Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard Guidelines, 32526-32547 [08-1328]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 111 (Monday, June 9, 2008)]
[Proposed Rules]
[Pages 32526-32547]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1328]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 070717348-7766-02]
RIN 0648-AV60


Magnuson-Stevens Act Provisions; Annual Catch Limits; 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 
Standard 1 (NS1) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA). This action is necessary to provide guidance on 
how to comply with new annual catch limit (ACL) and accountability 
measure (AM) requirements for ending overfishing of fisheries managed 
by federal fishery management plans (FMPs). It also clarifies the 
relationship between ACLs, maximum sustainable yield (MSY), optimum 
yield (OY), and other applicable reference points. The intent of this 
action is to facilitate compliance with requirements of the Magnuson-
Stevens Act to end and prevent overfishing, rebuild overfished stocks 
and achieve OY.

DATES: Comments must be received by September 8, 2008.

ADDRESSES: You may submit comments, identified by 0648-AV60, by any of 
the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal: https://
www.regulations.gov;
     Fax: 301-713-1193, Attn: Mark Millikin;
     Mail: Mark R. Millikin, National Marine Fisheries Service, 
NOAA, Office of Sustainable Fisheries, 1315 East-West Highway, Room 
13357, Silver Spring, MD 20910 (mark outside of envelope ``Comments on 
Annual Catch Limits proposed rule'');
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, Wordperfect, or 
Adobe PDF file formats only.
    Copies of the Regulatory Impact Review (RIR)/Regulatory Flexibility 
Act Analysis (RFAA) for this proposed rule are available from Mark R. 
Millikin at the address listed above. The RIR/RFAA document is also 
available via the internet at https://www.nmfs.noaa.gov/msa2007/
catchlimits.htm.

FOR FURTHER INFORMATION CONTACT: Mark R. Millikin, Senior Fishery 
Management Specialist, 301-713-2341.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of Proposed Revisions
II. Acronyms
III. Background
IV. NMFS's Proposed Rule for Further Revisions to NS1 Guidelines in 
2005
V. NMFS's Initial Action on MSRA Requirements for ACLs
VI. MSRA Ending Overfishing Requirements
VII. Reasons for Overfishing and Expectations for ACLs to Prevent/
End Overfishing

[[Page 32527]]

VIII. Definition, Interpretation, and Application of the Term 
``Fishery'' and Its Relevance to ACLs
    A. Stocks in the Fishery
    B. Ecosystem Component Species
    C. Stocks Identified in More Than One FMP
    D. Stock Complexes
IX. Statutory Exceptions to Requirements for ACLs and AMs and 
Flexibility in Application of the NS1 Guidelines
X. MSRA Requirements for SSCs Related to ACLs
XI. MSY, OY, and SDC: A Review
XII. Description of the Relationship of OFL to MSY and ACT to OY
XIII. Definition Framework for OFL, ABC, ACL, and ACT
XIV. Control Rules
XV. Sector ACLs, ACTs, and AMs
XVI. Accountability Measures
XVII. Summary of Items to Include in FMPs
XVIII. Change in Timetable When Establishing a Rebuilding Plan
XIX. Establishing the Length of Time for a Rebuilding Plan
XX. Action When a Stock's Rebuilding Plan Ends and the Stock Is Not 
Rebuilt
XXI. Changes to the definitions of Some Components of MSY
XXII. Social, Economic and Ecological Factors as They Relate to OY
XXIII. Scope of This Proposed Action
XXIV. Republishing Codified Text in Its Entirety
XXV. Classification

I. Overview of Proposed Revisions

    NMFS fulfills the requirements of section 301(b) of the Magnuson-
Stevens Act--``The Secretary shall establish advisory guidelines (which 
shall not have the force and effect of law), based on national 
standards, to assist in the development of fishery management plans,'' 
with its national standard guidelines that appear at 50 CFR 600.310 
through 50 CFR 600.355. NMFS is proposing revisions to the NS1 
guidelines to address, among other things, new requirements for 
fisheries undergoing overfishing, to have ACLs and AMs to end 
overfishing by 2010, and all fisheries to have ACLs and AMs in place to 
prevent or end overfishing by 2011, and beyond. A stock or stock 
complex may not require an ACL and AMs if it qualifies for a statutory 
exception under the Magnuson-Stevens Act. Other proposed revisions to 
the NS1 guidelines include: (1) A description of the relationship 
between MSY, OY, overfishing limits (OFL), acceptable biological catch 
(ABC), ACLs, and annual catch targets (ACTs); (2) guidance on how to 
combine the use of ACLs and AMs for a stock to prevent overfishing when 
possible, and adjust ACTs or ACLs, or both, and AMs, if an ACL is 
exceeded; (3) allowing for inclusion of ecosystem component (EC) 
species in FMPs and, in such cases, guidance for how to classify which 
stocks are ``in the fishery'' and which species are ecosystem 
components; (4) replacing MSY control rules with ABC control rules and 
replacing OY control rules with ACT control rules; (5) new requirements 
for scientific and statistical committees (SSC); (6) changing the 
timeline to prepare new rebuilding plans; (7) revised guidance on how 
to establish rebuilding time targets; and (8) advice on action to take 
at the end of a rebuilding period if a stock is not yet rebuilt.

II. Acronyms

ABC--acceptable biological catch
ACL--annual catch limit
ACT--annual catch target
AM--accountability measures
ANPR--Advance Notice of Proposed Rulemaking
Bmsy--MSY stock size
EC--ecosystem component species
EEZ--Exclusive Economic Zone
Fmsy--MSY fishing mortality rate
FMP--fishery management plan
MFMT--maximum fishing mortality threshold
MSA--Magnuson-Stevens Act
MSRA--Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act
MSST--minimum stock size threshold
MSY--maximum sustainable yield
NOI--Notice of Intent
NS1--National Standard 1
OFL--overfishing limit
OY--optimum yield
SDC--status determination criteria
SFA--Sustainable Fisheries Act
SSC--scientific and statistical committee
Tmax--maximum time allowable for rebuilding a stock
Tmin--minimum time for rebuilding a stock
Ttarget--target time for rebuilding a stock

III. Background

    The MSA serves as the chief authority for fisheries management in 
the U.S. Exclusive Economic Zone (EEZ). Section 301(b) of the MSA 
requires that ``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.'' Guidelines for the national standards are codified in subpart 
D of 50 CFR part 600. The guidelines for national standards were last 
revised through a final rule published in the Federal Register on May 
1, 1998 (63 FR 24212), by adding revisions to the guidelines for 
National Standards 1 (optimum yield), 2 (scientific information), 4 
(allocations), 5 (efficiency), and 7 (costs and benefits); and adding 
new guidelines for National Standards 8 (communities), 9 (bycatch), and 
10 (safety of life at sea).
    The guidelines for NS1 were revised extensively in the final rule 
published on May 1, 1998, to bring them into conformance with revisions 
to the MSA, as amended in 1996 by the Sustainable Fisheries Act (SFA). 
In particular, the 1998 revisions to the NS1 guidelines addressed new 
requirements for FMPs brought about by SFA amendments to MSA section 
304(e) (rebuilding overfished fisheries).
    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA), which President Bush signed into 
law on January 12, 2007, included new requirements regarding preventing 
and ending overfishing and rebuilding fisheries. Therefore, NMFS is 
proposing revisions to the NS1 guidelines at 50 CFR 600.310, to 
integrate these new requirements with existing provisions related to 
overfishing, rebuilding overfished stocks, and achieving optimum yield.

