81 FR 9413 - Standardized Bycatch Reporting Methodology

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 37 (February 25, 2016)

Page Range		9413-9418
FR Document		2016-04030

The National Marine Fisheries Service proposes a rule to implement the requirement under the Magnuson-Stevens Fishery Conservation and Management Act that all fishery management plans (FMPs) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in a fishery. The proposed rule provides guidance to regional fishery management councils and the Secretary of Commerce regarding the development, documentation, and review of such methodologies, commonly referred to as Standardized Bycatch Reporting Methodologies (SBRMs).

Federal Register, Volume 81 Issue 37 (Thursday, February 25, 2016)

[Federal Register Volume 81, Number 37 (Thursday, February 25, 2016)]
[Proposed Rules]
[Pages 9413-9418]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-04030]

[[Page 9413]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 151201999-6115-01]
RIN 0648-BF51

Standardized Bycatch Reporting Methodology

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The National Marine Fisheries Service proposes a rule to
implement the requirement under the Magnuson-Stevens Fishery
Conservation and Management Act that all fishery management plans
(FMPs) establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in a fishery. The proposed rule
provides guidance to regional fishery management councils and the
Secretary of Commerce regarding the development, documentation, and
review of such methodologies, commonly referred to as Standardized
Bycatch Reporting Methodologies (SBRMs).

DATES: Comments must be received by April 25, 2016.

ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2016-0002, by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0002 click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Send written comments to Karen Abrams, National
Marine Fisheries Service, 1315 East West Highway, SSMC3-OSF-SF3, Silver
Spring, MD 20910.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous), and will accept attachments to electronic comments in
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Karen Abrams 301-427-8508.

SUPPLEMENTARY INFORMATION:

Background

Section 303(a) of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) (16 U.S.C. 1853(a)) describes 15 required
provisions of any fishery management plan (FMP) prepared by a regional
fishery management council or the Secretary of Commerce with respect to
any fishery (hereafter ``Council'' includes the regional fishery
management councils and the Secretary of Commerce, as appropriate (see
16 U.S.C. 1854(c) and (g)). This proposed rule focuses on section
303(a)(11), which requires that all FMPs establish a standardized
reporting methodology to assess the amount and type of bycatch
occurring in the fishery, and include conservation and management
measures that, to the extent practicable, minimize bycatch and bycatch
mortality. The section 303(a)(11) standardized reporting methodology is
commonly referred to as a ``Standardized Bycatch Reporting
Methodology'' (SBRM), and this proposed rule defines, interprets, and
provides guidance on the basic requirements for the SBRM.
Section 303(a)(11) was added to the MSA by the Sustainable
Fisheries Act of 1996 (SFA). All FMPs have been amended to reflect the
SBRM requirement. The SFA also added a definition for ``bycatch''
(section 3(2), 16 U.S.C. 1802(2)) and National Standard 9 (section
301(a)(9), 16 U.S.C. 1851(a)(9)). The MSA defines ``bycatch'' as fish
which are harvested in a fishery, but which are not sold or kept for
personal use, and as including economic discards and regulatory
discards. The definition of bycatch does not include fish released
alive under a recreational catch and release fishery management
program. The MSA does not define ``standardized reporting methodology''
or any of the words contained within the phrase. Similar to section
303(a)(11), National Standard 9 (16 U.S.C. 1851(a)(9)) requires 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.'' However, National
Standard 9 does not address SBRM. NMFS has never issued regulations
that set forth the agency's interpretation of the SBRM provision.
To implement the 1996 SFA Amendments, NMFS developed advisory
guidelines for National Standard 9 (guidelines) in 1998, and further
amended the guidelines in 2008. The guidelines provide several
clarifications about bycatch requirements under the MSA, but do not
directly address SBRM. For example, the guidelines explain that
``bycatch'' includes the discard of whole fish at sea but does not
include legally-retained fish kept for personal, tribal or cultural use
(50 CFR 600.350(c)). In addition, to facilitate the evaluation of
conservation and management measures consistent with National Standard
9, the guidelines call for the development of a database on bycatch and
bycatch mortality in the fishery to the extent practicable. The
guidelines note that, to comply with National Standard 9 and MSA
sections 303(a)(11) (SBRM) and (12) (catch and release), a review and,
where necessary, improvement of data collection methods, data sources
and applications must be initiated for each fishery to assess bycatch
and bycatch mortality. See 50 CFR 600.350(d)(1).
In 2004, NMFS published Evaluating Bycatch: A National Approach to
Standardized Bycatch Monitoring Programs (NOAA Technical Memorandum
NMFS-F/SPO-66, October 2004, hereafter referred to as Evaluating
Bycatch), a report that was prepared by the agency's National Working
Group on Bycatch (available at http://www.nmfs.noaa.gov/by_catch/SPO_final_rev_12204.pdf). The report discusses regional bycatch and
fisheries issues, the advantages and disadvantages of different
reporting/monitoring measures, and precision goals for bycatch
estimates. See Evaluating Bycatch at Chapters 3, 4, and 5. However,
Evaluating Bycatch addresses more than bycatch as defined under the
MSA; it also addresses interactions with species protected under the
Endangered Species Act and Marine Mammal Protection Act. The report
also acknowledges that its goals ``may in some instances exceed minimum
statutory requirements.'' See Evaluating Bycatch at Appendix 5. In
summary, the report does not provide the agency's interpretation of the
basic requirements of complying with MSA section 303(a)(11).

Purpose and Scope

This proposed rule, which is promulgated pursuant to MSA section
305(d) (16 U.S.C. 1855(d)), is intended to establish national
requirements and

[[Page 9414]]

guidance for establishing and reviewing SBRMs under section 303(a)(11)
of the MSA. This rule solely addresses reporting methodology
requirements pertaining to ``bycatch'' as defined under the MSA. (See
the Background subheading for a definition.) The Endangered Species Act
and the Marine Mammal Protection Act create additional, important
bycatch-related responsibilities for NOAA Fisheries, but discussion of
such responsibilities is beyond the scope of this proposed rule. As
explained below, there are several reasons why NMFS is undertaking this
rulemaking.
NMFS has never issued regulations that set forth the basic
requirements of the SBRM provision of section 303(a)(11). Although the
National Standard 9 guidelines and Evaluating Bycatch discuss the SBRM
provision, neither provides an interpretation of, or purports to set
forth the basic requirements for complying with, the provision. In the
absence of a national SBRM regulation, some Councils appear to have
adopted the recommendations in Evaluating Bycatch as though they set
forth mandatory requirements for a bycatch reporting methodology.
Others have not followed the recommendations in Evaluating Bycatch, or
have adopted only some of them. NMFS believes that the apparent
confusion regarding the applicability of the recommendations in
Evaluating Bycatch necessitates clear guidance regarding what the SBRM
provision requires, what is needed for fishery conservation and
management, and what is feasible to implement.
In addition, since the 1996 SFA amendments, there have been legal
challenges to the SBRMs established in some FMPs. Court decisions have
focused largely on the specific allegations and records before the
courts, and have addressed only certain aspects of the SBRM provision
and the agency's implementation of that provision. Therefore, NMFS
believes that a comprehensive analysis of the MSA requirements in
section 303(a)(11) through a rulemaking action is necessary in order to
prevent inconsistent implementation of the provision, on a region-by-
region basis in response to fact-specific litigation.
Finally, public concern about bycatch and public expectations for
accessing bycatch information and estimates continues to grow, while
concerns from the regulated community about the costs for fishery
monitoring and reporting requirements also continues to increase. NMFS
intends to address some of these concerns in this action.

