Magnuson-Stevens Act Provisions; National Standard 2-Scientific Information, 43066-43090 [2013-17422]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 139 (Friday, July 19, 2013)]
[Rules and Regulations]
[Pages 43066-43090]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17422]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 0808041047-3587-03]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final action amends the guidelines for National Standard 
2 (NS2) of the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA) regarding scientific information. Consistent with the President's 
memo on Scientific Integrity (March 9, 2009) and NOAA Administrative 
Order 202-735D, the revised NS2 guidelines are intended to ensure the 
highest level of integrity and strengthen public confidence in the 
quality, validity and reliability of scientific information 
disseminated by the National Marine Fisheries Service (NMFS) in support 
of fishery management actions. This action provides guidance on what 
constitutes best scientific information available (BSIA) for the 
effective conservation and management of fisheries managed under 
Federal fishery management plans (FMPs), and adds new language to the 
NS2 guidelines regarding the advisory 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 revised NS2 guidelines also clarify the content and 
purpose of the Stock Assessment and Fishery Evaluation (SAFE) Report 
and related documents. This action makes modest adjustments to current 
operating practices; it is intended to ensure that scientific 
information, including its collection and analysis, has been validated 
through peer review, as appropriate, is transparent to the public, and 
is used appropriately by SSCs, Councils, and NMFS in the conservation 
and management of marine fisheries.

DATES: Effective July 19, 2013.

ADDRESSES: Copies of supporting documents prepared for this final rule, 
such as the proposed rule and public comments that were received, can 
be found at the Federal e-Rulemaking portal: https://www.regulations.gov 
by searching for RIN 0648-AW62.

FOR FURTHER INFORMATION CONTACT: William Michaels by phone 301-427-
8155, by FAX at 301-713-1875, or by email: William.Michaels@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Overview of Revisions to the NS2 Guidelines
II. Synopsis of Changes Made in the Final Action
III. Overview of the Major Aspects of the Final Action
    A. Best Scientific Information Available (BSIA)
    B. Peer Review Processes
    C. The Role of the SSC in the Review of Scientific Information
    D. Stock Assessment and Fishery Evaluation (SAFE) Reports
    E. Fishery Management Plan (FMP) Development
IV. Responses to Comments
V. Changes From Proposed Action (74 FR 65724, Dec. 11, 2009)
VI. References Cited
VII. Classification

I. Overview of Revisions to the NS2 Guidelines

    Section 301(a)(2) of the MSA specifies that fishery conservation 
and management measures shall be based upon the best scientific 
information available. 16 U.S.C. 1851(a)(2). Section 301(b) of the MSA 
states that: ``the Secretary (of Commerce) 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.'' Id. 16 U.S.C. 1851(b). The existing national standard 
guidelines appear at 50 CFR 600.305 through 600.355. In the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act of 
2007, Congress added provisions to improve the use of science in 
decision-making, including a stronger role for Councils' SSCs in the 
review of scientific information and providing fishing level 
recommendations to their Councils, and authorizing the Secretary and 
Councils to establish a peer review process for scientific information 
used to advise Councils about conservation and management of fisheries. 
These revised NS2 guidelines address the above changes in the MSA. The 
guidelines include guidance on what constitutes BSIA for fishery 
conservation and management measures, provide standards for scientific 
peer review, clarify the role of the SSC in the review of scientific 
information for its Council, expand and clarify the contents of SAFE 
reports, and emphasize the importance

[[Page 43067]]

of the availability and transparency of SAFE reports used in Council 
decision making.
    We published an advanced notice of proposed rulemaking (ANPR) in 
the Federal Register on September 18, 2008 (73 FR 54132), announcing 
the agency's intent to revise the NS2 guidelines, and received public 
comments from 24 organizations providing recommendations. The proposed 
guideline revisions published in the Federal Register on December 11, 
2009 (74 FR 65724), and were open for public comment for three months, 
through March 11, 2010. We received comments from 25 organizations and 
118 identical email submissions. In general, the public comments were 
supportive of the need to revise the NS2 guidelines and provided 
informative recommendations and some editorial clarifications. We 
address changes made in the final NS2 guidelines in the next section 
(Section II), and summarize comments received on the proposed 
guidelines and respond to those comments in Section IV. Response to 
Comments.

II. Synopsis of Changes Made in the Final Action

    This final action does not include substantive changes from the 
proposed guideline revisions. In response to public comments, changes 
were made to clarify the guidelines and emphasize the importance of 
public transparency in peer review of scientific information, as 
recommended by public comments. Language was added to clarify the 
following: Scientific information includes both established and 
emerging science; peer reviewers should not make formal fishing level 
recommendations, because this is the purview of the SSC; 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; peer 
reviews that require a greater degree of independence should use 
rotation of reviewers, recognizing that repeated service by the same 
reviewer may be unavoidable when there is a limited availability of 
expertise; SAFE reports should contain an explanation of information 
gaps and highlight needs for future scientific work; and for stocks 
managed cooperatively by Federal and State governments, the scientific 
information used for FMP development should include harvest information 
from both state and Federal waters. See Section V of this preamble for 
a detailed description of the changes made to the text of the proposed 
action.

III. Overview of the Major Aspects of the Final 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 standards for 
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).
    The revised NS2 guidelines adopt, to the extent possible, the 2004 
NRC recommendations regarding the production and use of scientific 
information for fishery management actions. The public comments 
provided a nearly unanimous recommendation that the NS2 guidelines 
should 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 
NS2 guideline revisions are based on the following widely accepted 
criteria for evaluating BSIA: Relevance, inclusiveness, objectivity, 
transparency, timeliness, verification, validation, and peer review of 
fishery management information as appropriate. The revised NS2 
guidelines do not prescribe a static definition of BSIA because science 
is a dynamic process involving continuous improvements.
    The availability and quality 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 NS2 guideline revisions elevate the importance of 
evaluating the uncertainty and associated risk of the scientific 
information to inform fishery management decisions. The revised 
guidelines also provide that mandatory management decisions should not 
be delayed due to limitations in the scientific information or the 
promise of future data collection or analysis.
    The NS2 guidelines provide guidance that is fundamental for the 
reliability and integrity of scientific information to be used by the 
Secretary and 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 (44 
U.S.C. 3516), 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. Section 302(g)(1)(E) of the MSA 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.'' 16 U.S.C. 1852(g)(1)(E). 
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. The revised NS2 
guidelines provide guidance and widely-accepted national quality 
standards that should be followed to establish a peer review process 
per MSA section 302(g)(1)(E). They also provide flexibility to maintain 
existing peer review processes established by the Secretary and 
Councils, and clarify the role of the Councils' SSCs in the scientific 
review process.
    MSA section 302(g)(1)(E) peer review processes must be carefully 
designed to maximize the likelihood of an outcome that is objective, 
and provide useful information relative to the intended scope of work. 
The revised NS2 guidelines adopt many of the OMB peer review standards, 
including balance in expertise, knowledge, and bias; lack of conflicts 
of interest; independence from the work being reviewed; and 
transparency of the peer review process. A peer review may take many 
forms, including individual letter or written review or panel reviews. 
Duplication of previously conducted peer review should be avoided. The 
amount of time and resources spent on any particular review and the 
degree of independence may depend on the novelty, controversy, 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.oge.gov/). Potential 
reviewers who are not Federal employees must be screened for conflicts 
of interest in accordance with

[[Page 43068]]

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/service_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 
that reviewers with the 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 
reviewing 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 revised 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 revised 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 
Workshop/Stock Assessment Review Committee (SAW/SARC), Southeast Data 
Assessment Review (SEDAR), Stock Assessment Review (STAR), and Western 
Pacific Stock Assessment Review (WPSAR). Section 302(g)(1)(E) of the 
MSA 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 (SAW/SARC, SEDAR, STAR 
and WPSAR) may qualify as MSA section 302(g)(1)(E) review processes, if 
the determination is made by the Secretary in conjunction with the 
relevant Councils. If such a determination is made, the Secretary will 
announce the decision in the Federal Register.
    The impact of this action on current Council peer review practices 
should be minimal because the 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 revised NS2 guidelines.

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

    The 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 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.'' 
16 U.S.C. 1852(g)(1)(A). 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.'' Id. 16 
U.S.C. 1852(g)(1)(B).
    Paragraph (c)(6) of the final action, which is substantively 
unchanged from the proposed action, clarifies that the SSC, and not a 
peer review process, provides recommendations to a Council for 
developing annual catch limits (ACLs). MSA section 302(h)(6) 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).'' 16 U.S.C. 
1852(h)(6). A possible interpretation of this section is that a Council 
could not exceed the fishing level recommendation of either the SSC or 
optional peer review process established under MSA section 
302(g)(1)(E); if both provided recommendations, the lower of the two 
levels would be the limit. However, section 302(g)(1)(B) requires that 
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 . . .'' The SSC's acceptable biological 
catch (ABC) recommendation is the fishing level recommendation that is 
most relevant for developing an ACL.
    As explained in the proposed action, NMFS believes that, when read 
in conjunction with MSA section 302(g)(1)(A)-(B), MSA section 302(h)(6) 
does not mean that a peer review process displaces the SSC's role in 
providing fishing level recommendations and other advice to its 
Council. A better reading of the two subsections is that they allow for 
development of fishing level recommendations either through the SSC or 
a peer review process, but ultimately, it is the SSC that provides 
final scientific advice to its Council. The purpose of a peer review 
process is to ensure the quality and credibility of scientific 
information, rather than directly providing scientific advice to a 
Council.
    As reflected in Sec.  600.315(b)(1)(ii) of the revised NS2 
guidelines, a peer review process per MSA 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. Section 600.315(c)(5) 
states 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 revised NS2 guidelines also state that the SSC 
evaluation of peer review findings should be complementary to the 
overall scientific review process for the purpose of providing advice 
to its Council, and the SSC should not repeat a previously conducted 
technical peer review.
    The revised NS2 guidelines state that an SSC member may participate 
in a peer review established pursuant to MSA section 302(g)(1)(E) when 
beneficial due to the expertise and regional knowledge of the SSC 
member, or when such participation would assist the SSC as a whole in 
its advisory role to the Council. If the SSC as a body or individual 
members of an SSC participate in a peer review established pursuant to 
MSA section 302(g)(1)(E), the SSC member(s) must meet the peer reviewer 
selection criteria as described in paragraph (b)(2) of the guidelines. 
For an SSC member or the SSC as a body to participate in a peer review, 
the guidelines require screening the SSC member(s) 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 prevents 
review of one's own work. Furthermore, the NS2 guidelines provide that 
the review and evaluation of scientific information by the Councils' 
SSCs should be transparent,

[[Page 43069]]

and should include the recording of minority viewpoints.
    Some public comments focused on the evaluation and recommendations 
of the SSCs on the scientific information for catch-level 
specifications and pertinent measures of uncertainty. These issues were 
addressed in the MSA National Standard 1 (NS1) guidelines (74 FR 3178, 
January 16, 2009), and may be further refined in a subsequent update of 
the NS1 guidelines. (See 77 FR 26238, May 3, 2012.)

D. Stock Assessment and Fishery Evaluation (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 Secretary and Councils with a summary of scientific 
information. The existing guidelines also contain specifications on the 
contents of SAFE reports. The revised NS2 guidelines provide further 
clarification on the purpose and content of the SAFE report. 
Specifically, they provide guidance on the scientific information that 
should be included in the SAFE report to enable the SSC to fulfill its 
role in providing its Council with ongoing scientific advice for 
fishery management decisions.
    Some comments suggested that a SAFE report should be a single 
report; however the revised NS2 guidelines maintain the language from 
the previous NS2 guidelines that describes the SAFE report 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. The revised NS2 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 revised NS2 guidelines 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 NS2 
guideline revisions specify, as recommended by public 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.

E. Fishery Management Plan (FMP) Development

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

IV. Responses to Comments

    NMFS received comments from constituents, regional fishery 
management councils and the general public on the proposed guideline 
revisions, and most of the commenters were supportive of the standards 
proposed for using the best scientific information available and having 
robust peer review processes. Commenters provided useful 
recommendations that were carefully considered during development of 
the final NS2 guidelines.

BSIA Criteria

    Comment 1: One commenter stated that the proposed guidelines were 
lengthy, detailed, and prescriptive regarding what constitutes BSIA and 
how BSIA should be used. The commenter stated that this 
prescriptiveness may lead Councils and SSCs to conform to inappropriate 
or overly restrictive approaches, or open the door to legal challenge 
based on procedural technicalities.
    Response: NMFS disagrees. The revised NS2 guidelines are advisory 
guidelines that do not have the force and effect of law. In the revised 
guidelines, NMFS adopted the NRC (2004) recommendations on what 
constitutes BSIA for improving fisheries management. Most commenters 
supported the inclusion of language outlining appropriate criteria of 
relevance, inclusiveness, objectivity, transparency and openness, 
timeliness, verification and validation, and peer review for evaluating 
BSIA. Furthermore, the guidelines are consistent with the Information 
Quality Act and the OMB Peer Review Bulletin requirements for improving 
the integrity of scientific information. This action is not overly 
prescriptive and provides sufficient flexibility to adopt new 
scientific protocols for data collection and analysis; as stated in 
paragraph (a)(5): ``Science is a dynamic process, and new scientific 
findings constantly advance the state of knowledge.''
    Comment 2: One commenter suggested including additional 
clarification regarding the difference between ``established'' and 
``emergent'' science as described by the American Fisheries Society and 
the Estuarine Research Federation (AFS/ERF). Other comments requested 
clarification of the language in paragraph (a)(4): ``Scientific 
information includes, but is not limited to, factual input . . .''
    Response: NMFS has added language in paragraph (a)(4) that 
clarifies the difference between ``established'' and ``emergent'' 
science. The AFS/ERF committee was established to consider what 
determines the best available science for natural resource policies and 
management, and its 2006 report (Fisheries 31(9):460-465) distinguished 
``established'' science as scientific knowledge derived and verified 
through the scientific process that tends to be agreed upon without 
controversy. ``Emergent'' science was defined as relatively new 
knowledge that is still evolving and being verified, therefore, 
potentially controversial because it is open to debate. Therefore, 
paragraph (a)(4) was revised to emphasize that: ``Emergent science 
should be considered more thoroughly, and scientists should be 
attentive to effective communication of emerging science.''
    Comment 3: Some commenters recommended changing the phrase ``best 
scientific information available'' to other phrases such as ``best data 
available,'' ``best scientific data possible'' or ``best scientific 
information possible,'' suggesting that the modifiers ``best'' and 
``available'' might result in a precedence for referring to scientific 
guesses and poorly done science or disputes over scientific information 
used in management.
    Response: NMFS disagrees because the phrase ``best scientific 
information available'' is taken directly from NS2 in the MSA. See 16 
U.S.C. 301(a)(2).
    Comment 4: One commenter suggested modifying paragraph (a)(1) as 
follows: ``Successful fishery management depends, in part, on the 
thorough analysis of this information, and the extent to which the 
information is applied for: (i) 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; (ii) Identifying areas where additional 
management measures are needed; and (iii) Evaluating the consequences 
of not taking management actions when and where necessary.''
    Response: NMFS agrees to add the language as recommended in (i) and 
(ii) which conveys important considerations for the success of fishery 
management. However, the suggested language for (iii) is not accepted 
because section 302(h) of the MSA requires Councils to prepare an FMP 
or amendments thereto for each fishery under its authority in need of