IV. NMFS's Proposed Rule for Further Revisions to NS1 Guidelines in 
2005

    NMFS published an advance notice of proposed rulemaking (ANPR) in 
2003 (68 FR 7492, February 14, 2003), and a proposed rule in 2005 (70 
FR 36240, June 22, 2005), in the Federal Register to propose further 
revisions to the NS1 guidelines. NMFS sought to improve the utility of 
the 1998 guidelines in assisting the regional fishery management 
councils, and the Secretary of Commerce (Secretary) in the case of a 
Secretarial Amendment or a Secretarial FMP (denoted collectively 
hereafter as ``Councils,'' as 50 CFR 600.305(c)(11) provides that 
``Council'' includes both the regional fishery management councils and 
the Secretary when preparing FMPs or amendments), when establishing or 
revising status determination criteria (SDC) for overfishing and 
overfished definitions for stocks, and constructing or revising 
rebuilding plans for overfished stocks.
    Although NMFS received many public comments on the ANPR and the 
2005 proposed rule, NMFS decided not to pursue publication of a final 
rule when it learned that Congress was preparing an amendment to the 
MSA that seemed likely to revise how to manage stocks undergoing 
overfishing and stocks that need a rebuilding plan. Congress's efforts 
culminated in passage of the 2006 MSRA.

[[Page 32528]]

V. NMFS's Initial Action on MSRA Requirements for ACLs

    NMFS published a notice of intent (NOI) to prepare an environmental 
impact statement (EIS) and commencement of a scoping period for ACLs 
and AMs in the Federal Register on February 14, 2007 (72 FR 7016), with 
a comment period ending date of April 17, 2007. NMFS held nine scoping 
sessions, one associated with each of the eight Regional Fishery 
Management Councils' meetings and one at NMFS Headquarters in Silver 
Spring, MD. Comments that NMFS received are contained in ``Summary of 
Comments Received on NMFS Proposal to Develop Guidance on ACLs and AMs, 
July 2007,'' that is available at the NMFS Web site: https://
www.nmfs.noaa.gov/msa2007/catchlimits.htm.
    The NOI indicated that an environmental assessment or EIS would be 
prepared for this action. However, NMFS has decided that, for purposes 
of compliance with the National Environmental Policy Act, a categorical 
exclusion is appropriate for this action. The proposed action would 
provide general guidance on ACL and AM and other requirements, but 
there is considerable diversity in federally-managed fisheries and 
FMPs. Thus, any analysis of the environmental, economic, and social 
impacts of the NS1 guidelines would be highly speculative. Potential 
environmental, economic, and social impacts cannot be meaningfully 
analyzed until the Councils apply the guidelines to specific fisheries 
and FMPs. At that time, the Councils would prepare an EIS or EA, as 
appropriate.

VI. MSRA Ending Overfishing Requirements

    Section 104(a)(10) of the MSRA established new requirements to end 
and prevent overfishing, including ACLs and AMs. Section 303(a)(15) was 
added to the MSA to read as follows: ``establish a mechanism for 
specifying annual catch limits in the plan (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.'' ACLs and AMs are required by fishing year 
2010 if overfishing is occurring in a fishery, and they are required 
for all other fisheries by fishing year 2011.
    In practical terms, given the time it takes to prepare and 
implement an FMP amendment, if the status of one or more stocks in a 
fishery at the end of 2008 is ``subject to overfishing,'' Councils 
should submit ACL and AM mechanisms and actual ACLs for that fishery to 
be effective in fishing year 2010. If overfishing is determined to be 
occurring in a fishery in 2009, Councils should submit ACL and AM 
mechanisms and actual ACLs for that fishery to be effective in fishing 
year 2010, if possible, or in fishing year 2011, at the latest. All 
fisheries must have ACL and AM mechanisms and actual ACLs by the 
fishing year 2011, and beyond. The Secretary should amend Secretarial 
FMPs, to comply with ACL and AM requirements on the same timetable. 
Section 305(c) of the MSA, which was unchanged by MSRA, also provides 
authority to the Secretary to promulgate emergency regulations or 
interim measures necessary to address an emergency or overfishing for 
any fishery without regard to whether an FMP exists for such fishery.
    NMFS recognizes that the phrase, ``at a level such that overfishing 
does not occur'' in section 303(a)(15) of the MSA is subject to 
different interpretations, as reflected in the varying comments 
received during scoping. On the one hand, the phrase could be 
interpreted to mean that overfishing is strictly prohibited at any 
cost. On the other hand, section 303(a)(15) refers to a ``mechanism'' 
for setting ACLs, including AMs, which seems to imply a more dynamic 
process that allows for adjustment of management measures as a fishery 
is carried out. The only way to ensure absolutely no overfishing occurs 
is to stop fishing. As long as fishing occurs, there is a chance for 
occasional instances of overfishing due to scientific uncertainty of 
data, influence of non-fishing factors, and management uncertainty. 
Continued overfishing for a period of years (chronic overfishing), 
presents the greatest danger to the health of fish stocks, and often 
leads to stocks becoming overfished. NMFS has noted that overfished 
stocks with chronic overfishing seem to seldom rebuild, whereas 
overfished stocks that are rarely subject to overfishing have a better 
chance of rebuilding.
    Taking the above considerations into account, NMFS believes that 
the ACL requirement should be interpreted to provide for some 
flexibility given scientific and management uncertainty and other 
factors, but at the same time, must address overfishing and facilitate 
rebuilding. Chronic overfishing can be prevented by ensuring that the 
combination of ACLs and AMs decrease the risk of future overfishing 
each successive time an ACL is exceeded. NMFS thus proposes a 
performance standard such that if catch of a stock exceeds its ACL more 
often than once in the last four years (i.e., more often than 25 
percent of the time), then the system of ACLs, ACTs and AMs should be 
re-evaluated to improve its performance and effectiveness (see Sec.  
600.310(g)(3) in this proposed action). NMFS believes that allowing a 
higher frequency of the ACL being exceeded would not safeguard enough 
against overfishing. 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.

