[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Proposed Rules]
[Pages 30934-30938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10294]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 230509-0128]
RIN 0648-BM17


Fisheries of the United States; Magnuson-Stevens Fishery 
Conservation and Management Act; National Standard 4, 8, and 9 
Guidelines

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

[[Page 30935]]


ACTION: Advance notice of proposed rulemaking (ANPR); request for 
comments.

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SUMMARY: NMFS is publishing this ANPR to alert the public of potential 
future adjustments the agency may make to the implementing guidelines 
for National Standards 4, 8, or 9, of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA). Several ongoing fishing 
management challenges, including changes in environmental conditions, 
shifting distributions of fish stocks, and equity and environmental 
justice considerations that affect fishing communities that are 
currently or have been historically dependent on the resource, suggest 
a need to revisit the guidelines to ensure they remain appropriate for 
current U.S. fisheries management. The intent of this notice is to 
provide the public with background on some of the specific issues under 
consideration, seek specific input, and provide a general opportunity 
for comment. NMFS will take public comment into consideration when it 
decides whether or not to propose changes to the guidelines for 
National Standards 4, 8, or 9.

DATES: Comments must be received by 5 p.m., local time, on September 
12, 2023.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-HQ-2023-0060'', by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter ``NOAA-HQ-2023-0060'' in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
     Mail: Wendy Morrison; National Marine Fisheries Service, 
NOAA; 1315 East-West Highway, Room 13436; Silver Spring, MD 20910.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to another 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Wendy Morrison, Fisheries Policy 
Analyst, National Marine Fisheries Service, 301-427-8564.

SUPPLEMENTARY INFORMATION: 

Background

    Section 301(a) of the MSA contains 10 national standards for 
fishery conservation and management. Any fishery management plan (FMP) 
prepared under the MSA, and any regulation adopted under the MSA to 
implement any such plan, must be consistent with these national 
standards.
     National Standard 4 (NS4) of the MSA states that 
conservation and management measures shall not discriminate between 
residents of different states. If it becomes necessary to allocate or 
assign fishing privileges among various United States fishermen, such 
allocation shall be (a) fair and equitable to all such fishermen; (b) 
reasonably calculated to promote conservation; and (c) carried out in 
such manner that no particular individual, corporation, or other entity 
acquires an excessive share of such privilege.
     National Standard 8 (NS8) states that conservation and 
management measures shall, consistent with the conservation 
requirements of the MSA (including the prevention of overfishing and 
rebuilding of overfished stocks), take into account the importance of 
fishery resources to fishing communities by utilizing economic and 
social data that are consistent with the best scientific information 
available, in order to (a) provide for the sustained participation of 
such communities, and (b) to the extent practicable, minimize adverse 
economic impacts on such communities.
     National Standard 9 (NS9) states 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.
    Section 301(b) of the MSA requires that the Secretary of Commerce 
establish advisory guidelines, based on the national standards, to 
assist in the development of FMPs. These guidelines do not have the 
force and effect of law; however, the courts often give deference to 
the agency's interpretations in the guidelines. Guidelines for National 
Standards 4, 8, and 9 are codified at 50 CFR 600.325 (NS4), 600.345 
(NS8), and 600.350 (NS9). NMFS last revised the NS4 Guidelines on May 
1, 1998 (63 FR 24212), NS8 Guidelines on November 17, 2008 (73 FR 
67809), and NS9 Guidelines on November 17, 2008 (73 FR 67809).
    Since these guidelines were last revised, a number of fishery 
management challenges, including changes in environmental conditions 
and shifting distributions of fish stocks, suggest a need to revisit 
the guidelines to ensure they remain appropriate for current U.S. 
fisheries management. Recent Executive Orders (E.O.s), such as E.O. 
14008 on Tackling the Climate Crisis at Home and Abroad, and E.O. 13985 
on Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government, as well as relevant policy documents 
(e.g., NOAA fiscal year 2022-2026 Strategic Plan) highlight NMFS' 
commitment to plan for climate change impacts and to serve stakeholders 
equitably by engaging underserved communities in the science, 
conservation, and management of the nation's fisheries, consistent with 
existing law. NMFS strongly supports the need to further improve 
adaptability of our management processes in the context of changing 
environmental conditions and ensure equity and environmental justice 
(that is, equity applied to environmental laws, policies, and 
practices) within the fishery management process. As such, NMFS is 
soliciting input on potential future revisions to the National 
Standards 4, 8, and 9 Guidelines that would address recent fishery 
management challenges, bolster climate adaptability, and encourage 
equity and environmental justice within the fishery management process 
under the existing provisions of the MSA.

