Magnuson-Stevens Act Provisions; National Standard Guidelines, 2785-2811 [2015-00586]
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National Oceanic and Atmospheric Administration
50 CFR Part 600
Magnuson-Stevens Act Provisions; National Standard Guidelines; Proposed
Rule
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Federal Register / Vol. 80, No. 12 / Tuesday, January 20, 2015 / Proposed Rules
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 600
[Docket No. 120416013–4641–02]
RIN 0648–BB92
Magnuson-Stevens Act Provisions;
National Standard Guidelines
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes revisions to
the guidelines for National Standards
(NS) 1, 3, and 7 of the MagnusonStevens Fishery Conservation and
Management Act (MSA) and to the
General section of the NS guidelines.
This action is necessary to improve and
clarify the guidance within the NS
guidelines. The purpose of this action is
to facilitate compliance with
requirements of the MSA to end and
prevent overfishing, rebuild overfished
stocks and achieve optimum yield (OY).
DATES: Written comments must be
received on or before June 30, 2015.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2012–0059, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to:
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20120059, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Wesley Patrick, National Marine
Fisheries Service, NOAA, Office of
Sustainable Fisheries, 1315 East-West
Highway, Room 13357, Silver Spring,
MD 20910.
• Fax: 301–713–1193; Attn: Wesley
Patrick.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
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SUMMARY:
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accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
file formats only. Copies of supporting
documents can be obtained from Wesley
Patrick (see FOR FURTHER INFORMATION
CONTACT).
FOR FURTHER INFORMATION CONTACT:
Wesley Patrick, 301–427–8563
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Purpose and Overview of Proposed
Revisions
II. Background
III. Goals and Objectives of Fishery
Management Plans
IV. Stocks That Require Conservation and
Management
V. Data Limited Stocks
VI. Stock Complexes and Indicator Stocks
VII. Aggregate Maximum Sustainable Yield
(MSY) Estimates
VIII. Developing a Definition for ‘‘Depleted’’
IX. Developing an Alternative Definition of
Overfishing To Include a Multi-Year
Approach
X. Revising Optimum Yield (OY) Guidance
XI. Acceptable Biological Catch and Annual
Catch Limit Guidance
XII. Accountability Measures
XIII. Establishing Annual Catch Limit (ACL)
and Accountability Measure (AM)
Mechanisms
XIV. Adding Flexibility in Rebuilding
XV. Recreational Fisheries
XVI. Republishing Codified Text in its
Entirety
XVII. References Cited
XVIII. Classification
I. Purpose and Overview of Proposed
Revisions
The National Marine Fisheries Service
(NMFS) fulfills the requirements of
section 301(b) of the Magnuson-Stevens
Fishery Conservation and Management
Act (MSA)—‘‘The Secretary shall
establish advisory guidelines (which
shall not have the force and effect of
law), based on the national standards, to
assist in the development of fishery
management plans’’—with its National
Standard (NS) guidelines that appear at
50 CFR 600.305 through 600.355. NMFS
is proposing revisions to the General
section of the NS guidelines and the
guidelines for NS1, NS3, and NS7. Since
2007, fisheries management within the
U.S. has experienced many changes, in
particular the development and
implementation of annual catch limits
(ACLs) and accountability measures
(AMs) under all fishery management
plans to end and prevent overfishing.
Based on this experience, NMFS
believes the NS guidelines can be
improved to enhance the utility of the
guidelines for managers and the public.
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The objective of these proposed
revisions is to improve and streamline
the NS1 guidelines, address concerns
raised during the implementation of
ACLs and AMs, and provide flexibility
within current statutory limits to
address fishery management issues. The
purpose of this action is to facilitate
compliance with requirements of the
MSA, 16 U.S.C. 1801 et seq., to end and
prevent overfishing, rebuild overfished
stocks, and achieve optimum yield
(OY). The proposed revisions would not
establish new, specific requirements or
require Fishery Management Councils
(Councils) to revise their Fishery
Management Plans (FMPs) to comply
with the MSA. Rather, the proposal
offers additional clarity and potential
alternatives to highlight the current
flexibility in meeting the MSA’s current
mandates.
Proposed revisions to the General
section of the NS guidelines and the
guidelines for NS1, NS3, and NS7
include the following: (1) Add a
recommendation that Councils reassess
the objectives of their fisheries on a
regular basis; (2) consolidate and clarify
guidance on identifying whether stocks
require conservation and management;
(3) provide additional flexibility in
managing data limited stocks; (4) revise
the guidance on stock complexes to
encourage the use of indicator stocks;
(5) describe how aggregate maximum
sustainable yield (MSY) estimates can
be used; (6) propose a definition for a
depleted stock; (7) provide increased
stability in fisheries by providing
guidance on the use of multi-year
overfishing determinations; (8) revise
the guidance on optimum yield (OY) to
improve clarity and better describe the
role of OY under the Annual Catch
Limit (ACL) framework; (9) clarify the
guidance on acceptable biological catch
(ABC) control rules, describe how the
ABC control rules can allow for phasein adjustments to ABC, and allow for
carry-over of all or some of an unused
portion of the ACL; (10) revise the
guidance on accountability measures
(AMs) to improve clarity; (11) clarify the
guidance on establishing ACL and AM
mechanisms in FMPs; and (12) provide
flexibility in rebuilding stocks. Further
explanations of the major revisions that
are being proposed, and the rationale for
those revisions, are provided below.
II. Background
Section 301(a) of the MagnusonStevens Fishery Conservation and
Management Act (MSA) contains 10
national standards for fishery
conservation and management. Any
FMP prepared under the MSA, and any
regulation promulgated pursuant to the
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MSA to implement any such plan, must
be consistent with these national
standards. National Standard 1 (NS1) of
the MSA states that conservation and
management measures shall prevent
overfishing while achieving, on a
continuing basis, the OY from each
fishery for the U.S. fishing industry.
National Standard 3 (NS3) of the MSA
states that, 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. National Standard 7 (NS7)
of the MSA states that conservation and
management measures shall, where
practicable, minimize costs and avoid
unnecessary duplication.
Guidelines for NS1, NS3, and NS7
were first published in 1977 (42 FR
34450, July 5, 1977) and are codified in
50 CFR 600.310, 600.320, and 600.340,
respectively. NMFS last revised the NS1
guidelines on January 16, 2009, to
provide guidance for the
implementation of requirements enacted
by the Magnuson-Stevens Fishery
Conservation and Management
Reauthorization Act of 2006 for annual
catch limits (ACLs) and accountability
measures (AMs) to end and prevent
overfishing (74 FR 3178). The NS3 and
NS7 guidelines were last revised in
1998 (63 FR 24212, May 1, 1998).
From 2007 to 2012, the 46 Federal
FMPs have been amended to implement
ACLs and AMs to end and prevent
overfishing. This has been a
transformative process for Federal
fisheries; before the ACL requirement,
some U.S. fisheries were managed under
a total allowable catch system, but the
majority were managed through effort
controls (e.g., days at sea, closures) or
without explicit accountability.
Due to a number of concerns raised
during the implementation of ACLs and
AMs, NMFS published an Advance
Notice of Proposed Rulemaking (ANPR)
on May 3, 2012, (77 FR 26238) to solicit
public comments on potential
adjustments to the NS1 guidelines. The
comment period on the ANPR was
extended once (77 FR 39459, July 3,
2012), and then reopened (77 FR 58086,
Sept. 19, 2012), and ended on October
12, 2012. In March 2013, NMFS
published a report that summarizes the
comments received on the ANPR; the
report is available online at: https://
www.nmfs.noaa.gov/sfa/laws_policies/
national_standards/ns1_revisions.html.
In addition to the ANPR, issues
related to the national standard
guidelines were discussed at other
public forums. In May 2013, NMFS
sponsored the Managing Our Nation’s
Fisheries 3 conference in Washington,
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DC. The conference focused on
identifying ways to advance
sustainability within U.S. fisheries. The
discussions at the conference addressed
MSA reauthorization issues, as well as
adjustments to current management
(including potential revisions to the
NS1 guidelines) that do not require
legislation to implement. More
information about the conference is
available here: https://
www.managingfisheries.org/. In
September 2013, in response to a 2010
request from Congress, the National
Research Council released its report
titled ‘‘Evaluating the Effectiveness of
Fish Stock Rebuilding Plans in the
United States.’’ This included an
evaluation of success in stock
rebuilding, an investigation of the
effects of uncertainty, and identification
of means to better account for social,
economic and ecosystem factors in the
rebuilding plans. The purpose of the
report was to help NOAA and the
regional Councils better construct
efficient and effective rebuilding plans.
More information about the report is
available here: https://
www.nmfs.noaa.gov/sfa/laws_policies/
national_standards/rebuilding.htm.
In December 2013, the Marine
Fisheries Advisory Committee
Recreational Fishing Group presented
NMFS with a white paper on
recreational fisheries perspectives. The
paper included recommendations for
possible changes to the MSA, as well as
possible changes to fishing regulations
and policy. The full report can be found
here: https://www.nmfs.noaa.gov/sfa/
management/recreational/2014_
summit/pre-summit_resources.html. In
February 2014, the Commission on
Saltwater Recreational Fisheries
Management published its report, A
Vision for Managing America’s
Saltwater Recreational Fisheries,
providing recommendations for
management measures to address the
needs of the recreational community
(Morris and Deal 2014). The report can
be found here: https://asafishing.org/
uploads/Marine_Visioning_Report_
January_2014.pdf. Lastly, NMFS
provided updates on the NS1 guidelines
at Council Coordination Committee
(CCC) meetings in 2013 and 2014. The
CCC consists of the chairs, vice chairs,
and executive directors from each
regional Council, or other staff, as
appropriate. This committee meets
twice each year to discuss issues
relevant to all Councils, including
issues related to the implementation of
the MSA. More information about CCC
meetings can be found here: https://
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www.nmfs.noaa.gov/sfa/management/
councils/ccc/ccc.htm.
III. Goals and Objectives of Fishery
Management Plans
The General section of the NS
guidelines, 50 CFR 600.305, describes
the purpose of the NS guidelines and
the importance of identifying fishery
management objectives within a FMP,
and defines words that are used
throughout the NS guidelines. This
section was last revised in 1998 (63 FR
24211, May 1, 1998). More recently,
stakeholders, Councils, and NMFS have
recognized the importance of reevaluating the management objectives of
FMPs on a regular basis, because the
needs of the fishery may change over
time. Examples of re-evaluations
include Council discussions over
allocation of catch among sectors of the
fishery, and visioning projects that
several Councils have initiated to
identify long-term objectives for its
fisheries. Measureable goals and
objectives are an integral part of the
adaptive fishery management system
used in the United States, where such
metrics are used to measure the
performance of the management actions
taken by the Councils (see, e.g., Punt
2006; Hilborn 2007; Levin et al. 2009).
To highlight the importance of having
well-defined management objectives,
and as part of NOAA’s effort to carry out
the President’s directive in Executive
Order 13563 to conduct retrospective
analysis of existing significant
regulations, NMFS proposes to add a
statement to § 600.305(b) to recommend
that Councils should reassess the
objectives of their fisheries on a regular
basis to reflect the changing needs of the
fishery over time (see § 600.305(b)(2) of
this proposed action). Similarly, NMFS
proposes to recommend that Councils
consider the management objectives of
their FMPs and their management
framework to determine the relevant
factors to determine OY (see section X
of the preamble and
§ 600.310(e)(3)(iii)(B) of this proposed
action). NMFS chose not to proscribe a
set time period for ‘‘a regular basis’’ in
order to provide the Councils the
flexibility to determine this time frame
themselves; although no time frame is
proscribed, Councils should provide
notice to the public of their expected
schedule for review. Given the scope
and complexity of such a task, NMFS
does not expect Councils to reassess
their FMP objectives every few years;
rather, some longer time frame which
staggers the review of each FMP may be
more appropriate. For example, limited
access privilege programs (a type of
catch share program) must be formally
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reviewed 5 years after implementation
and at least every 7 years thereafter. See
16 U.S.C. 1853a(c)(1)(G).
IV. Stocks That Require Conservation
and Management
The MSA provides for Federal fishery
management authority in the U.S.
exclusive economic zone (EEZ), 16
U.S.C. 1801(b)(1), and provides that
each Council shall prepare an FMP for
each fishery under its authority that
requires conservation and management.
Id. section 1852(h)(1). In recent years,
NMFS has received multiple legal
challenges regarding which stocks
should or should not be managed under
an MSA FMP. NMFS does not believe
that MSA section 302(h)(1) on its face
directs preparation of an FMP for all
fisheries in the EEZ and other MSA
provisions support this view. See, e.g.,
id. section 1856(a)(3)(A) (authorizing a
State to regulate a fishing vessel outside
the boundaries of the State in certain
circumstances, including when there is
no Federal FMP or other applicable
Federal regulations), and id. section
1881(a)(1)–(2) (authorizing information
collection for purpose of ‘‘determining
whether a fishery is in need of
management.’’). Legislative history for
section 302(h)(1) affirms that ‘‘Councils
are not required to prepare FMPs for
every fishery within their geographical
areas of authority.’’ See House Rep. No.
97–549, on insertion of language ‘‘in
need of conservation and management’’
as part of the 1982 amendment of MSA
reprinted in 1983 U.S.C.C.A.N. at 4339,
(May 17, 1982).
The question is how a Council should
determine whether a fishery requires or
is in need of conservation and
management. The MSA and current NS
guidelines indirectly touch upon this
issue in several places, but NMFS
believes that consolidating,
streamlining, and clarifying guidance in
the General section of the NS guidelines
would be beneficial. NMFS believes that
it is appropriate that guidance on which
stocks need conservation and
management should be contained
separately from the 10 National
Standard guidelines as it would be the
basis for implementation of all the
National Standards.
MSA section 302(h)(1) and other
related provisions refer to a ‘‘fishery’’
and ‘‘conservation and management.’’ A
‘‘fishery’’ is ‘‘(A) 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 (B) any fishing for
such stocks.’’ 16 U.S.C. 1802(13). The
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first part of the definition is nearly
identical to the MSA’s definition for
‘‘stock of fish’’—‘‘species, subspecies,
geographical grouping, or other category
of fish capable of management as a
unit.’’ Id. section 1802(42). In other
words, a ‘‘fishery’’ includes stocks of
fish, as well as the people, vessels, gear,
and other infrastructure that is designed
to capture and process the stocks of fish.
‘‘Conservation and management’’
includes ‘‘all of the rules, regulations,
conditions, methods, and other
measures (A) which are required to
rebuild, restore, or maintain, and which
are useful in rebuilding, restoring, or
maintaining, any fishery resource and
the marine environment; and (B) which
are designed to assure that— (i) a supply
of food and other products may be
taken, and that recreational benefits may
be obtained, on a continuing basis; (ii)
irreversible or long-term adverse effects
on fishery resources and the marine
environment are avoided; and (iii) there
will be a multiplicity of options
available with respect to future uses of
these resources.’’ Id. section 1802(5).
When developing an FMP, a Council
must, among other things, describe the
fishery (e.g. species of fish involved) in
the FMP. Id. section 1853(a)(2). An FMP
must also be consistent with the 10
National Standards, id. section 1851(a),
and contain conservation and
management measures that are
‘‘necessary and appropriate for the
conservation and management of the
fishery to prevent overfishing and
rebuild overfished stocks, and to
protect, restore, and promote the longterm health and stability of the fishery.’’
Id. section 1853(a)(1)(A).
The addition of MSA section
303(a)(15), which requires that all FMPs
establish mechanisms for specifying
ACLs and AMs, led to the most recent
revision of the NS1 guidelines in 2009
(74 FR 3178, Jan. 16, 2009). The 2009
NS1 guidelines interpreted this
requirement to mean that stocks and
stocks complexes ‘‘in the fishery’’ need
ACLs and AMs. The 2009 NS1
guidelines explained that as a default,
all stocks in an FMP are considered ‘‘in
the fishery’’ unless the Council
identifies them as an ecosystem
component (EC) species. FMPs are
required to provide the mandatory
measures described in MSA section
303(a), including ACLs and AMs, for
only those ‘‘stocks in the fishery.’’
Although NMFS’ interpretation has
been that ‘‘stocks in the fishery’’ are in
need of ‘‘conservation and
management,’’ the NS1 guidelines do
not specifically address the
determination of whether a stock is in
need of conservation and management.
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The NS3 Guidelines address
structuring appropriate management
units for stocks and stock complexes
and instruct that the 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. 50 CFR
600.320(d)(1). The NS3 guidelines also
state that a management unit may
contain stocks for which data is not
available to specify MSY and OY or to
establish management measures, so that
data on those stocks may be collected.
The NS7 guidelines state that MSA
requires Councils to prepare FMPs only
for overfished fisheries and for other
fisheries where regulation would serve
some useful purpose and where the
present or future benefits of regulation
would justify the costs. 50 CFR
600.340(b)(2). The NS7 Guidelines
provide seven criteria for determining
whether a fishery needs management
through regulations implementing an
FMP. Id.
In this action, NMFS proposes a new
section specifically regarding ‘‘stocks
that require conservation and
management’’ (see proposed
§ 600.305(c)). Any stocks that are
predominately caught in Federal waters
and are overfished or subject to
overfishing, or likely to become
overfished or subject to overfishing,
would be considered to require
conservation and management and
therefore must be included in an FMP
(see proposed § 600.305(c)(1)). See 16
U.S.C.1853(a)(1)(A) (requiring that
FMPs contain conservation and
management measures that are
necessary ‘‘to prevent overfishing and
rebuild overfished stocks’’). Proposed
sections 600.305(c)(1)(i)–(x) set forth
factors 1 to be considered in all other
situations when determining a
conservation and management need:
(1) The stock is an important
component of the marine environment.
(2) The stock is caught by the fishery.
(3) Whether an FMP can improve or
maintain the condition of the stocks.
(4) The stock is a target of a fishery.
(5) The stock is important to
commercial, recreational, or subsistence
users.
(6) The fishery is important to the
Nation and to the regional economy.
(7) The need to resolve competing
interests and conflicts among user
1 The list of factors are based on concepts from
the current NS1 guidelines (see § 600.305(c)(2)(ii)
and (iv) of this proposed action), the NS7 guidelines
(see § 600.305(c)(2)(iii), (vi)–(x) of this proposed
action), the MSA definition of conservation and
management (see § 600.305(c)(2)(i) of this proposed
action), and other provisions of the MSA (see
§ 600.305(c)(2)(v) of this proposed action).
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groups and whether an FMP can further
that resolution.
(8) The economic condition of a
fishery and whether an FMP can
produce more efficient utilization.
(9) The needs of a developing fishery,
and whether an FMP can foster orderly
growth.
(10) The extent to which the fishery
could be or is already adequately
managed by states, by state/Federal
programs, by Federal regulations
pursuant to other FMPs or international
commissions, or by industry selfregulation, consistent with the policies
and standards of the Magnuson-Stevens
Act.
When considering adding a new stock
to an FMP or keeping an existing stock
within an FMP, Councils should
prepare a thorough analysis of the
factors, and any additional
considerations that may be relevant to
the particular stock. No single factor is
dispositive, but Councils should
consider weighting the factors as
follows. Factors (i–iii) should be
considered first, as they address
maintaining a fishery resource and the
marine environment. See section
1802(5)(A). These factors weigh in favor
of including a stock in an FMP.
Councils should next consider factors
(iv–ix), which set forth key economic,
social, and other reasons contained
within the MSA for an FMP action. See
16 U.S.C. 1802(5)(B). Regardless of
whether any of the first nine factors
indicates a conservation and
management need, a Council should
consider factor (x) before deciding to
include or maintain a stock in an FMP.
In many circumstances, adequate
management of a fishery by states, state/
Federal programs, or another Federal
FMP would weigh heavily against a
Federal FMP action. See, e.g., 16 U.S.C.
1851(a)(7); 1856(a)(3). In evaluating the
above criteria, a Council should
consider the specific circumstances of a
fishery, based on the best scientific
information available; to determine
whether there are biological, economic,
social and/or operational concerns that
can be addressed by Federal
management.
For stocks that do not require
conservation and management,
consistent with the current NS1
guidelines at 50 CFR 600.310(d)(5)(iii),
proposed § 600.305(c)(3) would allow
councils to continue to include such
stocks in FMPs as ecosystem component
(EC) species to collect data, minimize
bycatch and bycatch mortality
consistent with NS9, protect their
associated role in the ecosystem, or for
other reasons. See also 16 U.S.C.
1853(b)(12) (providing Councils the
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discretion to ‘‘include management
measures in the plan to conserve target
and non-target species and habitats,
considering the variety of ecological
factors affecting fishery populations’’).
Consistent with the current NS1
guidelines at 50 CFR 600.310(d)(7),
proposed § 600.305(c)(4) would
continue to provide that, where stocks
may be identified in more than one
FMP, Councils should choose which
FMP will be the primary FMP in which
reference points for the stock are
established. In other FMPs, the stock
may be identified as ‘‘other managed
stocks’’ and management measures that
are consistent with the objectives of the
primary FMP can be established.
Proposed § 600.305(c)(5) provides that
Councils should, periodically, review
their FMPs and the best scientific
information available and determine if
stocks are appropriately identified and
if the FMP is meeting the conservation
and management needs of their
fisheries.
Because proposed § 600.305
consolidates text from several NS
guidelines provisions, NMFS would
make the following edits for consistency
or to eliminate duplication:
• Move the definition of ‘‘target
stock’’ from the current NS1 guidelines
to the general definitions at proposed
§ 600.305(d)(11), and remove the
definition of ‘‘stock and stock
complexes’’ at § 600.305(c)(12).
• Remove the description of and use
of the terms ‘‘in the fishery’’ and remove
the criteria for ‘‘ecosystem component
species’’ in the NS1 guidelines (see
§ 600.310 of this proposed action).
• Consistent with proposed
§§ 600.305(c)(1)–(5), revise the NS1
guidelines at proposed § 600.310(d)(1)
to state that stocks in need of
conservation and management must
have ACLs, other reference points, and
accountability measures; but that other
stocks identified within an FMP (i.e.,
ecosystem component species and
stocks primarily managed under another
FMP) do not require these measures.
• Revise the NS3 guidelines to
specify that stocks in the ‘‘management
unit’’ are considered to require
conservation and management (see
§ 600.320(d) of this proposed action).
• Remove current NS3 guidelines text
at § 600.320(d)(1)(i)–(vi) which provides
some cursory examples of ways to
organize a management unit because
proposed § 600.305(c)(1) now sets forth
the factors to consider when deciding
whether stocks require conservation and
management.
• Revise current NS3 guidelines text
at § 600.320(d)(2), which state that a
management unit may contain, in
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addition to regulated species, stocks of
fish which there is not enough
information available to specify MSY
and OY, or to establish management
measures, so that data for one of these
species may be collected under the
FMP. The new guidelines would state
that a management unit may contain
stocks of fish for which there is not
enough information available to specify
MSY and OY or their proxies. Even if
data are not available to specify MSY
and OY or their proxies, that is not a
reason to determine that a stock does
not require conservation and
management.
• Remove § 600.340(b) of the current
NS7 guidelines as the majority of that
guidance has been captured in the
description of factors to consider under
proposed § 600.305(c).
NMFS believes that the proposed
revisions to § 600.305 and the NS1, NS3,
and NS7 guidelines will not require
Councils to revise their existing FMPs.
NMFS is aware that Councils have
identified stocks in their FMPs as
‘‘management unit species’’ or ‘‘stocks
in the fishery.’’ Councils can still
continue to use those terms and NMFS
presumes that the stocks that have been
identified as ‘‘management unit
species’’ or ‘‘stocks in the fishery’’ are
stocks that are in need of conservation
and management and are required to
have ACLs, other reference points, and
AMs as described in the proposed
revisions to the NS1 guidelines (see
§ 600.310(d)(1) of this proposed action)
unless the two statutory exceptions
apply (see § 600.310(h) of this proposed
action).
V. Data Limited Stocks
Establishing ACLs for data-limited
stocks can be challenging. In datalimited situations there remains a high
degree of uncertainty in determining the
appropriate catch level for the fishery,
leading some to believe that ACLs for
data-limited stocks are overly
restrictive, and others to argue that they
should be reduced further to limit the
chance of overfishing. NMFS
continually strives to advance the
science that informs fisheries
management. Over time, scientific
information and stock assessment
methods have improved, and NMFS has
increased the number of stocks with
stock assessments. However, NMFS
acknowledges that the status of many
stocks is unknown. Since passage of the
ACL requirements, scientists have
developed tools to evaluate and manage
data-limited stocks. Some include catch
based methods, depletion based
methods, or abundance based methods
(Carruthers et al. 2014).
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MSA section 303(a)(3) requires that
FMPs assess and specify MSY. NMFS
acknowledges that it may not be
possible, based on the best scientific
information available, to estimate MSY
(as defined in the NS1 guidelines at
§ 600.310(e)(1)(i)) or MSY based proxies
for some stocks. In such instances,
proposed § 600.310(e)(2)(ii) provides
that when data are not available to
specify status determination criteria
(SDCs) based on MSY or MSY proxies,
alternative types of SDCs that promote
sustainability of the stock or stock
complex can be used. NMFS proposes
adding to the examples provided for
circumstances that may not fit the
standard approaches for establishing
reference points pursuant to the NS1
guidelines to address situations where
data are not available to either set
reference points based on MSY or MSY
proxies, or manage to reference points
based on MSY or MSY proxies (see
§ 600.310(h)(2) of this proposed action).
However, note that § 600.310(h)(2) does
not provide an exemption from any
statutory requirements, including the
requirement to establish ACLs; rather, it
provides flexibility in the application of
the NS1 guidelines. NMFS notes that
existing § 600.310(h)(3) describes that
one of the limited circumstances that
may not fit the standard approaches to
specification of reference points is
harvests from aquaculture operations
(e.g., Gulf of Mexico Aquaculture FMP).
VI. Stock Complexes and Indicator
Stocks
Stocks that require conservation and
management can be grouped into stocks
complexes and managed within a FMP.
Stocks may be grouped into complexes
for various reasons. For example, stock
complexes may be useful tools when
stocks in a multispecies fishery cannot
be targeted independent of one another,
when there is insufficient data to
measure a stock’s status relative to its
SDC, or when it is not feasible for
fishermen to distinguish individual
stocks among their catch. In 2009, the
NS1 guidelines defined stock complexes
to mean a group of stocks that are
sufficiently similar in geographic
distribution, life history, and
vulnerabilities to the fishery such that
the impact of management actions on
the stocks is similar. 50 CFR
600.310(d)(8). However, this definition
potentially limits the applicability of
stock complexes in many of the
circumstances in which they may be
most useful, such as situations where
stocks in a multispecies fishery cannot
be targeted independent of one another,
or when it is not feasible for fishermen
to distinguish individual stocks among
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their catch. Under these circumstances,
stock complexes may not have similar
life histories and vulnerabilities. To
resolve this issue, NMFS is proposing to
define stock complex more generally as
a tool to manage groups of stocks within
a FMP (see § 600.310(d)(2) of this
proposed action) with consideration of
geographic distribution, life history
characteristics, and vulnerabilities to
fishing pressure such that the impact of
management actions on the stocks is
similar (see § 600.310(d)(2)(i) of this
proposed action).
Stock complexes are often created
when there is not enough information to
set reference points at the individual
stock level. Therefore, the status of
individual stocks within a complex is
generally unknown. The current NS1
guidelines note that stock complexes
can be comprised of many different
combinations of indicator stocks and
other stocks. In practice, few stock
complexes are managed with indicator
stocks. One reason for the dearth of
indicator stocks is that, once a stock
within a complex is assessed, it is often
taken out of the complex and managed
separately, rather than serving as the
indicator for the complex. The current
NS1 guidelines, while endorsing the use
of indicator stocks, may be
inadvertently contributing to the
removal of assessed stocks from
complexes by stating that MSY should
be estimated on a stock-by-stock basis,
whenever possible. §§ 600.310(d)(8) and
(e)(1)(iii). To encourage the use of
indicator stocks in stock complexes,
NMFS is proposing to delete the aforementioned text in §§ 600.310(d)(8) and
(e)(1)(iii). The proposed NS1 guidelines
state that, where practicable, stock
complexes should be comprised of one
or more indicator stocks, each of which
has SDC and ACLs (see
§ 600.310(d)(2)(ii)(B) of the proposed
rule). These revisions are intended to
reduce the practice of removing a stock
from a complex once it has been
assessed, so that the assessed stock can
be used as an indicator for the complex,
if it is practicable to do so. The revisions
also help alleviate some of the
discontinuities in how data-limited
stock complexes are managed compared
to data-rich multi-species fisheries. In
mixed-stock fisheries, biological
reference points are often specified for
several of the stocks within the fishery
and management measures are
developed to prevent overfishing of
each stock. Management measures for
stocks that have lower productivities
will restrict fishing effort for the overall
mixed-stock fishery to some extent.
However, in stock complex management
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the status of stocks within a complex is
generally unknown and complexes often
lack indicator species. Therefore, it
possible that stocks that have lower
productivities in the complex may
experience occasional overfishing, since
the status of these stocks are unknown.
Encouraging the use of indicator species
will likely reduce the probability that
stocks within the complex could
experience overfishing or become
overfished. This is because the use of an
indicator enhances the ability to discern
the status of the complex, especially if
the complex is of similar geographic
distribution, life history, and
vulnerabilities to the fishery such that
the impact of management actions on
the stocks is similar.
VII. Aggregate Maximum Sustainable
Yield (MSY) Estimates
MSA section 303(a)(3) requires that
each FMP include an estimate of MSY
and OY for the fishery. The current NS1
guidelines do not provide guidance on
describing MSY at the fishery level, but
encourage specifying MSY at the stock
level, while allowing it to be set for
stock complexes. The current NS1
guidelines state that OY can be specified
for a stock, stock complex, or fishery. In
practice, Councils typically set MSY
and other reference points for
individual stocks when the data is
available to do so. In data-limited
situations, when it is not possible to
specify single species reference points,
stocks are often grouped into
complexes.
A growing body of literature on
ecosystem-based fisheries management
has emphasized the importance of
accounting for species interactions and
environmental variability within
fisheries management. Councils are
increasingly working toward developing
ecosystem-based fisheries management
programs. These ecosystem-based
considerations can be incorporated in a
number of ways, including single
species stock assessments and models
that estimate MSY for an aggregate
group of stocks. The phrase ‘‘aggregate
group of stocks’’ refers to a group of
stocks, such as: a stock complex; all of
the stocks caught within a fishery; or
some sub-component of a fishery. To
further facilitate the Councils’ use of
ecosystem approaches to management,
the proposed revisions to the NS1
guidelines introduce the concept of
aggregate MSY estimates and describe
how the concept can be used as an
optional tool in fisheries management.
In this action, NMFS would revise
§ 600.310(e)(1) to state that MSY may be
specified for the fishery as a whole.
Proposed § 600.310(e)(1)(iv) further
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provides that estimating aggregate level
MSY for a group of stocks can be done
using models that account for multispecies interactions, composite
properties for a group of similar species,
common biomass (energy) flow and
production patterns, or other relevant
factors. In addition, NMFS proposes
adding a paragraph to the OY section of
the NS1 guidelines to note that
aggregate level MSY estimates can be
used as a basis for specifying OY for a
fishery (see § 600.310(e)(3)(iv)(C) of this
proposed action). When aggregate level
MSY is estimated, single stock MSY
estimates can be used to inform single
stock management. For example, OY
could be specified for a fishery, while
other reference points are specified for
individual stocks in order to prevent
overfishing on each stock within the
fishery. Lastly, NMFS proposes to
encourage the incorporation of
environmental information into stock
assessments by noting that
environmental information (e.g.,
salinity, temperature), in addition to
ecological information (e.g., predatorprey interactions), should be taken into
account, to the extent practicable, when
assessing stocks and specifying MSY
(see § 600.310(e)(1)(v)(C) of this
proposed action).
VIII. Developing a Definition for
‘‘Depleted’’
The MSA defines the terms overfished
and overfishing together as ‘‘a rate or
level of fishing mortality that
jeopardizes the capacity of a fishery to
produce the MSY on a continuing
basis.’’ 16 U.S.C. 1802(34). The NS1
guidelines define overfishing and
overfished separately, where the term
‘‘overfishing’’ refers to the fishing
mortality rate or total catch, and the
term ‘‘overfished’’ refers to a biomass
condition. 50 CFR 600.310(e)(2)(i)(B)
and (E). The NS1 overfished definition,
unlike the statutory definition, gives no
consideration to the ‘‘rate or level of
fishing mortality’’ when determining if
a stock is overfished. Rather the criteria
to determine an overfished status, called
the minimum stock size threshold
(MSST), is defined as the level of
biomass below which the stock or stock
complex is considered to be overfished.
Therefore, a stock may be determined to
be overfished when overfishing has not
occurred. Stakeholders have noted that
the term ‘‘overfished’’ implies that
fishing is the sole cause for a decline in
stock biomass, when factors such as
habitat and other environmental
conditions may bear greater
responsibility for the stock’s biomass
decline. Similarly, the 2013 NRC report
recognized that the rate at which a fish
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stock rebuilds depends on ecological
and other environmental conditions
such as climate change, in addition to
the fishing-induced mortality. However,
separating out the impacts of
environmental change from the impacts
of fishing on a stock is a difficult task.
To address these concerns, NMFS
proposes adding the term ‘‘depleted’’ to
the NS1 guidelines to describe those
stocks whose biomass has declined as a
result of habitat and other
environmental conditions, as opposed
to fishing pressure. The proposed
revision to the guidelines state that an
overfished stock or stock complex is
considered depleted when it has not
experienced overfishing at any point
over a period of two generation times of
the stock and its biomass has declined
below MSST, or when a rebuilding
stock or stock complex has reached its
targeted time to rebuild and the stock’s
biomass has shown no significant signs
of growth despite being fished at or
below catch levels that are consistent
with the rebuilding plan throughout that
period (see § 600.310(e)(2)(i)(F) of this
proposed action). The time periods
chosen (i.e., two generation times and
targeted time to rebuild) were chosen
because: (1) They will scale with the
productivity of the stock rather than
being a fixed time period that is applied
to all stocks, and (2) they are of a
sufficient time period to allow fisheries
scientists to easily separate out the
impacts of environmental change from
the impacts of fishing on a stock, given
the requirements of not overfishing or
exceeding catch levels that are
consistent with the rebuilding plan
during those time periods. Rebuilding
plans would still be required for
depleted stocks and Councils could
consider additional measures for these
stocks such as a re-evaluation of their
SDCs to determine if they are
representative of the current
environmental conditions, restoration of
habitat, identification of research
priorities, or partnerships with other
agencies to address non-fishing related
impacts (see § 600.310(j)(6) of this
proposed action).
Additionally, NMFS proposes minor
revisions to the definitions of
‘‘overfished’’ and ‘‘MSST’’ to improve
clarity and reduce redundancy, and to
clearly show that the MSST is a
reference point used to determine if a
stock is overfished (see
§ 600.310(e)(2)(i)(G) of this proposed
action). These revisions together will
not result in any change to how the
terms ‘overfished’ and ‘MSST’ are used;
the revisions are proposed only to
improve clarity in the definitions.
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IX. Developing an Alternative
Definition of Overfishing To Include a
Multi-Year Approach
The MSA defines ‘‘overfishing’’ as a
‘‘rate or level of fishing mortality that
jeopardizes the capacity of a fishery to
produce the MSY on a continuing
basis.’’ 16 U.S.C. 1802(34). The MSA
does not specify a timeframe for
determining overfishing, but the current
NS1 guidelines state that overfishing
should be determined by comparing
annual rates of fishing mortality (F) to
the maximum fishing mortality
threshold (MFMT) or annual catch to
the overfishing limit (OFL). 50 CFR
600.310(e)(2)(i)(B)–(C). In either case,
under the current guidelines,
overfishing determinations are made for
the most recent year for which there is
information. For example, if the F-based
approach is used, the last available year
of data in a stock assessment will be
used to determine whether a stock will
be declared subject to overfishing.
NMFS first adopted an annual
approach to overfishing in its 1998
revision to the NS Guidelines. See 63 FR
24212, May 1, 1998. In those revisions,
NMFS required Councils to establish
status determination criteria for
determining overfishing; in particular,
NMFS required the establishment of a
MFMT. Fishing in excess of the MFMT
for a period of 1 or more years would
constitute overfishing (63 FR 24230).
Prior to these revisions, NMFS had
deliberately chosen not to ‘‘mandate a
particular form for all specific
overfishing definitions,’’ leaving it to
the discretion of the Councils to decide
how to determine if overfishing was
occurring. See 54 FR 30826, 30829
(response to comment 7), July 24, 1989.
NMFS based the decision to take a more
prescriptive approach in 1998 on the
legislative changes made by Congress in
the 1996 amendments to the MSA,
which NMFS viewed as changing the
statute’s emphasis on and timeframe for
addressing overfishing. See 63 FR 24215
(response to comment 2), May 1, 1998.
When Congress amended the MSA in
2007 to add new ACL and AM
requirements, NMFS revised its
requirements for SDCs, providing the
option to Councils to either compare
annual fishing mortality rates against
the MFMT or the annual level of catch
against the OFL. 50 CFR
600.310(e)(2)(i)(B)–(C); see also 74 FR
3192 (response to comment 27), Jan. 16,
2009, (describing relative advantages of
each methodology).
These current methods for
determining overfishing do not consider
the extent to which F exceeded the
MFMT or catch exceeded the OFL. For
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many stocks, a small amount of fishing
effort above MFMT or catch in excess of
OFL in a single year may not jeopardize
the stocks’ ability to produce MSY over
the long term, though for other stocks a
small overage may be significant.
Another concern with the current
approach of comparing F to MFMT, is
that the terminal year’s estimate of F in
a stock assessment is often more
uncertain than the estimates of F in
prior years (NRC 1998). In some cases,
subsequent assessments have revised
the previous assessment’s terminal
year’s estimate of F to a much greater
degree than the prior years’ estimates of
F.
To address this issue, NMFS is
proposing to give Councils the option to
use a method for determining the
overfishing status of a stock that is
based on a multi-year approach (that
may not exceed 3 years) that examines
whether a stock’s ability to produce
MSY over the long term has been
jeopardized (see § 600.310(e)(2)(ii)(A) of
the proposed action). The proposed
revisions to the NS1 guidelines would
still allow Councils to have overfishing
SDCs that are based on single year
comparisons of F to MFMT or catch to
OFL. A Council may develop
overfishing SDCs that use a multi-year
approach, so long as it provides a
comprehensive analysis based on the
best scientific information available that
supports that the approach will not
jeopardize the capacity of the fishery to
produce the MSY on a continuing basis.
The rationale for choosing 3 years as a
maximum, versus some shorter or
longer time period, was based on the
fact that many stocks (57 percent) are
assessed every 1, 2, or 3 years. Thus it
is NMFS’s assumption that using a 2- or
3-year time period will be sufficiently
long as to capture the recent impacts of
fishing on a stock and help smooth out
retrospective bias in our understanding
of stock status. Additionally, using a 2or 3-year time period will dampen the
effects of outliers within the data and
help provide a more consistent
determination of when the capacity of
the stock to produce MSY on a
continuing basis has been jeopardized.
A single year’s data point may not
reflect the overall status of the stock.
Were Councils to use a longer time
period, there could be a longer delay
between exceeding limit reference
points and a subsequent management
response, which could jeopardize the
stocks ability to produce MSY on a
continuing basis.
Although the current approach to
single year overfishing determinations
has been in place since 1998 and has the
benefit of simplicity in calculation and
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use, NMFS believes that multi-year
overfishing SDCs can, in appropriate
cases, be used effectively to protect the
stock while providing stability to the
fishery. Multi-year overfishing SDCs, if
used, would be based on the best
scientific information available and
would not impact the timeliness of
Council and agency response to any
overfishing. ACL and AM mechanisms
are in place for all fisheries, and they
would continue to constrain fishing
mortality on an annual basis. The multiyear approach would only be used for
overfishing determinations, where the
focus appropriately is on the impact of
fishing over a set period of time and the
capacity of the stock to produce MSY.
