Proposed Rule2023-10294
Fisheries of the United States; Magnuson-Stevens Fishery Conservation and Management Act; National Standard 4, 8, and 9 Guidelines
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Published
May 15, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is publishing this ANPR to alert the public of potential future adjustments the agency may make to the implementing guidelines for National Standards 4, 8, or 9, of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Several ongoing fishing management challenges, including changes in environmental conditions, shifting distributions of fish stocks, and equity and environmental justice considerations that affect fishing communities that are currently or have been historically dependent on the resource, suggest a need to revisit the guidelines to ensure they remain appropriate for current U.S. fisheries management. The intent of this notice is to provide the public with background on some of the specific issues under consideration, seek specific input, and provide a general opportunity for comment. NMFS will take public comment into consideration when it decides whether or not to propose changes to the guidelines for National Standards 4, 8, or 9.
Full Text
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<title>Federal Register, Volume 88 Issue 93 (Monday, May 15, 2023)</title>
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[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Proposed Rules]
[Pages 30934-30938]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10294]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 230509-0128]
RIN 0648-BM17
Fisheries of the United States; Magnuson-Stevens Fishery
Conservation and Management Act; National Standard 4, 8, and 9
Guidelines
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 30935]]
ACTION: Advance notice of proposed rulemaking (ANPR); request for
comments.
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SUMMARY: NMFS is publishing this ANPR to alert the public of potential
future adjustments the agency may make to the implementing guidelines
for National Standards 4, 8, or 9, of the Magnuson-Stevens Fishery
Conservation and Management Act (MSA). Several ongoing fishing
management challenges, including changes in environmental conditions,
shifting distributions of fish stocks, and equity and environmental
justice considerations that affect fishing communities that are
currently or have been historically dependent on the resource, suggest
a need to revisit the guidelines to ensure they remain appropriate for
current U.S. fisheries management. The intent of this notice is to
provide the public with background on some of the specific issues under
consideration, seek specific input, and provide a general opportunity
for comment. NMFS will take public comment into consideration when it
decides whether or not to propose changes to the guidelines for
National Standards 4, 8, or 9.
DATES: Comments must be received by 5 p.m., local time, on September
12, 2023.
ADDRESSES: You may submit comments on this document, identified by
``NOAA-HQ-2023-0060'', by any one of the following methods:
<bullet> Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter ``NOAA-HQ-2023-0060'' in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on the right of that line.
<bullet> Mail: Wendy Morrison; National Marine Fisheries Service,
NOAA; 1315 East-West Highway, Room 13436; Silver Spring, MD 20910.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to another
address or individual, or received after the end of the comment period,
may not be considered. All comments received are part of the public
record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Wendy Morrison, Fisheries Policy
Analyst, National Marine Fisheries Service, 301-427-8564.
SUPPLEMENTARY INFORMATION:
Background
Section 301(a) of the MSA contains 10 national standards for
fishery conservation and management. Any fishery management plan (FMP)
prepared under the MSA, and any regulation adopted under the MSA to
implement any such plan, must be consistent with these national
standards.
<bullet> National Standard 4 (NS4) of the MSA states that
conservation and management measures shall not discriminate between
residents of different states. If it becomes necessary to allocate or
assign fishing privileges among various United States fishermen, such
allocation shall be (a) fair and equitable to all such fishermen; (b)
reasonably calculated to promote conservation; and (c) carried out in
such manner that no particular individual, corporation, or other entity
acquires an excessive share of such privilege.
<bullet> National Standard 8 (NS8) states that conservation and
management measures shall, consistent with the conservation
requirements of the MSA (including the prevention of overfishing and
rebuilding of overfished stocks), take into account the importance of
fishery resources to fishing communities by utilizing economic and
social data that are consistent with the best scientific information
available, in order to (a) provide for the sustained participation of
such communities, and (b) to the extent practicable, minimize adverse
economic impacts on such communities.
<bullet> National Standard 9 (NS9) states that conservation and
management measures shall, to the extent practicable, (a) minimize
bycatch and (b) to the extent bycatch cannot be avoided, minimize the
mortality of such bycatch.
Section 301(b) of the MSA requires that the Secretary of Commerce
establish advisory guidelines, based on the national standards, to
assist in the development of FMPs. These guidelines do not have the
force and effect of law; however, the courts often give deference to
the agency's interpretations in the guidelines. Guidelines for National
Standards 4, 8, and 9 are codified at 50 CFR 600.325 (NS4), 600.345
(NS8), and 600.350 (NS9). NMFS last revised the NS4 Guidelines on May
1, 1998 (63 FR 24212), NS8 Guidelines on November 17, 2008 (73 FR
67809), and NS9 Guidelines on November 17, 2008 (73 FR 67809).
