Magnuson-Stevens Act Provisions; National Standard Guidelines, 71858-71904 [2016-24500]

Download as PDF 71858 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 600 [Docket No. 120416013–6270–03] RIN 0648–BB92 Magnuson-Stevens Act Provisions; National Standard Guidelines National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. AGENCY: ACTION: Final rule. This final action revises the guidelines for National Standards (NS) 1, 3, and 7 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA or The Act) and to the General section of the NS guidelines. This action is necessary to improve and clarify the guidance within the NS guidelines. The purpose of this action is to facilitate compliance with requirements of the MSA to end and prevent overfishing, rebuild overfished stocks, and achieve optimum yield (OY). SUMMARY: DATES: This rule is effective October 18, 2016. 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: http://www.regulations.gov by searching for RIN 0648–BB92. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Stephanie Hunt, 301–427–8563. SUPPLEMENTARY INFORMATION: Lhorne on DSK30JT082PROD with RULES3 Table of Contents I. Overview of Revisions to the NS Guidelines II. Major Components of the Proposed Action III. Major Changes Made in the Final Action IV. Overview of the Major Aspects of the Final Action A. Stocks That Require Conservation and Management B. Multi-Year Approaches to Overfishing Stock Status Determinations C. Acceptable Biological Catch (ABC) Control Rules D. Adequate Progress Determinations for Rebuilding Plans E. Adding Flexibility in Rebuilding Plans V. Response to Comments VI. Changes From Proposed Action (80 FR 2786, January 20, 2015) VII. Reference Cited VIII. Classification VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 I. Overview of Revisions to the NS Guidelines The MSA serves as the chief authority for fisheries management in the U.S. Exclusive Economic Zone (EEZ). The Act sets ten national standards (NS) for fishery conservation and management, and requires that the Secretary of Commerce (the Secretary) establish advisory guidelines based on the NS to assist in the development of fishery management plans. Guidelines for the NS are codified in subpart D of 50 CFR part 600. This final action amends the General section of the NS guidelines and the guidelines for NS1, NS3, and NS7. Since 2007, fisheries management within the U.S. has experienced many changes, in particular the development and implementation of annual catch limits (ACLs) and accountability measures (AMs) under all fishery management plans to end and prevent overfishing. Due to a number of concerns raised during the implementation of ACLs and AMs, NMFS initiated a revision of the NS guidelines in 50 CFR 600.305, 600.310, 600.320, and 600.340 in order to improve the utility of the guidelines for managers and the public. NMFS published an Advance Notice of Public Rulemaking (ANPR) on May 3, 2012, (77 FR 26238, May 3, 2012) to solicit public comments on potential adjustments to the NS guidelines. The comment period on the ANPR was extended once (77 FR 39459, July 3, 2012), and then reopened (77 FR 58086, September 12, 2012), and ended on October 12, 2012. In March 2013, NMFS published a report that summarizes the comments received on the ANPR (http://www.nmfs.noaa.gov/ sfa/laws_policies/national_standards/ ns1_revisions.html). In addition to the ANPR, issues related to the NS guidelines were discussed at several other public forums. NMFS proposed revisions to the General section of the NS guidelines and the guidelines for NS1, NS3, and NS7 on January 20, 2015 (80 FR 2786, January 20, 2015). Further background is provided in the abovereferenced Federal Register documents and is not repeated here. The proposed rule described the objective of the proposed revisions, which is to improve and streamline the NS1 guidelines, address concerns raised during the implementation of ACLs and AMs, and provide flexibility within current statutory limits to address fishery management issues. NMFS solicited public comment on the proposed revisions to the guidelines through June 30, 2015, and during that time made presentations on the PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 proposed revisions to seven of the eight Regional Fisheries Management Councils (Councils) and held one public meeting on March 25, 2015 (Silver Spring, Maryland). NMFS received more than 102,000 comments on all aspects of the proposed revisions. Many of the comment letters were form letters or variations on a form letter. In general, the fishing industry and the Councils supported the majority of the provisions in the proposed action meant to provide flexibility within the current statutory limits but stated that many of the new provisions required additional guidance in the final action. In general, the environmental community opposed the proposed revisions, stating that they would reverse recent successes in U.S. fisheries management and did not address pertinent issues such as ecosystem-based fisheries management (EBFM), forage fish, and climate change. II. Major Components of the Proposed Action Some of the major items covered in the proposed guidelines included the following: (1) Add a recommendation that Councils reassess the objectives of their fisheries on a regular basis; (2) consolidate and clarify guidance on identifying whether stocks require conservation and management; (3) provide additional flexibility in managing data limited stocks; (4) revise the guidance on stock complexes to encourage the use of indicator stocks; (5) describe how aggregate maximum sustainable yield (MSY) estimates can be used; (6) develop a definition for a depleted stock; (7) provide increased stability in fisheries by providing guidance on the use of multi-year overfishing determinations; (8) revise the guidance on optimum yield (OY) to improve clarity and better describe the role of OY under the ACL framework; (9) clarify the guidance on acceptable biological catch (ABC) control rules, describe how ABC control rules can allow for phase-in adjustments to ABC, and allow for carry-over of all or some of an unused portion of the ACL; (10) revise the guidance on AMs to improve clarity; (11) clarify the guidance on establishing ACL and AM mechanisms in FMPs; (12) clarify the guidance on adequate progress in rebuilding and extending rebuilding timelines; and (13) provide flexibility in rebuilding stocks. III. Major Changes Made in the Final Action The approaches proposed under items #1, 3–5, 8, and 10–11 above are retained in this final action. The main substantive change in the final action pertains to the proposed definition for E:\FR\FM\18OCR3.SGM 18OCR3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations depleted stocks (#6). NMFS proposed adding the term ‘‘depleted’’ to the NS1 guidelines to describe those stocks whose biomass has declined as a result of habitat loss and other environmental conditions, as opposed to fishing pressure. However, separating out the impacts of environmental factors from the impacts of fishing on a stock is a difficult task and public comments reflected concern that the proposed definition for depleted stocks was overly restrictive and would not definitively distinguish between stocks primarily impacted by environmental factors and stocks primarily impacted by fishing pressure. Thus, the final action does not include the proposed definition of depleted stocks and instead retains the current requirement that stocks whose biomass has declined below its MSST are considered to be overfished, regardless of the factors (fishing-related or otherwise) responsible for the stock’s decline. A Council may use the term ‘‘depleted’’ to further describe the status of an overfished stock that has been impacted to some extent by environmental factors in addition to (or in the absence of) fishing pressure. In response to public comment, this final action also clarifies text on stocks that require conservation and management (#2), multi-year approaches to overfishing stock status determinations (#7), phase-in and carryover ABC control rules (#9), adequate progress determinations for rebuilding plans (#12), and discontinuing rebuilding plans (#13), and makes minor clarifications to other text. Further explanation of why changes were or were not made is provided in the ‘‘Response to Comments’’ section below. Details on changes made in the codified text are provided in the ‘‘Changes from Proposed Action’’ section. Lhorne on DSK30JT082PROD with RULES3 IV. Overview of the Major Aspects of the Final Action A. Stocks That Require Conservation and Management NMFS received numerous comments on proposed § 600.305(c), which contains new guidance to Councils on determining, pursuant to their obligation under MSA section 302(h)(1), whether stocks require (or, are in need of) conservation and management. The MSA establishes that each Council should prepare an FMP for each fishery under its authority that requires conservation and management. 16 U.S.C. 1801(b)(1). Because not every fishery requires federal management, NMFS believes that consolidated, streamlined guidance on determining VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 which stocks are in need of conservation and management and thus, federal management, will be beneficial to managers. Further background and rationale for this proposed revision to the guidelines was provided on pages 2788–2789 of the proposed rule. See 80 FR 2788–2789, January 20, 2015. Sections V and VI (Responses to Comments and Changes from Proposed Rule) provide a detailed explanation of changes made from the proposed to final action. Here, NMFS highlights a few of those changes. Final § 600.305(c)(1) provides—unchanged from the proposed action—that stocks that are predominately caught in Federal waters and are overfished or subject to overfishing, or likely to become overfished or subject to overfishing, are considered to require conservation and management. 16 U.S.C. 1853(a)(1)(A) (requiring that FMPs contain conservation and management necessary to prevent overfishing and rebuild overfished stocks). However, the final action clarifies that Federal management is not limited to such stocks (i.e., predominantly caught in Federal waters and overfished or subject to overfishing, or likely to become so). To determine if other stocks require conservation and management, the guidelines contain a non-exhaustive list of factors (see § 600.305(c)(1)(i)–(x)) that Councils should consider when determining whether a stock requires conservation and management. The final action adds an explanation at § 600.305(c)(3) that, when considering adding a stock to an FMP, no single factor is dispositive or required. One or more of the factors may provide a basis for determining a stock is in need of conservation and management. When considering removing a stock from an FMP, final § 600.305(c)(4) provides—as proposed—that Councils should consider each of the ten factors. NMFS received many comments on § 600.305(c)(1)(x) in particular. Section 600.305(c)(1)(x) speaks to the consideration of other existing management regimes when determining whether Federal management is necessary. In response to comments, the final action deletes the phrase ‘‘could be or’’ from § 600.305(c)(1)(x), which implied that the mere possibility that other management regimes may exist is an appropriate consideration for determining whether a stock requires conservation and management, which was not the intention behind the proposed revisions. Finally, while nothing in the proposed revisions changed previous guidance on the optional usage of PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 71859 ecosystem component (EC) species, NMFS clarifies in the final action that Councils may still use EC species at their discretion and re-inserts a definition of EC species. However, the definition of EC species in the final action does not include criteria for designation because a Council is free to designate any stock, that is determined not in need of conservation of management, as an EC species at their discretion. Criteria for the designation of EC species is no longer necessary because the factors listed in § 600.305(c)(1)(i)–(x) of this final action clarify which stocks are in need of conservation and management and therefore cannot be designated as EC species. Because the designation of EC species may be done to accomplish several different goals, NMFS does not believe it is appropriate to prescribe specific guidance on the requirements for managing and monitoring EC species. B. Multi-Year Approaches to Overfishing Stock Status Determinations Another major aspect of the revised NS1 guidelines is the inclusion of guidance on a method for determining the overfishing status of a stock based on a multi-year approach. The MSA defines overfishing as a ‘‘rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the MSY on a continuing basis.’’ 16 U.S.C. 1802(34). Thresholds for deciding whether a stock is subject to overfishing can be determined either by comparing rates of fishing mortality (F) to the maximum fishing mortality threshold (MFMT) or catch to the overfishing limit (OFL). See § 600.310(e)(2)(i)(B)–(D). Pursuant to MSA section 304(e)(1), NMFS must report annually to Congress and the eight Councils on the status of all Federally-managed fish stocks. 16 U.S.C. 1854(e)(1). Overfishing status determinations are typically made based on the most recent year for which there is information. When utilizing the Fbased approach, the estimate of F for the most recent year for which there is data is often more uncertain than the estimates of F in prior years (NRC 1998). In addition, the extent to which the effort or catch exceeded the threshold for overfishing has not traditionally been considered when determining whether the stock was subject to overfishing. Small amounts of excess effort or catch in a single year may not jeopardize a stocks’ ability to produce MSY over the long term, thus an overfishing stock status determination based on that single year’s reference point may not be the most appropriate characterization of stock status. To E:\FR\FM\18OCR3.SGM 18OCR3 71860 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 address this issue, the proposed revisions introduced a multi-year approach (that may not exceed 3 years) to allow Councils to examine whether the extent to which a stock has surpassed its overfishing threshold actually jeopardizes the stock’s ability to produce MSY on a continuing basis. See § 600.310(e)(2)(ii)(A)(3) of the proposed action. Using a multi-year approach to determine overfishing stock status is best used when managers believe the most recent year’s data point may not reflect the overall status of the stock. Further background on the proposed multi-year overfishing stock status determination provision was provided on pages 2791–2792 of the proposed rule. See 80 FR 2791–2792, January 20, 2015. Public comments reflected confusion regarding proper use of this provision. Thus, the final action clarifies that, under certain circumstances, a Council may determine that it is appropriate to use a multi-year approach for overfishing status determination criteria (SDC). Such circumstances may include, but are not limited to, situations where there is high uncertainty in the estimate of F in the most recent year, cases where stock abundance fluctuations are high and assessments are not timely enough to forecast such changes, or other circumstances where the most recent catch or F data does not reflect the overall status of the stock. The final action clarifies that a Council must identify, within its FMP or FMP amendment, the circumstances (such as those listed above) in which a multiyear approach to overfishing SDC will be used. The final action also emphasizes that a multi-year approach is to be used only for retrospective stock status determinations, i.e., determinations that NMFS makes to fulfill statutory reporting requirements. 16 U.S.C. 1854(e)(1). The provision may not be used to establish annual catch limits. For example, if the catch of a stock in a single year was well below its ACL, a Council may not justify setting the next year’s catch level above the OFL based on the multi-year approach. NMFS provides additional explanation and clarification on this issue in the responses to comments below. C. Acceptable Biological Catch (ABC) Control Rules An ABC control rule accounts for scientific uncertainty in the OFL and for the Council’s risk policy when establishing an ABC. The proposed guidelines would allow Councils to develop an ABC control rule that would phase-in changes to the ABC over a period of time not to exceed 3 years, so VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 long as overfishing is prevented. See § 600.310(f)(2)(ii)(A) of the proposed action. NMFS also proposed allowing Councils to carry-over some of the unused portion of the ACL from one year to increase the ABC for the next year, based on increased stock abundance resulting from the fishery harvesting less than the full ACL. The proposed NS1 guidelines clarified that Councils establishing phase-in and/or carry-over provisions in their ABC control rules would need to specify when each provision can and cannot be used and how each provision prevents overfishing, based on a comprehensive analysis. See § 600.310(f)(2)(ii). Further background and rationale on the proposed revisions to establish phase-in and carry-over ABC control rules was provided on page 2794 of the proposed rule. See 80 FR 2794, January 20, 2015. NMFS received a variety of public comments expressing concern that phase-in and carry-over provisions would increase the risk of overfishing. The final action emphasizes that Councils should conduct a comprehensive analysis of every ABC control rule—which would include those with phase-in and/or carry-over provisions—that shows how the control rule prevents overfishing. See § 600.310(f)(2)(i) and (ii) of final action. The final action also clarifies that, for stocks that are overfished and/or rebuilding, Councils should evaluate the appropriateness of carry-over provisions for such stocks. Finally, the final action contains language recommending that Councils should consider the reason for ACL underages when deciding whether to allow carry-over. D. Adequate Progress Determinations for Rebuilding Plans MSA section 304(e)(7) requires the Secretary to review rebuilding plans to ensure that adequate progress toward ending overfishing and rebuilding affected fish stocks is being made. 16 U.S.C. 1854(e)(7). NMFS received several comments in response to the ANPR requesting additional guidance on adequate progress determinations and thus, NMFS proposed guidance to clarify that the review of rebuilding progress could include the review of recent stock assessments, comparisons of catches to the ACL, or other appropriate performance measures. NMFS also proposed that the Secretary may find that adequate progress in rebuilding is not being made if: (1) Frebuild or the ACL associated with Frebuild are being exceeded and AMs are not effective at correcting for the overages; or (2) when the rebuilding expectations of the stock or stock complex have PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 significantly changed due to new and unexpected information about the status of the stock. See § 600.310(f)(3)(iv). Public comment raised concern that these criteria do not consider biomass trends, which would allow adequate progress determinations to be made for stocks where, despite maintaining catch at or below Frebuild, the biomass is failing to increase. Having considered public comment, NMFS has decided to keep the proposed criteria for adequate progress determinations in the final action. As mentioned in the proposed action, the 2013 National Research Council (NRC) report on rebuilding highlighted that the primary objective of a rebuilding plan should be to maintain fishing mortality at or below Frebuild. By doing so, managers can avoid issues with updating timelines that are based on biomass milestones, which are subject to uncertainty (see § 600.310(j)(3)(i)(A)) and changing environmental conditions that are outside the control of fishery managers. NMFS emphasizes in the final action that, despite the uncertainty associated with biomass trends, there is a strong relationship between F-rates and biomass trends. Stocks that consistently experience fishing mortality above Frebuild generally experience declining or little increases in biomass, while stocks that consistently experience fishing mortality equal to or below Frebuild generally experience increasing biomass. Cases where stock biomass is not increasing despite maintaining catch levels at or below Frebuild levels would be unexpected. Such cases would likely trigger the second criteria for determining that adequate progress is not being made (i.e., new and unexpected information has significantly changed the rebuilding expectations of the stock). Thus, NMFS is confident that the criteria for adequate progress determinations (see § 600.310(j)(3)(iv) of the final action), address and cover situations where a rebuilding plan fails to properly constrain fishing mortality rates as well as situations where a rebuilding stock’s biomass is failing to increase. NMFS believes that further guidance on this issue is not necessary to include within the NS1 guidelines. E. Adding Flexibility in Rebuilding Plans Calculating Tmax The NS1 guidelines provide guidance on determining the minimum (Tmin), maximum (Tmax), and target (Ttarget) time to rebuild a stock to a level that supports MSY (Bmsy). In the past, Councils have had difficulties E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations calculating Tmax based on the original data-intensive method (i.e., Tmin + one generation time) that requires data on life history, natural mortality, age at maturity, fecundity, and maximum age of the stock (Restrepo, et al. 1998). In order to allow Councils to make Tmax calculations despite variable information and data availability amongst stocks, NMFS proposed specifying three methods to calculate Tmax within the guidelines: (1) Tmin plus one mean generation time (status quo); (2) the amount of time the stock is expected to take to rebuild to its Bmsy if fished at 75 percent of the MFMT; or (3) Tmin multiplied by two. Further background and rationale on the proposed revisions to the guidance on the calculation of Tmax was provided on pages 2795–2796 of the proposed rule. See 80 FR 2795–2796, January 20, 2015. NMFS received many comments on the proposed additional methods to calculate Tmax, and some commenters stated that if Councils use the method that yields the longest Tmax estimate, the resulting rebuilding plan would not be effective nor meet the statutory requirement that rebuilding plans rebuild a stock in as short a time as possible. 16 U.S.C. 1854(e)(4)(A)(i). After taking into consideration public comment, NMFS has decided to keep the additional Tmax calculation methods, but has revised the final action to provide additional guidance on how to determine which method to use. First, NMFS added language to the final action to emphasize that, where Tmin exceeds 10 years, Tmax establishes a maximum time for rebuilding that is linked to the biology of the stock. As such, NMFS also highlighted that decisions regarding which Tmax calculation method to use should be driven by the best scientific information available with consideration of relevant biological data and the scientific uncertainty of that data (rather than the outcome of the calculation). Councils must also work with their Scientific and Statistical Committees (SSCs) (or agency scientists or peer review processes in the case of Secretarial actions) to determine which Tmax calculation method to use. Finally, NMFS also provided examples of cases where, given data availability and the life history characteristics of a stock, it may be appropriate to use one of the alternative methods instead of the status quo calculation method (Tmin plus one mean generation time). Furthermore, while Councils may use Tmax as a measureable upper bound on the duration of rebuilding time periods, Councils must set a target time for rebuilding (Ttarget) that is as short as VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 possible, taking into consideration certain statutory factors. See § 600.310(j)(3)(i). Thus, Councils must demonstrate that their adopted Ttarget is the shortest time possible for rebuilding and Council action addressing an overfished fishery should be based on Ttarget. Discontinuing Rebuilding Plans Due to scientific uncertainty in the biomass estimates of fish stocks, occasionally a stock is identified as overfished, but is later determined to have never been overfished. In the past, NMFS’ approach has been that, once a rebuilding plan has been implemented, the rebuilding plan cannot be discontinued until the stock has been rebuilt to Bmsy, regardless of new information about the status of the stock when it was originally declared overfished. To address this issue, NMFS proposed to allow a rebuilding plan to be discontinued if both of the following criteria are met: (1) The Secretary retrospectively determines the stock was not overfished in the year that the overfished determination was made; and (2) the biomass of the stock is not currently below the MSST. See § 600.310(j)(5) of the proposed action. Further background and rationale on the proposed revisions to the guidance on the discontinuation of rebuilding plans was provided on pages 2796–2797 of the proposed rule. See 80 FR 2796–2797, January 20, 2015. Based on public comments, this final action adds that the stock must be shown to have never been overfished in subsequent years following the original overfished determination, including the current year. This revision effectively covers the two criteria, thus the final action deletes the proposed second criteria. See § 600.310(j)(5) of the final action. Should new information demonstrate that the stock was overfished in a subsequent year, a rebuilding plan is still necessary and rebuilding timeframes should be adjusted accordingly. It should also be noted that discontinuation of a rebuilding plan that meets the criteria listed within the final action is not mandatory or automatic; a Council may choose to retain a rebuilding plan for conservation and management purposes. V. Response to Comments Management Objectives of FMPs Comment 1: NMFS received several comments regarding the proposed provision to regularly re-assess FMP management objectives. Some comments requested clarity regarding PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 71861 the flexibility of the term ‘‘regular’’— whether it meant reassessments could be completed on an as-needed basis, or whether the Council needs to specify a numerical period (e.g., every 5 or 7 years). Some commenters suggested that opportunities for reassessments already exist within standard Council processes (e.g., creating FMP amendments; biennial reviews) and that the regularity of objective reassessments should be at the Council’s discretion based on workload and resource constraints. Commenters also requested that the guidelines specify ‘‘triggers’’ for FMP reassessments, especially to encourage reassessment of outdated objectives. Commenters also supported evaluations of whether management is achieving FMP management objectives. Another commenter requested that the provision be expanded to include a periodic review of fishery monitoring systems that provide data for implementing FMPs in addition to FMP management objectives. Finally, with regard to the result of the proposed reassessments, one commenter requested that the guidelines outline a process for instances when a reassessment finds the FMP management objectives are no longer valid. Response: NMFS believes that a prescribed time period for reassessments is not appropriate and provided rationale for this decision in the proposed action preamble. Nothing raised in the comments has caused NMFS to revise this rationale. NMFS chose not to prescribe a set time period for ‘‘a regular basis’’ in order to provide the Councils with the flexibility to determine this time frame themselves. While no time frame is prescribed, Councils should provide notice to the public of their expected schedule for review. Given the scope and complexity of such a task, NMFS does not expect Councils to reassess their FMP objectives every few years; rather some longer time frame which staggers the review of each FMP may be more appropriate. See 80 FR 2787, January 20, 2015. If, following reassessment, a Council finds that an FMP’s management objectives are no longer meeting the needs of the fishery and do not properly address relevant social, economic, and ecological factors, NMFS encourages Councils to adjust their management objectives. As with the issue of time periods for review, NMFS believes that it is important to preserve Council flexibility in determining how best to make these adjustments and therefore declines to establish a single process to address issues raised in the reassessments. NMFS urges Councils to E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71862 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations evaluate whether management measures are meeting FMP objectives, especially within the context of evaluating the changing needs of the fishery. Finally, while NMFS agrees that the fishery monitoring systems and data collection programs set up to deliver the necessary data for FMP implementation are crucial to successfully meeting FMP management objectives, a review of these systems and programs does not need to be included in the reassessment of an FMP’s management objectives. Comment 2: One commenter suggested that NMFS replace ‘‘objectives of the fishery’’ in § 600.305(b)(2) with ‘‘FMP’s management objectives’’ to make the language consistent with the rest of the guidelines. Response: NMFS agrees, and has made the suggested edit in the final action. Comment 3: Commenters requested more guidance on what Councils should consider when creating and assessing FMP management objectives. Specifically, commenters requested that the guidelines include additional guidance on how management objectives should tie into objectives related to the MSA; its national standards; and the ecological, economic, and social factors of OY specifications. Commenters also requested guidance on how conflicting objectives should be resolved in favor of the conservation mandate in NS1. While one commenter requested the guidelines encourage reassessments to respond to changes in ecosystem components (e.g., protected species), other commenters requested that the requirements for reassessments be kept at a minimum to preserve resources and flexibility. Response: NMFS believes that the proposed guidelines set appropriate parameters for the reassessment of FMP management objectives while leaving the exact considerations for management objectives up to the discretion of the Councils. The MSA itself ‘‘guides’’ (or rather, drives) the development of FMPs, as it sets forth conservation and management mandates and requirements, including the national standards, with which FMPs must be consistent. With regard to ecosystems, NMFS believes that the Council has discretion and flexibility to efficiently respond to changes in ecosystems during their reassessments of FMP management objectives. Thus, NMFS does not believe any further guidance is needed within the NS1 guidelines. Comment 4: One commenter suggested adding language to § 600.310(e)(3)(iii)(B)(1) of the proposed VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 action on the enjoyment and participation gained from recreational fishing when some stocks are managed for abundance rather than maximum harvest. The commenter also suggested adding language to § 600.310(e)(3)(iii)(B)(2) of the proposed action on necessary shifts in mixed use allocations to achieve maximum economic and public use benefits. Response: NMFS does not believe that § 600.310(e)(3)(iii)(B)(1) needs to be revised as suggested. OY is derived from MSY, which is the largest long-term average catch or yield that can be taken from a stock or stock complex, thus ‘‘abundance’’ of a stock is a consideration addressed through the description of OY within the guidelines. See § 600.310(e)(1)(i), (e)(3)(i)(A) (defining MSY and OY). NMFS agrees that allocation of fishery resources is one of the issues that may need to be considered when re-assessing an FMP’s management objectives. NMFS explicitly highlighted allocation as a consideration for reassessments of management objectives in the proposed action. See 80 FR 2787, January 20, 2015. However, NMFS disagrees that further allocation examples need to be added to the economic and social factors a Council can consider when setting OY and their management objectives. The NS1 guidelines set forth examples of different considerations for each factor, and NMFS believes the examples provide sufficient guidance. Stocks That Require Conservation and Management Comment 5: NMFS received numerous comments on the newly proposed section on stocks in need of conservation and management. See § 600.305(c). Many commenters perceived the revisions as an impermissible narrowing of the obligations imposed by the MSA. Some commenters urged that, to the extent that NMFS is offering guidance on whether stocks are in need of conservation and management, that any factors considered should be solely based on the MSA’s definition of ‘‘conservation and management’’ at 16 U.S.C. 1802(5) and that it was inappropriate to bring in other statutory provisions such as National Standards 3 and 7 as part of that analysis. In contrast, others believed that by prescribing a list of factors to consider when determining that stocks are in need of conservation and management that NMFS has inappropriately curtailed the discretion afforded to the Councils to make that determination. Commenters suggested alternative approaches for Councils to take to PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 determine whether conservation and management is necessary. Commenters also suggest that in addition to answering whether a stock is in need of conservation and management, they should also consider why that stock may be in need of conservation and management and how that stock should be best managed (if at all). In particular, one commenter requested that NMFS provide additional information on the deletion of two provisions from the NS7 guidelines published in 1998 (§ 600.340(b)(1); 600.340(b)(2)(vii); (see 63 FR 24234, May 1, 1998)) from the proposed action. The commenter suggested the provisions should be incorporated into § 600.305(c)(1) to allow Councils to balance the costs and benefits of management and consider whether management serves some useful purpose. Finally, some commenters noted that Councils have the ability to implement protective measures for species that are not necessarily included as stocks in an FMP. Response: An FMP must be prepared for a fishery that requires conservation and management. 16 U.S.C. 1852(h)(1). In proposing § 600.305(c), NMFS did not intend to narrow this requirement to merely those fisheries that are overfished or subject to overfishing. Instead, as explained in the proposed action, NMFS sought to clarify that, while not every stock requires federal management, stocks that are overfished or subject to overfishing (or likely to become so) and that are predominately caught in federal waters must be included in an FMP. In addition, a Council may find that other stocks within its jurisdiction require conservation and management as well. Beyond stocks that are overfished or subject to overfishing (or likely to become so), NMFS provides a list of non-exhaustive factors within the guidelines that Councils should consider when determining whether a stock requires conservation and management. As MSA section 1852(h)(1) is broadly worded, the proposed regulatory guidance was intended to assist Councils in making determinations under this section. To make sure that NMFS’ intent is clear, the final action includes clarifying edits to emphasize the agency’s approach with regard to overfishing/overfished stocks and other stocks. As discussed further in response to comment 7, the factors are drawn in the first instance from the statutory definition of ‘‘conservation and management.’’ 16 U.S.C. 1802(5). The proposed action cited to that definition, E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations and the final action adds the citation for the definition. Although the definition of ‘‘conservation and management’’ speaks generally to actions that are required to rebuild fisheries, designed to assure a supply of food and recreational benefits, and meet other goals, that definition and section 1852(h)(1) do not provide clear direction on when a stock is in need of conservation and management. Thus, NMFS believes that it is appropriate to consider the statute as a whole, including the National Standards and relevant definitions and provisions, to provide constructive guidance to the Councils on section 1852(h)(1). See FR 2786, 2788–278980, January 20, 2015 (discussing National Standard 3 and 7 guidelines and relevant MSA provisions in preamble to proposed action). The factors incorporate the general principle from the 1998 NS7 guidelines at § 600.340(b)(1) that not every fishery needs Federal management. See 63 FR 24234, May 1, 1998. NMFS does not agree with adding a factor on balancing costs associated with an FMP against benefits: This was a criteria under § 600.340(b)(2)(vii) of the 1998 guidelines for deciding whether a fishery ‘‘needs management through regulations implementing an FMP.’’ Section 600.305(c) of this action provides guidance on the threshold determination of whether to add a stock to an FMP or remove a stock from an FMP, based on whether a stock requires conservation and management. The factors do not speak to what regulatory measures, if any, may or may not be needed for the stock. Costs and benefits should be evaluated when specific regulatory measures are being considered. For clarification and streamlining purposes, § 600.340(b)(2)(vii) was deleted from the proposed and final revisions to the NS7 guidelines, as § 600.340(c) addresses analysis of costs and benefits. NMFS disagrees that the factors curtail Council discretion. The list of factors is non-exhaustive, and Councils may take into account any additional considerations that may be relevant to the particular stock. See responses to comments 7 and 8 for further discussion of the factors. NMFS realizes that the proposed text may have implied that a Council must analyze all ten factors before adding a stock to an FMP. Thus, NMFS has revised final § 600.305(c)(3) to state that one or more of the factors may provide the basis for adding a stock to an FMP. Response to comment 8 provides a more detailed explanation of other clarifications made in final § 600.305(c)(3) and (4) regarding use of VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 the factors when adding a stock to or removing a stock from an FMP. NMFS agrees, particularly with respect to stocks that may require conservation and management to address biological or ecological concerns, that the cause of those concerns would be a useful consideration for the Councils. The final guidance does not preclude such considerations, and in fact provides a framework for a Council to consider these very relevant questions. Furthermore, based on factor 3, which considers whether an FMP can improve or maintain the condition of the stocks, NMFS has added language within § 600.305(c)(3)–(4) that emphasizes that if the amount and/or type of catch that occurs in Federal waters is a significant contributing factor to the stock’s status, such information would weigh heavily in favor of inclusion of the stock within an FMP. See § 600.305(c)(3)–(4). Finally, NMFS agrees that Councils may implement discretionary measures for species, even if they do not ‘‘require conservation and management’’ pursuant to section 302(h)(1). Section 303(b)(12) of the MSA provides that Councils may include management measures in the plan to conserve target and non-target species and habitats, considering the variety of ecological factors affecting fishery populations. 16 U.S.C. 1853(b)(12). Additionally, in implementing measures to comply with National Standard 9’s requirement that an FMP’s conservation and management measures minimize bycatch and bycatch mortality to the extent practicable, Councils can take measures that conserve and protect bycatch species even if those bycatch species are not, themselves, included as stocks in a fishery under an FMP. Id. 1851(a)(9). Comment 6: Some commenters expressed concern with the proposed text at § 600.305(c)(1) regarding stocks that are ‘‘predominately caught’’ in Federal waters. Commenters stated that the limiting ‘‘predominately’’ language is not part of the MSA and would improperly exclude stocks from management. Response: The ‘‘predominately caught’’ language in § 600.305(c)(1) does not exclude any stocks from management. As explained in the response to comment 5, MSA section 302(h)(1) and other related MSA provisions do not provide clear direction on when to include stocks in an FMP. NMFS proposed the text regarding overfished/overfishing stocks predominately caught in Federal waters to provide clear guidance on when stocks must be included in an FMP. MSA section 1853(a)(1)(A), among other PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 71863 provisions, supports this approach, as it requires that FMPs contain conservation and management measures ‘‘necessary and appropriate’’ to prevent overfishing and rebuild overfished stocks. 16 U.S.C. 1853(a)(1)(A). If a stock is not predominately (i.e. mainly, or for the most part) caught in Federal waters, a Council may lack the authority, and thus ability, to adopt measures that would prevent overfishing and rebuild overfished stocks. It would not make sense, in that case, to require a Council to automatically include the stock in an FMP. ‘‘Conservation and management’’ and ‘‘fishery’’ are defined in terms of practical use or benefit and the ability to manage, which supports the inclusion of predominately in 600.305(c). ‘‘Conservation and management’’ refers to regulations, measures, etc., which are required [i.e., considered essential; indispensable] to rebuild, restore, or maintain, and which are useful [i.e., having a beneficial use; being of practical use] in rebuilding, restoring, or maintaining any fishery resource and the marine environment. 16 U.S.C. 1802(5). ‘‘Fishery’’ refers to ‘‘one or more stocks of fish which can be treated as a unit for purposes of conservation and management . . .’’ Id. § 1802(13) (emphasis added). ‘‘Stock of fish,’’ which is referenced in the definition of ‘‘fishery,’’ means a species, subspecies, geographical grouping, or other category of fish capable of management as a unit. Id. § 1802(42). As noted above, NMFS does not believe it is appropriate to require inclusion of overfishing/overfished stocks in an FMP, if a Council lacks the authority or ability to adopt measures that will prevent or end overfishing or rebuild the stocks. NMFS proposed, and is retaining in this final action, use of the phrase ‘‘predominately caught in Federal waters’’ to address this concern. A similar phrase—fishing ‘‘engaged in predominately within the exclusive economic zone and beyond that zone’’— is one of two factors that allow NMFS to regulate a fishery within the boundaries of a State. Id. § 1856(b)(1)(A). While section 1856(b) is about preemption, it provides further support for the ‘‘predominately caught’’ approach under § 600.305(c)(1). Section 306 recognizes the efficacy of federal management when a fishery is engaged in ‘‘predominately’’ in federal waters. Likewise, § 600.305(c) includes ‘‘predominately’’ based on efficacy considerations. NMFS notes that, even if a stock is not required to be included in an FMP (i.e., stock is not overfishing/overfished and predominately caught in Federal E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71864 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations waters), a Council may still determine that a stock requires conservation and management based on consideration of one or more of the factors in paragraphs § 600.305(c)(1)(i) through (x). See response to comment 8 for further explanation of use of the factors when adding a stock to an FMP. Comment 7: NMFS received numerous comments regarding the specific factors included in paragraphs § 600.305(c)(1)(i) through (x) of the proposed action. One commenter argued that factor (i)—whether the species plays an important role in the ecosystem—should be modified to focus on whether the species’ role in the ecosystem is potentially affected by fishing. Additionally, many commenters believed that factors iv–vi, which took into consideration economic or social implications of management decisions were inappropriate because they improperly brought those considerations into a matter that should be solely focused on the conservation needs of a stock based on the best available science. Factor iv—the stock is a target of a fishery—was particularly polarizing with some commenters expressing that it should be the primary factor considered by Councils while others were urging that it be removed from the list as irrelevant. NMFS also received mixed reactions to factor (x)— the extent to which the fishery could be or is already adequately managed. Some called for factor (x) to be removed and, in particular, the phrase ‘‘industry selfregulation’’ to be removed because, for example, no other management regime has proven as effective as Federal management under the MSA and there is no description of what ‘‘adequate management’’ under industry selfregulation would entail. Other commenters stressed the importance of factor (x). Response: NMFS disagrees that the first nine factors require revision. Potential effects on a species from a fishery is addressed in factor (ii) and, beyond the factors, a Council may take into account any additional considerations that may be relevant to the particular stock. Whether a fishery targets a stock (factor (iv)) is a relevant consideration: If a fishery is targeting a stock in federal waters, it is likely that the stock will be vulnerable to the impacts of fishing mortality and that there may be conflicts over the allocation of that stock. With regard to factors (iv) through (vi), the definition of ‘‘conservation and management’’ indicates that whether a stock requires measures to rebuild, restore, or maintain any fishery resource and the marine environment is as important to consider VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 as whether measures are needed to ensure a multiplicity of options available with respect to future uses of these resources. 16 U.S.C.1802(5). Many of the factors that commenters objected to are intended to prompt consideration of the necessity and appropriateness of Federal management. 16 U.S.C. 1853(a)(1)(A). NMFS believes that the factors, as written, allow significant discretion for the Councils to evaluate the specific facts presented by a wide variety of stocks and fisheries to determine the necessity and utility of federal management. With respect to factor (x), NMFS continues to believe that MSA section 302(h)(1) does not require preparation of FMPs for all fisheries in the EEZ. Among other things, the MSA recognizes the authority of a State to regulate fisheries within its boundaries and authorizes a State under certain circumstances to regulate its vessels outside state boundaries. Furthermore, the MSA mandates that the conservation and management measures for stocks under an FMP, where practicable, minimize costs and avoid unnecessary duplication. 16 U.S.C. 1851(a)(7) (National Standard 7) and 1856(a)(3) (state jurisdiction); see also 80 FR 2786, 2788–2789, January 20, 2015 (discussing these and other provisions in preamble to proposed action). Thus, if a Council determines (and the Secretary concurs) that a particular industry self-regulation structure constitutes an adequate management structure consistent with the national standards, other provisions of the Magnuson-Stevens Act, and other applicable law, an industry selfregulation structure that minimizes costs and avoids unnecessary duplication of management measures is a relevant consideration under § 600.305(c). Therefore, NMFS retains factor (x) in this final action. However, in response to public comment, NMFS is revising factor (x) to delete the words ‘‘could be or’’ from ‘‘[t]he extent to which the fishery is already adequately managed . . .’’ NMFS agrees with commenters that the mere possibility of other management regimes should not be considered as a relevant factor when determining whether federal management is required. Comment 8: Commenters requested further guidance in applying the factors under § 600.305(c)(1). Some commenters requested that the final guidelines make clear which factors weighed in favor of inclusion, but should not be used to justify exclusion. Other commenters suggested that NMFS provide greater guidance on how to weigh the factors relative to each other, for example ‘‘tiering’’ the factors based PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 on their relative specificity and significance. Response: Section 600.305(c)(2) of the proposed action explained that, when considering adding a new stock to an FMP or keeping a stock within an FMP, Councils should prepare an analysis of the factors to assist in determining which stocks require conservation and management. NMFS has modified this text in the final action to clarify the process for adding and removing stocks from an FMP (final § 600.305(c)(3) and (4), respectively). In § 600.305(c)(3), NMFS explains that, when considering adding a stock to an FMP, no single factor is dispositive or required. An analysis of all ten factors is not required to add a stock to an FMP. One or more of the factors, and any additional considerations that may be relevant to the particular stock, may provide the basis for determining that a stock requires conservation and management. For clarity, NMFS revised the phrase ‘‘keeping an existing stock within an FMP’’ (proposed § 600.305(c)(2)) to ‘‘removing a stock from, or continuing to include a stock in, an FMP’’ (final § 600.305(c)(4)). The final action explains that, when considering such action, Councils should analyze all ten factors. Factors (i) through (ix) are all factors that counsel for inclusion of stocks, and factor (x) counsels against inclusion. See Section VI of this preamble for more details on changes to § 600.305(c). A Council’s analysis should clearly demonstrate why, on balance, the factors considered (which may include factors beyond the list included in the final action if relevant to the particular situation) support the ultimate conclusion to remove a stock from an FMP. Given the wide range of potential scenarios that Councils may face when evaluating the conservation and management needs of various fisheries, NMFS does not believe that it would be advisable to offer more prescriptive guidance on how to balance the factors against each other. In some cases a particular factor may have more significance than in another case, depending on the circumstances of the fishery. Comment 9: Some commenters raised concerns regarding application of the factors listed in § 600.305(c)(1) of the proposed action within the context of data limited situations. One commenter recommended that NMFS include guidance regarding how to address the factors in a data limited situation. Another commenter suggested that NMFS allow Councils to categorize all data poor stocks as EC species and therefore exempt from ACLs. E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Response: The MSA does not distinguish between requirements for stocks that have robust data available and those for which data is lacking— accordingly, NMFS and the Councils cannot exempt stocks from ACLs and other mandatory requirements solely due to the availability of data for those stocks. As discussed in response to comment 5, all stocks that require conservation and management must be included in an FMP. This is true regardless of the data available for those stocks. NMFS notes that National Standard 2 requires that all conservation and management measures must be based on the best scientific information available. 16 U.S.C. 1851(a)(2). Recognizing the challenges posed by data limited situations, NMFS has adopted several measures (see §§ 600.310(e)(2)(ii); 600.310(h)(2) of the final action) that are intended to provide additional flexibility in applying the NS1 guidelines in data limited situations. Comment 10: Some commenters sought additional guidance on how to deal with management of stocks that either straddle multiple areas of Council jurisdiction or shift from one jurisdiction to another, for example due to the impacts of climate change. Response: The proposed guideline revisions moved language discussing management of stocks that straddle multiple Council jurisdictions from the National Standard 1 guidelines to the General section, but did not propose any substantive changes to that provision. See § 600.305(c)(6). This provision is based on MSA section 304(f), which provides that for fisheries that occur in the geographical area of authority of more than one Council, the Secretary may either designate a lead Council to prepare an FMP or require joint preparation of such an FMP. 16 U.S.C. 1854(f). The guideline provision is designed to complement this statutory requirement by explaining that the primary FMP should contain reference points for stocks. In addition to this guidance, the newly revised guidance for reassessing an FMP’s management objectives can also potentially provide an avenue for a Council to address a shift in occurrence of a stock, or the previous designation of a lead FMP. See § 600.305(b)(2). NMFS does not believe that any further revisions are necessary at this time. Comment 11: Several commenters sought clarification on the impact of the proposed provisions on stocks in need of conservation and management and the concept of EC species. NMFS received several comments on the revised discussions of EC species, in VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 particular expressing concern about the proposed deletion of the 2009 NS1 guideline definition of EC species and non-target species. Commenters sought additional guidance on the proper criteria for designating an EC species and the management and monitoring requirements for EC species. Response: NMFS introduced the concept of EC species in the 2009 revisions to the NS1 guidelines. In those guidelines, NMFS explained that the ‘‘in the fishery’’ and ‘‘EC species’’ classifications address the fact that while FMPs typically include target species (and some non-target species that require conservation and management), other FMPs include hundreds of species which may or may not require conservation and management in an effort to advance ecosystem management in the fishery. See 74 FR 3179, January 16, 2009. By adopting the ‘‘EC species’’ classification, NMFS sought to encourage Councils to continue to pursue ecosystem approaches to management. Even when a species does not require ‘‘conservation and management,’’ a Council may include it as an EC species in an FMP. Unlike stocks in the fishery, EC species designation does not trigger all of the mandatory provisions of the MagnusonStevens Act, such as FMP requirements under section 303(a). In this final action, NMFS is providing further guidance on the question of what stocks require conservation and management. Nothing in these proposed provisions changes previous guidance on the optional usage of EC species. To make clear this intent, NMFS has made minor modifications in this final action to more closely follow the language discussing EC species in the 2009 action. Additionally, NMFS has re-inserted a definition of EC species. See § 600.305(d)(13) of final action. This definition, however, does not rely on the previously established criteria for designation. The criteria included in the 2009 guidelines were intended to prevent stocks that were in need of conservation and management from being re-designated as EC species. See, e.g., response to comment 17, 74 FR 3186, January 16, 2009. There is no need to retain the 2009 criteria, because the final action provides factors for determining whether a stock is in need of conservation and management, and includes clarifying language that makes clear that stocks in need of conservation and management cannot be designated as EC species. In response to numerous comments, NMFS has reinserted a definition for ‘‘non-target stocks,’’ with minor modifications from the definition in the 2009 guidelines, to ensure PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 71865 consistency with the remainder of the NS1 guidelines. See § 600.305(d)(12) of final action. Because the designation of EC species is discretionary and may be done to accomplish several different goals, NMFS is not providing further specific guidance on EC species. Determining whether the EC species designation is appropriate requires a case-specific look at stocks or stock complexes in light of § 600.305(c) as well as the broader mandates and requirements of the MSA. NMFS has worked closely with Councils who have decided to pursue EC species designation and will continue to provide support and guidance going forward. Data Limited Stocks Comment 12: While many commenters supported the clarification that, when it is not possible to specify MSY or MSY proxies for a data limited stock, a Council may use alternative types of SDCs, other commenters requested additional technical guidance on using alternative types of SDCs. See § 600.310(e)(2)(ii). Some commenters also provided suggestions to improve the provision, including: acknowledging the limitations of alternative types of SDCs (particularly with regard to addressing stocks with ‘‘model uncertainty’’); addressing circumstances when reference points such as MSY and OY cannot be determined; requiring an analysis of the regional applicability of different data limited methodologies; acknowledging that the alternative SDCs listed in the guidelines are not the only alternatives available; and including a definition for ‘‘data limited stocks’’ within the guidelines. Some comments stated that § 600.310(h) of the proposed action improperly exempted Councils from setting annual ACLs for data limited stocks and requested the guidelines clarify that all reference points required by the MSA are required to be established for data limited stocks that require conservation and management. Response: The list of examples of alternative SDCs within § 600.310(e)(2)(ii) is not exclusive, and Councils may explore other alternate types of SDCs. Any alternative approach adopted by a Council, in consultation with their SSC, must be based on the best scientific information available and identify overfishing and overfished thresholds. See § 600.310(b)(2)(v) (describing SSC role in providing scientific advice to the Council). Section 600.310(e)(2)(ii) provides that, when specifying SDCs, a Council must provide an analysis of how the SDCs were chosen, how they relate to the E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71866 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations reproductive potential of the stock within the fishery, and how the alternate type of SDCs will promote the sustainability of the stock on a longterm basis. Thus, NMFS believes that the guidelines provide sufficient guidance on the use of alternate types of SDCs for data limited stocks while retaining adequate flexibility to allow Councils to determine the most appropriate alternate type of SDCs on a case-by-case basis. With regard to the comments proposing improvements to alternative SDC text, NMFS notes that specification of MSY and OY are statutory requirements (16 U.S.C. 1853 (a)(3)), and the intent of § 600.310(e)(2)(ii) is to help address circumstances where data are not available to specify SDCs based on MSY or MSY based proxies. Because stock assessment models are used to set reference points within the ACL framework, model uncertainty is best addressed when accounting for scientific uncertainty within the ABC reference point. While an analysis of the regional applicability of different data limited methodologies may be useful to a Council, it may not always be necessary or informative and NMFS does not believe such an analysis needs to be prescribed as part of the NS1 guidelines. With regard to defining ‘‘data limited stocks,’’ the characteristics of such stocks are so wide-ranging that a definition would not be meaningful and could lead to additional confusion when applying the NS1 guidelines. Finally, as discussed in the preamble to the proposed action, § 600.310(h)(2) does not provide an exemption from any statutory requirements, including the requirement to establish ACLs. See 80 FR 2790, January 20, 2015. NMFS discussed data limited stocks under § 600.310(h)(2) in order to ensure consistency with the revisions made under § 600.310(e)(2)(ii). Comment 13: One commenter requested that the guidelines be edited to ensure that alternate types of SDCs are appropriately referenced throughout the guidelines. For example, proposed § 600.310(e)(2)(ii)(B) states that MSST or reasonable proxy must be expressed in terms of spawning biomass or other measures of reproductive potential. The commenter suggested that language should be added to the description of SDC to determine overfished status (§ 600.310(e)(2)(ii)(B)) to clarify how Councils should accommodate alternative types of SDCs. Response: NMFS does not agree that revisions are needed. A Council must provide an analysis of how its SDCs relate to the reproductive potential of the stock. If an alternate type of SDC is VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 adopted, the alternate SDC is considered a reasonable proxy to determine overfished status within the context of § 600.310(e)(2)(ii)(B) and will be expressed in terms of the stock’s reproductive potential. Stock Complexes & Indicator Stocks Comment 14: Some commenters opposed the proposed changes to the guidelines that encourage the use of indicator stocks within stock complexes, and recommended removing the changes. Commenters expressed concern that, if species with disparate vulnerabilities are grouped together within a stock complex, the risk of overfishing on weaker stocks would increase while others advised NMFS against using overly precautionary indicator stocks that may prevent OY from being achieved. Other commenters requested additional technical guidance and recommended that Councils consider the current status of each stock as well as the costs and benefits of stock complex-based management when establishing stock complexes. NMFS also received numerous suggestions to strengthen the language on stock complexes and indicator stocks, including explicitly requiring the use of indicator stocks within stock complexes; using ‘‘must’’ instead of ‘‘should’’ in § 600.310(d)(2)(C) in order to require that Councils, in consultation with their SSC, choose the most vulnerable stock within a complex as the indicator stock; and requiring that all Councils take additional precaution when establishing stock complexes where high levels of scientific uncertainty exist. Response: NMFS believes the guidelines are clear that, if an indicator stock is used in a stock complex, it should be representative of the typical vulnerability of the stocks within the complex. In cases where stocks within a stock complex have a wide range of vulnerabilities, the guidelines are also clear that, either the stocks should be reorganized into different stock complexes that have similar vulnerabilities or the indicator stock should represent the more vulnerable stocks within the complex. See § 600.310(d)(2)(ii)(C) of final action. Thus, NMFS believes the use of indicator stocks in a stock complex will not increase the risk of overfishing other stocks within the complex and, in cases where the status of the stocks within a complex is generally unknown, the use of an indicator will likely reduce the probability that stocks within the complex experience overfishing. NMFS believes the use of SDCs and ACLs for indicator stocks and/or stock complexes PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 will ensure the dual requirements of NS1 are met: preventing overfishing while achieving, on a continuing basis, OY. See § 600.310(e)(2)(ii); 600.310(f)(4). NMFS also believes that the guidelines give sufficient guidance on using stock complexes and indicator stocks, and give Councils the flexibility to weigh the costs and benefits of utilizing these management tools. While the MSA does not address management of stock complexes, NMFS believes the use of stock complexes and indicator stocks in accordance with the guidelines can serve a useful role in managing data poor stocks and/or stocks that cannot be targeted independently of one another. Finally, NMFS recommends the use of indicator stocks in order to reduce the likelihood of overfishing in cases of high scientific uncertainty among stocks within a complex (see 80 FR 2790, January 20, 2015) and also recommends Councils use more conservative management measures in cases where it is not possible to use the most vulnerable stock within a complex as an indicator. Given that the MSA is silent on the issue of stock complex management, NMFS does not believe that the use of the term ‘‘must’’ rather than ‘‘should’’ is justified. Comment 15: NMFS received comments expressing concern that relying on indicator stocks can lead to a false sense of security and recommending that ACLs are set for each individual stock within a stock complex instead. Others expressed concern that monitoring available qualitative and quantitative information for each stock within a complex may not be sufficient to monitor each stock’s overfishing status and recommended that Councils consider each stock’s vulnerability in addition to considering whether each stock is being sustainably managed. NMFS also received recommendations that the guidelines require SSCs to review monitoring data on each stock within a complex and that the guidelines encourage Bmsy values for stocks within each stock complex to be calculated to reflect its productivity within the current ecological context. Response: NMFS disagrees that stockby-stock management is preferable to stock complex management in all cases. Stocks with insufficient data to measure a stock’s status relative to SDCs or stocks that cannot be targeted independently of one another may be best managed as a stock complex in order to base management on informed reference points. NMFS does agree that monitoring the status of each stock within a complex based on the best scientific information available is important. However, a stock within a E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations stock complex may not have sufficient information available to determine its status relative to SDCs, and thus, in these cases, the Councils should monitor the stock to determine whether it is being sustainably managed and to look for any indications that the stock might be subject to overfishing. The guidelines are clear that a Council must consider the vulnerability of each stock within a stock complex when establishing or reorganizing stock complexes. See § 600.310(d)(2)(i). Furthermore, each SSC shall provide its Council ongoing scientific advice for fishery management decisions, including reports on stock status and health. 16 U.S.C. 1852(g)(1)(B). Thus, the SSC must give scientific advice on the ongoing management of stocks within a stock complex and NMFS does not believe that the NS1 guidelines need to specifically address this issue. Finally, NMFS agrees that current ecological conditions and ecosystem factors need to be taken into account when specifying MSY for both stocks and stock complexes and believes the current language within the definition of MSY (‘‘prevailing ecological, environmental conditions’’) adequately reflects this need. See § 600.310(e)(1)(i)(A). Comment 16: Several commenters expressed concern regarding the term ‘‘where practicable’’ within § 600.310(d)(2)(i). Commenters stated that the modified definition of stock complexes is not necessary or justified and the term ‘‘where practicable’’ conflicts with the intention of the modified definition while weakening the standard for stock complexes. Some commenters also expressed concern that the modified definition could allow Councils to ‘‘hide’’ stocks that are undergoing overfishing within a complex or avoid managing ‘‘choke’’ stocks in a multi-species fishery. Therefore, several commenters recommended removing the ‘‘where practicable’’ language from the provision. Other commenters recommended that, if a Council uses stock complexes, they must complete a comprehensive analysis showing how overfishing will be prevented. Response: As addressed in response to comment 78, the term practicable (i.e., reasonably capable of being accomplished; feasible) is used appropriately within § 600.310(d)(2)(i). The MSA does not mandate a particular method for establishing stock complexes, and thus, NMFS has provided guidance on this issue, based on the agency’s expertise. The term ‘‘where practicable’’ within this provision does not conflict with or VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 weaken the intended use of stock complexes. The guidelines are clear that, where practicable, stock complexes should consist of stocks with similar geographic distribution, life history characteristics, and vulnerabilities to fishing pressure and that the most vulnerable stock should be used as the indicator stock within a complex in order to fulfill the requirements of the MSA. As emphasized in comment 15, it is important that Councils monitor the status of all individual stocks within a complex to ensure they are sustainably managed and to look for indications of overfishing. While there may be insufficient data to ascertain whether some stocks within a complex are subject to overfishing on an individual basis, if a stock within a complex is found to be subject to overfishing, further overfishing on the stock must be prevented. Furthermore, such a finding that overfishing is occurring does not require prior specification of SDC, but can be based on the best scientific information available. If NMFS determines that a stock within a complex appears to be subject to overfishing, the agency notifies the appropriate Council. Finally, as described in § 600.310(d)(2)(i), a Council should consider the vulnerabilities of individual stocks and provide a ‘‘full and explicit description of the proportional composition of each stock in the stock complex’’ when establishing a stock complex within a FMP. Thus, the guidelines are clear that the establishment of stock complexes within FMPs should be adequately documented based on a thorough analysis of stock vulnerabilities. Aggregate MSY Comment 17: Commenters requested additional clarification on the intended use of aggregate MSY estimates, in particular requesting further clarification on the relationship between the aggregate MSY approach and the ACL framework and rebuilding targets. Several commenters requested that NMFS provide additional technical guidance on the use of aggregate MSY to specify OY, and, in the absence of such guidance, recommended that NMFS remove the option to use aggregate MSY from the guidelines. Commenters were concerned that without such guidance, aggregate MSY could be used in a way that would increase the risk that individual stocks would be subject to overfishing. In addition, one commenter suggested that the guidelines be revised to clarify that the aggregate MSY estimates could be used as a substitute for stock (or stock complex)-specific MSY estimates. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 71867 Further explanation was also sought with respect to the intended meaning of the word ‘‘common’’ in proposed § 600.310(e)(1)(iv). Finally, two comments pointed out that using aggregate MSY to track-long term environmental changes may be difficult as it can be difficult to distinguish between long-term and temporary environmental changes. Response: Aggregate MSY is an optional tool that Councils can use at their discretion to specify fishery-level OYs and further facilitate the Councils’ use of EBFM. Aggregate MSY estimates are not an appropriate substitute for stock-specific MSY estimates that are necessary to inform the development of the required stock-specific reference points in the ACL framework. Fundamentally, aggregate MSY is an additional limit on the management system that encourages more conservative EBFM-based measures. Even when aggregate level MSY is estimated, stock-specific MSY must still be used to inform single stock management. Other annual reference points (within the ACL framework) must also be specified in order to prevent overfishing from occurring in single stocks. In light of the above, and because aggregate MSY is merely an optional tool that can be used in addition to stock-specific reference points, the final guidelines retain the aggregate MSY provision. The term ‘‘common’’ in § 600.310(e)(1)(iv) was intended to provide further context as to how aggregate MSY can be estimated using multi-species, aggregated, and ecosystem modeling. Upon further consideration, the phrase ‘‘common biomass (energy) flow’’ is not considered a widely used phrase within relevant scientific fields, and thus the term ‘‘common’’ is not included within the final action to avoid confusion. However, the final action retains the phrase ‘‘biomass (energy) flow’’ to clarify that the models used for estimating aggregate MSY should account for the flow of energy through the aggregate group of stocks under consideration. A Council’s SSC should assist a Council using an aggregate MSY to use the best scientific information available with regards to biomass (energy) flows. Finally, aggregate MSY is not intended to be used to track long-term environmental or ecological conditions. Instead, aggregate MSY is intended to ensure that fishery management measures are reflecting how environmental variability within the ecosystem is impacting fisheries as a whole. E:\FR\FM\18OCR3.SGM 18OCR3 71868 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Definition for ‘‘Depleted’’ Stocks Comment 18: While NMFS received some comments supporting the proposed definition for ‘‘depleted’’ stocks, the majority of comments received opposed the proposed definition and/or requested additional technical guidance on its use. Commenters expressed a wide-array of concerns, including that: The proposed definition is overly restrictive, especially with regard to long-lived species; and the definition would not adequately distinguish between stocks that are depleted due to environmental factors and stocks that are overfished due to fishing pressure. NMFS also received many suggestions to improve the proposed definition. Response: In light of public comment, NMFS agrees that further consideration is needed regarding how to distinguish between stocks whose current poor status is due to fishing pressure and stocks that have been negatively affected by environmental factors. Thus, NMFS has deleted the definition for ‘‘depleted’’ stocks in the final action. The final action retains the existing requirements within the guidelines that all Councils define stocks whose biomass has declined below its MSST as overfished. Even though the guidelines do not include ‘‘depleted stocks,’’ a Council may use the term to further describe the status of an overfished stock that has been impacted to some extent by environmental factors in addition to (or in the absence of) fishing pressure. Lhorne on DSK30JT082PROD with RULES3 MSST Comment 19: NMFS received a number of comments expressing concern about two revisions connected to the terms overfished and MSST (maximum stock size threshold). The proposed action revised the definition of overfished to state that a stock or stock complex is considered ‘overfished’ when its biomass has declined below MSST. See § 600.310(e)(2)(i)(E). MSST was in turn defined as the level of biomass below which the capacity of the stock or stock complex to produce MSY on a continuing basis has been jeopardized. See § 600.310(e)(2)(i)(F). In addition, the proposed guidelines also included revised language regarding the specification of MSST, which stated that MSST should be specified between 1⁄2 Bmsy and Bmsy. To inform this decision, the proposed guidelines provided a list of potential considerations, including the life history of the stock, the natural fluctuations in biomass associated with fishing at MFMT over the long-term, the time needed to rebuild to Bmsy and VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 associated social and/or economic impacts on the fishery, the requirements of internationally-managed stocks, and other considerations. See § 600.310(e)(ii)(B). Some commenters objected to the proposed changes to the definitions of overfished and MSST, arguing that NMFS improperly replaced the preexisting, statutory-based definition with a new, less supportable definition. Commenters expressed concern with linking a determination that a stock is overfished with a Council-specified MSST because, according to commenters, MSSTs are not always properly specified or updated. Other commenters believed that connecting MSST to ‘‘overfished’’ was too restrictive and that a preferable definition would connect the ability of a stock to return to its Bmsy level in the absence of a rebuilding plan (rather than linking to the ability of the stock to produce MSY on a continuing basis). Other commenters took issue with the proposed change to the provision regarding the specification of MSST. Some commenters felt that the language from the 2009 action set a clearer standard and that the proposed language made the MSST specification depend on criteria that are not easily quantifiable. Especially concerning for some were the ‘‘social and/or economic’’ considerations. Commenters argued that the proposed revisions increase the likelihood that stocks declared overfished will not be able to rebuild within ten years. Others felt that the factors in the proposed revisions provided needed additional flexibility to the Councils should they wish to revisit MSST specifications. Response: As NMFS explained in the preamble to the proposed action, the changes to the definitions of ‘‘overfished’’ and ‘‘MSST’’ are minor changes intended to improve clarity and reduce redundancy with no resulting changes in how the terms overfished and MSST are used. See 80 FR 2791, January 20, 2015. While definitions for both overfished and MSST were provided within the 1998 guidelines, the 2009 guidelines established that a stock or stock complex is considered overfished when its biomass has declined below a level that jeopardizes the capacity of the stock or stock complex to produce MSY on a continuing basis. The 2009 action then defined MSST as the level of biomass below which the stock or stock complex is considered to be overfished. Read together, these provisions relied on MSST as the determining threshold of whether a stock was overfished. MSST was, and continues to be in this final PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 action, the threshold by which an overfished determination is made. The revisions eliminate ambiguity by referring directly to MSST in the definition of overfished. This final action is consistent with the MSA as it incorporates the statutory definition of ‘‘overfished’’ (i.e., level of biomass that ‘‘jeopardizes the capacity of a fishery to produce [MSY] on a continuing basis’’) into the definition of MSST. See 16 U.S.C. 1802(34) and § 600.310(e)(2)(i)(A) (clarifying that MSA ‘‘overfished’’ definition relates to biomass). NMFS does not believe the suggestion to link the definition of MSST to the ability of a stock to return to its Bmsy level in the absence of a rebuilding plan would be consistent with the statutory definition of ‘‘overfished.’’ NMFS disagrees that the revisions to the MSST specification provision would prevent stocks from being classified as overfished. The 2009 guidelines provided two options for specifying MSST: one-half the MSY stock size, or the minimum stock size at which the stock could rebuild to the MSY level within 10 years if the stock was fished at MFMT. The guidelines stated that MSST should be set equal to the greater of the two options. See § 600.310(e)(2)(ii)(B) (2009). NMFS revised the provision to set a clearer standard for MSST specifications, allow for a broader range of considerations, and allow Councils increased flexibility to re-visit and update MSST specifications, based on the changing conditions of a fishery. By providing that MSST should be between 1⁄2 Bmsy and Bmsy, this final action affords Councils the ability to adopt an MSST consistent with overfished thresholds used by some regional fishery management organizations for stocks that are internationally-and Federallymanaged. The revisions also allow Councils to retain MSST definitions in existing FMPs that were based on the 1998 NS1 Technical Guidance, but were not reflected within the 2009 guidelines (Restrepo et al., 1998). NMFS believes that MSST definitions based on the 1998 Technical Guidance continue to be sound from a scientific perspective and consistent with the MSA and approaches under the NS1 guidelines. Finally, the increased flexibility within the proposed changes to MSST specifications increases the probability that MSST thresholds are utilized for data limited stocks. NMFS also disagrees that the MSST specification provision will decrease the likelihood that overfished stocks will be able to rebuild within 10 years. Although the provision no longer includes a reference to 10 years in the E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations formulaic calculation of MSST, this does not alter the MSA’s requirement that a rebuilding period shall ‘‘not exceed 10 years,’’ subject to certain exceptions. 16 U.S.C. 1854(e)(4)(A)(ii). Furthermore, based on public comment, NMFS has removed the phrase ‘‘social and/or economic impacts on the fishery,’’ from the list of factors that could inform MSST. MSST is a biological reference point and is based on the level of biomass below which the capacity of the stock to produce MSY on a continuing basis is jeopardized. Thus, it is not appropriate to consider social and economic impacts when determining MSST. Finally, NMFS disagrees that reliance upon quantitative data invariably yield more accurate or precautionary MSST values. Councils should consult with their SSCs to ensure that the information used to specify MSST, whether quantitative or qualitative, is the best scientific information available. Comment 20: Some commenters asserted that the definition of MSST is inconsistent in the guidelines. As an example, when explaining the relationship of SDCs to environmental and habitat change, the guidelines assume that there are cases where environmental changes cause a stock or stock complex to fall below its MSST without affecting its long-term reproductive potential. See § 600.310(e)(2)(iii)(A). One commenter stated that this section is inconsistent with the revised definition of MSST, which refers to a level below which the capacity of the stock to reproduce MSY has been jeopardized. Response: NMFS disagrees that there is any inconsistency in § 600.310(e)(2)(iii)(A). That section is unchanged in this action, and as explained in the response to comment 19, the definition of MSST fundamentally has not changed. MSST means the level of biomass below which the capacity of the stock or stock complex to produce MSY on a continuing basis has been jeopardized. Thus, the focus is on producing MSY in the long-term. The purpose of § 600.310(e)(2)(iii)(A) is to address the reality that there may be short-term, environmental changes, but recognize that such changes do not normally jeopardize the ability of a stock to produce MSY on a continuing basis. For ˜ example, El Nino increases mortalities and reduces growth within certain ˜ stocks, but after the short El Nino period ends, stocks should regain their health and ability to produce MSY on a continuing basis. VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 Multi-Year Overfishing Stock Status Determinations Comment 21: NMFS received many comments on the multi-year approach to determining the overfishing status of a stock or stock complex. Many commenters expressed concern that the method may delay action and allow an overfishing trend to go unaddressed. Comments also requested the final action include technical guidance on how to apply this method. Other commenters asked whether the provision allows stock status determinations to be completed every 3 years, and whether using a multi-year approach for overfishing status determinations could impact reference points for future catch levels. Other commenters suggested: emphasizing the multi-year approach as an optional tool; endorsing the use of the catch to OFL method over the F to MFMT method; replacing the proposal with more support for the annual catch specification process and adequate AMs; allowing the SSC to determine an appropriate multi-year time period; and encouraging other overfishing determination methods that reduce lag time. Response: The existing NS1 guidelines provide for two methods for specifying SDCs to determine overfishing status: F rate exceeds MFMT or catch exceeds OFL. See § 600.310(e)(2)(ii)(A)(1)-(2). As discussed in the proposed action preamble (see 80 FR 2791, January 20, 2015), the multi-year approach in § 600.310(e)(2)(ii)(A)(3) is an optional method for specifying overfishing SDCs that is intended to allow consideration of ‘‘the extent to which F exceeded the MFMT or catch exceeded the OFL.’’ Small amounts of excess effort or catch in a single year may not jeopardize a stock’s ability to produce MSY over the long term, and an overfishing stock status determination based on that single year’s data point may not be the most appropriate characterization of stock status. To further clarify how to apply the multi-year approach, the final action clarifies the relationship between subparagraphs § 600.310(e)(2)(ii)(A)(1)– (3) and includes further detail on the circumstances in which the multi-year approach should be used. Section 600.310(e)(2)(ii)(A)(3) of the final action explains that, while an FMP should specify which of the methods established in § 600.310(e)(2)(ii)(A)(1) and (2) will be used to determine overfishing status, a Council may utilize a multi-year approach to determine overfishing status in certain circumstances. If a Council should PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 71869 develop a multi-year approach to determine overfishing status, the Council should identify in its FMP or FMP amendment, the circumstances when a multi-year approach is appropriate and will be used. Such circumstances may include situations where there is high uncertainty in the estimate of F in the most recent year, cases where stock abundance fluctuations are high and assessments are not timely enough to forecast such changes, or other circumstances where the most recent catch or F data does not reflect the overall status of the stock. See § 600.310(e)(2)(ii)(A)(3) of the final action. Regardless of which SDC specification method is used, the MSA requires that NMFS report annually to Congress on the status of stocks. 