Magnuson-Stevens Act Provisions; National Standard Guidelines

SUMMARY: NMFS revises guidelines for national standards 1 (optimum

yield), 2 (scientific information), 4 (allocations), 5 (efficiency),

and 7 (costs and benefits); and adds guidelines for new national

standards 8 (communities), 9 (bycatch), and 10 (safety of life at sea).

The guidelines are intended to assist in the development and review of

Fishery Management Plans (FMPs), amendments, and regulations prepared

by the Regional Fishery Management Councils (Councils) and the

Secretary of Commerce (Secretary) under the Magnuson-Stevens Fishery

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

and additions implement the October 1996 amendments to the Magnuson-

Stevens Act, which resulted from the Sustainable Fisheries Act (SFA).

Additional minor changes are made to conform national standard

guideline language to the Magnuson-Stevens Act, as amended. Numerous

changes were made to the proposed rule based on comments received.

DATES: Effective June 1, 1998.

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

SUPPLEMENTARY INFORMATION: On October 11, 1996, the President signed

into law the SFA (Pub. L. 104-297), which made numerous amendments to

the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). This rule amends 50

CFR part 600, subpart D, to update the national standard guidelines and

to implement the Magnuson-Stevens Act amendments pertaining to the

national standards.

Background

Section 301(a) of the Magnuson-Stevens Act contains 10 national

standards for fishery conservation and management, with which all FMPs

and amendments prepared by the Councils and the Secretary must comply.

Section 303(b) requires that the Secretary establish advisory

guidelines, herein referred to as ``national standard guidelines,''

based on the national standards, to assist in the development of FMPs.

In addition to amending several existing national standards, the SFA

established three new national standards, which require consideration

of impacts of fishery management decisions on fishing communities

(national standard 8), bycatch (national standard 9), and safety of

life at sea (national standard 10).

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

amend the national standard guidelines; comments were requested through

September 18, 1997. The preamble of the proposed rule contained

detailed descriptions of the proposed amendments, which are not

repeated here. Thirty-seven sets of comments were received during the

comment period, which are responded to in the Comments and Responses

section of this preamble.

Because of remaining issues regarding interpretation of the

Magnuson-Stevens Act's provisions relative to overfishing and

rebuilding overfished stocks, NMFS reopened the public comment period

on national standard 1 on December 29, 1997 (62 FR 67608), for an

additional 30 days. Comments were specifically requested regarding four

issues: (1) Usage of the terms ``overfishing'' and ``overfished,'' (2)

usage of the terms ``fishery'' versus ``stock,'' (3) rebuilding

schedules for overfished stocks, and (4) exceptions for mixed-stock

fisheries. The notice of reopening of the comment period on national

standard 1 contained a detailed explanation of those issues, which is

not repeated here. Thirty-four additional sets of comments were

received during the reopened comment period; those comments are also

responded to in the Comments and Responses section.

Changes from the Proposed Rule

As a result of public comments received both during the initial

comment period and the reopened comment period, NMFS has made the

following changes from the proposed rule:

General

NMFS reviewed the entire text of the guidelines to ensure that the

terms ``shall,'' ``must,'' and ``should'' are used consistent with the

definitions in Sec. 600.305. ``Shall'' is used only when quoting

directly from the statute, ``must'' denotes a statutory obligation, and

``should'' indicates that an action is strongly recommended to fulfill

the Secretary's interpretation of the Magnuson-Stevens Act.

National Standard 1

1. Section 600.310(c)(3) has been revised to indicate that a

reasonable proxy for the MSY stock size is approximately 40 percent of

the pristine stock size, rather than the range of 27-75 percent as

previously included. This change was made to better reflect the

findings of fishery science literature. (See also the response to

comment 20 under national standard 1).

2. Section 600.310(d)(4)(iii) has been revised to include a

reference to guidelines issued under section 305(b) of the Magnuson-

Stevens Act for Council actions concerning essential fish habitat. (See

also the response to comment 18 under national standard 1.)

3. Section 600.310(d)(6) has been revised to provide more

flexibility in managing mixed-stock fisheries. The proposed guidelines

would have allowed overfishing on one component of a mixed-stock

fishery only if the rate or level of fishing mortality would not cause

any stock or stock complex to fall below its minimum stock size

threshold. Paragraph (d)(6)(iii) has been revised to remove that

requirement. Paragraph (d)(6)(ii) has been revised to clarify that the

intent of the required analysis is thorough consideration of measures

that could prevent or mitigate overfishing of one or more stocks in a

mixed-stock fishery. (See also the response to comment 35 under

national standard 1.)

4. Section 600.310(e)(4)(ii) has been substantively revised to

elaborate on the length of rebuilding programs for overfished stocks.

The proposed guidelines had simply repeated the statutory language from

section 304(e)(4) of the Magnuson-Stevens Act. The notice reopening the

comment period offered two options. After considering public comments

(see comments 8-16 under national standard 1), NMFS has chosen the more

flexible interpretation.

To give meaning to the statutory requirement that a rebuilding

program be ``as short as possible,'' the starting point in structuring

a rebuilding program is the length of time in which a stock could be

rebuilt in the absence of fishing mortality on that stock. If that

period is less than 10 years, the factors in section 304(e)(4)(A)(i),

including the needs of fishing communities, may be used to adjust the

rebuilding period up to 10 years. If the stock cannot be rebuilt within

10 years, because of the factors listed in section 304(e)(4)(A)(ii),

the factors in section 304(e)(4)(A)(i) may be used to justify a

schedule longer than the no-mortality period. To ensure that

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the rebuilding period is not indefinite, the outside limit of the

rebuilding period is the no-mortality period plus one mean generation

time (or equivalent period based on the species' life-history

characteristics).

5. Section 600.310(f)(2)(i) and (ii) have been revised so as not to

under emphasize the benefits to the Nation accruing from food

production and recreational opportunities. (See also the response to

comment 34 under national standard 1).

6. Section 600.310(f)(4)(ii) has been revised so that the annual

harvest level obtained under an OY control rule ``must'' instead of

``should'' always be less than or equal to the harvest level under an

MSY control rule. This change reflects the SFA's amendment to the

definition of ``optimum.''

7. Section 600.310(f)(4)(iii) has been revised to change the term

``research fishing'' to ``scientific research'' to clarify that

``fishing'' under the Magnuson-Stevens Act does not include scientific

research activity conducted from a scientific research vessel. (See

also the response to comment 45 under national standard 1.)

National Standard 2

1. Section 600.315(e)(1) introductory text has been revised to

clarify that SAFE reports are intended to summarize the most recent

information concerning the biological condition of stocks and the

marine ecosystems in the fishery management unit and the social and

economic condition of the recreational and commercial fishing

interests, fishing communities, and the fish processing industries.

(See also the response to comment 4 under national standard 2.)

2. Section 600.315(e)(1)(ii) has been revised to include safety as

one of the types of information that should be summarized in SAFE

reports. (See also the responses to comment 2 under national standard 2

and comment 3 under national standard 10).

National Standard 5

Section 600.330(b)(1) has been revised to replace the term

``encouraging,'' with regard to efficient utilization of fishery

resources, with the term ``considering,'' to make the wording

consistent with the intent of Congress. (See also the response to

comment 1 under national standard 5.)

National Standard 8

Section 600.345(c) has been revised, replacing ``should'' with

``must'' in order to reflect the obligation under national standard 8.

National Standard 9

1. Section 600.350(b) has been revised in its entirety to clarify

the consideration of bycatch effects of existing and planned

conservation and management measures. (See also the response to comment

11 under national standard 9.)

2. Section 600.350(c) has been revised to add language to clarify

that Atlantic highly migratory species harvested in a commercial

fishery that are not regulatory discards and that are tagged and

released alive under a scientific tag-and-release program established

by the Secretary are not considered bycatch. Also, language was added

to specify that bycatch includes the discard of whole fish at sea or

elsewhere. (See also the responses to comments 7 and 8 under national

standard 9.)

3. Section 600.350(c)(2) has been removed. (See also the response

to comment 7 under national standard 9.)

4. Section 600.350(d) has been revised by replacing ``should'' with

``must'' in order to reflect the obligation under national standard 9.

The introductory text has also been revised to emphasize that NMFS

believes the first priority for reducing bycatch should be to avoid

catching bycatch species where possible. Additional text has been added

to Sec. 600.350(d) to indicate that, in their evaluation of bycatch

minimization measures, Councils must consider net benefits to the

Nation. At the end of Sec. 600.350(d) introductory text, the word

``shall'' has been changed to ``must'' to emphasize that the evaluation

requirements of the Magnuson-Stevens Act under this national standard

are not discretionary. (See also the responses to comments 24, 25, and

28 under national standard 9.)

5. The first sentence in section 600.350(d)(1) has been revised,

replacing ``should'' with ``must'' in order to reflect the required

provisions of a fishery management plan under section 303(a)(11) and

(12) of the Magnuson-Stevens Act.

6. Section 600.350(d)(2) has been revised to indicate that, in the

absence of quantitative estimates of the impacts of each alternative,

Councils may use qualitative ``measures'' (rather than ``estimates'').

In addition, a sentence has been added to indicate that information on

amount and type of bycatch should be summarized in the SAFE report.

(See also the response to comment 31 under national standard 9).

7. Section 600.350(d)(3) has been revised to include language that

indicates that determinations of whether conservation and management

measures minimize bycatch and bycatch mortality to the extent

practicable must also be consistent with maximization of net benefits

to the Nation. The paragraphs under Sec. 600.350(d)(3) have been

redesignated to accommodate the addition of a new paragraph (d)(ii),

which states that the Councils should, in selecting bycatch

minimization measures, adhere to the precautionary principle found in

the FAO Code of Conduct for Responsible Fisheries. (See also the

responses to comments 33 and 35 under national standard 9.)

8. Section 600.350(d)(4) has been revised to delete the terms

``implement'' and ``implementation'' when referring to the Councils'

required actions under national standard 9, because it is NMFS'

responsibility, rather than that of the Councils, to implement

management measures. This change was not a result of public comment.

National Standard 10

Section 600.355(b)(3) has been revised to include language that

clarifies that safety of the fishing vessel and the protection from

injury of persons aboard the vessel are considered the same as ``safety

of human life at sea.'' (See also the response to comment 5 under

national standard 10.)

Comments and Responses

General

Numerous commenters concluded that, in general, the proposed

guidelines reflect fairly the intent of the SFA's amendments to the

Magnuson-Stevens Act. Comments concerning specific aspects of the

proposed revisions to guidelines for individual national standards are

presented and responded to in the following paragraphs.

NMFS received several comments on language contained in the

preamble of the proposed rule. Because the preamble was intended only

to explain and clarify material contained in the codified text, NMFS

has not responded to comments that pertained only to the preamble.

However, in instances where such comments pertained also to language in

the codified text, or where such comments led to changes in the

codified text from the proposed rule, NMFS has responded in the

following paragraphs.

Comment 1: Several commenters expressed their view that sufficient

flexibility should be provided in the guidelines to provide managers

with appropriate latitude to meet the objectives of the SFA while

respecting the needs of communities and citizens.

Response. NMFS agrees that some flexibility in application of the

national standards was intended by Congress, is necessary to manage the

diverse

[[Page 24214]]

fisheries of the Nation, and should be provided to respond to the needs

of fishery participants and communities, so long as the stocks upon

which the fisheries are based can be rebuilt and their productivity

sustained. However, any such flexibility must be consistent with all of

the statutory requirements of the Magnuson-Stevens Act. In addition,

NMFS believes that the guidelines must reflect the intent of the

Magnuson-Stevens Act taken as a whole. After carefully considering the

public comments received, the language in the SFA, and the legislative

history, NMFS concluded that there is justification to introduce

greater flexibility in certain aspects of the guidelines, most notably

the rebuilding schedules for overfished stocks and for mixed-stock

fisheries; those changes have been made in this final rule. (See also

Changes from the Proposed Rule and responses to comments 9 and 35 under

national standard 1.)

Comment 2. One letter of comment stated that the final rule should

clarify that the national standard guidelines are advisory and do not

have the force and effect of law.

Response. NMFS agrees that the guidelines do not have the force and

effect of law and believes it made that point clearly in the preamble

to the proposed rule. For example, the proposed rule contains the

following statements:

(1) ``These proposed guidelines are intended to provide direction

and elaboration on compliance with the national standards and, in

themselves, do not have the force and effect of law.''

(2) ``The guidelines are intended to assist in the development and

review of Fishery Management Plans (FMPs), amendments, and regulations

...''

(3) ``The proposed guidelines explain requirements and provide some

options for compliance with the guidelines. Lists and examples are not

all inclusive; rather, they are intended to provide illustrations of

the kind of information, discussion, or examination/analysis useful in

demonstrating consistency with the standard in question. The proposed

guidelines are intended to provide for reasonable accommodation of

regional or individual fishery characteristics, provided that the

requirements of the Magnuson-Stevens Act are met. The guidelines are

intended as an aid to decision making, with responsible conservation

and management of valued national resources as the goal.''

(4) ``The main purpose of the guidelines is to aid the Councils in

fulfilling the requirements of the Magnuson-Stevens Act.''

Throughout the proposed rule, the guidelines are referred to as

advisory, explanatory, and interpretive. In addition, NMFS has

attempted to make clear the distinction between ``must'' and ``should''

as used in the guidelines.

Comment 4. One commenter stated that it will be very difficult for

the Councils to meet the SFA's compliance deadlines for all fisheries,

given the requirements set forth in the guidelines.

Response. NMFS agrees that the statutory deadlines established by

the SFA and reflected in the guidelines will be challenging to meet.

However, NMFS is committed to working closely with the Councils to meet

those deadlines.

Comment 5. One commenter suggested that aquaculture activities

should be considered in the guidelines because, even with the best

regulatory controls and the restoration of wild stocks to levels that

produce maximum sustainable yield (MSY), the demand for seafood

products cannot be met from these sources alone.

Response. Aquaculture is considered a fishery, as defined by the

Magnuson-Stevens Act, so the national standard guidelines apply and

should be followed by Councils as they consider integrating aquaculture

activities into FMPs.

Comment 6. One commenter questioned NMFS' ability to comply with

several provisions of the SFA because of budgetary constraints.

Response. Compliance with all of the provisions of the amended

Magnuson-Stevens Act has been difficult, at best. However, NMFS has had

significant success in implementation, within the available resources,

using all of the available tools at its disposal. For example, the

great majority of the deadlines established in the SFA that are within

the control of NMFS have been met. In the few instances where deadlines

have been missed, it has been primarily the result of providing

additional time for public involvement and comment. NMFS' successes in

meeting deadlines have been due in part to reprogramming of priorities

and resources within NMFS to the maximum extent allowed by law, and to

Congressional reprogramming of funds made available within NOAA.

Comment 7. One commenter stated that NMFS must consider all

affected users, including seafood consumers, in managing fisheries. The

goal should be healthy, sustainable use for everyone's benefit.

Response. NMFS agrees that all users must be considered in

achieving the Magnuson-Stevens Act's goal of maximizing net benefits to

the Nation.

Comment 8. Two commenters stated that NMFS is inviting trouble by

stating in the preamble that it will take considerable time and effort

to bring all FMPs into compliance. Waiting until the October 11, 1998,

deadline to amend all FMPs will cause a logjam of amendments, and

conservation reforms will not be implemented in a timely manner.

Response. NMFS has worked with the Councils from the earliest

stages of implementation of the SFA to plan and prepare for necessary

amendments of FMPs. In addition, NMFS has conveyed to the Councils

that, on October 11, 1996, the day the President signed the SFA into

law, many of the provisions of the SFA, such as national standards 8,

9, and 10, became effective. All regulatory actions finalized after

that date were required to comply with those standards, as well as with

many other provisions of the SFA. In some cases, the details of

implementation have had to be developed, such as the national standard

guidelines that are the subject of this rule. Until those details are

finalized, the Councils will not be able to take them fully into

account in development of their management actions. As the specifics of

those provisions are finalized, all of the Councils' proposed actions

will be judged on the basis of those requirements, as well.