X. Revising Optimum Yield (OY)
Guidance
The MSA defines OY as an ‘‘amount
of fish which: (A) Will provide the
greatest overall benefit to the Nation,
particularly with respect to food
production and recreational
opportunities, and taking into account
the protection of marine ecosystems; (B)
is prescribed as such on the basis of the
maximum sustainable yield from the
fishery, as reduced by any relevant
economic, social, or ecological factor;
and (C) in the case of an overfished
fishery, provides for rebuilding to a
level consistent with producing the
maximum sustainable yield in such
fishery.’’ 16 U.S.C. 1802(33). Setting and
describing OY continues to be a
challenge for fishery managers. OY is
specified in several different ways by
Councils (e.g., the catch corresponding
to 75 percent of Fmsy, all catch harvested
pursuant to the FMP, OY is less than or
equal to ABC, etc.), and the economic,
social, and ecological factors required to
be considered in the specification of OY
are often not explicitly described by
Councils. The proposed revisions to the
NS1 guidelines (see § 600.305(e)(3) of
this proposed action) are intended to
provide greater clarity and guidance to
the Councils in how to determine and
specify OY. Once specified, OY may be
achieved by different management
programs.2
Prior to the requirement for ACLs, the
concept of treating OY as a target was
prominent in fisheries management. The
Sustainable Fisheries Act, passed in
1996, revised the definition of OY to its
current definition—notably these
revisions required that OY can only be
reduced from MSY upon consideration
of any relevant economic, social or
ecological factors. When NMFS revised
2 The proposed rule does not revise the regulatory
text at § 600.310(e)(3)(i)(B) (describing achievement
of OY) except for minor grammatical corrections.
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the NS1 guidelines in 1998 (63 FR
24212, May 1, 1998), OY was described
as a target reference point which should
be set safely below limit reference
points, and preference was placed on
specifying OY in terms of numbers or
weight of fish. Councils were
encouraged to specify OY control rules,
and Restrepo et al. (1998) recommended
a default OY control rule of fishing at
75 percent of FMSY. After passage of the
Magnuson-Stevens Fishery
Conservation and Management
Reauthorization Act of 2006, NMFS
revised the NS1 guidelines to provide
guidance on implementing ACLs (74 FR
3178, Jan. 16, 2009). With the
requirement for setting OFL, ABC, and
ACLs in fisheries, the concept of
specifying OY as an annual target
became less relevant. However, OY
remains a key concept and requirement
of the MSA, and NMFS believes that
further revisions to the NS1 guidelines
may assist Councils in better specifying
and integrating OY into their
management regimes.
NMFS received many comments in
response to the ANPR requesting that
NMFS provide further guidance to the
Councils on addressing the economic,
social, and ecological factors used in
determining OY. NMFS believes that
one impediment to Councils addressing
these factors is the perception that the
Councils must quantify their analysis of
these factors. Such an analysis may not
be possible in all cases, so NMFS
proposes revising § 600.310(e)(3)(iv)(A)
to provide that where it is not possible
to specify OY quantitatively, Councils
may instead provide a qualitative
description of OY that explains how OY
accounts for the economic, ecological,
and social factors that are important to
the fishery.
In the comments received on the NS1
ANPR, several stakeholders asked for
clarification of the relationship of OY to
the ACL framework—a relationship that
is not discussed in the current
guidelines. In response to these
comments, proposed § 600.310(f)(4)(iv)
of the NS1 guidelines includes a new
explanation of the relationship between
OY and the ACL framework. The dual
goals of NS1 are to prevent overfishing
and achieve OY on a continuing basis.
The ABC is an upper limit on catch and
is designed to prevent overfishing. ACLs
(or ACTs if used) can be reduced from
ABC based upon OY considerations for
the fishery. Additionally, economic,
social, or ecological trade-offs may be
evaluated when determining the risk
policy for an ABC control rule.
While OY is a long-term average
amount of desired yield, there is, for
each year, an amount of fish that is
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consistent with achieving the long-term
OY. A Council can choose to express
OY on an annual basis, in which case
the FMP or FMP amendment should
indicate that the OY is an ‘‘annual OY.’’
An annual OY cannot exceed the ACL.
If there is a desire to obtain a yield that
is higher than the ACL, then a Council
needs to determine if a change in the
management regime (e.g., improved data
collection to reduce scientific and
management uncertainty, minimized
bycatch in mixed-stock fisheries, etc.) is
needed in order to increase yield.
NMFS proposes to remove current
§ 600.310(e)(3)(v)(C) (which states that
all catch must be counted against OY,
including that resulting from bycatch,
scientific research, and all fishing
activities) and instead incorporate the
concept within § 600.310(e)(2)(ii)(C) of
the proposed action by stating that
where practicable, all sources of
mortality should be accounted for in the
evaluation of stock status. The current
language implies that catch accounting
occurs at the level of OY, while in
practice it typically occurs at the level
of the ACL. However, the concept of
accounting for all sources of mortality is
critical to fisheries management;
therefore NMFS proposes to retain the
concept but incorporate it within the
guidance on SDCs. NMFS uses the term
‘‘where practicable’’ because it
recognizes that data on scientific
research catch may not always be
available. To the extent that data is
available on scientific research catch, it
should be accounted for within the
system of reference points. For example,
it could be accounted for within stock
assessments, as a set-aside within the
ACL framework, or by other methods.
NMFS is also proposing minor
revisions and consolidations of
redundant guidance. To remove
repetition and improve clarity, NMFS
proposes merging the guidance on
determining the greatest benefits to the
Nation and the considerations for
economic, ecological, and social (EES)
factors (currently contained in
§ 600.310(e)(3)(ii)–(iv)) together into a
paragraph on assessing OY (see
§ 600.310(e)(3)(iii)(A) and (B) of the
proposed action). Both are important for
assessing OY. Additionally, NMFS
proposes minor revisions to the
guidance on the total allowable level of
foreign fishing and domestic annual
harvest at § 600.310(e)(3)(v)(D) and (H)
to improve clarity and consolidate it
with the rest of the guidance on foreign
fishing (see § 600.310(e)(3)(v)(A) and (B)
of this proposed action). NMFS also
proposes removing § 600.310(e)(3)(v)(G)
(stating that there should be a
mechanism in the FMP for periodic
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reassessment of OY), and instead
explain in proposed § 600.310(e)(3)(iii)
that, consistent with MSA section
302(h)(5), the assessment and
specification of OY should be reviewed
on a continuing basis, so that it is
responsive to the changing
circumstances in the fishery. Lastly,
NMFS proposes that for internationally
managed stocks, fishing levels that are
agreed upon by the U.S. at the
international level are consistent with
achieving OY (see § 600.310(e)(3)(iv)(D)
of this proposed action).
XI. Acceptable Biological Catch and
Annual Catch Limit Guidance
In general, NMFS proposes revisions
to the guidance regarding ABC in
section § 600.310(f) to minimize
redundancy and improve clarity. For
example, the ABC control rule
(§ 600.310(f)(4)) was moved forward in
the guidelines (see § 600.310(f)(2) of this
proposed action) so that the guidance on
ABC control rules is provided before the
guidance on specifying ABC, and
statements about providing a proxy for
the uncertainty in estimate of MSY
(§ 600.310(e)(1)(v)) was moved to the
ABC control rule section of the
guidelines to consolidate guidance on
accounting for uncertainty (see
§ 600.310(f)(2)(ii) of this proposed
action). More substantial revisions to
the ABC guidance are listed below.
Definitions
NMFS proposes to modify the
definition of the annual catch limit
(ACL) to improve clarity. The ACL is
currently defined as the level of annual
catch of a stock or stock complex that
serves as a basis for invoking AMs. ACL
cannot exceed the ABC, but may be
divided into sector-ACLs. 50 CFR
600.310(f)(2)(iv). This definition, while
accurate, failed to include reference to
the fact that an ACL is a limit on the
total annual catch for a stock or stock
complex. NMFS proposes clarifying that
an ACL is a limit on the total annual
catch for a stock or stock complex,
which cannot exceed the ABC, that
serves as the basis for invoking AMs. An
ACL may be divided into sector-ACLs
(see § 600.310(f)(1)(iii) of this proposed
action).
NMFS also proposes adding three
new definitions for the following terms:
control rule, management uncertainty,
and scientific uncertainty (see
§ 600.310(f)(1)(iv)–(vi) of this proposed
action). These terms are currently used
throughout the guidelines, but were
never separately defined. To reduce
redundancy, NMFS proposes deleting
the ABC control rule and ACT control
rule definitions, since these definitions
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were very similar to the definitions of
ABC and ACT, and there is a more
general definition of control rule
provided. Lastly, NMFS is proposing to
move the definition of ‘‘ACT’’ to
§ 600.310 (g)(4) of this proposed rule,
because ACTs are a type of AM, and
thus better suited in the AMs section of
the guidelines.
Acceptable Biological Catch (ABC) Risk
Policy
Section 302(g)(1)(B) of the MSA states
that the Scientific and Statistical
Committee (SSC) for each Council shall
provide its Council with ongoing
scientific advice for fishery management
decisions, including recommendations
for ABC. 16 U.S.C. 1852(g)(1)(B). In
2009, the NS1 guidelines described ABC
as the level of a stock or stock complex’s
annual catch that accounts for the
scientific uncertainty in the estimate of
the overfishing limit and any other
scientific uncertainty, and should be
specified based on the ABC control rule.
When these provisions began to be
implemented in 2009, Councils were
uncertain as to whether or not the SSC
could specify the ABC without input
from the Council on its risk preferences.
At that time, NMFS referred Councils
and their SSCs to the response to
comments section of the 2009 final
guidelines, which noted that the ‘‘SSC
must recommend an ABC to the Council
after the Council advises the SSC what
would be the acceptable probability that
a catch equal to the ABC would result
in overfishing. This risk policy is part of
the required ABC control rule.’’ 74 FR
at 3191–92 (response to comment 42),
Jan. 16, 2009. NMFS also addressed this
issue within its NS1 guidelines
frequently asked questions document,
which was published online (https://
www.nmfs.noaa.gov/sfa/laws_policies/
national_standards/ns1_
resources.html).
When the NS1 provisions began to be
implemented in 2009, Councils were
interested in using alternative methods
to specify ABC, which were not based
on ‘‘the probability that an actual catch
equal to the stock’s ABC would result in
overfishing’’ even though such an
approach could be calculated. In
particular, in their comment to the NS1
ANPR, the North Pacific Council
expressed interest in using a decision
theoretic approach, which is similar in
concept but is not the same as the
probabilistic approach (Thompson
2011). Thompson (2011) suggests that
the use of a decision theoretic approach
may actually be more effective at
accounting for scientific uncertainty
than the recommended probabilistic
approach.
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To address the above issues, NMFS is
proposing revisions to existing guidance
on ABC control rules to state that the
Council’s risk policy could be based, on
an acceptable probability (at least 50
percent) that catch equal to the stock’s
ABC will not result in overfishing, but
other appropriate methods can be used.
When determining the risk policy,
Councils could consider the economic,
social, and ecological trade-offs between
being more or less risk averse. (See
§ 600.310(f)(2)(i) of this proposed
action.) References to the Council’s risk
policy were also included in the
definition of ABC (see
§ 600.310(f)(1)(ii)).
Phase-In ABC Control Rules
In practice, the management system
described in the NS1 guidelines has led
managers to adjust ABCs and ACLs in
lock-step with assessment results
through the use of control rules. A
manager’s understanding about the
status of a stock may change from one
assessment to another, but some of that
change could be due to scientific
uncertainty. Scientific uncertainty,
particularly regarding the data from the
most recent years within the
assessment, can produce perceived
fluctuations in stock abundance that do
not match the actual, but unknown,
status of the stock (NRC 1998). In the
time period between stock assessments,
Councils often hold ACLs constant
because, absent stock forecasts,
information is lacking on which to
justify changes to the ACL. The result is
that an ACL could be left unchanged for
several years when there is no
assessment update, but upon
completion of a new assessment,
reference points could change
dramatically (Methot 2014). This type of
dramatic change could be the result of
a changed understanding of the stock or
due to a change in the level of scientific
uncertainty; it may be extremely
difficult to parse the cause of such
changes.
Making large reductions in catch
limits to prevent overfishing may cause
negative short-term impacts on fishery
participants, while large increases in
catch limits due to a favorable
assessment result may have negative
short-term impacts by flooding markets
and reducing profitability. Patrick et al.
(2013) has also shown that management
uncertainty (i.e., the inability of
managers to control catch) increases
when quotas vary substantially (i.e., >20
percent) from year to year. The ability
to make ACL adjustments that provide
more stability to fishing participants, yet
do not jeopardize the capacity of the
stock or stock complex to produce MSY
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on a continuing basis, would be useful
to Councils.
NMFS proposes revising the NS1
guidelines to allow Councils to develop
an ABC control rule that would phase
in changes to the ABC over a period of
time not to exceed 3 years, so long as
overfishing is prevented (see § 600.310
(f)(2)(ii)(A) of this action). The rationale
for choosing 3 years is similar to that
described in Section IX of this
preamble. For example, choosing a
shorter time frame may not be that
helpful in stabilizing catches, while a
longer time frame that spans multiple
stock assessments does not seem logical
or transparent.
Phase-in approaches to management
are currently being used successfully
elsewhere in the world. For example,
the International Pacific Halibut
Commission (IPHC) currently adjusts its
quotas according to a ‘‘slow up/full
down’’ policy. Under IPHC policy, 1/3
of the indicated annual increases are
taken and 100 percent of decreases are
taken (Hare and Clark 2008, Hare 2011).
Similarly, multi-annual plans for some
European Union marine fisheries limit
annual change in catch quota to 15
percent (Marchal et al. 2009). When
fishing effort needs to be reduced in the
fishery, using a phase-in approach will
likely result in the use of a less risk
averse ABC control rule; whereas, when
fishing effort can be increased in the
fishery, a phase-in approach will likely
result in a more risk averse ABC control
rule. For example, if a 15 percent
reduction is needed to set the ABC at
the Council’s preferred level of risk (i.e.,
using the Council’s regular ABC control
rule), using the phase-in control rule, a
Council could incrementally reduce the
ABC by 5 percent each year over a
period of 3 years, and still prevent
overfishing. Alternatively if a 15 percent
increase is allowed, using the phase-in
control rule a Council could
incrementally increase the ABC by 5
percent each year over a period of 3
years. To ensure that phase-in ABC
control rules do not lead to overfishing,
NMFS also proposes that Councils must
provide a comprehensive analysis of the
control rules and articulate within an
FMP or FMP amendment when a phasein ABC control rule can and cannot be
used and demonstrate how the control
rule prevents overfishing (see § 600.310
(f)(2)(ii) of this action).
Carry-Over ABC Control Rules
The term carry-over is often used in
the context of catch share programs,
where unused allocation from one year
can be carried over to the next.
Historically, carry-over provisions have
allowed fishermen to carry over a
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portion of the quota they had available
at the end of the year. Carry-over
provisions can reduce the likelihood
that quotas are exceeded by minimizing
incentives to catch every last pound.
Similarly, carry-over provisions can
relieve pressure on fishermen to fish in
potentially unsafe conditions to ensure
full utilization of quota. The amount of
carry-over historically allowed has been
relatively small compared to the total
ACL, and could well be offset, in a
typical year, with under-harvest by
other fishermen.
Some Councils have expressed
interest in carrying over significant
levels of catch that could result in the
previously specified ACL and in some
cases the ABC being exceeded. The NS1
guidelines currently do not provide any
guidance regarding carry-over. In
Conservation Law Foundation v.
Pritzker, the U.S. District Court for the
District of Columbia found that
Framework 50 of the Northeast
Multispecies FMP violated the MSA by
allowing sectors to carry over unused
catch in an amount that would exceed
the SSC’s recommendation of ABC for
several stocks. The court held that MSA
section 302(h)(6) requires that carryover
plus ACLs cannot exceed a stock’s
specified ABC. Consistent with this
court decision, NMFS proposes revising
the NS1 guidelines at proposed
§ 600.310(f)(2)(ii)(B) to state that an ABC
control rule may include provisions for
carry-over of some of the unused
portion of the ACL from one year to
increase the ABC for the next year,
based on increased stock abundance
resulting from the fishery harvesting
less than the full ACL. The resulting
ABC recommended by the SSC must
prevent overfishing and consider
scientific uncertainty consistent with
the Council’s risk policy. In cases where
an ACL has been reduced from the ABC,
carry-over provisions may not require
the ABC to be re-specified if the ACL
can be adjusted upward so that it is
equal to or below the existing ABC. Like
phase-in control rules, to ensure that
carry-over ABC control rules do not lead
to overfishing, NMFS proposes that
Councils must provide a comprehensive
analysis and articulate within an FMP
or FMP amendment when a carry-over
ABC control rule can and cannot be
used and demonstrate how the control
rule prevents overfishing (see
§ 600.310(f)(2)(ii) of this proposed
action).
XII. Accountability Measures
NMFS proposes minor revisions to
consolidate and clarify the guidance on
accountability measures (see
§ 600.310(g) of this proposed action).
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NMFS proposes moving the guidance on
ACT and ACT control rules from current
paragraph (f) into the section of the
guidelines that provides guidance on
accountability measures (see
§ 600.310(g)(4) of this proposed action),
as ACTs and ACT control rules are types
of accountability measures. NMFS is
also proposing to simplify the guidance
on ACT control rules, as they are an
optional tool that managers can use.
Additionally, NMFS is moving the
description of management uncertainty
out of the description of the ACT
control rule and other sections of the
guidelines (§ 600.310(f)(1) and (f)(6)(i))
into a definition of management
uncertainty (see § 600.310(f)(1)(v) of this
proposed action). Consistent with the
current NS1 guidelines, some Councils
have chosen to account for management
uncertainty when setting ACLs. NMFS
acknowledges and encourages this
practice by adding a sentence in
proposed § 600.310(f)(4) stating that if
ACT is not used, management
uncertainty should be accounted for in
the ACL.
Additionally, NMFS proposes moving
the guidance on AMs that is currently
contained in § 600.310(h)(1) into
paragraphs (f) and (g) of the NS1
guidelines. Specifically, NMFS proposes
adding ‘‘if sector-ACLs are used, sectorAMs should also be specified’’ to
§ 600.310(f)(4)(ii) of this proposed
action. This concept is currently in
§ 600.310(h)(1)(iv) and was moved into
the discussion of sector-ACLs to
improve clarity. NMFS also proposes to
add ‘‘the FMP should identify what
sources of data will be used to
implement AMs (e.g., inseason data,
annual catch compared to the ACL, or
multi-year averaging approach)’’ into
the introductory paragraph on AMs (see
§ 600.310(g)(1) of this proposed action).
This concept is currently in
§ 600.310(h)(1)(iii) and was moved into
the discussion on AMs to consolidate
the guidance on AMs.
NMFS also proposes to consolidate
the guidance regarding the ACL
performance standard from current
§§ 600.310(g)(3) and (g)(4) into one
section (see § 600.310(g)(7) of this
proposed action). However, the
guidance regarding the performance
standard remains the same; if catch
exceeds the ACL for a given stock or
stock complex more than once in the
last four years, the system of ACLs and
AMs should be reevaluated, and
modified if necessary to improve its
performance and effectiveness.
NMFS also proposes to clarify in the
guidance for AMs when ACL is
exceeded that the type of AM chosen by
a Council will likely vary depending on
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the sector of the fishery, status of the
stock, the degree of the overage,
recruitment patterns of the stock, or
other pertinent information (see
§ 600.310(g)(3) of this proposed action).
For example, some stocks have highly
variable recruitment and when
environmental conditions are favorable,
the catches may exceed the ACL
because the abundance of the stock is
higher than anticipated. When deciding
on the appropriate AM, Councils could
consider if higher than expected
recruitment played a role in catches
exceeding the ACL. Another example of
how the type of AM may vary is that a
Council may choose to use a more
stringent AM as the biomass of the stock
declines.
Lastly, within the guidance on AMs
for when the ACL is exceeded, NMFS
proposes that, if an ACL is set equal to
zero and the AM for the fishery is a
closure that prohibits fishing for a stock,
additional AMs are not required if (1)
only small amounts of catch or bycatch
occur, and (2) that catch or bycatch is
unlikely to result in overfishing (see
§ 600.310(g)(3) of this proposed action).
Under these circumstances, NMFS
believes that a closure that prohibits
fishing for a stock is an adequate AM for
a fishery, and in some cases, it may be
the only option available for a Council.
XIII. Establishing Annual Catch Limit
(ACL) and Accountability Measure
(AM) Mechanisms
NMFS is proposing minor revisions to
reduce redundancy and improve clarity
within § 600.310(h). NMFS proposes to
remove the guidance on stock
complexes and indicator stocks within
current paragraph (h) because it is
redundant; similar guidance is
contained in § 600.310(d)(2)(ii) of the
proposed action.
NMFS proposes to remove current
§§ 600.310(h)(1)(i) and (h)(1)(ii), because
they are redundant with the guidance in
§§ 600.310(f)(4)(i) and (f)(4)(ii),
respectively, of this proposed action. As
described above in preamble section XII,
NMFS proposes to remove the guidance
on AMs in current §§ 600.310(h)(1)(iii)
and (iv), and consolidate it into
§§ 600.310(g)(1) and (f)(4)(ii),
respectively, of this proposed action to
improve clarity.
The MSA provides a statutory
exception to the requirements for ACLs
and AMs for ‘‘a fishery for species that
have a life cycle of approximately 1 year
unless the Secretary has determined the
fishery is subject to overfishing of that
species.’’ 16 U.S.C. 1853. Section
600.310(h)(2) of the current NS1
guidelines further explains that the life
cycle exception applies to ‘‘a stock for
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2795
which the average length of time it takes
for an individual to produce a
reproductively active offspring is
approximately 1 year and that
individual has only one breeding season
in its lifetime.’’ NMFS believes that the
current guidance is confusing and that
the requirement to only have one
breeding season in a lifetime is overly
restrictive. Some short lived species
have multiple breeding cycles in a
lifetime. NMFS proposes to revise this
exception to apply to ‘‘a stock for which
the average age of spawners in the
population is approximately 1 year or
less’’ (see § 600.310(h)(1)(i) of the
proposed action). NMFS believes that
this is a more scientifically correct
description of a species that has a life
cycle of approximately 1 year.
Lastly, as described above in
preamble section V, NMFS proposes
amending the ‘‘Flexibility in application
of NS1 guidelines’’ provision of the
guidelines by adding two additional
examples of circumstances that may not
fit the standard approaches to
specification of reference points as those
described in the NS1 guidelines (see
§ 600.310(h)(2) of this proposed action).
XIV. Adding Flexibility in Rebuilding
The topic of rebuilding plans has been
discussed extensively in a number of
public forums. NMFS received several
comments in response to the NS1 ANPR
stating that the 10-year rebuilding
requirement is arbitrary and expressing
a desire for more flexibility in meeting
the statutory rebuilding requirements,
while other commenters supported the
use of the 10-year rebuilding
requirement. Similar comments were
provided at the Managing Our Nation’s
Fisheries III conference held in
Washington, DC, in 2013. The National
Research Council also published a
report on U.S. rebuilding plans in 2013
(NRC 2013), which provided several
findings and recommendations on
improving rebuilding guidance. Below
is a summary of the proposed revisions
to the NS1 guidelines related to
providing flexibility in developing
effective rebuilding plans.
Calculating Tmax
When the biomass of a stock has
declined below a level that jeopardizes
the capacity of the stock to produce
MSY on a continuing basis, the stock is
considered overfished. Section 304(e)(4)
of the MSA requires Councils to specify
a time period for rebuilding overfished
stocks within 10 years, except in cases
where the biology of the stock, other
environmental conditions, or
management measures under an
international agreement in which the
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United States participates dictate
otherwise. 16 U.S.C. 1854(e)(4).
Currently, the NS1 guidelines provide
guidance on determining the minimum
(Tmin), maximum (Tmax), and target
(Ttarget) time to rebuild a stock to a level
that supports MSY (Bmsy). Tmin is
defined as the amount of time the stock
or stock complex is expected to take to
rebuild to Bmsy in the absence of any
fishing mortality. If Tmin for the stock or
stock complex is 10 years or less, then
Tmax for that stock is 10 years.
Otherwise, Tmax is calculated as Tmin
plus the length of time associated with
one generation time for that stock or
stock complex. ‘‘Generation time’’ is
defined in the proposed NS1 guidelines
at § 600.310(j)(3)(i)(B)(2)(i) as the
average length of time between when an
individual is born and the birth of its
offspring.
In the past, Councils have had
difficulties calculating Tmax (i.e., Tmin +
1 generation time), because it requires
life history information on the natural
mortality, age at maturity, fecundity,
and maximum age of the stock
(Restrepo, et al. 1998). As a result,
several Councils have had to rely on
proxies of generation time, which can
sometimes lead to either overly
conservative or exaggerated estimates of
Tmax. To address the data requirement
issues of calculating generation time,
NMFS is proposing to add two
additional ways of calculating Tmax (see
§ 600.310(j)(3)(i)(B) of the proposed
rule). Thus, Councils will have three
options for calculating Tmax: (1) Tmin
plus one generation time; (2) the amount
of time the stock is expected to take to
rebuild to its MSY biomass level if
fished at 75 percent of MFMT; and (3)
Tmin multiplied by two. These
alternative methods of calculating Tmax
rely on different life history parameters,
and provide similar timelines for
rebuilding when compared to Tmin plus
one generation time. The 75 percent of
MFMT approach is potentially
advantageous in that MFMT is highly
correlated with the productivity of a
stock, meaning there is a reduced
probability of calculating less
conservative or exaggerated estimates of
Tmax. Whereas, Tmin multiple by two, is
the most simplistic method of
calculating Tmax, and it is has been
applied elsewhere in the world. For
example, the New Zealand’s Ministry of
Primary Industries uses this method to
calculate Tmax for their overfished
stocks. When selecting a method for
determining Tmax, a Council must
provide a rationale for its decision based
on the best scientific information
available.
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NMFS does not expect that drastically
different estimates of Tmax will result
from one option to another. Rather,
NMFS expects the method selected will
largely depend on the best scientific
information available for calculating
Tmax. It is also important to note, that an
overfished stock is expected to have a
Ttarget that is less than Tmax, which
rebuilds the stock in as short a time as
possible (see § 600.310(j)(3)(i)(C) of this
proposed rule).
Adequate Progress and Extending
Rebuilding Timelines
MSA section 304(e)(7) requires the
Secretary to review rebuilding plans to
ensure that adequate progress toward
ending overfishing and rebuilding
affected fish stocks is being made. 16
U.S.C. 1854(e)(7). The current NS1
guidelines do not provide any guidance
on this provision, and NMFS received
several comments in response to the
ANPR requesting additional guidance
on this provision. NMFS proposes
adding guidance to clarify that the
review of rebuilding progress could
include the review of recent stock
assessments, comparisons of catches to
the ACL, or other appropriate
performance measures. NMFS also
proposes that the Secretary may find
that adequate progress in rebuilding is
not being made if: Frebuild or the ACL
associated with Frebuild are being
exceeded and AMs are not effective at
correcting for the overages; or when the
rebuilding expectations of the stock or
stock complex have significantly
changed due to new and unexpected
information about the status of the stock
(see § 600.310(f)(3)(iv) of this proposed
action).
NMFS also proposes clarifying that,
while a stock or stock complex is
rebuilding, revising rebuilding
timeframes (i.e., Ttarget and Tmax) or
Frebuild is not necessary, unless the
Secretary finds that adequate progress is
not being made (see § 600.310(f)(3)(v) of
this proposed action). As highlighted in
the NRC (2013) report on rebuilding, the
primary objective of a rebuilding plan
should be to maintain fishing mortality
at or below Frebuild. By doing so,
managers can avoid issues with
updating timelines that are based on
biomass milestones, which are subject
to uncertainty (see § 600.310(j)(3)(i)(A))
and changing environmental conditions
that are outside the control of fishery
managers.
Emergency Actions and Interim
Measures
The NS1 guidelines provide guidance
on emergency actions and interim
measures to reduce overfishing that can
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be taken under sections 304(e)(6) and
305(c) of the MSA. NMFS is proposing
to delete §§ 600.310(j)(4)(i) and (ii)
because: (1) The guidance simply
repeats the language in the MSA; (2)
NMFS has separately published a policy
on implementing the provisions of MSA
305(c) (NMFS Policy Directive 01–101–
07, Policy Guidelines on the Use of
Emergency Rules, 62 FR 44421 (Aug. 21,
1997)); and (3) NS1 guidance should
only provide guidance on the 304(e)(6)
provisions of the MSA, because it
pertains to rebuilding stocks. NMFS
proposes to clarify in § 600.310(j)(4) of
this proposed action that the Secretary’s
ability to implement interim measures
to reduce, but not necessarily end,
overfishing should rarely be used and
require that the following three criteria
be met before the interim measure can
be used: (1) The interim measure is
needed to address an unanticipated and
significantly changed understanding of
the stock’s status; (2) ending overfishing
immediately is expected to result in
severe social and/or economic impacts
to a fishery; and (3) the interim
measures will at least ensure that the
stock will increase its current biomass
through the duration of the interim
measure.
Discontinuing a Rebuilding Plan Based
on New Information
Due to scientific uncertainty in the
biomass estimate of fish stocks,
occasionally a stock is identified as
overfished, but is later determined to
have never been overfished. The recent
NRC (2013) study on rebuilding
estimated that approximately 30 percent
of rebuilding stocks are later discovered
to have never been overfished. In the
past, it has been NMFS’ policy that once
a rebuilding plan has been
implemented, the rebuilding plan
cannot be discontinued until the stock
has rebuilt to Bmsy, regardless of new
information about the status of the stock
when it was originally declared
overfished. This policy was in place
because a future stock assessment could
find that the stock actually had been
overfished, and rebuilding to Bmsy is
consistent with the MSA’s objective that
fisheries produce MSY on a continuing
basis.
However, NMFS realizes that
rebuilding stocks are sometimes
restricted to relatively low Frebuilds,
which can have negative impacts on
fishery participants due to the reduced
landings of the overfished stock, as well
as reduced catch of other stocks in
mixed-stock fisheries. Therefore, NMFS
is proposing to allow a Council to
discontinue a rebuilding plan before it
reaches Bmsy so long as the stock meets
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the following criteria: (1) The Secretary
determines that the stock was not
overfished in the year that the MSA
section 304(e)(3) overfished
determination was based on; and (2) the
biomass of the stock is not currently
below the MSST (see § 600.310(j)(5) of
this proposed action). This proposed
revision is based on the rationale that
the terminal year of a stock assessment
(i.e., the most recent year) is often the
most uncertain, while subsequent
reviews of that same year by stock
assessments conducted several years
later are often more accurate (NRC
1998). Thus, if a subsequent assessment
shows that the stock was not overfished
in the year that the overfished
determination was based on, it is more
likely that the stock was never
overfished. However, in such a
situation, a Council may always opt to
continue following the rebuilding plan
to further the conservation and
management needs of a stock or stock
complex that remains below Bmsy.
rljohnson on DSK3VPTVN1PROD with PROPOSALS2
Other Revisions
In § 600.310(j)(2), NMFS proposes
deleting text that referred to the 2010
and 2011 implementation dates for
ACLs and AMs, given that these
deadlines have passed and all 46 FMPs
have implemented ACLs and AMs (see
§§ 600.310(j)(2)(i) and (ii) of this
proposed action). NMFS also proposes
adding guidance to clarify that, when a
Council is notified that a stock or stock
complex is undergoing overfishing, it
should work with its SSC to ensure that
the ABC is set appropriately to end
overfishing. Councils should evaluate
the cause of the overfishing, address the
issue that caused overfishing, and
reevaluate their ACLs and AM to make
sure they are adequate (see
§ 600.310(j)(2)(i) of this proposed
action).
XV. Recreational Fisheries
Since the reauthorization of the MSA
in 2007, many recreational stakeholders
have commented that the ACL
requirements of the MSA do not
recognize the different ways in which
recreational and commercial fisheries
are managed and prosecuted. The
recreational community has provided
comments through a variety of forums,
such as: the 2012 NS1 ANPR; NMFS’s
Marine Fisheries Advisory Committee’s
White Paper on Recommendations for
MSA by the Recreational Working
Group; NMFS’s Recreational Regional
Roundtable discussions of 2013;
Managing Our Nations Fisheries III
(2013); The Commission on Saltwater
Recreational Fisheries Management, A
Vision for Managing America’s
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Saltwater Recreational Fisheries (Morris
and Deal 2014); and NMFS Recreational
Saltwater Fishing Summits in 2010 and
2014. In general, the recreational
community has expressed an interest in
increased fishing opportunities; having
the opportunity to catch larger fish;
flexibility in setting ACLs for
recreational fisheries; managing for
greater abundance; and, managing
forage fish more conservatively to
improve the resiliency of recreationally
important fish stocks. While not
highlighted in a separate or specific
section, these issues are addressed in
various sections of this proposed rule.
Recreational Fishing Objectives
NMFS recognizes that recreational
and commercial sectors of a fishery will
sometimes have different objectives for
a fishery. Existing guidelines note that
it is the Councils’ responsibility to
integrate the objectives of these various
sectors or fishery participants into their
fishery management plans, and
prioritize among these objectives when
they are in conflict (see §§ 600.305(b)
and 600.310(e)(3)). However, in practice
the process of identifying and
prioritizing the objectives of a fishery
are rarely reexamined once defined;
there are some exceptions like the MidAtlantic and South-Atlantic Councils’
recent visioning processes (for more
information on these projects, see:
https://safmc.net/resource-library/
council-visioning-project and https://
www.mafmc.org/strategic-plan/).
Because the needs and objectives of a
fishery change over time, NMFS is
proposing that Councils reassess the
objectives of the fishery on a regular
basis (see § 600.305(b)(2) of this
proposed action). Recreational
fishermen should work with their
Councils to advance their sector specific
objectives, such as increasing the
opportunity to catch larger fish.
Flexibility in Setting ACLs and AMs
The MSA requires ACLs and AMs for
all managed fisheries; however, the NS1
guidelines do not require Councils to
specify or implement AMs in the same
manner among the sectors of a fishery.
For example, in several cases, Councils
have chosen to monitor the commercial
catch using daily or weekly reporting
mechanisms and use in-season
management measures to close the
commercial sector when it is expected
to reach its ACL. In contrast, in some
recreational fisheries, catch can only be
monitored in 2-month increments, and
ACL overages can only be addressed
through post-season AMs. So as not to
be constrained to one type of AM, the
Mid-Atlantic and South Atlantic
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Councils have developed conditional
AMs that implement different AMs
depending on the status of the stock
and/or degree of ACL overage. These
conditional AMs provide flexibility in
managing sectors of the fishery
differently. NMFS encourages the use of
conditional AMs and proposes
clarifying that the type of AM chosen by
a Council will likely vary depending on
the sector of the fishery, the status of the
stock, degree of overage, recruitment
patterns of the stock, and other
pertinent information (see
§ 600.310(g)(3) of this proposed action).
NMFS also recognizes that an
impediment to implementing ACLs for
many recreationally important fish
stocks is the lack of life history
information to calculate MSY (or a
standard proxy), as well as the lack of
timely information on the catch levels of
the stock. As noted above in section V
of the preamble, NMFS is proposing to
revise the NS1 guidelines to make clear
that, when data are not available to
specify MSY or MSY proxies,
alternative types of SDCs that promote
sustainability of the stock or stock
complex can be used (see
§ 600.310(e)(2)(ii) of this proposed
action). For example, SDCs could be
based on recent average catch, fish
densities derived from visual census
surveys, length/weight frequencies or
other methods. NMFS also proposes to
allow alternative approaches to
satisfying the NS1 requirements for
stocks for which data are not available
to either set MSY or MSY based
reference points or manage to MSY or
MSY based reference points (see
§ 600.310(h)(2) of this proposed action).
NMFS understands that many of the
fish stocks captured in recreational
fisheries are not targeted, but retained
because they are valued by the
fishermen. In the current NS1
guidelines, these ‘‘often retained’’ nontarget stocks are considered to be ‘‘in the
fishery’’ and are therefore required to
have ACLs. Many stakeholders
including recreational fishery
participants have noted that, while
these non-target stocks are often
retained, many of these stocks may not
be in need of conservation and
management. As noted above in section
IV of the preamble, NMFS is revising its
guidance on stocks in the fishery and
ecosystem component species to
provide further guidance to Councils in
determining whether stocks require
conservation and management based on
several factors. Therefore, some nontarget fish stocks may no longer need
ACLs based on this proposed rule.
Some stakeholders have also
recommended that, where appropriate,
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NMFS should consider allowing
fisheries (in their entirety) to be
managed at the state level. They have
expressed that Federal agencies are not
always the most appropriate
organizations to manage fisheries, and,
where applicable, states or fishery
management commissions should take
control of managing fish populations.
NMFS agrees that Federal management
is not required for all stocks, and has in
the past provided guidance on when
Federal management was and was not
needed within its NS7 guidelines. As
explained in Section IV, NMFS is
consolidating guidance on stocks that
require conservation and management
in proposed § 600.305(c).
rljohnson on DSK3VPTVN1PROD with PROPOSALS2
Forage Fish
NMFS is not proposing any new
revisions to the NS guidelines related to
forage fish, as the importance of forage
fish to fisheries and the marine
ecosystem was adequately highlighted
in the 2009 revisions of the NS1
guidelines. For example, in current
§ 600.310(e)(3)(iii)(C), NMFS notes that
maintaining adequate forage for all
components of the ecosystem is one
consideration that could be taken by the
Council when determining the greatest
benefit to the Nation. Additionally,
current § 600.310(e)(3)(iv)(C) describes
that, when specifying OY, consideration
should be given to managing forage
stocks for higher biomass than Bmsy to
enhance and protect the marine
ecosystem. NMFS is not proposing to
change these concepts within the
guidelines.
XVI. Republishing Codified Text in Its
Entirety
For clarity and convenience to the
reader, this proposed rule would revise
§ 600.305 (National Standard General),
§ 600.310 (National Standard 1
guidelines), § 600.320 (National
Standard 3 guidelines) and § 600.340
(National Standard 7 guidelines) in their
entirety. The following describes the
changes to these guidelines that are
being proposed, and a tracked changes
copy of the proposed rule is also
available at: https://www.nmfs.noaa.gov/
sfa/laws_policies/national_standards/
ns1_revisions.html.
In the proposed revisions to
§ 600.305, paragraph (b)—Fishery
management objectives, is revised.
Current paragraph (c)—Word usage is
revised and redesignated paragraph (d).
A new paragraph (c)—Stocks that
require conservation and management,
is added to describe which stocks are in
need of conservation and management.
In the proposed revisions to
§ 600.310, paragraph (b)—General, is
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revised. Paragraph (c)—Summary of
items to include in FMPs related to NS1,
is revised. Current paragraph (d)—
Classifying stocks in an FMP, is retitled
Stocks and stock complexes. Paragraph
(d)(1)—Introduction, is revised. Current
paragraphs (d)(2)—Stocks in a fishery,
(d)(4)—Non-target species, and (d)(5)—
Ecosystem component (EC) species were
deleted. Current paragraph (d)(3)—
Target stocks, was revised and
redesignated (d)(11) in § 600.305.
Current paragraph (d)(6)—
Reclassification, was revised and
redesignated (c)(5) in § 600.305. Current
paragraph (d)(7)—Stocks or species
identified in more than on FMP, was
revised and redesignated (c)(4) in
§ 600.305. Current paragraph (d)(8)—
Stock complex was revised and
redesignated (d)(2)(i) and (d)(2)(ii)(B).