VII. Reasons for Overfishing and Expectations for ACLs to Prevent/End 
Overfishing

    The ``NMFS Fourth Quarterly Report for 2007 Status of U.S. 
Fisheries'' indicates that 41 stocks managed by federal FMPs were 
undergoing overfishing as of December 31, 2007. Stocks become listed as 
``overfishing'' or remain in an overfishing status for a variety of 
reasons, including:
    1. The goal of the FMP may be to end overfishing over several years 
by gradually reducing fishing mortality rates instead of ending 
overfishing immediately.
    2. Management measures have proven ineffective at ending 
overfishing (e.g., lack of inseason closure authority for the fishery 
or management measures are aimed at achieving a target catch that is 
set too close to the catch amount that results in overfishing, or 
both).
    3. Management measures to address overfishing have not been 
implemented yet.
    4. Recent change in scientific advice (i.e., the Council has not 
had sufficient time to amend the FMP and no automatic measures exist in 
the FMP to make necessary adjustments to end overfishing in the 
subsequent fishing year).
    5. Bycatch mortality in other fisheries has not been addressed 
adequately or is poorly known.
    6. Data sufficient to verify whether or not overfishing is 
occurring are not available, so the existing overfishing determination 
is retained.
    7. International fishing pressure is responsible for the large 
majority of overfishing.
    8. Fishing pressure in state or territorial waters is responsible 
for the large majority of overfishing, federal action alone is not 
sufficient to end overfishing, and managers in the various 
jurisdictions are unable thus far to agree on a concerted approach for 
preventing overfishing.
    NMFS believes that the ACL and AM requirements will address 
overfishing that results from reasons 1, 2, 3, and 4

[[Page 32529]]

above. Better scientific data, along with adequate ACLs and AMs, should 
enable Councils to prevent overfishing for reasons 5 and 6. Stocks that 
are undergoing overfishing for reason 7 would be exempt from the ACL 
requirement (see Sec. Sec.  600.310(h)(2)(ii) and 600.310(k) of this 
proposed action for discussion of international fisheries). There may 
be circumstances where managers in various jurisdictions are unable to 
agree on an ACL and AMs that would end or prevent overfishing for a 
fishery described under reason 8. In such cases, these proposed 
guidelines would require an ACL for the overall fishery, but AMs would 
be implemented only for the portion of the fishery under federal 
management authority.

VIII. Definition, Interpretation, and Application of the Term 
``Fishery'' and Its Relevance to ACLs

    The MSA, as amended by MSRA, requires that a Council shall develop 
ACLs ``for each of its managed fisheries'' (see MSA section 302(h)(6)) 
and as noted earlier, that each FMP have a mechanism for specifying 
ACLs ``at a level such that overfishing does not occur in the fishery'' 
(see MSA section 303(a)(15)). Consistent with these sections of the 
MSA, the proposed NS1 guidelines provide that ACLs and AMs are needed 
for each ``fishery'' under federal FMP management, unless covered by a 
statutory exception.
    The MSA defines ``fishery'' broadly, and this definition did not 
change with the passage of the MSRA. A ``fishery'' is ``one or more 
stocks of fish which can be treated as a unit for purposes of 
conservation and management and which are identified on the basis of 
geographical, scientific, technical, recreational and economic 
characteristics,'' and ``any fishing of such stocks'' (see MSA section 
3(13) and 50 CFR 600.10). The term ``fishery'' can mean different 
things in different contexts. For example, when dealing with biological 
concepts such as determining a status of overfishing or overfished, the 
NS1 guidelines generally apply at the ``stock or stock complex'' level 
(See, e.g., 50 CFR 600.310(c)(1), (d) (defining MSY and ``overfish'' 
with regard to ``stock or stock complex'') and Sec.  600.305(c)(12) 
(explaining that ``stock or stock complex'' is used as a synonym for 
``fishery'' in NS guidelines). In other instances, such as managing a 
fishery for OY, the term ``fishery'' is viewed more broadly (see 50 CFR 
600.310(f) (referring to OY at the ``fishery'' and not the ``stock or 
stock complex'' level)).
    Given the broad definition of ``fishery,'' the Councils have had, 
and continue to have, considerable discretion in defining the 
``fishery'' under FMPs. Some FMPs include only one or a few stocks 
whereas others include several or hundreds of species. Looking at 
existing FMPs, the primary reasons why stocks are included in FMPs are 
because people seek to harvest them for sale or personal use (i.e., the 
fish are the target of fishing activity), or they are caught 
incidentally in the pursuit of harvesting one or more other stocks and 
could experience overfishing or become overfished without conservation 
and management measures. These reasons are consistent with the stated 
purposes of the MSA, which includes the preparation and implementation 
of FMPs ``which will achieve and maintain, on a continuing basis, the 
optimum yield from each fishery'' (see MSA section 2(b)(4)). OY is 
defined with regard to ``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'' (see MSA section 3(33)).
    While the focus of FMPs has been stocks managed for OY, in recent 
years, some FMPs have included other stocks in an effort to incorporate 
ecosystem approaches to management. Congress acknowledged this 
increased attention to ecosystem approaches in the ``Findings'' section 
of the Act (see MSA section 2(a)(11) (acknowledging that a number of 
Councils have demonstrated significant progress in integrating 
ecosystem considerations under existing authorities of the MSA)). In 
addition, MSRA added a new section 303(b)(12) that provides that an FMP 
may ``include management measures in the plan to conserve target and 
non-target species and habitats, considering the variety of ecological 
factors affecting fishery populations.''
    NMFS wants to encourage ecosystem approaches to fishery management 
and believes that clarification of what constitutes the ``fishery'' 
would be helpful. As such, NMFS is proposing guidance pertaining to 
``stocks in the fishery'' and ``ecosystem component (EC) species,'' 
which are described in detail below. The intent of this guidance is to 
articulate approaches taken under existing FMPs and to provide a 
framework for thinking about future FMPs and FMP amendments. The 
Councils would have the discretion to determine, on a case-by-case 
basis, whether changes in their stock classifications under current 
FMPs are needed.

A. Stocks in the Fishery

    As a default, all stocks currently identified in an FMP are 
considered ``stocks in the fishery.'' ``Stocks in the fishery'' would 
include target stocks (i.e., stocks that fishers seek to catch for sale 
or personal use, including ``economic discards'' as defined under MSA 
section 3(9)), non-target stocks that are retained for sale or personal 
use, and non-target stocks that are not retained for sale or personal 
use and that are either determined to be subject to overfishing, 
approaching overfished, or overfished, or could become so, according to 
the best scientific information available, without conservation and 
management measures (see Figure 1 and Sec.  600.310(d)(2) of this 
proposed action). Stocks and stock complexes in the fishery should have 
quantitative SDC, MSY, ABC, ACL, and ACT (collectively called 
``reference points'' throughout this section) and AMs (see Table 1 for 
reference points needed for different types of stocks, and see Sec.  
600.310(b)(2)(iv) of this proposed action), although some stocks in the 
fishery may not require ACLs and AMs if they are covered by a statutory 
exception (see Sec.  600.310(h)(2) of this proposed action). Hereafter, 
in these guidelines, ``stock'' or ``stock(s) and stock complex(es)'' 
refer to ``stocks in the fishery.''

