Magnuson-Stevens Act Provisions; National Standard 2-Scientific Information, 65724-65731 [E9-29589]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 237 (Friday, December 11, 2009)]
[Proposed Rules]
[Pages 65724-65731]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29589]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 0808041047-9114-02]
RIN 0648-AW62


Magnuson-Stevens Act Provisions; National Standard 2--Scientific 
Information

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 2 (NS2) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) regarding scientific information. This action is 
necessary to provide guidance on the use of best scientific information 
available (BSIA) for the effective conservation and management of the 
nation's marine living resources. NMFS proposes to modify the existing 
NS2 guidelines on BSIA and establish new guidelines for scientific peer 
review to ensure the reliability, credibility, and integrity of the 
scientific information used in fishery conservation and management 
measures. Further, NMFS is proposing to add language to the guidelines 
regarding the role of the Scientific and Statistical Committees (SSCs) 
of the Regional Fishery Management Councils (Councils), and the 
relationship of SSCs to the peer review process. The proposed NS2 
guidelines will also clarify the content and purpose of the Stock 
Assessment and Fishery Evaluation (SAFE) Report and related documents. 
These actions are necessary to ensure the use of BSIA in the 
development of fishery management plans and plan amendments, as 
required by NS2 of the MSA. The intended effect of these actions is to 
ensure that scientific information, including its collection and 
analysis, has been validated through formal peer review or other 
appropriate review, is transparent, and is used appropriately by SSCs, 
Councils, and NMFS in the conservation and management of marine 
fisheries. These guidelines are designed to provide quality standards 
for the collection and provision of biological, ecological, economic, 
and sociological information to fishery managers, Councils, and the 
public, while recognizing regional differences in fisheries and their 
management.

DATES: Written comments must be received by March 11, 2010.

ADDRESSES: You may submit comments, identified by 0648-AW62, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal https://www.regulations.gov.
     Fax: Attn: William Michaels 301-713-1875.
     Mail: William Michaels, NOAA Fisheries Service, Office of 
Science and Technology, F/ST4, 1315 East-West Highway, Silver Spring, 
MD 20910.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. 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 (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: William Michaels, 301-713-2363 x136.

SUPPLEMENTARY INFORMATION: 

I. Overview of Proposed Revisions to the Guidelines for National 
Standard 2

    Section 301(a)(2) of the MSA specifies that fishery conservation 
and management measures shall be based upon the best scientific 
information available. Section 301(b) of the MSA states that ``the 
Secretary (of Commerce) shall establish advisory guidelines

[[Page 65725]]

(which shall not have the force and effect of law), based on national 
standards, to assist in the development of fishery management plans.'' 
The existing national standard guidelines appear at 50 CFR 600.310 
through 600.355. The Magnuson-Stevens Fishery Conservation and 
Management Reauthorization Act (MSRA) of 2006 included provisions to 
improve the use of science in decisionmaking, provide a stronger role 
for Councils' SSCs, and establish an optional peer review process for 
scientific information used to advise Councils about conservation and 
management of fisheries. Therefore, NMFS is proposing revisions to the 
NS2 guidelines to address these MSA provisions and provide guidance and 
recommendations on peer review processes. NMFS published an advanced 
notice of proposed rulemaking (ANPR) in the Federal Register on 
September 18, 2008 (73 FR 54132). NMFS has carefully considered the 
public comments received in developing this proposed rule.

II. Major Components of the Proposed Action

A. Best Scientific Information Available (BSIA)

    In 2004, the National Research Council (NRC) of the National 
Academies examined the application of the BSIA standard in the 
development of fishery conservation and management measures. The NRC 
recommended approaches to more uniformly apply the BSIA standard for 
current and future fishery management actions. The NRC recommendations 
are available in the NRC (2004) publication entitled ``Improving the 
Use of the `Best Scientific Information Available' Standard in 
Fisheries Management'' (2004, https://books.nap.edu/openbook.php).
    NMFS proposes that the 2004 NRC recommendations regarding the use 
of BSIA for fishery management should be incorporated to the extent 
possible in this proposed revision to the NS2 guidance. The ANPR 
comments provided a nearly unanimous recommendation that the NS2 
guidelines be revised to incorporate the NRC recommendations, and that 
an overly prescriptive definition of BSIA should be avoided due to the 
dynamic nature of science. Therefore, as recommended by the NRC, the 
proposed NS2 guideline revisions are based on the following widely 
accepted principles for evaluating BSIA: Relevance, inclusiveness, 
objectivity, transparency, timeliness, verification, validation, and 
peer review of fishery management information as appropriate. NMFS also 
agrees with the comments that the NS2 guidelines should not prescribe a 
static definition of BSIA because of the dynamic developments inherent 
in making improvements in scientific information for fishery 
management.
    The availability of scientific information to inform fisheries 
management varies. Ecosystems and human societies are complex, 
interacting, dynamic systems that are impacted by multiple factors, 
including those within the scope of fisheries management. Some 
fisheries are well studied and have much information from long-term 
annual research surveys and comprehensive biological, social, and 
economic fisheries data collection programs. Other fisheries do not 
have the same breadth of information available. In light of this 
variability, the proposed NS2 guideline revisions elevate the 
importance of evaluating the uncertainty and associated risk of the 
scientific information used to help inform fishery management 
decisions.
    Similarly, the time available to review scientific information and 
the importance of that information to fishery management decisions are 
also variable. As a general rule, substantial management alternatives 
considered by a Council should be peer reviewed, but in some cases, 
formal peer review may not be possible due to time and resource 
constraints. For example, Councils may request that a NMFS Science 
Center provide calculations or analyses used in the development and 
assessment of fishery management alternatives for area-based or time-
based harvest limits. It may be impractical to submit that scientific 
information to a formal peer review due to time and resource 
constraints. However, the development of such scientific information 
should be in accordance with the principles of transparency and 
openness set forth in this proposed action.
    The proposed NS2 guidelines provide guidance that is fundamental 
for the reliability and integrity of scientific information to be used 
by NMFS and the Councils to effectively manage and conserve our 
nation's living marine resources.