Current paragraph (d)(9)—Indicator
stocks, was revised and redesignated
(d)(2)(ii)(A),(C)–(D). Current paragraph
(d)(10)—Vulnerability, was revised and
redesignated (b)(4). Current paragraph
(e)(1)—MSY, was revised. Current
paragraph (e)(1)(iii)—MSY for stock
complexes, was revised and portions
therein were redesignated in
(d)(2)(ii)(E). Current paragraph
(e)(1)(iv)—Specifying MSY, was revised
and redesignated (e)(1)(v)(A)–(D). A new
paragraph (e)(1)(iv)—Methods of
estimating MSY for an aggregate group
of stocks, was added to describe
alternative methods of calculating MSY
for a group of stocks. Paragraphs
(e)(2)(i)(A)—Status determination
criteria (SDC), (e)(2)(i)(B)—Overfishing,
(e)(2)(i)(C)—Maximum Fishing Mortality
Threshold (MFMT), (e)(2)(i)(D)—
Overfishing limit, (e)(2)(i)(E)—
Overfished were revised. Current
paragraph (e)(2)(i)(F)—Minimum stock
size threshold (MSST), was revised and
redesignated (e)(2)(i)(G). Current
paragraph (e)(2)(i)(G)—Approaching an
overfished condition, was redesignated
(e)(2)(i)(H). A new paragraph
(e)(2)(i)(F)—Depleted, was added to
defined the term depleted. Paragraphs
(e)(2)(ii)—Specification of SDC and
overfishing and overfished
determinations and subsections therein
(e)(2)(ii)(A)–(B) were revised. Paragraph
(e)(2)(ii)(A)(3) was added to describe
multiyear periods to determine
overfishing status. Paragraph (e)(2)(ii)(C)
was added to describe that sources of
mortality should be accounted for in the
evaluation of stock status with respect
to reference points. Current paragraph
(e)(2)(iii)—Relationship of SDC to
environmental change, is retitled
Relationship of SDC to environmental
and habitat change. Current paragraphs
(e)(2)(iii)(C), (e)(2)(iv)(A), (e)(3)—
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Optimum yield, (e)(3)(i)(A)–(B), and
(e)(3)(ii)—General were revised. Current
paragraph (e)(3)(iii)—Determining the
greatest benefit to the Nation, was
revised and redesignated (e)(3)(iii)(A).
Current paragraphs (e)(3)(iii)(A)–(C),
were revised and redesignated
(e)(3)(iii)(A)(1)–(3), respectively. A new
paragraph (e)(3)(iii)—Assessing OY, was
added to described the OY assessment
process. Current paragraph (e)(3)(iv)—
Factors to consider in OY specification,
was revised, redesignated (e)(3)(iii)(B)
and retitled Economic, Ecological, and
Social Factors. Current paragraphs
(e)(3)(iv)(A)–(C), were revised and
redesignated (e)(3)(iii)(B)(1)–(3). Current
paragraph (e)(3)(v)—Specification of
OY, was revised, redesignated (e)(3)(iv),
and retitled Specifying OY. Current
paragraph (e)(3)(v)(A) was revised and
redesignated (e)(3)(iv)(A). Current
paragraph (e)(3)(v)(B), was deleted, and
the content was incorporated into
(e)(3)(v)(A). Current paragraph
(e)(3)(v)(C), was revised and
redesignated (e)(3)(ii)(C). Current
paragraph (e)(3)(v)(D), was redesignated
to (e)(3)(v)(A). Current paragraph
(e)(3)(v)(E), was redesignated
(e)(3)(iv)(B). Current paragraph
(e)(3)(v)(F), was revised and
redesignated (e)(3)(iv)(C). Current
paragraph (e)(3)(v)(G), was deleted and
the concept was moved to (e)(3)(iii).
Current paragraph (e)(3)(v)(H), was
redesignated (e)(3)(v)(B). A new
paragraph (e)(3)(iv)(D), was added to
address issues with internationally
managed stocks. Current paragraph
(e)(3)(vi)—OY and foreign fishing, was
redesignated (e)(3)(v). Current
paragraphs (e)(3)(vi)(A)–(C), were
redesignated (e)(3)(v)(C)–(E),
respectively. Paragraph (f)—Acceptable
biological catch, annual catch limits,
and annual catch targets, is revised and
retitled Acceptable biological catch and
annual catch limits. Paragraph (f)(1)—
Introduction, was deleted. Current
paragraph (f)(2)—Definitions and
(f)(2)(i), are redesignated (f)(1) and
(f)(1)(i), respectively. Current paragraph
(f)(2)(ii)—Acceptable biological catch
(ABC), is revised and redesignated
(f)(1)(ii). Current paragraph (f)(2)(iii)—
ABC control rule, is deleted. Current
paragraph (f)(2)(iv)—Annual catch limit
(ACL), is revised and redesignated
(f)(1)(iii). Current paragraphs (f)(2)(v)—
Annual catch target (ACT) and
(f)(2)(vi)—ACT control rule, were
deleted and the content was moved to
paragraph (g)(4). New paragraphs
(f)(1)(iv)—Control rule, (f)(1)(v)—
Management uncertainty, and
(f)(1)(vi)—Scientific uncertainty, were
added because the terms were not
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clearly defined in the current
guidelines. Current paragraphs (f)(3)—
Specification of ABC and (f)(3)(ii) were
revised. Current paragraph (f)(4)—ABC
control rule, was revised and
redesignated (f)(2)(i)–(ii). Paragraphs
(f)(2)(ii)(A)&(B) were added to describe
phase-in and carry-over ABC control
rules. Current paragraph (f)(5)—Setting
the annual catch limit, was redesignated
(f)(4). Current paragraphs (f)(5)(i)–(iii)
were revised and redesignated (f)(4)(i)–
(iii), respectively. A new paragraph
(f)(4)(iv)—Relationship between OY and
the ACL framework, was added. Current
paragraphs (f)(6)—ACT control rule,
(f)(6)(i)—Determining management
uncertainty and (f)(6)(ii)—Establishing
tiers and corresponding ACT control
rules, were revised and redesignated
(g)(4)—Annual catch target (ACT) and
ACT control rule. Paragraph (f)(7) was
deleted. Paragraph (g)—Accountability
measures, was revised and retitled
Accountability measures (AMs).
Paragraph (g)(1)—Introduction, and
(g)(2)—Inseason AMs were revised.
Paragraph (g)(3)—AMs for when the ACL
is exceeded, was revised and portions
therein were redesignated to a new
paragraph (g)(7)—Performance
standard. Current paragraphs (g)(4)—
AMs based on multi-year average data,
was revised and redesignated (g)(5).
Current paragraph (g)(5)—AMs for StateFederal Fisheries, was redesignated
(g)(6). Paragraph (h)—Establishing ACL
mechanisms and AMs in FMPs, was
revised. Current paragraphs (h)(1)(i)–(ii)
were deleted. Current paragraphs
(h)(1)(ii) and (h)(1)(iv) were deleted and
incorporated in (g)(1) and (f)(4)(ii),
respectively. Current paragraph (h)(2)—
Exceptions from ACL and AM
requirements and (h)(2)(ii)—
International fishery agreements, were
redesignated (h)(1) and (h)(1)(ii),
respectively. Current paragraphs
(h)(2)(i)—Life cycle and (h)(3)—
Flexibility in application of NS1
guidelines, were revised and
redesignated (h)(1)(i) and (h)(2),
respectively. Paragraphs (i)—Fisheries
data and (i)(3), were revised. Paragraph
(j)—Council actions to address
overfishing and rebuilding for stocks
and stock complex in the fishery, was
retitled Council actions to address
overfishing and rebuilding for stocks
and stock complexes. Paragraph
(j)(2)(i)—If a stock or stock complex is
undergoing overfishing, was revised.
Paragraphs (j)(2)(i)(A)–(C), were deleted.
Paragraph (j)(2)(ii)—If a stock or stock
complex is overfished or approaching
an overfished condition, was revised.
Paragraph (j)(3)(i)(A), was revised.
Paragraph (j)(3)(i)(B), was deleted but
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portions therein were revised and
incorporated into paragraph (j)(3)(i)(A).
Current paragraph (j)(3)(i)(C), was
revised and redesignated (j)(3)(i)(B)(1).
Current paragraph (j)(3)(i)(D), was
revised and redesignated (j)(3)(i)(B)(2),
(j)(3)(i)(B)(2)(i)–(iii) and (j)(3)(i)(B)(3).
Current paragraph (j)(3)(i)(E), is revised
and redesignated (j)(3)(i)(C)—Target
time to rebuilding a stock or stock
complex (Ttarget). Paragraph (j)(3)(ii),
was revised and redesignated (j)(4)—
Adequate progress, and (j)(4)(i)–(ii).
Current paragraphs (j)(3)(iii) and
(j)(3)(iv), were redesignated (j)(3)(ii) and
(j)(3)(iii), respectively. Current
paragraph (j)(4)—Emergency actions
and interim measures, was revised and
redesignated (j)(4). Current paragraphs
(j)(4)(i) and (j)(4)(ii), were deleted. New
paragraphs (j)(5)—Discontinuing a
rebuilding plan based on new scientific
information, (j)(5)(i)–(ii), and (j)(6)—
Management measures for depleted
stocks, were added.
In the proposed revisions to
§ 600.320, paragraphs (d)—Management
unit and (d)(1)—Basis, were revised.
Paragraphs (d)(1)(i)–(vi), were deleted.
Paragraphs (d)(2)—Conservation and
management measures, and (e)—
Analysis were revised.
In the proposed revisions to
§ 600.340, paragraphs (b)—Necessity of
Federal management, (b)(1)—General,
and (b)(2)—Criteria were deleted.
Current paragraphs (b)(2)(i)–(iii), were
revised and redesignated paragraphs
(c)(2)(vi), (c)(2)(iii), and (c)(2)(x),
respectively, in § 600.305. Current
paragraphs (b)(2)(iv)–(vi) were
redesignated paragraphs (c)(2)(vii)–(ix)
in § 600.305. Paragraph (b)(2)(vii), was
deleted. Current paragraphs (c)—
Alternative management measures, and
(d)—Analysis, were redesignated (b)—
Alternative management measures, and
(c)—Analysis.
XVII. References Cited
A complete list of all the references
cited in this final action is available
online at: https://www.nmfs.noaa.gov/
sfa/laws_policies/national_standards/
ns1_revisions.html or upon request from
Wesley Patrick (see FOR FURTHER
INFORMATION CONTACT).
XIII. Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this proposed rule is consistent
with the Act, and other applicable law,
subject to further consideration after
public comment.
This rule has been determined to be
significant for purposes of Executive
Order 12866.
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The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration that this
rule, if adopted, would not have a
significant economic impact on a
substantial number of small entities.
The factual basis for this determination
is as follows.
The purpose of the rule is to facilitate
compliance with requirements of the
Magnuson-Stevens Act to end and
prevent overfishing, rebuild overfished
stocks, and achieve optimum yield (OY)
without establishing new requirements
or requiring the Councils or Secretary to
revise their Fishery Management Plans
(FMPs). The objectives of the rule are to
improve and clarify the guidance within
the NS guidelines, address concerns that
have been raised during the
implementation of annual catch limits
(ACLs) and accountability measures
(AMs), and provide flexibility to address
fishery management issues. Pursuant to
MSA section 301(b), the NS guidelines
are advisory in nature and do not have
the force and effect of law. The
Magnuson-Stevens Act serves as the
legal basis for the rule.
Small entities include ‘‘small
businesses,’’ ‘‘small organizations,’’ and
‘‘small governmental jurisdictions.’’ The
Small Business Administration has
established size standards for all major
industry sectors in the U.S. including
commercial finfish harvesters (NAICS
code 114111), commercial shellfish
harvesters (NAICS code 114112), other
commercial marine harvesters (NAICS
code 114119), for-hire businesses
(NAICS code 487210), marinas (NAICS
code 713930), seafood dealers/
wholesalers (NAICS code 424460), and
seafood processors (NAICS code
311710). A business primarily involved
in finfish harvesting is classified as a
small business if it is independently
owned and operated, is not dominant in
its field of operation (including its
affiliates), and has combined annual
receipts not in excess of $20.5 million
for all its affiliated operations
worldwide. For commercial shellfish
harvesters, the other qualifiers apply
and the receipts threshold is $5.5
million. For other commercial marine
harvesters, for-hire businesses, and
marinas, the other qualifiers apply and
the receipts threshold is $7.5 million. A
business primarily involved in seafood
processing is classified as a small
business if it is independently owned
and operated, is not dominant in its
field of operation (including its
affiliates), and has combined annual
employment not in excess of 500
employees for all its affiliated
operations worldwide. For seafood
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dealers/wholesalers, the other qualifiers
apply and the employment threshold is
100 employees. A small organization is
any not-for-profit enterprise which is
independently owned and operated and
is not dominant in its field. Small
governmental jurisdictions are
governments of cities, counties, towns,
townships, villages, school districts, or
special districts, with populations of
less than 50,000.
The actions in this rule make
technical changes to the general section
to the National Standard Guidelines,
and the Guidelines for National
Standard 1 (NS 1), National Standard 3
(NS 3), and National Standard 7 (NS 7).
Specifically, this rule would: (1) Revise
the general section of the NS guidelines
regarding the importance of identifying
fishery management objectives within
an FMP, (2) consolidate guidance on
identifying whether stocks need
conservation and management, (3)
revise the guidelines to provide
flexibility in managing data limited
stocks, (4) revise the guidance on stock
complexes to encourage the use of
complexes and indicator stocks, (5)
revise the guidelines to promote the use
of aggregate MSY estimates, (6) revise
the guidelines by adding a definition for
a depleted stock, (7) revise the
guidelines to allow multi-year
overfishing determinations, methods to
phase-in adjustments to ABC, and
methods to carry-over of all or some of
an unused portion of the ACL, (8) revise
guidance on OY to improve clarity and
describe the role of OY under the ACL
framework, (9) revise the acceptable
biological catch (ABC) guidance, (10)
revise guidance on AMs, (11) revise
guidance on establishing ACL and AM
mechanisms, and (12) provide flexibility
in rebuilding stocks.
Because the proposed changes to the
guidelines do not create new
requirements and thus are technical in
nature, this rule would allow but does
not require the Councils or the Secretary
to make changes to their FMPs. Further,
because the guidelines do not directly
regulate any entities, the proposed
changes will not directly alter the
behavior of any entities operating in
federally managed fisheries, and thus no
direct economic effects on commercial
harvesting businesses, for-hire
businesses, marinas, seafood dealers/
wholesalers, or seafood processors are
expected to result from this action.
Therefore, no small entities would be
directly affected by this rule.
As a result of the information above,
a reduction in profits for a substantial
number of small entities is not expected.
Because this rule, if implemented, is not
expected to have a significant adverse
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economic effect on the profits of a
substantial number of small entities, an
initial regulatory flexibility analysis is
not required and none has been
prepared.
No duplicative, overlapping, or
conflicting Federal rules have been
identified. This rule would not establish
any new reporting or record-keeping
requirements.
List of Subjects in 50 CFR Part 600
Administrative practice and
procedure, Confidential business
information, Fisheries, Fishing, Fishing
vessels, Foreign relations,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Statistics.
Dated: January 12, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Services, National Marine
Fisheries Service.
For the reasons stated in the
preamble, 50 CFR part 600 is proposed
to be amended as follows:
PART 600—MAGNUSON-STEVENS
ACT PROVISIONS
1. The authority citation for part 600
continues to read as follows:
■
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801
et seq.
2. Section 600.305 is revised to read
as follows:
■
§ 600.305
General.
(a) Purpose. (1) This subpart
establishes guidelines, based on the
national standards, to assist in the
development and review of FMPs,
amendments, and regulations prepared
by the Councils and the Secretary.
(2) In developing FMPs, the Councils
have the initial authority to ascertain
factual circumstances, to establish
management objectives, and to propose
management measures that will achieve
the objectives. The Secretary will
determine whether the proposed
management objectives and measures
are consistent with the national
standards, other provisions of the
Magnuson-Stevens Act, and other
applicable law. The Secretary has an
obligation under section 301(b) of the
Magnuson-Stevens Act to inform the
Councils of the Secretary’s
interpretation of the national standards
so that they will have an understanding
of the basis on which FMPs will be
reviewed.
(3) The national standards are
statutory principles that must be
followed in any FMP. The guidelines
summarize Secretarial interpretations
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that have been, and will be, applied
under these principles. The guidelines
are intended as aids to decision-making;
FMPs formulated according to the
guidelines will have a better chance for
expeditious Secretarial review,
approval, and implementation. FMPs
that are in substantial compliance with
the guidelines, the Magnuson-Stevens
Act, and other applicable law must be
approved.
(b) Fishery management objectives. (1)
Each FMP, whether prepared by a
Council or by the Secretary, should
identify what the FMP is designed to
accomplish (i.e., the management
objectives to be attained in regulating
the fishery under consideration). In
establishing objectives, Councils
balance biological constraints with
human needs, reconcile present and
future costs and benefits, and integrate
the diversity of public and private
interests. If objectives are in conflict,
priorities should be established among
them.
(2) To reflect the changing needs of
the fishery over time, Councils should
reassess the objectives of the fishery on
a regular basis.
(3) How objectives are defined is
important to the management process.
Objectives should address the problems
of a particular fishery. The objectives
should be clearly stated, practicably
attainable, framed in terms of definable
events and measurable benefits, and
based upon a comprehensive rather than
a fragmentary approach to the problems
addressed. An FMP should make a clear
distinction between objectives and the
management measures chosen to
achieve them. The objectives of each
FMP provide the context within which
the Secretary will judge the consistency
of an FMP’s conservation and
management measures with the national
standards.
(c) Stocks that require conservation
and management. (1) MagnusonStevens Act section 302(h)(1) requires a
Council to prepare an FMP for each
fishery under its authority that requires
(or in other words, is in need of)
conservation and management. Not
every fishery requires Federal
management. Any stocks that are
predominately caught in Federal waters
and are overfished or subject to
overfishing, or likely to become
overfished or subject to overfishing, are
considered to require conservation and
management. In addition, the following
non-exhaustive list of factors should be
used by a Council when deciding
whether stocks require conservation and
management:
(i) The stock is an important
component of the marine environment.
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(ii) The stock is caught by the fishery.
(iii) Whether an FMP can improve or
maintain the condition of the stocks.
(iv) The stock is a target of a fishery.
(v) The stock is important to
commercial, recreational, or subsistence
users.
(vi) The fishery is important to the
Nation and to the regional economy.
(vii) The need to resolve competing
interests and conflicts among user
groups and whether an FMP can further
that resolution.
(viii) The economic condition of a
fishery and whether an FMP can
produce more efficient utilization.
(ix) The needs of a developing fishery,
and whether an FMP can foster orderly
growth.
(x) The extent to which the fishery
could be or is already adequately
managed by states, by state/Federal
programs, by Federal regulations
pursuant to other FMPs or international
commissions, or by industry selfregulation, consistent with the policies
and standards of the Magnuson-Stevens
Act.
(2) When considering adding a new
stock to an FMP or keeping an existing
stock within an FMP, Councils should
prepare a thorough analysis of the
factors, and any additional
considerations that may be relevant to
the particular stock. No single factor is
dispositive, but Councils should
consider weighting the factors as
follows. Factors in paragraphs (c)(1)(i)
through (iii) of this section should be
considered first, as they address
maintaining a fishery resource and the
marine environment. See 16 U.S.C.
1802(5)(A). These factors weigh in favor
of including a stock in an FMP.
Councils should next consider factors in
paragraphs (c)(1)(iv) through (ix) of this
section, which set forth key economic,
social, and other reasons contained
within the MSA for an FMP action. See
16 U.S.C. 1802(5)(B). Regardless of
whether any of the first nine factors
indicates a conservation and
management need, a Council should
consider factor in paragraph (c)(1)(x) of
this section before deciding to include
or maintain a stock in an FMP. In many
circumstances, adequate management of
a fishery by states, state/Federal
programs, or another Federal FMP
would weigh heavily against a Federal
FMP action. See, e.g., 16 U.S.C.
1851(a)(7) and 1856(a)(3). In evaluating
the above criteria, a Council should
consider the specific circumstances of a
fishery, based on the best scientific
information available; to determine
whether there are biological, economic,
social and/or operational concerns that
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can be addressed by Federal
management.
(3) Councils may choose to identify
stocks within their FMPs as ecosystem
component (EC) species (see
§ 600.310(d)(1)) if they do not require
conservation and management. EC
species may be identified at the species
or stock level, and may be grouped into
complexes. Consistent with National
Standard 9, Magnuson-Stevens Fishery
Conservation and Management Act
(MSA) section 303(b)(12), and other
applicable MSA sections, management
measures can be adopted in order to, for
example, collect data on the EC species,
minimize bycatch or bycatch mortality
of EC species, protect the associated role
of EC species in the ecosystem, or for
other reasons.
(4) A stock or stock complex may be
identified in more than one FMP. In this
situation, the relevant Councils should
choose which FMP will be the primary
FMP in which reference points for the
stock or stock complex are established.
In other FMPs, the stock or stock
complex may be identified as ‘‘other
managed stocks’’ and management
measures that are consistent with the
objectives of the primary FMP can be
established.
(5) Councils should periodically
review their FMPs and the best
scientific information available and
determine if the stocks are appropriately
identified. As appropriate, stocks
should be reclassified within a FMP,
added to or removed from an existing
FMP, or added to a new FMP, through
a FMP amendment that documents the
rationale for the decision.
(d) Word usage within the National
Standard Guidelines. The word usage
refers to all regulations in this subpart.
(1) Must is used, instead of ‘‘shall’’, to
denote an obligation to act; it is used
primarily when referring to
requirements of the Magnuson-Stevens
Act, the logical extension thereof, or of
other applicable law.
(2) Shall is used only when quoting
statutory language directly, to avoid
confusion with the future tense.
(3) Should is used to indicate that an
action or consideration is strongly
recommended to fulfill the Secretary’s
interpretation of the Magnuson-Stevens
Act, and is a factor reviewers will look
for in evaluating a SOPP or FMP.
(4) May is used in a permissive sense.
(5) Will is used descriptively, as
distinguished from denoting an
obligation to act or the future tense.
(6) Could is used when giving
examples, in a hypothetical, permissive
sense.
(7) Can is used to mean ‘‘is able to’’,
as distinguished from ‘‘may’’.
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(8) Examples are given by way of
illustration and further explanation.
They are not inclusive lists; they do not
limit options.
(9) Analysis, as a paragraph heading,
signals more detailed guidance as to the
type of discussion and examination an
FMP should contain to demonstrate
compliance with the standard in
question.
(10) Council includes the Secretary, as
applicable, when preparing FMPs or
amendments under section 304(c) and
(g) of the Magnuson-Stevens Act.
(11) Target stocks are stocks or stock
complexes that fishers seek to catch for
sale or personal use, including
‘‘economic discards’’ as defined under
Magnuson-Stevens Act section 3(9).
■ 3. Section 600.310 is revised to read
as follows:
§ 600.310
Yield.
National Standard 1—Optimum
(a) Standard 1. Conservation and
management measures shall prevent
overfishing while achieving, on a
continuing basis, the optimum yield
(OY) from each fishery for the U.S.
fishing industry.
(b) General. (1) The guidelines set
forth in this section describe fishery
management approaches to meet the
objectives of National Standard 1 (NS1),
and include guidance on:
(i) Specifying maximum sustainable
yield (MSY) and OY;
(ii) Specifying status determination
criteria (SDC) so that overfishing and
overfished determinations can be made
for stocks and stock complexes that
require, or are in need of, conservation
and management;
(iii) Preventing overfishing and
achieving OY, incorporation of
scientific and management uncertainty
in control rules, and adaptive
management using annual catch limits
(ACL) and measures to ensure
accountability (i.e., accountability
measures (AMs)); and
(iv) Rebuilding stocks and stock
complexes.
(2) Overview of Magnuson-Stevens
Act concepts and provisions related to
NS1— (i) MSY. The Magnuson-Stevens
Act establishes MSY as the basis for
fishery management and requires that:
The fishing mortality rate must not
jeopardize the capacity of a stock or
stock complex to produce MSY; the
abundance of an overfished stock or
stock complex must be rebuilt to a level
that is capable of producing MSY; and
OY must not exceed MSY.
(ii) OY. The determination of OY is a
decisional mechanism for resolving the
Magnuson-Stevens Act’s conservation
and management objectives, achieving a
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fishery management plan’s (FMP)
objectives, and balancing the various
interests that comprise the greatest
overall benefits to the Nation. OY is
based on MSY as reduced under
paragraphs (e)(3)(iii)(A) and (B) of this
section. The most important limitation
on the specification of OY is that the
choice of OY and the conservation and
management measures proposed to
achieve it must prevent overfishing.
(iii) ACLs and AMs. Any FMP shall
establish a mechanism for specifying
ACLs in the FMP (including a multiyear
plan), implementing regulations, or
annual specifications, at a level such
that overfishing does not occur in the
fishery, including measures to ensure
accountability (Magnuson-Stevens Act
section 303(a)(15)).
(iv) Reference points. SDC, MSY, OY,
acceptable biological catch (ABC), and
ACL, which are described further in
paragraphs (e) and (f) of this section, are
collectively referred to as ‘‘reference
points.’’
(v) Scientific advice. The MagnusonStevens Act has requirements regarding
scientific and statistical committees
(SSC) of the Regional Fishery
Management Councils, including but
not limited to, the following provisions
(paragraphs (b)(2)(v)(A) through (D) of
this section). See the National Standard
2 guidelines for further guidance on
SSCs and the peer review process
(§ 600.315).
(A) Each Regional Fishery
Management Council shall establish an
SSC as described in section 302(g)(1)(A)
of the Magnuson-Stevens Act.
(B) Each SSC shall provide its
Regional Fishery Management Council
recommendations for ABC as well as
other scientific advice, as described in
Magnuson-Stevens Act section
302(g)(1)(B).
(C) The Secretary and each Regional
Fishery Management Council may
establish a peer review process for that
Council for scientific information used
to advise the Council about the
conservation and management of a
fishery (see Magnuson-Stevens Act
section 302(g)(1)(E)). If a peer review
process is established, it should
investigate the technical merits of stock
assessments and other scientific
information to be used by the SSC or
agency or international scientists, as
appropriate. For Regional Fishery
Management Councils, the peer review
process is not a substitute for the SSC
and should work in conjunction with
the SSC. For the Secretary, which does
not have an SSC, the peer review
process should provide the scientific
information necessary.
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(D) Each Council shall develop ACLs
for each of its managed fisheries that
may not exceed the ‘‘fishing level
recommendations’’ of its SSC or peer
review process (Magnuson-Stevens Act
section 302(h)(6)). The SSC
recommendation that is the most
relevant to ACLs is ABC, as both ACL
and ABC are levels of annual catch.
(3) Approach for setting limits and
accountability measures, including
targets, for consistency with NS1. When
specifying limits and accountability
measures, Councils must take an
approach that considers uncertainty in
scientific information and management
control of the fishery. These guidelines
describe how the Councils could
address uncertainty such that there is a
low risk that limits are exceeded as
described in paragraphs (f)(2) and (g)(4)
of this section.
(4) Vulnerability. A stock’s
vulnerability to fishing pressure is a
combination of its productivity, which
depends upon its life history
characteristics, and its susceptibility to
the fishery. Productivity refers to the
capacity of the stock to produce MSY
and to recover if the population is
depleted or overfished, and
susceptibility is the potential for the
stock to be impacted by the fishery,
which includes direct captures, as well
as indirect impacts of the fishery (e.g.,
loss of habitat quality).
(c) Summary of items to include in
FMPs related to NS1. This section
provides a summary of items that
Councils must include in their FMPs
and FMP amendments in order to
address ACL, AM, and other aspects of
the NS1 guidelines. Councils must
describe fisheries data for the stocks and
stock complexes in their FMPs, or
associated public documents such as
Stock Assessment and Fishery
Evaluation (SAFE) Reports. For all
stocks and stock complexes that require
conservation and management (see
§ 600.305(c)), the Councils must
evaluate and describe the following
items in their FMPs and amend the
FMPs, if necessary, to align their
management objectives to end or
prevent overfishing and to achieve OY:
(1) MSY and SDC (see paragraphs
(e)(1) and (2) of this section).
(2) OY at the stock, stock complex, or
fishery level and provide the OY
specification analysis (see paragraph
(e)(3) of this section).
(3) ABC control rule (see paragraph
(f)(2) of this section).
(4) Mechanisms for specifying ACLs
(see paragraph (f)(4) of this section).
(5) AMs (see paragraph (g) of this
section).
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(6) Stocks and stock complexes that
have statutory exceptions from ACLs
and AMs (see paragraph (h)(1) of this
section) or which fall under limited
circumstances which require different
approaches to meet the MagnusonStevens Act requirements (see
paragraph (h)(2) of this section).
(d) Stocks and stock complexes—(1)
Introduction. As described in
§ 600.305(c), Councils should identify in
their FMPs the stocks that require
conservation and management. Such
stocks must have ACLs, other reference
points, and accountability measures.
Other stocks that are identified in an
FMP (i.e., ecosystem component species
or stocks that the fishery interacts with
but are managed primarily under
another FMP, see § 600.305(c)(3) and
(4)) do not require ACLs, other reference
points, and accountability measures.
(2) Stock complex. Stocks that require
conservation and management can be
grouped into stock complexes. A ‘‘stock
complex’’ is a tool to manage a group of
stocks within a FMP.
(i) At the time a stock complex is
established, the FMP should provide, to
the extent practicable, a full and explicit
description of the proportional
composition of each stock in the stock
complex. Stocks may be grouped into
complexes for various reasons,
including where stocks in a
multispecies fishery cannot be targeted
independent of one another; where
there is insufficient data to measure a
stock’s status relative to SDC; or when
it is not feasible for fishermen to
distinguish individual stocks among
their catch. Where practicable, the
group of stocks should have a similar
geographic distribution, life history
characteristics, and vulnerabilities to
fishing pressure such that the impact of
management actions on the stocks is
similar. The vulnerability of individual
stocks should be considered when
determining if a particular stock
complex should be established or
reorganized, or if a particular stock
should be included in a complex.
(ii) Indicator stocks. (A) An indicator
stock is a stock with measurable and
objective SDC that can be used to help
manage and evaluate more poorly
known stocks that are in a stock
complex.
(B) Where practicable, stock
complexes should include one or more
indicator stocks (each of which has SDC
and ACLs). Otherwise, stock complexes
may be comprised of: Several stocks
without an indicator stock (with SDC
and an ACL for the complex as a whole),
or one or more indicator stocks (each of
which has SDC and management
objectives) with an ACL for the complex
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as a whole (this situation might be
applicable to some salmon species).
Councils should review the available
quantitative or qualitative information
(e.g., catch trends, changes in
vulnerability, fish health indices, etc.) of
stocks within a complex on a regular
basis to determine if they are being
sustainably managed.
(C) If an indicator stock is used to
evaluate the status of a complex, it
should be representative of the typical
vulnerability of stocks within the
complex. If the stocks within a stock
complex have a wide range of
vulnerability, they should be
reorganized into different stock
complexes that have similar
vulnerabilities; otherwise the indicator
stock should be chosen to represent the
more vulnerable stocks within the
complex. In instances where an
indicator stock is less vulnerable than
other members of the complex,
management measures should be more
conservative so that the more vulnerable
members of the complex are not at risk
from the fishery.
(D) More than one indicator stock can
be selected to provide more information
about the status of the complex.
(E) When indicator stocks are used,
the stock complex’s MSY could be listed
as ‘‘unknown,’’ while noting that the
complex is managed on the basis of one
or more indicator stocks that do have
known stock-specific MSYs, or suitable
proxies, as described in paragraph
(e)(1)(v) of this section.
(e) Features of MSY, SDC, and OY—
(1) MSY. Each FMP must include an
estimate of MSY for the stocks and stock
complexes that require conservation and
management. MSY may also be
specified for the fishery as a whole.
(i) Definitions—(A) MSY is the largest
long-term average catch or yield that can
be taken from a stock or stock complex
under prevailing ecological,
environmental conditions and fishery
technological characteristics (e.g., gear
selectivity), and the distribution of catch
among fleets.
(B) MSY fishing mortality rate (Fmsy) is
the fishing mortality rate that, if applied
over the long term, would result in
MSY.
(C) MSY stock size (Bmsy) means the
long-term average size of the stock or
stock complex, measured in terms of
spawning biomass or other appropriate
measure of the stock’s reproductive
potential that would be achieved by
fishing at Fmsy.
(ii) MSY for stocks. MSY should be
estimated for each stock based on the
best scientific information available (see
§ 600.315).
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(iii) MSY for stock complexes. When
stock complexes are used, MSY should
be estimated for one or more indicator
stocks or for the complex as a whole
(see paragraph (d)(2)(ii) of this section).
(iv) Methods of estimating MSY for an
aggregate group of stocks. Estimating
MSY for an aggregate group of stocks
(including stock complexes and the
fishery as a whole) can be done using
models that account for multi-species
interactions, composite properties for a
group of similar species, common
biomass (energy) flow and production
patterns, or other relevant factors (see
paragraph (e)(3)(iv)(C) of this section).
(v) Specifying MSY. (A) Because MSY
is a long-term average, it need not be
estimated annually, and should be reestimated as required by changes in
long-term environmental or ecological
conditions, fishery technological
characteristics, or new scientific
information.
(B) When data are insufficient to
estimate MSY directly, Councils should
adopt other measures of reproductive
potential that can serve as reasonable
proxies for MSY, Fmsy, and Bmsy.
(C) The MSY for a stock or stock
complex is influenced by its
interactions with other stocks in its
ecosystem and these interactions may
shift as multiple stocks in an ecosystem
are fished. Ecological and
environmental information should be
taken into account, to the extent
practicable, when assessing stocks and
specifying MSY. Ecological and
environmental information that is not
directly accounted for in the
specification of MSY can be among the
ecological factors considered when
setting OY below MSY.
(D) As MSY values are estimates or
are based on proxies, they will have
some level of uncertainty associated
with them. The degree of uncertainty in
the estimates should be identified, when
practicable, through the stock
assessment process and peer review (see
§ 600.335), and should be taken into
account when specifying the ABC
Control rule (see paragraph (f)(2) of this
section).
(2) Status determination criteria—(i)
Definitions—(A) Status determination
criteria (SDC) mean the measurable and
objective factors, MFMT, OFL, and
MSST, or their proxies, that are used to
determine if overfishing has occurred,
or if the stock or stock complex is
overfished. Magnuson-Stevens Act
(section 3(34)) defines both
‘‘overfishing’’ and ‘‘overfished’’ to mean
a rate or level of fishing mortality that
jeopardizes the capacity of a fishery to
produce the MSY on a continuing basis.
To avoid confusion, this section clarifies
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that ‘‘overfished’’ relates to biomass of
a stock or stock complex, and
‘‘overfishing’’ pertains to a rate or level
of removal of fish from a stock or stock
complex.
(B) Overfishing occurs whenever a
stock or stock complex is subjected to a
level of fishing mortality or total catch
that jeopardizes the capacity of a stock
or stock complex to produce MSY on a
continuing basis.
(C) Maximum fishing mortality
threshold (MFMT) means the level of
fishing mortality (F) above which
overfishing is occurring. The MFMT or
reasonable proxy may be expressed
either as a single number (a fishing
mortality rate or F value), or as a
function of spawning biomass or other
measure of reproductive potential.
(D) Overfishing limit (OFL) means the
annual amount of catch that
corresponds to the estimate of MFMT
applied to a stock or stock complex’s
abundance and is expressed in terms of
numbers or weight of fish.
(E) Overfished. A stock or stock
complex is considered ‘‘overfished’’
when its biomass has declined below
MSST.
(F) Depleted. An overfished stock or
stock complex is considered depleted
when it has not experienced overfishing
at any point over a period of two
generation times of the stock and its
biomass has declined below MSST, or
when a rebuilding stock or stock
complex has reached its targeted time to
rebuild and the stock’s biomass has
shown no significant signs of growth
despite being fished at or below catch
levels that are consistent with the
rebuilding plan throughout that period
(see paragraphs (j)(3)(i)(B)(2)(i) and (j)(6)
of this section).
(G) Minimum stock size threshold
(MSST) means the level of biomass
below which the capacity of the stock or
stock complex to produce MSY on a
continuing basis has been jeopardized.
(H) Approaching an overfished
condition. A stock or stock complex is
approaching an overfished condition
when it is projected that there is more
than a 50 percent chance that the
biomass of the stock or stock complex
will decline below the MSST within
two years.
(ii) Specification of SDC and
overfishing and overfished
determinations. Each FMP must
describe how objective and measurable
SDCs will be specified, as described in
paragraphs (e)(2)(ii)(A) and (B) of this
section. To be measurable and objective,
SDC must be expressed in a way that
enables the Council to monitor the
status of each stock or stock complex in
the FMP. Applying the SDC set forth in
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the FMP, the Secretary determines if
overfishing is occurring and whether the
stock or stock complex is overfished
(Magnuson-Stevens Act section 304(e)).
SDCs are often based on fishing rates or
biomass levels associated with MSY or
MSY based proxies. When data are not
available to specify SDCs based on MSY
or MSY proxies, alternative types of
SDCs that promote sustainability of the
stock or stock complex can be used. For
example, SDC could be based on recent
average catch, fish densities derived
from visual census surveys, length/
weight frequencies or other methods. In
specifying SDC, a Council must provide
an analysis of how the SDC were chosen
and how they relate to reproductive
potential of stocks of fish within the
fishery. If alternative types of SDCs are
used, the Council should explain how
the approach will promote
sustainability of the stock or stock
complex on a long term basis. A Council
should consider a process that allows
SDCs to be quickly updated to reflect
the best scientific information available.
In the case of internationally-managed
stocks, the Council may decide to use
the SDCs defined by the relevant
international body. In this instance, the
SDCs should allow the Council to
monitor the status of a stock or stock
complex, recognizing that the SDCs may
not be defined in such a way that a
Council could monitor the MFMT, OFL,
or MSST as would be done with a
domestically managed stock or stock
complex.
(A) SDC To Determine Overfishing
Status. Each FMP must describe the
method used to determine the
overfishing status for each stock or stock
complex. For domestically-managed
stocks or stocks complexes, one of the
following methods should be used:
(1) Fishing Mortality Rate Exceeds
MFMT. Exceeding the MFMT for a
period of 1 year or exceeding a multiyear mortality reference point
constitutes overfishing.
(2) Catch Exceeds the OFL. Exceeding
the annual OFL for 1 year or exceeding
a multi-year catch reference point
constitutes overfishing.
(3) Use of Multi-Year Periods To
Determine Overfishing Status. A multiyear period may not exceed three years.
A Council may develop overfishing
SDCs that use a multi-year approach, so
long as it provides a comprehensive
analysis based on the best scientific
information available that supports that
the approach will not jeopardize the
capacity of the fishery to produce MSY
on a continuing basis. A Council should
identify in its FMP or FMP amendment
circumstances in which the multi-year
approach should not be used (e.g.,
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because the capacity of the stock to
produce MSY over the longer term
could be jeopardized).
(B) SDC to determine overfished
status. The MSST or reasonable proxy
must be expressed in terms of spawning
biomass or other measure of
reproductive potential. MSST should be
between 1⁄2 Bmsy and Bmsy, and could be
informed by the life history of the stock,
the natural fluctuations in biomass
associated with fishing at MFMT over
the long-term, the time needed to
rebuild to Bmsy and associated social
and/or economic impacts on the fishery,
the requirements of internationallymanaged stocks, or other considerations.
(C) Where practicable, all sources of
mortality including that resulting from
bycatch, scientific research catch, and
all fishing activities should be
accounted for in the evaluation of stock
status with respect to reference points.
(iii) Relationship of SDC to
environmental and habitat change.
Some short-term environmental changes
can alter the size of a stock or stock
complex without affecting its long-term
reproductive potential. Long-term
environmental changes affect both the
short-term size of the stock or stock
complex and the long-term reproductive
potential of the stock or stock complex.
(A) If environmental changes cause a
stock or stock complex to fall below its
MSST without affecting its long-term
reproductive potential, fishing mortality
must be constrained sufficiently to
allow rebuilding within an acceptable
time frame (see also paragraph (j)(3)(i) of
this section). SDC should not be
respecified.
(B) If environmental, ecosystem, or
habitat changes affect the long-term
reproductive potential of the stock or
stock complex, one or more components
of the SDC must be respecified. Once
SDC have been respecified, fishing
mortality may or may not have to be
reduced, depending on the status of the
stock or stock complex with respect to
the new criteria.
