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Proposed Rule

Magnuson-Stevens Act Provisions, Subpart H; General Provisions for Domestic Fishing

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


Notice of receipt of petition for rulemaking and request for comments.


NOAA announces receipt of a petition for rulemaking under the Administrative Procedure Act. Oceana, a non-governmental organization concerned with the environmental health of the oceans, has petitioned the U.S. Department of Commerce to promulgate immediately a rule to establish a program to count, cap, and control bycatch in U.S. fisheries. The Oceana petition asserts that NMFS is not complying with its statutory obligations to monitor and minimize bycatch under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), and the Migratory Bird Treaty Act (MBTA). The petition seeks a regulatory program that includes a workplan for observer coverage sufficient to provide statistically reliable bycatch estimates in all fisheries, the incorporation of bycatch estimates into restrictions on fishing, the placing of limits on directed catch and bycatch in each fishery with provision for closure upon attainment of either limit, and bycatch assessment and reduction plans as a requirement for all commercial and recreational fisheries.


Comments will be accepted through June 17, 2002.


Copies of the petition are available, and written comments on the need for such a regulation, its objectives, alternative approaches, and any other comments may be addressed to William T. Hogarth, Ph.D., Assistant Administrator for Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910; telephone 301-713-2239. Comments may also be sent via fax to 301-713-1193, attn: Val Chambers. Comments will not be accepted if submitted via e-mail or Internet.

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Val Chambers, telephone 301-713-2341, fax 301-713-1193, e-mail

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The petition filed by Oceana states that wasteful large-scale bycatch of birds, mammals, turtles, and fish is occurring in the United States and worldwide. The petition cites scientific estimates of bycatch poundage and indicates bycatch of a much larger magnitude. The petition asserts that NMFS is allowing this wastage to continue by not meeting its legal obligations for bycatch under the MSA, ESA, MMPA, and the MBTA.

The petition cites specific legal responsibilities of NMFS for bycatch under each of these statutes and concludes that NMFS must count, cap, and control bycatch under the MSA, ESA, and MMPA and that NMFS must monitor and report bycatch of seabirds that occurs in fishing operations and take steps to reduce seabird bycatch. For the MSA and related regulations and Federal Court interpretations, the petition cites national standard 9 and other requirements for minimizing bycatch and related mortality, including a standardized reporting methodology for bycatch. The petition concludes that any FMP or regulation prepared to implement an FMP must contain measures to minimize bycatch in fisheries to the extent practicable and argues that greater observer coverage is required. For the ESA, the petition cites the prohibition on taking endangered species and protection of threatened species, including recovery plans to guide regulatory efforts, as well as consultation requirements and incidental take statements. For the MMPA, the petition cites requirements for a regulatory system to avoid and minimize takes of marine mammals reducing mortality or serious injury to insignificant levels, as well as take reduction plans and monitoring of marine mammal takes. For the MBTA, the petition cites the prohibition on taking any migratory bird, including seabirds, except as permitted by regulations issued by the Department of the Interior, and cites Federal case law and Executive Order 13186 as requirements that NMFS ensure that fishery management plans approved by NMFS comply with the MBTA. The petition also refers to the NMFS-issued National Plan of Action for reducing seabird bycatch and the need to prepare a national seabird bycatch assessment.

The exact and complete assertions of nonconformance with Federal law are contained in the text of Oceana’s petition which is available via internet at the following NMFS web address: http://www.nmfs/​​sfa/​sfweb/​index.htm. Also, anyone may obtain a copy of the petition by contacting NMFS at the above address.

The petition specifically requests that NMFS immediately undertake a rulemaking to meet its obligations under the above statutory authorities and that such rulemaking include the following four actions:

“1. Develop and implement a workplan for placing observers on enough fishing trips to provide statistically reliable bycatch estimates in all fisheries. This task involves several steps (taking into account the diversity of vessel category, gears used, and fishing region): (a) determining how many fishing trips must be observed, where observers should be stationed, and other details; (b) identifying funding sources to support such Start Printed Page 19155observer coverage, including taxpayer subsidies, taxing landings or user fees; and (c) hiring, training, and deploying the necessary observers.

“2. Incorporate reasonable estimates of bycatch into all total allowable catch levels and other restrictions on fishing.

“3. Set absolute limits on the amount of directed catch and bycatch (including non-fish bycatch) that can occur in each fishery, and close the fishery when the applicable catch or bycatch limit (whichever is reached first) is met.

“4. Within 12 months of initiating rulemaking, develop, approve, and implement bycatch assessment and reduction plans for commercial and recreational fisheries. Such plans should include, at minimum, (a) an assessment of the fishery according to its bycatch, including its types, levels, and rates of bycatch on a per-gear basis and the impact of that bycatch on bycaught species and the surrounding environment; (b) a description of the level and type of observer coverage necessary accurately to characterize total mortality (including bycatch) in the fishery; (c) bycatch reduction targets and the amount of directed and bycatch mortality allowed in each fishery to meet the target; and (d) types of bycatch reduction measures (such as closed areas, gear modifications, or effort reduction) that will be employed in the fishery, including incentives for those who use gears that produce less bycatch. Beginning 12 months after rulemaking commences, NMFS should not permit fishing in any fishery that lacks a functioning bycatch plan.”

The Assistant Administrator for Fisheries has determined that the petition contains enough information to enable NMFS to consider the substance of the petition. NMFS will consider public comments received in determining whether or not to proceed with the development of the regulations requested by Oceana. To this end, NMFS, by separate letter, has requested each of the Regional Fishery Management Councils to assist in evaluating this petition. Upon determining whether or not to initiate the requested rulemaking, the Assistant Administrator for Fisheries, NOAA, will publish a notice of the agency's final disposition of the Oceana petition request in the Federal Register.

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Dated: April 11, 2002.

John H. Dunnigan,

Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

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[FR Doc. 02-9462 Filed 4-17-02; 8:45 am]