Background on the National Standards

National Standard 4

    Allocation of fishing privileges under NS4 guidelines refers to the 
direct and deliberate distribution of the opportunity to participate in 
a fishery among user groups or individuals. See 50 CFR 600.325(c)(1). 
Decisions regarding the allocation of fishery resources are often 
controversial and challenging. In general, increases to one group 
result in decreases to another, leading to allocation decisions being 
perceived as a ``win'' for some fishermen or fisheries and a ``loss'' 
for others. A 2012 report based on interviews with fishery stakeholders

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regarding allocation found that the concepts of fairness and equity are 
complicated and often vary depending on individual circumstances 
(Lapointe 2012 at https://media.fisheries.noaa.gov/dam-migration/lapointe-allocation-report.pdf). This report concluded that many 
stakeholders will continue to view allocations as unbalanced or unfair 
unless the outcomes are close to the positions they seek.
    In addition to the existing NS4 guidelines, NMFS created an 
Allocation Policy (available at https://media.fisheries.noaa.gov/dam-migration/01-119.pdf) in 2016 that requires the eight Regional Fishery 
Management Councils (Councils), and NMFS for Atlantic Highly Migratory 
Species (HMS), to identify a trigger for all fisheries that contain an 
allocation. The trigger could be based on time, public input, or an 
indicator. When a specified trigger is met, the Council or NMFS must 
assess if a revision to the allocation is needed. However, the 
Allocation Policy does not require Councils or NMFS to implement any 
changes to the allocation.

National Standard 8

    National Standard 8 requires that an FMP take into account the 
importance of fishery resources to fishing communities in order to 
provide for the sustained participation of--and minimize adverse 
economic impacts on--such communities. However, both NMFS guidance and 
court precedent establish that minimizing adverse impacts on 
communities must be considered secondary to the conservation 
requirements of the MSA. In short, actions meant to address the 
importance of fishery resources to affected fishing communities must 
not compromise the achievement of conservation requirements and goals 
of the FMP. As the current NS8 guidelines clarify: ``All other things 
being equal, where two alternatives achieve similar conservation goals, 
the alternative that provides the greater potential for sustained 
participation of such communities and minimizes the adverse economic 
impacts on such communities would be the preferred alternative.''

National Standard 9

    Fishermen sometimes catch, and may discard, species they do not 
want, cannot sell, or are not allowed to keep, creating what we know as 
bycatch. Bycatch is a complex, global issue. 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. This term does not include fish released alive under a 
recreational catch and release fishery management program.'' 16 U.S.C. 
1802(2). It also does not include incidental catch, or non-target 
catch, that is sold or kept for personal use. The MSA definition of 
``fish'' does not include marine mammals and birds, thus bycatch of 
these animals is not included under this standard. NS9 requires that 
bycatch and bycatch mortality (e.g., unobserved mortality due to a 
direct encounter with fishing vessels and gear) shall be minimized to 
the extent practicable.
    In considering potential revisions to the guidance for these three 
national standards, NMFS is seeking comment on the following issues, in 
particular (in no specific order).