(C) If manmade environmental
changes are partially responsible for a
stock or stock complex’s biomass being
below MSST, in addition to controlling
fishing mortality, Councils should
recommend restoration of habitat and
other ameliorative programs, to the
extent possible (see also the guidelines
issued pursuant to section 305(b) of the
Magnuson-Stevens Act for Council
actions concerning essential fish
habitat).
(iv) Secretarial approval of SDC.
Secretarial approval or disapproval of
proposed SDC will be based on
consideration of whether the proposal:
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(A) Is based on the best scientific
information available;
(B) Contains the elements described
in paragraph (e)(2)(ii) of this section;
(C) Provides a basis for objective
measurement of the status of the stock
or stock complex against the criteria;
and
(D) Is operationally feasible.
(3) Optimum yield. For stocks that
require conservation and management,
OY may be established at the stock,
stock complex, or fishery level.
(i) Definitions—(A) Optimum yield
(OY). Magnuson-Stevens Act section
(3)(33) defines ‘‘optimum,’’ with respect
to the yield from a fishery, as the
amount of fish that will provide the
greatest overall benefit to the Nation,
particularly with respect to food
production and recreational
opportunities and taking into account
the protection of marine ecosystems;
that is prescribed on the basis of the
MSY from the fishery, as reduced by
any relevant economic, social, or
ecological factor; and, in the case of an
overfished fishery, that provides for
rebuilding to a level consistent with
producing the MSY in such fishery.
(B) In NS1, use of the phrase
‘‘achieving, on a continuing basis, the
optimum yield from each fishery’’
means: Producing, from each stock,
stock complex, or fishery, an amount of
catch that is, on average, equal to the
Council’s specified OY; prevents
overfishing; maintains the long term
average biomass near or above Bmsy; and
rebuilds overfished stocks and stock
complexes consistent with timing and
other requirements of section 304(e)(4)
of the Magnuson-Stevens Act and
paragraph (j) of this section.
(ii) General. OY is a long-term average
amount of desired yield from a stock,
stock complex, or fishery. An FMP must
contain conservation and management
measures, including ACLs and AMs, to
achieve OY on a continuing basis, and
provisions for information collection
that are designed to determine the
degree to which OY is achieved. These
measures should allow for practical and
effective implementation and
enforcement of the management regime.
If management measures prove
unenforceable—or too restrictive, or not
rigorous enough to prevent overfishing
while achieving on a continuing basis
OY—they should be modified; an
alternative is to reexamine the adequacy
of the OY specification to ensure that
the dual requirements of NS1 are met
(preventing overfishing while achieving,
on a continuing basis, OY).
(iii) Assessing OY. An FMP must
contain an assessment and specification
of OY, which documents how the OY
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will produce the greatest benefits to the
nation and prevent overfishing. The
assessment should include a summary
of information utilized in making such
specification, consistent with
requirements of section 303(a)(3) of the
Magnuson-Stevens Act and
consideration of the economic, social,
and ecological factors relevant to
management of a particular stock, stock
complex, or fishery. Consistent with
Magnuson-Stevens Act section
302(h)(5), the assessment and
specification of OY should be reviewed
on a continuing basis, so that it is
responsive to changing circumstances in
the fishery.
(A) Determining the greatest benefit to
the Nation. In determining the greatest
benefit to the Nation, the values that
should be weighed and receive serious
attention when considering the
economic, social, or ecological factors
used in reducing MSY, or its proxy, to
obtain OY are:
(1) The benefits of food production
derived from providing seafood to
consumers; maintaining an
economically viable fishery together
with its attendant contributions to the
national, regional, and local economies;
and utilizing the capacity of the
Nation’s fishery resources to meet
nutritional needs.
(2) The benefits of recreational
opportunities reflect the quality of both
the recreational fishing experience and
non-consumptive fishery uses such as
ecotourism, fish watching, and
recreational diving. Benefits also
include the contribution of recreational
fishing to the national, regional, and
local economies and food supplies.
(3) The benefits of protection afforded
to marine ecosystems are those resulting
from maintaining viable populations
(including those of unexploited
species), maintaining adequate forage
for all components of the ecosystem,
maintaining evolutionary and ecological
processes (e.g., disturbance regimes,
hydrological processes, nutrient cycles),
maintaining productive habitat,
maintaining the evolutionary potential
of species and ecosystems, and
accommodating human use.
(B) Economic, ecological, and social
factors. Councils should consider the
management objectives of their FMPs
and their management framework to
determine the relevant social, economic,
and ecological factors used to determine
OY. There will be inherent trade-offs
when determining the objectives of the
fishery. The following is a nonexhaustive list of potential
considerations for social, economic, and
ecological factors.
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(1) Social factors. Examples are
enjoyment gained from recreational
fishing, avoidance of gear conflicts and
resulting disputes, preservation of a way
of life for fishermen and their families,
and dependence of local communities
on a fishery (e.g., involvement in
fisheries and ability to adapt to change).
Consideration may be given to fisheryrelated indicators (e.g., number of
fishery permits, number of commercial
fishing vessels, number of party and
charter trips, landings, ex-vessel
revenues etc.) and non-fishery related
indicators (e.g., unemployment rates,
percent of population below the poverty
level, population density, etc.), and
preference for a particular type of
fishery (e.g., size of the fishing fleet,
type of vessels in the fleet, permissible
gear types). Other factors that may be
considered include the effects that past
harvest levels have had on fishing
communities, the cultural place of
subsistence fishing, obligations under
Indian treaties, proportions of affected
minority and low-income groups, and
worldwide nutritional needs.
(2) Economic factors. Examples are
prudent consideration of the risk of
overharvesting when a stock’s size or
reproductive potential is uncertain (see
§ 600.335(c)(2)(i)), satisfaction of
consumer and recreational needs, and
encouragement of domestic and export
markets for U.S. harvested fish. Other
factors that may be considered include:
The value of fisheries, the level of
capitalization, the decrease in cost per
unit of catch afforded by an increase in
stock size, the attendant increase in
catch per unit of effort, alternate
employment opportunities, and
economic contribution to fishing
communities, coastal areas, affected
states, and the nation.
(3) Ecological factors. Examples
include impacts on ecosystem
component species, forage fish stocks,
other fisheries, predator-prey or
competitive interactions, marine
mammals, threatened or endangered
species, and birds. Species interactions
that have not been explicitly taken into
account when calculating MSY should
be considered as relevant factors for
setting OY below MSY. In addition,
consideration should be given to
managing forage stocks for higher
biomass than Bmsy to enhance and
protect the marine ecosystem. Also
important are ecological or
environmental conditions that stress
marine organisms or their habitat, such
as natural and manmade changes in
wetlands or nursery grounds, and effects
of pollutants on habitat and stocks.
(iv) Specifying OY. If the estimates of
MFMT and current biomass are known
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with a high level of certainty and
management controls can accurately
limit catch, then OY could be set very
close to MSY, assuming no other
reductions are necessary for social,
economic, or ecological factors. To the
degree that such MSY estimates and
management controls are lacking or
unavailable, OY should be set farther
from MSY.
(A) The OY can be expressed in terms
of numbers or weight of fish, and either
as a single value or a range. When it is
not possible to specify OY
quantitatively, OY may be described
qualitatively.
(B) The determination of OY is based
on MSY, directly or through proxy.
However, even where sufficient
scientific data as to the biological
characteristics of the stock do not exist,
or where the period of exploitation or
investigation has not been long enough
for adequate understanding of stock
dynamics, or where frequent large-scale
fluctuations in stock size diminish the
meaningfulness of the MSY concept, OY
must still be established based on the
best scientific information available.
(C) An OY established at a fishery
level may not exceed the sum of the
MSY values for each of the stocks or
stocks complexes within the fishery.
Aggregate level MSY estimates could be
used as a basis for specifying OY for the
fishery (see paragraph (e)(1)(iv) of this
section). When aggregate level MSY is
estimated, single stock MSY estimates
can also be used to inform single stock
management. For example, OY could be
specified for a fishery, while other
reference points are specified for
individual stocks in order to prevent
overfishing on each stock within the
fishery.
(D) For internationally-managed
stocks, fishing levels that are agreed
upon by the U.S. at the international
level are consistent with achieving OY.
(v) OY and foreign fishing. Section
201(d) of the Magnuson-Stevens Act
provides that fishing by foreign nations
is limited to that portion of the OY that
will not be harvested by vessels of the
United States. The FMP must include an
assessment to address the following, as
required by section 303(a)(4) of the
Magnuson-Stevens Act:
(A) The OY specification is the basis
for establishing any total allowable level
of foreign fishing (TALFF).
(B) Part of the OY may be held as a
reserve to allow for domestic annual
harvest (DAH). If an OY reserve is
established, an adequate mechanism
should be included in the FMP to
permit timely release of the reserve to
domestic or foreign fishermen, if
necessary.
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(C) DAH. Councils and/or the
Secretary must consider the capacity of,
and the extent to which, U.S. vessels
will harvest the OY on an annual basis.
Estimating the amount that U.S. fishing
vessels will actually harvest is required
to determine the surplus.
(D) Domestic annual processing
(DAP). Each FMP must assess the
capacity of U.S. processors. It must also
assess the amount of DAP, which is the
sum of two estimates: The estimated
amount of U.S. harvest that domestic
processors will process, which may be
based on historical performance or on
surveys of the expressed intention of
manufacturers to process, supported by
evidence of contracts, plant expansion,
or other relevant information; and the
estimated amount of fish that will be
harvested by domestic vessels, but not
processed (e.g., marketed as fresh whole
fish, used for private consumption, or
used for bait).
(E) Joint venture processing (JVP).
When DAH exceeds DAP, the surplus is
available for JVP.
(f) Acceptable biological catch and
annual catch limits—(1) Definitions—(i)
Catch is the total quantity of fish,
measured in weight or numbers of fish,
taken in commercial, recreational,
subsistence, tribal, and other fisheries.
Catch includes fish that are retained for
any purpose, as well as mortality of fish
that are discarded.
(ii) Acceptable biological catch (ABC)
is a level of a stock or stock complex’s
annual catch, which is based on an ABC
control rule that accounts for the
scientific uncertainty in the estimate of
OFL, any other scientific uncertainty,
and the Council’s risk policy.
(iii) Annual catch limit (ACL) is a
limit on the total annual catch of a stock
or stock complex, which cannot exceed
the ABC, that serves as the basis for
invoking AMs. An ACL may be divided
into sector-ACLs (see paragraph (f)(4) of
this section).
(iv) Control rule is a policy for
establishing a limit or target catch level
that is based on the best scientific
information available and is established
by the Council in consultation with its
SSC.
(v) Management uncertainty refers to
uncertainty in the ability of managers to
constrain catch so that the ACL is not
exceeded, and the uncertainty in
quantifying the true catch amounts (i.e.,
estimation errors). The sources of
management uncertainty could include:
late catch reporting; misreporting;
underreporting of catches; lack of
sufficient inseason management,
including inseason closure authority; or
other factors.
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(vi) Scientific uncertainty refers to
uncertainty in the information about a
stock and its reference points. Sources
of scientific uncertainty could include:
uncertainty in stock assessment results;
uncertainty in the estimates of MFMT,
MSST, the biomass of the stock, and
OFL; time lags in updating assessments;
the degree of retrospective revision of
assessment results; uncertainty in
projections; uncertainties due to the
choice of assessment model; longer-term
uncertainties due to potential ecosystem
and environmental effects; or other
factors.
(2) ABC control rule—(i) For stocks
and stock complexes required to have
an ABC, each Council must establish an
ABC control rule that accounts for
scientific uncertainty in the OFL and
the Council’s risk policy. The Council’s
risk policy could be based, on an
acceptable probability (at least 50
percent) that catch equal to the stock’s
ABC will not result in overfishing, but
other appropriate methods can be used.
When determining the risk policy,
Councils could consider the economic,
social, and ecological trade-offs between
being more or less risk averse. The
Council’s choice of a risk policy cannot
result in an ABC that exceeds the OFL.
The process of establishing an ABC
control rule may involve science
advisors or the peer review process
established under Magnuson-Stevens
Act section 302(g)(1)(E).
(ii) The ABC control rule must
articulate how ABC will be set
compared to the OFL based on the
scientific knowledge about the stock or
stock complex and taking into account
scientific uncertainty (see paragraph
(f)(1)(vi) of this section). The ABC
control rule should consider reducing
fishing mortality as stock size declines
below Bmsy and as scientific uncertainty
increases, and may establish a stock
abundance level below which directed
fishing would not be allowed. When
scientific uncertainty cannot be directly
calculated, such as when proxies are
used, then a proxy for the uncertainty
itself should be established based on the
best scientific information, including
comparison to other stocks. The control
rule may be used in a tiered approach
to address different levels of scientific
uncertainty. Councils can develop ABC
control rules that allow for changes in
catch limits to be phased-in over time or
to account for the carry-over of some of
the unused portion of the ACL from one
year to the next; in which case, the
Council must provide a comprehensive
analysis and articulate within their FMP
when the control rule can and cannot be
used and how the control rule prevents
overfishing.
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(A) Phase-in ABC control rules. Large
changes in catch limits due to new
scientific information about the status of
the stock can have negative short-term
effects on a fishing industry. To help
stabilize catch levels as stock
assessments are updated, a Council may
choose to develop a control rule that
phases in changes to ABC over a period
of time, not to exceed 3 years, as long
as overfishing is prevented.
(B) Carry-over ABC control rules. An
ABC control rule may include
provisions for carry-over of some of the
unused portion of the ACL from one
year to increase the ABC for the next
year, based on the increased stock
abundance resulting from the fishery
harvesting less than the full ACL. The
resulting ABC recommended by the SSC
must prevent overfishing and consider
scientific uncertainty consistent with
the Council’s risk policy. In cases where
an ACL has been reduced from the ABC,
carry-over provisions may not require
the ABC to be re-specified if the ACL
can be adjusted upwards so that it is
equal to or below the existing ABC.
(3) Specification of ABC. ABC may
not exceed OFL (see paragraph
(e)(2)(i)(D) of this section). Councils and
their SSC should develop a process by
which the SSC can access the best
scientific information available
regarding implementation of the ABC
control rule. An SSC may recommend
an ABC that differs from the result of
the ABC control rule calculation, based
on factors such as data uncertainty,
recruitment variability, declining trends
in population variables, and other
factors, but must provide an explanation
for the deviation. For Secretarial FMPs
or amendments, agency scientists or a
peer review process would provide the
scientific advice to establish ABC. For
internationally-assessed stocks, an ABC
as defined in these guidelines is not
required if stocks fall under the
international exception (see paragraph
(h)(1)(ii) of this section). While the ABC
is allowed to equal OFL, NMFS expects
that in most cases ABC will be reduced
from OFL to reduce the probability that
overfishing might occur in a year.
(i) Expression of ABC. ABC should be
expressed in terms of catch, but may be
expressed in terms of landings as long
as estimates of bycatch and any other
fishing mortality not accounted for in
the landings are incorporated into the
determination of ABC.
(ii) ABC for overfished stocks. For
overfished stocks and stock complexes,
a rebuilding ABC must be set to reflect
the annual catch that is consistent with
the schedule of fishing mortality rates
(i.e., Frebuild) in the rebuilding plan.
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(4) Setting the annual catch limit—(i)
General. ACL cannot exceed the ABC
and may be set annually or on a
multiyear plan basis. ACLs in
coordination with AMs must prevent
overfishing (see MSA section
303(a)(15)). If an Annual Catch Target
(ACT) is not used, management
uncertainty should be accounted for in
the ACL. If a Council recommends an
ACL which equals ABC, and the ABC is
equal to OFL, the Secretary may
presume that the proposal would not
prevent overfishing, in the absence of
sufficient analysis and justification for
the approach. A ‘‘multiyear plan’’ as
referenced in section 303(a)(15) of the
Magnuson-Stevens Act is a plan that
establishes harvest specifications or
harvest guidelines for each year of a
time period greater than 1 year. A
multiyear plan must include a
mechanism for specifying ACLs for each
year with appropriate AMs to prevent
overfishing and maintain an appropriate
rate of rebuilding if the stock or stock
complex is in a rebuilding plan. A
multiyear plan must provide that, if an
ACL is exceeded for a year, then AMs
are implemented for the next year
consistent with paragraph (g)(3) of this
section.
(ii) Sector-ACLs. A Council may, but
is not required to, divide an ACL into
sector-ACLs. If sector-ACLs are used,
sector-AMs should also be specified.
‘‘Sector,’’ for purposes of this section,
means a distinct user group to which
separate management strategies and
separate catch quotas apply. Examples
of sectors include the commercial
sector, recreational sector, or various
gear groups within a fishery. If the
management measures for different
sectors differ in the degree of
management uncertainty, then sectorACLs may be necessary so that
appropriate AMs can be developed for
each sector. If a Council chooses to use
sector-ACLs, the sum of sector-ACLs
must not exceed the stock or stock
complex level ACL. The system of ACLs
and AMs designed must be effective in
protecting the stock or stock complex as
a whole. Even if sector-ACLs and AMs
are established, additional AMs at the
stock or stock complex level may be
necessary.
(iii) ACLs for State-Federal Fisheries.
For stocks or stock complexes that have
harvest in state or territorial waters,
FMPs and FMP amendments should
include an ACL for the overall stock that
may be further divided. For example,
the overall ACL could be divided into
a Federal-ACL and state-ACL. However,
NMFS recognizes that Federal
management is limited to the portion of
the fishery under Federal authority. See
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16 U.S.C. 1856. When stocks are comanaged by Federal, state, tribal, and/or
territorial fishery managers, the goal
should be to develop collaborative
conservation and management
strategies, and scientific capacity to
support such strategies (including AMs
for state or territorial and Federal
waters), to prevent overfishing of shared
stocks and ensure their sustainability.
(iv) Relationship between OY and the
ACL framework. The dual goals of NS1
are to prevent overfishing and achieve
on a continuing basis OY. The ABC is
an upper limit on catch and is designed
to prevent overfishing. As described in
paragraph (e)(3) of this section,
ecological, economic, and social factors,
as well as values associated with
determining the greatest benefit to the
Nation, are important considerations in
specifying OY. These OY considerations
can also be considered in the ACL
framework. For example, an ACL (or
ACT) could be set lower than the ABC
to account for OY considerations (e.g.,
needs of forage fish, promoting stability,
addressing market conditions, etc.).
Additionally, economic, social, or
ecological trade-offs could be evaluated
when determining the risk policy for an
ABC control rule (see paragraph (f)(2) of
this section). While OY is a long-term
average amount of desired yield, there
is, for each year, an amount of fish that
is consistent with achieving the longterm OY. A Council can choose to
express OY on an annual basis, in
which case the FMP or FMP amendment
should indicate that the OY is an
‘‘annual OY.’’ An annual OY cannot
exceed the ACL.
(g) Accountability measures (AMs)—
(1) Introduction. AMs are management
controls to prevent ACLs, including
sector-ACLs, from being exceeded, and
to correct or mitigate overages of the
ACL if they occur. AMs should address
and minimize both the frequency and
magnitude of overages and correct the
problems that caused the overage in as
short a time as possible. NMFS
identifies two categories of AMs,
inseason AMs and AMs for when the
ACL is exceeded. The FMP should
identify what sources of data will be
used to implement AMs (e.g., inseason
data, annual catch compared to the
ACL, or multi-year averaging approach).
(2) Inseason AMs. Whenever possible,
FMPs should include inseason
monitoring and management measures
to prevent catch from exceeding ACLs.
Inseason AMs could include, but are not
limited to: an annual catch target (see
paragraph (g)(4) of this section); closure
of a fishery; closure of specific areas;
changes in gear; changes in trip size or
bag limits; reductions in effort; or other
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appropriate management controls for
the fishery. If final data or data
components of catch are delayed,
Councils should make appropriate use
of preliminary data, such as landed
catch, in implementing inseason AMs.
FMPs should contain inseason closure
authority giving NMFS the ability to
close fisheries if it determines, based on
data that it deems sufficiently reliable,
that an ACL has been exceeded or is
projected to be reached, and that closure
of the fishery is necessary to prevent
overfishing. For fisheries without
inseason management control to prevent
the ACL from being exceeded, AMs
should utilize ACTs that are set below
ACLs so that catches do not exceed the
ACL.
(3) AMs for when the ACL is
exceeded. On an annual basis, the
Council must determine as soon as
possible after the fishing year if an ACL
was exceeded. If an ACL was exceeded,
AMs must be implemented as soon as
possible to correct the operational issue
that caused the ACL overage, as well as
any biological consequences to the stock
or stock complex resulting from the
overage when it is known. These AMs
could include, among other things,
modifications of inseason AMs, the use
or modification of ACTs, or overage
adjustments. The type of AM chosen by
a Council will likely vary depending on
the sector of the fishery, status of the
stock, the degree of the overage,
recruitment patterns of the stock, or
other pertinent information. If an ACL is
set equal to zero and the AM for the
fishery is a closure that prohibits fishing
for a stock, additional AMs are not
required if only small amounts of catch
or bycatch occur, and the catch or
bycatch is unlikely to result in
overfishing. For stocks and stock
complexes in rebuilding plans, the AMs
should include overage adjustments that
reduce the ACLs in the next fishing year
by the full amount of the overage, unless
the best scientific information available
shows that a reduced overage
adjustment, or no adjustment, is needed
to mitigate the effects of the overage.
(4) Annual Catch Target (ACT) and
ACT control rule. ACTs are
recommended in the system of AMs so
that ACL is not exceeded. An ACT is an
amount of annual catch of a stock or
stock complex that is the management
target of the fishery, and accounts for
management uncertainty in controlling
the catch at or below the ACL. ACT
control rules can be used to articulate
how management uncertainty is
accounted for in setting the ACT. ACT
control rules can be developed by the
Council, in coordination with the SSC,
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to help the Council account for
management uncertainty.
(5) AMs based on multi-year average
data. Some fisheries have highly
variable annual catches and lack reliable
inseason or annual data on which to
base AMs. If there are insufficient data
upon which to compare catch to ACL,
AMs could be based on comparisons of
average catch to average ACL over a
three-year moving average period or, if
supported by analysis, some other
appropriate multi-year period. Councils
should explain why basing AMs on a
multi-year period is appropriate.
Evaluation of the moving average catch
to the average ACL must be conducted
annually, and if the average catch
exceeds the average ACL, appropriate
AMs should be implemented consistent
with paragraph (g)(3) of this section.
(6) AMs for State-Federal fisheries.
For stocks or stock complexes that have
harvest in state or territorial waters,
FMPs and FMP amendments must, at a
minimum, have AMs for the portion of
the fishery under Federal authority.
Such AMs could include closing the
EEZ when the Federal portion of the
ACL is reached, or the overall stock’s
ACL is reached, or other measures.
(7) Performance standard. If catch
exceeds the ACL for a given stock or
stock complex more than once in the
last four years, the system of ACLs and
AMs should be reevaluated, and
modified if necessary, to improve its
performance and effectiveness. If AMs
are based on multi-year average data,
the performance standard is based on a
comparison of the average catch to the
average ACL. A Council could choose a
higher performance standard (e.g., a
stock’s catch should not exceed its ACL
more often than once every five or six
years) for a stock that is particularly
vulnerable to the effects of overfishing,
if the vulnerability of the stock has not
already been accounted for in the ABC
control rule.
(h) Establishing ACL mechanisms and
AMs in FMPs. FMPs or FMP
amendments must establish ACL
mechanisms and AMs for all stocks and
stock complexes that require
conservation and management (see
§ 600.305(c)), unless paragraph (h)(1) of
this section is applicable. These
mechanisms should describe the annual
or multiyear process by which ACLs,
AMs, and other reference points such as
OFL, and ABC will be established.
(1) Exceptions from ACL and AM
requirements—(i) Life cycle. Section
303(a)(15) of the Magnuson-Stevens Act
‘‘shall not apply to a fishery for species
that has a life cycle of approximately 1
year unless the Secretary has
determined the fishery is subject to
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overfishing of that species’’ (as
described in Magnuson-Stevens Act
section 303 note). This exception
applies to a stock for which the average
age of spawners in the population is
approximately 1 year or less. While
exempt from the ACL and AM
requirements, FMPs or FMP
amendments for these stocks must have
SDC, MSY, OY, ABC, and an ABC
control rule.
(ii) International fishery agreements.
Section 303(a)(15) of the MagnusonStevens Act applies ‘‘unless otherwise
provided for under an international
agreement in which the United States
participates’’ (Magnuson-Stevens Act
section 303 note). This exception
applies to stocks or stock complexes
subject to management under an
international agreement, which is
defined as ‘‘any bilateral or multilateral
treaty, convention, or agreement which
relates to fishing and to which the
United States is a party’’ (see MagnusonStevens Act section 3(24)). These stocks
would still need to have SDC, MSY, and
OY.
(2) Flexibility in application of NS1
guidelines. There are limited
circumstances that may not fit the
standard approaches to specification of
reference points and management
measures set forth in these guidelines.
These include, among other things,
conservation and management of
Endangered Species Act listed species,
harvests from aquaculture operations,
stocks with unusual life history
characteristics (e.g., Pacific salmon,
where the spawning potential is
concentrated in one year), and stocks for
which data are not available either to set
reference points based on MSY or MSY
proxies, or manage to reference points
based on MSY or MSY proxies. In these
circumstances, Councils may propose
alternative approaches for satisfying
requirements of the Magnuson-Stevens
Act other than those set forth in these
guidelines. Councils must document
their rationale for any alternative
approaches in an FMP or FMP
amendment, which will be reviewed for
consistency with the Magnuson-Stevens
Act.
(i) Fisheries data. In their FMPs, or
associated public documents such as
SAFE reports as appropriate, Councils
must describe general data collection
methods, as well as any specific data
collection methods used for all stocks
and stock complexes in their FMPs,
including:
(1) Sources of fishing mortality (both
landed and discarded), including
commercial and recreational catch and
bycatch in other fisheries;
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(2) Description of the data collection
and estimation methods used to
quantify total catch mortality in each
fishery, including information on the
management tools used (i.e., logbooks,
vessel monitoring systems, observer
programs, landings reports, fish tickets,
processor reports, dealer reports,
recreational angler surveys, or other
methods); the frequency with which
data are collected and updated; and the
scope of sampling coverage for each
fishery; and
(3) Description of the methods used to
compile catch data from various catch
data collection methods and how those
data are used to determine the
relationship between total catch at a
given point in time and the ACL for
stocks and stock complexes that require
conservation and management.
(j) Council actions to address
overfishing and rebuilding for stocks
and stock complexes—(1) Notification.
The Secretary will immediately notify
in writing a Regional Fishery
Management Council whenever it is
determined that:
(i) Overfishing is occurring;
(ii) A stock or stock complex is
overfished;
(iii) A stock or stock complex is
approaching an overfished condition; or
(iv) Existing remedial action taken for
the purpose of ending previously
identified overfishing or rebuilding a
previously identified overfished stock or
stock complex has not resulted in
adequate progress.
(2) Timing of actions—(i) If a stock or
stock complex is undergoing
overfishing. Upon notification that a
stock or stock complex is undergoing
overfishing, a Council should
immediately begin working with its SSC
(or agency scientists or peer review
processes in the case of Secretariallymanaged fisheries) to ensure that the
ABC is set appropriately to end
overfishing. Councils should evaluate
the cause of overfishing, address the
issue that caused overfishing, and
reevaluate their ACLs and AMs to make
sure they are adequate.
(ii) If a stock or stock complex is
overfished or approaching an overfished
condition. Upon notification that a stock
or stock complex is overfished or
approaching an overfished condition, a
Council must prepare and implement an
FMP, FMP amendment, or proposed
regulations within two years of
notification, consistent with the
requirements of section 304(e)(3) of the
Magnuson-Stevens Act. Council actions
should be submitted to NMFS within 15
months of notification to ensure
sufficient time for the Secretary to
implement the measures, if approved.
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(3) Overfished fishery. (i) Where a
stock or stock complex is overfished, a
Council must specify a time period for
rebuilding the stock or stock complex
based on factors specified in MagnusonStevens Act section 304(e)(4). This
target time for rebuilding (Ttarget) shall
be as short as possible, taking into
account: the status and biology of any
overfished stock, the needs of fishing
communities, recommendations by
international organizations in which the
U.S. participates, and interaction of the
stock within the marine ecosystem. In
addition, the time period shall not
exceed 10 years, except where biology
of the stock, other environmental
conditions, or management measures
under an international agreement to
which the U.S. participates, dictate
otherwise. SSCs (or agency scientists or
peer review processes in the case of
Secretarial actions) shall provide
recommendations for achieving
rebuilding targets (see MagnusonStevens Act section 302(g)(1)(B)). The
above factors enter into the specification
of Ttarget as follows:
(A) The minimum time for rebuilding
a stock (Tmin). Tmin means the amount of
time the stock or stock complex is
expected to take to rebuild to its MSY
biomass level in the absence of any
fishing mortality. In this context, the
term ‘‘expected’’ means to have at least
a 50 percent probability of attaining the
Bmsy, where such probabilities can be
calculated. The starting year for the Tmin
calculation should be the first year that
the rebuilding plan is expected to be
implemented.
(B) The maximum time for rebuilding
a stock or stock complex to its Bmsy
(Tmax). (1) If Tmin for the stock or stock
complex is 10 years or less, then Tmax
is 10 years.
(2) If Tmin for the stock or stock
complex exceeds 10 years, then one of
the following methods can be used to
determine Tmax:
(i) Tmin plus the length of time
associated with one generation time for
that stock or stock complex.
‘‘Generation time’’ is the average length
of time between when an individual is
born and the birth of its offspring,
(ii) The amount of time the stock or
stock complex is expected to take to
rebuild to Bmsy if fished at 75 percent of
MFMT, or
(iii) Tmin multiplied by two.
(3) When selecting a method for
determining Tmax, a Council must
provide a rationale for its decision based
on the best scientific information
available.
(C) Target time to rebuilding a stock
or stock complex (Ttarget). Ttarget is the
specified time period for rebuilding a
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stock that is considered to be in as short
a time as possible, while taking into
account the factors described in
paragraph (j)(3)(i) of this section. Ttarget
shall not exceed Tmax, and the fishing
mortality associated with achieving
Ttarget is referred to as Frebuild.
(ii) Council action addressing an
overfished fishery must allocate both
overfishing restrictions and recovery
benefits fairly and equitably among
sectors of the fishery.
(iii) For fisheries managed under an
international agreement, Council action
addressing an overfished fishery must
reflect traditional participation in the
fishery, relative to other nations, by
fishermen of the United States.
(iv) Adequate Progress. The Secretary
shall review rebuilding plans at routine
intervals that may not exceed two years
to determine whether the plans have
resulted in adequate progress toward
ending overfishing and rebuilding
affected fish stocks (MSA section
304(e)(7)). Such reviews could include
the review of recent stock assessments,
comparisons of catches to the ACL, or
other appropriate performance
measures. The Secretary may find that
adequate progress is not being made if
Frebuild or the ACL associated with Frebuild
are exceeded, and AMs are not
correcting the operational issue that
caused the overage and addressing any
biological consequences to the stock or
stock complex resulting from the
overage when it is known (see
paragraph (g)(3) of this section). A lack
of adequate progress may also be found
when the rebuilding expectations of a
stock or stock complex are significantly
changed due to new and unexpected
information about the status of the
stock. If a determination is made under
this provision, the Secretary will notify
the appropriate Council and recommend
further conservation and management
measures, and the Council must develop
and implement a new or revised
rebuilding plan within two years (see
MSA sections 304(e)(3) and (e)(7)(B)).
For Secretarially-managed fisheries, the
Secretary would take immediate action
necessary to achieve adequate progress
toward ending overfishing and
rebuilding.
(v) While a stock or stock complex is
rebuilding, revising rebuilding
timeframes (i.e., Ttarget and Tmax) or
Frebuild is not necessary, unless the
Secretary finds that adequate progress is
not being made.
(vi) If a stock or stock complex has not
rebuilt by Tmax, then the fishing
mortality rate should be maintained at
its current Frebuild or 75 percent of the
MFMT, whichever is less, until the
stock or stock complex is rebuilt or the
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Secretary finds that adequate progress is
not being made.
(4) Emergency actions and interim
measures. If a Council is developing a
rebuilding plan or revising an existing
rebuilding plan due to a lack of
adequate progress (see MSA section
304(e)(7)), the Secretary may, in
response to a Council request,
implement interim measures that
reduce, but do not necessarily end,
overfishing (see MSA section 304(e)(6))
if all of the following criteria are met:
(i) The interim measures are needed
to address an unanticipated and
significantly changed understanding of
the status of the stock or stock complex;
(ii) Ending overfishing immediately is
expected to result in severe social and/
or economic impacts to a fishery; and
(iii) The interim measures will ensure
that the stock or stock complex will
increase its current biomass through the
duration of the interim measures.
(5) Discontinuing a rebuilding plan
based on new scientific information. A
Council may discontinue a rebuilding
plan for a stock or stock complex before
it reaches Bmsy, if all of the following
criteria are met:
(i) The Secretary determines that the
stock was not overfished in the year that
the overfished determination (see MSA
section 304(e)(3)) was based on; and
(ii) The biomass of the stock is not
currently below the MSST.
(6) Management measures for
depleted stocks. In cases where an
overfished stock or stock complex is
considered to be ‘‘depleted’’ (see
paragraph (e)(2)(i)(F) of this section), a
Council may identify in its rebuilding
plan additional management measures
or initiatives that could improve the
status of the stock, such as: reevaluating
SDCs to determine if they are
representative of current environmental
conditions, recommending the
restoration of habitat and other
ameliorative programs, identifying
research priorities to improve the
Councils understanding of the
impediments to rebuilding, or
partnering with Federal and state
agencies to address non-fishing related
impacts.
(k) International overfishing. If the
Secretary determines that a fishery is
overfished or approaching a condition
of being overfished due to excessive
international fishing pressure, and for
which there are no management
measures (or no effective measures) to
end overfishing under an international
agreement to which the United States is
a party, then the Secretary and/or the
appropriate Council shall take certain
actions as provided under MagnusonStevens Act section 304(i). The
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Secretary, in cooperation with the
Secretary of State, must immediately
take appropriate action at the
international level to end the
overfishing. In addition, within one year
after the determination, the Secretary
and/or appropriate Council shall:
(1) Develop recommendations for
domestic regulations to address the
relative impact of the U.S. fishing
vessels on the stock. Council
recommendations should be submitted
to the Secretary.
(2) Develop and submit
recommendations to the Secretary of
State, and to the Congress, for
international actions that will end
overfishing in the fishery and rebuild
the affected stocks, taking into account
the relative impact of vessels of other
nations and vessels of the United States
on the relevant stock. Councils should,
in consultation with the Secretary,
develop recommendations that take into
consideration relevant provisions of the
Magnuson-Stevens Act and NS1
guidelines, including section 304(e) of
the Magnuson-Stevens Act and
paragraph (j)(3)(iii) of this section, and
other applicable laws. For highly
migratory species in the Pacific,
recommendations from the Western
Pacific, North Pacific, or Pacific
Councils must be developed and
submitted consistent with MagnusonStevens Reauthorization Act section
503(f), as appropriate.
(3) Considerations for assessing
‘‘relative impact’’. ‘‘Relative impact’’
under paragraphs (k)(1) and (2) of this
section may include consideration of
factors that include, but are not limited
to: Domestic and international
management measures already in place,
management history of a given nation,
estimates of a nation’s landings or catch
(including bycatch) in a given fishery,
and estimates of a nation’s mortality
contributions in a given fishery.
Information used to determine relative
impact must be based upon the best
available scientific information.
(l) Relationship of National Standard
1 to other national standards—General.
National Standards 2 through 10
provide further requirements for
conservation and management measures
in FMPs (see MSA section 301(a)), and
guidelines for these standards are
provided in §§ 600.315 through 600.355.
Below is a description of how some of
the other National Standards intersect
with National Standard 1.
(1) National Standard 2 (see
§ 600.315). Management measures and
reference points to implement NS1 must
be based on the best scientific
information available. When data are
insufficient to estimate reference points
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directly, Councils should develop
reasonable proxies to the extent possible
(also see paragraph (e)(1)(v)(B) of this
section). In cases where scientific data
are severely limited, effort should also
be directed to identifying and gathering
the needed data. SSCs should advise
their Councils regarding the best
scientific information available for
fishery management decisions.
(2) National Standard 3 (see
§ 600.320). Reference points should
generally be specified in terms of the
level of stock aggregation for which the
best scientific information is available
(also see paragraphs (e)(1)(ii) and (iii) of
this section).
(3) National Standard 6 (see
§ 600.335). Councils must build into the
reference points and control rules
appropriate consideration of risk, taking
into account uncertainties in estimating
harvest, stock conditions, life history
parameters, or the effects of
environmental factors.
(4) National Standard 8 (see
§ 600.345). National Standard 8
addresses economic and social
considerations and minimizing to the
extent practicable adverse economic
impacts on fishing communities within
the context of preventing overfishing
and rebuilding overfished stocks as
required under National Standard 1.
Calculation of OY as reduced from MSY
also includes consideration of economic
and social factors, but the combination
of management measures chosen to
achieve the OY must principally be
designed to prevent overfishing and
rebuild overfished stocks.
(5) National Standard 9 (see
§ 600.350). Evaluation of stock status
with respect to reference points must
take into account mortality caused by
bycatch. In addition, the estimation of
catch should include the mortality of
fish that are discarded.
(m) Exceptions to requirements to
prevent overfishing. Exceptions to the
requirement to prevent overfishing
could apply under certain limited
circumstances. Harvesting one stock at
its optimum level may result in
overfishing of another stock when the
two stocks tend to be caught together
(This can occur when the two stocks are
part of the same fishery or if one is
bycatch in the other’s fishery). Before a
Council may decide to allow this type
of overfishing, an analysis must be
performed and the analysis must
contain a justification in terms of overall
benefits, including a comparison of
benefits under alternative management
measures, and an analysis of the risk of
any stock or stock complex falling
below its MSST. The Council may
decide to allow this type of overfishing
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if the fishery is not overfished and the
analysis demonstrates that all of the
following conditions are satisfied:
(1) Such action will result in longterm net benefits to the Nation;
(2) Mitigating measures have been
considered and it has been
demonstrated that a similar level of
long-term net benefits cannot be
achieved by modifying fleet behavior,
gear selection/configuration, or other
technical characteristic in a manner
such that no overfishing would occur;
and
(3) The resulting rate of fishing
mortality will not cause any stock or
stock complex to fall below its MSST
more than 50 percent of the time in the
long term, although it is recognized that
persistent overfishing is expected to
cause the affected stock to fall below its
Bmsy more than 50 percent of the time
in the long term.
■ 4. Section 600.320 is revised to read
as follows:
§ 600.320 National Standard 3—
Management Units.
(a) Standard 3. 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.
(b) General. The purpose of this
standard is to induce a comprehensive
approach to fishery management. The
geographic scope of the fishery, for
planning purposes, should cover the
entire range of the stocks(s) of fish, and
not be overly constrained by political
boundaries. Wherever practicable, an
FMP should seek to manage interrelated
stocks of fish.
(c) Unity of management. Cooperation
and understanding among entities
concerned with the fishery (e.g.,
Councils, states, Federal Government,
international commissions, foreign
nations) are vital to effective
management. Where management of a
fishery involves multiple jurisdictions,
coordination among the several entities
should be sought in the development of
an FMP. Where a range overlaps
Council areas, one FMP to cover the
entire range is preferred. The Secretary
designates which Council(s) will
prepare the FMP (see section 304(f) of
the Magnuson-Stevens Act).
(d) Management unit. The term
‘‘management unit’’ means a fishery or
that portion of a fishery identified in an
FMP as relevant to the FMP’s
management objectives. Stocks in the
fishery management unit are considered
to be in need of conservation and
management (see § 600.305(c)).
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(1) Basis. The 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.
(2) Conservation and management
measures. FMPs should include
conservation and management measures
for that part of the management unit
within U.S. waters, although the
Secretary can ordinarily implement
them only within the EEZ. The
measures need not be identical for each
geographic area within the management
unit, if the FMP justifies the differences.
