Magnuson-Stevens Act Provisions; National Standard Guidelines

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970708168-7168-01; I.D. 061697B]

RIN 0648-AJ58

Magnuson-Stevens Act Provisions; National Standard Guidelines

AGENCY: National Marine Fisheries Service (NMFS); National Oceanic and

Atmospheric Administration (NOAA); Commerce.

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: On August 4, 1997, NMFS published a proposed rule to amend the

national standard guidelines under the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act). The public

comment period for the proposed guidelines ended September 18, 1997.

Because of remaining issues regarding interpretation of the Magnuson-

Stevens Act's provisions relative to overfishing, NMFS is reopening the

public comment period on national standard 1 for an additional 30 days.

[[Page 67609]]

DATES: The comment period reopens December 29, 1997; comments must be

received on or before January 28, 1998.

ADDRESSES: Comments should be sent to Dr. Gary C. Matlock, Director,

Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910.

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

SUPPLEMENTARY INFORMATION:

Background

On August 4, 1997 (62 FR 41907), NMFS published a proposed rule to

amend the guidelines interpreting the 10 national standards found in

section 301(a) of the Magnuson-Stevens Act. Public comment received on

the proposed rule indicated a broad range of views regarding

interpretation of the provisions of the Magnuson-Stevens Act with

respect to prevention of overfishing. Therefore, NMFS is reopening the

comment period on the national standard 1 guidelines for an additional

30 days to obtain additional comment on specific issues regarding

overfishing.

The Sustainable Fisheries Act (SFA), which amended the Magnuson-

Stevens Act in 1996, contained several provisions that affected

national standard 1, which was not itself amended. That standard

requires that conservation and management measures ``shall prevent

overfishing while achieving, on a continuing basis, the optimum yield

from each fishery for the United States fishing industry.'' The SFA

added a definition of ``overfishing'' and ``overfished,'' changed the

definition of ``optimum,'' required that each fishery management plan

specify objective and measurable criteria for identifying when a

fishery is overfished (section 303(a)(10)), and added a section

(304(e)) on identifying and rebuilding overfished fisheries.

Issues

While NMFS received numerous comments on the proposed guidelines,

it believes further comment on the national standard 1 guidelines would

be useful. In particular, NMFS would like commenters to address the

following issues:

1. Usage of ``overfishing'' and ``overfished.'' The SFA adopted the

regulatory definition of ``overfishing'' (at Sec. 600.310(c)(1)), with

two changes. The existing regulatory definition states: ``Overfishing

is a level or rate of fishing mortality that jeopardizes the long-term

capacity of a stock or stock complex to produce MSY on a continuing

basis.'' The statutory definition in the SFA deleted the modifier

``long-term'' and substituted ``fishery'' for ``stock or stock

complex.''

NMFS believes that the removal of ``long-term'' in the statutory

language was intended to emphasize the need to address overfishing in

the near term, and to rebuild overfished stocks to levels that would

produce MSY (maximum sustainable yield) within a reasonably short

period of time, rather than in some unspecified time frame. This

interpretation is consistent with the fact that, taken as a whole, the

SFA enacted several significant measures to address overfishing and

rebuilding, including requiring specific time frames for action. Along

with the amendment to the definition of ``optimum,'' under which the

optimum yield cannot be set above the MSY level, the addition of the

definition of ``overfishing'' in the SFA (without reference to ``long-

term'') seems to raise the standard to which conservation and

management measures are held. Because NMFS understood deletion of the

phrase ``long-term'' in the SFA to be significant, the proposed

guidelines tie the meaning of ``overfishing'' to a rate or level of

fishing mortality (i.e., removals of fish from the stock due to

fishing) that jeopardizes the capacity of a stock to produce MSY,

without regard to time frame.

The issue is whether NMFS has correctly interpreted the definition

of overfishing, or whether it should adopt a more elastic guideline

with MSY as only an eventual target.

2. ``Fishery'' versus ``stock.'' As explained above, the statutory

definition of ``overfishing'' uses the term ``fishery'' rather than

``stock or stock complex.'' Both ``fishery'' and ``stock'' are defined

in the Magnuson-Stevens Act; both are used in section 304(e) and

elsewhere somewhat interchangeably.

The proposed guidelines, in large part, speak of ``overfishing''

and ``overfished'' in terms of a stock or stock complex. NMFS

scientists who worked on the guidelines were concerned that a

``fishery,'' in its most expansive sense, is not susceptible to being

judged as overfished or not; only for a stock of fish can measurable,

objective criteria of overfishing be established. The same applies to

judging whether a fishery has been rebuilt; biologically, that can be

determined only on a stock-by-stock basis.

Some commenters believe the requirement to prevent overfishing

should apply only to fisheries in a broader sense, in order to provide

the greatest benefit to the Nation. They believe that fishers may have

to forego substantial economic value from a mixed-stock fishery if it

must be managed to restore the most depleted stock component (species)

in the fishery to the level that would produce MSY. (See issue 4

below.)