B. Ecosystem Component Species

    Beyond the ``stocks in the fishery,'' a Council may, but is not 
required to, include EC species in an FMP. Such species would include 
non-target fish species that are not considered part of the ``fishery'' 
but rather species with which the fishery may occasionally interact 
(i.e., catch) (see Sec.  600.310(d)(5) of this proposed action). A 
Council may choose to include EC species for purposes of incorporating 
ecosystem approaches to fishery management, data collection, etc. 
Identification of EC species must be done through an FMP amendment 
process (see Sec.  600.310(d) of this proposed action). Such species 
are appropriate to consider when addressing specification of OY and 
conservation and management measures for the fishery (see MSA sections 
3(33) (referring to taking into account the marine ecosystems in OY 
definition), and 3(5) (referring to avoiding irreversible or long-term 
effects on fishery resources and the marine environment and ensuring 
multiplicity of options)). Because EC species are not considered to be 
``in the fishery,'' specification of reference points, ACLs, and AMs 
are not required (see Table 1). However, a Council should consider

[[Page 32530]]

measures for the fishery to minimize bycatch and bycatch mortality of 
EC species consistent with National Standard 9, and to protect their 
associated role in the ecosystem. NMFS is especially interested in the 
public's comments on the appropriate criteria for classification of EC 
species.

C. Stocks Identified in More Than One FMP

    If a stock is identified as part of more than one ``fishery,'' 
Councils should choose which FMP will be the ``primary FMP'' in which 
management objectives, SDC, and other reference points for the stock 
are established. In most cases, the primary FMP for a stock will be the 
one in which the stock is identified as a target stock. Other FMPs in 
which the stock is identified as part of a fishery should contain 
management measures consistent with the primary FMP for the stock.
[GRAPHIC] [TIFF OMITTED] TP09JN08.000


  Table 1.--Reference Points, Accountability Measures, and Control Rules That Would Be Required or Recommended
----------------------------------------------------------------------------------------------------------------
                                     Stocks and stock
                                      complexes in a                             Stocks and stock
                                    fishery (excluding     Stocks and stock       complexes in a
                                       those with an        complexes in a        fishery managed     Ecosystem
Reference points,  accountability   approximate 1 year    fishery that have a        under an         component
   measures, and control rules     life cycle and those      life cycle of         international     species \4\
                                       managed under     approximately 1 year   fishery  agreement
                                       international                                    \3\
                                    fishery agreements)
----------------------------------------------------------------------------------------------------------------
MSY \1\..........................  [check].............  [check].............  [check].............          N/A
SDC \1\ (e.g. MFMT \2\, MSST \2\)  [check].............  [check].............  [check].............          N/A
OY \1\...........................  At the stock, stock   At the stock, stock   R...................          N/A
                                    complex, or fishery   complex, or fishery
                                    level.                level.
OFL \2\..........................  R...................  R...................  R...................          N/A
ABC \1\..........................  [check].............  [check].............  R...................          N/A
ACL \1\..........................  [check].............  Only if ``subject to  R...................          N/A
                                                          overfishing''.
AMs \1\..........................  [check].............  Only if ``subject to  R...................          N/A
                                                          overfishing''.
ACT \2\..........................  [check].............  Only if ``subject to  R...................          N/A
                                                          overfishing''.
ABC control rule \2\.............  [check].............  [check].............  R...................          N/A
ACT control rule \2\.............  [check].............  R...................  R...................         N/A
----------------------------------------------------------------------------------------------------------------
\1\ MSA requirement.
\2\ For consistency with the NS1 Guidelines.
\3\ If the stock is in a U.S. FMP and managed under an international fishery agreement to which the U.S. is
  party.
\4\ Not required by MSA, but an option provided in the NS1 Guidelines.
Legend:
[check] = Yes, this is applicable.
ABC = Acceptable Biological Catch.
ACL = Annual Catch Limit.
AM = Accountability Measures.
MFMT = Maximum Fishing Mortality Threshold.
MSST = Minimum Stock Size Threshold.

[[Page 32531]]

 
MSY = Maximum Sustainable Yield.
N/A = Not Applicable.
OFL = Overfishing Limit.
OY = Optimum Yield.
R = Recommended.
SDC = Status Determination Criteria.

D. Stock Complexes

    ``Stock complex'' means a group of stocks in an FMP that are 
sufficiently similar in geographic distribution, life history, and 
vulnerability to the fishery that the impacts of management actions on 
the stocks in the complex is similar (see Sec.  600.310(d)(8) of this 
proposed action). Stock complexes may be comprised of: (1) One or more 
indicator stocks, each of which has SDC and ACLs, and several other 
stocks; (2) several stocks without an indicator stock, with SDC and an 
ACL for the complex as a whole; or (3) one or more indicator stocks, 
each of which has SDC and management objectives, with an ACL for the 
complex as a whole (this situation might be applicable to some salmon 
species).
    For stock complexes, the SDC measured on a stock complex-wide basis 
or for an indicator stock should satisfy the MSA's requirements to 
prevent overfishing and achieve OY for a fishery. Vulnerability of 
stocks to the fishery should be evaluated when determining if: (1) A 
particular stock complex should be established or reorganized; (2) a 
particular stock should be a member of a stock complex; or (3) a stock 
complex should be reorganized. Indicator stocks are stocks selected as 
a representative for a stock complex because they have known 
determinations regarding SDC, and known values for MSY and OY, and can 
form the basis for an MSY and OY for the combinations of stocks in a 
complex. Although it is common for the indicator stock for a stock 
complex to be the most abundant stock, if an indicator stock is less 
vulnerable than other stocks in the complex, the management measures 
should be more conservative to protect the more vulnerable stocks from 
overfishing.