A management unit may contain stocks
of fish for which there is not enough
information available to specify MSY
and OY or their proxies.
(e) Analysis. An FMP should include
discussion of the following:
(1) The range and distribution of the
stocks, as well as the patterns of fishing
effort and harvest.
(2) Alternative management units and
reasons for selecting a particular one. A
less-than-comprehensive management
unit may be justified if, for example,
complementary management exists or is
planned for a separate geographic area
or for a distinct use of the stocks, or if
the unmanaged portion of the resource
is immaterial to proper management.
(3) Management activities and habitat
programs of adjacent states and their
effects on the FMP’s objectives and
management measures. Where state
action is necessary to implement
measures within state waters to achieve
FMP objectives, the FMP should
identify what state action is necessary,
discuss the consequences of state
inaction or contrary action, and make
appropriate recommendations. The FMP
should also discuss the impact that
Federal regulations will have on state
management activities.
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(4) Management activities of other
countries having an impact on the
fishery, and how the FMP’s
management measures are designed to
take into account these impacts.
International boundaries may be dealt
with in several ways. For example:
(i) By limiting the management unit’s
scope to that portion of the stock found
in U.S. waters;
(ii) By estimating MSY for the entire
stock and then basing the determination
of OY for the U.S. fishery on the portion
of the stock within U.S. waters; or
(iii) By referring to treaties or
cooperative agreements.
■ 5. Section 600.340 is revised to read
as follows:
§ 600.340
Benefits.
National Standard 7—Costs and
(a) Standard 7. Conservation and
management measures shall, where
practicable, minimize costs and avoid
unnecessary duplication.
(b) Alternative management
measures. Management measures
should not impose unnecessary burdens
on the economy, on individuals, on
private or public organizations, or on
Federal, state, or local governments.
Factors such as fuel costs, enforcement
costs, or the burdens of collecting data
may well suggest a preferred alternative.
(c) Analysis. The supporting analyses
for FMPs should demonstrate that the
benefits of fishery regulation are real
and substantial relative to the added
research, administrative, and
enforcement costs, as well as costs to
the industry of compliance. In
determining the benefits and costs of
management measures, each
management strategy considered and its
impacts on different user groups in the
fishery should be evaluated. This
requirement need not produce an
elaborate, formalistic cost/benefit
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analysis. Rather, an evaluation of effects
and costs, especially of differences
among workable alternatives, including
the status quo, is adequate. If
quantitative estimates are not possible,
qualitative estimates will suffice.
(1) Burdens. Management measures
should be designed to give fishermen
the greatest possible freedom of action
in conducting business and pursuing
recreational opportunities that are
consistent with ensuring wise use of the
resources and reducing conflict in the
fishery. The type and level of burden
placed on user groups by the regulations
need to be identified. Such an
examination should include, for
example: Capital outlays; operating and
maintenance costs; reporting costs;
administrative, enforcement, and
information costs; and prices to
consumers. Management measures may
shift costs from one level of government
to another, from one part of the private
sector to another, or from the
government to the private sector.
Redistribution of costs through
regulations is likely to generate
controversy. A discussion of these and
any other burdens placed on the public
through FMP regulations should be a
part of the FMP’s supporting analyses.
(2) Gains. The relative distribution of
gains may change as a result of
instituting different sets of alternatives,
as may the specific type of gain. The
analysis of benefits should focus on the
specific gains produced by each
alternative set of management measures,
including the status quo. The benefits to
society that result from the alternative
management measures should be
identified, and the level of gain
assessed.
[FR Doc. 2015–00586 Filed 1–15–15; 4:15 pm]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 80, Number 12 (Tuesday, January 20, 2015)]
[Proposed Rules]
[Pages 2785-2811]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00586]
[[Page 2785]]
Vol. 80
Tuesday,
No. 12
January 20, 2015
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 600
Magnuson-Stevens Act Provisions; National Standard Guidelines;
Proposed Rule
Federal Register / Vol. 80 , No. 12 / Tuesday, January 20, 2015 /
Proposed Rules
[[Page 2786]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 120416013-4641-02]
RIN 0648-BB92
Magnuson-Stevens Act Provisions; National Standard Guidelines
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes revisions to the guidelines for National
Standards (NS) 1, 3, and 7 of the Magnuson-Stevens Fishery Conservation
and Management Act (MSA) and to the General section of the NS
guidelines. This action is necessary to improve and clarify the
guidance within the NS guidelines. The purpose of this action is to
facilitate compliance with requirements of the MSA to end and prevent
overfishing, rebuild overfished stocks and achieve optimum yield (OY).
DATES: Written comments must be received on or before June 30, 2015.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2012-0059, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to:
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0059, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Wesley Patrick, National
Marine Fisheries Service, NOAA, Office of Sustainable Fisheries, 1315
East-West Highway, Room 13357, Silver Spring, MD 20910.
Fax: 301-713-1193; Attn: Wesley Patrick.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only. Copies of
supporting documents can be obtained from Wesley Patrick (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Wesley Patrick, 301-427-8563
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Purpose and Overview of Proposed Revisions
II. Background
III. Goals and Objectives of Fishery Management Plans
IV. Stocks That Require Conservation and Management
V. Data Limited Stocks
VI. Stock Complexes and Indicator Stocks
VII. Aggregate Maximum Sustainable Yield (MSY) Estimates
VIII. Developing a Definition for ``Depleted''
IX. Developing an Alternative Definition of Overfishing To Include a
Multi-Year Approach
X. Revising Optimum Yield (OY) Guidance
XI. Acceptable Biological Catch and Annual Catch Limit Guidance
XII. Accountability Measures
XIII. Establishing Annual Catch Limit (ACL) and Accountability
Measure (AM) Mechanisms
XIV. Adding Flexibility in Rebuilding
XV. Recreational Fisheries
XVI. Republishing Codified Text in its Entirety
XVII. References Cited
XVIII. Classification
I. Purpose and Overview of Proposed Revisions
The National Marine Fisheries Service (NMFS) fulfills the
requirements of section 301(b) of the Magnuson-Stevens Fishery
Conservation and Management Act (MSA)--``The Secretary shall establish
advisory guidelines (which shall not have the force and effect of law),
based on the national standards, to assist in the development of
fishery management plans''--with its National Standard (NS) guidelines
that appear at 50 CFR 600.305 through 600.355. NMFS is proposing
revisions to the General section of the NS guidelines and the
guidelines for NS1, NS3, and NS7. Since 2007, fisheries management
within the U.S. has experienced many changes, in particular the
development and implementation of annual catch limits (ACLs) and
accountability measures (AMs) under all fishery management plans to end
and prevent overfishing. Based on this experience, NMFS believes the NS
guidelines can be improved to enhance the utility of the guidelines for
managers and the public. The objective of these proposed revisions is
to improve and streamline the NS1 guidelines, address concerns raised
during the implementation of ACLs and AMs, and provide flexibility
within current statutory limits to address fishery management issues.
The purpose of this action is to facilitate compliance with
requirements of the MSA, 16 U.S.C. 1801 et seq., to end and prevent
overfishing, rebuild overfished stocks, and achieve optimum yield (OY).
The proposed revisions would not establish new, specific requirements
or require Fishery Management Councils (Councils) to revise their
Fishery Management Plans (FMPs) to comply with the MSA. Rather, the
proposal offers additional clarity and potential alternatives to
highlight the current flexibility in meeting the MSA's current
mandates.
Proposed revisions to the General section of the NS guidelines and
the guidelines for NS1, NS3, and NS7 include the following: (1) Add a
recommendation that Councils reassess the objectives of their fisheries
on a regular basis; (2) consolidate and clarify guidance on identifying
whether stocks require conservation and management; (3) provide
additional flexibility in managing data limited stocks; (4) revise the
guidance on stock complexes to encourage the use of indicator stocks;
(5) describe how aggregate maximum sustainable yield (MSY) estimates
can be used; (6) propose a definition for a depleted stock; (7) provide
increased stability in fisheries by providing guidance on the use of
multi-year overfishing determinations; (8) revise the guidance on
optimum yield (OY) to improve clarity and better describe the role of
OY under the Annual Catch Limit (ACL) framework; (9) clarify the
guidance on acceptable biological catch (ABC) control rules, describe
how the ABC control rules can allow for phase-in adjustments to ABC,
and allow for carry-over of all or some of an unused portion of the
ACL; (10) revise the guidance on accountability measures (AMs) to
improve clarity; (11) clarify the guidance on establishing ACL and AM
mechanisms in FMPs; and (12) provide flexibility in rebuilding stocks.
Further explanations of the major revisions that are being proposed,
and the rationale for those revisions, are provided below.
II. Background
Section 301(a) of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) contains 10 national standards for fishery
conservation and management. Any FMP prepared under the MSA, and any
regulation promulgated pursuant to the
[[Page 2787]]
MSA to implement any such plan, must be consistent with these national
standards. National Standard 1 (NS1) of the MSA states that
conservation and management measures shall prevent overfishing while
achieving, on a continuing basis, the OY from each fishery for the U.S.
fishing industry. National Standard 3 (NS3) of the MSA states that, 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. National Standard 7 (NS7)
of the MSA states that conservation and management measures shall,
where practicable, minimize costs and avoid unnecessary duplication.
Guidelines for NS1, NS3, and NS7 were first published in 1977 (42
FR 34450, July 5, 1977) and are codified in 50 CFR 600.310, 600.320,
and 600.340, respectively. NMFS last revised the NS1 guidelines on
January 16, 2009, to provide guidance for the implementation of
requirements enacted by the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006 for annual catch limits (ACLs)
and accountability measures (AMs) to end and prevent overfishing (74 FR
3178). The NS3 and NS7 guidelines were last revised in 1998 (63 FR
24212, May 1, 1998).
From 2007 to 2012, the 46 Federal FMPs have been amended to
implement ACLs and AMs to end and prevent overfishing. This has been a
transformative process for Federal fisheries; before the ACL
requirement, some U.S. fisheries were managed under a total allowable
catch system, but the majority were managed through effort controls
(e.g., days at sea, closures) or without explicit accountability.
Due to a number of concerns raised during the implementation of
ACLs and AMs, NMFS published an Advance Notice of Proposed Rulemaking
(ANPR) on May 3, 2012, (77 FR 26238) to solicit public comments on
potential adjustments to the NS1 guidelines. The comment period on the
ANPR was extended once (77 FR 39459, July 3, 2012), and then reopened
(77 FR 58086, Sept. 19, 2012), and ended on October 12, 2012. In March
2013, NMFS published a report that summarizes the comments received on
the ANPR; the report is available online at: https://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html.
In addition to the ANPR, issues related to the national standard
guidelines were discussed at other public forums. In May 2013, NMFS
sponsored the Managing Our Nation's Fisheries 3 conference in
Washington, DC. The conference focused on identifying ways to advance
sustainability within U.S. fisheries. The discussions at the conference
addressed MSA reauthorization issues, as well as adjustments to current
management (including potential revisions to the NS1 guidelines) that
do not require legislation to implement. More information about the
conference is available here: https://www.managingfisheries.org/. In
September 2013, in response to a 2010 request from Congress, the
National Research Council released its report titled ``Evaluating the
Effectiveness of Fish Stock Rebuilding Plans in the United States.''
This included an evaluation of success in stock rebuilding, an
investigation of the effects of uncertainty, and identification of
means to better account for social, economic and ecosystem factors in
the rebuilding plans. The purpose of the report was to help NOAA and
the regional Councils better construct efficient and effective
rebuilding plans. More information about the report is available here:
https://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/rebuilding.htm.
In December 2013, the Marine Fisheries Advisory Committee
Recreational Fishing Group presented NMFS with a white paper on
recreational fisheries perspectives. The paper included recommendations
for possible changes to the MSA, as well as possible changes to fishing
regulations and policy. The full report can be found here: https://www.nmfs.noaa.gov/sfa/management/recreational/2014_summit/pre-summit_resources.html. In February 2014, the Commission on Saltwater
Recreational Fisheries Management published its report, A Vision for
Managing America's Saltwater Recreational Fisheries, providing
recommendations for management measures to address the needs of the
recreational community (Morris and Deal 2014). The report can be found
here: https://asafishing.org/uploads/Marine_Visioning_Report_January_2014.pdf. Lastly, NMFS provided updates
on the NS1 guidelines at Council Coordination Committee (CCC) meetings
in 2013 and 2014. The CCC consists of the chairs, vice chairs, and
executive directors from each regional Council, or other staff, as
appropriate. This committee meets twice each year to discuss issues
relevant to all Councils, including issues related to the
implementation of the MSA. More information about CCC meetings can be
found here: https://www.nmfs.noaa.gov/sfa/management/councils/ccc/ccc.htm.
III. Goals and Objectives of Fishery Management Plans
The General section of the NS guidelines, 50 CFR 600.305, describes
the purpose of the NS guidelines and the importance of identifying
fishery management objectives within a FMP, and defines words that are
used throughout the NS guidelines. This section was last revised in
1998 (63 FR 24211, May 1, 1998). More recently, stakeholders, Councils,
and NMFS have recognized the importance of re-evaluating the management
objectives of FMPs on a regular basis, because the needs of the fishery
may change over time. Examples of re-evaluations include Council
discussions over allocation of catch among sectors of the fishery, and
visioning projects that several Councils have initiated to identify
long-term objectives for its fisheries. Measureable goals and
objectives are an integral part of the adaptive fishery management
system used in the United States, where such metrics are used to
measure the performance of the management actions taken by the Councils
(see, e.g., Punt 2006; Hilborn 2007; Levin et al. 2009). To highlight
the importance of having well-defined management objectives, and as
part of NOAA's effort to carry out the President's directive in
Executive Order 13563 to conduct retrospective analysis of existing
significant regulations, NMFS proposes to add a statement to Sec.
600.305(b) to recommend that Councils should reassess the objectives of
their fisheries on a regular basis to reflect the changing needs of the
fishery over time (see Sec. 600.305(b)(2) of this proposed action).
Similarly, NMFS proposes to recommend that Councils consider the
management objectives of their FMPs and their management framework to
determine the relevant factors to determine OY (see section X of the
preamble and Sec. 600.310(e)(3)(iii)(B) of this proposed action). NMFS
chose not to proscribe a set time period for ``a regular basis'' in
order to provide the Councils the flexibility to determine this time
frame themselves; although no time frame is proscribed, Councils should
provide notice to the public of their expected schedule for review.
Given the scope and complexity of such a task, NMFS does not expect
Councils to reassess their FMP objectives every few years; rather, some
longer time frame which staggers the review of each FMP may be more
appropriate. For example, limited access privilege programs (a type of
catch share program) must be formally
[[Page 2788]]
reviewed 5 years after implementation and at least every 7 years
thereafter. See 16 U.S.C. 1853a(c)(1)(G).
IV. Stocks That Require Conservation and Management
The MSA provides for Federal fishery management authority in the
U.S. exclusive economic zone (EEZ), 16 U.S.C. 1801(b)(1), and provides
that each Council shall prepare an FMP for each fishery under its
authority that requires conservation and management. Id. section
1852(h)(1). In recent years, NMFS has received multiple legal
challenges regarding which stocks should or should not be managed under
an MSA FMP. NMFS does not believe that MSA section 302(h)(1) on its
face directs preparation of an FMP for all fisheries in the EEZ and
other MSA provisions support this view. See, e.g., id. section
1856(a)(3)(A) (authorizing a State to regulate a fishing vessel outside
the boundaries of the State in certain circumstances, including when
there is no Federal FMP or other applicable Federal regulations), and
id. section 1881(a)(1)-(2) (authorizing information collection for
purpose of ``determining whether a fishery is in need of
management.''). Legislative history for section 302(h)(1) affirms that
``Councils are not required to prepare FMPs for every fishery within
their geographical areas of authority.'' See House Rep. No. 97-549, on
insertion of language ``in need of conservation and management'' as
part of the 1982 amendment of MSA reprinted in 1983 U.S.C.C.A.N. at
4339, (May 17, 1982).
The question is how a Council should determine whether a fishery
requires or is in need of conservation and management. The MSA and
current NS guidelines indirectly touch upon this issue in several
places, but NMFS believes that consolidating, streamlining, and
clarifying guidance in the General section of the NS guidelines would
be beneficial. NMFS believes that it is appropriate that guidance on
which stocks need conservation and management should be contained
separately from the 10 National Standard guidelines as it would be the
basis for implementation of all the National Standards.
MSA section 302(h)(1) and other related provisions refer to a
``fishery'' and ``conservation and management.'' A ``fishery'' is ``(A)
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 (B) any fishing for such stocks.'' 16 U.S.C.
1802(13). The first part of the definition is nearly identical to the
MSA's definition for ``stock of fish''--``species, subspecies,
geographical grouping, or other category of fish capable of management
as a unit.'' Id. section 1802(42). In other words, a ``fishery''
includes stocks of fish, as well as the people, vessels, gear, and
other infrastructure that is designed to capture and process the stocks
of fish. ``Conservation and management'' includes ``all of the rules,
regulations, conditions, methods, and other measures (A) which are
required to rebuild, restore, or maintain, and which are useful in
rebuilding, restoring, or maintaining, any fishery resource and the
marine environment; and (B) which are designed to assure that-- (i) a
supply of food and other products may be taken, and that recreational
benefits may be obtained, on a continuing basis; (ii) irreversible or
long-term adverse effects on fishery resources and the marine
environment are avoided; and (iii) there will be a multiplicity of
options available with respect to future uses of these resources.'' Id.
section 1802(5).
When developing an FMP, a Council must, among other things,
describe the fishery (e.g. species of fish involved) in the FMP. Id.
section 1853(a)(2). An FMP must also be consistent with the 10 National
Standards, id. section 1851(a), and contain conservation and management
measures that are ``necessary and appropriate for the conservation and
management of the fishery to prevent overfishing and rebuild overfished
stocks, and to protect, restore, and promote the long-term health and
stability of the fishery.'' Id. section 1853(a)(1)(A).
The addition of MSA section 303(a)(15), which requires that all
FMPs establish mechanisms for specifying ACLs and AMs, led to the most
recent revision of the NS1 guidelines in 2009 (74 FR 3178, Jan. 16,
2009). The 2009 NS1 guidelines interpreted this requirement to mean
that stocks and stocks complexes ``in the fishery'' need ACLs and AMs.
The 2009 NS1 guidelines explained that as a default, all stocks in an
FMP are considered ``in the fishery'' unless the Council identifies
them as an ecosystem component (EC) species. FMPs are required to
provide the mandatory measures described in MSA section 303(a),
including ACLs and AMs, for only those ``stocks in the fishery.''
Although NMFS' interpretation has been that ``stocks in the fishery''
are in need of ``conservation and management,'' the NS1 guidelines do
not specifically address the determination of whether a stock is in
need of conservation and management.
The NS3 Guidelines address structuring appropriate management units
for stocks and stock complexes and instruct that the 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. 50 CFR 600.320(d)(1). The NS3
guidelines also state that a management unit may contain stocks for
which data is not available to specify MSY and OY or to establish
management measures, so that data on those stocks may be collected.
The NS7 guidelines state that MSA requires Councils to prepare FMPs
only for overfished fisheries and for other fisheries where regulation
would serve some useful purpose and where the present or future
benefits of regulation would justify the costs. 50 CFR 600.340(b)(2).
The NS7 Guidelines provide seven criteria for determining whether a
fishery needs management through regulations implementing an FMP. Id.
In this action, NMFS proposes a new section specifically regarding
``stocks that require conservation and management'' (see proposed Sec.
600.305(c)). Any stocks that are predominately caught in Federal waters
and are overfished or subject to overfishing, or likely to become
overfished or subject to overfishing, would be considered to require
conservation and management and therefore must be included in an FMP
(see proposed Sec. 600.305(c)(1)). See 16 U.S.C.1853(a)(1)(A)
(requiring that FMPs contain conservation and management measures that
are necessary ``to prevent overfishing and rebuild overfished
stocks''). Proposed sections 600.305(c)(1)(i)-(x) set forth factors \1\
to be considered in all other situations when determining a
conservation and management need:
---------------------------------------------------------------------------
\1\ The list of factors are based on concepts from the current
NS1 guidelines (see Sec. 600.305(c)(2)(ii) and (iv) of this
proposed action), the NS7 guidelines (see Sec. 600.305(c)(2)(iii),
(vi)-(x) of this proposed action), the MSA definition of
conservation and management (see Sec. 600.305(c)(2)(i) of this
proposed action), and other provisions of the MSA (see Sec.
600.305(c)(2)(v) of this proposed action).
---------------------------------------------------------------------------
(1) The stock is an important component of the marine environment.
(2) The stock is caught by the fishery.
(3) Whether an FMP can improve or maintain the condition of the
stocks.
(4) The stock is a target of a fishery.
(5) The stock is important to commercial, recreational, or
subsistence users.
(6) The fishery is important to the Nation and to the regional
economy.
(7) The need to resolve competing interests and conflicts among
user
[[Page 2789]]
groups and whether an FMP can further that resolution.
(8) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(9) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(10) The extent to which the fishery could be or is already
adequately managed by states, by state/Federal programs, by Federal
regulations pursuant to other FMPs or international commissions, or by
industry self-regulation, consistent with the policies and standards of
the Magnuson-Stevens Act.
When considering adding a new stock to an FMP or keeping an
existing stock within an FMP, Councils should prepare a thorough
analysis of the factors, and any additional considerations that may be
relevant to the particular stock. No single factor is dispositive, but
Councils should consider weighting the factors as follows. Factors (i-
iii) should be considered first, as they address maintaining a fishery
resource and the marine environment. See section 1802(5)(A). These
factors weigh in favor of including a stock in an FMP. Councils should
next consider factors (iv-ix), which set forth key economic, social,
and other reasons contained within the MSA for an FMP action. See 16
U.S.C. 1802(5)(B). Regardless of whether any of the first nine factors
indicates a conservation and management need, a Council should consider
factor (x) before deciding to include or maintain a stock in an FMP. In
many circumstances, adequate management of a fishery by states, state/
Federal programs, or another Federal FMP would weigh heavily against a
Federal FMP action. See, e.g., 16 U.S.C. 1851(a)(7); 1856(a)(3). In
evaluating the above criteria, a Council should consider the specific
circumstances of a fishery, based on the best scientific information
available; to determine whether there are biological, economic, social
and/or operational concerns that can be addressed by Federal
management.
For stocks that do not require conservation and management,
consistent with the current NS1 guidelines at 50 CFR
600.310(d)(5)(iii), proposed Sec. 600.305(c)(3) would allow councils
to continue to include such stocks in FMPs as ecosystem component (EC)
species to collect data, minimize bycatch and bycatch mortality
consistent with NS9, protect their associated role in the ecosystem, or
for other reasons. See also 16 U.S.C. 1853(b)(12) (providing Councils
the discretion to ``include management measures in the plan to conserve
target and non-target species and habitats, considering the variety of
ecological factors affecting fishery populations'').
Consistent with the current NS1 guidelines at 50 CFR 600.310(d)(7),
proposed Sec. 600.305(c)(4) would continue to provide that, where
stocks may be identified in more than one FMP, Councils should choose
which FMP will be the primary FMP in which reference points for the
stock are established. In other FMPs, the stock may be identified as
``other managed stocks'' and management measures that are consistent
with the objectives of the primary FMP can be established. Proposed
Sec. 600.305(c)(5) provides that Councils should, periodically, review
their FMPs and the best scientific information available and determine
if stocks are appropriately identified and if the FMP is meeting the
conservation and management needs of their fisheries.
Because proposed Sec. 600.305 consolidates text from several NS
guidelines provisions, NMFS would make the following edits for
consistency or to eliminate duplication:
Move the definition of ``target stock'' from the current
NS1 guidelines to the general definitions at proposed Sec.
600.305(d)(11), and remove the definition of ``stock and stock
complexes'' at Sec. 600.305(c)(12).
Remove the description of and use of the terms ``in the
fishery'' and remove the criteria for ``ecosystem component species''
in the NS1 guidelines (see Sec. 600.310 of this proposed action).
Consistent with proposed Sec. Sec. 600.305(c)(1)-(5),
revise the NS1 guidelines at proposed Sec. 600.310(d)(1) to state that
stocks in need of conservation and management must have ACLs, other
reference points, and accountability measures; but that other stocks
identified within an FMP (i.e., ecosystem component species and stocks
primarily managed under another FMP) do not require these measures.
Revise the NS3 guidelines to specify that stocks in the
``management unit'' are considered to require conservation and
management (see Sec. 600.320(d) of this proposed action).
Remove current NS3 guidelines text at Sec.
600.320(d)(1)(i)-(vi) which provides some cursory examples of ways to
organize a management unit because proposed Sec. 600.305(c)(1) now
sets forth the factors to consider when deciding whether stocks require
conservation and management.
Revise current NS3 guidelines text at Sec. 600.320(d)(2),
which state that a management unit may contain, in addition to
regulated species, stocks of fish which there is not enough information
available to specify MSY and OY, or to establish management measures,
so that data for one of these species may be collected under the FMP.
The new guidelines would state that a management unit may contain
stocks of fish for which there is not enough information available to
specify MSY and OY or their proxies. Even if data are not available to
specify MSY and OY or their proxies, that is not a reason to determine
that a stock does not require conservation and management.
Remove Sec. 600.340(b) of the current NS7 guidelines as
the majority of that guidance has been captured in the description of
factors to consider under proposed Sec. 600.305(c).
NMFS believes that the proposed revisions to Sec. 600.305 and the
NS1, NS3, and NS7 guidelines will not require Councils to revise their
existing FMPs. NMFS is aware that Councils have identified stocks in
their FMPs as ``management unit species'' or ``stocks in the fishery.''
Councils can still continue to use those terms and NMFS presumes that
the stocks that have been identified as ``management unit species'' or
``stocks in the fishery'' are stocks that are in need of conservation
and management and are required to have ACLs, other reference points,
and AMs as described in the proposed revisions to the NS1 guidelines
(see Sec. 600.310(d)(1) of this proposed action) unless the two
statutory exceptions apply (see Sec. 600.310(h) of this proposed
action).
V. Data Limited Stocks
Establishing ACLs for data-limited stocks can be challenging. In
data-limited situations there remains a high degree of uncertainty in
determining the appropriate catch level for the fishery, leading some
to believe that ACLs for data-limited stocks are overly restrictive,
and others to argue that they should be reduced further to limit the
chance of overfishing. NMFS continually strives to advance the science
that informs fisheries management. Over time, scientific information
and stock assessment methods have improved, and NMFS has increased the
number of stocks with stock assessments. However, NMFS acknowledges
that the status of many stocks is unknown. Since passage of the ACL
requirements, scientists have developed tools to evaluate and manage
data-limited stocks. Some include catch based methods, depletion based
methods, or abundance based methods (Carruthers et al. 2014).
[[Page 2790]]
MSA section 303(a)(3) requires that FMPs assess and specify MSY.
NMFS acknowledges that it may not be possible, based on the best
scientific information available, to estimate MSY (as defined in the
NS1 guidelines at Sec. 600.310(e)(1)(i)) or MSY based proxies for some
stocks. In such instances, proposed Sec. 600.310(e)(2)(ii) provides
that when data are not available to specify status determination
criteria (SDCs) based on MSY or MSY proxies, alternative types of SDCs
that promote sustainability of the stock or stock complex can be used.
NMFS proposes adding to the examples provided for circumstances that
may not fit the standard approaches for establishing reference points
pursuant to the NS1 guidelines to address situations where data are not
available to either set reference points based on MSY or MSY proxies,
or manage to reference points based on MSY or MSY proxies (see Sec.
600.310(h)(2) of this proposed action). However, note that Sec.
600.310(h)(2) does not provide an exemption from any statutory
requirements, including the requirement to establish ACLs; rather, it
provides flexibility in the application of the NS1 guidelines. NMFS
notes that existing Sec. 600.310(h)(3) describes that one of the
limited circumstances that may not fit the standard approaches to
specification of reference points is harvests from aquaculture
operations (e.g., Gulf of Mexico Aquaculture FMP).
VI. Stock Complexes and Indicator Stocks
Stocks that require conservation and management can be grouped into
stocks complexes and managed within a FMP. Stocks may be grouped into
complexes for various reasons. For example, stock complexes may be
useful tools when stocks in a multispecies fishery cannot be targeted
independent of one another, when there is insufficient data to measure
a stock's status relative to its SDC, or when it is not feasible for
fishermen to distinguish individual stocks among their catch. In 2009,
the NS1 guidelines defined stock complexes to mean a group of stocks
that are sufficiently similar in geographic distribution, life history,
and vulnerabilities to the fishery such that the impact of management
actions on the stocks is similar. 50 CFR 600.310(d)(8). However, this
definition potentially limits the applicability of stock complexes in
many of the circumstances in which they may be most useful, such as
situations where stocks in a multispecies fishery cannot be targeted
independent of one another, or when it is not feasible for fishermen to
distinguish individual stocks among their catch. Under these
circumstances, stock complexes may not have similar life histories and
vulnerabilities. To resolve this issue, NMFS is proposing to define
stock complex more generally as a tool to manage groups of stocks
within a FMP (see Sec. 600.310(d)(2) of this proposed action) with
consideration of geographic distribution, life history characteristics,
and vulnerabilities to fishing pressure such that the impact of
management actions on the stocks is similar (see Sec. 600.310(d)(2)(i)
of this proposed action).
Stock complexes are often created when there is not enough
information to set reference points at the individual stock level.
Therefore, the status of individual stocks within a complex is
generally unknown. The current NS1 guidelines note that stock complexes
can be comprised of many different combinations of indicator stocks and
other stocks. In practice, few stock complexes are managed with
indicator stocks. One reason for the dearth of indicator stocks is
that, once a stock within a complex is assessed, it is often taken out
of the complex and managed separately, rather than serving as the
indicator for the complex. The current NS1 guidelines, while endorsing
the use of indicator stocks, may be inadvertently contributing to the
removal of assessed stocks from complexes by stating that MSY should be
estimated on a stock-by-stock basis, whenever possible. Sec. Sec.
600.310(d)(8) and (e)(1)(iii). To encourage the use of indicator stocks
in stock complexes, NMFS is proposing to delete the afore-mentioned
text in Sec. Sec. 600.310(d)(8) and (e)(1)(iii). The proposed NS1
guidelines state that, where practicable, stock complexes should be
comprised of one or more indicator stocks, each of which has SDC and
ACLs (see Sec. 600.310(d)(2)(ii)(B) of the proposed rule). These
revisions are intended to reduce the practice of removing a stock from
a complex once it has been assessed, so that the assessed stock can be
used as an indicator for the complex, if it is practicable to do so.
The revisions also help alleviate some of the discontinuities in how
data-limited stock complexes are managed compared to data-rich multi-
species fisheries. In mixed-stock fisheries, biological reference
points are often specified for several of the stocks within the fishery
and management measures are developed to prevent overfishing of each
stock. Management measures for stocks that have lower productivities
will restrict fishing effort for the overall mixed-stock fishery to
some extent. However, in stock complex management the status of stocks
within a complex is generally unknown and complexes often lack
indicator species. Therefore, it possible that stocks that have lower
productivities in the complex may experience occasional overfishing,
since the status of these stocks are unknown. Encouraging the use of
indicator species will likely reduce the probability that stocks within
the complex could experience overfishing or become overfished. This is
because the use of an indicator enhances the ability to discern the
status of the complex, especially if the complex is of similar
geographic distribution, life history, and vulnerabilities to the
fishery such that the impact of management actions on the stocks is
similar.
VII. Aggregate Maximum Sustainable Yield (MSY) Estimates
MSA section 303(a)(3) requires that each FMP include an estimate of
MSY and OY for the fishery. The current NS1 guidelines do not provide
guidance on describing MSY at the fishery level, but encourage
specifying MSY at the stock level, while allowing it to be set for
stock complexes. The current NS1 guidelines state that OY can be
specified for a stock, stock complex, or fishery. In practice, Councils
typically set MSY and other reference points for individual stocks when
the data is available to do so. In data-limited situations, when it is
not possible to specify single species reference points, stocks are
often grouped into complexes.
A growing body of literature on ecosystem-based fisheries
management has emphasized the importance of accounting for species
interactions and environmental variability within fisheries management.
Councils are increasingly working toward developing ecosystem-based
fisheries management programs. These ecosystem-based considerations can
be incorporated in a number of ways, including single species stock
assessments and models that estimate MSY for an aggregate group of
stocks. The phrase ``aggregate group of stocks'' refers to a group of
stocks, such as: a stock complex; all of the stocks caught within a
fishery; or some sub-component of a fishery. To further facilitate the
Councils' use of ecosystem approaches to management, the proposed
revisions to the NS1 guidelines introduce the concept of aggregate MSY
estimates and describe how the concept can be used as an optional tool
in fisheries management. In this action, NMFS would revise Sec.
600.310(e)(1) to state that MSY may be specified for the fishery as a
whole. Proposed Sec. 600.310(e)(1)(iv) further
[[Page 2791]]
provides that estimating aggregate level MSY for a group of stocks can
be done using models that account for multi-species interactions,
composite properties for a group of similar species, common biomass
(energy) flow and production patterns, or other relevant factors. In
addition, NMFS proposes adding a paragraph to the OY section of the NS1
guidelines to note that aggregate level MSY estimates can be used as a
basis for specifying OY for a fishery (see Sec. 600.310(e)(3)(iv)(C)
of this proposed action). When aggregate level MSY is estimated, single
stock MSY estimates can be used to inform single stock management. For
example, OY could be specified for a fishery, while other reference
points are specified for individual stocks in order to prevent
overfishing on each stock within the fishery. Lastly, NMFS proposes to
encourage the incorporation of environmental information into stock
assessments by noting that environmental information (e.g., salinity,
temperature), in addition to ecological information (e.g., predator-
prey interactions), should be taken into account, to the extent
practicable, when assessing stocks and specifying MSY (see Sec.
600.310(e)(1)(v)(C) of this proposed action).
VIII. Developing a Definition for ``Depleted''
The MSA defines the terms overfished and overfishing together as
``a rate or level of fishing mortality that jeopardizes the capacity of
a fishery to produce the MSY on a continuing basis.'' 16 U.S.C.
1802(34). The NS1 guidelines define overfishing and overfished
separately, where the term ``overfishing'' refers to the fishing
mortality rate or total catch, and the term ``overfished'' refers to a
biomass condition. 50 CFR 600.310(e)(2)(i)(B) and (E). The NS1
overfished definition, unlike the statutory definition, gives no
consideration to the ``rate or level of fishing mortality'' when
determining if a stock is overfished. Rather the criteria to determine
an overfished status, called the minimum stock size threshold (MSST),
is defined as the level of biomass below which the stock or stock
complex is considered to be overfished. Therefore, a stock may be
determined to be overfished when overfishing has not occurred.
Stakeholders have noted that the term ``overfished'' implies that
fishing is the sole cause for a decline in stock biomass, when factors
such as habitat and other environmental conditions may bear greater
responsibility for the stock's biomass decline. Similarly, the 2013 NRC
report recognized that the rate at which a fish stock rebuilds depends
on ecological and other environmental conditions such as climate
change, in addition to the fishing-induced mortality. However,
separating out the impacts of environmental change from the impacts of
fishing on a stock is a difficult task.
To address these concerns, NMFS proposes adding the term
``depleted'' to the NS1 guidelines to describe those stocks whose
biomass has declined as a result of habitat and other environmental
conditions, as opposed to fishing pressure. The proposed revision to
the guidelines state that an overfished stock or stock complex is
considered depleted when it has not experienced overfishing at any
point over a period of two generation times of the stock and its
biomass has declined below MSST, or when a rebuilding stock or stock
complex has reached its targeted time to rebuild and the stock's
biomass has shown no significant signs of growth despite being fished
at or below catch levels that are consistent with the rebuilding plan
throughout that period (see Sec. 600.310(e)(2)(i)(F) of this proposed
action). The time periods chosen (i.e., two generation times and
targeted time to rebuild) were chosen because: (1) They will scale with
the productivity of the stock rather than being a fixed time period
that is applied to all stocks, and (2) they are of a sufficient time
period to allow fisheries scientists to easily separate out the impacts
of environmental change from the impacts of fishing on a stock, given
the requirements of not overfishing or exceeding catch levels that are
consistent with the rebuilding plan during those time periods.
Rebuilding plans would still be required for depleted stocks and
Councils could consider additional measures for these stocks such as a
re-evaluation of their SDCs to determine if they are representative of
the current environmental conditions, restoration of habitat,
identification of research priorities, or partnerships with other
agencies to address non-fishing related impacts (see Sec.
600.310(j)(6) of this proposed action).
Additionally, NMFS proposes minor revisions to the definitions of
``overfished'' and ``MSST'' to improve clarity and reduce redundancy,
and to clearly show that the MSST is a reference point used to
determine if a stock is overfished (see Sec. 600.310(e)(2)(i)(G) of
this proposed action). These revisions together will not result in any
change to how the terms `overfished' and `MSST' are used; the revisions
are proposed only to improve clarity in the definitions.
IX. Developing an Alternative Definition of Overfishing To Include a
Multi-Year Approach
The MSA defines ``overfishing'' as a ``rate or level of fishing
mortality that jeopardizes the capacity of a fishery to produce the MSY
on a continuing basis.'' 16 U.S.C. 1802(34). The MSA does not specify a
timeframe for determining overfishing, but the current NS1 guidelines
state that overfishing should be determined by comparing annual rates
of fishing mortality (F) to the maximum fishing mortality threshold
(MFMT) or annual catch to the overfishing limit (OFL). 50 CFR
600.310(e)(2)(i)(B)-(C). In either case, under the current guidelines,
overfishing determinations are made for the most recent year for which
there is information. For example, if the F-based approach is used, the
last available year of data in a stock assessment will be used to
determine whether a stock will be declared subject to overfishing.
NMFS first adopted an annual approach to overfishing in its 1998
revision to the NS Guidelines. See 63 FR 24212, May 1, 1998. In those
revisions, NMFS required Councils to establish status determination
criteria for determining overfishing; in particular, NMFS required the
establishment of a MFMT. Fishing in excess of the MFMT for a period of
1 or more years would constitute overfishing (63 FR 24230). Prior to
these revisions, NMFS had deliberately chosen not to ``mandate a
particular form for all specific overfishing definitions,'' leaving it
to the discretion of the Councils to decide how to determine if
overfishing was occurring. See 54 FR 30826, 30829 (response to comment
7), July 24, 1989. NMFS based the decision to take a more prescriptive
approach in 1998 on the legislative changes made by Congress in the
1996 amendments to the MSA, which NMFS viewed as changing the statute's
emphasis on and timeframe for addressing overfishing. See 63 FR 24215
(response to comment 2), May 1, 1998. When Congress amended the MSA in
2007 to add new ACL and AM requirements, NMFS revised its requirements
for SDCs, providing the option to Councils to either compare annual
fishing mortality rates against the MFMT or the annual level of catch
against the OFL. 50 CFR 600.310(e)(2)(i)(B)-(C); see also 74 FR 3192
(response to comment 27), Jan. 16, 2009, (describing relative
advantages of each methodology).
These current methods for determining overfishing do not consider
the extent to which F exceeded the MFMT or catch exceeded the OFL. For
[[Page 2792]]
many stocks, a small amount of fishing effort above MFMT or catch in
excess of OFL in a single year may not jeopardize the stocks' ability
to produce MSY over the long term, though for other stocks a small
overage may be significant. Another concern with the current approach
of comparing F to MFMT, is that the terminal year's estimate of F in a
stock assessment is often more uncertain than the estimates of F in
prior years (NRC 1998). In some cases, subsequent assessments have
revised the previous assessment's terminal year's estimate of F to a
much greater degree than the prior years' estimates of F.
