these guidelines in 2008. See 50 CFR 600.350. The guidelines provide
several clarifications about bycatch requirements under the MSA, but do
not interpret the SBRM requirement. In 2004, NMFS published Evaluating
Bycatch: A National Approach to Standardized Bycatch Monitoring
Programs (NOAA Technical Memorandum NMFS-F/SPO-66, October 2004,
hereafter referred to as Evaluating Bycatch), a report that was
prepared by the agency's National Working Group on Bycatch (available
at http://www.nmfs.noaa.gov/by_catch/SPO_final_rev_12204.pdf). The
report did not provide, or purport to provide, the agency's
interpretation of the basic requirements of complying with MSA section
303(a)(11). See Evaluating Bycatch at Chapters 3, 4, and 5 and Appendix
5 (discussing regional bycatch and fisheries issues, reporting/
monitoring measures, and precision goals for bycatch estimates, but
noting that goals ``may in some instances exceed minimum statutory
requirements'').
Additional background information--including NMFS' rationale for
developing this rule, statutory and historical background, and the
purpose and scope of the rule--can be found in the proposed rule that
published on February 25, 2016 (81 FR 9413). Copies are available from
NMFS (see ADDRESSES), or can be viewed electronically at the Federal E-
Rulemaking portal for this action: http://www.regulations.gov.
Separate from this rulemaking, which solely addresses reporting
methodologies for bycatch as defined under the MSA, NMFS has engaged in
a broad range of activities since the 1970s to address its bycatch-
related responsibilities under the MSA, the Marine Mammal Protection
Act (MMPA), the Endangered Species Act (ESA), and other relevant
statutes and international agreements. More specifically, NMFS, the
Councils, and multiple partners have implemented management measures to
minimize bycatch and bycatch mortality in fisheries (e.g., time and
area closures); developed and/or researched bycatch reduction
technologies for fishing gear (e.g., turtle excluder devices and circle
hooks); convened multi-stakeholder take reduction teams to address
marine mammal bycatch; supported national research programs, such as
the Bycatch Reduction Engineering Program; promoted the adoption of
bycatch reduction measures in international regional fishery management
organizations; and published a series of biennial National Bycatch
Reports and Updates since 2011 that provide a historical summary of
fishery- and species-specific bycatch estimates on an annual basis for
major U.S. fisheries around the country, to cite a few examples. NMFS
also has a database from which members of the public can query bycatch
estimates from the National Bycatch Reports and Updates. See http://www.st.nmfs.noaa.gov/observer-home/first-edition-update-1. To build on
its bycatch efforts, this year in February 2016, NMFS issued for public
comment a draft National Bycatch Reduction Strategy that aims to
coordinate NMFS' efforts to address bycatch under the various mandates
it is charged with carrying out to further advance its work in
addressing bycatch both domestically and internationally.
[[Page 6318]]
NMFS received numerous public comments on the draft strategy and is
working to address those comments and finalize the strategy. For more
information on NMFS' 40 year commitment to addressing bycatch, see
http://noaa.maps.arcgis.com/apps/MapSeries/index.html?appid=e5d4037090054fa2843a6ab522c9b73b.
I. Overview of the Major Aspects of the Final Rule
Section 600.1600 explains the purpose and scope of an SBRM and
Sec. 600.1610 clarifies the requirements for establishing and
reviewing SBRMs. The rule requires that an FMP identify the required
procedure or procedures that constitute the SBRM for the fishery. The
rule also requires that the FMP, or fisheries research plan authorized
under 16 U.S.C. 1862, explain how the SBRM meets the purpose described
under Sec. 600.1600, based on an analysis of (1) the characteristics
of the bycatch occurring in the fishery, (2) the feasibility of the
methodology from cost, technical and operational perspectives, (3) the
uncertainty of the data resulting from the methodology, and (4) how the
data resulting from the methodology are used to assess the amount and
type of bycatch occurring in the fishery. Finally, the rule provides
that a Council should give guidance to NMFS on how to adjust the
implementation of the SBRM consistent with the FMP, and requires
periodic reviews of SBRMs.
Below is further explanation of the major aspects of the final
rule. In addition to streamlining the final rule to improve clarity and
organization, NMFS has made several changes in the final rule to
respond to public comments. The changes are discussed below and in
sections II (Response to Comments) and III (Changes from Proposed
Action) of this preamble.
A. Scope of Rule
Establishing an SBRM is a requirement of the MSA. Therefore, this
rule is based on the MSA's definition of ``bycatch,'' which includes
fish which are harvested in a fishery, but which are not sold or kept
for personal use, and includes economic discards and regulatory
discards. Such term does not include fish released alive under a
recreational catch and release fishery management program. 16 U.S.C.
1802(2). NMFS' NS9 guidelines clarify that ``[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.'' 50 CFR 600.350(c)(2).
NMFS received several comments on the rule's definition of ``bycatch.''
To clarify its intent to rely on the MSA's definition of ``bycatch,''
NMFS has revised the final rule at Sec. 600.1605(b) to add reference
to the MSA definition. Summaries of the comments received on the
definition of bycatch and NMFS' responses may be found in section II
(Response to Comments) of this preamble.
B. Purpose of an SBRM
Based on the statutory language of section 303(a)(11) of the MSA,
the final rule clarifies in Sec. 600.1600 that the purpose of an SBRM
is to collect, record, and report bycatch data in a fishery that, in
conjunction with other information, are used to assess the amount and
type of bycatch occurring in the fishery and inform the development of
conservation and management measures that, to the extent practicable,
minimize bycatch and bycatch mortality. Consistent with this purpose,
Sec. 600.1605(a) defines ``standardized reporting methodology'' with
reference to procedures used to collect, record, and report bycatch
data in a fishery. Section 600.1605(a) clarifies that bycatch
assessment procedures are not part of an SBRM, and thus do not need to
be described as part of the methodology in an FMP. A Council may
include such a description if it so chooses and could provide this
description by incorporating by reference information from a Stock
Assessment and Fishery Evaluation (SAFE) report or other documents.
As explained in the proposed rule (see 81 FR 9413 at 9414-9415),
activities to collect, record, and report bycatch data in a fishery are
connected to, but distinct from, the methods used to assess bycatch and
the development of measures to minimize bycatch or bycatch mortality.
NMFS received numerous comments on the linkage between bycatch data
collection and bycatch assessment. Having carefully considered public
comment on this issue, NMFS has decided to maintain the distinction
between data collection and bycatch assessment in the final rule. NMFS
continues to believe that it is important to be clear about the key
policy choices and objectives associated with establishing an SBRM, and
not confuse those choices with statistical and technical approaches for
estimating bycatch that are inherently scientific and data dependent,
or with the policy choices associated with developing measures to
minimize bycatch or bycatch mortality. See ``Activities Associated with
an SBRM'' in the proposed rule and ``Distinction Between Data
Collection and Data Assessment'' in section II of this preamble for
further information and explanation of this issue.
While recognizing the distinction between data collection and
bycatch assessment, NMFS affirms the important linkage between these
activities. To reinforce this link, NMFS has revised Sec.
600.1610(a)(2)(iv) to require a Council to address how the data
resulting from an SBRM are used to assess the amount and type of
bycatch in the fishery and to consult with its Science and Statistical
Committee (SSC) and/or regional NMFS science centers on SBRM design
considerations (e.g., data elements, sampling designs, sample sizes,
and reporting frequency). NMFS also cross-references this requirement
in Sec. 600.1600. See section I. E. 4. Data Use of this preamble for
further explanation.
C. Meaning of ``Standardized''
Section 303(a)(11) requires that ``Any fishery management plan . .
. with respect to any fishery, shall . . . establish a standardized
reporting methodology to assess the amount and type of bycatch
occurring in the fishery.'' 16 U.S.C. 1853(a)(11). Section 303(a)(11)
does not require regional or national standardization; rather, the
requirement to establish a standardized reporting methodology applies
to each FMP with respect to any fishery managed under it. Consistent
with the statutory language, this rule defines ``standardized reporting
methodology'' as an established, consistent procedure or procedures
used to collect, record, and report bycatch data in a fishery, which
may vary from one fishery to another. See 600.1605(a) (emphasis added).
A Council establishes the SBRM based on the requirements outlined
in this rule and the purpose of an SBRM (see Sec. 600.1600). The
definition of ``standardized reporting methodology'' envisions that a
Council may include more than one data collection, recording, and
reporting procedure in its SBRM. As acknowledged in Sec.
600.1610(a)(2)(i), the amount and type of bycatch occurring in a
fishery may vary based on different fishing activities and operations
(e.g., gear types used, how gear is deployed, gear selectivity, fishing
effort, fishing locations). In light of the above, a Council could
decide that a combination of procedures is appropriate for a fishery.
In such a case, the FMP must still identify what the established,
consistent procedures are for the fishery. For example, in a fishery in
which vessels use trawl nets and gill nets, a Council could determine
that different procedures are appropriate for the different gear types.
The Council would then be required to identify the
[[Page 6319]]
required, consistent procedures for both gear types in the FMP. See
section I. E. 1. and the response to comment 9 in section II of this
preamble for further explanation.
D. FMP Contents
Section 600.1610(a)(1) requires every FMP to identify the required
procedure or procedures that constitute the SBRM for the fishery. Such
procedures may include, but are not limited to, observer programs,
electronic monitoring and reporting technologies, and self-reported
mechanisms. This rule does not prescribe the use of particular
procedures.
Section 600.1610(a)(1) also requires Councils to explain in an FMP,
or a fishery research plan authorized under 16 U.S.C. 1862, how the
SBRM meets the purpose described in Sec. 600.1600, based on an
analysis of requirements (set forth in Sec. 600.1610(a)(2) and
described below). The FMP, or fishery research plan under 16 U.S.C.
1862, may reference analyses and information in other FMPs, FMP
amendments, SAFE reports, or other documents. Consistent with current
practices, the rule encourages Councils to work together and
collaborate on SBRMs for fisheries that operate across multiple
jurisdictions, as appropriate.
NMFS amended the final rule to refer to 16 U.S.C. 1862, a provision
that authorizes the North Pacific Fishery Management Council to prepare
a fisheries research plan for any fishery under its jurisdiction
(except salmon) that requires observers and establishes a system of
fees to pay for the costs of implementing the plan. The North Pacific
Council has established a fisheries research plan that requires an
observer program as authorized under 16 U.S.C. 1862, and the program
constitutes the SBRM for the fisheries covered thereunder. Given that,
this rule allows the North Pacific Council to explain in its fisheries
research plan how the SBRM for those fisheries meets the statutory
purpose of an SBRM.
Finally, Sec. 600.1610(a)(1) explains that, in addition to
proposing regulations necessary to implement the standardized reporting
methodology, a Council should provide in an FMP, or a fishery research
plan authorized under 16 U.S.C. 1862, guidance to NMFS on how to adjust
implementation of the methodology consistent with the FMP. That section
cites to the National Standard 6 guidelines (50 CFR 600.335), which
provide guidance on taking variations and contingencies into account.
NMFS notes that, to the extent that adjustments are needed to an SBRM
beyond what is established in an FMP, an FMP amendment would be
required. This text in Sec. 600.1610(a)(1) replaces Sec. 600.1610(c)
(adaptable implementation) because public comments expressed confusion
over that proposed provision. NMFS reiterates that every FMP must
establish an SBRM. NMFS did not intend to imply otherwise in the
proposed Sec. 600.1610(c) (at 81 FR 9413, February 25, 2016). Rather,
NMFS' intent in the proposed Sec. 600.1610(c) (at 81 FR 9413, February
25, 2016), and now in Sec. 600.1610(a)(1), is to recognize that
fisheries management occurs in a highly variable environment and there
are numerous biological, social, and economic variables that may affect
the operational aspects of implementing data collection and reporting
programs that constitute an SBRM. In light of this, NMFS strongly
recommends that Councils provide direction, as needed, to NMFS about
how to adjust the implementation of an SBRM consistent with the FMP.
NMFS believes that its approach in Sec. 600.1610(a) will promote
efficiency and transparency by encouraging a Council to consider
implementation and operational issues up-front during the development
of an SBRM. See response to comment 29 and 48 for further explanation.
E. Fishery-Specific Analysis
MSA section 303(a)(11) requires that FMPs establish SBRMs, but
beyond the fact that an SBRM must meet its statutory purpose, section
303(a)(11) provides no other guidance on the considerations that should
go into developing an SBRM. Therefore, NMFS has discretion to interpret
section 303(a)(11) and establish reasonable considerations and
requirements. Based on NMFS' experience with implementing section
303(a)(11), and taking into consideration public comment on the
proposed rule, this final rule requires that all Councils conduct a
fishery-specific analysis that addresses the following when
establishing or reviewing an SBRM: (1) The characteristics of the
bycatch occurring in the fishery, (2) the feasibility of the
methodology from cost, technical and operational perspectives, (3) the
uncertainty of the data resulting from the methodology, and (4) how the
data resulting from the methodology are used to assess the amount and
type of bycatch occurring in the fishery. The first and second
requirements were included in the proposed rule and have been revised
minimally in response to comments. With respect to the third and fourth
requirements, NMFS has, in response to public comments, clarified and
elaborated upon the proposed requirement that a Council address ``the
quality of the data associated with the methodology'' (see proposed
Sec. 600.1610(a)(2)(i) at 81 FR 9413, February 25, 2016). Below is
further explanation of these four requirements.
In response to comments, NMFS has removed text that required
consideration of the conservation and management objectives regarding
bycatch in the fishery (see proposed Sec. 600.1610(a)(2)(i) at 81 FR
9413, February 25, 2016), and text stating that a Council may consider
the overall magnitude and/or economic impact of the fishery (see
proposed Sec. 600.1610(a)(2)(i) at 81 FR 9413, February 25, 2016). The
reasons for these changes are provided in the responses to comments 44
and 46.
1. Characteristics of Bycatch in the Fishery
Section 600.1610(a)(2)(i) provides that a Council must address
information about the characteristics of bycatch in the fishery when
available, including, but not limited to, the amount of bycatch
occurring in the fishery, the importance of bycatch in estimating the
fishing mortality of fish stocks, and the effect of bycatch on
ecosystems. Section 600.1610(a)(2)(i) recognizes that the amount and
type of bycatch occurring in the fishery may vary based on different
fishing activities and operations. Bycatch can be affected by several
aspects of a fishery, including gear types used, how gear is deployed,
gear selectivity, fishing effort, fishing locations, and existing
management measures. A Council may consider these operational aspects
when selecting the collection, monitoring, and reporting procedures
that constitute the SBRM for a fishery.
2. Feasibility
Section 600.1610(a)(2)(ii) requires that the implementation of an
SBRM be feasible from cost, technical, and operational perspectives.
Data collection, reporting, and recording procedures can be expensive,
logistically challenging to design and implement, involve new and
cutting-edge technologies, and necessitate the consideration of the
safety of human life at sea. Having carefully considered public
comments, NMFS continues to believe that it is reasonable and
appropriate for a Council to analyze issues of feasibility when
establishing or reviewing an SBRM and to ultimately choose a
methodology that is in fact feasible (i.e., capable of being
implemented) from cost, technical, and operational perspectives. If a
Council proposes an FMP or FMP amendment
[[Page 6320]]
with an SBRM that is not feasible, NMFS may disapprove or partially
disapprove the FMP amendment. In response to public comments, NMFS
clarifies in the final rule that feasibility concerns do not exempt an
FMP from the requirement to establish an SBRM. NMFS reiterates that the
requirement to establish an SBRM is a statutory requirement applicable
to all FMPs.
Proposed Sec. 600.1610(a)(2)(i) at 81 FR 9413, February 25, 2016,
would have required SBRMs to be designed to be implemented with
available funding. In response to comments, NMFS has deleted this
provision. See section II (the responses to comments on ``Consideration
of Feasibility, Costs, and Funding'') of this preamble. Instead, NMFS
explicitly acknowledges in Sec. 600.1610(a)(2)(ii) that costs and
funding may vary from year to year, and requires a Council to address
how implementation of the SBRM may be adjusted while continuing to meet
the purpose described under Sec. 600.1600. If a Council chooses to
establish an SBRM that may be adjusted in response to changes in costs
or funding, the Council should provide guidance to NMFS on how to
adjust the implementation of the SBRM consistent with the FMP, as
provided in Sec. 600.1610(a)(1) (see section I. D. of this preamble).
As an example, NMFS notes that the resources available for observer
programs may vary from year to year. To address this variability in
resources, the North Pacific Council uses an Annual Deployment Plan, a
component of its fisheries research plan authorized under 16 U.S.C.