B. Peer Review Processes

    Pursuant to its authority under the Information Quality Act (Pub. 
L. 106-554, Section 515), the Office of Management and Budget (OMB) 
issued a Final Information Quality Bulletin for Peer Review (70 FR 
2664, January 14, 2005) that establishes minimum peer review 
requirements for ``influential scientific information'' disseminated by 
Federal agencies. As described in section II.C, a Council's SSC is 
responsible for providing ongoing scientific advice to its Council for 
fishery management decisions. However, section 302(g)(1)(E) of the MSA 
provides for an optional peer review process: ``(T)he 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.'' If the Secretary and a 
Council establish such a process, it will be deemed to satisfy the 
requirements of the Information Quality Act, including the OMB Peer 
Review Bulletin guidelines. This proposed action provides guidance and 
national quality standards that are widely accepted, which should be 
followed in order to establish a peer review process per section 
302(g)(1)(E). This action provides flexibility to maintain existing 
peer review processes established by the Secretary and Councils and 
also clarifies the role of the Councils' SSCs in the scientific review 
process.
    Section 302(g)(1)(E) peer review processes must be carefully 
designed to maximize the likelihood of an outcome that is objective, 
provides useful information, and meets the intent or scope of work of 
the particular process. This proposed action adopts many of the OMB 
peer review standards, including balance in the peer review process in 
terms of expertise, knowledge, and bias; lack of conflicts of interest; 
independence from the work being reviewed; and transparency of the 
process. A peer review may take many forms, including individual letter 
or written review or panel reviews. The amount of time and resources 
spent on any particular review may depend on the novelty and complexity 
of the scientific information being reviewed. Peer reviewers who are 
federal employees must comply with all applicable federal ethics 
requirements (available at: https://www.usoge.gov/federal_employees.aspx). Potential reviewers who are not federal employees must 
be screened for conflicts of interest in accordance with the procedures 
set forth in the NOAA Policy on Conflicts of Interest for Peer Review 
subject to OMB's Peer Review Bulletin (available at: https://www.cio.noaa.gov/Policy_Programs/NOAA_PRB_COI_Policy_110606.html). 
The nature and scope of each peer review should be developed and 
defined prior to the selection of reviewers, to ensure reviewers with 
the

[[Page 65726]]

appropriate expertise and skills are selected.
    Peer review processes established by the Secretary and a Council 
for that Council should not be duplicative and should focus on 
providing review for information that has not already undergone 
rigorous peer review. When the Secretary and a Council develop a peer 
review process per MSA section 302(g)(1)(E), the proposed NS2 
guidelines provide that they must publish a notice and brief 
description of the process in the Federal Register, make a complete, 
detailed description of the process publicly available on the Council's 
Web site, and update it as necessary.
    The proposed NS2 guidelines are not intended to replace or result 
in the duplication of effective peer review processes that have already 
been established by NMFS and the Councils, such as the Stock Assessment 
Review Committee (SARC), Southeast Data Assessment Review (SEDAR), 
Stock Assessment Review (STAR), and Western Pacific Stock Assessment 
Review (WPSAR). Section 302(g)(1)(E) provides that the peer review 
process established by the Secretary and a Council may include existing 
committees or panels. The aforementioned existing peer review processes 
(SARC, SEDAR, STAR and WPSAR) may qualify as 302(g)(1)(E) review 
processes, but the Secretary, in conjunction with the relevant 
Councils, has not yet made that determination. If such a determination 
is made, the Secretary will announce the decision in the Federal 
Register.
    The impact of the proposed action on current Council peer review 
practices should be minimal since the proposed peer review standards 
are consistent with OMB's policy and presently incorporated in the 
existing peer review processes established by the Secretary and 
Councils. However, it may be necessary to refine those existing review 
processes in accordance with these proposed guidelines.