IX. Statutory Exceptions to Requirements for ACLs and AMs and 
Flexibility in Application of NS1 Guidelines

    The MSRA provides two statutory exceptions to the ACL and AM 
requirements under MSA section 303(a)(15) (see MSRA section 104(b) 
(adding two exceptions under a MSA section 303 note); see also Sec.  
600.310(h)(2) of this proposed action). First, MSA section 303(a)(15) 
``shall not apply to 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'' (see MSRA section 104(b)(2)). 
NMFS interprets ``fishery for species'' to be a stock. In addition, 
NMFS interprets ``a life cycle of approximately 1 year'' to mean that 
the average length of time it takes for an individual to produce a 
reproductively active offspring is approximately 1 year, and that the 
individual has only one breeding season in its lifetime. While stocks 
that qualify for the 1-year life cycle exception would not need to have 
ACLs and AMs, such stocks should still have SDC, MSY, OY, ABC, and an 
ABC control rule.
    Second, MSA section 303(a)(15) shall take effect in 2010 and 2011, 
as discussed earlier, ``unless otherwise provided for under an 
international agreement in which the United States participates'' (see 
MSRA section 104(b)(1)). It is not clear to what the text ``unless 
otherwise provided for'' is referring. NMFS has considered several 
possible interpretations of this text in light of other provisions in 
MSRA, including the new international overfishing provisions in MSA 
section 304(i). Prior to MSRA, fisheries managed under international 
agreements in which the United States participates (referred to in this 
action as ``international fisheries'') were subject to MSA section 
304(e) requirements regarding overfishing and rebuilding. However, in 
many of these fisheries, the United States could not unilaterally end 
overfishing or rebuild the stocks. New MSA section 304(i) and other 
MSRA provisions acknowledge the increasing problem of international 
overfishing and the challenges of establishing conservation and 
management measures at the international level. Given Congress's 
recognition of the increasing problem of international overfishing and 
the complexities of international negotiation, NMFS believes that the 
ACL exception should apply to fisheries that are subject to management 
under international agreements in which the United States participates. 
Applying ACLs or AMs only to the U.S. portion of the catch would not 
effect rebuilding or end overfishing, would potentially disadvantage 
U.S. fishermen with respect to foreign fishermen, and could weaken U.S. 
negotiating positions at international fora in which it participates.
    Apart from the statutory exceptions, NMFS recognizes that there are 
limited circumstances that do not fit the standard approaches to 
specification of reference points and management measures set forth in 
the proposed revisions to the NS1 guidelines. These include, among 
other things, conservation and management of ESA-listed species, 
harvests from aquaculture operations, and stocks with unusual life 
history characteristics (e.g., Pacific salmon, where the spawning 
potential for a stock is spread over a multi-year period). For 
fisheries where ESA-listed species are incidentally caught, the ESA 
recovery plan would be a significant driver for setting management 
objectives, including ACLs, for the fishery. For aquaculture, once 
managers address status of broodstock taken from the wild (i.e., 
whether overfishing is occurring and/or whether the stock is in need of 
rebuilding), then the levels of harvests from an aquaculture facility 
would not necessarily need to focus on ending or preventing overfishing 
or rebuilding stocks. In these circumstances, Councils may propose 
alternative approaches for satisfying the NS1 requirements of the 
Magnuson-Stevens Act other than those set forth in these guidelines. 
Councils should document their rationale for any alternative approaches 
for these limited circumstances in an FMP or FMP amendment, which will 
be reviewed for consistency with the Magnuson-Stevens Act.
    For a fishery in a federal FMP that has a large majority of harvest 
in state or territorial waters, the fishery should have ACL that takes 
into account the overall status of the stock, whether in state or 
federal waters or beyond. However, NMFS recognizes that AMs could only 
be applied to the portion of the fishery under federal jurisdiction. 
Given the jurisdictional issue, one approach proposed is that the 
overall ACL could be divided into a federal portion (federal-ACL) and a 
state portion (state-ACL). AMs would then be triggered when the 
federal-ACL was reached or projected to be reached (see further 
explanation in ``Accountability Measures'' section below).

X. MSRA Requirements for SSCs Related to ACLs

    The MSRA added new requirements for SSCs in the MSA. New section

[[Page 32532]]

302(g)(1)(B) of the MSA states that an SSC for each Regional Fishery 
Management Council ``shall provide its Council ongoing scientific 
advice for fishery management decisions, including recommendations for 
acceptable biological catch, preventing overfishing, maximum 
sustainable yield, and achieving rebuilding targets, and reports on 
stock status and health, bycatch, habitat status, social and economic 
impacts of management measures, and sustainability of fishing 
practices.'' New section 302(g)(1)(E) provides that ``The Secretary and 
each Council may establish a peer review process for that Council for 
scientific information used to advise the Council about the 
conservation and management of the fishery.'' In addition, new section 
302(h)(6) provides that each Regional Fishery Management Council is 
required to ``develop annual catch limits for each of its managed 
fisheries that may not exceed the fishing level recommendations of its 
scientific and statistical committee or the peer review process 
established under subsection (g).''
    NMFS recognizes that there is variability in the peer review 
processes and involvement of SSCs amongst the various Councils. In 
addition, the above statutory sections could be subject to different 
interpretations. While MSA section 302(h)(6) refers generally to 
``fishing level recommendations,'' section 302(g)(1)(B) refers to 
recommendations for ABC and MSY, among other things, and section 
302(g)(1)(E) refers generally to ``scientific information.'' Further, 
the text provides for advice from the SSC but also refers to peer 
review processes, leaving open a question about the role and 
relationship between the two. NMFS believes that clear processes for 
implementing these provisions are important in order to ensure that 
Councils get the information needed to establish ACL mechanisms, 
prevent confusion in the decision making process, and ensure general 
consistency in approaches taken.
    For purposes of setting ACLs, a critical piece of scientific advice 
that Councils will need will be the ABC. Taking this into account, and 
considering the new requirements in light of existing SSC, Council, and 
peer review processes, NMFS proposes that the Councils establish a 
process that could be included in their Statement of Organization, 
Practices and Procedures (see Sec.  600.115) which will: Establish an 
ABC control rule, identify the body that will apply the ABC control 
rule (i.e., calculates the ABC), identify the review process that will 
verify the resulting ABC, and confirm that the SSC recommends the ABC 
to the Council. For Secretarial FMPs or FMP amendments, agency 
scientists or a peer review process would provide the scientific advice 
to establish ABC. For fisheries managed under international agreements 
in which the United States participates (referred to in this action as 
``international fisheries''), stock assessments are conducted through 
international scientific bodies that may include U.S. and non-U.S. 
scientists. While the United States promotes fishery conservation and 
management principles as embodied in the MSA (see, e.g., MSA section 
102(c)), it cannot guarantee that international actions will be 
consistent with the Act or NS1 guidelines. Thus, an ABC as defined in 
these guidelines would not be required for international fisheries.
    For stock and stock complexes required to have an ABC, NMFS 
recommends that each Council should establish an ABC control rule (see 
Sec.  600.310(f)(4) of this proposed action) based on scientific advice 
from its SSC. The process of establishing an ABC control rule could 
also involve science advisors or the peer review process established 
under MSA section 302(g)(1)(E). Stock assessment scientists, a plan 
development team, or other designated body would then apply the ABC 
control rule. If a peer review process is established it should 
investigate the technical merits of stock assessments and other 
scientific information used by the SSC. For example, a peer review 
process (e.g., Stock Assessment Review Panel) could validate the ABC 
calculation and then pass their results to the SSC. Ultimately, the SSC 
should make the formal ABC recommendation to the Council. For Council-
managed fisheries, the peer review process is not a substitute for the 
SSC, and should work in conjunction with the SSC.