Overview of the Proposed Rule

As described in detail below, this proposed rule explains the
purpose of a standardized bycatch reporting methodology (SBRM), and
clarifies the activities associated with the phrase ``standardized
reporting methodology'' and the meaning of the term ``standardized.''
This action would require that a standardized reporting methodology be
appropriate for a particular fishery, and would provide required and
discretionary factors for the Councils to consider when establishing or
reviewing a methodology. Recognizing that there may be a future need to
adjust how an SBRM is implemented, NMFS also proposes requirements for
an adjustment process, if a Council is interested in exploring such a
process. Finally, this proposed rule would provide for periodic review
of existing SBRMs.

Purpose of an SBRM

Proposed section 600.1600 states that the purpose of a standardized
reporting methodology is to inform the assessment of the amount and
type of bycatch occurring in the fishery for use in developing
conservation and management measures that, to the extent practicable,
minimize bycatch and bycatch mortality. See 16 U.S.C. 1853(a)(11). The
text refers to ``inform[ing]'' assessment of bycatch, as the data
resulting from an SBRM are used along with other information for
bycatch assessment and estimation purposes. (See Activities Associated
with an SBRM, below, for further explanation.) Proposed section
600.1610(a)(2)(i) requires that the data resulting from the methodology
be useful, in conjunction with other relevant sources of data, in
meeting the purpose of the methodology as described in section 600.1600
and fishery-specific bycatch objectives. (See Considerations for
Establishing or Reviewing an SBRM, below, for an explanation of other
required and discretionary factors.)

Activities Associated With an SBRM

An SBRM could include one or a combination of data collection and
reporting programs, such as observer programs, electronic monitoring
and reporting technologies, and self-reported mechanisms (e.g.,
recreational sampling, and industry-reported catch and discards).
Proposed section 600.1605(a) defines ``standardized reporting
methodology'' with reference to the collection, recording, and
reporting of bycatch data in a fishery, which is connected to, but
distinct from the methods used to assess bycatch and the development of
measures to minimize bycatch or bycatch mortality. NMFS believes that
it is important to distinguish between methods to collect and report
bycatch data in a fishery with actions to assess and minimize bycatch.
This distinction will help clarify the key policy choices and
objectives associated with establishing a reporting methodology, so as
not to confuse those choices with statistical and technical approaches
for estimating bycatch that are inherently scientific and data
dependent or the policy choices associated with developing measures to
minimize bycatch.
The distinction between data collecting, reporting, etc., and
developing management measures is reflected in part in the fact that
section 303(a)(11) requires the establishment of SBRMs, and separately,
section 303(a)(11) and National Standard 9 requires that FMPs include
conservation and management measures that, to the extent practicable,
minimize bycatch and bycatch mortality. As a practical matter, there
are multiple steps leading to the development of conservation and
management measures that address bycatch. First, bycatch data are
collected, recorded, and reported pursuant to an SBRM. The 2011 U.S.
National Bycatch Report (NOAA Technical Memorandum NMFS-F/SPO-117E)
describes how data from SBRMs are used in combination with other
information, such as fishing effort, fishery independent data, and
other data (pages 90, 155, 219, 319, 350, and 373), to develop total
estimates of bycatch by fishery. Second, bycatch data from an SBRM, as
well as other information about the fishery, are used to assess (e.g.
evaluate or estimate) the amount and type of bycatch in a fishery. A
variety of different models can be used to estimate bycatch. The models
and combination of data used to estimate bycatch vary from region to
region and across fisheries, depending on a variety of factors,
including the characteristics of the fishery and the data available to
manage the fishery. The resulting estimates are often provided in Stock
Assessment and Fishery Evaluation (SAFE) reports. Finally, bycatch data
and estimates are used to inform a Council in the development of
conservation and management measures to minimize bycatch and bycatch
mortality to the extent practicable. (This information may also be used
by Councils for other purposes, such as for in-season or post-season
management of a fishery, and for stock assessments.)

[[Page 9415]]

One source of confusion in Evaluating Bycatch is that the report
conflates the collection and reporting of bycatch data with the
assessment of such data when the report states that ``the combination
of data collection and analyses that is used to estimate bycatch in a
fishery constitutes the SBRM for the fishery'' (Appendix 5). NMFS does
not believe that the estimation methods must be included in an FMP as
part of the standardized reporting methodology. However, neither this
rule nor the statute precludes discussion of those estimation methods
in an FMP.
While defining ``standardized reporting methodology'' as something
different than bycatch assessment and management measures, NMFS
recognizes the interconnectedness of these steps. This proposed rule
addresses the interrelation between these steps by explaining the
purpose of SBRM (proposed section 600.1600) and requiring that data
resulting from the methodology be useful, in conjunction with other
relevant sources of data, in meeting the purpose of the SBRM and
fishery-specific bycatch objectives (proposed section
600.1610((a)(2)(i)). (See Purpose of an SBRM, above.)

Meaning of ``Standardized''

The proposed rule also clarifies that ``standardized'' does not
mean that reporting methodologies must be standardized at a regional or
national level. Proposed section 600.1605(a) explains that a
standardized reporting methodology may vary from one fishery to another
(including among fisheries managed in the same FMP). However, the
methodology must provide a consistent approach for collecting,
recording, and reporting bycatch data within a fishery. For example, a
reporting methodology that relies on self-reported logbook data may be
appropriate for one fishery, while at-sea observer coverage may be more
appropriate for other fisheries. As long as the reporting methodology
for a fishery provides for a consistent approach for collecting,
recording, and reporting bycatch data for all the participants in that
fishery, then the methodology would be considered ``standardized''
under the proposed rule's definition.