[[Page 43070]]

conservation and management. Therefore, not taking management action 
when and where necessary is not an option.
    Comment 5: Commenters requested that the revised NS2 guidelines add 
environmental conditions (e.g., weather modeling) to the types of 
scientific data considered in marine conservation and management, and 
should specify that historical information shall include the use of 
weather (e.g., wind, air temperature, water temperature, and wave 
height data) and economic conditions (e.g., fuel prices) as all of 
these have tremendous effect on the fishery participation and effort 
estimates.
    Response: NMFS agrees that environmental information is potentially 
useful for fisheries management. Ecological information mentioned in 
paragraph (a)(1) includes interactions of species with their 
environment, including the physical environment. The guidelines avoid 
being too prescriptive by not providing an exhaustive list of potential 
types of scientific information. The term ``environmental'' was 
inserted into the following sentence to be more inclusive: ``Fishery 
conservation and management require high quality and timely biological, 
ecological, environmental, economic, and sociological scientific 
information to effectively conserve and manage living marine 
resources.'' 50 CFR 600.315(a)(1).
    Comment 6: Two commenters noted that there is no consideration of 
how the BSIA principles enshrined in the MSA should be applied to NMFS 
in pursuit of its responsibilities under the Endangered Species Act 
(ESA) or the Marine Mammal Protection Act (MMPA), and the NS2 
guidelines should also specify that criteria for BSIA and peer review 
standards should be applicable to these other statutes.
    Response: The National Standards and associated guidelines are 
specific to fishery management measures developed and promulgated under 
the MSA. The ESA and MMPA are separate laws with their own implementing 
regulations and science policies. Changes to those regulations and 
policies are beyond the scope of this action.
    Comment 7: Some commenters suggested that the NS2 guidelines should 
provide more guidance for NMFS and Councils' SSCs to address the lack 
of scientific information, resolve critical data gaps, and specify that 
investments in time, effort, and funding are required to turn data poor 
fisheries into data rich fisheries. One commenter recommended that the 
NS2 guidelines include the statement: ``For fisheries that are data 
poor and require management, every effort should be made to collect 
data that will increase the certainty of needed management actions.'' 
Another commenter suggested that paragraph (a)(3) should state: ``In 
information-limited situations where simpler tools and assessment 
methods are warranted, scientific advice should be accompanied by 
recommendations for prioritizing data-needs in the short and long-term 
to move the fishery into a higher data category and improve assessment 
methods.'' One commenter also suggested adding, ``identification of 
future research areas and funding priorities'' to the end of the list 
of research-plan elements in paragraph (a)(5).
    Response: NMFS did not add the suggested language because the 
revised guidelines adequately address the importance of the evaluation 
of uncertainty, identification of data gaps, and assessment of risks 
associated with limited information when developing fishery management 
actions. NMFS also believes that funding and priorities for resolving 
data gaps are best addressed by the peer review and research 
prioritization processes of the Secretary and Councils.
    Comment 8: Some commenters expressed concern about the evaluation 
of uncertainty and data gaps in scientific information and the effect 
on SSC and Council decision-making. The commenters reported that their 
experience thus far indicates that a lack of information merely results 
in reduced quotas and fishing effort so as not to trigger the annual 
catch limit (ACL) or accountability measures (AM) thresholds pursuant 
to MSA requirements. Some recommended that the NS2 guidelines should 
provide guidance on how uncertainty should be addressed beyond the 
guidance that is provided in the proposed rule. One commenter 
recommended a more cautious interpretation of findings where 
uncertainty is high in order to ensure conservation of data-poor 
species and provide an incentive to collect the necessary information. 
Some commenters suggested adding language stating that sources of 
uncertainty must be considered and accounted for to the maximum extent 
possible.
    Response: The revised NS2 guidelines have sufficient, but not 
overly prescriptive, language on the importance of addressing 
uncertainty in scientific information. For example, paragraph (a)(2), 
states: ``Scientific information that is used to inform decision making 
should include an evaluation of its uncertainty and identify gaps in 
the information.'' Further guidance for addressing uncertainty is 
covered in the NS1 guidelines. 50 CFR 600.310(f)(4) and (6).
    Comment 9: One commenter suggested that the statement in paragraph 
(a)(2): ``Limitations in scientific information may not be used as a 
justification for delaying fishery management actions,'' presupposes 
that in the absence of information, management actions should be taken 
even if there may be compelling reasons for not taking action until 
more information is known. The commenter recommended that in such 
circumstances, the NS2 guidelines need to allow for evaluation of a no 
action alternative in the absence of scientific information and should 
assess the consequences of action versus no action.
    Response: NMFS struck the sentence at issue in paragraph (a)(2) 
because the concept of not delaying management actions due to 
limitations in scientific information is adequately addressed in 
paragraph (a)(6)(v). In response to the comment, the NS1 guidelines 
identify the need for a precautionary management response in the face 
of uncertainty, and the lack of data generally suggests the need for 
more precaution, but not inaction.
    Comment 10: One commenter recommended that the NS2 guidelines 
establish a conservative precautionary default for each FMP in case of 
delays or problems with scientific information. Specifically, the more 
dated the scientific information used to support fishery management 
actions, the more caution should be used in setting the acceptable 
biological catch (ABC) level when there is uncertainty. NMFS should 
require the SSCs and Councils to be more conservative in their 
management decisions and to err on the side of precaution to reduce the 
risk of overfishing. If a Council delays management action, NMFS must 
step in and implement this precautionary default.
    Response: It is beyond the scope of the NS2 guidelines to address 
the level of precaution needed to manage fisheries resources. The NS1 
guidelines address the need for precaution, including a requirement 
that scientific uncertainty be taken into account when the SSC makes 
recommendations to its Council regarding acceptable biological catch 
(ABC) levels. The role of the NS2 guidelines is to assure that 
uncertainty is calculated as accurately as possible so that it can be 
taken into account consistent with the NS1 guidelines.
    Comment 11: One commenter recommended an increased focus on 
economic impacts on coastal

[[Page 43071]]

communities in all fishery management decisions, and greater 
transparency as to how the various factors, including economic 
considerations, are weighted.
    Response: National Standard 8 requires consideration of impacts on 
fishing communities when developing fishery conservation and management 
measures. The NS2 guidelines emphasize the importance of high quality 
and timely social and economic information for evaluating the impact 
that conservation and management measures will have on fishing 
communities, as well as living marine resources, essential fish 
habitat, marine ecosystems, fisheries participants and the nation.
    Comment 12: One commenter, noting the increasing complexity of 
fisheries models, both for stock assessment and for social and economic 
analyses, recommended adding language in paragraph (a)(4) to reflect 
that system complexity will inevitably lead to more complex decision 
making models, especially in ecosystem based management, where stock 
assessments, social impacts and environmental systems are integrated 
into a single model or series of inter-connected models.
    Response: Although efforts to take into account the full complexity 
of ecosystems and fisheries may lead to complex models, NMFS disagrees 
that this would inevitably lead to complex decisions. A range of model 
complexities, commensurate with data availability and management 
questions, is anticipated by NMFS to meet the needs of the Councils.
    Comment 13: One commenter recommended directing fishery managers to 
use scientific information at the ecosystem level.
    Response: Paragraph (a)(6)(i) of the revised NS2 guidelines directs 
that an important criteria for evaluating BSIA is its relevance to the 
current questions or issues under consideration. Thus, the guidelines 
provide that if it is appropriate for ecosystem level scientific 
information to be considered or included in a particular analysis, 
managers should consider such information. Further guidelines are not 
necessary.
    Comment 14: One suggestion was provided to change the term ``data-
poor'' to ``information-limited'' because even data-rich fisheries can 
be information-limited and require the use of proxies if certain 
crucial data are missing or highly uncertain.
    Response: NMFS agrees and added the term ``information-limited'' to 
paragraph (a)(3) of the revised NS2 guidelines.
    Comment 15: One commenter requested clarifying the use of ``surveys 
or sampling programs'' to determine if this includes only underwater 
sampling and fishing catch collections, or whether ``survey'' also 
includes non-scientific telephone and dockside questionnaires. The 
commenter recommended discontinuing the use of phone surveys and 
instead using information from fishing license applications and species 
endorsements.
    Response: NMFS uses a range of surveys and sampling programs, 
including phone surveys, to collect scientific data from commercial and 
recreational fisheries. NMFS surveys that directly gather information 
from the public or business entities, including phone surveys 
administered by the NMFS Marine Recreational Information Program, have 
been reviewed and meet the rigorous OMB standards for survey 
methodologies employed by the Federal government. See OMB Guidance on 
Agency Survey and Statistical Information Collections (January 20, 
2006).
    Comment 16: One commenter questioned using peer review as a 
criteria for evaluating what constitutes BSIA, stating that external 
peer review, outside the normal SSC process, should not be a separate 
and mandatory criteria for determining BSIA, particularly because the 
use of peer review is discretionary in MSA section 302(g)(1)(E). The 
commenter recommended that external peer review should be an optional 
tool, best used in circumstances of significant controversy regarding 
scientific information. Another commenter recommended changing: ``. . . 
peer review, as appropriate; and communication of findings'' in 
paragraph (a)(5) to: ``shall include peer review; and subsequent 
communication of findings.''
    Response: Paragraph (a)(6) of the revised NS2 guidelines does not 
mandate peer review in all cases, but simply lists peer review as one 
of many criteria for evaluating BSIA, to be used as appropriate. We 
believe the guidelines should be flexible, therefore paragraph (a)(5) 
calls for peer review ``as appropriate'' as an element of a sound 
research plan. The revised NS2 guidelines state that the Secretary and 
Council have discretion to establish a peer review process as provided 
in section 302(g)(1)(E) of the MSA and that: ``peer review should be 
used when appropriate.''
    Comment 17: Paragraph (a)(6) of the proposed guidelines stated 
that: ``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.'' One commenter suggested changing ``must'' to ``should.'' 
Another recommended eliminating ``as appropriate'' and requested that 
the SSC should consider peer reviewed scientific information above non-
peer reviewed scientific information.
    Response: NMFS changed the quoted sentence in the revised 
guidelines to: ``Criteria to consider when evaluating best scientific 
information available are relevance, inclusiveness, objectivity, 
transparency and openness, timeliness, verification and validation, and 
peer review, as appropriate.'' The criteria for evaluating BSIA were 
adopted from the recommendations of the NRC (2004) on the application 
of BSIA principles in the development of fishery conservation and 
management measures. In response to the comments above, the change in 
paragraph (a)(6) was made to emphasize that these are criteria or 
factors to be considered when evaluating BSIA, not mandatory elements 
that must be met in all cases.
    Comment 18: One commenter objected to the use of a management 
strategy based on a proxy derived from another geographic area and 
different species to judge the responses of industry participants or 
business decisions, and recommended use of socio-economic data from the 
affected management area. Another commenter requested clarification on 
how the proxy, related species, and other geographical information 
could be used in modeling in data poor situations as specified in 
paragraph (a)(6)(i).
    Response: The NS1 guidelines address the use of a proxy or 
indicator species for specifying maximum sustainable yield (MSY) in 
data-limited situations. See 50 CFR 600.310(e)(1)(iii) and (iv). 
Although the use of proxies is acknowledged as a useful tool in data 
limited situations, NMFS has revised in paragraph (a)(6)(i) the phrase 
``powerful tool'' to ``may be a useful tool'' in the final NS2 
guidelines to ensure proxies are not used unnecessarily.
    Comment 19: Commenters supported consideration of relevant local 
and traditional knowledge (LTK) when evaluating scientific information 
to support fishery management actions, particularly in data limited 
situations and for fisheries in regions comprised of diverse indigenous 
communities with extensive traditional and local ecological knowledge. 
Commenters recommended specifying that collection of LTK must be 
consistent with appropriate scientific methods, undergo scientific 
review, and peer review, which may include indigenous

[[Page 43072]]