1862, to describe how NMFS and the Council will annually deploy
observers given changes in funding, costs, and effort consistent with
the FMP. As another example, in New England and the Mid Atlantic, if
the available funding is insufficient to meet the SBRM performance
standard, the SBRM Omnibus Amendment for New England and Mid-Atlantic
fisheries (80 FR 37182, June 30, 2015) (currently the subject of
litigation) establishes a non-discretionary formulaic process for
prioritizing how the available observer sea-days would be allocated to
maximize the effectiveness of the SBRM. NMFS reiterates that,
regardless of resource constraints, all FMPs must establish an SBRM
that meets the purpose described in Sec. 600.1600.
3. Data Uncertainty
Section 600.1610(a)(2)(iii) requires Councils to address the
uncertainty of the data resulting from the SBRM. This section also
requires that an SBRM be designed so that the uncertainty associated
with the resulting bycatch data can be described, quantitatively or
qualitatively. Eliminating data uncertainty is not an end in itself,
but the rule recognizes that Councils should seek to minimize
uncertainty in the resulting data, recognizing that different degrees
of uncertainty may be appropriate for different fisheries.
4. NMFS received numerous public comments requesting that the final
rule include specific standards for accuracy, precision, or statistical
reliability of bycatch estimates and data. See section II for comments
and responses related to ``Consideration of Quality and Use of Data.''
After considering public comments and consulting with agency
scientists, NMFS does not believe it is appropriate to establish
accuracy, precision, or reliability standards for bycatch data or
estimates to be applied across all fisheries. As explained in ``Purpose
of an SBRM'' above, bycatch assessment or estimation is not considered
part of an SBRM under this rule. Moreover, as explained in the
responses to comments, the specific characteristics of each fishery and
its bycatch vary widely from region to region and from fishery to
fishery. For example, during development of this rule, agency
scientists noted that bycatch estimates for species with low encounter
rates will have lower precision than commonly encountered bycatch
species. Establishing bycatch data or estimation standards across all
fisheries could result in an overly intensive sampling effort that may
not be needed for bycatch assessment or management purposes, would not
be feasible, and would be an inefficient use of agency resources.
Instead, this rule requires that Councils address the uncertainty of
the data resulting from an SBRM and design an SBRM so that the
uncertainty associated with the resulting bycatch data can be
described, quantitatively or qualitatively. As reflected in Sec.
600.1600, there may be other relevant sources of data beyond the data
provided by an SBRM that are used to develop bycatch estimates for the
fishery (e.g., fishing effort, fishery independent data, commercial
landings data). Understanding the quality of data resulting from an
SBRM and other sources is important in the assessment of bycatch and
will assist Councils in developing conservation and management measures
that, to the extent practicable, minimize bycatch, and minimize the
mortality of bycatch. For example, a Council may choose to adopt
measures that are more conservative in instances where bycatch data is
a large component of fishing mortality and is highly uncertain. Data
Use
Section 600.1610(a)(2)(iv) requires a Council to address how the
data resulting from an SBRM are used to assess the amount and type of
bycatch occurring in the fishery. As explained in the ``Purpose of the
SBRM'' section above, this provision was added in part to clarify and
reinforce the link between an SBRM and the assessment of bycatch data.
Section 600.1605(a) clarifies that, although bycatch assessment is not
part of the SBRM, bycatch assessment must be considered as described in
this provision. See responses to comments 16 and 25 (explaining the
role of NMFS science centers in providing scientific information and
analyses and how catch and landings information is made available).
Section 600.1610(a)(2)(iv) also incorporates the consultation
provision of the proposed rule's Sec. 600.1610(b) (81 FR 9413,
February 25, 2016). NMFS received comments during the public comment
period asking the agency to clarify the consultation process. In
response to comments (see ``Consideration of Quality and Use of Data''
in section II of this preamble), NMFS clarifies in the final rule that,
related to its consideration of data use, a Council must consult with
its SSC and/or the regional NMFS science center on reporting
methodology design considerations such as data elements, sampling
designs, sample sizes, and reporting frequency. Information provided
through the consultation process will enable a Council to develop an
SBRM that incorporates scientific input and that will provide data that
can be used, in conjunction with other relevant sources of data, to
assess the amount and type of bycatch occurring in the fishery.
Finally, Sec. 600.1610(a)(2)(iv) requires Councils to consider the
scientific methods and techniques available to collect, record, and
report bycatch data that could improve the quality of bycatch
estimates. As bycatch data collection technologies improve, NMFS
anticipates that a Council will consider those technological advances
when establishing and reviewing SBRMs in accordance with the review
timeline specified in Sec. 600.1610(b). See response to comment 47.
F. Review of FMPs
Section 600.1610(b) states that all FMPs must be consistent with
this rule within 5 years of its effective date. To verify consistency
with this rule, Councils, in coordination with NMFS, must conduct a
review of their existing SBRMs. The review should provide
[[Page 6321]]
information sufficient for NMFS to determine whether an FMP needs to be
amended. The review should be documented, but does not need to be
contained in an FMP.
There are several potential outcomes of the review. NMFS could
determine that there are FMPs with existing SBRMs that are consistent
with this rule, in which case no FMP amendments would be necessary.
Other FMPs may describe SBRMs more expansively than the definition in
this final rule. For example, they may contain components that are
consistent with this rule, along with additional components that are
not precluded by this rule, but are not minimally required. Those FMPs
also may not require further amendments if NMFS determines they are
consistent with this rule. Still other FMPs may describe procedures or
activities that comprise an SBRM, but do not explain them in a manner
consistent with this rule. In such cases, changes to an FMP, or a
fisheries research plan, may be warranted. Consistent with current
practices, NMFS encourages Councils to work together and collaborate on
SBRM reviews and potential FMP amendments for fisheries that operate
across multiple jurisdictions, as appropriate.
After the initial review, Councils, in coordination with NMFS,
should periodically review SBRMs to verify continued compliance with
the MSA and this rule. Such a review should be conducted at least once
every 5 years. Section 600.1610(b) is consistent with the review and
improvement of data collection methods, data sources, and applications
described under the NS9 guidelines at 50 CFR 600.350(d)(1).
II. Response to Comments
NMFS solicited public comments on the proposed rule for 60 days
(February 25 through April 25, 2016), and during that time made
presentations to four of the eight Councils and the Highly Migratory
Species Advisory Panel. NMFS received 25 substantive comment letters on
the proposed rule during the public comment period. Of those, six were
form letters that had 65,961 signatures, and 1,382 of those signatories
provided individualized add-on comments. The other 19 substantive
comment letters were from non-governmental organizations, industry
groups/commissions, Councils, and individuals. Summaries of the
substantive comments that we received concerning the proposed rule, and
our responses to all of the significant issues they raise, are provided
below. Comments of a similar nature were grouped together where
appropriate.
Need and Effect
Comment 1: Several commenters noted a need for clarification as to
whether the proposed rule establishes national requirements or
guidance. Some commenters stated that the preamble to the proposed rule
stated that the rule is intended to ``establish national requirements
and guidance,'' but in fact it provides broad guidelines and few
mandatory requirements. Another commenter requested clarification as to
whether the proposed rule constitutes guidance to the Councils versus
regulatory requirements upon the Councils.
Response: This rule sets forth NMFS' interpretation of the SBRM
provision under MSA section 303(a)(11) (16 U.S.C. 1853(a)(11)) and
requirements for establishing and reviewing SBRMs consistent with that
interpretation. Many provisions of the rule are mandatory. The rule
does not, however, prescribe specific details on the types of data
collection and reporting procedures needed for each fishery. Instead,
the rule requires Councils to undertake a fishery-specific analysis of
the SBRM appropriate for the fishery and establish an SBRM that meets
the purpose described in Sec. 600.1600.
Comment 2: One commenter suggested that, in order to allow for the
most flexible and effective SBRM process, the agency should issue these
SBRM provisions as guidance, rather than a rule.
Response: As explained in the preamble to the proposed rule, NMFS
has never issued regulations that set forth the basic requirements of
MSA section 303(a)(11). In the absence of a national SBRM regulation,
Councils have taken varying approaches to interpreting the provision,
with some adopting the recommendations in Evaluating Bycatch and others
interpreting the requirement in a different way. Litigation has also
influenced the development of SBRMs in some regions. In light of the
varying existing approaches, NMFS believes that an analysis and
articulation of the basic requirements of section 303(a)(11) through a
rulemaking is necessary in order to achieve greater consistency in
establishing, documenting, and reviewing SBRMs. Public comment received
on the proposed rule has greatly assisted NMFS in evaluating different
approaches to interpreting the SBRM provision and developing this final
rule. With regard to flexibility, this rule recognizes the diversity of
fisheries across the country by allowing for a fishery-specific
evaluation of the type of SBRM that is appropriate for a fishery,
consistent with the requirements of the MSA and this rule.
Comment 3: One commenter stated that the preamble to the proposed
rule did not cite a recent North Pacific case that affirmed that the
Alaska Region's catch accounting system (CAS) is an SBRM. In light of
that case, the commenter requested that the agency consider excluding
fisheries under the jurisdiction of the North Pacific Fishery
Management Council (NPFMC) from requirements of this rule.
Response: NMFS has prevailed in several SBRM lawsuits, including
The Boat Co. v. Pritzker, No. 3:12-cv-0250-HRH, (D. Alaska Aug. 6,
2014), the North Pacific case mentioned by the commenter. However, as
explained in response to comment 2, NMFS believes that it is important
to have a national rulemaking applicable to all FMPs. NMFS recognizes
that there is a North Pacific-specific observer provision under section
313 of the MSA, 16 U.S.C. 1862, that provides for use of a fisheries
research plan. NMFS has revised this final rule in Sec. 600.1610 to
account for this provision.
Definition of Bycatch
Comment 4: A commenter requested clarification on the distinction
between bycatch and discards.
Response: The distinction between bycatch and discards is clearly
laid out in MSA's definitions section and in NMFS' NS9 guidelines. The
MSA defines bycatch as fish which are harvested in a fishery, but which
are not sold or kept for personal use, and includes economic discards
and regulatory discards. Such term does not include fish released alive
under a recreational catch and release fishery management program. 16
U.S.C. 1802(2). The MSA defines ``economic discards'' as fish which are
the target of a fishery, but which are not retained because of an
undesirable size, sex, or quality, or other economic reasons (16 U.S.C.
1802(9)), and the term ``regulatory discards'' as fish harvested in a
fishery which fishermen are required by regulation to discard whenever
caught, or are required by regulation to retain but not sell (16 U.S.C.
1802(38)). As explained in NMFS' NS9 guidelines, ``[b]ycatch includes
the discard of whole fish at sea or elsewhere, including economic
discards and regulatory discards. . . .'' 50 CFR 600.350(c)(1).
Comment 5: One commenter recommended that the regulatory text be
revised to more clearly indicate that bycatch does not include
incidental catch of seabirds or marine mammals. Other commenters
recommended
[[Page 6322]]
expanding the scope of the rule to provide guidance on the reporting of
all types of bycatch, including marine mammals and seabirds. With
regard to marine mammal bycatch, one commenter noted that a lack of
guidance could lead to ineffective monitoring if Council actions are
not integrated with efforts by the relevant take reduction teams.
Response: The requirement to establish an SBRM is a requirement of
the MSA. Thus, this rule--which interprets the SBRM provision--is based
on the MSA's definitions of ``bycatch'' and ``fish.'' These definitions
exclude marine mammals and birds. See 16 U.S.C. 1802(2) and (12). In
response to comment, NMFS has revised the final rule at Sec.
600.1605(b) to add references to the MSA definitions.
This rule does not preclude Councils from developing programs to
collect, record, and report information about marine mammal mortality
and injury and seabird interactions or unintentional mortality;
however, the MSA does not require Councils to do so to be in compliance
with the requirements of section 303(a)(11). Marine mammals are
protected under the Marine Mammal Protection Act, 16 U.S.C. 1361 et
seq., which NMFS administers. NMFS is committed to working with the
Councils and Take Reduction Teams (TRTs) to reduce bycatch of marine
mammals. TRTs provide recommendations to NMFS on measures to reduce
marine mammal mortalities and serious injuries in commercial fisheries.
NMFS uses these recommendations to develop and implement take reduction
plans. TRTs also provide input to NMFS on evaluating the effectiveness
of these take reduction plans; such input often includes discussion and
recommendations for observer coverage levels to monitor marine mammal
bycatch. In previous years, NMFS has augmented observer coverage in
specific fisheries to monitor marine mammal bycatch. As such, any
marine mammal monitoring will be closely coordinated with monitoring
required by an SBRM.
Comment 6: A commenter noted that NMFS' U.S. National Bycatch
Report, which reports on all bycatch, defines bycatch broadly as
``discarded catch of any living marine resource plus unobserved
mortality due to a direct encounter with fishing gear.'' The commenter
stated that NMFS needs better data for the report, so the rule should
define bycatch in a similar way.
Response: NMFS is not changing the definition of bycatch in the
final rule for the reasons explained in the response to comment 5. NMFS
notes that the National Bycatch Report is not a requirement under the
MSA or other law. Since 2011, NMFS has issued the National Bycatch
Report and its Updates to inform the public about bycatch and provide a
cross-program perspective to inform agency priorities and planning
related to bycatch mandates under the MMPA, ESA, MSA, and other
statutes and international agreements. Given the varying definitions of
bycatch under these authorities, the National Bycatch Report and its
Updates use a broader definition of bycatch than the MSA; they include
information about fish, as well as marine mammal and seabird
interactions. Therefore, in preparing the National Bycatch Report and
its Updates, NMFS compiles information from numerous sources,
including, but not limited to, observer data, logbooks, vessel trip
reports, dealer reports, landing receipts, surveys, and stock
assessments; these documents do not rely solely on data provided by
SBRMs. The more narrow definition of bycatch in the MSA, and the
resulting scope of this final rule, will not hinder future versions of
the National Bycatch Report.
NMFS also notes that the National Bycatch Report and its Updates
provide a compilation of bycatch information and national and regional
overviews to document bycatch in fisheries over time. They are not,
however, used for day-to-day management of fisheries. The 2011 First
Edition of the Report used data available in 2005, Update 1 (2013) used
2010 data, and Update 2 (2016) used 2011-2013 data. U.S. National
Bycatch Report, First Edition Update 2 (February 2016) at p. 9 (see
http://www.st.nmfs.noaa.gov/Assets/Observer-Program/bycatch-report-update-2/NBR%20First%20Edition%20Update%202_Final.pdf). NMFS has
created a custom database that allows members of the public to query
bycatch estimates that have been published in the National Bycatch
Report Updates. Members of the public can access the database at http://www.st.nmfs.noaa.gov/observer-home/first-edition-update-1.
Comment 7: Several commenters submitted comments on the definition
of bycatch with respect to recreational fishing. One commenter
suggested that fish released alive under recreational fishing be
included as bycatch to be monitored as part of an SBRM. The commenter
stated that recreational fishing can be a large component of the total
catch. Further, recreational bycatch can be a significant source of
mortality, and in some cases, exceeds the amount of fish caught and
kept. Another commenter requested that the rule include an exemption
for ``catch and release'' fishing and asked whether ``no possession''
implies that encounters are ``catch and release.''
Response: NMFS does not agree with the suggestion to broaden the
definition of bycatch in this rule to cover all fish released alive
under recreational fishing. ``[F]ish released alive under a
recreational catch and release fishery management program'' are
excluded from the MSA definition of bycatch. 16 U.S.C. 1802(2). NMFS'
NS9 guidelines clarify that ``[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.'' 50 CFR 600.350(c)(2).
NMFS agrees that release mortality is an important issue, and the
agency has taken steps to understand and address this issue. In August
2014, NMFS published a Technical Memorandum entitled Fisheries Release
Mortality, which summarized NMFS-funded fish release mortality research
over the past 15 years, identified release mortality data gaps,
compiled mortality estimates used by NMFS, and identified criteria to
help scientists and managers focus release mortality resources (NOAA
Technical Memorandum NMFS-F/SPO-142, July 2014). In February 2016, NMFS
released an Action Plan for Fish Release Mortality Science, which
identifies national goals and objectives for estimating and reducing
discard and release mortality for fish in commercial and recreational
fisheries (https://www.st.nmfs.noaa.gov/ecosystems/bycatch/discard-and-release-mortality). NMFS directs commenters to these documents for
further information regarding the agency's efforts to address and
evaluate release mortality in both commercial and recreational
fisheries.