16 U.S.C. 1854(e)(1). Thus, a multi-year approach to overfishing stock status determinations would not allow Councils to ignore available information and wait for additional years’ information before evaluating stock status, nor would it allow an overfishing trend to go unaddressed or impact the timeliness of a Council and/or agency response to overfishing. NMFS acknowledges that wording in proposed § 600.310(e)(2)(ii)(A)(3) may have caused confusion regarding whether this provision may impact reference points for future catch levels. Thus, NMFS revised § 600.310(e)(2)(ii)(A)(3) to emphasize that a Council may only use a multi-year approach to ‘‘retrospectively determine overfishing status.’’ Stock status determinations are relevant to NMFS’ annual reporting requirement under 16 U.S.C. 1854(e)(1), mentioned above. The multi-year approach may not be used in establishing ACLs and ABCs, because annual reference points must be designed to prevent overfishing and cannot exceed the OFL in any year. For example, if the catch of a stock in a single year was well below its ACL, a Council may not anticipate using a multi-year approach to overfishing status determinations in order to justify allowing next year’s catch levels to be set above the OFL. To further clarify this point, NMFS has added language within § 600.310(e)(2)(ii)(A)(3) explaining that the multi-year approach to determine overfishing status may not be used to specify future annual catch limits at levels that do not prevent overfishing. In addition, NMFS has reinserted the term ‘‘annual basis’’ within the definition of MFMT. See § 600.310(e)(2)(i)(C) of the final action. NMFS notes that, if the catch of a stock in a single year was well below its ACL, a Council could consider E:\FR\FM\18OCR3.SGM 18OCR3 71870 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 using a carry-over ABC control rule. See comment 34 for further discussion. In this final action, NMFS adds in § 600.310(e)(2)(ii)(A)(3) that: ‘‘A multiyear approach must compare fishing mortality rate to MFMT or catch to OFL.’’ In that same subparagraph, NMFS has also deleted reference to a comprehensive analysis to determine whether a multi-year approach will jeopardize the capacity of the fishery to produce MSY on a continuing basis. As the multi-year approach may only be applied to retrospective stock status determinations, the proposed comprehensive analysis needed to use a multi-year approach is not necessary. NMFS disagrees that one method for specifying SDCs to determine overfishing status is invariably superior to another. Councils should select a method using the best scientific information available. NMFS agrees that robust annual catch specification processes and accountability measures can reduce the likelihood of overfishing. However, there are circumstances where NMFS believes a multi-year approach is a useful tool to protect a stock while providing stability to the fishery. In addition, NMFS believes the proposed action preamble (see 80 FR 2792, January 20, 2015) provides sufficient rationale for choosing 3 years as a maximum time period for multi-year approaches to overfishing status determinations. Finally, the existing guidelines recommend Councils take action to allow SDCs to be ‘‘quickly updated’’ and reduce lag time in § 600.310(e)(2)(ii). Comment 22: Several commenters asked how phase-in provisions will interact with the multi-year overfishing stock status determinations. Response: As detailed in comment 21, a multi-year approach to determining a stock’s overfishing status cannot be used to influence future annual catch reference points, such as ABCs, ACLs, etc. Thus, a multi-year approach to determining a stock’s overfishing status would not influence a Council setting an ABC based on a phase-in ABC control rule. For instance, a Council may not anticipate the use of a multiyear approach to overfishing status determinations to rationalize a phase-in ABC control rule designed to allow overfishing in some years and underages in others. OY & Catch Accounting Comment 23: While several commenters supported the addition of a paragraph clarifying the relationship between OY and the ACL framework, see § 600.310(f)(4)(iv) of the proposed and final action, some believed the VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 proposed language could be clarified and strengthened. One comment stated that the OY concept is redundant when management is based on the ACL framework. Others stated that additional guidance is needed in order to address OY factors within the ACL-setting process. One comment reflected confusion regarding whether ACLs can be set above the Fmsy in order to achieve a long-term average OY. Commenters also requested that the guidelines define the ACL in relation to OY and encourage the use of ABC to generate OY values. Response: NMFS disagrees that managing under an ACL framework renders the OY concept redundant. National Standard 1 requires that conservation and management measures prevent overfishing ‘‘while achieving, on a continuing basis, the optimum yield from each fishery.’’ 16 U.S.C. 1851(a)(1). When the MSA was amended to introduce ACLs, this OY requirement remained unchanged. NMFS believes that guidance in § 600.310(f)(4)(iv) on addressing OY factors within the ACL framework is sufficient. As described in that section, ACLs (or ACTs if used) can be reduced from the ABC based upon the OY-based ecological, economic, and/or social (EES) considerations (as described in § 600.310(e)(3)(iii)(B)) in addition to reductions accounting for management uncertainty. Furthermore, EES trade-offs could also be evaluated when determining the risk policy for an ABC control rule. Thus, the ACL framework can support achieving OY. ACLs and other annual reference points are annual limits and cannot be defined in terms of OY, which is a longterm average. While the ACL framework supports achieving OY, OY (as well as annualized OY values) and the ACL framework are two separate concepts which cannot be defined in terms of one another. Thus, an ACL may not be set to exceed the stock’s ABC/OFL reference points in order to achieve OY and correspondingly, annual catch reference points such as ABC cannot be used to specify OY. Comment 24: One commenter stated that the second and sixth sentences within proposed § 600.310(f)(4)(iv) conflict and suggested a revision to the second sentence to clarify the relationship between the need for the ABC to prevent overfishing while also taking into account the ABC control rule’s risk policy. Response: NMFS disagrees that the second and sixth sentences within proposed § 600.310(f)(4)(iv) directly conflict, however, NMFS has made the PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 suggested clarifying revision in this final action. Comment 25: Some commenters opposed the concept of annualized OY values and stated that having both annual and long-term average OY values is confusing. Some commenters requested clarification on whether annualized OY values can exceed MSY in order to achieve long-term OYs and how annualized OYs can address tradeoffs associated with mixed stock fisheries. Other commenters recommended the use of a control rule to ensure that relevant OY factors and management uncertainty are being considered when using the ACL or ACT as an annualized OY. Response: Annualized OY values are an optional tool for managers to use if it benefits the conservation and management needs of a stock, stock complex, or fishery, including as an example, a mixed stock fishery. A stock, stock complex, and/or fishery thus can have both an OY and an annualized OY value. MSY is a long term average with a corresponding annual value: The OFL. While an annualized OY could be higher than the MSY if stock biomass is high, it cannot exceed the OFL. NMFS also notes that, while ACLs (or ACTs) can be conceptually compared to annualized OY values, they have different definitions and cannot be automatically equated to each other (see response to comment 23). Finally, the 1998 NS1 guidelines permitted the use of an OY control rule (see 63 FR 24232, May 1, 1998), and the current NS1 guidelines in the final action do not exclude the possibility of using an OY control rule. However, if an OY control rule is used, the annual catch of a stock must still be constrained through the application of the ACL framework. Comment 26: Two commenters suggested that, in addition to specifying OY at the stock, stock complex, or fishery level, managers should also be able to specify OY at the ‘‘FMP level.’’ Response: NMFS does not believe that the proposed revision is appropriate or needed. OY is supposed to be specified for the ‘‘fishery.’’ 16 U.S.C. 1851(a)(1) and 1853(a)(3). In addition, the MSA defines the term ‘‘fishery’’ broadly, thus providing flexibility to the Councils in how they describe fisheries in their FMPs. Comment 27: Commenters requested additional guidance on EES factors, especially the social and ecological effects of management actions. One commenter stated that it is inconceivable to imagine how social and economic factors could lead to a reduction from MSY. Other commenters recommended that the guidance clarify E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations that if OY is set very close to MSY, the Secretary may presume that the Council failed to adequately consider OY factors. Commenters also recommended that the guidelines be updated to include additional examples of ecosystem, climate change, protected species, and forage fish considerations within § 600.310(e)(3)(iii)(B). One commenter suggested nesting the list of potential EES factors under § 600.310(e)(3)(iii)(A) instead of (B). Other commenters suggested legislative action to allow OY to be the result of either reductions or additions from MSY based on EES factors and opposed the use of the term ‘‘trade-offs’’ when referring to EES factors. Response: NMFS received extensive public comment on the use of EES factors during the development of the 2009 guidelines and thus, because NMFS did not propose any substantive changes to the guidance on EES factors in the proposed action, NMFS continues to believe that the NS1 guidelines set forth examples that provide sufficient guidance on using EES factors. The guidelines include examples of factors that clearly relate to ecosystems, climate change, and forage fish, as well as social and economic factors that may lead to a reduction in MSY. NMFS disagrees that it is ‘‘inconceivable’’ for OY to be reduced from MSY based on social and economic factors. For example, OY could be lowered from MSY to match a limited market demand or to provide more stability in annual catches within a fishery over the long-term. While a Council must address each factor (ecological, economic, and social), the exact method that a Council uses to consider EES factors and the amount the OY is reduced from the MSY is at the Council’s discretion. With regard to OY and MSY, NMFS disagrees that setting OY close to MSY means that OY factors were not adequately considered. If estimates of MFMT and current biomass are known with a high level of certainty, if management controls can accurately limit catch, and if no reductions are necessary for EES factors, it is possible to set an OY very close to MSY. See § 600.310(e)(3)(iv). NMFS is keeping text at § 600.310(e)(3)(iii)(B)(1)–(3) under subparagraph (B), because subparagraph (B) clarifies the process for assessing and specifying OY based on EES factors. In order for the EES factors to be used to increase OY from MSY, a legislative change would be needed, as OY is defined based on MSY ‘‘as reduced by any relevant economic, social, or ecological factor.’’ 16 U.S.C. 1802 (33)(B). Finally, as stated in § 600.305(b)(1), trade-offs among EES VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 factors are an expected component of fishery management objectives. Comment 28: One commenter stated that the OY concept does not appear to consider subsistence uses for U.S. fisheries. Response: NMFS disagrees. Subsistence fishing is explicitly mentioned in the list of potential social factors to be considered when specifying OY. See § 600.310(e)(3)(iii)(B)(1). Comment 29: Commenters expressed concern that the guidelines provide too much room for interpretation of what might constitute an acceptable qualitative description of OY and requested additional technical guidance, as well as increased data collection efforts to increase the availability of quantitative data. Other commenters recommended restoring language that recommends OY should be considered quantitatively when possible and adding language recommending the use of proxies when quantitative, stockspecific information on EES factors is not available. Response: As discussed in the proposed action, NMFS believes one impediment to Councils addressing EES factors when specifying OY is the perception that the Councils must quantify their analysis of these factors. See 80 FR 2792, January 20, 2015. Thus, NMFS clarified in the proposed revisions to the guidelines that a Council may provide a qualitative description of OY. NMFS clearly indicated that qualitatively describing OY is only acceptable when it is not possible to specify OY quantitatively. See § 600.310(e)(3)(iv)(A). NMFS believes that the guidelines provide sufficient guidance on what constitutes an acceptable qualitative description of OY. Section 600.310(e)(3)(iii) requires that an FMP assess and specify OY, and that the assessment include, among other things, an explanation of how the OY specification will produce the greatest benefits to the nation and prevent overfishing, consistent with the MSA and taking into consideration the EES factors relevant to the particular stock, stock complex, or fishery. Councils may specify OY based on MSY proxy values as provided under § 600.310(e)(3)(iv)(B)), and NMFS believes that when insufficient information is available to consider stock-specific EES factors, proxy values may be used if they are considered the best scientific information available. Finally, NMFS agrees that more quantitative data would improve OY specifications. See e.g., 74 FR 3199, January 16, 2009 (addressing similar comments regarding data collection in PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 71871 response to comment 80 of 2009 NS1 guidelines). Comment 30: NMFS received several comments on the revisions to § 600.310(e)(3)(iii) that clarify how Councils account for their OY specifications within their FMPs. Comments included recommendations to revise the guidelines to reflect that specification of OY is an MSA requirement, to add language to require the identification of all relevant EES factors considered in setting OY, and to articulate the influence of the factors on setting OY within FMPs. Another commenter expressed concern that the proposed changes would require Councils to ‘‘document’’ as opposed to ‘‘summarize’’ (as prescribed within the MSA) OY specifications within FMPs, creating a regulatory burden that may not be appropriate if the technical documentation spans many pages. The commenter suggested the guidelines be revised to allow documentation either in the FMP itself or within other documents such as environmental assessments or regulatory impact reviews. Another commenter recommended that the language be revised to acknowledge changing circumstances of not just targeted fish stocks, but other components of the ecosystem (e.g., protected species) as well. Response: In accordance with MSA section 303(a)(3), all FMPs must contain an assessment and specification of OY and summaries of the information utilized in making the specification. However, the MSA does not prescribe what types of information or factors should be taken into consideration. NMFS agrees that the proposed language may be interpreted as an additional requirement to provide a thorough technical documentation of OY specifications within an FMP. Thus, in the final action, NMFS has deleted references to documentation while retaining the requirement that OY specifications and assessments are adequately summarized within FMPs. NMFS believes that the section is worded broadly enough to encompass consideration of changes to other components of the ecosystem, such as protected species, in addition to targeted stocks. Comment 31: NMFS received several comments regarding the definition of OY, including: Requests for clarification on the meaning of term ‘‘near Bmsy’’ within the definition of OY and whether or not the term ‘‘near’’ implies maintaining the stock above MSST; and a request that the production of bait from our fishery resources be included within the definition of OY. Another E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71872 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations commenter recommended removing the definition of OY entirely. Response: Achieving OY on a continuing basis is required under National Standard 1, thus, a definition of OY within the NS1 guidelines is appropriate and helpful. One of the characteristics used to describe OY in the guidelines is ‘‘maintains the longterm average biomass near or above Bmsy.’’ See § 600.310(e)(3)(i)(B). The term ‘‘near’’ is used to emphasize, that while the biomass of a stock, stock complex, or fishery may be above or below the desired long-term average in any given year, a Council should rely on its SSC’s advice to determine the level at which a stock’s biomass is sufficiently ‘‘near’’ Bmsy to ensure the desired long-term average biomass can be achieved. With regards to whether the term ‘‘near’’ Bmsy implies maintaining a stock above MSST, NMFS notes that OY and MSST are not directly comparable. OY is a long term desired amount of yield (catch) from the fishery that corresponds to a desired level of long-term average biomass of a stock. MSST is a stock abundance reference point. If a stock’s biomass is below its MSST, a stock is determined to be overfished and a rebuilding plan must be initiated to rebuild the stock from below its MSST to its Bmsy. In contrast, as stated above, the biomass of a stock may be above or below the desired longterm average in any given year, as long as the Council relies on its SSC’s advice on whether the stock’s biomass is sufficiently ‘‘near’’ Bmsy. Additionally, NMFS believes that the definition of OY given within the guidelines is sufficiently broad to cover the production of bait and other considerations. Comment 32: Some commenters supported the deletion and replacement of text on accounting for catch against OY (previously at § 600.310(e)(3)(v)(C)) with the addition of text on accounting for all sources of mortality (where practicable) in the SDC section (§ 600.310(e)(2)(ii)(C)). Other commenters stated that moving the text created inconsistent guidance and, because OY is defined in the MSA as an ‘‘amount of fish,’’ the only reasonable interpretation of the statute is to specify OY based on catch. Others requested additional guidance on catch accounting in general. Another commenter believed the change indicates that bycatch does not need to be measured or counted against OY, which the commenter characterized as the ‘‘the total amount of catch permitted in a fishery.’’ Other commenters believed that all sources of mortality must be accounted for when setting SDCs and thus, the proposed VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 ‘‘where practicable’’ language should be removed and recommended changing ‘‘should’’ to ‘‘must’’ within § 600.310(e)(2)(ii)(C). One commenter did not believe that mortality resulting from scientific research should be included. Others recommended that the Councils must consider catch accounting when determining the status of the stock, setting catch levels, and determining OY. Response: Section 600.310(e)(3)(v)(C) of the 2009 guidelines stated that all catch must be counted against OY, including that resulting from bycatch, scientific research, and all fishing activities. NMFS proposed deleting this text and inserting text on accounting for all sources of mortality (where practicable) in § 600.310(e)(2)(ii)(C) (SDC specification), because in practice, mortality (including fishing-related catch) is typically accounted for when evaluating stock status with respect to reference points. NMFS believes that accounting for all fishing activities while evaluating stock status with respect to reference points (i.e. ACLs) is more informative to managers. NMFS agrees that OY must be specified as an amount of fish and that, because stock status is based upon a consideration of all sources of fishing mortality, OY specifications (which include considerations of stock status) will be influenced by catch accounted for at the SDC level. NMFS disagrees with the comment that stated that § 600.310(e)(2)(ii)(C) indicates that bycatch does not need to be measured or counted against OY and that characterized OY as the total amount of catch permitted in a fishery. First, NMFS notes that the ‘‘total amount of catch permitted in a fishery’’ is an inaccurate characterization of OY, which is described within the guidelines as the long-term average amount of desired yield from a stock, stock complex, or fishery. See § 600.310(e)(3)(ii). Second, § 600.310(e)(2)(ii)(C) states that Councils should consider all sources of fishing mortality when evaluating stock status with respect to reference points, which will impact annual catch reference points and may influence OY specifications. NMFS believes that language in § 600.310(e)(2)(ii)(C) sufficiently explains that, where practicable, all sources of mortality should be accounted for; this would include fish that are retained for any purposes, mortality of fish that have been discarded, mortality of fish resulting from scientific research, and mortality from any other fishing activity. Further, NMFS believes that PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 use of the term ‘‘where practicable’’ is appropriate, because as explained in the proposed rule preamble (see 80 FR 2793, January 20, 2015), the term recognizes that data on scientific research catch may not always be available. See response to comment 78 for further discussion of ‘‘where practicable.’’ Thus, NMFS believes that additional guidance on accounting for all sources of mortality (where practicable) in the SDC section (§ 600.310(e)(2)(ii)(C)) is not necessary within the guidelines. Carry-Over & Phase-In ABC Control Rules Comment 33: Many commenters supported including phase-in and/or carry-over provisions within ABC control rules (see § 600.310(f)(2)(ii) of proposed action), but requested that the guidelines specify explicit criteria to be considered within the comprehensive analysis required to use these provisions. Commenters expressed concerns that, without explicit technical guidance and criteria guiding Councils on how to use these provisions, phasein and/or carry-over provisions would increase the risk of overfishing for some stocks. Commenters also requested that more research on the impacts of these approaches be conducted and that the guidelines clarify that the Councils should complete a comprehensive analysis each time one of the provisions is used. Other commenters requested clarification on the SSC’s role in the decision-making process for phase-in/ carry-over provisions. Finally, several commenters suggested that phase-in and carry-over provisions be addressed in the ACL setting process rather than in the ABC control rule. Response: This action clarifies that all ABC control rules must be based on a comprehensive analysis that shows how the control rule prevents overfishing. See § 600.310(f)(2)(i) of this final action. This action also emphasizes that the comprehensive analysis of the ABC control rule includes examining—if there is a carry-over and/or phase-in provision in the ABC control rule— when the carry-over and phase-in provisions can and cannot be used and how those provisions prevent overfishing. See § 600.310(f)(2)(ii) of this final action. For instance, a Council may decide that, due to a stock’s life history, characteristics, and/or other vulnerabilities, phase-in/carry-over provisions will not be used if the stock is under a rebuilding plan. NMFS does not believe that research is needed on phase-in and carry-over approaches before including them in the NS1 guidelines, but future research on both E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations approaches (e.g., stock-specific best practices) would inform the best scientific information available for such control rules. As explained above, the guidelines require a comprehensive analysis, based on the best scientific information available and SSC advice, that phase-in or carry-over provisions will prevent overfishing. Given the above-described guidance, NMFS does not believe that further guidance and criteria for the comprehensive analysis of ABC control rules are necessary. With regard to the SSC, the 2009 NS1 Guidelines explained that ‘‘[t]he Council should use the advice of its science advisors in developing [the ABC] control rule,’’ (see 74 FR 3178, 3192, January 16, 2009), and this final action continues to support that statement. The definition of ‘‘control rule’’ explicitly provides that a control rule is ‘‘. . . established by the Council in consultation with its SSC.’’ See § 600.310(f)(1)(iv). In addition, NMFS is re-inserting into § 600.310(f)(3) of this final action language from the 2009 guidelines that states that ‘‘[t]he SSC must recommend the ABC to the Council.’’ NMFS does not believe further clarification regarding the role of the SSC is needed. Finally, NMFS disagrees that phase-in and carry-over provisions should be addressed through the ACL setting process, rather than ABC control rules. ACLs cannot exceed ABCs, and are the level of annual catch based on management uncertainty that serve as the basis for invoking AMs. In contrast, the ABC control rule is an established policy for establishing an ABC that accounts for scientific uncertainty in the OFL and for the Council’s risk policy. NMFS believes that scientific uncertainty and the Council’s risk policy are the two factors that are most relevant to the decision of whether to use phase-in and/or carry-over provisions. It should be noted that, carry-over can impact ACL specifications, as explained in response to comment 34 and in the final action. However, NMFS maintains that carryover provisions are most appropriately addressed through ABC control rules that are based on scientific uncertainty and the Council’s risk policy because carry-over ABC control rules instruct Councils on how to account for increased stock abundance resulting from the fishery harvesting less than the full ACL as well as articulate when the carry-over provision can and cannot be used and how it prevents overfishing. Comment 34: Several comments were received related to the use of carry-over provisions. Some commenters expressed concern that carry-over provisions are VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 not appropriate when a stock is overfished and/or in a rebuilding plan or when stock abundance is overestimated. One commenter suggested that fisheries that are primarily prosecuted through recreational effort may not be appropriate candidates for carry-over provisions. One commenter stated a preference for lower, guaranteed carry-over amounts. Another commenter asked whether catch that is currently subject to a phase-in provision is eligible for use within a carry-over provision. Finally, one comment stated that the last sentence within proposed § 600.310(f)(2)(ii)(B) created confusion regarding how a carry-over provision could be used in cases where the ACL has been reduced from the ABC. Response: NMFS agrees that, in addition to preventing overfishing, the Councils should consider the vulnerability of stocks that are overfished and/or in rebuilding plans when considering using a carry-over provision. NMFS has added in this final action that Councils should evaluate the appropriateness of carry-over provisions for stocks that are overfished and/or rebuilding. See § 600.310(f)(2)(ii)(B) of the final action. NMFS also agrees that the cause (e.g., management inaccuracy or scientific uncertainty) for an ACL underage should be considered when using carry-over provisions. For instance, if a fishery is closed early in anticipation of an ACL exceedance but, once the data is finalized, the results show the fishery’s ACL was never exceeded, carry-over provisions may be appropriate. In contrast, if managers believe that ACL underages are linked to low abundance and there is uncertainty in data collection, then carry-over provisions may not be appropriate. As such, NMFS has added additional clarifying language to § 600.310(f)(2)(ii)(B) of the final action. Carry-over provisions are intended to allow the fishery to catch unused portions of the previous year’s ACL while preventing overfishing. They may be appropriate if the ACL for the second year was established based on an analysis that assumes the full ACL for the first year is caught. If in reality the full ACL in year one is not caught, then more fish may be available in year two, and it may be appropriate to adjust the ACL in year two upwards. NMFS acknowledges that the wording in the last sentence of proposed § 600.310(f)(2)(ii)(B) may have caused confusion and clarifies within the final action on this section that carry-over provisions could allow an ACL to be adjusted upwards as long as the revised ACL does not exceed the specified ABC. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 71873 Regarding ‘‘guaranteed carry-over provisions,’’ the final action explains that a Council must articulate within its FMP when carry-over provisions of the control rule can and cannot be used and how the provision prevents overfishing, based on a comprehensive analysis. See § 600.310(f)(2)(ii) of final action. Finally, some portion of unused catch from ACLs that are currently subject to a phase-in provision could be carried over, as long as the Council demonstrates that overfishing will be prevented. Comment 35: Commenters raised several questions about how to use carry-over provisions when new information leads the OFL and/or ABC to change. One commenter believed that, in order to ensure that carry-over provisions would not result in overfishing, the amount of allowed carry-over should be calculated based on the OFL from the first year (i.e., the year of the ACL underage). However, another commenter believed that carryover should not be allowed when new information is available that indicates a change in stock condition. Another commenter asked whether or not any further carry-over is justified if the catch in the second year equaled the original ACL, but fell below the revised ACL due to prior carry-over. Commenters also requested that the guidelines establish a naming convention for reference points associated with carry-over provisions. Response: If new information results in a revised ABC, carry-over provisions can be used as long as overfishing is prevented and the approach used is consistent with the provisions established within the FMP. If a stock’s current reference points (e.g., ABC, ACL) were revised based on carry-over from the previous year and catch fell below the revised ACL, the Council may apply another carry-over provision for the next year. However, as is the case for all carry-over provisions, the resulting ABC recommended by the SSC must prevent overfishing, and must consider the scientific uncertainty associated with the Council’s risk policy and take into account other considerations under § 600.310(f)(2)(ii)(B) of the final action. Finally, Councils may establish naming conventions for reference points associated with carry-over provisions at their discretion. Comment 36: Several comments were received related to phase-in provisions. Commenters requested that the guidelines explicitly prohibit practices of using phase-in provisions to ‘‘frontload’’ high catch levels in the first year when increases are appropriate; or, delay decreases in catch levels for two years without taking any real action (i.e., E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71874 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations back-loading). Commenters also expressed concern that phase-in provisions could be used to delay action when new information suggests the health of the fish population has changed. Two commenters stated that the phase-in provision was not worth the trouble of implementing because it can only apply to the difference between the OFL and ABC. One commenter asked how the phase-in tool is applicable to the interim measures under § 600.310(j)(4) of proposed action. One commenter asked if a Council could theoretically use the 2-year time period allowed to develop a rebuilding plan (16 U.S.C. 1854(e)(3)) in addition to a 3-year phase-in approach to delay reducing catches to at or below the ABC for 5 years. Two commenters expressed concern regarding how the use of phasein would affect the evaluation of adequate progress within a rebuilding plan. 16 U.S.C. 1854(e)(7). Finally, one commenter felt that market impacts should not be considered when deciding whether to use phase-in provisions while another commenter requested that ecosystem factors be considered. Response: NMFS believes that the guidelines address the ‘‘front-loading’’ and ‘‘back-loading’’ concern, and do not require further revision in this regard. As discussed in comment 33, the Councils are required to specify in the FMP, based on a comprehensive analysis, when a phase-in provision can and cannot be used, and how it prevents overfishing. The Councils must provide an adequate record that supports how each application of the phase-in provision is consistent with the FMP. Arbitrary ‘‘front-loading’’ or ‘‘backloading’’ approaches will not satisfy these requirements. Furthermore, phasein provisions cannot be used to allow for overfishing. NMFS has added language to the final action that explicitly states that the phased-in catch level cannot exceed the OFL in any year. See § 600.310(f)(2)(ii)(A) of the final action. In accordance with MSA section 304(e)(3), if a stock is determined to be undergoing overfishing, whether or not subject to a phase-in provision, new catch limits must be set to end overfishing immediately, unless MSA section 304(e)(6) is applied. Additionally, a Council may designate other indicators of stock health in its ABC control rule to be considered when applying a phase-in provision. NMFS believes that there are benefits to using phase-in provisions, particularly for stocks with large degrees of scientific uncertainty (which accordingly should have large buffers VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 between the OFL and ABC). Such stocks are most likely to experience a dramatic shift in reference points from one assessment to another, and thus, NMFS believes that phase-in provisions will give managers additional flexibility and increase stability within fisheries. Section 600.310(j)(4) of the final action is based on MSA section 304(e)(6), which authorizes NMFS to take interim measures to reduce, but not necessarily end, overfishing during the development of an FMP or FMP amendment needed to rebuild overfished stocks. 16 U.S.C. 1854(e)(6) (authorizing interim measures for 180 days plus an additional 186 days). As such measures likely would deviate from the ABC control rule in an existing FMP, or from a new ABC control rule that is developed, the interim measures would not be included as part of any phase-in that might be adopted in an ABC control rule in a new FMP or FMP amendment. The guidelines do not preclude a Council from considering the use of a phase-in provision for stocks under a rebuilding plan. However, in addition to preventing overfishing, the Councils should consider the vulnerability of stocks that are overfished and/or in rebuilding plans when considering using a phase-in provision. NMFS has added in this final action that Councils should evaluate the appropriateness of phase-in provisions for stocks that are overfished and/or rebuilding. See § 600.310(f)(2)(ii)(A) of the final action. A Council may determine that certain stocks subject to rebuilding plans are particularly vulnerable and should not have phase-in provisions within their ABC control rules. If a Council makes use of a phase-in provision, the provision must allow a stock to meet its specified timeframe for rebuilding (16 U.S.C. 1854(e)(4)). Thus, a rebuilding ABC must be set to reflect the amount of catch consistent with the designated fishing mortality rate (i.e., Frebuild) in the rebuilding plan. See § 600.310(f)(3)(ii). If a phase-in approach is used for a stock under a rebuilding plan, it would not impact the evaluation of whether the stock has made adequate progress toward rebuilding. Finally, under § 600.310(f)(2)(ii)(A), a Council may consider the short-term effects of a phase-in ABC control rule on a fishing industry, as well as long-term ecosystem effects. NMFS believes that economic, social, and ecological tradeoffs are all relevant considerations when determining an ABC control rule risk policy. The fact that these considerations are important in fishery management is reflected in the National Standards and other MSA provisions. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Comment 37: Several commenters offered suggestions for improvements to the phase-in provision. For example, one commenter suggested that NMFS consider alternative timeframes for using a phase-in ABC control rule based on the life history characteristics of the stock. Another commenter recommended NMFS replace the phasein provision with a provision allowing, in the case of stocks subject to overfishing, the phase-in of catch levels below the OFL to end overfishing. Other commenters recommended that NMFS limit the use of the phase-in provision to the ‘‘slow up/full down’’ approach described in the preamble to the proposed rule. See 80 FR 2794, January 20, 2015. One commenter suggested that having frequent stock assessments would eliminate the need for phase-in provisions. Finally, another commenter suggested revising the guidelines to explicitly state that phase-in provisions apply to both increases and decreases in catch limits. Response: NMFS limited the use of the phase-in provision to three years (instead of a stock-specific time period based on life history) because a shorter time frame may not be that helpful in stabilizing catches, while a longer time frame that spans multiple stock assessments may prevent necessary changes to catch levels from occurring in a timely manner. See 80 FR 2792, 2794, January 20, 2015 (referring to explanation in Section IX of proposed action preamble that many stocks are assessed every 1, 2 or 3 years). A three year time period is enough time to smooth out dramatic changes in annual catch levels while avoiding delays to address needed changes in catch levels. See 80 FR 2794, January 20, 2015. Additionally, NMFS believes it is more appropriate to base the allowable time period for phase-in provisions on the flow of new information, rather than the stock’s life history characteristics because phase-in provisions are used to mediate management responses to new information. The OFL is the threshold above which a stock is determined to be subject to overfishing. Thus, NMFS does not believe that phasing-in changes to the OFL is appropriate, given that any catch level above the OFL would subject the stock to overfishing and the MSA requires preventing overfishing. While NMFS supports the use of the ‘‘slow up/ full down’’ approach as an appropriate option to consider for phase-in provisions, NMFS believes that the Councils should have the flexibility to design their own phase-in provisions, based on a comprehensive analysis that prevents overfishing. E:\FR\FM\18OCR3.SGM 18OCR3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 NMFS agrees that having frequent stock assessments may reduce the need for phase-in provisions. However, the phase-in provision will address the current levels of uncertainty and accommodate reduced uncertainty in the future, as improvements in the stock assessment process are made. Finally, NMFS does not believe that revisions are needed to the language on phase-in provisions to explicitly refer to increases and decreases in catch levels. The text refers generally to ‘‘changes to ABC,’’ thus allowing for potential application of phase-in provisions in both directions. ABC Control Rules—Risk Policy and Role of SSC Comment 38: NMFS received several comments regarding a Council’s risk policy for ABC control rules. Several commenters requested that the guidelines define risk policies, require their use, and provide more specific and transparent technical guidance on establishing risk policies. Commenters also expressed concern that the term ‘‘at least 50 percent’’ within § 600.310(f)(2)(i) of the proposed action could be interpreted as a recommendation of the level of acceptable probability that overfishing will be prevented, rather than a lower bound and sought additional guidance on how much overfishing risk is prudent and legal. Other commenters recommended that the agency formally evaluate risk policies; that ABC control rules must lower fishing mortality as stock size declines (not just consider doing so); and that risk policies only consider biological and ecological factors. One commenter also opposed risk policies that utilize the ‘‘P* approach’’ to set buffers that account for scientific uncertainty, stating the approach provides a mechanism for Councils to ‘‘reverse engineer’’ their risk policies to obtain desirable catch levels. Response: NMFS believes sufficient guidance is given within the NS1 guidelines to allow Councils to establish well-documented ABC control rules and risk policies, as supported by a comprehensive analysis (see response to comment 33). NMFS strongly recommends the use of risk policies in order to properly establish measures (i.e., ABCs) that are consistent with the dual mandates of NS1 (preventing overfishing while achieving, on a continuing basis, OY) and other MSA provisions. As described in the preamble to the final 2009 NS1 Guidelines, a 50 percent probability that the catch equal to the stock’s ABC will not result in overfishing is a lower bound, not a default value. See response VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 to comment 63, 74 FR 3195–96, January 16, 2009. ABC control rules that are more risk adverse may be prudent, depending on the OY considerations (i.e. ecological, economic, and social trade-offs) that a Council may consider. See § 600.310(f)(4)(iv) of final action. The Secretary reviews ABC control rules and the Council’s risk policy when conducting its review of FMPs or FMP amendments, as required under MSA section 304(a). A risk policy for ABC control rules is a policy decision made by the Council, based on the fishery management objectives (ecological, economic, and social) identified within the FMP. NMFS believes that social and economic factors, as well as biological and ecological ones, are relevant when developing risk policies in light of a Council’s fishery management objectives. The fact that these considerations are important in fishery management is reflected in the National Standards and other MSA provisions. While the guidelines recommend Councils consider reducing fishing mortality as stock size declines below Bmsy and as scientific uncertainty increases, that action may not be appropriate in every case. Finally, as described in § 600.310(f)(2)(i) and discussed in comment 40, the SSC applies the Council’s ABC control rule and risk policy (which are established within its FMP) when recommending an ABC to the Council. Thus, the guidelines are clear that risk policies are established within FMPs and are not capable of being modified to attain a desirable ABC recommendation for a single year. Comment 39: Several commenters supported the addition of definitions for scientific and management uncertainty. See § 600.310(f)(1)(v)–(vi) of proposed action. In addition, NMFS received several comments requesting additional guidance on how to set appropriate, transparent, and quantifiable scientific and management uncertainty buffers to reduce the risk of overfishing and/or achieve OY. Some commenters recommended that the guidelines require all sources of scientific and management uncertainty be described and considered. Some commenters requested the guidelines require scientific uncertainty buffers to account for uncertainty in the relationship between environmental factors (including protected resources) and stock biomass, while others expressed that accounting for those types of uncertainty is overly precautionary. Commenters also requested the guidelines: Clarify the definition of ABC; cross-reference the definitions of scientific and management uncertainty PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 71875 throughout § 600.310(f); and require proxies to be used to account for types of uncertainty that are known to exist but not typically accounted for in standard error values. Response: NMFS believes that § 600.310(f) of the final action provides sufficient guidance to the Councils on appropriately accounting for scientific and management uncertainty to meet the requirements of NS1 while providing Councils with adequate flexibility to address the particular levels of uncertainty for their stocks. While all sources of scientific and management uncertainty should be considered, NMFS acknowledges that consideration and quantification of uncertainty is limited by data availability. As stated in § 600.310(f)(1)(vi), uncertainty regarding the relationship between environmental factors (including protected resources) and stock biomass can be accounted for through the consideration of ‘‘longerterm uncertainties due to potential ecosystem and environmental effects.’’ Potential sources of scientific and management uncertainty are listed in § 600.310(f)(1)(v) and (vi) of the final action. The extent to which those sources of uncertainty are considered is at the discretion of the Council, thus NMFS believes the guidelines are not overly prescriptive or overly precautionary. Furthermore, the definitions for ABC, scientific uncertainty, and management uncertainty are clearly established within the guidelines and do not need to be cross-referenced. Finally, the guidelines clearly state that when scientific uncertainty cannot be directly calculated, a proxy for uncertainty itself should be established based on the best scientific information available. See § 600.310(f)(2)(ii). Comment 40: NMFS received several comments expressing concern that proposed revisions to § 610.310(f) will minimize the SSC’s role in setting the ABC and ABC control rules. Commenters stated that the proposed definition of ‘‘control rule,’’ in combination with the deletion of the phrases ‘‘The SSC must recommend the ABC to the Council’’ and ‘‘based on scientific advice from its SSC’’ from § 600.310(f)(3) of the proposed action will weaken the requirement that Councils cannot exceed the SSC’s fishing level recommendations and are inconsistent with NS2. Commenters recommended restoring the existing language related to the SSC’s role in setting ABCs and ABC control rules, revising the definition of ‘‘control rule,’’ and adding additional plain language guidance on the relationship between E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71876 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations the SSC and the ABC, as well as other parts of the ACL framework. Another commenter requested clarification on whether an SSC can recommend an ABC that exceeds the catch that results from the application of the control rule. Response: As discussed in the 2009 final action (see 74 FR 3181, January 16, 2009), the statute is clear that the SSC is required to recommend the ABC to the Council. 16 U.S.C. 302(g)(1)(B), 302(h)(6). However, NMFS agrees that this statutory requirement should be clearly stated within the NS1 guidelines and NMFS has re-instated the phrase ‘‘The SSC must recommend the ABC to the Council’’ within § 600.310(f)(3) of the final action. The role of the SSC in the establishment of ABC control rules is accurately described within § 600.310(f)(1)(iv), and the guidelines clearly emphasize using the best scientific information available (NS2) in the specification of the ABC within § 600.310(f)(3). Thus, NMFS believes the NS1 guidelines provide sufficient guidance on the role of the SSC within the ABC-setting process. Finally, the SSC may recommend an ABC that differs from the result of the application of the ABC control rule, based on factors such as data uncertainty, recruitment variability, declining trends in population variables, and other factors. However, if a different value is recommended, the SSC must provide a well-documented and adequate record for the deviation. Comment 41: NMFS received requests for additional plain-language descriptions of the relationships between ABC, ACL, and OFL. One commenter recommended clarifying that ABC and ACL should be set in terms of catch, rather than landings. Response: The relationships between ABC, ACL, and OFL were clearly described in the 2009 action. See 74 FR 3180, January 16, 2009. NMFS agrees that, wherever practical in the management context, ABC and ACL should be set in terms of catch, rather than landings. However, there are fisheries for which data on bycatch (discards) is not available in the same time-frame as data on landed catch. In these cases, Councils may express an ABC (and, correspondingly, ACL) in terms of landings as long as estimates of bycatch and any other fishing mortality not accounted for in the landings are incorporated into the determination of ABC. See § 600.310(f)(3)(i). Accountability Measures Comment 42: One commenter suggested adding ‘‘or functional equivalent’’ to the discussion of annual VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 catch targets (ACTs) in § 600.310(f)(4)(i) and § 600.310(g)(4). Response: NMFS agrees and has included the suggested language in § 600.310(f)(4)(i) of the final action and the phrase ‘‘or the functional equivalent’’ in § 600.310(g)(4) of the final action. Comment 43: NMFS received many comments on the relationship between ACLs and AMs. Some commenters requested the guidelines recommend applying AMs with increasing severity as catch overages approach the OFL while others emphasized that Councils should be given deference in deciding how to implement AMs. Other comments included: Suggested revisions to require AMs to prevent overfishing (as opposed to preventing ACL overages); confusion regarding how to implement AMs based on multi-year averaging; recommendations to encourage the use of overage adjustments to counter the biological consequences of ACL overages; recommendations to require overage adjustments for rebuilding stocks unless the overage is due to higher than expected recruitment and abundance; and recommendations that the guidelines include examples of SDCs and AMs that address habitat-based criteria. Finally, one commenter suggested that in cases where an ACL is exceeded due to higher than expected recruitment, the corresponding ABC should be revised based on the higher observed recruitment and ACLs should be reset accordingly. Response: AMs are management controls to prevent ACLs from being exceeded and to correct or mitigate overages of the ACL if they occur. The proposed action did not make any substantive changes to the guidance on the relationship between AMs and ACLs. Based on experience in implementing §§ 600.310(f)(4); 600.310(g), and after taking into consideration public comments, NMFS does not believe that any further revisions to the guidelines are required. As discussed in the 2009 final action, the decision of how to establish and implement AMs for each fishery is at the discretion of the Council. Also as discussed in the 2009 final action, NMFS interprets the MSA as requiring AMs to prevent the ACL from being exceeded (as opposed to preventing the ABC or OFL from being exceeded). See e.g., response to comment 59, 74 FR 3194, January 16, 2009 (addressing similar comments). Consistent with that, NMFS recommends that, whenever possible, Councils establish AMs that allow in-season monitoring and adjustment to the management of the PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 fishery. Section 600.310(g)(5) of the final action allows Councils, in cases where fisheries lack timely and/or consistent data, to establish AMs based on comparisons of average catch to average ACL. See e.g., response to comment 65, 74 FR 3196, January 16, 2009 (addressing similar comments). The guidelines clearly state within § 600.310(g)(3) that biological consequences on the status of the stock (i.e., its ability to produce MSY or achieve rebuilding goals) must be accounted for when designing and implementing AMs. While NMFS encourages Councils to use overage paybacks when appropriate to compensate for ACL overages, NMFS believes that Councils should design and implement AMs based on the particular conditions and needs of the fishery. In addition, AMs are controls to prevent ACLs from being exceeded, and do not consider non-fishing factors that affect stock health, such as habitat-based criteria. Such considerations should be accounted for in OY specifications. Finally, as described in the preamble to the proposed action, a Council may consider if higher than expected recruitment played a role in catches exceeding the ACL when deciding on the appropriate AM to implement. See 80 FR 2795, January 20, 2015. The ABC is not a type of inseason AM and may not be revised during a fishing season based on catches that exceed the ACL. Nevertheless, data showing higher than expected recruitment may be accounted for by a Council’s SSC when specifying the ABC for subsequent fishing seasons based on the Council’s ABC control rule. Comment 44: One comment suggested that NMFS, as opposed to the Councils, should be responsible for inseason management. The commenter also expressed concern that § 600.310(g)(3) expands the purpose of AMs into a punishment for overages by requiring an automatic reduction of ACLs in the case of overages. The commenter asked whether the provision provides a similar exception for stocks that are not in rebuilding plans as stocks that are in rebuilding plans. Response: Councils must establish appropriate AMs within their FMPs, which are subject to review and approval by NMFS. 16 U.S.C. 1853 (a)(15); 1854(a). Based on the AMs established by a Council’s FMP, NMFS may have implementation responsibilities. For example, NMFS may provide data to the Councils in support of inseason monitoring and adjustment for each fishery, as well as implement any necessary inseason AMs (e.g., fishery closures) should certain E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations conditions be met. Furthermore, if an ACL is exceeded, the existing guidelines do not require that the ACL be automatically reduced in the following year. The guidelines explain that Councils may determine the most appropriate AM to use in response to an ACL overage based on a variety of factors. While NMFS strongly recommends that full overage adjustments should be applied to stocks in rebuilding plans (due to their increased vulnerability), the guidelines acknowledge that there may be cases where the best scientific information available shows that a reduced overage adjustment (or no adjustment) is needed to mitigate the effects of overages for a rebuilding stock. Such cases are expected to be rare. Councils have the flexibility to determine the most appropriate AM for stocks. Because overage adjustments are not required for stocks that are not in rebuilding plans, it is not necessary to add additional exceptions into the guidelines. See § 600.310(g)(3). Section 600.310(g)(3) was adopted in the 2009 NS1 Guidelines, and this action did not propose any revisions to the text. Based on experience in implementing § 600.310(g)(3), and after taking into consideration public comments, NMFS does not believe that further revisions to the section are required. Comment 45: One commenter asserted that § 600.310(g)(6) of the proposed action, which states that fisheries that have harvest in state or Federal waters must have AMs for the portion of the fishery in Federal waters, is in conflict with § 600.310(g)(1), which states that AMs must prevent the ACL from being exceeded. Response: Federal management authority is limited to the portion of the fishery under Federal jurisdiction. Therefore, the 2009 NS1 guidelines only require AMs for the Federal fishery, and this approach is unchanged in this final action. NMFS continues to strongly recommend collaboration with state managers (and other applicable managers) to develop ACLs and AMs that prevent overfishing of the stock as a whole. See e.g., response to comment 71, 74 FR 3197, January 16, 2009 (addressing similar comments). Comment 46: NMFS received many comments on the proposed revision within § 600.310(g)(3) that clarifies that no additional AMs are necessary for stocks whose ACL is zero and the AM for the fishery is a closure. Commenters expressed concern that stocks with ACLs equal to zero are particularly vulnerable and the provision could be construed to exempt a Council from implementing adequate AMs that VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 prevent the ACL from being exceeded as well as exempt the fishery from the requirements of NS9 and NS1 guidelines catch accounting requirements (§ 600.310(e)(2)(ii)(C)). Commenters also stated that the provision is in conflict with the decision in Oceana v. Locke, 831 F. Supp. 2d 95 (D.D.C. 2011). Finally, commenters requested additional clarification on the meaning of the term ‘‘small’’ within the phrase ‘‘only small amounts of catch or bycatch’’ within § 600.310(g)(3). Response: The final action retains the clarification within § 600.310(g)(3) that, if an ACL is set equal to zero and the AM for the fishery is a closure of the fishery, additional AMs are not required if (1) only small amounts of catch or bycatch occur, and (2) that catch or bycatch is unlikely to result in overfishing. The provision is an optional tool that will only apply to a limited set of cases where there is no way to account for the small amounts of bycatch occurring and, therefore, it is not pragmatic to establish AMs to try to account for such small amounts of bycatch that are unlikely to result in overfishing. In order to utilize this provision, Councils must provide a well-documented record supporting that the stock meets both of the abovementioned criteria. Additional AMs are not required when the catch or bycatch is unlikely to result in overfishing and is at such a low level that it is not practicable to require additional AMs. See response to comment 78 for further discussion of the term ‘‘practicable’’. NMFS disagrees that the provision is contrary to § 600.310(e)(2)(ii)(C) of the NS1 guidelines or NS9. Section 600.310(e)(2)(ii)(C) provides for accounting for all sources of mortality ‘‘where practicable,’’ when evaluating stock status with respect to reference points. See response to comments 32 and 78 for further discussion of that section and the term ‘‘practicable.’’ NS9 is a separate statutory requirement (16 U.S.C. 1851(a)(9)) from the ACL/AM requirement (16 U.S.C. 1853(a)(15)), and in any event, NS9 requires that measures, ‘‘to the extent practicable,’’ minimize bycatch and bycatch mortality. 16 U.S.C. 1851(a)(9). NMFS also disagrees that the provision conflicts with Oceana v. Locke. In that decision, the court held that when sector-specific sub-ACLs are established, sector-specific sub-AMs may be necessary. The court found that NMFS could not demonstrate that overfishing would be prevented when there were no sub-AMs specified that could address overages of specified subACLs. Sector-ACLs are not required PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 71877 under the NS1 guidelines. However, as explained in the response to comment 80, § 600.310(f)(4)(ii) now provides that, if sector-ACLs are used, then sectorAMs should also be specified. That section emphasizes that ‘‘ACLs in coordination with AMs must prevent overfishing.’’ See § 600.310(f)(4)(i). Section 600.310(g)(3) reinforces the requirement to prevent overfishing by clarifying that, in cases where an ACL is set equal to zero and the AM for the fishery is a closure, additional AMs are not required if catch or bycatch is unlikely to result in overfishing. Thus, the approach under § 600.310(g)(3) is consistent with Oceana v. Locke. Comment 47: NMFS received several suggestions to modify the language in both § 600.310(f)(4)(i) and § 600.310(g)(4). Comments included: The agency should be required to provide catch data within 60 days of the end of the fishing year; revise the use of the word ‘‘should’’ from the description of in-season AMs; replace ‘‘for the next year’’ with ‘‘as soon as possible’’ within § 600.310(f)(4)(i); and repeat that management uncertainty should be accounted for at the ACL level if an ACT is not used in § 600.310(g)(4). Finally, while some commenters requested that the guidelines clarify that sector-AMs should be applied when sector-ACLs are used, others opposed sector-ACLs and AMs and recommended that the guidelines replace ‘‘sector-AMs should also be specified’’ with ‘‘sector-AMs may also be specified.’’ Response: First, while NMFS aims to provide catch data to the Councils as soon as possible, a specific deadline to provide catch data for all fisheries is not realistic, given the various mitigating circumstances that arise. As discussed within § 600.310(g)(2), Councils should plan to make appropriate use of preliminary data, if needed to implement inseason AMs. Second, while NMFS strongly recommends the use of inseason AMs, NMFS is not requiring them to be used (i.e., not changing ‘‘should’’ to a ‘‘must’’ in the description of inseason AMs), because inseason AMs are not a statutory requirement, and NMFS believes that Councils should have discretion to consider different types of AMs. Third, ACLs are set on an annual basis and, because AMs are management measures to help prevent fisheries from exceeding ACLs, AMs should be applied on an annual basis as well. Lastly, NMFS believes that the guidance adopted in the 2009 NS1 Guidelines regarding accounting for management uncertainty within the ACL-setting process and using sector-AMs is sufficient. After considering public comments, NMFS E:\FR\FM\18OCR3.SGM 18OCR3 71878 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 has determined that no additional guidance on these topics is necessary in the NS1 guidelines. ACL & AM Mechanisms—Life Cycle Exemption Comment 48: Several comments were received regarding NMFS’ proposal to revise the life cycle exception to apply to ‘‘a stock for which the average age of spawners in the population is approximately 1 year or less.’’ See § 600.310(h)(1)(i) of proposed action. Some commenters felt this modification to the exception was still too restrictive. One commenter proposed that the exception should apply to stocks for which the average age of spawners is 2 or 3 years. Others felt the exception was not restrictive enough. One commenter said that the life cycle exception should only apply to an ‘‘unfished population.’’ They expressed concern that excessive fishing could truncate the life cycle of the stock to the point that it qualifies for the exception. Another recommended expanding the life cycle exception in the MSA to include species with life cycles of 1–2 years but then limiting it to those species that also experience a rate of natural mortality that far exceeds the effects of fishing mortality. Finally, one commenter asked for more guidance on how to apply the exception. Response: The MSA provides a statutory exception to the requirements for ACLs and AMs for ‘‘a fishery for species that have a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species.’’ 16 U.S.C. 1853 note (Pub. L. 109–479 104(b)). The 2009 NS1 guidelines explained that this statutory exemption applies to a stock for which the average length of time it takes for an individual to produce a reproductively active offspring is approximately 1 year and that the individual has only one breeding season in its lifetime. See 74 FR 3210, January 16, 2009. In this action, NMFS is revising the exception to apply to ‘‘a stock for which the average age of spawners in the population is approximately 1 year or less,’’ as this is a more scientifically correct description of a species that has a life cycle of approximately 1 year. As explained in the preamble to the proposed action, NMFS believes that the 2009 NS1 guidelines’ reference to one breeding season in a lifetime was overly restrictive, because some short lived species have multiple breeding cycles in a lifetime. NMFS cannot change the reference to 1 year in the NS1 guidelines, because that is based on the statutory text for the exception, which is quoted above. VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 NMFS does not agree with limiting the exception to ‘‘unfished populations’’ or to stocks that experience a rate of natural mortality that far exceeds the effects of fishing morality. The exception itself does not include these limitations, and NMFS does not believe that they are necessary, given that the exception will not apply if ‘‘the Secretary has determined the fishery is subject to overfishing of that species.’’ 16 U.S.C. 1853 note. NMFS continues to believe that the National Standard 1 guidelines should not include overly prescriptive guidance as to which stocks meet the criteria for the exception; this is a decision that is best made by the Councils, subject to Secretarial review and approval under MSA section 304(a). To the extent that questions arise as to the application of the exemption, NMFS will provide casespecific guidance to the Councils as necessary. ACL & AM Mechanisms—Flexibility in Application of NS1 Guidelines Comment 49: Some commenters expressed support for the proposal to add additional examples of circumstances that might call for flexibility in the application of the NS1 guidelines. See § 600.310(h)(2) of proposed action. Others felt that the proposal could be improved. For instance, one commenter felt that the Pacific salmon example in the proposed action mischaracterizes the spawning potential of Pacific salmon. The commenter recommended keeping the original language or inserting the phrase ‘‘of each run’’ after ‘‘potential.’’ Another commenter suggested relocating the provision to make it clear that it applies to the complete set of NS1 guidelines and is not limited to only flexibility in establishing ACL mechanisms and AMs in FMPs. Response: NMFS agrees with the commenter about the proposed language regarding Pacific salmon spawning potential, thus the sentence in this final action reverts back to as it was written in the 2009 NS1 guidelines: ‘‘(e.g., Pacific salmon, where the spawning potential for a stock is spread over a multi-year period).’’ NMFS disagrees with the suggestion to relocate the flexibility provision in § 600.310(h)(2). NMFS believes the guidance in § 600.310(h)(2) is clear and that further revision is not necessary. Section § 600.310(h)(2) is meant to only provide flexibility in establishing ACLs and AMs. The revisions to § 600.310(h)(2) were not meant to expand what it applies to but rather to connect the proposed change in § 600.310(e)(2)(ii) to the requirement to PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 specify ACLs and AMs because a Council specifying SDC in a manner that deviates from the standard NS1 guidelines approach will also likely need to deviate from the standard approach to setting ACLs and AMs. Calculating Tmax Comment 50: NMFS received many comments supporting the inclusion of two additional methods to calculate Tmax within the NS1 guidelines. Other commenters expressed concern that providing additional options for calculating Tmax would incentivize Councils to merely pick the longest Tmax, which would result in a rebuilding plan that is ineffective and/or fails to meet the statutory requirement that rebuilding plans rebuild a stock in as short a time as possible. Similarly, many commenters sought additional guidance from NMFS as to how to pick between the three different Tmax calculations. Several commenters also requested additional technical guidance on whether factors discussed in § 600.310(j)(3)(i) can be used to justify the method used for calculating Tmax, and additional guidance on the preferred methodology to calculate mean generation time. Several commenters provided suggestions to either improve the proposed Tmax calculation methods or include other alternate Tmax calculation methods within the guidelines. Commenters also recommended that the guidelines encourage setting Ttarget as close to Tmin as possible and encourage the use of management measures that adhere to Ttarget as opposed to Tmax. Response: As the preamble to the proposed rule discussed, while NMFS does not anticipate that the proposed alternative approaches to calculate Tmax will produce drastically different values, NMFS has added these methods to give Councils the flexibility to calculate Tmax in light of variable information and data availability. See 80 FR 2795–96, January 20, 2015. NMFS expects these additional methods will help Councils avoid using overly conservative or exaggerated Tmax values in cases where there is a lack of available data to calculate mean generation time as required under the only available approach under the previous guidelines (i.e., Tmin plus one mean generation time). However, NMFS revised the final action to provide additional guidance on decisions regarding which Tmax calculation method to use. NMFS emphasized that, in cases where Tmin exceeds 10 years, Tmax is a biological calculation. Because Tmax is a biological calculation, the calculation methods provided in the E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations guidelines do not include other factors such as those outlined in § 600.310(j)(3)(i). NMFS also clarified in the final action that the determination of which Tmax calculation method to use should be made by the Councils in consultation with their SSCs (or agency scientists or peer review processes in the case of Secretarial actions) and should be based on the best scientific information available. See § 600.310(j)(3)(i)(B)(3).To this end, NMFS has also added language to the final action emphasizing that a Council and its SSC should consider the relevant biological data and scientific uncertainty of that data when deciding which calculation method to use. Finally, NMFS also provided examples of cases where, given data availability and the life history characteristics of a stock, one of the alternative methods may be more appropriate than the status quo calculation method (Tmin plus one mean generation time). As noted in the 2009 final action, Tmax is an upper bound on the duration of rebuilding time periods and is a limit that should be avoided. See 74 FR 3200, January 16, 2009. When developing and implementing an effective rebuilding plan, Councils must determine Ttarget, which is the shortest rebuilding time period possible based on the factors in § 600.310(j)(3)(i). Thus, Councils must demonstrate that their adopted Ttarget is the shortest time possible for rebuilding and Council action addressing an overfished fishery should be based on Ttarget (16 U.S.C. 1854(e)(4)(A); NRDC v. NMFS, 421 F.3d 872, 882 (9th Cir. 2005)). NMFS believes the methods given for Tmax calculations in the final guidelines are sufficient to produce appropriate Tmax values and there is no need for additional guidance within the NS1 guidelines. Finally, NMFS has already developed technical guidance on calculating mean generation time for use in rebuilding plans, which includes a definition for mean generation time (Restrepo et al., 1998). NMFS believes this technical guidance document is sufficient and does not believe an exact method should be specified in the NS1 guidance. Comment 51: NMFS received several comments on the requirement within MSA section 304(e)(4)(A)(ii) to specify a time period for rebuilding overfished stocks that does not exceed 10 years (henceforth referred to as the ‘‘10 year rebuilding requirement’’). Comments reflected disappointment that the proposed changes to the guidelines do not address the issue of ‘‘discontinuity’’ among rebuilding plans: Where Councils with stocks that have a Tmin VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 greater than 10 years are able to adopt rebuilding plans significantly longer than 10 years while stocks with a Tmin of 10 years or less are required to rebuild within 10 years. Comments included suggestions to remove the 10 year rebuilding requirement and replace it with alternative rebuilding requirements. Another commenter suggested that socio-economic considerations should be included when assessing a stock’s ability to rebuild in 10 years. One commenter recommended revising the language in § 600.310(j)(3)(i)(B)(1) to clarify that, because fishing mortality cannot be guaranteed to equal zero, the 10 year rebuilding requirement should apply to stocks with a Tmin of less than 10 years, rather than less than or equal to 10 years. Finally, other commenters suggested legislative action to modify the 10 year rebuilding requirement within the MSA. Response: While NMFS acknowledges that the 10 year requirement under MSA section 304(e)(4)(A)(ii) can lead to disparate outcomes for different stocks, action by Congress would be required to change that statutory requirement. See 74 FR 3200–01, January 16, 2009. Under the 2009 NS1 Guidelines and this action, NMFS does not include socioeconomic considerations with regard to the 10 year rebuilding requirement, because MSA section 304(e)(4)(A)(ii) does not provide for this. 16 U.S.C. 1854(e)(4)(A)(i) and (ii) (requiring under (ii) that rebuilding period not exceed 10 years, except under certain circumstances which do not include socio-economic considerations, but providing under (i) that ‘‘needs of fishing communities’’ may be considered when determining if period is as short as possible). NMFS reiterated in the 2009 final NS1 Guidelines that the needs of fishing communities are not part of the criteria for determining whether a rebuilding period can or cannot exceed 10 years, but are an important factor in establishing Ttarget. See 74 FR 3200, January 16, 2009. Finally, NMFS acknowledges that hypothetically, there could be a situation where Tmin for a stock is equal to 10 years and Tmax is equal to 10 years, in which case a fishery may need to be closed in order to meet the 10 year rebuilding requirement. However, a Federally-managed stock has yet to be determined to be overfished and present the aforementioned situation, and NMFS believes such an extreme situation is unlikely. Comment 52: Some commenters regarded the proposed language in § 600.310(j)(3)(i)(A), which clarifies that the starting year for the Tmin calculation PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 71879 should be the first year the rebuilding plan is implemented, as a loophole that encourages Councils to delay the implementation of a rebuilding plan and set the starting date for Tmin later than is appropriate. One commenter recommended re-instating ‘‘whichever is sooner’’ in subsection § 600.310(j)(3)(i)(B) of the existing guidelines in addition to retaining the proposed ‘‘expected to be’’ language. Response: NMFS disagrees that guidance on the starting year for the calculation of Tmin creates an incentive to delay implementation of rebuilding plans. MSA section 304(e)(3) requires that following notification that a fishery is overfished or approaching a condition of being overfished, a Council prepare and implement an FMP, FMP amendment, or proposed regulations within 2 years. This provision does not require that the starting year for a reference point for rebuilding plans (i.e., Tmin) be set prior to the first year the rebuilding plan is expected to be implemented. Because MSA section 304(e)(4) addresses reference points in the context of the rebuilding measures that the Council will be adopting, NMFS believes that the starting year reference point should be the same year as the implementation of those measures. Additionally, the MSA required that, by fishing year 2010/2011, FMPs establish mechanisms to specify ACLs to prevent overfishing, which means that during the period of rebuilding plan development, ACLs will be in place that end overfishing. Therefore, catch of stocks in poor shape (i.e., overfished stocks undergoing overfishing) will be constrained immediately in order to end overfishing, regardless of when the rebuilding plan is implemented. Adequate Progress & Extending Rebuilding Timelines Comment 53: While NMFS received some comments in support of the proposed guidance on adequate progress determinations, some comments opposed the proposed changes and expressed that they are unnecessary, ineffective, and likely to decrease the odds of a stock being rebuilt. Many commenters expressed concern that the proposed criteria for adequate progress determinations in § 600.310(j)(3)(iv) of the proposed action were too vague, required additional guidance, and would allow stock biomass levels to be ignored. Many commenters emphasized that the criteria for adequate progress determinations should include some consideration of biomass trends to help identify when changing conditions render original Frebuild and/or biomass targets no longer appropriate. NMFS E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71880 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations also received many suggestions on how to significantly modify the guidance on adequate progress determinations. Response: While NMFS agrees that a stock’s biomass is a relevant factor when making adequate progress determinations, NMFS also emphasizes that there is a strong relationship between Frebuild and biomass trends. Stocks that consistently experience fishing mortality above Frebuild generally experience declining or little increases in biomass, while stocks that consistently experience fishing mortality equal to or below Frebuild generally experience increasing biomass. NMFS plans to work with Councils to actively review available biomass estimates for stocks in rebuilding plans and monitor whether rebuilding stocks are experiencing the expected relationship between Frebuild and biomass. Cases where a stock’s biomass is not increasing, despite catch levels being maintained at or below Frebuild would be unexpected. Such cases would likely trigger the second criteria listed in § 600.310(j)(3)(iv) (i.e., new and unexpected information has significantly changed the rebuilding expectations of the stock). See 80 FR 2796, January 20, 2015. Thus, NMFS is confident that the criteria for adequate progress determinations (see § 600.310(j)(3)(iv) of the final action) address and cover situations where a rebuilding plan fails to properly constrain fishing mortality rates as well as situations where a rebuilding stock’s biomass is failing to increase. NMFS believes that further prescriptive guidance on adequate progress determinations is not needed in the NS1 guidelines. Comment 54: Some commenters opposed § 600.310(j)(3)(v) of the proposed action. Commenters felt it would allow the same rebuilding parameters to be used for an indefinite period of time past the original rebuilding timeframes as long as adequate progress is not found. Commenters stated that the provision is a ‘‘set it and forget it’’ policy that gives no incentive to revisit a stock’s Frebuild even if Frebuild was initially overestimated and/or the stock’s biomass is not making progress toward reaching Bmsy due to environmental stressors or other factors. Commenters recommended several revisions that encourage Councils to periodically assess whether their rebuilding plan parameters are adequate to rebuild the stock in the length of time mandated by Congress. Response: As highlighted in the National Research Council report on rebuilding (NRC 2013), the primary VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 objective of a rebuilding plan should be to maintain fishing mortality at or below Frebuild. By doing so, managers can avoid issues with updating timelines that are based on biomass milestones, which are subject to uncertainty and changing environmental conditions that are outside the control of fishery managers. Thus, the final action includes language to clarify that the NS1 guidelines recommend Councils maintain F rates at Frebuild when implementing a rebuilding plan, unless the Secretary finds that adequate progress is not being made. NMFS disagrees that § 600.310(j)(3)(v) allows original rebuilding timeframes to be used indefinitely. The final action gives the Secretary specific criteria to use when evaluating rebuilding plans for adequate progress every 2 years, which prevents rebuilding timeframes from continuing indefinitely without adequate progress towards rebuilding. Councils must develop and implement a new or revised rebuilding plan within two years of a determination that adequate progress is not being made. 16 U.S.C. 1854(e)(7). Comment 55: Commenters requested more stringent guidance for Councils with stocks that have not been rebuilt by Tmax. Some commenters recommended NMFS replace ‘‘Tmax’’ with ‘‘Ttarget’’ in § 600.310(j)(3)(vi) of the proposed action because Ttarget is the specified time period for rebuilding a stock that is considered to be in as short a time as possible and therefore is the reference point that is required to be met by the MSA. Commenters also recommended that the guidelines require F to be lowered in situations where a stock reaches Tmax (or Ttarget) without having been rebuilt. Commenters suggested that the guidance contained in § 600.310(j)(3)(vi) should also apply to stocks where the Secretary finds that adequate progress is not being made. Two commenters recommended striking ‘‘or the Secretary finds that adequate progress is not being made’’ from the provision to avoid ‘‘resetting the clock’’ and potentially relaxing rebuilding parameters. Response: NMFS believes that use of Tmax in § 600.310(j)(3)(vi) gives Councils appropriate guidance in cases where a stock is not rebuilt by Tmax. As explained in response to comment 54, the primary objective of a rebuilding plan is to maintain Frebuild. Thus, NMFS believes that requiring that F does not exceed Frebuild or 75 percent of the MFMT, whichever is lower, is an appropriate approach. See e.g., response to comment 85, 74 FR 3200, January 16, 2009 (addressing similar comments). However, Councils should consider a lower mortality rate in light of the PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 MSA’s goal to rebuild stocks in as short a time as possible (i.e. Ttarget). Finally, MSA section 304(e)(7)(B) requires the Secretary, upon notifying a Council that adequate progress is not being made, ‘‘to recommend further conservation and management measures which the Council should consider . . .’’ Such recommendations may include, but are not limited to, rebuilding measures similar to those in § 600.310(j)(3)(vi) (e.g., maintaining Frebuild or 75 percent of MFMT, whichever is lower). The phrase within § 600.310(j)(3)(vi)—‘‘or the Secretary finds that adequate progress is not being made’’—is appropriate because MSA section 304(e)(7) requires a Secretarial review of rebuilding plans at least every two years to determine adequate progress. Even if a stock or stock complex has not rebuilt by Tmax, a rebuilding plan is still in place, and if the Secretary finds that adequate progress is not being made, further action may be required to revise the plan. Emergency Actions and Interim Measures Comment 56: Several commenters expressed concern with the proposed deletions and revisions in § 600.310(j)(4) addressing emergency rules and interim measures that are authorized under MSA sections 304(e)(6) and 305(c). Some interpreted the proposed deletions as limiting NMFS’ authority under MSA section 305(c). Others were concerned that the limitations imposed on the use of the authority under MSA section 304(e)(6) to reduce, but not end, overfishing were overly restrictive. Finally, one commenter requested that NMFS’ final guidance allow for interim measures or emergency rules that are 2, rather than 1 year in duration to better align with time lines under MSA section 304(e). Response: For streamlining purposes, as discussed in the preamble to the proposed action, NMFS is deleting text under § 600.310(j)(4) that simply repeats language in MSA section 305(c). The deletions have no effect on authority set forth in MSA section 305(c). NMFS notes that it has a separate policy on emergency rules (see NMFS Policy Directive 01–101–07, Policy Guidelines on the Use of Emergency Rules, 62 FR 44421, August 21, 1997). Because the NS1 guidelines include extensive guidance on rebuilding plans and the implementation of MSA section 304(e), NMFS believes it is appropriate to provide guidance in the NS1 guidelines regarding MSA section 304(e)(6), which authorizes the Secretary to implement interim measures to reduce, but not necessarily end, overfishing. E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations The limitations imposed by this final action on the Secretary’s use of MSA section 304(e)(6) were adopted as a means of reconciling the new mandate in the 2007 revisions to the MSA to ‘‘end overfishing immediately,’’ 16 U.S.C. 1854(e)(3)(A), and the provision in MSA section 304(e)(6) that allows for some reduced level of overfishing while a rebuilding plan is developed. Noting the tension between these two provisions, NMFS strove to find a way to give effect to 304(e)(6) without undermining Congress’s explicit direction in 304(e)(3)(A). Because 304(e)(6) grants discretionary authority, NMFS is well within its authority to adopt limitations on its application in order to avoid undermining the agency’s other competing obligations under the statute. The final action requires three conditions before the Secretary uses section 304(e)(6) authority to allow overfishing to occur. First, interim measures taken under section 304(e)(6) must be necessary to address an unanticipated and significantly changed understanding of the status of the stock or stock complex. This ensures that action is taken to address either (1) a new overfished determination or (2) a failure of a rebuilding plan that has resulted, not from clear management failures (i.e., overfishing), but from an unanticipated change in understanding of the stock that has rendered the existing management plan inadequate. Second, ending overfishing immediately must be expected to result in severe social and/or economic impacts to a fishery. This condition ensures that overfishing is only permitted in order to prevent serious negative consequences for the fishery. Third, interim measures must ensure that the stock or stock complex will increase its current biomass through the duration of those measures. In the context of the rebuilding provisions as a whole, MSA section 304(e)(6) suggests that the Secretary’s obligation is to take action that would permit the Council time to develop measures that will rebuild the fishery. 