C. The Role of the SSC in the Review of Scientific Information

    The proposed NS2 guidelines address several roles of the SSC and/or 
SSC members: the SSC as scientific advisor to its Council; the SSC as a 
peer review panel; and SSC members' participation on other peer review 
panels. With regard to the advisory role, the proposed NS2 guidelines 
provide that the SSCs are the scientific advisory bodies to the 
Councils.
    Section 302(g)(1)(A) of the MSA mandates that ``Each Council shall 
establish, maintain, and appoint the members of a scientific and 
statistical committee to assist it in the development, collection, 
evaluation, and peer review of such statistical, biological, economic, 
social, and other scientific information as is relevant to such 
Council's development and amendment of any fishery management plan.'' 
As stated in MSA section 302(g)(1)(B), each SSC ``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.''
    Questions have arisen with regard to the role of the SSC and peer 
review process under MSA section 302(h)(6). That section states that 
``each Council shall * * * 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).'' A possible interpretation of this 
section is that a Council could not exceed the fishing level 
recommendation of either the SSC or peer review process; the lower of 
the two levels would be the limit. However, NMFS believes that section 
302(h)(6) should not be interpreted so as to displace the SSC's role in 
providing advice and recommendations to the Council. While MSA provides 
for establishment of peer review processes, such processes are 
optional, and as noted above, MSA section 302(g)(1)(A)-(B) mandates the 
types of advice the SSC provides for fishery management decisions. 
Further, as a practical matter, it is not clear how often an SSC or 
peer review panel would be generating different fishing level 
recommendations. The purpose of a peer review process is to ensure the 
quality and credibility of scientific information, rather than 
providing a specific result, such as a fishing level recommendation.
    To address the above issues, as reflected in section (b)(1)(ii) of 
the proposed NS2 guidelines, a peer review process per section 
302(g)(1)(E) should be conducted early in the scientific evaluation 
process, in order to provide the SSC with a reasonable opportunity to 
review the peer review report and make recommendations to the Council. 
The proposed NS2 guidelines also state that the SSC may provide a 
recommendation to its Council that is inconsistent with the findings of 
a peer review, in whole or in part, but in such cases, the SSC should 
prepare a report outlining the areas of disagreement and the rationale 
and information supporting the SSC's determination. The proposed 
guidelines also state that the SSC should not repeat the peer review 
process by conducting a subsequent detailed technical review.
    With regard to the SSC conducting a peer review of scientific 
information, the proposed action provides that the SSC's review should 
be complementary to, and not duplicative of, existing peer review 
processes established by the Secretary and each Council. Council and 
SSC members are encouraged to learn about the details in assessments 
and peer reviews by attending working group and peer review meetings 
that occur before any formal SSC evaluations of the scientific 
information are made.
    With regard to SSC members, the proposed NS2 guidelines state that 
an SSC member may participate in the peer review of scientific 
information when beneficial due to the expertise and regional knowledge 
of the SSC member, as long as the SSC member meets the peer review 
quality standards as described in this proposed action. For an SSC 
member to participate in a peer review, the proposed action requires 
screening the SSC member as well as all other potential reviewers for 
conflicts of interest pursuant to NOAA's Policy on Conflicts of 
Interest for Peer Reviews Subject to OMB's Peer Review Bulletin. That 
policy limits review of one's own work. Furthermore, this proposed 
action provides that the review and evaluation of scientific 
information by the Councils' SSCs should be transparent, and include 
the recording of minority viewpoints.
    Many ANPR comments focused on the evaluation and recommendations of 
the SSCs on the scientific information for catch-level specifications 
and pertinent measures of uncertainty; however, these issues were 
addressed in the recent revisions to the MSA National Standard 1 (NS1) 
guidelines (74 FR 3178, January 16, 2009).

D. SAFE Reports

    The Secretary of Commerce (Secretary) has the responsibility for 
preparation and review of SAFE reports. The current NS2 guidelines 
state that the SAFE report is a document or set of documents that 
provides the Councils with a summary of scientific information, and 
contain specifications on the contents of SAFE reports. This proposed 
action would provide further clarification on the purpose and content 
of the SAFE report. Specifically, it provides guidance on the 
scientific

[[Page 65727]]

information that should be included in the SAFE to enable the SSC to 
fulfill its role in providing its Council with ongoing scientific 
advice for fishery management decisions.
    ANPR comments suggested that a SAFE report should be a single 
report; however the proposed action maintains the existing NS2 
guidelines language that describes the SAFE as a document or set of 
documents. This is necessary to provide the Secretary flexibility in 
the preparation of the SAFE report and accommodates differing regional 
practices with regard to the SAFE report. These proposed guidelines 
clarify that the SAFE report should include essential fish habitat 
(EFH) information, in accordance with the EFH provisions contained in 
Sec.  600.815(a)(10), as a stand-alone chapter or clearly noted 
section.
    The proposed NS2 guideline revisions contain provisions intended to 
facilitate the use of information in the SAFE reports and its 
availability to the Councils, NMFS, and public. For example, the 
proposed NS2 guideline revisions specify, as recommended by ANPR 
comments, that SAFE reports or similar documents must be made available 
by the Council or NMFS on a Web site accessible to the public, and that 
they include a summary of the information they contain and an index or 
table of contents of each component that comprises the SAFE report.
    The proposed action would amend the existing NS2 guidelines by 
deleting the recommendation that the SAFE report contain information on 
safety for the fishery at issue. Safety of life at sea is now addressed 
in the National Standard 10 guidelines at Sec.  600.355.

E. Fishery Management Plan (FMP) Development

    This proposed action maintains the current NS2 guidelines language 
on FMP development, with only minor changes to the organization of the 
text.