fishermen and hunters as well as researchers from other relevant 
disciplines to evaluate the sources and methods of recording LTK. They 
additionally suggested adding standards and procedures for 
incorporating LTK into the scientific process to increase Councils' 
confidence in its use.
    Response: NMFS agrees that using LTK in support of fishery 
management actions is important, and recognizes that there are various 
ways that LTK can be utilized in the fishery management process, 
including experiential LTK knowledge from both indigenous and non-
indigenous sources. NMFS encourages the development of scientific 
approaches to collection and evaluation of LTK, but does not believe 
the NS2 guidelines should prescribe appropriate collection and 
evaluation of LTK.
    Comment 20: With respect to the language in paragraph 
(a)(6)(ii)(C): ``To the extent possible, an effort should be made to 
reconcile scientific information with local and traditional 
knowledge,'' commenters recommended removing ``reconcile'' because it 
implies that scientific information must be made consistent with LTK, 
or vice versa, if there is a discrepancy. The use of ``reconcile'' 
could be misconstrued to mean that scientific information needs to be 
reconciled to conform to LTK information. LTK should not be required to 
be validated by another form of science for it to be incorporated or 
factored into a decision.
    Response: NMFS agrees and will remove ``reconcile'' to ensure that 
LTK information is acknowledged and evaluated along with other 
scientific information. NMFS agrees that reconciliation of LTK and 
other information should not be necessary for Councils to consider both 
types of information. Where the two types of information directly 
conflict and both have been validated through their respective review 
processes (SSC and LTK review subcommittee), the Councils should adopt 
an approach that takes account of the uncertainty inherent in this 
conflict.
    Comment 21: One commenter requested that paragraph (a)(6)(iii) 
identify what constitutes ``non-scientific considerations'' and clearly 
define ``standards for objectivity'' for scientific information. The 
commenter suggested that the final NS2 guidelines should describe the 
process for establishing, documenting, and evaluating compliance with 
the standard of objectivity.
    Response: NMFS agrees that the proposed rule language should be 
clarified and has revised paragraph (a)(6)(iii) to read: ``Objectivity. 
Scientific information should be accurate, with a known degree of 
precision, without addressable bias, and presented in an accurate, 
clear, complete, and balanced manner. Scientific processes should be 
free of undue nonscientific influences and considerations.'' Non-
scientific considerations include activities that negate the attributes 
of scientific standards, such as verification, validation, and approval 
by scientific review, as indicated in the BSIA section of the 
guidelines.
    Comment 22: Most commenters supported the importance of 
transparency as specified in the proposed guidelines, while some 
expressed concern that more public transparency was needed during the 
scientific peer review and fishery management meetings. One commenter 
stated the entire review process should be transparent and recommended 
paragraph (a)(6)(iv)(B) specify all rationale for excluding data from 
analysis must be clearly explained.
    Response: The NS2 guidelines emphasize that vetting of scientific 
information should be open and public. Moreover, the guidelines are 
consistent with MSA section 302(i)(2)(A) which provides broad public 
and shareholder access to the Councils' fishery conservation and 
management process. See 16 U.S.C. 1852(i)(2)(A). No change was made 
regarding paragraph (a)(6)(iv)(B) because it already states that: 
``Scientific information products . . . should explain any decisions to 
exclude data from analysis.''
    Comment 23: Two commenters expressed concern that paragraph 
(a)(6)(iv) suggests that a researcher must allow general public 
comments on all phases of research design, collection, and analysis. 
Without technical expertise, the public could not provide constructive 
comments from an analytical perspective, and the requirement to allow 
public comment during each stage of the scientific process would be 
cumbersome and result in delay, inhibit the scientific process, or 
politicize the research itself. Another commenter recommended requiring 
public comment on reports of uncertainty, statistical error, data 
limitations, and decisions to exclude data from analyses.
    Response: To address the concern, in paragraph (a)(6)(iv) NMFS 
struck the text: ``the public should have access to each stage in the 
development of scientific information,'' and revised the paragraph to 
read: ``Public comment should be solicited at appropriate times during 
the review of scientific information.'' The goal of these revised 
guidelines is to provide flexibility while emphasizing the importance 
of both public access to the scientific information used to support 
fishery management actions and public comment. Transparency of 
scientific data and analytical methods is a precondition for 
reproduction by others of the analyses of scientific information as 
noted in the verification section.
    Comment 24: One comment suggested adding after paragraph 
(a)(6)(iv)(B) a new paragraph as follows: ``(C) The reports of the SSC 
shall contain an analysis of the certainty of the findings and shall 
clearly state a confidence factor in the validity of the information 
and analysis in the form of a percentage of the reliability of the 
information provided.''
    Response: NMFS does not agree with prescribing that the SSC report 
uncertainty in a particular way. There are many ways to characterize 
uncertainty, and there is no way to predetermine a particular level of 
uncertainty. Transparency regarding uncertainty is adequately addressed 
in paragraph (a)(2) of the revised guidelines that states: ``Scientific 
information that is used to inform decision making should include an 
evaluation of its uncertainty and identify gaps in the information.''
    Comment 25: One commenter requested that the Councils be required 
to provide adequate time in their decision-making process to have 
scientific information analyzed and subjected to appropriate review 
before it is used to inform fishery management decisions, and that NMFS 
and the Councils establish benchmark stock assessment peer reviews 
sufficiently far in advance of SSC review and recommendations to its 
Council. Another commenter suggested changing ``must be brought 
forward'' to ``may be brought forward'' in paragraph (a)(6)(v)(B) on 
timeliness.
    Response: The timing of a Council's decision-making process is not 
within the scope of the NS2 guidelines. However, NMFS agrees with the 
second commenter and has changed the language in paragraph (a)(6)(v) to 
``may be considered for use.''
    Comment 26: One commenter recommended that paragraph (a)(6)(vi) 
regarding verification and validation be moved to the Peer Review 
portion of the guidelines in paragraph (b) because unrealistic demands 
for validation and verification could be misused to delay action under 
the guise of requiring more research to validate uncertain information. 
The commenter believes the methodological considerations with using 
verification and validation to

[[Page 43073]]

evaluate BSIA are better addressed as subordinate points in the peer 
review section.
    Response: NMFS retains the verification and validation section in 
the BSIA portion of the guidelines because these are important 
requirements of science that should be undertaken regardless of whether 
the science is peer reviewed. Verification is used to document 
scientific data collection and analytical procedures and NMFS routinely 
publishes sampling procedures for all of its major survey programs. 
Validation is the requirement to test scientific methodology and is 
also routinely done independently of peer review. The peer review 
section focuses on standards for conducting a peer review, such as the 
form of the review or criteria for selection of reviewers. The terms of 
reference for a specific peer review can require reviewers to determine 
if the science has been validated and verified. Paragraph (a)(6)(v) 
explicitly addresses delay concerns by stating that: ``Management 
decisions should not be delayed due to limitations in the scientific 
information or the promise of future data collection or analysis.''
    Comment 27: One commenter suggested editing paragraph (a)(6)(vi)(B) 
to state: ``. . . the accuracy and precision of the estimates are 
adequate.''
    Response: NMFS revised paragraph (a)(6)(vi)(B) to include both 
``accuracy and precision'' as important in estimates, and further 
clarified the importance of accuracy by adding: ``Models should be 
tested using simulated data from a population with known properties to 
evaluate how well the models estimate those characteristics and to 
correct for known bias to achieve accuracy.''
    Comment 28: Paragraph (a)(6)(viii) of the proposed guidelines 
states: ``To the extent practicable, the scientific information that 
supports substantial fishery management alternatives considered by a 
Council should be peer reviewed.'' Some commenters noted that peer 
review addresses scientific issues. This language implies that the peer 
review could apply to policy matters, including fishery management 
decisions, thereby undermining the role of the Councils as primary 
policy making bodies. One commenter stated that the NS1 guidelines 
distinguish between the scientific process (determination of 
overfishing levels (OFL) and ABC) and the management process 
(determination of ACL, annual catch target, and management measures), 
and that both processes are interdependent and closely linked. Although 
the scientific peer review process is well established, commenters 
expressed concern that the management process does not currently 
undergo a similar review process. Another commenter recommended that 
the NS2 guidelines advise the use of management strategy evaluation 
(MSE) or alternative technology, to support the peer review of 
management alternatives. MSE, which involves evaluating the tradeoffs 
and performance of different management alternatives, is a type of 
management tool for evaluating management alternatives that produce 
feedback into the stock assessment process.
    Response: To clarify that peer review pertains to scientific 
information, NMFS has revised paragraph (a)(6)(vii) to read: ``The 
scientific information that supports conservation and management 
measures considered by the Secretary or a Council should be peer 
reviewed, as appropriate.'' In regard to comments suggesting that 
management alternatives must be reviewed, the choice between management 
alternatives is a policy decision and is outside the scope of the NS2 
guidelines. The intent is not to peer review the Council's management 
decisions, but rather to ensure, as required by NS2, that conservation 
and management measures are based on BSIA. To that end, paragraph 
(a)(6)(vi)(B) provides: ``The concept of validation using simulation 
testing should be used, to the extent possible, to evaluate how well a 
management strategy meets management objectives.''

Peer Review Standards

    Comment 29: Many comments supported the inclusion of the current 
OMB peer review requirements in the NS2 guidance, as appropriate, and 
the establishment of peer review processes pursuant to MSA section 
302(g)(1)(E). Some commenters requested changing the heading of 
paragraph (b) to ``Optional Peer Review'' so that the standards apply 
only to optional peer reviews. Some commenters requested further 
guidance on when an independent peer review should occur and expressed 
concern with an ``optional'' peer review because this could indicate 
that the Councils, SSCs and agency are disinterested in utilizing this 
process. Other comments requested more prescriptive language including 
how or when peer review should be conducted, and by whom, especially 
when there is significant controversy regarding the scientific 
information on which fishery management decisions will be based. One 
commenter emphasized that the NS2 guidelines should require that each 
Council, working with the Secretary, determine whether an optional 
external peer review process is warranted, whereas others opposed the 
implication that an external peer review may be necessary, stating: 
``The Council has sole discretion to establish a supplemental peer 
review.''
    Response: NMFS does not agree that the peer review section should 
be titled ``optional peer review.'' MSA section 302(g)(1)(E) and the 
revised NS2 guidelines adequately convey that this is an optional, not 
mandatory peer review process. The language in section 302(g)(1)(E) 
clearly states that: ``The Secretary and each Council may establish a 
peer review process for that Council. . .'' 16 U.S.C.1852(g)(1)(E) 
(emphasis added). Thus the Secretary and each Council have the 
discretion, working together, to establish a peer review process. Under 
the revised guidelines, the Secretary and Councils have the necessary 
flexibility to continue to use and improve their existing peer review 
processes. See response to Comment 36 for factors to consider when 
determining whether to conduct a peer review, and if so, the 
appropriate level of review.
    Comment 30: Commenters asked for clarification on the SSC's role as 
an advisory body to the Council and the SSC's participation in a peer 
review process established pursuant to MSA section 302(g)(1)(E). Some 
commenters requested that paragraph (b) of the revised guidelines 
clarify that the SSC is the primary and final peer reviewer for 
scientific information. One commenter stated that MSA section 
302(g)(1)(E) was specifically crafted to allow SSCs to function as the 
primary peer review panel and that the SSC peer review satisfies the 
Information Quality Act requirements. Another commenter opposed the use 
of external peer reviewers, and stated that MSA section 302(g)(1)(E) 
allows Councils to use their own SSC as an optional peer review process 
at the discretion of the Council. One commenter stated the guidance in 
paragraph (b) should be for use only when a Council decides to use an 
external peer review, and that additional peer reviews beyond the SSC 
would further lengthen the Council process and should be avoided. 
Contrary to this, other commenters stated the SSC should not 
participate in peer reviews, but rather all peer reviews should be 
independent and external to the SSC process.
    Response: MSA section 302(g)(1)(E) gives the Secretary and Councils 
the discretion to establish a peer review as appropriate, and does not 
preclude Councils from using their SSCs for peer review. Paragraph (b) 
of the revised NS2

[[Page 43074]]

guidelines: ``provides guidance and standards that should be followed 
in order to establish a peer review process per [MSA] section 
302(g)(1)(E).'' NMFS does not agree that MSA section 302(g)(1)(E) 
states that SSC peer review alone satisfies IQA requirements, but 
rather, that a peer review process established by the Secretary and a 
Council is deemed to satisfy IQA requirements. NMFS believes that 
further revision to the guidelines is unnecessary because they are 
consistent with the MSA and clearly provide that the SSC, as a body or 
its members, may participate in peer review. The guidelines are clear 
that this discretionary peer review process is not meant to supplant 
the role of the SSC.
    Comment 31: A commenter requested that the agency clarify whether 
the Secretary has the authority to veto a decision by a Council to 
establish a peer review process pursuant to MSA section 302(g)(1)(E), 
or whether the Council may proceed as it deems appropriate subject to 
ultimate Secretarial review of the consistency of the FMP with the MSA. 
The commenter recommended the latter view as the appropriate policy.
    Response: NMFS disagrees with the suggested interpretation of MSA 
section 302(g)(1)(E) because that section clearly states that: ``the 
Secretary and each Council may establish a peer review process for that 
Council. . .'' The establishment of a peer review process is a joint 
Secretary-Council activity. NMFS disagrees with the suggestion that the 
Council may proceed as it deems appropriate, subject to ultimate 
Secretarial review. It is important to note that joint Secretary-
Council establishment of a peer review process does not supplant the 
Secretarial authority to review consistency of Council fishery 
management plans, amendments or other actions with the MSA and other 
applicable law.
    Comment 32: Commenters requested further clarification on the text 
in paragraphs (b)(1), and (c)(4) regarding duplicating or repeating 
peer reviews. One commenter expressed concern that the paragraphs could 
potentially restrict the SSC re-evaluation of peer-review reports. 
Commenters stated that the guidelines should have flexibility to allow 
for additional analysis within any review process that is complementary 
and not duplicative.
    Response: As discussed in response to comment 30, supra, paragraph 
(b) of the revised guidelines explicitly states that: ``A peer review 
process is not a substitute for an SSC and should work in conjunction 
with the SSC.'' Paragraph (c)(4) of the guidelines provides that the 
SSC evaluation of peer review findings should be complementary to the 
overall scientific review process for the purpose of providing advice 
to its Council, and the SSC should not repeat a previously conducted 
technical peer review because of disagreement with peer review 
findings. NMFS believes that these provisions allow for sufficient 
flexibility and therefore, no changes were made to paragraphs (b)(1), 
or (c)(4).
    Comment 33: Commenters supported paragraph (b)(4) that specifies: 
``The Secretary will announce the establishment of a peer review 
process under [MSA] section 302(g)(1)(E) in the Federal Register along 
with a brief description of the process'' while other commenters were 
concerned that the proposed guidelines do not acknowledge the existing 
stock assessment review processes (SAW/SARC, SEDAR, STAR and WPSAR) as 
being consistent with the MSA section 302(g)(1)(E) review process. Two 
commenters recommended that the Secretary clearly identify which 
existing Council committees or panels meet the NS2 guideline standards, 
in order to avoid confusion, prevent duplication and improve the 
ability of NMFS and the Councils to determine the appropriate type of 
peer review required for particular information.
    Response: The revised guidelines are consistent with the language 
in MSA section 302(g)(1)(E) that a peer review process established by 
the Secretary and a Council may include existing committees or panels. 
However, as with all other processes, in order to be recognized 
formally as MSA 302(g)(1)(E) processes, the same process as described 
in (b)(4) of the revised guidelines must be followed, culminating in an 
announcement of the formal designation in the Federal Register. NMFS 
disagrees that such determinations are made only by the Secretary, thus 
the guidelines provide for a role for both the Secretary and the 
relevant Council in making MSA section 302(g)(1)(E) determinations.
    Comment 34: One commenter criticized the language in paragraph 
(b)(1)(iii) of the revised guidelines arguing that policy 
considerations are in the purview of the Secretary and the Councils. 
Some commenters suggested that the decisions on all fishery management 
plans should be peer reviewed. Another commenter requested 
clarification on ``scientific'' and ``policy'' reviews and suggested 
distinguishing scientific uncertainty as a matter for scientific peer 
review and risk tolerance as a matter for policy peer review.
    Response: NMFS agrees that clarification would be helpful and has 
revised paragraph (b)(1)(iii) to read: ``The scope of work may not 
request reviewers to provide advice on policy or regulatory issues 
(e.g., amount of precaution used in decision-making) which are within 
the purview of the Secretary and the Councils, or to make formal 
fishing level recommendations, which are within the purview of the 
SSC.''
    Comment 35: Some commenters suggested that the scope of peer 
reviews should include all stages of the scientific process. One 
commenter suggested that the guidelines should require all data and 
science used by NMFS or the Councils be subjected to peer review before 
being used to inform management decisions.
    Response: NMFS agrees that the scope of peer review should include 
all stages of the scientific process and has clarified in paragraph 
(b)(1)(iii) that the scope of peer reviews includes ``evaluation of the 
various stages of the science.'' NMFS disagrees that all data and 
science should be peer reviewed because such a requirement would be 
impractical, not required in all cases, and would cause significant 
delays in the fishery management process.
    Comment 36: Some commenters requested more specificity regarding 
what types of scientific information must be peer reviewed. One 
commenter recommended that paragraph (b)(1)(i) be revised not simply to 
provide the Secretary and Council with discretion to determine 
appropriate peer review processes, but to require them to identify 
major products they receive and to establish criteria for determining 
the appropriate peer review for each. An SSC peer review or other 
independent form of review should occur when significant revisions are 
made to a benchmark assessment. Another commenter stated that all 
benchmark assessments should be subject to a formal external review, 
and the reviewers must be independent from the science to be reviewed, 
such as reviewers drawn from the Center for Independent Experts (CIE) 
or another comparable outside organization.
    Response: NMFS believes the revised NS2 guidelines provide 
sufficient guidance as to the necessity of and appropriate scope of 
peer review in paragraph (a)(6)(vii). This guidance is adopted from and 
consistent with the OMB peer review requirements. For peer reviews 
requiring a greater degree of independence, such as benchmark 
assessments, the Secretary and Councils routinely use independent 
reviewers,