Considerations for Establishing or Reviewing an SBRM

This proposed rule acknowledges that whether a methodology is
appropriate for a fishery will depend on the specific circumstances of
the fishery. This proposed rule frames policy choices associated with
establishing an SBRM by providing ``required factors'' for establishing
or reviewing an SBRM (proposed section 600.1610(a)(2)(i)), and by
recommending additional factors that may be considered by the Councils
(proposed section 600.1610(a)(2)(ii)).
Proposed section 600.1610(a)(2)(i) states that data resulting from
the methodology must be useful, in conjunction with other relevant
sources of data, in meeting the purpose of the methodology as described
in section 600.1600 and fishery-specific bycatch objectives. This
requies a Council, when establishing or reviewing a methodology, to
consider the conservation and management objectives of the fishery with
respect to bycatch, the data quality associated with the methodology,
and information about the characteristics of bycatch in the fishery,
when available (such as the amount of bycatch occurring in the fishery,
the importance or bycatch in estimating the total mortality of fish
stocks, and the importance of bycatch to related ecosystems). Because
data resulting from an SBRM will be used, along with other relevant
information, to inform the assessment of the amount and type of bycatch
occurring in a fishery, a Council should consult with its scientific
and statistical committee, advisory panels, and the NOAA science
centers, as appropriate, on data elements, reporting frequency, and
other design and methodology factors (proposed section 600.1610(b)).
Another required consideration when establishing or reviewing a
methodology is its feasibility, from cost, technical, and operational
perspectives. In addition, the proposed rule requires that each SBRM be
designed to be implemented within available funding.
The proposed rule also recognizes that other factors may be
relevant to establishing an SBRM. Therefore, proposed section
600.1610(a)(2)(ii) provides that Councils may also consider the overall
magnitude and/or economic impact of the fishery, and the scientific
methods and techniques available to collect and report bycatch data
that could improve the quality of the bycatch estimates.
NMFS recognizes that a court decision held that operational
constraints (such as funding) are not an excuse for failing to
``establish'' an SBRM. (See Oceana v. Locke, 670 F.3d 1238 (D.C. Cir.
2011).) However, NMFS does not believe that this court decision stands
for the proposition that costs cannot be taken into consideration at
all when developing or revising an SBRM. The case did not discuss
National Standard 7, which explicitly requires that conservation and
management measures (which would include data collection, recording,
and reporting requirements employed under an SBRM) ``where practicable,
minimize costs and unnecessary duplication'' (section 301(a)(7), 16
U.S.C. 1851(a)(7)). If the Council proposes an FMP or FMP amendment
with an SBRM that is not designed to be implemented within available
funding or that is not feasible, NMFS may need to disapprove or
partially disapprove that FMP amendment. Therefore, this proposed rule
provides that Councils must consider feasibility when establishing or
reviewing an SBRM.
Proposed section 600.1610(a)(2)(i) requires that data resulting
from the methodology be useful, in conjunction with other relevant
sources of data, in meeting the purpose of the methodology as described
in section 600.1600 and fishery-specific bycatch objectives. However,
proposed section 600.1610(a)(2)(i) does not include specific standards
regarding the precision or accuracy of bycatch estimates, as NMFS does
not believe that section 303(a)(11) requires that an SBRM produce data
that will generate estimates to a particular standard of statistical
accuracy or precision. (See also 50 CFR 600.350(d)(2), recognizing
under National Standard 9 Guidelines that ``[d]ue to limitations on the
information available, fishery managers may not be able to generate
precise estimates of bycatch and bycatch mortality or other effects''
for measures under consideration.) As explained above, other sources of
data--beyond data from an SBRM--are used in bycatch assessments. In
addition, different fisheries have different bycatch issues and
concerns. This proposed rule recognizes the diversity of fisheries
across the country and provides for a fishery-specific evaluation of
the factors outlined in proposed section 600.1610(a)(2), while still
ensuring that SBRMs will produce data that will be useful in meeting
the statutory purpose of SBRMs. Based on its evaluation of the factors,
a Council may determine that different levels of uncertainty are
acceptable for different fisheries. For example, although an increase
in observer coverage levels in a fishery would reduce uncertainty of
bycatch estimates, such an increase may not be feasible from a cost or
safety standpoint, may not be necessary to assess bycatch in the
fishery, or may not be useful in developing conservation and management
measures for bycatch in that fishery. The proposed rule would allow a
Council to evaluate whether an incremental improvement in data quality
is justified in light of the

[[Page 9416]]

purpose of SBRM and other factors outlined in sections
600.1610(a)(2)(i) and (ii).
Some courts have addressed bycatch estimates or the quality of data
in the context of particular FMPs or amendments. (See, e.g., NRDC v.
Evans, 168 F.Supp.2d 1149, 1154 (N.D. Cal. 2001), asserting that NMFS
failed to address the SBRM requirement and its ``duty to obtain
accurate bycatch data''; and Oceana v. Evans, 384 F.Supp.2d 203, 234-
235 (D.D.C. 2005), finding that NMFS failed to analyze what type of
program would ``succeed in producing the statistically reliable
estimates of bycatch needed to better manage the fishery'' and to
address an accuracy concern in a scientific study.) However, these
opinions were based on the specific records before the courts, and did
not engage in comprehensive statutory construction of the SBRM
provision. NMFS believes that the approach of this proposed rule is
consistent with MSA section 303(a)(11) and will ensure that SBRMs are
developed consistent with the statutory purpose for SBRMs (proposed
section 600.1600), while allowing Councils to address the unique
circumstances of particular fisheries.
NMFS clarifies that the Evaluating Bycatch report should not be
treated as the agency's interpretation of the SRBM provision; that is
the purpose of this proposed rule. A Council may continue to use the
Evaluating Bycatch report, as explained below. NMFS notes that the
Evaluating Bycatch report discusses accuracy and precision in the
context of bycatch estimates from observer data. (See Evaluating
Bycatch at 35-39.) The report describes the accuracy of an estimate as
``the difference between the mean of the sample and the true population
value,'' and the precision of an estimate as ``essentially how
repeatable an observation would be if a number of independent trials
were to be conducted.'' (Id. at 38.) To address these issues, the
Evaluating Bycatch report provided ``precision goals'' expressed as
``coefficient of variation'' (CV), which is the ratio of the square
root of the variance of the bycatch estimate (i.e. the standard error)
to the estimate itself. The lower the CV, the more precise (and less
uncertain) is the bycatch estimate. (Id. at 35.) The report makes clear
that there are a variety of situations in which precision goals for
bycatch estimates may not be useful to consider when designing bycatch
data collection and reporting methods, and in which achieving such
goals may not be feasible. The report lists numerous caveats for using
precision goals in the context of bycatch reporting/monitoring
programs. (Id. at Executive Summary, 58.)
While observer programs may be included as part of an SBRM, the MSA
does not require their inclusion in every SBRM. (See 16 U.S.C.
1853(a)(11), (b)(8).) Moreover, under this proposed rule, bycatch
estimation is not included in the definition of standardized reporting
methodology. If a Council finds that it would be helpful to consider CV
goals for bycatch estimates when it designs an SBRM, this proposed rule
would not preclude that. A Council may continue to use the Evaluating
Bycatch report for information on CV goals, considerations for observer
programs, etc., as appropriate, although NMFS advises Councils to take
into consideration that Evaluating Bycatch is over a decade old, and
that technologies and science have evolved considerably since its
publication in 2004.

Documenting the Establishment of an SBRM

To document that an SBRM is ``established,'' proposed section
1600.1610(a)(1) requires that every FMP contain a description of the
required bycatch data collection, recording, and reporting procedures
that constitute the SBRM for each fishery managed under it. The
description must also provide a statement explaining why the
methodology is appropriate for the fishery as guided by mandatory and
discretionary factors described in proposed section 1600.1610(a)(2).
The explanation required by proposed section 1600.1610(a)(1) must be
based on a thorough analysis of all the factors evaluated in
establishing a standardized reporting methodology. The explanation must
be contained in the FMP, but it may incorporate by reference analyses
in FMPs, FMP amendments, Stock Assessment and Fishery Evaluation (SAFE)
reports or other documents. The description and explanation of the SBRM
will clarify for the public and interested stakeholders the policy
choices that the Council considered in establishing the SBRM.