Comment 9. Several commenters suggested that anecdotal information

and public testimony should be allowed and treated as fact. A

particular concern was that, in establishing objective and measurable

criteria for determining the status of a stock, anecdotal information

from fishermen, especially commercial information, is precluded from

use in stock assessments.

Response. The Magnuson-Stevens Act requires the use of the best

scientific information available and the use of quantifiable parameters

to manage fisheries. The inclusion of objective and measurable criteria

in the guidelines applies the Magnuson-Stevens Act's approach to using

reproducible, scientifically based information in stock assessments.

This approach is necessary to preclude having to choose among

unsubstantiated opinions about a stock's condition. The public is free,

however, to submit anecdotal information to the Councils and to the

Secretary, including through public testimony and comment during the

development of plans and implementing regulations; all such information

will be made part of the administrative record. While anecdotal

information cannot be afforded the same status as scientific

information obtained under a well-designed data collection

[[Page 24215]]

plan, it can be particularly useful in identifying potential problems

with scientifically obtained information and can be part of the basis

for a redesign of the data collection program.

Comment 10. Several commenters requested that, given the complex

nature of the proposed guidelines, additional time be allowed for

public comment. Others expressed serious concern that the lack of

guidance on critical issues such as overfishing could compromise the

ability of the Councils to comply with the new conservation

requirements of the Magnuson-Stevens Act. Some commenters felt that

delays in issuing final guidelines have undermined public confidence in

NMFS' commitment and ability to effectively implement the conservation

mandates of the Magnuson-Stevens Act and urged NMFS to complete the

comment periods and proceed with advice and guidelines to the Councils

as swiftly as possible.

Response. Despite its commitment to publish final guidelines as

soon as possible, after reviewing the diverse comments received during

the first comment period, NMFS determined that it was in the best

interest of the public to provide an additional opportunity for comment

on the most problematic issues regarding national standard 1. However,

the completion of the Report to Congress and notification of Councils

of the list of overfished fisheries on September 30, 1997, placed an

imperative on NMFS to complete the guidelines as quickly as possible.

If Councils fail to submit rebuilding plans for all overfished stocks

by September 30, 1998, the Secretary must develop rebuilding plans for

the Councils for each overfished stock by June 30, 1999.

Comment 11. One commenter disagreed with NMFS' determination that

the proposed rule would not have a significant economic impact on a

substantial number of small entities for purposes of the Regulatory

Flexibility Act.

Response. NMFS believes that its determination of no significant

economic impacts on a substantial number of small entities in the

proposed rule accurately reflects the effects of this action on small

entities. Because this rule only amends guidelines, and does not have

the force and effect of law, it does not, in itself, revise any

existing regulatory programs or establish any new regulatory

requirements. NMFS has no basis, at this time, to assess specific

effects of possible future management actions that may result from this

rule, except in the broadest sense. Only when future amendments to

fishery management programs are implemented will potential impacts on

small entities occur. At the time regulations are developed, the

impacts on small entities of potential alternatives will be assessed;

Regulatory Flexibility Analyses and other analytical documents will be

prepared, as required by applicable law, and made available for public

comment.

National Standard 1

Comment 1. Several commenters objected to the fundamental role

played by MSY throughout the guidelines for national standard 1. A

variety of reasons were cited, including the lack of flexibility

afforded by use of MSY, the difficulty of estimating MSY, and the fact

that some fishery scientists disfavor the concept.

Response. No change was made. MSY is key to the Magnuson-Stevens

Act, even more so than under the former Magnuson Act. MSY now

constitutes an upper limit on optimum yield (OY), as stated in section

3(28)(B) of the Magnuson-Stevens Act; is established as the initial

target for rebuilding an overfished stock or stock complex in section

3(28)(C); and is the cornerstone of the definition of overfishing in

section 3(29). In reviewing the language in the Magnuson-Stevens Act as

a whole, and the legislative history of the SFA, NMFS believes the lack

of flexibility imposed by ascribing such a fundamental role to MSY was

clearly an intent of Congress. The difficulty of estimating MSY is a

significant problem that will require the best efforts of NMFS and the

Councils to solve. While it is true that some fishery scientists

disfavor the concept of MSY, others find it very useful, and its

application in international agreements is on the increase,

particularly in the establishment of precautionary approaches to

fishery management.

Comment 2: Several commenters offered the following view relative

to the usage of ``overfishing'' and ``overfished'': The terms

``overfishing'' and ``overfished'' used in the SFA are intended to have

the same meaning given to the term ``overfishing'' in the existing

guidelines and are not intended to change the emphasis on or timeframe

for addressing overfishing. The deletion of the modifier ``long-term''

from the regulatory definition of ``overfishing'' was not significant;

the use of MSY is a target, not a constraint within which OY is

determined. However, use of the term ``fishery'' instead of ``stock or

stock complex'' in the SFA definition of overfishing and overfished was

an intentional change from the wording in the existing guidelines to

ensure that multi-species or mixed-stock fisheries are managed and

considered as a unit.

Other commenters agreed with NMFS' interpretation that removal of

the phrase ``long-term'' in the statutory language is significant in

that it raises the standard to which conservation and management

measures are held.

Response: NMFS disagrees that the definition for ``overfishing''

and ``overfished'' in the SFA did not change the emphasis on or

timeframe for addressing overfishing or that MSY is only a target

instead of a constraint. However, NMFS does agree that use of the term

``fishery'' instead of ``stock or stock complex'' was an intentional

change intended to allow for the management of mixed-stock fisheries on

a unit basis (see also response to comments 35 and 36). The definition

for ``overfishing'' and ``overfished'' (identically defined) has as its

basis the current definition of ``overfishing'' in the existing

national standard guidelines (50 CFR 600.310(c)(1)). That definition

states: ``Overfishing is a level or rate of fishing mortality that

jeopardizes the long-term capacity of a stock or stock complex to

produce MSY on a continuing basis.''

During the development of the Magnuson-Stevens Act's amendments,

NOAA suggested to Congressional staff that the phrase ``long-term'' be

deleted from the definition of ``overfishing'' to require Councils to

stop overfishing sooner rather than later. Congress chose to delete the

modifier ``long-term'' when referring to the capacity of a stock to

produce MSY. NOAA considered this change to be significant. Other

amendments to the SFA bolster this interpretation:

(1) The rebuilding requirements (especially the 10-year maximum

with three very limited exceptions, and the Secretary's obligation to

develop rebuilding plans if the Councils fail to do so).

(2) Congress' conclusion that the survival of certain stocks is

threatened and that immediate action needs to be taken to protect those

stocks (section 2(a)(2) of the SFA).

In addition, floor debates in both the House and Senate expressed

Congressional displeasure with the length of time Councils have taken

in the past to address overfishing problems (see, for example, the

statement of Senator Stevens at S10810, September 18, 1996).

The SFA points to MSY as the goal of rebuilding programs and to

maintenance of stocks at this level on a continuing basis. Unless MSY

is established as a strict goal, the greatly enhanced benefits

anticipated by enactors of the SFA

[[Page 24216]]

cannot be achieved. This position is supported by the following:

(1) The intent of the SFA was to require Councils to ensure that

fish stocks were not harvested beyond their MSY, as evidenced by the

debate on the floor of the House, when members voted 304-113 to adopt

the Gilchrest amendment specifically stating that OY could no longer

exceed MSY. The new definition of ``optimum'' was maintained in the

Senate bill that ultimately became law.

(2) Section 3(28)(C) indicates that, for overfished fisheries,

rebuilding is to occur until the stocks have reached a level that can

produce MSY on a continuing basis.

(3) Inclusion of a rebuilding requirement in the Magnuson-Stevens

Act implies that stock size is relevant to the concept of

``overfishing'' and ``overfished,'' and that MSY (a measure of biomass)

is to be used as the measure against which the success of a rebuilding

program is judged. A rebuilding requirement without a biomass

foundation has no meaning.

(4) The phrase ``on a continuing basis'' in the SFA definition of

``overfishing'' indicates that stocks are to be maintained at levels

capable of producing MSY (and OY) on a continuous (uninterrupted)

basis; thus, short-term overfishing that causes populations to decline

below these levels is not permissible. HR 39 would have allowed OY to

exceed MSY for healthy fisheries, but that approach was rejected in the

Senate bill, which became law.

(5) Senator Hollings in the floor debate on the Sustainable

Fisheries Act (Congressional Record - Senate, September 18, 1996)

stated that ``The bill also: First, caps fishery harvests at the

maximum sustainable levels and requires action to prevent overfishing

and rebuild depleted fisheries; * * *''

(6) The summary of the Managers Amendment to S. 39 (The Sustainable

Fisheries Act), as printed in the Congressional Record - Senate on

September 19, 1996, states in the discussion regarding definitions that

``this change prevents the maximum sustainable yield of a fishery from

being exceeded.''

(7) Senate Report No. 104-276 regarding the Sustainable Fisheries

Act states on page 4077 that ``Finally, the substitute would amend the

existing definition of 'optimum' with respect to fishery yield to cap

fish harvests at the maximum sustainable yield.''

Comment 3. Several commenters objected to the proposed definition

of MSY control rule in Sec. 600.310(c)(1)(ii) or to the identification

of the maximum fishing mortality threshold with the MSY control rule in

Sec. 600.310(d)(2)(i). Typically, the objections centered around the

degree of flexibility afforded to the Councils in choosing the form of

the MSY control rule (and thereby, the maximum fishing mortality

threshold). Commenters generally felt that the language of the

Magnuson-Stevens Act permits only one choice of MSY control rule--

namely, harvesting at a single, invariant rate, where this rate is

chosen so as to maximize the resulting long-term average yield. Given

this interpretation, the commenters stated that the Councils should be

denied the option of varying the maximum fishing mortality threshold as

a function of stock size.

Response. No change was made. While the Magnuson-Stevens Act

clearly requires that fishing mortality be prevented from exceeding

rates or levels that would jeopardize the capacity of a stock or stock

complex to produce MSY on a continuing basis, it does not indicate that

such rates or levels cannot vary with stock size. In general, MSY

control rules that allow for the fishing mortality rate to vary with

stock size (i.e., those that decrease fishing mortality when stock size

is low) provide a higher average catch and a lower probability of

observing a seriously reduced stock size than those that require the

fishing mortality rate to remain constant. NMFS believes both of these

characteristics are very much in keeping with the letter and intent of

the Magnuson-Stevens Act.

Comment 4. Several commenters objected to the proposed inclusion of

a ``constant catch'' example in Sec. 600.350(c)(2)(i), feeling that

this particular MSY control rule is inefficient or potentially

dangerous.

Response. No change was made. The example is included partly for

logical completeness. The commenters are correct that this control rule

is a safe harvest strategy only when the catch level is chosen very

conservatively, in which case some amount of potential yield is

foregone. However, in cases where minimizing harvest variability is a

primary concern, it is conceivable that the greatest net benefits might

be realized by making such a tradeoff (i.e., by giving up a certain

amount of catch, on average, in order to increase year-to-year

stability of harvests).

Comment 5. Several commenters objected to the proposed definition

of MSY in Sec. 600.310(c)(1)(i). Concerns included the fact that the

largest long-term average catch may vary with changes in the minimum

size limit or selectivity pattern, the perception that the definition

is invalid for stocks that are already overfished, and the difficulty

of establishing a long-term average under current environmental

conditions when those conditions do not prevail over the long term.

Response. No change was made. As defined in Sec. 600.310(c)(1)(i),

MSY does not vary with changes in the minimum size limit or selectivity

pattern. While such changes can have an effect on long-term average

catches, the guidelines view MSY in a more global sense. In other

words, MSY is the largest long-term average catch across all possible

management regimes, not just a single management regime characterized

by a particular minimum size limit or selectivity pattern. In terms of

its applicability to overfished stocks, the guidelines' definition of

MSY is valid, providing that ``long-term'' is suitably defined. As to

the relationship between MSY and environmental conditions, it should be

noted that MSY is the largest long-term average catch that could be

obtained if current ecological and environmental conditions were to

remain constant indefinitely. Of course, ecological and environmental

conditions do not remain constant indefinitely, which is one of the

reasons for the guidelines' emphasis on the fact that MSY is a

theoretical concept, rather than an empirical one.

Comment 6. Several commenters were concerned that insufficient

consideration was given to allowing for uncertainty in the estimation

of MSY, for example due to errors in catch and other input data,

estimation errors in stock assessments, frequency of stock assessments,

and changes in environmental conditions.

Response. No change was made. As emphasized in

Sec. 600.310(c)(2)(ii), allowing for uncertainty in the estimation of

MSY is important. The items listed in the above comment are excellent

examples of factors that Councils are encouraged to consider in the

process of incorporating appropriate consideration of risk into the

estimation of MSY.

Comment 7. Several commenters objected to the examples of

alternatives to specifying MSY in Sec. 600.310(c)(3). A variety of

reasons were cited, including the fact that some of the examples listed

might not be appropriate in all cases, the fact that some possible

alternatives were not listed, and the fact that the alternatives listed

depend on estimated values rather than known quantities.

Response. No change was made. As noted in Sec. 600.305(c)(9),

examples (such as those listed in Sec. 600.310(c)(3)) are given by way

of illustration and further explanation. They are not inclusive lists;

they do not limit options. Thus,

[[Page 24217]]

the reference points listed in Sec. 600.310(c)(3) are intended to

suggest some ways in which Councils might proceed in the event that

data are insufficient to estimate MSY directly. The fact that a

reference point is not included in Sec. 600.310(c)(3) does not

necessarily mean that it may never be used as a proxy for MSY. Nor does

the fact that a reference point is included in Sec. 600.310(c)(3)

necessarily mean that it may always be used as a proxy for MSY.

However, there is no escaping the conclusion that, regardless of

whether MSY or a proxy is used, some sort of estimation will

necessarily be involved.

Comment 8. Several commenters objected to proposed paragraphs that

contain references to a 10-year time period for rebuilding, but that do

not contain the full text of the statutory language clarifying that 10

years is a constraint rather than a target. In particular, some

commenters objected to the mention of a 10-year time period for

rebuilding in Sec. 600.310(d)(2)(ii), feeling that this contradicted

the fuller discussion of the statutory language in

Sec. 600.310(e)(4)(ii). More specifically, a stock that is below the

MSY level, but not overfished under Sec. 600.310(d)(2)(ii), might take

as long as 10 years to rebuild to the MSY level if fished at the

maximum rate allowable under Sec. 600.310(d)(2)(i), even though the

Magnuson-Stevens Act states clearly that the rebuilding period for an

overfished stock or stock complex must be as short as possible, taking

into account the status and biology of the stock or stock complex, the

needs of fishing communities, recommendations by international

organizations in which the United States participates, and the

interaction of the overfished stock or stock complex within the marine

ecosystem.

Response. No change was made. The statutory timeframe for

rebuilding is clearly a binding constraint on Council actions

undertaken to rebuild a stock or stock complex that is overfished. No

provision of the guidelines can, or is intended to, override the

statutory language. The subject of Sec. 600.310(d)(2)(ii), the minimum

stock size threshold, is distinctly different from the subject of

Sec. 600.310(e)(4)(ii), the acceptable timeframe for rebuilding an

overfished stock or stock complex. The former describes how to tell

whether a stock or stock complex is overfished, while the latter

describes what to do if a stock or stock complex is overfished.

Comment 9. Several commenters asked that the guidelines contain an

explicit interpretation of the statutory description of the time period

for rebuilding summarized in Sec. 600.310(e)(4)(ii) of the proposed

rule.

Response. NMFS agrees; this request was a primary reason the

comment period was reopened. As described under Changes from the

Proposed Rule, Sec. 600.310(e)(4)(ii) has been substantially revised to

interpret the statutory provision.

Comment 10. One commenter stated that the biology of the stock does

not dictate a rebuilding period of more than 10 years unless recovery

is impossible in the absence of all fishing mortality.