[[Page 43075]]

including reviewers who are selected through the CIE process.
    Comment 37: Commenters supported peer reviews being conducted early 
in the process of producing scientific information. Some commenters 
suggested further guidance on the timing of peer review. Another 
commenter suggested that NMFS and the Councils must provide compelling 
justification for foregoing established peer review processes.
    Response: NMFS understands the importance of and need for 
conducting timely peer review to ensure that peer review findings are 
available to an SSC and its Council. NMFS has revised paragraph 
(b)(1)(ii) of the guidelines to read: ``The peer review should, to the 
extent practicable, be conducted early in the process of producing 
scientific information or a work product so peer review reports are 
available for the SSC to consider in its evaluation of scientific 
information for its Council and the Secretary.''
    Comment 38: Two commenters recommended that peer review should be a 
tool used to review the SSC's advice, while other commenters stated 
that the peer review process should be used to inform the Council's 
SSC.
    Response: NMFS disagrees that peer review should be used to review 
the SSC's advice because, as explained in paragraph (a)(6)(vii) of the 
guidelines: ``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.'' Paragraph 
(c)(4) correctly states: ``peer review of scientific information used 
to advise the Council, including a peer review process established by 
the Secretary and the Council under [MSA] section 302(g)(1)(E), should 
be conducted early in the scientific evaluation process in order to 
provide the SSC with reasonable opportunity to consider the peer review 
report and make recommendations to the Council as required under [MSA] 
section 302(g)(1)(B).''
    Comment 39: Paragraph (a)(6)(v)(B) of the proposed guidelines 
stated that: ``Management decisions should not be delayed due to data 
limitations or the promise of future data collection and analysis.'' 
One commenter suggested revising the text to make clear that peer 
reviews cannot be used to justify delay of management decisions either, 
especially if a stock is overfished or subject to overfishing.
    Response: NMFS agrees that this is the intent of the text (which 
was moved to paragraph (a)(6)(v) of the revised guidelines) and revised 
it to clarify: ``Mandatory management actions should not be delayed due 
to limitations in the scientific information or the promise of future 
data collection or analysis.'' NMFS also added new text in paragraph 
(b)(1)(ii) regarding timing of peer reviews. (See response to Comment 
37 for explanation.)
    Comment 40: A commenter suggested inserting additional text in 
paragraph (b)(1)(iii) providing that the scope of peer reviews should 
include findings and recommendations on missing information, future 
research, data collection, and improvements in methodologies and should 
also specify the type of expertise and balance of perspective for a 
review panel.
    Response: Paragraph (b)(2)(i) states: ``Peer reviewers must be 
selected based on scientific expertise and experience relevant to the 
disciplines of subject matter to be reviewed. The group of reviewers 
that constitute the peer review should reflect a balance in 
perspectives, to the extent practicable, and 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.'' Therefore, NMFS believes that the guidelines 
sufficiently address expertise and balance of perspective for peer 
review. NMFS has revised paragraph (b)(1)(iii) to clarify that the 
scope of work should allow reviewers to make recommendations regarding 
``missing information, future research, data collection, and 
improvements in methodologies.''
    Comment 41: One commenter suggested revising paragraph (b)(2) to 
state that peer reviewer selection should be guided by the scope of 
work which, according to paragraph (b)(1)(iii), should be determined 
before selecting reviewers.
    Response: NMFS believes the final rule has sufficient language to 
address the commenter's concern. Section (b)(1)(iii) specifies: ``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'' and paragraph (b)(2)(i) states: ``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'' to ensure the peer reviewer selection is guided by the 
scope of work.
    Comment 42: One commenter recommended that the ``group of 
reviewers'' that constitute the peer review have sufficiently broad and 
diverse expertise, and should also be representative of all sectors of 
the resource that are to be effected (e.g., commercial interests, 
charter operators, party/head boat operators, and recreational 
interests).
    Response: NMFS disagrees that scientific peer review must include 
representatives of all sectors with an interest in the resource. Input 
from such sectors occurs through the Council advisory panels, not 
through scientific peer review. The revised guidelines are clear on the 
peer reviewer qualification requirements of scientific expertise and 
experience relevant to the disciplines of subject matter to be 
reviewed, including a balance in perspectives.
    Comment 43: One commenter suggested that paragraph (b)(2)(i) on 
expertise and balance, when read with paragraph (a)(6)(iii) on 
objectivity, appears to establish a process requiring public hearings 
and testimony before a group with ``a balance in perspectives'' that is 
formed in order to review ``substantial fishery management 
alternatives.''
    Response: Peer reviews may require a balance in expertise and 
perspectives to review science that encompasses various disciplines, 
but seeking that balance should not involve consideration of non-
scientific issues. NMFS provided clarification to show this is not the 
intent by revising paragraph (a)(6)(vii) to read: ``the scientific 
information that supports conservation and management measures 
considered by the Secretary or a Council should be peer reviewed'' to 
differentiate between reviewing science products and management 
actions.
    Comment 44: One commenter expressed concern with the NS2 guidelines 
requiring a ``balance of viewpoints'' because a single individual would 
never meet this standard. The commenter recommended that the guidelines 
be revised to ensure a balance in the quality, number of perspectives, 
and number of reviewers.
    Response: The language in paragraph (b)(2)(i) is not in reference 
to a single peer reviewer as the commenter suggested, but rather, the 
peer review body as a whole. NMFS revised the paragraph to clarify this 
point, as indicated in the response to Comment 40.
    Comment 45: One commenter criticized the present peer review system 
claiming that NMFS controls all aspects of the process and stated that 
there should be outside or independent review of science used in 
support of fishery management actions, including data collection and 
analysis. The commenter stated that peer reviewers are ``handpicked'' 
by NMFS in the SEDAR peer review process. Another commenter recommended 
that members

[[Page 43076]]

of the peer review should not include members of the SEDAR, SSC, 
Advisory Panel, and the Council, thus eliminating potential sources for 
conflicts of interest.
    Response: The final NS2 guidelines provide sufficient guidance to 
ensure that reviewers meet peer review standards consistent with the 
OMB's Peer Review Bulletin and the National Academies Policy on 
Committee Composition and Balance and Conflicts of Interest by 
specifying in paragraph (b)(2) that: ``The selection of participants in 
a peer review should be based on expertise, independence, and a balance 
of viewpoints, and be free of conflicts of interest.'' Paragraph (c)(1) 
of the guidelines provides that: ``SSCs may conduct peer reviews or 
evaluate peer reviews to provide clear scientific advice to the 
Council'' consistent with MSA section 302(g)(1)(A). See 16 U.S.C. 
1852(g)(1)(A). In regard to the comment on SEDAR reviews, the SEDAR 
reviews include external peer reviewers who are independently selected 
by a third party, the Center for Independent Experts, to meet rigorous 
peer review standards.
    Comment 46: Comments were generally supportive of the requirement 
that peer reviewers must not have conflicts of interest and included 
suggestions for revising paragraph (b)(2)(ii). One commenter suggested 
that the phrases ``real or perceived conflict of interest'' and ``any 
financial or other interest'' may create ambiguity and the opportunity 
for inappropriate manipulation of the selection process. Another 
commenter recommended that the definition of conflicts of interest be 
further expanded to include advocacy conflict of interest or conflict 
of interest of a recipient of any consulting agreement, grant, or 
contract with NMFS. Another recommendation was to revise the text to be 
more specific about the conditions under which a conflict of interest 
is unavoidable such as when there is only one qualified reviewer 
available.
    Response: In response to comments, NMFS revised paragraph 
(b)(2)(ii) to delete ``real or perceived,'' but retained ``any 
financial or other interest.'' NMFS also revised the text to specify: 
``For reviews requiring highly specialized expertise, the limited 
availability of qualified reviewers might result in an exception when a 
conflict of interest is unavoidable; in this situation, the conflict 
must be promptly and publicly disclosed.'' Consulting arrangements, 
grants and contracts are included as potential conflicts of interest in 
paragraph (b)(2)(ii)(B). Advocacy activities are adequately addressed 
in the NOAA Conflict of Interest policy, which is incorporated by 
reference into the NS2 guidelines in paragraph (b)(2)(ii).
    Comment 47: One commenter stated that the selection of peer 
reviewers should be based on expertise and qualifications exclusively. 
Thus, paragraph (b)(2)(iii) should be revised to eliminate ``should 
rotate'' and the presumption that past service on a peer review panel 
is a basis for exclusion from future service.
    Response: The guidelines are clear on the importance of expertise 
and qualifications in the selection of peer reviewers, and the intent 
of the language on rotation of peer reviewers across the available pool 
of reviewers is to avoid a situation where a peer reviewer repeatedly 
reviews his or her scientific contributions from a previous review. 
Therefore, NMFS disagrees with the request to remove the language 
regarding rotating reviewers.
    Comment 48: Commenters generally agreed that the names of reviewers 
must be made publicly available. However one commenter suggested the 
language in paragraph (b)(3), ``Names and organizational affiliations 
of reviewers should be publicly available prior to review'' should be 
revised because of a concern for interference in the selection of 
independent reviewers. Another commenter requested that the guidelines 
specify that the peer reviewer selection process be publicly 
transparent, including the rejection of a potential reviewer based on 
conflicts of interest.
    Response: NMFS agrees that the peer review process should be as 
transparent as possible, including the public disclosure of the names 
and affiliations of the reviewers. However, NMFS agrees to remove the 
text ``prior to review'' to allow the option to withhold names of peer 
reviewers prior to review, when necessary. NMFS notes this practice is 
consistent with the OMB Peer Review Bulletin. NMFS disagrees with the 
suggestion of requiring public transparency of rejected potential 
reviewers because this is not required by the OMB peer review 
guidelines. Additionally, conflict of interest disclosure information 
for potential reviewers contains sensitive financial information that 
must be held in confidence.
    Comment 49: Most commenters supported the requirement for 
transparency in the peer review process, but one commenter expressed 
concern that it is impractical for public participation in all peer 
reviews. For example, the public could not attend a peer review 
conducted as an external desk review where a report is sent by email to 
the reviewer. Another commenter suggested that the guidelines appear to 
preclude any individual review, such as a desk review, because the 
guidelines imply that a review panel meeting is the only acceptable 
peer review process.
    Response: Paragraph (b)(1)(i) specifies: ``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.'' Therefore, a review panel meeting is not the only acceptable 
peer review process under the revised NS2 guidelines. To ensure 
transparency of all types of peer reviews, NMFS revised paragraph 
(b)(3) to read: ``A transparent process is one that ensures background 
documents and reports from peer review are publicly available . . . and 
allows the public full and open access to peer review panel meetings.''
    Comment 50: Some commenters requested that the guidelines specify 
that background documents be made publicly available 30 days prior to a 
peer review.
    Response: NMFS believes that inclusion of a specified number of 
days would be overly prescriptive because there are various forms of 
peer review, some of which may require a more expedited timeline. We 
believe that the guidelines adequately emphasize the importance of 
timeliness and transparency in peer review.
    Comment 51: One commenter suggested that the 14 day advanced notice 
of a peer review meeting specified in the action should be extended to 
provide a minimum of a 21 day notice period.
    Response: In order to extend the advance notice, NMFS revised the 
language in paragraph (b)(3) to read as: ``public notice of the peer 
review panel meetings should be announced in the Federal Register with 
a minimum of 14 days, and with an aim of 21 days, before the review to 
allow public comments during meetings.''

Role of SSC in the Review of Scientific Information

    Comment 52: NMFS received many comments regarding whether or not 
the SSC should participate in peer review. Some commenters argued that 
the peer review standards in the revised NS2 guidelines are unnecessary 
and inconsistent with the role of the SSC to function as the primary 
and final peer review for scientific information brought before the 
Council. One commenter requested that the NS2 guidelines be amended to 
specify that

[[Page 43077]]