Since these guidelines were last revised, a number of fishery
management challenges, including changes in environmental conditions
and shifting distributions of fish stocks, suggest a need to revisit
the guidelines to ensure they remain appropriate for current U.S.
fisheries management. Recent Executive Orders (E.O.s), such as E.O.
14008 on Tackling the Climate Crisis at Home and Abroad, and E.O. 13985
on Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government, as well as relevant policy documents
(e.g., NOAA fiscal year 2022-2026 Strategic Plan) highlight NMFS'
commitment to plan for climate change impacts and to serve stakeholders
equitably by engaging underserved communities in the science,
conservation, and management of the nation's fisheries, consistent with
existing law. NMFS strongly supports the need to further improve
adaptability of our management processes in the context of changing
environmental conditions and ensure equity and environmental justice
(that is, equity applied to environmental laws, policies, and
practices) within the fishery management process. As such, NMFS is
soliciting input on potential future revisions to the National
Standards 4, 8, and 9 Guidelines that would address recent fishery
management challenges, bolster climate adaptability, and encourage
equity and environmental justice within the fishery management process
under the existing provisions of the MSA.
Background on the National Standards
National Standard 4
Allocation of fishing privileges under NS4 guidelines refers to the
direct and deliberate distribution of the opportunity to participate in
a fishery among user groups or individuals. See 50 CFR 600.325(c)(1).
Decisions regarding the allocation of fishery resources are often
controversial and challenging. In general, increases to one group
result in decreases to another, leading to allocation decisions being
perceived as a ``win'' for some fishermen or fisheries and a ``loss''
for others. A 2012 report based on interviews with fishery stakeholders
[[Page 30936]]
regarding allocation found that the concepts of fairness and equity are
complicated and often vary depending on individual circumstances
(Lapointe 2012 at <a href="https://media.fisheries.noaa.gov/dam-migration/lapointe-allocation-report.pdf">https://media.fisheries.noaa.gov/dam-migration/lapointe-allocation-report.pdf</a>). This report concluded that many
stakeholders will continue to view allocations as unbalanced or unfair
unless the outcomes are close to the positions they seek.
In addition to the existing NS4 guidelines, NMFS created an
Allocation Policy (available at <a href="https://media.fisheries.noaa.gov/dam-migration/01-119.pdf">https://media.fisheries.noaa.gov/dam-migration/01-119.pdf</a>) in 2016 that requires the eight Regional Fishery
Management Councils (Councils), and NMFS for Atlantic Highly Migratory
Species (HMS), to identify a trigger for all fisheries that contain an
allocation. The trigger could be based on time, public input, or an
indicator. When a specified trigger is met, the Council or NMFS must
assess if a revision to the allocation is needed. However, the
Allocation Policy does not require Councils or NMFS to implement any
changes to the allocation.
National Standard 8
National Standard 8 requires that an FMP take into account the
importance of fishery resources to fishing communities in order to
provide for the sustained participation of--and minimize adverse
economic impacts on--such communities. However, both NMFS guidance and
court precedent establish that minimizing adverse impacts on
communities must be considered secondary to the conservation
requirements of the MSA. In short, actions meant to address the
importance of fishery resources to affected fishing communities must
not compromise the achievement of conservation requirements and goals
of the FMP. As the current NS8 guidelines clarify: ``All other things
being equal, where two alternatives achieve similar conservation goals,
the alternative that provides the greater potential for sustained
participation of such communities and minimizes the adverse economic
impacts on such communities would be the preferred alternative.''
National Standard 9
Fishermen sometimes catch, and may discard, species they do not
want, cannot sell, or are not allowed to keep, creating what we know as
bycatch. Bycatch is a complex, global issue. The MSA defines bycatch as
``fish which are harvested in a fishery, but which are not sold or kept
for personal use, and includes economic discards and regulatory
discards. This term does not include fish released alive under a
recreational catch and release fishery management program.'' 16 U.S.C.
1802(2). It also does not include incidental catch, or non-target
catch, that is sold or kept for personal use. The MSA definition of
``fish'' does not include marine mammals and birds, thus bycatch of
these animals is not included under this standard. NS9 requires that
bycatch and bycatch mortality (e.g., unobserved mortality due to a
direct encounter with fishing vessels and gear) shall be minimized to
the extent practicable.