Response. The starting point in structuring a rebuilding program is

the length of time it would take a stock to recover if fishing

mortality ceased. That a stock is long-lived, or reproduces slowly,

does not necessarily mean that it could not be rebuilt within 10 years.

The initial relevant inquiry is the no-fishing mortality period. If it

is less than 10 years, factors such as the needs of fishing communities

may justify lengthening the schedule to 10 years. If the no-mortality

period is longer than 10 years, the schedule can also be adjusted,

relying on those factors, up to a limit based on the stock's life-

history characteristics.

Comment 11. A number of commenters preferred the first option

offered in the notice reopening the comment period. They believed the

rebuilding period should not be indeterminate. For stocks that cannot

be rebuilt within 10 years, even in the absence of fishing mortality,

the commenters thought the factors in section 304(e)(4)(A)(i) of the

Magnuson-Stevens Act should not be used to extend the rebuilding

period.

Response. NMFS agrees that the rebuilding period should not be

indeterminate. For stocks that will take more than 10 years to rebuild,

the guidelines impose an outside limit that is objective, measurable,

and linked to the biology of the particular species. While the

statutory language is subject to more than one interpretation, NMFS

believes the factors in section 304(e)(4)(A)(i) may be used to extend

the rebuilding period, whether the no-fishing mortality period is

shorter or longer than 10 years.

Comment 12. Two commenters argued that ``as short as possible''

means the time period should not be allowed to stretch to 10 years for

stocks that could be rebuilt more quickly.

Response. The guidelines allow a rebuilding program to extend to 10

years, but only when the Council can justify that the needs of fishing

communities or other factors in section 304(e)(4)(A)(i) of the

Magnuson-Stevens Act outweigh the imperative to rebuild the stock as

quickly as possible.

Comment 13. Other commenters stated the outer limit should be

``reasonable,'' perhaps based on life-history characteristics.

Proposals included 10 years plus one reproduction cycle; one generation

time; and the no-fishing mortality period plus a period linked to

fishing mortality levels that will not prevent steady rebuilding. Some

commenters believed that Congress did not intend for many fisheries to

be closed if they could not be rebuilt within 10 years; rather, a

reduced level of fishing should be allowed.

Response. The guidelines strike a balance between the Congressional

directive to rebuild stocks as quickly as possible, and the desire,

expressed in national standard 8, to minimize adverse economic effects

on fishing communities. For stocks that cannot be rebuilt within 10

years, the guideline allows flexibility in setting the rebuilding

schedule beyond the no-fishing mortality period, but places a

reasonable, species-specific cap on that flexibility by limiting the

extension to one mean generation time. Reduced fishing mortality that

result in steady increases in the biomass are acceptable, if rebuilding

goals can be met within the timeframe specified in the guideline.

Comment 14. A few commenters thought there should be no upper limit

on the rebuilding period, and that the length of a rebuilding schedule

should be left to Council discretion.

Response. Congress chose 10 years as the upper limit for the

rebuilding period for most stocks; the exceptions in section

304(e)(4)(A)(ii) of the Magnuson-Stevens Act are narrow. For stocks

that fall within the exceptions, the mandate that they be rebuilt in

``as short as possible'' a period indicates the need for a definite,

measurable bound on the rebuilding schedule. The Congressional intent

is very clear, that the previous practice of unlimited discretion in

rebuilding stocks must be changed.

Comment 15. Several commenters suggested that stocks whose

rebuilding would not be affected by the cessation of fishing mortality

should be exempt from the provisions of section 304(e)(4) of the

Magnuson-Stevens Act.

Response. NMFS understands that factors other than fishing

mortality confound and handicap rebuilding efforts for some stocks, but

can find no basis in the statute for exempting such stocks from the

rebuilding requirement. (See also the response to comment 18 under

national standard 1). The flexibility introduced in the rebuilding and

mixed-stock provisions of the

[[Page 24218]]

guidelines should assist in management of these stocks.

Comment 16. Two commenters suggested that the guidelines contain an

explicit description of the starting point for the rebuilding period.

Response. Section 600.310(e)(4)(ii) has been revised to indicate

that the rebuilding period commences as soon as the first measures in a

new or revised rebuilding program are implemented.

Comment 17. Two letters of comment raised concern that rebuilding

programs may not be adopted until the year 2000 due to delays in

approving new overfishing definitions and the submission of rebuilding

programs based on those definitions. The commenters believe that new

overfishing definitions and rebuilding programs in accordance with

those programs should be submitted by October 11, 1998.

Response. NMFS agrees that rebuilding programs may be delayed

beyond the year 2000, given the schedules established by the SFA, but

will work with the Councils to implement revised definitions of

overfishing and rebuilding plans as soon as possible. NMFS has clearly

communicated to the Councils that section 108(b) of the SFA requires

them to amend their FMPs not later than 24 months after enactment of

the SFA (October 11, 1996) to bring them into conformance with the

provisions of sections 303(a)(1), (5), (7) and (9)-(14) of the

Magnuson-Stevens Act. Section 303(a)(10) specifically requires the

specification of objective and measurable criteria for identifying when

the fishery to which the FMP applies is overfished, and section 304(e)

requires the submission of rebuilding plans for stocks that are

determined to be overfished.

On September 30, 1997, NMFS submitted a report to Congress that

identified those stocks in their areas of jurisdiction that are

overfished or approaching an overfished condition, based on existing

overfishing definitions, as required by the Magnuson-Stevens Act. The

Councils were notified that they have 1 year within which to submit

rebuilding programs for those stocks identified as overfished.

Therefore, the Councils are to be simultaneously working on both new

definitions of overfishing and rebuilding plans, as necessary. As new

overfishing definitions are approved, the status of stocks will need to

be reassessed against those new criteria. It is likely that some stocks

that were not listed as overfished when judged against the overfishing

definitions in place in September 1997 will be determined to be

overfished when compared to the criteria in new definitions. If and

when that occurs, NMFS will notify the affected Council(s) and the

public of that fact and the Council(s) will have 1 year from that date

in which to submit a rebuilding plan.

Comment 18. Two commenters suggested that the guidelines elaborate

on the relationship between environment/habitat and the specified time

period for rebuilding. In particular, the commenters wondered what is

meant by the term ``environmental conditions,'' whether remedial action

would still be required in the event that environmental conditions

cause the minimum possible rebuilding time to exceed 10 years, whether

MSY should be re-estimated if habitat capacity changes, and, if so,

whether remedial action could appropriately address habitat issues as

well as fishing mortality.

Response. Except for a slight revision to Sec. 600.310(d)(4)(iii),

as described below, no change was made. ``Environmental conditions''

means those biological or physical components of the marine ecosystem

with which the overfished stock or stock complex interacts (also see

revised Sec. 600.310(e)(4)(ii)). Council action is required whenever a

stock or stock complex is determined to be overfished, regardless of

whether it is possible to achieve rebuilding within 10 years. Regarding

MSY, it is clear from the definition in Sec. 600.310(c)(1)(i) that MSY

is conditional on the state of the environment, which includes habitat.

As noted in Sec. 600.310(d)(4)(ii), environmental changes that affect

the long-term productive capacity of the stock or stock complex require

re-specification of one or more status determination criteria. As noted

in Sec. 600.310 (d)(4)(iii), Councils should recommend restoration of

habitat in cases where manmade environmental changes are partially

responsible for a stock or stock complex being in an overfished

condition. In addition, Sec. 600.310(d)(4)(iii) has been revised to

reference the Councils' responsibilities in cases where essential fish

habitat is concerned.

Comment 19. Several commenters objected to the proposed requirement

that each FMP specify, to the extent possible, both a maximum fishing

mortality threshold and a minimum stock size threshold for each stock

or stock complex covered by that FMP (Sec. 600.310(d)(2)).

Response. No change was made. Section 303(a)(10) of the Magnuson-

Stevens Act requires the specification of status determination

criteria, and sections 304(e)(1) and 304(e)(2) state that these

criteria are to be used for the purpose of determining which fisheries

are in need of action ``to end overfishing'' and ``to rebuild affected

stocks of fish.'' The only way that both needs (``end overfishing'' and

``rebuild affected stocks'') can be addressed is if the status

determination criteria include measures appropriate to each--namely,

one measure pertaining to the rate of fishing mortality and another

measure pertaining to the size of the stock. That is, if only a maximum

fishing mortality threshold were specified, it would be possible to

determine which fisheries require action to end overfishing, but it

would not be possible to determine which fisheries require action to

rebuild affected stocks. Conversely, if only a minimum stock size

threshold were specified, it would be possible to determine which

fisheries require action to rebuild affected stocks, but it would not

be possible to determine which fisheries require action to end

overfishing.

Comment 20. Several commenters objected to the proposed provision

in Sec. 600.310(d)(2)(ii) that would allow the minimum stock size to be

as low as 50 percent of the MSY stock size, conditional on an

appropriate choice of MSY control rule. These commenters felt uniformly

that Congress intended for any stock or stock complex below its MSY

level to be considered overfished, and suggested that a stock size

threshold be set at 80 percent (one commenter said ``at or above 80

percent'') of the MSY stock size. The commenters were divided over

whether this reference point should constitute a minimum threshold or

an ``interim'' threshold, where an interim threshold was defined as a

point that ``should trigger a review of what remedial action is

necessary to prevent the decline from continuing.''

Response. No change was made. A key question is whether Congress

intended for each stock or stock complex that temporarily falls below

its MSY level to be considered overfished, even if the rate of fishing

mortality on that stock or stock complex has consistently been within

the limit allowed by the MSY control rule. If the answer is ``yes,''

then any threshold below the MSY stock size is unacceptable: For

example, a threshold set at 80 percent of the MSY stock size is just as

unacceptable as one set at 50 percent of the MSY stock size. However,

NMFS believes it is important to remember that natural variability is

an inherent part of fishery systems, and that any stock or stock

complex managed for MSY will sooner or later

[[Page 24219]]

fall below its MSY level, though only temporarily.

Because the Magnuson-Stevens Act explicitly allows OY to be as high

as MSY, NMFS believes that Congress must have intended to allow stocks

to be managed such that stocks were capable of producing MSY, meaning

that Congress must have been willing to accept the consequence that

some stocks would fall below their respective MSY producing levels

temporarily. Given this interpretation, the question becomes, ``How low

is too low?'' While the fishery science literature does not provide a

definitive answer to this question, NMFS believes that a prudent rule

can be established as follows: Two of the best known models in the

fishery science literature find that, on average, the stock size at MSY

is approximately 40 percent of the stock size that would be obtained if

fishing mortality were zero (the pristine level). (The actual values

are 36.8 percent (Gompertz-Fox model) and 50 percent (Verhulst-Schaefer

model). Also, the fishery science literature contains several

suggestions to the effect that any stock size below about 20 percent of

the pristine level should be cause for serious concern. In other words,

a stock's capacity to produce MSY on a continuing basis may be

jeopardized if it falls below a threshold of about one-fifth the

pristine level. Expressing this threshold in terms of the stock size at

MSY results in a minimum stock size threshold equal to 50 percent of

the MSY level. A stock at 50 percent of its MSY level would typically

be close to 20 percent of its pristine level, a threshold below which

it must not be allowed to fall.

Of course, the guidelines do not prohibit the Councils from setting

as many ``interim'' stock size thresholds as they like, so long as

these are above the minimum stock size threshold. However, it would be

a mistake for the guidelines to require use of an interim stock size

threshold set at 80 percent of the MSY level in all cases, insofar as

some stocks may be incapable of rebuilding to the MSY level from such a

threshold within the statutory time period, depending on the status and

biology of the stock, the stock's interactions with other components of

the marine ecosystem, and the choice of MSY control rule.

Comment 21. Several commenters suggested that the guidelines

contain an explicit prohibition against ``short-term'' or ``pulse''

overfishing.

Response. No change was made. Taken together,

Sec. 600.310(d)(2)(i), (e)(3), and (e)(3)(i) already indicate that

exceeding the maximum fishing mortality threshold for even a single

year is not permissible, except as provided under Sec. 600.310(d)(6).

If ``short-term'' or ``pulse'' overfishing means that the maximum

fishing mortality threshold would be exceeded for a period of at least

1 year, then the guidelines clearly prohibit these practices.

Comment 22. Two commenters suggested that the minimum stock size

threshold should always be set equal to the MSY stock size. However,

one of these commenters further suggested that it should be permissible

for a stock or stock complex to fall slightly below its minimum stock

size threshold on an occasional basis without being considered

overfished.

Response. No change was made. Setting the minimum stock size

threshold equal to the rebuilding target means that natural variability

will frequently cause stocks to be classified as ``overfished,'' even

if no overfishing ever occurs. The suggestion to permit occasional,

slight violations of the minimum stock size threshold would require

establishing criteria for determining the acceptable rate and extent of

threshold violation, which would undoubtedly be a problematic exercise.

Comment 23. Several commenters suggested that the guidelines should

incorporate, to the maximum extent possible, recent strides made in the

application of the precautionary approach, such as those contained in

the United Nations Treaty on Straddling Stocks and Highly Migratory

Species.

Response. No change was made. The guidelines are already very much

in step with, and in some cases ahead of, recent strides made in the

application of the precautionary approach in the international arena.

In addition, as noted in the preamble of the proposed rule, further

technical guidance regarding specification of a precautionary approach

will be provided by NMFS in the near future.

Comment 24. One commenter suggested that the guidelines should

require all MSY estimates (both point estimates and ranges) and OY

specifications (both single values and ranges) to be accompanied by

confidence intervals, which the commenter felt to be a basic component

of a risk-averse approach. The commenter suggested that such confidence

intervals could be qualitative in nature, if necessary.

Response. No change was made. NMFS agrees that a risk-averse

approach is highly desirable, both for estimation of MSY and for

specification of OY, but does not believe that requiring confidence

intervals for these quantities is necessarily the best or only way to

implement such an approach. For example, if point estimates are

determined in an explicitly risk-averse manner, the addition of

confidence intervals could prove more confusing than helpful,

especially to a nontechnical audience. However, in those cases where

Councils feel that confidence intervals would be helpful,

Sec. 600.310(c)(2)(ii) already gives the Councils explicit latitude to

use them. The same paragraph also requires that appropriate

consideration of risk be incorporated into estimates of MSY, while

Sec. 600.310(f)(5)(iii) states that criteria used to set target catch

levels (such as OY) should be explicitly risk averse, so that greater

uncertainty regarding the status or productive capacity of a stock or

stock complex corresponds to greater caution in setting target catch

levels.

Comment 25. One commenter suggested that a precautionary approach

is not appropriate for a management target such as OY.

Response. No change was made. Contrary to this comment, NMFS

believes a precautionary approach is particularly appropriate for a

management target such as OY. If management is effective, harvests will

typically be close to the target level, so if the precautionary

approach is to have a substantial impact on fishery management, it

needs to be applied to management targets at least as much as to

management thresholds.

Comment 26. One commenter suggested that the description of the

precautionary approach should state that lack of information should not

prevent a Council from taking reasonable steps to address fishery

resource problems.

Response. No change was made. This suggestion is already implicit

in Sec. 600.310(f)(5)(iii), which states that greater uncertainty

(i.e., greater lack of information) should correspond to greater

caution in setting target catch levels. NMFS believes that prudent

decision-making in the face of uncertainty is a cornerstone of any

precautionary approach.

Comment 27. Two commenters expressed concern over the target stock

size for rebuilding. One commenter suggested that the target should be

the OY stock size and felt that the guidelines erred in treating the

MSY stock size as though it were the target. The other commenter

suggested that the target ought to be the MSY stock size and felt that

the guidelines erred in treating the MSY stock size as though it were a

threshold.

[[Page 24220]]

Response. The Magnuson-Stevens Act, in section 3(28)(C), implies

strongly that the MSY stock size is at least an initial target for

rebuilding. Of course, to the extent that OY is lower than MSY and that

management is generally successful in achieving OY on a continuing

basis, the OY stock size will be greater than the MSY stock size; thus

the ultimate target level (OY stock size) will be greater than the

initial target level (MSY stock size). The guidelines are consistent in

treating the MSY stock size as a constraint rather than as a threshold.