the SSC functions as the primary peer review panel in all cases unless 
the Council decides otherwise, and that the SSC should not need to meet 
the conflict of interest standards in paragraph (b)(2) when conducting 
peer review. Contrary to this view, other commenters insisted that all 
peer reviews be independent and external of the SSC, and that SSC 
members should not participate in peer review. Many commenters 
expressed support for paragraph (c) on the advisory role of the SSC and 
participation of the SSC in peer review, and supported clarifying that 
the peer-review process complements, but does not replace, the role of 
the SSC to provide ongoing scientific advice to its Council for 
management decisions.
    Response: A primary reason for revising the NS2 guidelines was to 
clarify the distinction between the advisory role of the SSC to its 
Council as specified in MSA section 302(g)(1)(B), 16 U.S.C. 
1852(g)(1)(B), and the ability of the SSC to assist in peer review, as 
specified in MSA section 302(g)(1)(A), id. Sec.  1852(g)(1)(A). NMFS 
carefully considered public comments received in response to the ANPR 
and proposed rule requesting clarification on the distinction between 
these provisions. The revised guidelines specify that peer review is 
separate from the SSC's subsequent activity to evaluate scientific 
information for the purpose of providing advice, such as fishing level 
recommendation, to its Council. The revisions are also consistent with 
MSA section 302(g)(1)(E) providing the Secretary and Councils with the 
discretion to establish a peer review process. NMFS disagrees with 
comments that the SSC may not assist in peer review, as we believe that 
view is contrary to the plain language of MSA section 302(g)(1)(A). The 
revised NS2 guidelines encourage SSC members to participate in a peer 
review when such participation is beneficial 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 scientific information for its Council. The revised 
guidelines also state that participation of an SSC member in a peer 
review should not impair the ability of that member to fulfill his or 
her responsibilities to the SSC. NMFS disagrees with the recommendation 
that SSC members be completely exempt from paragraph (b)(2) addressing 
peer reviewer selection, but revised paragraph (c)(3) so that the 
paragraph (b)(2) requirements only apply when the SSC as a body or 
individual SSC members participate in a peer review process established 
under MSA section 302(g)(1)(E). The revision allows for less formal SSC 
review of information that is not novel, controversial or influential, 
such as a routine update of a stock assessment. Peer reviewers, 
including SSC members, participating in a peer review process 
established pursuant to MSA section 302(g)(1)(E) must meet the 
applicable OMB peer review standards as adopted in the revised NS2 
guidelines. The revised NS2 guidelines are consistent with MSA section 
302(g)(1)(D) which specifies that each SSC member shall be treated as 
an affected individual for the purposes of paragraphs (2), (3)(B), (4), 
and (5)(A) of MSA section 302(j). Further details on the conflicts of 
interest disclosure of SSC members as affected individuals are provided 
at 50 CFR 600.235. Regarding the comment that the SSC is the final 
arbiter in the peer review process, we agree that the SSC review is the 
final step in the overall scientific review process and the SSC should 
certify that its scientific recommendations for its Council are based 
on the BSIA. The revised NS2 guidelines do not restrict or impinge on 
the SSC's responsibilities to its Council.
    Comment 53: Some commenters suggested that the SSC's role is 
advisory and should not invade the province of the Council decision 
making ability. They stated that the Council shall take into 
consideration the recommendations of the SSC, any public comment, and 
peer review findings in decision making.
    Response: We agree that the role of the SSC is advisory and the 
revised NS2 guidelines in no way preclude any Council's consideration 
of public comments or other information when making decisions. However, 
the NS2 guidelines encourage all scientific information considered by 
the Council, including peer reviews, be brought to the Council through 
its SSC. We also note that pursuant to section 302(h)(6) of the MSA, a 
Council may not exceed fishing level recommendations of its SSC when 
establishing ACLs. See the NS1 guidelines (50 CFR 600.310) for further 
explanation.
    Comment 54: Commenters suggested paragraph (b)(2)(iii) could be 
misinterpreted to indicate that federal and state fishery agency 
scientists could not serve as SSC members to review data or scientific 
materials prepared by their respective agencies. One commenter 
suggested amending the guidelines to prevent SSC members who are state 
or NMFS employees with unique scientific qualifications from being 
disqualified on conflict of interest grounds. A commenter also asked 
for clarification on whether SSC members, including state or 
territorial officials, who advance an agenda at odds with Council 
decisions, should be screened for conflicts of interest.
    Response: The guidelines provide that peer reviewers, including the 
SSC or SSC members who participate in peer review, must satisfy the 
peer review standards, and federal employees conducting peer review 
must comply with all applicable federal ethics requirements. The NS2 
guidelines are clear regarding SSC participation in peer review and do 
not impose a blanket prohibition on employees from state or federal 
agencies, including NMFS, from participating in peer review. For 
clarity, we agree to remove, ``reviewers should not be employed by the 
Council or entity that produced or utilizes the product for management 
decisions'' in paragraph (b)(2)(iii). This also resolves the ambiguity 
of the word ``entity,'' which was too vague. Additional details on the 
conflict of interest disclosure requirements for SSC members are 
provided at 50 CFR 600.235.
    Comment 55: One commenter requested clarification of paragraph (c) 
by inserting ``evaluation'' in the title and first sentence to read: 
``Scientific evaluation and advice to Council'' and: ``Each scientific 
and statistical committee shall provide its Council ongoing scientific 
evaluation and advice for fishery management decisions.''
    Response: Paragraph (c) quotes MSA section 302(g)(1)(B) verbatim, 
therefore NMFS did not revise that language in the final guidelines. 
Moreover, NMFS believes that the SSC's role in evaluating scientific 
information is adequately addressed in paragraph (c)(1) which states: 
``Debate and evaluation of scientific information is the role of the 
SSC.''
    Comment 56: One commenter requested that the NS2 guidelines include 
guidance on the SSC process itself, because there is no oversight of 
the SSC and the SSC process is neither free of bias and conflict, nor 
amenable to alternative points of view. Other commenters requested the 
addition of language to address a perception of philosophical bias or 
advocacy by some SSC members.
    Response: NMFS believes that the revised guidelines provide clear 
guidance on the peer review standards and the SSC's role as scientific 
advisors to its Council. Pursuant to MSA section 302(f)(6), Councils 
are required to make available to the public a Statement of 
Organization, Practices and Procedures (SOPP) in accordance with 
uniform standards prescribed by the Secretary of

[[Page 43078]]

Commerce. (See 16 U.S.C. 1852(f)(6).) The purpose of the SOPP is to 
inform the public how the Council (including the SSC and advisory 
panels) operates. (See 50 CFR 600.115.) The Council SOPP provides the 
best practices and operating procedures for the Council's SSC. 
Regarding alleged bias and conflict in the SSC process, MSA section 
302(g)(1)(D) requires disclosure of SSC members' financial interests, 
and details on SSC member conflict of interest disclosure are provided 
at 50 CFR 600.235. Regarding openness of SSCs to alternative points of 
view, the SSC is comprised of experts from academic, non-governmental, 
and Federal and state government entities who provide expertise over a 
range of disciplines needed for informed fishery management decisions.
    Comment 57: One commenter requested striking the statement: ``the 
SSC must have a peer review of all of its recommendations'' in the 
proposed guidelines.
    Response: This statement does not exist in the proposed guidelines, 
nor do the guidelines require the SSC recommendations to be peer 
reviewed. Paragraph (c)(1) states that: ``SSC scientific advice and 
recommendations to its Council are based on scientific information that 
the SSC determines to meet the guidelines for best scientific 
information available as described in paragraph (a) of this section.''
    Comment 58: One commenter suggested replacing ``information'' with 
``data'' in the paragraph (c)(1) statement: ``Such scientific advice 
should attempt to resolve conflicting scientific information, so that 
the Council will not need to engage in debate on technical merits.''
    Response: NMFS did not make the suggested change because the 
scientific information considered by the SSC is not always strictly 
data. For example, the SSC often evaluates scientific data, methods, 
results, and conclusions.
    Comment 59: NMFS received several comments on the importance of 
transparency of the SSC when providing evaluation and advice to its 
Council; however, some expressed concern that meetings of the SSC were 
not publicly transparent. One commenter suggested that the NS2 
guidelines should bar SSC meetings that are not public, including 
closed conference call meetings, and stated that some SSCs do not even 
meet concurrently with Council meetings, thereby preventing input from 
constituents. Another commenter suggested adding ``must'' to paragraph 
(c)(3) to read: ``When the SSC as a body is conducting peer review, it 
should strive for consensus and must 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,'' because it is 
essential that the SSC, in the capacity of a peer reviewer, be 
transparent.
    Response: The NS2 guidelines clearly state that review of 
scientific information by the SSC should be transparent and paragraph 
(c)(3) has been revised as requested. MSA section 302(i)(2) mandates 
that SSC meetings be open to the public and that timely notice be 
published in the Federal Register. SSC evaluations, findings, and 
recommendations are documented for Council meetings, which are also 
open to the public.
    Comment 60: One commenter indicated that the SSC (or other Council 
advisory bodies), when conducting peer review, does not have to meet 
the high standards of the OMB peer review criteria. It was suggested 
that, in some instances, decisions on the use of updated stock 
assessment information have been made by the Councils and their SSCs 
without prior review by the established stock assessment review 
processes.
    Response: NMFS agrees that the majority of work conducted by the 
SSC and other advisory bodies are not peer review processes, but rather 
advisory responsibilities, and the Council's SOPP provides guidance on 
best practices and operating procedures for the Council's SSC and other 
advisory bodies. Details on SSC member conflict of interest disclosure 
are provided at 50 CFR 600.235. Peer reviewers, including SSC members 
that participate in peer review, are required to satisfy the OMB peer 
review standards, where applicable. The NS2 guidelines also specify: 
``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.'' For example, an assessment update may not 
require the same degree of independence in the peer review process as 
would a benchmark assessment. NMFS notes that all stock assessment 
information undergoes some degree of peer review prior to the SSC 
evaluation for its Council.
    Comment 61: A commenter recommended including a requirement for 
Council approval before any SSC member could be selected for an outside 
peer review, to mitigate the potential for any real or perceived 
conflicts of interest for SSC recommendations to its Council.
    Response: We do not believe that the recommended revision is 
necessary. The NS2 guidelines clearly state: ``Participation of an SSC 
member in a peer review should not impair the ability of that SSC 
member to accomplish the advisory responsibilities to the Council.''
    Comment 62: One commenter suggested revising subsection (c)(2) to 
reflect that, to the extent possible, service on peer review panels 
should rotate between qualifying SSC members to strive for 
independence, balance and an absence of potential bias on review 
panels.
    Response: NMFS believes that this recommendation is already 
adequately addressed in paragraph (b)(2)(iii) of the guidelines, which 
recommends rotating peer review responsibilities across an available 
pool of qualified reviewers.
    Comment 63: Paragraph (b)(2) states: ``The selection of 
participants in peer review must be based on expertise, independence, 
and a balance of viewpoints . . .'' One commenter recommended removing 
the implication that the SSC is not itself ``balanced'' with respect to 
scientific perspectives. The commenter noted that the SSC includes 
scientists employed by the states, the Federal government, 
international commissions, and universities, and questioned whether the 
SSC members, for example government members, are to be considered as 
having some ``perspective'' that needs to be balanced with other 
perspectives and, therefore, whether additional SSC members must be 
appointed.
    Response: NMFS believes that this is a misinterpretation of the 
guidelines because the guidelines do not provide any requirements on 
the selection of SSC as an advisory body to its Council and do not 
imply that the SSC body is not itself balanced. Paragraph (b)(2) adopts 
the criteria from the OMB Peer Review Bulletin requiring that the 
selection of peer reviewers, including SSC members that participate in 
peer review, be based on expertise, independence, balance of 
viewpoints, and be free of conflicts of interest.
    Comment 64: Commenters requested removing the phrase ``conducts 
or'' from the statement in paragraph (c)(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.''
    Response: NMFS revised the statement to read: ``If an SSC as a body 
conducts a peer review established under [MSA] section 302(g)(1)(E) or 
individual members of an SSC participate in such a peer review, the SSC 
members must meet the peer reviewer selection criteria as described

[[Page 43079]]

in paragraph (b)(2) of this section.'' See the response to Comment 52 
for additional detail.
    Comment 65: One commenter recommended that NMFS and the Councils 
establish terms of reference requiring SSC members to serve as chairs 
or facilitators in peer review, a role in which they may serve without 
having to meet strict qualifying criteria for peer reviewers.
    Response: NMFS agrees that it may be beneficial to the Council to 
have an SSC member serve as a chair during a peer review. The revised 
NS2 guidelines allow for this and NMFS does not believe additional 
language is necessary because the Secretary and each Council have the 
discretion to establish the peer review process, including who should 
serve as the chair of the review. Paragraph (c)(2) clearly states: ``An 
SSC member may participate in peer review when such participation is 
beneficial to the peer review due to the expertise and institutional 
memory of that member, or beneficial to the Council's advisory body by 
allowing that member to make a more informed evaluation of the 
scientific information.''
    Comment 66: One commenter requested that paragraph (c)(3) clearly 
distinguish regular peer review activities of the SSC from official 
peer reviews which require SSC members participating in the review to 
meet the peer reviewer standards in paragraph (b)(2).
    Response: NMFS agrees and clarified in paragraph (c)(3) that SSC 
members must meet the peer reviewer selection criteria contained in 
paragraph (b)(2) when they participate in a peer review established 
pursuant to MSA section 302(g)(1)(E). See the responses to Comments 52 
and 60 for additional detail.
    Comment 67: Several commenters expressed support for paragraph 
(c)(5), which requires that SSC disagreements with peer review findings 
be documented in a report and made available to their Council and the 
public. Some commenters requested stronger language to prevent the SSC 
from freely rejecting the results of any peer review. Other commenters 
suggested that the scientific advice of the SSC should attempt to 
resolve conflicting scientific information, and the analysis of 
conflicts should be reported so that the Council will not be forced to 
engage in debate on technical merits. The SSC should reconcile the 
differences between its findings and that of the peer review. One 
commenter requested an additional 45-60 day period for public review of 
the peer review report and SSC findings when an SSC reports 
disagreements with the findings and conclusions of a peer review. 
Another commenter supports the idea that the SSC should report its 
decisions that are inconsistent with a peer review finding, but 
expressed concern that paragraph (c)(5) implies that a peer review 
panel is an independent policy and review body with standing equal to 
that of the SSC or Council.
    Response: Paragraph (c)(1) provides appropriate guidance that the 
SSC's scientific advice should attempt to resolve conflicting 
scientific information. Further, paragraph (c)(5) provides that when 
the SSC disagrees with peer review results, a report must be prepared 
outlining the areas of disagreement, and the rationale and information 
used by the SSC for making its determination. Paragraph (c)(5) does not 
state or imply that a peer review panel has equal standing to that of 
the SSC and Council; rather, the intent is to ensure transparency in 
the SSC evaluation of scientific information that is inconsistent with 
the findings or conclusions of a peer review. NMFS disagrees with the 
request to require an additional 45-60 day period for public review 
when the SSC reports disagreements with the findings and conclusions of 
a peer review because it would significantly delay final Council action 
on fishery management measures.
    Comment 68: One commenter requested that the NS2 guidelines require 
any additional assessment work requested by the SSC be subject to peer 
review. The commenter explained that SSCs in some regions have extended 
stock assessments by requiring additional model runs, which are then 
incorporated into scientific advice to the Council without further peer 
review.
    Response: NMFS does not agree that the NS2 guidelines should in all 
cases require peer review of additional work requested by the SSC. When 
the SSC requests additional work, it should be for the purpose of 
clarification in the context of a main body of work that has already 
been reviewed. The need for peer review of additional work will depend 
upon the novelty, complexity, and potential for controversy. The peer 
review system can involve existing committees, so it may be acceptable 
for the SSC to act as reviewers for the added work if any review is 
needed. It is important that this additional work be documented in the 
SAFE report or elsewhere so that it becomes part of the public record 
for fishery management actions.
    Comment 69: One commenter expressed concern with language in 
paragraph (c)(4) that states that the SSC should, ``not repeat the 
previously conducted and detailed technical peer review,'' on the basis 
this implies that SSC input is not warranted if a peer review is 
conducted. The commenter recommended adding, ``but this provision is 
not intended to thwart or constrain the scope or depth of SSC 
comments.''
    Response: Paragraph (c)(4) is not intended to constrain the 
advisory role of the SSC to its Council, but seeks to ensure that a 
technical peer review is not repeated. A primary role and necessary 
function of the SSC is to evaluate and provide recommendations on 
scientific information for its Council, including recommendations on 
whether the scientific information is adequate or requires further work 
if deemed inadequate.
    Comment 70: Some commenters requested clarification of the roles of 
the SSC and Council regarding establishment of ABCs and ACLs. One 
commenter stated that the NS2 guidelines should include a definitive 
statement that SSCs provide science-based ABCs and Councils set ACLs. 
Some commenters requested revising the language in paragraph (c)(6) to: 
``Annual catch limits (ACLs) may exceed the SSC's recommendations for 
fishing levels.'' Other commenters stated that, once the SSC has set 
the ABC, the options of the Councils are extremely limited. The NS2 
guidelines should clarify that the Councils must have the power and 
ability to determine the proper limits and regulations based on the 
recommendations of the SSCs.
    Response: The NS1 guidelines provide detailed guidance on 
compliance with the ACL requirements and clarify the relationship 
between ACLs, ABC, maximum sustainable yield (MSY), optimum yield (OY) 
and other applicable reference points. (See generally 50 CFR 600.310.) 
Those issues are not addressed in the NS2 guidelines. NMFS will not 
make the suggested revisions to the language in paragraph (c)(6) 
because doing so would be inconsistent with MSA section 302(h)(6) which 
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).''