III. References Cited

    National Research Council of the National Academies (NRC). 2004. 
Improving the use of the ``best scientific information available'' 
standard in fisheries management. The National Academies Press, 
Washington, DC 105 pp.; https://www.nap.edu/openbook.php.
    NOAA Office of the Chief Information Officer & High Performance 
Computing and Communications. 2006. National Oceanic and Atmospheric 
Administration Policy on Conflicts of Interest for Peer Review Subject 
to OMB Peer Review Bulletin. NOAA Memorandum, November 6, 2006; https://www.cio.noaa.gov/Policy_Programs/NOAA_PRB_COI_Policy_110606.html.
    Office of Management and Budget (OMB). 2004. Final Information 
Quality Bulletin for Peer Review. Executive Office of the President, 
Office of Management and Budget, memorandum M-05-03; December 16, 2004.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
action is consistent with the provisions of the MSA and other 
applicable law, subject to further consideration after public comment.
    This proposed action has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has prepared a regulatory impact review of this action, which 
is available at: https://www.nmfs.noaa.gov/msa2007/otherprovisions.html. 
This analysis describes the economic impact this proposed action, if 
adopted, would have on small entities of the United States. NMFS 
invites the public to comment on this proposal and the supporting 
analysis.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that these proposed revisions to the NS2 guidelines, if 
adopted, would not have any significant economic impact on a 
substantial number of small entities, as follows:

    I certify that the attached proposed action issued under the 
authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) will not have any significant economic impacts 
on a substantial number of small entities, as defined under the 
Regulatory Flexibility Act. The proposed action would revise the 
National Standard 2 (NS2) guidelines at 50 CFR 600.315.
    The proposed revisions to the NS2 guidelines provide guidance 
on: use of ``best scientific information available;'' standards for 
discretionary peer review processes established by the regional 
Fishery Management Councils (Councils), in conjunction with the 
Secretary of Commerce; the role of the Councils' Scientific and 
Statistical Committees (SSCs) in the review and evaluation of 
scientific information; and requirements for Stock Assessment and 
Fishery Evaluation (SAFE) reports. Pursuant to section 301(b) of the 
MSA, the NS guidelines do not have the force and effect of law. 
Councils and the Secretary of Commerce would use the NS2 guidelines 
when developing or amending Fishery Management Plans (FMPs) and 
regulations to implement FMPs and FMP amendments. NMFS believes that 
revisions to the NS2 guidelines will assist the Councils and the 
Secretary in addressing new MSA requirements intended to strengthen 
the role of science in fishery management actions.
    When NMFS takes fishery management actions, such actions 
typically could have impacts on vessel owners and operators and 
dealers. In this case, the proposed action would provide procedural 
guidance to the Secretary and Council regarding the development of 
fishery conservation and management measures. Because the NS2 
guidelines are general guidance and focus on scientific information 
and review processes, they would not have any economic impacts on 
vessel owners, operators, dealers, or any other entities. The NS2 
guidelines leave considerable discretion to the Councils and the 
Secretary to consider alternative ways to accomplish fishery 
conservation and management goals consistent with the NS, other 
provisions of the Magnuson-Stevens Act, and other applicable law. As 
the Councils and/or the Secretary develop FMPs, FMP amendments, or 
other regulatory actions, the actions will be accompanied by 
environmental, economic, and social analyses prepared pursuant to 
the Regulatory Flexibility Act, National Environmental Policy Act, 
and other statutes. Therefore, an IRFA has not been prepared for 
this action.
    These proposed revisions to the NS2 guidelines do not contain 
any new recordkeeping or reporting requirements subject to the 
Paperwork Reduction Act. When the Councils and the Secretary develop 
FMPs, FMP amendments, or other regulatory actions per the Magnuson-
Stevens Act and NS2 guidelines, such actions may include new 
proposed collection-of-information requirements. In the event that 
new collection-of-information requirements are proposed, a specific 
analysis regarding the public's reporting burden would accompany 
such action. NMFS is not aware of any other relevant Federal rules 
that may duplicate, overlap or conflict with the proposed action.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: December 7, 2009.
Steve A. Murawski,
Director of Scientific Programs and Chief Science Advisor, 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:  16 U.S.C. 1801 et seq.

    2. Section 600.315 is revised to read as follows:


Sec.  600.315  National Standard 2--Scientific Information.

    (a) Standard 2. Conservation and management measures shall be based 
upon the best scientific information available.
    (1) Fishery conservation and management require high quality and

[[Page 65728]]