Adaptable Implementation of an SBRM

With this proposed rule, NMFS also seeks to ensure that the
Councils have sufficient flexibility to adjust implementation of an
established SBRM in a way that is clear to the public, but that does
not necessarily require an FMP amendment. This proposed rule provides
that, if a Council anticipates that adjustments will be necessary to
implement the methodology, the Council may, consistent with the
requirements of the MSA and other applicable law, consider adopting a
process in an FMP to adjust implementation of the methodology. A
Council may consider adopting such a process based on factors, which
include, but are not limited to, available funding, management
contingencies, or scientific priorities. If such a process is adopted,
the FMP must describe the process by which the Councils or NMFS plan to
implement the desired adjustments to an SBRM. (See proposed section
600.1610(c)). Such adjustments may include fine tuning the intensity,
focus, or frequency of the required data collection procedures
specified in the FMP. Such a process could reflect existing annual or
multi-year processes already in use by a Council, such as framework
adjustments or annual specifications. The process must clearly describe
considerations that will drive those adjustments. The need for such a
process may be particularly relevant to SBRMs that are heavily
dependent on the use of observers to collect bycatch data. NMFS also
believes that there may be instances in which changes to the underlying
conservation and management objectives for the fishery, funding,
available technology, or other factors may trigger a complete review
and possible revision of the SBRM. It is important that the public
understands, upfront, the limits of applying such adjustments under an
established SBRM and how the Council will determine that a reevaluation
of the established methodology is warranted. With this proposed rule,
NMFS seeks to clarify how an SBRM can be ``established'' and
``standardized'' while still providing necessary flexibility to
implement the SBRM.

Review of SBRMs

Proposed section 600.1610(d) provides that all FMPs must be
consistent with this rule within 5 years of finalizing the rule. To
verify consistency with this rule, Councils should conduct a review of
their existing SBRMs. The review should provide information to
determine whether or not an FMP needs to be amended. The analysis and
conclusions from the review should be documented but do not need to be
contained in an FMP.
There are several potential outcomes of the review. A review could
find that there are FMPs with existing SBRMs that are consistent with
this rule, in which case no FMP amendments are necessary. Other FMPs
may define SBRMs more expansively than the definition in this proposed
rule. For example, they may contain components that are consistent with
this proposed rule, along with additional components

[[Page 9417]]

that are not precluded by this rule, but are not minimally required.
Those FMPs may not require further amendments. Still other FMPs may
describe procedures or activities that comprise an SBRM but do not
explain them in a manner consistent with this rule. In such cases, an
FMP amendment may be warranted.
After the initial review, Councils should periodically review
standardized reporting methodologies to verify continued compliance
with the MSA and this rule. Such a review should be conducted at least
once every 5 years. Proposed section 600.1610(d) is consistent with the
review and improvement of data collection methods, data sources, and
applications described under the National Standard 9 guidelines at 50
CFR 600.350(d)(1).

National Environmental Policy Act

NMFS has made a preliminary determination to apply a Categorical
Exclusion to this action under the National Environmental Policy Act
due to the procedural nature of this action. If and when the provisions
of this proposed rule are applied to specific FMPs, the Councils and/or
the Secretary would prepare an Environmental Impact Statement (EIS) or
Environmental Assessment (EA), as appropriate. NMFS solicits comments
on this preliminary determination to use a categorical exclusion.

Classification

Pursuant to section 305(d) of the Magnuson-Stevens Act (16 U.S.C.
1855(d)), the NMFS Assistant Administrator has determined that this
proposed rule is consistent with the other provisions of the Magnuson-
Stevens Act and other applicable laws, subject to further consideration
after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The factual basis for this determination is as follows.
The purpose of the action is to articulate an interpretation of the
basic requirements of the SBRM provision of section 303(a)(11) of the
MSA through a rulemaking to promote transparency and consistency. Key
components of the proposed rule include:
(1) A definition of ``standardized reporting methodology'' as
applicable only to the definition of ``bycatch'' in the MSA and
pertaining only to data collection, reporting and recording activities
(not bycatch assessment and estimation);
(2) clarified procedures for establishing, documenting, and
reviewing SBRMs under the MSA; and
(3) an option for adaptable implementation to allow for operational
flexibility.
The proposed rule defines a standardized reporting methodology as
an established procedure or procedures used to collect, record, and
report bycatch data in a fishery or subset of a fishery. It would
clarify that the purpose of the methodology is to provide data that
will inform the assessment of the amount and type of bycatch occurring
in a fishery for use in developing conservation and management measures
that, to the extent practicable, minimize bycatch and bycatch
mortality. However, the phrase ``standardized reporting methodology''
in section 303(a)(11) refers only to bycatch data collection,
recording, and reporting procedures.
The action proposes a set of factors to help frame policy choices
in establishing or reviewing an SBRM. Data resulting from the
methodology must be useful, in conjunction with other relevant sources
of data, in meeting the purpose of the SBRM and fishery-specific
bycatch objectives. This would require Councils to consider
conservation and management objectives related to bycatch for a
fishery, the quality of the data associated with the methodology, and
information about the characteristics of bycatch in the fishery, when
available (such as the amount of bycatch occurring in the fishery, the
importance of bycatch in estimating the total mortality of fish stocks,
and the importance of bycatch to related ecosystems). The proposed rule
also would require that an SBRM be feasible and designed to be
implemented with available funding, and addresses the need for an SBRM
to be adaptable in response to changes in funding levels or other
circumstances. Finally, the proposed rule provides that existing SBRMs
should be reviewed at least once every five years. The proposed rule
does not require that an SBRM be designed to achieve a particular
performance standard or precision goal.
Small entities include ``small businesses,'' ``small
organizations,'' and ``small governmental jurisdictions.'' The Small
Business Administration (SBA) has established size standards for all
major industry sectors in the United States, including commercial
finfish harvesters (NAICS code 114111), commercial shellfish harvesters
(NAICS code 114112), other commercial marine harvesters (NAICS code
114119), for-hire businesses (NAICS code 487210), marinas (NAICS code
713930), seafood dealers/wholesalers (NAICS code 424460), and seafood
processors (NAICS code 311710). A business primarily involved in
finfish harvesting is classified as a small business if it is
independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has combined annual receipts
not in excess of $20.5 million for all its affiliated operations
worldwide. For commercial shellfish harvesters, the other qualifiers
apply, and the receipts threshold is $5.5 million. For other commercial
marine harvesters, for-hire businesses, and marinas, the other
qualifiers apply, and the receipts threshold is $7.5 million. A
business primarily involved in seafood processing is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual employment not in excess of 500 employees for all its
affiliated operations worldwide. For seafood dealers/wholesalers, the
other qualifiers apply, and the employment threshold is 100 employees.
A small organization is any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.
Small governmental jurisdictions are governments of cities, counties,
towns, townships, villages, school districts, or special districts,
with populations of less than 50,000.
All FMPs have established SBRMs according to the requirements in
303(a)(11). This proposed rule would provide national guidance and
improved clarity about implementing the existing requirements. The
proposed rule would provide the Councils and the Secretary a five-year
period within which to review FMPs to make any necessary amendments.
Because the proposed rule would clarify existing requirements for
FMPs and is procedural in nature, it would not directly regulate a
particular fishery and will not directly alter the behavior of any
entities operating in federally managed fisheries. Thus, no direct
economic effects on commercial harvesting businesses, for-hire
businesses, marinas, seafood dealers/wholesalers, or seafood processors
are expected to result from this action. Therefore, no small entities
would be directly affected by this rule.
As a result of the information above, a reduction in profits for a
substantial

[[Page 9418]]

number of small entities is not expected. Because this action, if
implemented, is not expected to have a significant adverse economic
effect on the profits of a substantial number of small entities, an
initial regulatory flexibility analysis is not required and none has
been prepared.
No duplicative, overlapping, or conflicting Federal rules have been
identified. This rule would not establish any new reporting or record-
keeping requirements.

List of Subjects in 50 CFR Part 600

Administrative practice and procedure, Bycatch, Fisheries,
Standardized Reporting Methodology.