Interpretation of ``Standardized''
Comment 8: Several commenters stated that NMFS' proposed definition
of ``standardized reporting methodology'' in Sec. 600.1605(a) is
contrary to Congress' intent and the ordinary meaning of the word
``standardized.'' Commenters asserted that the MSA requires that SBRMs
be standardized at the national, regional, or ecosystem level. In
general, many of these commenters expressed concern that without
regional, ecosystem, or national standardization, it will be difficult
or impossible to assess the bycatch of species between fisheries or
within multispecies fisheries; compare or combine data across fisheries
or regions; understand ecosystem, regional, or national bycatch trends;
or minimize bycatch. One commenter recommended
[[Page 6323]]
standardization according to gear type, specifically, reporting of
bycatch by gear as a ratio of bycatch per unit effort to catch per unit
effort (BPUE: CPUE). One commenter agreed that the proposed definition
reflects the statutory language, but urged NMFS to direct managers to
consider monitoring fish caught as bycatch that are managed in separate
FMPs and by different management entities. One commenter also noted
that the rule should be revised in light of NMFS' acknowledgment in the
2011 U.S. National Bycatch Report that it is difficult to compare or
combine bycatch data across fisheries or regions due to differences in
bycatch data, including the quantity and quality of data and reporting
in pounds vs. individuals.
Response: NMFS is not changing its fishery-level approach to
standardization in the final rule. The rule at Sec. 600.1605(a)
defines ``standardized reporting methodology'' with reference to a
fishery, consistent with MSA section 303(a)(11). That section requires
that ``Any fishery management plan . . . with respect to any fishery,
shall . . . establish a standardized reporting methodology to assess
the amount and type of bycatch occurring in the fishery.'' 16 U.S.C.
1853(a)(11). The characteristics of bycatch in a fishery vary based on
the fishing activity and operations. Therefore, requiring that SBRMs be
standardized at the regional or national level would constrain the
ability to tailor bycatch data programs to the needs of specific
fisheries. However, consistent with current practices, the final rule
encourages Councils to work together and collaborate on SBRMs for
fisheries that operate across multiple jurisdictions, as appropriate.
NMFS does not agree that this rule will make it more difficult to
assess the bycatch of species between fisheries or within multispecies
fisheries; compare or combine data across fisheries or regions;
understand ecosystem, regional, or national bycatch trends; or minimize
bycatch. Unit conversion is a standard approach to dealing with data
disparities. The agency routinely compiles data from varied sources and
uses mathematical conversions and analytical tools to understand the
data at the necessary scale.
With regard to gear type, as discussed in the preamble (see section
I. C.), a Council may determine that different collection, recording,
and reporting procedures are appropriate within a fishery for different
gear types. However, because different fishing activities and
operations (including but not limited to gear type) may affect the
amount and type of bycatch that occurs in a fishery and thus the types
of reporting procedures that may be needed in a fishery, NMFS does not
agree that SBRMs across a region or the country must be standardized by
gear type. Furthermore, NMFS is not making changes to the rule in
response to the suggestion to report bycatch by gear as a ratio of
bycatch per unit effort to catch per unit effort (BPUE: CPUE). This
suggestion pertains to how data might be displayed or synthesized when
assessing the amount and type of bycatch. As explained previously, this
rule pertains to the requirements for the collection, recording and
reporting of bycatch data.
With respect to the National Bycatch Report, NMFS reiterates that
the Report is not required under the MSA. Nevertheless, since 2011,
NMFS has issued a National Bycatch Report and its Updates that provide
a national- and regional-level look at bycatch. See response to
comments 6 and 26 for further information on the National Bycatch
Report. For the Second Edition of the National Bycatch Report (to be
published in late 2017), NMFS is working to develop length-weight
conversion factors for use in the Report. The use of conversion factors
is not new; for example, NMFS has used such conversion factors in the
pelagic longline fisheries based in Hawaii and American Samoa (https://pifsc-www.irc.noaa.gov/library/pubs/DR-16-004.pdf). Unit conversion and
mathematical analysis is a standard approach to dealing with data
disparities.
Comment 9: One commenter asserted that the inclusion of ``subset of
a fishery'' in Sec. 600.1605(a) is inconsistent with the MSA. Another
commenter asked what a sub-``set'' is, noting that it might be
difficult in some fisheries to define a ``set'' and that, for many
fisheries, collecting data at the ``set'' level would be extremely
burdensome. The commenter expressed concern that fine-scale data
collection might encourage inaccuracies and non-compliance with
reporting requirements.
Response: The intent of the proposed rule's Sec. 600.1605(a) (81
FR 9413, February 25, 2016) was to acknowledge that different fishing
activities and operations can affect the amount and type of bycatch
that occurs, and thus the types of reporting procedures that may be
needed. Bycatch can be affected by, among other things, the gear types
used, how gear is deployed, gear selectivity, fishing effort, fishing
locations, and existing management measures. In response to this
comment, NMFS has amended Sec. 600.1610(a)(2)(ii) to recognize that
the amount and type of bycatch occurring in a fishery may vary based on
different fishing operations. NMFS has also removed ``subset'' and
refers simply to ``fishery'' in Sec. 600.1605(a), to reflect the
language of MSA section 303(a)(11). NMFS notes that the MSA's
definitions of ``fishery'' and ``stock of fish'' are broad. See 16
U.S.C. 1802(13) (defining ``fishery'' as one or more stocks of fish
which can be treated as a unit for purposes of conservation and
management and which are identified on the basis of geographical,
scientific, technical, recreational, and economic characteristics; and
. . . any fishing for such stocks), and 16 U.S.C. 1802(42) (defining a
``stock of fish'' as a species, subspecies, geographical grouping, or
other category of fish capable of management as a unit). Given the
broad definition of ``fishery'' and the purpose of an SBRM, NMFS
continues to believe that a Council, when developing an SBRM, may take
into consideration different fishing activities and operations. For
example, if there is fishing for a stock using trawl nets and gill
nets, a Council may determine that different data collection,
recording, and reporting procedures are appropriate for the two gear
types. In such case, the FMP must identify what the established,
consistent procedures are for both gear types. See also section I. C.
Comment 10: One commenter noted that in the Greater Atlantic
Region, the current SBRM is designed by ``fishing modes,'' which, in
some cases, may not meet the statute's definition of a ``fishery.'' The
commenter recommended that it be made clear that this approach meets
the requirements of the statute.
Response: NMFS is not making revisions to the final rule in
response to this comment. NMFS approved the SBRM Omnibus Amendment for
New England and Mid-Atlantic fisheries in June 2015, after reviewing
the amendment for consistency with the MSA and other applicable law.
Moreover, the SBRM Omnibus Amendment is currently the subject of
litigation.
Comment 11: NMFS received comments that the lack of standardization
in the proposed rule conflicts with the requirements of National
Standard 3 (NS3).
Response: This rule is consistent with NS3, which requires, to the
extent practicable, an individual stock of fish shall be managed as a
unit throughout its range, and interrelated stocks of fish shall be
managed as a unit or in close coordination. 16 U.S.C. 1851(a)(3). The
[[Page 6324]]
NS3 guidelines provide guidance for interpreting a ``management unit''
in the context of a ``fishery.'' See 50 CFR 600.320(d) (defining
management unit as ``a fishery or that portion of a fishery identified
in an FMP as relevant to the FMP's management objectives'') and (d)(1)
(explaining that ``choice of a management unit depends on the focus of
the FMP's objectives, and may be organized around biological,
geographic, economic, technical, social, or ecological perspectives'').
As explained in response to comment 8, this final rule defines
standardized reporting methodology with regard to a ``fishery.'' Thus,
NMFS does not see any conflict between the two provisions. To the
extent there is any conflict, NMFS notes that NS3 contains the
qualifier, ``to the extent practicable.''
Comment 12: One commenter recommended establishing minimum
standards for federal bycatch reporting and offered to work with NMFS
to define these standards and identify what can be done to help those
Councils whose fisheries do not meet the minimum standards.
Response: This final rule establishes minimum standards for the
collection, recording, and reporting of bycatch data under MSA section
303(a)(11). NMFS looks forward to working with all Councils as they
review their FMPs under this final rule.
Purpose of a Standardized Reporting Methodology
Comment 13: Many commenters stated that the proposed rule's Sec.
600.1605(a) (81 FR 9413, February 25, 2016) is flawed because it
defines standardized reporting methodology only with regard to
collection, recording, and reporting of bycatch data, and not the
assessment or analysis of that data. Several commenters asserted that
this approach is contrary to the plain language of the MSA and
Congressional intent, and that courts have found that bycatch
assessment is a required component of SBRM.
Response: NMFS disagrees that an assessment methodology is a
required part of SBRM, but agrees that an SBRM needs to meet its
intended purpose, which includes collecting data that can be used to
assess the amount and type of bycatch in a fishery. The proposed rule
acknowledged this nexus between the SBRM and the assessment of bycatch.
To reinforce this link, NMFS has added to Sec. 600.1600 explanatory
language from the proposed rule preamble stating that the purpose of an
SBRM is to collect, record, and report bycatch data in a fishery that,
in conjunction with other relevant sources of information, are used to
assess the amount and type of bycatch occurring in a fishery and to
inform the development of conservation and management measures that, to
the extent practicable, minimize bycatch and bycatch mortality. In
addition, NMFS has added a new paragraph (iv) to Sec. 600.1610(a)(2)
that requires a Council to address how the data resulting from an SBRM
are used to assess the amount and type of bycatch in the fishery, and
requires the Council to consult with its SSC and/or regional NMFS
science centers on SBRM design considerations (e.g., data elements,
sampling designs, sample sizes, and reporting frequency). NMFS believes
this approach is consistent with the plain language of section
303(a)(11) of the MSA, which requires that an FMP establish a
standardized reporting methodology to assess the amount and type of
bycatch occurring in the fishery, and include conservation and
management measures that minimize bycatch and bycatch mortality to the
extent practicable. 16 U.S.C. 1853(a)(11). Section 303(a)(11) requires
a reporting methodology, not an assessment methodology. Other section
303(a) provisions explicitly require that assessments be included in an
FMP, but this is not the case for section 303(a)(11). See e.g., 16
U.S.C. 1853(a)(3) (requiring FMP to assess and specify the present and
probable future condition of, and the maximum sustainable yield and
optimum yield from, the fishery), and 16 U.S.C. 1853(a)(4) (requiring
that FMPs assess and specify . . . the capacity and extent to which
fishing vessels of the United States, on an annual basis, will harvest
the optimum yield . . .). NMFS disagrees that its interpretation is
contrary to Congressional intent. In support of their comments,
commenters cited Senate Report 104-276, which states that the
Sustainable Fisheries Act (S. 39) ``would mandate the assessment of
bycatch level in each fishery'' (S. Rep. No. 104-276, at 99 (1996)).
This report discussed a version of a Senate bill that was reported out
of committee on May 23, 1996, which would have required that FMPs
``assess the amount and type of bycatch occurring in the fishery.''
That text was not enacted.
NMFS recognizes that some district courts have described the SBRM
requirement as a bycatch assessment methodology or have asserted that
section 303(a)(11) requires the assessment of bycatch in the fishery.
See, e.g., Oceana v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011); Pac. Marine
Conservation Council v. Evans, 200 F. Supp.2d 1194 (N.D. Cal. 2002).
NMFS considered this case law in developing the proposed rule. After
taking public comment into consideration, and reconsidering relevant
case law, NMFS continues to believe that the approach taken in this
final rule is appropriate and consistent with the MSA, for the reasons
explained above. To the extent that courts have described the SBRM
provision as an ``assessment methodology,'' NMFS notes that the cases
did not engage in a comprehensive review of the statutory construction
of the SBRM provision. Reading section 303(a)(11) in context with other
provisions of the MSA, NMFS believes that the final rule's definition
of ``standardized reporting methodology,'' which does not include
assessment methods, is consistent with the MSA.
Comment 14: Several commenters asserted that data collection and
assessment are inextricably linked. Where, how, how much, and what type
of data is collected determines how those data may be analyzed and used
to come up with bycatch estimates. If the design of an SBRM is
disconnected from the needs of the bycatch assessment process, there
will be a waste of resources and effort, and scientists and managers
will not have reliable data they need to get an accurate accounting of
bycatch, reduce uncertainty in the assessment of species, and better
manage the fishery to minimize bycatch. Other commenters agreed that
fishery managers must consider data methodologies in tandem with
assessment methodologies to make sure that data will actually be usable
to ``assess the amount and type of bycatch occurring in a fishery.''
Response: NMFS affirms that an SBRM must meet its statutory
purpose, which includes collecting data that can be used to assess the
amount and type of bycatch occurring in a fishery. The final rule does
not delink data collection and assessment. Rather, as explained in
response to comment 13, NMFS has revised the final rule to reinforce
this nexus.
Estimating or assessing bycatch often requires a variety of highly
technical data that can vary based on fishery, region of the country,
and type of bycatch involved. Relevant data may come from observer
program databases, logbooks, commercial landings databases, the NMFS
Marine Recreational Information Program database, or other sources. As
explained in the preamble of the proposed rule (81 FR 9413, February
25, 2016), a variety of different models or approaches may be used to
synthesize these data to assess, evaluate, or estimate bycatch. Given
that the assessment/estimating of
[[Page 6325]]
bycatch is a scientific matter, and science is a dynamic process with
new findings constantly advancing the state of knowledge (see National
Standard 2 guidelines, 50 CFR 600.315(a)(5)), NMFS does not believe
that an FMP--which is a management and policy document that can take a
long time to amend--must specify the approaches and methods that
scientists must use to make such assessments or estimations. If a
Council wants to include such methods in its SBRM, the Council may do
so, but is not required to.
Uncertainty in data is a reality of fisheries management. See NS9
guidelines, 50 CFR 600.350(d)(2) (stating that due to limitations in
available information, fishery managers ``may not be able to generate
precise estimates of bycatch and bycatch mortality of other effects''
for management alternatives). NMFS' National Standard 2 guidelines
provide that mandatory measures not be delayed due to incomplete data,
but management decisions should recognize the risks associated with the
sources of uncertainty and gaps in the scientific information. Id.
Sec. 600.315(a)(2), (a)(6)(v). Consistent with these guidelines, and
in response to comments, NMFS has revised the proposed rule regulatory
text by adding language to Sec. 600.1610(a)(2) in a new paragraph
(iii) to require a Council to address uncertainty and design an SBRM so
that uncertainty associated with the resulting bycatch data reported to
the Secretary can be described, quantitatively or qualitatively. NMFS
clarifies in that subsection that Councils should seek to minimize
uncertainty in the resulting data, recognizing that different degrees
of data uncertainty may be appropriate for different fisheries. See
comment and response 31, infra, discussing data quality issues.
Comment 15: Several commenters asserted that NMFS must not step
away from prior guidance in Evaluating Bycatch that ``the combination
of data collection and analyses that is used to estimate bycatch in a
fishery constitutes the SBRM for that fishery.''
Response: NMFS acknowledged in the notice of proposed rulemaking
that Appendix 5 of Evaluating Bycatch describes SBRM as the combination
of data collection and analyses that is used to estimate bycatch in a
fishery. However, as previously noted, Evaluating Bycatch is a
technical memorandum; neither the memorandum nor its appendices
established binding policy or agency interpretation of MSA section
303(a)(11). NMFS is issuing this rule to set forth its interpretation
of section 303(a)(11). In developing this rule, NMFS undertook a
comprehensive evaluation of section 303(a)(11), including the language
of the provision and its context in the overall statutory scheme for
fisheries management established by Congress in the MSA. See ``Purpose
of an SBRM'' above, responses to comments 13 through 17, and
``Activities Associated with an SBRM'' in the proposed rule (discussing
distinction between data collection/reporting and assessment) (81 FR
9413, February 25, 2016). NMFS believes that it is important to be
clear about the key policy choices and objectives associated with
establishing a reporting methodology, and not confuse those choices
with statistical and technical approaches for estimating bycatch that
are inherently scientific and data dependent, or with the policy
choices associated with developing measures to minimize bycatch or
bycatch mortality. After careful analysis and consideration of public
comments, NMFS has decided not to retain the approach from Evaluating
Bycatch.
Comment 16: One commenter states that, assuming the agency's
proposed rule for SBRM was in place, Councils and scientists would now
have no guidance for how to actually assess bycatch. There is no
guidance provided, and none promised, on how to model the amount, type,
and scope of bycatch with the (likely) piecemeal and uneven data
provided by SBRMs.