To address this issue, NMFS is proposing to give Councils the
option to use a method for determining the overfishing status of a
stock that is based on a multi-year approach (that may not exceed 3
years) that examines whether a stock's ability to produce MSY over the
long term has been jeopardized (see Sec. 600.310(e)(2)(ii)(A) of the
proposed action). The proposed revisions to the NS1 guidelines would
still allow Councils to have overfishing SDCs that are based on single
year comparisons of F to MFMT or catch to OFL. A Council may develop
overfishing SDCs that use a multi-year approach, so long as it provides
a comprehensive analysis based on the best scientific information
available that supports that the approach will not jeopardize the
capacity of the fishery to produce the MSY on a continuing basis. The
rationale for choosing 3 years as a maximum, versus some shorter or
longer time period, was based on the fact that many stocks (57 percent)
are assessed every 1, 2, or 3 years. Thus it is NMFS's assumption that
using a 2- or 3-year time period will be sufficiently long as to
capture the recent impacts of fishing on a stock and help smooth out
retrospective bias in our understanding of stock status. Additionally,
using a 2- or 3-year time period will dampen the effects of outliers
within the data and help provide a more consistent determination of
when the capacity of the stock to produce MSY on a continuing basis has
been jeopardized. A single year's data point may not reflect the
overall status of the stock. Were Councils to use a longer time period,
there could be a longer delay between exceeding limit reference points
and a subsequent management response, which could jeopardize the stocks
ability to produce MSY on a continuing basis.
Although the current approach to single year overfishing
determinations has been in place since 1998 and has the benefit of
simplicity in calculation and use, NMFS believes that multi-year
overfishing SDCs can, in appropriate cases, be used effectively to
protect the stock while providing stability to the fishery. Multi-year
overfishing SDCs, if used, would be based on the best scientific
information available and would not impact the timeliness of Council
and agency response to any overfishing. ACL and AM mechanisms are in
place for all fisheries, and they would continue to constrain fishing
mortality on an annual basis. The multi-year approach would only be
used for overfishing determinations, where the focus appropriately is
on the impact of fishing over a set period of time and the capacity of
the stock to produce MSY.
X. Revising Optimum Yield (OY) Guidance
The MSA defines OY as an ``amount of fish which: (A) Will provide
the greatest overall benefit to the Nation, particularly with respect
to food production and recreational opportunities, and taking into
account the protection of marine ecosystems; (B) is prescribed as such
on the basis of the maximum sustainable yield from the fishery, as
reduced by any relevant economic, social, or ecological factor; and (C)
in the case of an overfished fishery, provides for rebuilding to a
level consistent with producing the maximum sustainable yield in such
fishery.'' 16 U.S.C. 1802(33). Setting and describing OY continues to
be a challenge for fishery managers. OY is specified in several
different ways by Councils (e.g., the catch corresponding to 75 percent
of Fmsy, all catch harvested pursuant to the FMP, OY is less
than or equal to ABC, etc.), and the economic, social, and ecological
factors required to be considered in the specification of OY are often
not explicitly described by Councils. The proposed revisions to the NS1
guidelines (see Sec. 600.305(e)(3) of this proposed action) are
intended to provide greater clarity and guidance to the Councils in how
to determine and specify OY. Once specified, OY may be achieved by
different management programs.\2\
---------------------------------------------------------------------------
\2\ The proposed rule does not revise the regulatory text at
Sec. 600.310(e)(3)(i)(B) (describing achievement of OY) except for
minor grammatical corrections.
---------------------------------------------------------------------------
Prior to the requirement for ACLs, the concept of treating OY as a
target was prominent in fisheries management. The Sustainable Fisheries
Act, passed in 1996, revised the definition of OY to its current
definition--notably these revisions required that OY can only be
reduced from MSY upon consideration of any relevant economic, social or
ecological factors. When NMFS revised the NS1 guidelines in 1998 (63 FR
24212, May 1, 1998), OY was described as a target reference point which
should be set safely below limit reference points, and preference was
placed on specifying OY in terms of numbers or weight of fish. Councils
were encouraged to specify OY control rules, and Restrepo et al. (1998)
recommended a default OY control rule of fishing at 75 percent of
FMSY. After passage of the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act of 2006, NMFS revised
the NS1 guidelines to provide guidance on implementing ACLs (74 FR
3178, Jan. 16, 2009). With the requirement for setting OFL, ABC, and
ACLs in fisheries, the concept of specifying OY as an annual target
became less relevant. However, OY remains a key concept and requirement
of the MSA, and NMFS believes that further revisions to the NS1
guidelines may assist Councils in better specifying and integrating OY
into their management regimes.
NMFS received many comments in response to the ANPR requesting that
NMFS provide further guidance to the Councils on addressing the
economic, social, and ecological factors used in determining OY. NMFS
believes that one impediment to Councils addressing these factors is
the perception that the Councils must quantify their analysis of these
factors. Such an analysis may not be possible in all cases, so NMFS
proposes revising Sec. 600.310(e)(3)(iv)(A) to provide that where it
is not possible to specify OY quantitatively, Councils may instead
provide a qualitative description of OY that explains how OY accounts
for the economic, ecological, and social factors that are important to
the fishery.
In the comments received on the NS1 ANPR, several stakeholders
asked for clarification of the relationship of OY to the ACL
framework--a relationship that is not discussed in the current
guidelines. In response to these comments, proposed Sec.
600.310(f)(4)(iv) of the NS1 guidelines includes a new explanation of
the relationship between OY and the ACL framework. The dual goals of
NS1 are to prevent overfishing and achieve OY on a continuing basis.
The ABC is an upper limit on catch and is designed to prevent
overfishing. ACLs (or ACTs if used) can be reduced from ABC based upon
OY considerations for the fishery. Additionally, economic, social, or
ecological trade-offs may be evaluated when determining the risk policy
for an ABC control rule.
While OY is a long-term average amount of desired yield, there is,
for each year, an amount of fish that is
[[Page 2793]]
consistent with achieving the long-term OY. A Council can choose to
express OY on an annual basis, in which case the FMP or FMP amendment
should indicate that the OY is an ``annual OY.'' An annual OY cannot
exceed the ACL. If there is a desire to obtain a yield that is higher
than the ACL, then a Council needs to determine if a change in the
management regime (e.g., improved data collection to reduce scientific
and management uncertainty, minimized bycatch in mixed-stock fisheries,
etc.) is needed in order to increase yield.
NMFS proposes to remove current Sec. 600.310(e)(3)(v)(C) (which
states that all catch must be counted against OY, including that
resulting from bycatch, scientific research, and all fishing
activities) and instead incorporate the concept within Sec.
600.310(e)(2)(ii)(C) of the proposed action by stating that where
practicable, all sources of mortality should be accounted for in the
evaluation of stock status. The current language implies that catch
accounting occurs at the level of OY, while in practice it typically
occurs at the level of the ACL. However, the concept of accounting for
all sources of mortality is critical to fisheries management; therefore
NMFS proposes to retain the concept but incorporate it within the
guidance on SDCs. NMFS uses the term ``where practicable'' because it
recognizes that data on scientific research catch may not always be
available. To the extent that data is available on scientific research
catch, it should be accounted for within the system of reference
points. For example, it could be accounted for within stock
assessments, as a set-aside within the ACL framework, or by other
methods.
NMFS is also proposing minor revisions and consolidations of
redundant guidance. To remove repetition and improve clarity, NMFS
proposes merging the guidance on determining the greatest benefits to
the Nation and the considerations for economic, ecological, and social
(EES) factors (currently contained in Sec. 600.310(e)(3)(ii)-(iv))
together into a paragraph on assessing OY (see Sec.
600.310(e)(3)(iii)(A) and (B) of the proposed action). Both are
important for assessing OY. Additionally, NMFS proposes minor revisions
to the guidance on the total allowable level of foreign fishing and
domestic annual harvest at Sec. 600.310(e)(3)(v)(D) and (H) to improve
clarity and consolidate it with the rest of the guidance on foreign
fishing (see Sec. 600.310(e)(3)(v)(A) and (B) of this proposed
action). NMFS also proposes removing Sec. 600.310(e)(3)(v)(G) (stating
that there should be a mechanism in the FMP for periodic reassessment
of OY), and instead explain in proposed Sec. 600.310(e)(3)(iii) that,
consistent with MSA section 302(h)(5), the assessment and specification
of OY should be reviewed on a continuing basis, so that it is
responsive to the changing circumstances in the fishery. Lastly, NMFS
proposes that for internationally managed stocks, fishing levels that
are agreed upon by the U.S. at the international level are consistent
with achieving OY (see Sec. 600.310(e)(3)(iv)(D) of this proposed
action).
XI. Acceptable Biological Catch and Annual Catch Limit Guidance
In general, NMFS proposes revisions to the guidance regarding ABC
in section Sec. 600.310(f) to minimize redundancy and improve clarity.
For example, the ABC control rule (Sec. 600.310(f)(4)) was moved
forward in the guidelines (see Sec. 600.310(f)(2) of this proposed
action) so that the guidance on ABC control rules is provided before
the guidance on specifying ABC, and statements about providing a proxy
for the uncertainty in estimate of MSY (Sec. 600.310(e)(1)(v)) was
moved to the ABC control rule section of the guidelines to consolidate
guidance on accounting for uncertainty (see Sec. 600.310(f)(2)(ii) of
this proposed action). More substantial revisions to the ABC guidance
are listed below.
Definitions
NMFS proposes to modify the definition of the annual catch limit
(ACL) to improve clarity. The ACL is currently defined as the level of
annual catch of a stock or stock complex that serves as a basis for
invoking AMs. ACL cannot exceed the ABC, but may be divided into
sector-ACLs. 50 CFR 600.310(f)(2)(iv). This definition, while accurate,
failed to include reference to the fact that an ACL is a limit on the
total annual catch for a stock or stock complex. NMFS proposes
clarifying that an ACL is a limit on the total annual catch for a stock
or stock complex, which cannot exceed the ABC, that serves as the basis
for invoking AMs. An ACL may be divided into sector-ACLs (see Sec.
600.310(f)(1)(iii) of this proposed action).
NMFS also proposes adding three new definitions for the following
terms: control rule, management uncertainty, and scientific uncertainty
(see Sec. 600.310(f)(1)(iv)-(vi) of this proposed action). These terms
are currently used throughout the guidelines, but were never separately
defined. To reduce redundancy, NMFS proposes deleting the ABC control
rule and ACT control rule definitions, since these definitions were
very similar to the definitions of ABC and ACT, and there is a more
general definition of control rule provided. Lastly, NMFS is proposing
to move the definition of ``ACT'' to Sec. 600.310 (g)(4) of this
proposed rule, because ACTs are a type of AM, and thus better suited in
the AMs section of the guidelines.
Acceptable Biological Catch (ABC) Risk Policy
Section 302(g)(1)(B) of the MSA states that the Scientific and
Statistical Committee (SSC) for each Council shall provide its Council
with ongoing scientific advice for fishery management decisions,
including recommendations for ABC. 16 U.S.C. 1852(g)(1)(B). In 2009,
the NS1 guidelines described ABC as the level of a stock or stock
complex's annual catch that accounts for the scientific uncertainty in
the estimate of the overfishing limit and any other scientific
uncertainty, and should be specified based on the ABC control rule.
When these provisions began to be implemented in 2009, Councils were
uncertain as to whether or not the SSC could specify the ABC without
input from the Council on its risk preferences. At that time, NMFS
referred Councils and their SSCs to the response to comments section of
the 2009 final guidelines, which noted that the ``SSC must recommend an
ABC to the Council after the Council advises the SSC what would be the
acceptable probability that a catch equal to the ABC would result in
overfishing. This risk policy is part of the required ABC control
rule.'' 74 FR at 3191-92 (response to comment 42), Jan. 16, 2009. NMFS
also addressed this issue within its NS1 guidelines frequently asked
questions document, which was published online (https://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_resources.html).
When the NS1 provisions began to be implemented in 2009, Councils
were interested in using alternative methods to specify ABC, which were
not based on ``the probability that an actual catch equal to the
stock's ABC would result in overfishing'' even though such an approach
could be calculated. In particular, in their comment to the NS1 ANPR,
the North Pacific Council expressed interest in using a decision
theoretic approach, which is similar in concept but is not the same as
the probabilistic approach (Thompson 2011). Thompson (2011) suggests
that the use of a decision theoretic approach may actually be more
effective at accounting for scientific uncertainty than the recommended
probabilistic approach.
[[Page 2794]]
To address the above issues, NMFS is proposing revisions to
existing guidance on ABC control rules to state that the Council's risk
policy could be based, on an acceptable probability (at least 50
percent) that catch equal to the stock's ABC will not result in
overfishing, but other appropriate methods can be used. When
determining the risk policy, Councils could consider the economic,
social, and ecological trade-offs between being more or less risk
averse. (See Sec. 600.310(f)(2)(i) of this proposed action.)
References to the Council's risk policy were also included in the
definition of ABC (see Sec. 600.310(f)(1)(ii)).
Phase-In ABC Control Rules
In practice, the management system described in the NS1 guidelines
has led managers to adjust ABCs and ACLs in lock-step with assessment
results through the use of control rules. A manager's understanding
about the status of a stock may change from one assessment to another,
but some of that change could be due to scientific uncertainty.
Scientific uncertainty, particularly regarding the data from the most
recent years within the assessment, can produce perceived fluctuations
in stock abundance that do not match the actual, but unknown, status of
the stock (NRC 1998). In the time period between stock assessments,
Councils often hold ACLs constant because, absent stock forecasts,
information is lacking on which to justify changes to the ACL. The
result is that an ACL could be left unchanged for several years when
there is no assessment update, but upon completion of a new assessment,
reference points could change dramatically (Methot 2014). This type of
dramatic change could be the result of a changed understanding of the
stock or due to a change in the level of scientific uncertainty; it may
be extremely difficult to parse the cause of such changes.
Making large reductions in catch limits to prevent overfishing may
cause negative short-term impacts on fishery participants, while large
increases in catch limits due to a favorable assessment result may have
negative short-term impacts by flooding markets and reducing
profitability. Patrick et al. (2013) has also shown that management
uncertainty (i.e., the inability of managers to control catch)
increases when quotas vary substantially (i.e., >20 percent) from year
to year. The ability to make ACL adjustments that provide more
stability to fishing participants, yet do not jeopardize the capacity
of the stock or stock complex to produce MSY on a continuing basis,
would be useful to Councils.
NMFS proposes revising the NS1 guidelines to allow Councils to
develop an ABC control rule that would phase in changes to the ABC over
a period of time not to exceed 3 years, so long as overfishing is
prevented (see Sec. 600.310 (f)(2)(ii)(A) of this action). The
rationale for choosing 3 years is similar to that described in Section
IX of this preamble. For example, choosing a shorter time frame may not
be that helpful in stabilizing catches, while a longer time frame that
spans multiple stock assessments does not seem logical or transparent.
Phase-in approaches to management are currently being used
successfully elsewhere in the world. For example, the International
Pacific Halibut Commission (IPHC) currently adjusts its quotas
according to a ``slow up/full down'' policy. Under IPHC policy, 1/3 of
the indicated annual increases are taken and 100 percent of decreases
are taken (Hare and Clark 2008, Hare 2011). Similarly, multi-annual
plans for some European Union marine fisheries limit annual change in
catch quota to 15 percent (Marchal et al. 2009). When fishing effort
needs to be reduced in the fishery, using a phase-in approach will
likely result in the use of a less risk averse ABC control rule;
whereas, when fishing effort can be increased in the fishery, a phase-
in approach will likely result in a more risk averse ABC control rule.
For example, if a 15 percent reduction is needed to set the ABC at the
Council's preferred level of risk (i.e., using the Council's regular
ABC control rule), using the phase-in control rule, a Council could
incrementally reduce the ABC by 5 percent each year over a period of 3
years, and still prevent overfishing. Alternatively if a 15 percent
increase is allowed, using the phase-in control rule a Council could
incrementally increase the ABC by 5 percent each year over a period of
3 years. To ensure that phase-in ABC control rules do not lead to
overfishing, NMFS also proposes that Councils must provide a
comprehensive analysis of the control rules and articulate within an
FMP or FMP amendment when a phase-in ABC control rule can and cannot be
used and demonstrate how the control rule prevents overfishing (see
Sec. 600.310 (f)(2)(ii) of this action).
Carry-Over ABC Control Rules
The term carry-over is often used in the context of catch share
programs, where unused allocation from one year can be carried over to
the next. Historically, carry-over provisions have allowed fishermen to
carry over a portion of the quota they had available at the end of the
year. Carry-over provisions can reduce the likelihood that quotas are
exceeded by minimizing incentives to catch every last pound. Similarly,
carry-over provisions can relieve pressure on fishermen to fish in
potentially unsafe conditions to ensure full utilization of quota. The
amount of carry-over historically allowed has been relatively small
compared to the total ACL, and could well be offset, in a typical year,
with under-harvest by other fishermen.
Some Councils have expressed interest in carrying over significant
levels of catch that could result in the previously specified ACL and
in some cases the ABC being exceeded. The NS1 guidelines currently do
not provide any guidance regarding carry-over. In Conservation Law
Foundation v. Pritzker, the U.S. District Court for the District of
Columbia found that Framework 50 of the Northeast Multispecies FMP
violated the MSA by allowing sectors to carry over unused catch in an
amount that would exceed the SSC's recommendation of ABC for several
stocks. The court held that MSA section 302(h)(6) requires that
carryover plus ACLs cannot exceed a stock's specified ABC. Consistent
with this court decision, NMFS proposes revising the NS1 guidelines at
proposed Sec. 600.310(f)(2)(ii)(B) to state that an ABC control rule
may include provisions for carry-over of some of the unused portion of
the ACL from one year to increase the ABC for the next year, based on
increased stock abundance resulting from the fishery harvesting less
than the full ACL. The resulting ABC recommended by the SSC must
prevent overfishing and consider scientific uncertainty consistent with
the Council's risk policy. In cases where an ACL has been reduced from
the ABC, carry-over provisions may not require the ABC to be re-
specified if the ACL can be adjusted upward so that it is equal to or
below the existing ABC. Like phase-in control rules, to ensure that
carry-over ABC control rules do not lead to overfishing, NMFS proposes
that Councils must provide a comprehensive analysis and articulate
within an FMP or FMP amendment when a carry-over ABC control rule can
and cannot be used and demonstrate how the control rule prevents
overfishing (see Sec. 600.310(f)(2)(ii) of this proposed action).
XII. Accountability Measures
NMFS proposes minor revisions to consolidate and clarify the
guidance on accountability measures (see Sec. 600.310(g) of this
proposed action).
[[Page 2795]]
NMFS proposes moving the guidance on ACT and ACT control rules from
current paragraph (f) into the section of the guidelines that provides
guidance on accountability measures (see Sec. 600.310(g)(4) of this
proposed action), as ACTs and ACT control rules are types of
accountability measures. NMFS is also proposing to simplify the
guidance on ACT control rules, as they are an optional tool that
managers can use. Additionally, NMFS is moving the description of
management uncertainty out of the description of the ACT control rule
and other sections of the guidelines (Sec. 600.310(f)(1) and
(f)(6)(i)) into a definition of management uncertainty (see Sec.
600.310(f)(1)(v) of this proposed action). Consistent with the current
NS1 guidelines, some Councils have chosen to account for management
uncertainty when setting ACLs. NMFS acknowledges and encourages this
practice by adding a sentence in proposed Sec. 600.310(f)(4) stating
that if ACT is not used, management uncertainty should be accounted for
in the ACL.
Additionally, NMFS proposes moving the guidance on AMs that is
currently contained in Sec. 600.310(h)(1) into paragraphs (f) and (g)
of the NS1 guidelines. Specifically, NMFS proposes adding ``if sector-
ACLs are used, sector-AMs should also be specified'' to Sec.
600.310(f)(4)(ii) of this proposed action. This concept is currently in
Sec. 600.310(h)(1)(iv) and was moved into the discussion of sector-
ACLs to improve clarity. NMFS also proposes to add ``the FMP should
identify what sources of data will be used to implement AMs (e.g.,
inseason data, annual catch compared to the ACL, or multi-year
averaging approach)'' into the introductory paragraph on AMs (see Sec.
600.310(g)(1) of this proposed action). This concept is currently in
Sec. 600.310(h)(1)(iii) and was moved into the discussion on AMs to
consolidate the guidance on AMs.
NMFS also proposes to consolidate the guidance regarding the ACL
performance standard from current Sec. Sec. 600.310(g)(3) and (g)(4)
into one section (see Sec. 600.310(g)(7) of this proposed action).
However, the guidance regarding the performance standard remains the
same; if catch exceeds the ACL for a given stock or stock complex more
than once in the last four years, the system of ACLs and AMs should be
reevaluated, and modified if necessary to improve its performance and
effectiveness.
NMFS also proposes to clarify in the guidance for AMs when ACL is
exceeded that the type of AM chosen by a Council will likely vary
depending on the sector of the fishery, status of the stock, the degree
of the overage, recruitment patterns of the stock, or other pertinent
information (see Sec. 600.310(g)(3) of this proposed action). For
example, some stocks have highly variable recruitment and when
environmental conditions are favorable, the catches may exceed the ACL
because the abundance of the stock is higher than anticipated. When
deciding on the appropriate AM, Councils could consider if higher than
expected recruitment played a role in catches exceeding the ACL.
Another example of how the type of AM may vary is that a Council may
choose to use a more stringent AM as the biomass of the stock declines.
Lastly, within the guidance on AMs for when the ACL is exceeded,
NMFS proposes that, if an ACL is set equal to zero and the AM for the
fishery is a closure that prohibits fishing for a stock, additional AMs
are not required if (1) only small amounts of catch or bycatch occur,
and (2) that catch or bycatch is unlikely to result in overfishing (see
Sec. 600.310(g)(3) of this proposed action). Under these
circumstances, NMFS believes that a closure that prohibits fishing for
a stock is an adequate AM for a fishery, and in some cases, it may be
the only option available for a Council.
XIII. Establishing Annual Catch Limit (ACL) and Accountability Measure
(AM) Mechanisms
NMFS is proposing minor revisions to reduce redundancy and improve
clarity within Sec. 600.310(h). NMFS proposes to remove the guidance
on stock complexes and indicator stocks within current paragraph (h)
because it is redundant; similar guidance is contained in Sec.
600.310(d)(2)(ii) of the proposed action.
NMFS proposes to remove current Sec. Sec. 600.310(h)(1)(i) and
(h)(1)(ii), because they are redundant with the guidance in Sec. Sec.
600.310(f)(4)(i) and (f)(4)(ii), respectively, of this proposed action.
As described above in preamble section XII, NMFS proposes to remove the
guidance on AMs in current Sec. Sec. 600.310(h)(1)(iii) and (iv), and
consolidate it into Sec. Sec. 600.310(g)(1) and (f)(4)(ii),
respectively, of this proposed action to improve clarity.
The MSA provides a statutory exception to the requirements for ACLs
and AMs for ``a fishery for species that have a life cycle of
approximately 1 year unless the Secretary has determined the fishery is
subject to overfishing of that species.'' 16 U.S.C. 1853. Section
600.310(h)(2) of the current NS1 guidelines further explains that the
life cycle exception applies to ``a stock for which the average length
of time it takes for an individual to produce a reproductively active
offspring is approximately 1 year and that individual has only one
breeding season in its lifetime.'' NMFS believes that the current
guidance is confusing and that the requirement to only have one
breeding season in a lifetime is overly restrictive. Some short lived
species have multiple breeding cycles in a lifetime. NMFS proposes to
revise this exception to apply to ``a stock for which the average age
of spawners in the population is approximately 1 year or less'' (see
Sec. 600.310(h)(1)(i) of the proposed action). NMFS believes that this
is a more scientifically correct description of a species that has a
life cycle of approximately 1 year.
Lastly, as described above in preamble section V, NMFS proposes
amending the ``Flexibility in application of NS1 guidelines'' provision
of the guidelines by adding two additional examples of circumstances
that may not fit the standard approaches to specification of reference
points as those described in the NS1 guidelines (see Sec.
600.310(h)(2) of this proposed action).
XIV. Adding Flexibility in Rebuilding
The topic of rebuilding plans has been discussed extensively in a
number of public forums. NMFS received several comments in response to
the NS1 ANPR stating that the 10-year rebuilding requirement is
arbitrary and expressing a desire for more flexibility in meeting the
statutory rebuilding requirements, while other commenters supported the
use of the 10-year rebuilding requirement. Similar comments were
provided at the Managing Our Nation's Fisheries III conference held in
Washington, DC, in 2013. The National Research Council also published a
report on U.S. rebuilding plans in 2013 (NRC 2013), which provided
several findings and recommendations on improving rebuilding guidance.
Below is a summary of the proposed revisions to the NS1 guidelines
related to providing flexibility in developing effective rebuilding
plans.
Calculating Tmax
When the biomass of a stock has declined below a level that
jeopardizes the capacity of the stock to produce MSY on a continuing
basis, the stock is considered overfished. Section 304(e)(4) of the MSA
requires Councils to specify a time period for rebuilding overfished
stocks within 10 years, except in cases where the biology of the stock,
other environmental conditions, or management measures under an
international agreement in which the
[[Page 2796]]
United States participates dictate otherwise. 16 U.S.C. 1854(e)(4).
Currently, the NS1 guidelines provide guidance on determining the
minimum (Tmin), maximum (Tmax), and target
(Ttarget) time to rebuild a stock to a level that supports
MSY (Bmsy). Tmin is defined as the amount of time
the stock or stock complex is expected to take to rebuild to
Bmsy in the absence of any fishing mortality. If
Tmin for the stock or stock complex is 10 years or less,
then Tmax for that stock is 10 years. Otherwise,
Tmax is calculated as Tmin plus the length of
time associated with one generation time for that stock or stock
complex. ``Generation time'' is defined in the proposed NS1 guidelines
at Sec. 600.310(j)(3)(i)(B)(2)(i) as the average length of time
between when an individual is born and the birth of its offspring.
In the past, Councils have had difficulties calculating
Tmax (i.e., Tmin + 1 generation time), because it
requires life history information on the natural mortality, age at
maturity, fecundity, and maximum age of the stock (Restrepo, et al.
1998). As a result, several Councils have had to rely on proxies of
generation time, which can sometimes lead to either overly conservative
or exaggerated estimates of Tmax. To address the data
requirement issues of calculating generation time, NMFS is proposing to
add two additional ways of calculating Tmax (see Sec.
600.310(j)(3)(i)(B) of the proposed rule). Thus, Councils will have
three options for calculating Tmax: (1) Tmin plus
one generation time; (2) the amount of time the stock is expected to
take to rebuild to its MSY biomass level if fished at 75 percent of
MFMT; and (3) Tmin multiplied by two. These alternative
methods of calculating Tmax rely on different life history
parameters, and provide similar timelines for rebuilding when compared
to Tmin plus one generation time. The 75 percent of MFMT
approach is potentially advantageous in that MFMT is highly correlated
with the productivity of a stock, meaning there is a reduced
probability of calculating less conservative or exaggerated estimates
of Tmax. Whereas, Tmin multiple by two, is the
most simplistic method of calculating Tmax, and it is has
been applied elsewhere in the world. For example, the New Zealand's
Ministry of Primary Industries uses this method to calculate
Tmax for their overfished stocks. When selecting a method
for determining Tmax, a Council must provide a rationale for
its decision based on the best scientific information available.
NMFS does not expect that drastically different estimates of
Tmax will result from one option to another. Rather, NMFS
expects the method selected will largely depend on the best scientific
information available for calculating Tmax. It is also
important to note, that an overfished stock is expected to have a
Ttarget that is less than Tmax, which rebuilds
the stock in as short a time as possible (see Sec. 600.310(j)(3)(i)(C)
of this proposed rule).
Adequate Progress and Extending Rebuilding Timelines
MSA section 304(e)(7) requires the Secretary to review rebuilding
plans to ensure that adequate progress toward ending overfishing and
rebuilding affected fish stocks is being made. 16 U.S.C. 1854(e)(7).
The current NS1 guidelines do not provide any guidance on this
provision, and NMFS received several comments in response to the ANPR
requesting additional guidance on this provision. NMFS proposes adding
guidance to clarify that the review of rebuilding progress could
include the review of recent stock assessments, comparisons of catches
to the ACL, or other appropriate performance measures. NMFS also
proposes that the Secretary may find that adequate progress in
rebuilding is not being made if: Frebuild or the ACL
associated with Frebuild are being exceeded and AMs are not
effective at correcting for the overages; or when the rebuilding
expectations of the stock or stock complex have significantly changed
due to new and unexpected information about the status of the stock
(see Sec. 600.310(f)(3)(iv) of this proposed action).
NMFS also proposes clarifying that, while a stock or stock complex
is rebuilding, revising rebuilding timeframes (i.e., Ttarget
and Tmax) or Frebuild is not necessary, unless
the Secretary finds that adequate progress is not being made (see Sec.
600.310(f)(3)(v) of this proposed action). As highlighted in the NRC
(2013) report on rebuilding, the primary objective of a rebuilding plan
should be to maintain fishing mortality at or below
Frebuild. By doing so, managers can avoid issues with
updating timelines that are based on biomass milestones, which are
subject to uncertainty (see Sec. 600.310(j)(3)(i)(A)) and changing
environmental conditions that are outside the control of fishery
managers.
Emergency Actions and Interim Measures
The NS1 guidelines provide guidance on emergency actions and
interim measures to reduce overfishing that can be taken under sections
304(e)(6) and 305(c) of the MSA. NMFS is proposing to delete Sec. Sec.
600.310(j)(4)(i) and (ii) because: (1) The guidance simply repeats the
language in the MSA; (2) NMFS has separately published a policy on
implementing the provisions of MSA 305(c) (NMFS Policy Directive 01-
101-07, Policy Guidelines on the Use of Emergency Rules, 62 FR 44421
(Aug. 21, 1997)); and (3) NS1 guidance should only provide guidance on
the 304(e)(6) provisions of the MSA, because it pertains to rebuilding
stocks. NMFS proposes to clarify in Sec. 600.310(j)(4) of this
proposed action that the Secretary's ability to implement interim
measures to reduce, but not necessarily end, overfishing should rarely
be used and require that the following three criteria be met before the
interim measure can be used: (1) The interim measure is needed to
address an unanticipated and significantly changed understanding of the
stock's status; (2) ending overfishing immediately is expected to
result in severe social and/or economic impacts to a fishery; and (3)
the interim measures will at least ensure that the stock will increase
its current biomass through the duration of the interim measure.
Discontinuing a Rebuilding Plan Based on New Information
Due to scientific uncertainty in the biomass estimate of fish
stocks, occasionally a stock is identified as overfished, but is later
determined to have never been overfished. The recent NRC (2013) study
on rebuilding estimated that approximately 30 percent of rebuilding
stocks are later discovered to have never been overfished. In the past,
it has been NMFS' policy that once a rebuilding plan has been
implemented, the rebuilding plan cannot be discontinued until the stock
has rebuilt to Bmsy, regardless of new information about the
status of the stock when it was originally declared overfished. This
policy was in place because a future stock assessment could find that
the stock actually had been overfished, and rebuilding to
Bmsy is consistent with the MSA's objective that fisheries
produce MSY on a continuing basis.
However, NMFS realizes that rebuilding stocks are sometimes
restricted to relatively low Frebuilds, which can have
negative impacts on fishery participants due to the reduced landings of
the overfished stock, as well as reduced catch of other stocks in
mixed-stock fisheries. Therefore, NMFS is proposing to allow a Council
to discontinue a rebuilding plan before it reaches Bmsy so
long as the stock meets
[[Page 2797]]
the following criteria: (1) The Secretary determines that the stock was
not overfished in the year that the MSA section 304(e)(3) overfished
determination was based on; and (2) the biomass of the stock is not
currently below the MSST (see Sec. 600.310(j)(5) of this proposed
action). This proposed revision is based on the rationale that the
terminal year of a stock assessment (i.e., the most recent year) is
often the most uncertain, while subsequent reviews of that same year by
stock assessments conducted several years later are often more accurate
(NRC 1998). Thus, if a subsequent assessment shows that the stock was
not overfished in the year that the overfished determination was based
on, it is more likely that the stock was never overfished. However, in
such a situation, a Council may always opt to continue following the
rebuilding plan to further the conservation and management needs of a
stock or stock complex that remains below Bmsy.
Other Revisions
In Sec. 600.310(j)(2), NMFS proposes deleting text that referred
to the 2010 and 2011 implementation dates for ACLs and AMs, given that
these deadlines have passed and all 46 FMPs have implemented ACLs and
AMs (see Sec. Sec. 600.310(j)(2)(i) and (ii) of this proposed action).
NMFS also proposes adding guidance to clarify that, when a Council is
notified that a stock or stock complex is undergoing overfishing, it
should work with its SSC to ensure that the ABC is set appropriately to
end overfishing. Councils should evaluate the cause of the overfishing,
address the issue that caused overfishing, and reevaluate their ACLs
and AM to make sure they are adequate (see Sec. 600.310(j)(2)(i) of
this proposed action).
XV. Recreational Fisheries
Since the reauthorization of the MSA in 2007, many recreational
stakeholders have commented that the ACL requirements of the MSA do not
recognize the different ways in which recreational and commercial
fisheries are managed and prosecuted. The recreational community has
provided comments through a variety of forums, such as: the 2012 NS1
ANPR; NMFS's Marine Fisheries Advisory Committee's White Paper on
Recommendations for MSA by the Recreational Working Group; NMFS's
Recreational Regional Roundtable discussions of 2013; Managing Our
Nations Fisheries III (2013); The Commission on Saltwater Recreational
Fisheries Management, A Vision for Managing America's Saltwater
Recreational Fisheries (Morris and Deal 2014); and NMFS Recreational
Saltwater Fishing Summits in 2010 and 2014. In general, the
recreational community has expressed an interest in increased fishing
opportunities; having the opportunity to catch larger fish; flexibility
in setting ACLs for recreational fisheries; managing for greater
abundance; and, managing forage fish more conservatively to improve the
resiliency of recreationally important fish stocks. While not
highlighted in a separate or specific section, these issues are
addressed in various sections of this proposed rule.
Recreational Fishing Objectives
NMFS recognizes that recreational and commercial sectors of a
fishery will sometimes have different objectives for a fishery.
Existing guidelines note that it is the Councils' responsibility to
integrate the objectives of these various sectors or fishery
participants into their fishery management plans, and prioritize among
these objectives when they are in conflict (see Sec. Sec. 600.305(b)
and 600.310(e)(3)). However, in practice the process of identifying and
prioritizing the objectives of a fishery are rarely reexamined once
defined; there are some exceptions like the Mid-Atlantic and South-
Atlantic Councils' recent visioning processes (for more information on
these projects, see: https://safmc.net/resource-library/council-visioning-project and https://www.mafmc.org/strategic-plan/). Because
the needs and objectives of a fishery change over time, NMFS is
proposing that Councils reassess the objectives of the fishery on a
regular basis (see Sec. 600.305(b)(2) of this proposed action).
Recreational fishermen should work with their Councils to advance their
sector specific objectives, such as increasing the opportunity to catch
larger fish.
Flexibility in Setting ACLs and AMs
The MSA requires ACLs and AMs for all managed fisheries; however,
the NS1 guidelines do not require Councils to specify or implement AMs
in the same manner among the sectors of a fishery. For example, in
several cases, Councils have chosen to monitor the commercial catch
using daily or weekly reporting mechanisms and use in-season management
measures to close the commercial sector when it is expected to reach
its ACL. In contrast, in some recreational fisheries, catch can only be
monitored in 2-month increments, and ACL overages can only be addressed
through post-season AMs. So as not to be constrained to one type of AM,
the Mid-Atlantic and South Atlantic Councils have developed conditional
AMs that implement different AMs depending on the status of the stock
and/or degree of ACL overage. These conditional AMs provide flexibility
in managing sectors of the fishery differently. NMFS encourages the use
of conditional AMs and proposes clarifying that the type of AM chosen
by a Council will likely vary depending on the sector of the fishery,
the status of the stock, degree of overage, recruitment patterns of the
stock, and other pertinent information (see Sec. 600.310(g)(3) of this
proposed action).
NMFS also recognizes that an impediment to implementing ACLs for
many recreationally important fish stocks is the lack of life history
information to calculate MSY (or a standard proxy), as well as the lack
of timely information on the catch levels of the stock. As noted above
in section V of the preamble, NMFS is proposing to revise the NS1
guidelines to make clear that, when data are not available to specify
MSY or MSY proxies, alternative types of SDCs that promote
sustainability of the stock or stock complex can be used (see Sec.
600.310(e)(2)(ii) of this proposed action). For example, SDCs could be
based on recent average catch, fish densities derived from visual
census surveys, length/weight frequencies or other methods. NMFS also
proposes to allow alternative approaches to satisfying the NS1
requirements for stocks for which data are not available to either set
MSY or MSY based reference points or manage to MSY or MSY based
reference points (see Sec. 600.310(h)(2) of this proposed action).
NMFS understands that many of the fish stocks captured in
recreational fisheries are not targeted, but retained because they are
valued by the fishermen. In the current NS1 guidelines, these ``often
retained'' non-target stocks are considered to be ``in the fishery''
and are therefore required to have ACLs. Many stakeholders including
recreational fishery participants have noted that, while these non-
target stocks are often retained, many of these stocks may not be in
need of conservation and management. As noted above in section IV of
the preamble, NMFS is revising its guidance on stocks in the fishery
and ecosystem component species to provide further guidance to Councils
in determining whether stocks require conservation and management based
on several factors. Therefore, some non-target fish stocks may no
longer need ACLs based on this proposed rule.
Some stakeholders have also recommended that, where appropriate,
[[Page 2798]]
NMFS should consider allowing fisheries (in their entirety) to be
managed at the state level. They have expressed that Federal agencies
are not always the most appropriate organizations to manage fisheries,
and, where applicable, states or fishery management commissions should
take control of managing fish populations. NMFS agrees that Federal
management is not required for all stocks, and has in the past provided
guidance on when Federal management was and was not needed within its
NS7 guidelines. As explained in Section IV, NMFS is consolidating
guidance on stocks that require conservation and management in proposed
Sec. 600.305(c).
Forage Fish
NMFS is not proposing any new revisions to the NS guidelines
related to forage fish, as the importance of forage fish to fisheries
and the marine ecosystem was adequately highlighted in the 2009
revisions of the NS1 guidelines. For example, in current Sec.
600.310(e)(3)(iii)(C), NMFS notes that maintaining adequate forage for
all components of the ecosystem is one consideration that could be
taken by the Council when determining the greatest benefit to the
Nation. Additionally, current Sec. 600.310(e)(3)(iv)(C) describes
that, when specifying OY, consideration should be given to managing
forage stocks for higher biomass than Bmsy to enhance and
protect the marine ecosystem. NMFS is not proposing to change these
concepts within the guidelines.
XVI. Republishing Codified Text in Its Entirety
For clarity and convenience to the reader, this proposed rule would
revise Sec. 600.305 (National Standard General), Sec. 600.310
(National Standard 1 guidelines), Sec. 600.320 (National Standard 3
guidelines) and Sec. 600.340 (National Standard 7 guidelines) in their
entirety. The following describes the changes to these guidelines that
are being proposed, and a tracked changes copy of the proposed rule is
also available at: https://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html.
In the proposed revisions to Sec. 600.305, paragraph (b)--Fishery
management objectives, is revised. Current paragraph (c)--Word usage is
revised and redesignated paragraph (d). A new paragraph (c)--Stocks
that require conservation and management, is added to describe which
stocks are in need of conservation and management.
In the proposed revisions to Sec. 600.310, paragraph (b)--General,
is revised. Paragraph (c)--Summary of items to include in FMPs related
to NS1, is revised. Current paragraph (d)--Classifying stocks in an
FMP, is retitled Stocks and stock complexes. Paragraph (d)(1)--
Introduction, is revised. Current paragraphs (d)(2)--Stocks in a
fishery, (d)(4)--Non-target species, and (d)(5)--Ecosystem component
(EC) species were deleted. Current paragraph (d)(3)--Target stocks, was
revised and redesignated (d)(11) in Sec. 600.305. Current paragraph
(d)(6)--Reclassification, was revised and redesignated (c)(5) in Sec.
600.305. Current paragraph (d)(7)--Stocks or species identified in more
than on FMP, was revised and redesignated (c)(4) in Sec. 600.305.