SAFE Report

    Comment 71: One commenter requested that the guidelines specify 
that the SAFE report be a single document, or alternatively provide 
that the SAFE documents be available in one

[[Page 43080]]

place on a Council or NMFS Web site with an index and links to 
pertinent documents. Most commenters agreed with the SAFE report being 
a ``document or set of documents'' and with the new language in 
paragraph (d)(5)(ii) that the SAFE report: ``must be made available by 
the Council or NMFS on a readily accessible Web site.'' Two commenters 
recommended retaining the current NS2 guidelines language: ``Each SAFE 
report must be scientifically based, and cite data sources and 
interpretations'' and recommended that the Secretary ensure disclosure 
of the source of any information included in the SAFE report.
    Response: While NMFS understands that a single document has certain 
advantages of convenience to the users, NMFS decided that it is more 
beneficial to provide the Councils and the Secretary the discretion to 
choose whether to compile the SAFE report as a single document or set 
of documents. In response to comments on the proposed guidelines, NMFS 
has added language in paragraph (d) stating that: ``Each SAFE report 
must be scientifically based, with appropriate citations of data 
sources and information.'' NMFS adds further clarification in paragraph 
(d)(5)(i): ``Sources of information in the SAFE report should be 
referenced unless the information is proprietary.''
    Comment 72: One commenter requested adding ``and the Secretary'' to 
the first sentence of paragraph (d) to indicate that the SAFE report is 
for both the Secretary and Council. Some commenters suggested that the 
NS2 guidelines should explicitly delegate to NMFS or the Councils the 
accountability for preparing the SAFE report with support from others 
as needed.
    Response: Paragraph (d) was revised to state that the SAFE report: 
``provides the Secretary and Councils with a summary of scientific 
information . . .'' The NS2 guidelines explicitly designate 
responsibility in paragraph (d)(1): ``The Secretary has the 
responsibility to ensure that SAFE reports are prepared and updated or 
supplemented as necessary . . .'' while also providing that: ``The 
Secretary or Councils may utilize any combination of personnel from 
Council, State, Federal, university, or other sources to acquire and 
analyze data and product the SAFE report.'' The intent is to allow 
flexibility between the Secretary and Councils in utilizing their 
resources to compile the SAFE report.
    Comment 73: One commenter objected to the language in paragraph (d) 
because it appears to give NMFS the responsibility to prepare the SAFE 
report, making NMFS the final arbiter of what constitutes BSIA for the 
Councils. It also appears to require that the SAFE report be peer 
reviewed before it can be considered by a Council, which usurps the 
SSC's role of providing scientific advice to the Council. Another 
commenter requested that each SAFE report, particularly new 
information, be peer reviewed and that all sources used to compile the 
SAFE reports should be free of conflicts of interest.
    Response: As reflected in paragraph (d), the Secretary of Commerce 
ultimately has the responsibility under the MSA to determine whether a 
proposed management action is based on BSIA, because all fishery 
management actions must be determined to be consistent with all of the 
MSA national standards, including NS2, as well as other applicable law. 
While it is expected that the advice provided by SSCs will be based on 
BSIA, that information, as well as how it is applied, is still subject 
to Secretarial review and approval before it can be implemented. There 
is no language in paragraph (d) that implies that the Secretary's 
responsibility in regard to the SAFE report undermines the role of the 
SSC. Peer review of scientific information, including information 
contained in SAFE reports, and conflict of interest concerns are 
sufficiently addressed in the peer review section of these revised 
guidelines. The guidelines are clear that the SAFE report is a 
compilation of the BSIA products, some of which may have been peer 
reviewed, to be used by the Secretary, Councils, and the public in 
developing and reviewing fishery management actions. The SAFE report is 
an important and useful summary of scientific information for 
evaluation and recommendations by the SSC for its Council.
    Comment 74: One commenter recommended that the NS2 guidelines 
specify a standard format for SAFE reports, similar to a format of the 
North Pacific groundfish SAFE reports where individual stock 
assessments are summarized in an executive summary including relevant 
information, such as biological reference points and stock status, as 
well as recommendations for OFLs and ABCs, and the concerns addressed 
in these recommendations.
    Response: NMFS considered requiring a common format for SAFE 
reports, but recognized that there are significant differences in how 
the eight Councils and the Secretary conduct their business, including 
their management schedules, the committees and technical groups 
involved, how and when they receive scientific information, and the 
format in which that information is received. In consideration of those 
differences and the need to make the SAFE report preparation efficient, 
NMFS believes that allowing flexibility in the format of the SAFE 
documents is preferable to requiring a single uniform format.
    Comment 75: One commenter requested that the SAFE report include 
information on safety at sea, as specified in the National Standard 10 
guidelines.
    Response: Paragraph (d)(2) of the revised NS2 guidelines states 
that SAFE reports provide ``information on bycatch and safety for each 
fishery.''
    Comment 76: Commenters indicated that some regions have not 
routinely prepared SAFE reports, and requested the SAFE report be 
updated regularly, on at least an annual basis to ensure consistency 
with any and all management decisions.
    Response: NMFS believes paragraph (d)(1) is sufficiently clear 
that: ``The SAFE report and any comments or reports from the SSC must 
be available to the Secretary and Council for making management 
decisions for each FMP'' and also states: ``The Secretary has the 
responsibility to ensure that SAFE reports are prepared and updated or 
supplemented as necessary whenever new information is available to 
inform management decisions . . .'' NMFS disagrees with the 
recommendation that the SAFE report be updated on at least an annual 
basis because, in some cases, Council processes may allow for multiyear 
harvest specifications. NMFS believes allowing the SAFE reports to be 
prepared periodically is appropriate and consistent with the decision-
making schedule to allow for efficiencies and differences in the 
processes used by different Councils for different fisheries.
    Comment 77: One commenter recommended that the text in paragraph 
(d)(2), ``. . . assessing the relative success of existing state and 
Federal fishery management programs'' be revised to ``. . . assessing 
the relative success of existing relevant state and Federal fishery 
management plans.''
    Response: NMFS agrees to insert the word ``relevant.'' The word 
``programs'' was not changed to ``plans'' as recommended because not 
all states have FMPs.
    Comment 78: One commenter requested inserting in paragraph (d)(3): 
``To the extent possible . . .'' at the start of ``each SAFE report 
should contain the following'' because items to be included in a SAFE 
report cannot always be calculated for all stocks (e.g., minimum stock 
size threshold cannot be calculated for data-poor stocks with 
incomplete catch records).

[[Page 43081]]

    Response: NMFS agrees with the commenter's concern and revised 
paragraph (d)(3) as: ``Each SAFE report should contain the following 
scientific information when it exists.'' NMFS also added to paragraph 
(d)(2): ``The SAFE report should contain an explanation of information 
gaps and highlight needs for future scientific work.''
    Comment 79: One commenter requested that the NS2 guidelines require 
that uncertainty be specified in the SAFE report because the ABC will 
be set based, in part, on scientific uncertainty. The commenter also 
requested the guidelines require that the SAFE report include 
management uncertainty information and relevant recommendations for the 
Council's consideration in establishing ACLs.
    Response: NMFS agrees with the suggestion to include consideration 
of scientific uncertainty in the SAFE report, and revises the language 
in paragraph (d)(3)(i)(B) to read ``(B) Information 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 (Sec.  600.310(f)(2)).'' The SSC takes into account 
scientific uncertainty in setting ABC control rules, and the SSC report 
to the Council should document how the SSC did so.
    Comment 80: One commenter requested that the NS2 guidelines require 
the SAFE report to include definitions for ``overfishing'' and 
``overfished'' from the NMFS 1998 National Standard 1 Guidelines. 
Another commenter stated that SAFE reports should include the SSC 
recommendations for ABC, and must contain the maximum fishing mortality 
threshold (MFMT), the minimum stock size threshold (MSST), overfishing 
and overfished status, and rebuilding plans if applicable. Another 
commenter suggested that the SAFE report contain assessment team 
recommendations for OFLs and ABCs, including any concerns that went 
into their recommendations and this information should then be 
evaluated by the SSC for their Council's catch specification process. 
Another commenter expressed concern with the requirement that the SAFE 
report include recommendations and reports of the SSC regarding 
overfishing levels and ABCs because the SAFE report is published before 
the SSC evaluation. The SAFE report is reviewed by the SSC as it 
provides its advice to the Council, and its recommendations occur after 
the publication of the SAFE report. Therefore, the SSC should publish a 
report of its deliberations and make it publicly available on the 
Council's Web site as part of the official record supporting the 
Council's recommendations to the Secretary.
    Response: NMFS disagrees with the suggestion to require definitions 
for ``overfishing'' and ``overfished'' in the SAFE report because those 
terms are already defined in the NS1 guidelines. We believe the 
information on which to base catch specifications and status 
determinations should be available to the Councils at the time of their 
decision making process, and therefore, language is added to paragraph 
(d)(3)(i) that the SAFE report should contain: ``Information on which 
to base catch specifications and status determinations, including the 
most recent stock assessment documents and associated peer review 
reports, and recommendations and reports from the Council's SSC.'' 
Regarding the comment on the requirement that the SAFE report include 
SSC reports on overfishing levels and ABCs, NMFS believes this concern 
is adequately addressed in the NS2 guidelines because the SAFE report 
can be a document or set of documents, including the report of the SSC 
findings and recommendations, that are publicly available. The final 
recommendations and actions of the SSC may be included in an amendment 
to the SAFE report.
    Comment 81: Two commenters expressed concern with the text in 
paragraph (d)(3): ``Each SAFE report should contain . . . (i)(B) Any 
management measures necessary to rebuild an overfished stock or stock 
complex . . .'' The SAFE report should report progress towards stock 
rebuilding, but rebuilding plans, including analysis of management 
alternatives, should be developed through the Council's FMP process 
with input from advisors and the public.
    Response: The revised NS2 guidelines specify that the SAFE report 
should contain the scientific information needed in support of 
management measures or rebuilding plan, and the intent was not to 
include the actual management measures or the full analyses of the 
alternatives. MSA section 303 requires FMPs and FMP amendments to 
contain conservation and management measures for fisheries. To clarify 
this, NMFS has deleted ``along with information to determine'' from 
paragraph (d)(3)(i)(A), so it now reads: ``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).'' NMFS also 
revised paragraph (d)(3)(i)(B) to read: ``The best scientific 
information available to determine whether overfishing is occurring 
with respect to any stock or stock complex, whether any stock or stock 
complex is overfished. . .'' Paragraph (d)(3)(i)(C) was revised to 
read: ``The best scientific information available in support of 
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.'' These changes make clear that the purpose of 
the SAFE report is to provide the Councils and Secretary with the 
necessary BSIA to understand the status of the fishery and support 
their efforts in evaluating management measures and alternatives.
    Comment 82: One commenter urged that paragraph (d)(3)(iii) 
incorporate the Standardized Bycatch Reporting Methodology (SBRM) 
required by MSA section 303(a)(11), 16 U.S.C. 1853(a)(11), into the 
SAFE report. The SAFE report also should include information on catch 
and bycatch, a description of pertinent data collection and estimation 
methods, and ``quantitative estimates'' of total mortality.
    Response: Paragraph (d)(3)(ii) of the revised NS2 guidelines states 
that the SAFE report should include: ``Information on sources of 
fishing mortality (both landed and discarded), including commercial and 
recreational catch and bycatch in other fisheries and a description of 
data collection and estimation methods used to quantify total catch 
mortality, as required by the National Standard 1 Guidelines.'' The NS2 
guidelines do not preclude including discard and total mortality 
estimates into the SAFE report when available. NMFS believes it is 
inappropriate to require SAFE reports to contain SBRM, as MSA section 
303(a)(11) requires that SBRM be established in an FMP.
    Comment 83: Two commenters expressed concern that paragraph 
(d)(3)(v) could be misinterpreted as requiring the relevant evaluations 
of EFH information to be in the SAFE report. EFH information should be 
evaluated through Plan Teams, SSC and Council meetings. The frequency 
of review and revision of EFH components of FMPs is already provided 
for in 50 CFR 600.815(a)(10), therefore it would be confusing to 
require additional EFH review as part of the SAFE report. Another 
commenter indicated that this confusion can be resolved with minor 
clarification that EFH information may be included by reference and 
contained in a stand-alone separate document, not just physically 
merged into the SAFE report.

[[Page 43082]]

    Response: The NS2 guidelines ensure that a summary of BSIA is 
available in the SAFE report, including any relevant EFH information. 
The intent is not to require an additional evaluation of EFH. 
Therefore, NMFS has deleted ``review and evaluations'' and ``stand-
alone chapter'' from paragraph (d)(3)(iv) so it now reads: 
``Information on EFH to be included in accordance with the EFH 
provisions (Sec.  600.815(a)(10)).''
    Comment 84: One commenter requested language requiring more 
thorough assessments of marine ecosystems in SAFE reports. Two 
commenters supported the inclusion of: ``Pertinent economic, social, 
community, and ecological information'' in paragraph (d)(3)(vi) and one 
suggested additional language that explicitly includes ecosystem 
considerations, such as forage fish impacts and other criteria to 
determine optimum yield.
    Response: NMFS believes that the NS2 guidelines include sufficient 
language on the scientific information to be included in the SAFE 
report, including marine ecosystem information. The SAFE report is a 
summary of existing information, not only on stock status, but on many 
ecosystem components as well. The language is intended to be broad 
enough to include all the important considerations in ecological 
information, including forage fish impacts where relevant.

FMPs

    Comment 85: One commenter requested insertion of the language: 
``BSIA is needed for regulatory amendments in conjunction with a 
framework FMP, and not just FMPs.''
    Response: The proposed edit is not necessary because the MSA 
national standards apply to all Council actions, not just FMPs.
    Comment 86: One commenter requested adding: ``If information 
indicates that drastic changes have occurred in the fishery that 
require revision of the management objectives or measures, then the FMP 
process must begin again.''
    Response: This is beyond the scope of the guidelines and is 
unnecessary. Councils have the statutory responsibility for preparing 
FMPs and amendments to such plans and revising them as appropriate 
according to sections 302(h) and other provisions of the MSA.
    Comment 87: One commenter asserted that the preparation and 
implementation of an FMP should be delayed until the best scientific 
data possible concerning a fishery is complete.
    Response: NMFS disagrees and provides in paragraph (e)(2): ``The 
fact that scientific information concerning a fishery is incomplete 
does not prevent the preparation and implementation of an FMP.'' This 
is consistent with the NS2 requirement that fishery conservation and 
management measures be based on the BSIA.
    Comment 88: One commenter stated the NS2 guidelines should apply 
equally to Highly Migratory Species (HMS) managed by NMFS and Council-
managed species. The commenter also requested that the guidelines 
address how scientific advice for HMS is provided to NMFS.
    Response: The NS2 guidelines apply to scientific information used 
by the Councils and NMFS. Scientific information used by NMFS to manage 
Atlantic HMS undergoes a rigorous and transparent peer review process. 
No additional HMS-specific provisions are needed in the guidelines.
    Comment 89: One commenter suggested that clarification is needed in 
paragraph (e)(3): ``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 
commenter recommended that the NS2 guidelines specify FMP information 
requirements that may be imposed on fisherman and processors.
    Response: Information to be collected from fishermen and processors 
must be identified in FMPs per MSA section 303(a)(5). Thus NMFS has not 
revised the NS2 guidelines to require specification of this 
information. However, NMFS has added a new sentence in paragraph (e)(3) 
that clarifies: ``Scientific information collections for stocks managed 
cooperatively by Federal and State governments should be coordinated 
with the appropriate state jurisdictions, to the extent practicable, to 
ensure harvest information is available for the management of stocks 
that utilize habitats in state and federal managed waters.''
    Comment 90: Four commenters requested that the words ``should'' or 
``must'' be replaced with the word ``shall'' through many sections to 
strengthen the requirements of NS2. Conversely, two commenters noted 
that MSA section 301(b) provides that the National Standards guidelines 
are advisory in nature and do not have the force and effect of law, and 
therefore recommended that NMFS strike all use of the words ``must'' 
and ``shall'' in the NS2 guidelines.
    Response: In the NS2 guidelines, ``shall'' is used only when 
quoting statutory language directly. ``Must'' is used instead of 
``shall'' to denote an obligation to act and is primarily used when 
referring to requirements of the MSA, the logical extension thereof, or 
other applicable law. ``Should'' is used to indicate that an action or 
consideration is strongly recommended to fulfill the Secretary's 
interpretation of the MSA, and is a factor reviewers will look for in 
evaluating a SOPP or FMP. ``May'' is used in a permissive sense. NMFS 
notes that the above word usage in the National Standards guidelines is 
explained at 50 CFR 600.305(c).