Comment 28. Several commenters suggested that the method for

calculating rebuilding time requires clarification. Assuming that some

sort of estimation is involved in calculating rebuilding time, a number

of possibilities present themselves. Does ``rebuilding time'' refer to

the expected rebuilding time, the median rebuilding time, some

percentile of rebuilding times, or something else?

Response. No change was made. The commenters are correct that there

are a large number of ways to calculate rebuilding time. In addition to

statistics pertaining to the time required to reach some specified

stock size, other possibilities include various statistics pertaining

to the stock size achieved at some specified future time--for example,

the expected stock size, the median stock size, or some percentile of

stock sizes. While these choices pose potentially substantive issues,

NMFS believes there are a number of reasonable ways to calculate

rebuilding time that would be consistent with the provisions of the

national standard 1 guidelines. It is beyond the scope of these

guidelines to establish a single method to be used in all cases.

However, it is possible that the forthcoming technical guidance

regarding the precautionary approach (as described in the preamble to

the proposed rule) could address these issues.

Comment 29. One commenter suggested that the maximum fishing

mortality threshold should be greater than the fishing mortality rate

associated with the chosen MSY control rule. The commenter noted that

this would be consistent with the approach taken by Rosenberg et al.

(1994)(see preamble to the proposed rule).

Response. No change was made. The commenter is correct insofar as

the report by Rosenberg et al. (1994) interpreted the former Magnuson

Act as taking overfishing to be a rate of fishing mortality somewhat

greater than the rate associated with any MSY control rule. However, it

is clear that the Magnuson-Stevens Act takes a different, more

conservative, approach by linking overfishing much more directly to

MSY. Allowing the maximum fishing mortality threshold to exceed the

fishing mortality rate associated with the MSY control rule would thus

be inconsistent with the Magnuson-Stevens Act.

Comment 30. One commenter felt that the proposed procedural

requirements for interim measures in Sec. 600.310(e)(5) are too

burdensome. The commenter stated that, under the proposed guidelines,

the Councils would essentially have to develop the same measures as

part on an FMP or amendment for implementation on a more permanent

basis, before recommending the measures as interim measures. Instead,

the Councils should be allowed to recommend an interim action whenever

there is a substantial conservation benefit to be gained.

Response. No change was made. NMFS agrees that actions to address

overfishing should not be constrained unnecessarily. Section 304(e)(6)

of the Magnuson-Stevens Act states that interim measures can be

requested by a Council during its development of an FMP, an FMP

amendment, or proposed regulations to address overfishing as required

under section 304(e), until such measures can be replaced by such FMP,

amendment, or regulations. Section 305(c)(3)(B) of the Magnuson-Stevens

Act establishes time constraints on interim actions and makes

extensions contingent upon the Council's actively preparing an FMP, FMP

amendment, or proposed regulations to address overfishing on a

permanent basis. Section 600.310(e)(6) of the guidelines reflects these

statutory requirements.

Comment 31. One commenter objected to statements in

Sec. 600.310(f)(1)(ii) and (f)(5)(i) to the effect that OY cannot be

achieved on a continuing basis if status determination criteria are not

met. The commenter contended that the purpose of the status

determination criteria is to measure FMP performance, not to control

fishing, and that the present wording of the guidelines might preclude

a Council from taking a gradual approach toward bringing fishing

mortality into conformity with the maximum fishing mortality threshold.

Response. No change was made. NMFS believes that status

determination criteria are indeed intended to control fishing. The

commenter is correct insofar as the guidelines would preclude a Council

from taking a gradual approach toward bringing fishing mortality into

conformity with the maximum fishing mortality threshold. Once a Council

is notified that overfishing is occurring, it must take action within 1

year to end overfishing. A gradual approach is not permitted.

Comment 32. One commenter suggested that the guidelines should

include a clear statement to the effect that, whenever overfishing is

occurring, remedial action is required.

Response. No change was made. The statement already appears in

Sec. 600.310(e)(3)(i).

Comment 33. One commenter suggested that the guidelines should

encourage adoption of target harvest levels set safely below MSY.

Response. No change was made. The statement already appears in

Sec. 600.310(f)(5)(i).

Comment 34. Several commenters suggested that Sec. 600.310(f)(2)(i)

and (f)(2)(ii) under emphasized the benefits to the Nation accruing

from food production relative to those accruing from recreational

opportunities. Two commenters suggested that contributions to the

surrounding economies ought to be listed as a benefit accruing from

food production, as well as from recreational opportunities. One

commenter suggested that the guidelines seemed to equate recreational

fishing with non-consumptive use and commercial fishing with

consumptive use, giving the impression that recreational fishing does

not contribute to food production. One commenter was concerned

regarding the vague nature of the ``other non-consumptive activities''

that were suggested to be ``important to the national, regional, and

local economies'' in Sec. 600.310(f)(2)(ii).

Response. Sections 600.310(f)(2)(i) and (f)(2)(ii) have been

revised. NMFS believes that neither the benefits to the Nation accruing

from food production nor those accruing from recreational opportunities

should be under emphasized. Contributions to the national, regional,

and local economies are now listed as benefits accruing from both food

production and recreational opportunities. Contrary to one of the

comments cited, the proposed rule explicitly acknowledged the

contribution of recreational fishing to food production; this

acknowledgment is retained in the revised language. The non-specific

reference to ``other non-consumptive activities'' has been deleted from

Sec. 600.310(f)(2)(ii), insofar as this paragraph is not intended to

provide an exhaustive list of non-consumptive uses.

Comment 35. Several commenters disagreed with the proposed

guidelines' allowance of an exception to the requirement of preventing

overfishing,

[[Page 24221]]

in the case of one stock component of a mixed-stock fishery. They said

that the legislative history of the SFA supports elimination of this

exception, and challenged NMFS' authority to retain it.

Response. The legislative history of the SFA does not directly

address this issue. The statute defines ``overfishing'' and

``overfished'' in terms of the capacity of a fishery to produce MSY.

National standard 1 requires conservation and management measures to

prevent overfishing while achieving the OY from each fishery. Section

304(e) of the Magnuson-Stevens Act requires the Secretary to identify

fisheries that are being overfished. The Council must then take steps

to end overfishing in the fishery.

A ``fishery'' is defined in the Magnuson-Stevens Act as ``one or

more stocks of fish which can be treated as a unit for purposes of

conservation and management.'' In a mixed-stock fishery, several stocks

are harvested together and are managed as a unit. From the SFA's focus

on ``fisheries,'' and the fact that it did not amend national standard

1, NMFS infers that Congress did not mean to eliminate entirely the

long-standing practice of allowing a mixed-stock fishery to continue,

if certain conditions specified in the guidelines were met.

To respond to concerns that this exception might become a huge

loophole, the proposed guidelines considerably narrowed this exception

from the existing guidelines. To allow overfishing of one stock in a

mixed-stock fishery, a Council must meet three stringent conditions:

(1) It must demonstrate by analysis that the action will result in

long-term net benefits to the Nation; (2) it must demonstrate by

analysis that a similar level of benefits cannot be achieved by

modifying fleet behavior, gear selection or configuration, or other

technical characteristic so that no overfishing would occur; and (3) it

must ensure that the action will not cause any species or

evolutionarily significant unit thereof to require protection under the

Endangered Species Act.

The exceptions for mixed-stock fisheries have thus been

significantly constrained by requiring that (1) demonstrated net

benefits to the Nation be long-term, rather than short-term; (2) an

analysis be performed to consider technical or operational alternatives

to overfishing; and (3) the stock or stock complex not be driven to a

dangerously low level.

NMFS believes the guidelines strike the correct balance between

preventing a stock from becoming overfished and achieving OY for the

fishery as a whole.

Comment 36. The notice reopening the comment period asked whether

overfishing evaluations and rebuilding programs should be focused on

individual stocks, or on a fishery. In response, many commenters

pointed out that a stock-by-stock approach is the only scientifically

justified method. Overlooking the condition of each stock is also

inconsistent with Congressional intent to rebuild all fishery

resources. Other commenters wanted to focus on fisheries, as part of an

ecosystem approach to management. A mixed stock fishery should be

managed as a unit, and should not be closed just because one component

of the fishery is overfished.

Response. A fishery comprised of many stocks cannot be judged as

overfished or not; only for a stock or stock complex of fish can

measurable, objective criteria of overfishing be established, as

required by the SFA. The same concern applies to judging whether a

fishery has been rebuilt; biologically, that can be determined only on

a stock or stock complex basis. The Secretary's first report to

Congress (September 30, 1997, under section 304(e)) identified stocks,

not fisheries, as overfished.

Focusing on stocks as a scientific endeavor is not inconsistent

with managing a fishery as a unit. As explained in the response to

comment 35 under national standard 1, identification of a stock as

overfished does not necessarily mean that the entire fishery in which

it occurs must be severely constrained while that stock is rebuilt.

Scientific judgments on overfishing and rebuilding must be made, to the

extent practicable, on a stock-by-stock basis, but management judgments

on optimizing benefits can be made on the fishery as a whole. In other

words, managers should be aware of the biological status of each stock,

and should also be required to justify the continuation of overfishing

of a stock in a mixed-stock fishery on the grounds of maximizing

benefits.

Comment 37. One commenter suggested that a discussion of

``acceptable biological catch'' (ABC) be included in the guidelines, as

in the 1989 version. The commenter felt that ABC is used by most, if

not all, of the Councils and in many FMPs.

Response. No change was made. NMFS believes that ABC, as typically

used, is an example of the ``annual target harvest levels that vary

with stock size'' described in Sec. 600.310(f)(4)(ii). Given that the

term ``acceptable biological catch'' does not appear in the Magnuson-

Stevens Act (although ``allowable biological catch'' is used once,

without definition, in section 303(b)(11)), NMFS does not believe that

it is necessary to reference this additional term by name in the

guidelines.

Comment 38. One commenter objected to specifying minimum stock size

threshold as a function of MSY stock size, as in

Sec. 600.310(d)(2)(ii). The commenter was concerned that extreme

changes in environmental conditions could lead to extreme changes in

carrying capacity and could result in a mismatch between the minimum

stock size threshold and the stock's new productive capacity.

Response. No change was made. Section 600.310(d)(4)(ii) requires

that status determination criteria be respecified if changes in

environmental conditions cause the long-term productive capacity of the

stock or stock complex to change. (See also the response to comment 18

for national standard 1).

Comment 39. One commenter objected to the statement in

Sec. 600.310(f)(5)(i) that continual harvest at a level above OY would

violate national standard 1, even if no overfishing resulted. The

commenter felt that it is both physically and fiscally impossible to

assure that quotas are not systematically exceeded.

Response. No change was made. NMFS believes that the national

standard 1 mandate for ``achieving, on a continuing basis, the OY from

each fishery'' should not be interpreted to mean, ``achieving, on a

continuing basis, the OY or some greater amount of harvest from each

fishery.'' By definition, MSY is the greatest amount of harvest that

could be achieved from a fishery on a continuing basis. Presumably, the

reason that the Magnuson-Stevens Act makes explicit provision for

setting OY at a level below MSY is that, where justified on the basis

of relevant economic, social, or ecological factors, continual harvest

at a higher level (such as MSY) is to be avoided. NMFS' experience has

been that it is indeed possible to assure that quotas are not

systematically exceeded. If, however, a Council finds that a systematic

amount of harvest overrun is inevitable, quotas should be reduced by

that amount.

Comment 40. Several commenters suggested that the guidelines list

examples of management actions required under a variety of fishing

mortality rates and stock sizes.

Response. No change was made. NMFS believes there are so many

variables and contingencies specific to each fishery that it would not

be meaningful to list examples of the type

[[Page 24222]]

requested. In general, though, it is clear that a Council's primary

control will be over fishing mortality. If the fishing mortality rate

on a stock or stock complex exceeds the maximum fishing mortality

threshold, it must be reduced to the extent that it no longer exceeds

that threshold, as described in Sec. 600.310(e)(3)(i) and (e)(4)(i). If

a stock or stock complex is overfished, fishing mortality must be

controlled such that the stock rebuilds to the MSY level within a time

period satisfying the statutory requirements, as described in

Sec. 600.310(e)(3)(ii) and (e)(4)(ii).

Comment 41. In discussing fisheries that have large state

components, one commenter said that states will have to cooperate to

achieve the SFA's rebuilding objectives. He recommended that the

possibility of preempting a state's authority over a fishery in its

waters be specified in the guidelines.

Response. The criteria and procedures for Federal preemption of

state authority are set out in section 306(b) of the Magnuson-Stevens

Act. In addition, NMFS would also comply with applicable requirements

of Pub. L. 104-4, the Unfunded Mandates Reform Act of 1995, and E.O.

12612, Federalism. NMFS sees no reason to reiterate these requirements

in the guidelines, but agrees that consultation and state cooperation

will be essential in meeting rebuilding schedules for some fisheries.

Comment 42. One commenter stated that the guidelines should clearly

point out that the SFA imposes the obligation to establish a strong

domestic plan to rebuild stocks, within 10 years if biologically

possible, and that obligation applies to international as well as

domestic fisheries.

Response. NMFS agrees that the obligation to establish a strong

domestic plan to rebuild stocks, within 10 years if biologically

possible, is a requirement of the SFA, regardless of the species

involved. The guidelines, as proposed, reflect this view. There is no

exception provided in the guidelines for any species or fishery beyond

that provided in the SFA (section 304(e)(4)(C)). NMFS notes that the

SFA requires that any rebuilding program for fisheries managed under an

international agreement must reflect traditional participation in the

fishery, relative to other nations, by fishermen of the United States.

NMFS does not agree that additional clarifying language is necessary in

the guidelines.

Comment 43. With respect to highly migratory species such as tunas

and billfish, one commenter believed expressions of yield and

overfishing are meaningless on local scales. The commenter questioned

what is required of the Councils and what the limits of authority are

regarding ending overfishing and rebuilding overfished stocks in areas

where the majority of the exclusive economic zone (EEZ) stock/fishery

occurs in state waters (e.g., onaga) or in international waters (e.g.,

armorhead) where no agreements exist.

Response. The Councils have the responsibility under SFA to do all

they can to eliminate overfishing and to rebuild overfished stocks. The

Councils are limited in their authority and their ability to correct

overfishing in many cases. However, this limitation should not prevent

the Councils from doing everything within their authority and

capabilities to address overfishing. (See also the response to comment

33 under national standard 1.)

Comment 44. One commenter was concerned regarding NMFS' proposed

requirement to implement regulations to end (or prevent) overfishing

and to rebuild (or sustain) affected fish stocks that are considered to

be overfished or approaching an overfished condition. The commenter

objected to this provision's application to migratory fish stocks with

international harvesters, especially when the majority of the harvest

is taken by foreign fleets.

Response: The SFA provisions concerning overfishing and rebuilding

migratory fish stocks are not restricted to those situations where the

U.S. harvest is a majority of the total fishing mortality. The SFA

does, however, recognize the international aspects of migratory

species, and provides that the period for rebuilding may exceed 10

years if management measures under an international agreement so

dictate. And, as noted in the response to comment 33 under national

standard 1, the rebuilding program for fisheries managed under an

international agreement must reflect traditional participation in the

fishery, relative to other nations, by fishermen of the United States.

The guidelines reflect these provisions of the SFA.

Comment 45. One commenter said the proposed rule states that all

fishing mortality must be counted against OY, including that resulting

from bycatch, research fishing, and any other fishing activities,

although the Magnuson-Stevens Act (section 3(15)) defines fishing in a

way that does not include scientific research activity that is

conducted by a scientific research vessel.