Response: NMFS relies on expertise from six regional science
centers to provide scientific information and analyses for fishery
management. Providing guidance in this rule on how to assess bycatch is
inappropriate and unnecessary given the dynamic nature of science and
existing guidance and scientific processes. Notably, National Standard
2 (NS2), 16 U.S.C. 1851(a)(2), requires that conservation and
management measures be based on the best scientific information
available, and NMFS has provided guidance on NS2 at 50 CFR 600.315.
Best scientific information available includes, but is not limited
to, models, data, analyses, and scientific assessments, and new
scientific findings constantly advance the state of knowledge. Id.
Sec. 600.315(a)(4)-(5). As explained in the NS2 guidelines, scientific
information is not conducted in a vacuum, but is subject to peer
review, consistent with the guidelines and the Office of Management and
Budget Final Information Quality Bulletin for Peer Review. Id. Sec.
600.315(a)(6)(vii). Moreover, each Council has a Scientific and
Statistical Committee that is responsible for providing the Council
with ongoing scientific advice. Id. Sec. 600.315(c) and 16 U.S.C.
1852(g)(1).
Comment 17: One commenter supports the clarification that the SBRM
consists of the data collection and reporting programs, and is distinct
from the methods used to assess bycatch and the measures to minimize
bycatch. The proposed rule preamble indicated that a Council may
include other elements (such as the analytic approach used to assess
bycatch), and the commenter suggested adding this point to the
regulatory text.
Response: NMFS thanks the commenter for expressing support for its
approach. However, NMFS does not believe that changes to the regulatory
text are necessary. As explained in the proposed rule preamble (81 FR
9413, February 25, 2016), this rule describes the basic requirements of
the SBRM provision of section 303(a)(11) of the MSA. A Council may, but
is not required to, add other relevant information to its FMP beyond
the basic requirements of this rule.
Comment 18: One commenter stated that the underlying purpose of an
SBRM might affect its design, as data provided by these programs can be
used a number of different ways, and the design needs to be appropriate
for these uses. For example, the design of an SBRM may be very
different if it is primarily used to support stock assessments rather
than fishery management decisions. In the former case, an argument
could be made that the responsible science center should have extensive
input in its development. On the other hand, if intended primarily to
address the requirements placed on managers to minimize bycatch to the
extent practicable, the Council's needs should have more weight. The
proposed rule should suggest a clear discussion in the SBRM about how
its design addresses the needs of scientists and managers.
Response: The rule requires that an FMP, or a fishery research plan
authorized under 16 U.S.C. 1862, explain how an SBRM meets the purpose
described in Sec. 600.1600, based on an analysis of requirements in
Sec. 600.1610(a)(2). The purpose of SBRM is two-fold: Provide data
that, in conjunction with other relevant sources of information, are
used to assess the amount and type of bycatch occurring in a fishery
and for informing the development of conservation and management
measures to minimize bycatch. Given this purpose, Sec. 600.1610(a)(2)
requires a Council to address the characteristics of bycatch in the
fishery, the feasibility of the SBRM, data uncertainty, and data use.
NMFS
[[Page 6326]]
acknowledges in the final rule that different SBRMs may be appropriate
for different fisheries due to the inherent variability among
fisheries. Scientific input is an important aspect of developing an
SBRM, thus Sec. 600.1610(a)(2)(iv) requires a Council to consult with
its SSC and/or regional NMFS science center on SBRM design
considerations.
Comment 19: One commenter asserted that the SBRM rule should follow
a precautionary, ecosystem-based approach that can be applied uniformly
to all fisheries to count, cap and control bycatch.
Response: For the reasons explained in responses to comments 1, 2,
8 and other comments, this final rule takes a fishery-specific approach
to establishing SBRMs. NMFS believes that this rule will ensure the
standardized collection, recording, and reporting of bycatch data for
each fishery. A uniform approach to count, cap, and control bycatch
across all fisheries is not required under the MSA, and is not
practical or cost effective, given the variability in fishery
characteristics. See response to comment 8 for further explanation.
NMFS believes that this rule is consistent with and complementary to
the agency's policy for ecosystem-based fisheries management. NMFS
strongly supports implementation of Ecosystem-Based Fisheries
Management (EBFM) to better inform and enable decisions regarding
trade-offs among and between fisheries (commercial, recreational, and
subsistence), aquaculture, protected species, biodiversity, and
habitats. Recognizing the interconnectedness of these ecosystem
components will help maintain resilient and productive ecosystems
(including human communities), even as they respond to climate,
habitat, ecological, and other environmental changes. See http://www.st.nmfs.noaa.gov/Assets/ecosystems/ebfm/Final-EBFM-Policy-PDS-Review-5.20.2016-final-for-PDS.pdf. This rule is consistent with the
EBFM policy statement because it provides for a national approach to
establishing and reviewing SBRMs and will improve NMFS' understanding
of the impacts of a fishery on non-target stocks. Such information will
help NMFS and the Councils consider the ecosystem-level trade-offs that
are a key component of EBFM.
Comment 20: One commenter stated that in order for data to be
``useful'' (see proposed Sec. 600.1610(a)(1)(i) at 81 FR 9413,
February 25, 2016), clear criteria must be set so that standardized
bycatch data can be fed into the calculation of annual catch limits
(ACL) and fully considered in the implementation of accountability
measures (AM). Bycatch must be accurately assessed because it counts
against a stock's catch limit. Bycatch must be monitored to comply with
both the SBRM provision in MSA section 303(a)(11) and ACL/AM
requirements in MSA section 303(a)(15).
Response: NMFS has deleted the term ``useful'' and revised the
final rule to require that Councils address data use and data
uncertainty when establishing or reviewing an SBRM. See e.g., responses
to comments 13 and 31 through 33. Data resulting from SBRMs may be used
to inform management decisions beyond bycatch-related ones, and NS2
provides the standard for data used to inform such decisions:
Conservation and management measures shall be based on the ``best
scientific information available.'' 16 U.S.C. 1851(a)(2). For the
reasons explained in responses to comments 31 through 33, NMFS is not
establishing national standards for accuracy of data or estimates in
this final rule.
NMFS notes that SBRMs (16 U.S.C. 1853(a)(11)) and ACLs/AMs (16
U.S.C. 1853(a)(15)) are separate statutory requirements, which should
not be conflated. See Oceana v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011).
Detailed guidance on establishing ACL/AM mechanisms is provided in the
National Standard 1 (NS1) guidelines (50 CFR 600.310). To the extent
that data from an SBRM are used in specifying ACLs, this final rule
complements the NS1 guidelines. The NS1 guidelines state that the
``acceptable biological catch'' accounts for scientific uncertainty in
the estimate of the overfishing limit for a stock or stock complex. 50
CFR 600.310(f)(2)(ii). Section 600.1610(a)(2)(iii) also addresses
uncertainty, requiring that an SBRM be designed so that uncertainty
associated with the resulting data can be described quantitatively or
qualitatively. This is consistent with the NS2 guidelines (50 CFR
600.315), which provide guidance on uncertainty and issues related to
use of the best scientific information available. Moreover, the NS1
guidelines refer to mortality of fish that are discarded (50 CFR
600.310(f)(2)(i)), and Sec. 600.1610(a)(2)(i) of this final rule
requires that, when developing an SBRM, a Council must address, among
other things, ``the importance of bycatch in estimating the fishing
mortality of fish stocks.''
Types of Data Collection, Recording, and Reporting Procedures
Comment 21: One commenter recommended eliminating the ``self-
reported mechanisms'' option provided for in the proposed rule's Sec.
600.1610(a) (81 FR 9413, February 25, 2016) to help eliminate bias in
data collection.
Response: NMFS does not agree with this comment; self-reported
mechanisms are important to include as a potential reporting procedure
because they are cost effective, feasible, and already available and
appropriate for use in various fisheries to report bycatch data. Self-
reported mechanisms (such as logbooks that include bycatch reporting)
usually are required of all fishery participants, and therefore
represent a near-census of the fishery. The costs of logbook programs
are typically low, and, concerns regarding safety are limited to
concerns that already exist with fishing operations, which are
substantial for fishermen but basically nonexistent for those
processing logbooks. However, NMFS recognizes that an SBRM based solely
on logbooks will not be appropriate for all fisheries. That is why the
rule requires Councils to undertake a fishery-specific analysis of
SBRMs. Further, the rule requires that an SBRM be designed so that the
uncertainty associated with the data resulting from the SBRM can be
described. Management decisions should recognize the risks associated
with that uncertainty. See National Standard 2 guidelines, 50 CFR
600.315.
Comment 22: Many commenters recommended reporting bycatch data and
estimates in a manner that is useful for stakeholders, managers, and
scientists.
Response: NMFS agrees with this comment. The final rule states that
the purpose of an SBRM is to collect, record, and report bycatch data
that, in conjunction with other relevant sources of information, can be
used to assess bycatch and inform the development of conservation and
management measures. Any SBRM established by a Council must achieve
this purpose, thereby ensuring that bycatch data resulting from an SBRM
will be useful for stakeholders, managers, and scientists.
Comment 23: Several commenters recommended requiring observer
programs and/or electronic monitoring to promote the collection of
accurate data and mitigate against data collection bias. One commenter
stated other agency documents have recognized the benefits of observers
for quantifying and estimating bycatch. However, the proposed rule does
not require trained observers.
Response: NMFS disagrees that the rule should require the
implementation of observer or electronic monitoring programs. Observer
and electronic monitoring programs are not the only ways to collect,
record, and report
[[Page 6327]]
bycatch, and the MSA does not require their inclusion in every SBRM.
See 16 U.S.C. 1853(a)(11), (b)(8). NMFS recognizes that observer
programs are used in many fisheries for collecting bycatch data.
However, observer programs are costly and logistically challenging, and
such programs may not be needed in all fisheries. Requiring every SBRM
to include an observer program would not be an efficient use of
resources. Further, it is NMFS' policy to encourage the consideration
of electronic technologies to complement and/or improve existing
fishery-dependent data collection programs to achieve the most cost-
effective and sustainable approach that ensures alignment of management
goals, data needs, funding sources and regulations. See NMFS Policy
Directive 30-133, Policy on Electronic Technologies and Fishery-
Dependent Data Collection (May 3, 2013). However, the adoption of new
technologies raises numerous fishery-specific technical, legal, and
policy issues, and, as with observer programs, electronic monitoring
programs may not be needed or feasible in a particular fishery.
Recognizing the diversity of fisheries across the country, this rule
requires Councils to undertake a fishery-specific evaluation to
determine the SBRM appropriate to a fishery, while still achieving the
purpose of an SBRM as described in Sec. 600.1600.
Comment 24: A commenter requested that intercept surveys be
explicitly mentioned in Sec. 600.1610(a) as an example of a self-
reported mechanism.
Response: The types of self-reported mechanisms identified in Sec.
600.1610(a)(1) are examples; this list is not exhaustive or limiting.
NMFS agrees that intercept surveys are a type of self-reported
mechanism, along with others, that could be included in an SBRM.
Comment 25: A commenter requested written reports for the Councils
(and the public) from NMFS each year that minimally report by species
and sector how many fish were landed and how many were released. To
track Council progress towards minimizing bycatch, the commenter
suggested a report in December on the first 6 months of the year and a
final report in June showing landings and released fish by sector by
species for the previous year. The commenter also requested that
preliminary bycatch information by sector be provided at each Council
meeting when landings information is presented.
Response: Catch and landings data and estimates/assessments are
available through a variety of means, including, but not limited to,
stock assessments and other scientific documents and reports, SAFE
reports, annual Fisheries of the United States reports, the National
Bycatch Reports and national reports to international committees.
Landings data can be accessed online using NMFS' species information
system at https://www.st.nmfs.noaa.gov/sisPortal/sisPortalMain.jsp.
Comment 26: One commenter stated that locating specific data and
metadata about bycatch is an ongoing issue because various data are
reported in disparate reports. The commenter suggested including a
provision to require the movement to housing of data in a single source
(such as a data warehouse) to improve standardizing, documenting, and
accessing data.
Response: Since 2011, NMFS has published a series of National
Bycatch Reports and Updates that provide information on fishery- and
species-specific bycatch estimates for major U.S. fisheries around the
country. Some of the estimates contained in the National Bycatch
Reports and Updates are also published in other NMFS documents such as
its marine mammal stock assessment reports. Additionally as stated in
response to comment 6 and 25, NMFS has created a custom database that
allows members of the public to query bycatch estimates that were
published in the National Bycatch Report Updates. (Members of the
public can access the database here: http://www.st.nmfs.noaa.gov/observer-home/first-edition-update-1). See responses to comments 8 and
9 for an explanation as to why section 303(a)(11) and this rule do not
require data collection to be standardized at the national level.
FMP Contents
Comment 27: One commenter stated that the required factors for
SBRMs (proposed Sec. 600.1610(a)(2)(i), (ii) at 81 FR 9413, February
25, 2016) are minimal and lack specificity. Details of establishing and
reviewing SBRMs are left to Councils, and NMFS has no enforcement
mechanism to ensure SBRMs are established and no option to take over if
a Council fails to establish an SBRM. NMFS should revise the rule to
make SBRMs mandatory. In addition, the rule should prescribe and detail
each aspect of bycatch data collection and assessment to allow
uniformity of information that can be aggregated and compared, ideally
not only nationally but also internationally.
Response: The requirement to establish an SBRM is mandatory under
MSA section 303(a)(11). Section 600.1600 and the proposed rule preamble
(81 FR 9413, February 25, 2016) explicitly state that this is an MSA
requirement. In response to public comments, NMFS has included in the
final rule revisions that clarify the requirements (initially referred
to as ``factors'' in the proposed rule) for establishing and reviewing
an SBRM. Section 600.1610(a)(1) provides that an FMP, or a fishery
research plan as authorized under 16 U.S.C. 1862, must explain how the
methodology meets the purpose described in Sec. 600.1600, based on an
analysis of the requirements set forth in Sec. 600.1610(a)(2):
Characteristics of bycatch, feasibility, data uncertainty, and data
use. NMFS disagrees that methodology needs to be standardized at a
national or international level. See comments and responses 1, 2, 8,
and 9. With regard to data assessment, this rule requires a Council to
address data use and data uncertainty and to consult with its SSC and/
or NMFS science centers. See comments and responses 16, and 31 through
33. NMFS does not believe more prescriptive text is needed regarding
data collection and assessment.
Under the MSA, Councils are in the first instance responsible for
developing FMPs and addressing mandatory FMP requirements, including
SBRMs. NMFS has a seat on each Council. NMFS will use its regular
procedures for approval of FMPs and FMP amendments to ensure that FMPs
and their implementing regulations are consistent with the MSA and
other applicable laws. NMFS notes that MSA section 304(c) specifically
addresses when NMFS may prepare an FMP.
Comment 28: NMFS received comments stating that its proposed
regulations regarding the contents of FMPs and the factors that a
Council must consider in establishing or reviewing an SBRM are too
prescriptive. One commenter recommended revising the regulatory text of
Sec. 600.1610 in several places to clearly reflect that the objective
of this proposed rule is to provide guidance to the Councils on the
implementation of SBRMs. The commenter recommended changes to the
regulatory text to provide greater flexibility.
Response: As explained previously, the purpose of this rule is to
set forth the basic requirements of MSA section 303(a)(11). See
comments and responses 1 and 2 (explaining the effect and need for
rule). NMFS does not believe the rule is overly prescriptive, as it
takes a fishery-specific approach, and does not prescribe specific
details on the methodology needed for each fishery.
Comment 29: A commenter stated that Sec. 600.1610(a)(1) should be
revised to allow Councils to include a more detailed description of the
SBRM in
[[Page 6328]]
other documents than the FMP. For example, the North Pacific Fishery
Management Council and NMFS use an Annual Deployment Plan (ADP) process
to determine the scientific sampling plan and method for assigning
observers to vessels and processing plants. This can change from year
to year. Under proposed Sec. 600.1610(a)(1) at 81 FR 9413, February
25, 2016, it appears that an FMP would need to include a specific
reference to the ADP process (which it already does), or to provisions
for a specific annual ADP, which would be outdated almost immediately
upon approval of the FMP amendment. This is not necessary and is
directly counter to the overall objective of this proposed rule, which
is to provide the public with greater clarity about the provisions of
an SBRM.
Response: Each FMP must identify the required procedure or
procedures that constitute the SBRM for a fishery. See Sec.