V. Changes From Proposed Action (74 FR 65724, Dec. 11, 2009)

    Paragraph (a)(1) was revised to clarify that ``environmental'' 
scientific information is also important for fishery conservation and 
management. This introductory paragraph was revised to clarify that 
successful fishery management not only depends on evaluation of 
``potential'' impact that conservation and management measures will 
have on living marine resources, but also depends on ``(ii) Identifying 
areas where additional management measures are needed.''
    Paragraph (a)(2) was revised by striking the last sentence because 
similar language is provided in paragraph (a)(6)(v).
    Paragraph (a)(3) was revised to expand the term ``data-poor 
fisheries'' to ``Information-limited fisheries, commonly referred to as 
`data-poor' fisheries.''
    Paragraph (a)(4) was revised by adding: ``Scientific information 
includes established and emergent scientific information. Established 
science is scientific knowledge derived and verified through a standard 
scientific process that tends to be agreed upon often without 
controversy. Emergent science is relatively new knowledge that is still 
evolving and being verified, therefore, may potentially be uncertain 
and controversial. Emergent science should be considered more 
thoroughly, and scientists should be attentive to effective 
communication of emerging science.'' Editorial clarification was also 
included in the revised language: ``Scientific information includes 
data compiled directly from surveys or sampling programs, and models 
that are mathematical representations of reality constructed with 
primary data.''
    Paragraph (a)(5) provides a description of science as a dynamic 
process, and the word ``ideally'' was added to the statement that: 
``Best scientific information is, therefore, not

[[Page 43083]]

static and ideally entails developing and following a research plan 
with the following elements'' because the ability to achieve all the 
listed elements is not always possible.
    Paragraph (a)(6) was revised to replace ``Principles'' with 
``Criteria to consider'' to read as: ``Criteria to consider when 
evaluating best scientific information are . . .''
    Paragraph (a)(6)(i) was revised to clarify that analysis of related 
stocks or species for inferring the likely traits of stocks ``may be a 
useful tool'' rather than the previously stated ``is a powerful tool.''
    Paragraph (a)(6)(ii)(B) was revised to clarify ``Alternative points 
of view'' as ``Alternative scientific points of view.''
    Paragraph (a)(6)(ii)(C) was revised to remove ``reconcile'' and the 
ambiguity associated with the previous statement: ``effort should be 
made to reconcile scientific information with local and traditional 
knowledge.'' The language now reads: ``Relevant local and traditional 
knowledge (e.g., fishermen's empirical knowledge about the behavior and 
distribution of fish stocks) should be obtained, where appropriate, and 
considered when evaluating the BSIA.''
    Paragraph (a)(6)(iii) was revised by striking the first sentence of 
the paragraph and revising the second sentence from: ``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'' to read: ``Scientific 
information should be accurate, with a known degree of precision, 
without addressable bias, and presented in an accurate, clear, complete 
and balanced manner.'' We also included the statement: ``Scientific 
processes should be free of undue nonscientific influences and 
considerations'' as recommended by the NRC (2004).
    In paragraph (a)(6)(iv), the statement: ``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'' was removed 
because it is impracticable to solicit public comment during all the 
stages of development of the science, such as data sampling operations 
and analytical work. Further revision was made to clarify public 
comment should be solicited during the ``review'' of scientific 
information rather than during the ``development'' of science.
    Paragraph (a)(6)(v) on timeliness was revised by moving paragraph 
(a)(6)(v)(B) to the beginning of paragraph (a)(6)(v), and then 
relabeling paragraph (C) as (B). The last sentence from (B) was moved 
to be the first sentence in (a)(6)(v), and this phrase: ``Management 
decisions should not be delayed due to data limitations . . .'' was 
revised to: ``Mandatory management actions should not be delayed due to 
limitations in scientific information . . .''
    In paragraph (a)(6)(v), the statement: ``Sufficient time should be 
allotted to analyze recently acquired data to ensure its reliability 
and that it has been audited'' was modified for clarification to: 
``Sufficient time should be allotted to audit and analyze recently 
acquired information to ensure its reliability.'' Further clarification 
is provided by revising: ``Data collection methods are expected to be 
subjected to appropriate review before used to inform management 
decisions'' to: ``Data collection methods are expected to be subjected 
to appropriate review before providing data used to inform management 
decisions.'' The text of proposed paragraph (a)(6)(v)(B) was revised by 
changing: ``Timeliness may also mean that in some cases results of 
important studies or monitoring programs must be brought forward'' to: 
``In some cases, due to time constraints, results of important studies 
or monitoring programs may be considered for use before they are fully 
completed.''
    Paragraph (a)(6)(v)(A) was revised by changing: ``For those data 
that require being updated'' to: ``For information that needs to be 
updated. . .'' The words ``In particular,'' were removed. The words 
``such timing concerns'' were added to language that now reads: 
``subject to regulatory constraints, and such timing concerns should be 
explicitly considered. . .'' Further clarification was added with: 
``Data collection is a continuous process, therefore analysis of 
scientific information should specify a clear time point beyond which 
new information would not be considered in that analysis and would be 
reserved for use in subsequent analytical updates.''
    Paragraph (a)(6)(v)(C) was merged with paragraph (B), and revised 
for clarity by changing ``species' life history characteristics might 
not change'' to ``some species' life history characteristics might not 
change.'' Another revision changed: ``Other time-series data (e.g., 
abundance, catch statistics, market and trade trends) provide context 
for changes in fish populations, fishery participation, and effort 
used, and therefore provide valuable information to inform current 
management decisions'' to read: ``Other historical data (e.g., 
abundance, environmental, catch statistics, market and trade trends) 
provide time-series information on changes in fish populations, fishery 
participation, and fishing effort that may inform current management 
decisions.''
    Paragraph (a)(6)(vi)(B) was revised to clarify the list of 
validation measures by changing: ``the precision of the estimates is 
adequate, model estimates are unbiased, and the estimates are robust to 
model assumptions'' to: ``the accuracy and precision of the estimates 
is adequate, and the estimates are robust to model assumptions.'' The 
phrase ``and to correct for known bias to achieve accuracy'' was added 
to the statement: ``models should be tested using simulated data from a 
population with known properties to evaluate how well the models 
estimate those characteristics.''
    In paragraph (a)(6)(vii) a new sentence was added for additional 
clarity: ``Routine updates based on previously reviewed methods require 
less review than novel methods or data.'' We also provided 
clarification by revising: ``substantial fishery management 
alternatives considered by a Council'' to: ``The scientific information 
that supports conservation and management measures considered by the 
Secretary or a Council should be peer reviewed, as appropriate.''
    Paragraphs (a)(6)(vii) and (viii) were combined into a single 
paragraph. A new sentence was added to the end of the paragraph: 
``Other applicable guidance on peer review can be found in the Office 
of Management and Budget Final Information Quality Bulletin for Peer 
Review.''
    Paragraph (b)(1) was revised by removing ``for each Council'' from 
the phrase: ``The process established by the Secretary and Council for 
each Council . . .''
    The first sentence of paragraph (b)(1)(ii) was revised by moving 
``to the extent practicable'' from the end of the sentence to read: 
``The peer review should, to the extent practicable, be conducted early 
. . .'' and adding: ``so peer review reports are available for the SSC 
to consider in its evaluation of scientific information for its Council 
and the Secretary'' to the end of the sentence.
    Paragraph (b)(1)(iii) was revised by changing: ``The scope of work 
contains the objective of the specific advice being sought'' to: ``The 
scope of work contains the objectives of the peer review, evaluation of 
the various stages of the science, and specific recommendations for 
improvement of the science.'' The language: ``as well as to make 
recommendations regarding areas of missing information, future 
research,

[[Page 43084]]

data collection, and improvements in methodologies'' was added to the 
third sentence of the paragraph. Further clarification was made by 
revising: ``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)'' to: ``The 
scope of work may not request reviewers to provide advice on policy or 
regulatory issues (e.g., amount of precaution used in decision-making) 
which are within the purview of the Secretary and the Councils, or to 
make formal fishing level recommendations which are within the purview 
of the SSC.''
    Paragraph (b)(2) on peer review selection was revised by changing a 
``must'' to a ``should.''
    Paragraph (b)(2)(i) was revised by deleting ``including a balance 
in perspectives'' from the first sentence and adding ``should reflect a 
balance in perspectives, to the extent possible'' to the second 
sentence.
    Paragraph (b)(2)(ii) was revised by deleting the second sentence 
and replacing it with the last sentence of this section which was 
revised to: ``Potential reviewers who are not federal employees must be 
screened for conflicts of interest in accordance with the NOAA Policy 
on Conflicts of Interest for Peer Review Subject to OMB's Peer Review 
Bulletin or other applicable rules or guidelines. ``Under the NOAA 
policy'' was added to the beginning of the third sentence and: ``Peer 
reviewers must not have any real or perceived conflicts of interest'' 
was changed to: ``peer reviewers must not have any conflicts of 
interest . . .''
    Paragraph (b)(2)(ii)(C) was merged with paragraph (b)(2)(ii)(B). 
The language: ``Except for those situations in which a conflict of 
interest is unavoidable, and the conflict is promptly and publicly 
disclosed'' was revised to: ``For reviews requiring highly specialized 
expertise, the limited availability of qualified reviewers might result 
in an exception when a conflict of interest is unavoidable; in this 
situation, the conflict must be promptly and publicly disclosed.'' The 
last sentence of the paragraph was modified and moved to paragraph 
(b)(2)(ii) as noted above.
    Paragraph (b)(2)(iii) addressing independence in peer review was 
clarified by revising: ``Peer reviewers must not have participated in 
the development of the work product or scientific information under 
review'' to: ``Peer reviewers must not have contributed or participated 
in the development of the work product or scientific information under 
review.'' The language: ``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'' was 
revised for clarity to: ``For peer review of products of higher novelty 
or controversy, a greater degree of independence is necessary to ensure 
credibility of the peer review process.'' The language: ``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 expertise'' was revised for clarity to: ``Peer 
reviewer responsibilities should rotate across the available pool of 
qualified reviewers or among the members on a standing peer review 
panel to prevent a peer reviewer from repeatedly reviewing that same 
scientific information, recognizing that, in some cases, repeated 
service by the same reviewer may be needed because of limited 
availability of specialized expertise.''
    Paragraph (b)(3) on transparency in peer review was revised from: 
``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'' 
to: ``A transparent process is one that ensures that background 
documents and reports from peer review are publicly available, subject 
to Magnuson-Stevens Act confidentiality requirements, and allows the 
public full and open access to peer review panel meetings.'' The text: 
``also be publicly transparent in accordance with the Council's 
requirements for notifying the public meetings. The date, time, 
location, and terms of reference (scope and objectives)'' was replaced 
with: ``be conducted in accordance with meeting procedures at Sec.  
600.135.'' The time period for public notice of a peer review panel 
meeting was revised by changing the language to: ``Consistent with that 
section, public notice of peer review panel meetings should be 
announced in the Federal Register with a minimum of 14 days and with an 
aim of 21 days before the review. . .'' The words ``prior to review'' 
were removed from the statement: ``Names and organizational 
affiliations of reviewers also should be publicly available.''
    Paragraph (c)(1) on SSC advice to its Council was revised from: 
``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'' to: ``SSC 
scientific advice and recommendations to its Council are based on 
scientific information that the SSC determines to meet the guidelines 
for best scientific information available.'' In the sentence: ``SSCs 
may conduct peer reviews, participate in peer reviews, or evaluate peer 
reviews to . . .'', the words ``participate in peer reviews'' were 
struck because participation in peer review by SSC members is addressed 
in the paragraph (c)(2). The language: ``. . . 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'' was changed to: ``. . . so that the Council will not need to 
engage in debate on technical merits. Debate and evaluation of 
scientific information is the role of the SSC.''
    The last sentence of paragraph (c)(2) was changed from: 
``Participation of an SSC member in a peer review should not impair the 
ability of that SSC member to accomplish the advisory responsibilities 
to the Council'' to: ``Participation of an SSC member in a peer review 
should not impair the ability of that member to fulfill his or her 
responsibilities to the SSC.''
    The first sentence of paragraph (c)(3) was revised from: ``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'' to: ``If an SSC as a body conducts a peer review established 
under Magnuson-Stevens Act section 302(g)(1)(E) or individual members 
of an SSC participate in such a peer review, the SSC members must meet 
the peer reviewer selection criteria as described in paragraph (b)(2) 
of this section.'' The second sentence was changed from: ``These 
guidelines require separate consideration from those of Sec.  600.235 . 
. .'' to: ``In addition, the financial disclosure requirements under 
Sec.  600.235 . . . . apply.'' When the SSC body is conducting peer 
review, the word ``must'' was added to ``meet the transparency 
guidelines.''
    In paragraph (c)(4), the statement ``SSCs must maintain their role 
as advisors to the Council about scientific information that comes from 
an external peer review process'' was changed by removing ``external'' 
because this statement applies to all peer review rather than only 
external peer review. The phrase ``be linked to'' in the first sentence 
was changed to ``consider'' and the word ``review'' was changed to 
``consider'' in the last sentence of the paragraph for clarification.