XI. MSY, OY, and SDC: A Review

    MSY, OY, and SDC are concepts described in the current NS1 
guidelines, and MSRA did not effect changes to the MSA that would 
require changes to these concepts. The following sections provide a 
review of MSY, OY, and SDC and an explanation of the relationship 
between them and the proposed guidance on ACLs and other requirements.
    MSY is the largest long-term average catch or yield that can be 
taken from a stock or stock complex under prevailing ecological and 
environmental conditions and fishery technological characteristics. Any 
estimate of MSY depends on the population dynamics of the stock and the 
characteristics of the fisheries (e.g. gear selectivity). MSY stock 
size (Bmsy) is 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. OY is the amount of fish that will provide the 
greatest overall benefit to the Nation, while preventing overfishing, 
particularly with respect to food production and recreational 
opportunities, and taking into account the protection of marine 
ecosystems. OY is prescribed on the basis of the MSY from the fishery, 
as reduced by relevant economic, social or ecological factors. In the 
case of an overfished fishery, OY provides for rebuilding to a level 
consistent with producing MSY in such a fishery. 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 a 
long-term series of catches such that the average catch is equal to OY, 
overfishing is prevented, the long term average biomass is near or 
above Bmsy, and overfished stocks are rebuilt in as short a time as 
possible as specified in MSA section 304(e)(4). OY might be established 
at the stock or stock complex level, or for a fishery comprised of 
stocks, many of which have their own ACL and ACT (e.g., groundfish of 
the Gulf of Alaska and groundfish of the Bering Sea and Aleutian 
Islands).
    Section 3(34) of the MSA states that ``overfishing'' and 
``overfished'' mean a rate or level of fishing mortality that 
jeopardizes the capacity of a fishery to produce the maximum 
sustainable yield on a continuing basis. To reduce confusion and 
conform to usage of those terms in other fisheries worldwide, in the 
current NS1 guidelines, NMFS interpreted these terms so that 
``overfished'' pertains to the biomass of the stock or stock complex, 
and ``overfishing'' pertains to a rate or level of removal of fish from 
the stock or stock complex. The current NS1 guidelines also provide for 
SDC, which are quantifiable factors for determining whether a stock or 
stock complex is overfished or if overfishing is occurring. An 
overfished definition consists of a measure of stock abundance called 
the minimum stock size threshold (MSST), below which a stock's or stock 
complex's capacity to produce MSY on a continuing basis is jeopardized. 
Overfishing of a stock or stock complex occurs whenever a stock or 
stock complex is subjected to a rate or level of fishing mortality, 
called the

[[Page 32533]]

maximum fishing mortality threshold (MFMT), above which the stock's or 
stock complex's capacity to produce MSY on a continuing basis is 
jeopardized or annual catch exceeds a stock's or stock complex's OFL. 
MSRA made no changes to the MSA that would necessitate different 
interpretations of these terms or different approaches to these 
concepts.

XII. Description of the Relationship of OFL to MSY and ACT to OY

    National Standard 1 establishes the relationship between 
conservation and management measures, preventing overfishing, and 
achieving OY from each stock, stock complex or fishery. The following 
sections describe in detail NMFS' proposed guidance on ACLs and other 
new requirements. Among other things, the proposed guidance introduces 
new terms--overfishing limit (OFL) and annual catch target (ACT)--which 
are not set forth in the MSA but which NMFS believes would be helpful 
to implement the statutory requirements. As an overview, OFL is an 
annual amount of catch that corresponds to the estimate of MFMT applied 
to a stock or complex's abundance; MSY is the long-term average of such 
catches. The current NS1 guidelines define overfishing with regard to 
MFMT, which is a rate of fishing. The use of OFL would provide another 
method for measuring overfishing by allowing the comparison of a stock 
or stock complexes' annual catch to its OFL; if catch exceeds OFL, 
overfishing is occurring. It is recommended that ABC would be set below 
OFL to take into account the scientific uncertainty in the estimate of 
OFL.
    ACL would be the limit that triggers AMs, and ACT would be the 
management target for the fishery. Management measures for a fishery 
should, on an annual basis, achieve the ACT and prevent the ACL from 
being exceeded. The long-term objective is to achieve OY through annual 
achievement of ACT.

XIII. Definition Framework for OFL, ABC, ACL, and ACT

    The MSRA does not define ACLs, AMs, and ABC, and there are many 
different ways in which these terms can be defined. The voluminous 
comments that NMFS received during scoping reflects the wide range of 
possible interpretations and approaches. For example, some commenters 
felt that ACL should be considered a target catch level and others felt 
it should be a limit that should not be approached or reached. Many 
commenters suggested, in general, that a buffer be implemented between 
management targets and limits in order to prevent overfishing and 
account for uncertainty. Over the past year, NMFS spent considerable 
time reviewing different interpretations of the ACL requirement in 
light of MSA sections 303(a)(15), 302(h)(6), and 302(g) and other 
sections of the MSA, and taking into consideration the current NS1 
guidelines, previously proposed changes to those guidelines, existing 
FMPs and FMP amendments, scientific and management roles in the 
decision making process, and public comment. Based on this review, NMFS 
proposes the following definitions for ACL, AM, and ABC, and also for 
ACT and OFL:
    1. 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.'' See Sec.  600.310(e)(2)(i)(D) of this proposed action.
    2. Acceptable biological catch (ABC) means ``a level of a stock or 
stock complex's annual catch that accounts for the scientific 
uncertainty in the estimate of OFL and should be specified based on the 
ABC control rule.'' See Sec.  600.310 (f)(2)(ii) of this proposed 
action.
    3. Annual catch limit (ACL) means ``the level of annual catch of a 
stock or stock complex that serves as the basis for invoking 
accountability measures.'' See Sec.  600.310(f)(2)(iv) of this proposed 
action.
    4. Annual catch target (ACT) means ``an amount of annual catch of a 
stock or stock complex that is the management target of the fishery. A 
stock or stock complex's ACT should usually be less than its ACL and 
results from the application of the ACT control rule. If sector-ACLs 
have been established, each one should have a corresponding sector-
ACT.'' See Sec. Sec.  600.310(f)(2)(v) and (f)(6) of this proposed 
action.
    5. Accountability measures (AMs) means ``management controls that 
prevent ACLs or sector-ACLs from being exceeded (inseason AMs), where 
possible, and correct or mitigate overages if they occur.'' See Sec.  
600.310(g) of this proposed action.
    As proposed in this action, the relationship between the above 
terms would be OFL>=ABC>=ACL>=ACT (see Figure 2). Because a primary 
goal of the MSA, and management responsibility of NMFS and the 
Councils, is to end and prevent overfishing, rather than account for it 
after it occurs, NMFS believes that a good approach to management is to 
have OFL>ABC and ACL>ACT. The ABC is lower than the OFL to address 
scientific uncertainty in the estimate of OFL, and ACT is lower than 
the ACL to address uncertainty in the accounting for catch and in the 
degree to which management measures can control catch to the target 
level.
    OFL is an annual amount of catch that corresponds to the estimate 
of MFMT applied to a stock or complex's abundance, and MSY is the long-
term average of such catches. NMFS proposes that OFL be the upper bound 
of ABC, but that ABC should usually be reduced from the OFL to account 
for scientific uncertainty in the estimate of OFL. For overfished 
stocks, ABC must also be set to reflect the annual catch that is 
consistent with the rebuilding plan for that stock. Therefore, if a 
stock is being managed under a rebuilding program, its ABC should be 
lower during some or all stages of rebuilding than when the stock is 
rebuilt. The ABC will be set on the basis of the ABC control rule.
    The proposed guidelines would have the Councils set the ACL as a 
level of catch specified for a stock or stock complex each year that 
cannot exceed its ABC. If a stock or stock complex's catch exceeds its 
ACL, AMs will be invoked as specified in the FMP. The ACL may typically 
be equal to the ABC and setting the ACL provides an opportunity to 
divide the total ACL into sector-specific ACLs. As noted above, the 
purpose of the ACT is to address management uncertainty. The ACT would 
be the target catch of a stock or stock complex that a fishery is 
managed to attain and should generally be less than the stock or stock 
complex's ACL. ``Catch'' includes fish that are retained for any 
purpose, as well as mortality of fish that are discarded (see Sec.  
600.310(f)(2)(i) of this proposed action). Therefore, for fisheries 
where bycatch estimates are not available in a timely enough manner to 
manage annual catch, targets may be specified for landings, so long as 
an estimate of bycatch is accounted for such that total of landings and 
bycatch will not exceed the stock's or stock complex's ACL. For a stock 
with sufficient inseason data monitoring, the fishery for that stock 
would be closed in time to prevent the ACL from being exceeded.
    NMFS notes that when it published an initial notice about ACLs, ACT 
was not a parameter used when exploring the concept of how to make ACLs 
and AMs operational. At that time, NMFS suggested an initial approach 
of OFL>ABC>=ACL with ACL as the target catch that management measures 
should try to attain. Under that approach, if catch of a stock reached 
the OFL, its