600.1610(a)(1). In addition, an FMP, or fishery research plan as
authorized under 16 U.S.C. 1862, must explain how an SBRM meets the
purpose described in Sec. 600.1600, based on an analysis of four
requirements under Sec. 600.1610(a)(2). The rule provides that the FMP
or fisheries research plan may reference analyses and information in
other documents. NMFS has also revised Sec. 600.1610(a)(1) to state
that, in addition to any proposed implementing regulations, a Council
should also provide in its FMP, or fishery research plan authorized
under 16 U.S.C. 1862, guidance to NMFS on how to adjust implementation
of an SBRM consistent with the FMP. In the North Pacific, the ADP
referenced by the commenter is a component of the fishery research
plan, thus NMFS and the Council may continue to use the ADP to
determine annually the scientific sampling plan and method for
assigning observers to vessels and processing plants, consistent with
the fisheries research plan and FMP. See comment and response 48 for
additional explanation.
Consideration of Quality and Use of Data
Comment 30: One commenter expressed support for the requirement for
Councils to consider data quality.
Response: NMFS appreciates the support regarding the consideration
of data quality. In the final rule, NMFS has elaborated on the concept
of data quality by requiring Councils to address both the uncertainty
of the data and the use of the data resulting from the SBRM. See
comments and responses on ``Purpose of a Standardized Reporting
Methodology'' and comments and responses 31 through 36.
Comment 31: Several commenters asserted that the rule must
incorporate standards for precision and accuracy, or should provide
guidance that SBRMs produce statistically accurate, precise, and/or
reliable estimates of bycatch. Another commenter stated that while the
MSA does not specify a specific level of accuracy or precision, it does
require that SBRMs produce data that are accurate and reliable enough
to satisfy the statutory requirement to develop measures to minimize
bycatch and bycatch mortality. Commenters cited several court decisions
regarding SBRMs and accuracy or reliability of data. Some commenters
also asserted that the proposed rule would result in data that is
contrary to the agency's guidelines for National Standard 2 (NS2).
Response: NMFS agrees that an SBRM must meet its statutory purpose.
See response to comment 13 for further explanation. To that end, the
final rule requires Councils to explain how a chosen SBRM meets its
statutory purpose, based on an analysis of the characteristics of
bycatch in the fishery, the feasibility of the SBRM, the uncertainty of
the data associated with an SBRM, and the use of the data resulting
from an SBRM. See comments and responses 32 through 36 for further
discussion related to data use and uncertainty considerations.
In this final rule, however, NMFS is not establishing national
standards for precision, accuracy, or reliability of bycatch estimates
or data. NMFS clarifies in this rule that Councils should seek to
minimize uncertainty in the resulting data, recognizing that different
degrees of data uncertainty may be appropriate for different fisheries.
However, the specific characteristics of each fishery and its bycatch
vary widely from region to region and from fishery to fishery. NMFS
believes that it is important for Councils to address the
characteristics of bycatch in a particular fishery and also address
data use, data uncertainty, and feasibility considerations in the
context of that fishery. To ensure robust scientific advice in
establishing or reviewing SBRMs, Sec. 600.1610(a)(2)(iv) requires a
Council to consult with its SSC and/or regional NMFS science centers on
reporting methodology design considerations, such as data elements,
sampling designs, sample sizes and reporting frequency, all of which
contribute to the level of data quality.
The SBRM provision in section 303(a)(11) of the MSA does not
specify reliability, accuracy, precision, or other qualifiers regarding
bycatch data or estimates. NMFS recognizes that some courts have
addressed bycatch estimates or the quality of data in the context of
particular FMPs or amendments. See, e.g., NRDC v. Evans, 168 F.Supp.2d
1149, 1154 (N.D. Cal. 2001) (finding that NMFS failed to address the
SBRM requirement and its ``duty to obtain accurate bycatch data''); and
Oceana v. Evans, 384 F.Supp.2d 203, 234-235 (D.D.C. 2005) (finding that
NMFS failed to analyze what type of program would ``succeed in
producing the statistically reliable estimates of bycatch needed to
better manage the fishery'' and to address an accuracy concern in a
scientific study). However, these opinions were based on the specific
FMPs before the courts, and did not engage in comprehensive analysis of
the statutory construction of the SBRM provision. NMFS believes that
the approach in the final rule is consistent with MSA section
303(a)(11) and will ensure that SBRMs achieve the statutory purpose for
SBRMs (Sec. 600.1600), while allowing Councils to address the unique
circumstances of particular fisheries.
NMFS disagrees that the rule would result in data that is contrary
to the NS2 guidelines. NS2 requires that conservation and management
measures be based on the best scientific information available. 16
U.S.C. 1851(a)(2). It does not require NMFS to produce statistically
reliable data or data that achieves a particular level of precision for
the bycatch estimates. In fact, the NS2 guidelines recognize that there
may be data limitations in different fisheries. See 50 CFR
600.315(a)(3) (noting that ``data-poor'' fisheries may require use of
simpler assessment methods and greater use of proxies for quantities
that cannot be directly estimated). Consistent with the NS2 guidelines
at Sec. 600.315(a)(2) and Sec. 600.315(a)(6)(v), and in response to
comments, NMFS has revised Sec. 600.1610(a)(2) by adding a new
paragraph (iii) that requires a Council to address uncertainty and to
design SBRMs so that uncertainty associated with the resulting bycatch
data reported to the Secretary can be described quantitatively or
qualitatively.
Comment 32: Many commenters stated that the SBRM rule will result
in poor data and, as a result, managers will not be able to sustainably
manage fisheries. Commenters asserted that an accurate accounting of
bycatch in fisheries is critical to fulfilling the requirements of the
MSA to account for all sources of mortality in fisheries management,
prevent overfishing, rebuild overfished stocks, and minimize
[[Page 6329]]
the amount of bycatch and mortality of unavoidable bycatch.
Response: NMFS disagrees that the rule will adversely affect data
collection and fishery management efforts. The rule reinforces that an
SBRM must meet its statutory purpose and sets forth requirements for
establishing and reviewing SBRMs. For example, the rule includes a
requirement that Councils address the uncertainty of the data resulting
from an SBRM and that Councils design an SBRM so that the uncertainty
of the data can be described. The rule clarifies that Councils should
seek to minimize uncertainty in the resulting data, recognizing that
different degrees of data uncertainty may be appropriate for different
fisheries. The rule also includes a requirement that Councils address
how the data resulting from the SBRM are used and consult with their
SSCs and/or the regional science centers on SBRM design considerations.
NMFS believes that the rule's requirements, along with periodic review
of SBRMs, will ensure that SBRMs produce bycatch data that, along with
other sources of data, can be used to assess and estimate bycatch and
inform the development of conservation and management measures.
The NS2 and NS9 guidelines acknowledge that all scientific data
come with a level of uncertainty. See response to comment 31
(discussing 50 CFR 600.350(d)(2), Sec. 600.315(a)(2), and Sec.
600.315(a)(6)(v)). As the NS2 guidelines note, science is a dynamic
process and new scientific findings constantly advance the state of
knowledge. Id. Sec. 600.315(a)(5) (stating that best scientific
information is, therefore, not static and ideally entails developing
and following a research plan). The key thing is to account for
uncertainty when considering fishery management decisions. See e.g., 50
CFR 600.315(a)(2) and Sec. 600.315(a)(6)(v) (providing for
acknowledgment of uncertainties in scientific information used to
inform decision making); and Sec. 600.310(f)(1)(vi) and Sec.
600.310(f)(2)(i) (describing under NS1 guidelines sources of scientific
uncertainty and requiring that acceptable biological catch control rule
account for scientific uncertainty and the Council's risk policy). NMFS
notes that the requirement to establish an SBRM (16 U.S.C. 1853(a)(11))
is a separate statutory requirement from annual catch limits and other
overfishing provisions (16 U.S.C. 1853(a)(15) and 1851(a)(1)) and from
rebuilding provisions (16 U.S.C. 1854(e)). These various provisions
should not be conflated.
Comment 33: One commenter stated that without any guidance on the
level of accuracy and precision of the data, it is unclear to what
extent the data will be ``useful'' in assessing bycatch to inform
management decisions. The commenter stated that the rule itself does
not need to specify what constitutes ``useful,'' but it should
recommend a clear process, like SSC consultation, that will define
``useful.'' Another commenter stated that NMFS should clarify the
language in Sec. 600.1610(b) requiring consultation with a council's
SSC, advisory panels, and the NOAA science centers to ensure that
bycatch estimation can be appropriately considered with respect to
establishing a reporting methodology. Another commenter stated that
SBRMs should be designed based on the best scientific statistical and
sampling methods available to collect and analyze that data.
Response: In response to comments, NMFS has deleted reference to
``data that are useful'' in the final rule. Instead, NMFS specifies
that an SBRM must meet its statutory purpose set forth in Sec.
600.1600, and requires under Sec. 600.1610(a)(2)(iv) consultation with
the SSC and NOAA science centers. Specifically, NMFS has revised the
final rule to require in Sec. 600.1610(a)(2)(iv) that a Council
consult with its SSC and the NOAA science centers on methodology design
considerations such as data elements, sampling designs, sample sizes,
reporting frequency, and the scientific methods and techniques
available to collect, record, and report bycatch data that could
improve the quality of the bycatch estimates. Information provided
through the consultation process will enable a Council to develop an
SBRM that incorporates scientific input and that will provide data that
can be used to assess the amount and type of bycatch occurring in the
fishery.
Comment 34: Some commenters expressed support for Evaluating
Bycatch, which recommended the use of at-sea observers and
observational technologies, a statistically valid sampling design, a
goal to achieve levels of precision of 20 to 30 percent coefficient of
variation (CV), models for combining data to assess bycatch, and
adherence to data collection and estimation standards. One commenter
asserted that, without further study, NMFS cannot step away from the
recommendations in Evaluating Bycatch. The commenter stated that the
memorandum may represent the ``best available science'' and, if so,
NMFS must rely upon it and incorporate it in this rule.
Response: NMFS disagrees that Evaluating Bycatch should be
incorporated into this rule: It was not developed as the agency's
interpretation of MSA section 303(a)(11), and it conflates the
establishment of a reporting methodology with methods to assess/
estimate bycatch. However, NMFS closely reviewed Evaluating Bycatch
when developing this rule and drew upon concepts and approaches from
that report. For example, the report noted that the choice of which
monitoring methods are used in a particular fishery is based on
consideration of a range of factors, e.g., quality of data,
credibility, timeliness, cost, safety. See Evaluating Bycatch at 23.
With regard to estimates of bycatch from observer data, the report
provides CV recommendations, but lists numerous caveats for using
precision goals in the context of bycatch reporting/monitoring
programs. See id. at 103 (noting that there may be circumstances where
meeting precision goals for bycatch estimates would not be an efficient
use of public resources, funding and logistical constraints may prevent
attainment of goals, etc.). NMFS also notes that this rule takes a
fishery-specific approach and requires Councils to address bycatch
characteristics, data quality, data use, and feasibility, which are
considerations reflected in Evaluating Bycatch.
Evaluating Bycatch continues to be available as a resource; it
contains information that may be helpful when developing SBRMs, such as
discussion of regional bycatch and fisheries issues, the advantages and
disadvantages of different reporting/monitoring measures, and precision
goals for bycatch estimates. However, the report is from 2004, so it
would be important for a Council to consider whether more updated
information is available when establishing or reviewing an SBRM.
Comment 35: Adequate monitoring of bycatch of fish as well as other
living marine resources should be required in the proposed rule. The
2005 report entitled, ``How Much Observer Coverage is Enough to
Adequately Estimate Bycatch?'' should be reviewed carefully to assist
the Fisheries Service in developing standardized criteria for bycatch
monitoring.
Response: In developing this final rule, NMFS considered the
Babcock and Pikitch report, ``How Much Observer Coverage is Enough to
Adequately Estimate Bycatch?'' NMFS is very familiar with this report,
as NMFS has addressed the report in past litigation over SBRMs. As
explained in the response to comment 13, assessing and estimating
bycatch is not included in the definition of an SBRM. However, the rule
requires, among other things,
[[Page 6330]]
consideration of data uncertainty and data use in developing and
reviewing SBRMs. The Babcock and Pikitch report is one source among
many sources of information available to Councils and NMFS when
developing and reviewing SBRMs.
NMFS notes that the report focuses on the use of observers for
collecting, recording, and reporting bycatch data. The MSA provides
that observers may be used, but are not required to be used, for data
collection. See 16 U.S.C. 1853(b)(8) (providing for observers as a
discretionary FMP measure). The report acknowledges that there is a
range of observer coverages that may be more or less appropriate for a
fishery. The report also notes that determining the appropriate level
of sampling effort is an iterative process. This final rule similarly
acknowledges that different SBRMs will be appropriate for different
fisheries, and provides for scientific input into development of SBRMs
and periodic review of SBRMs.
Comment 36: One commenter stated that NMFS should conduct
scientific studies on accuracy/bias, precision, management uncertainty,
and electronic monitoring advances to determine how to set standardized
criteria for bycatch monitoring and reporting.
Response: NMFS strives to continually improve the science
underlying its fishery management programs. Pursuant to 16 U.S.C.
1881c, NMFS prepares, in cooperation with the Councils and states, a
strategic plan for fisheries research. The NMFS Office of Science and
Technology's 2013 Strategic Plan identifies a variety of activities to
improve data collection and data assessments for a variety of purposes,
including bycatch analyses. See https://www.st.nmfs.noaa.gov/Assets/Strategic-Plans/ST%20Strategic%20Science%20Plan%20%202013.pdf. NMFS
recently initiated a review and update of this plan. Furthermore, in
February 2016, NMFS released a draft National Bycatch Reduction
Strategy (draft Strategy). See http://www.nmfs.noaa.gov/sfa/fisheries_eco/bycatch/docs/national-bycatch-strategy-2-23-16-web.pdf.
The first objective of the draft Strategy is to strengthen monitoring
and data collection programs through cost-effective use of new and
existing tools (e.g., observers, logbooks, and electronic technologies)
to collect bycatch data that inform agency bycatch priorities. NMFS
received multiple public comments on the draft Strategy and is now
working to finalize it and develop action plans. Once the strategy is
finalized, NMFS plans to develop regional and national action plans in
coordination with stakeholders to identify specific actions that
reflect regionally specific bycatch priorities, including research and
monitoring priorities. Another example of NMFS' commitment to
continually improving our data collection programs is NMFS' Policy on
electronic technologies and fishery-dependent data collection programs.
See NMFS Policy Directive 30-133, Policy on Electronic Technologies and
Fishery-Dependent Data Collection (http://www.nmfs.noaa.gov/op/pds/documents/30/30-133.pdf).This policy provides guidance on the adoption
of electronic technology solutions in fishery dependent data collection
programs. Electronic technologies include the use of vessel monitoring
systems, electronic logbooks, video cameras for electronic monitoring,
and other technologies.
To the extent the commenter is recommending studies to support
development of national, uniform bycatch reporting requirements, NMFS
disagrees with the recommendation, as this rule takes a fishery-
specific approach to the SBRM requirement. See the responses to
comments 8 through 12.
Consideration of Feasibility, Costs, and Funding
Comment 37: Several commenters stated that the SBRM provision of
section 303(a)(11) does not say that an FMP must include SBRM if it is
``feasible'' or ``practicable''; the statute requires FMPs to establish
SBRM without any qualifying condition. Commenters assert that the
provisions of the proposed rule relating to feasibility, including
consideration of costs and funding, are contrary to the plain language
of the statute. Commenters also cite Oceana v. Locke, 670 F. 3d 1238
(D.C. Cir. 2011), for the proposition that the MSA requires NMFS to
establish SBRM without regard to any consideration of practicability
(i.e., costs or funding). Commenters also argue that NMFS may not
import a ``practicable'' standard from National Standard 7 (NS7), and
may not use reducing costs as an excuse to implement weakened
management measures that will not achieve the MSA's primary
conservation requirements.
Response: NMFS agrees that the requirement to establish a
standardized reporting methodology is mandatory for all FMPs. However,
NMFS disagrees that the MSA precludes consideration of feasibility from
cost, technical, and operational perspectives when establishing such a
methodology. Beyond the fact that an SBRM must meet its statutory
purpose, section 303(a)(11) does not specify any considerations for
establishing a standardized reporting methodology; therefore, NMFS has
discretion to interpret the MSA and establish reasonable considerations
and requirements. Data collection, reporting, and recording programs
can be expensive, logistically challenging to design and implement,
involve new and cutting-edge technologies, and necessitate the
consideration of the safety of human life at sea. Therefore, it is
reasonable and appropriate for a Council to analyze issues of
feasibility when establishing or reviewing an SBRM and to ultimately
choose a methodology that is in fact feasible (i.e., capable of being
implemented) from cost, technical, and operational perspectives. See
response to comment 38 (describing budget and funding challenges).
