[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Proposed Rules]
[Pages 74056-74058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29216]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
RIN 0648-BE50
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast
Region Standardized Bycatch Reporting Methodology Omnibus Amendment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability of proposed fishery management plan
amendment; request for comments.
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SUMMARY: NMFS announces that the Mid-Atlantic and New England Fishery
Management Councils have submitted an Omnibus Amendment to the Fishery
Management Plans of the Northeastern U.S. to establish a Standardized
Bycatch Reporting Methodology, incorporating a draft Environmental
Assessment and preliminary Regulatory Impact Review, for review and
approval by the Secretary of Commerce, and is requesting comments from
the public. The Standardized Bycatch Reporting Methodology Omnibus
Amendment would establish a standardized bycatch reporting methodology
for all 13 Fishery Management Plans in the region, as
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required under the Magnuson-Stevens Fishery Conservation and Management
Act. The proposed measures include: Bycatch reporting and monitoring
mechanisms; analytical techniques and allocation of at-sea fisheries
observers; a standardized bycatch reporting methodology performance
standard; a review and reporting process; framework adjustment and
annual specifications provisions; a prioritization process; and
provisions for industry-funded observers and observer set-aside
programs.
DATES: Comments must be received on or before February 13, 2015.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2014-0114,
by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0114, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: John K. Bullard, Regional Administrator, NMFS,
Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive,
Gloucester, MA 01930. Mark the outside of the envelope: ``Comments on
SBRM Amendment.''
Instructions: All comments received are part of the public record
and will generally be posted to www.regulations.gov without change. All
Personal Identifying Information (for example, name, address, etc.)
voluntarily submitted by the commenter may be publicly accessible. Do
not submit confidential business information or otherwise sensitive or
protected information.
NMFS will accept anonymous comments. Attachments to electronic
comments will be accepted via Microsoft Word, Microsoft Excel,
WordPerfect, or Adobe PDF file formats only.
Copies of the Standardized Bycatch Reporting Methodology (SBRM)
Omnibus Amendment, and of the draft Environmental Assessment and
preliminary Regulatory Impact Review (EA/RIR), are available from the
Mid-Atlantic Fishery Management Council, 800 North State Street, Suite
201, Dover, DE 19901; and from the New England Fishery Management
Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The EA/RIR is
also accessible via the Internet at:
www.greateratlantic.fisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst,
978-281-9341.
SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act) requires that each Regional
Fishery Management Council submit any Fishery Management Plan (FMP)
amendment it prepares to NMFS for review and approval, disapproval, or
partial approval. The Magnuson-Stevens Act also requires that NMFS,
upon receiving an FMP amendment, immediately publish notification in
the Federal Register that the amendment is available for public review
and comment. If approved by NMFS, this amendment would establish a
comprehensive SBRM that applies to all FMPs developed by the Mid-
Atlantic and New England Councils. The amendment would also effect an
administrative change to the regulations on framework adjustments.
Background
Section 303(a)(11) of the Magnuson-Stevens Act requires that all
FMPs ``establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in the fishery.'' In 2004, several
conservation organizations challenged the approval of two major FMP
amendments in the Region. In ruling on these suits, the U.S. District
Court for the District of Columbia found that the FMPs did not clearly
establish a SBRM as required by the Magnuson-Stevens Act and remanded
the amendments back to the agency to fully develop and establish the
required SBRM. In particular, the Court found that the amendments: (1)
Failed to fully evaluate reporting methodologies to assess bycatch; (2)
did not mandate a SBRM; and (3) failed to respond to potentially
important scientific evidence. In response, the Councils worked closely
with NMFS to develop, adopt, and implement an omnibus FMP amendment
that established a SBRM for all 13 FMPs in the region.
The final rule to implement the SBRM Omnibus Amendment was
published in the Federal Register on January 28, 2008 (73 FR 4736).
Following implementation of the SBRM amendment, a conservation
organization challenged the legality of the action (Oceana v. Locke).
The U.S. District Court initially found in favor of the Government on
all counts. However, that ruling was appealed by the plaintiffs, and in
2011 the U.S. Court of Appeals issued an opinion that found fault with
one element of the amendment--the prioritization process. The Court of
Appeals ordered the amendment be vacated and remanded to the agency for
further proceedings. The Court of Appeals' decision found that the
prioritization process ``grants the Fisheries Service substantial
discretion both to invoke and to make allocations according to a non-
standardized procedure,'' and, therefore, did not ``establish'' a
standardized methodology as required under the Magnuson-Stevens Act. On
December 29, 2011, NMFS published a rule in the Federal Register (76 FR
81844) removing all regulations implemented by the January 28, 2008,
SBRM final rule.
The Councils, in coordination with NMFS, initiated a revised SBRM
amendment to build upon the substantial work previously completed to
develop the SBRM and to address the limited deficiencies identified by
the Court. This amendment covers 13 FMPs, 40 managed species, and 14
types of fishing gear. The purpose of the amendment is to: Explain the
methods and processes by which bycatch is currently monitored and
assessed for fisheries in the region; determine whether these methods
and processes need to be modified and/or supplemented; establish
standards of precision for bycatch estimation for these fisheries; and,
thereby, document the SBRM established for all fisheries managed
through the FMPs of the Northeastern U.S. The amendment also addresses
the Appellate Court's concern over NMFS's ``substantial discretion both
to invoke and to make allocations according to a non-standardized
procedure'' cited in the Oceana v. Locke decision.
The Omnibus SBRM Amendment would establish an SBRM comprised of
seven elements: (1) The methods by which data and information on
discards are collected and obtained; (2) the methods by which the data
obtained through the mechanisms identified in element 1 are analyzed
and utilized to determine the appropriate allocation of at-sea
observers; (3) a performance measure by which the effectiveness of the
SBRM can be measured, tracked, and utilized to effectively allocate the
appropriate number of observer sea days; (4) a process to provide the
Councils with periodic reports on discards occurring in fisheries they
manage and on the effectiveness of the SBRM; (5) a measure to enable
the Councils to make changes to the SBRM through framework adjustments
and/or annual specification packages rather than full FMP amendments;
(6) a non-discretionary method to determine the available funding for
at-sea observers and a formulaic process for prioritizing at-sea
observer coverage allocations to match available funding; and (7) to
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implement consistent, cross-cutting observer service provider approval
and certification procedures and to enable the Councils to implement
either a requirement for industry-funded observers or an observer set-
aside program through a framework adjustment rather than an FMP
amendment.
We are soliciting public comments on the SBRM Omnibus Amendment and
its incorporated documents through the end of the comment period stated
in this notice of availability. A proposed rule that would implement
the revised SBRM Omnibus Amendment will be published in the Federal
Register for additional public comment, following NMFS's evaluation of
the proposed rule under the procedures of the Magnuson-Stevens Act.
Public comments on the proposed rule must be received by the end of the
comment period provided in this notice of availability of the SBRM
Amendment to be considered in the approval/disapproval decision on the
amendment. All comments received by February 13, 2015, whether
specifically directed to the SBRM Amendment or the proposed rule will
be considered in the approval/disapproval decision on the amendment. To
be considered, comments must be received by close of business on the
last day of the comment period. Comments received after that date will
not be considered in the decision to approve or disapprove the revised
SBRM Omnibus Amendment, including those postmarked or otherwise
transmitted by the last day of the comment period.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 9, 2014.
Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 2014-29216 Filed 12-12-14; 8:45 am]
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