In considering potential revisions to the guidance for these three
national standards, NMFS is seeking comment on the following issues, in
particular (in no specific order).
Tackling the Climate Crisis
The changing climate and oceans have significant impacts on the
nation's valuable marine life and ecosystems, and the many communities
and economies that depend on them. Scientists expect environmental
changes such as warming oceans, rising sea levels, frequency and
intensity of floods and droughts, and ocean acidification to increase
with continued shifts in the planet's climate system. Changing ocean
conditions are affecting the location and productivity of fish stocks
and the fishing industry's interactions with bycatch, protected
species, and other ocean users. Some fish stocks are becoming less
productive and/or are moving out of range of the fishermen who catch
them. These shifts can cause social, economic, and other impacts on
fisheries and fishing-dependent communities. As a result, fishing
industries and coastal businesses can face significant challenges in
preparing for and adapting to these changing conditions. NMFS
understands the importance of updating fisheries management to address
current and anticipated needs and conditions, including dynamic stock
conditions and changing ocean conditions. The issues associated with
changing climate conditions that NMFS is requesting comment on in
relation to National Standards 4, 8, and 9 are outlined below.
1. National Standard 4: Environmental changes are affecting, and
will continue to affect, stock distributions and abundances, and have
the potential to change the applicability of historical information and
current regulations. Most allocations established by the Councils and
NMFS are highly complex and supported by extensive analyses.
Determinations of many, but not all, of the existing allocations have
relied heavily on documented catch or landings during specific time
periods. Considering documented catch in the development of allocations
is important to help participants maintain access to resources they
have been dependent upon, and to document compliance with statutory
requirements. However, it is also important to consider the needs of
other users, such as new fishermen who would like to enter a fishery,
fishermen displaced from other fisheries, and/or existing fishermen who
are catching new species in their historical fishing grounds.
NMFS is considering whether updates to the NS4 guidelines would
help encourage allocation decisions that balance the needs of different
user groups when creating and updating allocations, including for
stocks that are shifting, or have shifted, their distribution. NMFS
welcomes specific input on:
(a) Approaches, consistent with other statutory requirements, for
balancing consideration of anticipated or realized changes in stock
distributions and/or overall fishery access for historical users,
marginalized individuals who may have been inequitably excluded from
historical allocations, and new users in such allocation decisions;
(b) Whether revisions to the NS4 guidelines are needed to reinforce
NMFS' Allocation Policy's requirement to complete periodic reviews of
allocations; and
(c) The types of documentation, analyses, and alternative
approaches (e.g., spatial allocations between sectors or gears, mixes
of historic use and dynamic allocation schemes) that should be
considered when making such allocation decisions.
2. National Standard 8: Environmental changes are affecting, and
will continue to affect, stock distributions and abundances, creating
challenges for communities dependent on those resources. NMFS is
requesting comments on options for updating the guidelines to NS8 to
better account for these changes and to improve the ability of
communities to adapt to these changing conditions.
3. National Standard 9: Environmental changes are affecting, and
will continue to affect, the distributions of many marine resources,
including target fish stocks, bycatch fish stocks and protected
resources. This has and will continue to create challenges to
maintaining economic viability of fisheries while also ensuring
sustainable management of all marine resources. NMFS is requesting
comments on options for updating the guidelines to
[[Page 30937]]
NS9 to better account for and adapt to these changes.
Equity and Environmental Justice
NMFS is committed to advancing equity and environmental justice,
including equal treatment, opportunities, and environmental benefits
for all people and communities, while building on continuing efforts
and partnerships with underserved and underrepresented communities. For
purposes of this document, consistent with E.O. 13985, ``underserved
communities'' refers to ``populations sharing a particular
characteristic, as well as geographic communities, that have been
systematically denied a full opportunity to participate in aspects of
economic, social, and civil life.'' The issues associated with equity
and environmental justice that NMFS is requesting comment on are
outlined below.
1. National Standard 4: The existing NS4 guidelines provide limited
guidance on what is meant by ``fair'' and ``equitable'', in order to
allow Councils and NMFS the flexibility to interpret these terms as
needed within their circumstances given the variability in fisheries
across the country. NMFS asserts it would be difficult to provide
additional guidance on these terms that will be appropriate across the
variety of social, economic, and ecological conditions of the eight
Councils and Atlantic HMS.
NMFS requests specific input on:
(a) Approaches to improve consideration of underserved communities,
previously excluded entrants, and new entrants in allocation decisions;
and
(b) The types of documentation and analyses that should be
considered to ensure such allocation decisions are fair and equitable.