Contrary to commenters' assertion, Oceana v. Locke, 670 F. 3d 1238
(D.C. Cir. 2011), does not preclude consideration of costs. In that
case, the court noted that the second clause of section 303(a)(11)
(regarding bycatch minimization measures) includes the phrase ``to the
extent practicable,'' but that phrase does not appear in the first
clause that requires establishing SBRMs. Oceana v. Locke held that
costs and funding are not an excuse to forego establishing SBRMs.
Consistent with the opinion, NMFS has revised Sec. 600.1610(a)(2)(ii)
in this rule to state explicitly that feasibility concerns do not
exempt an FMP from the requirement to establish SBRM. NMFS disagrees
that the opinion prohibits any consideration of costs or funding.
Commenters assert that NMFS cannot consider NS7 (conservation and
management measures shall, where practicable, minimize costs and avoid
unnecessary duplication) in interpreting section 303(a)(11) because
they are separate statutory provisions. MSA sections 301 (National
Standards) and 303 (FMP Contents) are separate provisions, but NMFS
disagrees that the agency may not consider them both in developing this
rule. FMPs must comply with mandatory FMP requirements under section
303(a)--such as the SBRM provision--and also the National Standards
under section 301. See 16 U.S.C. 1853(a) and 16 U.S.C. 1851(a). In
addition, it is important to consider the SBRM provision in the context
of the statute as a whole.
Commenters further argue that even if it is permissible to consider
NS7, NS7 requires that costs be minimized ``where practicable, not
absolutely,'' citing Connecticut v. Daley, 53 F.Supp.2d 147,
[[Page 6331]]
172-73 (D. Conn. 1999). This rule requires that an SBRM be feasible
from cost and other perspectives, not that costs be minimized
absolutely. Commenters also cite N. Carolina Fisheries Ass'n, Inc. v.
Gutierrez, 518 F.Supp.2d 62, 91-92 (D.D.C. 2007), for the proposition
that Congress intended that ``a focus on the economic consequences of
regulations not subordinate th[e] principal [conservation] goal of the
MSA.'' NMFS notes that the cited language did not address NS7, as
commenters assert, but NS8. NS8 requires, in relevant part, that FMP
measures ``shall, consistent with the conservation requirements of this
Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery
resources to fishing communities'' and ``to the extent practicable,
minimize adverse economic impacts on such communities'' 16 U.S.C.
1851(a)(8). Whether an SBRM can be implemented from cost and other
perspectives is different than an analysis of economic impacts on
communities. Moreover, NS8 makes explicit reference to MSA conservation
requirements, whereas NS7 does not. In any event, as explained above,
this rule does not allow a Council to forego establishing an SBRM based
on high costs or low funding.
Comment 38: NMFS received several comments on the requirement in
the proposed rule that all SBRMs must be designed to be implemented
within available funding. Some commenters supported the requirement,
some asked for clarification, and some opposed the requirement. One
commenter requested that NMFS clarify that if funds are not available
from current funding sources, then there is no requirement to implement
the SBRM. One commenter noted that future funding for monitoring
programs is unknown, so it is not clear how a Council can be expected
to address ``feasibility'' when designing an SBRM or how it can design
an SBRM to be implemented within available funding. The commenter
suggested a more thorough discussion of how a Council is supposed to
design a program for an uncertain funding amount. Other commenters
asserted that NMFS controls the availability for funding for SBRMs.
These commenters stated that the proposed rule therefore would allow
the agency to disapprove the establishment of an SBRM based on a self-
imposed funding problem.
Response: SBRMs are mandated by statute, and NMFS has revised Sec.
600.1610(a)(2)(ii) to state explicitly that feasibility concerns do not
exempt an FMP from this statutory mandate. In response to public
comment, NMFS has deleted reference to designing an SBRM to be
``implemented with available funding,'' but has retained the
requirement that an SBRM must be feasible from cost, technical, and
operational perspectives. For example, although an increase in observer
coverage levels in a certain fishery may reduce the uncertainty of the
data resulting from the SBRM, such an increase may not be feasible from
a cost or safety standpoint or may result in only an incremental
improvement in data quality. Under this rule, Councils would evaluate
whether such an increase is justified in light of the purpose of the
methodology and feasibility and other requirements under Sec.
600.1610(a)(2).
NMFS is charged with fulfilling a wide range of requirements under
the MSA, MMPA, ESA, and other statutes. These mandates include, but are
not limited to, ending overfishing and rebuilding fish stocks,
protecting and recovering threatened and endangered species, reducing
bycatch, enforcing laws and regulations, and combating illegal,
unreported, and unregulated fishing internationally. Addressing all of
these mandates and requirements is a challenging undertaking for NMFS,
particularly in light of increasing legal mandates and budget
constraints.
When Congress establishes a program or activity, it must decide how
to finance it. Typically programs and activities are financed by
appropriating funds from the U.S. Treasury. NMFS requests Congressional
appropriations through the President's budget request to support
statutory and regulatory requirements. Through this annual
appropriations process, funding is provided for NMFS' many mandates. In
addition to providing the necessary funds, a congressional
appropriation establishes a maximum authorized program level, meaning
that an agency cannot, absent specific statutory authorization, operate
beyond the level that can be paid for by its appropriations. 72 Comp.
Gen. 164, 165 (1993). In light of these considerations, and given that
procedures to collect, report, and record bycatch data can be extremely
costly, NMFS believes that it is important to require that SBRMs be
feasible from cost as well as other perspectives.
NMFS acknowledges that Congressional appropriations may change over
time, and appropriated funds may, consistent with federal
appropriations law, be allocated to implement various statutory
mandates and to respond to changes in conditions and priorities across
the country. However, even though it may not be possible to anticipate
future funding levels for procedures to collect, record, and report
bycatch with complete certainty, the Councils would not be developing
SBRMs in a vacuum. NMFS has a seat on each Council, and meets regularly
with the Council Coordination Committee. The Councils and NMFS are able
to consider the trends in costs and in appropriations levels in recent
years. For example, NMFS notes that funding for observer programs has
been relatively stable over the past two years, with approximately
$43.7 million appropriated by Congress for observer programs in FY 2015
and FY 2016.
Comment 39: One commenter stated that SBRMs should be functional at
a variety of funding levels. If funding is insufficient for monitoring
a particular management regime, then the regime should be made more
precautionary (e.g., bigger buffers), rather than foregoing SBRMs or
moving forward with inadequate funding. The commenter states that ACLs,
AMs, and SBRMs are all key, interconnected components of a sustainable
fishery. If the FMP design is demanding, then the SBRM must be too. If
there is insufficient funding, the FMP design and the SBRM both need to
be scaled back. NMFS should give guidance about how to revise FMP
components to balance the level of an SBRM that is feasible.
Response: NMFS agrees that an SBRM should be functional at varying
funding levels. Section 600.1610(a)(2)(ii) explicitly acknowledges that
funding may vary from year to year, and requires a Council to address
how implementation of the methodology may be adjusted while continuing
to meet the purpose described under Sec. 600.1600. NMFS believes this
consideration is important, given the potential variability in funding
levels, the desire for timely and efficient SBRM implementation, and
the fact that FMP amendments can take a long time to develop and
implement. This consideration is particularly important when developing
SBRMs that have data collection procedures that may be more susceptible
to changes in funding (e.g., observer programs). NMFS notes that the
SBRM provision under MSA section 303(a)(11) is not couched in terms of
an annual requirement as is the case with ACLs. Even if a funding
shortfall in a particular year affects the implementation of an SBRM
that does not necessarily mean that the SBRM is failing to meet its
purpose or that it needs to be amended.
Data resulting from SBRMs may be used to inform management
decisions
[[Page 6332]]
beyond bycatch-related ones, but, as explained in response to comment
20, SBRMs and ACLs/AMs are separate statutory requirements that should
not be conflated. NMFS does not believe that further guidance is needed
regarding buffers, given existing guidance related to scientific and
other uncertainties. The NS1 guidelines, 50 CFR 600.310, describe how
the Councils should consider uncertainty when specifying ACLs and AMs.
The NS2 guidelines, 50 CFR 600.315, provide guidance on using data that
is uncertain in management decisions. In addition, the NS6 guidelines,
50 CFR 600.335, address how to take into account variations in
fisheries (e.g., biological and economic uncertainties and
uncertainties from changes in fishing practices).
Comment 40: One commenter requested that NMFS clarify in the
proposed rule's Sec. 600.1610(a)(2)(ii) (81 FR 9413, February 25,
2016) who would be doing the assessment that a methodology is feasible
from cost, technical, and operational perspectives.
Response: NMFS has clarified Sec. 600.1610(a)(2) to state that the
Councils are required to address feasibility and comply with other
requirements of the section. Section 600.1605(b) defines ``Council'' in
the same manner as in 50 CFR 600.305. Therefore, the word ``Council''
includes the Regional Fishery Management Councils and the Secretary of
Commerce, as applicable. Per MSA section 304(a), NMFS approves,
disapproves, or partially approves Council-developed FMPs and FMP
amendments for consistency with the MSA and other applicable law. 16
U.S.C. 1854(a).
Comment 41: Two comments were related to the costs, including
industry costs, associated with observer programs and electronic
monitoring. One commenter stated that industry should not be required
to pay for observer coverage. One commenter asked about the costs to
monitor groundfish, and noted that there are some legal questions to
address before electronic monitoring can be implemented.
Response: NMFS recognizes that electronic monitoring and observer
programs can be costly and logistically challenging to implement.
However, a discussion of the particular costs and challenges associated
with monitoring programs in specific fisheries is beyond the scope of
this rule.
Comment 42: One commenter stated that NMFS cannot justify to
Congress the need for more funds related to bycatch data collection if
the agency prevents Councils from designing good SBRMS, and, therefore,
from assessing data needs and identifying capacity shortfalls.
Response: With respect to the quality and use of the data resulting
from SBRMs, please see responses to comments 30 through 36. With
respect to budget requests, NMFS works with the Department of Commerce
and the Office of Management and Budget (OMB) to request Congressional
appropriations through the President's budget to Congress each fiscal
year in accordance with relevant laws, regulations, and administrative
procedures. NMFS uses information about bycatch research and data
collection needs contained in a variety of reports and strategic
planning processes to inform this budget planning and formulation
process (e.g., the strategic plan for fisheries research required by 16
U.S.C. 1881c of the MSA, National Observer Program strategic reviews
and annual reports, SAFE reports, and numerous other documents).
However, the development of NMFS-related funding requests contained in
the President's yearly budget submission to Congress is beyond the
scope of this rule.
Characteristics of Bycatch and Other Considerations
Comment 43: Several commenters expressed support for the
requirement for Councils to consider characteristics of bycatch in the
fishery. One commenter noted that this requirement is more useful and
important when establishing conservation and management measures. The
commenter recommends that this sentence be moved to 50 CFR
600.1610(a)(2)(ii) as additional factors that the Councils may
consider. Another commenter asserted that SBRMs should be designed to
provide more certain bycatch data in fisheries where discard mortality
is identified as an important source of fishing mortality.
Response: This rule requires Councils to undertake a fishery-
specific analysis to establish an SBRM that meets the purpose described
in Sec. 600.1600 of this final rule. To perform such an analysis, NMFS
believes that the specific characteristics of bycatch in that fishery
need to be addressed. See response to comment 9 and section I.C.
(discussing consideration of different fishing activities and
operations).
NMFS agrees that considering the importance of bycatch as part of
fishing mortality is an important consideration when establishing or
reviewing SBRMs. More specifically, Sec. 600.1610(a)(2)(i) provides
that a Council must address information about the characteristics of
bycatch in the fishery when available, including, but not limited to,
the amount of bycatch occurring in the fishery, the importance of
bycatch in estimating the fishing mortality of fish stocks, and the
effect of bycatch on ecosystems. NMFS believes that a fishery-specific
evaluation of bycatch as stated above, in conjunction with
considerations of feasibility, data use, and data uncertainty will
result in an SBRM that meets the purpose as described in Sec.
600.1600.
Comment 44: Some commenters stated that NMFS does not have
discretion to decide not to require or establish an adequate SBRM, due
to financial constraints or any other factors, such as the ``overall
magnitude and/or economic impact of the fishery.''
Response: As explained in response to comment 38, section
303(a)(11) of the MSA requires all FMPs to establish an SBRM, and NMFS
has revised Sec. 600.1610(a)(2)(ii) to state that feasibility concerns
(which include costs and funding) do not exempt an FMP from this
mandate. NMFS has removed the text about considering the overall
magnitude and/or economic impact of the fishery from the final rule,
because NMFS believes that it is not necessary given existing guidance
for NS7 and National Standard 8.
Comment 45: One commenter suggested the incorporation of guidance
to ensure the proper identification of bycatch species to reduce
misidentification errors. The commenter also suggested including
consideration of the status of bycatch species.
Response: Incorporating guidance for proper identification of
bycatch species is beyond the scope of this rule. NMFS has created
numerous species identification guides, some of which include
information about the bycatch species' management status. For example,
a NMFS shark identification guide for the recreational fishery of the
U.S. Atlantic and Gulf of Mexico specifies which shark species are
prohibited and must be released (see http://www.nmfs.noaa.gov/sfa/hms/species/sharks/rec_shark_id_placard.pdf). NMFS also has created a guide
to help Alaska fishery observers identify coral species that may occur
as bycatch (see http://www.afsc.noaa.gov/FMA/PDF_DOCS/Coral_Tutorial_2014.pdf). NMFS believes this guidance is more
appropriately accomplished through these identification guides.
Comment 46: Several commenters commented on the proposed rule's
Sec. 600.1610(a)(2)(i) (81 FR 9413, February 25, 2016), which would
require Councils to consider the conservation and management
[[Page 6333]]
objectives regarding bycatch in the fishery. One commenter asked
whether this was intended to address something different than the
bycatch provisions in MSA section 303(a). One commenter suggested
clarifying that this does not establish a requirement that each FMP
identify specific bycatch objectives beyond those required in section
303(a)(11).
Response: The intent of proposed Sec. 600.1610(a)(2)(i) (81 FR
9413, February 25, 2016) was to provide for a fishery-specific analysis
when establishing an SBRM. To clarify that this rule is not requiring
Councils to identify specific bycatch objectives beyond those required
by section 303(a)(11) and NS9, NMFS has removed reference to
``conservation and management objectives regarding bycatch.'' Further,
NMFS believes that it is not necessary to state this as a requirement
in Sec. 600.1610(a)(2), because all SBRMs must meet the purpose
described in Sec. 600.1600, which includes reference to ``inform[ing]
the development of conservation and management measures that, to the
extent practicable, minimize bycatch and bycatch mortality.''
Comment 47: One commenter stated that SBRMs can and should describe
the methodology by which bycatch data will be incrementally improved
with new efficiencies, techniques, and funding.
Response: NMFS disagrees with this comment as this rule, existing
National Standard guidelines, and NMFS strategic plans already provide
sufficient direction on improving bycatch data. This rule includes a
provision for Councils to review SBRMs at least every 5 years, and in
Sec. 600.1610(a)(2)(iv), requires Councils to consider scientific
methods and techniques available to collect, record and report bycatch
data that could improve the quality of bycatch estimates. In addition,
the NS 9 guidelines provide guidance on improving data collection
methods, data sources, and applications of data for each fishery to
determine the amount, type, disposition, and other characteristics of
bycatch and bycatch mortality in each fishery for purposes of NS9 and
MSA sections 303(a)(11) and 303(a)(12). 50 CFR 600.350(d)(1). NMFS
notes that it also has ongoing initiatives to address bycatch and to
strengthen monitoring programs. See response to comment 36 for further
explanation of these initiatives.
Adaptable Implementation
Comment 48: NMFS received mixed comments on the adaptable
implementation provision (proposed Sec. 600.1610(c) at 81 FR 9413,
February 25, 2016). Some expressed support for it as it provides
flexibility during implementation and others recommended changes to or
elimination of the provision. One commenter indicated that the
provision would support a Council's efforts to look at ways to increase
and improve methodologies for data collection practices. One commenter
stated that, before operational adjustments are made, managers should
ensure that they can effectively collect and report data consistently
across jurisdictions to inform the management of bycatch species.