Dated: February 19, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 600 as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for 50 CFR part 600 continues to read as
follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

0
2. Add a subpart R to read as follows:

SUBPART R--STANDARDIZED BYCATCH REPORTING METHODOLOGY

Sec.
600.1600 Purpose and scope.
600.1605 Definitions and word usage.
600.1610 Establishing and reviewing standardized bycatch reporting
methodologies in fishery management plans.

Sec. 600.1600 Purpose and scope.

Section 303(a)(11) of the Magnuson-Stevens Act requires any fishery
management plan to establish a standardized bycatch reporting
methodology. 16 U.S.C. 1853(a)(11). The purpose of a standardized
reporting methodology is to inform the assessment of the amount and
type of bycatch occurring in the fishery for use in developing
conservation and management measures that, to the extent practicable,
minimize bycatch and bycatch mortality. This subpart sets forth
requirements for and guidance on establishing and reviewing a
standardized reporting methodology.

Sec. 600.1605 Definitions and word usage.

(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, standardized reporting methodology means
an established procedure or procedures used to collect, record, and
report bycatch data in a fishery or subset of a fishery (hereafter
referred to as ``fishery''). ``Standardized'' procedures may vary from
one fishery to another, but must provide a consistent approach for
collecting, recording, and reporting bycatch data within a fishery.
(b) Word usage. The terms ``must'', ``should'', ``may'', ``will'',
``could'', and ``can'' are used in the same manner as in Sec.
600.305(c). The term ``Council'' is used in the same manner as in Sec.
600.305(c), and includes the regional fishery management Councils and
the Secretary of Commerce, as appropriate (16 U.S.C. 1854(c)and (g)).

Sec. 600.1610 Establishing and reviewing standardized bycatch
reporting methodologies in fishery management plans.

(a) Establishing a standardized reporting methodology--(1) Fishery
management plan contents. All fishery management plans (FMPs) must
clearly describe a standardized reporting methodology for each fishery
managed under it. The description must state the required bycatch data
collection, recording, and reporting procedures for each fishery, which
may include, but are not limited to, one or more of the following:
Observer programs, electronic monitoring and reporting technologies,
and self-reported mechanisms (e.g., recreational sampling, industry-
reported catch and discard data). In addition, the description must
provide an explanation of why the methodology is appropriate for the
fishery. The explanation must be based on a thorough analysis of the
factors specified in paragraph (a)(2)(i) and (ii) of this section. The
explanation may incorporate by reference analyses in FMPs, FMP
amendments, Stock Assessment and Fishery Evaluation (SAFE) reports, or
other documents.
(2) Factors in establishing or reviewing a standardized reporting
methodology. Whether a methodology is appropriate will depend on the
specific circumstances of the fishery, as guided by the following
factors:
(i) Required factors. Data resulting from the methodology must be
useful, in conjunction with other relevant sources of data, in meeting
the purpose described in Sec. 600.1600 and fishery-specific bycatch
objectives. This requires Councils, when establishing or reviewing a
methodology, to consider the conservation and management objectives
regarding bycatch in the fishery and the quality of the data associated
with the methodology. Councils must also consider information about the
characteristics of bycatch in the fishery, when available, such as the
amount of bycatch occurring in the fishery, the importance of bycatch
in estimating the total mortality of fish stocks, and the importance of
bycatch to related ecosystems. In addition, the methodology must be
feasible from cost, technical, and operational perspectives, and must
be designed to be implemented with available funding.
(ii) Additional factors. When establishing or reviewing a
standardized reporting methodology, a Council may also consider the
overall magnitude and/or economic impact of the fishery, and the
scientific methods and techniques available to collect and report
bycatch data that could improve the quality of the bycatch estimates.
(b) Consultation. A Council should consult with its scientific and
statistical committee, advisory panels, and the NOAA science centers as
appropriate on data elements, reporting frequency, and other design and
methodology factors.
(c) Adaptable implementation. If a Council anticipates that
adjustments will be necessary to implement the methodology, the Council
may, consistent with the requirements of the MSA and other applicable
law, consider adopting a process in an FMP to adjust implementation of
the methodology. The Council may consider adopting such a process based
on factors, which include, but are not limited to, available funding,
management contingencies, or scientific priorities. If such a process
is adopted, the FMP must:
(1) Describe the process under which the implementation of a
methodology will be adjusted;
(2) Specify what adjustments (e.g., changes in the intensity,
focus, or frequency of required bycatch data collection, recording, and
reporting procedures) are authorized under the process;
(3) Explain why the adjustments may be needed;
(4) Describe how and when the adjustments will be made;
(5) Describe the limits to the adjustments; and
(6) Describe how the Council will determine that a reevaluation of
the established methodology is warranted.
(d) Review of FMPs. All FMPs must be consistent with this rule
within 5 years of the effective date of this rule. Thereafter, Councils
should conduct a review of standardized reporting methodologies at
least once every five years in order to verify continued compliance
with the MSA and this rule.