Commenters on this issue should bear in mind the requirements of MSA
sections 303(b)(6) and 303A(c)(3)(B), (c)(4)(C), and (c)(5) that
require consideration of current and past participation as well as
other considerations when developing limited entry programs, Limited
Access Privilege Programs (LAPPs), and initial allocations for LAPPs.
2. National Standard 8: NMFS is committed to serving stakeholders
equitably by engaging underserved communities in the science,
conservation, and management of the nation's fisheries. NMFS does not
believe that the existing NS8 guidelines limit NMFS' or the Councils'
ability to implement regulations and policies that address inequities
or barriers to access for underserved communities. However, NMFS is
considering removing language in the NS8 guidelines that states that
NS8 ``does not constitute a basis for allocating resources to a
specific fishing community nor for providing preferential treatment
based on residence in a fishing community.'' This text may be
unnecessary and confusing, given that NS8 does not specifically
authorize, or prohibit, allocations to fishing communities. NMFS
recognizes that allocations to a specific fishing community may be
beneficial in some situations, if supported with appropriate rationale,
and if NS8 is not the sole basis for making such allocations.
NMFS is also considering revising the definition of fishing
community within the guidelines. The MSA defines a fishing community as
``a community which is substantially dependent on or substantially
engaged in the harvest or processing of fishery resources to meet
social and economic needs, and includes fishing vessel owners,
operators, and crew and United States fish processors that are based in
such communities.'' 16 U.S.C. 1802(17). The current NS8 guidelines add
to the statutory definition by stating a fishing community is ``a
social or economic group whose members reside in a specific location
and share a common dependency on commercial, recreational, or
subsistence fishing or on directly related fisheries-dependent services
and industries (for example, boatyards, ice suppliers, tackle shops).''
50 CFR 600.345(b)(3). Given the wide range of fishing community
structures (including locations of fishing infrastructure and fishing-
related economic activity) associated across the U.S. and its
territories, NMFS is considering removing or revisiting the requirement
for members to reside in a specific location. In addition, NMFS is also
considering adjusting how the ``fishing community'' definition under
the NS8 guidelines balances between dependency and engagement. As
stocks decrease in abundance or shift distributions, communities will
likely need to adapt. One option could be for a community to increase
their resilience by decreasing their dependence on one or more
particular stocks or fisheries (i.e., diversifying the fisheries that
can be accessed). Thus, NMFS is considering revising the definition to
shift from focusing on ``dependence'' to focusing on ``engagement,'' as
both are included within the MSA definition. Shifting the focus of the
definition of ``fishing community'' towards ``engagement'' could help
provide that those communities that undertake engagement efforts that
build up the community's economic resilience, while still being engaged
with fisheries, could continue to be considered a ``fishing community''
under the NS8 guidelines. NMFS requests input on the definition of
``fishing community'' within the NS8 guidelines, including the use of
``current and historical engagement'' instead of or in addition to
``dependence''.
Finally, NMFS welcomes suggestions on how to appropriately balance
the requirement under NS8 for ``sustained participation'' of fishing
communities and the need to improve consideration of (1) underserved
communities currently or historically engaged with fisheries, (2)
previously excluded entrants, (3) new entrants, and (4) communities
with high levels of social or climate vulnerability. NMFS also welcomes
input on appropriate measures of social and climate vulnerability for
fishing communities.
3. National Standard 9: Conflict between fisheries and gears is
common in fisheries management, via overlap in geographic areas fished
or species caught. Relevant to NS9 is the situation where bycatch in
one fishery has negative impacts on another fishery, usually via a
restricting limit on total fishing mortality for a shared stock. For
example, bycatch of one species in a fishery may reduce the amount of
that species available to harvest in a target commercial fishery,
recreational fishery, or subsistence fishery. The issue can be further
complicated when one or more fisheries in conflict are important for
underserved communities. NMFS welcomes input on how the NS9 guidelines
could be modified to minimize bycatch mortality in a manner that is
equitable across different fisheries and gear types. NMFS also welcomes
comments on ways to better balance the needs of bycatch and target
fisheries in a manner that is equitable across different fisheries and
gear types, especially when one or more fisheries are important for
underserved communities.
Other Relevant Management Challenges
There are other fisheries and management issues relevant to
National Standards 4, 8 and 9 that are not covered above. NMFS is
requesting comment on two of these issues in particular, as described
below.