Tackling the Climate Crisis

    The changing climate and oceans have significant impacts on the 
nation's valuable marine life and ecosystems, and the many communities 
and economies that depend on them. Scientists expect environmental 
changes such as warming oceans, rising sea levels, frequency and 
intensity of floods and droughts, and ocean acidification to increase 
with continued shifts in the planet's climate system. Changing ocean 
conditions are affecting the location and productivity of fish stocks 
and the fishing industry's interactions with bycatch, protected 
species, and other ocean users. Some fish stocks are becoming less 
productive and/or are moving out of range of the fishermen who catch 
them. These shifts can cause social, economic, and other impacts on 
fisheries and fishing-dependent communities. As a result, fishing 
industries and coastal businesses can face significant challenges in 
preparing for and adapting to these changing conditions. NMFS 
understands the importance of updating fisheries management to address 
current and anticipated needs and conditions, including dynamic stock 
conditions and changing ocean conditions. The issues associated with 
changing climate conditions that NMFS is requesting comment on in 
relation to National Standards 4, 8, and 9 are outlined below.
    1. National Standard 4: Environmental changes are affecting, and 
will continue to affect, stock distributions and abundances, and have 
the potential to change the applicability of historical information and 
current regulations. Most allocations established by the Councils and 
NMFS are highly complex and supported by extensive analyses. 
Determinations of many, but not all, of the existing allocations have 
relied heavily on documented catch or landings during specific time 
periods. Considering documented catch in the development of allocations 
is important to help participants maintain access to resources they 
have been dependent upon, and to document compliance with statutory 
requirements. However, it is also important to consider the needs of 
other users, such as new fishermen who would like to enter a fishery, 
fishermen displaced from other fisheries, and/or existing fishermen who 
are catching new species in their historical fishing grounds.
    NMFS is considering whether updates to the NS4 guidelines would 
help encourage allocation decisions that balance the needs of different 
user groups when creating and updating allocations, including for 
stocks that are shifting, or have shifted, their distribution. NMFS 
welcomes specific input on:
    (a) Approaches, consistent with other statutory requirements, for 
balancing consideration of anticipated or realized changes in stock 
distributions and/or overall fishery access for historical users, 
marginalized individuals who may have been inequitably excluded from 
historical allocations, and new users in such allocation decisions;
    (b) Whether revisions to the NS4 guidelines are needed to reinforce 
NMFS' Allocation Policy's requirement to complete periodic reviews of 
allocations; and
    (c) The types of documentation, analyses, and alternative 
approaches (e.g., spatial allocations between sectors or gears, mixes 
of historic use and dynamic allocation schemes) that should be 
considered when making such allocation decisions.
    2. National Standard 8: Environmental changes are affecting, and 
will continue to affect, stock distributions and abundances, creating 
challenges for communities dependent on those resources. NMFS is 
requesting comments on options for updating the guidelines to NS8 to 
better account for these changes and to improve the ability of 
communities to adapt to these changing conditions.
    3. National Standard 9: Environmental changes are affecting, and 
will continue to affect, the distributions of many marine resources, 
including target fish stocks, bycatch fish stocks and protected 
resources. This has and will continue to create challenges to 
maintaining economic viability of fisheries while also ensuring 
sustainable management of all marine resources. NMFS is requesting 
comments on options for updating the guidelines to

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NS9 to better account for and adapt to these changes.