timely biological, ecological, economic, and sociological scientific 
information to effectively conserve and manage living marine resources. 
Successful fishery management depends, in part, on the thorough 
analysis of this information, and the extent to which the information 
is applied for evaluating the impact that conservation and management 
measures will have on living marine resources, essential fish habitat 
(EFH), marine ecosystems, fisheries participants, fishing communities, 
and the nation.
    (2) Scientific information that is used to inform decision making 
should include an evaluation of its uncertainty and identify gaps in 
the information. Management decisions should recognize the biological 
(e.g., overfishing), ecological, sociological, and economic (e.g., loss 
of fishery benefits) risks associated with the sources of uncertainty 
and gaps in the scientific information. Limitations in scientific 
information may not be used as a justification for delaying fishery 
management actions.
    (3) Information from data-poor fisheries may require use of simpler 
assessment methods and greater use of proxies for quantities that can 
not be directly estimated, as compared to data-rich fisheries.
    (4) Scientific information includes, but is not limited to, factual 
input, data, models, analyses, technical information, or scientific 
assessments. Scientific information can be conveyed through data 
compiled directly from surveys or sampling programs, or through models 
that are mathematical representations of reality constructed with 
primary data. The complexity of the model should not be the defining 
characteristic of its value; the data requirements and assumptions 
associated with a model should be commensurate with the resolution and 
accuracy of the available primary data.
    (5) Science is a dynamic process, and new scientific findings 
constantly advance the state of knowledge. Best scientific information 
is, therefore, not static and entails developing and following a 
research plan with the following elements: Clear statement of 
objectives; conceptual model that provides the framework for 
interpreting results, making predictions, or testing hypotheses; study 
design with an explicit and standardized method of collecting data; 
documentation of methods, results, and conclusions; peer review, as 
appropriate; and communication of findings.
    (6) Principles for evaluating best scientific information must be 
based on relevance, inclusiveness, objectivity, transparency and 
openness, timeliness, verification and validation, and peer review, as 
appropriate.
    (i) Relevance. Scientific information should be pertinent to the 
current questions or issues under consideration and should be 
representative of the fishery being managed. In addition to the 
information collected directly about the fishery being managed, 
relevant information may be available about the same species in other 
areas, or about related species. For example, use of proxies may be 
necessary in data-poor situations. Analysis of related stocks or 
species is a powerful tool for inferring the likely traits of stocks 
for which stock-specific data are unavailable or are not sufficient to 
produce reliable estimates. Also, if management measures similar to 
those being considered have been introduced in other regions and 
resulted in particular behavioral responses from participants or 
business decisions from industry, such social and economic information 
may be relevant.
    (ii) Inclusiveness. Three aspects of inclusiveness should be 
considered when developing and evaluating best scientific information:
    (A) The relevant range of scientific disciplines should be 
consulted to encompass the scope of potential impacts of the management 
decision.
    (B) Alternative points of view should be acknowledged and addressed 
openly when there is a diversity of scientific thought.
    (C) Relevant local and traditional knowledge should be acknowledged 
(i.e., fishermen's empirical knowledge about the behavior and 
distribution of fish stocks). To the extent possible, an effort should 
be made to reconcile scientific information with local and traditional 
knowledge.
    (iii) Objectivity. Scientific information should use standards for 
objectivity that prevent non-scientific considerations from impacting 
on its scientific integrity. The objectivity standards should ensure 
that information is accurate, reliable, and unbiased, and that 
information products are presented in an accurate, clear, complete, and 
balanced manner.
    (iv) Transparency and openness.--(A) The Magnuson-Stevens Act 
provides broad public and stakeholder access to the fishery 
conservation and management process, including access to the scientific 
information upon which the process and management measures are based. 
Subject to the Magnuson-Stevens Act confidentiality requirements, the 
public should have access to each stage in the development of 
scientific information, from data collection, to analytical modeling, 
to decision making. Public comment should be solicited at appropriate 
times during the development of scientific information. Communication 
with the public should be structured to foster understanding of the 
scientific process.
    (B) Scientific information products should describe data collection 
methods, report sources of uncertainty or statistical error, and 
acknowledge other data limitations. Such products should explain any 
decisions to exclude data from analysis. Scientific products should 
identify major assumptions and uncertainties of analytical models. 
Finally, such products should openly acknowledge gaps in scientific 
information.
    (v) Timeliness.--(A) Sufficient time should be allotted to analyze 
recently acquired data to ensure its reliability and that it has been 
audited and subjected to appropriate review before it is used to inform 
management decisions. For those data that require being updated on a 
regular basis, the temporal gap between information collection and 
management implementation should be as short as possible, subject to 
regulatory constraints, and should be explicitly considered when 
developing conservation and management measures. In particular, late 
submission of scientific information to the Council process should be 
avoided if the information has circumvented the review process.
    (B) Timeliness may also mean that in some cases, results of 
important studies or monitoring programs must be brought forward before 
a study is complete. Uncertainties and risks that arise from an 
incomplete study should be acknowledged, but interim results may be 
better than no results to help inform a management decision. Management 
decisions should not be delayed due to data limitations or the promise 
of future data collection or analysis.
    (C) Historical information should be evaluated for its relevance, 
to inform the current situation. For example, species' life history 
characteristics may not change over time, and so remain relevant. Other 
time-series data (e.g., abundance, catch statistics, market and trade 
trends) provide context for changes in fish populations, fishery 
participation, and effort, and therefore provide valuable information 
to inform current management decisions.
    (vi) Verification and validation.-- Methods used to produce 
scientific information should be verified and validated to the extent 
possible.
    (A) Verification means that the data and procedures used to produce 
the