Another commenter stated that this provision frustrates congressional
intent to have national-level standardization, and also allows for non-
transparent processes to adjust SBRMs. The commenter asserted that
changes to an SBRM must be made through an FMP amendment to safeguard
public participation and ensure that impacts will be more fully
considered. One commenter requested deleting Sec. 600.1610(c), as it
would severely limit a Council's ability to develop effective SBRMs and
change SBRMs based on fishery characteristics in the future.
Response: Fisheries management occurs in a highly variable
environment, and from year to year, there can be changes in available
funding, equipment, methods for recording and transmitting data,
fishing activity, and other changes. NMFS' intent in proposing Sec.
600.1610(c) was to emphasize that, when developing an SBRM, it is
important to consider implementation and operational issues that might
arise. See 50 CFR 600.335(b) (noting in National Standard 6 guidelines
that a regime ``must be flexible enough to allow timely response to
resource, industry, and other national and regional needs''). NMFS,
Councils, and stakeholders all have an interest in smooth
implementation of SBRMs, and FMPs can take a long time to amend. In
response to public comments and to clarify its intent, NMFS has deleted
proposed Sec. 600.1610(c) at 81 FR 9413, February 25, 2016. Instead,
Sec. 600.1610(a)(1) clarifies that in addition to proposing
regulations necessary to implement the SBRM, a Council should also
provide in its FMP, or in a fishery research plan authorized under 16
U.S.C. 1862, guidance to NMFS on how to adjust implementation of an
SBRM, consistent with the FMP. See National Standard 6 guidelines, 50
CFR 600.335. This text refers to adjustments ``consistent with the
FMP.'' To the extent that changes would be needed to an SBRM beyond
what the FMP established, an FMP amendment would be needed. NMFS
believes that this approach will encourage transparency. The rule
requires a Council to address implementation and operational issues up-
front during the development of an SBRM and encourages a Council to
provide guidance to NMFS on SBRM implementation.
Consistent with the SBRM established in an FMP, a Council could
provide for adjustments in how an SBRM is implemented through
regulations (see, e.g., SBRM Omnibus Amendment (80 FR 37182, June 30,
2015)). Councils may also provide other guidance to NMFS via non-
regulatory mechanisms. As an example, the North Pacific Groundfish FMP
uses an Annual Deployment Plan (ADP) to address practical and
operational implementation issues. See comment and response 29 for
further explanation of the ADP. When a Council is considering whether
to provide for regulations and/or other guidance to implement an SBRM,
some questions that may be helpful include: What are the implementation
and operational issues that might arise (see e.g., variations and
uncertainties described in NS6 guidelines); what type of adjustments or
guidance might be helpful to address these issues; would certain
adjustments result in an SBRM not meeting its purpose (see Sec.
600.1600); and what would happen if there is an unexpected funding
shortfall. NMFS disagrees that SBRMs need to be standardized at a
national level in order to have data to inform management decisions.
See comments and responses 13 (explaining purpose of SBRMs and
consideration of data use and quality) and 8 (explaining interpretation
of ``standardized'').
Comment 49: One commenter stated that allowing adjustments to the
bycatch methodology to be based on factors such as funding, management
contingencies, or scientific priorities could be interpreted to
authorize the type of budgetary exemption from SBRM requirements that
has been found contrary to the MSA, citing Oceana v. Locke, 670 F.3d
1238 (D.C. Cir. 2011).
Response: As explained in responses to comments 37 and 38, MSA
section 303(a)(11) requires that all FMPs establish an SBRM, and NMFS
has clarified in Sec. 600.1610(a)(2)(ii) that ``feasibility concerns
do not exempt an FMP from the requirement to establish a standardized
reporting methodology.'' NMFS disagrees that Oceana v. Locke precludes
a Council from considering implementation and operational issues and
trying to plan for them. See
[[Page 6334]]
response to comment 37 for further discussion of the court case.
Section 600.1610(a)(1) provides that a Council must explain how an
SBRM, which may include an implementation adjustment mechanism, meets
the statutory purpose of an SBRM (see Sec. 600.1600), based on an
analysis of the requirements in Sec. 600.1610(a)(2) (characteristics
of bycatch, feasibility, data quality and data use).
Review of FMPs
Comment 50: Some commenters stated that the Sustainable Fisheries
Act of 1996 (SFA) required the agency to establish SBRM regulations by
1998, thus the 5 year review period would unreasonably delay SBRM
implementation to 21 years after it was required by Congress.
Response: NMFS disagrees with these comments. Section 108(a) of the
SFA added several provisions to section 303(a) of the MSA, including
section 303(a)(11). (See Pub. L. 104-297, 110 Stat. 3559, sec. 108
(Oct. 11, 1996)). Section 108(b) of the SFA required that each Council
submit to the Secretary of Commerce amendments to each FMP to comply
with the amendments made in section 108(a) not later than 24 months
after the date of enactment. Id. The Act did not require NMFS to
promulgate a national SBRM rulemaking. As explained in the preamble to
the proposed rule, NMFS is promulgating this rule pursuant to section
305(d) of the MSA (16 U.S.C. 1855(d)) to clarify NMFS' interpretation
of the SBRM provision and provide for periodic review of SBRMs.
Comment 51: NMFS received several comments on the 5-year timeline
for reviewing FMPs for consistency with the rule. One commenter
supported the timeline, but given concerns about workload for the
Councils, recommended extending subsequent SBRM reviews to 10 years or
on an as needed basis. Another commenter noted that if a Council is
provided with updated estimates of bycatch at each Council meeting
along with the estimates of recreational and commercial landings, the
ability to monitor bycatch on an ongoing basis will also reduce the
need for a comprehensive review from 5 to 10 years. Another commenter
recommended that a review be conducted after 5 years of data are
available, rather than 5 years after implementation.
Response: Data collection and reporting methods, conservation and
management issues, and bycatch characteristics may change considerably
in a 5-year timeframe. Therefore, NMFS believes that review in 5 years
(and not a longer period) is appropriate. NMFS notes that there are
several other FMP review processes that are on 3 to 5 year review
timeframes. These include catch share programs, essential fish habitat,
scientific research and other reviews. From an efficiency and resource
standpoint, Councils may want to consider conducting SBRM reviews in
conjunction with other ongoing FMP reviews as much as possible.
Further, this provision is consistent with the NS9 guidelines, which
refer to the review and improvement of data collection methods, data
sources, and applications. 50 CFR 600.350(d)(1).
Comment 52: One commenter urged NMFS to seriously consider the
potential negative implications, including unnecessary workload, of the
rule on regions which are already in compliance with MSA requirements.
Section 600.1610(a)(1) should be modified so that it makes clear that
the first step would be for the Councils to review their FMPs to
determine if their FMPs provide a clear description of the SBRM, and
only if the Council determines it does not, should additional
modifications be made in either the FMP or through other reference
documents. The provision requiring that all FMPs must be consistent
with the rule within 5 years is not necessary if Councils have reviewed
their FMPs and determined that their FMPs do not need to be modified.
Response: The proposed rule provided Councils with a 5-year time
frame to review and, if necessary, amend their existing FMPs for
consistency with the rule. NMFS continues to believe that there is a
need for this review. However, the final rule clarifies that a Council
does not need to amend an FMP if NMFS determines that it is consistent
with this rule.
Other Comments
Comment 53: Some commenters requested that NMFS extend the comment
period for the proposed rule an additional 60 days.
Response: NMFS believes that the 60-day comment period provided the
public with a meaningful opportunity to comment on the proposed rule,
and therefore, declined to extend this period. Considering the nature
and scope of the proposed rule, NMFS believes that 60 days was an
adequate timeframe for interested persons to understand the issues
raised and submit to the agency written comments with information and
arguments relevant to those issues. Furthermore, several Councils are
actively working on SBRM-related issues and would benefit from the
guidance and interpretation that this rule would provide. If, as a
result of reviewing their FMPs for consistency with the MSA and this
rule, Councils amend their FMPs, the public will have another
opportunity to comment on any specific actions proposed by a Council.
Comment 54: Given the critical nature of bycatch data collection,
one commenter urged the agency to provide resources to improve
collection, recording, and reporting of bycatch as soon as possible.
Response: NMFS has made SBRM data collection programs a priority.
NMFS continually seeks to improve data collection, recording, and
reporting through a variety of mechanisms. See response to Comment 47
for more information.
Comment 55: Commenters stated that the proposed rule would
undermine the following agency and Council efforts to improve fisheries
data, modernize data collection programs, and integrate ecosystem
considerations into fisheries management: Ecosystem-Based Fishery
Management Policy, National Bycatch Reduction Strategy, Action Plan for
Fish Release Mortality Science, Regional Electronic Monitoring and
Reporting Implementation Plans, and MRIP Implementation Plan.
Commenters also asserted that the proposed rule would prevent the
agency from implementing hard caps and performance objectives in the
West Coast drift gillnet fishery and would facilitate the further
collapse of the New England groundfish fishery.
Response: NMFS disagrees that this rule would negatively affect
ongoing efforts to improve fisheries data, modernize data collection,
and implement ecosystem based fisheries management. This rule
interprets basic requirements of the SBRM provision and does not
prescribe or otherwise change ongoing policy and science initiatives.
Because the rule interprets the basic requirements for establishing
SBRMs, NMFS also disagrees with the comment that suggests the rule
would prevent the establishment of hard caps in the West Coast drift
gillnet fishery or undermine the New England groundfish fishery. The
commenter presumes that this rule will diminish the quality of bycatch
data and thus the assessment of bycatch and the Council's ability to
adopt management measures to address bycatch. NMFS addresses this
concern in responses to comments regarding the ``need and effect'' and
``distinction between data collection and assessment''.
Comment 56: One commenter stated that bycatch is a significant
issue in recreational and commercial fisheries in
[[Page 6335]]
the Southeast, citing red snapper and red grouper as examples. The
commenter stated that sufficient SBRMs in the fishermen logbooks and
observer coverage would provide much more certain data leading to a
more robust assessment used for management.
Response: NMFS notes that an SBRM is a requirement of an FMP and
that Councils do not establish SBRMs ``in the fishermen logbooks and
observer coverage.'' To the extent that this commenter is recommending
specific changes to the SBRMs in particular fisheries (e.g., red
snapper and red grouper), this comment is beyond the scope of this
rulemaking. The purpose of this rule is to describe the minimum
requirements for establishing an SBRM. The specific SBRMs for each
fishery are established through individual FMPs and the Council process
as guided by the MSA and this rule. This rule requires that all FMPs be
consistent with this rule within 5 years of the effective date of this
rule. As individual FMPs are reviewed by the Councils, stakeholders
will have additional opportunities to provide input on fishery and
regional-specific issues associated with particular SBRMs.
Comment 57: One commenter stated that it is unclear if the Pacific
Islands, the Southeast and Southwest have implemented SBRM. The
Caribbean Fishery Management Council does not appear to have
established SBRMs at all. For example, there is no mention of SBRM in
FMPs for Queen Conch, Reef Fish, Spiny Lobster, or Corals and Reef
Associated Plants and Invertebrates.
Response: All FMPs have established SBRMs consistent with the MSA
and implement them through different mechanisms. NMFS acknowledges that
the documentation and explanation in FMPs for SBRMs varies
considerably. This rule, by clarifying the basic requirements for
establishing SBRMs, will strengthen existing SBRMs and ensure greater
transparency as Councils review and potentially update their FMPs for
consistency with this rule.
Comment 58: NMFS received comments disagreeing with the agency's
decision to not prepare an environmental impact assessment (EIS) or
environmental assessment (EA). The commenters stated that a categorical
exclusion under the National Environmental Policy Act (NEPA) is not
appropriate.
Response: NMFS believes a categorical exclusion is appropriate for
this action. Under sections 5.05 and 6.03c.3(i) of NOAA's
Administrative Order (NAO) 216-6, as preserved by NAO 216-6A,
``Compliance with the National Environmental Policy Act, Executive
Orders 12114, Environmental Effects Abroad of Major Federal Actions;
11988 and 13690, Floodplain Management; and 11990, Protection of
Wetlands,'' the following types of actions may be categorically
excluded from the requirement to prepare an EA or EIS: ``. . . policy
directives, regulations and guidelines of an administrative, financial,
legal, technical or procedural nature, or the environmental effects of
which are too broad, speculative or conjectural to lend themselves to
meaningful analysis and will be subject later to the NEPA process,
either collectively or case-by-case . . .'' In this instance, a
categorical exclusion is appropriate for this action because NMFS
cannot meaningfully analyze potential environmental, economic, and
social impacts at this stage. This rule provides guidance on
establishing and reviewing SBRMs. While the rule explains how the
development, documentation, and review of SBRMs should be addressed,
the rule does not mandate specific conservation or management measures
for any fishery. There is considerable diversity in federally managed
fisheries and FMPs, and the Councils and NMFS have discretion to
develop different conservation and management alternatives consistent
with the MSA and other law. It is not clear what Councils will or will
not do in response to this rule. Thus, it is not possible to predict
any concrete impacts on the human environment without the necessary
intervening actions of the Councils (e.g., consideration of SBRMs for
specific fisheries). Any analysis of potential impacts would be
speculative at best.
None of the exceptions for Categorical Exclusions provided by
section 5.05c of NAO 216-6 apply. While there is controversy concerning
the SBRM rule, the controversy is primarily related to different views
on how section 303(a)(11) of the MSA should be interpreted. The rule
would not, in itself, have uncertain environmental impacts, unique or
unknown risks, or result in cumulatively significant impacts on a
fishery, protected species, or habitat, as it does not prescribe
specific outcomes for FMPs. When a given Council or the Secretary
prepares and submits a new FMP or FMP amendment or other regulatory
action, at that time, biological, economic, and social impacts of the
amendment/action would be subject to NEPA analysis.
Comment 59: NMFS received one comment stating that the agency
should not proceed unless a Regulatory Impact Review as required by
E.O. 12866 has been conducted and the public has an opportunity to
review and comment on that analysis. The commenter noted that the rule
will require significant agency and Council resources.
Response: NMFS conducted a draft Regulatory Impact Review and
determined the rule is not significant for the purposes of Executive
Order 12866. Additionally, the Chief Counsel for Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. These conclusions were stated in the ``Classification''
section of the proposed rule proposed at 81 FR 9413, February 25, 2016.
NMFS prepared a final Regulatory Impact Review before issuing this
rule. That review analyzed the impact of this rule on the agency, the
Councils, and small entities, and is summarized in the
``Classification'' section of this preamble.
III. Changes From Proposed Rule
In the first sentence of Sec. 600.1600, ``with respect to any
fishery'' was added after ``fishery management plan'' to reflect the
text of section 303(a) of the MSA. The second sentence of Sec.
600.1600 was revised in response to public comment to clarify the
purpose of a standardized reporting methodology.
In Sec. 600.1605(a), NMFS made minor changes to the definition of
``standardized reporting methodology.'' First, in response to public
comment, NMFS removed ``subset of a fishery'' from the definition.
Second, NMFS combined the first and second sentences of the proposed
definition. Third, NMFS added a sentence to the end of the definition
to clarify the link between an SBRM and the assessment of bycatch.
Section 600.1605(b) was revised to add reference to the MSA's
definitions of ``bycatch'' and ``fishery'' in 16 U.S.C. 1802. Other
minor revisions were made to the citations in Sec. 600.1605(b).
In Sec. 600.1610(a)(1), the first sentence was revised to clarify
the information that must be identified in an FMP. The first part of
the second sentence of the paragraph was modified for clarity. Instead
of ``The description must state the required bycatch data collection,
recording, and reporting procedures for each fishery, which may include
. . .'', the second sentence of Sec. 600.1610(a)(1) now begins: ``The
required procedures may include. . . .''
In response to comments and to make clear that an SBRM must achieve
its statutory purpose, the third sentence of Sec. 600.1610(a)(1) now
requires a Council
[[Page 6336]]
to explain ``how an SBRM meets the purpose described in 50 CFR
600.1600, based on an analysis of the requirements under Sec.
600.1610(a)(2),'' in place of the proposed rule's requirement that a
Council explain ``why the methodology is appropriate for the fishery.''
The third sentence requires that this explanation be contained in an
FMP or a fishery research plan authorized under 16 U.S.C. 1862, a North
Pacific-specific provision of the MSA.
Consistent with current practices, Sec. 600.1610(a)(1) states that
Councils should work together and collaborate on standardized reporting
methodologies for fisheries that operate across multiple jurisdictions,
as appropriate.