16 U.S.C. 1854(e)(6) (allowing action ‘‘[d]uring the development of a [rebuilding plan]’’). Inherent in that provision is the assumption that the Secretary’s actions will not worsen the current situation for the fishery, and will be a part of rebuilding the fishery. Thus, it was appropriate to require that any actions taken under this provision ensure that the fishery will increase its current biomass through the duration of the interim measures. Finally, NMFS cannot extend the effective length of emergency rules and interim measures to 2 years. While MSA VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 section 304(e)(3) provides 2 years to develop or revise a rebuilding plan, MSA section 305(c) specifies that an emergency rule or interim measure shall remain in effect for not more than 180 days after publication, and may be extended by publication in the Federal Register for one additional period of not more than 186 days. 16 U.S.C. 1855(c)(3)(B). Section 304(e)(6) does not change the duration of actions under section 305(c), and in fact, explicitly requires that action taken under 304(e)(6) be done ‘‘under section 305(c).’’ Id. 1854(e)(6). Discontinuing Rebuilding Plans Comment 57: Many commenters supported the additional provision in § 600.310(j)(5) that allows rebuilding plans to be discontinued for stocks that are later determined to have not been overfished in the year of the original overfished determination (but are not yet above Bmsy). Commenters recommended that the discontinuation of rebuilding plans that meet the criteria within § 600.310(j)(5) should be mandatory and that Management Strategy Evaluations (MSEs) should be used to prevent establishment of unnecessary rebuilding plans. In contrast, some commenters expressed concern that this provision would move away from a precautionary approach to rebuilding stocks and achieving OY. Specifically, commenters expressed concerns that this provision will encourage assumptions in a stock assessment model to be changed in order to achieve a desired outcome (e.g., that the stock was never overfished and meets the criteria within § 600.310(j)(5)). Other commenters opposed the provision because the rebuilding plan might still be useful to achieving OY even if the stock is not technically overfished, ‘‘especially if the stock is in limbo between 51 percent of Bmsy and 100 percent of Bmsy.’’ Response: Discontinuing a rebuilding plan based on new information is an option a Council may choose to use in order to alleviate negative impacts on fishery participants due to reduced landings of a stock (or reduced landings of other stocks in mixed-stock fisheries) where new information has shown that the stock was not overfished in the year it was determined to be overfished, nor in subsequent years. NMFS highlights that the provision does not require discontinuing a rebuilding plan that meets the criteria within § 600.310(j)(5), and NMFS does not believe it is appropriate to mandate discontinuation. As discussed in the preamble to the proposed action, a Council may always opt to continue following the rebuilding PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 71881 plan to further the conservation and management needs of a stock or stock complex that remains below Bmsy, because such action is consistent with the MSA’s objective that fisheries produce MSY on a continuing basis. See 80 FR 2796–98, January 20, 2015. Furthermore, NMFS agrees that additional decision-making tools that increase the accuracy of stock status determinations, such as MSEs, are beneficial. However, NMFS believes that, while the implementation of these tools is feasible within the current NS1 guidelines, the benefits of using such tools should be evaluated on a case-bycase basis and, therefore no further guidance on such decision-making tools is necessary. Section 600.310(j)(5) allows Councils to be responsive to the best scientific information available while managing stocks to meet MSA mandates, including NS1’s requirement to prevent overfishing while achieving OY on a continuing basis. The provision does not interfere or conflict with MSA conservation mandates because a Council may only discontinue a plan when new information shows the stock was not overfished in the year it was originally determined to be overfished, nor in subsequent years. NMFS disagrees that management action under this provision will encourage assumptions in stock assessment models to be changed, because assumptions within a stock assessment model are based on the best scientific information available. See § 600.315. Comment 58: Commenters expressed concern that the proposed criteria in § 600.310(j)(5) only requires a stock to have not been overfished in the year the overfished determination was based on. If the stock was—in light of new information—overfished not in the year of the original overfished determination, but rather a year just prior to or just after that year, commenters argued that rebuilding plans would still be necessary and discontinuing the rebuilding plan would be inappropriate. Commenters suggested changes to the guidelines to prevent discontinuation of rebuilding plans for stocks that are shown not to have been overfished in the year of the original overfished determination, but are shown to have been overfished in subsequent years. One commenter also expanded this suggestion to include ‘‘any of the five years prior to the original overfished determination.’’ Response: NMFS agrees that new information in support of discontinuing a rebuilding plan must demonstrate that the stock is currently not below its MSST, was not overfished in the year of E:\FR\FM\18OCR3.SGM 18OCR3 71882 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 the original determination, and was not overfished in subsequent years. NMFS has revised the guidelines accordingly. See § 600.310 (j)(5) of final action. The final action deletes proposed text that states that the ‘‘biomass of the stock is not currently below the MSST,’’ as this consideration is covered in the revised text. If new information demonstrates that a stock was not overfished in the year of the original overfished determination, but instead overfished in a subsequent year, a rebuilding plan is still necessary and the rebuilding timeframes should be adjusted accordingly. NMFS disagrees with the suggestion that the provision should also include ‘‘any of the five years prior to the original overfished determination.’’ NMFS does not believe it has a scientific basis to specify a particular number of years prior to an original overfished determination where the discontinuation of a rebuilding plan would be inappropriate in all cases and for all Federally-managed stocks and stock complexes. Discontinuing a rebuilding plan based on new information for a stock that was not overfished in the original year of the overfished determination, but was overfished in a subsequent year would not have the same repercussions on a stock as stocks that have not been overfished in subsequent years. See 600.310(j)(5) of the final action. In the latter case, the stock is unlikely to be experiencing an overfished trend (i.e., the stock was not overfished in the original determination year, nor in any of the subsequent years and is not currently overfished). Furthermore, as described in comment 57, the discontinuation of a rebuilding plan is an optional tool for managers. A Council may always opt to continue following rebuilding plans, in light of the conservation and management needs of the stock and FMP objectives. Other Comments on Rebuilding Comment 59: NMFS received several comments on rebuilding plans in general. One commenter requested that the guidelines explicitly encourage Councils to use rebuilding measures beyond catch limits if they are appropriate (e.g., gear and effort limits). Other commenters expressed concern that the guidelines retain a minimum acceptable probability of 50 percent that management measures will rebuild the stock within the ‘‘maximum allowable rebuilding time’’ and recommended that the guidelines increase this threshold. NMFS also received requests for additional guidance on how to evaluate and incorporate consideration of VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 environmental conditions within rebuilding timeframes. Response: Councils must specify ACLs and AMs for all federally managed stocks, including stocks within rebuilding plans. 16 U.S.C. 1853(a)(15). As described in § 600.310(g), Councils may use accountability measures other than catch limits at their discretion (e.g., gear restrictions, spatial and/or temporal restrictions, bag limits). As discussed in the preamble to the final 2009 NS1 Guidelines (see 74 FR 3196, January 16, 2009), NMFS stated at that time that the 50 percent probability is a lower bound and not a default value. Thus, if the management measures within a rebuilding plan have a 50 percent probability of achieving rebuilding by Ttarget, the probability that the management measures will achieve rebuilding by Tmax is greater than 50 percent. When selecting management measures within a rebuilding plan, Councils should analyze a range of alternatives and select from among the measures that have an appropriate probability of rebuilding by Ttarget. After considering public comment, NMFS does not believe that prescribing a specific probability greater than 50 percent is appropriate for several reasons. See, e.g., response to comment 86, 74 FR 3200, January 16, 2009 (addressing similar comments). One reason is that fisheries are diverse and the ecological, social, and economic impacts of managing at a specific probability will differ depending on the characteristics of the fishery. Finally, when specifying a Ttarget that is as short as possible, the guidelines clearly state that Councils may take the ‘‘interaction of the stock within the marine ecosystem’’ into account, thus allowing Councils to account for environmental conditions within rebuilding timeframes. See § 600.310(j)(3)(i). Recreational Fisheries Comment 60: Commenters encouraged providing flexibility to consider the objectives of the recreational and commercial sectors differently. Additionally, some commenters requested that if NMFS emphasizes recreational objectives in FMPs, that formal, specific, and separate definitions are provided for the private angler and for hire sectors as those sectors have different objectives. Commenters also cautioned that NMFS must control the impacts of recreational fishing and stressed that the same scrutiny and accountability must be applied to both the commercial and recreational sectors. Other commenters raised concerns about the impact of limited data PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 availability on management of the recreational sector, noting a disconnect between the state of recreational fisheries data collection and management. One commenter suggested that NMFS develop a methodology for calculating the mortality on all forage fish attributable to the recreational sector and develop a better understanding of the role of forage fisheries that supply bait for the recreational fishing industry. Response: NMFS agrees that flexibility should be afforded to Councils to take actions that reflect the differences between the commercial and recreational sectors and that all sectors should be adequately controlled to prevent overfishing. NMFS in § 600.305(b) directs Councils to reassess the objectives of the fishery on a regular basis so that all impacted sectors— recreational and commercial—can work with the Councils to ensure that their sector-specific objectives are adequately reflected in the FMPs. NMFS does not believe that it is necessary to formally define the private angler and for hire sectors as the specific composition, needs, and objectives of recreational sectors will differ across regions. NMFS does not state in this final action what specific objectives of fishing sectors to consider; instead NMFS merely requires that Councils consider and incorporate the objectives of sectors that are impacted by their FMPs. As discussed in the preamble to the proposed action, NMFS did not propose recreational-specific provisions in the guidelines. Instead, NMFS chose to highlight how various flexibility provisions that were proposed could be used to address needs raised by the recreational community. These flexibility provisions, such as conditional AMs, are universally applicable and not limited to the recreational sector. Also, in the 2009 revisions to the guidelines, the use of sector-ACLs and corresponding AMs and ACTs were discussed as an option for Councils should they decide that fishing sectors require different types of management strategies and measures. NOAA’s Marine Recreational Information Program is continuously working to improve how it collects, analyzes, and reports information. Recent improvements include the 2013 implementation of the Access Point Angler Intercept Survey that removes sources of potential bias from the sampling process. More information about data collection improvements is located at http://www.st.nmfs.noaa.gov/ recreational-fisheries/MRIP/makingimprovement. NMFS continues to E:\FR\FM\18OCR3.SGM 18OCR3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 support research on the needs of the recreational fishery industry, including the need for enough forage fish to provide for healthy recreational fish species, and believes the NS1 guidelines provide adequate flexibility to reflect the results of such research as appropriate. National Standard 3 Comment 61: One commenter suggested that NMFS require that the analysis discussed in § 600.320(e) be specified in the documents that support the FMP (Environmental Assessments, Regulatory Impact Reviews, etc.) rather than in the FMP itself to avoid excessively long FMPs. Another commenter felt that the proposal to delete language stating that the aforementioned analysis is required to document that an FMP ‘‘is as comprehensive as practicable’’ (see § 600.320(e) of proposed action) weakens the NS3 guidelines and contravenes the precautionary approach to management contained in the MSA. The commenter suggested keeping the language and replacing ‘‘practicable’’ with ‘‘possible’’ as a way to strengthen it. The same commenter, while acknowledging that the purpose of NMFS’ proposed deletion of the list of factors in § 600.320(d)(1) was for streamlining purposes, requested that the ecological factor be retained because it is important to manage species that are associated with the same ecosystem or dependent on similar habitat. Another commenter opposed the proposed change to § 600.320(d) that used the phrase ‘‘stocks in the fishery management unit’’ because the issue of stocks in need of conservation and management is addressed with different language in § 600.305 of the proposed action. Response: NMFS agrees that FMPs should not be excessively long but believes it is important that the analysis required in § 600.320(e) be contained in the FMP. This analysis enables both NMFS and the public to understand decisions made by a Council to implement NS3. The specific requirements of § 600.320(e) are all necessary steps in an analysis to determine how to manage an individual stock of fish as a unit (e.g., range and distribution of stocks, management activities of adjacent states, etc.). Without providing this analysis, NMFS would be unable to determine under MSA 304(a) whether the FMP is consistent with NS3. NMFS does not agree with the need to retain the ‘‘as comprehensive as practicable’’ language in § 600.320(e). VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 The deletion of this language from the guidance does not change the requirements of the guidelines; Councils still ‘‘should include’’ the information contained in § 600.320(e)(1)–(4). Although NMFS agrees that ecological similarity is an important factor in determining an appropriate management unit, retaining the specific language that slightly expands on the ecosystem factor is not necessary. The final action retains language that establishes that biological, geographic, economic, technical, social, and ecological perspectives are all valid considerations when organizing a management unit based on the FMP’s objectives. See § 600.320(d)(1). NMFS does not believe that the deleted text (explaining that ecological perspectives could be based on species that are associated in the ecosystem or are dependent on a particular habitat) adds much value or guidance. NMFS agrees that the issue of whether a stock requires conservation and management is adequately addressed in § 600.305 and thus, NMFS has deleted the last sentence of § 600.320(d) to avoid any potential confusion. See § 600.320(d) of final action. As NMFS explained in the proposed action, a Council, by determining that a stock should be included in a management unit, has determined that said stock is in need of conservation and management. See 80 FR 2789, January 20, 2015. National Standard 7 Comment 62: Some commenters suggested retaining the text that NMFS proposed deleting at § 600.340(b). They argued that the text: Speaks to the need to weigh the benefits and costs of management; acknowledges the reality that management resources are limited and must be prioritized; and made it clear that management is not always necessary. One commenter felt the deletion of the language required all species to be under an FMP even if there is little benefit, high costs, and federal management would fail to serve a useful purpose. Other commenters felt that the deletion of the section was warranted because the relevant factors in the section have been incorporated into the new conservation and management framework in § 600.305(c) of the proposed action. Another commenter recommended that § 600.340(c) of the proposed action be revised so that an evaluation of benefits and costs is limited to situations where alternative management measures are being considered, as opposed to FMPs justifying their own existence. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 71883 Other commenters requested that NMFS add language to the guidelines to note the value of engaging with enforcement agencies to solicit feedback when considering an action’s costs, as directed under NS7. Response: NMFS believes that § 600.305(c) of the final action (regarding stocks that require conservation and management) eliminates the need for the language that was deleted in § 600.340(b). Its deletion does not mean that all species, regardless of costs and benefits, must be included in an FMP—in fact § 600.305(c)(1) explicitly states that ‘‘[n]ot every fishery requires federal management.’’ MSA section 302(h)(1) only requires a Council to prepare an FMP for each fishery under its authority that requires (or in other words, is in need of) conservation and management. National Standard 7 requires that for those stocks determined to be in need of conservation and management and therefore included in an FMP, Councils should develop conservation and management measures that, where practicable, minimize costs and avoid unnecessary duplication. 16 U.S.C. 1851(7). The language retained in the final NS7 guidelines, which was not changed by this action, explains how to implement this requirement through supporting analyses for FMPs. Such analyses should demonstrate ‘‘real and substantial’’ benefits of fishery regulation, taking into account the added research, administrative, and enforcement costs, as well as costs to the industry for compliance. See § 600.340(c). NS7 applies to all stocks determined to be in need of Federal management. Thus, the supporting analysis described in § 600.340(c) is needed for all stocks that require Federal management, not just for stocks that are managed using alternative measures. NMFS agrees that enforcement costs are an important consideration, which is why they are noted for consideration several times in the NS7 guidelines. Certainly one way to acquire information about these costs would be to engage directly with enforcement agencies, but NMFS does not believe that the guidelines should mandate such engagement. Forage Fish and Other Ecosystem Considerations Comment 63: NMFS received many comments that the proposed action missed an opportunity to take a more transparent and comprehensive approach to incorporating EBFM into the NS1 guidelines, especially within the context of OY. One commenter E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71884 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations requested additional guidance on how to incorporate ecological factors into OY and ACL specifications. Response: NMFS supports the implementation of EBFM. In that vein, NMFS proposed several revisions to the NS1 guidelines to facilitate the incorporation of EBFM into U.S. federal fisheries management, including the concept of using aggregate MSY estimates. EBFM is a developing scientific field, and NMFS believes that implementation of EBFM management strategies is feasible within the current NS1 guidelines framework, especially in light of the revisions NMFS has made. See 80 FR 2790, January 20, 2015. Pursuant to MSA section (3)(33), OY is prescribed on the basis of MSY as reduced by ecological, economic, and social (‘‘EES’’) factors. The NS1 guidelines set forth examples of different considerations for each factor, and NMFS believes the examples provide sufficient guidance on how to apply these factors when setting OY. See § 600.310(e)(3)(iii)(B) of the final action. NMFS agrees with the commenter that clarification of the relationship between OY and ACL is necessary, and for that reason added a new section (§ 600.310(f)(4)(iv) of the final action) to the guidelines, which explains that ACLs (or ACTs) can be reduced from the ABC based on OY considerations. Section 600.310(f)(4)(iv) of the final action also clarifies that EES trade-offs may be evaluated when determining the risk policy for an ABC control rule. NMFS does not believe that further guidance on this issue is necessary. Comment 64: One commenter requested more guidance on how ‘‘prevailing’’ is meant to be interpreted in the context of the environmental and ecological conditions that are taken into account when specifying a stock’s MSY. See § 600.310(e)(1)(i)(A). Response: The MSY definition is unchanged from the 2009 NS1 Guidelines. As explained in the preamble to the final 2009 guidelines, NMFS believes that ecological conditions and ecosystem factors should be taken into account when specifying MSY. See e.g., response to comment 24, 74 FR 3187, January 16, 2009 (addressing similar comments). Accordingly, the definition of MSY refers to the ‘‘prevailing ecological, environmental conditions,’’ which requires Councils to consider what the existing ecological and environmental conditions of the fishery are at the time that MSY is specified, as those conditions may impact the level of catch or yield specified. VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 Comment 65: NMFS received many comments requesting additional guidance on the management of forage fish. One commenter opposed alternative management strategies for forage fish and instead called for more robust stock assessments for forage fish so that the existing framework for adaptive management can be used. Another commenter opposed the discussion of maintaining forage fish biomass higher than Bmsy in the section of the guidelines that discuss considerations for specifying OY. See § 600.310 (e)(3)(iii)(B)(3) of proposed action. Response: NMFS agrees that forage fish are important to both fisheries and the marine ecosystem. However, as stated in the proposed action, NMFS did not propose any new revisions to the NS1 guidelines related to forage fish, as the importance of forage fish to fisheries and the marine ecosystem was adequately highlighted in the 2009 revisions to the NS1 guidelines. See 80 FR 2798, January 20, 2015. For example, in § 600.310(e)(3)(iii)(A)(3), NMFS notes that maintaining adequate forage for all components of the ecosystem is one consideration that should be weighed and given serious attention when determining the greatest benefit to the Nation, and accordingly, determining the EES factors used to obtain OY. Additionally, the current guidelines state that, consideration should also be given to managing forage stocks for a higher biomass than Bmsy to enhance and protect the marine ecosystem when specifying OY. NMFS did not change these concepts within the guidelines. With regard to the comment requesting that ‘‘alternative management strategies’’ for forage stocks (i.e., maintaining forage above Bmsy) be removed, NMFS notes that the text is only a suggested consideration as part of the ecological factors a Council may consider when specifying OY. Councils are free to manage forage fish species under status quo management strategies, as long as those strategies are consistent with the National Standards and other applicable provisions of the MSA. Furthermore, NMFS disagrees that the discussion of forage fish biomass is misplaced in the discussion of OY specifications. Managing forage stocks for higher biomass than Bmsy to enhance and protect the marine ecosystem is a valid ecological consideration for determining OY. Comment 66: Several commenters requested that the guidelines give additional guidance on how Councils should use an ecosystem-based approach to manage stocks impacted by environmental stressors such as climate PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 change, ocean acidification, pollution, etc. Some also provided suggestions to address these issues within the guidelines. One specific example was a request for more guidance on how Councils should manage a fish stock that moves from one Council’s jurisdiction to another due to the impacts of climate change. Response: NMFS believes that the existing NS1 guidelines support an adaptive, science-based approach to responding to changes in environmental conditions. Furthermore, as stated in § 600.305(b)(2) of the final action, NMFS has instructed Councils to manage their fish stocks according to the changing needs of the fishery, which would encompass necessary management adjustments in response to changing environmental conditions. Finally, the National Standard 3 guidelines address the case where a stock moves between Council jurisdictions. The guidelines state that the entities involved should coordinate during the development of an FMP and, if a stock’s range covers multiple Council areas, the preferred approach is to establish one FMP that covers the stock’s entire range. See § 600.320(c) of the final action. Other Comments Comment 67: One commenter felt that the phrase ‘‘including section 304(e) of the Magnuson-Stevens Act’’ in § 600.310(k) should be deleted because it is directing Councils to consider a section of the MSA (i.e., MSA section 304(e)—rebuilding overfished fisheries) that is expressly excluded from the MSA 304(i) process. Response: NMFS did not propose changes to § 600.310(k), as adopted in the 2009 NS1 Guidelines, because NMFS believes that it is valid and valuable to consider MSA 304(e) when developing recommendations to the Secretary of State for international actions that will end overfishing. MSA section 304(i) was added in the 2007 reauthorization of the MSA as part of several significant new requirements regarding international fisheries. Consideration of the principles that guide domestic rebuilding does not mean that NMFS will seek to impose those requirements on fisheries that are not subject to MSA 304(e). NMFS believes that the experience gained domestically in applying MSA section 304(e) may be valuable when addressing rebuilding of stocks that experience international fishing pressure. Thus, the guidelines merely direct Councils to consider section 304(e) and other relevant MSA provisions. NMFS notes that, for highly migratory species, MSA E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations section 102(c) provides for promotion of MSA provisions in international or regional fisheries organizations, when such organizations do not have a process for developing rebuilding plans. Comment 68: One commenter suggested that § 600.305 of the proposed action include language that identifies differences in application of the guidelines to internationally managed stocks and that identifies management entities under the umbrella of the term ‘‘Secretary’’ other than Regional Fishery Management Councils. This language would help clarify how the NS guidelines are applied. They felt that this would help clarify that the Highly Migratory Species Management Division does not establish SSCs and that Regional Fishery Management Councils must establish SSCs. Response: The statute is clear as to what provisions apply to internationally- or Secretariallymanaged stocks and what provisions pertain specifically to the Councils. For example, sections 302 and 304(a)–(b) address the Council process and Secretarial review of Council-adopted FMPs and proposed regulations. Section 304(g) sets forth the requirements for Secretarial development of an FMP for Atlantic highly migratory species, and section 304(c) provides for Secretarial development of FMPs under other circumstances. Section 304(i) details actions the Secretary is required to take when the Secretary determines a fishery is overfished or approaching a condition of being overfished due to excessive international fishing pressure. NS1 and other MSA requirements apply to all FMPs whether developed by the Council or Secretary. Moreover, this final action (which is unchanged from the 2009 NS1 Guidelines) explicitly states that the Secretary is included within the term ‘‘Council’’ when the term is used in the context of section 304(c) and (g) of the Magnuson-Stevens Act (where applicable). See § 600.305(d)(10). Comment 69: Many commenters expressed concern regarding the deletion of what they considered ‘‘plainlanguage guidance’’ without adequate rationale. They believe the ‘‘plainlanguage guidance’’ provides useful guidance to managers and more certainty in the complicated area of fishery management with the result being greater compliance with the MSA. Several examples were cited. Some commenters felt that deletions of the phrase ‘‘based on the best science available’’ throughout the proposed action creates ambiguity and decreases the importance of sound science in decision-making. One commenter VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 specifically pointed to the removal of the reference to the best scientific information available in § 600.310(e)(1)(v) of the proposed action, remarking that NMFS provided no explanation for deleting the reference to this statutory requirement when specifying MSY. Another commenter did not agree with the deletion in § 600.310(b)(3) of the proposed action of the phrase ‘‘intended to avoid overfishing and achieve sustainable fisheries’’ within the description of ACLs and AMs. The commenter felt that no reason was provided for deleting this language. One commenter said ‘‘the most glaring example’’ of deleting plainlanguage guidance is the removal of the last sentence of § 600.310(j)(2)(ii) regarding rebuilding plan requirements for stocks that are overfished and for which overfishing is occurring. The commenter felt this language was important because it ensures compliance with the Act and clearly states the mandate in 16 U.S.C. 1854(e)(3)(A) to end overfishing ‘‘immediately.’’ Response: NMFS agrees with the commenters that providing guidance in a clear fashion is important, and eliminating unnecessary repetition and streamlining the text of the guidelines facilitates that. NMFS proposed to delete the phrase ‘‘based on the best scientific information available’’ in § 600.310(e)(1)(v) to avoid unnecessary repetition, as this is a statutory requirement under NS2. Furthermore, the point is made in § 600.305(e)(1) of the final action, which establishes that NS2 applies directly to the management measures and reference points that are needed to implement NS1. However, this final action will retain the text in § 600.310(e)(1)(v) to emphasize the importance of using the best scientific information available in calculating MSY. Although several commenters noted that the phrase ‘‘based on the best scientific information available’’ was deleted ‘‘throughout the proposed rule,’’ the other deletions occurred in sections that were either replaced in new sections or were not substantive. The deletion in § 600.310(b)(3) of the language ‘‘intended to avoid overfishing and achieve sustainable fisheries’’ was proposed to streamline the text. NS1 requires preventing overfishing and achieving OY, so the limits and accountability measures being discussed in § 600.310(b)(3) logically pertain to avoiding overfishing and achieving sustainable fisheries. NMFS does not believe that the deletion will lead to any confusion or change the intended meaning of this section. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 71885 The deletion of the last sentence from § 600.310(j)(2)(ii) was also proposed to avoid repetition and because it was not pertinent given the purpose of this subsection. As the commenter noted, this sentence is repeating what 16 U.S.C. 1854(e)(3)(A) already commands—to end overfishing immediately and rebuild affected stocks. Furthermore, § 600.310(j)(2) addresses the ‘‘Timing of actions’’ with regards to an overfished fishery. Thus, this subsection is mainly about when the Councils must take certain actions. The last sentence that was deleted from § 600.310(j)(2)(ii) was not pertinent to the purpose of this subsection because it prescribed the actions to take to address an overfished fishery. Due to the focus of this subsection on timing and because the language to be deleted is stated clearly in the statute, this final action deletes the text from the end of § 600.310(j)(2)(ii), as proposed. Comment 70: One commenter expressed concern that the proposed change to § 600.310(b)(1)(ii) and the proposed addition of § 600.305(c)(1) result in a circular logic when the two are read together. The commenter asked, if a determination that a stock is overfished or undergoing overfishing is relevant to the determination that a stock requires conservation and management, how can the guidelines limit the application of SDCs to only stocks that have already been determined to require conservation and management? Response: NMFS does not agree that there is a ‘‘circular logic’’ concern with the two provisions. First, a stock may be found to be overfished or subject to overfishing based on the best scientific information available, despite no prior specification of SDCs for the stock. See comment 16 (addressing similar comments). In such case, if the stock was predominantly caught in Federal waters, it must be included in an FMP. See § 600.305(c)(1). Second, as discussed in response to comment 5, stocks that require conservation and management are not limited under § 600.305(c)(1) to stocks that are overfished, subject to overfishing, or likely to become so. Thus, a Council may determine that a stock is in need of conservation and management, even if it is not overfished or subject to overfishing, based on consideration of one or more of the factors under § 600.305(c)(3). Furthermore, while SDCs are required to monitor the status of stocks or stock complexes in an FMP (see § 600.310(e)(2)(ii)), Councils may monitor other stocks (e.g., EC species) for a variety of reasons. Through monitoring, a non-managed stock may E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71886 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations be found to be overfished or subject to overfishing based on the best scientific information available, despite no prior specification of SDCs for the stock. In such case, a Council would take appropriate action per § 600.305(c). Comment 71: One commenter felt that the guidance on how to address shortterm versus long-term environmental changes should be revised given the uncertainty surrounding the cause/effect relationship between environmental factors and fish stock abundance. This commenter said that § 600.310(e)(2)(iii)(B) is too rigid in requiring a re-specification of SDC, given that the magnitude and interconnectedness of the relationship between environmental factors and fish stock abundance is so uncertain. Also, the commenter states that the addition of ‘‘ecosystem or habitat’’ to § 600.310(e)(2)(iii)(B) increases the ways that a Council could misinterpret this subsection and justify not lowering fishing mortality as long as the effects are long-term, regardless of how uncertain the cause/effect relationship. The commenter also believes that the language in § 600.310(e)(2)(iii)(B) is redundant because existing MSY guidance already suggests re-estimating SDC when conditions change or there is new information. Another commenter appreciated the attention given to environmental and ecological considerations but believed differentiating between short-term and long-term effects will take too long given the time sensitive economic realities of a fishery. The commenter suggested defining what are ‘‘prevailing ecological, environmental conditions’’ in the definition of MSY, and how and in what specific time frame those conditions are to be accounted. Response: Section 600.310(e)(2)(iii) is a longstanding provision of the NS1 guidelines. See 74 FR 3178, January 16, 2009 (discussing provision in response to comment 30 in the final 2009 NS1 Guidelines). The requirements of NS2, that conservation and management measures be based on the best scientific information available, apply to the establishment of SDC. Therefore, in cases where changing environmental conditions alter the long-term reproductive potential of a stock, the SDC must be modified. As stocks and stock complexes are routinely assessed, long-term trends are updated with current environmental, ecological, and biological data to estimate SDCs. NMFS believes § 600.310(e)(2)(iii) continues to allow for accounting for variability in both environmental changes and variation in a stock’s biological reaction to the environment. VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 The guidelines include language requiring a high standard for changing SDC that is consistent with NMFS technical guidance (Restrepo et al. 1998). NMFS outlines the relationship of SDC to environmental and habitat change in both the short and long-term in § 600.310(e)(2)(iii) of the final action. Total mortality of fish includes many factors other than fishing mortality. Short-term environmental changes may alter the size of a stock or complex, for instance, by episodic recruitment failures, but these events are not likely to change the reproductive biology or reproductive potential of the stock over the long-term. Thus, in such cases, a Council should not change the SDC. Other environmental, ecosystem, or habitat changes, such as some changes in ocean conditions, can alter both a stock’s short-term size, and alter longterm reproductive biology. To respecify the SDC, Councils should indicate how such changes impact the stock’s longterm reproductive potential and must provide an analysis, based on the best scientific information available, of how the SDC were chosen and how changes to the SDC impact the stock’s long-term reproductive potential. See § 600.310(e)(2)(ii), (iii)(B), (iv). In all cases, fishing mortality must be controlled so that overfishing is prevented. The language in § 600.310(e)(2)(iii)(B) is not redundant because it clarifies how to treat different kinds of environmental and habitat change when considering whether to respecify the SDC. Furthermore, NMFS believes distinguishing between short-term and long-term environmental changes is needed in order to determine whether respecifying the SDC is necessary. Finally, while ‘‘prevailing’’ in the context of § 600.310(e)(1)(i)(A) indicates the existing ecological and environmental conditions of the fishery at the time MSY is specified, the guidance also clarifies that MSY should be re-estimated as required by changes in long-term environmental or ecological conditions (§ 600.310(e)(1)(v)(A) of the final action). See response to comment 64 for further explanation of ‘‘prevailing . . . conditions.’’ Comment 72: One commenter asked if the guidelines could recommend a multi-year definition of overfished where, if stock biomass falls below MSST, a second stock assessment is required within a set number of years, and other risk-averse management measures are required in the interim. The commenter also stated that the commitment to rebuild overfished PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 stocks to 100 percent of Bmsy does not make biological sense. Response: The NS1 guidelines currently define an overfished stock as a stock whose biomass has declined below MSST. See § 600.310(e)(2)(i)(E). If a stock is determined to be overfished, the MSA mandates that a Council prepare an FMP or amendment to end overfishing immediately and rebuild the overfished stock to a level consistent with producing MSY. 16 U.S.C. 304(e)(3). In light of this, NMFS does not believe that a second stock assessment to reaffirm a stock’s overfished status, as recommended by the commenter, would be appropriate. However, NMFS acknowledges that, due to scientific uncertainty in biomass estimates of fish stocks, occasionally a stock that is identified as overfished is later determined to have never been overfished (NRC, 2013). NMFS addresses this issue by allowing a Council to discontinue a rebuilding plan that meets specific criteria. See § 600.310(j)(5). Finally, the longstanding requirement to rebuild overfished stocks to 100 percent of Bmsy is consistent with the MSA. The MSA defines ‘‘overfished’’ with reference to ‘‘the capacity of the fishery to produce the maximum sustainable yield on a continuing basis,’’ 16 U.S.C. 1802(34), and the NS1 Guidelines have long clarified that ‘‘overfished’’ relates to the biomass of a stock or stock complex. See § 600.310(e)(2)(i). Bmsy is defined in the guidelines as the long-term average size of a stock measured in terms of spawning biomass or other appropriate measure of the stock’s reproductive potential that would be achieved by fishing at Fmsy. See § 600.310(e)(1)(i)(C). Because ‘‘overfished’’ is defined in reference to MSY, rebuilding to 100 percent of Bmsy—which is itself defined with reference to MSY—is appropriate and consistent with the MSA. Comment 73: A number of commenters included discussions on the possible reauthorization of the MSA. Some commenters asked that NMFS delay final action on revisions to the NS1 guidelines until after any MSA reauthorization since NMFS will have to again revise and revisit the guidelines based on potential legislative changes. A number of commenters said generally that NMFS’ proposed revisions do not preclude the need to reauthorize the MSA. Commenters also suggested what they would like to see included in the MSA reauthorization and their thoughts on current proposals. Response: While NMFS appreciates the importance of MSA reauthorization and the many valid viewpoints on what should be included, this revision to the E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations NS1 guidelines is separate from MSA reauthorization. The NS1 guidelines do not change the law as these guidelines do not have the force and effect of law (16 U.S.C. 1851(b)). NMFS does not intend to delay these revisions to the NS1 guidelines because it is unclear when any Congressional revisions to the MSA will be finalized. It is important that the clarity and adjustments that this final action provides is in place as soon as possible to improve fisheries management decisions. When MSA reauthorization is concluded and if it contains changes pertaining to the provisions in these guidelines, NMFS will make any necessary revisions. Comments related to what should be included in the MSA reauthorization and thoughts on current legislative proposals before Congress are outside the scope of these NS1 guidelines. Comment 74: NMFS received a number of comments on § 600.310(m), a provision commonly known as the ‘‘mixed stock exception.’’ NMFS did not include any proposed changes to this provision in the notice of proposed rulemaking. Most of the comments were advocating for one of two positions: (1) Removal of the mixed stock exception because it is contrary to the MSA or (2) revision of the mixed stock exception to make it a more useful management tool. Several commenters said that this exception to overfishing is contrary to the MSA mandate to prevent overfishing. Further, since the MSA does not contain any exceptions to overfishing, NMFS cannot create one in its guidance. Other commenters stated that the exception should provide a similar level of flexibility as the proposed phase-in ABC control rules and multi-year overfishing determinations. Some commenters asked for an expansion of the exception to avoid the ‘‘choke stock’’ scenario, whereby a stock in a mixed fishery with low population levels leads to closure or a reduction in catch of another healthier stock to avoid overfishing of the weaker stock. One commenter also proposed returning to NMFS’ earlier definition that merely required that permitted overfishing would not cause any species to require protection under the Endangered Species Act (ESA). See 63 FR 24231, May 1, 1998. Response: While NMFS has chosen in the NS1 guidelines to emphasize the importance of stock-level analyses, NS1 and other MSA provisions refer to preventing overfishing in a ‘‘fishery’’ (16 U.S.C. 1851(a)(1)) and provide for flexibility in terms of the specific mechanisms and measures used to achieve this goal. Thus, the 2009 VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 guidelines retained the mixed stock exception—with some revisions—to provide Councils with needed flexibility for managing fisheries, while ensuring that all stocks in the fishery continue to be subject to strong conservation and management. NMFS continues to believe that the exception should be applied with a great deal of caution, taking into consideration the 2007 revisions to the MSA and other provisions in the NS1 guidelines regarding stock complexes and indicator species. NMFS also believes that Councils should work to improve selectivity of fishing gear and practices in their mixed stock fisheries so that the need to apply the mixed stock exception is reduced in the future. For the above reasons, NMFS does not believe the exception should be expanded. In addition, NMFS does not agree that flexibility similar to the approach taken for phase-in ABC control rules and multi-year overfishing determinations is appropriate. Those provisions address a different issue than the mixed stock exception, specifically, data limitation issues that make it difficult to set overfishing thresholds and determine with certainty if overfishing has occurred. As discussed in the preamble to the final 2009 guidelines, NMFS believes that ESA listing is an inappropriate threshold for application of the mixed stock exception and that stocks should be managed so that they retain their potential to achieve MSY. See 80 FR 3201, January 16, 2009. Accordingly, the guidelines as refined in 2009 and retained in this final action include a higher threshold that limits F to a level that will not lead to the stock becoming overfished in the long term. In addition, if any stock, including those under the mixed stock exception, were to drop below its MSST, it would be subject to the rebuilding requirements of the MSA, which require that the Council take action to ‘‘end overfishing immediately in the fishery’’ and ‘‘rebuild affected stocks of fish.’’ 16 U.S.C. 1854(e)(3)(A). Comment 75: One commenter suggested that EBFM be used to distinguish between ‘‘low-value’’ fish species and ‘‘high-value’’ fish species in order to avoid having to apply the same conservation and management standards to both types of species. The commenter stated that OY is more likely to be attained if the same conservation and management standards do not apply to both types of species. Response: Once stocks are determined to require conservation and management, and thus preparation of an FMP, the measures developed for those stocks under the FMP must comply with PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 71887 applicable MSA requirements and standards. Neither the MSA nor the NS1 guidelines sets forth different conservation and management standards for low- or high-value fish. 16 U.S.C. 1802(5) (defining conservation and management broadly). It would be up to the appropriate Council to determine what the conservation and management needs and objectives are for the particular stocks and to develop measures accordingly, consistent with MSA requirements including NS1’s mandate to prevent overfishing while achieving OY on a continuing basis. 16 U.S.C. 1851(a)(1). NMFS notes that § 600.305(c) of the final action does include consideration of a stock’s economic and ecological value to the fishery (as discussed in comments 5 & 7). Comment 76: Many commenters asked for clarity regarding the relationship of NS1 to the other national standards. The proposed changes to the NS1 guidelines remove the language from § 600.310(l) that the other national standards ‘‘do not alter the requirement to prevent overfishing and rebuild overfished stocks.’’ Commenters felt that this deletion creates ambiguity about the primacy of conservation and cited to NRDC v. Daley, 209 F.3d 747 (D.C. Cir. 2000) and NRDC v. NMFS, 421 F.3d 872 (9th Cir. 2005) as supporting the precedence of NS1. Several commenters included lengthy proposed language for this subsection that emphasizes that conservation supersedes all other requirements in the national standards. Some commenters also felt that the addition, in several sections, of a reference to ‘‘trade-offs’’ could undermine the primacy of conservation. A number of commenters also suggested moving § 600.310(l) to § 600.305 (General section), as that would introduce the national standards at the outset rather than at the end of the NS1 section. Some commenters also suggested modifying subsection § 600.310(l) to state that SSCs ‘‘shall’’ rather than ‘‘should’’ advise their Councils regarding the best scientific information available for fishery management decisions. Finally, several commenters also recommended a change to § 600.305(b) to clarify that fishery management plans resolve conflicting objectives by giving NS1 priority. Response: NMFS agrees with moving the text at § 600.310(l) to the General Section, and has added the text to the new § 600.305(e) in the final action. The ‘‘but do not alter the requirement to prevent overfishing and rebuild overfished stocks.’’ language was deleted because it is already clear from E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71888 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations the MSA, and case law interpreting its requirements, that the other national standards cannot be cited as a reason for failing to prevent overfishing or rebuild stocks. However, NMFS is re-inserting clarifying text to emphasize that National Standard 1 addresses preventing overfishing and achieving optimum yield. NMFS disagrees with the need to eliminate references to ‘‘trade-offs.’’ The references to ‘‘trade-offs’’ properly reflects the delicate balance that Councils must perform in deciding what fishery management practices to implement so that there is compliance with all ten national standards and other MSA requirements. When considering the different means by which the conservation goals of the MSA can be achieved, Councils can consider the potential trade-offs between the national standards. NMFS does not agree with the proposed change from ‘‘should’’ to ‘‘shall’’ with respect to SSC advice to Councils. The MSA specifies at 16 U.S.C. 1852(g)(1)(B) the scientific advice that the SSC ‘‘shall’’ provide to the Councils, and best scientific information available is not explicitly referenced there. See § 600.305(d)(2) (explaining that ‘‘shall’’ is used in the NS guidelines when quoting statutory language directly). There are diverse processes in place throughout the various regions, Councils, and SSCs for determining the best scientific information available, and the NS2 guidelines are the appropriate place to address specific roles of the SSC, as was noted in the response to comment 41 in the final 2009 guidelines. See 74 FR 3191, January 16, 2009. NMFS notes that the NS2 Guidelines provide that the SSC is required to base its scientific advice and recommendations on what the SSC determines, according to the guidelines in § 600.315(a), is the best scientific information available. See § 600.315(c)(1). Comment 77: Several commenters asked the agency to revisit the guidelines’ discussion of the MSA’s ACL international exception. Some commented that the exception only pertains to the 2010/2011 timing requirement for establishing ACL/AM mechanisms. Several commenters recommended that the interpretation of what qualifies as an international agreement be broadened. One commenter suggested broadening the definition to include instances: (1) Where there is an informal agreement in a given fishery; and (2) where the fishing activities of another country(s) affect the ability of U.S. fishermen to achieve rebuilding and conservation, VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 such as in the Atlantic mackerel fishery. One commenter asked for an express statement in § 600.310(h)(1)(ii) clarifying that § 600.310(f) and § 600.310(g) do not apply to stocks and stock complexes to which the international exception applies. Others said that internationally managed species are not excluded from the MSA’s ACL requirement and thus the interpretation of the international exception at § 600.310(h)(2)(ii) is unreasonable and outside NMFS’ authority. Response: This final action does not change the international exception as adopted in the 2009 NS1 Guidelines. The response to comment 78 in the final 2009 guidelines (see 74 FR 3198–99, January 16, 2009) discussed the exception at length, and the reasoning behind the agency’s response is still valid and reasonable. As explained in that response, the text of the exception is vague, thus NMFS considered and took public comment on different possible interpretations, including specifically looking at the interpretation advanced by some commenters that the exception only pertains to the 2010/ 2011 timing requirements. Having considered the text of the exception and other relevant MSA provisions, NMFS decided in 2009 not to interpret the exception as applying only to the timing of ACL/AM requirements. Based on public comments received here, NMFS has identified no new considerations or issues that warrant re-examination of the approach it adopted in 2009. NMFS also addressed broadening the definition of ‘‘international agreement’’ in its response to comment 78 in the final 2009 guidelines. See 74 FR 3199, January 16, 2009. When considering what qualifies as an ‘‘international agreement,’’ for the purpose of Public Law 109–479 104(b), NMFS considers if the arrangement or understanding qualifies as an ‘‘international agreement’’ as understood under MSA section 3(24) (defining ‘‘international fishery agreement’’) and as generally understood in international negotiations. The Case-Zablocki Act, 1 U.S.C. 112b, and its implementing regulations also provide helpful guidance on interpreting the term ‘‘international agreement.’’ NMFS believes applying the exception to all fisheries where there is any kind of informal agreement and where the fishing activities of another country affect in any way the ability of U.S. fishermen to achieve rebuilding and conservation would be beyond what Congress prescribed. NMFS believes there is no need to add language to § 600.310(h)(1)(ii) PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 clarifying that § 600.310(f) and § 600.310(g) do not apply to stocks and stock complexes to which the international exception applies because § 600.310(h)(2)(ii) is clear that stocks or stock complexes subject to an international agreement are exempt from ACL and AM requirements. ACLs are detailed in § 600.310(f) and AMs are detailed in § 600.310(g). The title of § 600.310(h)(2) is ‘‘Exceptions from ACL and AM requirements’’ and includes ‘‘International fishery agreements’’ as one of the exceptions at § 600.310(h)(2)(ii). Comment 78: A number of commenters noted the use of the word ‘‘practicable’’ in several parts of the proposed guidelines. Some simply wanted clarification on the word’s intended definition. Others felt that the use of the word weakens statutory requirements. Another commenter felt that identifying the degree of uncertainty ‘‘when practicable’’ instead of ‘‘when possible’’ would reduce the importance of the requirement to account for uncertainty. Other commenters felt ‘‘practicable’’ was proper since it provides greater flexibility in dealing with the difficult weighing of options that is inherent in fisheries management decisions. Response: NMFS believes that use of ‘‘practicable’’ in the NS1 guidelines is consistent with the MSA, and is intended to be understood based on the basic dictionary definition of that term. Black’s Law Dictionary, for one, defines ‘‘practicable’’ as ‘‘(of a thing) reasonably capable of being accomplished; feasible in a particular situation.’’ See Black’s Law Dictionary (10th ed. 2014). NMFS notes that ‘‘practicable’’ is used several times in the MSA, including in sections 302(b)(2)(B)–(C), 303(a)(7) & (11)–(13), and 304(g), and may have a different definition or interpretation specific to those provisions. NMFS does not believe that use of the term ‘‘practicable’’ in the NS1 guidelines weakens any statutory requirements. Of the six instances where NMFS uses ‘‘practicable’’ in the NS1 guidelines, none involve mandatory duties under the MSA. Comment 79: One commenter felt that the requirement to describe data methods was an unnecessary burden. This requirement is in both § 600.310(c) and § 600.310(i) of the current regulations and remains basically unchanged in the proposed revisions. The commenter said that the data collection methods are under the control of NMFS rather than the Councils, some of this information is reported via the standardized bycatch reporting methodology, and the statute E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations does not list describing data collection methods as something that needs to be in the FMP. Response: NMFS believes, as it also stated in the final 2009 NS1 Guidelines, that detailing the sources of data for the fishery and how they are used to account for all sources of fishing mortality in the annual catch limit system will be beneficial. See 74 FR 3199, January 16, 2009. These sections, which are essentially unchanged in this revision, only ask that the Councils provide documentation of the fisheries data and data collection methods they are already utilizing in either their FMPs or associated public documents such as Stock Assessment and Fishery Evaluation (SAFE) Reports. Comment 80: One commenter suggested that in proposed § 600.310(f)(4)(ii), NMFS retain the language clarifying that sector-ACLs can be used for set-asides for research and bycatch. The commenter asserted that these set-asides are important management tools to account for all sources of mortality in the catch-setting process. Response: NMFS believes the commenter is referring to the deletion of the language in § 600.310(h)(1)(ii) that refers to set-asides for research or bycatch as possible examples of sectorACLs. The proposed § 600.310(f)(4)(ii) left unchanged § 600.310(f)(5)(ii) of the current regulations except for adding a sentence stating that if sector-ACLs are used, then sector-AMs should also be specified. NMFS does not believe that § 600.310(f)(4)(ii) limits the Council’s ability to use a sector-ACL for set-asides for research and bycatch. While sectorACLs can be used to account for setasides for research and bycatch, NMFS does not believe that it is necessary to offer prescriptive guidance to Councils as to how best to account for that mortality. Comment 81: One commenter requested that NMFS explore an alternative management strategy under which a ‘‘sweet spot’’ for catch is identified based on a long-term evaluation of stock biomass performance relative to catch, and annual catch limits could be exceeded if they fell below the ‘‘sweet spot’’ catch level. Response: NMFS does not believe the proposed alternative management strategy would meet the requirements of the MSA, which requires the management of stocks based on annual catch reference points that are designed to prevent overfishing. The NS1 guidelines define overfishing in terms of fishing mortality and/or total catch, and Councils must specify catch limits that VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 prevent overfishing on an annual basis. Thus, one ‘‘sweet spot’’ level of catch that is not specified on an annual basis, but is instead based on a historical relationship between the stock’s biomass and total catch, would not be considered an appropriate reference point that can be used to determine whether overfishing is being prevented. Comment 82: One commenter stated that the definition for target stocks given in § 600.305(d)(11) is not internally consistent within the guidelines because economic discards do not provide any sale or personal use benefits and thus, a fisherman would not target them. Therefore, the commenter suggested that the guidelines define target stocks as stocks or stock complexes that fisheries seek to catch for sale or personal use, or are ‘economic discards’ as defined under Magnuson-Stevens Act section 3(9). Response: NMFS believes the definition of target stocks is consistent with both the MSA and within the NS1 guidelines. Economic discards are defined within the MSA as fish which are the target of a fishery, but which are not retained because they are of an undesirable size, sex, or quality, or for other economic reasons. 16 U.S.C. 3(9). Thus, economic discards are, by definition, fish stocks that are targeted by a fishery and are properly characterized within the current definition of target stocks in the NS1 guidelines. Comment 83: One commenter requested additional clarification regarding the use of § 600.310(m) in cases where a stock is found to be overfished after overfishing is allowed under this provision. Response: As explained in the final 2009 NS1 Guidelines, a rebuilding plan is required for any stock (including those under the mixed stock exception) that is determined to be overfished. The MSA requires that rebuilding plans end overfishing immediately and rebuild the affected stock to Bmsy. See 74 FR 3201, January 16, 2009. Comment 84: Several commenters expressed concern that the proposed changes to the NS guidelines would require, or at least strongly encourage, amendment to FMPs. One commenter requested that the agency revise the guidelines to explicitly state that modifications to FMPs based on the final action are not required. Response: As emphasized in the preamble to the proposed rule, this action to revise the NS guidelines will not establish any new, specific requirements that would require Councils to revise their FMPs in order to comply with the MSA. The purpose PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 71889 of the final action remains the same as the proposed action—to facilitate compliance with the requirements of the MSA. See 80 FR 2786, January 20, 2015. The final action facilitates compliance with the MSA, but does not require modifications to FMPs. NMFS does not believe it is necessary to further emphasize this point within the NS guidelines themselves. Comment 85: Two commenters requested that NMFS undergo an additional public engagement process prior to finalizing the proposed rule. Response: NMFS does not believe that a further public comment or engagement process is needed to finalize this action. As detailed in Section I of the preamble of this final action, there was a robust opportunity for public engagement during the development of this rule, which included opportunities for public comment on an ANPR and proposed rule and opportunities for engagement at Council and other meetings. See also 80 FR 2786, January 15, 2015. NMFS has carefully considered the public comments received during the development of this final action, making changes as appropriate based on recommendations from commenters. VI. Changes From Proposed Action (80 FR 2786, January 20, 2015) In the revisions to § 600.305, paragraph (a)(3) was revised to clarify the approval process for FMP and FMP amendments. The last sentence of the paragraph was removed and replaced with a sentence clarifying that FMPs that are not formulated according to the guidelines may not be approved by the Secretary if the FMP or FMP amendment is inconsistent with the MSA or other applicable law (16 U.S.C. 1854(a)(3)). Section 600.305(b)(2) was revised to clarify the discussion of fishery management objectives. Section 600.305(c)(1) was revised to reference the MSA definition of ‘‘conservation and management,’’ and relevant cross-references. The sentence was also revised to clarify that based on this definition, and other relevant provisions of the Magnuson-Stevens Act, a Council should consider the nonexhaustive list of factors when deciding whether additional stocks require conservation and management. Paragraph (c)(1)(iii) was revised for clarity by replacing ‘‘stocks’’ with ‘‘stock.’’ Paragraph (c)(1)(vi) was also revised for clarity by replacing ‘‘and’’ with ‘‘or.’’ Paragraph (c)(1)(x) was revised by removing the phrase ‘‘could be or’’ in order to clarify the conditions in which Councils should consider existing management regimes when E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71890 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations determining whether stocks require conservation and management. The phrase ‘‘policies and standards’’ was also removed from paragraph (c)(1)(x) and the paragraph was revised to clarify that factor (x) allows the following considerations to be considered when determining whether a stock requires conservation and management: The extent to which the fishery is already adequately managed by states, by state/ Federal programs, or by Federal regulations pursuant to other FMPs or international commissions, or by industry-self regulation, consistent with the requirements of the MagnusonStevens Act and other applicable law. Paragraph (c)(2) was reorganized into three paragraphs to break out and clarify considerations for adding a stock to an FMP versus removing a stock from an FMP. Paragraph (c)(2) retains the last sentence of proposed paragraph (c)(2) with the addition of a cross-reference and the text ‘‘and should’’ after the word ‘‘can.’’ Paragraph (c)(3) retains some text from the proposed paragraph (c)(2) and gives further explanation on what the proposed paragraph meant by no single factor being dispositive or required. New paragraph (c)(3) explains that, when considering adding a stock to an FMP, no single factor is dispositive or required. One or more of the above factors, and any additional considerations that may be relevant to the particular stock, may provide the basis for determining that a stock requires conservation and management. Based on the factor in paragraph (c)(1)(iii) of this section, if the amount and/or type of catch that occurs in Federal waters is a significant contributing factor to the stock’s status, such information would weigh heavily in favor of adding a stock to an FMP. However, Councils should consider factor (c)(1)(x) before deciding to include a stock in an FMP. In many circumstances, adequate management of a fishery by states, state/Federal programs, or another Federal FMP would weigh heavily against a Federal FMP action. Paragraph (c)(4) retains the bulk of the text from proposed paragraph (c)(2), except for sentences broken out into paragraphs (c)(2)–(3) as described above. For clarity, paragraph (c)(4) revises the phrase ‘‘keeping an existing stock within an FMP’’ to ‘‘removing a stock from, or continuing to include a stock in, an FMP.’’ The second sentence in paragraph (c)(4) was revised to provide further explanation on how to consider stocks whose status is impacted by catch in Federal waters. In addition, the first phrase in the 6th sentence of VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 proposed paragraph (c)(2) was simplified to ‘‘Finally,’’ in the 6th sentence of paragraph (c)(4). Paragraph (c)(5) retains the bulk of the text from proposed paragraph (c)(3). However, the 1st sentence was edited to clarify the circumstances under which a Council may designate stocks as EC species. The phrase ‘‘or for other reasons’’ at the end of the last sentence of the paragraph is also replaced with ‘‘and/or to address other ecosystems’’ to improve clarity of the paragraph. Other minor clarifying revisions were made to the citations within paragraph (c)(5). Paragraph (c)(7) retains the text from proposed paragraph (c)(5), except for two instances where ‘‘a FMP’’ was corrected to ‘‘an FMP.’’ Paragraph (d)(3) was revised to clarify the definition of the term ‘‘SOPP’’ and correct ‘‘a FMP’’ to ‘‘an FMP.’’ Paragraph (d)(11) was revised to clarify that target stocks may include, but are not limited to, economic and regulatory discards. Furthermore, economic discards are, by definition, part of a target stock. On the other hand, regulatory discards may or may not be part of a target stock, depending on the stock in question. Paragraphs (d)(12–13) were added to § 600.305 to further clarify how a Council may refer to certain species. Paragraph (d)(12) explains that ‘Non-target species’ and ‘non-target stocks’ are fish caught incidentally during the pursuit of target stocks in a fishery. Non-target stocks may require conservation and management and, if so, must be included in a FMP and be identified at the stock level. If non-target species are not in need of conservation and management, they may be identified in an FMP as ecosystem component species. Paragraph (d)(13) explains that Ecosystem Component Species (see 50 CFR 600.305(c)(3) and 600.310(d)(1)) are stocks that a Council or the Secretary has determined do not require conservation and management, but desire to list in a FMP in order to achieve ecosystem management objectives. Section 600.310(l) of the proposed rule was moved to the ‘‘General’’ section and designated as § 600.305(e) because the discussion of the relationship of the National Standards to each other is more appropriately discussed in the General section of the NS guidelines. The beginning of the paragraph further clarifies the relationship between NS1 and the other National Standards by reiterating that National Standard 1 addresses preventing overfishing and achieving optimum yield. Other minor clarifying revisions were made to the citations within paragraphs PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 § 600.305(e)(1)-(2). New § 600.310(l)(4) was revised to add the phrase ‘‘and other MSA provisions’’ at the end of first sentence to clarify the scope of National Standard 8. Section 600.310(m) was re-designated as paragraph (1). In the revisions to § 600.310, paragraph (b)(1)(ii) was revised to replace ‘‘that require, or are in need of, conservation and management’’ with ‘‘in an FMP’’ to simplify the text. To clarify the relationship between the SSC and the peer review process, the 3rd sentence of paragraph (b)(2)(v)(C) now explains that, for Regional Fishery Management Councils, the peer review process is not a substitute for the SSC and both the SSC and peer review process should work in conjunction with each other. Paragraph (b)(4) was also revised to remove ‘‘or overfished’’ to restore the original language used in this sentence, prior to the introduction of the proposed depleted definition. Paragraph (d)(1) was revised to replace ‘‘and’’ with ‘‘or’’ after the term ‘‘other reference points’’ in the last sentence for clarification purposes. Other minor updates were made to the citations within paragraph (d)(1). Paragraph (e)(1)(iv) was revised to remove the term ‘‘common’’ text from the description of aggregate MSY. This text is unnecessary and may cause confusion. The following phrase was added after ‘‘annually,’’ in paragraph (e)(1)(v)(A): ‘‘but it must be based on the best scientific information available (see § 600.315)’’ for clarification. To clarify that MFMT and all reference points that stem from it are required to be specified on an annual basis, the words ‘‘on an annual basis,’’ were restored to the first sentence of paragraph (e)(2)(i)(C). Paragraph (e)(2)(ii)(A) was revised to clarify the relationship between paragraphs (e)(2)(ii)(A)(1)-(3) and (e)(2)(ii). For clarity and consistency, the terms ‘‘describe’’ and ‘‘used’’ in the first and second sentences were revised as ‘‘specify’’ and ‘‘specified.’’ Subparagraphs (e)(2)(ii)(A)(1) and (2) were revised to delete the phrase ‘‘or exceeding a multi-year catch reference point’’ to prevent any confusion between a multi-year catch reference point and the multi-year approach in subparagraph (e)(2)(ii)(A)(3). Subparagraph (e)(2)(ii)(A)(3) was revised to address confusion reflected in public comments regarding when a multi-year approach to determine overfishing status can be used and whether the provision may impact reference points for future catch levels. Subparagraph (e)(2)(ii)(A)(3) clarifies that subparagraphs (e)(2)(ii)(A) (1) and E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations (2) establish methods to determine overfishing status based on a period of 1 year. As stated in paragraph (e)(2)(ii)(A), a Council should specify, within the FMP, which of these methods will be used to determine overfishing status. However, in certain circumstances, a Council may utilize a multi-year approach to determine overfishing status based on a period of no more than 3 years. The Council should identify in its FMP or FMP amendment, the circumstances when a multi-year approach is appropriate and will be used. Such circumstances may include situations where there is high uncertainty in the estimate of F in the most recent year, cases where stock abundance fluctuations are high and assessments are not timely enough to forecast such changes, or other circumstances where the most recent catch or F data does not reflect the overall status of the stock. The multiyear approach to determine overfishing status may not be used to specify future annual catch limits at levels that do not prevent overfishing. In addition, the subparagraph deletes text that refers to a comprehensive analysis based on the best scientific information available. Paragraph (e)(2)(i)(F), which addressed ‘‘depleted’’ stocks, was deleted in response to public comment and given the need for further consideration of this issue. A minor grammatical edit was also made in the 6th sentence of paragraph (e)(2)(ii). Finally, the word ‘‘may’’ was added after ‘‘Long-term environmental changes’’ in paragraph (e)(2)(iii) to clarify the nature of the expected relationship between long-term environmental changes and a stock or stock complex. Paragraph (e)(2)(ii)(B) was revised to remove the phrase ‘‘social and/or economic impacts on the fishery,’’ from the list of factors that could inform MSST to clarify that MSST is a biological reference point and is based on the level of biomass below which the capacity of the stock to produce MSY on a continuing basis is jeopardized. Paragraph (e)(3)(ii) was revised by removing the last sentence and explaining that if conservation and management measures cannot meet the dual requirements of NS1 (preventing overfishing, while achieving, on a continuing basis, OY), Councils should either modify the measures or reexamine their OY specifications to ensure that the dual NS1 requirements can be met. To clarify how summaries of OY specifications should be included in FMPs, paragraph (e)(3)(iii) was revised by removing the words: ‘‘which documents how the OY will produce VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 the greatest benefits to the nation and prevent overfishing’’ from the 1st sentence and combining the 2nd and 3rd sentences to explain that the OY assessment should include: a summary of information utilized in making such specification, an explanation of how the OY specification will produce the greatest benefits to the nation and prevent overfishing and rebuild overfished stocks; and a consideration of the economic, social, and ecological factors relevant to the management of a particular stock, stock complex, or fishery. Finally, paragraph (e)(3)(iv)(D) was revised to clarify the relationship between internationally-managed stocks and specifying OY. Paragraph (f)(2)(i) was revised to clarify the level of analysis required when establishing ABC control rules by explaining that the Council must provide a comprehensive analysis and articulate within their FMP when the control rule can and cannot be used and how the control rule prevents overfishing. Paragraph (f)(2)(i) was revised to further explain how to properly establish ABC control rules. The 1st sentence of paragraph (f)(2)(i) explains that Councils must establish an ABC control rule that accounts for scientific uncertainty in the OFL and for the Council’s risk policy, and that is based on a comprehensive analysis that shows how the control rule prevents overfishing. Paragraph (f)(2)(ii) was revised by removing ‘‘directed’’ from the phrase: ‘‘and may establish a stock abundance level below which directed fishing would not be allowed.’’ Finally, the words ‘‘in which case,’’ ‘‘provide a comprehensive analysis,’’ and ‘‘the control rule’’ were removed from the last sentence of the paragraph so the last two sentences of the paragraph. Paragraph (f)(2)(ii)(A) was revised to clarify that phase-in ABC control rules must be designed to prevent overfishing every year. In addition, the end of the paragraph explains that the Councils should evaluate the appropriateness of phase-in provisions for stocks that are overfished and/or rebuilding, as the overriding goal for such stocks is to rebuild them in as short a time as possible. Paragraph (f)(2)(ii)(B) was revised to clarify the proper use of carry-over ABC control rules. To explain the meaning of the term ‘‘ACL underage,’’ the following words were added after ‘‘unused portion of’’ in the first sentence of paragraph (f)(2)(ii)(B): ‘‘an ACL (i.e., ACL underage) . . .’’ The word ‘‘must’’ was also added before ‘‘consider scientific uncertainty’’ in the second sentence of the paragraph. To clarify that revising PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 71891 the ABC may not be necessary if the ACL was set below the ABC in the first place, the last sentence of the paragraph was removed and the third sentence of the paragraph now explains that carryover provisions could also allow an ACL to be adjusted upwards as long as the revised ACL does not exceed the specified ABC. The end of the paragraph further clarifies the proper use of carryover ABC control rules by explaining that, when considering whether to use a carry-over provision, Councils should consider the likely reason for the ACL underage. ACL underages that result from management uncertainty (i.e., premature fishery closure) may be appropriate circumstances for considering a carry-over provision. ACL underages that occur as a result of poor or unknown stock status may not be appropriate to consider in a carry-over provision. In addition, the Councils should evaluate the appropriateness of carry-over provisions for stocks that are overfished and/or rebuilding, as the overriding goal for such stocks is to rebuild them in as short a time as possible. Paragraph (f)(3) was revised to clarify the meaning of the term ‘‘implementation of the ABC control rule.’’ The second sentence of the paragraph explains that Councils and their SSCs should develop a process by which the SSC can access the best scientific information available when implementing the ABC control rule (i.e., specifying the ABC). Paragraph (f)(3) was also revised to clarify that, in accordance with MSA section 302(g)(1)(B), specification of the ABC is the responsibility of the SSC. To clarify that Councils may use varying terms to describe ACTs, the words ‘‘or functional equivalent,’’ were added to the third sentence of paragraph (f)(4)(i) that explains that, if an annual catch target (ACT), or functional equivalent, is not used, management uncertainty should be accounted for in the ACL. The words ‘‘or the functional equivalent,’’ were also added to paragraph (g)(4) so it reads: ‘‘ACTs, or the functional equivalent, . . .’’ for consistency. Paragraph (f)(4)(iv) was revised to clarify how ABC is set in relation to OY. The words ‘‘and is designed to prevent overfishing’’ were removed from the 2nd sentence of paragraph (f)(4)(iv). Minor related revisions were also made to the 4th and 5th sentences of paragraph (f)(4(iv). Minor revisions were made to the 5th sentence in paragraph (g)(3) to make the language consistent with the MSA. A minor correction was made to paragraph (h)(1)(i) by replacing ‘‘has’’ E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71892 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations with ‘‘have’’ after the phrase ‘‘for species that.’’ Minor updates were made to the citations within paragraphs (h)(1)(i)–(ii). In paragraph (h)(2), clarifications regarding the spawning potential of Pacific salmon were addressed by revising the example within the second sentence to ‘‘e.g., Pacific salmon, where the spawning potential for a stock is spread over a multi-year period.’’ The word ‘‘to’’ was also added before the words ‘‘manage to reference points based on MSY or MSY proxies.’’ Paragraph (i)(2) was revised to replace ‘‘i.e.,’’ with ‘‘e.g.,’’ for clarification purposes. Paragraph (j)(1) was revised to clarify that, consistent with MSA section 304(e), the Secretary will immediately notify in writing a Regional Fishery Management Council whenever the Secretary determines that one of the circumstances listed in subparagraphs (j)(1)(i)–(iv) is occurring. Paragraph (j)(3)(i)(B)(3) was revised to provide additional guidance on how to determine which calculation method to use when calculating Tmax. The paragraph now explains that, in situations where Tmin exceeds 10 years, Tmax establishes a maximum time for rebuilding that is linked to the biology of the stock. When selecting a method for determining Tmax, a Council, in consultation with its SSC, should consider the relevant biological data and scientific uncertainty of that data, and must provide a rationale for its decision based on the best scientific information available. One of the methods listed in subparagraphs (j)(3)(i)(B)(2)(ii) and (iii) may be appropriate, for example, if given data availability and the life history characteristics of the stock, there is high uncertainty in the estimate of generation time, or if generation time does not accurately reflect the productivity of the stock. Minor edits were made to the 1st sentence of paragraph (j)(3)(i)(C) to align the paragraph more closely with the MSA. Paragraph (j)(3)(iv) was revised so that the word ‘‘are’’ was replaced with ‘‘is’’ before ‘‘exceeded’’ and ‘‘and’’ was replaced with ‘‘nor’’ before ‘‘caused the overage’’ in the 3rd sentence of paragraph (j)(3)(iv). In addition, paragraph (j)(3)(iv) now explains that, for Secretarially-managed fisheries, the Secretary would take immediate action necessary to achieve adequate progress toward rebuilding and ending overfishing. Paragraph (j)(3)(vi) was revised to explain that the one of the circumstances under which the fishing mortality rate for a stock or stock VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 complex that has not rebuilt by Tmax can change is when the fishing mortality rate is changed as a result of the Secretary finding that adequate progress is not being made. Paragraphs (j)(5)(i)–(ii) were removed. Paragraph (j)(5) clarifies the criteria for discontinuing rebuilding plans by explaining that a Council may discontinue a rebuilding plan for a stock or stock complex before it reaches Bmsy if the Secretary determines that the stock was not overfished in the year that the overfished determination (see MSA section 304(e)(3)) was based on and has never been overfished in any subsequent year, including the current year. Paragraph (j)(6) was deleted because the definition for depleted stocks was removed from the final action. Paragraph (l)(2) was revised to replace ‘‘characteristic’’ with ‘‘characteristics’’ for clarification purposes. In the revisions to § 600.320, the last sentences of paragraphs (b)–(d) were removed to clarify, streamline, and reduce duplication between § 600.320 and § 600.305(c). VII. References Cited A complete list of all the references cited in this final action is available upon request from Stephanie Hunt (see FOR FURTHER INFORMATION CONTACT). VIII. Classification Pursuant to section 301(b) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the Magnuson-Stevens Act and other applicable law. This rule has been determined to be significant for purposes of Executive Order 12866 because it may raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in E.O. 12866. The provision of the Administration Procedure Act (5 U.S.C. 553) requiring a delay in effective date is inapplicable because this rule is a statement of policy. 5 U.S.C. 553(d)(2). 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 rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed action . See 80 FR 2799, January 20, 2015). In summary, this action makes technical changes to the general section of the National Standard Guidelines and the guidelines for National Standards 1, 3, and 7 and does PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 not require the Councils or the Secretary to make changes to their FMPs. Furthermore, because the guidelines do not directly regulate any entities, the proposed changes will not directly alter the behavior of any entities operating in federally managed fisheries, and thus no direct economic effects on small entities (as described within the proposed action) are expected to result from this action. Therefore, no small entities will be directly affected by this action and a reduction in profits for a substantial number of small entities is not expected. See 80 FR 2800, January 20, 2015. No public comments were received regarding this certification. NMFS notes that on January 26, 2016, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries, effective February 26, 2016 (81 FR 4469). The rule increased the size standard for Seafood Product Preparation and Packaging (NAICS code 311710) from 500 to 750 employees. Furthermore, on December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only. See 80 FR 81194, December 29, 2015. The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration’s (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016. See 80 FR 81194, December 29, 2015. Pursuant to the Regulatory Flexibility Act, and prior to July 1, 2016, a certification was developed for this regulatory action using SBA’s size standards prior to February 26, 2016. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standards discussed above and has determined that the new size standards do not affect analyses prepared for this regulatory action. Further, because the guidelines do not directly regulate any entities, any new size standard will not directly alter the behavior of any entities operating in federally managed fisheries, and thus no direct economic effects on commercial harvesting businesses, marinas, seafood dealers/wholesalers, or seafood processors are expected to result from this action. Thus, no small entities will be directly affected by this action and a E:\FR\FM\18OCR3.SGM 18OCR3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations reduction in profits for a substantial number of small entities is not expected. Therefore, the Chief Counsel for Regulation of the Department of Commerce hereby reaffirms that the rule will not have a significant economic impact on a substantial number of small entities. Thus, NMFS has determined that the certification established during the proposed rule stage is still appropriate for this final action and a final regulatory flexibility analysis has not been prepared for this final action. List of Subjects in 50 CFR Part 600 Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics. Dated: October 5, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 600 is amended as follows: PART 600—MAGNUSON–STEVENS ACT PROVISIONS 1. The authority citation for part 600 continues to read as follows: ■ Authority: 5 U.S.C. 561 and16 U.S.C. 1801 et seq. 2. Section 600.305 is revised to read as follows: ■ Lhorne on DSK30JT082PROD with RULES3 § 600.305 General. (a) Purpose. (1) This subpart establishes guidelines, based on the national standards, to assist in the development and review of FMPs, amendments, and regulations prepared by the Councils and the Secretary. (2) In developing FMPs, the Councils have the initial authority to ascertain factual circumstances, to establish management objectives, and to propose management measures that will achieve the objectives. The Secretary will determine whether the proposed management objectives and measures are consistent with the national standards, other provisions of the Magnuson-Stevens Act (MSA), and other applicable law. The Secretary has an obligation under section 301(b) of the MSA to inform the Councils of the Secretary’s interpretation of the national standards so that they will have an understanding of the basis on which FMPs will be reviewed. (3) The national standards are statutory principles that must be VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 followed in any FMP. The guidelines summarize Secretarial interpretations that have been, and will be, applied under these principles. The guidelines are intended as aids to decision-making; FMPs formulated according to the guidelines will have a better chance for expeditious Secretarial review, approval, and implementation. FMPs that are not formulated according to the guidelines may not be approved by the Secretary if the FMP or FMP amendment is inconsistent with the MSA or other applicable law (16 U.S.C. 1854(a)(3)). (b) Fishery management objectives. (1) Each FMP, whether prepared by a Council or by the Secretary, should identify what the FMP is designed to accomplish (i.e., the management objectives to be attained in regulating the fishery under consideration). In establishing objectives, Councils balance biological constraints with human needs, reconcile present and future costs and benefits, and integrate the diversity of public and private interests. If objectives are in conflict, priorities should be established among them. (2) To reflect the changing needs of the fishery over time, Councils should reassess the FMP’s management objectives on a regular basis. (3) How objectives are defined is important to the management process. Objectives should address the problems of a particular fishery. The objectives should be clearly stated, practicably attainable, framed in terms of definable events and measurable benefits, and based upon a comprehensive rather than a fragmentary approach to the problems addressed. An FMP should make a clear distinction between objectives and the management measures chosen to achieve them. The objectives of each FMP provide the context within which the Secretary will judge the consistency of an FMP’s conservation and management measures with the national standards. (c) Stocks that require conservation and management. (1) MagnusonStevens Act section 302(h)(1) requires a Council to prepare an FMP for each fishery under its authority that requires (or in other words, is in need of) conservation and management. 16 U.S.C. 1852(h)(1). Not every fishery requires Federal management. Any stocks that are predominately caught in Federal waters and are overfished or subject to overfishing, or likely to become overfished or subject to overfishing, are considered to require conservation and management. Beyond such stocks, Councils may determine that additional stocks require PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 71893 ‘‘conservation and management.’’ (See Magnuson-Stevens Act definition at 16 U.S.C. 1802(5)). Based on this definition of conservation and management, and other relevant provisions of the Magnuson-Stevens Act, a Council should consider the following nonexhaustive list of factors when deciding whether additional stocks require conservation and management: (i) The stock is an important component of the marine environment. (ii) The stock is caught by the fishery. (iii) Whether an FMP can improve or maintain the condition of the stock. (iv) The stock is a target of a fishery. (v) The stock is important to commercial, recreational, or subsistence users. (vi) The fishery is important to the Nation or to the regional economy. (vii) The need to resolve competing interests and conflicts among user groups and whether an FMP can further that resolution. (viii) The economic condition of a fishery and whether an FMP can produce more efficient utilization. (ix) The needs of a developing fishery, and whether an FMP can foster orderly growth. (x) The extent to which the fishery is already adequately managed by states, by state/Federal programs, or by Federal regulations pursuant to other FMPs or international commissions, or by industry self-regulation, consistent with the requirements of the MagnusonStevens Act and other applicable law. (2) In evaluating factors in paragraphs (c)(1)(i) through (x) of this section, a Council should consider the specific circumstances of a fishery, based on the best scientific information available, to determine whether there are biological, economic, social and/or operational concerns that can and should be addressed by Federal management. (3) When considering adding a stock to an FMP, no single factor is dispositive or required. One or more of the above factors, and any additional considerations that may be relevant to the particular stock, may provide the basis for determining that a stock requires conservation and management. Based on the factor in paragraph (c)(1)(iii) of this section, if the amount and/or type of catch that occurs in Federal waters is a significant contributing factor to the stock’s status, such information would weigh heavily in favor of adding a stock to an FMP. However, Councils should consider the factor in paragraph (c)(1)(x) of this section before deciding to include a stock in an FMP. In many circumstances, adequate management of a fishery by states, state/Federal E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71894 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations programs, or another Federal FMP would weigh heavily against a Federal FMP action. See, e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3). (4) When considering removing a stock from, or continuing to include a stock in, an FMP, Councils should prepare a thorough analysis of factors in paragraphs (c)(1)(i) through (x) of this section, and any additional considerations that may be relevant to the particular stock. As mentioned in paragraph (c)(3) of this section, if the amount and/or type of catch that occurs in Federal waters is a significant contributing factor to the stock’s status, such information would weigh heavily in favor of continuing to include a stock in an FMP. Councils should consider weighting the factors as follows. Factors in paragraphs (c)(1)(i) through (iii) of this section should be considered first, as they address maintaining a fishery resource and the marine environment. See 16 U.S.C. 1802(5)(A). These factors weigh in favor of continuing to include a stock in an FMP. Councils should next consider factors in paragraphs (c)(1)(iv) through (ix) of this section, which set forth key economic, social, and other reasons contained within the MSA for an FMP action. See 16 U.S.C. 1802(5)(B). Finally, a Council should consider the factor in paragraph (c)(1)(x) of this section before deciding to remove a stock from, or continue to include a stock in, an FMP. In many circumstances, adequate management of a fishery by states, state/Federal programs, or another Federal FMP would weigh in favor of removing a stock from an FMP. See e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3). (5) Councils may choose to identify stocks within their FMPs as ecosystem component (EC) species (see § § 600.305(d)(13) and 600.310(d)(1)) if a Council determines that the stocks do not require conservation and management based on the considerations and factors in paragraph (c)(1) of this section. EC species may be identified at the species or stock level, and may be grouped into complexes. Consistent with National Standard 9, MSA section 303(b)(12), and other applicable MSA sections, management measures can be adopted in order to, for example, collect data on the EC species, minimize bycatch or bycatch mortality of EC species, protect the associated role of EC species in the ecosystem, and/or to address other ecosystem issues. (6) A stock or stock complex may be identified in more than one FMP. In this situation, the relevant Councils should choose which FMP will be the primary FMP in which reference points for the stock or stock complex will be VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 established. In other FMPs, the stock or stock complex may be identified as ‘‘other managed stocks’’ and management measures that are consistent with the objectives of the primary FMP can be established. (7) Councils should periodically review their FMPs and the best scientific information available and determine if the stocks are appropriately identified. As appropriate, stocks should be reclassified within an FMP, added to or removed from an existing FMP, or added to a new FMP, through an FMP amendment that documents the rationale for the decision. (d) Word usage within the National Standard Guidelines. The word usage refers to all regulations in this subpart. (1) Must is used, instead of ‘‘shall’’, to denote an obligation to act; it is used primarily when referring to requirements of the Magnuson-Stevens Act, the logical extension thereof, or of other applicable law. (2) Shall is used only when quoting statutory language directly, to avoid confusion with the future tense. (3) Should is used to indicate that an action or consideration is strongly recommended to fulfill the Secretary’s interpretation of the Magnuson-Stevens Act, and is a factor reviewers will look for in evaluating a statement of organization, practices, and procedures (SOPP) or an FMP. (4) May is used in a permissive sense. (5) Will is used descriptively, as distinguished from denoting an obligation to act or the future tense. (6) Could is used when giving examples, in a hypothetical, permissive sense. (7) Can is used to mean ‘‘is able to,’’ as distinguished from ‘‘may.’’ (8) Examples are given by way of illustration and further explanation. They are not inclusive lists; they do not limit options. (9) Analysis, as a paragraph heading, signals more detailed guidance as to the type of discussion and examination an FMP should contain to demonstrate compliance with the standard in question. (10) Council includes the Secretary, as applicable, when preparing FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens Act. (11) Target stocks are stocks or stock complexes that fishers seek to catch for sale or personal use, including such fish that are discarded for economic or regulatory reasons as defined under Magnuson-Stevens Act section 3(9) and 3(38). (12) Non-target species and non-target stocks are fish caught incidentally during the pursuit of target stocks in a PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 fishery. Non-target stocks may require conservation and management and, if so, must be included in a FMP and be identified at the stock or stock complex level. If non-target species are not in need of conservation and management, they may be identified in an FMP as ecosystem component species. (13) Ecosystem Component Species (see §§ 600.305(c)(5) and 600.310(d)(1)) are stocks that a Council or the Secretary has determined do not require conservation and management, but desire to list in an FMP in order to achieve ecosystem management objectives. (e) Relationship of National Standard 1 to other national standards—General. National Standard 1 addresses preventing overfishing and achieving optimum yield. See 16 U.S.C. 1851(a)(1) and 50 CFR 600.310. National Standards 2 through 10 provide further requirements for conservation and management measures in FMPs. See 16 U.S.C. 1851(a)(2) through (10) and 50 CFR 600.315 through 600.355. Below is a description of how some of the other National Standards intersect with National Standard 1. (1) National Standard 2 (see § 600.315). Management measures and reference points to implement NS1 must be based on the best scientific information available. When data are insufficient to estimate reference points directly, Councils should develop reasonable proxies to the extent possible (also see § 600.310(e)(1)(v)(B)). In cases where scientific data are severely limited, effort should also be directed to identifying and gathering the needed data. SSCs should advise their Councils regarding the best scientific information available for fishery management decisions. (2) National Standard 3 (see § 600.320). Reference points should generally be specified in terms of the level of stock aggregation for which the best scientific information is available (also see § 600.310(e)(1)(ii) and (iii)). (3) National Standard 6 (see § 600.335). Councils must build into the reference points and control rules appropriate consideration of risk, taking into account uncertainties in estimating harvest, stock conditions, life history parameters, or the effects of environmental factors. (4) National Standard 8 (see § 600.345). National Standard 8 addresses economic and social considerations and minimizing to the extent practicable adverse economic impacts on fishing communities within the context of preventing overfishing and rebuilding overfished stocks as required under National Standard 1 and E:\FR\FM\18OCR3.SGM 18OCR3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations other MSA provisions. Calculation of OY as reduced from maximum sustainable yield (MSY) also includes consideration of economic and social factors, but the combination of management measures chosen to achieve the OY must principally be designed to prevent overfishing and rebuild overfished stocks. (5) National Standard 9 (see § 600.350). Evaluation of stock status with respect to reference points must take into account mortality caused by bycatch. In addition, the estimation of catch should include the mortality of fish that are discarded. ■ 3. Section 600.310 is revised to read as follows: Lhorne on DSK30JT082PROD with RULES3 § 600.310 Yield. National Standard 1—Optimum (a) Standard 1. Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry. (b) General. (1) The guidelines set forth in this section describe fishery management approaches to meet the objectives of National Standard 1 (NS1), and include guidance on: (i) Specifying maximum sustainable yield (MSY) and OY; (ii) Specifying status determination criteria (SDC) so that overfishing and overfished determinations can be made for stocks and stock complexes in an FMP; (iii) Preventing overfishing and achieving OY, incorporation of scientific and management uncertainty in control rules, and adaptive management using annual catch limits (ACL) and measures to ensure accountability (i.e., accountability measures (AMs)); and (iv) Rebuilding stocks and stock complexes. (2) Overview of Magnuson-Stevens Act concepts and provisions related to NS1—(i) MSY. The Magnuson-Stevens Act establishes MSY as the basis for fishery management and requires that: The fishing mortality rate must not jeopardize the capacity of a stock or stock complex to produce MSY; the abundance of an overfished stock or stock complex must be rebuilt to a level that is capable of producing MSY; and OY must not exceed MSY. (ii) OY. The determination of OY is a decisional mechanism for resolving the Magnuson-Stevens Act’s conservation and management objectives, achieving an FMP’s objectives, and balancing the various interests that comprise the greatest overall benefits to the Nation. OY is based on MSY as reduced under VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 paragraphs (e)(3)(iii)(A) and (B) of this section. The most important limitation on the specification of OY is that the choice of OY and the conservation and management measures proposed to achieve it must prevent overfishing. (iii) ACLs and AMs. Any FMP shall establish a mechanism for specifying ACLs in the FMP (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability (Magnuson-Stevens Act section 303(a)(15)). (iv) Reference points. SDC, MSY, OY, acceptable biological catch (ABC), and ACL, which are described further in paragraphs (e) and (f) of this section, are collectively referred to as ‘‘reference points.’’ (v) Scientific advice. The MagnusonStevens Act has requirements regarding scientific and statistical committees (SSC) of the Regional Fishery Management Councils, including but not limited to, the following provisions (paragraphs (b)(2)(v)(A) through (D) of this section). See the National Standard 2 guidelines for further guidance on SSCs and the peer review process (§ 600.315). (A) Each Regional Fishery Management Council shall establish an SSC as described in section 302(g)(1)(A) of the Magnuson-Stevens Act. (B) Each SSC shall provide its Regional Fishery Management Council recommendations for ABC as well as other scientific advice, as described in Magnuson-Stevens Act section 302(g)(1)(B). (C) The Secretary and each Regional Fishery Management Council may establish a peer review process for that Council for scientific information used to advise the Council about the conservation and management of a fishery (see Magnuson-Stevens Act section 302(g)(1)(E)). If a peer review process is established, it should investigate the technical merits of stock assessments and other scientific information to be used by the SSC or agency or international scientists, as appropriate. For Regional Fishery Management Councils, the peer review process is not a substitute for the SSC and both the SSC and peer review process should work in conjunction with each other. For the Secretary, which does not have an SSC, the peer review process should provide the scientific information necessary. (D) Each Council shall develop ACLs for each of its managed fisheries that may not exceed the ‘‘fishing level recommendations’’ of its SSC or peer review process (Magnuson-Stevens Act PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 71895 section 302(h)(6)). The SSC recommendation that is the most relevant to ACLs is ABC, as both ACL and ABC are levels of annual catch. (3) Approach for setting limits and accountability measures, including targets, for consistency with NS1. When specifying limits and accountability measures, Councils must take an approach that considers uncertainty in scientific information and management control of the fishery. These guidelines describe how the Councils could address uncertainty such that there is a low risk that limits are exceeded as described in paragraphs (f)(2) and (g)(4) of this section. (4) Vulnerability. A stock’s vulnerability to fishing pressure is a combination of its productivity, which depends upon its life history characteristics, and its susceptibility to the fishery. Productivity refers to the capacity of the stock to produce MSY and to recover if the population is depleted, and susceptibility is the potential for the stock to be impacted by the fishery, which includes direct captures, as well as indirect impacts of the fishery (e.g., loss of habitat quality). (c) Summary of items to include in FMPs related to NS1. This section provides a summary of items that Councils must include in their FMPs and FMP amendments in order to address ACL, AM, and other aspects of the NS1 guidelines. Councils must describe fisheries data for the stocks and stock complexes in their FMPs, or associated public documents such as Stock Assessment and Fishery Evaluation (SAFE) Reports. For all stocks and stock complexes that require conservation and management (see § 600.305(c)), the Councils must evaluate and describe the following items in their FMPs and amend the FMPs, if necessary, to align their management objectives to end or prevent overfishing and to achieve OY: (1) MSY and SDC (see paragraphs (e)(1) and (2) of this section). (2) OY at the stock, stock complex, or fishery level and provide the OY specification analysis (see paragraph (e)(3) of this section). (3) ABC control rule (see paragraph (f)(2) of this section). (4) Mechanisms for specifying ACLs (see paragraph (f)(4) of this section). (5) AMs (see paragraph (g) of this section). (6) Stocks and stock complexes that have statutory exceptions from ACLs and AMs (see paragraph (h)(1) of this section) or which fall under limited circumstances which require different approaches to meet the Magnuson- E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71896 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Stevens Act requirements (see paragraph (h)(2) of this section). (d) Stocks and stock complexes— (1) Introduction. As described in § 600.305(c), Councils should identify in their FMPs the stocks that require conservation and management. Such stocks must have ACLs, other reference points, and accountability measures. Other stocks that are identified in an FMP (i.e., EC species or stocks that the fishery interacts with but are managed primarily under another FMP, see § 600.305(c)(5) through (6)) do not require ACLs, other reference points, or accountability measures. (2) Stock complex. Stocks that require conservation and management can be grouped into stock complexes. A ‘‘stock complex’’ is a tool to manage a group of stocks within a FMP. (i) At the time a stock complex is established, the FMP should provide, to the extent practicable, a full and explicit description of the proportional composition of each stock in the stock complex. Stocks may be grouped into complexes for various reasons, including where stocks in a multispecies fishery cannot be targeted independent of one another; where there is insufficient data to measure a stock’s status relative to SDC; or when it is not feasible for fishermen to distinguish individual stocks among their catch. Where practicable, the group of stocks should have a similar geographic distribution, life history characteristics, and vulnerabilities to fishing pressure such that the impact of management actions on the stocks is similar. The vulnerability of individual stocks should be considered when determining if a particular stock complex should be established or reorganized, or if a particular stock should be included in a complex. (ii) Indicator stocks. (A) An indicator stock is a stock with measurable and objective SDC that can be used to help manage and evaluate more poorly known stocks that are in a stock complex. (B) Where practicable, stock complexes should include one or more indicator stocks (each of which has SDC and ACLs). Otherwise, stock complexes may be comprised of: Several stocks without an indicator stock (with SDC and an ACL for the complex as a whole), or one or more indicator stocks (each of which has SDC and management objectives) with an ACL for the complex as a whole (this situation might be applicable to some salmon species). Councils should review the available quantitative or qualitative information (e.g., catch trends, changes in vulnerability, fish health indices, etc.) of VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 stocks within a complex on a regular basis to determine if they are being sustainably managed. (C) If an indicator stock is used to evaluate the status of a complex, it should be representative of the typical vulnerability of stocks within the complex. If the stocks within a stock complex have a wide range of vulnerability, they should be reorganized into different stock complexes that have similar vulnerabilities; otherwise the indicator stock should be chosen to represent the more vulnerable stocks within the complex. In instances where an indicator stock is less vulnerable than other members of the complex, management measures should be more conservative so that the more vulnerable members of the complex are not at risk from the fishery. (D) More than one indicator stock can be selected to provide more information about the status of the complex. (E) When indicator stocks are used, the stock complex’s MSY could be listed as ‘‘unknown,’’ while noting that the complex is managed on the basis of one or more indicator stocks that do have known stock-specific MSYs, or suitable proxies, as described in paragraph (e)(1)(v) of this section. (e) Features of MSY, SDC, and OY— (1) MSY. Each FMP must include an estimate of MSY for the stocks and stock complexes that require conservation and management. MSY may also be specified for the fishery as a whole. (i) Definitions. (A) MSY is the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics (e.g., gear selectivity), and the distribution of catch among fleets. (B) MSY fishing mortality rate (Fmsy) is the fishing mortality rate that, if applied over the long term, would result in MSY. (C) MSY stock size (Bmsy) means the long-term average size of the stock or stock complex, measured in terms of spawning biomass or other appropriate measure of the stock’s reproductive potential that would be achieved by fishing at Fmsy. (ii) MSY for stocks. MSY should be estimated for each stock based on the best scientific information available (see § 600.315). (iii) MSY for stock complexes. When stock complexes are used, MSY should be estimated for one or more indicator stocks or for the complex as a whole (see paragraph (d)(2)(ii)). (iv) Methods of estimating MSY for an aggregate group of stocks. Estimating PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 MSY for an aggregate group of stocks (including stock complexes and the fishery as a whole) can be done using models that account for multi-species interactions, composite properties for a group of similar species, biomass (energy) flow and production patterns, or other relevant factors (see paragraph (e)(3)(iv)(C) of this section). (v) Specifying MSY. (A) Because MSY is a long-term average, it need not be estimated annually, but it must be based on the best scientific information available (see § 600.315), and should be re-estimated as required by changes in long-term environmental or ecological conditions, fishery technological characteristics, or new scientific information. (B) When data are insufficient to estimate MSY directly, Councils should adopt other measures of reproductive potential that can serve as reasonable proxies for MSY, Fmsy, and Bmsy. (C) The MSY for a stock or stock complex is influenced by its interactions with other stocks in its ecosystem and these interactions may shift as multiple stocks in an ecosystem are fished. Ecological and environmental information should be taken into account, to the extent practicable, when assessing stocks and specifying MSY. Ecological and environmental information that is not directly accounted for in the specification of MSY can be among the ecological factors considered when setting OY below MSY. (D) As MSY values are estimates or are based on proxies, they will have some level of uncertainty associated with them. The degree of uncertainty in the estimates should be identified, when practicable, through the stock assessment process and peer review (see § 600.335), and should be taken into account when specifying the ABC Control rule (see paragraph (f)(2) of this section). (2) Status determination criteria—(i) Definitions. (A) Status determination criteria (SDC) mean the measurable and objective factors, MFMT, OFL, and MSST, or their proxies, that are used to determine if overfishing has occurred, or if the stock or stock complex is overfished. Magnuson-Stevens Act (section 3(34)) defines both ‘‘overfishing’’ and ‘‘overfished’’ to mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the MSY on a continuing basis. To avoid confusion, this section clarifies that ‘‘overfished’’ relates to biomass of a stock or stock complex, and ‘‘overfishing’’ pertains to a rate or level of removal of fish from a stock or stock complex. E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations (B) Overfishing occurs whenever a stock or stock complex is subjected to a level of fishing mortality or total catch that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis. (C) Maximum fishing mortality threshold (MFMT) means the level of fishing mortalityi.e F), on an annual basis, above which overfishing is occurring. The MFMT or reasonable proxy may be expressed either as a single number (a fishing mortality rate or F value), or as a function of spawning biomass or other measure of reproductive potential. (D) Overfishing limit (OFL) means the annual amount of catch that corresponds to the estimate of MFMT applied to a stock or stock complex’s abundance and is expressed in terms of numbers or weight of fish. (E) Overfished. A stock or stock complex is considered ‘‘overfished’’ when its biomass has declined below MSST. (F) Minimum stock size threshold (MSST) means the level of biomass below which the capacity of the stock or stock complex to produce MSY on a continuing basis has been jeopardized. (G) Approaching an overfished condition. A stock or stock complex is approaching an overfished condition when it is projected that there is more than a 50 percent chance that the biomass of the stock or stock complex will decline below the MSST within two years. (ii) Specification of SDC and overfishing and overfished determinations. Each FMP must describe how objective and measurable SDCs will be specified, as described in paragraphs (e)(2)(ii)(A) and (B) of this section. To be measurable and objective, SDC must be expressed in a way that enables the Council to monitor the status of each stock or stock complex in the FMP. Applying the SDC set forth in the FMP, the Secretary determines if overfishing is occurring and whether the stock or stock complex is overfished (Magnuson-Stevens Act section 304(e)). SDCs are often based on fishing rates or biomass levels associated with MSY or MSY based proxies. When data are not available to specify SDCs based on MSY or MSY proxies, alternative types of SDCs that promote sustainability of the stock or stock complex can be used. For example, SDC could be based on recent average catch, fish densities derived from visual census surveys, length/ weight frequencies, or other methods. In specifying SDC, a Council must provide an analysis of how the SDC were chosen and how they relate to reproductive potential of stocks of fish within the VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 fishery. If alternative types of SDCs are used, the Council should explain how the approach will promote sustainability of the stock or stock complex on a long term basis. A Council should consider a process that allows SDCs to be quickly updated to reflect the best scientific information available. In the case of internationally-managed stocks, the Council may decide to use the SDCs defined by the relevant international body. In this instance, the SDCs should allow the Council to monitor the status of a stock or stock complex, recognizing that the SDCs may not be defined in such a way that a Council could monitor the MFMT, OFL, or MSST as would be done with a domestically managed stock or stock complex. (A) SDC to Determine Overfishing Status. Each FMP must specify a method used to determine the overfishing status for each stock or stock complex. For domestically-managed stocks or stock complexes, one of the following methods (described in (e)(2)(ii)(A)(1) and (2) of this section) should be specified. If the necessary data to use one of the methods described in either subparagraph (e)(2)(ii)(A)(1) or (2) is not available, a Council may use an alternate type of overfishing SDC as described in paragraph (e)(2)(ii). (1) Fishing Mortality Rate Exceeds MFMT. Exceeding the MFMT for a period of 1 year constitutes overfishing. (2) Catch Exceeds the OFL. Exceeding the annual OFL for 1 year constitutes overfishing. (3) Multi-Year Approach to Determine Overfishing Status. Subparagraphs (e)(2)(ii)(A) (1) and (2) establish methods to determine overfishing status based on a period of 1 year. As stated in paragraph (e)(2)(ii)(A), a Council should specify, within the FMP, which of these methods will be used to determine overfishing status. However, in certain circumstances, a Council may utilize a multi-year approach to determine overfishing status based on a period of no more than 3 years. The Council should identify in its FMP or FMP amendment, circumstances when the multi-year approach is appropriate and will be used. Such circumstances may include situations where there is high uncertainty in the estimate of F in the most recent year, cases where stock abundance fluctuations are high and assessments are not timely enough to forecast such changes, or other circumstances where the most recent catch or F data does not reflect the overall status of the stock. The multiyear approach to determine overfishing status may not be used to specify future PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 71897 annual catch limits at levels that do not prevent overfishing. (B) SDC to determine overfished status. The MSST or reasonable proxy must be expressed in terms of spawning biomass or other measure of reproductive potential. MSST should be between 1⁄2 Bmsy and Bmsy, and could be informed by the life history of the stock, the natural fluctuations in biomass associated with fishing at MFMT over the long-term, the requirements of internationally-managed stocks, or other considerations. (C) Where practicable, all sources of mortality including that resulting from bycatch, scientific research catch, and all fishing activities should be accounted for in the evaluation of stock status with respect to reference points. (iii) Relationship of SDC to environmental and habitat change. Some short-term environmental changes can alter the size of a stock or stock complex without affecting its long-term reproductive potential. Long-term environmental changes may affect both the short-term size of the stock or stock complex and the long-term reproductive potential of the stock or stock complex. (A) If environmental changes cause a stock or stock complex to fall below its MSST without affecting its long-term reproductive potential, fishing mortality must be constrained sufficiently to allow rebuilding within an acceptable time frame (see also paragraph (j)(3)(i) of this section). SDC should not be respecified. (B) If environmental, ecosystem, or habitat changes affect the long-term reproductive potential of the stock or stock complex, one or more components of the SDC must be respecified. Once SDC have been respecified, fishing mortality may or may not have to be reduced, depending on the status of the stock or stock complex with respect to the new criteria. (C) If manmade environmental changes are partially responsible for a stock or stock complex’s biomass being below MSST, in addition to controlling fishing mortality, Councils should recommend restoration of habitat and other ameliorative programs, to the extent possible (see also the guidelines issued pursuant to section 305(b) of the Magnuson-Stevens Act for Council actions concerning essential fish habitat). (iv) Secretarial approval of SDC. Secretarial approval or disapproval of proposed SDC will be based on consideration of whether the proposal: (A) Is based on the best scientific information available; (B) Contains the elements described in paragraph (e)(2)(ii) of this section; E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71898 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations (C) Provides a basis for objective measurement of the status of the stock or stock complex against the criteria; and (D) Is operationally feasible. (3) Optimum yield. For stocks that require conservation and management, OY may be established at the stock, stock complex, or fishery level. (i) Definitions— (A) Optimum yield (OY). Magnuson-Stevens Act section (3)(33) defines ‘‘optimum,’’ with respect to the yield from a fishery, as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities and taking into account the protection of marine ecosystems; that is prescribed on the basis of the MSY from the fishery, as reduced by any relevant economic, social, or ecological factor; and, in the case of an overfished fishery, that provides for rebuilding to a level consistent with producing the MSY in such fishery. (B) In NS1, use of the phrase ‘‘achieving, on a continuing basis, the OY from each fishery’’ means: producing, from each stock, stock complex, or fishery, an amount of catch that is, on average, equal to the Council’s specified OY; prevents overfishing; maintains the long term average biomass near or above Bmsy; and rebuilds overfished stocks and stock complexes consistent with timing and other requirements of section 304(e)(4) of the Magnuson-Stevens Act and paragraph (j) of this section. (ii) General. OY is a long-term average amount of desired yield from a stock, stock complex, or fishery. An FMP must contain conservation and management measures, including ACLs and AMs, to achieve OY on a continuing basis, and provisions for information collection that are designed to determine the degree to which OY is achieved. These measures should allow for practical and effective implementation and enforcement of the management regime. If these measures cannot meet the dual requirements of NS1 (preventing overfishing while achieving, on a continuing basis, OY), Councils should either modify the measures or reexamine their OY specifications to ensure that the dual NS1 requirements can be met. (iii) Assessing OY. An FMP must contain an assessment and specification of OY (MSA section 303(a)(3)). The assessment should include: a summary of information utilized in making such specification; an explanation of how the OY specification will produce the greatest benefits to the nation and prevent overfishing and rebuild VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 overfished stocks; and a consideration of the economic, social, and ecological factors relevant to the management of a particular stock, stock complex, or fishery. Consistent with MagnusonStevens Act section 302(h)(5), the assessment and specification of OY should be reviewed on a continuing basis, so that it is responsive to changing circumstances in the fishery. (A) Determining the greatest benefit to the Nation. In determining the greatest benefit to the Nation, the values that should be weighed and receive serious attention when considering the economic, social, or ecological factors used in reducing MSY, or its proxy, to obtain OY are: (1) The benefits of food production derived from providing seafood to consumers; maintaining an economically viable fishery together with its attendant contributions to the national, regional, and local economies; and utilizing the capacity of the Nation’s fishery resources to meet nutritional needs. (2) The benefits of recreational opportunities reflect the quality of both the recreational fishing experience and non-consumptive fishery uses such as ecotourism, fish watching, and recreational diving. Benefits also include the contribution of recreational fishing to the national, regional, and local economies and food supplies. (3) The benefits of protection afforded to marine ecosystems are those resulting from maintaining viable populations (including those of unexploited species), maintaining adequate forage for all components of the ecosystem, maintaining evolutionary and ecological processes (e.g., disturbance regimes, hydrological processes, nutrient cycles), maintaining productive habitat, maintaining the evolutionary potential of species and ecosystems, and accommodating human use. (B) Economic, Ecological, and Social Factors. Councils should consider the management objectives of their FMPs and their management framework to determine the relevant social, economic, and ecological factors used to determine OY. There will be inherent trade-offs when determining the objectives of the fishery. The following is a nonexhaustive list of potential considerations for social, economic, and ecological factors. (1) Social factors. Examples are enjoyment gained from recreational fishing, avoidance of gear conflicts and resulting disputes, preservation of a way of life for fishermen and their families, and dependence of local communities on a fishery (e.g., involvement in fisheries and ability to adapt to change). PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 Consideration may be given to fisheryrelated indicators (e.g., number of fishery permits, number of commercial fishing vessels, number of party and charter trips, landings, ex-vessel revenues etc.) and non-fishery related indicators (e.g., unemployment rates, percent of population below the poverty level, population density, etc.), and preference for a particular type of fishery (e.g., size of the fishing fleet, type of vessels in the fleet, permissible gear types). Other factors that may be considered include the effects that past harvest levels have had on fishing communities, the cultural place of subsistence fishing, obligations under tribal treaties, proportions of affected minority and low-income groups, and worldwide nutritional needs. (2) Economic factors. Examples are prudent consideration of the risk of overharvesting when a stock’s size or reproductive potential is uncertain (see § 600.335(c)(2)(i)), satisfaction of consumer and recreational needs, and encouragement of domestic and export markets for U.S. harvested fish. Other factors that may be considered include: The value of fisheries, the level of capitalization, the decrease in cost per unit of catch afforded by an increase in stock size, the attendant increase in catch per unit of effort, alternate employment opportunities, and economic contribution to fishing communities, coastal areas, affected states, and the nation. (3) Ecological factors. Examples include impacts on EC species, forage fish stocks, other fisheries, predatorprey or competitive interactions, marine mammals, threatened or endangered species, and birds. Species interactions that have not been explicitly taken into account when calculating MSY should be considered as relevant factors for setting OY below MSY. In addition, consideration should be given to managing forage stocks for higher biomass than Bmsy to enhance and protect the marine ecosystem. Also important are ecological or environmental conditions that stress marine organisms or their habitat, such as natural and manmade changes in wetlands or nursery grounds, and effects of pollutants on habitat and stocks. (iv) Specifying OY. If the estimates of MFMT and current biomass are known with a high level of certainty and management controls can accurately limit catch, then OY could be set very close to MSY, assuming no other reductions are necessary for social, economic, or ecological factors. To the degree that such MSY estimates and management controls are lacking or E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations unavailable, OY should be set farther from MSY. (A) The OY can be expressed in terms of numbers or weight of fish, and either as a single value or a range. When it is not possible to specify OY quantitatively, OY may be described qualitatively. (B) The determination of OY is based on MSY, directly or through proxy. However, even where sufficient scientific data as to the biological characteristics of the stock do not exist, or where the period of exploitation or investigation has not been long enough for adequate understanding of stock dynamics, or where frequent large-scale fluctuations in stock size diminish the meaningfulness of the MSY concept, OY must still be established based on the best scientific information available. (C) An OY established at a fishery level may not exceed the sum of the MSY values for each of the stocks or stocks complexes within the fishery. Aggregate level MSY estimates could be used as a basis for specifying OY for the fishery (see paragraph (e)(1)(iv) of this section). When aggregate level MSY is estimated, single stock MSY estimates can also be used to inform single stock management. For example, OY could be specified for a fishery, while other reference points are specified for individual stocks in order to prevent overfishing on each stock within the fishery. (D) For internationally-managed stocks, fishing levels that are agreed upon by the U.S. at the international level are considered to be consistent with OY requirements under the MSA and these guidelines. (v) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens Act provides that fishing by foreign nations is limited to that portion of the OY that will not be harvested by vessels of the United States. The FMP must include an assessment to address the following, as required by section 303(a)(4) of the Magnuson-Stevens Act: (A) The OY specification is the basis for establishing any total allowable level of foreign fishing (TALFF). (B) Part of the OY may be held as a reserve to allow for domestic annual harvest (DAH). If an OY reserve is established, an adequate mechanism should be included in the FMP to permit timely release of the reserve to domestic or foreign fishermen, if necessary. (C) DAH. Councils and/or the Secretary must consider the capacity of, and the extent to which, U.S. vessels will harvest the OY on an annual basis. Estimating the amount that U.S. fishing VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 vessels will actually harvest is required to determine the surplus. (D) Domestic annual processing (DAP). Each FMP must assess the capacity of U.S. processors. It must also assess the amount of DAP, which is the sum of two estimates: The estimated amount of U.S. harvest that domestic processors will process, which may be based on historical performance or on surveys of the expressed intention of manufacturers to process, supported by evidence of contracts, plant expansion, or other relevant information; and the estimated amount of fish that will be harvested by domestic vessels, but not processed (e.g., marketed as fresh whole fish, used for private consumption, or used for bait). (E) Joint venture processing (JVP). When DAH exceeds DAP, the surplus is available for JVP. (f) Acceptable biological catch and annual catch limits. (1) Definitions.