Response. The proposed guidelines have been revised to reflect the

fact that the term ``fishing'' does not include any scientific research

activity that is conducted by a scientific research vessel. In

Sec. 600.310(f)(4)(iii), the words ``research fishing'' have been

changed to ``scientific research.'' However, the fishing mortality that

occurs during scientific research requires estimation and inclusion in

the accounting of all harvesting mortality to which stocks are

subjected.

Comment 46. One commenter stated that overfishing criteria do not

provide any explicit treatment for hatchery stocks. The commenter

assumed that hatchery stocks cannot be aggregated with wild stocks for

the purposes of establishing overfishing criteria.

Response. NMFS agrees with the commenter's assumption that hatchery

stocks cannot be aggregated with wild stocks for purposes of

establishing overfishing criteria.

National Standard 2

Comment 1. One commenter suggested that NMFS should encourage the

policy that fisheries management must be based on scientific facts.

Response. NMFS agrees, and recognizes that additional factors, such

as social and economic impacts, must be taken into consideration in

formulating management measures.

Comment 2. One commenter stated that the guidelines for national 2

should expressly address data on bycatch and safety.

Response. NMFS agrees and has amended Sec. 600.315(e)(1)(ii) to

include safety. That section already includes a reference to bycatch.

Comment 3. One commenter stated that data reporting requirements in

national standard 2 are too burdensome and will inhibit fisheries

management.

Response. Section 301(a)(2) of the Magnuson-Stevens Act requires

that conservation and management measures be based on the best

scientific information available. The minimum information sets required

in FMPs are described in section 303(a) and (b) of the Magnuson-Stevens

Act. The guidance provided in Sec. 600.315 summarizes those statutorily

required minimum requirements. Moreover, the Paperwork Reduction Act

requires NMFS to minimize the burden of its information collection by

ensuring the information will have practical utility.

Comment 4. Two commenters suggested there should be more explicit

guidance under national standard 2 regarding the data requirements

related to fishing communities.

Response. NMFS agrees. The language in Sec. 600.315(e)(1)

introductory text has been revised to clarify that Stock Assessment and

Fishery Evaluation (SAFE) reports are intended to summarize the most

recent information

[[Page 24223]]

concerning a variety of aspects of the fishery, including fishing

communities.

National Standard 4

Comment 1. One commenter suggested that the guidelines for national

standard 4 should be modified by adding: ``In all [FMPs] prepared by

any Council in a limited access fishery, all permits must be treated

equally and fairly.''

Response. No change was made. The criteria that a Council must use

in developing a limited access program are listed in the Magnuson-

Stevens Act (section 303(b)(6)). National standard 4 requires that all

allocations, including limited access permits, be handled fairly and

equitably.

Comment 2. One commenter suggested that national standard 4 should

contain a strict prohibition that prevents any one state (such as

Alaska) from being granted (by any Council) monopoly control of

fisheries management in Federal waters where fishermen from several

states harvest under an approved FMP.

Response. The Magnuson-Stevens Act provides that a state may

regulate a fishing vessel outside the boundaries of that state (section

306(a)(3)). However, management measures developed by a state pursuant

to this authority may not discriminate between residents of different

states. Mechanisms exist for ensuring that such authority does not

result in unfair treatment. For example, two North Pacific Fishery

Management Council FMPs that defer the majority of management authority

to the State of Alaska (the crab and salmon FMPs) have mechanisms that

provide for individuals to challenge the State's management actions.

Comment 3. One commenter stated that fishing sectors such as

subsistence fishing and aboriginal people indigenous to the region

should be added to the commercial, recreational, and charter fishing

sections identified.

Response. No change was made. The Magnuson-Stevens Act already

requires that all fishermen should be treated fairly and equitably.

National Standard 5

Comment 1. Several commenters stated that the guidelines do not

adequately reflect the revision from ``promoting economic efficiency''

to ``considering economic efficiency'' in national standard 5,

particularly in the use of the term ``encouraging'' relative to

efficient utilization.

Response. NMFS agrees that the word ``encouraging'' should be

replaced with ``considering,'' to make this standard consistent with

the intent of Congress; Sec. 600.330(b)(1) has been revised

accordingly. The reference to limited access systems is only an example

of a program that may contribute to efficiency. No statements or

references are made that limited access is a preferred alternative to

increase efficiency.

Comment 2. One commenter stated that the use of the phrase ``least

cost to society'' in the national standard 5 guideline is

inappropriate, because achieving long-term benefits may require costs

that are greater than the least available.

Response. The use of this phrase is similar to its use in the

national standard 7 guideline, which refers to minimizing costs. The

phrase does not mandate that the alternative with the lowest cost be

selected. Rather, it is meant to provide guidance that efficient

utilization of resources is a way to achieve benefits for the Nation,

while limiting the costs to society. Analysis of alternative management

measures, including those that would offer greater efficiency, are

expected to estimate the relative benefits and costs of those measures.

National Standard 7

Comment 1. One commenter suggested that the Councils should be

required to prepare an FMP for any fishery that has recreational and/or

commercial catch.

Response. The Magnuson-Stevens Act did not impose such a

requirement. The national standard guidelines do not excuse the

Councils from developing FMPs that are necessary or appropriate. The

guidelines prior to the SFA stated that an FMP should be prepared only

for fisheries in need of management. NMFS believes no change is

necessary, because requiring an FMP for every fishery could redirect

critical funds needed for resource surveys, data collection, data or

impact analyses, or other essential activities, but result in little or

no incremental benefit to the Nation.

National Standard 8

Comment 1. One commenter stated that the definition of ``fishing

communities'' needs to be amended to include all components of the

recreational industry.

Response. No change was made. The definition of ``fishing

community'' in the guidelines already includes recreational fishing or

directly related fisheries-dependent services and industries.

Comment 2. One commenter stated that ``sustained participation''

referred to in this standard does not guarantee any specific rights,

practices, or access to a specific fishery. Two other commenters stated

that the intent of Congress in reference to ``sustained participation''

was not to cause fishermen to change gear or species, particularly

since some communities are dependent on specific gears and/or

fisheries.

Response. No change was made. ``Sustained participation'' means

continued access to the fishery within the constraints of the condition

of the resource. This standard requires that the importance of fishery

resources to a community be taken into account in conservation and

management measures; however, the long-term conservation and/or

rebuilding of stocks may require limits on particular gears and the

harvest of specific stocks.

Comment 3. One commenter stated that proposed Sec. 600.345(b)(2)

captures the intent of Congress that this standard does not allocate

resources to particular communities, while Sec. 600.345(c)(3) has

implicitly allocative language in its focus on ``levels of dependence

on and engagement in'' the fishery.

Response. No change was made. The language in Sec. 600.345(c)(3)

reflects the meaning of the Magnuson-Stevens Act, which refers to

communities being ``substantially engaged'' and ``substantially

dependent.'' The levels of dependence on and engagement in a fishery

need to be ascertained in order to identify communities, whether

located in rural or metropolitan areas, that may be potentially

affected. Further, dependence, engagement, and sustained participation

are not measured solely in terms of the percent of fishing activity in

relation to the entire economic base of the community; there are other

social, cultural, and economic assessments specifically focused on the

harvesting, processing, and fishery-support industries.

Comment 4. One commenter stated that, in Sec. 600.345(b) and (c),

the definitions and explanations are so broad as to render them useless

in identification of fishing communities.

Response. NMFS disagrees. The guidance reflects the language and

intent of Congress to be inclusive of fishing communities. The

definitions and explanations in Sec. 600.345(b) and (c) are acceptable

operational definitions for use by social scientists and economists in

undertaking data gathering and analysis.

Comment 5. One commenter stated that, in Sec. 600.345, all

components of the recreational fishing industry in fishing communities

should be described and analyzed in the same manner and depth as

commercial fishery components.

[[Page 24224]]

Response. NMFS agrees. The guidance in the national standard

guidelines covers all sectors.

National Standard 9

Comment 1. Several commenters stated that the guidelines as written

diverged significantly from the statute and Congressional intent and

require a substantial rewriting. One commenter was concerned that the

Councils would not have to take action to amend their FMPs to minimize

bycatch and would still be found to be in compliance with national

standard 9.

Response. NMFS disagrees. The Councils and NMFS must review all

existing FMPs and all future FMPs and FMP amendments for compliance

with national standard 9. Existing FMPs will be amended, if necessary,

to ensure compliance with this standard. The Councils are required to

re-examine the conservation and management measures contained in their

FMPs for ways to reduce bycatch below current levels. In addition, the

Councils must revisit the measures periodically to ensure that bycatch

is reduced as much as practicable. No change in the guidelines is

necessary.

Comment 2. Several commenters stated that the SFA sent a very clear

message that bycatch is a serious problem and that the Councils are

required not to study the problem, as suggested in the proposed

guidelines, but to amend FMPs to include measures to ``minimize bycatch

and to minimize the mortality of such bycatch that cannot be avoided.''

Response. NMFS agrees that bycatch is a problem in many of the

Nation's fisheries. The amendments to the Magnuson-Stevens Act require

that conservation and management measures minimize bycatch to the

extent practicable and, to the extent bycatch cannot be avoided,

minimize the mortality of such bycatch. The requirement is clearly not

discretionary. NMFS disagrees that the guidelines only require the

Councils to study the bycatch problem; the Councils must take action to

minimize bycatch and bycatch mortality to the extent practicable. No

change in the guideline is necessary (also see the response to comment

1 under national standard 9).

Comment 3. Several commenters observed that national standard 9

recognizes bycatch as an integral component of the total fishery, with

biological if not economic value. The commenter stated that this

national standard encourages the redeployment, or perhaps the

elimination, of destructive, non-selective gears.

Response: NMFS agrees. The Councils have a range of options

available to them to satisfy the requirements of national standard 9;

the commenter mentioned only two of the options available. However, the

legislative history of the SFA includes a floor statement by

Congressman Young that ``it is not the intent of Congress that the

[Councils] ban a type of fishing gear or a type of fishing in order to

comply with this standard.''

Comment 4. One commenter observed that national standard 9 applies

not only to commercially valuable species, but also to all finfish,

shellfish, and invertebrate species with no commercial value.

Response. NMFS agrees. The definition of ``fish'' in the Magnuson-

Stevens Act includes finfish, shellfish, and invertebrate species, and

all other forms of marine animal and plant life except marine mammals

and birds; by extension, bycatch applies to these forms of marine life.

Comment 5. One commenter stated that the guidelines are not clear

on exactly what is required for compliance with this national standard

and what the consequences would be of not meeting that requirement. The

commenter also suggested that such requirements would likely not be

followed because they are too time/staff/data intensive. Another

commenter stated that the guidelines suggest that measures to minimize

bycatch need not be implemented if they are determined to be

``inconvenient'' with respect to, for example, ``changes in fishing,

processing, disposal, or marketing costs,'' or ``changes in fishing

practices and the behavior of fishermen.''

Response. The Secretary is required to ensure that all FMPs are in

compliance with the national standards. FMPs or FMP amendments that are

not in compliance will not be approved. Inconvenience is not an excuse;

bycatch must be avoided as much as practicable, and bycatch mortality

must be reduced until further reductions are not practicable. Adherence

to the national standards is not discretionary.

Comment 6. One commenter suggested that, in the definition of

bycatch in Sec. 600.350(c), NMFS strike the parenthetical in the

definition of bycatch and the phrase, ``or that enter commerce through

sale, barter, or trade.''

Response. The language in Sec. 600.350(c) is consistent with the

Magnuson-Stevens Act; commercial fishing, as defined in section 3(4),

``means fishing in which the fish harvested, either in whole or in

part, are intended to enter commerce or enter commerce through sale,

barter or trade.'' While the term ``sale'' is inclusive of barter and

trade, the phrase has been kept in the guidelines to ensure that there

is no ambiguity as to what is considered bycatch. NMFS believes the

parenthetical in the definition of ``bycatch'' provides useful

clarification of ``harvested in a fishery.'' No change was made.

Comment 7. Several commenters recommended removing the definition

of discard in proposed Sec. 600.350(c)(2) because they believed the

term was included by NMFS without support in the Magnuson-Stevens Act

or its legislative history. They stated that the definition is in

conflict with the law and allows the continuation of fishing methods

and practices that involve great amounts of bycatch, like roe stripping

and shark finning.

Response. The definition in Sec. 600.350(c)(2) has been removed;

however, NMFS has retained the interpretation that ``bycatch'' includes

the discard of whole fish--not the discard of unwanted parts. Nothing

in the definitions of ``bycatch'' or ``economic discards'' suggests

that the discard of unwanted parts of fish is addressed accordingly

(see the response to comment 12 under national standard 9 for a

discussion of practices such as shark finning).

Comment 8. One commenter requested that NMFS add to the last

sentence in the definition of bycatch in Sec. 600.350(c) the words ``or

Atlantic highly migratory species harvested in a commercial fishery

that are not regulatory discards and that are tagged and released alive

under a scientific tag and release program established by the

Secretary.''

Response. NMFS agrees and has added the suggested language to

Sec. 600.350(c).

Comment 9. A commenter asked whether any fish caught and sold would

be considered bycatch.

Response. According to the definition of bycatch in the Magnuson-

Stevens Act, the sale of any fish removes it from being considered

bycatch.

Comment 10. A commenter stated that fish that are ground up and

thrown overboard are not counted as discards.

Response. NMFS disagrees. Whole fish that are ground up and thrown

overboard would be considered bycatch.

Comment 11. One commenter suggested that, in Sec. 600.350(b), the

second sentence be replaced with: ``Bycatch can, in four ways, impede

efforts to protect marine ecosystems, achieve sustainable fisheries and

the full benefits that they provide to the Nation.'' The suggestion was

also made

[[Page 24225]]

that the following sentence be added to Sec. 600.350(b): ``First,

removing unknown amounts of commercial or non-commercial biomass as

bycatch affects marine ecosystems in ways that are poorly understood at

best.''

Response. The first suggestion was adopted, because sustainable

fisheries are predicated on healthy marine ecosystems. In addition,

Sec. 600.350(b) was revised to combine the concepts of increased

uncertainty concerning total fishing related mortality and the impact

of bycatch on other uses of fishery resources.

Comment 12. One commenter stated that portions of fish not used or

retained (e.g., finned sharks) are incidental catch (and are therefore

bycatch). Other commenters stated that sharks could be harvested for

fins and discarded without being counted as discards.

Response. The Magnuson-Stevens Act does not define incidental

catch; however, it defines ``bycatch'' as fish that are harvested in a

fishery, but that are not sold or kept for personal use. The Magnuson-

Stevens Act does not specify that the entire animal or plant must be

sold or kept for personal use. This does not mean, however, that

wasteful practices should not be of concern, nor that they may not be

restricted by the Councils on some other basis. The issue of how much

of a fish should be retained is a utilization issue, which is distinct

from the bycatch issue.

Comment 13. One commenter stated that damaged and/or mutilated

(e.g., shark-bitten) target species that are discarded are bycatch.

Response. NMFS agrees. Such fish are considered bycatch if they are

not sold or kept for personal use.

Comment 14. Economic discards of target species, such as tunas

during times of market surplus, including dumping of fish on land, are

bycatch.

Response. NMFS agrees. Such discards are considered bycatch.

Comment 15. One commenter observed that the Magnuson-Stevens Act's

definition of bycatch does not mention unobserved fishing mortality and

recommended that the parenthetical inclusion of unobserved fishing

mortality in the definition of bycatch in Sec. 600.350(c) of the

regulations should be removed.

Response. NMFS disagrees. The statute does not limit Council

actions only to observed bycatch. Unobserved fishing-related mortality

is implicitly included in the definition because it constitutes a

harvest of fish that are not sold or kept for personal use. NMFS notes,

however, that there is little information available on unobserved

fishing-related mortality and believes that primary emphasis should

initially be placed on minimizing observed sources of fishing-related

mortality.

Comment 16. One commenter noted that unobserved fishing-related

mortality should be given prominence in the proposed guidelines.

Response. NMFS disagrees. Given the many sources of bycatch

mortality, NMFS believes that unobserved fishing-related mortality is

sufficiently prominent in the guidelines as proposed.