[FR Doc. 2016-04030 Filed 2-24-16; 8:45 am]
BILLING CODE 3510-22-P

9414 Federal Register / Vol. 81, No. 37 / Thursday, February 25, 2016 / Proposed Rules

guidance for establishing and reviewing Overview of the Proposed Rule connected to, but distinct from the
SBRMs under section 303(a)(11) of the As described in detail below, this methods used to assess bycatch and the
MSA. This rule solely addresses proposed rule explains the purpose of a development of measures to minimize
reporting methodology requirements standardized bycatch reporting bycatch or bycatch mortality. NMFS
pertaining to ‘‘bycatch’’ as defined methodology (SBRM), and clarifies the believes that it is important to
under the MSA. (See the Background activities associated with the phrase distinguish between methods to collect
subheading for a definition.) The ‘‘standardized reporting methodology’’ and report bycatch data in a fishery with
Endangered Species Act and the Marine and the meaning of the term actions to assess and minimize bycatch.
Mammal Protection Act create ‘‘standardized.’’ This action would This distinction will help clarify the key
additional, important bycatch-related require that a standardized reporting policy choices and objectives associated
responsibilities for NOAA Fisheries, but methodology be appropriate for a with establishing a reporting
discussion of such responsibilities is particular fishery, and would provide methodology, so as not to confuse those
beyond the scope of this proposed rule. required and discretionary factors for choices with statistical and technical
As explained below, there are several the Councils to consider when approaches for estimating bycatch that
reasons why NMFS is undertaking this establishing or reviewing a are inherently scientific and data
rulemaking. methodology. Recognizing that there dependent or the policy choices
may be a future need to adjust how an associated with developing measures to
NMFS has never issued regulations
SBRM is implemented, NMFS also minimize bycatch.
that set forth the basic requirements of
the SBRM provision of section proposes requirements for an The distinction between data
303(a)(11). Although the National adjustment process, if a Council is collecting, reporting, etc., and
Standard 9 guidelines and Evaluating interested in exploring such a process. developing management measures is
Bycatch discuss the SBRM provision, Finally, this proposed rule would reflected in part in the fact that section
neither provides an interpretation of, or provide for periodic review of existing 303(a)(11) requires the establishment of
purports to set forth the basic SBRMs. SBRMs, and separately, section
requirements for complying with, the 303(a)(11) and National Standard 9
Purpose of an SBRM requires that FMPs include conservation
provision. In the absence of a national
SBRM regulation, some Councils appear Proposed section 600.1600 states that and management measures that, to the
to have adopted the recommendations the purpose of a standardized reporting extent practicable, minimize bycatch
in Evaluating Bycatch as though they set methodology is to inform the and bycatch mortality. As a practical
forth mandatory requirements for a assessment of the amount and type of matter, there are multiple steps leading
bycatch reporting methodology. Others bycatch occurring in the fishery for use to the development of conservation and
have not followed the recommendations in developing conservation and management measures that address
in Evaluating Bycatch, or have adopted management measures that, to the bycatch. First, bycatch data are
only some of them. NMFS believes that extent practicable, minimize bycatch collected, recorded, and reported
the apparent confusion regarding the and bycatch mortality. See 16 U.S.C. pursuant to an SBRM. The 2011 U.S.
applicability of the recommendations in 1853(a)(11). The text refers to National Bycatch Report (NOAA
Evaluating Bycatch necessitates clear ‘‘inform[ing]’’ assessment of bycatch, as Technical Memorandum NMFS–F/SPO–
guidance regarding what the SBRM the data resulting from an SBRM are 117E) describes how data from SBRMs
provision requires, what is needed for used along with other information for are used in combination with other
fishery conservation and management, bycatch assessment and estimation information, such as fishing effort,
and what is feasible to implement. purposes. (See Activities Associated fishery independent data, and other data
with an SBRM, below, for further (pages 90, 155, 219, 319, 350, and 373),
In addition, since the 1996 SFA explanation.) Proposed section to develop total estimates of bycatch by
amendments, there have been legal 600.1610(a)(2)(i) requires that the data fishery. Second, bycatch data from an
challenges to the SBRMs established in resulting from the methodology be SBRM, as well as other information
some FMPs. Court decisions have useful, in conjunction with other about the fishery, are used to assess (e.g.
focused largely on the specific relevant sources of data, in meeting the evaluate or estimate) the amount and
allegations and records before the purpose of the methodology as type of bycatch in a fishery. A variety
courts, and have addressed only certain described in section 600.1600 and of different models can be used to
aspects of the SBRM provision and the fishery-specific bycatch objectives. (See estimate bycatch. The models and
agency’s implementation of that Considerations for Establishing or combination of data used to estimate
provision. Therefore, NMFS believes Reviewing an SBRM, below, for an bycatch vary from region to region and
that a comprehensive analysis of the explanation of other required and across fisheries, depending on a variety
MSA requirements in section 303(a)(11) discretionary factors.) of factors, including the characteristics
through a rulemaking action is of the fishery and the data available to
necessary in order to prevent Activities Associated With an SBRM manage the fishery. The resulting
inconsistent implementation of the An SBRM could include one or a estimates are often provided in Stock
provision, on a region-by-region basis in combination of data collection and Assessment and Fishery Evaluation
response to fact-specific litigation. reporting programs, such as observer (SAFE) reports. Finally, bycatch data
Finally, public concern about bycatch programs, electronic monitoring and and estimates are used to inform a
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and public expectations for accessing reporting technologies, and self-reported Council in the development of
bycatch information and estimates mechanisms (e.g., recreational sampling, conservation and management measures
continues to grow, while concerns from and industry-reported catch and to minimize bycatch and bycatch
the regulated community about the costs discards). Proposed section 600.1605(a) mortality to the extent practicable. (This
for fishery monitoring and reporting defines ‘‘standardized reporting information may also be used by
requirements also continues to increase. methodology’’ with reference to the Councils for other purposes, such as for
NMFS intends to address some of these collection, recording, and reporting of in-season or post-season management of
concerns in this action. bycatch data in a fishery, which is a fishery, and for stock assessments.)

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Federal Register / Vol. 81, No. 37 / Thursday, February 25, 2016 / Proposed Rules 9415

One source of confusion in Evaluating establishing or reviewing an SBRM collection, recording, and reporting
Bycatch is that the report conflates the (proposed section 600.1610(a)(2)(i)), and requirements employed under an
collection and reporting of bycatch data by recommending additional factors that SBRM) ‘‘where practicable, minimize
with the assessment of such data when may be considered by the Councils costs and unnecessary duplication’’
the report states that ‘‘the combination (proposed section 600.1610(a)(2)(ii)). (section 301(a)(7), 16 U.S.C. 1851(a)(7)).
of data collection and analyses that is Proposed section 600.1610(a)(2)(i) If the Council proposes an FMP or FMP
used to estimate bycatch in a fishery states that data resulting from the amendment with an SBRM that is not
constitutes the SBRM for the fishery’’ methodology must be useful, in designed to be implemented within
(Appendix 5). NMFS does not believe conjunction with other relevant sources available funding or that is not feasible,
that the estimation methods must be of data, in meeting the purpose of the NMFS may need to disapprove or
included in an FMP as part of the methodology as described in section partially disapprove that FMP
standardized reporting methodology. 600.1600 and fishery-specific bycatch amendment. Therefore, this proposed
However, neither this rule nor the objectives. This requies a Council, when rule provides that Councils must
statute precludes discussion of those establishing or reviewing a consider feasibility when establishing or
estimation methods in an FMP. methodology, to consider the reviewing an SBRM.
While defining ‘‘standardized conservation and management Proposed section 600.1610(a)(2)(i)
reporting methodology’’ as something objectives of the fishery with respect to requires that data resulting from the
different than bycatch assessment and bycatch, the data quality associated with methodology be useful, in conjunction
management measures, NMFS the methodology, and information about with other relevant sources of data, in
recognizes the interconnectedness of the characteristics of bycatch in the
meeting the purpose of the methodology
these steps. This proposed rule fishery, when available (such as the
as described in section 600.1600 and
addresses the interrelation between amount of bycatch occurring in the
fishery-specific bycatch objectives.
these steps by explaining the purpose of fishery, the importance or bycatch in
However, proposed section
SBRM (proposed section 600.1600) and estimating the total mortality of fish
600.1610(a)(2)(i) does not include
requiring that data resulting from the stocks, and the importance of bycatch to
specific standards regarding the
methodology be useful, in conjunction related ecosystems). Because data
precision or accuracy of bycatch
with other relevant sources of data, in resulting from an SBRM will be used,
estimates, as NMFS does not believe
meeting the purpose of the SBRM and along with other relevant information,
that section 303(a)(11) requires that an
fishery-specific bycatch objectives to inform the assessment of the amount
(proposed section 600.1610((a)(2)(i)). and type of bycatch occurring in a SBRM produce data that will generate
(See Purpose of an SBRM, above.) fishery, a Council should consult with estimates to a particular standard of
its scientific and statistical committee, statistical accuracy or precision. (See
Meaning of ‘‘Standardized’’ also 50 CFR 600.350(d)(2), recognizing
advisory panels, and the NOAA science
The proposed rule also clarifies that centers, as appropriate, on data under National Standard 9 Guidelines
‘‘standardized’’ does not mean that elements, reporting frequency, and other that ‘‘[d]ue to limitations on the
reporting methodologies must be design and methodology factors information available, fishery managers
standardized at a regional or national (proposed section 600.1610(b)). Another may not be able to generate precise
level. Proposed section 600.1605(a) required consideration when estimates of bycatch and bycatch
explains that a standardized reporting establishing or reviewing a methodology mortality or other effects’’ for measures
methodology may vary from one fishery is its feasibility, from cost, technical, under consideration.) As explained
to another (including among fisheries and operational perspectives. In above, other sources of data—beyond
managed in the same FMP). However, addition, the proposed rule requires that data from an SBRM—are used in
the methodology must provide a each SBRM be designed to be bycatch assessments. In addition,
consistent approach for collecting, implemented within available funding. different fisheries have different bycatch
recording, and reporting bycatch data The proposed rule also recognizes issues and concerns. This proposed rule
within a fishery. For example, a that other factors may be relevant to recognizes the diversity of fisheries
reporting methodology that relies on establishing an SBRM. Therefore, across the country and provides for a
self-reported logbook data may be proposed section 600.1610(a)(2)(ii) fishery-specific evaluation of the factors
appropriate for one fishery, while at-sea provides that Councils may also outlined in proposed section
observer coverage may be more consider the overall magnitude and/or 600.1610(a)(2), while still ensuring that
appropriate for other fisheries. As long economic impact of the fishery, and the SBRMs will produce data that will be
as the reporting methodology for a scientific methods and techniques useful in meeting the statutory purpose
fishery provides for a consistent available to collect and report bycatch of SBRMs. Based on its evaluation of the
approach for collecting, recording, and data that could improve the quality of factors, a Council may determine that
reporting bycatch data for all the the bycatch estimates. different levels of uncertainty are
participants in that fishery, then the NMFS recognizes that a court acceptable for different fisheries. For
methodology would be considered decision held that operational example, although an increase in
‘‘standardized’’ under the proposed constraints (such as funding) are not an observer coverage levels in a fishery
rule’s definition. excuse for failing to ‘‘establish’’ an would reduce uncertainty of bycatch
SBRM. (See Oceana v. Locke, 670 F.3d estimates, such an increase may not be
Considerations for Establishing or 1238 (D.C. Cir. 2011).) However, NMFS feasible from a cost or safety standpoint,
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Reviewing an SBRM does not believe that this court decision may not be necessary to assess bycatch
This proposed rule acknowledges that stands for the proposition that costs in the fishery, or may not be useful in
whether a methodology is appropriate cannot be taken into consideration at all developing conservation and
for a fishery will depend on the specific when developing or revising an SBRM. management measures for bycatch in
circumstances of the fishery. This The case did not discuss National that fishery. The proposed rule would
proposed rule frames policy choices Standard 7, which explicitly requires allow a Council to evaluate whether an
associated with establishing an SBRM that conservation and management incremental improvement in data
by providing ‘‘required factors’’ for measures (which would include data quality is justified in light of the