[[Page 43085]]

    In the first sentence of paragraph (c)(5), the phrase: ``If the 
evaluation of scientific information by the SSC is inconsistent with'' 
was changed to: ``If an SSC disagrees with'' and the word ``should'' 
was changed to ``must'' to strengthen the need for the SSC to prepare a 
report outlining disagreement with peer review findings, and NMFS 
added: ``This report must be made publicly available'' to the end of 
the paragraph.
    Paragraph (c)(6) was revised by specifying that ACLs are 
``developed by a Council.'' The term ``SSC recommendation'' was 
clarified to ``SSC fishing level recommendations.'' ``Per the National 
Standard 1 Guidelines,'' was added to the beginning of the second 
sentence. Further clarification was provided by adding: ``The SSC is 
expected to take scientific uncertainty into account when making its 
ABC recommendation (Sec.  600.310(f)(4)). The ABC recommendation may be 
based upon input and recommendations from the peer review process.''
    Paragraph (d) was revised to clarify that the SAFE report provides 
scientific information for ``the Secretary and the Councils'' rather 
than to only the Councils. The language: ``Each SAFE report must be 
scientifically based with appropriate citations of data sources and 
information'' was also added to this paragraph.
    Paragraph (d)(1) was revised for clarification to state that the 
SAFE report is prepared and updated or supplemented as necessary 
whenever new information is available: ``to inform management decisions 
such as status determination criteria (SDC), overfishing level (OFL), 
optimum yield, or ABC values.'' It previously read: ``that requires a 
revision to the status determination criteria (SDC), or is likely to 
affect the overfishing level (OFL), optimum yield, or ABC values.'' 
Clarification was also made that the SAFE report must be available to 
``the Secretary and Council'' rather than to only the Council.
    Paragraph (d)(2) was revised by adding: ``The SAFE report should 
contain an explanation of information gaps and highlight needs for 
future scientific work. Information on bycatch and safety for each 
fishery should also be summarized.'' The word ``relevant'' was also 
added to ``state and Federal fishery management programs'' for further 
clarification.
    The introductory paragraph (d)(3) for the SAFE report information 
was revised for clarification by adding ``scientific information when 
it exists'' to ``Each SAFE report should contain the following.''
    The subsections within paragraph (d)(3) were reordered and 
renumbered for clarification purposes.
    The language in paragraph (d)(3)(i) was moved to paragraph 
(d)(3)(i)(A), and revised to clarify by removing ``along with 
information to determine.''
    The language from paragraph (d)(3)(i)(A) was moved to paragraph 
(d)(3)(i)(B) and revised to clarify by adding: ``The best scientific 
information available to determine.''
    Paragraph (d)(3)(i)(B) was renumbered as paragraph (d)(3)(i)(C) and 
revised to clarify by adding: ``The best scientific information in 
support of'' and removing the word ``any.''
    In paragraph (d)(3)(ii), the language: ``Information on which to 
base catch specifications and status determinations, including the most 
recent stock assessment documents and associated peer review reports, 
and recommendations and reports from the Council's SSC'' was moved to 
paragraph (d)(3)(i) as an introductory sentence to paragraph (d). The 
remaining language: ``on OFL and ABC, preventing overfishing, and 
achieving rebuilding targets'' and: ``Documentation of the data 
collection, estimation methods, and consideration of uncertainty in 
formulating catch specification recommendations should be included'' 
was moved to paragraph (d)(3)(i)(B). The word ``Information'' was added 
before the phrase ``on OFL and ABC, preventing overfishing.''
    Paragraph (d)(3)(iii) was renumbered as paragraph (d)(3)(ii).
    Paragraph (d)(3)(iv) was renumbered as paragraph (d)(3)(iii).
    Paragraph (d)(3)(v) was renumbered as paragraph (d)(3)(iv), and 
revised by changing: ``Review and evaluation of EFH information in 
accordance with the EFH provisions (Sec.  600.815(a)(10))'' to: 
``Information on EFH to be included in accordance with the EFH 
provisions (Sec.  600.815(a)(10)). The language ``as a standalone 
chapter in a clearly noted section'' was removed because the EFH report 
tends to be a lengthy document that is included in the SAFE report that 
is comprised of a set of documents.
    Paragraph (d)(3)(vi) was renumbered as paragraph (d)(3)(v), and 
revised to clarify by changing ``success of management measures'' to 
``success and impacts of management measures.''
    A new paragraph (d)(4) was added. It states: ``Transparency in the 
fishery management process is enhanced by complementing the SAFE report 
with the documentation of previous management actions taken by the 
Council and Secretary including a summary of the previous ACLs, ACTs, 
and accountability measures (AMs), and assessment of management 
uncertainty.''
    Paragraph (d)(4) was renumbered as paragraph (d)(5).
    Paragraph (d)(4)(i) was renumbered as paragraph (d)(5)(i), and 
revised by adding: ``Sources of information in the SAFE report should 
be referenced, unless the information is proprietary.''
    Paragraph (d)(4)(ii) was renumbered as paragraph (d)(5)(ii).
    Paragraph (e)(3) was revised for clarification by adding: 
``Scientific information collections for stocks managed cooperatively 
by Federal and State governments should be coordinated with the 
appropriate state jurisdictions, to the extent practicable, to ensure 
harvest information is available for the management of stocks that 
utilize habitats in state and federal managed waters.''

VI. 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.

VII. Classification

    The NMFS Assistant Administrator has determined that this action is 
consistent with the provisions of the MSA and other applicable law.
    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the

[[Page 43086]]

proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: July 16, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 600 is to be 
amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.


0
2. Section 600.315 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 
timely biological, ecological, environmental, 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:
    (i) Evaluating the potential 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; and
    (ii) Identifying areas where additional management measures are 
needed.
    (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.
    (3) Information-limited fisheries, commonly referred to as ``data-
poor'' fisheries, may require use of simpler assessment methods and 
greater use of proxies for quantities that cannot 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 includes data compiled directly 
from surveys or sampling programs, and 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. Scientific information includes established and 
emergent scientific information. Established science is scientific 
knowledge derived and verified through a standard scientific process 
that tends to be agreed upon often without controversy. Emergent 
science is relatively new knowledge that is still evolving and being 
verified, therefore, may potentially be uncertain and controversial. 
Emergent science should be considered more thoroughly, and scientists 
should be attentive to effective communication of emerging science.
    (5) Science is a dynamic process, and new scientific findings 
constantly advance the state of knowledge. Best scientific information 
is, therefore, not static and ideally 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) Criteria to consider when evaluating best scientific 
information are 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 may be a useful 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 scientific points of view should be acknowledged 
and addressed openly when there is a diversity of scientific thought.
    (C) Relevant local and traditional knowledge (e.g., fishermen's 
empirical knowledge about the behavior and distribution of fish stocks) 
should be obtained, where appropriate, and considered when evaluating 
the BSIA.
    (iii) Objectivity. Scientific information should be accurate, with 
a known degree of precision, without addressable bias, and presented in 
an accurate, clear, complete, and balanced manner. Scientific processes 
should be free of undue nonscientific influences and considerations.
    (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. 
Public comment should be solicited at appropriate times during the 
review 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. Mandatory management actions should not be delayed 
due to limitations in the scientific information or the promise of 
future data collection or analysis. In some cases, due to time 
constraints,

[[Page 43087]]

results of important studies or monitoring programs may be considered 
for use before they are fully 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. Sufficient time should be allotted to audit and analyze 
recently acquired information to ensure its reliability. Data 
collection methods are expected to be subjected to appropriate review 
before providing data used to inform management decisions.
    (A) For information that needs to be 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 such timing concerns should be explicitly considered 
when developing conservation and management measures. Late submission 
of scientific information to the Council process should be avoided if 
the information has circumvented the review process. Data collection is 
a continuous process, therefore analysis of scientific information 
should specify a clear time point beyond which new information would 
not be considered in that analysis and would be reserved for use in 
subsequent analytical updates.
    (B) Historical information should be evaluated for its relevance to 
inform the current situation. For example, some species' life history 
characteristics might not change over time. Other historical data 
(e.g., abundance, environmental, catch statistics, market and trade 
trends) provide time-series information on changes in fish populations, 
fishery participation, and fishing effort that may 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 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 accuracy and precision of the estimates is adequate, 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 and to 
correct for known bias to achieve accuracy. 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. The scientific information that 
supports conservation and management measures considered by the 
Secretary or a Council should be peer reviewed, as appropriate. 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. Routine updates based on previously reviewed 
methods require less review than novel methods or data. 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. 
Other applicable guidance on peer review can be found in the Office of 
Management and Budget Final Information Quality Bulletin for Peer 
Review.
    (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. 16 U.S.C. 1852(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 Magnuson-Stevens Act 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 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, to the extent practicable, be 
conducted early in the process of producing scientific information or a 
work product, so peer review reports are available for the SSC to 
consider in its evaluation of scientific information for its Council 
and the Secretary. 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 
objectives of the peer review, evaluation of the various stages of the 
science, and specific recommendations for improvement of the science. 
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, as well as to make recommendations 
regarding areas of missing information, future research, data 
collection, and improvements in methodologies, and it must not change 
during the course of the peer review. The scope of work may not request 
reviewers to provide advice on policy or regulatory issues (e.g., 
amount of precaution used in decision-making) which are within the 
purview of the Secretary and the Councils, or to make formal fishing 
level

[[Page 43088]]

recommendations which are within the purview of the SSC.
    (2) Peer reviewer selection. The selection of participants in a 
peer review should 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. The group of reviewers that constitute 
the peer review should reflect a balance in perspectives, to the extent 
practicable, and 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. Potential 
reviewers who are not federal employees must be screened for conflicts 
of interest in accordance with the NOAA Policy on Conflicts of Interest 
for Peer Review Subject to OMB's Peer Review Bulletin or other 
applicable rules or guidelines.
    (A) Under the NOAA policy, peer reviewers must not have any 
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: could 
significantly impair the reviewer's objectivity, or could create an 
unfair competitive advantage for a person or organization.
    (B) 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. For reviews requiring highly specialized expertise, 
the limited availability of qualified reviewers might result in an 
exception when a conflict of interest is unavoidable; in this 
situation, the conflict must be promptly and publicly disclosed. 
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.
    (iii) Independence. Peer reviewers must not have contributed or 
participated in the development of the work product or scientific 
information under review. For peer review of products of higher novelty 
or controversy, a greater degree of independence is necessary to ensure 
credibility of the peer review process. Peer reviewer responsibilities 
should rotate across the available pool of qualified reviewers or among 
the members on a standing peer review panel to prevent a peer reviewer 
from repeatedly reviewing the same scientific information, recognizing 
that, in some cases, repeated service by the same reviewer may be 
needed because of limited availability of specialized expertise.
    (3) Transparency. A transparent process is one that ensures that 
background documents and reports from peer review are publicly 
available, subject to Magnuson-Stevens Act confidentiality 
requirements, and allows the public full and open access to peer review 
panel meetings. The evaluation and review of scientific information by 
the Councils, SSCs or advisory panels must be conducted in accordance 
with meeting procedures at Sec.  600.135. Consistent with that section, 
public notice of peer review panel meetings should be announced in the 
Federal Register with a minimum of 14 days and with an aim of 21 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.
    (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 evaluation and 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, 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. 16 U.S.C. 1852(g)(1)(B).
    (1) SSC scientific advice and recommendations to its Council are 
based on scientific information that the SSC determines to meet the 
guidelines for best scientific information available as described in 
paragraph (a) of this section. SSCs may conduct 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 need to engage in 
debate on technical merits. Debate and evaluation of scientific 
information is the role of the SSC.
    (2) An SSC member may participate in a peer review when such 
participation is beneficial to the peer review due to the expertise and 
institutional memory of that member, or beneficial to the Council's 
advisory body by allowing that member to make a more informed 
evaluation of the scientific information. Participation of an SSC 
member in a peer review should not impair the ability of that member to 
fulfill his or her responsibilities to the SSC.
    (3) If an SSC as a body conducts a peer review established under 
Magnuson-Stevens Act section 302(g)(1)(E) or individual members of an 
SSC participate in such a peer review, the SSC members must meet the 
peer reviewer selection criteria as described in paragraph (b)(2) of 
this section. In addition, the financial disclosure requirements under 
Sec.  600.235, Financial Disclosure for Councils and Council 
committees, apply. When the SSC as a body is conducting a peer review, 
it should strive for consensus and must meet the transparency 
guidelines under 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 consider 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 a 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

[[Page 43089]]

302(g)(1)(E), should be conducted early in the scientific evaluation 
process in order to provide the SSC with reasonable opportunity to 
consider the peer review report and make recommendations to the Council 
as required under Magnuson-Stevens Act section 302(g)(1)(B).
    (5) If an SSC disagrees with the findings or conclusions of a peer 
review, in whole or in part, the SSC must prepare a report outlining 
the areas of disagreement, and the rationale and information used by 
the SSC for making its determination. This report must be made publicly 
available.
    (6) Annual catch limits (ACLs) developed by a Council may not 
exceed its SSC's fishing level recommendations. 16 U.S.C. 1852(h)(6). 
Per the National Standard 1 Guidelines, the SSC fishing level 
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)). The SSC is expected to take scientific 
uncertainty into account when making its ABC recommendation (Sec.  
600.310(f)(4)). The ABC recommendation may be based upon input and 
recommendations from the peer review process. Any such 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 the 
Secretary and the 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. Each SAFE report must be 
scientifically based with appropriate citations of data sources and 
information. Each SAFE report 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 ensure that SAFE 
reports are prepared and updated or supplemented as necessary whenever 
new information is available to inform management decisions such as 
status determination criteria (SDC), 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 Secretary and 
Council for making 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 
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 relevant state and Federal fishery 
management programs. The SAFE report should contain an explanation of 
information gaps and highlight needs for future scientific work. 
Information on bycatch and safety for each fishery should also be 
summarized. 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 scientific 
information when it exists:
    (i) Information on which to base catch specifications and status 
determinations, including the most recent stock assessment documents 
and associated peer review reports, and recommendations and reports 
from the Council's SSC.
    (A) 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)).
    (B) Information 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 (Sec.  
600.310(f)(2)). The best scientific information available to determine 
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
    (C) The best scientific information available in support of 
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 sources of fishing mortality (both landed and 
discarded), including commercial and recreational catch and bycatch in 
other fisheries and a description of data collection and estimation 
methods used to quantify total catch mortality, as required by the 
National Standard 1 Guidelines (Sec.  600.310(i)).
    (iii) Information on bycatch of non-target species for each 
fishery.
    (iv) Information on EFH to be included in accordance with the EFH 
provisions (Sec.  600.815(a)(10)) .
    (v) Pertinent economic, social, community, and ecological 
information for assessing the success and impacts of management 
measures or the achievement of objectives of each FMP.
    (4) Transparency in the fishery management process is enhanced by 
complementing the SAFE report with the documentation of previous 
management actions taken by the Council or Secretary including a 
summary of the previous ACLs, ACTs, and accountability measures (AMs), 
and assessment of management uncertainty.
    (5) 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. Sources of information in the SAFE report 
should be referenced, unless the information is proprietary.
    (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.

[[Page 43090]]

    (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. Scientific information collections 
for stocks managed cooperatively by Federal and State governments 
should be coordinated with the appropriate state jurisdictions, to the 
extent practicable, to ensure harvest information is available for the 
management of stocks that utilize habitats in state and federal managed 
waters. 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 (5) of this section 
apply equally to FMPs and FMP amendments.

[FR Doc. 2013-17422 Filed 7-18-13; 8:45 am]
BILLING CODE 3510-22-P