The issue is whether NMFS should change its focus in the national

standard 1 guidelines to a ``fishery,'' which may be comprised of

dozens of stocks, or retain the requirements to prevent overfishing of

stocks and rebuild overfished stocks.

3. Rebuilding schedules. The proposed guidelines repeated the

statutory requirement that overfished stocks must be rebuilt in a time

period that is as short as possible, taking into account the status and

biology of the stock, the needs of fishing communities, recommendations

by international organizations, and the interaction of the overfished

stock within the marine ecosystem. However, in no case may the

rebuilding time exceed 10 years, except where the biology of the stock,

other environmental conditions, or management measures under an

international agreement dictate otherwise.

NMFS received comments requesting clarification of the statutory

language. One interpretation is that ``as short as possible'' means the

length of time in which a stock could be rebuilt in the absence of

fishing mortality on that stock. If that period is less than 10 years,

then the factors listed in section 304(e)(4)(A)(i) of the Magnuson-

Stevens Act (i.e., the status and biology of any overfished stocks of

fish, the needs of fishing communities, recommendations by

international organizations in which the United States participates,

and the interaction of the overfished stock of fish within the marine

ecosystem) could be used to lengthen the rebuilding period to as much

as 10 years. If the stock cannot be rebuilt within 10 years in the

absence of fishing mortality on that stock, the rebuilding period based

on the absence of fishing mortality would automatically become the

maximum time for rebuilding, unless management measures under an

international agreement dictate otherwise. Under this interpretation,

the biology of the stock and other environmental conditions are taken

into account in determining the rebuilding period that would be

required, based on the absence of fishing mortality, and those factors

would not be used to further extend the rebuilding period. Therefore,

under this scenario, for a rebuilding period that exceeds 10 years, the

only exception to allow extension of the rebuilding period beyond that

based on an absence of fishing mortality would be for those instances

that are dictated by measures under an

[[Page 67610]]

international agreement to which the United States is a party.

Another possible interpretation for those situations in which the

rebuilding period would exceed 10 years in the absence of fishing is to

treat the 10-year limit as a guide in determining the length of a

rebuilding program. In these cases, the question that immediately

arises is, how long can the rebuilding program be? Must it be

constrained, as in the scenario above, or can it be longer? If so, how

much longer? NMFS believes that it is not desirable to have an

unspecified time period for rebuilding and that such an indeterminate

rebuilding period would be inconsistent with the other provisions of

the Magnuson-Stevens Act. The guidelines could potentially use the

factors in section 304(e)(4)(A)(i) to interpret ``as short as

possible'' to limit the time period beyond 10 years, but NMFS believes

that any rebuilding program that exceeded the period based on no

fishing mortality would need to be justified and constrained by the

life history characteristics of the stock.

The issue is the interpretation of the statutory language and how

much flexibility the statutory language allows. NMFS is specifically

seeking comment on whether or not it is correct in its interpretation

that the duration of rebuilding programs should not be unspecified and,

if so, what factors should be considered in determining that duration.

4. Mixed-stock exception. The proposed guidelines, at

Sec. 600.310(6), relied on the statute's use of the term ``fishery'' to

justify retention of a limited exception to the requirement to prevent

overfishing on all stocks. The exception would allow overfishing of one

species in a mixed-stock complex, but only if certain stringent

conditions are met (i.e., analysis demonstrates that it will result in

long-term net benefits to the Nation and that a similar level of

benefits cannot be achieved through other means; and the resulting rate

of fishing mortality will not cause any species or ecologically

significant unit thereof to require protection under the Endangered

Species Act (ESA) or any stock or stock complex to fall below its

minimum stock size threshold).

This proposed provision has been criticized by those who believe

the Magnuson-Stevens Act allows no exceptions to the requirement to

prevent overfishing, even in mixed-stock fisheries. Others have

criticized the provision as too stringent and believe the Magnuson-

Stevens Act allows overfishing on one or more stocks in mixed-stock

fisheries, even if the result is to maintain, or reduce stocks to, an

overfished status.

The issue is whether to delete or liberalize the limited

exceptions, and whether to add other exceptions. One suggestion is that

the recovery of stocks listed under the ESA should be handled under

that statute, not under the Magnuson-Stevens Act. Another is that

stocks whose rebuilding would not be assisted by cessation of fishing

mortality in the exclusive economic zone should be exempt from the

provisions of section 304(e)(4) of the Magnuson-Stevens Act.

NMFS will respond to comments received on national standard 1

during this 30-day comment period, and to all comments received on the

proposed national standard guidelines during the comment period for the

proposed rule, in the preamble to the final rule.

Dated: December 19, 1997.

Gary C. Matlock,

Director, Office of Sustainable Fisheries, National Marine Fisheries

Service.

[FR Doc. 97-33643 Filed 12-22-97; 2:13 pm]

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