[[Page 65729]]

scientific information are documented in sufficient detail to allow 
reproduction of the analysis by others with an acceptable degree of 
precision. External reviewers of scientific information require this 
level of documentation to conduct a thorough review.
    (B) Validation refers to the testing of analytical methods to 
ensure that they perform as intended. Validation should include whether 
the analytical method has been programmed correctly in the computer 
software, the precision of the estimates is adequate, model estimates 
are unbiased, and the estimates are robust to model assumptions. Models 
should be tested using simulated data from a population with known 
properties to evaluate how well the models estimate those 
characteristics. The concept of validation using simulation testing 
should be used, to the extent possible, to evaluate how well a 
management strategy meets management objectives.
    (vii) Peer review. Peer review is a process used to ensure that the 
quality and credibility of scientific information and scientific 
methods meet the standards of the scientific and technical community. 
Peer review helps ensure objectivity, reliability, and integrity of 
scientific information. The peer review process is an organized method 
that uses peer scientists with appropriate and relevant expertise to 
evaluate scientific information.
    (viii) To the extent practicable, substantial fishery management 
alternatives considered by a Council should be peer reviewed. Factors 
to consider when determining whether to conduct a peer review and if 
so, the appropriate level of review, include the novelty and complexity 
of the scientific information to be reviewed, the level of previous 
review and the importance of the information to be reviewed to the 
decision making process. If formal peer review is not practicable due 
to time or resource constraints, the development and analysis of 
scientific information used in or in support of fishery management 
actions should be as transparent as possible, in accordance with 
paragraph (a)(6)(iv) of this section.
    (b) Peer review process. The Secretary and each Council may 
establish a peer review process for that Council for scientific 
information used to advise about the conservation and management of the 
fishery (Magnuson-Stevens Act section 302(g)(1)(E)). A peer review 
process is not a substitute for an SSC and should work in conjunction 
with the SSC (see Sec.  600.310(b)(2)(v)(C)). This section provides 
guidance and standards that should be followed in order to establish a 
peer review process per section 302(g)(1)(E).
    (1) The objective or scope of the peer review, the nature of the 
scientific information to be reviewed, and timing of the review should 
be considered when selecting the type of peer review to be used. The 
process established by the Secretary and Council for each Council 
should focus on providing review for information that has not yet 
undergone rigorous peer review, but that must be peer reviewed in order 
to provide reliable, high quality scientific advice for fishery 
conservation and management. Duplication of previously conducted peer 
review should be avoided.
    (i) Form of process. The peer review process may include or consist 
of existing Council committees or panels if they meet the standards 
identified herein. The Secretary and Council have discretion to 
determine the appropriate peer review process for a specific 
information product. A peer review can take many forms, including 
individual letter or written reviews, and panel reviews.
    (ii) Timing. The peer review should be conducted early in the 
process of producing scientific information or a work product, to the 
extent practicable. The timing will depend in part on the scope of the 
review. For instance, the peer review of a new or novel method or model 
should be conducted before there is an investment of time and resources 
in implementing the model and interpreting the results. The results of 
this type of peer review may contribute to improvements in the model or 
assessment.
    (iii) Scope of work. The scope of work or charge (sometimes called 
the terms of reference) of any peer review should be determined in 
advance of the selection of reviewers. The scope of work contains the 
objective of the specific advice being sought. The scope of work should 
be carefully designed, with specific technical questions to guide the 
peer review process; it should ask peer reviewers to ensure that 
scientific uncertainties are clearly identified and characterized, it 
should allow peer reviewers the opportunity to offer a broad evaluation 
of the overall scientific or technical product under review, and it 
must not change during the course of the peer review. The scope of work 
may not request reviewers to provide advice on scientific policy (e.g., 
amount of uncertainty that is acceptable or amount of precaution used 
in an analysis). Such policy considerations are in the purview of the 
Secretary and the Councils.
    (2) Peer reviewer selection. The selection of participants in a 
peer review must be based on expertise, independence, and a balance of 
viewpoints, and be free of conflicts of interest.
    (i) Expertise and balance. Peer reviewers must be selected based on 
scientific expertise and experience relevant to the disciplines of 
subject matter to be reviewed, including a balance in perspectives. The 
group of reviewers that constitute the peer review should have 
sufficiently broad and diverse expertise to represent the range of 
relevant scientific and technical perspectives to complete the 
objectives of the peer review.
    (ii) Conflict of interest. Peer reviewers who are federal employees 
must comply with all applicable federal ethics requirements. Peer 
reviewers who are not federal employees must comply with the following 
provisions. Peer reviewers must not have any real or perceived 
conflicts of interest with the scientific information, subject matter, 
or work product under review, or any aspect of the statement of work 
for the peer review. For purposes of this section, a conflict of 
interest is any financial or other interest which conflicts with the 
service of the individual on a review panel because it:
    (A) Could significantly impair the reviewer's objectivity; or
    (B) Could create an unfair competitive advantage for a person or 
organization.
    (C) Except for those situations in which a conflict of interest is 
unavoidable, and the conflict is promptly and publicly disclosed, no 
individual can be appointed to a review panel if that individual has a 
conflict of interest that is relevant to the functions to be performed. 
Conflicts of interest include, but are not limited to, the personal 
financial interests and investments, employer affiliations, and 
consulting arrangements, grants, or contracts of the individual and of 
others with whom the individual has substantial common financial 
interests, if these interests are relevant to the functions to be 
performed. Potential reviewers must be screened for conflicts of 
interest in accordance with the procedures set forth in the NOAA Policy 
on Conflicts of Interest for Peer Review subject to OMB's Peer Review 
Bulletin.
    (iii) Independence. Peer reviewers must not have participated in 
the development of the work product or scientific information under 
review. For peer review of some work products or scientific 
information, a greater degree of independence may be necessary to 
assure credibility of the peer review process; reviewers should not be 
employed by the Council or entity that produced or utilizes the product 
for