1. Practicability Standard: NS9 requires bycatch and bycatch
mortality be minimized ``to the extent practicable''. NMFS asserts the
discussion of practicability within the existing NS9 guidelines
appropriately balances the various complexities of federal fisheries
management. NMFS welcomes input on how the NS9 guidelines could be
modified to further
[[Page 30938]]
decrease bycatch or bycatch mortality of stocks. NMFS also welcomes
input on other ways to improve the guidelines. For example, NMFS
welcomes input on whether the agency should consider: (1) adding
provisions to address bycatch on an ecosystem level (as opposed to
single species metrics), (2) implementing provisions for alternative
performance-based standards, or (3) increasing provisions to document
bycatch avoidance.
2. Reducing Waste: Some FMPs include management measures that
prohibit retention of certain fish species or sizes to ensure fishermen
are dis-incentivized from incidentally catching these fish. When these
regulatory discards are required, they can lead to significant waste as
fishermen are forced to discard (waste) usable catch. NMFS seeks input
on revisions to the NS9 guidelines that could encourage provisions to
incentivize reduction of waste, including use of innovations that
decrease bycatch (e.g., gear innovations or adjustable area closures
that avoid certain species or sizes of fish), decrease bycatch
mortality (e.g., gear innovations that improve the health and survival
of discards), or increase use while dis-incentivizing catch of
overfished or low productivity stocks (e.g., allowing a fishery to
retain and sell what would otherwise be required to be discarded either
through purchasing quota share or other types of compensation; or
allowing bycatch to be donated to food shelters so that it is not
wasted but also does not lead to economic gains).
NMFS also acknowledges that other relevant management issues have
arisen in litigation over the past years in addition to those discussed
above. The agency will consider these issues when deciding whether to
propose revisions to the NS4, 8, or 9 guidelines, but is not soliciting
comment on them here.
Public Comment
NMFS is soliciting comments on the issues and concepts outlined in
this ANPR. NMFS invites comments to help determine the scope of issues
to potentially be addressed in a subsequent revision to the National
Standard guidelines for NS 4, 8, or 9 and to identify significant
issues related to these national standards. NMFS is also seeking
additional ideas to ensure that the National Standard 4, 8, and 9
guidelines remain relevant given current and emerging issues facing
U.S. fisheries management. All written comments received by the due
date will be considered in evaluating whether revisions to the
guidelines or related policy documents are warranted. Additionally,
NMFS has requested to present this ANPR to the various Regional Fishery
Management Councils and the Atlantic HMS Advisory Panel during the
public comment period. Please see the appropriate meeting notices on
the Councils' and Atlantic HMS Advisory Panel's website for specific
date and times. General meeting information is available below.
Atlantic HMS Advisory Panel May 9-11, 2023, <a href="https://www.fisheries.noaa.gov/event/may-2023-hms-advisory-panel-meeting">https://www.fisheries.noaa.gov/event/may-2023-hms-advisory-panel-meeting</a>.
Caribbean Fishery Management Council August 15-16, 2023, <a href="https://www.caribbeanfmc.com/meeting-documents/2-uncategorised/426-august-15-16-2023">https://www.caribbeanfmc.com/meeting-documents/2-uncategorised/426-august-15-16-2023</a>.
Gulf of Mexico Fishery Management Council June 5-8, 2023, <a href="https://gulfcouncil.org/meetings/council/">https://gulfcouncil.org/meetings/council/</a>.
Mid-Atlantic Fishery Management Council June 6-8, 2023, <a href="https://www.mafmc.org/council-events/2023/june-council-meeting">https://www.mafmc.org/council-events/2023/june-council-meeting</a>.
New England Fishery Management Council June 27-29, <a href="https://www.nefmc.org/calendar/june-2023-council-meeting">https://www.nefmc.org/calendar/june-2023-council-meeting</a>.
North Pacific Fishery Management Council June 8-11, 2023, <a href="https://meetings.npfmc.org/Meeting/Details/2993">https://meetings.npfmc.org/Meeting/Details/2993</a>.
Pacific Fishery Management Council June 20-27, 2023,<a href="https://www.pcouncil.org/council_meeting/june-2023-council-meeting/">https://www.pcouncil.org/council_meeting/june-2023-council-meeting/</a>.
South Atlantic Fishery Management Council June 12-16, <a href="https://safmc.net/events/june-2023-council-meeting/">https://safmc.net/events/june-2023-council-meeting/</a>.
Western Pacific Fishery Management Council June 26-30, 2023,
<a href="https://www.wpcouncil.org/public-meetings/">https://www.wpcouncil.org/public-meetings/</a>.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 9, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-10294 Filed 5-12-23; 8:45 am]
BILLING CODE 3510-22-P
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