Comment 17. One commenter asked how NMFS will ever assign a

poundage to unobserved mortality and what scientific basis will be used

to determine unobserved mortality.

Response. NMFS recognizes that determining unobserved fishing

mortality will be extremely difficult. However, all significant sources

of fishing-related mortality need to be considered when developing

conservation and management measures. While there are some existing

technologies that could be used to estimate unobserved fishing

mortality (e.g., video-based systems), new methods will need to be

developed. This will involve an experimental process, including

rigorous peer reviews of the results.

Comment 18. One commenter noted that the amount of discards by the

recreational fishery has a significant impact on fish stocks.

Response. NMFS agrees. Discards by recreational anglers are

considered to be bycatch unless they are specifically exempted in the

Magnuson-Stevens Act. All mortality associated with recreationally

caught fish must be considered in the determination of OY and MSY; this

is addressed in the guidelines for national standard 1.

Comment 19. One commenter observed that fish released alive in

recreational catch-and-release and tagging programs do die and should

be counted as bycatch and against OY.

Response. NMFS agrees that all bycatch mortality and mortality

attributable to exempted tagging and release programs should be

considered in determination of OY. As noted in the response to comment

25 under national standard 9, the Magnuson-Stevens Act exempts only

Atlantic highly migratory species harvested in a tag-and-release

program established by the Secretary. This is further addressed in the

guidelines to national standard 1.

Comment 20. One commenter stated that the SFA specifically excludes

recreational catches from the requirements for bycatch reduction and

avoidance. The commenter felt that a specific reference to the value of

catch-and-release fisheries under the guidelines to national standard 9

would be useful.

Response. NMFS disagrees. Fish caught and released alive under an

approved catch-and-release fishery management program are exempt from

being considered bycatch under section 3(2) of the Magnuson-Stevens Act

(see also the response to comment 21 under national standard 9).

Management regulations (e.g., minimum size limits and bag limits) that

result in the release of fish by recreational anglers are not

considered catch-and-release programs and, therefore, such catches are

considered to be bycatch, even though the fish are released alive.

Increased efforts to release recreationally caught fish in healthy

condition may partially satisfy the requirement in national standard 9

that mortality of bycatch that cannot be avoided be minimized to the

extent practicable.

Comment 21. One commenter asked what is meant by the exclusion of

``fish released alive under a recreational catch-and-release fishery''

under the bycatch definition.

Response. A definition of the term ``catch-and-release fishery

management program'' has been added to Section 600.350(c) as follows: a

catch-and-release fishery management program is one in which the

retention of a particular species is prohibited. In such a program,

those fish released alive would not be considered bycatch.

Comment 22. One commenter stated that highly migratory species in a

commercial fishery managed by the Secretary that are tagged and

released alive in the Atlantic are not considered bycatch. The same

commenter asked whether the provision also extended to Pacific highly

migratory species managed by the Western Pacific Council, and if not,

why not?

Response. NMFS agrees that the Magnuson-Stevens Act specifically

exempted fish caught in highly migratory species tag-and-release

programs in the Atlantic from being considered bycatch. This exemption

was not extended in the SFA to Pacific highly migratory programs.

Therefore, fish tagged and released in highly migratory species tag-

and-release programs in the Pacific are considered bycatch.

Comment 23. One commenter stated that definitions of bycatch as

``catch which is not retained or utilized'' and incidental catch as

``catch which is retained in whole or part but not necessarily

targeted,'' as adopted by the Western Pacific Fishery Management

Council, are not consistent with the Magnuson-Stevens Act or with the

[[Page 24226]]

proposed national standard 9 guidelines.

Response. The Western Pacific Council's definition of ``bycatch,''

though not identical, is not inconsistent with the new definition in

the Magnuson-Stevens Act. The definition of ``incidental catch'' is not

inconsistent with anything in the Act or the guidelines.

Comment 24. Several commenters disagreed with the following

statement in the preamble to the proposed guideline: ``Bycatch can be

decreased either by decreasing the catch of fish that would be

discarded or by retaining fish that would otherwise be discarded.''

They also stated that avoidance should take precedence over retention

and that retention of bycatch fails both tiers of national standard 9

in that it neither avoids nor minimizes it.

Response. NMFS agrees that priority must first be given to avoiding

bycatch to the extent possible. To the extent that it is not possible,

priority must then be given to minimizing bycatch mortality. Any

proposed conservation and management measure that does not give first

priority to avoiding the capture of bycatch species must be supported

by appropriate analyses, including determination of the net benefits to

the Nation. Section 600.350(d) introductory text has been revised

accordingly. Sections 313(i) and 405(d)(3) of the Magnuson-Stevens Act

suggest that retention and utilization are viable solutions to some

bycatch problems.

Comment 25. Several commenters stated that the proposed rule would

make national standard 9 a discretionary option for the Councils by

using the word ``should'' at the end of Sec. 600.350(d). The commenters

believed the proposed guidelines fail to require any Council to select

and implement measures to minimize bycatch.

Response. The requirements of the Magnuson-Stevens Act are not

discretionary. The Councils must consider the requirements in

Sec. 600.350(d) when evaluating conservation and management measures

relative to the national standards. To ensure that this point is made,

the word ``should'' in Sec. 600.350(d) introductory text has been

changed to ``must'' to emphasize the mandatory nature of Council

actions under this national standard.

Comment 26. One commenter stated that the proposed language for

national standard 9 neglected to include ``to the extent practicable''

when discussing reduction of mortality of bycatch that cannot be

avoided. The commenter stated that Congress explicitly recognized that

the costs of reducing bycatch at some level outweigh the benefits, and

that the Magnuson-Stevens Act does not demand that bycatch be decreased

to the point of technical feasibility, just to the point that it still

makes sense to reduce it.

Response. NMFS agrees; the guidelines already contain the language

suggested. For the purposes of this national standard, the term

``practicable'' is not synonymous with the term ``possible,'' because

not all reductions that are possible are practicable. NMFS recognizes

that in some fisheries it may not be practicable to eliminate all

bycatch and bycatch mortality.

Comment 27. One commenter stated that, as stocks approach

overfished conditions or are below their optimum levels, harvests

(including bycatch) should be limited to well below the threshold at

which there is a risk of precipitating or contributing to a decline.

Response. NMFS agrees. Bycatch mortality is a component of total

fishing mortality and must be incorporated into stock assessments. To

the extent that stock assessments include information on the types and

magnitude of bycatch, total allowable catch determinations will reflect

that information.

Comment 28. Several commenters stated that the guidelines ought to

point out specifically that economics cannot justify bycatch that has a

negative impact on the health of any stock in a multispecies fishery.

Response. NMFS agrees. The primary responsibility of the Councils

is to develop conservation and management measures that, to the extent

practicable, minimize the capture of bycatch species and that, to the

extent bycatch cannot be avoided, minimize the mortality of such

bycatch. The economic consequences of dealing with bycatch is one of

the factors that determines the extent to which it is practicable to

reduce bycatch or bycatch mortality in a particular fishery. The

determination must be based on the net benefits to the Nation resulting

from particular management measures. Language has been added to

Sec. 600.350(d) introductory text to indicate that the net benefits to

the Nation include, but are not limited to, negative impacts on

affected stocks; incomes accruing to participants in directed fisheries

in both the short and long term; incomes accruing to participants in

fisheries that target the bycatch species; environmental consequences;

non-use values of bycatch species, which include non-consumptive uses

of bycatch species and existence values, as well as recreational

values; and impacts on other marine organisms.

Comment 29. One commenter believed that, by allowing the Councils

to prioritize their actions to address bycatch, NMFS would effectively

(and unfairly) penalize those fisheries that have voluntarily collected

and submitted bycatch data. The commenter felt that bycatch reduction

should be done in a coordinated fashion, involving all harvesters.

Response. NMFS disagrees with the first part of the comment. The

collection of such data was voluntarily initiated by the fishing

industry because it was recognized that bycatch is a problem that must

be dealt with; the fishing industry is to be commended for taking

initiative in dealing with bycatch. The guidelines specifically list

activities that the Councils must undertake to satisfy the requirements

of this national standard. No fishery is exempt from the requirements.

However, for practical reasons, the Councils will have to determine

their priorities for development of management actions and the basis

for setting those priorities.

Comment 30. One commenter stated that non-selective, destructive

gear--specifically longlines, gillnets, and trawls--ought to be

specifically mentioned in the section on bycatch as gear to which

special attention ought to be paid in the development of any fishery

management measures.

Response. NMFS disagrees. The Councils will need to prioritize

their actions, not only with respect to various fisheries, but also to

various gears. The Councils will need to determine, during the

development of fishery management measures, which gears to allow and

which ones need special attention. No change in the guidelines is

necessary.

Comment 31. Several commenters suggested that SAFE reports are

important tools in minimizing bycatch and that a requirement be added

that information on the amount and type of bycatch be summarized in the

SAFE report.

Response. NMFS agrees and has added appropriate language to

Sec. 600.350(d)(2). NMFS notes that Sec. 600.315(e)(1)(ii) of the

guidelines for national standard 2 already contains this requirement.

Comment 32. Several commenters stated that the list of factors in

Sec. 600.350(b)(3) is comprehensive and invites the Councils to use

those factors as loopholes to avoid taking action. Commenters

questioned why such a comprehensive list is needed for this standard

and none of the others.

Response. NMFS disagrees. The lack of complete and perfect

information is

[[Page 24227]]

not an excuse for not taking action. Uncertainty concerning the

desirable and undesirable effects of minimizing bycatch and bycatch

mortality should be dealt with similarly. (See also the response to

comment 35 under national standard 9).

Comment 33. One commenter stated that there are no criteria or

methods for establishing criteria for determining how much bycatch is

too much.

Response. NMFS disagrees. Section 600.350(d)(3) provides a list of

criteria for evaluating the impacts of bycatch. Each Council must

determine how much bycatch is too much by balancing the various factors

that will maximize the net benefits to the Nation (see also the

response to comment 24 under national standard 9). Language that

includes the maximization of net benefits to the Nation has been added

to Sec. 600.350(d)(3). The legislative history of the SFA includes the

following floor statement by Congressman Young: ``'Practicable'

requires an analysis of the cost of imposing a management action; the

Congress does not intend to ...impose costs on fishermen and processors

that cannot be reasonably met.''

Comment 34. Several commenters stated that Councils should

prioritize their actions to address those fisheries that have not only

the greatest bycatch rate, but also the greatest amount of bycatch.

Response. NMFS agrees that the Councils will need to prioritize

their actions to address those fisheries where actions to reduce

bycatch can have the greatest impact. Each Council will have to

determine the basis for setting its priorities.

Comment 35. One commenter stated that the final rule must clearly

reflect that Councils are not constrained from acting when faced with

uncertainty surrounding one or several items included in

Sec. 600.350(d)(3).

Response. NMFS agrees. The Councils must take action to ensure the

sustainability of the Nation's marine fishery resources. National

standard 2 specifically requires that conservation and management

measures be based on the best scientific information available. Where

there is uncertainty surrounding any of the items in

Sec. 600.350(d)(3), Councils should adhere to the precautionary

approach stated in the Food and Agriculture Organization of the United

Nations (FAO) Code of Conduct for Responsible Fisheries (Article 6.5).

The Code specifically states, ``The absence of adequate scientific

information should not be used as a reason for postponing or failing to

take measures to conserve target species, associated or dependent

species and non-target species and their environment.'' Language to

that effect has been added to Sec. 600.350(d)(3).

Comment 36. Several commenters noted that requirements to implement

monitoring programs in FMPs may prevent approval. Such requirements

could be an administrative burden for the Councils and be very costly

to implement.

Response. NMFS disagrees. Section 303(a)(11) of the Magnuson-

Stevens Act specifically requires the Councils to establish, for each

fishery, a ``standardized reporting methodology to assess the amount

and type of bycatch occurring in the fishery.'' The statute makes no

allowance for the financial or administrative burden of establishing

such reporting programs. It is clear that, in order to be able to

assess the amount and type of bycatch occurring in various fisheries,

monitoring programs must be established.

Comment 37. One commenter stated that data collection from all

fishermen must be made a high priority.

Response. NMFS agrees and notes that the uncertainty surrounding

estimates of the types and amounts of bycatch cannot be reduced without

the cooperation and involvement of all components of the fisheries.

National Standard 10

Nine commenters commented specifically on national standard 10. All

were positive and most substantive comments were directed at making the

standard more restrictive. Several commenters gave unqualified support

to the standard. One commenter urged that NMFS work aggressively with

the Councils ``to ensure that safety is constantly considered in

fishery management.''

Comment 1: One commenter noted that no criteria were provided for

the phrase ``to the extent practicable'' in national standard 10, as

were provided for national standard 9.

Response: NMFS disagrees. Section 600.355(b)(2) directly addresses

these concerns.

Comment 2: One commenter noted ``while it is stated clearly in the

opening paragraph of the regulatory text (Sec. 600.355(b)(1)) that this

standard [is] not meant to 'give preference to one method of managing a

fishery over another,' the suggested mitigation management measures are

replete with inappropriate implicit endorsement of ITQs (individual

transferrable quotas) that directly undermine that provision.'' These

references include ``limiting the number of participants in the

fishery,'' ``spreading effort over time and area,'' and ``implementing

management measures that reduce the race for fish.''

Response: The mitigation measures do not necessarily endorse ITQs.

While ITQs may be one way to solve some problems with safety of life at

sea and reduce the ``race for fish,'' they are not the only way.

Vessel/license limitation systems have been and are being adopted

without ITQs, such as in the Alaska crab and groundfish fisheries. In

New England, the use of ``days at sea'' has spread effort over time and

area without creating a ``race for fish.'' The term ``race for fish''

was used in the discussion of the bill that became the SFA, to describe

the intensive fisheries that have developed at the expense of safety.

As a primary reason for the establishment of this national standard,

NMFS believes the term captures the intent of Congress and the

legislation.

Comment 3: One commenter recommended that the national standard 10

guidelines require that Councils establish mandatory, standardized,

accurate, and complete injury reporting requirements.

Response: NMFS agrees in part. Domestic fishing vessels are already

required to report this information to the U.S. Coast Guard (USCG)

under provisions at 46 CFR parts 4 and 28. This information can be made

available through the USCG, and reports compared against vessels

participating in the fisheries. Guidance on contents of SAFE reports at

Sec. 600.315(e)(1)(ii) has been revised to include consideration of

safety issues.

Comment 4: One commenter recommended that the statement ``This

standard is not meant to give preference to one method of managing a

fishery over another,'' should be deleted or replaced by, ``While this

standard is not meant to give preference to one method of managing a

fishery over another, it should be considered a significant factor in

allocation and other management decisions and the Council should

provide rational justification why the safest method is not being

used.'' Common sense would dictate that the safer management regime be

used.

Response: NMFS disagrees and believes the guidance, as proposed, is

accurate.

Comment 5: One commenter recommended that the term ``safety of

human life at sea'' should be modified to read ``safety of human life

and limb at sea'' to emphasis reduction in injuries as well as loss of

life.

Response: NMFS considers the term ``safety of human life at sea''

to include not only safety of life, but safety of limb and the general

operating environment, as well, to the extent that fishery

[[Page 24228]]

management measures may affect that safety. The discussion of the term

at Sec. 600.355(b)(3) has been revised to reflect this point.

Comment 6: One commenter recommended that this standard require

that an FMP specify qualifications for individuals who are responsible

for maintaining and controlling the stability of a fishing or fish

processing vessel.

Response: Such a requirement is outside the scope of this

rulemaking. Other than requiring employment and income information,

neither NMFS nor the Councils have specified individual qualifications

for fishermen. Individual professional qualifications for the master

and crew come under the authority of the USCG, as specified by the

Commercial Fishing Industry Vessel Safety Act. NMFS does have the

authority to require permits of fishing vessel operators under the

Magnuson-Stevens Act, section 303(b)(1)(B).

