82_FR_6329 82 FR 6317 - Standardized Bycatch Reporting Methodology

82 FR 6317 - Standardized Bycatch Reporting Methodology

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range6317-6338
FR Document2017-00405

This final rule interprets and provides guidance on the requirement of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) that all fishery management plans (FMPs), with respect to any fishery, establish a standardized reporting methodology to assess the amount and type of bycatch occurring in a fishery. The final rule establishes requirements and 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 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 6317-6338]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-00405]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 1512-01999-6969-02]
RIN 0648-BF51


Standardized Bycatch Reporting Methodology

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

ACTION: Final rule.

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SUMMARY: This final rule interprets and provides guidance on the 
requirement of the Magnuson-Stevens Fishery Conservation and Management 
Act (MSA) that all fishery management plans (FMPs), with respect to any 
fishery, establish a standardized reporting methodology to assess the 
amount and type of bycatch occurring in a fishery. The final rule 
establishes requirements and 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: Effective February 21, 2017.

ADDRESSES: Copies of the Categorical Exclusion/Regulatory Impact Review 
(RIR)/Final Regulatory Flexibility Act Analysis (FRFAA) prepared for 
this action can be obtained from: Karen Abrams, National Marine 
Fisheries Service, 1315 East West Highway, Room 13461, Silver Spring, 
MD 20910. An electronic copy of the CE/RIR/RFAA documents as well as 
copies of public comments received can be viewed at the Federal e-
rulemaking portal: http://www.regulations.gov/ (Docket ID: NOAA-NMFS-
2012-0092).

FOR FURTHER INFORMATION CONTACT: Karen Abrams, 301-427-8508, or by 
email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Section 303(a)(11) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) requires that any fishery management plan (FMP) 
prepared by a regional fishery management council (Council) or the 
Secretary of Commerce with respect to any fishery 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 (16 U.S.C. 1853(a)(11)). See also 16 U.S.C. 
1854(c) and (g) (authorizing Secretarial FMPs. Hereafter, ``Council'' 
includes the Secretary of Commerce as applicable when preparing FMPs or 
amendments under 16 U.S.C. 1854(c) and (g). See 50 CFR 600.305(d). This 
standardized reporting methodology is commonly referred to as a 
``Standardized Bycatch Reporting Methodology'' (SBRM). This final rule, 
which is promulgated pursuant to 16 U.S.C. 1855(d), sets forth NMFS' 
interpretation of section 303(a)(11) and establishes national 
requirements and guidance for developing, documenting, and reviewing 
SBRMs. A proposed rule for this action was published on February 25, 
2016 (81 FR 9413), with public comments accepted through April 25, 
2016.
    Section 303(a)(11) was added to the MSA by the Sustainable 
Fisheries Act of 1996 (SFA). 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 (NS9) (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, NS9 does not address SBRM.
    Prior to this rulemaking, NMFS never issued regulations that set 
forth the basic requirements of the SBRM provision. To implement the 
1996 SFA Amendments, NMFS developed NS9 guidelines in 1998, and amended 
these guidelines in 2008. See 50 CFR 600.350. The guidelines provide 
several clarifications about bycatch requirements under the MSA, but do 
not interpret the SBRM requirement. 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 did not provide, or purport to provide, the agency's 
interpretation of the basic requirements of complying with MSA section 
303(a)(11). See Evaluating Bycatch at Chapters 3, 4, and 5 and Appendix 
5 (discussing regional bycatch and fisheries issues, reporting/
monitoring measures, and precision goals for bycatch estimates, but 
noting that goals ``may in some instances exceed minimum statutory 
requirements'').
    Additional background information--including NMFS' rationale for 
developing this rule, statutory and historical background, and the 
purpose and scope of the rule--can be found in the proposed rule that 
published on February 25, 2016 (81 FR 9413). Copies are available from 
NMFS (see ADDRESSES), or can be viewed electronically at the Federal E-
Rulemaking portal for this action: http://www.regulations.gov.
    Separate from this rulemaking, which solely addresses reporting 
methodologies for bycatch as defined under the MSA, NMFS has engaged in 
a broad range of activities since the 1970s to address its bycatch-
related responsibilities under the MSA, the Marine Mammal Protection 
Act (MMPA), the Endangered Species Act (ESA), and other relevant 
statutes and international agreements. More specifically, NMFS, the 
Councils, and multiple partners have implemented management measures to 
minimize bycatch and bycatch mortality in fisheries (e.g., time and 
area closures); developed and/or researched bycatch reduction 
technologies for fishing gear (e.g., turtle excluder devices and circle 
hooks); convened multi-stakeholder take reduction teams to address 
marine mammal bycatch; supported national research programs, such as 
the Bycatch Reduction Engineering Program; promoted the adoption of 
bycatch reduction measures in international regional fishery management 
organizations; and published a series of biennial National Bycatch 
Reports and Updates since 2011 that provide a historical summary of 
fishery- and species-specific bycatch estimates on an annual basis for 
major U.S. fisheries around the country, to cite a few examples. NMFS 
also has a database from which members of the public can query bycatch 
estimates from the National Bycatch Reports and Updates. See http://www.st.nmfs.noaa.gov/observer-home/first-edition-update-1. To build on 
its bycatch efforts, this year in February 2016, NMFS issued for public 
comment a draft National Bycatch Reduction Strategy that aims to 
coordinate NMFS' efforts to address bycatch under the various mandates 
it is charged with carrying out to further advance its work in 
addressing bycatch both domestically and internationally.

[[Page 6318]]

NMFS received numerous public comments on the draft strategy and is 
working to address those comments and finalize the strategy. For more 
information on NMFS' 40 year commitment to addressing bycatch, see 
http://noaa.maps.arcgis.com/apps/MapSeries/index.html?appid=e5d4037090054fa2843a6ab522c9b73b.

I. Overview of the Major Aspects of the Final Rule

    Section 600.1600 explains the purpose and scope of an SBRM and 
Sec.  600.1610 clarifies the requirements for establishing and 
reviewing SBRMs. The rule requires that an FMP identify the required 
procedure or procedures that constitute the SBRM for the fishery. The 
rule also requires that the FMP, or fisheries research plan authorized 
under 16 U.S.C. 1862, explain how the SBRM meets the purpose described 
under Sec.  600.1600, based on an analysis of (1) the characteristics 
of the bycatch occurring in the fishery, (2) the feasibility of the 
methodology from cost, technical and operational perspectives, (3) the 
uncertainty of the data resulting from the methodology, and (4) how the 
data resulting from the methodology are used to assess the amount and 
type of bycatch occurring in the fishery. Finally, the rule provides 
that a Council should give guidance to NMFS on how to adjust the 
implementation of the SBRM consistent with the FMP, and requires 
periodic reviews of SBRMs.
    Below is further explanation of the major aspects of the final 
rule. In addition to streamlining the final rule to improve clarity and 
organization, NMFS has made several changes in the final rule to 
respond to public comments. The changes are discussed below and in 
sections II (Response to Comments) and III (Changes from Proposed 
Action) of this preamble.

A. Scope of Rule

    Establishing an SBRM is a requirement of the MSA. Therefore, this 
rule is based on the MSA's definition of ``bycatch,'' which includes 
fish which are harvested in a fishery, but which are not sold or kept 
for personal use, and includes economic discards and regulatory 
discards. Such term does not include fish released alive under a 
recreational catch and release fishery management program. 16 U.S.C. 
1802(2). NMFS' NS9 guidelines clarify that ``[a] catch-and-release 
fishery management program is one in which the retention of a 
particular species is prohibited. In such a program, those fish 
released alive would not be considered bycatch.'' 50 CFR 600.350(c)(2). 
NMFS received several comments on the rule's definition of ``bycatch.'' 
To clarify its intent to rely on the MSA's definition of ``bycatch,'' 
NMFS has revised the final rule at Sec.  600.1605(b) to add reference 
to the MSA definition. Summaries of the comments received on the 
definition of bycatch and NMFS' responses may be found in section II 
(Response to Comments) of this preamble.

B. Purpose of an SBRM

    Based on the statutory language of section 303(a)(11) of the MSA, 
the final rule clarifies in Sec.  600.1600 that the purpose of an SBRM 
is to collect, record, and report bycatch data in a fishery that, in 
conjunction with other information, are used to assess the amount and 
type of bycatch occurring in the fishery and inform the development of 
conservation and management measures that, to the extent practicable, 
minimize bycatch and bycatch mortality. Consistent with this purpose, 
Sec.  600.1605(a) defines ``standardized reporting methodology'' with 
reference to procedures used to collect, record, and report bycatch 
data in a fishery. Section 600.1605(a) clarifies that bycatch 
assessment procedures are not part of an SBRM, and thus do not need to 
be described as part of the methodology in an FMP. A Council may 
include such a description if it so chooses and could provide this 
description by incorporating by reference information from a Stock 
Assessment and Fishery Evaluation (SAFE) report or other documents.
    As explained in the proposed rule (see 81 FR 9413 at 9414-9415), 
activities to collect, record, and report bycatch data in a fishery are 
connected to, but distinct from, the methods used to assess bycatch and 
the development of measures to minimize bycatch or bycatch mortality. 
NMFS received numerous comments on the linkage between bycatch data 
collection and bycatch assessment. Having carefully considered public 
comment on this issue, NMFS has decided to maintain the distinction 
between data collection and bycatch assessment in the final rule. NMFS 
continues to believe that it is important to be clear about the key 
policy choices and objectives associated with establishing an SBRM, and 
not confuse those choices with statistical and technical approaches for 
estimating bycatch that are inherently scientific and data dependent, 
or with the policy choices associated with developing measures to 
minimize bycatch or bycatch mortality. See ``Activities Associated with 
an SBRM'' in the proposed rule and ``Distinction Between Data 
Collection and Data Assessment'' in section II of this preamble for 
further information and explanation of this issue.
    While recognizing the distinction between data collection and 
bycatch assessment, NMFS affirms the important linkage between these 
activities. To reinforce this link, NMFS has revised Sec.  
600.1610(a)(2)(iv) to require a Council to address how the data 
resulting from an SBRM are used to assess the amount and type of 
bycatch in the fishery and to consult with its Science and Statistical 
Committee (SSC) and/or regional NMFS science centers on SBRM design 
considerations (e.g., data elements, sampling designs, sample sizes, 
and reporting frequency). NMFS also cross-references this requirement 
in Sec.  600.1600. See section I. E. 4. Data Use of this preamble for 
further explanation.

C. Meaning of ``Standardized''

    Section 303(a)(11) requires that ``Any fishery management plan . . 
. with respect to any fishery, shall . . . establish a standardized 
reporting methodology to assess the amount and type of bycatch 
occurring in the fishery.'' 16 U.S.C. 1853(a)(11). Section 303(a)(11) 
does not require regional or national standardization; rather, the 
requirement to establish a standardized reporting methodology applies 
to each FMP with respect to any fishery managed under it. Consistent 
with the statutory language, this rule defines ``standardized reporting 
methodology'' as an established, consistent procedure or procedures 
used to collect, record, and report bycatch data in a fishery, which 
may vary from one fishery to another. See 600.1605(a) (emphasis added).
    A Council establishes the SBRM based on the requirements outlined 
in this rule and the purpose of an SBRM (see Sec.  600.1600). The 
definition of ``standardized reporting methodology'' envisions that a 
Council may include more than one data collection, recording, and 
reporting procedure in its SBRM. As acknowledged in Sec.  
600.1610(a)(2)(i), the amount and type of bycatch occurring in a 
fishery may vary based on different fishing activities and operations 
(e.g., gear types used, how gear is deployed, gear selectivity, fishing 
effort, fishing locations). In light of the above, a Council could 
decide that a combination of procedures is appropriate for a fishery. 
In such a case, the FMP must still identify what the established, 
consistent procedures are for the fishery. For example, in a fishery in 
which vessels use trawl nets and gill nets, a Council could determine 
that different procedures are appropriate for the different gear types. 
The Council would then be required to identify the

[[Page 6319]]

required, consistent procedures for both gear types in the FMP. See 
section I. E. 1. and the response to comment 9 in section II of this 
preamble for further explanation.

D. FMP Contents

    Section 600.1610(a)(1) requires every FMP to identify the required 
procedure or procedures that constitute the SBRM for the fishery. Such 
procedures may include, but are not limited to, observer programs, 
electronic monitoring and reporting technologies, and self-reported 
mechanisms. This rule does not prescribe the use of particular 
procedures.
    Section 600.1610(a)(1) also requires Councils to explain in an FMP, 
or a fishery research plan authorized under 16 U.S.C. 1862, how the 
SBRM meets the purpose described in Sec.  600.1600, based on an 
analysis of requirements (set forth in Sec.  600.1610(a)(2) and 
described below). The FMP, or fishery research plan under 16 U.S.C. 
1862, may reference analyses and information in other FMPs, FMP 
amendments, SAFE reports, or other documents. Consistent with current 
practices, the rule encourages Councils to work together and 
collaborate on SBRMs for fisheries that operate across multiple 
jurisdictions, as appropriate.
    NMFS amended the final rule to refer to 16 U.S.C. 1862, a provision 
that authorizes the North Pacific Fishery Management Council to prepare 
a fisheries research plan for any fishery under its jurisdiction 
(except salmon) that requires observers and establishes a system of 
fees to pay for the costs of implementing the plan. The North Pacific 
Council has established a fisheries research plan that requires an 
observer program as authorized under 16 U.S.C. 1862, and the program 
constitutes the SBRM for the fisheries covered thereunder. Given that, 
this rule allows the North Pacific Council to explain in its fisheries 
research plan how the SBRM for those fisheries meets the statutory 
purpose of an SBRM.
    Finally, Sec.  600.1610(a)(1) explains that, in addition to 
proposing regulations necessary to implement the standardized reporting 
methodology, a Council should provide in an FMP, or a fishery research 
plan authorized under 16 U.S.C. 1862, guidance to NMFS on how to adjust 
implementation of the methodology consistent with the FMP. That section 
cites to the National Standard 6 guidelines (50 CFR 600.335), which 
provide guidance on taking variations and contingencies into account. 
NMFS notes that, to the extent that adjustments are needed to an SBRM 
beyond what is established in an FMP, an FMP amendment would be 
required. This text in Sec.  600.1610(a)(1) replaces Sec.  600.1610(c) 
(adaptable implementation) because public comments expressed confusion 
over that proposed provision. NMFS reiterates that every FMP must 
establish an SBRM. NMFS did not intend to imply otherwise in the 
proposed Sec.  600.1610(c) (at 81 FR 9413, February 25, 2016). Rather, 
NMFS' intent in the proposed Sec.  600.1610(c) (at 81 FR 9413, February 
25, 2016), and now in Sec.  600.1610(a)(1), is to recognize that 
fisheries management occurs in a highly variable environment and there 
are numerous biological, social, and economic variables that may affect 
the operational aspects of implementing data collection and reporting 
programs that constitute an SBRM. In light of this, NMFS strongly 
recommends that Councils provide direction, as needed, to NMFS about 
how to adjust the implementation of an SBRM consistent with the FMP. 
NMFS believes that its approach in Sec.  600.1610(a) will promote 
efficiency and transparency by encouraging a Council to consider 
implementation and operational issues up-front during the development 
of an SBRM. See response to comment 29 and 48 for further explanation.

E. Fishery-Specific Analysis

    MSA section 303(a)(11) requires that FMPs establish SBRMs, but 
beyond the fact that an SBRM must meet its statutory purpose, section 
303(a)(11) provides no other guidance on the considerations that should 
go into developing an SBRM. Therefore, NMFS has discretion to interpret 
section 303(a)(11) and establish reasonable considerations and 
requirements. Based on NMFS' experience with implementing section 
303(a)(11), and taking into consideration public comment on the 
proposed rule, this final rule requires that all Councils conduct a 
fishery-specific analysis that addresses the following when 
establishing or reviewing an SBRM: (1) The characteristics of the 
bycatch occurring in the fishery, (2) the feasibility of the 
methodology from cost, technical and operational perspectives, (3) the 
uncertainty of the data resulting from the methodology, and (4) how the 
data resulting from the methodology are used to assess the amount and 
type of bycatch occurring in the fishery. The first and second 
requirements were included in the proposed rule and have been revised 
minimally in response to comments. With respect to the third and fourth 
requirements, NMFS has, in response to public comments, clarified and 
elaborated upon the proposed requirement that a Council address ``the 
quality of the data associated with the methodology'' (see proposed 
Sec.  600.1610(a)(2)(i) at 81 FR 9413, February 25, 2016). Below is 
further explanation of these four requirements.
    In response to comments, NMFS has removed text that required 
consideration of the conservation and management objectives regarding 
bycatch in the fishery (see proposed Sec.  600.1610(a)(2)(i) at 81 FR 
9413, February 25, 2016), and text stating that a Council may consider 
the overall magnitude and/or economic impact of the fishery (see 
proposed Sec.  600.1610(a)(2)(i) at 81 FR 9413, February 25, 2016). The 
reasons for these changes are provided in the responses to comments 44 
and 46.
1. Characteristics of Bycatch in the Fishery
    Section 600.1610(a)(2)(i) provides that a Council must address 
information about the characteristics of bycatch in the fishery when 
available, including, but not limited to, the amount of bycatch 
occurring in the fishery, the importance of bycatch in estimating the 
fishing mortality of fish stocks, and the effect of bycatch on 
ecosystems. Section 600.1610(a)(2)(i) recognizes that the amount and 
type of bycatch occurring in the fishery may vary based on different 
fishing activities and operations. Bycatch can be affected by several 
aspects of a fishery, including gear types used, how gear is deployed, 
gear selectivity, fishing effort, fishing locations, and existing 
management measures. A Council may consider these operational aspects 
when selecting the collection, monitoring, and reporting procedures 
that constitute the SBRM for a fishery.
2. Feasibility
    Section 600.1610(a)(2)(ii) requires that the implementation of an 
SBRM be feasible from cost, technical, and operational perspectives. 
Data collection, reporting, and recording procedures can be expensive, 
logistically challenging to design and implement, involve new and 
cutting-edge technologies, and necessitate the consideration of the 
safety of human life at sea. Having carefully considered public 
comments, NMFS continues to believe that it is reasonable and 
appropriate for a Council to analyze issues of feasibility when 
establishing or reviewing an SBRM and to ultimately choose a 
methodology that is in fact feasible (i.e., capable of being 
implemented) from cost, technical, and operational perspectives. If a 
Council proposes an FMP or FMP amendment

[[Page 6320]]

with an SBRM that is not feasible, NMFS may disapprove or partially 
disapprove the FMP amendment. In response to public comments, NMFS 
clarifies in the final rule that feasibility concerns do not exempt an 
FMP from the requirement to establish an SBRM. NMFS reiterates that the 
requirement to establish an SBRM is a statutory requirement applicable 
to all FMPs.
    Proposed Sec.  600.1610(a)(2)(i) at 81 FR 9413, February 25, 2016, 
would have required SBRMs to be designed to be implemented with 
available funding. In response to comments, NMFS has deleted this 
provision. See section II (the responses to comments on ``Consideration 
of Feasibility, Costs, and Funding'') of this preamble. Instead, NMFS 
explicitly acknowledges in Sec.  600.1610(a)(2)(ii) that costs and 
funding may vary from year to year, and requires a Council to address 
how implementation of the SBRM may be adjusted while continuing to meet 
the purpose described under Sec.  600.1600. If a Council chooses to 
establish an SBRM that may be adjusted in response to changes in costs 
or funding, the Council should provide guidance to NMFS on how to 
adjust the implementation of the SBRM consistent with the FMP, as 
provided in Sec.  600.1610(a)(1) (see section I. D. of this preamble).
    As an example, NMFS notes that the resources available for observer 
programs may vary from year to year. To address this variability in 
resources, the North Pacific Council uses an Annual Deployment Plan, a 
component of its fisheries research plan authorized under 16 U.S.C. 
1862, to describe how NMFS and the Council will annually deploy 
observers given changes in funding, costs, and effort consistent with 
the FMP. As another example, in New England and the Mid Atlantic, if 
the available funding is insufficient to meet the SBRM performance 
standard, the SBRM Omnibus Amendment for New England and Mid-Atlantic 
fisheries (80 FR 37182, June 30, 2015) (currently the subject of 
litigation) establishes a non-discretionary formulaic process for 
prioritizing how the available observer sea-days would be allocated to 
maximize the effectiveness of the SBRM. NMFS reiterates that, 
regardless of resource constraints, all FMPs must establish an SBRM 
that meets the purpose described in Sec.  600.1600.
3. Data Uncertainty
    Section 600.1610(a)(2)(iii) requires Councils to address the 
uncertainty of the data resulting from the SBRM. This section also 
requires that an SBRM be designed so that the uncertainty associated 
with the resulting bycatch data can be described, quantitatively or 
qualitatively. Eliminating data uncertainty is not an end in itself, 
but the rule recognizes that Councils should seek to minimize 
uncertainty in the resulting data, recognizing that different degrees 
of uncertainty may be appropriate for different fisheries.
    4. NMFS received numerous public comments requesting that the final 
rule include specific standards for accuracy, precision, or statistical 
reliability of bycatch estimates and data. See section II for comments 
and responses related to ``Consideration of Quality and Use of Data.'' 
After considering public comments and consulting with agency 
scientists, NMFS does not believe it is appropriate to establish 
accuracy, precision, or reliability standards for bycatch data or 
estimates to be applied across all fisheries. As explained in ``Purpose 
of an SBRM'' above, bycatch assessment or estimation is not considered 
part of an SBRM under this rule. Moreover, as explained in the 
responses to comments, the specific characteristics of each fishery and 
its bycatch vary widely from region to region and from fishery to 
fishery. For example, during development of this rule, agency 
scientists noted that bycatch estimates for species with low encounter 
rates will have lower precision than commonly encountered bycatch 
species. Establishing bycatch data or estimation standards across all 
fisheries could result in an overly intensive sampling effort that may 
not be needed for bycatch assessment or management purposes, would not 
be feasible, and would be an inefficient use of agency resources. 
Instead, this rule requires that Councils address the uncertainty of 
the data resulting from an SBRM and design an SBRM so that the 
uncertainty associated with the resulting bycatch data can be 
described, quantitatively or qualitatively. As reflected in Sec.  
600.1600, there may be other relevant sources of data beyond the data 
provided by an SBRM that are used to develop bycatch estimates for the 
fishery (e.g., fishing effort, fishery independent data, commercial 
landings data). Understanding the quality of data resulting from an 
SBRM and other sources is important in the assessment of bycatch and 
will assist Councils in developing conservation and management measures 
that, to the extent practicable, minimize bycatch, and minimize the 
mortality of bycatch. For example, a Council may choose to adopt 
measures that are more conservative in instances where bycatch data is 
a large component of fishing mortality and is highly uncertain. Data 
Use
    Section 600.1610(a)(2)(iv) requires a Council to address how the 
data resulting from an SBRM are used to assess the amount and type of 
bycatch occurring in the fishery. As explained in the ``Purpose of the 
SBRM'' section above, this provision was added in part to clarify and 
reinforce the link between an SBRM and the assessment of bycatch data. 
Section 600.1605(a) clarifies that, although bycatch assessment is not 
part of the SBRM, bycatch assessment must be considered as described in 
this provision. See responses to comments 16 and 25 (explaining the 
role of NMFS science centers in providing scientific information and 
analyses and how catch and landings information is made available).
    Section 600.1610(a)(2)(iv) also incorporates the consultation 
provision of the proposed rule's Sec.  600.1610(b) (81 FR 9413, 
February 25, 2016). NMFS received comments during the public comment 
period asking the agency to clarify the consultation process. In 
response to comments (see ``Consideration of Quality and Use of Data'' 
in section II of this preamble), NMFS clarifies in the final rule that, 
related to its consideration of data use, a Council must consult with 
its SSC and/or the regional NMFS science center on reporting 
methodology design considerations such as data elements, sampling 
designs, sample sizes, and reporting frequency. Information provided 
through the consultation process will enable a Council to develop an 
SBRM that incorporates scientific input and that will provide data that 
can be used, in conjunction with other relevant sources of data, to 
assess the amount and type of bycatch occurring in the fishery.
    Finally, Sec.  600.1610(a)(2)(iv) requires Councils to consider the 
scientific methods and techniques available to collect, record, and 
report bycatch data that could improve the quality of bycatch 
estimates. As bycatch data collection technologies improve, NMFS 
anticipates that a Council will consider those technological advances 
when establishing and reviewing SBRMs in accordance with the review 
timeline specified in Sec.  600.1610(b). See response to comment 47.

F. Review of FMPs

    Section 600.1610(b) states that all FMPs must be consistent with 
this rule within 5 years of its effective date. To verify consistency 
with this rule, Councils, in coordination with NMFS, must conduct a 
review of their existing SBRMs. The review should provide

[[Page 6321]]

information sufficient for NMFS to determine whether an FMP needs to be 
amended. The review should be documented, but does not need to be 
contained in an FMP.
    There are several potential outcomes of the review. NMFS could 
determine that there are FMPs with existing SBRMs that are consistent 
with this rule, in which case no FMP amendments would be necessary. 
Other FMPs may describe SBRMs more expansively than the definition in 
this final rule. For example, they may contain components that are 
consistent with this rule, along with additional components that are 
not precluded by this rule, but are not minimally required. Those FMPs 
also may not require further amendments if NMFS determines they are 
consistent with this rule. 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, changes to an FMP, or a 
fisheries research plan, may be warranted. Consistent with current 
practices, NMFS encourages Councils to work together and collaborate on 
SBRM reviews and potential FMP amendments for fisheries that operate 
across multiple jurisdictions, as appropriate.
    After the initial review, Councils, in coordination with NMFS, 
should periodically review SBRMs to verify continued compliance with 
the MSA and this rule. Such a review should be conducted at least once 
every 5 years. Section 600.1610(b) is consistent with the review and 
improvement of data collection methods, data sources, and applications 
described under the NS9 guidelines at 50 CFR 600.350(d)(1).

II. Response to Comments

    NMFS solicited public comments on the proposed rule for 60 days 
(February 25 through April 25, 2016), and during that time made 
presentations to four of the eight Councils and the Highly Migratory 
Species Advisory Panel. NMFS received 25 substantive comment letters on 
the proposed rule during the public comment period. Of those, six were 
form letters that had 65,961 signatures, and 1,382 of those signatories 
provided individualized add-on comments. The other 19 substantive 
comment letters were from non-governmental organizations, industry 
groups/commissions, Councils, and individuals. Summaries of the 
substantive comments that we received concerning the proposed rule, and 
our responses to all of the significant issues they raise, are provided 
below. Comments of a similar nature were grouped together where 
appropriate.

Need and Effect

    Comment 1: Several commenters noted a need for clarification as to 
whether the proposed rule establishes national requirements or 
guidance. Some commenters stated that the preamble to the proposed rule 
stated that the rule is intended to ``establish national requirements 
and guidance,'' but in fact it provides broad guidelines and few 
mandatory requirements. Another commenter requested clarification as to 
whether the proposed rule constitutes guidance to the Councils versus 
regulatory requirements upon the Councils.
    Response: This rule sets forth NMFS' interpretation of the SBRM 
provision under MSA section 303(a)(11) (16 U.S.C. 1853(a)(11)) and 
requirements for establishing and reviewing SBRMs consistent with that 
interpretation. Many provisions of the rule are mandatory. The rule 
does not, however, prescribe specific details on the types of data 
collection and reporting procedures needed for each fishery. Instead, 
the rule requires Councils to undertake a fishery-specific analysis of 
the SBRM appropriate for the fishery and establish an SBRM that meets 
the purpose described in Sec.  600.1600.
    Comment 2: One commenter suggested that, in order to allow for the 
most flexible and effective SBRM process, the agency should issue these 
SBRM provisions as guidance, rather than a rule.
    Response: As explained in the preamble to the proposed rule, NMFS 
has never issued regulations that set forth the basic requirements of 
MSA section 303(a)(11). In the absence of a national SBRM regulation, 
Councils have taken varying approaches to interpreting the provision, 
with some adopting the recommendations in Evaluating Bycatch and others 
interpreting the requirement in a different way. Litigation has also 
influenced the development of SBRMs in some regions. In light of the 
varying existing approaches, NMFS believes that an analysis and 
articulation of the basic requirements of section 303(a)(11) through a 
rulemaking is necessary in order to achieve greater consistency in 
establishing, documenting, and reviewing SBRMs. Public comment received 
on the proposed rule has greatly assisted NMFS in evaluating different 
approaches to interpreting the SBRM provision and developing this final 
rule. With regard to flexibility, this rule recognizes the diversity of 
fisheries across the country by allowing for a fishery-specific 
evaluation of the type of SBRM that is appropriate for a fishery, 
consistent with the requirements of the MSA and this rule.
    Comment 3: One commenter stated that the preamble to the proposed 
rule did not cite a recent North Pacific case that affirmed that the 
Alaska Region's catch accounting system (CAS) is an SBRM. In light of 
that case, the commenter requested that the agency consider excluding 
fisheries under the jurisdiction of the North Pacific Fishery 
Management Council (NPFMC) from requirements of this rule.
    Response: NMFS has prevailed in several SBRM lawsuits, including 
The Boat Co. v. Pritzker, No. 3:12-cv-0250-HRH, (D. Alaska Aug. 6, 
2014), the North Pacific case mentioned by the commenter. However, as 
explained in response to comment 2, NMFS believes that it is important 
to have a national rulemaking applicable to all FMPs. NMFS recognizes 
that there is a North Pacific-specific observer provision under section 
313 of the MSA, 16 U.S.C. 1862, that provides for use of a fisheries 
research plan. NMFS has revised this final rule in Sec.  600.1610 to 
account for this provision.

Definition of Bycatch

    Comment 4: A commenter requested clarification on the distinction 
between bycatch and discards.
    Response: The distinction between bycatch and discards is clearly 
laid out in MSA's definitions section and in NMFS' NS9 guidelines. The 
MSA defines bycatch as fish which are harvested in a fishery, but which 
are not sold or kept for personal use, and includes economic discards 
and regulatory discards. Such term does not include fish released alive 
under a recreational catch and release fishery management program. 16 
U.S.C. 1802(2). The MSA defines ``economic discards'' as fish which are 
the target of a fishery, but which are not retained because of an 
undesirable size, sex, or quality, or other economic reasons (16 U.S.C. 
1802(9)), and the term ``regulatory discards'' as fish harvested in a 
fishery which fishermen are required by regulation to discard whenever 
caught, or are required by regulation to retain but not sell (16 U.S.C. 
1802(38)). As explained in NMFS' NS9 guidelines, ``[b]ycatch includes 
the discard of whole fish at sea or elsewhere, including economic 
discards and regulatory discards. . . .'' 50 CFR 600.350(c)(1).
    Comment 5: One commenter recommended that the regulatory text be 
revised to more clearly indicate that bycatch does not include 
incidental catch of seabirds or marine mammals. Other commenters 
recommended

[[Page 6322]]

expanding the scope of the rule to provide guidance on the reporting of 
all types of bycatch, including marine mammals and seabirds. With 
regard to marine mammal bycatch, one commenter noted that a lack of 
guidance could lead to ineffective monitoring if Council actions are 
not integrated with efforts by the relevant take reduction teams.
    Response: The requirement to establish an SBRM is a requirement of 
the MSA. Thus, this rule--which interprets the SBRM provision--is based 
on the MSA's definitions of ``bycatch'' and ``fish.'' These definitions 
exclude marine mammals and birds. See 16 U.S.C. 1802(2) and (12). In 
response to comment, NMFS has revised the final rule at Sec.  
600.1605(b) to add references to the MSA definitions.
    This rule does not preclude Councils from developing programs to 
collect, record, and report information about marine mammal mortality 
and injury and seabird interactions or unintentional mortality; 
however, the MSA does not require Councils to do so to be in compliance 
with the requirements of section 303(a)(11). Marine mammals are 
protected under the Marine Mammal Protection Act, 16 U.S.C. 1361 et 
seq., which NMFS administers. NMFS is committed to working with the 
Councils and Take Reduction Teams (TRTs) to reduce bycatch of marine 
mammals. TRTs provide recommendations to NMFS on measures to reduce 
marine mammal mortalities and serious injuries in commercial fisheries. 
NMFS uses these recommendations to develop and implement take reduction 
plans. TRTs also provide input to NMFS on evaluating the effectiveness 
of these take reduction plans; such input often includes discussion and 
recommendations for observer coverage levels to monitor marine mammal 
bycatch. In previous years, NMFS has augmented observer coverage in 
specific fisheries to monitor marine mammal bycatch. As such, any 
marine mammal monitoring will be closely coordinated with monitoring 
required by an SBRM.
    Comment 6: A commenter noted that NMFS' U.S. National Bycatch 
Report, which reports on all bycatch, defines bycatch broadly as 
``discarded catch of any living marine resource plus unobserved 
mortality due to a direct encounter with fishing gear.'' The commenter 
stated that NMFS needs better data for the report, so the rule should 
define bycatch in a similar way.
    Response: NMFS is not changing the definition of bycatch in the 
final rule for the reasons explained in the response to comment 5. NMFS 
notes that the National Bycatch Report is not a requirement under the 
MSA or other law. Since 2011, NMFS has issued the National Bycatch 
Report and its Updates to inform the public about bycatch and provide a 
cross-program perspective to inform agency priorities and planning 
related to bycatch mandates under the MMPA, ESA, MSA, and other 
statutes and international agreements. Given the varying definitions of 
bycatch under these authorities, the National Bycatch Report and its 
Updates use a broader definition of bycatch than the MSA; they include 
information about fish, as well as marine mammal and seabird 
interactions. Therefore, in preparing the National Bycatch Report and 
its Updates, NMFS compiles information from numerous sources, 
including, but not limited to, observer data, logbooks, vessel trip 
reports, dealer reports, landing receipts, surveys, and stock 
assessments; these documents do not rely solely on data provided by 
SBRMs. The more narrow definition of bycatch in the MSA, and the 
resulting scope of this final rule, will not hinder future versions of 
the National Bycatch Report.
    NMFS also notes that the National Bycatch Report and its Updates 
provide a compilation of bycatch information and national and regional 
overviews to document bycatch in fisheries over time. They are not, 
however, used for day-to-day management of fisheries. The 2011 First 
Edition of the Report used data available in 2005, Update 1 (2013) used 
2010 data, and Update 2 (2016) used 2011-2013 data. U.S. National 
Bycatch Report, First Edition Update 2 (February 2016) at p. 9 (see 
http://www.st.nmfs.noaa.gov/Assets/Observer-Program/bycatch-report-update-2/NBR%20First%20Edition%20Update%202_Final.pdf). NMFS has 
created a custom database that allows members of the public to query 
bycatch estimates that have been published in the National Bycatch 
Report Updates. Members of the public can access the database at http://www.st.nmfs.noaa.gov/observer-home/first-edition-update-1.
    Comment 7: Several commenters submitted comments on the definition 
of bycatch with respect to recreational fishing. One commenter 
suggested that fish released alive under recreational fishing be 
included as bycatch to be monitored as part of an SBRM. The commenter 
stated that recreational fishing can be a large component of the total 
catch. Further, recreational bycatch can be a significant source of 
mortality, and in some cases, exceeds the amount of fish caught and 
kept. Another commenter requested that the rule include an exemption 
for ``catch and release'' fishing and asked whether ``no possession'' 
implies that encounters are ``catch and release.''
    Response: NMFS does not agree with the suggestion to broaden the 
definition of bycatch in this rule to cover all fish released alive 
under recreational fishing. ``[F]ish released alive under a 
recreational catch and release fishery management program'' are 
excluded from the MSA definition of bycatch. 16 U.S.C. 1802(2). NMFS' 
NS9 guidelines clarify that ``[a] catch-and-release fishery management 
program is one in which the retention of a particular species is 
prohibited. In such a program, those fish released alive would not be 
considered bycatch.'' 50 CFR 600.350(c)(2).
    NMFS agrees that release mortality is an important issue, and the 
agency has taken steps to understand and address this issue. In August 
2014, NMFS published a Technical Memorandum entitled Fisheries Release 
Mortality, which summarized NMFS-funded fish release mortality research 
over the past 15 years, identified release mortality data gaps, 
compiled mortality estimates used by NMFS, and identified criteria to 
help scientists and managers focus release mortality resources (NOAA 
Technical Memorandum NMFS-F/SPO-142, July 2014). In February 2016, NMFS 
released an Action Plan for Fish Release Mortality Science, which 
identifies national goals and objectives for estimating and reducing 
discard and release mortality for fish in commercial and recreational 
fisheries (https://www.st.nmfs.noaa.gov/ecosystems/bycatch/discard-and-release-mortality). NMFS directs commenters to these documents for 
further information regarding the agency's efforts to address and 
evaluate release mortality in both commercial and recreational 
fisheries.

Interpretation of ``Standardized''

    Comment 8: Several commenters stated that NMFS' proposed definition 
of ``standardized reporting methodology'' in Sec.  600.1605(a) is 
contrary to Congress' intent and the ordinary meaning of the word 
``standardized.'' Commenters asserted that the MSA requires that SBRMs 
be standardized at the national, regional, or ecosystem level. In 
general, many of these commenters expressed concern that without 
regional, ecosystem, or national standardization, it will be difficult 
or impossible to assess the bycatch of species between fisheries or 
within multispecies fisheries; compare or combine data across fisheries 
or regions; understand ecosystem, regional, or national bycatch trends; 
or minimize bycatch. One commenter recommended

[[Page 6323]]

standardization according to gear type, specifically, reporting of 
bycatch by gear as a ratio of bycatch per unit effort to catch per unit 
effort (BPUE: CPUE). One commenter agreed that the proposed definition 
reflects the statutory language, but urged NMFS to direct managers to 
consider monitoring fish caught as bycatch that are managed in separate 
FMPs and by different management entities. One commenter also noted 
that the rule should be revised in light of NMFS' acknowledgment in the 
2011 U.S. National Bycatch Report that it is difficult to compare or 
combine bycatch data across fisheries or regions due to differences in 
bycatch data, including the quantity and quality of data and reporting 
in pounds vs. individuals.
    Response: NMFS is not changing its fishery-level approach to 
standardization in the final rule. The rule at Sec.  600.1605(a) 
defines ``standardized reporting methodology'' with reference to a 
fishery, consistent with MSA section 303(a)(11). That section requires 
that ``Any fishery management plan . . . with respect to any fishery, 
shall . . . establish a standardized reporting methodology to assess 
the amount and type of bycatch occurring in the fishery.'' 16 U.S.C. 
1853(a)(11). The characteristics of bycatch in a fishery vary based on 
the fishing activity and operations. Therefore, requiring that SBRMs be 
standardized at the regional or national level would constrain the 
ability to tailor bycatch data programs to the needs of specific 
fisheries. However, consistent with current practices, the final rule 
encourages Councils to work together and collaborate on SBRMs for 
fisheries that operate across multiple jurisdictions, as appropriate.
    NMFS does not agree that this rule will make it more difficult to 
assess the bycatch of species between fisheries or within multispecies 
fisheries; compare or combine data across fisheries or regions; 
understand ecosystem, regional, or national bycatch trends; or minimize 
bycatch. Unit conversion is a standard approach to dealing with data 
disparities. The agency routinely compiles data from varied sources and 
uses mathematical conversions and analytical tools to understand the 
data at the necessary scale.
    With regard to gear type, as discussed in the preamble (see section 
I. C.), a Council may determine that different collection, recording, 
and reporting procedures are appropriate within a fishery for different 
gear types. However, because different fishing activities and 
operations (including but not limited to gear type) may affect the 
amount and type of bycatch that occurs in a fishery and thus the types 
of reporting procedures that may be needed in a fishery, NMFS does not 
agree that SBRMs across a region or the country must be standardized by 
gear type. Furthermore, NMFS is not making changes to the rule in 
response to the suggestion to report bycatch by gear as a ratio of 
bycatch per unit effort to catch per unit effort (BPUE: CPUE). This 
suggestion pertains to how data might be displayed or synthesized when 
assessing the amount and type of bycatch. As explained previously, this 
rule pertains to the requirements for the collection, recording and 
reporting of bycatch data.
    With respect to the National Bycatch Report, NMFS reiterates that 
the Report is not required under the MSA. Nevertheless, since 2011, 
NMFS has issued a National Bycatch Report and its Updates that provide 
a national- and regional-level look at bycatch. See response to 
comments 6 and 26 for further information on the National Bycatch 
Report. For the Second Edition of the National Bycatch Report (to be 
published in late 2017), NMFS is working to develop length-weight 
conversion factors for use in the Report. The use of conversion factors 
is not new; for example, NMFS has used such conversion factors in the 
pelagic longline fisheries based in Hawaii and American Samoa (https://pifsc-www.irc.noaa.gov/library/pubs/DR-16-004.pdf). Unit conversion and 
mathematical analysis is a standard approach to dealing with data 
disparities.
    Comment 9: One commenter asserted that the inclusion of ``subset of 
a fishery'' in Sec.  600.1605(a) is inconsistent with the MSA. Another 
commenter asked what a sub-``set'' is, noting that it might be 
difficult in some fisheries to define a ``set'' and that, for many 
fisheries, collecting data at the ``set'' level would be extremely 
burdensome. The commenter expressed concern that fine-scale data 
collection might encourage inaccuracies and non-compliance with 
reporting requirements.
    Response: The intent of the proposed rule's Sec.  600.1605(a) (81 
FR 9413, February 25, 2016) was to acknowledge that different fishing 
activities and operations can affect the amount and type of bycatch 
that occurs, and thus the types of reporting procedures that may be 
needed. Bycatch can be affected by, among other things, the gear types 
used, how gear is deployed, gear selectivity, fishing effort, fishing 
locations, and existing management measures. In response to this 
comment, NMFS has amended Sec.  600.1610(a)(2)(ii) to recognize that 
the amount and type of bycatch occurring in a fishery may vary based on 
different fishing operations. NMFS has also removed ``subset'' and 
refers simply to ``fishery'' in Sec.  600.1605(a), to reflect the 
language of MSA section 303(a)(11). NMFS notes that the MSA's 
definitions of ``fishery'' and ``stock of fish'' are broad. See 16 
U.S.C. 1802(13) (defining ``fishery'' as one or more stocks of fish 
which can be treated as a unit for purposes of conservation and 
management and which are identified on the basis of geographical, 
scientific, technical, recreational, and economic characteristics; and 
. . . any fishing for such stocks), and 16 U.S.C. 1802(42) (defining a 
``stock of fish'' as a species, subspecies, geographical grouping, or 
other category of fish capable of management as a unit). Given the 
broad definition of ``fishery'' and the purpose of an SBRM, NMFS 
continues to believe that a Council, when developing an SBRM, may take 
into consideration different fishing activities and operations. For 
example, if there is fishing for a stock using trawl nets and gill 
nets, a Council may determine that different data collection, 
recording, and reporting procedures are appropriate for the two gear 
types. In such case, the FMP must identify what the established, 
consistent procedures are for both gear types. See also section I. C.
    Comment 10: One commenter noted that in the Greater Atlantic 
Region, the current SBRM is designed by ``fishing modes,'' which, in 
some cases, may not meet the statute's definition of a ``fishery.'' The 
commenter recommended that it be made clear that this approach meets 
the requirements of the statute.
    Response: NMFS is not making revisions to the final rule in 
response to this comment. NMFS approved the SBRM Omnibus Amendment for 
New England and Mid-Atlantic fisheries in June 2015, after reviewing 
the amendment for consistency with the MSA and other applicable law. 
Moreover, the SBRM Omnibus Amendment is currently the subject of 
litigation.
    Comment 11: NMFS received comments that the lack of standardization 
in the proposed rule conflicts with the requirements of National 
Standard 3 (NS3).
    Response: This rule is consistent with NS3, which requires, to the 
extent practicable, an individual stock of fish shall be managed as a 
unit throughout its range, and interrelated stocks of fish shall be 
managed as a unit or in close coordination. 16 U.S.C. 1851(a)(3). The

[[Page 6324]]

NS3 guidelines provide guidance for interpreting a ``management unit'' 
in the context of a ``fishery.'' See 50 CFR 600.320(d) (defining 
management unit as ``a fishery or that portion of a fishery identified 
in an FMP as relevant to the FMP's management objectives'') and (d)(1) 
(explaining that ``choice of a management unit depends on the focus of 
the FMP's objectives, and may be organized around biological, 
geographic, economic, technical, social, or ecological perspectives''). 
As explained in response to comment 8, this final rule defines 
standardized reporting methodology with regard to a ``fishery.'' Thus, 
NMFS does not see any conflict between the two provisions. To the 
extent there is any conflict, NMFS notes that NS3 contains the 
qualifier, ``to the extent practicable.''
    Comment 12: One commenter recommended establishing minimum 
standards for federal bycatch reporting and offered to work with NMFS 
to define these standards and identify what can be done to help those 
Councils whose fisheries do not meet the minimum standards.
    Response: This final rule establishes minimum standards for the 
collection, recording, and reporting of bycatch data under MSA section 
303(a)(11). NMFS looks forward to working with all Councils as they 
review their FMPs under this final rule.

Purpose of a Standardized Reporting Methodology

    Comment 13: Many commenters stated that the proposed rule's Sec.  
600.1605(a) (81 FR 9413, February 25, 2016) is flawed because it 
defines standardized reporting methodology only with regard to 
collection, recording, and reporting of bycatch data, and not the 
assessment or analysis of that data. Several commenters asserted that 
this approach is contrary to the plain language of the MSA and 
Congressional intent, and that courts have found that bycatch 
assessment is a required component of SBRM.
    Response: NMFS disagrees that an assessment methodology is a 
required part of SBRM, but agrees that an SBRM needs to meet its 
intended purpose, which includes collecting data that can be used to 
assess the amount and type of bycatch in a fishery. The proposed rule 
acknowledged this nexus between the SBRM and the assessment of bycatch. 
To reinforce this link, NMFS has added to Sec.  600.1600 explanatory 
language from the proposed rule preamble stating that the purpose of an 
SBRM is to collect, record, and report bycatch data in a fishery that, 
in conjunction with other relevant sources of information, are used to 
assess the amount and type of bycatch occurring in a fishery and to 
inform the development of conservation and management measures that, to 
the extent practicable, minimize bycatch and bycatch mortality. In 
addition, NMFS has added a new paragraph (iv) to Sec.  600.1610(a)(2) 
that requires a Council to address how the data resulting from an SBRM 
are used to assess the amount and type of bycatch in the fishery, and 
requires the Council to consult with its SSC and/or regional NMFS 
science centers on SBRM design considerations (e.g., data elements, 
sampling designs, sample sizes, and reporting frequency). NMFS believes 
this approach is consistent with the plain language of section 
303(a)(11) of the MSA, which requires that an FMP establish a 
standardized reporting methodology to assess the amount and type of 
bycatch occurring in the fishery, and include conservation and 
management measures that minimize bycatch and bycatch mortality to the 
extent practicable. 16 U.S.C. 1853(a)(11). Section 303(a)(11) requires 
a reporting methodology, not an assessment methodology. Other section 
303(a) provisions explicitly require that assessments be included in an 
FMP, but this is not the case for section 303(a)(11). See e.g., 16 
U.S.C. 1853(a)(3) (requiring FMP to assess and specify the present and 
probable future condition of, and the maximum sustainable yield and 
optimum yield from, the fishery), and 16 U.S.C. 1853(a)(4) (requiring 
that FMPs assess and specify . . . the capacity and extent to which 
fishing vessels of the United States, on an annual basis, will harvest 
the optimum yield . . .). NMFS disagrees that its interpretation is 
contrary to Congressional intent. In support of their comments, 
commenters cited Senate Report 104-276, which states that the 
Sustainable Fisheries Act (S. 39) ``would mandate the assessment of 
bycatch level in each fishery'' (S. Rep. No. 104-276, at 99 (1996)). 
This report discussed a version of a Senate bill that was reported out 
of committee on May 23, 1996, which would have required that FMPs 
``assess the amount and type of bycatch occurring in the fishery.'' 
That text was not enacted.
    NMFS recognizes that some district courts have described the SBRM 
requirement as a bycatch assessment methodology or have asserted that 
section 303(a)(11) requires the assessment of bycatch in the fishery. 
See, e.g., Oceana v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011); Pac. Marine 
Conservation Council v. Evans, 200 F. Supp.2d 1194 (N.D. Cal. 2002). 
NMFS considered this case law in developing the proposed rule. After 
taking public comment into consideration, and reconsidering relevant 
case law, NMFS continues to believe that the approach taken in this 
final rule is appropriate and consistent with the MSA, for the reasons 
explained above. To the extent that courts have described the SBRM 
provision as an ``assessment methodology,'' NMFS notes that the cases 
did not engage in a comprehensive review of the statutory construction 
of the SBRM provision. Reading section 303(a)(11) in context with other 
provisions of the MSA, NMFS believes that the final rule's definition 
of ``standardized reporting methodology,'' which does not include 
assessment methods, is consistent with the MSA.
    Comment 14: Several commenters asserted that data collection and 
assessment are inextricably linked. Where, how, how much, and what type 
of data is collected determines how those data may be analyzed and used 
to come up with bycatch estimates. If the design of an SBRM is 
disconnected from the needs of the bycatch assessment process, there 
will be a waste of resources and effort, and scientists and managers 
will not have reliable data they need to get an accurate accounting of 
bycatch, reduce uncertainty in the assessment of species, and better 
manage the fishery to minimize bycatch. Other commenters agreed that 
fishery managers must consider data methodologies in tandem with 
assessment methodologies to make sure that data will actually be usable 
to ``assess the amount and type of bycatch occurring in a fishery.''
    Response: NMFS affirms that an SBRM must meet its statutory 
purpose, which includes collecting data that can be used to assess the 
amount and type of bycatch occurring in a fishery. The final rule does 
not delink data collection and assessment. Rather, as explained in 
response to comment 13, NMFS has revised the final rule to reinforce 
this nexus.
    Estimating or assessing bycatch often requires a variety of highly 
technical data that can vary based on fishery, region of the country, 
and type of bycatch involved. Relevant data may come from observer 
program databases, logbooks, commercial landings databases, the NMFS 
Marine Recreational Information Program database, or other sources. As 
explained in the preamble of the proposed rule (81 FR 9413, February 
25, 2016), a variety of different models or approaches may be used to 
synthesize these data to assess, evaluate, or estimate bycatch. Given 
that the assessment/estimating of

[[Page 6325]]

bycatch is a scientific matter, and science is a dynamic process with 
new findings constantly advancing the state of knowledge (see National 
Standard 2 guidelines, 50 CFR 600.315(a)(5)), NMFS does not believe 
that an FMP--which is a management and policy document that can take a 
long time to amend--must specify the approaches and methods that 
scientists must use to make such assessments or estimations. If a 
Council wants to include such methods in its SBRM, the Council may do 
so, but is not required to.
    Uncertainty in data is a reality of fisheries management. See NS9 
guidelines, 50 CFR 600.350(d)(2) (stating that due to limitations in 
available information, fishery managers ``may not be able to generate 
precise estimates of bycatch and bycatch mortality of other effects'' 
for management alternatives). NMFS' National Standard 2 guidelines 
provide that mandatory measures not be delayed due to incomplete data, 
but management decisions should recognize the risks associated with the 
sources of uncertainty and gaps in the scientific information. Id. 
Sec.  600.315(a)(2), (a)(6)(v). Consistent with these guidelines, and 
in response to comments, NMFS has revised the proposed rule regulatory 
text by adding language to Sec.  600.1610(a)(2) in a new paragraph 
(iii) to require a Council to address uncertainty and design an SBRM so 
that uncertainty associated with the resulting bycatch data reported to 
the Secretary can be described, quantitatively or qualitatively. NMFS 
clarifies in that subsection that Councils should seek to minimize 
uncertainty in the resulting data, recognizing that different degrees 
of data uncertainty may be appropriate for different fisheries. See 
comment and response 31, infra, discussing data quality issues.
    Comment 15: Several commenters asserted that NMFS must not step 
away from prior guidance in Evaluating Bycatch that ``the combination 
of data collection and analyses that is used to estimate bycatch in a 
fishery constitutes the SBRM for that fishery.''
    Response: NMFS acknowledged in the notice of proposed rulemaking 
that Appendix 5 of Evaluating Bycatch describes SBRM as the combination 
of data collection and analyses that is used to estimate bycatch in a 
fishery. However, as previously noted, Evaluating Bycatch is a 
technical memorandum; neither the memorandum nor its appendices 
established binding policy or agency interpretation of MSA section 
303(a)(11). NMFS is issuing this rule to set forth its interpretation 
of section 303(a)(11). In developing this rule, NMFS undertook a 
comprehensive evaluation of section 303(a)(11), including the language 
of the provision and its context in the overall statutory scheme for 
fisheries management established by Congress in the MSA. See ``Purpose 
of an SBRM'' above, responses to comments 13 through 17, and 
``Activities Associated with an SBRM'' in the proposed rule (discussing 
distinction between data collection/reporting and assessment) (81 FR 
9413, February 25, 2016). NMFS believes that it is important to be 
clear about the key policy choices and objectives associated with 
establishing a reporting methodology, and not confuse those choices 
with statistical and technical approaches for estimating bycatch that 
are inherently scientific and data dependent, or with the policy 
choices associated with developing measures to minimize bycatch or 
bycatch mortality. After careful analysis and consideration of public 
comments, NMFS has decided not to retain the approach from Evaluating 
Bycatch.
    Comment 16: One commenter states that, assuming the agency's 
proposed rule for SBRM was in place, Councils and scientists would now 
have no guidance for how to actually assess bycatch. There is no 
guidance provided, and none promised, on how to model the amount, type, 
and scope of bycatch with the (likely) piecemeal and uneven data 
provided by SBRMs.
    Response: NMFS relies on expertise from six regional science 
centers to provide scientific information and analyses for fishery 
management. Providing guidance in this rule on how to assess bycatch is 
inappropriate and unnecessary given the dynamic nature of science and 
existing guidance and scientific processes. Notably, National Standard 
2 (NS2), 16 U.S.C. 1851(a)(2), requires that conservation and 
management measures be based on the best scientific information 
available, and NMFS has provided guidance on NS2 at 50 CFR 600.315.
    Best scientific information available includes, but is not limited 
to, models, data, analyses, and scientific assessments, and new 
scientific findings constantly advance the state of knowledge. Id. 
Sec.  600.315(a)(4)-(5). As explained in the NS2 guidelines, scientific 
information is not conducted in a vacuum, but is subject to peer 
review, consistent with the guidelines and the Office of Management and 
Budget Final Information Quality Bulletin for Peer Review. Id. Sec.  
600.315(a)(6)(vii). Moreover, each Council has a Scientific and 
Statistical Committee that is responsible for providing the Council 
with ongoing scientific advice. Id. Sec.  600.315(c) and 16 U.S.C. 
1852(g)(1).
    Comment 17: One commenter supports the clarification that the SBRM 
consists of the data collection and reporting programs, and is distinct 
from the methods used to assess bycatch and the measures to minimize 
bycatch. The proposed rule preamble indicated that a Council may 
include other elements (such as the analytic approach used to assess 
bycatch), and the commenter suggested adding this point to the 
regulatory text.
    Response: NMFS thanks the commenter for expressing support for its 
approach. However, NMFS does not believe that changes to the regulatory 
text are necessary. As explained in the proposed rule preamble (81 FR 
9413, February 25, 2016), this rule describes the basic requirements of 
the SBRM provision of section 303(a)(11) of the MSA. A Council may, but 
is not required to, add other relevant information to its FMP beyond 
the basic requirements of this rule.
    Comment 18: One commenter stated that the underlying purpose of an 
SBRM might affect its design, as data provided by these programs can be 
used a number of different ways, and the design needs to be appropriate 
for these uses. For example, the design of an SBRM may be very 
different if it is primarily used to support stock assessments rather 
than fishery management decisions. In the former case, an argument 
could be made that the responsible science center should have extensive 
input in its development. On the other hand, if intended primarily to 
address the requirements placed on managers to minimize bycatch to the 
extent practicable, the Council's needs should have more weight. The 
proposed rule should suggest a clear discussion in the SBRM about how 
its design addresses the needs of scientists and managers.
    Response: The rule requires that an FMP, or a fishery research plan 
authorized under 16 U.S.C. 1862, explain how an SBRM meets the purpose 
described in Sec.  600.1600, based on an analysis of requirements in 
Sec.  600.1610(a)(2). The purpose of SBRM is two-fold: Provide data 
that, in conjunction with other relevant sources of information, are 
used to assess the amount and type of bycatch occurring in a fishery 
and for informing the development of conservation and management 
measures to minimize bycatch. Given this purpose, Sec.  600.1610(a)(2) 
requires a Council to address the characteristics of bycatch in the 
fishery, the feasibility of the SBRM, data uncertainty, and data use. 
NMFS

[[Page 6326]]

acknowledges in the final rule that different SBRMs may be appropriate 
for different fisheries due to the inherent variability among 
fisheries. Scientific input is an important aspect of developing an 
SBRM, thus Sec.  600.1610(a)(2)(iv) requires a Council to consult with 
its SSC and/or regional NMFS science center on SBRM design 
considerations.
    Comment 19: One commenter asserted that the SBRM rule should follow 
a precautionary, ecosystem-based approach that can be applied uniformly 
to all fisheries to count, cap and control bycatch.
    Response: For the reasons explained in responses to comments 1, 2, 
8 and other comments, this final rule takes a fishery-specific approach 
to establishing SBRMs. NMFS believes that this rule will ensure the 
standardized collection, recording, and reporting of bycatch data for 
each fishery. A uniform approach to count, cap, and control bycatch 
across all fisheries is not required under the MSA, and is not 
practical or cost effective, given the variability in fishery 
characteristics. See response to comment 8 for further explanation. 
NMFS believes that this rule is consistent with and complementary to 
the agency's policy for ecosystem-based fisheries management. NMFS 
strongly supports implementation of Ecosystem-Based Fisheries 
Management (EBFM) to better inform and enable decisions regarding 
trade-offs among and between fisheries (commercial, recreational, and 
subsistence), aquaculture, protected species, biodiversity, and 
habitats. Recognizing the interconnectedness of these ecosystem 
components will help maintain resilient and productive ecosystems 
(including human communities), even as they respond to climate, 
habitat, ecological, and other environmental changes. See http://www.st.nmfs.noaa.gov/Assets/ecosystems/ebfm/Final-EBFM-Policy-PDS-Review-5.20.2016-final-for-PDS.pdf. This rule is consistent with the 
EBFM policy statement because it provides for a national approach to 
establishing and reviewing SBRMs and will improve NMFS' understanding 
of the impacts of a fishery on non-target stocks. Such information will 
help NMFS and the Councils consider the ecosystem-level trade-offs that 
are a key component of EBFM.
    Comment 20: One commenter stated that in order for data to be 
``useful'' (see proposed Sec.  600.1610(a)(1)(i) at 81 FR 9413, 
February 25, 2016), clear criteria must be set so that standardized 
bycatch data can be fed into the calculation of annual catch limits 
(ACL) and fully considered in the implementation of accountability 
measures (AM). Bycatch must be accurately assessed because it counts 
against a stock's catch limit. Bycatch must be monitored to comply with 
both the SBRM provision in MSA section 303(a)(11) and ACL/AM 
requirements in MSA section 303(a)(15).
    Response: NMFS has deleted the term ``useful'' and revised the 
final rule to require that Councils address data use and data 
uncertainty when establishing or reviewing an SBRM. See e.g., responses 
to comments 13 and 31 through 33. Data resulting from SBRMs may be used 
to inform management decisions beyond bycatch-related ones, and NS2 
provides the standard for data used to inform such decisions: 
Conservation and management measures shall be based on the ``best 
scientific information available.'' 16 U.S.C. 1851(a)(2). For the 
reasons explained in responses to comments 31 through 33, NMFS is not 
establishing national standards for accuracy of data or estimates in 
this final rule.
    NMFS notes that SBRMs (16 U.S.C. 1853(a)(11)) and ACLs/AMs (16 
U.S.C. 1853(a)(15)) are separate statutory requirements, which should 
not be conflated. See Oceana v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011). 
Detailed guidance on establishing ACL/AM mechanisms is provided in the 
National Standard 1 (NS1) guidelines (50 CFR 600.310). To the extent 
that data from an SBRM are used in specifying ACLs, this final rule 
complements the NS1 guidelines. The NS1 guidelines state that the 
``acceptable biological catch'' accounts for scientific uncertainty in 
the estimate of the overfishing limit for a stock or stock complex. 50 
CFR 600.310(f)(2)(ii). Section 600.1610(a)(2)(iii) also addresses 
uncertainty, requiring that an SBRM be designed so that uncertainty 
associated with the resulting data can be described quantitatively or 
qualitatively. This is consistent with the NS2 guidelines (50 CFR 
600.315), which provide guidance on uncertainty and issues related to 
use of the best scientific information available. Moreover, the NS1 
guidelines refer to mortality of fish that are discarded (50 CFR 
600.310(f)(2)(i)), and Sec.  600.1610(a)(2)(i) of this final rule 
requires that, when developing an SBRM, a Council must address, among 
other things, ``the importance of bycatch in estimating the fishing 
mortality of fish stocks.''

Types of Data Collection, Recording, and Reporting Procedures

    Comment 21: One commenter recommended eliminating the ``self-
reported mechanisms'' option provided for in the proposed rule's Sec.  
600.1610(a) (81 FR 9413, February 25, 2016) to help eliminate bias in 
data collection.
    Response: NMFS does not agree with this comment; self-reported 
mechanisms are important to include as a potential reporting procedure 
because they are cost effective, feasible, and already available and 
appropriate for use in various fisheries to report bycatch data. Self-
reported mechanisms (such as logbooks that include bycatch reporting) 
usually are required of all fishery participants, and therefore 
represent a near-census of the fishery. The costs of logbook programs 
are typically low, and, concerns regarding safety are limited to 
concerns that already exist with fishing operations, which are 
substantial for fishermen but basically nonexistent for those 
processing logbooks. However, NMFS recognizes that an SBRM based solely 
on logbooks will not be appropriate for all fisheries. That is why the 
rule requires Councils to undertake a fishery-specific analysis of 
SBRMs. Further, the rule requires that an SBRM be designed so that the 
uncertainty associated with the data resulting from the SBRM can be 
described. Management decisions should recognize the risks associated 
with that uncertainty. See National Standard 2 guidelines, 50 CFR 
600.315.
    Comment 22: Many commenters recommended reporting bycatch data and 
estimates in a manner that is useful for stakeholders, managers, and 
scientists.
    Response: NMFS agrees with this comment. The final rule states that 
the purpose of an SBRM is to collect, record, and report bycatch data 
that, in conjunction with other relevant sources of information, can be 
used to assess bycatch and inform the development of conservation and 
management measures. Any SBRM established by a Council must achieve 
this purpose, thereby ensuring that bycatch data resulting from an SBRM 
will be useful for stakeholders, managers, and scientists.
    Comment 23: Several commenters recommended requiring observer 
programs and/or electronic monitoring to promote the collection of 
accurate data and mitigate against data collection bias. One commenter 
stated other agency documents have recognized the benefits of observers 
for quantifying and estimating bycatch. However, the proposed rule does 
not require trained observers.
    Response: NMFS disagrees that the rule should require the 
implementation of observer or electronic monitoring programs. Observer 
and electronic monitoring programs are not the only ways to collect, 
record, and report

[[Page 6327]]

bycatch, and the MSA does not require their inclusion in every SBRM. 
See 16 U.S.C. 1853(a)(11), (b)(8). NMFS recognizes that observer 
programs are used in many fisheries for collecting bycatch data. 
However, observer programs are costly and logistically challenging, and 
such programs may not be needed in all fisheries. Requiring every SBRM 
to include an observer program would not be an efficient use of 
resources. Further, it is NMFS' policy to encourage the consideration 
of electronic technologies to complement and/or improve existing 
fishery-dependent data collection programs to achieve the most cost-
effective and sustainable approach that ensures alignment of management 
goals, data needs, funding sources and regulations. See NMFS Policy 
Directive 30-133, Policy on Electronic Technologies and Fishery-
Dependent Data Collection (May 3, 2013). However, the adoption of new 
technologies raises numerous fishery-specific technical, legal, and 
policy issues, and, as with observer programs, electronic monitoring 
programs may not be needed or feasible in a particular fishery. 
Recognizing the diversity of fisheries across the country, this rule 
requires Councils to undertake a fishery-specific evaluation to 
determine the SBRM appropriate to a fishery, while still achieving the 
purpose of an SBRM as described in Sec.  600.1600.
    Comment 24: A commenter requested that intercept surveys be 
explicitly mentioned in Sec.  600.1610(a) as an example of a self-
reported mechanism.
    Response: The types of self-reported mechanisms identified in Sec.  
600.1610(a)(1) are examples; this list is not exhaustive or limiting. 
NMFS agrees that intercept surveys are a type of self-reported 
mechanism, along with others, that could be included in an SBRM.
    Comment 25: A commenter requested written reports for the Councils 
(and the public) from NMFS each year that minimally report by species 
and sector how many fish were landed and how many were released. To 
track Council progress towards minimizing bycatch, the commenter 
suggested a report in December on the first 6 months of the year and a 
final report in June showing landings and released fish by sector by 
species for the previous year. The commenter also requested that 
preliminary bycatch information by sector be provided at each Council 
meeting when landings information is presented.
    Response: Catch and landings data and estimates/assessments are 
available through a variety of means, including, but not limited to, 
stock assessments and other scientific documents and reports, SAFE 
reports, annual Fisheries of the United States reports, the National 
Bycatch Reports and national reports to international committees. 
Landings data can be accessed online using NMFS' species information 
system at https://www.st.nmfs.noaa.gov/sisPortal/sisPortalMain.jsp.
    Comment 26: One commenter stated that locating specific data and 
metadata about bycatch is an ongoing issue because various data are 
reported in disparate reports. The commenter suggested including a 
provision to require the movement to housing of data in a single source 
(such as a data warehouse) to improve standardizing, documenting, and 
accessing data.
    Response: Since 2011, NMFS has published a series of National 
Bycatch Reports and Updates that provide information on fishery- and 
species-specific bycatch estimates for major U.S. fisheries around the 
country. Some of the estimates contained in the National Bycatch 
Reports and Updates are also published in other NMFS documents such as 
its marine mammal stock assessment reports. Additionally as stated in 
response to comment 6 and 25, NMFS has created a custom database that 
allows members of the public to query bycatch estimates that were 
published in the National Bycatch Report Updates. (Members of the 
public can access the database here: http://www.st.nmfs.noaa.gov/observer-home/first-edition-update-1). See responses to comments 8 and 
9 for an explanation as to why section 303(a)(11) and this rule do not 
require data collection to be standardized at the national level.

FMP Contents

    Comment 27: One commenter stated that the required factors for 
SBRMs (proposed Sec.  600.1610(a)(2)(i), (ii) at 81 FR 9413, February 
25, 2016) are minimal and lack specificity. Details of establishing and 
reviewing SBRMs are left to Councils, and NMFS has no enforcement 
mechanism to ensure SBRMs are established and no option to take over if 
a Council fails to establish an SBRM. NMFS should revise the rule to 
make SBRMs mandatory. In addition, the rule should prescribe and detail 
each aspect of bycatch data collection and assessment to allow 
uniformity of information that can be aggregated and compared, ideally 
not only nationally but also internationally.
    Response: The requirement to establish an SBRM is mandatory under 
MSA section 303(a)(11). Section 600.1600 and the proposed rule preamble 
(81 FR 9413, February 25, 2016) explicitly state that this is an MSA 
requirement. In response to public comments, NMFS has included in the 
final rule revisions that clarify the requirements (initially referred 
to as ``factors'' in the proposed rule) for establishing and reviewing 
an SBRM. Section 600.1610(a)(1) provides that an FMP, or a fishery 
research plan as authorized under 16 U.S.C. 1862, must explain how the 
methodology meets the purpose described in Sec.  600.1600, based on an 
analysis of the requirements set forth in Sec.  600.1610(a)(2): 
Characteristics of bycatch, feasibility, data uncertainty, and data 
use. NMFS disagrees that methodology needs to be standardized at a 
national or international level. See comments and responses 1, 2, 8, 
and 9. With regard to data assessment, this rule requires a Council to 
address data use and data uncertainty and to consult with its SSC and/
or NMFS science centers. See comments and responses 16, and 31 through 
33. NMFS does not believe more prescriptive text is needed regarding 
data collection and assessment.
    Under the MSA, Councils are in the first instance responsible for 
developing FMPs and addressing mandatory FMP requirements, including 
SBRMs. NMFS has a seat on each Council. NMFS will use its regular 
procedures for approval of FMPs and FMP amendments to ensure that FMPs 
and their implementing regulations are consistent with the MSA and 
other applicable laws. NMFS notes that MSA section 304(c) specifically 
addresses when NMFS may prepare an FMP.
    Comment 28: NMFS received comments stating that its proposed 
regulations regarding the contents of FMPs and the factors that a 
Council must consider in establishing or reviewing an SBRM are too 
prescriptive. One commenter recommended revising the regulatory text of 
Sec.  600.1610 in several places to clearly reflect that the objective 
of this proposed rule is to provide guidance to the Councils on the 
implementation of SBRMs. The commenter recommended changes to the 
regulatory text to provide greater flexibility.
    Response: As explained previously, the purpose of this rule is to 
set forth the basic requirements of MSA section 303(a)(11). See 
comments and responses 1 and 2 (explaining the effect and need for 
rule). NMFS does not believe the rule is overly prescriptive, as it 
takes a fishery-specific approach, and does not prescribe specific 
details on the methodology needed for each fishery.
    Comment 29: A commenter stated that Sec.  600.1610(a)(1) should be 
revised to allow Councils to include a more detailed description of the 
SBRM in

[[Page 6328]]

other documents than the FMP. For example, the North Pacific Fishery 
Management Council and NMFS use an Annual Deployment Plan (ADP) process 
to determine the scientific sampling plan and method for assigning 
observers to vessels and processing plants. This can change from year 
to year. Under proposed Sec.  600.1610(a)(1) at 81 FR 9413, February 
25, 2016, it appears that an FMP would need to include a specific 
reference to the ADP process (which it already does), or to provisions 
for a specific annual ADP, which would be outdated almost immediately 
upon approval of the FMP amendment. This is not necessary and is 
directly counter to the overall objective of this proposed rule, which 
is to provide the public with greater clarity about the provisions of 
an SBRM.
    Response: Each FMP must identify the required procedure or 
procedures that constitute the SBRM for a fishery. See Sec.  
600.1610(a)(1). In addition, an FMP, or fishery research plan as 
authorized under 16 U.S.C. 1862, must explain how an SBRM meets the 
purpose described in Sec.  600.1600, based on an analysis of four 
requirements under Sec.  600.1610(a)(2). The rule provides that the FMP 
or fisheries research plan may reference analyses and information in 
other documents. NMFS has also revised Sec.  600.1610(a)(1) to state 
that, in addition to any proposed implementing regulations, a Council 
should also provide in its FMP, or fishery research plan authorized 
under 16 U.S.C. 1862, guidance to NMFS on how to adjust implementation 
of an SBRM consistent with the FMP. In the North Pacific, the ADP 
referenced by the commenter is a component of the fishery research 
plan, thus NMFS and the Council may continue to use the ADP to 
determine annually the scientific sampling plan and method for 
assigning observers to vessels and processing plants, consistent with 
the fisheries research plan and FMP. See comment and response 48 for 
additional explanation.

Consideration of Quality and Use of Data

    Comment 30: One commenter expressed support for the requirement for 
Councils to consider data quality.
    Response: NMFS appreciates the support regarding the consideration 
of data quality. In the final rule, NMFS has elaborated on the concept 
of data quality by requiring Councils to address both the uncertainty 
of the data and the use of the data resulting from the SBRM. See 
comments and responses on ``Purpose of a Standardized Reporting 
Methodology'' and comments and responses 31 through 36.
    Comment 31: Several commenters asserted that the rule must 
incorporate standards for precision and accuracy, or should provide 
guidance that SBRMs produce statistically accurate, precise, and/or 
reliable estimates of bycatch. Another commenter stated that while the 
MSA does not specify a specific level of accuracy or precision, it does 
require that SBRMs produce data that are accurate and reliable enough 
to satisfy the statutory requirement to develop measures to minimize 
bycatch and bycatch mortality. Commenters cited several court decisions 
regarding SBRMs and accuracy or reliability of data. Some commenters 
also asserted that the proposed rule would result in data that is 
contrary to the agency's guidelines for National Standard 2 (NS2).
    Response: NMFS agrees that an SBRM must meet its statutory purpose. 
See response to comment 13 for further explanation. To that end, the 
final rule requires Councils to explain how a chosen SBRM meets its 
statutory purpose, based on an analysis of the characteristics of 
bycatch in the fishery, the feasibility of the SBRM, the uncertainty of 
the data associated with an SBRM, and the use of the data resulting 
from an SBRM. See comments and responses 32 through 36 for further 
discussion related to data use and uncertainty considerations.
    In this final rule, however, NMFS is not establishing national 
standards for precision, accuracy, or reliability of bycatch estimates 
or data. NMFS clarifies in this rule that Councils should seek to 
minimize uncertainty in the resulting data, recognizing that different 
degrees of data uncertainty may be appropriate for different fisheries. 
However, the specific characteristics of each fishery and its bycatch 
vary widely from region to region and from fishery to fishery. NMFS 
believes that it is important for Councils to address the 
characteristics of bycatch in a particular fishery and also address 
data use, data uncertainty, and feasibility considerations in the 
context of that fishery. To ensure robust scientific advice in 
establishing or reviewing SBRMs, Sec.  600.1610(a)(2)(iv) requires a 
Council to consult with its SSC and/or regional NMFS science centers on 
reporting methodology design considerations, such as data elements, 
sampling designs, sample sizes and reporting frequency, all of which 
contribute to the level of data quality.
    The SBRM provision in section 303(a)(11) of the MSA does not 
specify reliability, accuracy, precision, or other qualifiers regarding 
bycatch data or estimates. NMFS recognizes that 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) (finding 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 
FMPs before the courts, and did not engage in comprehensive analysis of 
the statutory construction of the SBRM provision. NMFS believes that 
the approach in the final rule is consistent with MSA section 
303(a)(11) and will ensure that SBRMs achieve the statutory purpose for 
SBRMs (Sec.  600.1600), while allowing Councils to address the unique 
circumstances of particular fisheries.
    NMFS disagrees that the rule would result in data that is contrary 
to the NS2 guidelines. NS2 requires that conservation and management 
measures be based on the best scientific information available. 16 
U.S.C. 1851(a)(2). It does not require NMFS to produce statistically 
reliable data or data that achieves a particular level of precision for 
the bycatch estimates. In fact, the NS2 guidelines recognize that there 
may be data limitations in different fisheries. See 50 CFR 
600.315(a)(3) (noting that ``data-poor'' fisheries may require use of 
simpler assessment methods and greater use of proxies for quantities 
that cannot be directly estimated). Consistent with the NS2 guidelines 
at Sec.  600.315(a)(2) and Sec.  600.315(a)(6)(v), and in response to 
comments, NMFS has revised Sec.  600.1610(a)(2) by adding a new 
paragraph (iii) that requires a Council to address uncertainty and to 
design SBRMs so that uncertainty associated with the resulting bycatch 
data reported to the Secretary can be described quantitatively or 
qualitatively.
    Comment 32: Many commenters stated that the SBRM rule will result 
in poor data and, as a result, managers will not be able to sustainably 
manage fisheries. Commenters asserted that an accurate accounting of 
bycatch in fisheries is critical to fulfilling the requirements of the 
MSA to account for all sources of mortality in fisheries management, 
prevent overfishing, rebuild overfished stocks, and minimize

[[Page 6329]]

the amount of bycatch and mortality of unavoidable bycatch.
    Response: NMFS disagrees that the rule will adversely affect data 
collection and fishery management efforts. The rule reinforces that an 
SBRM must meet its statutory purpose and sets forth requirements for 
establishing and reviewing SBRMs. For example, the rule includes a 
requirement that Councils address the uncertainty of the data resulting 
from an SBRM and that Councils design an SBRM so that the uncertainty 
of the data can be described. The rule clarifies that Councils should 
seek to minimize uncertainty in the resulting data, recognizing that 
different degrees of data uncertainty may be appropriate for different 
fisheries. The rule also includes a requirement that Councils address 
how the data resulting from the SBRM are used and consult with their 
SSCs and/or the regional science centers on SBRM design considerations. 
NMFS believes that the rule's requirements, along with periodic review 
of SBRMs, will ensure that SBRMs produce bycatch data that, along with 
other sources of data, can be used to assess and estimate bycatch and 
inform the development of conservation and management measures.
    The NS2 and NS9 guidelines acknowledge that all scientific data 
come with a level of uncertainty. See response to comment 31 
(discussing 50 CFR 600.350(d)(2), Sec.  600.315(a)(2), and Sec.  
600.315(a)(6)(v)). As the NS2 guidelines note, science is a dynamic 
process and new scientific findings constantly advance the state of 
knowledge. Id. Sec.  600.315(a)(5) (stating that best scientific 
information is, therefore, not static and ideally entails developing 
and following a research plan). The key thing is to account for 
uncertainty when considering fishery management decisions. See e.g., 50 
CFR 600.315(a)(2) and Sec.  600.315(a)(6)(v) (providing for 
acknowledgment of uncertainties in scientific information used to 
inform decision making); and Sec.  600.310(f)(1)(vi) and Sec.  
600.310(f)(2)(i) (describing under NS1 guidelines sources of scientific 
uncertainty and requiring that acceptable biological catch control rule 
account for scientific uncertainty and the Council's risk policy). NMFS 
notes that the requirement to establish an SBRM (16 U.S.C. 1853(a)(11)) 
is a separate statutory requirement from annual catch limits and other 
overfishing provisions (16 U.S.C. 1853(a)(15) and 1851(a)(1)) and from 
rebuilding provisions (16 U.S.C. 1854(e)). These various provisions 
should not be conflated.
    Comment 33: One commenter stated that without any guidance on the 
level of accuracy and precision of the data, it is unclear to what 
extent the data will be ``useful'' in assessing bycatch to inform 
management decisions. The commenter stated that the rule itself does 
not need to specify what constitutes ``useful,'' but it should 
recommend a clear process, like SSC consultation, that will define 
``useful.'' Another commenter stated that NMFS should clarify the 
language in Sec.  600.1610(b) requiring consultation with a council's 
SSC, advisory panels, and the NOAA science centers to ensure that 
bycatch estimation can be appropriately considered with respect to 
establishing a reporting methodology. Another commenter stated that 
SBRMs should be designed based on the best scientific statistical and 
sampling methods available to collect and analyze that data.
    Response: In response to comments, NMFS has deleted reference to 
``data that are useful'' in the final rule. Instead, NMFS specifies 
that an SBRM must meet its statutory purpose set forth in Sec.  
600.1600, and requires under Sec.  600.1610(a)(2)(iv) consultation with 
the SSC and NOAA science centers. Specifically, NMFS has revised the 
final rule to require in Sec.  600.1610(a)(2)(iv) that a Council 
consult with its SSC and the NOAA science centers on methodology design 
considerations such as data elements, sampling designs, sample sizes, 
reporting frequency, and the scientific methods and techniques 
available to collect, record, and report bycatch data that could 
improve the quality of the bycatch estimates. Information provided 
through the consultation process will enable a Council to develop an 
SBRM that incorporates scientific input and that will provide data that 
can be used to assess the amount and type of bycatch occurring in the 
fishery.
    Comment 34: Some commenters expressed support for Evaluating 
Bycatch, which recommended the use of at-sea observers and 
observational technologies, a statistically valid sampling design, a 
goal to achieve levels of precision of 20 to 30 percent coefficient of 
variation (CV), models for combining data to assess bycatch, and 
adherence to data collection and estimation standards. One commenter 
asserted that, without further study, NMFS cannot step away from the 
recommendations in Evaluating Bycatch. The commenter stated that the 
memorandum may represent the ``best available science'' and, if so, 
NMFS must rely upon it and incorporate it in this rule.
    Response: NMFS disagrees that Evaluating Bycatch should be 
incorporated into this rule: It was not developed as the agency's 
interpretation of MSA section 303(a)(11), and it conflates the 
establishment of a reporting methodology with methods to assess/
estimate bycatch. However, NMFS closely reviewed Evaluating Bycatch 
when developing this rule and drew upon concepts and approaches from 
that report. For example, the report noted that the choice of which 
monitoring methods are used in a particular fishery is based on 
consideration of a range of factors, e.g., quality of data, 
credibility, timeliness, cost, safety. See Evaluating Bycatch at 23. 
With regard to estimates of bycatch from observer data, the report 
provides CV recommendations, but lists numerous caveats for using 
precision goals in the context of bycatch reporting/monitoring 
programs. See id. at 103 (noting that there may be circumstances where 
meeting precision goals for bycatch estimates would not be an efficient 
use of public resources, funding and logistical constraints may prevent 
attainment of goals, etc.). NMFS also notes that this rule takes a 
fishery-specific approach and requires Councils to address bycatch 
characteristics, data quality, data use, and feasibility, which are 
considerations reflected in Evaluating Bycatch.
    Evaluating Bycatch continues to be available as a resource; it 
contains information that may be helpful when developing SBRMs, such as 
discussion of regional bycatch and fisheries issues, the advantages and 
disadvantages of different reporting/monitoring measures, and precision 
goals for bycatch estimates. However, the report is from 2004, so it 
would be important for a Council to consider whether more updated 
information is available when establishing or reviewing an SBRM.
    Comment 35: Adequate monitoring of bycatch of fish as well as other 
living marine resources should be required in the proposed rule. The 
2005 report entitled, ``How Much Observer Coverage is Enough to 
Adequately Estimate Bycatch?'' should be reviewed carefully to assist 
the Fisheries Service in developing standardized criteria for bycatch 
monitoring.
    Response: In developing this final rule, NMFS considered the 
Babcock and Pikitch report, ``How Much Observer Coverage is Enough to 
Adequately Estimate Bycatch?'' NMFS is very familiar with this report, 
as NMFS has addressed the report in past litigation over SBRMs. As 
explained in the response to comment 13, assessing and estimating 
bycatch is not included in the definition of an SBRM. However, the rule 
requires, among other things,

[[Page 6330]]

consideration of data uncertainty and data use in developing and 
reviewing SBRMs. The Babcock and Pikitch report is one source among 
many sources of information available to Councils and NMFS when 
developing and reviewing SBRMs.
    NMFS notes that the report focuses on the use of observers for 
collecting, recording, and reporting bycatch data. The MSA provides 
that observers may be used, but are not required to be used, for data 
collection. See 16 U.S.C. 1853(b)(8) (providing for observers as a 
discretionary FMP measure). The report acknowledges that there is a 
range of observer coverages that may be more or less appropriate for a 
fishery. The report also notes that determining the appropriate level 
of sampling effort is an iterative process. This final rule similarly 
acknowledges that different SBRMs will be appropriate for different 
fisheries, and provides for scientific input into development of SBRMs 
and periodic review of SBRMs.
    Comment 36: One commenter stated that NMFS should conduct 
scientific studies on accuracy/bias, precision, management uncertainty, 
and electronic monitoring advances to determine how to set standardized 
criteria for bycatch monitoring and reporting.
    Response: NMFS strives to continually improve the science 
underlying its fishery management programs. Pursuant to 16 U.S.C. 
1881c, NMFS prepares, in cooperation with the Councils and states, a 
strategic plan for fisheries research. The NMFS Office of Science and 
Technology's 2013 Strategic Plan identifies a variety of activities to 
improve data collection and data assessments for a variety of purposes, 
including bycatch analyses. See https://www.st.nmfs.noaa.gov/Assets/Strategic-Plans/ST%20Strategic%20Science%20Plan%20%202013.pdf. NMFS 
recently initiated a review and update of this plan. Furthermore, in 
February 2016, NMFS released a draft National Bycatch Reduction 
Strategy (draft Strategy). See http://www.nmfs.noaa.gov/sfa/fisheries_eco/bycatch/docs/national-bycatch-strategy-2-23-16-web.pdf. 
The first objective of the draft Strategy is to strengthen monitoring 
and data collection programs through cost-effective use of new and 
existing tools (e.g., observers, logbooks, and electronic technologies) 
to collect bycatch data that inform agency bycatch priorities. NMFS 
received multiple public comments on the draft Strategy and is now 
working to finalize it and develop action plans. Once the strategy is 
finalized, NMFS plans to develop regional and national action plans in 
coordination with stakeholders to identify specific actions that 
reflect regionally specific bycatch priorities, including research and 
monitoring priorities. Another example of NMFS' commitment to 
continually improving our data collection programs is NMFS' Policy on 
electronic technologies and fishery-dependent data collection programs. 
See NMFS Policy Directive 30-133, Policy on Electronic Technologies and 
Fishery-Dependent Data Collection (http://www.nmfs.noaa.gov/op/pds/documents/30/30-133.pdf).This policy provides guidance on the adoption 
of electronic technology solutions in fishery dependent data collection 
programs. Electronic technologies include the use of vessel monitoring 
systems, electronic logbooks, video cameras for electronic monitoring, 
and other technologies.
    To the extent the commenter is recommending studies to support 
development of national, uniform bycatch reporting requirements, NMFS 
disagrees with the recommendation, as this rule takes a fishery-
specific approach to the SBRM requirement. See the responses to 
comments 8 through 12.

Consideration of Feasibility, Costs, and Funding

    Comment 37: Several commenters stated that the SBRM provision of 
section 303(a)(11) does not say that an FMP must include SBRM if it is 
``feasible'' or ``practicable''; the statute requires FMPs to establish 
SBRM without any qualifying condition. Commenters assert that the 
provisions of the proposed rule relating to feasibility, including 
consideration of costs and funding, are contrary to the plain language 
of the statute. Commenters also cite Oceana v. Locke, 670 F. 3d 1238 
(D.C. Cir. 2011), for the proposition that the MSA requires NMFS to 
establish SBRM without regard to any consideration of practicability 
(i.e., costs or funding). Commenters also argue that NMFS may not 
import a ``practicable'' standard from National Standard 7 (NS7), and 
may not use reducing costs as an excuse to implement weakened 
management measures that will not achieve the MSA's primary 
conservation requirements.
    Response: NMFS agrees that the requirement to establish a 
standardized reporting methodology is mandatory for all FMPs. However, 
NMFS disagrees that the MSA precludes consideration of feasibility from 
cost, technical, and operational perspectives when establishing such a 
methodology. Beyond the fact that an SBRM must meet its statutory 
purpose, section 303(a)(11) does not specify any considerations for 
establishing a standardized reporting methodology; therefore, NMFS has 
discretion to interpret the MSA and establish reasonable considerations 
and requirements. Data collection, reporting, and recording programs 
can be expensive, logistically challenging to design and implement, 
involve new and cutting-edge technologies, and necessitate the 
consideration of the safety of human life at sea. Therefore, it is 
reasonable and appropriate for a Council to analyze issues of 
feasibility when establishing or reviewing an SBRM and to ultimately 
choose a methodology that is in fact feasible (i.e., capable of being 
implemented) from cost, technical, and operational perspectives. See 
response to comment 38 (describing budget and funding challenges).
    Contrary to commenters' assertion, Oceana v. Locke, 670 F. 3d 1238 
(D.C. Cir. 2011), does not preclude consideration of costs. In that 
case, the court noted that the second clause of section 303(a)(11) 
(regarding bycatch minimization measures) includes the phrase ``to the 
extent practicable,'' but that phrase does not appear in the first 
clause that requires establishing SBRMs. Oceana v. Locke held that 
costs and funding are not an excuse to forego establishing SBRMs. 
Consistent with the opinion, NMFS has revised Sec.  600.1610(a)(2)(ii) 
in this rule to state explicitly that feasibility concerns do not 
exempt an FMP from the requirement to establish SBRM. NMFS disagrees 
that the opinion prohibits any consideration of costs or funding.
    Commenters assert that NMFS cannot consider NS7 (conservation and 
management measures shall, where practicable, minimize costs and avoid 
unnecessary duplication) in interpreting section 303(a)(11) because 
they are separate statutory provisions. MSA sections 301 (National 
Standards) and 303 (FMP Contents) are separate provisions, but NMFS 
disagrees that the agency may not consider them both in developing this 
rule. FMPs must comply with mandatory FMP requirements under section 
303(a)--such as the SBRM provision--and also the National Standards 
under section 301. See 16 U.S.C. 1853(a) and 16 U.S.C. 1851(a). In 
addition, it is important to consider the SBRM provision in the context 
of the statute as a whole.
    Commenters further argue that even if it is permissible to consider 
NS7, NS7 requires that costs be minimized ``where practicable, not 
absolutely,'' citing Connecticut v. Daley, 53 F.Supp.2d 147,

[[Page 6331]]

172-73 (D. Conn. 1999). This rule requires that an SBRM be feasible 
from cost and other perspectives, not that costs be minimized 
absolutely. Commenters also cite N. Carolina Fisheries Ass'n, Inc. v. 
Gutierrez, 518 F.Supp.2d 62, 91-92 (D.D.C. 2007), for the proposition 
that Congress intended that ``a focus on the economic consequences of 
regulations not subordinate th[e] principal [conservation] goal of the 
MSA.'' NMFS notes that the cited language did not address NS7, as 
commenters assert, but NS8. NS8 requires, in relevant part, that FMP 
measures ``shall, consistent with the conservation requirements of this 
Act (including the prevention of overfishing and rebuilding of 
overfished stocks), take into account the importance of fishery 
resources to fishing communities'' and ``to the extent practicable, 
minimize adverse economic impacts on such communities'' 16 U.S.C. 
1851(a)(8). Whether an SBRM can be implemented from cost and other 
perspectives is different than an analysis of economic impacts on 
communities. Moreover, NS8 makes explicit reference to MSA conservation 
requirements, whereas NS7 does not. In any event, as explained above, 
this rule does not allow a Council to forego establishing an SBRM based 
on high costs or low funding.
    Comment 38: NMFS received several comments on the requirement in 
the proposed rule that all SBRMs must be designed to be implemented 
within available funding. Some commenters supported the requirement, 
some asked for clarification, and some opposed the requirement. One 
commenter requested that NMFS clarify that if funds are not available 
from current funding sources, then there is no requirement to implement 
the SBRM. One commenter noted that future funding for monitoring 
programs is unknown, so it is not clear how a Council can be expected 
to address ``feasibility'' when designing an SBRM or how it can design 
an SBRM to be implemented within available funding. The commenter 
suggested a more thorough discussion of how a Council is supposed to 
design a program for an uncertain funding amount. Other commenters 
asserted that NMFS controls the availability for funding for SBRMs. 
These commenters stated that the proposed rule therefore would allow 
the agency to disapprove the establishment of an SBRM based on a self-
imposed funding problem.
    Response: SBRMs are mandated by statute, and NMFS has revised Sec.  
600.1610(a)(2)(ii) to state explicitly that feasibility concerns do not 
exempt an FMP from this statutory mandate. In response to public 
comment, NMFS has deleted reference to designing an SBRM to be 
``implemented with available funding,'' but has retained the 
requirement that an SBRM must be feasible from cost, technical, and 
operational perspectives. For example, although an increase in observer 
coverage levels in a certain fishery may reduce the uncertainty of the 
data resulting from the SBRM, such an increase may not be feasible from 
a cost or safety standpoint or may result in only an incremental 
improvement in data quality. Under this rule, Councils would evaluate 
whether such an increase is justified in light of the purpose of the 
methodology and feasibility and other requirements under Sec.  
600.1610(a)(2).
    NMFS is charged with fulfilling a wide range of requirements under 
the MSA, MMPA, ESA, and other statutes. These mandates include, but are 
not limited to, ending overfishing and rebuilding fish stocks, 
protecting and recovering threatened and endangered species, reducing 
bycatch, enforcing laws and regulations, and combating illegal, 
unreported, and unregulated fishing internationally. Addressing all of 
these mandates and requirements is a challenging undertaking for NMFS, 
particularly in light of increasing legal mandates and budget 
constraints.
    When Congress establishes a program or activity, it must decide how 
to finance it. Typically programs and activities are financed by 
appropriating funds from the U.S. Treasury. NMFS requests Congressional 
appropriations through the President's budget request to support 
statutory and regulatory requirements. Through this annual 
appropriations process, funding is provided for NMFS' many mandates. In 
addition to providing the necessary funds, a congressional 
appropriation establishes a maximum authorized program level, meaning 
that an agency cannot, absent specific statutory authorization, operate 
beyond the level that can be paid for by its appropriations. 72 Comp. 
Gen. 164, 165 (1993). In light of these considerations, and given that 
procedures to collect, report, and record bycatch data can be extremely 
costly, NMFS believes that it is important to require that SBRMs be 
feasible from cost as well as other perspectives.
    NMFS acknowledges that Congressional appropriations may change over 
time, and appropriated funds may, consistent with federal 
appropriations law, be allocated to implement various statutory 
mandates and to respond to changes in conditions and priorities across 
the country. However, even though it may not be possible to anticipate 
future funding levels for procedures to collect, record, and report 
bycatch with complete certainty, the Councils would not be developing 
SBRMs in a vacuum. NMFS has a seat on each Council, and meets regularly 
with the Council Coordination Committee. The Councils and NMFS are able 
to consider the trends in costs and in appropriations levels in recent 
years. For example, NMFS notes that funding for observer programs has 
been relatively stable over the past two years, with approximately 
$43.7 million appropriated by Congress for observer programs in FY 2015 
and FY 2016.
    Comment 39: One commenter stated that SBRMs should be functional at 
a variety of funding levels. If funding is insufficient for monitoring 
a particular management regime, then the regime should be made more 
precautionary (e.g., bigger buffers), rather than foregoing SBRMs or 
moving forward with inadequate funding. The commenter states that ACLs, 
AMs, and SBRMs are all key, interconnected components of a sustainable 
fishery. If the FMP design is demanding, then the SBRM must be too. If 
there is insufficient funding, the FMP design and the SBRM both need to 
be scaled back. NMFS should give guidance about how to revise FMP 
components to balance the level of an SBRM that is feasible.
    Response: NMFS agrees that an SBRM should be functional at varying 
funding levels. Section 600.1610(a)(2)(ii) explicitly acknowledges that 
funding may vary from year to year, and requires a Council to address 
how implementation of the methodology may be adjusted while continuing 
to meet the purpose described under Sec.  600.1600. NMFS believes this 
consideration is important, given the potential variability in funding 
levels, the desire for timely and efficient SBRM implementation, and 
the fact that FMP amendments can take a long time to develop and 
implement. This consideration is particularly important when developing 
SBRMs that have data collection procedures that may be more susceptible 
to changes in funding (e.g., observer programs). NMFS notes that the 
SBRM provision under MSA section 303(a)(11) is not couched in terms of 
an annual requirement as is the case with ACLs. Even if a funding 
shortfall in a particular year affects the implementation of an SBRM 
that does not necessarily mean that the SBRM is failing to meet its 
purpose or that it needs to be amended.
    Data resulting from SBRMs may be used to inform management 
decisions

[[Page 6332]]

beyond bycatch-related ones, but, as explained in response to comment 
20, SBRMs and ACLs/AMs are separate statutory requirements that should 
not be conflated. NMFS does not believe that further guidance is needed 
regarding buffers, given existing guidance related to scientific and 
other uncertainties. The NS1 guidelines, 50 CFR 600.310, describe how 
the Councils should consider uncertainty when specifying ACLs and AMs. 
The NS2 guidelines, 50 CFR 600.315, provide guidance on using data that 
is uncertain in management decisions. In addition, the NS6 guidelines, 
50 CFR 600.335, address how to take into account variations in 
fisheries (e.g., biological and economic uncertainties and 
uncertainties from changes in fishing practices).
    Comment 40: One commenter requested that NMFS clarify in the 
proposed rule's Sec.  600.1610(a)(2)(ii) (81 FR 9413, February 25, 
2016) who would be doing the assessment that a methodology is feasible 
from cost, technical, and operational perspectives.
    Response: NMFS has clarified Sec.  600.1610(a)(2) to state that the 
Councils are required to address feasibility and comply with other 
requirements of the section. Section 600.1605(b) defines ``Council'' in 
the same manner as in 50 CFR 600.305. Therefore, the word ``Council'' 
includes the Regional Fishery Management Councils and the Secretary of 
Commerce, as applicable. Per MSA section 304(a), NMFS approves, 
disapproves, or partially approves Council-developed FMPs and FMP 
amendments for consistency with the MSA and other applicable law. 16 
U.S.C. 1854(a).
    Comment 41: Two comments were related to the costs, including 
industry costs, associated with observer programs and electronic 
monitoring. One commenter stated that industry should not be required 
to pay for observer coverage. One commenter asked about the costs to 
monitor groundfish, and noted that there are some legal questions to 
address before electronic monitoring can be implemented.
    Response: NMFS recognizes that electronic monitoring and observer 
programs can be costly and logistically challenging to implement. 
However, a discussion of the particular costs and challenges associated 
with monitoring programs in specific fisheries is beyond the scope of 
this rule.
    Comment 42: One commenter stated that NMFS cannot justify to 
Congress the need for more funds related to bycatch data collection if 
the agency prevents Councils from designing good SBRMS, and, therefore, 
from assessing data needs and identifying capacity shortfalls.
    Response: With respect to the quality and use of the data resulting 
from SBRMs, please see responses to comments 30 through 36. With 
respect to budget requests, NMFS works with the Department of Commerce 
and the Office of Management and Budget (OMB) to request Congressional 
appropriations through the President's budget to Congress each fiscal 
year in accordance with relevant laws, regulations, and administrative 
procedures. NMFS uses information about bycatch research and data 
collection needs contained in a variety of reports and strategic 
planning processes to inform this budget planning and formulation 
process (e.g., the strategic plan for fisheries research required by 16 
U.S.C. 1881c of the MSA, National Observer Program strategic reviews 
and annual reports, SAFE reports, and numerous other documents). 
However, the development of NMFS-related funding requests contained in 
the President's yearly budget submission to Congress is beyond the 
scope of this rule.

Characteristics of Bycatch and Other Considerations

    Comment 43: Several commenters expressed support for the 
requirement for Councils to consider characteristics of bycatch in the 
fishery. One commenter noted that this requirement is more useful and 
important when establishing conservation and management measures. The 
commenter recommends that this sentence be moved to 50 CFR 
600.1610(a)(2)(ii) as additional factors that the Councils may 
consider. Another commenter asserted that SBRMs should be designed to 
provide more certain bycatch data in fisheries where discard mortality 
is identified as an important source of fishing mortality.
    Response: This rule requires Councils to undertake a fishery-
specific analysis to establish an SBRM that meets the purpose described 
in Sec.  600.1600 of this final rule. To perform such an analysis, NMFS 
believes that the specific characteristics of bycatch in that fishery 
need to be addressed. See response to comment 9 and section I.C. 
(discussing consideration of different fishing activities and 
operations).
    NMFS agrees that considering the importance of bycatch as part of 
fishing mortality is an important consideration when establishing or 
reviewing SBRMs. More specifically, Sec.  600.1610(a)(2)(i) provides 
that a Council must address information about the characteristics of 
bycatch in the fishery when available, including, but not limited to, 
the amount of bycatch occurring in the fishery, the importance of 
bycatch in estimating the fishing mortality of fish stocks, and the 
effect of bycatch on ecosystems. NMFS believes that a fishery-specific 
evaluation of bycatch as stated above, in conjunction with 
considerations of feasibility, data use, and data uncertainty will 
result in an SBRM that meets the purpose as described in Sec.  
600.1600.
    Comment 44: Some commenters stated that NMFS does not have 
discretion to decide not to require or establish an adequate SBRM, due 
to financial constraints or any other factors, such as the ``overall 
magnitude and/or economic impact of the fishery.''
    Response: As explained in response to comment 38, section 
303(a)(11) of the MSA requires all FMPs to establish an SBRM, and NMFS 
has revised Sec.  600.1610(a)(2)(ii) to state that feasibility concerns 
(which include costs and funding) do not exempt an FMP from this 
mandate. NMFS has removed the text about considering the overall 
magnitude and/or economic impact of the fishery from the final rule, 
because NMFS believes that it is not necessary given existing guidance 
for NS7 and National Standard 8.
    Comment 45: One commenter suggested the incorporation of guidance 
to ensure the proper identification of bycatch species to reduce 
misidentification errors. The commenter also suggested including 
consideration of the status of bycatch species.
    Response: Incorporating guidance for proper identification of 
bycatch species is beyond the scope of this rule. NMFS has created 
numerous species identification guides, some of which include 
information about the bycatch species' management status. For example, 
a NMFS shark identification guide for the recreational fishery of the 
U.S. Atlantic and Gulf of Mexico specifies which shark species are 
prohibited and must be released (see http://www.nmfs.noaa.gov/sfa/hms/species/sharks/rec_shark_id_placard.pdf). NMFS also has created a guide 
to help Alaska fishery observers identify coral species that may occur 
as bycatch (see http://www.afsc.noaa.gov/FMA/PDF_DOCS/Coral_Tutorial_2014.pdf). NMFS believes this guidance is more 
appropriately accomplished through these identification guides.
    Comment 46: Several commenters commented on the proposed rule's 
Sec.  600.1610(a)(2)(i) (81 FR 9413, February 25, 2016), which would 
require Councils to consider the conservation and management

[[Page 6333]]

objectives regarding bycatch in the fishery. One commenter asked 
whether this was intended to address something different than the 
bycatch provisions in MSA section 303(a). One commenter suggested 
clarifying that this does not establish a requirement that each FMP 
identify specific bycatch objectives beyond those required in section 
303(a)(11).
    Response: The intent of proposed Sec.  600.1610(a)(2)(i) (81 FR 
9413, February 25, 2016) was to provide for a fishery-specific analysis 
when establishing an SBRM. To clarify that this rule is not requiring 
Councils to identify specific bycatch objectives beyond those required 
by section 303(a)(11) and NS9, NMFS has removed reference to 
``conservation and management objectives regarding bycatch.'' Further, 
NMFS believes that it is not necessary to state this as a requirement 
in Sec.  600.1610(a)(2), because all SBRMs must meet the purpose 
described in Sec.  600.1600, which includes reference to ``inform[ing] 
the development of conservation and management measures that, to the 
extent practicable, minimize bycatch and bycatch mortality.''
    Comment 47: One commenter stated that SBRMs can and should describe 
the methodology by which bycatch data will be incrementally improved 
with new efficiencies, techniques, and funding.
    Response: NMFS disagrees with this comment as this rule, existing 
National Standard guidelines, and NMFS strategic plans already provide 
sufficient direction on improving bycatch data. This rule includes a 
provision for Councils to review SBRMs at least every 5 years, and in 
Sec.  600.1610(a)(2)(iv), requires Councils to consider scientific 
methods and techniques available to collect, record and report bycatch 
data that could improve the quality of bycatch estimates. In addition, 
the NS 9 guidelines provide guidance on improving data collection 
methods, data sources, and applications of data for each fishery to 
determine the amount, type, disposition, and other characteristics of 
bycatch and bycatch mortality in each fishery for purposes of NS9 and 
MSA sections 303(a)(11) and 303(a)(12). 50 CFR 600.350(d)(1). NMFS 
notes that it also has ongoing initiatives to address bycatch and to 
strengthen monitoring programs. See response to comment 36 for further 
explanation of these initiatives.

Adaptable Implementation

    Comment 48: NMFS received mixed comments on the adaptable 
implementation provision (proposed Sec.  600.1610(c) at 81 FR 9413, 
February 25, 2016). Some expressed support for it as it provides 
flexibility during implementation and others recommended changes to or 
elimination of the provision. One commenter indicated that the 
provision would support a Council's efforts to look at ways to increase 
and improve methodologies for data collection practices. One commenter 
stated that, before operational adjustments are made, managers should 
ensure that they can effectively collect and report data consistently 
across jurisdictions to inform the management of bycatch species. 
Another commenter stated that this provision frustrates congressional 
intent to have national-level standardization, and also allows for non-
transparent processes to adjust SBRMs. The commenter asserted that 
changes to an SBRM must be made through an FMP amendment to safeguard 
public participation and ensure that impacts will be more fully 
considered. One commenter requested deleting Sec.  600.1610(c), as it 
would severely limit a Council's ability to develop effective SBRMs and 
change SBRMs based on fishery characteristics in the future.
    Response: Fisheries management occurs in a highly variable 
environment, and from year to year, there can be changes in available 
funding, equipment, methods for recording and transmitting data, 
fishing activity, and other changes. NMFS' intent in proposing Sec.  
600.1610(c) was to emphasize that, when developing an SBRM, it is 
important to consider implementation and operational issues that might 
arise. See 50 CFR 600.335(b) (noting in National Standard 6 guidelines 
that a regime ``must be flexible enough to allow timely response to 
resource, industry, and other national and regional needs''). NMFS, 
Councils, and stakeholders all have an interest in smooth 
implementation of SBRMs, and FMPs can take a long time to amend. In 
response to public comments and to clarify its intent, NMFS has deleted 
proposed Sec.  600.1610(c) at 81 FR 9413, February 25, 2016. Instead, 
Sec.  600.1610(a)(1) clarifies that in addition to proposing 
regulations necessary to implement the SBRM, a Council should also 
provide in its FMP, or in a fishery research plan authorized under 16 
U.S.C. 1862, guidance to NMFS on how to adjust implementation of an 
SBRM, consistent with the FMP. See National Standard 6 guidelines, 50 
CFR 600.335. This text refers to adjustments ``consistent with the 
FMP.'' To the extent that changes would be needed to an SBRM beyond 
what the FMP established, an FMP amendment would be needed. NMFS 
believes that this approach will encourage transparency. The rule 
requires a Council to address implementation and operational issues up-
front during the development of an SBRM and encourages a Council to 
provide guidance to NMFS on SBRM implementation.
    Consistent with the SBRM established in an FMP, a Council could 
provide for adjustments in how an SBRM is implemented through 
regulations (see, e.g., SBRM Omnibus Amendment (80 FR 37182, June 30, 
2015)). Councils may also provide other guidance to NMFS via non-
regulatory mechanisms. As an example, the North Pacific Groundfish FMP 
uses an Annual Deployment Plan (ADP) to address practical and 
operational implementation issues. See comment and response 29 for 
further explanation of the ADP. When a Council is considering whether 
to provide for regulations and/or other guidance to implement an SBRM, 
some questions that may be helpful include: What are the implementation 
and operational issues that might arise (see e.g., variations and 
uncertainties described in NS6 guidelines); what type of adjustments or 
guidance might be helpful to address these issues; would certain 
adjustments result in an SBRM not meeting its purpose (see Sec.  
600.1600); and what would happen if there is an unexpected funding 
shortfall. NMFS disagrees that SBRMs need to be standardized at a 
national level in order to have data to inform management decisions. 
See comments and responses 13 (explaining purpose of SBRMs and 
consideration of data use and quality) and 8 (explaining interpretation 
of ``standardized'').
    Comment 49: One commenter stated that allowing adjustments to the 
bycatch methodology to be based on factors such as funding, management 
contingencies, or scientific priorities could be interpreted to 
authorize the type of budgetary exemption from SBRM requirements that 
has been found contrary to the MSA, citing Oceana v. Locke, 670 F.3d 
1238 (D.C. Cir. 2011).
    Response: As explained in responses to comments 37 and 38, MSA 
section 303(a)(11) requires that all FMPs establish an SBRM, and NMFS 
has clarified in Sec.  600.1610(a)(2)(ii) that ``feasibility concerns 
do not exempt an FMP from the requirement to establish a standardized 
reporting methodology.'' NMFS disagrees that Oceana v. Locke precludes 
a Council from considering implementation and operational issues and 
trying to plan for them. See

[[Page 6334]]

response to comment 37 for further discussion of the court case. 
Section 600.1610(a)(1) provides that a Council must explain how an 
SBRM, which may include an implementation adjustment mechanism, meets 
the statutory purpose of an SBRM (see Sec.  600.1600), based on an 
analysis of the requirements in Sec.  600.1610(a)(2) (characteristics 
of bycatch, feasibility, data quality and data use).

Review of FMPs

    Comment 50: Some commenters stated that the Sustainable Fisheries 
Act of 1996 (SFA) required the agency to establish SBRM regulations by 
1998, thus the 5 year review period would unreasonably delay SBRM 
implementation to 21 years after it was required by Congress.
    Response: NMFS disagrees with these comments. Section 108(a) of the 
SFA added several provisions to section 303(a) of the MSA, including 
section 303(a)(11). (See Pub. L. 104-297, 110 Stat. 3559, sec. 108 
(Oct. 11, 1996)). Section 108(b) of the SFA required that each Council 
submit to the Secretary of Commerce amendments to each FMP to comply 
with the amendments made in section 108(a) not later than 24 months 
after the date of enactment. Id. The Act did not require NMFS to 
promulgate a national SBRM rulemaking. As explained in the preamble to 
the proposed rule, NMFS is promulgating this rule pursuant to section 
305(d) of the MSA (16 U.S.C. 1855(d)) to clarify NMFS' interpretation 
of the SBRM provision and provide for periodic review of SBRMs.
    Comment 51: NMFS received several comments on the 5-year timeline 
for reviewing FMPs for consistency with the rule. One commenter 
supported the timeline, but given concerns about workload for the 
Councils, recommended extending subsequent SBRM reviews to 10 years or 
on an as needed basis. Another commenter noted that if a Council is 
provided with updated estimates of bycatch at each Council meeting 
along with the estimates of recreational and commercial landings, the 
ability to monitor bycatch on an ongoing basis will also reduce the 
need for a comprehensive review from 5 to 10 years. Another commenter 
recommended that a review be conducted after 5 years of data are 
available, rather than 5 years after implementation.
    Response: Data collection and reporting methods, conservation and 
management issues, and bycatch characteristics may change considerably 
in a 5-year timeframe. Therefore, NMFS believes that review in 5 years 
(and not a longer period) is appropriate. NMFS notes that there are 
several other FMP review processes that are on 3 to 5 year review 
timeframes. These include catch share programs, essential fish habitat, 
scientific research and other reviews. From an efficiency and resource 
standpoint, Councils may want to consider conducting SBRM reviews in 
conjunction with other ongoing FMP reviews as much as possible. 
Further, this provision is consistent with the NS9 guidelines, which 
refer to the review and improvement of data collection methods, data 
sources, and applications. 50 CFR 600.350(d)(1).
    Comment 52: One commenter urged NMFS to seriously consider the 
potential negative implications, including unnecessary workload, of the 
rule on regions which are already in compliance with MSA requirements. 
Section 600.1610(a)(1) should be modified so that it makes clear that 
the first step would be for the Councils to review their FMPs to 
determine if their FMPs provide a clear description of the SBRM, and 
only if the Council determines it does not, should additional 
modifications be made in either the FMP or through other reference 
documents. The provision requiring that all FMPs must be consistent 
with the rule within 5 years is not necessary if Councils have reviewed 
their FMPs and determined that their FMPs do not need to be modified.
    Response: The proposed rule provided Councils with a 5-year time 
frame to review and, if necessary, amend their existing FMPs for 
consistency with the rule. NMFS continues to believe that there is a 
need for this review. However, the final rule clarifies that a Council 
does not need to amend an FMP if NMFS determines that it is consistent 
with this rule.

Other Comments

    Comment 53: Some commenters requested that NMFS extend the comment 
period for the proposed rule an additional 60 days.
    Response: NMFS believes that the 60-day comment period provided the 
public with a meaningful opportunity to comment on the proposed rule, 
and therefore, declined to extend this period. Considering the nature 
and scope of the proposed rule, NMFS believes that 60 days was an 
adequate timeframe for interested persons to understand the issues 
raised and submit to the agency written comments with information and 
arguments relevant to those issues. Furthermore, several Councils are 
actively working on SBRM-related issues and would benefit from the 
guidance and interpretation that this rule would provide. If, as a 
result of reviewing their FMPs for consistency with the MSA and this 
rule, Councils amend their FMPs, the public will have another 
opportunity to comment on any specific actions proposed by a Council.
    Comment 54: Given the critical nature of bycatch data collection, 
one commenter urged the agency to provide resources to improve 
collection, recording, and reporting of bycatch as soon as possible.
    Response: NMFS has made SBRM data collection programs a priority. 
NMFS continually seeks to improve data collection, recording, and 
reporting through a variety of mechanisms. See response to Comment 47 
for more information.
    Comment 55: Commenters stated that the proposed rule would 
undermine the following agency and Council efforts to improve fisheries 
data, modernize data collection programs, and integrate ecosystem 
considerations into fisheries management: Ecosystem-Based Fishery 
Management Policy, National Bycatch Reduction Strategy, Action Plan for 
Fish Release Mortality Science, Regional Electronic Monitoring and 
Reporting Implementation Plans, and MRIP Implementation Plan. 
Commenters also asserted that the proposed rule would prevent the 
agency from implementing hard caps and performance objectives in the 
West Coast drift gillnet fishery and would facilitate the further 
collapse of the New England groundfish fishery.
    Response: NMFS disagrees that this rule would negatively affect 
ongoing efforts to improve fisheries data, modernize data collection, 
and implement ecosystem based fisheries management. This rule 
interprets basic requirements of the SBRM provision and does not 
prescribe or otherwise change ongoing policy and science initiatives. 
Because the rule interprets the basic requirements for establishing 
SBRMs, NMFS also disagrees with the comment that suggests the rule 
would prevent the establishment of hard caps in the West Coast drift 
gillnet fishery or undermine the New England groundfish fishery. The 
commenter presumes that this rule will diminish the quality of bycatch 
data and thus the assessment of bycatch and the Council's ability to 
adopt management measures to address bycatch. NMFS addresses this 
concern in responses to comments regarding the ``need and effect'' and 
``distinction between data collection and assessment''.
    Comment 56: One commenter stated that bycatch is a significant 
issue in recreational and commercial fisheries in

[[Page 6335]]

the Southeast, citing red snapper and red grouper as examples. The 
commenter stated that sufficient SBRMs in the fishermen logbooks and 
observer coverage would provide much more certain data leading to a 
more robust assessment used for management.
    Response: NMFS notes that an SBRM is a requirement of an FMP and 
that Councils do not establish SBRMs ``in the fishermen logbooks and 
observer coverage.'' To the extent that this commenter is recommending 
specific changes to the SBRMs in particular fisheries (e.g., red 
snapper and red grouper), this comment is beyond the scope of this 
rulemaking. The purpose of this rule is to describe the minimum 
requirements for establishing an SBRM. The specific SBRMs for each 
fishery are established through individual FMPs and the Council process 
as guided by the MSA and this rule. This rule requires that all FMPs be 
consistent with this rule within 5 years of the effective date of this 
rule. As individual FMPs are reviewed by the Councils, stakeholders 
will have additional opportunities to provide input on fishery and 
regional-specific issues associated with particular SBRMs.
    Comment 57: One commenter stated that it is unclear if the Pacific 
Islands, the Southeast and Southwest have implemented SBRM. The 
Caribbean Fishery Management Council does not appear to have 
established SBRMs at all. For example, there is no mention of SBRM in 
FMPs for Queen Conch, Reef Fish, Spiny Lobster, or Corals and Reef 
Associated Plants and Invertebrates.
    Response: All FMPs have established SBRMs consistent with the MSA 
and implement them through different mechanisms. NMFS acknowledges that 
the documentation and explanation in FMPs for SBRMs varies 
considerably. This rule, by clarifying the basic requirements for 
establishing SBRMs, will strengthen existing SBRMs and ensure greater 
transparency as Councils review and potentially update their FMPs for 
consistency with this rule.
    Comment 58: NMFS received comments disagreeing with the agency's 
decision to not prepare an environmental impact assessment (EIS) or 
environmental assessment (EA). The commenters stated that a categorical 
exclusion under the National Environmental Policy Act (NEPA) is not 
appropriate.
    Response: NMFS believes a categorical exclusion is appropriate for 
this action. Under sections 5.05 and 6.03c.3(i) of NOAA's 
Administrative Order (NAO) 216-6, as preserved by NAO 216-6A, 
``Compliance with the National Environmental Policy Act, Executive 
Orders 12114, Environmental Effects Abroad of Major Federal Actions; 
11988 and 13690, Floodplain Management; and 11990, Protection of 
Wetlands,'' the following types of actions may be categorically 
excluded from the requirement to prepare an EA or EIS: ``. . . policy 
directives, regulations and guidelines of an administrative, financial, 
legal, technical or procedural nature, or the environmental effects of 
which are too broad, speculative or conjectural to lend themselves to 
meaningful analysis and will be subject later to the NEPA process, 
either collectively or case-by-case . . .'' In this instance, a 
categorical exclusion is appropriate for this action because NMFS 
cannot meaningfully analyze potential environmental, economic, and 
social impacts at this stage. This rule provides guidance on 
establishing and reviewing SBRMs. While the rule explains how the 
development, documentation, and review of SBRMs should be addressed, 
the rule does not mandate specific conservation or management measures 
for any fishery. There is considerable diversity in federally managed 
fisheries and FMPs, and the Councils and NMFS have discretion to 
develop different conservation and management alternatives consistent 
with the MSA and other law. It is not clear what Councils will or will 
not do in response to this rule. Thus, it is not possible to predict 
any concrete impacts on the human environment without the necessary 
intervening actions of the Councils (e.g., consideration of SBRMs for 
specific fisheries). Any analysis of potential impacts would be 
speculative at best.
    None of the exceptions for Categorical Exclusions provided by 
section 5.05c of NAO 216-6 apply. While there is controversy concerning 
the SBRM rule, the controversy is primarily related to different views 
on how section 303(a)(11) of the MSA should be interpreted. The rule 
would not, in itself, have uncertain environmental impacts, unique or 
unknown risks, or result in cumulatively significant impacts on a 
fishery, protected species, or habitat, as it does not prescribe 
specific outcomes for FMPs. When a given Council or the Secretary 
prepares and submits a new FMP or FMP amendment or other regulatory 
action, at that time, biological, economic, and social impacts of the 
amendment/action would be subject to NEPA analysis.
    Comment 59: NMFS received one comment stating that the agency 
should not proceed unless a Regulatory Impact Review as required by 
E.O. 12866 has been conducted and the public has an opportunity to 
review and comment on that analysis. The commenter noted that the rule 
will require significant agency and Council resources.
    Response: NMFS conducted a draft Regulatory Impact Review and 
determined the rule is not significant for the purposes of Executive 
Order 12866. Additionally, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that the proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. These conclusions were stated in the ``Classification'' 
section of the proposed rule proposed at 81 FR 9413, February 25, 2016. 
NMFS prepared a final Regulatory Impact Review before issuing this 
rule. That review analyzed the impact of this rule on the agency, the 
Councils, and small entities, and is summarized in the 
``Classification'' section of this preamble.

III. Changes From Proposed Rule

    In the first sentence of Sec.  600.1600, ``with respect to any 
fishery'' was added after ``fishery management plan'' to reflect the 
text of section 303(a) of the MSA. The second sentence of Sec.  
600.1600 was revised in response to public comment to clarify the 
purpose of a standardized reporting methodology.
    In Sec.  600.1605(a), NMFS made minor changes to the definition of 
``standardized reporting methodology.'' First, in response to public 
comment, NMFS removed ``subset of a fishery'' from the definition. 
Second, NMFS combined the first and second sentences of the proposed 
definition. Third, NMFS added a sentence to the end of the definition 
to clarify the link between an SBRM and the assessment of bycatch.
    Section 600.1605(b) was revised to add reference to the MSA's 
definitions of ``bycatch'' and ``fishery'' in 16 U.S.C. 1802. Other 
minor revisions were made to the citations in Sec.  600.1605(b).
    In Sec.  600.1610(a)(1), the first sentence was revised to clarify 
the information that must be identified in an FMP. The first part of 
the second sentence of the paragraph was modified for clarity. Instead 
of ``The description must state the required bycatch data collection, 
recording, and reporting procedures for each fishery, which may include 
. . .'', the second sentence of Sec.  600.1610(a)(1) now begins: ``The 
required procedures may include. . . .''
    In response to comments and to make clear that an SBRM must achieve 
its statutory purpose, the third sentence of Sec.  600.1610(a)(1) now 
requires a Council

[[Page 6336]]

to explain ``how an SBRM meets the purpose described in 50 CFR 
600.1600, based on an analysis of the requirements under Sec.  
600.1610(a)(2),'' in place of the proposed rule's requirement that a 
Council explain ``why the methodology is appropriate for the fishery.'' 
The third sentence requires that this explanation be contained in an 
FMP or a fishery research plan authorized under 16 U.S.C. 1862, a North 
Pacific-specific provision of the MSA.
    Consistent with current practices, Sec.  600.1610(a)(1) states that 
Councils should work together and collaborate on standardized reporting 
methodologies for fisheries that operate across multiple jurisdictions, 
as appropriate.
    Also in Sec.  600.1610(a)(1), NMFS clarifies that in addition to 
proposing regulations necessary to implement the standardized reporting 
methodology, a Council should also provide in its FMP, or a fishery 
research plan authorized under 16 U.S.C. 1862, guidance to NMFS on how 
to adjust implementation of a standardized reporting methodology, 
consistent with the FMP. See National Standard 6 guidelines, 50 CFR 
600.335. This text replaces Sec.  600.1610(c) of the proposed rule, 
which described an adaptable implementation process for SBRMs. NMFS 
removed Sec.  600.1610(c) and added the new sentence in Sec.  
600.1610(a)(1) in response to public comments expressing confusion over 
the process described in proposed rule's Sec.  600.1610(c) (81 FR 9413, 
February 25, 2016).
    In Sec.  600.1610(a)(2), NMFS clarified what a Council is required 
to address when establishing or reviewing an SBRM. Also in Sec.  
600.1610(a)(2), NMFS broke out the ``required factors'' and 
``additional factors'' of the proposed rule's paragraphs (a)(2)(i) and 
(a)(2)(ii) into four subparagraphs to improve the organization and 
clarity of the paragraph.
    In Sec.  600.1610(a)(2)(i), NMFS deleted the requirement that 
``[d]ata resulting from the methodology must be useful, in conjunction 
with other sources of data, in meeting the purpose described in Sec.  
600.1600 and fishery-specific bycatch objectives.'' This requirement is 
no longer necessary because, as detailed above, Sec.  600.1610(a)(1) 
requires that all SBRMs meet the purpose described in Sec.  600.1600. 
NMFS also deleted the requirement that Councils ``consider the 
conservation and management objectives regarding bycatch in the 
fishery'' proposed in Sec.  600.1610(a)(2) in response to public 
comment expressing confusion about this provision. NMFS believes that 
it is not necessary to state this as a requirement in Sec.  
600.1610(a)(2) because all SBRMs must meet the purpose described in 
Sec.  600.1600, which includes reference to ``inform[ing] the 
development of conservation and management measures that, to the extent 
practicable, minimize bycatch and bycatch mortality.''
    In Sec.  600.1610(a)(2)(i), NMFS created a distinct subparagraph 
for the requirement that all Councils address information about the 
characteristics of bycatch in the fishery. The proposed rule required 
Councils to ``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 the final rule, NMFS changed ``such as'' to 
``including but not limited to'' to clarify that Councils must address 
all three types of information, where such information is available. In 
the same sentence, NMFS replaced ``total mortality'' with ``fishing 
mortality'' because bycatch mortality is part of fishing mortality 
(i.e., fish dying due to fishing activity) and not a component of 
natural mortality which is part of total mortality. For purposes of 
clarity, NMFS also changed ``the importance of bycatch to related 
ecosystems'' to ``the effect of bycatch on ecosystems.'' NMFS also 
added text in Sec.  600.1610(a)(2)(i) to acknowledge that the amount 
and type of bycatch occurring in a fishery ``may vary based on the 
operations of the fishery.''
    In response to public comment, NMFS removed text from Sec.  
600.1610(a)(2)(ii) stating that ``a Council may also consider the 
overall magnitude and/or economic impact of the fishery.'' NMFS 
believes that this information is already addressed in NMFS' National 
Standards 7 and 8 guidelines.
    In Sec.  600.1610(a)(2)(ii), NMFS created a distinct subparagraph 
regarding feasibility. NMFS added ``The implementation of a 
standardized reporting'' to the beginning of the sentence requiring 
that the ``methodology must be feasible from cost, technical, and 
operational perspectives'' for purposes of clarity. In response to 
public comment, NMFS deleted the requirement that a methodology ``be 
designed to be implemented with available funding.'' In place of this 
text, NMFS added a sentence to the end of Sec.  600.1610(a)(2)(ii) that 
explains in recognition that costs and funding may vary from year to 
year, a Council must also address how implementation of the 
standardized reporting methodology may be adjusted while continuing to 
meet the purpose described under Sec.  600.1600.
    In Sec.  600.1610(a)(2)(iii), NMFS created a distinct subparagraph 
regarding data uncertainty. This subparagraph expands on the 
requirement in proposed Sec.  600.1610(a)(2)(i) at 81 FR 9413, February 
25, 2016, that a Council consider the quality of the data associated 
with the methodology when establishing or reviewing an SBRM. In place 
of this requirement, Sec.  600.1610(a)(2)(iii) clarifies that a Council 
must address the uncertainty of the data resulting from the 
standardized reporting methodology. The standardized reporting 
methodology must be designed so that the uncertainty associated with 
the resulting bycatch data can be described, quantitatively or 
qualitatively. The Council should seek to minimize uncertainty in the 
resulting data, recognizing that different degrees of data uncertainty 
may be appropriate for different fisheries. NMFS made these changes in 
response to public comment and for purposes of clarity.
    In Sec.  600.1610(a)(2)(iv), NMFS created a distinct subparagraph 
regarding data use. To clarify the link between an SBRM and the 
assessment of bycatch, this first sentence of this subparagraph states: 
``A Council must address how data resulting from the standardized 
reporting methodology are used to assess the amount and type of bycatch 
occurring in the fishery.'' NMFS also moved the proposed consultation 
provision (in Sec.  600.1610(b) at 81 FR 9413, February 25, 2016) to 
this subparagraph, in response to public comment and to clarify the 
consultation process. Therefore, the second sentence of Sec.  
600.1610(a)(2)(iv) states: ``A Council must consult with its scientific 
and statistical committee and/or the regional National Marine Fisheries 
Service science center on reporting methodology design considerations 
such as data elements, sampling designs, sample sizes, and reporting 
frequency.'' NMFS made the consultation mandatory in the final rule. 
NMFS also removed reference to ``advisory panels,'' which was included 
in the consultation provision of the proposed rule, because the 
consultation is scientific in nature and is outside the scope of the 
advisory panel's role.
    NMFS moved the text stating that ``a Council may also 
consider...the scientific methods and techniques available to collect 
and report bycatch data that could improve the quality of bycatch 
estimates'' from proposed Sec.  600.1610(a)(2)(ii) (at 81 FR 9413, 
February 25, 2016) to Sec.  600.1610(a)(2)(iv), because NMFS believes 
this provision relates to data

[[Page 6337]]

use. In this sentence, NMFS changed ``may'' to ``must'' in the final 
rule, and added ``record'' between ``collect'' and ``report'' to mirror 
NMFS' definition of a standardized reporting methodology.
    Also in Sec.  600.1610(a)(2)(iv), NMFS added a sentence at the end 
of the paragraph clarifying that different standardized reporting 
methodology designs may be appropriate for different fisheries.
    To comport with the organizational changes in the final rule, NMFS 
changed Sec.  600.1610(d) to paragraph (b). To clarify that a Council 
must undertake a review of their FMPs for consistency with the rule, 
NMFS added that a Council, in coordination with NMFS, must conduct a 
review of its FMPs for consistency with this rule. To clarify that a 
Council does not have to amend an FMP within 5 years of the effective 
date of the rule if the FMP is in compliance with the rule, NMFS also 
added that a Council does not need to amend an FMP if NMFS, in 
consultation with the Council, determines that the FMP is consistent 
with this rule. Although the Council initiates a review of SBRMs, that 
review should be done in coordination with NMFS; therefore NMFS added 
``in coordination with NMFS'' to the second and last sentences of Sec.  
600.1610(b).
    Minor, non-substantive grammatical changes were also made in the 
final regulatory text to improve clarity.

IV. National Environmental Policy Act

    NMFS has made a determination to apply a Categorical Exclusion to 
this action under the National Environmental Policy Act. This action 
qualifies for a Categorical Exclusion because it is a regulation ``of 
an administrative, financial, legal, technical or procedural nature, or 
the environmental effects of which are too broad, speculative or 
conjectural to lend themselves to meaningful analysis and will be 
subject later to the NEPA process, either collectively or case-by-case. 
. . .'' See NOAA's Administrative Orders 216-6 and 216-6A. If and when, 
as a result of reviewing an FMP for consistency with the MSA and this 
rule, a Council amends a specific FMP and/or fishery research plans, 
the Council and/or NMFS would prepare a NEPA analysis, as appropriate.

V. Classification

    Pursuant to section 301(b) of the MSA, the NMFS Assistant 
Administrator has determined that this final rule is consistent with 
the Magnuson-Stevens Act and other applicable law.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. The factual basis for the certification was 
published in the proposed rule (see page 9417 at 81 FR 9413, February 
25, 2016). In summary, this action interprets and provides guidance on 
section 303(a)(11) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA), which requires that all Fishery Management Plans 
(FMPs) ``establish a standardized reporting methodology to assess the 
amount and type of bycatch occurring in a fishery'' (16 U.S.C. 
1853(a)(11)). Because the action does not directly regulate any small 
entities, it will not directly alter the behavior of any entities 
operating in federally managed fisheries, and thus no direct economic 
effects on small entities (as described within the proposed action) are 
expected to result from this action. Therefore, no small entities will 
be directly affected by this action, and a reduction in profits for a 
substantial number of small entities is not expected. See 81 FR 9413, 
February 25, 2016. No public comments were received regarding this 
certification.
    NMFS notes that on January 26, 2016, the Small Business 
Administration (SBA) issued a final rule revising the small business 
size standards for several industries, effective February 26, 2016 (81 
FR 4469). The rule increased the size standard for Seafood Product 
Preparation and Packaging (NAICS code 311710) from 500 to 750 
employees. Furthermore, on December 29, 2015, NMFS issued a final rule 
establishing a small business size standard of $11 million in annual 
gross receipts for all businesses primarily engaged in the commercial 
fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) 
compliance purposes only. See 80 FR 81194, December 29, 2015. The $11 
million standard became effective on July 1, 2016, and is to be used in 
place of the U.S. Small Business Administration's (SBA) current 
standards of $20.5 million, $5.5 million, and $7.5 million for the 
finfish (NAICS 114111), shellfish (NAICS 114112), and other marine 
fishing (NAICS 114119) sectors of the U.S. commercial fishing industry 
in all NMFS rules subject to the RFA after July 1, 2016. See 80 FR 
81194, December 29, 2015. Pursuant to the RFA, and prior to July 1, 
2016, the certification was developed for this regulatory action using 
SBA's size standards prior to February 26, 2016. NMFS has reviewed the 
analyses prepared for this regulatory action in light of the new size 
standards discussed above and has determined that the new size 
standards do not affect analyses prepared for this regulatory action. 
Further, because the action does not directly regulate any entities, 
any new size standard will not directly alter the behavior of any 
entities operating in federally managed fisheries, and thus no direct 
economic effects on commercial harvesting businesses, marinas, seafood 
dealers/wholesalers, or seafood processors are expected to result from 
this action. Thus, no small entities will be directly affected by this 
action and a reduction in profits for a substantial number of small 
entities is not expected, and NMFS has determined that the 
certification established during the proposed rule stage is still 
appropriate for this final action.

List of Subjects in 50 CFR Part 600

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

    Dated: January 6, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 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 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 that any 
fishery management plan (FMP) with respect to any fishery shall 
establish a standardized reporting methodology to assess the amount and 
type of bycatch occurring in the fishery. 16 U.S.C. 1853(a)(11). The 
purpose of a

[[Page 6338]]

standardized reporting methodology is to collect, record, and report 
bycatch data in a fishery that, in conjunction with other relevant 
sources of information, are used to assess the amount and type of 
bycatch occurring in the fishery and inform the development of 
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, consistent procedure or procedures used to collect, 
record, and report bycatch data in a fishery, which may vary from one 
fishery to another. Bycatch assessment is not part of the standardized 
reporting methodology, but must be considered as described in Sec.  
600.1610(a)(2)(iv).
    (b) Word usage. The terms ``bycatch'' and ``fishery'' are used in 
the same manner as in 16 U.S.C. 1802. 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(d)(10), 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. An FMP must identify the required procedure 
or procedures that constitute the standardized reporting methodology 
for the fishery. The required procedures 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). The FMP, or a fishery research plan authorized under 16 U.S.C. 
1862, must explain how the standardized reporting methodology meets the 
purpose described in Sec.  600.1600, based on an analysis of the 
requirements under Sec.  600.1610(a)(2). The FMP, or fishery research 
plan authorized under 16 U.S.C. 1862, may reference analyses and 
information in other FMPs, FMP amendments, Stock Assessment and Fishery 
Evaluation (SAFE) reports, or other documents. Councils should work 
together and collaborate on standardized reporting methodologies for 
fisheries that operate across multiple jurisdictions, as appropriate. 
In addition to proposing regulations necessary to implement the 
standardized reporting methodology, a Council should also provide in 
its FMP, or a fishery research plan authorized under 16 U.S.C. 1862, 
guidance to NMFS on how to adjust implementation of a standardized 
reporting methodology consistent with the FMP. See National Standard 6 
guidelines, Sec.  600.335.
    (2) Requirements for standardized reporting methodology. The FMP 
must establish a standardized reporting methodology as provided under 
Sec.  600.1610(a)(1) that meets the specific purpose described in Sec.  
600.1600. Due to the inherent diversity of fisheries, different 
standardized reporting methodologies may be appropriate for different 
fisheries. However, when establishing or reviewing a standardized 
reporting methodology, a Council must address the following:
    (i) Information about the characteristics of bycatch in the 
fishery. A Council must address information about the characteristics 
of bycatch in the fishery, when available, including, but not limited 
to: The amount and type of bycatch occurring in the fishery, which may 
vary based on different fishing activities and operations; the 
importance of bycatch in estimating the fishing mortality of fish 
stocks; and the effect of bycatch on ecosystems.
    (ii) Feasibility. The implementation of a standardized reporting 
methodology must be feasible from cost, technical, and operational 
perspectives. However, feasibility concerns do not exempt an FMP from 
the requirement to establish a standardized reporting methodology. 
Recognizing that costs and funding may vary from year to year, a 
Council must also address how implementation of the standardized 
reporting methodology may be adjusted while continuing to meet the 
purpose described under Sec.  600.1600.
    (iii) Data uncertainty. A Council must address the uncertainty of 
the data resulting from the standardized reporting methodology. The 
standardized reporting methodology must be designed so that the 
uncertainty associated with the resulting bycatch data can be 
described, quantitatively or qualitatively. The Council should seek to 
minimize uncertainty in the resulting data, recognizing that different 
degrees of data uncertainty may be appropriate for different fisheries.
    (iv) Data use. A Council must address how data resulting from the 
standardized reporting methodology are used to assess the amount and 
type of bycatch occurring in the fishery. A Council must consult with 
its scientific and statistical committee and/or the regional National 
Marine Fisheries Service science center on reporting methodology design 
considerations such as data elements, sampling designs, sample sizes, 
and reporting frequency. The Council must also consider the scientific 
methods and techniques available to collect, record, and report bycatch 
data that could improve the quality of bycatch estimates. Different 
standardized reporting methodology designs may be appropriate for 
different fisheries.
    (b) Review of FMPs. All FMPs must be consistent with this subpart 
by February 21, 2022. Therefore, a Council, in coordination with NMFS, 
must conduct a review of its FMPs for consistency with this subpart. A 
Council does not need to amend an FMP if NMFS determines that it is 
consistent with this subpart. Thereafter, Councils, in coordination 
with NMFS, should conduct a review of standardized reporting 
methodologies at least once every 5 years in order to verify continued 
compliance with the MSA and this subpart.

[FR Doc. 2017-00405 Filed 1-18-17; 8:45 am]
 BILLING CODE 3510-22-P



                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          6317

                                                  *      *     *       *      *                           Secretary of Commerce with respect to                  Bycatch at Chapters 3, 4, and 5 and
                                                  [FR Doc. 2017–00680 Filed 1–18–17; 8:45 am]             any fishery establish a standardized                   Appendix 5 (discussing regional
                                                  BILLING CODE 3510–22–P                                  reporting methodology to assess the                    bycatch and fisheries issues, reporting/
                                                                                                          amount and type of bycatch occurring in                monitoring measures, and precision
                                                                                                          the fishery, and include conservation                  goals for bycatch estimates, but noting
                                                  DEPARTMENT OF COMMERCE                                  and management measures that, to the                   that goals ‘‘may in some instances
                                                                                                          extent practicable, minimize bycatch                   exceed minimum statutory
                                                  National Oceanic and Atmospheric                        and bycatch mortality (16 U.S.C.                       requirements’’).
                                                  Administration                                          1853(a)(11)). See also 16 U.S.C. 1854(c)                  Additional background information—
                                                                                                          and (g) (authorizing Secretarial FMPs.                 including NMFS’ rationale for
                                                  50 CFR Part 600                                         Hereafter, ‘‘Council’’ includes the                    developing this rule, statutory and
                                                  [Docket No. 1512–01999–6969–02]                         Secretary of Commerce as applicable                    historical background, and the purpose
                                                                                                          when preparing FMPs or amendments                      and scope of the rule—can be found in
                                                  RIN 0648–BF51                                           under 16 U.S.C. 1854(c) and (g). See 50                the proposed rule that published on
                                                                                                          CFR 600.305(d). This standardized                      February 25, 2016 (81 FR 9413). Copies
                                                  Standardized Bycatch Reporting
                                                                                                          reporting methodology is commonly                      are available from NMFS (see
                                                  Methodology
                                                                                                          referred to as a ‘‘Standardized Bycatch                ADDRESSES), or can be viewed
                                                  AGENCY:  National Marine Fisheries                      Reporting Methodology’’ (SBRM). This                   electronically at the Federal E-
                                                  Service (NMFS), National Oceanic and                    final rule, which is promulgated                       Rulemaking portal for this action: http://
                                                  Atmospheric Administration (NOAA),                      pursuant to 16 U.S.C. 1855(d), sets forth              www.regulations.gov.
                                                  Commerce.                                               NMFS’ interpretation of section                           Separate from this rulemaking, which
                                                  ACTION: Final rule.                                     303(a)(11) and establishes national                    solely addresses reporting
                                                                                                          requirements and guidance for                          methodologies for bycatch as defined
                                                  SUMMARY:   This final rule interprets and               developing, documenting, and                           under the MSA, NMFS has engaged in
                                                  provides guidance on the requirement of                 reviewing SBRMs. A proposed rule for                   a broad range of activities since the
                                                  the Magnuson-Stevens Fishery                            this action was published on February                  1970s to address its bycatch-related
                                                  Conservation and Management Act                         25, 2016 (81 FR 9413), with public                     responsibilities under the MSA, the
                                                  (MSA) that all fishery management                       comments accepted through April 25,                    Marine Mammal Protection Act
                                                  plans (FMPs), with respect to any                       2016.                                                  (MMPA), the Endangered Species Act
                                                  fishery, establish a standardized                          Section 303(a)(11) was added to the                 (ESA), and other relevant statutes and
                                                  reporting methodology to assess the                     MSA by the Sustainable Fisheries Act of                international agreements. More
                                                  amount and type of bycatch occurring in                 1996 (SFA). The MSA does not define                    specifically, NMFS, the Councils, and
                                                  a fishery. The final rule establishes                   ‘‘standardized reporting methodology’’                 multiple partners have implemented
                                                  requirements and provides guidance to                   or any of the words contained within                   management measures to minimize
                                                  regional fishery management councils                    the phrase. Similar to section 303(a)(11),             bycatch and bycatch mortality in
                                                  and the Secretary of Commerce                           National Standard 9 (NS9) (16 U.S.C.                   fisheries (e.g., time and area closures);
                                                  regarding the development,                              1851(a)(9)) requires that conservation                 developed and/or researched bycatch
                                                  documentation, and review of such                       and management measures ‘‘shall, to the                reduction technologies for fishing gear
                                                  methodologies, commonly referred to as                  extent practicable, (A) minimize bycatch               (e.g., turtle excluder devices and circle
                                                  Standardized Bycatch Reporting                          and (B) to the extent bycatch cannot be                hooks); convened multi-stakeholder take
                                                  Methodologies (SBRMs).                                  avoided, minimize the mortality of such                reduction teams to address marine
                                                  DATES: Effective February 21, 2017.                     bycatch.’’ However, NS9 does not                       mammal bycatch; supported national
                                                                                                          address SBRM.                                          research programs, such as the Bycatch
                                                  ADDRESSES: Copies of the Categorical
                                                                                                             Prior to this rulemaking, NMFS never                Reduction Engineering Program;
                                                  Exclusion/Regulatory Impact Review                      issued regulations that set forth the                  promoted the adoption of bycatch
                                                  (RIR)/Final Regulatory Flexibility Act                  basic requirements of the SBRM                         reduction measures in international
                                                  Analysis (FRFAA) prepared for this                      provision. To implement the 1996 SFA                   regional fishery management
                                                  action can be obtained from: Karen                      Amendments, NMFS developed NS9                         organizations; and published a series of
                                                  Abrams, National Marine Fisheries                       guidelines in 1998, and amended these                  biennial National Bycatch Reports and
                                                  Service, 1315 East West Highway, Room                   guidelines in 2008. See 50 CFR 600.350.                Updates since 2011 that provide a
                                                  13461, Silver Spring, MD 20910. An                      The guidelines provide several                         historical summary of fishery- and
                                                  electronic copy of the CE/RIR/RFAA                      clarifications about bycatch                           species-specific bycatch estimates on an
                                                  documents as well as copies of public                   requirements under the MSA, but do not                 annual basis for major U.S. fisheries
                                                  comments received can be viewed at the                  interpret the SBRM requirement. In                     around the country, to cite a few
                                                  Federal e-rulemaking portal: http://                    2004, NMFS published Evaluating                        examples. NMFS also has a database
                                                  www.regulations.gov/ (Docket ID:                        Bycatch: A National Approach to                        from which members of the public can
                                                  NOAA–NMFS–2012–0092).                                   Standardized Bycatch Monitoring                        query bycatch estimates from the
                                                  FOR FURTHER INFORMATION CONTACT:                        Programs (NOAA Technical                               National Bycatch Reports and Updates.
                                                  Karen Abrams, 301–427–8508, or by                       Memorandum NMFS–F/SPO–66,                              See http://www.st.nmfs.noaa.gov/
                                                  email: karen.abrams@noaa.gov.                           October 2004, hereafter referred to as                 observer-home/first-edition-update-1.
                                                  SUPPLEMENTARY INFORMATION:                              Evaluating Bycatch), a report that was                 To build on its bycatch efforts, this year
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                                                                                                          prepared by the agency’s National                      in February 2016, NMFS issued for
                                                  Background                                              Working Group on Bycatch (available at                 public comment a draft National
                                                    Section 303(a)(11) of the Magnuson-                   http://www.nmfs.noaa.gov/by_catch/                     Bycatch Reduction Strategy that aims to
                                                  Stevens Fishery Conservation and                        SPO_final_rev_12204.pdf). The report                   coordinate NMFS’ efforts to address
                                                  Management Act (MSA) requires that                      did not provide, or purport to provide,                bycatch under the various mandates it is
                                                  any fishery management plan (FMP)                       the agency’s interpretation of the basic               charged with carrying out to further
                                                  prepared by a regional fishery                          requirements of complying with MSA                     advance its work in addressing bycatch
                                                  management council (Council) or the                     section 303(a)(11). See Evaluating                     both domestically and internationally.


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                                                  6318             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  NMFS received numerous public                           definition of ‘‘bycatch.’’ To clarify its              information and explanation of this
                                                  comments on the draft strategy and is                   intent to rely on the MSA’s definition of              issue.
                                                  working to address those comments and                   ‘‘bycatch,’’ NMFS has revised the final                   While recognizing the distinction
                                                  finalize the strategy. For more                         rule at § 600.1605(b) to add reference to              between data collection and bycatch
                                                  information on NMFS’ 40 year                            the MSA definition. Summaries of the                   assessment, NMFS affirms the important
                                                  commitment to addressing bycatch, see                   comments received on the definition of                 linkage between these activities. To
                                                  http://noaa.maps.arcgis.com/apps/                       bycatch and NMFS’ responses may be                     reinforce this link, NMFS has revised
                                                  MapSeries/index.html?appid=e5d40370                     found in section II (Response to                       § 600.1610(a)(2)(iv) to require a Council
                                                  90054fa2843a6ab522c9b73b.                               Comments) of this preamble.                            to address how the data resulting from
                                                                                                                                                                 an SBRM are used to assess the amount
                                                  I. Overview of the Major Aspects of the                 B. Purpose of an SBRM                                  and type of bycatch in the fishery and
                                                  Final Rule                                                 Based on the statutory language of                  to consult with its Science and
                                                     Section 600.1600 explains the                        section 303(a)(11) of the MSA, the final               Statistical Committee (SSC) and/or
                                                  purpose and scope of an SBRM and                        rule clarifies in § 600.1600 that the                  regional NMFS science centers on
                                                  § 600.1610 clarifies the requirements for               purpose of an SBRM is to collect,                      SBRM design considerations (e.g., data
                                                  establishing and reviewing SBRMs. The                   record, and report bycatch data in a                   elements, sampling designs, sample
                                                  rule requires that an FMP identify the                  fishery that, in conjunction with other                sizes, and reporting frequency). NMFS
                                                  required procedure or procedures that                   information, are used to assess the                    also cross-references this requirement in
                                                  constitute the SBRM for the fishery. The                amount and type of bycatch occurring in                § 600.1600. See section I. E. 4. Data Use
                                                  rule also requires that the FMP, or                     the fishery and inform the development                 of this preamble for further explanation.
                                                  fisheries research plan authorized under                of conservation and management
                                                  16 U.S.C. 1862, explain how the SBRM                    measures that, to the extent practicable,              C. Meaning of ‘‘Standardized’’
                                                  meets the purpose described under                       minimize bycatch and bycatch                              Section 303(a)(11) requires that ‘‘Any
                                                  § 600.1600, based on an analysis of (1)                 mortality. Consistent with this purpose,               fishery management plan . . . with
                                                  the characteristics of the bycatch                      § 600.1605(a) defines ‘‘standardized                   respect to any fishery, shall . . .
                                                  occurring in the fishery, (2) the                       reporting methodology’’ with reference                 establish a standardized reporting
                                                  feasibility of the methodology from cost,               to procedures used to collect, record,                 methodology to assess the amount and
                                                  technical and operational perspectives,                 and report bycatch data in a fishery.                  type of bycatch occurring in the
                                                  (3) the uncertainty of the data resulting               Section 600.1605(a) clarifies that                     fishery.’’ 16 U.S.C. 1853(a)(11). Section
                                                  from the methodology, and (4) how the                   bycatch assessment procedures are not                  303(a)(11) does not require regional or
                                                  data resulting from the methodology are                 part of an SBRM, and thus do not need                  national standardization; rather, the
                                                  used to assess the amount and type of                   to be described as part of the                         requirement to establish a standardized
                                                  bycatch occurring in the fishery.                       methodology in an FMP. A Council may                   reporting methodology applies to each
                                                  Finally, the rule provides that a Council               include such a description if it so                    FMP with respect to any fishery
                                                  should give guidance to NMFS on how                     chooses and could provide this                         managed under it. Consistent with the
                                                  to adjust the implementation of the                     description by incorporating by                        statutory language, this rule defines
                                                  SBRM consistent with the FMP, and                       reference information from a Stock                     ‘‘standardized reporting methodology’’
                                                  requires periodic reviews of SBRMs.                     Assessment and Fishery Evaluation                      as an established, consistent procedure
                                                     Below is further explanation of the                  (SAFE) report or other documents.                      or procedures used to collect, record,
                                                  major aspects of the final rule. In                        As explained in the proposed rule                   and report bycatch data in a fishery,
                                                  addition to streamlining the final rule to              (see 81 FR 9413 at 9414–9415), activities              which may vary from one fishery to
                                                  improve clarity and organization, NMFS                  to collect, record, and report bycatch                 another. See 600.1605(a) (emphasis
                                                  has made several changes in the final                   data in a fishery are connected to, but                added).
                                                  rule to respond to public comments.                     distinct from, the methods used to                        A Council establishes the SBRM
                                                  The changes are discussed below and in                  assess bycatch and the development of                  based on the requirements outlined in
                                                  sections II (Response to Comments) and                  measures to minimize bycatch or                        this rule and the purpose of an SBRM
                                                  III (Changes from Proposed Action) of                   bycatch mortality. NMFS received                       (see § 600.1600). The definition of
                                                  this preamble.                                          numerous comments on the linkage                       ‘‘standardized reporting methodology’’
                                                                                                          between bycatch data collection and                    envisions that a Council may include
                                                  A. Scope of Rule                                        bycatch assessment. Having carefully                   more than one data collection,
                                                     Establishing an SBRM is a                            considered public comment on this                      recording, and reporting procedure in
                                                  requirement of the MSA. Therefore, this                 issue, NMFS has decided to maintain                    its SBRM. As acknowledged in
                                                  rule is based on the MSA’s definition of                the distinction between data collection                § 600.1610(a)(2)(i), the amount and type
                                                  ‘‘bycatch,’’ which includes fish which                  and bycatch assessment in the final rule.              of bycatch occurring in a fishery may
                                                  are harvested in a fishery, but which are               NMFS continues to believe that it is                   vary based on different fishing activities
                                                  not sold or kept for personal use, and                  important to be clear about the key                    and operations (e.g., gear types used,
                                                  includes economic discards and                          policy choices and objectives associated               how gear is deployed, gear selectivity,
                                                  regulatory discards. Such term does not                 with establishing an SBRM, and not                     fishing effort, fishing locations). In light
                                                  include fish released alive under a                     confuse those choices with statistical                 of the above, a Council could decide
                                                  recreational catch and release fishery                  and technical approaches for estimating                that a combination of procedures is
                                                  management program. 16 U.S.C.                           bycatch that are inherently scientific                 appropriate for a fishery. In such a case,
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                                                  1802(2). NMFS’ NS9 guidelines clarify                   and data dependent, or with the policy                 the FMP must still identify what the
                                                  that ‘‘[a] catch-and-release fishery                    choices associated with developing                     established, consistent procedures are
                                                  management program is one in which                      measures to minimize bycatch or                        for the fishery. For example, in a fishery
                                                  the retention of a particular species is                bycatch mortality. See ‘‘Activities                    in which vessels use trawl nets and gill
                                                  prohibited. In such a program, those fish               Associated with an SBRM’’ in the                       nets, a Council could determine that
                                                  released alive would not be considered                  proposed rule and ‘‘Distinction Between                different procedures are appropriate for
                                                  bycatch.’’ 50 CFR 600.350(c)(2). NMFS                   Data Collection and Data Assessment’’                  the different gear types. The Council
                                                  received several comments on the rule’s                 in section II of this preamble for further             would then be required to identify the


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6319

                                                  required, consistent procedures for both                an FMP amendment would be required.                    requirement that a Council address ‘‘the
                                                  gear types in the FMP. See section I. E.                This text in § 600.1610(a)(1) replaces                 quality of the data associated with the
                                                  1. and the response to comment 9 in                     § 600.1610(c) (adaptable                               methodology’’ (see proposed
                                                  section II of this preamble for further                 implementation) because public                         § 600.1610(a)(2)(i) at 81 FR 9413,
                                                  explanation.                                            comments expressed confusion over                      February 25, 2016). Below is further
                                                                                                          that proposed provision. NMFS                          explanation of these four requirements.
                                                  D. FMP Contents                                                                                                  In response to comments, NMFS has
                                                                                                          reiterates that every FMP must establish
                                                     Section 600.1610(a)(1) requires every                an SBRM. NMFS did not intend to                        removed text that required
                                                  FMP to identify the required procedure                  imply otherwise in the proposed                        consideration of the conservation and
                                                  or procedures that constitute the SBRM                  § 600.1610(c) (at 81 FR 9413, February                 management objectives regarding
                                                  for the fishery. Such procedures may                    25, 2016). Rather, NMFS’ intent in the                 bycatch in the fishery (see proposed
                                                  include, but are not limited to, observer               proposed § 600.1610(c) (at 81 FR 9413,                 § 600.1610(a)(2)(i) at 81 FR 9413,
                                                  programs, electronic monitoring and                     February 25, 2016), and now in                         February 25, 2016), and text stating that
                                                  reporting technologies, and self-reported               § 600.1610(a)(1), is to recognize that                 a Council may consider the overall
                                                  mechanisms. This rule does not                          fisheries management occurs in a highly                magnitude and/or economic impact of
                                                  prescribe the use of particular                         variable environment and there are                     the fishery (see proposed
                                                  procedures.                                             numerous biological, social, and                       § 600.1610(a)(2)(i) at 81 FR 9413,
                                                     Section 600.1610(a)(1) also requires                 economic variables that may affect the                 February 25, 2016). The reasons for
                                                  Councils to explain in an FMP, or a                     operational aspects of implementing                    these changes are provided in the
                                                  fishery research plan authorized under                  data collection and reporting programs                 responses to comments 44 and 46.
                                                  16 U.S.C. 1862, how the SBRM meets                      that constitute an SBRM. In light of this,
                                                  the purpose described in § 600.1600,                                                                           1. Characteristics of Bycatch in the
                                                                                                          NMFS strongly recommends that                          Fishery
                                                  based on an analysis of requirements                    Councils provide direction, as needed,
                                                  (set forth in § 600.1610(a)(2) and                      to NMFS about how to adjust the                           Section 600.1610(a)(2)(i) provides that
                                                  described below). The FMP, or fishery                   implementation of an SBRM consistent                   a Council must address information
                                                  research plan under 16 U.S.C. 1862,                     with the FMP. NMFS believes that its                   about the characteristics of bycatch in
                                                  may reference analyses and information                  approach in § 600.1610(a) will promote                 the fishery when available, including,
                                                  in other FMPs, FMP amendments, SAFE                     efficiency and transparency by                         but not limited to, the amount of
                                                  reports, or other documents. Consistent                 encouraging a Council to consider                      bycatch occurring in the fishery, the
                                                  with current practices, the rule                        implementation and operational issues                  importance of bycatch in estimating the
                                                  encourages Councils to work together                    up-front during the development of an                  fishing mortality of fish stocks, and the
                                                  and collaborate on SBRMs for fisheries                  SBRM. See response to comment 29 and                   effect of bycatch on ecosystems. Section
                                                  that operate across multiple                            48 for further explanation.                            600.1610(a)(2)(i) recognizes that the
                                                  jurisdictions, as appropriate.                                                                                 amount and type of bycatch occurring in
                                                     NMFS amended the final rule to refer                 E. Fishery-Specific Analysis                           the fishery may vary based on different
                                                  to 16 U.S.C. 1862, a provision that                        MSA section 303(a)(11) requires that                fishing activities and operations.
                                                  authorizes the North Pacific Fishery                    FMPs establish SBRMs, but beyond the                   Bycatch can be affected by several
                                                  Management Council to prepare a                         fact that an SBRM must meet its                        aspects of a fishery, including gear types
                                                  fisheries research plan for any fishery                 statutory purpose, section 303(a)(11)                  used, how gear is deployed, gear
                                                  under its jurisdiction (except salmon)                  provides no other guidance on the                      selectivity, fishing effort, fishing
                                                  that requires observers and establishes a               considerations that should go into                     locations, and existing management
                                                  system of fees to pay for the costs of                  developing an SBRM. Therefore, NMFS                    measures. A Council may consider these
                                                  implementing the plan. The North                        has discretion to interpret section                    operational aspects when selecting the
                                                  Pacific Council has established a                       303(a)(11) and establish reasonable                    collection, monitoring, and reporting
                                                  fisheries research plan that requires an                considerations and requirements. Based                 procedures that constitute the SBRM for
                                                  observer program as authorized under                    on NMFS’ experience with                               a fishery.
                                                  16 U.S.C. 1862, and the program                         implementing section 303(a)(11), and
                                                  constitutes the SBRM for the fisheries                                                                         2. Feasibility
                                                                                                          taking into consideration public
                                                  covered thereunder. Given that, this rule               comment on the proposed rule, this                        Section 600.1610(a)(2)(ii) requires that
                                                  allows the North Pacific Council to                     final rule requires that all Councils                  the implementation of an SBRM be
                                                  explain in its fisheries research plan                  conduct a fishery-specific analysis that               feasible from cost, technical, and
                                                  how the SBRM for those fisheries meets                  addresses the following when                           operational perspectives. Data
                                                  the statutory purpose of an SBRM.                       establishing or reviewing an SBRM: (1)                 collection, reporting, and recording
                                                     Finally, § 600.1610(a)(1) explains that,             The characteristics of the bycatch                     procedures can be expensive,
                                                  in addition to proposing regulations                    occurring in the fishery, (2) the                      logistically challenging to design and
                                                  necessary to implement the                              feasibility of the methodology from cost,              implement, involve new and cutting-
                                                  standardized reporting methodology, a                   technical and operational perspectives,                edge technologies, and necessitate the
                                                  Council should provide in an FMP, or                    (3) the uncertainty of the data resulting              consideration of the safety of human life
                                                  a fishery research plan authorized under                from the methodology, and (4) how the                  at sea. Having carefully considered
                                                  16 U.S.C. 1862, guidance to NMFS on                     data resulting from the methodology are                public comments, NMFS continues to
                                                  how to adjust implementation of the                     used to assess the amount and type of                  believe that it is reasonable and
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                                                  methodology consistent with the FMP.                    bycatch occurring in the fishery. The                  appropriate for a Council to analyze
                                                  That section cites to the National                      first and second requirements were                     issues of feasibility when establishing or
                                                  Standard 6 guidelines (50 CFR 600.335),                 included in the proposed rule and have                 reviewing an SBRM and to ultimately
                                                  which provide guidance on taking                        been revised minimally in response to                  choose a methodology that is in fact
                                                  variations and contingencies into                       comments. With respect to the third and                feasible (i.e., capable of being
                                                  account. NMFS notes that, to the extent                 fourth requirements, NMFS has, in                      implemented) from cost, technical, and
                                                  that adjustments are needed to an SBRM                  response to public comments, clarified                 operational perspectives. If a Council
                                                  beyond what is established in an FMP,                   and elaborated upon the proposed                       proposes an FMP or FMP amendment


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                                                  6320             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  with an SBRM that is not feasible,                      data can be described, quantitatively or               mortality and is highly uncertain. Data
                                                  NMFS may disapprove or partially                        qualitatively. Eliminating data                        Use
                                                  disapprove the FMP amendment. In                        uncertainty is not an end in itself, but                  Section 600.1610(a)(2)(iv) requires a
                                                  response to public comments, NMFS                       the rule recognizes that Councils should               Council to address how the data
                                                  clarifies in the final rule that feasibility            seek to minimize uncertainty in the                    resulting from an SBRM are used to
                                                  concerns do not exempt an FMP from                      resulting data, recognizing that different             assess the amount and type of bycatch
                                                  the requirement to establish an SBRM.                   degrees of uncertainty may be                          occurring in the fishery. As explained in
                                                  NMFS reiterates that the requirement to                 appropriate for different fisheries.                   the ‘‘Purpose of the SBRM’’ section
                                                  establish an SBRM is a statutory                                                                               above, this provision was added in part
                                                                                                             4. NMFS received numerous public                    to clarify and reinforce the link between
                                                  requirement applicable to all FMPs.
                                                     Proposed § 600.1610(a)(2)(i) at 81 FR                comments requesting that the final rule                an SBRM and the assessment of bycatch
                                                  9413, February 25, 2016, would have                     include specific standards for accuracy,               data. Section 600.1605(a) clarifies that,
                                                  required SBRMs to be designed to be                     precision, or statistical reliability of               although bycatch assessment is not part
                                                  implemented with available funding. In                  bycatch estimates and data. See section                of the SBRM, bycatch assessment must
                                                  response to comments, NMFS has                          II for comments and responses related to               be considered as described in this
                                                  deleted this provision. See section II                  ‘‘Consideration of Quality and Use of                  provision. See responses to comments
                                                  (the responses to comments on                           Data.’’ After considering public                       16 and 25 (explaining the role of NMFS
                                                  ‘‘Consideration of Feasibility, Costs, and              comments and consulting with agency                    science centers in providing scientific
                                                  Funding’’) of this preamble. Instead,                   scientists, NMFS does not believe it is                information and analyses and how catch
                                                  NMFS explicitly acknowledges in                         appropriate to establish accuracy,                     and landings information is made
                                                  § 600.1610(a)(2)(ii) that costs and                     precision, or reliability standards for                available).
                                                  funding may vary from year to year, and                 bycatch data or estimates to be applied                   Section 600.1610(a)(2)(iv) also
                                                  requires a Council to address how                       across all fisheries. As explained in                  incorporates the consultation provision
                                                  implementation of the SBRM may be                       ‘‘Purpose of an SBRM’’ above, bycatch                  of the proposed rule’s § 600.1610(b) (81
                                                  adjusted while continuing to meet the                   assessment or estimation is not                        FR 9413, February 25, 2016). NMFS
                                                  purpose described under § 600.1600. If                  considered part of an SBRM under this                  received comments during the public
                                                  a Council chooses to establish an SBRM                  rule. Moreover, as explained in the                    comment period asking the agency to
                                                  that may be adjusted in response to                     responses to comments, the specific                    clarify the consultation process. In
                                                  changes in costs or funding, the Council                characteristics of each fishery and its                response to comments (see
                                                  should provide guidance to NMFS on                      bycatch vary widely from region to                     ‘‘Consideration of Quality and Use of
                                                  how to adjust the implementation of the                 region and from fishery to fishery. For                Data’’ in section II of this preamble),
                                                  SBRM consistent with the FMP, as                        example, during development of this                    NMFS clarifies in the final rule that,
                                                  provided in § 600.1610(a)(1) (see section               rule, agency scientists noted that                     related to its consideration of data use,
                                                  I. D. of this preamble).                                bycatch estimates for species with low                 a Council must consult with its SSC
                                                     As an example, NMFS notes that the                   encounter rates will have lower                        and/or the regional NMFS science
                                                  resources available for observer                        precision than commonly encountered                    center on reporting methodology design
                                                  programs may vary from year to year. To                 bycatch species. Establishing bycatch                  considerations such as data elements,
                                                  address this variability in resources, the              data or estimation standards across all                sampling designs, sample sizes, and
                                                  North Pacific Council uses an Annual                    fisheries could result in an overly                    reporting frequency. Information
                                                  Deployment Plan, a component of its                     intensive sampling effort that may not                 provided through the consultation
                                                  fisheries research plan authorized under                                                                       process will enable a Council to develop
                                                                                                          be needed for bycatch assessment or
                                                  16 U.S.C. 1862, to describe how NMFS                                                                           an SBRM that incorporates scientific
                                                                                                          management purposes, would not be
                                                  and the Council will annually deploy                                                                           input and that will provide data that can
                                                                                                          feasible, and would be an inefficient use
                                                  observers given changes in funding,                                                                            be used, in conjunction with other
                                                                                                          of agency resources. Instead, this rule
                                                  costs, and effort consistent with the                                                                          relevant sources of data, to assess the
                                                                                                          requires that Councils address the
                                                  FMP. As another example, in New                                                                                amount and type of bycatch occurring in
                                                  England and the Mid Atlantic, if the                    uncertainty of the data resulting from an
                                                                                                                                                                 the fishery.
                                                  available funding is insufficient to meet               SBRM and design an SBRM so that the                       Finally, § 600.1610(a)(2)(iv) requires
                                                  the SBRM performance standard, the                      uncertainty associated with the                        Councils to consider the scientific
                                                  SBRM Omnibus Amendment for New                          resulting bycatch data can be described,               methods and techniques available to
                                                  England and Mid-Atlantic fisheries (80                  quantitatively or qualitatively. As                    collect, record, and report bycatch data
                                                  FR 37182, June 30, 2015) (currently the                 reflected in § 600.1600, there may be                  that could improve the quality of
                                                  subject of litigation) establishes a non-               other relevant sources of data beyond                  bycatch estimates. As bycatch data
                                                  discretionary formulaic process for                     the data provided by an SBRM that are                  collection technologies improve, NMFS
                                                  prioritizing how the available observer                 used to develop bycatch estimates for                  anticipates that a Council will consider
                                                  sea-days would be allocated to                          the fishery (e.g., fishing effort, fishery             those technological advances when
                                                  maximize the effectiveness of the                       independent data, commercial landings                  establishing and reviewing SBRMs in
                                                  SBRM. NMFS reiterates that, regardless                  data). Understanding the quality of data               accordance with the review timeline
                                                  of resource constraints, all FMPs must                  resulting from an SBRM and other                       specified in § 600.1610(b). See response
                                                  establish an SBRM that meets the                        sources is important in the assessment                 to comment 47.
                                                  purpose described in § 600.1600.                        of bycatch and will assist Councils in
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                                                                                                          developing conservation and                            F. Review of FMPs
                                                  3. Data Uncertainty                                     management measures that, to the                         Section 600.1610(b) states that all
                                                     Section 600.1610(a)(2)(iii) requires                 extent practicable, minimize bycatch,                  FMPs must be consistent with this rule
                                                  Councils to address the uncertainty of                  and minimize the mortality of bycatch.                 within 5 years of its effective date. To
                                                  the data resulting from the SBRM. This                  For example, a Council may choose to                   verify consistency with this rule,
                                                  section also requires that an SBRM be                   adopt measures that are more                           Councils, in coordination with NMFS,
                                                  designed so that the uncertainty                        conservative in instances where bycatch                must conduct a review of their existing
                                                  associated with the resulting bycatch                   data is a large component of fishing                   SBRMs. The review should provide


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6321

                                                  information sufficient for NMFS to                      Need and Effect                                        consistent with the requirements of the
                                                  determine whether an FMP needs to be                       Comment 1: Several commenters                       MSA and this rule.
                                                  amended. The review should be                           noted a need for clarification as to                      Comment 3: One commenter stated
                                                  documented, but does not need to be                                                                            that the preamble to the proposed rule
                                                                                                          whether the proposed rule establishes
                                                  contained in an FMP.                                                                                           did not cite a recent North Pacific case
                                                                                                          national requirements or guidance.
                                                     There are several potential outcomes                                                                        that affirmed that the Alaska Region’s
                                                                                                          Some commenters stated that the
                                                  of the review. NMFS could determine                                                                            catch accounting system (CAS) is an
                                                                                                          preamble to the proposed rule stated
                                                  that there are FMPs with existing                                                                              SBRM. In light of that case, the
                                                                                                          that the rule is intended to ‘‘establish
                                                  SBRMs that are consistent with this                                                                            commenter requested that the agency
                                                                                                          national requirements and guidance,’’
                                                  rule, in which case no FMP                                                                                     consider excluding fisheries under the
                                                                                                          but in fact it provides broad guidelines
                                                  amendments would be necessary. Other                                                                           jurisdiction of the North Pacific Fishery
                                                                                                          and few mandatory requirements.
                                                  FMPs may describe SBRMs more                                                                                   Management Council (NPFMC) from
                                                                                                          Another commenter requested
                                                  expansively than the definition in this                                                                        requirements of this rule.
                                                                                                          clarification as to whether the proposed                  Response: NMFS has prevailed in
                                                  final rule. For example, they may
                                                  contain components that are consistent                  rule constitutes guidance to the                       several SBRM lawsuits, including The
                                                  with this rule, along with additional                   Councils versus regulatory requirements                Boat Co. v. Pritzker, No. 3:12–cv–0250–
                                                  components that are not precluded by                    upon the Councils.                                     HRH, (D. Alaska Aug. 6, 2014), the
                                                                                                             Response: This rule sets forth NMFS’                North Pacific case mentioned by the
                                                  this rule, but are not minimally
                                                                                                          interpretation of the SBRM provision                   commenter. However, as explained in
                                                  required. Those FMPs also may not
                                                  require further amendments if NMFS                      under MSA section 303(a)(11) (16 U.S.C.                response to comment 2, NMFS believes
                                                  determines they are consistent with this                1853(a)(11)) and requirements for                      that it is important to have a national
                                                  rule. Still other FMPs may describe                     establishing and reviewing SBRMs                       rulemaking applicable to all FMPs.
                                                  procedures or activities that comprise                  consistent with that interpretation.                   NMFS recognizes that there is a North
                                                  an SBRM, but do not explain them in a                   Many provisions of the rule are                        Pacific-specific observer provision
                                                  manner consistent with this rule. In                    mandatory. The rule does not, however,                 under section 313 of the MSA, 16 U.S.C.
                                                  such cases, changes to an FMP, or a                     prescribe specific details on the types of             1862, that provides for use of a fisheries
                                                  fisheries research plan, may be                         data collection and reporting procedures               research plan. NMFS has revised this
                                                  warranted. Consistent with current                      needed for each fishery. Instead, the                  final rule in § 600.1610 to account for
                                                  practices, NMFS encourages Councils to                  rule requires Councils to undertake a                  this provision.
                                                  work together and collaborate on SBRM                   fishery-specific analysis of the SBRM
                                                                                                          appropriate for the fishery and establish              Definition of Bycatch
                                                  reviews and potential FMP amendments
                                                  for fisheries that operate across multiple              an SBRM that meets the purpose                            Comment 4: A commenter requested
                                                  jurisdictions, as appropriate.                          described in § 600.1600.                               clarification on the distinction between
                                                     After the initial review, Councils, in                  Comment 2: One commenter                            bycatch and discards.
                                                  coordination with NMFS, should                          suggested that, in order to allow for the                 Response: The distinction between
                                                  periodically review SBRMs to verify                     most flexible and effective SBRM                       bycatch and discards is clearly laid out
                                                  continued compliance with the MSA                       process, the agency should issue these                 in MSA’s definitions section and in
                                                  and this rule. Such a review should be                  SBRM provisions as guidance, rather                    NMFS’ NS9 guidelines. The MSA
                                                  conducted at least once every 5 years.                  than a rule.                                           defines bycatch as fish which are
                                                  Section 600.1610(b) is consistent with                     Response: As explained in the                       harvested in a fishery, but which are not
                                                  the review and improvement of data                      preamble to the proposed rule, NMFS                    sold or kept for personal use, and
                                                  collection methods, data sources, and                   has never issued regulations that set                  includes economic discards and
                                                  applications described under the NS9                    forth the basic requirements of MSA                    regulatory discards. Such term does not
                                                  guidelines at 50 CFR 600.350(d)(1).                     section 303(a)(11). In the absence of a                include fish released alive under a
                                                                                                          national SBRM regulation, Councils                     recreational catch and release fishery
                                                  II. Response to Comments                                have taken varying approaches to                       management program. 16 U.S.C.
                                                     NMFS solicited public comments on                    interpreting the provision, with some                  1802(2). The MSA defines ‘‘economic
                                                  the proposed rule for 60 days (February                 adopting the recommendations in                        discards’’ as fish which are the target of
                                                  25 through April 25, 2016), and during                  Evaluating Bycatch and others                          a fishery, but which are not retained
                                                  that time made presentations to four of                 interpreting the requirement in a                      because of an undesirable size, sex, or
                                                  the eight Councils and the Highly                       different way. Litigation has also                     quality, or other economic reasons (16
                                                  Migratory Species Advisory Panel.                       influenced the development of SBRMs                    U.S.C. 1802(9)), and the term
                                                  NMFS received 25 substantive comment                    in some regions. In light of the varying               ‘‘regulatory discards’’ as fish harvested
                                                  letters on the proposed rule during the                 existing approaches, NMFS believes that                in a fishery which fishermen are
                                                  public comment period. Of those, six                    an analysis and articulation of the basic              required by regulation to discard
                                                  were form letters that had 65,961                       requirements of section 303(a)(11)                     whenever caught, or are required by
                                                  signatures, and 1,382 of those                          through a rulemaking is necessary in                   regulation to retain but not sell (16
                                                  signatories provided individualized                     order to achieve greater consistency in                U.S.C. 1802(38)). As explained in
                                                  add-on comments. The other 19                           establishing, documenting, and                         NMFS’ NS9 guidelines, ‘‘[b]ycatch
                                                  substantive comment letters were from                   reviewing SBRMs. Public comment                        includes the discard of whole fish at sea
                                                  non-governmental organizations,                         received on the proposed rule has                      or elsewhere, including economic
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                                                  industry groups/commissions, Councils,                  greatly assisted NMFS in evaluating                    discards and regulatory discards. . . .’’
                                                  and individuals. Summaries of the                       different approaches to interpreting the               50 CFR 600.350(c)(1).
                                                  substantive comments that we received                   SBRM provision and developing this                        Comment 5: One commenter
                                                  concerning the proposed rule, and our                   final rule. With regard to flexibility, this           recommended that the regulatory text be
                                                  responses to all of the significant issues              rule recognizes the diversity of fisheries             revised to more clearly indicate that
                                                  they raise, are provided below.                         across the country by allowing for a                   bycatch does not include incidental
                                                  Comments of a similar nature were                       fishery-specific evaluation of the type of             catch of seabirds or marine mammals.
                                                  grouped together where appropriate.                     SBRM that is appropriate for a fishery,                Other commenters recommended


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                                                  6322             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  expanding the scope of the rule to                      National Bycatch Report is not a                       release’’ fishing and asked whether ‘‘no
                                                  provide guidance on the reporting of all                requirement under the MSA or other                     possession’’ implies that encounters are
                                                  types of bycatch, including marine                      law. Since 2011, NMFS has issued the                   ‘‘catch and release.’’
                                                  mammals and seabirds. With regard to                    National Bycatch Report and its Updates                   Response: NMFS does not agree with
                                                  marine mammal bycatch, one                              to inform the public about bycatch and                 the suggestion to broaden the definition
                                                  commenter noted that a lack of guidance                 provide a cross-program perspective to                 of bycatch in this rule to cover all fish
                                                  could lead to ineffective monitoring if                 inform agency priorities and planning                  released alive under recreational
                                                  Council actions are not integrated with                 related to bycatch mandates under the                  fishing. ‘‘[F]ish released alive under a
                                                  efforts by the relevant take reduction                  MMPA, ESA, MSA, and other statutes                     recreational catch and release fishery
                                                  teams.                                                  and international agreements. Given the                management program’’ are excluded
                                                     Response: The requirement to                         varying definitions of bycatch under                   from the MSA definition of bycatch. 16
                                                  establish an SBRM is a requirement of                   these authorities, the National Bycatch                U.S.C. 1802(2). NMFS’ NS9 guidelines
                                                  the MSA. Thus, this rule—which                          Report and its Updates use a broader                   clarify that ‘‘[a] catch-and-release
                                                  interprets the SBRM provision—is based                  definition of bycatch than the MSA;                    fishery management program is one in
                                                  on the MSA’s definitions of ‘‘bycatch’’                 they include information about fish, as                which the retention of a particular
                                                  and ‘‘fish.’’ These definitions exclude                 well as marine mammal and seabird                      species is prohibited. In such a program,
                                                  marine mammals and birds. See 16                        interactions. Therefore, in preparing the              those fish released alive would not be
                                                  U.S.C. 1802(2) and (12). In response to                 National Bycatch Report and its                        considered bycatch.’’ 50 CFR
                                                  comment, NMFS has revised the final                     Updates, NMFS compiles information                     600.350(c)(2).
                                                  rule at § 600.1605(b) to add references to              from numerous sources, including, but                     NMFS agrees that release mortality is
                                                  the MSA definitions.                                    not limited to, observer data, logbooks,               an important issue, and the agency has
                                                     This rule does not preclude Councils                 vessel trip reports, dealer reports,                   taken steps to understand and address
                                                  from developing programs to collect,                    landing receipts, surveys, and stock                   this issue. In August 2014, NMFS
                                                  record, and report information about                    assessments; these documents do not                    published a Technical Memorandum
                                                  marine mammal mortality and injury                      rely solely on data provided by SBRMs.                 entitled Fisheries Release Mortality,
                                                  and seabird interactions or                             The more narrow definition of bycatch                  which summarized NMFS-funded fish
                                                  unintentional mortality; however, the                   in the MSA, and the resulting scope of                 release mortality research over the past
                                                  MSA does not require Councils to do so                  this final rule, will not hinder future                15 years, identified release mortality
                                                  to be in compliance with the                            versions of the National Bycatch Report.               data gaps, compiled mortality estimates
                                                  requirements of section 303(a)(11).                        NMFS also notes that the National                   used by NMFS, and identified criteria to
                                                  Marine mammals are protected under                      Bycatch Report and its Updates provide                 help scientists and managers focus
                                                  the Marine Mammal Protection Act, 16                    a compilation of bycatch information                   release mortality resources (NOAA
                                                  U.S.C. 1361 et seq., which NMFS                         and national and regional overviews to                 Technical Memorandum NMFS–F/SPO–
                                                  administers. NMFS is committed to                       document bycatch in fisheries over                     142, July 2014). In February 2016,
                                                  working with the Councils and Take                      time. They are not, however, used for                  NMFS released an Action Plan for Fish
                                                  Reduction Teams (TRTs) to reduce                        day-to-day management of fisheries. The                Release Mortality Science, which
                                                  bycatch of marine mammals. TRTs                         2011 First Edition of the Report used                  identifies national goals and objectives
                                                  provide recommendations to NMFS on                      data available in 2005, Update 1 (2013)                for estimating and reducing discard and
                                                  measures to reduce marine mammal                        used 2010 data, and Update 2 (2016)                    release mortality for fish in commercial
                                                  mortalities and serious injuries in                     used 2011–2013 data. U.S. National                     and recreational fisheries (https://
                                                  commercial fisheries. NMFS uses these                   Bycatch Report, First Edition Update 2                 www.st.nmfs.noaa.gov/ecosystems/
                                                  recommendations to develop and                          (February 2016) at p. 9 (see http://                   bycatch/discard-and-release-mortality).
                                                  implement take reduction plans. TRTs                    www.st.nmfs.noaa.gov/Assets/Observer-                  NMFS directs commenters to these
                                                  also provide input to NMFS on                           Program/bycatch-report-update-2/                       documents for further information
                                                  evaluating the effectiveness of these take              NBR%20First%20Edition%20Update%                        regarding the agency’s efforts to address
                                                  reduction plans; such input often                       202_Final.pdf). NMFS has created a                     and evaluate release mortality in both
                                                  includes discussion and                                 custom database that allows members of                 commercial and recreational fisheries.
                                                  recommendations for observer coverage                   the public to query bycatch estimates                  Interpretation of ‘‘Standardized’’
                                                  levels to monitor marine mammal                         that have been published in the
                                                  bycatch. In previous years, NMFS has                    National Bycatch Report Updates.                          Comment 8: Several commenters
                                                  augmented observer coverage in specific                 Members of the public can access the                   stated that NMFS’ proposed definition
                                                  fisheries to monitor marine mammal                      database at http://                                    of ‘‘standardized reporting
                                                  bycatch. As such, any marine mammal                     www.st.nmfs.noaa.gov/observer-home/                    methodology’’ in § 600.1605(a) is
                                                  monitoring will be closely coordinated                  first-edition-update-1.                                contrary to Congress’ intent and the
                                                  with monitoring required by an SBRM.                       Comment 7: Several commenters                       ordinary meaning of the word
                                                     Comment 6: A commenter noted that                    submitted comments on the definition                   ‘‘standardized.’’ Commenters asserted
                                                  NMFS’ U.S. National Bycatch Report,                     of bycatch with respect to recreational                that the MSA requires that SBRMs be
                                                  which reports on all bycatch, defines                   fishing. One commenter suggested that                  standardized at the national, regional, or
                                                  bycatch broadly as ‘‘discarded catch of                 fish released alive under recreational                 ecosystem level. In general, many of
                                                  any living marine resource plus                         fishing be included as bycatch to be                   these commenters expressed concern
                                                  unobserved mortality due to a direct                    monitored as part of an SBRM. The                      that without regional, ecosystem, or
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                                                  encounter with fishing gear.’’ The                      commenter stated that recreational                     national standardization, it will be
                                                  commenter stated that NMFS needs                        fishing can be a large component of the                difficult or impossible to assess the
                                                  better data for the report, so the rule                 total catch. Further, recreational bycatch             bycatch of species between fisheries or
                                                  should define bycatch in a similar way.                 can be a significant source of mortality,              within multispecies fisheries; compare
                                                     Response: NMFS is not changing the                   and in some cases, exceeds the amount                  or combine data across fisheries or
                                                  definition of bycatch in the final rule for             of fish caught and kept. Another                       regions; understand ecosystem, regional,
                                                  the reasons explained in the response to                commenter requested that the rule                      or national bycatch trends; or minimize
                                                  comment 5. NMFS notes that the                          include an exemption for ‘‘catch and                   bycatch. One commenter recommended


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6323

                                                  standardization according to gear type,                 amount and type of bycatch that occurs                 amended § 600.1610(a)(2)(ii) to
                                                  specifically, reporting of bycatch by gear              in a fishery and thus the types of                     recognize that the amount and type of
                                                  as a ratio of bycatch per unit effort to                reporting procedures that may be                       bycatch occurring in a fishery may vary
                                                  catch per unit effort (BPUE: CPUE). One                 needed in a fishery, NMFS does not                     based on different fishing operations.
                                                  commenter agreed that the proposed                      agree that SBRMs across a region or the                NMFS has also removed ‘‘subset’’ and
                                                  definition reflects the statutory                       country must be standardized by gear                   refers simply to ‘‘fishery’’ in
                                                  language, but urged NMFS to direct                      type. Furthermore, NMFS is not making                  § 600.1605(a), to reflect the language of
                                                  managers to consider monitoring fish                    changes to the rule in response to the                 MSA section 303(a)(11). NMFS notes
                                                  caught as bycatch that are managed in                   suggestion to report bycatch by gear as                that the MSA’s definitions of ‘‘fishery’’
                                                  separate FMPs and by different                          a ratio of bycatch per unit effort to catch            and ‘‘stock of fish’’ are broad. See 16
                                                  management entities. One commenter                      per unit effort (BPUE: CPUE). This                     U.S.C. 1802(13) (defining ‘‘fishery’’ as
                                                  also noted that the rule should be                      suggestion pertains to how data might                  one or more stocks of fish which can be
                                                  revised in light of NMFS’                               be displayed or synthesized when                       treated as a unit for purposes of
                                                  acknowledgment in the 2011 U.S.                         assessing the amount and type of                       conservation and management and
                                                  National Bycatch Report that it is                      bycatch. As explained previously, this                 which are identified on the basis of
                                                  difficult to compare or combine bycatch                 rule pertains to the requirements for the              geographical, scientific, technical,
                                                  data across fisheries or regions due to                 collection, recording and reporting of                 recreational, and economic
                                                  differences in bycatch data, including                  bycatch data.                                          characteristics; and . . . any fishing for
                                                  the quantity and quality of data and                       With respect to the National Bycatch                such stocks), and 16 U.S.C. 1802(42)
                                                  reporting in pounds vs. individuals.                    Report, NMFS reiterates that the Report                (defining a ‘‘stock of fish’’ as a species,
                                                     Response: NMFS is not changing its                   is not required under the MSA.                         subspecies, geographical grouping, or
                                                  fishery-level approach to                               Nevertheless, since 2011, NMFS has                     other category of fish capable of
                                                  standardization in the final rule. The                  issued a National Bycatch Report and its               management as a unit). Given the broad
                                                  rule at § 600.1605(a) defines                           Updates that provide a national- and                   definition of ‘‘fishery’’ and the purpose
                                                  ‘‘standardized reporting methodology’’                  regional-level look at bycatch. See                    of an SBRM, NMFS continues to believe
                                                  with reference to a fishery, consistent                 response to comments 6 and 26 for                      that a Council, when developing an
                                                  with MSA section 303(a)(11). That                       further information on the National                    SBRM, may take into consideration
                                                  section requires that ‘‘Any fishery                     Bycatch Report. For the Second Edition                 different fishing activities and
                                                  management plan . . . with respect to                   of the National Bycatch Report (to be                  operations. For example, if there is
                                                  any fishery, shall . . . establish a                    published in late 2017), NMFS is                       fishing for a stock using trawl nets and
                                                  standardized reporting methodology to                   working to develop length-weight                       gill nets, a Council may determine that
                                                  assess the amount and type of bycatch                   conversion factors for use in the Report.              different data collection, recording, and
                                                  occurring in the fishery.’’ 16 U.S.C.                   The use of conversion factors is not                   reporting procedures are appropriate for
                                                  1853(a)(11). The characteristics of                     new; for example, NMFS has used such                   the two gear types. In such case, the
                                                  bycatch in a fishery vary based on the                  conversion factors in the pelagic                      FMP must identify what the established,
                                                  fishing activity and operations.                        longline fisheries based in Hawaii and                 consistent procedures are for both gear
                                                  Therefore, requiring that SBRMs be                      American Samoa (https://pifsc-                         types. See also section I. C.
                                                  standardized at the regional or national                www.irc.noaa.gov/library/pubs/DR-16-                      Comment 10: One commenter noted
                                                  level would constrain the ability to                    004.pdf). Unit conversion and                          that in the Greater Atlantic Region, the
                                                  tailor bycatch data programs to the                     mathematical analysis is a standard                    current SBRM is designed by ‘‘fishing
                                                  needs of specific fisheries. However,                   approach to dealing with data                          modes,’’ which, in some cases, may not
                                                  consistent with current practices, the                  disparities.                                           meet the statute’s definition of a
                                                  final rule encourages Councils to work                     Comment 9: One commenter asserted                   ‘‘fishery.’’ The commenter
                                                  together and collaborate on SBRMs for                   that the inclusion of ‘‘subset of a                    recommended that it be made clear that
                                                  fisheries that operate across multiple                  fishery’’ in § 600.1605(a) is inconsistent             this approach meets the requirements of
                                                  jurisdictions, as appropriate.                          with the MSA. Another commenter                        the statute.
                                                     NMFS does not agree that this rule                   asked what a sub-‘‘set’’ is, noting that it               Response: NMFS is not making
                                                  will make it more difficult to assess the               might be difficult in some fisheries to                revisions to the final rule in response to
                                                  bycatch of species between fisheries or                 define a ‘‘set’’ and that, for many                    this comment. NMFS approved the
                                                  within multispecies fisheries; compare                  fisheries, collecting data at the ‘‘set’’              SBRM Omnibus Amendment for New
                                                  or combine data across fisheries or                     level would be extremely burdensome.                   England and Mid-Atlantic fisheries in
                                                  regions; understand ecosystem, regional,                The commenter expressed concern that                   June 2015, after reviewing the
                                                  or national bycatch trends; or minimize                 fine-scale data collection might                       amendment for consistency with the
                                                  bycatch. Unit conversion is a standard                  encourage inaccuracies and non-                        MSA and other applicable law.
                                                  approach to dealing with data                           compliance with reporting                              Moreover, the SBRM Omnibus
                                                  disparities. The agency routinely                       requirements.                                          Amendment is currently the subject of
                                                  compiles data from varied sources and                      Response: The intent of the proposed                litigation.
                                                  uses mathematical conversions and                       rule’s § 600.1605(a) (81 FR 9413,                         Comment 11: NMFS received
                                                  analytical tools to understand the data                 February 25, 2016) was to acknowledge                  comments that the lack of
                                                  at the necessary scale.                                 that different fishing activities and                  standardization in the proposed rule
                                                     With regard to gear type, as discussed               operations can affect the amount and                   conflicts with the requirements of
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                                                  in the preamble (see section I. C.), a                  type of bycatch that occurs, and thus the              National Standard 3 (NS3).
                                                  Council may determine that different                    types of reporting procedures that may                    Response: This rule is consistent with
                                                  collection, recording, and reporting                    be needed. Bycatch can be affected by,                 NS3, which requires, to the extent
                                                  procedures are appropriate within a                     among other things, the gear types used,               practicable, an individual stock of fish
                                                  fishery for different gear types.                       how gear is deployed, gear selectivity,                shall be managed as a unit throughout
                                                  However, because different fishing                      fishing effort, fishing locations, and                 its range, and interrelated stocks of fish
                                                  activities and operations (including but                existing management measures. In                       shall be managed as a unit or in close
                                                  not limited to gear type) may affect the                response to this comment, NMFS has                     coordination. 16 U.S.C. 1851(a)(3). The


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                                                  6324             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  NS3 guidelines provide guidance for                     of information, are used to assess the                 considered this case law in developing
                                                  interpreting a ‘‘management unit’’ in the               amount and type of bycatch occurring in                the proposed rule. After taking public
                                                  context of a ‘‘fishery.’’ See 50 CFR                    a fishery and to inform the development                comment into consideration, and
                                                  600.320(d) (defining management unit                    of conservation and management                         reconsidering relevant case law, NMFS
                                                  as ‘‘a fishery or that portion of a fishery             measures that, to the extent practicable,              continues to believe that the approach
                                                  identified in an FMP as relevant to the                 minimize bycatch and bycatch                           taken in this final rule is appropriate
                                                  FMP’s management objectives’’) and                      mortality. In addition, NMFS has added                 and consistent with the MSA, for the
                                                  (d)(1) (explaining that ‘‘choice of a                   a new paragraph (iv) to § 600.1610(a)(2)               reasons explained above. To the extent
                                                  management unit depends on the focus                    that requires a Council to address how                 that courts have described the SBRM
                                                  of the FMP’s objectives, and may be                     the data resulting from an SBRM are                    provision as an ‘‘assessment
                                                  organized around biological, geographic,                used to assess the amount and type of                  methodology,’’ NMFS notes that the
                                                  economic, technical, social, or                         bycatch in the fishery, and requires the               cases did not engage in a comprehensive
                                                  ecological perspectives’’). As explained                Council to consult with its SSC and/or                 review of the statutory construction of
                                                  in response to comment 8, this final rule               regional NMFS science centers on                       the SBRM provision. Reading section
                                                  defines standardized reporting                          SBRM design considerations (e.g., data                 303(a)(11) in context with other
                                                  methodology with regard to a ‘‘fishery.’’               elements, sampling designs, sample                     provisions of the MSA, NMFS believes
                                                  Thus, NMFS does not see any conflict                    sizes, and reporting frequency). NMFS                  that the final rule’s definition of
                                                  between the two provisions. To the                      believes this approach is consistent with              ‘‘standardized reporting methodology,’’
                                                  extent there is any conflict, NMFS notes                the plain language of section 303(a)(11)               which does not include assessment
                                                  that NS3 contains the qualifier, ‘‘to the               of the MSA, which requires that an FMP                 methods, is consistent with the MSA.
                                                  extent practicable.’’                                   establish a standardized reporting                        Comment 14: Several commenters
                                                    Comment 12: One commenter                             methodology to assess the amount and                   asserted that data collection and
                                                  recommended establishing minimum                        type of bycatch occurring in the fishery,              assessment are inextricably linked.
                                                  standards for federal bycatch reporting                 and include conservation and                           Where, how, how much, and what type
                                                  and offered to work with NMFS to                        management measures that minimize                      of data is collected determines how
                                                  define these standards and identify                     bycatch and bycatch mortality to the                   those data may be analyzed and used to
                                                  what can be done to help those Councils                 extent practicable. 16 U.S.C.                          come up with bycatch estimates. If the
                                                  whose fisheries do not meet the                         1853(a)(11). Section 303(a)(11) requires               design of an SBRM is disconnected from
                                                  minimum standards.                                      a reporting methodology, not an                        the needs of the bycatch assessment
                                                    Response: This final rule establishes                 assessment methodology. Other section                  process, there will be a waste of
                                                  minimum standards for the collection,                   303(a) provisions explicitly require that              resources and effort, and scientists and
                                                  recording, and reporting of bycatch data                assessments be included in an FMP, but                 managers will not have reliable data
                                                  under MSA section 303(a)(11). NMFS                                                                             they need to get an accurate accounting
                                                                                                          this is not the case for section
                                                  looks forward to working with all                                                                              of bycatch, reduce uncertainty in the
                                                                                                          303(a)(11). See e.g., 16 U.S.C. 1853(a)(3)
                                                  Councils as they review their FMPs                                                                             assessment of species, and better
                                                                                                          (requiring FMP to assess and specify the
                                                  under this final rule.                                                                                         manage the fishery to minimize bycatch.
                                                                                                          present and probable future condition
                                                  Purpose of a Standardized Reporting                     of, and the maximum sustainable yield                  Other commenters agreed that fishery
                                                  Methodology                                             and optimum yield from, the fishery),                  managers must consider data
                                                                                                                                                                 methodologies in tandem with
                                                    Comment 13: Many commenters                           and 16 U.S.C. 1853(a)(4) (requiring that
                                                                                                                                                                 assessment methodologies to make sure
                                                  stated that the proposed rule’s                         FMPs assess and specify . . . the
                                                                                                                                                                 that data will actually be usable to
                                                  § 600.1605(a) (81 FR 9413, February 25,                 capacity and extent to which fishing
                                                                                                                                                                 ‘‘assess the amount and type of bycatch
                                                  2016) is flawed because it defines                      vessels of the United States, on an
                                                                                                                                                                 occurring in a fishery.’’
                                                  standardized reporting methodology                      annual basis, will harvest the optimum                    Response: NMFS affirms that an
                                                  only with regard to collection,                         yield . . .). NMFS disagrees that its                  SBRM must meet its statutory purpose,
                                                  recording, and reporting of bycatch data,               interpretation is contrary to                          which includes collecting data that can
                                                  and not the assessment or analysis of                   Congressional intent. In support of their              be used to assess the amount and type
                                                  that data. Several commenters asserted                  comments, commenters cited Senate                      of bycatch occurring in a fishery. The
                                                  that this approach is contrary to the                   Report 104–276, which states that the                  final rule does not delink data collection
                                                  plain language of the MSA and                           Sustainable Fisheries Act (S. 39) ‘‘would              and assessment. Rather, as explained in
                                                  Congressional intent, and that courts                   mandate the assessment of bycatch level                response to comment 13, NMFS has
                                                  have found that bycatch assessment is a                 in each fishery’’ (S. Rep. No. 104–276,                revised the final rule to reinforce this
                                                  required component of SBRM.                             at 99 (1996)). This report discussed a                 nexus.
                                                    Response: NMFS disagrees that an                      version of a Senate bill that was                         Estimating or assessing bycatch often
                                                  assessment methodology is a required                    reported out of committee on May 23,                   requires a variety of highly technical
                                                  part of SBRM, but agrees that an SBRM                   1996, which would have required that                   data that can vary based on fishery,
                                                  needs to meet its intended purpose,                     FMPs ‘‘assess the amount and type of                   region of the country, and type of
                                                  which includes collecting data that can                 bycatch occurring in the fishery.’’ That               bycatch involved. Relevant data may
                                                  be used to assess the amount and type                   text was not enacted.                                  come from observer program databases,
                                                  of bycatch in a fishery. The proposed                      NMFS recognizes that some district                  logbooks, commercial landings
                                                  rule acknowledged this nexus between                    courts have described the SBRM                         databases, the NMFS Marine
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                                                  the SBRM and the assessment of                          requirement as a bycatch assessment                    Recreational Information Program
                                                  bycatch. To reinforce this link, NMFS                   methodology or have asserted that                      database, or other sources. As explained
                                                  has added to § 600.1600 explanatory                     section 303(a)(11) requires the                        in the preamble of the proposed rule (81
                                                  language from the proposed rule                         assessment of bycatch in the fishery.                  FR 9413, February 25, 2016), a variety
                                                  preamble stating that the purpose of an                 See, e.g., Oceana v. Locke, 831                        of different models or approaches may
                                                  SBRM is to collect, record, and report                  F.Supp.2d 95 (D.D.C. 2011); Pac. Marine                be used to synthesize these data to
                                                  bycatch data in a fishery that, in                      Conservation Council v. Evans, 200 F.                  assess, evaluate, or estimate bycatch.
                                                  conjunction with other relevant sources                 Supp.2d 1194 (N.D. Cal. 2002). NMFS                    Given that the assessment/estimating of


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          6325

                                                  bycatch is a scientific matter, and                     303(a)(11). In developing this rule,                   providing the Council with ongoing
                                                  science is a dynamic process with new                   NMFS undertook a comprehensive                         scientific advice. Id. § 600.315(c) and 16
                                                  findings constantly advancing the state                 evaluation of section 303(a)(11),                      U.S.C. 1852(g)(1).
                                                  of knowledge (see National Standard 2                   including the language of the provision                   Comment 17: One commenter
                                                  guidelines, 50 CFR 600.315(a)(5)),                      and its context in the overall statutory               supports the clarification that the SBRM
                                                  NMFS does not believe that an FMP—                      scheme for fisheries management                        consists of the data collection and
                                                  which is a management and policy                        established by Congress in the MSA. See                reporting programs, and is distinct from
                                                  document that can take a long time to                   ‘‘Purpose of an SBRM’’ above, responses                the methods used to assess bycatch and
                                                  amend—must specify the approaches                       to comments 13 through 17, and                         the measures to minimize bycatch. The
                                                  and methods that scientists must use to                 ‘‘Activities Associated with an SBRM’’                 proposed rule preamble indicated that a
                                                  make such assessments or estimations.                   in the proposed rule (discussing                       Council may include other elements
                                                  If a Council wants to include such                      distinction between data collection/                   (such as the analytic approach used to
                                                  methods in its SBRM, the Council may                    reporting and assessment) (81 FR 9413,                 assess bycatch), and the commenter
                                                  do so, but is not required to.                          February 25, 2016). NMFS believes that                 suggested adding this point to the
                                                     Uncertainty in data is a reality of                  it is important to be clear about the key              regulatory text.
                                                  fisheries management. See NS9                           policy choices and objectives associated                  Response: NMFS thanks the
                                                  guidelines, 50 CFR 600.350(d)(2)                        with establishing a reporting                          commenter for expressing support for its
                                                  (stating that due to limitations in                     methodology, and not confuse those                     approach. However, NMFS does not
                                                  available information, fishery managers                 choices with statistical and technical                 believe that changes to the regulatory
                                                  ‘‘may not be able to generate precise                   approaches for estimating bycatch that                 text are necessary. As explained in the
                                                  estimates of bycatch and bycatch                        are inherently scientific and data                     proposed rule preamble (81 FR 9413,
                                                  mortality of other effects’’ for                        dependent, or with the policy choices                  February 25, 2016), this rule describes
                                                  management alternatives). NMFS’                         associated with developing measures to                 the basic requirements of the SBRM
                                                  National Standard 2 guidelines provide                  minimize bycatch or bycatch mortality.                 provision of section 303(a)(11) of the
                                                  that mandatory measures not be delayed                  After careful analysis and consideration               MSA. A Council may, but is not
                                                  due to incomplete data, but                             of public comments, NMFS has decided                   required to, add other relevant
                                                  management decisions should recognize                   not to retain the approach from                        information to its FMP beyond the basic
                                                  the risks associated with the sources of                Evaluating Bycatch.                                    requirements of this rule.
                                                  uncertainty and gaps in the scientific                     Comment 16: One commenter states                       Comment 18: One commenter stated
                                                  information. Id. § 600.315(a)(2), (a)(6)(v).            that, assuming the agency’s proposed                   that the underlying purpose of an SBRM
                                                  Consistent with these guidelines, and in                rule for SBRM was in place, Councils                   might affect its design, as data provided
                                                  response to comments, NMFS has                          and scientists would now have no                       by these programs can be used a number
                                                  revised the proposed rule regulatory text               guidance for how to actually assess                    of different ways, and the design needs
                                                  by adding language to § 600.1610(a)(2)                  bycatch. There is no guidance provided,                to be appropriate for these uses. For
                                                  in a new paragraph (iii) to require a                   and none promised, on how to model                     example, the design of an SBRM may be
                                                  Council to address uncertainty and                      the amount, type, and scope of bycatch                 very different if it is primarily used to
                                                  design an SBRM so that uncertainty                      with the (likely) piecemeal and uneven                 support stock assessments rather than
                                                  associated with the resulting bycatch                   data provided by SBRMs.                                fishery management decisions. In the
                                                  data reported to the Secretary can be                      Response: NMFS relies on expertise                  former case, an argument could be made
                                                  described, quantitatively or                            from six regional science centers to                   that the responsible science center
                                                  qualitatively. NMFS clarifies in that                   provide scientific information and                     should have extensive input in its
                                                  subsection that Councils should seek to                 analyses for fishery management.                       development. On the other hand, if
                                                  minimize uncertainty in the resulting                   Providing guidance in this rule on how                 intended primarily to address the
                                                  data, recognizing that different degrees                to assess bycatch is inappropriate and                 requirements placed on managers to
                                                  of data uncertainty may be appropriate                  unnecessary given the dynamic nature                   minimize bycatch to the extent
                                                  for different fisheries. See comment and                of science and existing guidance and                   practicable, the Council’s needs should
                                                  response 31, infra, discussing data                     scientific processes. Notably, National                have more weight. The proposed rule
                                                  quality issues.                                         Standard 2 (NS2), 16 U.S.C. 1851(a)(2),                should suggest a clear discussion in the
                                                     Comment 15: Several commenters                       requires that conservation and                         SBRM about how its design addresses
                                                  asserted that NMFS must not step away                   management measures be based on the                    the needs of scientists and managers.
                                                  from prior guidance in Evaluating                       best scientific information available,                    Response: The rule requires that an
                                                  Bycatch that ‘‘the combination of data                  and NMFS has provided guidance on                      FMP, or a fishery research plan
                                                  collection and analyses that is used to                 NS2 at 50 CFR 600.315.                                 authorized under 16 U.S.C. 1862,
                                                  estimate bycatch in a fishery constitutes                  Best scientific information available               explain how an SBRM meets the
                                                  the SBRM for that fishery.’’                            includes, but is not limited to, models,               purpose described in § 600.1600, based
                                                     Response: NMFS acknowledged in the                   data, analyses, and scientific                         on an analysis of requirements in
                                                  notice of proposed rulemaking that                      assessments, and new scientific findings               § 600.1610(a)(2). The purpose of SBRM
                                                  Appendix 5 of Evaluating Bycatch                        constantly advance the state of                        is two-fold: Provide data that, in
                                                  describes SBRM as the combination of                    knowledge. Id. § 600.315(a)(4)–(5). As                 conjunction with other relevant sources
                                                  data collection and analyses that is used               explained in the NS2 guidelines,                       of information, are used to assess the
                                                  to estimate bycatch in a fishery.                       scientific information is not conducted                amount and type of bycatch occurring in
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                                                  However, as previously noted,                           in a vacuum, but is subject to peer                    a fishery and for informing the
                                                  Evaluating Bycatch is a technical                       review, consistent with the guidelines                 development of conservation and
                                                  memorandum; neither the                                 and the Office of Management and                       management measures to minimize
                                                  memorandum nor its appendices                           Budget Final Information Quality                       bycatch. Given this purpose,
                                                  established binding policy or agency                    Bulletin for Peer Review. Id.                          § 600.1610(a)(2) requires a Council to
                                                  interpretation of MSA section                           § 600.315(a)(6)(vii). Moreover, each                   address the characteristics of bycatch in
                                                  303(a)(11). NMFS is issuing this rule to                Council has a Scientific and Statistical               the fishery, the feasibility of the SBRM,
                                                  set forth its interpretation of section                 Committee that is responsible for                      data uncertainty, and data use. NMFS


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                                                  6326             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  acknowledges in the final rule that                     accountability measures (AM). Bycatch                  (81 FR 9413, February 25, 2016) to help
                                                  different SBRMs may be appropriate for                  must be accurately assessed because it                 eliminate bias in data collection.
                                                  different fisheries due to the inherent                 counts against a stock’s catch limit.                     Response: NMFS does not agree with
                                                  variability among fisheries. Scientific                 Bycatch must be monitored to comply                    this comment; self-reported mechanisms
                                                  input is an important aspect of                         with both the SBRM provision in MSA                    are important to include as a potential
                                                  developing an SBRM, thus                                section 303(a)(11) and ACL/AM                          reporting procedure because they are
                                                  § 600.1610(a)(2)(iv) requires a Council to              requirements in MSA section 303(a)(15).                cost effective, feasible, and already
                                                  consult with its SSC and/or regional                       Response: NMFS has deleted the term                 available and appropriate for use in
                                                  NMFS science center on SBRM design                      ‘‘useful’’ and revised the final rule to               various fisheries to report bycatch data.
                                                  considerations.                                         require that Councils address data use                 Self-reported mechanisms (such as
                                                     Comment 19: One commenter                            and data uncertainty when establishing                 logbooks that include bycatch reporting)
                                                  asserted that the SBRM rule should                      or reviewing an SBRM. See e.g.,                        usually are required of all fishery
                                                  follow a precautionary, ecosystem-based                 responses to comments 13 and 31                        participants, and therefore represent a
                                                  approach that can be applied uniformly                  through 33. Data resulting from SBRMs                  near-census of the fishery. The costs of
                                                  to all fisheries to count, cap and control              may be used to inform management                       logbook programs are typically low,
                                                  bycatch.                                                decisions beyond bycatch-related ones,                 and, concerns regarding safety are
                                                     Response: For the reasons explained                  and NS2 provides the standard for data                 limited to concerns that already exist
                                                  in responses to comments 1, 2, 8 and                    used to inform such decisions:                         with fishing operations, which are
                                                  other comments, this final rule takes a                 Conservation and management                            substantial for fishermen but basically
                                                  fishery-specific approach to establishing               measures shall be based on the ‘‘best                  nonexistent for those processing
                                                  SBRMs. NMFS believes that this rule                     scientific information available.’’ 16                 logbooks. However, NMFS recognizes
                                                  will ensure the standardized collection,                U.S.C. 1851(a)(2). For the reasons                     that an SBRM based solely on logbooks
                                                  recording, and reporting of bycatch data                explained in responses to comments 31                  will not be appropriate for all fisheries.
                                                  for each fishery. A uniform approach to                 through 33, NMFS is not establishing                   That is why the rule requires Councils
                                                  count, cap, and control bycatch across                  national standards for accuracy of data                to undertake a fishery-specific analysis
                                                  all fisheries is not required under the                 or estimates in this final rule.                       of SBRMs. Further, the rule requires that
                                                  MSA, and is not practical or cost                          NMFS notes that SBRMs (16 U.S.C.                    an SBRM be designed so that the
                                                  effective, given the variability in fishery             1853(a)(11)) and ACLs/AMs (16 U.S.C.                   uncertainty associated with the data
                                                  characteristics. See response to                        1853(a)(15)) are separate statutory                    resulting from the SBRM can be
                                                  comment 8 for further explanation.                      requirements, which should not be                      described. Management decisions
                                                  NMFS believes that this rule is                         conflated. See Oceana v. Locke, 831                    should recognize the risks associated
                                                  consistent with and complementary to                    F.Supp.2d 95 (D.D.C. 2011). Detailed                   with that uncertainty. See National
                                                  the agency’s policy for ecosystem-based                 guidance on establishing ACL/AM                        Standard 2 guidelines, 50 CFR 600.315.
                                                  fisheries management. NMFS strongly                     mechanisms is provided in the National                    Comment 22: Many commenters
                                                  supports implementation of Ecosystem-                   Standard 1 (NS1) guidelines (50 CFR                    recommended reporting bycatch data
                                                  Based Fisheries Management (EBFM) to                    600.310). To the extent that data from an              and estimates in a manner that is useful
                                                  better inform and enable decisions                      SBRM are used in specifying ACLs, this                 for stakeholders, managers, and
                                                  regarding trade-offs among and between                  final rule complements the NS1                         scientists.
                                                  fisheries (commercial, recreational, and                guidelines. The NS1 guidelines state                      Response: NMFS agrees with this
                                                  subsistence), aquaculture, protected                    that the ‘‘acceptable biological catch’’               comment. The final rule states that the
                                                  species, biodiversity, and habitats.                    accounts for scientific uncertainty in the             purpose of an SBRM is to collect,
                                                  Recognizing the interconnectedness of                   estimate of the overfishing limit for a                record, and report bycatch data that, in
                                                  these ecosystem components will help                    stock or stock complex. 50 CFR                         conjunction with other relevant sources
                                                  maintain resilient and productive                       600.310(f)(2)(ii). Section                             of information, can be used to assess
                                                  ecosystems (including human                             600.1610(a)(2)(iii) also addresses                     bycatch and inform the development of
                                                  communities), even as they respond to                   uncertainty, requiring that an SBRM be                 conservation and management
                                                  climate, habitat, ecological, and other                 designed so that uncertainty associated                measures. Any SBRM established by a
                                                  environmental changes. See http://                      with the resulting data can be described               Council must achieve this purpose,
                                                  www.st.nmfs.noaa.gov/Assets/                            quantitatively or qualitatively. This is               thereby ensuring that bycatch data
                                                  ecosystems/ebfm/Final-EBFM-Policy-                      consistent with the NS2 guidelines (50                 resulting from an SBRM will be useful
                                                  PDS-Review-5.20.2016-final-for-                         CFR 600.315), which provide guidance                   for stakeholders, managers, and
                                                  PDS.pdf. This rule is consistent with the               on uncertainty and issues related to use               scientists.
                                                  EBFM policy statement because it                        of the best scientific information                        Comment 23: Several commenters
                                                  provides for a national approach to                     available. Moreover, the NS1 guidelines                recommended requiring observer
                                                  establishing and reviewing SBRMs and                    refer to mortality of fish that are                    programs and/or electronic monitoring
                                                  will improve NMFS’ understanding of                     discarded (50 CFR 600.310(f)(2)(i)), and               to promote the collection of accurate
                                                  the impacts of a fishery on non-target                  § 600.1610(a)(2)(i) of this final rule                 data and mitigate against data collection
                                                  stocks. Such information will help                      requires that, when developing an                      bias. One commenter stated other
                                                  NMFS and the Councils consider the                      SBRM, a Council must address, among                    agency documents have recognized the
                                                  ecosystem-level trade-offs that are a key               other things, ‘‘the importance of bycatch              benefits of observers for quantifying and
                                                  component of EBFM.                                      in estimating the fishing mortality of                 estimating bycatch. However, the
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                                                     Comment 20: One commenter stated                     fish stocks.’’                                         proposed rule does not require trained
                                                  that in order for data to be ‘‘useful’’ (see                                                                   observers.
                                                  proposed § 600.1610(a)(1)(i) at 81 FR                   Types of Data Collection, Recording,                      Response: NMFS disagrees that the
                                                  9413, February 25, 2016), clear criteria                and Reporting Procedures                               rule should require the implementation
                                                  must be set so that standardized bycatch                  Comment 21: One commenter                            of observer or electronic monitoring
                                                  data can be fed into the calculation of                 recommended eliminating the ‘‘self-                    programs. Observer and electronic
                                                  annual catch limits (ACL) and fully                     reported mechanisms’’ option provided                  monitoring programs are not the only
                                                  considered in the implementation of                     for in the proposed rule’s § 600.1610(a)               ways to collect, record, and report


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          6327

                                                  bycatch, and the MSA does not require                   and other scientific documents and                     MSA requirement. In response to public
                                                  their inclusion in every SBRM. See 16                   reports, SAFE reports, annual Fisheries                comments, NMFS has included in the
                                                  U.S.C. 1853(a)(11), (b)(8). NMFS                        of the United States reports, the                      final rule revisions that clarify the
                                                  recognizes that observer programs are                   National Bycatch Reports and national                  requirements (initially referred to as
                                                  used in many fisheries for collecting                   reports to international committees.                   ‘‘factors’’ in the proposed rule) for
                                                  bycatch data. However, observer                         Landings data can be accessed online                   establishing and reviewing an SBRM.
                                                  programs are costly and logistically                    using NMFS’ species information                        Section 600.1610(a)(1) provides that an
                                                  challenging, and such programs may not                  system at https://www.st.nmfs.noaa.gov/                FMP, or a fishery research plan as
                                                  be needed in all fisheries. Requiring                   sisPortal/sisPortalMain.jsp.                           authorized under 16 U.S.C. 1862, must
                                                  every SBRM to include an observer                          Comment 26: One commenter stated                    explain how the methodology meets the
                                                  program would not be an efficient use                   that locating specific data and metadata               purpose described in § 600.1600, based
                                                  of resources. Further, it is NMFS’ policy               about bycatch is an ongoing issue                      on an analysis of the requirements set
                                                  to encourage the consideration of                       because various data are reported in                   forth in § 600.1610(a)(2): Characteristics
                                                  electronic technologies to complement                   disparate reports. The commenter                       of bycatch, feasibility, data uncertainty,
                                                  and/or improve existing fishery-                        suggested including a provision to                     and data use. NMFS disagrees that
                                                  dependent data collection programs to                   require the movement to housing of data                methodology needs to be standardized
                                                  achieve the most cost-effective and                     in a single source (such as a data                     at a national or international level. See
                                                  sustainable approach that ensures                       warehouse) to improve standardizing,                   comments and responses 1, 2, 8, and 9.
                                                  alignment of management goals, data                     documenting, and accessing data.                       With regard to data assessment, this rule
                                                  needs, funding sources and regulations.                    Response: Since 2011, NMFS has                      requires a Council to address data use
                                                  See NMFS Policy Directive 30–133,                       published a series of National Bycatch                 and data uncertainty and to consult
                                                  Policy on Electronic Technologies and                   Reports and Updates that provide                       with its SSC and/or NMFS science
                                                  Fishery-Dependent Data Collection                       information on fishery- and species-                   centers. See comments and responses
                                                  (May 3, 2013). However, the adoption of                 specific bycatch estimates for major U.S.              16, and 31 through 33. NMFS does not
                                                  new technologies raises numerous                        fisheries around the country. Some of                  believe more prescriptive text is needed
                                                  fishery-specific technical, legal, and                  the estimates contained in the National                regarding data collection and
                                                  policy issues, and, as with observer                    Bycatch Reports and Updates are also                   assessment.
                                                  programs, electronic monitoring                         published in other NMFS documents                         Under the MSA, Councils are in the
                                                  programs may not be needed or feasible                  such as its marine mammal stock                        first instance responsible for developing
                                                  in a particular fishery. Recognizing the                assessment reports. Additionally as                    FMPs and addressing mandatory FMP
                                                  diversity of fisheries across the country,              stated in response to comment 6 and 25,                requirements, including SBRMs. NMFS
                                                  this rule requires Councils to undertake                NMFS has created a custom database                     has a seat on each Council. NMFS will
                                                  a fishery-specific evaluation to                        that allows members of the public to                   use its regular procedures for approval
                                                  determine the SBRM appropriate to a                     query bycatch estimates that were                      of FMPs and FMP amendments to
                                                  fishery, while still achieving the                      published in the National Bycatch                      ensure that FMPs and their
                                                  purpose of an SBRM as described in                      Report Updates. (Members of the public                 implementing regulations are consistent
                                                  § 600.1600.                                             can access the database here: http://                  with the MSA and other applicable
                                                     Comment 24: A commenter requested                    www.st.nmfs.noaa.gov/observer-home/                    laws. NMFS notes that MSA section
                                                  that intercept surveys be explicitly                    first-edition-update-1). See responses to              304(c) specifically addresses when
                                                  mentioned in § 600.1610(a) as an                        comments 8 and 9 for an explanation as                 NMFS may prepare an FMP.
                                                  example of a self-reported mechanism.                   to why section 303(a)(11) and this rule                   Comment 28: NMFS received
                                                     Response: The types of self-reported                 do not require data collection to be                   comments stating that its proposed
                                                  mechanisms identified in                                standardized at the national level.                    regulations regarding the contents of
                                                  § 600.1610(a)(1) are examples; this list is                                                                    FMPs and the factors that a Council
                                                                                                          FMP Contents
                                                  not exhaustive or limiting. NMFS agrees                                                                        must consider in establishing or
                                                  that intercept surveys are a type of self-                 Comment 27: One commenter stated                    reviewing an SBRM are too prescriptive.
                                                  reported mechanism, along with others,                  that the required factors for SBRMs                    One commenter recommended revising
                                                  that could be included in an SBRM.                      (proposed § 600.1610(a)(2)(i), (ii) at 81              the regulatory text of § 600.1610 in
                                                     Comment 25: A commenter requested                    FR 9413, February 25, 2016) are                        several places to clearly reflect that the
                                                  written reports for the Councils (and the               minimal and lack specificity. Details of               objective of this proposed rule is to
                                                  public) from NMFS each year that                        establishing and reviewing SBRMs are                   provide guidance to the Councils on the
                                                  minimally report by species and sector                  left to Councils, and NMFS has no                      implementation of SBRMs. The
                                                  how many fish were landed and how                       enforcement mechanism to ensure                        commenter recommended changes to
                                                  many were released. To track Council                    SBRMs are established and no option to                 the regulatory text to provide greater
                                                  progress towards minimizing bycatch,                    take over if a Council fails to establish              flexibility.
                                                  the commenter suggested a report in                     an SBRM. NMFS should revise the rule                      Response: As explained previously,
                                                  December on the first 6 months of the                   to make SBRMs mandatory. In addition,                  the purpose of this rule is to set forth
                                                  year and a final report in June showing                 the rule should prescribe and detail                   the basic requirements of MSA section
                                                  landings and released fish by sector by                 each aspect of bycatch data collection                 303(a)(11). See comments and responses
                                                  species for the previous year. The                      and assessment to allow uniformity of                  1 and 2 (explaining the effect and need
                                                  commenter also requested that                           information that can be aggregated and                 for rule). NMFS does not believe the
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                                                  preliminary bycatch information by                      compared, ideally not only nationally                  rule is overly prescriptive, as it takes a
                                                  sector be provided at each Council                      but also internationally.                              fishery-specific approach, and does not
                                                  meeting when landings information is                       Response: The requirement to                        prescribe specific details on the
                                                  presented.                                              establish an SBRM is mandatory under                   methodology needed for each fishery.
                                                     Response: Catch and landings data                    MSA section 303(a)(11). Section                           Comment 29: A commenter stated that
                                                  and estimates/assessments are available                 600.1600 and the proposed rule                         § 600.1610(a)(1) should be revised to
                                                  through a variety of means, including,                  preamble (81 FR 9413, February 25,                     allow Councils to include a more
                                                  but not limited to, stock assessments                   2016) explicitly state that this is an                 detailed description of the SBRM in


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                                                  6328             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  other documents than the FMP. For                       Methodology’’ and comments and                         reliability, accuracy, precision, or other
                                                  example, the North Pacific Fishery                      responses 31 through 36.                               qualifiers regarding bycatch data or
                                                  Management Council and NMFS use an                         Comment 31: Several commenters                      estimates. NMFS recognizes that some
                                                  Annual Deployment Plan (ADP) process                    asserted that the rule must incorporate                courts have addressed bycatch estimates
                                                  to determine the scientific sampling                    standards for precision and accuracy, or               or the quality of data in the context of
                                                  plan and method for assigning observers                 should provide guidance that SBRMs                     particular FMPs or amendments. See,
                                                  to vessels and processing plants. This                  produce statistically accurate, precise,               e.g., NRDC v. Evans, 168 F.Supp.2d
                                                  can change from year to year. Under                     and/or reliable estimates of bycatch.                  1149, 1154 (N.D. Cal. 2001) (finding that
                                                  proposed § 600.1610(a)(1) at 81 FR 9413,                Another commenter stated that while                    NMFS failed to address the SBRM
                                                  February 25, 2016, it appears that an                   the MSA does not specify a specific                    requirement and its ‘‘duty to obtain
                                                  FMP would need to include a specific                    level of accuracy or precision, it does                accurate bycatch data’’); and Oceana v.
                                                  reference to the ADP process (which it                  require that SBRMs produce data that                   Evans, 384 F.Supp.2d 203, 234–235
                                                  already does), or to provisions for a                   are accurate and reliable enough to                    (D.D.C. 2005) (finding that NMFS failed
                                                  specific annual ADP, which would be                     satisfy the statutory requirement to                   to analyze what type of program would
                                                  outdated almost immediately upon                        develop measures to minimize bycatch                   ‘‘succeed in producing the statistically
                                                  approval of the FMP amendment. This                     and bycatch mortality. Commenters                      reliable estimates of bycatch needed to
                                                  is not necessary and is directly counter                cited several court decisions regarding                better manage the fishery’’ and to
                                                  to the overall objective of this proposed               SBRMs and accuracy or reliability of                   address an accuracy concern in a
                                                  rule, which is to provide the public with               data. Some commenters also asserted                    scientific study). However, these
                                                  greater clarity about the provisions of an              that the proposed rule would result in                 opinions were based on the specific
                                                  SBRM.                                                   data that is contrary to the agency’s                  FMPs before the courts, and did not
                                                     Response: Each FMP must identify                     guidelines for National Standard 2                     engage in comprehensive analysis of the
                                                  the required procedure or procedures                    (NS2).                                                 statutory construction of the SBRM
                                                                                                             Response: NMFS agrees that an SBRM                  provision. NMFS believes that the
                                                  that constitute the SBRM for a fishery.
                                                                                                          must meet its statutory purpose. See                   approach in the final rule is consistent
                                                  See § 600.1610(a)(1). In addition, an
                                                                                                          response to comment 13 for further                     with MSA section 303(a)(11) and will
                                                  FMP, or fishery research plan as
                                                                                                          explanation. To that end, the final rule               ensure that SBRMs achieve the statutory
                                                  authorized under 16 U.S.C. 1862, must
                                                                                                          requires Councils to explain how a                     purpose for SBRMs (§ 600.1600), while
                                                  explain how an SBRM meets the
                                                                                                          chosen SBRM meets its statutory                        allowing Councils to address the unique
                                                  purpose described in § 600.1600, based
                                                                                                          purpose, based on an analysis of the                   circumstances of particular fisheries.
                                                  on an analysis of four requirements
                                                                                                          characteristics of bycatch in the fishery,                NMFS disagrees that the rule would
                                                  under § 600.1610(a)(2). The rule                        the feasibility of the SBRM, the                       result in data that is contrary to the NS2
                                                  provides that the FMP or fisheries                      uncertainty of the data associated with                guidelines. NS2 requires that
                                                  research plan may reference analyses                    an SBRM, and the use of the data                       conservation and management measures
                                                  and information in other documents.                     resulting from an SBRM. See comments                   be based on the best scientific
                                                  NMFS has also revised § 600.1610(a)(1)                  and responses 32 through 36 for further                information available. 16 U.S.C.
                                                  to state that, in addition to any proposed              discussion related to data use and                     1851(a)(2). It does not require NMFS to
                                                  implementing regulations, a Council                     uncertainty considerations.                            produce statistically reliable data or
                                                  should also provide in its FMP, or                         In this final rule, however, NMFS is                data that achieves a particular level of
                                                  fishery research plan authorized under                  not establishing national standards for                precision for the bycatch estimates. In
                                                  16 U.S.C. 1862, guidance to NMFS on                     precision, accuracy, or reliability of                 fact, the NS2 guidelines recognize that
                                                  how to adjust implementation of an                      bycatch estimates or data. NMFS                        there may be data limitations in
                                                  SBRM consistent with the FMP. In the                    clarifies in this rule that Councils                   different fisheries. See 50 CFR
                                                  North Pacific, the ADP referenced by the                should seek to minimize uncertainty in                 600.315(a)(3) (noting that ‘‘data-poor’’
                                                  commenter is a component of the                         the resulting data, recognizing that                   fisheries may require use of simpler
                                                  fishery research plan, thus NMFS and                    different degrees of data uncertainty                  assessment methods and greater use of
                                                  the Council may continue to use the                     may be appropriate for different                       proxies for quantities that cannot be
                                                  ADP to determine annually the                           fisheries. However, the specific                       directly estimated). Consistent with the
                                                  scientific sampling plan and method for                 characteristics of each fishery and its                NS2 guidelines at § 600.315(a)(2) and
                                                  assigning observers to vessels and                      bycatch vary widely from region to                     § 600.315(a)(6)(v), and in response to
                                                  processing plants, consistent with the                  region and from fishery to fishery.                    comments, NMFS has revised
                                                  fisheries research plan and FMP. See                    NMFS believes that it is important for                 § 600.1610(a)(2) by adding a new
                                                  comment and response 48 for additional                  Councils to address the characteristics                paragraph (iii) that requires a Council to
                                                  explanation.                                            of bycatch in a particular fishery and                 address uncertainty and to design
                                                  Consideration of Quality and Use of                     also address data use, data uncertainty,               SBRMs so that uncertainty associated
                                                  Data                                                    and feasibility considerations in the                  with the resulting bycatch data reported
                                                                                                          context of that fishery. To ensure robust              to the Secretary can be described
                                                     Comment 30: One commenter                            scientific advice in establishing or                   quantitatively or qualitatively.
                                                  expressed support for the requirement                   reviewing SBRMs, § 600.1610(a)(2)(iv)                     Comment 32: Many commenters
                                                  for Councils to consider data quality.                  requires a Council to consult with its                 stated that the SBRM rule will result in
                                                     Response: NMFS appreciates the                       SSC and/or regional NMFS science                       poor data and, as a result, managers will
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                                                  support regarding the consideration of                  centers on reporting methodology                       not be able to sustainably manage
                                                  data quality. In the final rule, NMFS has               design considerations, such as data                    fisheries. Commenters asserted that an
                                                  elaborated on the concept of data                       elements, sampling designs, sample                     accurate accounting of bycatch in
                                                  quality by requiring Councils to address                sizes and reporting frequency, all of                  fisheries is critical to fulfilling the
                                                  both the uncertainty of the data and the                which contribute to the level of data                  requirements of the MSA to account for
                                                  use of the data resulting from the SBRM.                quality.                                               all sources of mortality in fisheries
                                                  See comments and responses on                              The SBRM provision in section                       management, prevent overfishing,
                                                  ‘‘Purpose of a Standardized Reporting                   303(a)(11) of the MSA does not specify                 rebuild overfished stocks, and minimize


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          6329

                                                  the amount of bycatch and mortality of                  of accuracy and precision of the data, it              incorporated into this rule: It was not
                                                  unavoidable bycatch.                                    is unclear to what extent the data will                developed as the agency’s interpretation
                                                     Response: NMFS disagrees that the                    be ‘‘useful’’ in assessing bycatch to                  of MSA section 303(a)(11), and it
                                                  rule will adversely affect data collection              inform management decisions. The                       conflates the establishment of a
                                                  and fishery management efforts. The                     commenter stated that the rule itself                  reporting methodology with methods to
                                                  rule reinforces that an SBRM must meet                  does not need to specify what                          assess/estimate bycatch. However,
                                                  its statutory purpose and sets forth                    constitutes ‘‘useful,’’ but it should                  NMFS closely reviewed Evaluating
                                                  requirements for establishing and                       recommend a clear process, like SSC                    Bycatch when developing this rule and
                                                  reviewing SBRMs. For example, the rule                  consultation, that will define ‘‘useful.’’             drew upon concepts and approaches
                                                  includes a requirement that Councils                    Another commenter stated that NMFS                     from that report. For example, the report
                                                  address the uncertainty of the data                     should clarify the language in                         noted that the choice of which
                                                  resulting from an SBRM and that                         § 600.1610(b) requiring consultation                   monitoring methods are used in a
                                                  Councils design an SBRM so that the                     with a council’s SSC, advisory panels,                 particular fishery is based on
                                                  uncertainty of the data can be described.               and the NOAA science centers to ensure                 consideration of a range of factors, e.g.,
                                                  The rule clarifies that Councils should                 that bycatch estimation can be                         quality of data, credibility, timeliness,
                                                  seek to minimize uncertainty in the                     appropriately considered with respect to               cost, safety. See Evaluating Bycatch at
                                                  resulting data, recognizing that different              establishing a reporting methodology.                  23. With regard to estimates of bycatch
                                                  degrees of data uncertainty may be                      Another commenter stated that SBRMs                    from observer data, the report provides
                                                  appropriate for different fisheries. The                should be designed based on the best                   CV recommendations, but lists
                                                  rule also includes a requirement that                   scientific statistical and sampling                    numerous caveats for using precision
                                                  Councils address how the data resulting                 methods available to collect and analyze               goals in the context of bycatch
                                                  from the SBRM are used and consult                      that data.                                             reporting/monitoring programs. See id.
                                                  with their SSCs and/or the regional                        Response: In response to comments,                  at 103 (noting that there may be
                                                  science centers on SBRM design                          NMFS has deleted reference to ‘‘data                   circumstances where meeting precision
                                                  considerations. NMFS believes that the                  that are useful’’ in the final rule.                   goals for bycatch estimates would not be
                                                  rule’s requirements, along with periodic                Instead, NMFS specifies that an SBRM                   an efficient use of public resources,
                                                  review of SBRMs, will ensure that                       must meet its statutory purpose set forth              funding and logistical constraints may
                                                  SBRMs produce bycatch data that, along                  in § 600.1600, and requires under                      prevent attainment of goals, etc.). NMFS
                                                  with other sources of data, can be used                 § 600.1610(a)(2)(iv) consultation with                 also notes that this rule takes a fishery-
                                                  to assess and estimate bycatch and                      the SSC and NOAA science centers.                      specific approach and requires Councils
                                                  inform the development of conservation                  Specifically, NMFS has revised the final               to address bycatch characteristics, data
                                                  and management measures.                                rule to require in § 600.1610(a)(2)(iv)                quality, data use, and feasibility, which
                                                     The NS2 and NS9 guidelines                           that a Council consult with its SSC and                are considerations reflected in
                                                  acknowledge that all scientific data                    the NOAA science centers on                            Evaluating Bycatch.
                                                  come with a level of uncertainty. See                   methodology design considerations                         Evaluating Bycatch continues to be
                                                  response to comment 31 (discussing 50                   such as data elements, sampling                        available as a resource; it contains
                                                  CFR 600.350(d)(2), § 600.315(a)(2), and                 designs, sample sizes, reporting                       information that may be helpful when
                                                  § 600.315(a)(6)(v)). As the NS2                         frequency, and the scientific methods                  developing SBRMs, such as discussion
                                                  guidelines note, science is a dynamic                   and techniques available to collect,                   of regional bycatch and fisheries issues,
                                                  process and new scientific findings                     record, and report bycatch data that                   the advantages and disadvantages of
                                                  constantly advance the state of                         could improve the quality of the bycatch               different reporting/monitoring
                                                  knowledge. Id. § 600.315(a)(5) (stating                 estimates. Information provided through                measures, and precision goals for
                                                  that best scientific information is,                    the consultation process will enable a                 bycatch estimates. However, the report
                                                  therefore, not static and ideally entails               Council to develop an SBRM that                        is from 2004, so it would be important
                                                  developing and following a research                     incorporates scientific input and that                 for a Council to consider whether more
                                                  plan). The key thing is to account for                  will provide data that can be used to                  updated information is available when
                                                  uncertainty when considering fishery                    assess the amount and type of bycatch                  establishing or reviewing an SBRM.
                                                  management decisions. See e.g., 50 CFR                  occurring in the fishery.                                 Comment 35: Adequate monitoring of
                                                  600.315(a)(2) and § 600.315(a)(6)(v)                       Comment 34: Some commenters                         bycatch of fish as well as other living
                                                  (providing for acknowledgment of                        expressed support for Evaluating                       marine resources should be required in
                                                  uncertainties in scientific information                 Bycatch, which recommended the use of                  the proposed rule. The 2005 report
                                                  used to inform decision making); and                    at-sea observers and observational                     entitled, ‘‘How Much Observer Coverage
                                                  § 600.310(f)(1)(vi) and § 600.310(f)(2)(i)              technologies, a statistically valid                    is Enough to Adequately Estimate
                                                  (describing under NS1 guidelines                        sampling design, a goal to achieve levels              Bycatch?’’ should be reviewed carefully
                                                  sources of scientific uncertainty and                   of precision of 20 to 30 percent                       to assist the Fisheries Service in
                                                  requiring that acceptable biological                    coefficient of variation (CV), models for              developing standardized criteria for
                                                  catch control rule account for scientific               combining data to assess bycatch, and                  bycatch monitoring.
                                                  uncertainty and the Council’s risk                      adherence to data collection and                          Response: In developing this final
                                                  policy). NMFS notes that the                            estimation standards. One commenter                    rule, NMFS considered the Babcock and
                                                  requirement to establish an SBRM (16                    asserted that, without further study,                  Pikitch report, ‘‘How Much Observer
                                                  U.S.C. 1853(a)(11)) is a separate                       NMFS cannot step away from the                         Coverage is Enough to Adequately
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                                                  statutory requirement from annual catch                 recommendations in Evaluating                          Estimate Bycatch?’’ NMFS is very
                                                  limits and other overfishing provisions                 Bycatch. The commenter stated that the                 familiar with this report, as NMFS has
                                                  (16 U.S.C. 1853(a)(15) and 1851(a)(1))                  memorandum may represent the ‘‘best                    addressed the report in past litigation
                                                  and from rebuilding provisions (16                      available science’’ and, if so, NMFS                   over SBRMs. As explained in the
                                                  U.S.C. 1854(e)). These various                          must rely upon it and incorporate it in                response to comment 13, assessing and
                                                  provisions should not be conflated.                     this rule.                                             estimating bycatch is not included in
                                                     Comment 33: One commenter stated                        Response: NMFS disagrees that                       the definition of an SBRM. However, the
                                                  that without any guidance on the level                  Evaluating Bycatch should be                           rule requires, among other things,


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                                                  6330             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  consideration of data uncertainty and                   stakeholders to identify specific actions              meet its statutory purpose, section
                                                  data use in developing and reviewing                    that reflect regionally specific bycatch               303(a)(11) does not specify any
                                                  SBRMs. The Babcock and Pikitch report                   priorities, including research and                     considerations for establishing a
                                                  is one source among many sources of                     monitoring priorities. Another example                 standardized reporting methodology;
                                                  information available to Councils and                   of NMFS’ commitment to continually                     therefore, NMFS has discretion to
                                                  NMFS when developing and reviewing                      improving our data collection programs                 interpret the MSA and establish
                                                  SBRMs.                                                  is NMFS’ Policy on electronic                          reasonable considerations and
                                                     NMFS notes that the report focuses on                technologies and fishery-dependent data                requirements. Data collection, reporting,
                                                  the use of observers for collecting,                    collection programs. See NMFS Policy                   and recording programs can be
                                                  recording, and reporting bycatch data.                  Directive 30–133, Policy on Electronic                 expensive, logistically challenging to
                                                  The MSA provides that observers may                     Technologies and Fishery-Dependent                     design and implement, involve new and
                                                  be used, but are not required to be used,               Data Collection (http://                               cutting-edge technologies, and
                                                  for data collection. See 16 U.S.C.                      www.nmfs.noaa.gov/op/pds/                              necessitate the consideration of the
                                                  1853(b)(8) (providing for observers as a                documents/30/30-133.pdf).This policy                   safety of human life at sea. Therefore, it
                                                  discretionary FMP measure). The report                  provides guidance on the adoption of                   is reasonable and appropriate for a
                                                  acknowledges that there is a range of                   electronic technology solutions in                     Council to analyze issues of feasibility
                                                  observer coverages that may be more or                  fishery dependent data collection                      when establishing or reviewing an
                                                  less appropriate for a fishery. The report              programs. Electronic technologies                      SBRM and to ultimately choose a
                                                  also notes that determining the                         include the use of vessel monitoring                   methodology that is in fact feasible (i.e.,
                                                  appropriate level of sampling effort is an              systems, electronic logbooks, video                    capable of being implemented) from
                                                  iterative process. This final rule                      cameras for electronic monitoring, and                 cost, technical, and operational
                                                  similarly acknowledges that different                   other technologies.                                    perspectives. See response to comment
                                                  SBRMs will be appropriate for different                    To the extent the commenter is                      38 (describing budget and funding
                                                  fisheries, and provides for scientific                  recommending studies to support                        challenges).
                                                  input into development of SBRMs and                     development of national, uniform                          Contrary to commenters’ assertion,
                                                  periodic review of SBRMs.                               bycatch reporting requirements, NMFS                   Oceana v. Locke, 670 F. 3d 1238 (D.C.
                                                     Comment 36: One commenter stated                     disagrees with the recommendation, as                  Cir. 2011), does not preclude
                                                  that NMFS should conduct scientific                     this rule takes a fishery-specific                     consideration of costs. In that case, the
                                                  studies on accuracy/bias, precision,                    approach to the SBRM requirement. See                  court noted that the second clause of
                                                  management uncertainty, and electronic                  the responses to comments 8 through                    section 303(a)(11) (regarding bycatch
                                                  monitoring advances to determine how                    12.                                                    minimization measures) includes the
                                                  to set standardized criteria for bycatch                                                                       phrase ‘‘to the extent practicable,’’ but
                                                  monitoring and reporting.                               Consideration of Feasibility, Costs, and
                                                                                                                                                                 that phrase does not appear in the first
                                                     Response: NMFS strives to                            Funding
                                                                                                                                                                 clause that requires establishing SBRMs.
                                                  continually improve the science                            Comment 37: Several commenters                      Oceana v. Locke held that costs and
                                                  underlying its fishery management                       stated that the SBRM provision of                      funding are not an excuse to forego
                                                  programs. Pursuant to 16 U.S.C. 1881c,                  section 303(a)(11) does not say that an                establishing SBRMs. Consistent with the
                                                  NMFS prepares, in cooperation with the                  FMP must include SBRM if it is                         opinion, NMFS has revised
                                                  Councils and states, a strategic plan for               ‘‘feasible’’ or ‘‘practicable’’; the statute           § 600.1610(a)(2)(ii) in this rule to state
                                                  fisheries research. The NMFS Office of                  requires FMPs to establish SBRM                        explicitly that feasibility concerns do
                                                  Science and Technology’s 2013                           without any qualifying condition.                      not exempt an FMP from the
                                                  Strategic Plan identifies a variety of                  Commenters assert that the provisions                  requirement to establish SBRM. NMFS
                                                  activities to improve data collection and               of the proposed rule relating to                       disagrees that the opinion prohibits any
                                                  data assessments for a variety of                       feasibility, including consideration of                consideration of costs or funding.
                                                  purposes, including bycatch analyses.                   costs and funding, are contrary to the                    Commenters assert that NMFS cannot
                                                  See https://www.st.nmfs.noaa.gov/                       plain language of the statute.                         consider NS7 (conservation and
                                                  Assets/Strategic-Plans/ST%20Strategic                   Commenters also cite Oceana v. Locke,                  management measures shall, where
                                                  %20Science%20Plan%20%202013.pdf.                        670 F. 3d 1238 (D.C. Cir. 2011), for the               practicable, minimize costs and avoid
                                                  NMFS recently initiated a review and                    proposition that the MSA requires                      unnecessary duplication) in interpreting
                                                  update of this plan. Furthermore, in                    NMFS to establish SBRM without regard                  section 303(a)(11) because they are
                                                  February 2016, NMFS released a draft                    to any consideration of practicability                 separate statutory provisions. MSA
                                                  National Bycatch Reduction Strategy                     (i.e., costs or funding). Commenters also              sections 301 (National Standards) and
                                                  (draft Strategy). See http://                           argue that NMFS may not import a                       303 (FMP Contents) are separate
                                                  www.nmfs.noaa.gov/sfa/fisheries_eco/                    ‘‘practicable’’ standard from National                 provisions, but NMFS disagrees that the
                                                  bycatch/docs/national-bycatch-strategy-                 Standard 7 (NS7), and may not use                      agency may not consider them both in
                                                  2-23-16-web.pdf. The first objective of                 reducing costs as an excuse to                         developing this rule. FMPs must comply
                                                  the draft Strategy is to strengthen                     implement weakened management                          with mandatory FMP requirements
                                                  monitoring and data collection                          measures that will not achieve the                     under section 303(a)—such as the SBRM
                                                  programs through cost-effective use of                  MSA’s primary conservation                             provision—and also the National
                                                  new and existing tools (e.g., observers,                requirements.                                          Standards under section 301. See 16
                                                  logbooks, and electronic technologies)                     Response: NMFS agrees that the                      U.S.C. 1853(a) and 16 U.S.C. 1851(a). In
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                                                  to collect bycatch data that inform                     requirement to establish a standardized                addition, it is important to consider the
                                                  agency bycatch priorities. NMFS                         reporting methodology is mandatory for                 SBRM provision in the context of the
                                                  received multiple public comments on                    all FMPs. However, NMFS disagrees                      statute as a whole.
                                                  the draft Strategy and is now working to                that the MSA precludes consideration of                   Commenters further argue that even if
                                                  finalize it and develop action plans.                   feasibility from cost, technical, and                  it is permissible to consider NS7, NS7
                                                  Once the strategy is finalized, NMFS                    operational perspectives when                          requires that costs be minimized ‘‘where
                                                  plans to develop regional and national                  establishing such a methodology.                       practicable, not absolutely,’’ citing
                                                  action plans in coordination with                       Beyond the fact that an SBRM must                      Connecticut v. Daley, 53 F.Supp.2d 147,


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6331

                                                  172–73 (D. Conn. 1999). This rule                       response to public comment, NMFS has                   However, even though it may not be
                                                  requires that an SBRM be feasible from                  deleted reference to designing an SBRM                 possible to anticipate future funding
                                                  cost and other perspectives, not that                   to be ‘‘implemented with available                     levels for procedures to collect, record,
                                                  costs be minimized absolutely.                          funding,’’ but has retained the                        and report bycatch with complete
                                                  Commenters also cite N. Carolina                        requirement that an SBRM must be                       certainty, the Councils would not be
                                                  Fisheries Ass’n, Inc. v. Gutierrez, 518                 feasible from cost, technical, and                     developing SBRMs in a vacuum. NMFS
                                                  F.Supp.2d 62, 91–92 (D.D.C. 2007), for                  operational perspectives. For example,                 has a seat on each Council, and meets
                                                  the proposition that Congress intended                  although an increase in observer                       regularly with the Council Coordination
                                                  that ‘‘a focus on the economic                          coverage levels in a certain fishery may               Committee. The Councils and NMFS are
                                                  consequences of regulations not                         reduce the uncertainty of the data                     able to consider the trends in costs and
                                                  subordinate th[e] principal                             resulting from the SBRM, such an                       in appropriations levels in recent years.
                                                  [conservation] goal of the MSA.’’ NMFS                  increase may not be feasible from a cost               For example, NMFS notes that funding
                                                  notes that the cited language did not                   or safety standpoint or may result in                  for observer programs has been
                                                  address NS7, as commenters assert, but                  only an incremental improvement in                     relatively stable over the past two years,
                                                  NS8. NS8 requires, in relevant part, that               data quality. Under this rule, Councils                with approximately $43.7 million
                                                  FMP measures ‘‘shall, consistent with                   would evaluate whether such an                         appropriated by Congress for observer
                                                  the conservation requirements of this                   increase is justified in light of the                  programs in FY 2015 and FY 2016.
                                                  Act (including the prevention of                        purpose of the methodology and                            Comment 39: One commenter stated
                                                  overfishing and rebuilding of overfished                feasibility and other requirements under               that SBRMs should be functional at a
                                                  stocks), take into account the                          § 600.1610(a)(2).                                      variety of funding levels. If funding is
                                                  importance of fishery resources to                         NMFS is charged with fulfilling a                   insufficient for monitoring a particular
                                                  fishing communities’’ and ‘‘to the extent               wide range of requirements under the                   management regime, then the regime
                                                  practicable, minimize adverse economic                  MSA, MMPA, ESA, and other statutes.                    should be made more precautionary
                                                  impacts on such communities’’ 16                        These mandates include, but are not                    (e.g., bigger buffers), rather than
                                                  U.S.C. 1851(a)(8). Whether an SBRM                      limited to, ending overfishing and                     foregoing SBRMs or moving forward
                                                  can be implemented from cost and other                  rebuilding fish stocks, protecting and                 with inadequate funding. The
                                                  perspectives is different than an                       recovering threatened and endangered                   commenter states that ACLs, AMs, and
                                                  analysis of economic impacts on                         species, reducing bycatch, enforcing                   SBRMs are all key, interconnected
                                                  communities. Moreover, NS8 makes                        laws and regulations, and combating                    components of a sustainable fishery. If
                                                  explicit reference to MSA conservation                  illegal, unreported, and unregulated                   the FMP design is demanding, then the
                                                  requirements, whereas NS7 does not. In                  fishing internationally. Addressing all of             SBRM must be too. If there is
                                                  any event, as explained above, this rule                these mandates and requirements is a                   insufficient funding, the FMP design
                                                  does not allow a Council to forego                      challenging undertaking for NMFS,                      and the SBRM both need to be scaled
                                                  establishing an SBRM based on high                      particularly in light of increasing legal              back. NMFS should give guidance about
                                                  costs or low funding.                                   mandates and budget constraints.                       how to revise FMP components to
                                                     Comment 38: NMFS received several                       When Congress establishes a program                 balance the level of an SBRM that is
                                                  comments on the requirement in the                      or activity, it must decide how to                     feasible.
                                                  proposed rule that all SBRMs must be                    finance it. Typically programs and                        Response: NMFS agrees that an SBRM
                                                  designed to be implemented within                       activities are financed by appropriating               should be functional at varying funding
                                                  available funding. Some commenters                      funds from the U.S. Treasury. NMFS                     levels. Section 600.1610(a)(2)(ii)
                                                  supported the requirement, some asked                   requests Congressional appropriations                  explicitly acknowledges that funding
                                                  for clarification, and some opposed the                 through the President’s budget request                 may vary from year to year, and requires
                                                  requirement. One commenter requested                    to support statutory and regulatory                    a Council to address how
                                                  that NMFS clarify that if funds are not                 requirements. Through this annual                      implementation of the methodology
                                                  available from current funding sources,                 appropriations process, funding is                     may be adjusted while continuing to
                                                  then there is no requirement to                         provided for NMFS’ many mandates. In                   meet the purpose described under
                                                  implement the SBRM. One commenter                       addition to providing the necessary                    § 600.1600. NMFS believes this
                                                  noted that future funding for monitoring                funds, a congressional appropriation                   consideration is important, given the
                                                  programs is unknown, so it is not clear                 establishes a maximum authorized                       potential variability in funding levels,
                                                  how a Council can be expected to                        program level, meaning that an agency                  the desire for timely and efficient SBRM
                                                  address ‘‘feasibility’’ when designing an               cannot, absent specific statutory                      implementation, and the fact that FMP
                                                  SBRM or how it can design an SBRM to                    authorization, operate beyond the level                amendments can take a long time to
                                                  be implemented within available                         that can be paid for by its                            develop and implement. This
                                                  funding. The commenter suggested a                      appropriations. 72 Comp. Gen. 164, 165                 consideration is particularly important
                                                  more thorough discussion of how a                       (1993). In light of these considerations,              when developing SBRMs that have data
                                                  Council is supposed to design a program                 and given that procedures to collect,                  collection procedures that may be more
                                                  for an uncertain funding amount. Other                  report, and record bycatch data can be                 susceptible to changes in funding (e.g.,
                                                  commenters asserted that NMFS                           extremely costly, NMFS believes that it                observer programs). NMFS notes that
                                                  controls the availability for funding for               is important to require that SBRMs be                  the SBRM provision under MSA section
                                                  SBRMs. These commenters stated that                     feasible from cost as well as other                    303(a)(11) is not couched in terms of an
                                                  the proposed rule therefore would allow                 perspectives.                                          annual requirement as is the case with
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                                                  the agency to disapprove the                               NMFS acknowledges that                              ACLs. Even if a funding shortfall in a
                                                  establishment of an SBRM based on a                     Congressional appropriations may                       particular year affects the
                                                  self-imposed funding problem.                           change over time, and appropriated                     implementation of an SBRM that does
                                                     Response: SBRMs are mandated by                      funds may, consistent with federal                     not necessarily mean that the SBRM is
                                                  statute, and NMFS has revised                           appropriations law, be allocated to                    failing to meet its purpose or that it
                                                  § 600.1610(a)(2)(ii) to state explicitly                implement various statutory mandates                   needs to be amended.
                                                  that feasibility concerns do not exempt                 and to respond to changes in conditions                   Data resulting from SBRMs may be
                                                  an FMP from this statutory mandate. In                  and priorities across the country.                     used to inform management decisions


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                                                  6332             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  beyond bycatch-related ones, but, as                    SBRMS, and, therefore, from assessing                  bycatch in the fishery when available,
                                                  explained in response to comment 20,                    data needs and identifying capacity                    including, but not limited to, the
                                                  SBRMs and ACLs/AMs are separate                         shortfalls.                                            amount of bycatch occurring in the
                                                  statutory requirements that should not                    Response: With respect to the quality                fishery, the importance of bycatch in
                                                  be conflated. NMFS does not believe                     and use of the data resulting from                     estimating the fishing mortality of fish
                                                  that further guidance is needed                         SBRMs, please see responses to                         stocks, and the effect of bycatch on
                                                  regarding buffers, given existing                       comments 30 through 36. With respect                   ecosystems. NMFS believes that a
                                                  guidance related to scientific and other                to budget requests, NMFS works with                    fishery-specific evaluation of bycatch as
                                                  uncertainties. The NS1 guidelines, 50                   the Department of Commerce and the                     stated above, in conjunction with
                                                  CFR 600.310, describe how the Councils                  Office of Management and Budget                        considerations of feasibility, data use,
                                                  should consider uncertainty when                        (OMB) to request Congressional                         and data uncertainty will result in an
                                                  specifying ACLs and AMs. The NS2                        appropriations through the President’s                 SBRM that meets the purpose as
                                                  guidelines, 50 CFR 600.315, provide                     budget to Congress each fiscal year in                 described in § 600.1600.
                                                  guidance on using data that is uncertain                accordance with relevant laws,                            Comment 44: Some commenters
                                                  in management decisions. In addition,                   regulations, and administrative                        stated that NMFS does not have
                                                  the NS6 guidelines, 50 CFR 600.335,                     procedures. NMFS uses information                      discretion to decide not to require or
                                                  address how to take into account                        about bycatch research and data                        establish an adequate SBRM, due to
                                                  variations in fisheries (e.g., biological               collection needs contained in a variety                financial constraints or any other
                                                  and economic uncertainties and                          of reports and strategic planning                      factors, such as the ‘‘overall magnitude
                                                  uncertainties from changes in fishing                   processes to inform this budget                        and/or economic impact of the fishery.’’
                                                  practices).                                             planning and formulation process (e.g.,                   Response: As explained in response to
                                                    Comment 40: One commenter                             the strategic plan for fisheries research              comment 38, section 303(a)(11) of the
                                                  requested that NMFS clarify in the                      required by 16 U.S.C. 1881c of the MSA,                MSA requires all FMPs to establish an
                                                  proposed rule’s § 600.1610(a)(2)(ii) (81                National Observer Program strategic                    SBRM, and NMFS has revised
                                                  FR 9413, February 25, 2016) who would                   reviews and annual reports, SAFE                       § 600.1610(a)(2)(ii) to state that
                                                  be doing the assessment that a                          reports, and numerous other                            feasibility concerns (which include
                                                  methodology is feasible from cost,                      documents). However, the development                   costs and funding) do not exempt an
                                                  technical, and operational perspectives.                of NMFS-related funding requests                       FMP from this mandate. NMFS has
                                                    Response: NMFS has clarified                          contained in the President’s yearly                    removed the text about considering the
                                                  § 600.1610(a)(2) to state that the                      budget submission to Congress is                       overall magnitude and/or economic
                                                  Councils are required to address                        beyond the scope of this rule.                         impact of the fishery from the final rule,
                                                  feasibility and comply with other                                                                              because NMFS believes that it is not
                                                  requirements of the section. Section                    Characteristics of Bycatch and Other                   necessary given existing guidance for
                                                  600.1605(b) defines ‘‘Council’’ in the                  Considerations                                         NS7 and National Standard 8.
                                                  same manner as in 50 CFR 600.305.                          Comment 43: Several commenters                         Comment 45: One commenter
                                                  Therefore, the word ‘‘Council’’ includes                expressed support for the requirement                  suggested the incorporation of guidance
                                                  the Regional Fishery Management                         for Councils to consider characteristics               to ensure the proper identification of
                                                  Councils and the Secretary of                           of bycatch in the fishery. One                         bycatch species to reduce
                                                  Commerce, as applicable. Per MSA                        commenter noted that this requirement                  misidentification errors. The commenter
                                                  section 304(a), NMFS approves,                          is more useful and important when                      also suggested including consideration
                                                  disapproves, or partially approves                      establishing conservation and                          of the status of bycatch species.
                                                  Council-developed FMPs and FMP                          management measures. The commenter                        Response: Incorporating guidance for
                                                  amendments for consistency with the                     recommends that this sentence be                       proper identification of bycatch species
                                                  MSA and other applicable law. 16                        moved to 50 CFR 600.1610(a)(2)(ii) as                  is beyond the scope of this rule. NMFS
                                                  U.S.C. 1854(a).                                         additional factors that the Councils may               has created numerous species
                                                    Comment 41: Two comments were                         consider. Another commenter asserted                   identification guides, some of which
                                                  related to the costs, including industry                that SBRMs should be designed to                       include information about the bycatch
                                                  costs, associated with observer programs                provide more certain bycatch data in                   species’ management status. For
                                                  and electronic monitoring. One                          fisheries where discard mortality is                   example, a NMFS shark identification
                                                  commenter stated that industry should                   identified as an important source of                   guide for the recreational fishery of the
                                                  not be required to pay for observer                     fishing mortality.                                     U.S. Atlantic and Gulf of Mexico
                                                  coverage. One commenter asked about                        Response: This rule requires Councils               specifies which shark species are
                                                  the costs to monitor groundfish, and                    to undertake a fishery-specific analysis               prohibited and must be released (see
                                                  noted that there are some legal                         to establish an SBRM that meets the                    http://www.nmfs.noaa.gov/sfa/hms/
                                                  questions to address before electronic                  purpose described in § 600.1600 of this                species/sharks/rec_shark_id_
                                                  monitoring can be implemented.                          final rule. To perform such an analysis,               placard.pdf). NMFS also has created a
                                                    Response: NMFS recognizes that                        NMFS believes that the specific                        guide to help Alaska fishery observers
                                                  electronic monitoring and observer                      characteristics of bycatch in that fishery             identify coral species that may occur as
                                                  programs can be costly and logistically                 need to be addressed. See response to                  bycatch (see http://www.afsc.noaa.gov/
                                                  challenging to implement. However, a                    comment 9 and section I.C. (discussing                 FMA/PDF_DOCS/Coral_Tutorial_
                                                  discussion of the particular costs and                  consideration of different fishing                     2014.pdf). NMFS believes this guidance
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                                                  challenges associated with monitoring                   activities and operations).                            is more appropriately accomplished
                                                  programs in specific fisheries is beyond                   NMFS agrees that considering the                    through these identification guides.
                                                  the scope of this rule.                                 importance of bycatch as part of fishing                  Comment 46: Several commenters
                                                    Comment 42: One commenter stated                      mortality is an important consideration                commented on the proposed rule’s
                                                  that NMFS cannot justify to Congress                    when establishing or reviewing SBRMs.                  § 600.1610(a)(2)(i) (81 FR 9413,
                                                  the need for more funds related to                      More specifically, § 600.1610(a)(2)(i)                 February 25, 2016), which would
                                                  bycatch data collection if the agency                   provides that a Council must address                   require Councils to consider the
                                                  prevents Councils from designing good                   information about the characteristics of               conservation and management


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          6333

                                                  objectives regarding bycatch in the                     implementation provision (proposed                     extent that changes would be needed to
                                                  fishery. One commenter asked whether                    § 600.1610(c) at 81 FR 9413, February                  an SBRM beyond what the FMP
                                                  this was intended to address something                  25, 2016). Some expressed support for it               established, an FMP amendment would
                                                  different than the bycatch provisions in                as it provides flexibility during                      be needed. NMFS believes that this
                                                  MSA section 303(a). One commenter                       implementation and others                              approach will encourage transparency.
                                                  suggested clarifying that this does not                 recommended changes to or elimination                  The rule requires a Council to address
                                                  establish a requirement that each FMP                   of the provision. One commenter                        implementation and operational issues
                                                  identify specific bycatch objectives                    indicated that the provision would                     up-front during the development of an
                                                  beyond those required in section                        support a Council’s efforts to look at                 SBRM and encourages a Council to
                                                  303(a)(11).                                             ways to increase and improve                           provide guidance to NMFS on SBRM
                                                     Response: The intent of proposed                     methodologies for data collection                      implementation.
                                                  § 600.1610(a)(2)(i) (81 FR 9413,                        practices. One commenter stated that,                     Consistent with the SBRM established
                                                  February 25, 2016) was to provide for a                 before operational adjustments are                     in an FMP, a Council could provide for
                                                  fishery-specific analysis when                          made, managers should ensure that they                 adjustments in how an SBRM is
                                                  establishing an SBRM. To clarify that                   can effectively collect and report data                implemented through regulations (see,
                                                  this rule is not requiring Councils to                  consistently across jurisdictions to                   e.g., SBRM Omnibus Amendment (80
                                                  identify specific bycatch objectives                    inform the management of bycatch                       FR 37182, June 30, 2015)). Councils may
                                                  beyond those required by section                        species. Another commenter stated that                 also provide other guidance to NMFS
                                                  303(a)(11) and NS9, NMFS has removed                    this provision frustrates congressional                via non-regulatory mechanisms. As an
                                                  reference to ‘‘conservation and                         intent to have national-level                          example, the North Pacific Groundfish
                                                  management objectives regarding                         standardization, and also allows for                   FMP uses an Annual Deployment Plan
                                                  bycatch.’’ Further, NMFS believes that it               non-transparent processes to adjust                    (ADP) to address practical and
                                                  is not necessary to state this as a                     SBRMs. The commenter asserted that                     operational implementation issues. See
                                                  requirement in § 600.1610(a)(2), because                changes to an SBRM must be made                        comment and response 29 for further
                                                  all SBRMs must meet the purpose                         through an FMP amendment to                            explanation of the ADP. When a Council
                                                  described in § 600.1600, which includes                 safeguard public participation and                     is considering whether to provide for
                                                  reference to ‘‘inform[ing] the                          ensure that impacts will be more fully                 regulations and/or other guidance to
                                                  development of conservation and                         considered. One commenter requested                    implement an SBRM, some questions
                                                  management measures that, to the                        deleting § 600.1610(c), as it would                    that may be helpful include: What are
                                                  extent practicable, minimize bycatch                    severely limit a Council’s ability to                  the implementation and operational
                                                  and bycatch mortality.’’                                develop effective SBRMs and change                     issues that might arise (see e.g.,
                                                     Comment 47: One commenter stated                     SBRMs based on fishery characteristics                 variations and uncertainties described
                                                  that SBRMs can and should describe the                                                                         in NS6 guidelines); what type of
                                                                                                          in the future.
                                                  methodology by which bycatch data                                                                              adjustments or guidance might be
                                                  will be incrementally improved with                        Response: Fisheries management                      helpful to address these issues; would
                                                  new efficiencies, techniques, and                       occurs in a highly variable environment,               certain adjustments result in an SBRM
                                                  funding.                                                and from year to year, there can be                    not meeting its purpose (see § 600.1600);
                                                     Response: NMFS disagrees with this                   changes in available funding,                          and what would happen if there is an
                                                  comment as this rule, existing National                 equipment, methods for recording and                   unexpected funding shortfall. NMFS
                                                  Standard guidelines, and NMFS                           transmitting data, fishing activity, and               disagrees that SBRMs need to be
                                                  strategic plans already provide                         other changes. NMFS’ intent in                         standardized at a national level in order
                                                  sufficient direction on improving                       proposing § 600.1610(c) was to                         to have data to inform management
                                                  bycatch data. This rule includes a                      emphasize that, when developing an                     decisions. See comments and responses
                                                  provision for Councils to review SBRMs                  SBRM, it is important to consider                      13 (explaining purpose of SBRMs and
                                                  at least every 5 years, and in                          implementation and operational issues                  consideration of data use and quality)
                                                  § 600.1610(a)(2)(iv), requires Councils to              that might arise. See 50 CFR 600.335(b)                and 8 (explaining interpretation of
                                                  consider scientific methods and                         (noting in National Standard 6                         ‘‘standardized’’).
                                                  techniques available to collect, record                 guidelines that a regime ‘‘must be                        Comment 49: One commenter stated
                                                  and report bycatch data that could                      flexible enough to allow timely response               that allowing adjustments to the bycatch
                                                  improve the quality of bycatch                          to resource, industry, and other national              methodology to be based on factors such
                                                  estimates. In addition, the NS 9                        and regional needs’’). NMFS, Councils,                 as funding, management contingencies,
                                                  guidelines provide guidance on                          and stakeholders all have an interest in               or scientific priorities could be
                                                  improving data collection methods, data                 smooth implementation of SBRMs, and                    interpreted to authorize the type of
                                                  sources, and applications of data for                   FMPs can take a long time to amend. In                 budgetary exemption from SBRM
                                                  each fishery to determine the amount,                   response to public comments and to                     requirements that has been found
                                                  type, disposition, and other                            clarify its intent, NMFS has deleted                   contrary to the MSA, citing Oceana v.
                                                  characteristics of bycatch and bycatch                  proposed § 600.1610(c) at 81 FR 9413,                  Locke, 670 F.3d 1238 (D.C. Cir. 2011).
                                                  mortality in each fishery for purposes of               February 25, 2016. Instead,                               Response: As explained in responses
                                                  NS9 and MSA sections 303(a)(11) and                     § 600.1610(a)(1) clarifies that in addition            to comments 37 and 38, MSA section
                                                  303(a)(12). 50 CFR 600.350(d)(1). NMFS                  to proposing regulations necessary to                  303(a)(11) requires that all FMPs
                                                  notes that it also has ongoing initiatives              implement the SBRM, a Council should                   establish an SBRM, and NMFS has
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                                                  to address bycatch and to strengthen                    also provide in its FMP, or in a fishery               clarified in § 600.1610(a)(2)(ii) that
                                                  monitoring programs. See response to                    research plan authorized under 16                      ‘‘feasibility concerns do not exempt an
                                                  comment 36 for further explanation of                   U.S.C. 1862, guidance to NMFS on how                   FMP from the requirement to establish
                                                  these initiatives.                                      to adjust implementation of an SBRM,                   a standardized reporting methodology.’’
                                                                                                          consistent with the FMP. See National                  NMFS disagrees that Oceana v. Locke
                                                  Adaptable Implementation                                Standard 6 guidelines, 50 CFR 600.335.                 precludes a Council from considering
                                                    Comment 48: NMFS received mixed                       This text refers to adjustments                        implementation and operational issues
                                                  comments on the adaptable                               ‘‘consistent with the FMP.’’ To the                    and trying to plan for them. See


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                                                  6334             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  response to comment 37 for further                      believes that review in 5 years (and not               related issues and would benefit from
                                                  discussion of the court case. Section                   a longer period) is appropriate. NMFS                  the guidance and interpretation that this
                                                  600.1610(a)(1) provides that a Council                  notes that there are several other FMP                 rule would provide. If, as a result of
                                                  must explain how an SBRM, which may                     review processes that are on 3 to 5 year               reviewing their FMPs for consistency
                                                  include an implementation adjustment                    review timeframes. These include catch                 with the MSA and this rule, Councils
                                                  mechanism, meets the statutory purpose                  share programs, essential fish habitat,                amend their FMPs, the public will have
                                                  of an SBRM (see § 600.1600), based on                   scientific research and other reviews.                 another opportunity to comment on any
                                                  an analysis of the requirements in                      From an efficiency and resource                        specific actions proposed by a Council.
                                                  § 600.1610(a)(2) (characteristics of                    standpoint, Councils may want to                          Comment 54: Given the critical nature
                                                  bycatch, feasibility, data quality and                  consider conducting SBRM reviews in                    of bycatch data collection, one
                                                  data use).                                              conjunction with other ongoing FMP                     commenter urged the agency to provide
                                                                                                          reviews as much as possible. Further,                  resources to improve collection,
                                                  Review of FMPs                                                                                                 recording, and reporting of bycatch as
                                                                                                          this provision is consistent with the
                                                     Comment 50: Some commenters                          NS9 guidelines, which refer to the                     soon as possible.
                                                  stated that the Sustainable Fisheries Act               review and improvement of data                            Response: NMFS has made SBRM
                                                  of 1996 (SFA) required the agency to                    collection methods, data sources, and                  data collection programs a priority.
                                                  establish SBRM regulations by 1998,                     applications. 50 CFR 600.350(d)(1).                    NMFS continually seeks to improve
                                                  thus the 5 year review period would                        Comment 52: One commenter urged                     data collection, recording, and reporting
                                                  unreasonably delay SBRM                                 NMFS to seriously consider the                         through a variety of mechanisms. See
                                                  implementation to 21 years after it was                 potential negative implications,                       response to Comment 47 for more
                                                  required by Congress.                                   including unnecessary workload, of the                 information.
                                                     Response: NMFS disagrees with these                  rule on regions which are already in                      Comment 55: Commenters stated that
                                                  comments. Section 108(a) of the SFA                     compliance with MSA requirements.                      the proposed rule would undermine the
                                                  added several provisions to section                     Section 600.1610(a)(1) should be                       following agency and Council efforts to
                                                  303(a) of the MSA, including section                    modified so that it makes clear that the               improve fisheries data, modernize data
                                                  303(a)(11). (See Pub. L. 104–297, 110                   first step would be for the Councils to                collection programs, and integrate
                                                  Stat. 3559, sec. 108 (Oct. 11, 1996)).                  review their FMPs to determine if their                ecosystem considerations into fisheries
                                                  Section 108(b) of the SFA required that                 FMPs provide a clear description of the                management: Ecosystem-Based Fishery
                                                  each Council submit to the Secretary of                 SBRM, and only if the Council                          Management Policy, National Bycatch
                                                  Commerce amendments to each FMP to                      determines it does not, should                         Reduction Strategy, Action Plan for Fish
                                                  comply with the amendments made in                      additional modifications be made in                    Release Mortality Science, Regional
                                                  section 108(a) not later than 24 months                 either the FMP or through other                        Electronic Monitoring and Reporting
                                                  after the date of enactment. Id. The Act                reference documents. The provision                     Implementation Plans, and MRIP
                                                  did not require NMFS to promulgate a                    requiring that all FMPs must be                        Implementation Plan. Commenters also
                                                  national SBRM rulemaking. As                            consistent with the rule within 5 years                asserted that the proposed rule would
                                                  explained in the preamble to the                        is not necessary if Councils have                      prevent the agency from implementing
                                                  proposed rule, NMFS is promulgating                     reviewed their FMPs and determined                     hard caps and performance objectives in
                                                  this rule pursuant to section 305(d) of                 that their FMPs do not need to be                      the West Coast drift gillnet fishery and
                                                  the MSA (16 U.S.C. 1855(d)) to clarify                  modified.                                              would facilitate the further collapse of
                                                  NMFS’ interpretation of the SBRM                           Response: The proposed rule                         the New England groundfish fishery.
                                                  provision and provide for periodic                      provided Councils with a 5-year time                      Response: NMFS disagrees that this
                                                  review of SBRMs.                                        frame to review and, if necessary,                     rule would negatively affect ongoing
                                                     Comment 51: NMFS received several                    amend their existing FMPs for                          efforts to improve fisheries data,
                                                  comments on the 5-year timeline for                     consistency with the rule. NMFS                        modernize data collection, and
                                                  reviewing FMPs for consistency with                     continues to believe that there is a need              implement ecosystem based fisheries
                                                  the rule. One commenter supported the                   for this review. However, the final rule               management. This rule interprets basic
                                                  timeline, but given concerns about                      clarifies that a Council does not need to              requirements of the SBRM provision
                                                  workload for the Councils,                              amend an FMP if NMFS determines that                   and does not prescribe or otherwise
                                                  recommended extending subsequent                        it is consistent with this rule.                       change ongoing policy and science
                                                  SBRM reviews to 10 years or on an as                                                                           initiatives. Because the rule interprets
                                                  needed basis. Another commenter noted                   Other Comments                                         the basic requirements for establishing
                                                  that if a Council is provided with                        Comment 53: Some commenters                          SBRMs, NMFS also disagrees with the
                                                  updated estimates of bycatch at each                    requested that NMFS extend the                         comment that suggests the rule would
                                                  Council meeting along with the                          comment period for the proposed rule                   prevent the establishment of hard caps
                                                  estimates of recreational and                           an additional 60 days.                                 in the West Coast drift gillnet fishery or
                                                  commercial landings, the ability to                       Response: NMFS believes that the 60-                 undermine the New England groundfish
                                                  monitor bycatch on an ongoing basis                     day comment period provided the                        fishery. The commenter presumes that
                                                  will also reduce the need for a                         public with a meaningful opportunity to                this rule will diminish the quality of
                                                  comprehensive review from 5 to 10                       comment on the proposed rule, and                      bycatch data and thus the assessment of
                                                  years. Another commenter                                therefore, declined to extend this                     bycatch and the Council’s ability to
                                                  recommended that a review be                            period. Considering the nature and                     adopt management measures to address
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                                                  conducted after 5 years of data are                     scope of the proposed rule, NMFS                       bycatch. NMFS addresses this concern
                                                  available, rather than 5 years after                    believes that 60 days was an adequate                  in responses to comments regarding the
                                                  implementation.                                         timeframe for interested persons to                    ‘‘need and effect’’ and ‘‘distinction
                                                     Response: Data collection and                        understand the issues raised and submit                between data collection and
                                                  reporting methods, conservation and                     to the agency written comments with                    assessment’’.
                                                  management issues, and bycatch                          information and arguments relevant to                     Comment 56: One commenter stated
                                                  characteristics may change considerably                 those issues. Furthermore, several                     that bycatch is a significant issue in
                                                  in a 5-year timeframe. Therefore, NMFS                  Councils are actively working on SBRM-                 recreational and commercial fisheries in


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6335

                                                  the Southeast, citing red snapper and                   Executive Orders 12114, Environmental                  opportunity to review and comment on
                                                  red grouper as examples. The                            Effects Abroad of Major Federal Actions;               that analysis. The commenter noted that
                                                  commenter stated that sufficient SBRMs                  11988 and 13690, Floodplain                            the rule will require significant agency
                                                  in the fishermen logbooks and observer                  Management; and 11990, Protection of                   and Council resources.
                                                  coverage would provide much more                        Wetlands,’’ the following types of                        Response: NMFS conducted a draft
                                                  certain data leading to a more robust                   actions may be categorically excluded                  Regulatory Impact Review and
                                                  assessment used for management.                         from the requirement to prepare an EA                  determined the rule is not significant for
                                                     Response: NMFS notes that an SBRM                    or EIS: ‘‘. . . policy directives,                     the purposes of Executive Order 12866.
                                                  is a requirement of an FMP and that                     regulations and guidelines of an                       Additionally, the Chief Counsel for
                                                  Councils do not establish SBRMs ‘‘in                    administrative, financial, legal,                      Regulation of the Department of
                                                  the fishermen logbooks and observer                     technical or procedural nature, or the                 Commerce certified to the Chief Counsel
                                                  coverage.’’ To the extent that this                     environmental effects of which are too                 for Advocacy of the Small Business
                                                  commenter is recommending specific                      broad, speculative or conjectural to lend              Administration that the proposed rule,
                                                  changes to the SBRMs in particular                      themselves to meaningful analysis and                  if adopted, would not have a significant
                                                  fisheries (e.g., red snapper and red                    will be subject later to the NEPA                      economic impact on a substantial
                                                  grouper), this comment is beyond the                    process, either collectively or case-by-               number of small entities. These
                                                  scope of this rulemaking. The purpose                   case . . .’’ In this instance, a categorical           conclusions were stated in the
                                                  of this rule is to describe the minimum                 exclusion is appropriate for this action               ‘‘Classification’’ section of the proposed
                                                  requirements for establishing an SBRM.                  because NMFS cannot meaningfully                       rule proposed at 81 FR 9413, February
                                                  The specific SBRMs for each fishery are                 analyze potential environmental,                       25, 2016. NMFS prepared a final
                                                  established through individual FMPs                     economic, and social impacts at this                   Regulatory Impact Review before
                                                  and the Council process as guided by                    stage. This rule provides guidance on                  issuing this rule. That review analyzed
                                                  the MSA and this rule. This rule                        establishing and reviewing SBRMs.                      the impact of this rule on the agency,
                                                  requires that all FMPs be consistent                    While the rule explains how the                        the Councils, and small entities, and is
                                                  with this rule within 5 years of the                    development, documentation, and                        summarized in the ‘‘Classification’’
                                                  effective date of this rule. As individual              review of SBRMs should be addressed,                   section of this preamble.
                                                  FMPs are reviewed by the Councils,                      the rule does not mandate specific
                                                                                                                                                                 III. Changes From Proposed Rule
                                                  stakeholders will have additional                       conservation or management measures
                                                  opportunities to provide input on                       for any fishery. There is considerable                    In the first sentence of § 600.1600,
                                                  fishery and regional-specific issues                    diversity in federally managed fisheries               ‘‘with respect to any fishery’’ was added
                                                  associated with particular SBRMs.                       and FMPs, and the Councils and NMFS                    after ‘‘fishery management plan’’ to
                                                     Comment 57: One commenter stated                     have discretion to develop different                   reflect the text of section 303(a) of the
                                                  that it is unclear if the Pacific Islands,              conservation and management                            MSA. The second sentence of
                                                  the Southeast and Southwest have                        alternatives consistent with the MSA                   § 600.1600 was revised in response to
                                                  implemented SBRM. The Caribbean                         and other law. It is not clear what                    public comment to clarify the purpose
                                                  Fishery Management Council does not                     Councils will or will not do in response               of a standardized reporting
                                                  appear to have established SBRMs at all.                to this rule. Thus, it is not possible to              methodology.
                                                  For example, there is no mention of                     predict any concrete impacts on the                       In § 600.1605(a), NMFS made minor
                                                  SBRM in FMPs for Queen Conch, Reef                      human environment without the                          changes to the definition of
                                                  Fish, Spiny Lobster, or Corals and Reef                 necessary intervening actions of the                   ‘‘standardized reporting methodology.’’
                                                  Associated Plants and Invertebrates.                    Councils (e.g., consideration of SBRMs                 First, in response to public comment,
                                                     Response: All FMPs have established                  for specific fisheries). Any analysis of               NMFS removed ‘‘subset of a fishery’’
                                                  SBRMs consistent with the MSA and                       potential impacts would be speculative                 from the definition. Second, NMFS
                                                  implement them through different                        at best.                                               combined the first and second sentences
                                                  mechanisms. NMFS acknowledges that                         None of the exceptions for Categorical              of the proposed definition. Third, NMFS
                                                  the documentation and explanation in                    Exclusions provided by section 5.05c of                added a sentence to the end of the
                                                  FMPs for SBRMs varies considerably.                     NAO 216–6 apply. While there is                        definition to clarify the link between an
                                                  This rule, by clarifying the basic                      controversy concerning the SBRM rule,                  SBRM and the assessment of bycatch.
                                                  requirements for establishing SBRMs,                    the controversy is primarily related to                   Section 600.1605(b) was revised to
                                                  will strengthen existing SBRMs and                      different views on how section                         add reference to the MSA’s definitions
                                                  ensure greater transparency as Councils                 303(a)(11) of the MSA should be                        of ‘‘bycatch’’ and ‘‘fishery’’ in 16 U.S.C.
                                                  review and potentially update their                     interpreted. The rule would not, in                    1802. Other minor revisions were made
                                                  FMPs for consistency with this rule.                    itself, have uncertain environmental                   to the citations in § 600.1605(b).
                                                     Comment 58: NMFS received                            impacts, unique or unknown risks, or                      In § 600.1610(a)(1), the first sentence
                                                  comments disagreeing with the agency’s                  result in cumulatively significant                     was revised to clarify the information
                                                  decision to not prepare an                              impacts on a fishery, protected species,               that must be identified in an FMP. The
                                                  environmental impact assessment (EIS)                   or habitat, as it does not prescribe                   first part of the second sentence of the
                                                  or environmental assessment (EA). The                   specific outcomes for FMPs. When a                     paragraph was modified for clarity.
                                                  commenters stated that a categorical                    given Council or the Secretary prepares                Instead of ‘‘The description must state
                                                  exclusion under the National                            and submits a new FMP or FMP                           the required bycatch data collection,
                                                  Environmental Policy Act (NEPA) is not                  amendment or other regulatory action,                  recording, and reporting procedures for
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                                                  appropriate.                                            at that time, biological, economic, and                each fishery, which may include . . .’’,
                                                     Response: NMFS believes a                            social impacts of the amendment/action                 the second sentence of § 600.1610(a)(1)
                                                  categorical exclusion is appropriate for                would be subject to NEPA analysis.                     now begins: ‘‘The required procedures
                                                  this action. Under sections 5.05 and                       Comment 59: NMFS received one                       may include. . . .’’
                                                  6.03c.3(i) of NOAA’s Administrative                     comment stating that the agency should                    In response to comments and to make
                                                  Order (NAO) 216–6, as preserved by                      not proceed unless a Regulatory Impact                 clear that an SBRM must achieve its
                                                  NAO 216–6A, ‘‘Compliance with the                       Review as required by E.O. 12866 has                   statutory purpose, the third sentence of
                                                  National Environmental Policy Act,                      been conducted and the public has an                   § 600.1610(a)(1) now requires a Council


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                                                  6336             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  to explain ‘‘how an SBRM meets the                      purpose described in § 600.1600, which                 meet the purpose described under
                                                  purpose described in 50 CFR 600.1600,                   includes reference to ‘‘inform[ing] the                § 600.1600.
                                                  based on an analysis of the requirements                development of conservation and                           In § 600.1610(a)(2)(iii), NMFS created
                                                  under § 600.1610(a)(2),’’ in place of the               management measures that, to the                       a distinct subparagraph regarding data
                                                  proposed rule’s requirement that a                      extent practicable, minimize bycatch                   uncertainty. This subparagraph expands
                                                  Council explain ‘‘why the methodology                   and bycatch mortality.’’                               on the requirement in proposed
                                                  is appropriate for the fishery.’’ The third               In § 600.1610(a)(2)(i), NMFS created a               § 600.1610(a)(2)(i) at 81 FR 9413,
                                                  sentence requires that this explanation                 distinct subparagraph for the                          February 25, 2016, that a Council
                                                  be contained in an FMP or a fishery                     requirement that all Councils address                  consider the quality of the data
                                                  research plan authorized under 16                       information about the characteristics of               associated with the methodology when
                                                  U.S.C. 1862, a North Pacific-specific                   bycatch in the fishery. The proposed                   establishing or reviewing an SBRM. In
                                                  provision of the MSA.                                   rule required Councils to ‘‘consider                   place of this requirement,
                                                     Consistent with current practices,                   information about the characteristics of               § 600.1610(a)(2)(iii) clarifies that a
                                                  § 600.1610(a)(1) states that Councils                   bycatch in the fishery, when available,                Council must address the uncertainty of
                                                  should work together and collaborate on                 such as the amount of bycatch occurring                the data resulting from the standardized
                                                  standardized reporting methodologies                    in the fishery, the importance of bycatch              reporting methodology. The
                                                  for fisheries that operate across multiple              in estimating the total mortality of fish              standardized reporting methodology
                                                  jurisdictions, as appropriate.                          stocks, and the importance of bycatch to               must be designed so that the uncertainty
                                                     Also in § 600.1610(a)(1), NMFS                       related ecosystems.’’ In the final rule,               associated with the resulting bycatch
                                                  clarifies that in addition to proposing                 NMFS changed ‘‘such as’’ to ‘‘including                data can be described, quantitatively or
                                                  regulations necessary to implement the                  but not limited to’’ to clarify that                   qualitatively. The Council should seek
                                                  standardized reporting methodology, a                   Councils must address all three types of               to minimize uncertainty in the resulting
                                                  Council should also provide in its FMP,                 information, where such information is                 data, recognizing that different degrees
                                                  or a fishery research plan authorized                   available. In the same sentence, NMFS                  of data uncertainty may be appropriate
                                                  under 16 U.S.C. 1862, guidance to                       replaced ‘‘total mortality’’ with ‘‘fishing            for different fisheries. NMFS made these
                                                  NMFS on how to adjust implementation                                                                           changes in response to public comment
                                                                                                          mortality’’ because bycatch mortality is
                                                  of a standardized reporting                                                                                    and for purposes of clarity.
                                                                                                          part of fishing mortality (i.e., fish dying
                                                  methodology, consistent with the FMP.                                                                             In § 600.1610(a)(2)(iv), NMFS created
                                                                                                          due to fishing activity) and not a
                                                  See National Standard 6 guidelines, 50                                                                         a distinct subparagraph regarding data
                                                                                                          component of natural mortality which is
                                                  CFR 600.335. This text replaces                                                                                use. To clarify the link between an
                                                                                                          part of total mortality. For purposes of
                                                  § 600.1610(c) of the proposed rule,                                                                            SBRM and the assessment of bycatch,
                                                                                                          clarity, NMFS also changed ‘‘the
                                                  which described an adaptable                                                                                   this first sentence of this subparagraph
                                                                                                          importance of bycatch to related
                                                  implementation process for SBRMs.                                                                              states: ‘‘A Council must address how
                                                                                                          ecosystems’’ to ‘‘the effect of bycatch on
                                                  NMFS removed § 600.1610(c) and added                                                                           data resulting from the standardized
                                                                                                          ecosystems.’’ NMFS also added text in                  reporting methodology are used to
                                                  the new sentence in § 600.1610(a)(1) in
                                                  response to public comments expressing                  § 600.1610(a)(2)(i) to acknowledge that                assess the amount and type of bycatch
                                                  confusion over the process described in                 the amount and type of bycatch                         occurring in the fishery.’’ NMFS also
                                                  proposed rule’s § 600.1610(c) (81 FR                    occurring in a fishery ‘‘may vary based                moved the proposed consultation
                                                  9413, February 25, 2016).                               on the operations of the fishery.’’                    provision (in § 600.1610(b) at 81 FR
                                                     In § 600.1610(a)(2), NMFS clarified                    In response to public comment,                       9413, February 25, 2016) to this
                                                  what a Council is required to address                   NMFS removed text from                                 subparagraph, in response to public
                                                  when establishing or reviewing an                       § 600.1610(a)(2)(ii) stating that ‘‘a                  comment and to clarify the consultation
                                                  SBRM. Also in § 600.1610(a)(2), NMFS                    Council may also consider the overall                  process. Therefore, the second sentence
                                                  broke out the ‘‘required factors’’ and                  magnitude and/or economic impact of                    of § 600.1610(a)(2)(iv) states: ‘‘A Council
                                                  ‘‘additional factors’’ of the proposed                  the fishery.’’ NMFS believes that this                 must consult with its scientific and
                                                  rule’s paragraphs (a)(2)(i) and (a)(2)(ii)              information is already addressed in                    statistical committee and/or the regional
                                                  into four subparagraphs to improve the                  NMFS’ National Standards 7 and 8                       National Marine Fisheries Service
                                                  organization and clarity of the                         guidelines.                                            science center on reporting
                                                  paragraph.                                                In § 600.1610(a)(2)(ii), NMFS created                methodology design considerations
                                                     In § 600.1610(a)(2)(i), NMFS deleted                 a distinct subparagraph regarding                      such as data elements, sampling
                                                  the requirement that ‘‘[d]ata resulting                 feasibility. NMFS added ‘‘The                          designs, sample sizes, and reporting
                                                  from the methodology must be useful, in                 implementation of a standardized                       frequency.’’ NMFS made the
                                                  conjunction with other sources of data,                 reporting’’ to the beginning of the                    consultation mandatory in the final rule.
                                                  in meeting the purpose described in                     sentence requiring that the                            NMFS also removed reference to
                                                  § 600.1600 and fishery-specific bycatch                 ‘‘methodology must be feasible from                    ‘‘advisory panels,’’ which was included
                                                  objectives.’’ This requirement is no                    cost, technical, and operational                       in the consultation provision of the
                                                  longer necessary because, as detailed                   perspectives’’ for purposes of clarity. In             proposed rule, because the consultation
                                                  above, § 600.1610(a)(1) requires that all               response to public comment, NMFS                       is scientific in nature and is outside the
                                                  SBRMs meet the purpose described in                     deleted the requirement that a                         scope of the advisory panel’s role.
                                                  § 600.1600. NMFS also deleted the                       methodology ‘‘be designed to be                           NMFS moved the text stating that ‘‘a
                                                  requirement that Councils ‘‘consider the                implemented with available funding.’’                  Council may also consider...the
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                                                  conservation and management                             In place of this text, NMFS added a                    scientific methods and techniques
                                                  objectives regarding bycatch in the                     sentence to the end of                                 available to collect and report bycatch
                                                  fishery’’ proposed in § 600.1610(a)(2) in               § 600.1610(a)(2)(ii) that explains in                  data that could improve the quality of
                                                  response to public comment expressing                   recognition that costs and funding may                 bycatch estimates’’ from proposed
                                                  confusion about this provision. NMFS                    vary from year to year, a Council must                 § 600.1610(a)(2)(ii) (at 81 FR 9413,
                                                  believes that it is not necessary to state              also address how implementation of the                 February 25, 2016) to
                                                  this as a requirement in § 600.1610(a)(2)               standardized reporting methodology                     § 600.1610(a)(2)(iv), because NMFS
                                                  because all SBRMs must meet the                         may be adjusted while continuing to                    believes this provision relates to data


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                              6337

                                                  use. In this sentence, NMFS changed                        This rule has been determined to be                 certification was developed for this
                                                  ‘‘may’’ to ‘‘must’’ in the final rule, and              not significant for purposes of Executive              regulatory action using SBA’s size
                                                  added ‘‘record’’ between ‘‘collect’’ and                Order 12866.                                           standards prior to February 26, 2016.
                                                  ‘‘report’’ to mirror NMFS’ definition of                   The Chief Council for Regulation of                 NMFS has reviewed the analyses
                                                  a standardized reporting methodology.                   the Department of Commerce certified                   prepared for this regulatory action in
                                                     Also in § 600.1610(a)(2)(iv), NMFS                   to the Chief Council for Advocacy of the               light of the new size standards
                                                  added a sentence at the end of the                      Small Business Administration during                   discussed above and has determined
                                                  paragraph clarifying that different                     the proposed rule stage that this rule, if             that the new size standards do not affect
                                                  standardized reporting methodology                      adopted, would not have a significant                  analyses prepared for this regulatory
                                                  designs may be appropriate for different                economic impact on a substantial                       action. Further, because the action does
                                                  fisheries.                                              number of small entities. The factual                  not directly regulate any entities, any
                                                     To comport with the organizational                   basis for the certification was published              new size standard will not directly alter
                                                  changes in the final rule, NMFS                         in the proposed rule (see page 9417 at                 the behavior of any entities operating in
                                                  changed § 600.1610(d) to paragraph (b).                 81 FR 9413, February 25, 2016). In                     federally managed fisheries, and thus no
                                                  To clarify that a Council must undertake                summary, this action interprets and                    direct economic effects on commercial
                                                  a review of their FMPs for consistency                  provides guidance on section 303(a)(11)                harvesting businesses, marinas, seafood
                                                  with the rule, NMFS added that a                        of the Magnuson-Stevens Fishery                        dealers/wholesalers, or seafood
                                                  Council, in coordination with NMFS,                     Conservation and Management Act                        processors are expected to result from
                                                  must conduct a review of its FMPs for                   (MSA), which requires that all Fishery                 this action. Thus, no small entities will
                                                  consistency with this rule. To clarify                  Management Plans (FMPs) ‘‘establish a                  be directly affected by this action and a
                                                  that a Council does not have to amend                   standardized reporting methodology to                  reduction in profits for a substantial
                                                  an FMP within 5 years of the effective                  assess the amount and type of bycatch                  number of small entities is not expected,
                                                                                                          occurring in a fishery’’ (16 U.S.C.                    and NMFS has determined that the
                                                  date of the rule if the FMP is in
                                                                                                          1853(a)(11)). Because the action does                  certification established during the
                                                  compliance with the rule, NMFS also
                                                                                                          not directly regulate any small entities,              proposed rule stage is still appropriate
                                                  added that a Council does not need to
                                                                                                          it will not directly alter the behavior of             for this final action.
                                                  amend an FMP if NMFS, in consultation
                                                                                                          any entities operating in federally
                                                  with the Council, determines that the                                                                          List of Subjects in 50 CFR Part 600
                                                                                                          managed fisheries, and thus no direct
                                                  FMP is consistent with this rule.
                                                                                                          economic effects on small entities (as                   Administrative practice and
                                                  Although the Council initiates a review
                                                                                                          described within the proposed action)                  procedure, Bycatch, Fisheries,
                                                  of SBRMs, that review should be done
                                                                                                          are expected to result from this action.               Standardized Reporting Methodology.
                                                  in coordination with NMFS; therefore
                                                                                                          Therefore, no small entities will be
                                                  NMFS added ‘‘in coordination with                       directly affected by this action, and a                  Dated: January 6, 2017.
                                                  NMFS’’ to the second and last sentences                 reduction in profits for a substantial                 Samuel D. Rauch III,
                                                  of § 600.1610(b).                                       number of small entities is not expected.              Deputy Assistant Administrator for
                                                     Minor, non-substantive grammatical                   See 81 FR 9413, February 25, 2016. No                  Regulatory Programs, National Marine
                                                  changes were also made in the final                     public comments were received                          Fisheries Service.
                                                  regulatory text to improve clarity.                     regarding this certification.                            For the reasons set out in the
                                                  IV. National Environmental Policy Act                      NMFS notes that on January 26, 2016,                preamble, NMFS amends 50 CFR part
                                                                                                          the Small Business Administration                      600 as follows:
                                                    NMFS has made a determination to                      (SBA) issued a final rule revising the
                                                  apply a Categorical Exclusion to this                   small business size standards for several              PART 600—MAGNUSON-STEVENS
                                                  action under the National                               industries, effective February 26, 2016                ACT PROVISIONS
                                                  Environmental Policy Act. This action                   (81 FR 4469). The rule increased the
                                                  qualifies for a Categorical Exclusion                   size standard for Seafood Product                      ■ 1. The authority citation for 50 CFR
                                                  because it is a regulation ‘‘of an                      Preparation and Packaging (NAICS code                  part 600 continues to read as follows:
                                                  administrative, financial, legal,                       311710) from 500 to 750 employees.                       Authority: 5 U.S.C. 561 and 16 U.S.C.
                                                  technical or procedural nature, or the                  Furthermore, on December 29, 2015,                     1801 et seq.
                                                  environmental effects of which are too                  NMFS issued a final rule establishing a                ■   2. Add subpart R to read as follows:
                                                  broad, speculative or conjectural to lend               small business size standard of $11
                                                  themselves to meaningful analysis and                   million in annual gross receipts for all               Subpart R—Standardized Bycatch
                                                  will be subject later to the NEPA                       businesses primarily engaged in the                    Reporting Methodology
                                                  process, either collectively or case-by-                commercial fishing industry (NAICS
                                                  case. . . .’’ See NOAA’s Administrative                 11411) for Regulatory Flexibility Act                  Sec.
                                                  Orders 216–6 and 216–6A. If and when,                   (RFA) compliance purposes only. See 80                 600.1600 Purpose and scope.
                                                  as a result of reviewing an FMP for                                                                            600.1605 Definitions and word usage.
                                                                                                          FR 81194, December 29, 2015. The $11                   600.1610 Establishing and reviewing
                                                  consistency with the MSA and this rule,                 million standard became effective on                        standardized bycatch reporting
                                                  a Council amends a specific FMP and/                    July 1, 2016, and is to be used in place                    methodologies in fishery management
                                                  or fishery research plans, the Council                  of the U.S. Small Business                                  plans.
                                                  and/or NMFS would prepare a NEPA                        Administration’s (SBA) current
                                                  analysis, as appropriate.                               standards of $20.5 million, $5.5 million,              § 600.1600   Purpose and scope.
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                                                                                                          and $7.5 million for the finfish (NAICS                  Section 303(a)(11) of the Magnuson-
                                                  V. Classification
                                                                                                          114111), shellfish (NAICS 114112), and                 Stevens Act requires that any fishery
                                                     Pursuant to section 301(b) of the                    other marine fishing (NAICS 114119)                    management plan (FMP) with respect to
                                                  MSA, the NMFS Assistant                                 sectors of the U.S. commercial fishing                 any fishery shall establish a
                                                  Administrator has determined that this                  industry in all NMFS rules subject to                  standardized reporting methodology to
                                                  final rule is consistent with the                       the RFA after July 1, 2016. See 80 FR                  assess the amount and type of bycatch
                                                  Magnuson-Stevens Act and other                          81194, December 29, 2015. Pursuant to                  occurring in the fishery. 16 U.S.C.
                                                  applicable law.                                         the RFA, and prior to July 1, 2016, the                1853(a)(11). The purpose of a


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                                                  6338               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  standardized reporting methodology is                     must explain how the standardized                      vary from year to year, a Council must
                                                  to collect, record, and report bycatch                    reporting methodology meets the                        also address how implementation of the
                                                  data in a fishery that, in conjunction                    purpose described in § 600.1600, based                 standardized reporting methodology
                                                  with other relevant sources of                            on an analysis of the requirements                     may be adjusted while continuing to
                                                  information, are used to assess the                       under § 600.1610(a)(2). The FMP, or                    meet the purpose described under
                                                  amount and type of bycatch occurring in                   fishery research plan authorized under                 § 600.1600.
                                                  the fishery and inform the development                    16 U.S.C. 1862, may reference analyses                    (iii) Data uncertainty. A Council must
                                                  of conservation and management                            and information in other FMPs, FMP                     address the uncertainty of the data
                                                  measures that, to the extent practicable,                 amendments, Stock Assessment and
                                                                                                                                                                   resulting from the standardized
                                                  minimize bycatch and bycatch                              Fishery Evaluation (SAFE) reports, or
                                                                                                                                                                   reporting methodology. The
                                                  mortality. This subpart sets forth                        other documents. Councils should work
                                                                                                                                                                   standardized reporting methodology
                                                  requirements for and guidance on                          together and collaborate on
                                                                                                                                                                   must be designed so that the uncertainty
                                                  establishing and reviewing a                              standardized reporting methodologies
                                                  standardized reporting methodology.                       for fisheries that operate across multiple             associated with the resulting bycatch
                                                                                                            jurisdictions, as appropriate. In addition             data can be described, quantitatively or
                                                  § 600.1605       Definitions and word usage.              to proposing regulations necessary to                  qualitatively. The Council should seek
                                                     (a) Definitions. In addition to the                    implement the standardized reporting                   to minimize uncertainty in the resulting
                                                  definitions in the Magnuson-Stevens                       methodology, a Council should also                     data, recognizing that different degrees
                                                  Act and § 600.10, standardized                            provide in its FMP, or a fishery research              of data uncertainty may be appropriate
                                                  reporting methodology means an                            plan authorized under 16 U.S.C. 1862,                  for different fisheries.
                                                  established, consistent procedure or                      guidance to NMFS on how to adjust                         (iv) Data use. A Council must address
                                                  procedures used to collect, record, and                   implementation of a standardized                       how data resulting from the
                                                  report bycatch data in a fishery, which                   reporting methodology consistent with                  standardized reporting methodology are
                                                  may vary from one fishery to another.                     the FMP. See National Standard 6                       used to assess the amount and type of
                                                  Bycatch assessment is not part of the                     guidelines, § 600.335.                                 bycatch occurring in the fishery. A
                                                  standardized reporting methodology,                          (2) Requirements for standardized                   Council must consult with its scientific
                                                  but must be considered as described in                    reporting methodology. The FMP must                    and statistical committee and/or the
                                                  § 600.1610(a)(2)(iv).                                     establish a standardized reporting                     regional National Marine Fisheries
                                                     (b) Word usage. The terms ‘‘bycatch’’                  methodology as provided under                          Service science center on reporting
                                                  and ‘‘fishery’’ are used in the same                      § 600.1610(a)(1) that meets the specific               methodology design considerations
                                                  manner as in 16 U.S.C. 1802. The terms                    purpose described in § 600.1600. Due to                such as data elements, sampling
                                                  ‘‘must’’, ‘‘should’’, ‘‘may’’, ‘‘will’’,                  the inherent diversity of fisheries,                   designs, sample sizes, and reporting
                                                  ‘‘could’’, and ‘‘can’’ are used in the same               different standardized reporting                       frequency. The Council must also
                                                  manner as in § 600.305(c). The term                       methodologies may be appropriate for                   consider the scientific methods and
                                                  ‘‘Council’’ is used in the same manner                    different fisheries. However, when                     techniques available to collect, record,
                                                  as in § 600.305(d)(10), and includes the                  establishing or reviewing a standardized               and report bycatch data that could
                                                  regional fishery management Councils                      reporting methodology, a Council must                  improve the quality of bycatch
                                                  and the Secretary of Commerce, as                         address the following:                                 estimates. Different standardized
                                                  appropriate (16 U.S.C. 1854(c) and (g)).                     (i) Information about the                           reporting methodology designs may be
                                                  § 600.1610 Establishing and reviewing                     characteristics of bycatch in the fishery.             appropriate for different fisheries.
                                                  standardized bycatch reporting                            A Council must address information
                                                                                                                                                                      (b) Review of FMPs. All FMPs must be
                                                  methodologies in fishery management                       about the characteristics of bycatch in
                                                                                                                                                                   consistent with this subpart by February
                                                  plans.                                                    the fishery, when available, including,
                                                                                                                                                                   21, 2022. Therefore, a Council, in
                                                    (a) Establishing a standardized                         but not limited to: The amount and type
                                                                                                                                                                   coordination with NMFS, must conduct
                                                  reporting methodology—(1) Fishery                         of bycatch occurring in the fishery,
                                                                                                                                                                   a review of its FMPs for consistency
                                                  management plan contents. An FMP                          which may vary based on different
                                                                                                                                                                   with this subpart. A Council does not
                                                  must identify the required procedure or                   fishing activities and operations; the
                                                                                                                                                                   need to amend an FMP if NMFS
                                                  procedures that constitute the                            importance of bycatch in estimating the
                                                                                                                                                                   determines that it is consistent with this
                                                  standardized reporting methodology for                    fishing mortality of fish stocks; and the
                                                  the fishery. The required procedures                                                                             subpart. Thereafter, Councils, in
                                                                                                            effect of bycatch on ecosystems.
                                                  may include, but are not limited to, one                     (ii) Feasibility. The implementation of             coordination with NMFS, should
                                                  or more of the following: Observer                        a standardized reporting methodology                   conduct a review of standardized
                                                  programs, electronic monitoring and                       must be feasible from cost, technical,                 reporting methodologies at least once
                                                  reporting technologies, and self-reported                 and operational perspectives. However,                 every 5 years in order to verify
                                                  mechanisms (e.g., recreational sampling,                  feasibility concerns do not exempt an                  continued compliance with the MSA
                                                  industry-reported catch and discard                       FMP from the requirement to establish                  and this subpart.
                                                  data). The FMP, or a fishery research                     a standardized reporting methodology.                  [FR Doc. 2017–00405 Filed 1–18–17; 8:45 am]
                                                  plan authorized under 16 U.S.C. 1862,                     Recognizing that costs and funding may                 BILLING CODE 3510–22–P
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Document Created: 2018-02-01 15:16:03
Document Modified: 2018-02-01 15:16:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective February 21, 2017.
ContactKaren Abrams, 301-427-8508, or by email: [email protected]
FR Citation82 FR 6317 
RIN Number0648-BF51
CFR AssociatedAdministrative Practice and Procedure; Bycatch; Fisheries and Standardized Reporting Methodology

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