Current paragraph (d)(8)--Stock complex was revised and redesignated
(d)(2)(i) and (d)(2)(ii)(B). Current paragraph (d)(9)--Indicator
stocks, was revised and redesignated (d)(2)(ii)(A),(C)-(D). Current
paragraph (d)(10)--Vulnerability, was revised and redesignated (b)(4).
Current paragraph (e)(1)--MSY, was revised. Current paragraph
(e)(1)(iii)--MSY for stock complexes, was revised and portions therein
were redesignated in (d)(2)(ii)(E). Current paragraph (e)(1)(iv)--
Specifying MSY, was revised and redesignated (e)(1)(v)(A)-(D). A new
paragraph (e)(1)(iv)--Methods of estimating MSY for an aggregate group
of stocks, was added to describe alternative methods of calculating MSY
for a group of stocks. Paragraphs (e)(2)(i)(A)--Status determination
criteria (SDC), (e)(2)(i)(B)--Overfishing, (e)(2)(i)(C)--Maximum
Fishing Mortality Threshold (MFMT), (e)(2)(i)(D)--Overfishing limit,
(e)(2)(i)(E)--Overfished were revised. Current paragraph (e)(2)(i)(F)--
Minimum stock size threshold (MSST), was revised and redesignated
(e)(2)(i)(G). Current paragraph (e)(2)(i)(G)--Approaching an overfished
condition, was redesignated (e)(2)(i)(H). A new paragraph
(e)(2)(i)(F)--Depleted, was added to defined the term depleted.
Paragraphs (e)(2)(ii)--Specification of SDC and overfishing and
overfished determinations and subsections therein (e)(2)(ii)(A)-(B)
were revised. Paragraph (e)(2)(ii)(A)(3) was added to describe
multiyear periods to determine overfishing status. Paragraph
(e)(2)(ii)(C) was added to describe that sources of mortality should be
accounted for in the evaluation of stock status with respect to
reference points. Current paragraph (e)(2)(iii)--Relationship of SDC to
environmental change, is retitled Relationship of SDC to environmental
and habitat change. Current paragraphs (e)(2)(iii)(C), (e)(2)(iv)(A),
(e)(3)--
Optimum yield, (e)(3)(i)(A)-(B), and (e)(3)(ii)--General were revised.
Current paragraph (e)(3)(iii)--Determining the greatest benefit to the
Nation, was revised and redesignated (e)(3)(iii)(A). Current paragraphs
(e)(3)(iii)(A)-(C), were revised and redesignated (e)(3)(iii)(A)(1)-
(3), respectively. A new paragraph (e)(3)(iii)--Assessing OY, was added
to described the OY assessment process. Current paragraph (e)(3)(iv)--
Factors to consider in OY specification, was revised, redesignated
(e)(3)(iii)(B) and retitled Economic, Ecological, and Social Factors.
Current paragraphs (e)(3)(iv)(A)-(C), were revised and redesignated
(e)(3)(iii)(B)(1)-(3). Current paragraph (e)(3)(v)--Specification of
OY, was revised, redesignated (e)(3)(iv), and retitled Specifying OY.
Current paragraph (e)(3)(v)(A) was revised and redesignated
(e)(3)(iv)(A). Current paragraph (e)(3)(v)(B), was deleted, and the
content was incorporated into (e)(3)(v)(A). Current paragraph
(e)(3)(v)(C), was revised and redesignated (e)(3)(ii)(C). Current
paragraph (e)(3)(v)(D), was redesignated to (e)(3)(v)(A). Current
paragraph (e)(3)(v)(E), was redesignated (e)(3)(iv)(B). Current
paragraph (e)(3)(v)(F), was revised and redesignated (e)(3)(iv)(C).
Current paragraph (e)(3)(v)(G), was deleted and the concept was moved
to (e)(3)(iii). Current paragraph (e)(3)(v)(H), was redesignated
(e)(3)(v)(B). A new paragraph (e)(3)(iv)(D), was added to address
issues with internationally managed stocks. Current paragraph
(e)(3)(vi)--OY and foreign fishing, was redesignated (e)(3)(v). Current
paragraphs (e)(3)(vi)(A)-(C), were redesignated (e)(3)(v)(C)-(E),
respectively. Paragraph (f)--Acceptable biological catch, annual catch
limits, and annual catch targets, is revised and retitled Acceptable
biological catch and annual catch limits. Paragraph (f)(1)--
Introduction, was deleted. Current paragraph (f)(2)--Definitions and
(f)(2)(i), are redesignated (f)(1) and (f)(1)(i), respectively. Current
paragraph (f)(2)(ii)--Acceptable biological catch (ABC), is revised and
redesignated (f)(1)(ii). Current paragraph (f)(2)(iii)--ABC control
rule, is deleted. Current paragraph (f)(2)(iv)--Annual catch limit
(ACL), is revised and redesignated (f)(1)(iii). Current paragraphs
(f)(2)(v)--Annual catch target (ACT) and (f)(2)(vi)--ACT control rule,
were deleted and the content was moved to paragraph (g)(4). New
paragraphs (f)(1)(iv)--Control rule, (f)(1)(v)--Management uncertainty,
and (f)(1)(vi)--Scientific uncertainty, were added because the terms
were not
[[Page 2799]]
clearly defined in the current guidelines. Current paragraphs (f)(3)--
Specification of ABC and (f)(3)(ii) were revised. Current paragraph
(f)(4)--ABC control rule, was revised and redesignated (f)(2)(i)-(ii).
Paragraphs (f)(2)(ii)(A)&(B) were added to describe phase-in and carry-
over ABC control rules. Current paragraph (f)(5)--Setting the annual
catch limit, was redesignated (f)(4). Current paragraphs (f)(5)(i)-
(iii) were revised and redesignated (f)(4)(i)-(iii), respectively. A
new paragraph (f)(4)(iv)--Relationship between OY and the ACL
framework, was added. Current paragraphs (f)(6)--ACT control rule,
(f)(6)(i)--Determining management uncertainty and (f)(6)(ii)--
Establishing tiers and corresponding ACT control rules, were revised
and redesignated (g)(4)--Annual catch target (ACT) and ACT control
rule. Paragraph (f)(7) was deleted. Paragraph (g)--Accountability
measures, was revised and retitled Accountability measures (AMs).
Paragraph (g)(1)--Introduction, and (g)(2)--Inseason AMs were revised.
Paragraph (g)(3)--AMs for when the ACL is exceeded, was revised and
portions therein were redesignated to a new paragraph (g)(7)--
Performance standard. Current paragraphs (g)(4)--AMs based on multi-
year average data, was revised and redesignated (g)(5). Current
paragraph (g)(5)--AMs for State-Federal Fisheries, was redesignated
(g)(6). Paragraph (h)--Establishing ACL mechanisms and AMs in FMPs, was
revised. Current paragraphs (h)(1)(i)-(ii) were deleted. Current
paragraphs (h)(1)(ii) and (h)(1)(iv) were deleted and incorporated in
(g)(1) and (f)(4)(ii), respectively. Current paragraph (h)(2)--
Exceptions from ACL and AM requirements and (h)(2)(ii)--International
fishery agreements, were redesignated (h)(1) and (h)(1)(ii),
respectively. Current paragraphs (h)(2)(i)--Life cycle and (h)(3)--
Flexibility in application of NS1 guidelines, were revised and
redesignated (h)(1)(i) and (h)(2), respectively. Paragraphs (i)--
Fisheries data and (i)(3), were revised. Paragraph (j)--Council actions
to address overfishing and rebuilding for stocks and stock complex in
the fishery, was retitled Council actions to address overfishing and
rebuilding for stocks and stock complexes. Paragraph (j)(2)(i)--If a
stock or stock complex is undergoing overfishing, was revised.
Paragraphs (j)(2)(i)(A)-(C), were deleted. Paragraph (j)(2)(ii)--If a
stock or stock complex is overfished or approaching an overfished
condition, was revised. Paragraph (j)(3)(i)(A), was revised. Paragraph
(j)(3)(i)(B), was deleted but portions therein were revised and
incorporated into paragraph (j)(3)(i)(A). Current paragraph
(j)(3)(i)(C), was revised and redesignated (j)(3)(i)(B)(1). Current
paragraph (j)(3)(i)(D), was revised and redesignated (j)(3)(i)(B)(2),
(j)(3)(i)(B)(2)(i)-(iii) and (j)(3)(i)(B)(3). Current paragraph
(j)(3)(i)(E), is revised and redesignated (j)(3)(i)(C)--Target time to
rebuilding a stock or stock complex (Ttarget). Paragraph (j)(3)(ii),
was revised and redesignated (j)(4)--Adequate progress, and (j)(4)(i)-
(ii). Current paragraphs (j)(3)(iii) and (j)(3)(iv), were redesignated
(j)(3)(ii) and (j)(3)(iii), respectively. Current paragraph (j)(4)--
Emergency actions and interim measures, was revised and redesignated
(j)(4). Current paragraphs (j)(4)(i) and (j)(4)(ii), were deleted. New
paragraphs (j)(5)--Discontinuing a rebuilding plan based on new
scientific information, (j)(5)(i)-(ii), and (j)(6)--Management measures
for depleted stocks, were added.
In the proposed revisions to Sec. 600.320, paragraphs (d)--
Management unit and (d)(1)--Basis, were revised. Paragraphs (d)(1)(i)-
(vi), were deleted. Paragraphs (d)(2)--Conservation and management
measures, and (e)--Analysis were revised.
In the proposed revisions to Sec. 600.340, paragraphs (b)--
Necessity of Federal management, (b)(1)--General, and (b)(2)--Criteria
were deleted. Current paragraphs (b)(2)(i)-(iii), were revised and
redesignated paragraphs (c)(2)(vi), (c)(2)(iii), and (c)(2)(x),
respectively, in Sec. 600.305. Current paragraphs (b)(2)(iv)-(vi) were
redesignated paragraphs (c)(2)(vii)-(ix) in Sec. 600.305. Paragraph
(b)(2)(vii), was deleted. Current paragraphs (c)--Alternative
management measures, and (d)--Analysis, were redesignated (b)--
Alternative management measures, and (c)--Analysis.
XVII. References Cited
A complete list of all the references cited in this final action is
available online at: https://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html or upon request from Wesley
Patrick (see FOR FURTHER INFORMATION CONTACT).
XIII. Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Act, and other applicable law, subject to further
consideration after public comment.
This rule has been determined to be significant for purposes of
Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule, if adopted, would not have a significant
economic impact on a substantial number of small entities. The factual
basis for this determination is as follows.
The purpose of the rule is to facilitate compliance with
requirements of the Magnuson-Stevens Act to end and prevent
overfishing, rebuild overfished stocks, and achieve optimum yield (OY)
without establishing new requirements or requiring the Councils or
Secretary to revise their Fishery Management Plans (FMPs). The
objectives of the rule are to improve and clarify the guidance within
the NS guidelines, address concerns that have been raised during the
implementation of annual catch limits (ACLs) and accountability
measures (AMs), and provide flexibility to address fishery management
issues. Pursuant to MSA section 301(b), the NS guidelines are advisory
in nature and do not have the force and effect of law. The Magnuson-
Stevens Act serves as the legal basis for the rule.
Small entities include ``small businesses,'' ``small
organizations,'' and ``small governmental jurisdictions.'' The Small
Business Administration has established size standards for all major
industry sectors in the U.S. including commercial finfish harvesters
(NAICS code 114111), commercial shellfish harvesters (NAICS code
114112), other commercial marine harvesters (NAICS code 114119), for-
hire businesses (NAICS code 487210), marinas (NAICS code 713930),
seafood dealers/wholesalers (NAICS code 424460), and seafood processors
(NAICS code 311710). A business primarily involved in finfish
harvesting is classified as a small business if it is independently
owned and operated, is not dominant in its field of operation
(including its affiliates), and has combined annual receipts not in
excess of $20.5 million for all its affiliated operations worldwide.
For commercial shellfish harvesters, the other qualifiers apply and the
receipts threshold is $5.5 million. For other commercial marine
harvesters, for-hire businesses, and marinas, the other qualifiers
apply and the receipts threshold is $7.5 million. A business primarily
involved in seafood processing is classified as a small business if it
is independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has combined annual
employment not in excess of 500 employees for all its affiliated
operations worldwide. For seafood
[[Page 2800]]
dealers/wholesalers, the other qualifiers apply and the employment
threshold is 100 employees. A small organization is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. Small governmental jurisdictions are governments
of cities, counties, towns, townships, villages, school districts, or
special districts, with populations of less than 50,000.
The actions in this rule make technical changes to the general
section to the National Standard Guidelines, and the Guidelines for
National Standard 1 (NS 1), National Standard 3 (NS 3), and National
Standard 7 (NS 7). Specifically, this rule would: (1) Revise the
general section of the NS guidelines regarding the importance of
identifying fishery management objectives within an FMP, (2)
consolidate guidance on identifying whether stocks need conservation
and management, (3) revise the guidelines to provide flexibility in
managing data limited stocks, (4) revise the guidance on stock
complexes to encourage the use of complexes and indicator stocks, (5)
revise the guidelines to promote the use of aggregate MSY estimates,
(6) revise the guidelines by adding a definition for a depleted stock,
(7) revise the guidelines to allow multi-year overfishing
determinations, methods to phase-in adjustments to ABC, and methods to
carry-over of all or some of an unused portion of the ACL, (8) revise
guidance on OY to improve clarity and describe the role of OY under the
ACL framework, (9) revise the acceptable biological catch (ABC)
guidance, (10) revise guidance on AMs, (11) revise guidance on
establishing ACL and AM mechanisms, and (12) provide flexibility in
rebuilding stocks.
Because the proposed changes to the guidelines do not create new
requirements and thus are technical in nature, this rule would allow
but does not require the Councils or the Secretary to make changes to
their FMPs. Further, because the guidelines do not directly regulate
any entities, the proposed changes will not directly alter the behavior
of any entities operating in federally managed fisheries, and thus no
direct economic effects on commercial harvesting businesses, for-hire
businesses, marinas, seafood dealers/wholesalers, or seafood processors
are expected to result from this action. Therefore, no small entities
would be directly affected by this rule.
As a result of the information above, a reduction in profits for a
substantial number of small entities is not expected. Because this
rule, if implemented, is not expected to have a significant adverse
economic effect on the profits of a substantial number of small
entities, an initial regulatory flexibility analysis is not required
and none has been prepared.
No duplicative, overlapping, or conflicting Federal rules have been
identified. This rule would not establish any new reporting or record-
keeping requirements.
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
Dated: January 12, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Services, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 600 is proposed
to be amended as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. Section 600.305 is revised to read as follows:
Sec. 600.305 General.
(a) Purpose. (1) This subpart establishes guidelines, based on the
national standards, to assist in the development and review of FMPs,
amendments, and regulations prepared by the Councils and the Secretary.
(2) In developing FMPs, the Councils have the initial authority to
ascertain factual circumstances, to establish management objectives,
and to propose management measures that will achieve the objectives.
The Secretary will determine whether the proposed management objectives
and measures are consistent with the national standards, other
provisions of the Magnuson-Stevens Act, and other applicable law. The
Secretary has an obligation under section 301(b) of the Magnuson-
Stevens Act to inform the Councils of the Secretary's interpretation of
the national standards so that they will have an understanding of the
basis on which FMPs will be reviewed.
(3) The national standards are statutory principles that must be
followed in any FMP. The guidelines summarize Secretarial
interpretations that have been, and will be, applied under these
principles. The guidelines are intended as aids to decision-making;
FMPs formulated according to the guidelines will have a better chance
for expeditious Secretarial review, approval, and implementation. FMPs
that are in substantial compliance with the guidelines, the Magnuson-
Stevens Act, and other applicable law must be approved.
(b) Fishery management objectives. (1) Each FMP, whether prepared
by a Council or by the Secretary, should identify what the FMP is
designed to accomplish (i.e., the management objectives to be attained
in regulating the fishery under consideration). In establishing
objectives, Councils balance biological constraints with human needs,
reconcile present and future costs and benefits, and integrate the
diversity of public and private interests. If objectives are in
conflict, priorities should be established among them.
(2) To reflect the changing needs of the fishery over time,
Councils should reassess the objectives of the fishery on a regular
basis.
(3) How objectives are defined is important to the management
process. Objectives should address the problems of a particular
fishery. The objectives should be clearly stated, practicably
attainable, framed in terms of definable events and measurable
benefits, and based upon a comprehensive rather than a fragmentary
approach to the problems addressed. An FMP should make a clear
distinction between objectives and the management measures chosen to
achieve them. The objectives of each FMP provide the context within
which the Secretary will judge the consistency of an FMP's conservation
and management measures with the national standards.
(c) Stocks that require conservation and management. (1) Magnuson-
Stevens Act section 302(h)(1) requires a Council to prepare an FMP for
each fishery under its authority that requires (or in other words, is
in need of) conservation and management. Not every fishery requires
Federal management. Any stocks that are predominately caught in Federal
waters and are overfished or subject to overfishing, or likely to
become overfished or subject to overfishing, are considered to require
conservation and management. In addition, the following non-exhaustive
list of factors should be used by a Council when deciding whether
stocks require conservation and management:
(i) The stock is an important component of the marine environment.
[[Page 2801]]
(ii) The stock is caught by the fishery.
(iii) Whether an FMP can improve or maintain the condition of the
stocks.
(iv) The stock is a target of a fishery.
(v) The stock is important to commercial, recreational, or
subsistence users.
(vi) The fishery is important to the Nation and to the regional
economy.
(vii) The need to resolve competing interests and conflicts among
user groups and whether an FMP can further that resolution.
(viii) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(ix) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(x) The extent to which the fishery could be or is already
adequately managed by states, by state/Federal programs, by Federal
regulations pursuant to other FMPs or international commissions, or by
industry self-regulation, consistent with the policies and standards of
the Magnuson-Stevens Act.
(2) When considering adding a new stock to an FMP or keeping an
existing stock within an FMP, Councils should prepare a thorough
analysis of the factors, and any additional considerations that may be
relevant to the particular stock. No single factor is dispositive, but
Councils should consider weighting the factors as follows. Factors in
paragraphs (c)(1)(i) through (iii) of this section should be considered
first, as they address maintaining a fishery resource and the marine
environment. See 16 U.S.C. 1802(5)(A). These factors weigh in favor of
including a stock in an FMP. Councils should next consider factors in
paragraphs (c)(1)(iv) through (ix) of this section, which set forth key
economic, social, and other reasons contained within the MSA for an FMP
action. See 16 U.S.C. 1802(5)(B). Regardless of whether any of the
first nine factors indicates a conservation and management need, a
Council should consider factor in paragraph (c)(1)(x) of this section
before deciding to include or maintain a stock in an FMP. In many
circumstances, adequate management of a fishery by states, state/
Federal programs, or another Federal FMP would weigh heavily against a
Federal FMP action. See, e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3). In
evaluating the above criteria, a Council should consider the specific
circumstances of a fishery, based on the best scientific information
available; to determine whether there are biological, economic, social
and/or operational concerns that can be addressed by Federal
management.
(3) Councils may choose to identify stocks within their FMPs as
ecosystem component (EC) species (see Sec. 600.310(d)(1)) if they do
not require conservation and management. EC species may be identified
at the species or stock level, and may be grouped into complexes.
Consistent with National Standard 9, Magnuson-Stevens Fishery
Conservation and Management Act (MSA) section 303(b)(12), and other
applicable MSA sections, management measures can be adopted in order
to, for example, collect data on the EC species, minimize bycatch or
bycatch mortality of EC species, protect the associated role of EC
species in the ecosystem, or for other reasons.
(4) A stock or stock complex may be identified in more than one
FMP. In this situation, the relevant Councils should choose which FMP
will be the primary FMP in which reference points for the stock or
stock complex are established. In other FMPs, the stock or stock
complex may be identified as ``other managed stocks'' and management
measures that are consistent with the objectives of the primary FMP can
be established.
(5) Councils should periodically review their FMPs and the best
scientific information available and determine if the stocks are
appropriately identified. As appropriate, stocks should be reclassified
within a FMP, added to or removed from an existing FMP, or added to a
new FMP, through a FMP amendment that documents the rationale for the
decision.
(d) Word usage within the National Standard Guidelines. The word
usage refers to all regulations in this subpart.
(1) Must is used, instead of ``shall'', to denote an obligation to
act; it is used primarily when referring to requirements of the
Magnuson-Stevens Act, the logical extension thereof, or of other
applicable law.
(2) Shall is used only when quoting statutory language directly, to
avoid confusion with the future tense.
(3) Should is used to indicate that an action or consideration is
strongly recommended to fulfill the Secretary's interpretation of the
Magnuson-Stevens Act, and is a factor reviewers will look for in
evaluating a SOPP or FMP.
(4) May is used in a permissive sense.
(5) Will is used descriptively, as distinguished from denoting an
obligation to act or the future tense.
(6) Could is used when giving examples, in a hypothetical,
permissive sense.
(7) Can is used to mean ``is able to'', as distinguished from
``may''.
(8) Examples are given by way of illustration and further
explanation. They are not inclusive lists; they do not limit options.
(9) Analysis, as a paragraph heading, signals more detailed
guidance as to the type of discussion and examination an FMP should
contain to demonstrate compliance with the standard in question.
(10) Council includes the Secretary, as applicable, when preparing
FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens
Act.
(11) Target stocks are stocks or stock complexes that fishers seek
to catch for sale or personal use, including ``economic discards'' as
defined under Magnuson-Stevens Act section 3(9).
0
3. Section 600.310 is revised to read as follows:
Sec. 600.310 National Standard 1--Optimum Yield.
(a) Standard 1. Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the optimum yield
(OY) from each fishery for the U.S. fishing industry.
(b) General. (1) The guidelines set forth in this section describe
fishery management approaches to meet the objectives of National
Standard 1 (NS1), and include guidance on:
(i) Specifying maximum sustainable yield (MSY) and OY;
(ii) Specifying status determination criteria (SDC) so that
overfishing and overfished determinations can be made for stocks and
stock complexes that require, or are in need of, conservation and
management;
(iii) Preventing overfishing and achieving OY, incorporation of
scientific and management uncertainty in control rules, and adaptive
management using annual catch limits (ACL) and measures to ensure
accountability (i.e., accountability measures (AMs)); and
(iv) Rebuilding stocks and stock complexes.
(2) Overview of Magnuson-Stevens Act concepts and provisions
related to NS1-- (i) MSY. The Magnuson-Stevens Act establishes MSY as
the basis for fishery management and requires that: The fishing
mortality rate must not jeopardize the capacity of a stock or stock
complex to produce MSY; the abundance of an overfished stock or stock
complex must be rebuilt to a level that is capable of producing MSY;
and OY must not exceed MSY.
(ii) OY. The determination of OY is a decisional mechanism for
resolving the Magnuson-Stevens Act's conservation and management
objectives, achieving a
[[Page 2802]]
fishery management plan's (FMP) objectives, and balancing the various
interests that comprise the greatest overall benefits to the Nation. OY
is based on MSY as reduced under paragraphs (e)(3)(iii)(A) and (B) of
this section. The most important limitation on the specification of OY
is that the choice of OY and the conservation and management measures
proposed to achieve it must prevent overfishing.
(iii) ACLs and AMs. Any FMP shall establish a mechanism for
specifying ACLs in the FMP (including a multiyear plan), implementing
regulations, or annual specifications, at a level such that overfishing
does not occur in the fishery, including measures to ensure
accountability (Magnuson-Stevens Act section 303(a)(15)).
(iv) Reference points. SDC, MSY, OY, acceptable biological catch
(ABC), and ACL, which are described further in paragraphs (e) and (f)
of this section, are collectively referred to as ``reference points.''
(v) Scientific advice. The Magnuson-Stevens Act has requirements
regarding scientific and statistical committees (SSC) of the Regional
Fishery Management Councils, including but not limited to, the
following provisions (paragraphs (b)(2)(v)(A) through (D) of this
section). See the National Standard 2 guidelines for further guidance
on SSCs and the peer review process (Sec. 600.315).
(A) Each Regional Fishery Management Council shall establish an SSC
as described in section 302(g)(1)(A) of the Magnuson-Stevens Act.
(B) Each SSC shall provide its Regional Fishery Management Council
recommendations for ABC as well as other scientific advice, as
described in Magnuson-Stevens Act section 302(g)(1)(B).
(C) The Secretary and each Regional Fishery Management Council may
establish a peer review process for that Council for scientific
information used to advise the Council about the conservation and
management of a fishery (see Magnuson-Stevens Act section
302(g)(1)(E)). If a peer review process is established, it should
investigate the technical merits of stock assessments and other
scientific information to be used by the SSC or agency or international
scientists, as appropriate. For Regional Fishery Management Councils,
the peer review process is not a substitute for the SSC and should work
in conjunction with the SSC. For the Secretary, which does not have an
SSC, the peer review process should provide the scientific information
necessary.
(D) Each Council shall develop ACLs for each of its managed
fisheries that may not exceed the ``fishing level recommendations'' of
its SSC or peer review process (Magnuson-Stevens Act section
302(h)(6)). The SSC recommendation that is the most relevant to ACLs is
ABC, as both ACL and ABC are levels of annual catch.
(3) Approach for setting limits and accountability measures,
including targets, for consistency with NS1. When specifying limits and
accountability measures, Councils must take an approach that considers
uncertainty in scientific information and management control of the
fishery. These guidelines describe how the Councils could address
uncertainty such that there is a low risk that limits are exceeded as
described in paragraphs (f)(2) and (g)(4) of this section.
(4) Vulnerability. A stock's vulnerability to fishing pressure is a
combination of its productivity, which depends upon its life history
characteristics, and its susceptibility to the fishery. Productivity
refers to the capacity of the stock to produce MSY and to recover if
the population is depleted or overfished, and susceptibility is the
potential for the stock to be impacted by the fishery, which includes
direct captures, as well as indirect impacts of the fishery (e.g., loss
of habitat quality).
(c) Summary of items to include in FMPs related to NS1. This
section provides a summary of items that Councils must include in their
FMPs and FMP amendments in order to address ACL, AM, and other aspects
of the NS1 guidelines. Councils must describe fisheries data for the
stocks and stock complexes in their FMPs, or associated public
documents such as Stock Assessment and Fishery Evaluation (SAFE)
Reports. For all stocks and stock complexes that require conservation
and management (see Sec. 600.305(c)), the Councils must evaluate and
describe the following items in their FMPs and amend the FMPs, if
necessary, to align their management objectives to end or prevent
overfishing and to achieve OY:
(1) MSY and SDC (see paragraphs (e)(1) and (2) of this section).
(2) OY at the stock, stock complex, or fishery level and provide
the OY specification analysis (see paragraph (e)(3) of this section).
(3) ABC control rule (see paragraph (f)(2) of this section).
(4) Mechanisms for specifying ACLs (see paragraph (f)(4) of this
section).
(5) AMs (see paragraph (g) of this section).
(6) Stocks and stock complexes that have statutory exceptions from
ACLs and AMs (see paragraph (h)(1) of this section) or which fall under
limited circumstances which require different approaches to meet the
Magnuson-Stevens Act requirements (see paragraph (h)(2) of this
section).
(d) Stocks and stock complexes--(1) Introduction. As described in
Sec. 600.305(c), Councils should identify in their FMPs the stocks
that require conservation and management. Such stocks must have ACLs,
other reference points, and accountability measures. Other stocks that
are identified in an FMP (i.e., ecosystem component species or stocks
that the fishery interacts with but are managed primarily under another
FMP, see Sec. 600.305(c)(3) and (4)) do not require ACLs, other
reference points, and accountability measures.
(2) Stock complex. Stocks that require conservation and management
can be grouped into stock complexes. A ``stock complex'' is a tool to
manage a group of stocks within a FMP.
(i) At the time a stock complex is established, the FMP should
provide, to the extent practicable, a full and explicit description of
the proportional composition of each stock in the stock complex. Stocks
may be grouped into complexes for various reasons, including where
stocks in a multispecies fishery cannot be targeted independent of one
another; where there is insufficient data to measure a stock's status
relative to SDC; or when it is not feasible for fishermen to
distinguish individual stocks among their catch. Where practicable, the
group of stocks should have a similar geographic distribution, life
history characteristics, and vulnerabilities to fishing pressure such
that the impact of management actions on the stocks is similar. The
vulnerability of individual stocks should be considered when
determining if a particular stock complex should be established or
reorganized, or if a particular stock should be included in a complex.
(ii) Indicator stocks. (A) An indicator stock is a stock with
measurable and objective SDC that can be used to help manage and
evaluate more poorly known stocks that are in a stock complex.
(B) Where practicable, stock complexes should include one or more
indicator stocks (each of which has SDC and ACLs). Otherwise, stock
complexes may be comprised of: Several stocks without an indicator
stock (with SDC and an ACL for the complex as a whole), or one or more
indicator stocks (each of which has SDC and management objectives) with
an ACL for the complex
[[Page 2803]]
as a whole (this situation might be applicable to some salmon species).
Councils should review the available quantitative or qualitative
information (e.g., catch trends, changes in vulnerability, fish health
indices, etc.) of stocks within a complex on a regular basis to
determine if they are being sustainably managed.
(C) If an indicator stock is used to evaluate the status of a
complex, it should be representative of the typical vulnerability of
stocks within the complex. If the stocks within a stock complex have a
wide range of vulnerability, they should be reorganized into different
stock complexes that have similar vulnerabilities; otherwise the
indicator stock should be chosen to represent the more vulnerable
stocks within the complex. In instances where an indicator stock is
less vulnerable than other members of the complex, management measures
should be more conservative so that the more vulnerable members of the
complex are not at risk from the fishery.
(D) More than one indicator stock can be selected to provide more
information about the status of the complex.
(E) When indicator stocks are used, the stock complex's MSY could
be listed as ``unknown,'' while noting that the complex is managed on
the basis of one or more indicator stocks that do have known stock-
specific MSYs, or suitable proxies, as described in paragraph (e)(1)(v)
of this section.
(e) Features of MSY, SDC, and OY-- (1) MSY. Each FMP must include
an estimate of MSY for the stocks and stock complexes that require
conservation and management. MSY may also be specified for the fishery
as a whole.
(i) Definitions--(A) MSY is the largest long-term average catch or
yield that can be taken from a stock or stock complex under prevailing
ecological, environmental conditions and fishery technological
characteristics (e.g., gear selectivity), and the distribution of catch
among fleets.
(B) MSY fishing mortality rate (Fmsy) is the fishing mortality rate
that, if applied over the long term, would result in MSY.
(C) MSY stock size (Bmsy) means the long-term average size of the
stock or stock complex, measured in terms of spawning biomass or other
appropriate measure of the stock's reproductive potential that would be
achieved by fishing at Fmsy.
(ii) MSY for stocks. MSY should be estimated for each stock based
on the best scientific information available (see Sec. 600.315).
(iii) MSY for stock complexes. When stock complexes are used, MSY
should be estimated for one or more indicator stocks or for the complex
as a whole (see paragraph (d)(2)(ii) of this section).
(iv) Methods of estimating MSY for an aggregate group of stocks.
Estimating MSY for an aggregate group of stocks (including stock
complexes and the fishery as a whole) can be done using models that
account for multi-species interactions, composite properties for a
group of similar species, common biomass (energy) flow and production
patterns, or other relevant factors (see paragraph (e)(3)(iv)(C) of
this section).
(v) Specifying MSY. (A) Because MSY is a long-term average, it need
not be estimated annually, and should be re-estimated as required by
changes in long-term environmental or ecological conditions, fishery
technological characteristics, or new scientific information.
(B) When data are insufficient to estimate MSY directly, Councils
should adopt other measures of reproductive potential that can serve as
reasonable proxies for MSY, Fmsy, and Bmsy.
(C) The MSY for a stock or stock complex is influenced by its
interactions with other stocks in its ecosystem and these interactions
may shift as multiple stocks in an ecosystem are fished. Ecological and
environmental information should be taken into account, to the extent
practicable, when assessing stocks and specifying MSY. Ecological and
environmental information that is not directly accounted for in the
specification of MSY can be among the ecological factors considered
when setting OY below MSY.
(D) As MSY values are estimates or are based on proxies, they will
have some level of uncertainty associated with them. The degree of
uncertainty in the estimates should be identified, when practicable,
through the stock assessment process and peer review (see Sec.
600.335), and should be taken into account when specifying the ABC
Control rule (see paragraph (f)(2) of this section).
(2) Status determination criteria--(i) Definitions--(A) Status
determination criteria (SDC) mean the measurable and objective factors,
MFMT, OFL, and MSST, or their proxies, that are used to determine if
overfishing has occurred, or if the stock or stock complex is
overfished. Magnuson-Stevens Act (section 3(34)) defines both
``overfishing'' and ``overfished'' to mean a rate or level of fishing
mortality that jeopardizes the capacity of a fishery to produce the MSY
on a continuing basis. To avoid confusion, this section clarifies that
``overfished'' relates to biomass of a stock or stock complex, and
``overfishing'' pertains to a rate or level of removal of fish from a
stock or stock complex.
(B) Overfishing occurs whenever a stock or stock complex is
subjected to a level of fishing mortality or total catch that
jeopardizes the capacity of a stock or stock complex to produce MSY on
a continuing basis.
(C) Maximum fishing mortality threshold (MFMT) means the level of
fishing mortality (F) above which overfishing is occurring. The MFMT or
reasonable proxy may be expressed either as a single number (a fishing
mortality rate or F value), or as a function of spawning biomass or
other measure of reproductive potential.
(D) Overfishing limit (OFL) means the annual amount of catch that
corresponds to the estimate of MFMT applied to a stock or stock
complex's abundance and is expressed in terms of numbers or weight of
fish.
(E) Overfished. A stock or stock complex is considered
``overfished'' when its biomass has declined below MSST.
(F) Depleted. An overfished stock or stock complex is considered
depleted when it has not experienced overfishing at any point over a
period of two generation times of the stock and its biomass has
declined below MSST, or when a rebuilding stock or stock complex has
reached its targeted time to rebuild and the stock's biomass has shown
no significant signs of growth despite being fished at or below catch
levels that are consistent with the rebuilding plan throughout that
period (see paragraphs (j)(3)(i)(B)(2)(i) and (j)(6) of this section).
(G) Minimum stock size threshold (MSST) means the level of biomass
below which the capacity of the stock or stock complex to produce MSY
on a continuing basis has been jeopardized.
(H) Approaching an overfished condition. A stock or stock complex
is approaching an overfished condition when it is projected that there
is more than a 50 percent chance that the biomass of the stock or stock
complex will decline below the MSST within two years.
(ii) Specification of SDC and overfishing and overfished
determinations. Each FMP must describe how objective and measurable
SDCs will be specified, as described in paragraphs (e)(2)(ii)(A) and
(B) of this section. To be measurable and objective, SDC must be
expressed in a way that enables the Council to monitor the status of
each stock or stock complex in the FMP. Applying the SDC set forth in
[[Page 2804]]
the FMP, the Secretary determines if overfishing is occurring and
whether the stock or stock complex is overfished (Magnuson-Stevens Act
section 304(e)). SDCs are often based on fishing rates or biomass
levels associated with MSY or MSY based proxies. When data are not
available to specify SDCs based on MSY or MSY proxies, alternative
types of SDCs that promote sustainability of the stock or stock complex
can be used. For example, SDC could be based on recent average catch,
fish densities derived from visual census surveys, length/weight
frequencies or other methods. In specifying SDC, a Council must provide
an analysis of how the SDC were chosen and how they relate to
reproductive potential of stocks of fish within the fishery. If
alternative types of SDCs are used, the Council should explain how the
approach will promote sustainability of the stock or stock complex on a
long term basis. A Council should consider a process that allows SDCs
to be quickly updated to reflect the best scientific information
available. In the case of internationally-managed stocks, the Council
may decide to use the SDCs defined by the relevant international body.
In this instance, the SDCs should allow the Council to monitor the
status of a stock or stock complex, recognizing that the SDCs may not
be defined in such a way that a Council could monitor the MFMT, OFL, or
MSST as would be done with a domestically managed stock or stock
complex.
(A) SDC To Determine Overfishing Status. Each FMP must describe the
method used to determine the overfishing status for each stock or stock
complex. For domestically-managed stocks or stocks complexes, one of
the following methods should be used:
(1) Fishing Mortality Rate Exceeds MFMT. Exceeding the MFMT for a
period of 1 year or exceeding a multi-year mortality reference point
constitutes overfishing.
(2) Catch Exceeds the OFL. Exceeding the annual OFL for 1 year or
exceeding a multi-year catch reference point constitutes overfishing.
(3) Use of Multi-Year Periods To Determine Overfishing Status. A
multi-year period may not exceed three years. A Council may develop
overfishing SDCs that use a multi-year approach, so long as it provides
a comprehensive analysis based on the best scientific information
available that supports that the approach will not jeopardize the
capacity of the fishery to produce MSY on a continuing basis. A Council
should identify in its FMP or FMP amendment circumstances in which the
multi-year approach should not be used (e.g., because the capacity of
the stock to produce MSY over the longer term could be jeopardized).
(B) SDC to determine overfished status. The MSST or reasonable
proxy must be expressed in terms of spawning biomass or other measure
of reproductive potential. MSST should be between \1/2\ Bmsy
and Bmsy, and could be informed by the life history of the
stock, the natural fluctuations in biomass associated with fishing at
MFMT over the long-term, the time needed to rebuild to Bmsy
and associated social and/or economic impacts on the fishery, the
requirements of internationally-managed stocks, or other
considerations.
(C) Where practicable, all sources of mortality including that
resulting from bycatch, scientific research catch, and all fishing
activities should be accounted for in the evaluation of stock status
with respect to reference points.
(iii) Relationship of SDC to environmental and habitat change. Some
short-term environmental changes can alter the size of a stock or stock
complex without affecting its long-term reproductive potential. Long-
term environmental changes affect both the short-term size of the stock
or stock complex and the long-term reproductive potential of the stock
or stock complex.
(A) If environmental changes cause a stock or stock complex to fall
below its MSST without affecting its long-term reproductive potential,
fishing mortality must be constrained sufficiently to allow rebuilding
within an acceptable time frame (see also paragraph (j)(3)(i) of this
section). SDC should not be respecified.
(B) If environmental, ecosystem, or habitat changes affect the
long-term reproductive potential of the stock or stock complex, one or
more components of the SDC must be respecified. Once SDC have been
respecified, fishing mortality may or may not have to be reduced,
depending on the status of the stock or stock complex with respect to
the new criteria.
(C) If manmade environmental changes are partially responsible for
a stock or stock complex's biomass being below MSST, in addition to
controlling fishing mortality, Councils should recommend restoration of
habitat and other ameliorative programs, to the extent possible (see
also the guidelines issued pursuant to section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat).
(iv) Secretarial approval of SDC. Secretarial approval or
disapproval of proposed SDC will be based on consideration of whether
the proposal:
(A) Is based on the best scientific information available;
(B) Contains the elements described in paragraph (e)(2)(ii) of this
section;
(C) Provides a basis for objective measurement of the status of the
stock or stock complex against the criteria; and
(D) Is operationally feasible.
(3) Optimum yield. For stocks that require conservation and
management, OY may be established at the stock, stock complex, or
fishery level.
(i) Definitions--(A) Optimum yield (OY). Magnuson-Stevens Act
section (3)(33) defines ``optimum,'' with respect to the yield from a
fishery, as the amount of fish that will provide the greatest overall
benefit to the Nation, particularly with respect to food production and
recreational opportunities and taking into account the protection of
marine ecosystems; that is prescribed on the basis of the MSY from the
fishery, as reduced by any relevant economic, social, or ecological
factor; and, in the case of an overfished fishery, that provides for
rebuilding to a level consistent with producing the MSY in such
fishery.
(B) In NS1, use of the phrase ``achieving, on a continuing basis,
the optimum yield from each fishery'' means: Producing, from each
stock, stock complex, or fishery, an amount of catch that is, on
average, equal to the Council's specified OY; prevents overfishing;
maintains the long term average biomass near or above Bmsy;
and rebuilds overfished stocks and stock complexes consistent with
timing and other requirements of section 304(e)(4) of the Magnuson-
Stevens Act and paragraph (j) of this section.