Equity and Environmental Justice

    NMFS is committed to advancing equity and environmental justice, 
including equal treatment, opportunities, and environmental benefits 
for all people and communities, while building on continuing efforts 
and partnerships with underserved and underrepresented communities. For 
purposes of this document, consistent with E.O. 13985, ``underserved 
communities'' refers to ``populations sharing a particular 
characteristic, as well as geographic communities, that have been 
systematically denied a full opportunity to participate in aspects of 
economic, social, and civil life.'' The issues associated with equity 
and environmental justice that NMFS is requesting comment on are 
outlined below.
    1. National Standard 4: The existing NS4 guidelines provide limited 
guidance on what is meant by ``fair'' and ``equitable'', in order to 
allow Councils and NMFS the flexibility to interpret these terms as 
needed within their circumstances given the variability in fisheries 
across the country. NMFS asserts it would be difficult to provide 
additional guidance on these terms that will be appropriate across the 
variety of social, economic, and ecological conditions of the eight 
Councils and Atlantic HMS.
    NMFS requests specific input on:
    (a) Approaches to improve consideration of underserved communities, 
previously excluded entrants, and new entrants in allocation decisions; 
and
    (b) The types of documentation and analyses that should be 
considered to ensure such allocation decisions are fair and equitable. 
Commenters on this issue should bear in mind the requirements of MSA 
sections 303(b)(6) and 303A(c)(3)(B), (c)(4)(C), and (c)(5) that 
require consideration of current and past participation as well as 
other considerations when developing limited entry programs, Limited 
Access Privilege Programs (LAPPs), and initial allocations for LAPPs.
    2. National Standard 8: NMFS is committed to serving stakeholders 
equitably by engaging underserved communities in the science, 
conservation, and management of the nation's fisheries. NMFS does not 
believe that the existing NS8 guidelines limit NMFS' or the Councils' 
ability to implement regulations and policies that address inequities 
or barriers to access for underserved communities. However, NMFS is 
considering removing language in the NS8 guidelines that states that 
NS8 ``does not constitute a basis for allocating resources to a 
specific fishing community nor for providing preferential treatment 
based on residence in a fishing community.'' This text may be 
unnecessary and confusing, given that NS8 does not specifically 
authorize, or prohibit, allocations to fishing communities. NMFS 
recognizes that allocations to a specific fishing community may be 
beneficial in some situations, if supported with appropriate rationale, 
and if NS8 is not the sole basis for making such allocations.
    NMFS is also considering revising the definition of fishing 
community within the guidelines. The MSA defines a fishing community as 
``a community which is substantially dependent on or substantially 
engaged in the harvest or processing of fishery resources to meet 
social and economic needs, and includes fishing vessel owners, 
operators, and crew and United States fish processors that are based in 
such communities.'' 16 U.S.C. 1802(17). The current NS8 guidelines add 
to the statutory definition by stating a fishing community is ``a 
social or economic group whose members reside in a specific location 
and share a common dependency on commercial, recreational, or 
subsistence fishing or on directly related fisheries-dependent services 
and industries (for example, boatyards, ice suppliers, tackle shops).'' 
50 CFR 600.345(b)(3). Given the wide range of fishing community 
structures (including locations of fishing infrastructure and fishing-
related economic activity) associated across the U.S. and its 
territories, NMFS is considering removing or revisiting the requirement 
for members to reside in a specific location. In addition, NMFS is also 
considering adjusting how the ``fishing community'' definition under 
the NS8 guidelines balances between dependency and engagement. As 
stocks decrease in abundance or shift distributions, communities will 
likely need to adapt. One option could be for a community to increase 
their resilience by decreasing their dependence on one or more 
particular stocks or fisheries (i.e., diversifying the fisheries that 
can be accessed). Thus, NMFS is considering revising the definition to 
shift from focusing on ``dependence'' to focusing on ``engagement,'' as 
both are included within the MSA definition. Shifting the focus of the 
definition of ``fishing community'' towards ``engagement'' could help 
provide that those communities that undertake engagement efforts that 
build up the community's economic resilience, while still being engaged 
with fisheries, could continue to be considered a ``fishing community'' 
under the NS8 guidelines. NMFS requests input on the definition of 
``fishing community'' within the NS8 guidelines, including the use of 
``current and historical engagement'' instead of or in addition to 
``dependence''.
    Finally, NMFS welcomes suggestions on how to appropriately balance 
the requirement under NS8 for ``sustained participation'' of fishing 
communities and the need to improve consideration of (1) underserved 
communities currently or historically engaged with fisheries, (2) 
previously excluded entrants, (3) new entrants, and (4) communities 
with high levels of social or climate vulnerability. NMFS also welcomes 
input on appropriate measures of social and climate vulnerability for 
fishing communities.
    3. National Standard 9: Conflict between fisheries and gears is 
common in fisheries management, via overlap in geographic areas fished 
or species caught. Relevant to NS9 is the situation where bycatch in 
one fishery has negative impacts on another fishery, usually via a 
restricting limit on total fishing mortality for a shared stock. For 
example, bycatch of one species in a fishery may reduce the amount of 
that species available to harvest in a target commercial fishery, 
recreational fishery, or subsistence fishery. The issue can be further 
complicated when one or more fisheries in conflict are important for 
underserved communities. NMFS welcomes input on how the NS9 guidelines 
could be modified to minimize bycatch mortality in a manner that is 
equitable across different fisheries and gear types. NMFS also welcomes 
comments on ways to better balance the needs of bycatch and target 
fisheries in a manner that is equitable across different fisheries and 
gear types, especially when one or more fisheries are important for 
underserved communities.