[[Page 32534]]

fishery would be closed. During the scoping period, NMFS received some 
public comments expressing concern about the use of an ACL as a 
management target as opposed to a ``limit.'' Also, the framework 
contained in this proposed rule provides for better separation between 
scientific uncertainty in estimating OFL (i.e., a recommendation that 
ABC be lower than OFL), and management uncertainty and OY factors 
indicating that an ACT be lower than the ACL.
[GRAPHIC] [TIFF OMITTED] TP09JN08.001

XIV. Control Rules

    Control rules are harvest strategies that specify how a stock's or 
stock complex's catch will be modified in response to one or more 
factors, particularly estimated stock size. The current NS1 guidelines 
include MSY control rules which are ``limit'' control rules and OY 
control rules which are ``target'' control rules. For any stock, the 
limit control rule results in a higher amount than the target control 
rule for a given stock abundance. Because of the new MSA requirement 
for annual catch limits to end and prevent overfishing for stocks in a 
fishery, NMFS proposes that MSY control rules be replaced by ABC 
control rules and become the new limit control rule, and OY control 
rules be replaced by ACT control rules and become the new target 
control rule. This would align the control rules more directly with the 
new requirement to specify an ABC and an ACL for stocks in the fishery 
(see earlier discussion in the preamble for the relationship between 
OFL and MSY, and between ACT and OY).
    ABC and ACT control rules should be developed for each stock when 
possible. For stock complexes, ABC and ACT control rules should be 
developed for each indicator stock or for the stock complex as a whole. 
ACTs should be set with the intention that they typically will be 
achieved. A stock's or stock complex's ACT control rule should result 
in lower target catches than the ABC control rule would, for all levels 
of a stock's or stock complex's abundance.
    In the proposed revisions to NS1 guidelines, an ABC control rule is 
a specified approach to setting the ABC for a stock or stock complex as 
a function of the scientific uncertainty in the estimate of OFL. An ACT 
control rule is an approach to setting the ACT for each stock and stock 
complex such that the risk of exceeding ACL due to management 
uncertainty (ability to control catch and variability in catch data) is 
an acceptably low level. Both control rules are designed to reduce the 
risk that overfishing will occur.
    For rebuilding stocks, the ABC, ACL, and ACT should be set at lower 
levels than for rebuilt stocks because two

[[Page 32535]]

objectives are combined. First, overfishing should not occur; and 
second, rebuilding at a rate commensurate with the stock's rebuilding 
plan should occur. This means that, for a rebuilding stock, a lower 
target fishing mortality rate may be needed to accomplish rebuilding, 
in addition to avoiding overfishing (i.e., ACL and ACT are lower than 
they would be if the stock was rebuilt).

XV. Sector ACLs, ACTs, and AMs

    A Council may decide, but is not required, to divide the ACL into 
sector-ACLs. ``Sector'' for purposes of the NS1 guidelines means a 
distinct user group to which separate management strategies and catch 
quotas apply. Examples of sectors could include the commercial sector, 
recreational sector, or various gear groups within a fishery. It is up 
to each Council to decide how to designate sectors, if any. If sector-
ACLs are established, sector-AMs and sector-ACTs must be developed for 
each sector-ACL. In cases where states cooperatively manage a stock, it 
is possible that a sector ACL could be further subdivided in order to 
establish ``subsector'' ACLs and ACTs for various states to align with 
current management of catch limits or quotas in the state fisheries. 
The system of ACLs and AMs must be effective and equitable and protect 
the stock as a whole from overfishing. The sum of a stock's sector-ACLs 
must not exceed the stock's ACL. If sector-ACLs and sector-AMs are 
established, additional AMs at the stock level would also be 
appropriate. A sector must be closed inseason if timely catch data 
indicates its ACL has been reached. If a sector does not have timely 
inseason fisheries data, or has a history of annual overages, then a 
Council should establish a large enough difference between a sector's 
ACT and ACL to improve the probability that the sector-ACL and the 
stock's ACL are not exceeded.