(ii) General. OY is a long-term average amount of desired yield
from a stock, stock complex, or fishery. An FMP must contain
conservation and management measures, including ACLs and AMs, to
achieve OY on a continuing basis, and provisions for information
collection that are designed to determine the degree to which OY is
achieved. These measures should allow for practical and effective
implementation and enforcement of the management regime. If management
measures prove unenforceable--or too restrictive, or not rigorous
enough to prevent overfishing while achieving on a continuing basis
OY--they should be modified; an alternative is to reexamine the
adequacy of the OY specification to ensure that the dual requirements
of NS1 are met (preventing overfishing while achieving, on a continuing
basis, OY).
(iii) Assessing OY. An FMP must contain an assessment and
specification of OY, which documents how the OY
[[Page 2805]]
will produce the greatest benefits to the nation and prevent
overfishing. The assessment should include a summary of information
utilized in making such specification, consistent with requirements of
section 303(a)(3) of the Magnuson-Stevens Act and consideration of the
economic, social, and ecological factors relevant to management of a
particular stock, stock complex, or fishery. Consistent with Magnuson-
Stevens Act section 302(h)(5), the assessment and specification of OY
should be reviewed on a continuing basis, so that it is responsive to
changing circumstances in the fishery.
(A) Determining the greatest benefit to the Nation. In determining
the greatest benefit to the Nation, the values that should be weighed
and receive serious attention when considering the economic, social, or
ecological factors used in reducing MSY, or its proxy, to obtain OY
are:
(1) The benefits of food production derived from providing seafood
to consumers; maintaining an economically viable fishery together with
its attendant contributions to the national, regional, and local
economies; and utilizing the capacity of the Nation's fishery resources
to meet nutritional needs.
(2) The benefits of recreational opportunities reflect the quality
of both the recreational fishing experience and non-consumptive fishery
uses such as ecotourism, fish watching, and recreational diving.
Benefits also include the contribution of recreational fishing to the
national, regional, and local economies and food supplies.
(3) The benefits of protection afforded to marine ecosystems are
those resulting from maintaining viable populations (including those of
unexploited species), maintaining adequate forage for all components of
the ecosystem, maintaining evolutionary and ecological processes (e.g.,
disturbance regimes, hydrological processes, nutrient cycles),
maintaining productive habitat, maintaining the evolutionary potential
of species and ecosystems, and accommodating human use.
(B) Economic, ecological, and social factors. Councils should
consider the management objectives of their FMPs and their management
framework to determine the relevant social, economic, and ecological
factors used to determine OY. There will be inherent trade-offs when
determining the objectives of the fishery. The following is a non-
exhaustive list of potential considerations for social, economic, and
ecological factors.
(1) Social factors. Examples are enjoyment gained from recreational
fishing, avoidance of gear conflicts and resulting disputes,
preservation of a way of life for fishermen and their families, and
dependence of local communities on a fishery (e.g., involvement in
fisheries and ability to adapt to change). Consideration may be given
to fishery-related indicators (e.g., number of fishery permits, number
of commercial fishing vessels, number of party and charter trips,
landings, ex-vessel revenues etc.) and non-fishery related indicators
(e.g., unemployment rates, percent of population below the poverty
level, population density, etc.), and preference for a particular type
of fishery (e.g., size of the fishing fleet, type of vessels in the
fleet, permissible gear types). Other factors that may be considered
include the effects that past harvest levels have had on fishing
communities, the cultural place of subsistence fishing, obligations
under Indian treaties, proportions of affected minority and low-income
groups, and worldwide nutritional needs.
(2) Economic factors. Examples are prudent consideration of the
risk of overharvesting when a stock's size or reproductive potential is
uncertain (see Sec. 600.335(c)(2)(i)), satisfaction of consumer and
recreational needs, and encouragement of domestic and export markets
for U.S. harvested fish. Other factors that may be considered include:
The value of fisheries, the level of capitalization, the decrease in
cost per unit of catch afforded by an increase in stock size, the
attendant increase in catch per unit of effort, alternate employment
opportunities, and economic contribution to fishing communities,
coastal areas, affected states, and the nation.
(3) Ecological factors. Examples include impacts on ecosystem
component species, forage fish stocks, other fisheries, predator-prey
or competitive interactions, marine mammals, threatened or endangered
species, and birds. Species interactions that have not been explicitly
taken into account when calculating MSY should be considered as
relevant factors for setting OY below MSY. In addition, consideration
should be given to managing forage stocks for higher biomass than
Bmsy to enhance and protect the marine ecosystem. Also
important are ecological or environmental conditions that stress marine
organisms or their habitat, such as natural and manmade changes in
wetlands or nursery grounds, and effects of pollutants on habitat and
stocks.
(iv) Specifying OY. If the estimates of MFMT and current biomass
are known with a high level of certainty and management controls can
accurately limit catch, then OY could be set very close to MSY,
assuming no other reductions are necessary for social, economic, or
ecological factors. To the degree that such MSY estimates and
management controls are lacking or unavailable, OY should be set
farther from MSY.
(A) The OY can be expressed in terms of numbers or weight of fish,
and either as a single value or a range. When it is not possible to
specify OY quantitatively, OY may be described qualitatively.
(B) The determination of OY is based on MSY, directly or through
proxy. However, even where sufficient scientific data as to the
biological characteristics of the stock do not exist, or where the
period of exploitation or investigation has not been long enough for
adequate understanding of stock dynamics, or where frequent large-scale
fluctuations in stock size diminish the meaningfulness of the MSY
concept, OY must still be established based on the best scientific
information available.
(C) An OY established at a fishery level may not exceed the sum of
the MSY values for each of the stocks or stocks complexes within the
fishery. Aggregate level MSY estimates could be used as a basis for
specifying OY for the fishery (see paragraph (e)(1)(iv) of this
section). When aggregate level MSY is estimated, single stock MSY
estimates can also be used to inform single stock management. For
example, OY could be specified for a fishery, while other reference
points are specified for individual stocks in order to prevent
overfishing on each stock within the fishery.
(D) For internationally-managed stocks, fishing levels that are
agreed upon by the U.S. at the international level are consistent with
achieving OY.
(v) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens
Act provides that fishing by foreign nations is limited to that portion
of the OY that will not be harvested by vessels of the United States.
The FMP must include an assessment to address the following, as
required by section 303(a)(4) of the Magnuson-Stevens Act:
(A) The OY specification is the basis for establishing any total
allowable level of foreign fishing (TALFF).
(B) Part of the OY may be held as a reserve to allow for domestic
annual harvest (DAH). If an OY reserve is established, an adequate
mechanism should be included in the FMP to permit timely release of the
reserve to domestic or foreign fishermen, if necessary.
[[Page 2806]]
(C) DAH. Councils and/or the Secretary must consider the capacity
of, and the extent to which, U.S. vessels will harvest the OY on an
annual basis. Estimating the amount that U.S. fishing vessels will
actually harvest is required to determine the surplus.
(D) Domestic annual processing (DAP). Each FMP must assess the
capacity of U.S. processors. It must also assess the amount of DAP,
which is the sum of two estimates: The estimated amount of U.S. harvest
that domestic processors will process, which may be based on historical
performance or on surveys of the expressed intention of manufacturers
to process, supported by evidence of contracts, plant expansion, or
other relevant information; and the estimated amount of fish that will
be harvested by domestic vessels, but not processed (e.g., marketed as
fresh whole fish, used for private consumption, or used for bait).
(E) Joint venture processing (JVP). When DAH exceeds DAP, the
surplus is available for JVP.
(f) Acceptable biological catch and annual catch limits--(1)
Definitions--(i) Catch is the total quantity of fish, measured in
weight or numbers of fish, taken in commercial, recreational,
subsistence, tribal, and other fisheries. Catch includes fish that are
retained for any purpose, as well as mortality of fish that are
discarded.
(ii) Acceptable biological catch (ABC) is a level of a stock or
stock complex's annual catch, which is based on an ABC control rule
that accounts for the scientific uncertainty in the estimate of OFL,
any other scientific uncertainty, and the Council's risk policy.
(iii) Annual catch limit (ACL) is a limit on the total annual catch
of a stock or stock complex, which cannot exceed the ABC, that serves
as the basis for invoking AMs. An ACL may be divided into sector-ACLs
(see paragraph (f)(4) of this section).
(iv) Control rule is a policy for establishing a limit or target
catch level that is based on the best scientific information available
and is established by the Council in consultation with its SSC.
(v) Management uncertainty refers to uncertainty in the ability of
managers to constrain catch so that the ACL is not exceeded, and the
uncertainty in quantifying the true catch amounts (i.e., estimation
errors). The sources of management uncertainty could include: late
catch reporting; misreporting; underreporting of catches; lack of
sufficient inseason management, including inseason closure authority;
or other factors.
(vi) Scientific uncertainty refers to uncertainty in the
information about a stock and its reference points. Sources of
scientific uncertainty could include: uncertainty in stock assessment
results; uncertainty in the estimates of MFMT, MSST, the biomass of the
stock, and OFL; time lags in updating assessments; the degree of
retrospective revision of assessment results; uncertainty in
projections; uncertainties due to the choice of assessment model;
longer-term uncertainties due to potential ecosystem and environmental
effects; or other factors.
(2) ABC control rule--(i) For stocks and stock complexes required
to have an ABC, each Council must establish an ABC control rule that
accounts for scientific uncertainty in the OFL and the Council's risk
policy. The Council's risk policy could be based, on an acceptable
probability (at least 50 percent) that catch equal to the stock's ABC
will not result in overfishing, but other appropriate methods can be
used. When determining the risk policy, Councils could consider the
economic, social, and ecological trade-offs between being more or less
risk averse. The Council's choice of a risk policy cannot result in an
ABC that exceeds the OFL. The process of establishing an ABC control
rule may involve science advisors or the peer review process
established under Magnuson-Stevens Act section 302(g)(1)(E).
(ii) The ABC control rule must articulate how ABC will be set
compared to the OFL based on the scientific knowledge about the stock
or stock complex and taking into account scientific uncertainty (see
paragraph (f)(1)(vi) of this section). The ABC control rule should
consider reducing fishing mortality as stock size declines below
Bmsy and as scientific uncertainty increases, and may
establish a stock abundance level below which directed fishing would
not be allowed. When scientific uncertainty cannot be directly
calculated, such as when proxies are used, then a proxy for the
uncertainty itself should be established based on the best scientific
information, including comparison to other stocks. The control rule may
be used in a tiered approach to address different levels of scientific
uncertainty. Councils can develop ABC control rules that allow for
changes in catch limits to be phased-in over time or to account for the
carry-over of some of the unused portion of the ACL from one year to
the next; in which case, the Council must provide a comprehensive
analysis and articulate within their FMP when the control rule can and
cannot be used and how the control rule prevents overfishing.
(A) Phase-in ABC control rules. Large changes in catch limits due
to new scientific information about the status of the stock can have
negative short-term effects on a fishing industry. To help stabilize
catch levels as stock assessments are updated, a Council may choose to
develop a control rule that phases in changes to ABC over a period of
time, not to exceed 3 years, as long as overfishing is prevented.
(B) Carry-over ABC control rules. An ABC control rule may include
provisions for carry-over of some of the unused portion of the ACL from
one year to increase the ABC for the next year, based on the increased
stock abundance resulting from the fishery harvesting less than the
full ACL. The resulting ABC recommended by the SSC must prevent
overfishing and consider scientific uncertainty consistent with the
Council's risk policy. In cases where an ACL has been reduced from the
ABC, carry-over provisions may not require the ABC to be re-specified
if the ACL can be adjusted upwards so that it is equal to or below the
existing ABC.
(3) Specification of ABC. ABC may not exceed OFL (see paragraph
(e)(2)(i)(D) of this section). Councils and their SSC should develop a
process by which the SSC can access the best scientific information
available regarding implementation of the ABC control rule. An SSC may
recommend an ABC that differs from the result of the ABC control rule
calculation, based on factors such as data uncertainty, recruitment
variability, declining trends in population variables, and other
factors, but must provide an explanation for the deviation. For
Secretarial FMPs or amendments, agency scientists or a peer review
process would provide the scientific advice to establish ABC. For
internationally-assessed stocks, an ABC as defined in these guidelines
is not required if stocks fall under the international exception (see
paragraph (h)(1)(ii) of this section). While the ABC is allowed to
equal OFL, NMFS expects that in most cases ABC will be reduced from OFL
to reduce the probability that overfishing might occur in a year.
(i) Expression of ABC. ABC should be expressed in terms of catch,
but may be expressed in terms of landings as long as estimates of
bycatch and any other fishing mortality not accounted for in the
landings are incorporated into the determination of ABC.
(ii) ABC for overfished stocks. For overfished stocks and stock
complexes, a rebuilding ABC must be set to reflect the annual catch
that is consistent with the schedule of fishing mortality rates (i.e.,
Frebuild) in the rebuilding plan.
[[Page 2807]]
(4) Setting the annual catch limit--(i) General. ACL cannot exceed
the ABC and may be set annually or on a multiyear plan basis. ACLs in
coordination with AMs must prevent overfishing (see MSA section
303(a)(15)). If an Annual Catch Target (ACT) is not used, management
uncertainty should be accounted for in the ACL. If a Council recommends
an ACL which equals ABC, and the ABC is equal to OFL, the Secretary may
presume that the proposal would not prevent overfishing, in the absence
of sufficient analysis and justification for the approach. A
``multiyear plan'' as referenced in section 303(a)(15) of the Magnuson-
Stevens Act is a plan that establishes harvest specifications or
harvest guidelines for each year of a time period greater than 1 year.
A multiyear plan must include a mechanism for specifying ACLs for each
year with appropriate AMs to prevent overfishing and maintain an
appropriate rate of rebuilding if the stock or stock complex is in a
rebuilding plan. A multiyear plan must provide that, if an ACL is
exceeded for a year, then AMs are implemented for the next year
consistent with paragraph (g)(3) of this section.
(ii) Sector-ACLs. A Council may, but is not required to, divide an
ACL into sector-ACLs. If sector-ACLs are used, sector-AMs should also
be specified. ``Sector,'' for purposes of this section, means a
distinct user group to which separate management strategies and
separate catch quotas apply. Examples of sectors include the commercial
sector, recreational sector, or various gear groups within a fishery.
If the management measures for different sectors differ in the degree
of management uncertainty, then sector-ACLs may be necessary so that
appropriate AMs can be developed for each sector. If a Council chooses
to use sector-ACLs, the sum of sector-ACLs must not exceed the stock or
stock complex level ACL. The system of ACLs and AMs designed must be
effective in protecting the stock or stock complex as a whole. Even if
sector-ACLs and AMs are established, additional AMs at the stock or
stock complex level may be necessary.
(iii) ACLs for State-Federal Fisheries. For stocks or stock
complexes that have harvest in state or territorial waters, FMPs and
FMP amendments should include an ACL for the overall stock that may be
further divided. For example, the overall ACL could be divided into a
Federal-ACL and state-ACL. However, NMFS recognizes that Federal
management is limited to the portion of the fishery under Federal
authority. See 16 U.S.C. 1856. When stocks are co-managed by Federal,
state, tribal, and/or territorial fishery managers, the goal should be
to develop collaborative conservation and management strategies, and
scientific capacity to support such strategies (including AMs for state
or territorial and Federal waters), to prevent overfishing of shared
stocks and ensure their sustainability.
(iv) Relationship between OY and the ACL framework. The dual goals
of NS1 are to prevent overfishing and achieve on a continuing basis OY.
The ABC is an upper limit on catch and is designed to prevent
overfishing. As described in paragraph (e)(3) of this section,
ecological, economic, and social factors, as well as values associated
with determining the greatest benefit to the Nation, are important
considerations in specifying OY. These OY considerations can also be
considered in the ACL framework. For example, an ACL (or ACT) could be
set lower than the ABC to account for OY considerations (e.g., needs of
forage fish, promoting stability, addressing market conditions, etc.).
Additionally, economic, social, or ecological trade-offs could be
evaluated when determining the risk policy for an ABC control rule (see
paragraph (f)(2) of this section). While OY is a long-term average
amount of desired yield, there is, for each year, an amount of fish
that is consistent with achieving the long-term OY. A Council can
choose to express OY on an annual basis, in which case the FMP or FMP
amendment should indicate that the OY is an ``annual OY.'' An annual OY
cannot exceed the ACL.
(g) Accountability measures (AMs)--(1) Introduction. AMs are
management controls to prevent ACLs, including sector-ACLs, from being
exceeded, and to correct or mitigate overages of the ACL if they occur.
AMs should address and minimize both the frequency and magnitude of
overages and correct the problems that caused the overage in as short a
time as possible. NMFS identifies two categories of AMs, inseason AMs
and AMs for when the ACL is exceeded. The FMP should identify what
sources of data will be used to implement AMs (e.g., inseason data,
annual catch compared to the ACL, or multi-year averaging approach).
(2) Inseason AMs. Whenever possible, FMPs should include inseason
monitoring and management measures to prevent catch from exceeding
ACLs. Inseason AMs could include, but are not limited to: an annual
catch target (see paragraph (g)(4) of this section); closure of a
fishery; closure of specific areas; changes in gear; changes in trip
size or bag limits; reductions in effort; or other appropriate
management controls for the fishery. If final data or data components
of catch are delayed, Councils should make appropriate use of
preliminary data, such as landed catch, in implementing inseason AMs.
FMPs should contain inseason closure authority giving NMFS the ability
to close fisheries if it determines, based on data that it deems
sufficiently reliable, that an ACL has been exceeded or is projected to
be reached, and that closure of the fishery is necessary to prevent
overfishing. For fisheries without inseason management control to
prevent the ACL from being exceeded, AMs should utilize ACTs that are
set below ACLs so that catches do not exceed the ACL.
(3) AMs for when the ACL is exceeded. On an annual basis, the
Council must determine as soon as possible after the fishing year if an
ACL was exceeded. If an ACL was exceeded, AMs must be implemented as
soon as possible to correct the operational issue that caused the ACL
overage, as well as any biological consequences to the stock or stock
complex resulting from the overage when it is known. These AMs could
include, among other things, modifications of inseason AMs, the use or
modification of ACTs, or overage adjustments. The type of AM chosen by
a Council will likely vary depending on the sector of the fishery,
status of the stock, the degree of the overage, recruitment patterns of
the stock, or other pertinent information. If an ACL is set equal to
zero and the AM for the fishery is a closure that prohibits fishing for
a stock, additional AMs are not required if only small amounts of catch
or bycatch occur, and the catch or bycatch is unlikely to result in
overfishing. For stocks and stock complexes in rebuilding plans, the
AMs should include overage adjustments that reduce the ACLs in the next
fishing year by the full amount of the overage, unless the best
scientific information available shows that a reduced overage
adjustment, or no adjustment, is needed to mitigate the effects of the
overage.
(4) Annual Catch Target (ACT) and ACT control rule. ACTs are
recommended in the system of AMs so that ACL is not exceeded. An ACT is
an amount of annual catch of a stock or stock complex that is the
management target of the fishery, and accounts for management
uncertainty in controlling the catch at or below the ACL. ACT control
rules can be used to articulate how management uncertainty is accounted
for in setting the ACT. ACT control rules can be developed by the
Council, in coordination with the SSC,
[[Page 2808]]
to help the Council account for management uncertainty.
(5) AMs based on multi-year average data. Some fisheries have
highly variable annual catches and lack reliable inseason or annual
data on which to base AMs. If there are insufficient data upon which to
compare catch to ACL, AMs could be based on comparisons of average
catch to average ACL over a three-year moving average period or, if
supported by analysis, some other appropriate multi-year period.
Councils should explain why basing AMs on a multi-year period is
appropriate. Evaluation of the moving average catch to the average ACL
must be conducted annually, and if the average catch exceeds the
average ACL, appropriate AMs should be implemented consistent with
paragraph (g)(3) of this section.
(6) AMs for State-Federal fisheries. For stocks or stock complexes
that have harvest in state or territorial waters, FMPs and FMP
amendments must, at a minimum, have AMs for the portion of the fishery
under Federal authority. Such AMs could include closing the EEZ when
the Federal portion of the ACL is reached, or the overall stock's ACL
is reached, or other measures.
(7) Performance standard. If catch exceeds the ACL for a given
stock or stock complex more than once in the last four years, the
system of ACLs and AMs should be reevaluated, and modified if
necessary, to improve its performance and effectiveness. If AMs are
based on multi-year average data, the performance standard is based on
a comparison of the average catch to the average ACL. A Council could
choose a higher performance standard (e.g., a stock's catch should not
exceed its ACL more often than once every five or six years) for a
stock that is particularly vulnerable to the effects of overfishing, if
the vulnerability of the stock has not already been accounted for in
the ABC control rule.
(h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP
amendments must establish ACL mechanisms and AMs for all stocks and
stock complexes that require conservation and management (see Sec.
600.305(c)), unless paragraph (h)(1) of this section is applicable.
These mechanisms should describe the annual or multiyear process by
which ACLs, AMs, and other reference points such as OFL, and ABC will
be established.
(1) Exceptions from ACL and AM requirements--(i) Life cycle.
Section 303(a)(15) of the Magnuson-Stevens Act ``shall not apply to a
fishery for species that has a life cycle of approximately 1 year
unless the Secretary has determined the fishery is subject to
overfishing of that species'' (as described in Magnuson-Stevens Act
section 303 note). This exception applies to a stock for which the
average age of spawners in the population is approximately 1 year or
less. While exempt from the ACL and AM requirements, FMPs or FMP
amendments for these stocks must have SDC, MSY, OY, ABC, and an ABC
control rule.
(ii) International fishery agreements. Section 303(a)(15) of the
Magnuson-Stevens Act applies ``unless otherwise provided for under an
international agreement in which the United States participates''
(Magnuson-Stevens Act section 303 note). This exception applies to
stocks or stock complexes subject to management under an international
agreement, which is defined as ``any bilateral or multilateral treaty,
convention, or agreement which relates to fishing and to which the
United States is a party'' (see Magnuson-Stevens Act section 3(24)).
These stocks would still need to have SDC, MSY, and OY.
(2) Flexibility in application of NS1 guidelines. There are limited
circumstances that may not fit the standard approaches to specification
of reference points and management measures set forth in these
guidelines. These include, among other things, conservation and
management of Endangered Species Act listed species, harvests from
aquaculture operations, stocks with unusual life history
characteristics (e.g., Pacific salmon, where the spawning potential is
concentrated in one year), and stocks for which data are not available
either to set reference points based on MSY or MSY proxies, or manage
to reference points based on MSY or MSY proxies. In these
circumstances, Councils may propose alternative approaches for
satisfying requirements of the Magnuson-Stevens Act other than those
set forth in these guidelines. Councils must document their rationale
for any alternative approaches in an FMP or FMP amendment, which will
be reviewed for consistency with the Magnuson-Stevens Act.
(i) Fisheries data. In their FMPs, or associated public documents
such as SAFE reports as appropriate, Councils must describe general
data collection methods, as well as any specific data collection
methods used for all stocks and stock complexes in their FMPs,
including:
(1) Sources of fishing mortality (both landed and discarded),
including commercial and recreational catch and bycatch in other
fisheries;
(2) Description of the data collection and estimation methods used
to quantify total catch mortality in each fishery, including
information on the management tools used (i.e., logbooks, vessel
monitoring systems, observer programs, landings reports, fish tickets,
processor reports, dealer reports, recreational angler surveys, or
other methods); the frequency with which data are collected and
updated; and the scope of sampling coverage for each fishery; and
(3) Description of the methods used to compile catch data from
various catch data collection methods and how those data are used to
determine the relationship between total catch at a given point in time
and the ACL for stocks and stock complexes that require conservation
and management.
(j) Council actions to address overfishing and rebuilding for
stocks and stock complexes--(1) Notification. The Secretary will
immediately notify in writing a Regional Fishery Management Council
whenever it is determined that:
(i) Overfishing is occurring;
(ii) A stock or stock complex is overfished;
(iii) A stock or stock complex is approaching an overfished
condition; or
(iv) Existing remedial action taken for the purpose of ending
previously identified overfishing or rebuilding a previously identified
overfished stock or stock complex has not resulted in adequate
progress.
(2) Timing of actions--(i) If a stock or stock complex is
undergoing overfishing. Upon notification that a stock or stock complex
is undergoing overfishing, a Council should immediately begin working
with its SSC (or agency scientists or peer review processes in the case
of Secretarially-managed fisheries) to ensure that the ABC is set
appropriately to end overfishing. Councils should evaluate the cause of
overfishing, address the issue that caused overfishing, and reevaluate
their ACLs and AMs to make sure they are adequate.
(ii) If a stock or stock complex is overfished or approaching an
overfished condition. Upon notification that a stock or stock complex
is overfished or approaching an overfished condition, a Council must
prepare and implement an FMP, FMP amendment, or proposed regulations
within two years of notification, consistent with the requirements of
section 304(e)(3) of the Magnuson-Stevens Act. Council actions should
be submitted to NMFS within 15 months of notification to ensure
sufficient time for the Secretary to implement the measures, if
approved.
[[Page 2809]]
(3) Overfished fishery. (i) Where a stock or stock complex is
overfished, a Council must specify a time period for rebuilding the
stock or stock complex based on factors specified in Magnuson-Stevens
Act section 304(e)(4). This target time for rebuilding
(Ttarget) shall be as short as possible, taking into
account: the status and biology of any overfished stock, the needs of
fishing communities, recommendations by international organizations in
which the U.S. participates, and interaction of the stock within the
marine ecosystem. In addition, the time period shall not exceed 10
years, except where biology of the stock, other environmental
conditions, or management measures under an international agreement to
which the U.S. participates, dictate otherwise. SSCs (or agency
scientists or peer review processes in the case of Secretarial actions)
shall provide recommendations for achieving rebuilding targets (see
Magnuson-Stevens Act section 302(g)(1)(B)). The above factors enter
into the specification of Ttarget as follows:
(A) The minimum time for rebuilding a stock (Tmin). Tmin means the
amount of time the stock or stock complex is expected to take to
rebuild to its MSY biomass level in the absence of any fishing
mortality. In this context, the term ``expected'' means to have at
least a 50 percent probability of attaining the Bmsy, where
such probabilities can be calculated. The starting year for the
Tmin calculation should be the first year that the
rebuilding plan is expected to be implemented.
(B) The maximum time for rebuilding a stock or stock complex to its
Bmsy (Tmax). (1) If Tmin for the stock or stock complex is
10 years or less, then Tmax is 10 years.
(2) If Tmin for the stock or stock complex exceeds 10
years, then one of the following methods can be used to determine
Tmax:
(i) Tmin plus the length of time associated with one
generation time for that stock or stock complex. ``Generation time'' is
the average length of time between when an individual is born and the
birth of its offspring,
(ii) The amount of time the stock or stock complex is expected to
take to rebuild to Bmsy if fished at 75 percent of MFMT, or
(iii) Tmin multiplied by two.
(3) When selecting a method for determining Tmax, a
Council must provide a rationale for its decision based on the best
scientific information available.
(C) Target time to rebuilding a stock or stock complex (Ttarget).
Ttarget is the specified time period for rebuilding a stock
that is considered to be in as short a time as possible, while taking
into account the factors described in paragraph (j)(3)(i) of this
section. Ttarget shall not exceed Tmax, and the
fishing mortality associated with achieving Ttarget is
referred to as Frebuild.
(ii) Council action addressing an overfished fishery must allocate
both overfishing restrictions and recovery benefits fairly and
equitably among sectors of the fishery.
(iii) For fisheries managed under an international agreement,
Council action addressing an overfished fishery must reflect
traditional participation in the fishery, relative to other nations, by
fishermen of the United States.
(iv) Adequate Progress. The Secretary shall review rebuilding plans
at routine intervals that may not exceed two years to determine whether
the plans have resulted in adequate progress toward ending overfishing
and rebuilding affected fish stocks (MSA section 304(e)(7)). Such
reviews could include the review of recent stock assessments,
comparisons of catches to the ACL, or other appropriate performance
measures. The Secretary may find that adequate progress is not being
made if Frebuild or the ACL associated with
Frebuild are exceeded, and AMs are not correcting the
operational issue that caused the overage and addressing any biological
consequences to the stock or stock complex resulting from the overage
when it is known (see paragraph (g)(3) of this section). A lack of
adequate progress may also be found when the rebuilding expectations of
a stock or stock complex are significantly changed due to new and
unexpected information about the status of the stock. If a
determination is made under this provision, the Secretary will notify
the appropriate Council and recommend further conservation and
management measures, and the Council must develop and implement a new
or revised rebuilding plan within two years (see MSA sections 304(e)(3)
and (e)(7)(B)). For Secretarially-managed fisheries, the Secretary
would take immediate action necessary to achieve adequate progress
toward ending overfishing and rebuilding.
(v) While a stock or stock complex is rebuilding, revising
rebuilding timeframes (i.e., Ttarget and Tmax) or
Frebuild is not necessary, unless the Secretary finds that
adequate progress is not being made.
(vi) If a stock or stock complex has not rebuilt by
Tmax, then the fishing mortality rate should be maintained
at its current Frebuild or 75 percent of the MFMT, whichever
is less, until the stock or stock complex is rebuilt or the Secretary
finds that adequate progress is not being made.
(4) Emergency actions and interim measures. If a Council is
developing a rebuilding plan or revising an existing rebuilding plan
due to a lack of adequate progress (see MSA section 304(e)(7)), the
Secretary may, in response to a Council request, implement interim
measures that reduce, but do not necessarily end, overfishing (see MSA
section 304(e)(6)) if all of the following criteria are met:
(i) The interim measures are needed to address an unanticipated and
significantly changed understanding of the status of the stock or stock
complex;
(ii) Ending overfishing immediately is expected to result in severe
social and/or economic impacts to a fishery; and
(iii) The interim measures will ensure that the stock or stock
complex will increase its current biomass through the duration of the
interim measures.
(5) Discontinuing a rebuilding plan based on new scientific
information. A Council may discontinue a rebuilding plan for a stock or
stock complex before it reaches Bmsy, if all of the
following criteria are met:
(i) The Secretary determines that the stock was not overfished in
the year that the overfished determination (see MSA section 304(e)(3))
was based on; and
(ii) The biomass of the stock is not currently below the MSST.
(6) Management measures for depleted stocks. In cases where an
overfished stock or stock complex is considered to be ``depleted'' (see
paragraph (e)(2)(i)(F) of this section), a Council may identify in its
rebuilding plan additional management measures or initiatives that
could improve the status of the stock, such as: reevaluating SDCs to
determine if they are representative of current environmental
conditions, recommending the restoration of habitat and other
ameliorative programs, identifying research priorities to improve the
Councils understanding of the impediments to rebuilding, or partnering
with Federal and state agencies to address non-fishing related impacts.
(k) International overfishing. If the Secretary determines that a
fishery is overfished or approaching a condition of being overfished
due to excessive international fishing pressure, and for which there
are no management measures (or no effective measures) to end
overfishing under an international agreement to which the United States
is a party, then the Secretary and/or the appropriate Council shall
take certain actions as provided under Magnuson-Stevens Act section
304(i). The
[[Page 2810]]
Secretary, in cooperation with the Secretary of State, must immediately
take appropriate action at the international level to end the
overfishing. In addition, within one year after the determination, the
Secretary and/or appropriate Council shall:
(1) Develop recommendations for domestic regulations to address the
relative impact of the U.S. fishing vessels on the stock. Council
recommendations should be submitted to the Secretary.
(2) Develop and submit recommendations to the Secretary of State,
and to the Congress, for international actions that will end
overfishing in the fishery and rebuild the affected stocks, taking into
account the relative impact of vessels of other nations and vessels of
the United States on the relevant stock. Councils should, in
consultation with the Secretary, develop recommendations that take into
consideration relevant provisions of the Magnuson-Stevens Act and NS1
guidelines, including section 304(e) of the Magnuson-Stevens Act and
paragraph (j)(3)(iii) of this section, and other applicable laws. For
highly migratory species in the Pacific, recommendations from the
Western Pacific, North Pacific, or Pacific Councils must be developed
and submitted consistent with Magnuson-Stevens Reauthorization Act
section 503(f), as appropriate.
(3) Considerations for assessing ``relative impact''. ``Relative
impact'' under paragraphs (k)(1) and (2) of this section may include
consideration of factors that include, but are not limited to: Domestic
and international management measures already in place, management
history of a given nation, estimates of a nation's landings or catch
(including bycatch) in a given fishery, and estimates of a nation's
mortality contributions in a given fishery. Information used to
determine relative impact must be based upon the best available
scientific information.
(l) Relationship of National Standard 1 to other national
standards--General. National Standards 2 through 10 provide further
requirements for conservation and management measures in FMPs (see MSA
section 301(a)), and guidelines for these standards are provided in
Sec. Sec. 600.315 through 600.355. Below is a description of how some
of the other National Standards intersect with National Standard 1.
(1) National Standard 2 (see Sec. 600.315). Management measures
and reference points to implement NS1 must be based on the best
scientific information available. When data are insufficient to
estimate reference points directly, Councils should develop reasonable
proxies to the extent possible (also see paragraph (e)(1)(v)(B) of this
section). In cases where scientific data are severely limited, effort
should also be directed to identifying and gathering the needed data.
SSCs should advise their Councils regarding the best scientific
information available for fishery management decisions.
(2) National Standard 3 (see Sec. 600.320). Reference points
should generally be specified in terms of the level of stock
aggregation for which the best scientific information is available
(also see paragraphs (e)(1)(ii) and (iii) of this section).
(3) National Standard 6 (see Sec. 600.335). Councils must build
into the reference points and control rules appropriate consideration
of risk, taking into account uncertainties in estimating harvest, stock
conditions, life history parameters, or the effects of environmental
factors.
(4) National Standard 8 (see Sec. 600.345). National Standard 8
addresses economic and social considerations and minimizing to the
extent practicable adverse economic impacts on fishing communities
within the context of preventing overfishing and rebuilding overfished
stocks as required under National Standard 1. Calculation of OY as
reduced from MSY also includes consideration of economic and social
factors, but the combination of management measures chosen to achieve
the OY must principally be designed to prevent overfishing and rebuild
overfished stocks.
(5) National Standard 9 (see Sec. 600.350). Evaluation of stock
status with respect to reference points must take into account
mortality caused by bycatch. In addition, the estimation of catch
should include the mortality of fish that are discarded.
(m) Exceptions to requirements to prevent overfishing. Exceptions
to the requirement to prevent overfishing could apply under certain
limited circumstances. Harvesting one stock at its optimum level may
result in overfishing of another stock when the two stocks tend to be
caught together (This can occur when the two stocks are part of the
same fishery or if one is bycatch in the other's fishery). Before a
Council may decide to allow this type of overfishing, an analysis must
be performed and the analysis must contain a justification in terms of
overall benefits, including a comparison of benefits under alternative
management measures, and an analysis of the risk of any stock or stock
complex falling below its MSST. The Council may decide to allow this
type of overfishing if the fishery is not overfished and the analysis
demonstrates that all of the following conditions are satisfied:
(1) Such action will result in long-term net benefits to the
Nation;
(2) Mitigating measures have been considered and it has been
demonstrated that a similar level of long-term net benefits cannot be
achieved by modifying fleet behavior, gear selection/configuration, or
other technical characteristic in a manner such that no overfishing
would occur; and
(3) The resulting rate of fishing mortality will not cause any
stock or stock complex to fall below its MSST more than 50 percent of
the time in the long term, although it is recognized that persistent
overfishing is expected to cause the affected stock to fall below its
Bmsy more than 50 percent of the time in the long term.
0
4. Section 600.320 is revised to read as follows:
Sec. 600.320 National Standard 3--Management Units.
(a) Standard 3. 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.
(b) General. The purpose of this standard is to induce a
comprehensive approach to fishery management. The geographic scope of
the fishery, for planning purposes, should cover the entire range of
the stocks(s) of fish, and not be overly constrained by political
boundaries. Wherever practicable, an FMP should seek to manage
interrelated stocks of fish.
(c) Unity of management. Cooperation and understanding among
entities concerned with the fishery (e.g., Councils, states, Federal
Government, international commissions, foreign nations) are vital to
effective management. Where management of a fishery involves multiple
jurisdictions, coordination among the several entities should be sought
in the development of an FMP. Where a range overlaps Council areas, one
FMP to cover the entire range is preferred. The Secretary designates
which Council(s) will prepare the FMP (see section 304(f) of the
Magnuson-Stevens Act).
(d) Management unit. The term ``management unit'' means a fishery
or that portion of a fishery identified in an FMP as relevant to the
FMP's management objectives. Stocks in the fishery management unit are
considered to be in need of conservation and management (see Sec.
600.305(c)).
[[Page 2811]]
(1) Basis. The 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.
(2) Conservation and management measures. FMPs should include
conservation and management measures for that part of the management
unit within U.S. waters, although the Secretary can ordinarily
implement them only within the EEZ. The measures need not be identical
for each geographic area within the management unit, if the FMP
justifies the differences. A management unit may contain stocks of fish
for which there is not enough information available to specify MSY and
OY or their proxies.
(e) Analysis. An FMP should include discussion of the following:
(1) The range and distribution of the stocks, as well as the
patterns of fishing effort and harvest.
(2) Alternative management units and reasons for selecting a
particular one. A less-than-comprehensive management unit may be
justified if, for example, complementary management exists or is
planned for a separate geographic area or for a distinct use of the
stocks, or if the unmanaged portion of the resource is immaterial to
proper management.
(3) Management activities and habitat programs of adjacent states
and their effects on the FMP's objectives and management measures.
Where state action is necessary to implement measures within state
waters to achieve FMP objectives, the FMP should identify what state
action is necessary, discuss the consequences of state inaction or
contrary action, and make appropriate recommendations. The FMP should
also discuss the impact that Federal regulations will have on state
management activities.
(4) Management activities of other countries having an impact on
the fishery, and how the FMP's management measures are designed to take
into account these impacts. International boundaries may be dealt with
in several ways. For example:
(i) By limiting the management unit's scope to that portion of the
stock found in U.S. waters;
(ii) By estimating MSY for the entire stock and then basing the
determination of OY for the U.S. fishery on the portion of the stock
within U.S. waters; or
(iii) By referring to treaties or cooperative agreements.
0
5. Section 600.340 is revised to read as follows:
Sec. 600.340 National Standard 7--Costs and Benefits.
(a) Standard 7. Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary duplication.
(b) Alternative management measures. Management measures should not
impose unnecessary burdens on the economy, on individuals, on private
or public organizations, or on Federal, state, or local governments.
Factors such as fuel costs, enforcement costs, or the burdens of
collecting data may well suggest a preferred alternative.
(c) Analysis. The supporting analyses for FMPs should demonstrate
that the benefits of fishery regulation are real and substantial
relative to the added research, administrative, and enforcement costs,
as well as costs to the industry of compliance. In determining the
benefits and costs of management measures, each management strategy
considered and its impacts on different user groups in the fishery
should be evaluated. This requirement need not produce an elaborate,
formalistic cost/benefit analysis. Rather, an evaluation of effects and
costs, especially of differences among workable alternatives, including
the status quo, is adequate. If quantitative estimates are not
possible, qualitative estimates will suffice.
(1) Burdens. Management measures should be designed to give
fishermen the greatest possible freedom of action in conducting
business and pursuing recreational opportunities that are consistent
with ensuring wise use of the resources and reducing conflict in the
fishery. The type and level of burden placed on user groups by the
regulations need to be identified. Such an examination should include,
for example: Capital outlays; operating and maintenance costs;
reporting costs; administrative, enforcement, and information costs;
and prices to consumers. Management measures may shift costs from one
level of government to another, from one part of the private sector to
another, or from the government to the private sector. Redistribution
of costs through regulations is likely to generate controversy. A
discussion of these and any other burdens placed on the public through
FMP regulations should be a part of the FMP's supporting analyses.
(2) Gains. The relative distribution of gains may change as a
result of instituting different sets of alternatives, as may the
specific type of gain. The analysis of benefits should focus on the
specific gains produced by each alternative set of management measures,
including the status quo. The benefits to society that result from the
alternative management measures should be identified, and the level of
gain assessed.
[FR Doc. 2015-00586 Filed 1-15-15; 4:15 pm]
BILLING CODE 3510-22-P