Other Relevant Management Challenges

    There are other fisheries and management issues relevant to 
National Standards 4, 8 and 9 that are not covered above. NMFS is 
requesting comment on two of these issues in particular, as described 
below.
    1. Practicability Standard: NS9 requires bycatch and bycatch 
mortality be minimized ``to the extent practicable''. NMFS asserts the 
discussion of practicability within the existing NS9 guidelines 
appropriately balances the various complexities of federal fisheries 
management. NMFS welcomes input on how the NS9 guidelines could be 
modified to further

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decrease bycatch or bycatch mortality of stocks. NMFS also welcomes 
input on other ways to improve the guidelines. For example, NMFS 
welcomes input on whether the agency should consider: (1) adding 
provisions to address bycatch on an ecosystem level (as opposed to 
single species metrics), (2) implementing provisions for alternative 
performance-based standards, or (3) increasing provisions to document 
bycatch avoidance.
    2. Reducing Waste: Some FMPs include management measures that 
prohibit retention of certain fish species or sizes to ensure fishermen 
are dis-incentivized from incidentally catching these fish. When these 
regulatory discards are required, they can lead to significant waste as 
fishermen are forced to discard (waste) usable catch. NMFS seeks input 
on revisions to the NS9 guidelines that could encourage provisions to 
incentivize reduction of waste, including use of innovations that 
decrease bycatch (e.g., gear innovations or adjustable area closures 
that avoid certain species or sizes of fish), decrease bycatch 
mortality (e.g., gear innovations that improve the health and survival 
of discards), or increase use while dis-incentivizing catch of 
overfished or low productivity stocks (e.g., allowing a fishery to 
retain and sell what would otherwise be required to be discarded either 
through purchasing quota share or other types of compensation; or 
allowing bycatch to be donated to food shelters so that it is not 
wasted but also does not lead to economic gains).
    NMFS also acknowledges that other relevant management issues have 
arisen in litigation over the past years in addition to those discussed 
above. The agency will consider these issues when deciding whether to 
propose revisions to the NS4, 8, or 9 guidelines, but is not soliciting 
comment on them here.

Public Comment

    NMFS is soliciting comments on the issues and concepts outlined in 
this ANPR. NMFS invites comments to help determine the scope of issues 
to potentially be addressed in a subsequent revision to the National 
Standard guidelines for NS 4, 8, or 9 and to identify significant 
issues related to these national standards. NMFS is also seeking 
additional ideas to ensure that the National Standard 4, 8, and 9 
guidelines remain relevant given current and emerging issues facing 
U.S. fisheries management. All written comments received by the due 
date will be considered in evaluating whether revisions to the 
guidelines or related policy documents are warranted. Additionally, 
NMFS has requested to present this ANPR to the various Regional Fishery 
Management Councils and the Atlantic HMS Advisory Panel during the 
public comment period. Please see the appropriate meeting notices on 
the Councils' and Atlantic HMS Advisory Panel's website for specific 
date and times. General meeting information is available below.
    Atlantic HMS Advisory Panel May 9-11, 2023, https://www.fisheries.noaa.gov/event/may-2023-hms-advisory-panel-meeting.
    Caribbean Fishery Management Council August 15-16, 2023, https://www.caribbeanfmc.com/meeting-documents/2-uncategorised/426-august-15-16-2023.
    Gulf of Mexico Fishery Management Council June 5-8, 2023, https://gulfcouncil.org/meetings/council/.
    Mid-Atlantic Fishery Management Council June 6-8, 2023, https://www.mafmc.org/council-events/2023/june-council-meeting.
    New England Fishery Management Council June 27-29, https://www.nefmc.org/calendar/june-2023-council-meeting.
    North Pacific Fishery Management Council June 8-11, 2023, https://meetings.npfmc.org/Meeting/Details/2993.
    Pacific Fishery Management Council June 20-27, 2023,https://www.pcouncil.org/council_meeting/june-2023-council-meeting/.
    South Atlantic Fishery Management Council June 12-16, https://safmc.net/events/june-2023-council-meeting/.
    Western Pacific Fishery Management Council June 26-30, 2023, 
https://www.wpcouncil.org/public-meetings/.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: May 9, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-10294 Filed 5-12-23; 8:45 am]
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