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Federal Register / Vol. 81, No. 37 / Thursday, February 25, 2016 / Proposed Rules 9417

that are not precluded by this rule, but only to the definition of ‘‘bycatch’’ in harvesters (NAICS code 114111),
are not minimally required. Those FMPs the MSA and pertaining only to data commercial shellfish harvesters (NAICS
may not require further amendments. collection, reporting and recording code 114112), other commercial marine
Still other FMPs may describe activities (not bycatch assessment and harvesters (NAICS code 114119), for-
procedures or activities that comprise estimation); hire businesses (NAICS code 487210),
an SBRM but do not explain them in a (2) clarified procedures for marinas (NAICS code 713930), seafood
manner consistent with this rule. In establishing, documenting, and dealers/wholesalers (NAICS code
such cases, an FMP amendment may be reviewing SBRMs under the MSA; and 424460), and seafood processors (NAICS
warranted. (3) an option for adaptable code 311710). A business primarily
After the initial review, Councils implementation to allow for operational involved in finfish harvesting is
should periodically review standardized flexibility. classified as a small business if it is
reporting methodologies to verify The proposed rule defines a independently owned and operated, is
continued compliance with the MSA standardized reporting methodology as not dominant in its field of operation
and this rule. Such a review should be an established procedure or procedures (including its affiliates), and has
conducted at least once every 5 years. used to collect, record, and report combined annual receipts not in excess
Proposed section 600.1610(d) is bycatch data in a fishery or subset of a of $20.5 million for all its affiliated
consistent with the review and fishery. It would clarify that the purpose operations worldwide. For commercial
improvement of data collection of the methodology is to provide data shellfish harvesters, the other qualifiers
methods, data sources, and applications that will inform the assessment of the apply, and the receipts threshold is $5.5
described under the National Standard amount and type of bycatch occurring in million. For other commercial marine
9 guidelines at 50 CFR 600.350(d)(1). a fishery for use in developing harvesters, for-hire businesses, and
conservation and management measures marinas, the other qualifiers apply, and
National Environmental Policy Act that, to the extent practicable, minimize the receipts threshold is $7.5 million. A
NMFS has made a preliminary bycatch and bycatch mortality. business primarily involved in seafood
determination to apply a Categorical However, the phrase ‘‘standardized processing is classified as a small
Exclusion to this action under the reporting methodology’’ in section business if it is independently owned
National Environmental Policy Act due 303(a)(11) refers only to bycatch data and operated, is not dominant in its
to the procedural nature of this action. collection, recording, and reporting field of operation (including its
If and when the provisions of this procedures. affiliates), and has combined annual
proposed rule are applied to specific The action proposes a set of factors to employment not in excess of 500
FMPs, the Councils and/or the Secretary help frame policy choices in employees for all its affiliated
would prepare an Environmental Impact establishing or reviewing an SBRM. operations worldwide. For seafood
Statement (EIS) or Environmental Data resulting from the methodology dealers/wholesalers, the other qualifiers
Assessment (EA), as appropriate. NMFS must be useful, in conjunction with apply, and the employment threshold is
solicits comments on this preliminary other relevant sources of data, in 100 employees. A small organization is
determination to use a categorical meeting the purpose of the SBRM and any not-for-profit enterprise that is
exclusion. fishery-specific bycatch objectives. This independently owned and operated and
would require Councils to consider is not dominant in its field. Small
Classification conservation and management governmental jurisdictions are
Pursuant to section 305(d) of the objectives related to bycatch for a governments of cities, counties, towns,
Magnuson-Stevens Act (16 U.S.C. fishery, the quality of the data townships, villages, school districts, or
1855(d)), the NMFS Assistant associated with the methodology, and special districts, with populations of
Administrator has determined that this information about the characteristics of less than 50,000.
proposed rule is consistent with the bycatch in the fishery, when available All FMPs have established SBRMs
other provisions of the Magnuson- (such as the amount of bycatch according to the requirements in
Stevens Act and other applicable laws, occurring in the fishery, the importance 303(a)(11). This proposed rule would
subject to further consideration after of bycatch in estimating the total provide national guidance and
public comment. mortality of fish stocks, and the improved clarity about implementing
This proposed rule has been importance of bycatch to related the existing requirements. The proposed
determined to be not significant for ecosystems). The proposed rule also rule would provide the Councils and the
purposes of Executive Order 12866. would require that an SBRM be feasible Secretary a five-year period within
The Chief Counsel for Regulation of and designed to be implemented with which to review FMPs to make any
the Department of Commerce certified available funding, and addresses the necessary amendments.
to the Chief Counsel for Advocacy of the need for an SBRM to be adaptable in Because the proposed rule would
Small Business Administration that this response to changes in funding levels or clarify existing requirements for FMPs
proposed rule, if adopted, would not other circumstances. Finally, the and is procedural in nature, it would
have a significant economic impact on proposed rule provides that existing not directly regulate a particular fishery
a substantial number of small entities. SBRMs should be reviewed at least once and will not directly alter the behavior
The factual basis for this determination every five years. The proposed rule does of any entities operating in federally
is as follows. not require that an SBRM be designed managed fisheries. Thus, no direct
The purpose of the action is to to achieve a particular performance economic effects on commercial
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articulate an interpretation of the basic standard or precision goal. harvesting businesses, for-hire
requirements of the SBRM provision of Small entities include ‘‘small businesses, marinas, seafood dealers/
section 303(a)(11) of the MSA through a businesses,’’ ‘‘small organizations,’’ and wholesalers, or seafood processors are
rulemaking to promote transparency ‘‘small governmental jurisdictions.’’ The expected to result from this action.
and consistency. Key components of the Small Business Administration (SBA) Therefore, no small entities would be
proposed rule include: has established size standards for all directly affected by this rule.
(1) A definition of ‘‘standardized major industry sectors in the United As a result of the information above,
reporting methodology’’ as applicable States, including commercial finfish a reduction in profits for a substantial