XVI. Accountability Measures

    AMs are management controls implemented for stocks such that 
exceeding the ACL or sector-ACL is prevented, where possible, and 
corrected or mitigated if it occurs (see Sec.  600.310(g) of this 
proposed action). AMs include: (1) Those that are applied inseason and 
designed to prevent the ACL from being reached; (2) measures applied 
after the fishing year that are designed to address the operational 
issue that caused the ACL overage, ensuring it does not happen in 
subsequent fishing years, and, as necessary, address any biological 
harm to the stock; and (3) those based on multi-year average data which 
are still reviewed and applied annually (see discussion below). AMs 
should address and minimize both the frequency of overages and the 
magnitude of an overage. AMs should be designed so that if an ACL is 
exceeded, specific adjustments are effective in the next fishing year, 
or as soon as possible, with explanation of why more timely adjustment 
is not possible.
    If timely inseason fishery catch data are available for a stock, 
Councils should ensure their FMPs contain inseason closure authority as 
an AM to prevent a stock's ACL from being exceeded. Where fishery catch 
data are not timely enough to implement inseason AMs, the ACT should be 
adjusted downward from the ACL to account for the increased management 
uncertainty and the delayed ability to implement AMs.
    A ``multiyear plan'' as referenced in section 303(a)(15) of the MSA 
is a plan that establishes harvest specifications or harvest guidelines 
for each year of a time period greater than one year. Because 
``multiyear plans'' establish ACLs and ACTs for more than one year at a 
time, they should include AMs that provide if an ACL is exceeded in one 
year, then a subsequent year's harvest specification (including ACLs 
and ACTs) could be revised (see Sec.  600.310(f)(5)(i) of this proposed 
action).
    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, either inseason 
or on an annual basis, a Council could base AMs on comparison of 
average catch to average ACL over a three-year moving average period 
or, if supported by analysis, some other appropriate multi-year period 
(see Sec.  600.310(g)(4) of this proposed action). As a performance 
standard, if the average catch exceeds the average ACL more than once 
in the last four years, then the ACL, ACT and AM system should be re-
evaluated to improve its performance. The initial ACL and management 
measures should incorporate information from previous years so that AMs 
based on average ACLs can be applied from the first year.
    If a stock is in a rebuilding plan and its ACL is exceeded, the AMs 
should include overage adjustments that reduce the ACL in the next 
fishing year by the full amount of the overage, unless the best 
scientific information available shows that a reduced overage 
adjustment is sufficent, or no adjustment is needed to mitigate the 
effects of the overage. This AM is important to increase the likelihood 
that the stock will continue to rebuild.
    As discussed earlier, stocks and stock complexes in federal FMPs 
that have a large majority of harvest in state or territorial waters 
should have an ACL that takes into consideration the overall status of 
the stock. However, federal management would be limited to that portion 
of the fishery under federal jurisdiction. Options for AMs that a 
Council could consider for stocks or stock complexes caught mostly in 
state or territorial waters would include, but are not limited to: (1) 
Close the EEZ when the federal portion of the ACL is reached, or (2) 
close the EEZ when the overall stock or stock complex's ACL is reached. 
The AMs should ensure that federal managers are doing as much as 
possible to end and prevent overfishing. 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, to 
prevent overfishing of shared stocks and ensure their sustainability.

XVII. Summary of Items To Include in FMPs

    This section provides a summary of items that Councils should 
include in their FMPs and FMP amendments in order to address ACL, AM, 
and other aspects of the proposed NS1 guidelines. Some items are 
specific to new MSRA provisions. Others were required prior to MSRA, 
but are included here so as to be comprehensive. Councils may review 
their FMPs to decide if all stocks are ``in the fishery'' or whether 
some fit the category of ``ecosystem component species'' and amend 
their FMP as appropriate. If they do not establish EC species through 
an FMP amendment, then all stocks in an FMP are presumed to be ``in the 
fishery.'' For all stocks and stock complexes that are in the fishery, 
the Councils should 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 (see Sec.  600.310(c) of this 
proposed action): (1) MSY and SDC, (2) OY at the stock, stock complex 
or fishery level, (3) ABC control rule, (4) ACLs and mechanisms for 
setting ACLs and possible sector-specific ACLs in relationship to the 
ABC, (5) ACT control rule, (6) AMs and AM mechanisms, and (7) stocks 
and stock complexes that have statutory exceptions from ACLs or fall 
under limited circumstances which require different approaches to meet 
the ACL requirements (e.g., ESA-listed

[[Page 32536]]

stocks and harvests from aquaculture facilities).
    The Councils should evaluate the extent to which their FMPs comply 
with requirements to define MSY and OY for stocks in the fishery, and 
the reasons that OY is reduced from MSY (see Sec.  600.310(e)(3)(iv) of 
this proposed action). An overall objective of management of federal 
fisheries under the MSA is to conserve fishery resources so as to 
prevent overfishing and achieve OY (see sections 2(a)(6) and 2(b)(4) of 
the MSA). OY is based on MSY for a fishery, as reduced for economic, 
social, or ecological reasons (see section 3(33)(B) of the MSA). 
Therefore, it is important that all FMPs have MSY and OY prescribed 
correctly.
    FMPs should contain a description of fisheries data for the stocks, 
stock complexes, and ecosystem component species. The sources of 
fishing mortality, such as commercial catch (both landed and 
discarded), recreational catch, and bycatch in other fisheries should 
be listed in the FMP for each fishery, along with a description of the 
data collection and estimation methods used to quantify total catch 
mortality in each fishery. The description of the data collection 
methods used to monitor the fishery should include information on the 
frequency that those data are collected and updated and the scope of 
sampling coverage for the fishery. In addition, the FMP should describe 
how those data are used to determine the relationship between total 
catch at a given point in time and the ACL for a stock or stock 
complex.
    FMPs should explain issues related to shared jurisdiction of stocks 
(if any), and the degree to which ACLs and AMs established by the 
Councils will ensure that overfishing does not occur on the stock as a 
whole.
    NMFS is aware that existing FMPs may use terms that are similar to, 
associated with, or may be equivalent to ABC, ACL, ACT, and AM in many 
fisheries for which annual specifications are set for different stocks 
or stock complexes. NMFS' preference is that, as Councils revise their 
FMPs, they use the same terms as set forth in the NS1 guidelines as 
finalized. However, given the longstanding use of terms under certain 
FMPs, if changing terminology could cause confusion, Councils could opt 
to retain existing terminology and explain in a proposed rule how the 
terminology and approaches in the FMPs are consistent with those set 
forth in the NS1 guidelines.
    Councils should amend their FMPs to provide explicit narrative of 
how the FMP objectives and annual management measures will work with 
ACLs and AMs. All stocks and stock complexes should have an annual or 
multiyear specification process for stocks managed in a fishery. An 
annual or multiyear specification process for setting or adjusting ACLs 
provides a timely, consistent method that the public and stakeholders 
can understand, and that provides an opportunity for public comment. 
Such a process could also provide a method for assigning an ACL, ACT, 
and AM to a ``stock having a life cycle of approximately one year'' 
that is undergoing overfishing.

XVIII. Change in Timetable When Establishing a Rebuilding Plan

    The MSA provides that the Secretary shall annually identify stocks 
and stock complexes that are overfished or approaching a condition of 
being overfished; notify the appropriate Council at any time when a 
stock or stock complex is determined to be overfished; and notify the 
appropriate Council when adequate pr