Comment 7: One commenter recommended that this standard consider

more than the stability of the vessel and include safety of machinery

and processing equipment, as well. FMPs should require processing

vessels to meet and maintain safety standards developed in consultation

with the Department of Labor's Occupational Safety and Health

Administration (OSHA) as a condition of participation in the fishery.

Response: Onboard safety concerns, to the extent they are caused by

fishery management measures, are addressed by the guidelines at

Sec. 600.355(c)(2). As noted in the comment, the USCG and OSHA have the

primary responsibility for machinery and processing safety on board

fishing vessels. Vessels are already required to comply with those

standards; additional FMP requirements would therefore be redundant.

Comment 8: One commenter stated that Sec. 600.355(c)(3) does not

direct the creation of a mechanism for fisheries to be closed due to

adverse weather conditions.

Response: While a mechanism to close, delay the opening of, or

otherwise halt the fishery during adverse weather can improve safety,

NMFS does not consider such a mechanism mandatory. Rather, it is one

mitigation measure available to the Council, as noted in

Sec. 600.355(e)(1).

Comment 9: One commenter recommended that OSHA, the National

Institute of Occupational Safety and Health, and the National

Transportation Safety Board be consulted for vessel safety, in addition

to the USCG.

Response: NMFS does not believe that requiring consultations with

all these agencies is necessary at this time. These agencies are

outstanding sources of information on specific issues, and consultation

with one or more of them may be appropriate in certain circumstances.

However, routine consultation with these agencies is not necessary and

would become burdensome to the Councils and to the agencies involved.

NMFS encourages the Councils to use these and other groups, including

industry groups, in formulating safer management measures.

Comment 10: One commenter recommended that a risk analysis be

conducted for future amendments that include allocations between gear

types, inshore-offshore processing allocations, seasonal openings, area

openings or closures, and possibly others.

Response: NMFS does not believe that requiring a specific safety

risk analysis for all these actions is necessary at this time. While a

risk analysis may be appropriate in situations where there are a number

of alternatives whose effects on safety are not clear, in others, the

alternatives may be constrained by other national standard or legal

restrictions, or their effects are very clear and a risk analysis is

unnecessary. NMFS prefers to allow each Council to conduct a risk

analysis at its option, based on consultations with the USCG and the

fishing industry.

Classification

OMB has determined this rule to be economically significant under

E.O. 12866 because this rule provides guidance on implementing

statutory changes that may have large economic impacts on specific

sectors of the economy. Each amendment to an existing FMP and all new

FMPs will include detailed analyses of the benefits and costs of the

management programs under consideration to ensure compliance with E.O.

12866.

In addition, OMB has determined this rule to be ``major'' under the

Small Business Regulatory Enforcement and Fairness Act Congressional

Review provision (5 U.S.C. 801 et seq.). Pursuant to authority at 5

U.S.C. 808(1), this major rule conducting a regulatory program for

commercial and recreational activities related to fishing will be

effective June 1, 1998.

The main purpose of these guidelines, in carrying out the 1996

amendments to the Magnuson-Stevens Act, is to reduce overfishing

immediately, rebuild overfished stocks within a set timeframe, and

prevent by catch and reduce mortality of unavoidable bycatch to the

maximum extent possible. The effects of these guidelines can only be

described qualitatively; quantified and monetized estimates of

benefits, costs and other effects cannot be developed until specific

regulatory actions are indentified and proposed. Changes in employment,

regional economic development, and a variety of distributional concerns

are examples of the important effects not otherwise captured in

estimates of social costs and benefits.

Producers will bear costs implementing programs and regulations

developed under these guidelines to restore fisheries stocks. These

costs will take a variety of forms, such as mandatory investments in

new fishing gear to reduce bycatch; restrictions on the level of

fishing effort, which raise average costs; and other measures intended

to reduce the quantity of fish harvested. Consumers also will bear

costs, primarily in the form of lost consumers' surplus resulting from

reduced market supply and concomitant higher prices. These costs will

rise to the extent that consumer tastes continue to evolve toward

greater preference for fish and shellfish over other foods.

Once fisheries stocks have recovered, producers will gain benefits

in the form of reduced costs of production. Consumers also will benefit

to the extent that restored stocks permit increases in the allowable

harvest compatible with sustainable yield. Summed over all fisheries in

the exclusive economic zone over the long term, the potential increase

in net revenues is estimated at $2.9 billion annually. Social benefits

will equal the fraction of this amount remaining after all costs are

deducted.

In the short-run, fisheries employment will likely fall as

producers adapt to rules and restrictions undertaken to restore long-

term sustainability. These job losses will be at least partially offset

by increases in employment elsewhere. Once fisheries stocks have

recovered, however, fisheries employment could increase by up to

300,000 jobs over present employment levels. As in the case of short-

term job losses, these employment gains will be at least partially

offset by reductions in jobs elsewhere. Changes in employment do not

translate directly into benefits or costs, however, and must be

evaluated instead as a separate class of effects resulting from

individual rules and regulations promulgated pursuant to this guidance.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule will not have a

significant economic impact on a substantial

[[Page 24229]]

number of small entities. This rule adds to and updates the national

standards and accompanying explanatory and interpretive language to

implement statutory provisions of the SFA. The SFA's amendments to the

national standards make it necessary for the Councils to examine their

existing FMPs and all future proposed management measures to ensure

that they comply with the national standards; FMPs found out of

compliance will need to be amended. These guidelines are intended to

provide direction and elaboration on compliance with the national

standards and, in themselves, do not have the force of law. Should

Councils propose regulations as a result of the SFA, those actions may

affect small entities and could be subject to the requirement to

prepare a Regulatory Flexibility Analysis at the time they are

proposed. Any future effects on small entities that may ultimately

result from amendments to FMPs to bring them into compliance with the

Magnuson-Stevens Act would be speculative at this time. One comment was

received regarding this determination; the commenter believed that the

impacts of these guidelines would have a significant economic impact on

a substantial number of small entities. However, as explained in the

response to general comment 8 above, NMFS believes that, while

significant impacts could result from future management actions, the

guidelines themselves have no such effect. Furthermore, NMFS has no

basis upon which to assess, at this time, the impacts of regulations

that may result from these revisions to the guidelines, except in the

broadest sense. As a result, a Regulatory Flexibility Analysis for this

rule was not prepared.

List of Subjects in 50 CFR Part 600

Administrative practice and procedure, Confidential business

information, Fisheries, Fishing, Fishing vessels, Foreign relations,

Intergovernmental relations, National Oceanic and Atmospheric

Administration, Penalties, Reporting and recordkeeping requirements,

Statistics.

Rolland A. Schmitten

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 600 is amended

as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

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

follows:

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

2. The part heading is revised to read as set forth above.

3. In Sec. 600.305, paragraph (c)(13) is removed and the second and

third sentences of paragraph (a)(2), the last sentence of paragraph

(a)(3), and paragraphs (c)(1), (c)(3), (c)(11), and (c)(12) are revised

to read as follows:

Sec. 600.305 General.

(a) * * *

(2) * * * The Secretary will determine whether the proposed

management objectives and measures are consistent with the national

standards, other provisions of the Magnuson-Stevens Act, and other

applicable law. The Secretary has an obligation under section 301(b) of

the Magnuson-Stevens Act to inform the Councils of the Secretary's

interpretation of the national standards so that they will have an

understanding of the basis on which FMPs will be reviewed.

(3) * * * FMPs that are in substantial compliance with the

guidelines, the Magnuson-Stevens Act, and other applicable law must be

approved.

* * * * *

(c) * * *

(1) Must is used, instead of ``shall'', to denote an obligation to

act; it is used primarily when referring to requirements of the

Magnuson-Stevens Act, the logical extension thereof, or of other

applicable law.

* * * * *

(3) Should is used to indicate that an action or consideration is

strongly recommended to fulfill the Secretary's interpretation of the

Magnuson-Stevens Act, and is a factor reviewers will look for in

evaluating a SOPP or FMP.

* * * * *

(11) Council includes the Secretary, as applicable, when preparing

FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens

Act.

(12) Stock or stock complex is used as a synonym for ``fishery'' in

the sense of the Magnuson-Stevens Act's first definition of the term;

that is, as ``one or more stocks of fish that can be treated as a unit

for purposes of conservation and management and that are identified on

the basis of geographic, scientific, technical, recreational, or

economic characteristics,'' as distinguished from the Magnuson-Stevens

Act's second definition of fishery as ``any fishing for such stocks.''

4. Section 600.310 is revised to read as follows:

Sec. 600.310 National Standard 1--Optimum Yield.

(a) Standard 1. Conservation and management measures shall prevent

overfishing while achieving, on a continuing basis, the OY from each

fishery for the U.S. fishing industry.

(b) General. The determination of OY is a decisional mechanism for

resolving the Magnuson-Stevens Act's multiple purposes and policies,

implementing an FMP's objectives, and balancing the various interests

that comprise the national welfare. OY is based on MSY, or on MSY as it

may be reduced under paragraph (f)(3) of this section. The most

important limitation on the specification of OY is that the choice of

OY and the conservation and management measures proposed to achieve it

must prevent overfishing.

(c) MSY. Each FMP should include an estimate of MSY as explained in

this section.

(1) Definitions. (i) ``MSY'' is the largest long-term average catch

or yield that can be taken from a stock or stock complex under

prevailing ecological and environmental conditions.

(ii) ``MSY control rule'' means a harvest strategy which, if

implemented, would be expected to result in a long-term average catch

approximating MSY.

(iii) ``MSY stock size'' means the long-term average size of the

stock or stock complex, measured in terms of spawning biomass or other

appropriate units, that would be achieved under an MSY control rule in

which the fishing mortality rate is constant.

(2) Options in specifying MSY. (i) Because MSY is a theoretical

concept, its estimation in practice is conditional on the choice of an

MSY control rule. In choosing an MSY control rule, Councils should be

guided by the characteristics of the fishery, the FMP's objectives, and

the best scientific information available. The simplest MSY control

rule is to remove a constant catch in each year that the estimated

stock size exceeds an appropriate lower bound, where this catch is

chosen so as to maximize the resulting long-term average yield. Other

examples include the following: Remove a constant fraction of the

biomass in each year, where this fraction is chosen so as to maximize

the resulting long-term average yield; allow a constant level of

escapement in each year, where this level is chosen so as to maximize

the resulting long-term average yield; vary the fishing mortality rate

as a continuous function of stock size, where the parameters of this

function are constant and chosen so as to maximize the resulting long-

term average yield. In any MSY control rule,

[[Page 24230]]

a given stock size is associated with a given level of fishing

mortality and a given level of potential harvest, where the long-term

average of these potential harvests provides an estimate of MSY.

(ii) Any MSY values used in determining OY will necessarily be

estimates, and these will typically be associated with some level of

uncertainty. Such estimates must be based on the best scientific

information available (see Sec. 600.315) and must incorporate

appropriate consideration of risk (see Sec. 600.335). Beyond these

requirements, however, Councils have a reasonable degree of latitude in

determining which estimates to use and how these estimates are to be

expressed. For example, a point estimate of MSY may be expressed by

itself or together with a confidence interval around that estimate.

(iii) In the case of a mixed-stock fishery, MSY should be specified

on a stock-by-stock basis. However, where MSY cannot be specified for

each stock, then MSY may be specified on the basis of one or more

species as an indicator for the mixed stock as a whole or for the

fishery as a whole.

(iv) Because MSY is a long-term average, it need not be estimated

annually, but it must be based on the best scientific information

available, and should be re-estimated as required by changes in

environmental or ecological conditions or new scientific information.

(3) Alternatives to specifying MSY. When data are insufficient to

estimate MSY directly, Councils should adopt other measures of

productive capacity that can serve as reasonable proxies for MSY, to

the extent possible. Examples include various reference points defined

in terms of relative spawning per recruit. For instance, the fishing

mortality rate that reduces the long-term average level of spawning per

recruit to 30-40 percent of the long-term average that would be

expected in the absence of fishing may be a reasonable proxy for the

MSY fishing mortality rate. The long-term average stock size obtained

by fishing year after year at this rate under average recruitment may

be a reasonable proxy for the MSY stock size, and the long-term average

catch so obtained may be a reasonable proxy for MSY. The natural

mortality rate may also be a reasonable proxy for the MSY fishing

mortality rate. If a reliable estimate of pristine stock size (i.e.,

the long-term average stock size that would be expected in the absence

of fishing) is available, a stock size approximately 40 percent of this

value may be a reasonable proxy for the MSY stock size, and the product

of this stock size and the natural mortality rate may be a reasonable

proxy for MSY.

(d) Overfishing--(1) Definitions. (i) ``To overfish'' means to fish

at a rate or level that jeopardizes the capacity of a stock or stock

complex to produce MSY on a continuing basis.

(ii) ``Overfishing'' occurs whenever a stock or stock complex is

subjected to a rate or level of fishing mortality that jeopardizes the

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

basis.

(iii) In the Magnuson-Stevens Act, the term ``overfished'' is used

in two senses: First, to describe any stock or stock complex that is

subjected to a rate or level of fishing mortality meeting the criterion

in paragraph (d)(1)(i) of this section, and second, to describe any

stock or stock complex whose size is sufficiently small that a change

in management practices is required in order to achieve an appropriate

level and rate of rebuilding. To avoid confusion, this section uses

``overfished'' in the second sense only.

(2) Specification of status determination criteria. Each FMP must

specify, to the extent possible, objective and measurable status

determination criteria for each stock or stock complex covered by that

FMP and provide an analysis of how the status determination criteria

were chosen and how they relate to reproductive potential. Status

determination criteria must be expressed in a way that enables the

Council and the Secretary to monitor the stock or stock complex and

determine annually whether overfishing is occurring and whether the

stock or stock complex is overfished. In all cases, status

determination criteria must specify both of the following:

(i) A maximum fishing mortality threshold or reasonable proxy

thereof. The fishing mortality threshold may be expressed either as a

single number or as a function of spawning biomass or other measure of

productive capacity. The fishing mortality threshold must not exceed

the fishing mortality rate or level associated with the relevant MSY

control rule. Exceeding the fishing mortality threshold for a period of

1 year or more constitutes overfishing.

(ii) A minimum stock size threshold or reasonable proxy thereof.

The stock size threshold should be expressed in terms of spawning

biomass or other measure of productive capacity. To the extent

possible, the stock size threshold should equal whichever of the

following is greater: One-half the MSY stock size, or the minimum stock

size at which rebuilding to the MSY level would be expected to occur

within 10 years if the stock or stock complex were exploited at the

maximum fishing mortality threshold specified under paragraph (d)(2)(i)

of this section. Should the actual size of the stock or stock complex

in a given year fall below this threshold, the stock or stock complex

is considered overfished.

(3) Relationship of status determination criteria to other national

standards--(i) National standard 2. Status determination criteria must

be based on the best scientific information available (see

Sec. 600.315). When data are insufficient to estimate MSY, Councils

should base status determination criteria on reasonable proxies thereof

to the extent possible (also see paragraph (c)(3) of this section). In

cases where scientific data are severely limited, effort should also be

directed to identifying and gathering the needed data.

(ii) National standard 3. The requirement to manage interrelated

stocks of fish as a unit or in close coordination notwithstanding (see

Sec. 600.320), status determination criteria should generally be

specified in terms of the level of stock aggregation for which the best

scientific information is available (also see paragraph (c)(2)(iii) of

this section).

(iii) National standard 6. Councils must build into the status

determination criteria appropriate consideration of risk, taking into

account uncertainties in estimating harvest, stock conditions, life

history parameters, or the effects of environmental factors (see

Sec. 600.335).

(4) Relationship of status determination criteria to environmental

change. Some short-term environmental changes can alter the current

size of a stock or stock complex without affecting the long-term

productive capacity of the stock or stock complex. Other environmental

changes affect both the current size of the stock or stock complex and

the long-term productive capacity of the stock or stock complex.