[[Page 65730]]

management decisions. Peer review responsibilities should rotate across 
the available pool of qualified reviewers or among the members on a 
standing peer review panel, recognizing that, in some cases, repeated 
service by the same reviewer may be needed because of essential 
expertise.
    (3) Transparency. A transparent process is one that allows the 
public full and open access to peer review panel meetings, background 
documents, and reports, subject to Magnuson-Stevens Act confidentiality 
requirements. The evaluation and review of scientific information by 
the Councils and their advisory panels must also be publicly 
transparent in accordance with the Councils' requirements for notifying 
the public of meetings. The date, time, location, and terms of 
reference (scope and objectives) of the peer review should be publicly 
announced 14 days before the review to allow public comments during 
meetings. Background documents should be available for public review in 
a timely manner prior to meetings. Peer review reports describing the 
scope and objectives of the review, findings in accordance with each 
objective, and conclusions should be publicly available. Names and 
organizational affiliations of reviewers also should be publicly 
available prior to review.
    (4) Publication of the peer review process. The Secretary will 
announce the establishment of a peer review process under Magnuson-
Stevens Act section 302(g)(1)(E) in the Federal Register along with a 
brief description of the process. In addition, detailed information on 
such processes will be made publicly available on the Council's Web 
site, and updated as necessary.
    (c) SSC scientific advice to the Council. Each scientific and 
statistical committee 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 
(Magnuson-Stevens Act 302(g)(1)(B)).
    (1) SSC scientific advice and recommendations to the Councils based 
on review and evaluation of scientific information must meet the 
guidelines of best scientific information available as described in 
paragraph (a) of this section. SSCs may conduct peer reviews, 
participate in peer reviews, or evaluate peer reviews to provide clear 
scientific advice to the Council. Such scientific advice should attempt 
to resolve conflicting scientific information, so that the Council will 
not be forced to engage in debate on technical merits. Debate and 
evaluation of scientific information should be part of the role of the 
SSC.
    (2) SSC members may participate in a peer review when such 
participation is beneficial to the peer review due to the expertise and 
institutional memory of that SSC member, or beneficial to the Council's 
advisory body by allowing that SSC member to make a more informed 
evaluation of the scientific information. Participation of a SSC member 
in a peer review should not impair the ability of that SSC member to 
accomplish the advisory responsibilities to the Council.
    (3) If an SSC as a body, or individual members of an SSC, conducts 
or participates in a peer review, those SSC members must meet the peer 
reviewer selection criteria as described in paragraph (b)(2) of this 
section. These guidelines require separate consideration from those of 
Sec.  600.235, Financial Disclosure for Councils and Council 
committees. Additionally, when the SSC as a body is conducting a peer 
review, it should strive for consensus and meet the transparency 
guidelines for best scientific information available and peer reviews 
as described in paragraphs (a)(6)(iv) and (b)(3) of this section. If 
consensus cannot be reached, minority viewpoints should be recorded.
    (4) The SSC's evaluation of a peer review conducted by a body other 
than the SSC should be linked to the extent and quality of peer review 
that has already taken place. For Councils with extensive and detailed 
peer review processes (e.g., a process established pursuant to 
Magnuson-Stevens Act section 302(g)(1)(E)), the evaluation by the SSC 
of the peer reviewed information should not repeat the previously 
conducted and detailed technical peer review. However, SSCs must 
maintain their role as advisors to the Council about scientific 
information that comes from an external peer review process. Therefore, 
the peer review of scientific information used to advise the Council, 
including a peer review process established by the Secretary and the 
Council under Magnuson-Stevens Act section 302(g)(1)(E), should be 
conducted early in the scientific evaluation process in order to 
provide the SSC with reasonable opportunity to review the peer review 
report and make recommendations to the Council as required under 
Magnuson-Stevens Act section 302(g)(1)(B).
    (5) If the evaluation of scientific information by the SSC is 
inconsistent with the findings or conclusions of a peer review, in 
whole or in part, the SSC should prepare a report outlining the areas 
of disagreement, and the rationale and information used by the SSC for 
making its determination.
    (6) Annual catch limits (ACLs) may not exceed the SSC's 
recommendations for fishing levels (Magnuson-Stevens Act section 
302(h)(6)). The SSC recommendation that is most relevant to ACLs is 
acceptable biological catch (ABC), as both ACL and ABC are levels of 
annual catch (see Sec.  600.310(b)(2)(v)(D)). Any peer review related 
to such recommendations should be conducted early in the process as 
described in paragraph (c)(4) of this section. The SSC should resolve 
differences between its recommendations and any relevant peer review 
recommendations per paragraph (c)(5) of this section.
    (d) SAFE Report. The term SAFE (Stock Assessment and Fishery 
Evaluation) report, as used in this section, refers to a public 
document or a set of related public documents, that provides Councils 
with a summary of scientific information concerning the most recent 
biological condition of stocks, stock complexes, and marine ecosystems 
in the fishery management unit (FMU), essential fish habitat (EFH), and 
the social and economic condition of the recreational and commercial 
fishing interests, fishing communities, and the fish processing 
industries. It summarizes, on a periodic basis, the best scientific 
information available concerning the past, present, and possible future 
condition of the stocks, EFH, marine ecosystems, and fisheries being 
managed under Federal regulation.
    (1) The Secretary has the responsibility to assure that SAFE 
reports are prepared and updated or supplemented as necessary whenever 
new information is available that requires a revision to the status 
determination criteria (SDC) or is likely to affect the overfishing 
level (OFL), optimum yield, or ABC values (Sec.  600.310(c)). The SAFE 
report and any comments or reports from the SSC must be available to 
the Council for making its management decisions for each FMP to ensure 
that the best scientific information available is being used. The 
Secretary or Councils may utilize any combination of personnel from 
Council, state, Federal, university, or other sources to acquire and 
analyze data and produce the SAFE report.
    (2) The SAFE report provides information to the Councils and the

