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
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 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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