(i) If environmental changes cause a stock or stock complex to fall

below the minimum stock size threshold without affecting the long-term

productive capacity of the stock or stock complex, fishing mortality

must be constrained sufficiently to allow rebuilding within an

acceptable time frame (also see paragraph (e)(4)(ii) of this section).

Status determination criteria need not be respecified.

(ii) If environmental changes affect the long-term productive

capacity of the stock or stock complex, one or more components of the

status determination criteria must be respecified. Once status

determination criteria have been respecified, fishing mortality may or

may not have to be reduced, depending

[[Page 24231]]

on the status of the stock or stock complex with respect to the new

criteria.

(iii) If manmade environmental changes are partially responsible

for a stock or stock complex being in an overfished condition, in

addition to controlling effort, Councils should recommend restoration

of habitat and other ameliorative programs, to the extent possible (see

also the guidelines issued pursuant to section 305(b) of the Magnuson-

Stevens Act for Council actions concerning essential fish habitat).

(5) Secretarial approval of status determination criteria.

Secretarial approval or disapproval of proposed status determination

criteria will be based on consideration of whether the proposal:

(i) Has sufficient scientific merit.

(ii) Contains the elements described in paragraph (d)(2) of this

section.

(iii) Provides a basis for objective measurement of the status of

the stock or stock complex against the criteria.

(iv) Is operationally feasible.

(6) Exceptions. There are certain limited exceptions to the

requirement to prevent overfishing. Harvesting one species of a mixed-

stock complex at its optimum level may result in the overfishing of

another stock component in the complex. A Council may decide to permit

this type of overfishing only if all of the following conditions are

satisfied:

(i) It is demonstrated by analysis (paragraph (f)(6) of this

section) that such action will result in long-term net benefits to the

Nation.

(ii) It is demonstrated by analysis that mitigating measures have

been considered and that a similar level of long-term net benefits

cannot be achieved by modifying fleet behavior, gear selection/

configuration, or other technical characteristic in a manner such that

no overfishing would occur.

(iii) The resulting rate or level of fishing mortality will not

cause any species or evolutionarily significant unit thereof to require

protection under the ESA.

(e) Ending overfishing and rebuilding overfished stocks-- (1)

Definition. A threshold, either maximum fishing mortality or minimum

stock size, is being ``approached'' whenever it is projected that the

threshold will be breached within 2 years, based on trends in fishing

effort, fishery resource size, and other appropriate factors.

(2) Notification. The Secretary will immediately notify a Council

and request that remedial action be taken whenever the Secretary

determines that:

(i) Overfishing is occurring;

(ii) A stock or stock complex is overfished;

(iii) The rate or level of fishing mortality for a stock or stock

complex is approaching the maximum fishing mortality threshold;

(iv) A stock or stock complex is approaching its minimum stock size

threshold; or

(v) Existing remedial action taken for the purpose of ending

previously identified overfishing or rebuilding a previously identified

overfished stock or stock complex has not resulted in adequate

progress.

(3) Council action. Within 1 year of such time as the Secretary may

identify that overfishing is occurring, that a stock or stock complex

is overfished, or that a threshold is being approached, or such time as

a Council may be notified of the same under paragraph (e)(2) of this

section, the Council must take remedial action by preparing an FMP, FMP

amendment, or proposed regulations. This remedial action must be

designed to accomplish all of the following purposes that apply:

(i) If overfishing is occurring, the purpose of the action is to

end overfishing.

(ii) If the stock or stock complex is overfished, the purpose of

the action is to rebuild the stock or stock complex to the MSY level

within an appropriate time frame.

(iii) If the rate or level of fishing mortality is approaching the

maximum fishing mortality threshold (from below), the purpose of the

action is to prevent this threshold from being reached.

(iv) If the stock or stock complex is approaching the minimum stock

size threshold (from above), the purpose of the action is to prevent

this threshold from being reached.

(4) Constraints on Council action. (i) In cases where overfishing

is occurring, Council action must be sufficient to end overfishing.

(ii) In cases where a stock or stock complex is overfished, Council

action must specify a time period for rebuilding the stock or stock

complex that satisfies the requirements of section 304(e)(4)(A) of the

Magnuson-Stevens Act.

(A) A number of factors enter into the specification of the time

period for rebuilding:

(1) The status and biology of the stock or stock complex;

(2) Interactions between the stock or stock complex and other

components of the marine ecosystem (also referred to as ``other

environmental conditions'');

(3) The needs of fishing communities;

(4) Recommendations by international organizations in which the

United States participates; and

(5) Management measures under an international agreement in which

the United States participates.

(B) These factors enter into the specification of the time period

for rebuilding as follows:

(1) The lower limit of the specified time period for rebuilding is

determined by the status and biology of the stock or stock complex and

its interactions with other components of the marine ecosystem, and is

defined as the amount of time that would be required for rebuilding if

fishing mortality were eliminated entirely.

(2) If the lower limit is less than 10 years, then the specified

time period for rebuilding may be adjusted upward to the extent

warranted by the needs of fishing communities and recommendations by

international organizations in which the United States participates,

except that no such upward adjustment can result in the specified time

period exceeding 10 years, unless management measures under an

international agreement in which the United States participates dictate

otherwise.

(3) If the lower limit is 10 years or greater, then the specified

time period for rebuilding may be adjusted upward to the extent

warranted by the needs of fishing communities and recommendations by

international organizations in which the United States participates,

except that no such upward adjustment can exceed the rebuilding period

calculated in the absence of fishing mortality, plus one mean

generation time or equivalent period based on the species' life-history

characteristics. For example, suppose a stock could be rebuilt within

12 years in the absence of any fishing mortality, and has a mean

generation time of 8 years. The rebuilding period, in this case, could

be as long as 20 years.

(C) A rebuilding program undertaken after May 1, 1998 commences as

soon as the first measures to rebuild the stock or stock complex are

implemented.

(D) In the case of rebuilding plans that were already in place as

of May 1, 1998, such rebuilding plans must be reviewed to determine

whether they are in compliance with all requirements of the Magnuson-

Stevens Act, as amended by the Sustainable Fisheries Act.

(iii) For fisheries managed under an international agreement,

Council action must reflect traditional participation in the fishery,

relative to other nations, by fishermen of the United States.

(5) Interim measures. The Secretary, on his/her own initiative or

in response

[[Page 24232]]

to a Council request, may implement interim measures to reduce

overfishing under section 305(c) of the Magnuson-Stevens Act, until

such measures can be replaced by an FMP, FMP amendment, or regulations

taking remedial action.

(i) These measures may remain in effect for no more than 180 days,

but may be extended for an additional 180 days if the public has had an

opportunity to comment on the measures and, in the case of Council-

recommended measures, the Council is actively preparing an FMP, FMP

amendment, or proposed regulations to address overfishing on a

permanent basis. Such measures, if otherwise in compliance with the

provisions of the Magnuson-Stevens Act, may be implemented even though

they are not sufficient by themselves to stop overfishing of a fishery.

(ii) If interim measures are made effective without prior notice

and opportunity for comment, they should be reserved for exceptional

situations, because they affect fishermen without providing the usual

procedural safeguards. A Council recommendation for interim measures

without notice-and-comment rulemaking will be considered favorably if

the short-term benefits of the measures in reducing overfishing

outweigh the value of advance notice, public comment, and deliberative

consideration of the impacts on participants in the fishery.

(f) OY--(1) Definitions. (i) The term ``optimum,'' with respect to

the yield from a fishery, means the amount of fish that will provide

the greatest overall benefit to the Nation, particularly with respect

to food production and recreational opportunities and taking into

account the protection of marine ecosystems; that is prescribed on the

basis of the MSY from the fishery, as reduced by any relevant economic,

social, or ecological factor; and, in the case of an overfished

fishery, that provides for rebuilding to a level consistent with

producing the MSY in such fishery.

(ii) In national standard 1, use of the phrase ``achieving, on a

continuing basis, the OY from each fishery'' means producing, from each

fishery, a long-term series of catches such that the average catch is

equal to the average OY and such that status determination criteria are

met.

(2) Values in determination. In determining the greatest benefit to

the Nation, these values that should be weighed are food production,

recreational opportunities, and protection afforded to marine

ecosystems. They should receive serious attention when considering the

economic, social, or ecological factors used in reducing MSY to obtain

OY.

(i) The benefits of food production are derived from providing

seafood to consumers, maintaining an economically viable fishery

together with its attendant contributions to the national, regional,

and local economies, and utilizing the capacity of the Nation's fishery

resources to meet nutritional needs.

(ii) The benefits of recreational opportunities reflect the quality

of both the recreational fishing experience and non-consumptive fishery

uses such as ecotourism, fish watching, and recreational diving, and

the contribution of recreational fishing to the national, regional, and

local economies and food supplies.

(iii) The benefits of protection afforded to marine ecosystems are

those resulting from maintaining viable populations (including those of

unexploited species), maintaining evolutionary and ecological processes

(e.g., disturbance regimes, hydrological processes, nutrient cycles),

maintaining the evolutionary potential of species and ecosystems, and

accommodating human use.

(3) Factors relevant to OY. Because fisheries have finite

capacities, any attempt to maximize the measures of benefit described

in paragraph (f)(2) of this section will inevitably encounter practical

constraints. One of these is MSY. Moreover, various factors can

constrain the optimum level of catch to a value less than MSY. The

Magnuson-Stevens Act's definition of OY identifies three categories of

such factors: Social, economic, and ecological. Not every factor will

be relevant in every fishery. For some fisheries, insufficient

information may be available with respect to some factors to provide a

basis for corresponding reductions in MSY.

(i) Social factors. Examples are enjoyment gained from recreational

fishing, avoidance of gear conflicts and resulting disputes,

preservation of a way of life for fishermen and their families, and

dependence of local communities on a fishery. Other factors that may be

considered include the cultural place of subsistence fishing,

obligations under Indian treaties, and worldwide nutritional needs.

(ii) Economic factors. Examples are prudent consideration of the

risk of overharvesting when a stock's size or productive capacity is

uncertain, satisfaction of consumer and recreational needs, and

encouragement of domestic and export markets for U.S.-harvested fish.

Other factors that may be considered include the value of fisheries,

the level of capitalization, the decrease in cost per unit of catch

afforded by an increase in stock size, and the attendant increase in

catch per unit of effort, alternate employment opportunities, and

economies of coastal areas.

(iii) Ecological factors. Examples are stock size and age

composition, the vulnerability of incidental or unregulated stocks in a

mixed-stock fishery, predator-prey or competitive interactions, and

dependence of marine mammals and birds or endangered species on a stock

of fish. Also important are ecological or environmental conditions that

stress marine organisms, such as natural and manmade changes in

wetlands or nursery grounds, and effects of pollutants on habitat and

stocks.

(4) Specification. (i) The amount of fish that constitutes the OY

should be expressed in terms of numbers or weight of fish. However, OY

may be expressed as a formula that converts periodic stock assessments

into target harvest levels; in terms of an annual harvest of fish or

shellfish having a minimum weight, length, or other measurement; or as

an amount of fish taken only in certain areas, in certain seasons, with

particular gear, or by a specified amount of fishing effort.

(ii) Either a range or a single value may be specified for OY.

Specification of a numerical, fixed-value OY does not preclude use of

annual target harvest levels that vary with stock size. Such target

harvest levels may be prescribed on the basis of an OY control rule

similar to the MSY control rule described in paragraph (c)(1)(ii) of

this section, but designed to achieve OY on average, rather than MSY.

The annual harvest level obtained under an OY control rule must always

be less than or equal to the harvest level that would be obtained under

the MSY control rule.

(iii) All fishing mortality must be counted against OY, including

that resulting from bycatch, scientific research, and any other fishing

activities.

(iv) The OY specification should be translatable into an annual

numerical estimate for the purposes of establishing any TALFF and

analyzing impacts of the management regime. There should be a mechanism

in the FMP for periodic reassessment of the OY specification, so that

it is responsive to changing circumstances in the fishery.

(v) The determination of OY requires a specification of MSY, which

may not always be possible or meaningful. However, even where

sufficient scientific data as to the biological characteristics of the

stock do not exist,

[[Page 24233]]

or where the period of exploitation or investigation has not been long

enough for adequate understanding of stock dynamics, or where frequent

large-scale fluctuations in stock size diminish the meaningfulness of

the MSY concept, the OY must still be based on the best scientific

information available. When data are insufficient to estimate MSY

directly, Councils should adopt other measures of productive capacity

that can serve as reasonable proxies for MSY to the extent possible

(also see paragraph (c)(3) of this section).

(vi) In a mixed-stock fishery, specification of a fishery-wide OY

may be accompanied by management measures establishing separate annual

target harvest levels for the individual stocks. In such cases, the sum

of the individual target levels should not exceed OY.

(5) OY and the precautionary approach. In general, Councils should

adopt a precautionary approach to specification of OY. A precautionary

approach is characterized by three features:

(i) Target reference points, such as OY, should be set safely below

limit reference points, such as the catch level associated with the

fishing mortality rate or level defined by the status determination

criteria. Because it is a target reference point, OY does not

constitute an absolute ceiling, but rather a desired result. An FMP

must contain conservation and management measures to achieve OY, and

provisions for information collection that are designed to determine

the degree to which OY is achieved on a continuing basis--that is, to

result in a long-term average catch equal to the long-term average OY,

while meeting the status determination criteria. These measures should

allow for practical and effective implementation and enforcement of the

management regime, so that the harvest is allowed to reach OY, but not

to exceed OY by a substantial amount. The Secretary has an obligation

to implement and enforce the FMP so that OY is achieved. If management

measures prove unenforceable--or too restrictive, or not rigorous

enough to realize OY--they should be modified; an alternative is to

reexamine the adequacy of the OY specification. Exceeding OY does not

necessarily constitute overfishing. However, even if no overfishing

resulted from exceeding OY, continual harvest at a level above OY would

violate national standard 1, because OY was not achieved on a

continuing basis.

(ii) A stock or stock complex that is below the size that would

produce MSY should be harvested at a lower rate or level of fishing

mortality than if the stock or stock complex were above the size that

would produce MSY.

(iii) Criteria used to set target catch levels should be explicitly

risk averse, so that greater uncertainty regarding the status or

productive capacity of a stock or stock complex corresponds to greater

caution in setting target catch levels. Part of the OY may be held as a

reserve to allow for factors such as uncertainties in estimates of

stock size and DAH. If an OY reserve is established, an adequate

mechanism should be included in the FMP to permit timely release of the

reserve to domestic or foreign fishermen, if necessary.

(6) Analysis. An FMP must contain an assessment of how its OY

specification was determined (section 303(a)(3) of the Magnuson-Stevens

Act). It should relate the explanation of overfishing in paragraph (d)

of this section to conditions in the particular fishery and explain how

its choice of OY and conservation and management measures will prevent

overfishing in that fishery. A Council must identify those economic,

social, and ecological factors relevant to management of a particular

fishery, then evaluate them to determine the amount, if any, by which

MSY exceeds OY. The choice of a particular OY must be carefully defined

and documented to show that the OY selected will produce the greatest

benefit to the Nation. If overfishing is permitted under paragraph

(d)(6) of this section, the assessment must contain a justification in

terms of overall benefits, including a comparison of benefits under

alternative management measures, and an analysis of the risk of any

species or ecologically significant unit thereof reaching a threatened

or endangered status, as well as the risk of any stock or stock complex

falling below its minimum stock size threshold.

(7) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens

Act provides that fishing by foreign nations is limited to that portion

of the OY that will not be harvested by vessels of the United States.

(i) DAH. Councils must consider the capacity of, and the extent to

which, U.S. vessels will harvest the OY on an annual basis. Estimating

the amount that U.S. fishing vessels will actually harvest is required

to determine the surplus.

(ii) DAP. Each FMP must assess the capacity of U.S. processors. It

must also assess the amount of DAP, which is the sum of two estimates:

The estimated amount of U.S. harvest that domestic processors will

process, which may be based on historical performance or on surveys of

the expressed intention of manufact

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