[[Page 65731]]

Secretary for determining annual catch limits (Sec.  600.310(f)(5)) for 
each stock in the fishery; documenting significant trends or changes in 
the resource, marine ecosystems, and fishery over time; implementing 
required EFH provisions (Sec.  600.815(a)(10)); and assessing the 
relative success of existing state and Federal fishery management 
programs. In addition, the SAFE report may be used to update or expand 
previous environmental and regulatory impact documents and ecosystem 
descriptions.
    (3) Each SAFE report should contain the following:
    (i) A description of the SDC (e.g., maximum fishing mortality rate 
threshold and minimum stock size threshold for each stock or stock 
complex in the fishery) (Sec.  600.310(e)(2)), along with information 
to determine:
    (A) Whether overfishing is occurring with respect to any stock or 
stock complex, whether any stock or stock complex is overfished, 
whether the rate or level of fishing mortality applied to any stock or 
stock complex is approaching the maximum fishing mortality threshold, 
and whether the size of any stock or stock complex is approaching the 
minimum stock size threshold; and
    (B) Any management measures necessary to rebuild an overfished 
stock or stock complex (if any) in the fishery to a level consistent 
with producing the MSY in that fishery.
    (ii) Information on which to base catch specifications, including 
the most recent stock assessment documents and associated peer review 
reports, and recommendations and reports from the Council's SSC on OFL 
and ABC, preventing overfishing, and achieving rebuilding targets. 
Documentation of the data collection, estimation methods, and 
consideration of uncertainty in formulating catch specification 
recommendations should be included (see also Sec.  600.310(f)(2)-(4)).
    (iii) Information on sources of fishing mortality (both landed and 
discarded), including commercial and recreational catch and bycatch in 
other fisheries and description of data collection and estimation 
methods used to quantify total catch mortality, as required by National 
Standard 1 (Sec.  600.310(i)).
    (iv) Information on bycatch of non-target species for each fishery.
    (v) Review and evaluations of EFH information in accordance with 
the EFH provisions (Sec.  600.815(a)(10)), as a standalone chapter or 
in a clearly noted section.
    (vi) Pertinent economic, social, community, and ecological 
information for assessing the success of management measures or the 
achievement of objectives of each FMP.
    (4) To facilitate the use of the information in the SAFE report, 
and its availability to the Council, NMFS, and the public:
    (i) The SAFE report should contain, or be supplemented by, a 
summary of the information and an index or table of contents to the 
components of the report.
    (ii) The SAFE report or compilation of documents that comprise the 
SAFE report and index must be made available by the Council or NMFS on 
a readily accessible Web site.
    (e) FMP development.--(1) FMPs must take into account the best 
scientific information available at the time of preparation. Between 
the initial drafting of an FMP and its submission for final review, new 
information often becomes available. This new information should be 
incorporated into the final FMP where practicable; but it is 
unnecessary to start the FMP process over again, unless the information 
indicates that drastic changes have occurred in the fishery that might 
require revision of the management objectives or measures.
    (2) The fact that scientific information concerning a fishery is 
incomplete does not prevent the preparation and implementation of an 
FMP (see related Sec. Sec.  600.320(d)(2) and 600.340(b)).
    (3) An FMP must specify whatever information fishermen and 
processors will be required or requested to submit to the Secretary. 
Information about harvest within state waters, as well as in the EEZ, 
may be collected if it is needed for proper implementation of the FMP 
and cannot be obtained otherwise. The FMP should explain the practical 
utility of the information specified in monitoring the fishery, in 
facilitating inseason management decisions, and in judging the 
performance of the management regime; it should also consider the 
effort, cost, or social impact of obtaining it.
    (4) An FMP should identify scientific information needed from other 
sources to improve understanding and management of the resource, marine 
ecosystem, the fishery, and fishing communities.
    (5) The information submitted by various data suppliers should be 
comparable and compatible, to the maximum extent possible.
    (6) FMPs should be amended on a timely basis, as new information 
indicates the necessity for change in objectives or management measures 
consistent with the conditions described in paragraph (d) of this 
section (SAFE reports). Paragraphs (e)(1) through (e)(5) of this 
section apply equally to FMPs and FMP amendments.

[FR Doc. E9-29589 Filed 12-10-09; 8:45 am]
BILLING CODE 3510-22-P