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9418 Federal Register / Vol. 81, No. 37 / Thursday, February 25, 2016 / Proposed Rules

number of small entities is not expected. reporting methodology means an Councils must also consider information
Because this action, if implemented, is established procedure or procedures about the characteristics of bycatch in
not expected to have a significant used to collect, record, and report the fishery, when available, such as the
adverse economic effect on the profits of bycatch data in a fishery or subset of a amount of bycatch occurring in the
a substantial number of small entities, fishery (hereafter referred to as fishery, the importance of bycatch in
an initial regulatory flexibility analysis ‘‘fishery’’). ‘‘Standardized’’ procedures estimating the total mortality of fish
is not required and none has been may vary from one fishery to another, stocks, and the importance of bycatch to
prepared. but must provide a consistent approach related ecosystems. In addition, the
No duplicative, overlapping, or for collecting, recording, and reporting methodology must be feasible from cost,
conflicting Federal rules have been bycatch data within a fishery. technical, and operational perspectives,
identified. This rule would not establish (b) Word usage. The terms ‘‘must’’, and must be designed to be
any new reporting or record-keeping ‘‘should’’, ‘‘may’’, ‘‘will’’, ‘‘could’’, and implemented with available funding.
requirements. ‘‘can’’ are used in the same manner as (ii) Additional factors. When
in § 600.305(c). The term ‘‘Council’’ is establishing or reviewing a standardized
List of Subjects in 50 CFR Part 600 reporting methodology, a Council may
used in the same manner as in
Administrative practice and § 600.305(c), and includes the regional also consider the overall magnitude
procedure, Bycatch, Fisheries, fishery management Councils and the and/or economic impact of the fishery,
Standardized Reporting Methodology. Secretary of Commerce, as appropriate and the scientific methods and
Dated: February 19, 2016. (16 U.S.C. 1854(c)and (g)). techniques available to collect and
Samuel D. Rauch III, report bycatch data that could improve
§ 600.1610 Establishing and reviewing the quality of the bycatch estimates.
Deputy Assistant Administrator for standardized bycatch reporting (b) Consultation. A Council should
Regulatory Programs, National Marine methodologies in fishery management
Fisheries Service. consult with its scientific and statistical
plans.
For the reasons set out in the committee, advisory panels, and the
(a) Establishing a standardized NOAA science centers as appropriate on
preamble, NMFS proposes to amend 50 reporting methodology—(1) Fishery
CFR part 600 as follows: data elements, reporting frequency, and
management plan contents. All fishery other design and methodology factors.
management plans (FMPs) must clearly (c) Adaptable implementation. If a
PART 600—MAGNUSON–STEVENS
describe a standardized reporting Council anticipates that adjustments
ACT PROVISIONS
methodology for each fishery managed will be necessary to implement the
■ 1. The authority citation for 50 CFR under it. The description must state the methodology, the Council may,
part 600 continues to read as follows: required bycatch data collection, consistent with the requirements of the
recording, and reporting procedures for MSA and other applicable law, consider
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801
et seq. each fishery, which may include, but adopting a process in an FMP to adjust
are not limited to, one or more of the implementation of the methodology.
■ 2. Add a subpart R to read as follows: following: Observer programs, The Council may consider adopting
electronic monitoring and reporting such a process based on factors, which
SUBPART R—STANDARDIZED
technologies, and self-reported include, but are not limited to, available
BYCATCH REPORTING
mechanisms (e.g., recreational sampling, funding, management contingencies, or
METHODOLOGY
industry-reported catch and discard scientific priorities. If such a process is
Sec. data). In addition, the description must adopted, the FMP must:
600.1600 Purpose and scope. provide an explanation of why the (1) Describe the process under which
600.1605 Definitions and word usage. methodology is appropriate for the the implementation of a methodology
600.1610 Establishing and reviewing fishery. The explanation must be based will be adjusted;
standardized bycatch reporting on a thorough analysis of the factors (2) Specify what adjustments (e.g.,
methodologies in fishery management
plans.
specified in paragraph (a)(2)(i) and (ii) changes in the intensity, focus, or
of this section. The explanation may frequency of required bycatch data
§ 600.1600 Purpose and scope. incorporate by reference analyses in collection, recording, and reporting
Section 303(a)(11) of the Magnuson- FMPs, FMP amendments, Stock procedures) are authorized under the
Stevens Act requires any fishery Assessment and Fishery Evaluation process;
management plan to establish a (SAFE) reports, or other documents. (3) Explain why the adjustments may
standardized bycatch reporting (2) Factors in establishing or be needed;
methodology. 16 U.S.C. 1853(a)(11). The reviewing a standardized reporting (4) Describe how and when the
purpose of a standardized reporting methodology. Whether a methodology is adjustments will be made;
methodology is to inform the appropriate will depend on the specific (5) Describe the limits to the
assessment of the amount and type of circumstances of the fishery, as guided adjustments; and
by the following factors: (6) Describe how the Council will
bycatch occurring in the fishery for use
(i) Required factors. Data resulting determine that a reevaluation of the
in developing conservation and
from the methodology must be useful, in established methodology is warranted.
management measures that, to the (d) Review of FMPs. All FMPs must be
extent practicable, minimize bycatch conjunction with other relevant sources
of data, in meeting the purpose consistent with this rule within 5 years
and bycatch mortality. This subpart sets
rmajette on DSK2TPTVN1PROD with PROPOSALS

described in § 600.1600 and fishery- of the effective date of this rule.
forth requirements for and guidance on Thereafter, Councils should conduct a
establishing and reviewing a specific bycatch objectives. This
requires Councils, when establishing or review of standardized reporting
standardized reporting methodology. methodologies at least once every five
reviewing a methodology, to consider
§ 600.1605 Definitions and word usage. the conservation and management years in order to verify continued
(a) Definitions. In addition to the objectives regarding bycatch in the compliance with the MSA and this rule.
definitions in the Magnuson-Stevens fishery and the quality of the data [FR Doc. 2016–04030 Filed 2–24–16; 8:45 am]
Act and § 600.10, standardized associated with the methodology. BILLING CODE 3510–22–P

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Document Created: 2018-02-02 14:35:12
Document Modified: 2018-02-02 14:35:12

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule; request for comments.
Dates		Comments must be received by April 25, 2016.
Contact		Karen Abrams 301-427-8508.
FR Citation		81 FR 9413
RIN Number		0648-BF51
CFR Associated		Administrative Practice and Procedure; Bycatch; Fisheries and Standardized Reporting Methodology

81 FR 9413 - Standardized Bycatch Reporting Methodology

DEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 37 (February 25, 2016)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration