106. National standards.

[MSFCMA section 301]


National standard 5.

Summary:

The word "promote" is replaced with "consider" so that standard 5 reads: "Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources...."

Legislative history:

National standard 5 became one of the symbols in the conflict between the Washington factory trawlers and the Alaska-based fishermen. Small operators were seeking to disarm larger vessels that might be considered more "efficient," and thus sought to dilute the efficiency standard. Senator Gorton, on the other hand, cited a "disturbing trend toward unfairly demonizing more productive, more efficient fleets." In fact, the guidelines for standard 5 have balanced promotion of efficiency against competing factors since the 1977 guidelines were issued. No management measure has ever been mandated by standard 5, nor has one ever been rejected on the basis of standard 5. The Senate report says the standard has been used to "justify ecologically wasteful, but economically efficient practices such as roe stripping." The only legal debate over roe stripping, however, was not whether it should be allowed, but whether a Council could limit the practice. National standard 5 was not part of that debate.

National standard 8.

Summary:

This new standard requires conservation and management measures to take into account the importance of fishery resources to fishing communities (see discussion under 102). Measures are to provide for the sustained participation of such communities and, to the extent practicable, minimize adverse economic impacts on such communities. An important qualifier was added by the managers' amendment: "consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfishing stocks)."

Legislative history:

This was another stratagem in the Alaska/ Seattle conflict, joined by New Englanders who feel that Multispecies Amendment 7 is hitting their constituents too hard. The Senate report, however, said the intent was not to allocate resources to a specific fishing community or to provide preferential treatment based on residence in a fishing community. In any event, the new understanding of the meaning of "fishing communities" has reduced the impact of standard 8 as a tool against factory trawlers or large fishing corporations. NOAA objected that the mark-up version seemed to place avoidance of adverse economic effects on fishing communities above the need to end overfishing and rebuild depleted stocks. The Senate added the qualifier that conservation requirements take precedence.

Issues:

If properly prepared, existing FMPs should be in compliance with this new standard, because accompanying regulatory flexibility analyses and fishery impact statements would have addressed the effects of management measures on fishing communities. Note: This standard does not address financial assistance to fishing communities; see  116(a).

National standard 9.

Summary:

This standard requires that measures, to the extent practicable, minimize bycatch (as defined in  102) or the mortality of such bycatch. It is related to required and discretionary provisions of FMPs added by the 1996 amendments.

Legislative history:

The House's version was slightly different: "...shall, to the maximum extent practicable, minimize bycatch." The House report acknowledged that most fisheries have some level of unavoidable bycatch, but encouraged Councils to look for innovative ways to reduce bycatch and mortality of bycatch. Cong. Young explained in his floor statement that the term "to the extent practicable" had been chosen deliberately. The Councils should make "reasonable efforts," Young said, but "it is not the intent of Congress that the [C]ouncils ban a type of fishing gear or a type of fishing in order to comply with this standard. 'Practicable' requires an analysis of the cost of imposing a management action; the Congress does not intend that this provision will be used to allocate among fishing gear groups, nor to impose costs on fishermen and processors that cannot be reasonably met."

Issues:

Because this standard uses the same language that appears in section 303(a)(11), and  108(b) allows the Councils two years to amend their FMPs to comply with section 303(a), it is fair to apply the same grace period to compliance with the new national standard.

National standard 10.

Summary:

This standard requires measures, to the extent practicable, to promote the safety of human life at sea.

Legislative history:

This language started out in H.R. 39 as a required FMP provision, then became a national standard in the Senate version. It has been used by IFQ advocates who argue that derby fisheries are dangerous to the participants. The Senate report, however, specifies that the standard is not intended to give preference to one type of management system over another.

Issues:

Someone has asked whether Council members could be held liable if a fisherman is injured "due to" a management measure that doesn't meet this standard. The answer is no.
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