Also in Sec. 600.1610(a)(1), NMFS clarifies that in addition to
proposing regulations necessary to implement the standardized reporting
methodology, a Council should also provide in its FMP, or a fishery
research plan authorized under 16 U.S.C. 1862, guidance to NMFS on how
to adjust implementation of a standardized reporting methodology,
consistent with the FMP. See National Standard 6 guidelines, 50 CFR
600.335. This text replaces Sec. 600.1610(c) of the proposed rule,
which described an adaptable implementation process for SBRMs. NMFS
removed Sec. 600.1610(c) and added the new sentence in Sec.
600.1610(a)(1) in response to public comments expressing confusion over
the process described in proposed rule's Sec. 600.1610(c) (81 FR 9413,
February 25, 2016).
In Sec. 600.1610(a)(2), NMFS clarified what a Council is required
to address when establishing or reviewing an SBRM. Also in Sec.
600.1610(a)(2), NMFS broke out the ``required factors'' and
``additional factors'' of the proposed rule's paragraphs (a)(2)(i) and
(a)(2)(ii) into four subparagraphs to improve the organization and
clarity of the paragraph.
In Sec. 600.1610(a)(2)(i), NMFS deleted the requirement that
``[d]ata resulting from the methodology must be useful, in conjunction
with other sources of data, in meeting the purpose described in Sec.
600.1600 and fishery-specific bycatch objectives.'' This requirement is
no longer necessary because, as detailed above, Sec. 600.1610(a)(1)
requires that all SBRMs meet the purpose described in Sec. 600.1600.
NMFS also deleted the requirement that Councils ``consider the
conservation and management objectives regarding bycatch in the
fishery'' proposed in Sec. 600.1610(a)(2) in response to public
comment expressing confusion about this provision. NMFS believes that
it is not necessary to state this as a requirement in Sec.
600.1610(a)(2) because all SBRMs must meet the purpose described in
Sec. 600.1600, which includes reference to ``inform[ing] the
development of conservation and management measures that, to the extent
practicable, minimize bycatch and bycatch mortality.''
In Sec. 600.1610(a)(2)(i), NMFS created a distinct subparagraph
for the requirement that all Councils address information about the
characteristics of bycatch in the fishery. The proposed rule required
Councils to ``consider information about the characteristics of bycatch
in the fishery, when available, such as the amount of bycatch occurring
in the fishery, the importance of bycatch in estimating the total
mortality of fish stocks, and the importance of bycatch to related
ecosystems.'' In the final rule, NMFS changed ``such as'' to
``including but not limited to'' to clarify that Councils must address
all three types of information, where such information is available. In
the same sentence, NMFS replaced ``total mortality'' with ``fishing
mortality'' because bycatch mortality is part of fishing mortality
(i.e., fish dying due to fishing activity) and not a component of
natural mortality which is part of total mortality. For purposes of
clarity, NMFS also changed ``the importance of bycatch to related
ecosystems'' to ``the effect of bycatch on ecosystems.'' NMFS also
added text in Sec. 600.1610(a)(2)(i) to acknowledge that the amount
and type of bycatch occurring in a fishery ``may vary based on the
operations of the fishery.''
In response to public comment, NMFS removed text from Sec.
600.1610(a)(2)(ii) stating that ``a Council may also consider the
overall magnitude and/or economic impact of the fishery.'' NMFS
believes that this information is already addressed in NMFS' National
Standards 7 and 8 guidelines.
In Sec. 600.1610(a)(2)(ii), NMFS created a distinct subparagraph
regarding feasibility. NMFS added ``The implementation of a
standardized reporting'' to the beginning of the sentence requiring
that the ``methodology must be feasible from cost, technical, and
operational perspectives'' for purposes of clarity. In response to
public comment, NMFS deleted the requirement that a methodology ``be
designed to be implemented with available funding.'' In place of this
text, NMFS added a sentence to the end of Sec. 600.1610(a)(2)(ii) that
explains in recognition that costs and funding may vary from year to
year, a Council must also address how implementation of the
standardized reporting methodology may be adjusted while continuing to
meet the purpose described under Sec. 600.1600.
In Sec. 600.1610(a)(2)(iii), NMFS created a distinct subparagraph
regarding data uncertainty. This subparagraph expands on the
requirement in proposed Sec. 600.1610(a)(2)(i) at 81 FR 9413, February
25, 2016, that a Council consider the quality of the data associated
with the methodology when establishing or reviewing an SBRM. In place
of this requirement, Sec. 600.1610(a)(2)(iii) clarifies that a Council
must address the uncertainty of the data resulting from the
standardized reporting methodology. The standardized reporting
methodology must be designed so that the uncertainty associated with
the resulting bycatch data can be described, quantitatively or
qualitatively. The Council should seek to minimize uncertainty in the
resulting data, recognizing that different degrees of data uncertainty
may be appropriate for different fisheries. NMFS made these changes in
response to public comment and for purposes of clarity.
In Sec. 600.1610(a)(2)(iv), NMFS created a distinct subparagraph
regarding data use. To clarify the link between an SBRM and the
assessment of bycatch, this first sentence of this subparagraph states:
``A Council must address how data resulting from the standardized
reporting methodology are used to assess the amount and type of bycatch
occurring in the fishery.'' NMFS also moved the proposed consultation
provision (in Sec. 600.1610(b) at 81 FR 9413, February 25, 2016) to
this subparagraph, in response to public comment and to clarify the
consultation process. Therefore, the second sentence of Sec.
600.1610(a)(2)(iv) states: ``A Council must consult with its scientific
and statistical committee and/or the regional National Marine Fisheries
Service science center on reporting methodology design considerations
such as data elements, sampling designs, sample sizes, and reporting
frequency.'' NMFS made the consultation mandatory in the final rule.
NMFS also removed reference to ``advisory panels,'' which was included
in the consultation provision of the proposed rule, because the
consultation is scientific in nature and is outside the scope of the
advisory panel's role.
NMFS moved the text stating that ``a Council may also
consider...the scientific methods and techniques available to collect
and report bycatch data that could improve the quality of bycatch
estimates'' from proposed Sec. 600.1610(a)(2)(ii) (at 81 FR 9413,
February 25, 2016) to Sec. 600.1610(a)(2)(iv), because NMFS believes
this provision relates to data
[[Page 6337]]
use. In this sentence, NMFS changed ``may'' to ``must'' in the final
rule, and added ``record'' between ``collect'' and ``report'' to mirror
NMFS' definition of a standardized reporting methodology.
Also in Sec. 600.1610(a)(2)(iv), NMFS added a sentence at the end
of the paragraph clarifying that different standardized reporting
methodology designs may be appropriate for different fisheries.
To comport with the organizational changes in the final rule, NMFS
changed Sec. 600.1610(d) to paragraph (b). To clarify that a Council
must undertake a review of their FMPs for consistency with the rule,
NMFS added that a Council, in coordination with NMFS, must conduct a
review of its FMPs for consistency with this rule. To clarify that a
Council does not have to amend an FMP within 5 years of the effective
date of the rule if the FMP is in compliance with the rule, NMFS also
added that a Council does not need to amend an FMP if NMFS, in
consultation with the Council, determines that the FMP is consistent
with this rule. Although the Council initiates a review of SBRMs, that
review should be done in coordination with NMFS; therefore NMFS added
``in coordination with NMFS'' to the second and last sentences of Sec.
600.1610(b).
Minor, non-substantive grammatical changes were also made in the
final regulatory text to improve clarity.
IV. National Environmental Policy Act
NMFS has made a determination to apply a Categorical Exclusion to
this action under the National Environmental Policy Act. This action
qualifies for a Categorical Exclusion because it is a regulation ``of
an administrative, financial, legal, technical or procedural nature, or
the environmental effects of which are too broad, speculative or
conjectural to lend themselves to meaningful analysis and will be
subject later to the NEPA process, either collectively or case-by-case.
. . .'' See NOAA's Administrative Orders 216-6 and 216-6A. If and when,
as a result of reviewing an FMP for consistency with the MSA and this
rule, a Council amends a specific FMP and/or fishery research plans,
the Council and/or NMFS would prepare a NEPA analysis, as appropriate.
V. Classification
Pursuant to section 301(b) of the MSA, the NMFS Assistant
Administrator has determined that this final rule is consistent with
the Magnuson-Stevens Act and other applicable law.
This rule has been determined to be not significant for purposes of
Executive Order 12866.
The Chief Council for Regulation of the Department of Commerce
certified to the Chief Council for Advocacy of the Small Business
Administration during the proposed rule stage that this rule, if
adopted, would not have a significant economic impact on a substantial
number of small entities. The factual basis for the certification was
published in the proposed rule (see page 9417 at 81 FR 9413, February
25, 2016). In summary, this action interprets and provides guidance on
section 303(a)(11) of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), which requires that all Fishery Management Plans
(FMPs) ``establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in a fishery'' (16 U.S.C.
1853(a)(11)). Because the action does not directly regulate any small
entities, it will not directly alter the behavior of any entities
operating in federally managed fisheries, and thus no direct economic
effects on small entities (as described within the proposed action) are
expected to result from this action. Therefore, no small entities will
be directly affected by this action, and a reduction in profits for a
substantial number of small entities is not expected. See 81 FR 9413,
February 25, 2016. No public comments were received regarding this
certification.
NMFS notes that on January 26, 2016, the Small Business
Administration (SBA) issued a final rule revising the small business
size standards for several industries, effective February 26, 2016 (81
FR 4469). The rule increased the size standard for Seafood Product
Preparation and Packaging (NAICS code 311710) from 500 to 750
employees. Furthermore, on December 29, 2015, NMFS issued a final rule
establishing a small business size standard of $11 million in annual
gross receipts for all businesses primarily engaged in the commercial
fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA)
compliance purposes only. See 80 FR 81194, December 29, 2015. The $11
million standard became effective on July 1, 2016, and is to be used in
place of the U.S. Small Business Administration's (SBA) current
standards of $20.5 million, $5.5 million, and $7.5 million for the
finfish (NAICS 114111), shellfish (NAICS 114112), and other marine
fishing (NAICS 114119) sectors of the U.S. commercial fishing industry
in all NMFS rules subject to the RFA after July 1, 2016. See 80 FR
81194, December 29, 2015. Pursuant to the RFA, and prior to July 1,
2016, the certification was developed for this regulatory action using
SBA's size standards prior to February 26, 2016. NMFS has reviewed the
analyses prepared for this regulatory action in light of the new size
standards discussed above and has determined that the new size
standards do not affect analyses prepared for this regulatory action.
Further, because the action does not directly regulate any entities,
any new size standard will not directly alter the behavior of any
entities operating in federally managed fisheries, and thus no direct
economic effects on commercial harvesting businesses, marinas, seafood
dealers/wholesalers, or seafood processors are expected to result from
this action. Thus, no small entities will be directly affected by this
action and a reduction in profits for a substantial number of small
entities is not expected, and NMFS has determined that the
certification established during the proposed rule stage is still
appropriate for this final action.
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Bycatch, Fisheries,
Standardized Reporting Methodology.
Dated: January 6, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
600 as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. Add subpart R to read as follows:
Subpart R--Standardized Bycatch Reporting Methodology
Sec.
600.1600 Purpose and scope.
600.1605 Definitions and word usage.
600.1610 Establishing and reviewing standardized bycatch reporting
methodologies in fishery management plans.
Sec. 600.1600 Purpose and scope.
Section 303(a)(11) of the Magnuson-Stevens Act requires that any
fishery management plan (FMP) with respect to any fishery shall
establish a standardized reporting methodology to assess the amount and
type of bycatch occurring in the fishery. 16 U.S.C. 1853(a)(11). The
purpose of a
[[Page 6338]]
standardized reporting methodology is to collect, record, and report
bycatch data in a fishery that, in conjunction with other relevant
sources of information, are used to assess the amount and type of
bycatch occurring in the fishery and inform the development of
conservation and management measures that, to the extent practicable,
minimize bycatch and bycatch mortality. This subpart sets forth
requirements for and guidance on establishing and reviewing a
standardized reporting methodology.
Sec. 600.1605 Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, standardized reporting methodology means
an established, consistent procedure or procedures used to collect,
record, and report bycatch data in a fishery, which may vary from one
fishery to another. Bycatch assessment is not part of the standardized
reporting methodology, but must be considered as described in Sec.
600.1610(a)(2)(iv).
(b) Word usage. The terms ``bycatch'' and ``fishery'' are used in
the same manner as in 16 U.S.C. 1802. The terms ``must'', ``should'',
``may'', ``will'', ``could'', and ``can'' are used in the same manner
as in Sec. 600.305(c). The term ``Council'' is used in the same manner
as in Sec. 600.305(d)(10), and includes the regional fishery
management Councils and the Secretary of Commerce, as appropriate (16
U.S.C. 1854(c) and (g)).
Sec. 600.1610 Establishing and reviewing standardized bycatch
reporting methodologies in fishery management plans.
(a) Establishing a standardized reporting methodology--(1) Fishery
management plan contents. An FMP must identify the required procedure
or procedures that constitute the standardized reporting methodology
for the fishery. The required procedures may include, but are not
limited to, one or more of the following: Observer programs, electronic
monitoring and reporting technologies, and self-reported mechanisms
(e.g., recreational sampling, industry-reported catch and discard
data). The FMP, or a fishery research plan authorized under 16 U.S.C.
1862, must explain how the standardized reporting methodology meets the
purpose described in Sec. 600.1600, based on an analysis of the
requirements under Sec. 600.1610(a)(2). The FMP, or fishery research
plan authorized under 16 U.S.C. 1862, may reference analyses and
information in other FMPs, FMP amendments, Stock Assessment and Fishery
Evaluation (SAFE) reports, or other documents. Councils should work
together and collaborate on standardized reporting methodologies for
fisheries that operate across multiple jurisdictions, as appropriate.
In addition to proposing regulations necessary to implement the
standardized reporting methodology, a Council should also provide in
its FMP, or a fishery research plan authorized under 16 U.S.C. 1862,
guidance to NMFS on how to adjust implementation of a standardized
reporting methodology consistent with the FMP. See National Standard 6
guidelines, Sec. 600.335.
(2) Requirements for standardized reporting methodology. The FMP
must establish a standardized reporting methodology as provided under
Sec. 600.1610(a)(1) that meets the specific purpose described in Sec.
600.1600. Due to the inherent diversity of fisheries, different
standardized reporting methodologies may be appropriate for different
fisheries. However, when establishing or reviewing a standardized
reporting methodology, a Council must address the following:
(i) Information about the characteristics of bycatch in the
fishery. A Council must address information about the characteristics
of bycatch in the fishery, when available, including, but not limited
to: The amount and type of bycatch occurring in the fishery, which may
vary based on different fishing activities and operations; the
importance of bycatch in estimating the fishing mortality of fish
stocks; and the effect of bycatch on ecosystems.
(ii) Feasibility. The implementation of a standardized reporting
methodology must be feasible from cost, technical, and operational
perspectives. However, feasibility concerns do not exempt an FMP from
the requirement to establish a standardized reporting methodology.
Recognizing that costs and funding may vary from year to year, a
Council must also address how implementation of the standardized
reporting methodology may be adjusted while continuing to meet the
purpose described under Sec. 600.1600.
(iii) Data uncertainty. A Council must address the uncertainty of
the data resulting from the standardized reporting methodology. The
standardized reporting methodology must be designed so that the
uncertainty associated with the resulting bycatch data can be
described, quantitatively or qualitatively. The Council should seek to
minimize uncertainty in the resulting data, recognizing that different
degrees of data uncertainty may be appropriate for different fisheries.
(iv) Data use. A Council must address how data resulting from the
standardized reporting methodology are used to assess the amount and
type of bycatch occurring in the fishery. A Council must consult with
its scientific and statistical committee and/or the regional National
Marine Fisheries Service science center on reporting methodology design
considerations such as data elements, sampling designs, sample sizes,
and reporting frequency. The Council must also consider the scientific
methods and techniques available to collect, record, and report bycatch
data that could improve the quality of bycatch estimates. Different
standardized reporting methodology designs may be appropriate for
different fisheries.
(b) Review of FMPs. All FMPs must be consistent with this subpart
by February 21, 2022. Therefore, a Council, in coordination with NMFS,
must conduct a review of its FMPs for consistency with this subpart. A
Council does not need to amend an FMP if NMFS determines that it is
consistent with this subpart. Thereafter, Councils, in coordination
with NMFS, should conduct a review of standardized reporting
methodologies at least once every 5 years in order to verify continued
compliance with the MSA and this subpart.
[FR Doc. 2017-00405 Filed 1-18-17; 8:45 am]
BILLING CODE 3510-22-P