— (i) Catch is the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries. Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded. (ii) Acceptable biological catch (ABC) is a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of OFL, any other scientific uncertainty, and the Council’s risk policy. (iii) Annual catch limit (ACL) is a limit on the total annual catch of a stock or stock complex, which cannot exceed the ABC, that serves as the basis for invoking AMs. An ACL may be divided into sector-ACLs (see paragraph (f)(4) of this section). (iv) Control rule is a policy for establishing a limit or target catch level that is based on the best scientific information available and is established by the Council in consultation with its SSC. (v) Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could include: Late catch reporting; misreporting; underreporting of catches; lack of sufficient inseason management, including inseason closure authority; or other factors. (vi) Scientific uncertainty refers to uncertainty in the information about a stock and its reference points. Sources of scientific uncertainty could include: Uncertainty in stock assessment results; uncertainty in the estimates of MFMT, PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 71899 MSST, the biomass of the stock, and OFL; time lags in updating assessments; the degree of retrospective revision of assessment results; uncertainty in projections; uncertainties due to the choice of assessment model; longer-term uncertainties due to potential ecosystem and environmental effects; or other factors. (2) ABC control rule.— (i) For stocks and stock complexes required to have an ABC, each Council must establish an ABC control rule that accounts for scientific uncertainty in the OFL and for the Council’s risk policy, and that is based on a comprehensive analysis that shows how the control rule prevents overfishing. The Council’s risk policy could be based on an acceptable probability (at least 50 percent) that catch equal to the stock’s ABC will not result in overfishing, but other appropriate methods can be used. When determining the risk policy, Councils could consider the economic, social, and ecological trade-offs between being more or less risk averse. The Council’s choice of a risk policy cannot result in an ABC that exceeds the OFL. The process of establishing an ABC control rule may involve science advisors or the peer review process established under Magnuson-Stevens Act section 302(g)(1)(E). (ii) The ABC control rule must articulate how ABC will be set compared to the OFL based on the scientific knowledge about the stock or stock complex and taking into account scientific uncertainty (see paragraph (f)(1)(vi) of this section). The ABC control rule should consider reducing fishing mortality as stock size declines below Bmsy and as scientific uncertainty increases, and may establish a stock abundance level below which fishing would not be allowed. When scientific uncertainty cannot be directly calculated, such as when proxies are used, then a proxy for the uncertainty should be established based on the best scientific information, including comparison to other stocks. The control rule may be used in a tiered approach to address different levels of scientific uncertainty. Councils can develop ABC control rules that allow for changes in catch limits to be phased-in over time or to account for the carry-over of some of the unused portion of the ACL from one year to the next. The Council must articulate within its FMP when the phase-in and/or carry-over provisions of the control rule can and cannot be used and how each provision prevents overfishing, based on a comprehensive analysis. (A) Phase-in ABC control rules. Large changes in catch limits due to new E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71900 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations scientific information about the status of the stock can have negative short-term effects on a fishing industry. To help stabilize catch levels as stock assessments are updated, a Council may choose to develop a control rule that phases in changes to ABC over a period of time, not to exceed 3 years, as long as overfishing is prevented each year (i.e., the phased-in catch level cannot exceed the OFL in any year). In addition, the Councils should evaluate the appropriateness of phase-in provisions for stocks that are overfished and/or rebuilding, as the overriding goal for such stocks is to rebuild them in as short a time as possible. (B) Carry-over ABC control rules. An ABC control rule may include provisions for the carry-over of some of the unused portion of an ACL (i.e., an ACL underage) from one year to increase the ABC for the next year, based on the increased stock abundance resulting from the fishery harvesting less than the full ACL. The resulting ABC recommended by the SSC must prevent overfishing and must consider scientific uncertainty consistent with the Council’s risk policy. Carry-over provisions could also allow an ACL to be adjusted upwards as long as the revised ACL does not exceed the specified ABC. When considering whether to use a carry-over provision, Councils should consider the likely reason for the ACL underage. ACL underages that result from management uncertainty (e.g., premature fishery closure) may be appropriate circumstances for considering a carryover provision. ACL underages that occur as a result of poor or unknown stock status may not be appropriate to consider in a carry-over provision. In addition, the Councils should evaluate the appropriateness of carry-over provisions for stocks that are overfished and/or rebuilding, as the overriding goal for such stocks is to rebuild them in as short a time as possible. (3) Specification of ABC. ABC may not exceed OFL (see paragraph (e)(2)(i)(D) of this section). Councils and their SSC should develop a process by which the SSC can access the best scientific information available when implementing the ABC control rule (i.e., specifying the ABC). The SSC must recommend the ABC to the Council. An SSC may recommend an ABC that differs from the result of the ABC control rule calculation, based on factors such as data uncertainty, recruitment variability, declining trends in population variables, and other factors, but must provide an explanation for the deviation. For Secretarial FMPs or amendments, agency scientists or a VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 peer review process would provide the scientific advice to establish ABC. For internationally-assessed stocks, an ABC as defined in these guidelines is not required if stocks fall under the international exception (see paragraph (h)(1)(ii) of this section). While the ABC is allowed to equal OFL, NMFS expects that in most cases ABC will be reduced from OFL to reduce the probability that overfishing might occur. (i) Expression of ABC. ABC should be expressed in terms of catch, but may be expressed in terms of landings as long as estimates of bycatch and any other fishing mortality not accounted for in the landings are incorporated into the determination of ABC. (ii) ABC for overfished stocks. For overfished stocks and stock complexes, a rebuilding ABC must be set to reflect the annual catch that is consistent with the schedule of fishing mortality rates (i.e., Frebuild) in the rebuilding plan. (4) Setting the annual catch limit— (i) General. ACL cannot exceed the ABC and may be set annually or on a multiyear plan basis. ACLs in coordination with AMs must prevent overfishing (see MSA section 303(a)(15)). If an Annual Catch Target (ACT), or functional equivalent, is not used, management uncertainty should be accounted for in the ACL. If a Council recommends an ACL which equals ABC, and the ABC is equal to OFL, the Secretary may presume that the proposal would not prevent overfishing, in the absence of sufficient analysis and justification for the approach. A ‘‘multiyear plan’’ as referenced in section 303(a)(15) of the Magnuson-Stevens Act is a plan that establishes harvest specifications or harvest guidelines for each year of a time period greater than 1 year. A multiyear plan must include a mechanism for specifying ACLs for each year with appropriate AMs to prevent overfishing and maintain an appropriate rate of rebuilding if the stock or stock complex is in a rebuilding plan. A multiyear plan must provide that, if an ACL is exceeded for a year, then AMs are implemented for the next year consistent with paragraph (g)(3) of this section. (ii) Sector-ACLs. A Council may, but is not required to, divide an ACL into sector-ACLs. If sector-ACLs are used, sector-AMs should also be specified. ‘‘Sector,’’ for purposes of this section, means a distinct user group to which separate management strategies and separate catch quotas apply. Examples of sectors include the commercial sector, recreational sector, or various gear groups within a fishery. If the management measures for different PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 sectors differ in the degree of management uncertainty, then sectorACLs may be necessary so that appropriate AMs can be developed for each sector. If a Council chooses to use sector-ACLs, the sum of sector-ACLs must not exceed the stock or stock complex level ACL. The system of ACLs and AMs designed must be effective in protecting the stock or stock complex as a whole. Even if sector-ACLs and sectorAMs are established, additional AMs at the stock or stock complex level may be necessary. (iii) ACLs for State-Federal Fisheries. For stocks or stock complexes that have harvest in state or territorial waters, FMPs and FMP amendments should include an ACL for the overall stock that may be further divided. For example, the overall ACL could be divided into a Federal-ACL and state-ACL. However, NMFS recognizes that Federal management is limited to the portion of the fishery under Federal authority. See 16 U.S.C. 1856. When stocks are comanaged by Federal, state, tribal, and/or territorial fishery managers, the goal should be to develop collaborative conservation and management strategies, and scientific capacity to support such strategies (including AMs for state or territorial and Federal waters), to prevent overfishing of shared stocks and ensure their sustainability. (iv) Relationship between OY and the ACL framework. The dual goals of NS1 are to prevent overfishing and achieve OY on a continuing basis. The ABC is an upper limit on catch that prevents overfishing within an established framework of risk and other considerations. As described in paragraph (e)(3) of this section, ecological, economic, and social factors, as well as values associated with determining the greatest benefit to the Nation, are important considerations in specifying OY. These types of considerations can also be considered in the ACL framework. For example, an ACL (or ACT) could be set lower than the ABC to account for ecological, economic, and social factors (e.g., needs of forage fish, promoting stability, addressing market conditions, etc.). Additionally, economic, social, or ecological trade-offs could be evaluated when determining the risk policy for an ABC control rule (see paragraph (f)(2) of this section). While OY is a long-term average amount of desired yield, there is, for each year, an amount of fish that is consistent with achieving the longterm OY. A Council can choose to express OY on an annual basis, in which case the FMP or FMP amendment should indicate that the OY is an E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations ‘‘annual OY.’’ An annual OY cannot exceed the ACL. (g) Accountability measures (AMs). (1) Introduction. AMs are management controls to prevent ACLs, including sector-ACLs, from being exceeded, and to correct or mitigate overages of the ACL if they occur. AMs should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible. NMFS identifies two categories of AMs, inseason AMs and AMs for when the ACL is exceeded. The FMP should identify what sources of data will be used to implement AMs (e.g., inseason data, annual catch compared to the ACL, or multi-year averaging approach). (2) Inseason AMs. Whenever possible, FMPs should include inseason monitoring and management measures to prevent catch from exceeding ACLs. Inseason AMs could include, but are not limited to: An annual catch target (see paragraph (g)(4) of this section); closure of a fishery; closure of specific areas; changes in gear; changes in trip size or bag limits; reductions in effort; or other appropriate management controls for the fishery. If final data or data components of catch are delayed, Councils should make appropriate use of preliminary data, such as landed catch, in implementing inseason AMs. FMPs should contain inseason closure authority giving NMFS the ability to close fisheries if it determines, based on data that it deems sufficiently reliable, that an ACL has been exceeded or is projected to be reached, and that closure of the fishery is necessary to prevent overfishing. For fisheries without inseason management control to prevent the ACL from being exceeded, AMs should utilize ACTs that are set below ACLs so that catches do not exceed the ACL. (3) AMs for when the ACL is exceeded. On an annual basis, the Council must determine as soon as possible after the fishing year if an ACL was exceeded. If an ACL was exceeded, AMs must be implemented as soon as possible to correct the operational issue that caused the ACL overage, as well as any biological consequences to the stock or stock complex resulting from the overage when it is known. These AMs could include, among other things, modifications of inseason AMs, the use or modification of ACTs, or overage adjustments. The type of AM chosen by a Council will likely vary depending on the sector of the fishery, status of the stock, the degree of the overage, recruitment patterns of the stock, or other pertinent information. If an ACL is set equal to zero and the AM for the VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 fishery is a closure that prohibits fishing for a stock, additional AMs are not required if only small amounts of catch (including bycatch) occur, and the catch is unlikely to result in overfishing. For stocks and stock complexes in rebuilding plans, the AMs should include overage adjustments that reduce the ACLs in the next fishing year by the full amount of the overage, unless the best scientific information available shows that a reduced overage adjustment, or no adjustment, is needed to mitigate the effects of the overage. (4) Annual Catch Target (ACT) and ACT control rule. ACTs, or the functional equivalent, are recommended in the system of AMs so that ACL is not exceeded. An ACT is an amount of annual catch of a stock or stock complex that is the management target of the fishery, and accounts for management uncertainty in controlling the catch at or below the ACL. ACT control rules can be used to articulate how management uncertainty is accounted for in setting the ACT. ACT control rules can be developed by the Council, in coordination with the SSC, to help the Council account for management uncertainty. (5) AMs based on multi-year average data. Some fisheries have highly variable annual catches and lack reliable inseason or annual data on which to base AMs. If there are insufficient data upon which to compare catch to ACL, AMs could be based on comparisons of average catch to average ACL over a three-year moving average period or, if supported by analysis, some other appropriate multi-year period. Councils should explain why basing AMs on a multi-year period is appropriate. Evaluation of the moving average catch to the average ACL must be conducted annually, and if the average catch exceeds the average ACL, appropriate AMs should be implemented consistent with paragraph (g)(3) of this section. (6) AMs for State-Federal Fisheries. For stocks or stock complexes that have harvest in state or territorial waters, FMPs and FMP amendments must, at a minimum, have AMs for the portion of the fishery under Federal authority. Such AMs could include closing the EEZ when the Federal portion of the ACL is reached, or the overall stock’s ACL is reached, or other measures. (7) Performance Standard. If catch exceeds the ACL for a given stock or stock complex more than once in the last four years, the system of ACLs and AMs should be reevaluated, and modified if necessary, to improve its performance and effectiveness. If AMs are based on multi-year average data, the performance standard is based on a PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 71901 comparison of the average catch to the average ACL. A Council could choose a higher performance standard (e.g., a stock’s catch should not exceed its ACL more often than once every five or six years) for a stock that is particularly vulnerable to the effects of overfishing, if the vulnerability of the stock has not already been accounted for in the ABC control rule. (h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP amendments must establish ACL mechanisms and AMs for all stocks and stock complexes that require conservation and management (see § 600.305(c)), unless paragraph (h)(1) of this section is applicable. These mechanisms should describe the annual or multiyear process by which ACLs, AMs, and other reference points such as OFL and ABC will be established. (1) Exceptions from ACL and AM requirements—(i) Life cycle. Section 303(a)(15) of the Magnuson-Stevens Act ‘‘shall not apply to a fishery for species that have a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species’’ (Pub. L. 109–479 104(b)(2)). This exception applies to a stock for which the average age of spawners in the population is approximately 1 year or less. While exempt from the ACL and AM requirements, FMPs or FMP amendments for these stocks must have SDC, MSY, OY, ABC, and an ABC control rule. (ii) International fishery agreements. Section 303(a)(15) of the MagnusonStevens Act applies ‘‘unless otherwise provided for under an international agreement in which the United States participates’’ (Pub. L. 109–479 104(b)(1)). This exception applies to stocks or stock complexes subject to management under an international agreement, which is defined as ‘‘any bilateral or multilateral treaty, convention, or agreement which relates to fishing and to which the United States is a party’’ (see MagnusonStevens Act section 3(24)). These stocks would still need to have SDC, MSY, and OY. (2) Flexibility in application of NS1 guidelines. There are limited circumstances that may not fit the standard approaches to specification of reference points and management measures set forth in these guidelines. These include, among other things, conservation and management of Endangered Species Act listed species, harvests from aquaculture operations, stocks with unusual life history characteristics (e.g., Pacific salmon, where the spawning potential for a stock E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 71902 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations is spread over a multi-year period), and stocks for which data are not available either to set reference points based on MSY or MSY proxies, or to manage to reference points based on MSY or MSY proxies. In these circumstances, Councils may propose alternative approaches for satisfying requirements of the Magnuson-Stevens Act other than those set forth in these guidelines. Councils must document their rationale for any alternative approaches in an FMP or FMP amendment, which will be reviewed for consistency with the Magnuson-Stevens Act. (i) Fisheries data. In their FMPs, or associated public documents such as SAFE reports as appropriate, Councils must describe general data collection methods, as well as any specific data collection methods used for all stocks and stock complexes in their FMPs, including: (1) Sources of fishing mortality (both landed and discarded), including commercial and recreational catch and bycatch in other fisheries; (2) Description of the data collection and estimation methods used to quantify total catch mortality in each fishery, including information on the management tools used (e.g., logbooks, vessel monitoring systems, observer programs, landings reports, fish tickets, processor reports, dealer reports, recreational angler surveys, or other methods); the frequency with which data are collected and updated; and the scope of sampling coverage for each fishery; and (3) Description of the methods used to compile catch data from various catch data collection methods and how those data are used to determine the relationship between total catch at a given point in time and the ACL for stocks and stock complexes that require conservation and management. (j) Council actions to address overfishing and rebuilding for stocks and stock complexes— (1) Notification. The Secretary will immediately notify in writing a Regional Fishery Management Council whenever the Secretary determines that: (i) Overfishing is occurring; (ii) A stock or stock complex is overfished; (iii) A stock or stock complex is approaching an overfished condition; or (iv) Existing remedial action taken for the purpose of ending previously identified overfishing or rebuilding a previously identified overfished stock or stock complex has not resulted in adequate progress (see MSA section 304(e)). (2) Timing of actions—(i) If a stock or stock complex is undergoing VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 overfishing. Upon notification that a stock or stock complex is undergoing overfishing, a Council should immediately begin working with its SSC (or agency scientists or peer review processes in the case of Secretariallymanaged fisheries) to ensure that the ABC is set appropriately to end overfishing. Councils should evaluate the cause of overfishing, address the issue that caused overfishing, and reevaluate their ACLs and AMs to make sure they are adequate. (ii) If a stock or stock complex is overfished or approaching an overfished condition. Upon notification that a stock or stock complex is overfished or approaching an overfished condition, a Council must prepare and implement an FMP, FMP amendment, or proposed regulations within two years of notification, consistent with the requirements of section 304(e)(3) of the Magnuson-Stevens Act. Council actions should be submitted to NMFS within 15 months of notification to ensure sufficient time for the Secretary to implement the measures, if approved. (3) Overfished fishery.—(i) Where a stock or stock complex is overfished, a Council must specify a time period for rebuilding the stock or stock complex based on factors specified in MagnusonStevens Act section 304(e)(4). This target time for rebuilding (Ttarget) shall be as short as possible, taking into account: The status and biology of any overfished stock, the needs of fishing communities, recommendations by international organizations in which the U.S. participates, and interaction of the stock within the marine ecosystem. In addition, the time period shall not exceed 10 years, except where biology of the stock, other environmental conditions, or management measures under an international agreement to which the U.S. participates, dictate otherwise. SSCs (or agency scientists or peer review processes in the case of Secretarial actions) shall provide recommendations for achieving rebuilding targets (see MagnusonStevens Act section 302(g)(1)(B)). The above factors enter into the specification of Ttarget as follows: (A) The minimum time for rebuilding a stock (Tmin). Tmin means the amount of time the stock or stock complex is expected to take to rebuild to its MSY biomass level in the absence of any fishing mortality. In this context, the term ‘‘expected’’ means to have at least a 50 percent probability of attaining the Bmsy, where such probabilities can be calculated. The starting year for the Tmin calculation should be the first year that the rebuilding plan is expected to be implemented. PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 (B) The maximum time for rebuilding a stock or stock complex to its Bmsy (Tmax). (1) If Tmin for the stock or stock complex is 10 years or less, then Tmax is 10 years. (2) If Tmin for the stock or stock complex exceeds 10 years, then one of the following methods can be used to determine Tmax: (i) Tmin plus the length of time associated with one generation time for that stock or stock complex. ‘‘Generation time’’ is the average length of time between when an individual is born and the birth of its offspring, (ii) The amount of time the stock or stock complex is expected to take to rebuild to Bmsy if fished at 75 percent of MFMT, or (iii) Tmin multiplied by two. (3) In situations where Tmin exceeds 10 years, Tmax establishes a maximum time for rebuilding that is linked to the biology of the stock. When selecting a method for determining Tmax, a Council, in consultation with its SSC, should consider the relevant biological data and scientific uncertainty of that data, and must provide a rationale for its decision based on the best scientific information available. One of the methods listed in subparagraphs (j)(3)(i)(B)(2)(ii) and (iii) may be appropriate, for example, if given data availability and the life history characteristics of the stock, there is high uncertainty in the estimate of generation time, or if generation time does not accurately reflect the productivity of the stock. (C) Target time to rebuilding a stock or stock complex (Ttarget). Ttarget is the specified time period for rebuilding a stock that is considered to be as short a time as possible, taking into account the factors described in paragraph (j)(3)(i) of this section. Ttarget shall not exceed Tmax, and the fishing mortality associated with achieving Ttarget is referred to as Frebuild. (ii) Council action addressing an overfished fishery must allocate both overfishing restrictions and recovery benefits fairly and equitably among sectors of the fishery. (iii) For fisheries managed under an international agreement, Council action addressing an overfished fishery must reflect traditional participation in the fishery, relative to other nations, by fishermen of the United States. (iv) Adequate Progress. The Secretary shall review rebuilding plans at routine intervals that may not exceed two years to determine whether the plans have resulted in adequate progress toward ending overfishing and rebuilding affected fish stocks (MSA section 304(e)(7)). Such reviews could include E:\FR\FM\18OCR3.SGM 18OCR3 Lhorne on DSK30JT082PROD with RULES3 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations the review of recent stock assessments, comparisons of catches to the ACL, or other appropriate performance measures. The Secretary may find that adequate progress is not being made if Frebuild or the ACL associated with Frebuild is exceeded, and AMs are not correcting the operational issue that caused the overage, nor addressing any biological consequences to the stock or stock complex resulting from the overage when it is known (see paragraph (g)(3) of this section). A lack of adequate progress may also be found when the rebuilding expectations of a stock or stock complex are significantly changed due to new and unexpected information about the status of the stock. If a determination is made under this provision, the Secretary will notify the appropriate Council and recommend further conservation and management measures, and the Council must develop and implement a new or revised rebuilding plan within two years (see MSA sections 304(e)(3) and (e)(7)(B)). For Secretarially-managed fisheries, the Secretary would take immediate action necessary to achieve adequate progress toward rebuilding and ending overfishing. (v) While a stock or stock complex is rebuilding, revising rebuilding timeframes (i.e., Ttarget and Tmax) or Frebuild is not necessary, unless the Secretary finds that adequate progress is not being made. (vi) If a stock or stock complex has not rebuilt by Tmax, then the fishing mortality rate should be maintained at its current Frebuild or 75 percent of the MFMT, whichever is less, until the stock or stock complex is rebuilt or the fishing mortality rate is changed as a result of the Secretary finding that adequate progress is not being made. (4) Emergency actions and interim measures. If a Council is developing a rebuilding plan or revising an existing rebuilding plan due to a lack of adequate progress (see MSA section 304(e)(7)), the Secretary may, in response to a Council request, implement interim measures that reduce, but do not necessarily end, overfishing (see MSA section 304(e)(6)) if all of the following criteria are met: (i) The interim measures are needed to address an unanticipated and significantly changed understanding of the status of the stock or stock complex; (ii) Ending overfishing immediately is expected to result in severe social and/ or economic impacts to a fishery; and (iii) The interim measures will ensure that the stock or stock complex will increase its current biomass through the duration of the interim measures. VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 (5) Discontinuing a rebuilding plan based on new scientific information. A Council may discontinue a rebuilding plan for a stock or stock complex before it reaches Bmsy if the Secretary determines that the stock was not overfished in the year that the overfished determination (see MSA section 304(e)(3)) was based on and has never been overfished in any subsequent year including the current year. (k) International overfishing. If the Secretary determines that a fishery is overfished or approaching a condition of being overfished due to excessive international fishing pressure, and for which there are no management measures (or no effective measures) to end overfishing under an international agreement to which the United States is a party, then the Secretary and/or the appropriate Council shall take certain actions as provided under MagnusonStevens Act section 304(i). The Secretary, in cooperation with the Secretary of State, must immediately take appropriate action at the international level to end the overfishing. In addition, within one year after the determination, the Secretary and/or appropriate Council shall: (1) Develop recommendations for domestic regulations to address the relative impact of the U.S. fishing vessels on the stock. Council recommendations should be submitted to the Secretary. (2) Develop and submit recommendations to the Secretary of State, and to the Congress, for international actions that will end overfishing in the fishery and rebuild the affected stocks, taking into account the relative impact of vessels of other nations and vessels of the United States on the relevant stock. Councils should, in consultation with the Secretary, develop recommendations that take into consideration relevant provisions of the Magnuson-Stevens Act and NS1 guidelines, including section 304(e) of the Magnuson-Stevens Act and paragraph (j)(3)(iii) of this section, and other applicable laws. For highly migratory species in the Pacific, recommendations from the Western Pacific, North Pacific, or Pacific Councils must be developed and submitted consistent with MagnusonStevens Reauthorization Act section 503(f), as appropriate. (3) Considerations for assessing ‘‘relative impact.’’ ‘‘Relative impact’’ under paragraphs (k)(1) and (2) of this section may include consideration of factors that include, but are not limited to: Domestic and international management measures already in place, PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 71903 management history of a given nation, estimates of a nation’s landings or catch (including bycatch) in a given fishery, and estimates of a nation’s mortality contributions in a given fishery. Information used to determine relative impact must be based upon the best available scientific information. (l) Exceptions to requirements to prevent overfishing. Exceptions to the requirement to prevent overfishing could apply under certain limited circumstances. Harvesting one stock at its optimum level may result in overfishing of another stock when the two stocks tend to be caught together (This can occur when the two stocks are part of the same fishery or if one is bycatch in the other’s fishery). Before a Council may decide to allow this type of overfishing, an analysis must be performed and the analysis must contain a justification in terms of overall benefits, including a comparison of benefits under alternative management measures, and an analysis of the risk of any stock or stock complex falling below its MSST. The Council may decide to allow this type of overfishing if the fishery is not overfished and the analysis demonstrates that all of the following conditions are satisfied: (1) Such action will result in longterm net benefits to the Nation; (2) Mitigating measures have been considered and it has been demonstrated that a similar level of long-term net benefits cannot be achieved by modifying fleet behavior, gear selection/configuration, or other technical characteristics in a manner such that no overfishing would occur; and (3) The resulting rate of fishing mortality will not cause any stock or stock complex to fall below its MSST more than 50 percent of the time in the long term, although it is recognized that persistent overfishing is expected to cause the affected stock to fall below its Bmsy more than 50 percent of the time in the long term. ■ 4. Section 600.320 is revised to read as follows: § 600.320 National Standard 3— Management Units. (a) Standard 3. To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. (b) General. The purpose of this standard is to induce a comprehensive approach to fishery management. The geographic scope of the fishery, for planning purposes, should cover the entire range of the stocks(s) of fish, and E:\FR\FM\18OCR3.SGM 18OCR3 71904 Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES3 not be overly constrained by political boundaries. (c) Unity of management. Cooperation and understanding among entities concerned with the fishery (e.g., Councils, states, Federal Government, international commissions, foreign nations) are vital to effective management. Where management of a fishery involves multiple jurisdictions, coordination among the several entities should be sought in the development of an FMP. Where a range overlaps Council areas, one FMP to cover the entire range is preferred. (d) Management unit. The term ‘‘management unit’’ means a fishery or that portion of a fishery identified in an FMP as relevant to the FMP’s management objectives. (1) Basis. The choice of a management unit depends on the focus of the FMP’s objectives, and may be organized around biological, geographic, economic, technical, social, or ecological perspectives. (2) Conservation and management measures. FMPs should include conservation and management measures for that part of the management unit within U.S. waters, although the Secretary can ordinarily implement them only within the EEZ. The measures need not be identical for each geographic area within the management unit, if the FMP justifies the differences. A management unit may contain stocks of fish for which there is not enough information available to specify MSY and OY or their proxies. (e) Analysis. An FMP should include discussion of the following: (1) The range and distribution of the stocks, as well as the patterns of fishing effort and harvest. (2) Alternative management units and reasons for selecting a particular one. A less-than-comprehensive management unit may be justified if, for example, complementary management exists or is planned for a separate geographic area or for a distinct use of the stocks, or if the unmanaged portion of the resource is immaterial to proper management. VerDate Sep<11>2014 13:29 Oct 17, 2016 Jkt 241001 (3) Management activities and habitat programs of adjacent states and their effects on the FMP’s objectives and management measures. Where state action is necessary to implement measures within state waters to achieve FMP objectives, the FMP should identify what state action is necessary, discuss the consequences of state inaction or contrary action, and make appropriate recommendations. The FMP should also discuss the impact that Federal regulations will have on state management activities. (4) Management activities of other countries having an impact on the fishery, and how the FMP’s management measures are designed to take into account these impacts. International boundaries may be dealt with in several ways. For example: (i) By limiting the management unit’s scope to that portion of the stock found in U.S. waters; (ii) By estimating MSY for the entire stock and then basing the determination of OY for the U.S. fishery on the portion of the stock within U.S. waters; or (iii) By referring to treaties or cooperative agreements. ■ 5. Section 600.340 is revised to read as follows: § 600.340 Benefits. National Standard 7—Costs and (a) Standard 7. Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication. (b) Alternative management measures. Management measures should not impose unnecessary burdens on the economy, on individuals, on private or public organizations, or on Federal, state, or local governments. Factors such as fuel costs, enforcement costs, or the burdens of collecting data may well suggest a preferred alternative. (c) Analysis. The supporting analyses for FMPs should demonstrate that the benefits of fishery regulation are real and substantial relative to the added research, administrative, and enforcement costs, as well as costs to the industry of compliance. In PO 00000 Frm 00048 Fmt 4701 Sfmt 9990 determining the benefits and costs of management measures, each management strategy considered and its impacts on different user groups in the fishery should be evaluated. This requirement need not produce an elaborate, formalistic cost/benefit analysis. Rather, an evaluation of effects and costs, especially of differences among workable alternatives, including the status quo, is adequate. If quantitative estimates are not possible, qualitative estimates will suffice. (1) Burdens. Management measures should be designed to give fishermen the greatest possible freedom of action in conducting business and pursuing recreational opportunities that are consistent with ensuring wise use of the resources and reducing conflict in the fishery. The type and level of burden placed on user groups by the regulations need to be identified. Such an examination should include, for example: Capital outlays; operating and maintenance costs; reporting costs; administrative, enforcement, and information costs; and prices to consumers. Management measures may shift costs from one level of government to another, from one part of the private sector to another, or from the government to the private sector. Redistribution of costs through regulations is likely to generate controversy. A discussion of these and any other burdens placed on the public through FMP regulations should be a part of the FMP’s supporting analyses. (2) Gains. The relative distribution of gains may change as a result of instituting different sets of alternatives, as may the specific type of gain. The analysis of benefits should focus on the specific gains produced by each alternative set of management measures, including the status quo. The benefits to society that result from the alternative management measures should be identified, and the level of gain assessed. [FR Doc. 2016–24500 Filed 10–13–16; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\18OCR3.SGM 18OCR3

Agencies

[Federal Register Volume 81, Number 201 (Tuesday, October 18, 2016)]
[Rules and Regulations]
[Pages 71858-71904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24500]



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Vol. 81

Tuesday,

No. 201

October 18, 2016

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 600





Magnuson-Stevens Act Provisions; National Standard Guidelines; Final 
Rule

Federal Register / Vol. 81 , No. 201 / Tuesday, October 18, 2016 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 120416013-6270-03]
RIN 0648-BB92


Magnuson-Stevens Act Provisions; National Standard Guidelines

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: This final action revises the guidelines for National 
Standards (NS) 1, 3, and 7 of the Magnuson-Stevens Fishery Conservation 
and Management Act (MSA or The Act) and to the General section of the 
NS guidelines. This action is necessary to improve and clarify the 
guidance within the NS guidelines. The purpose of this action is to 
facilitate compliance with requirements of the MSA to end and prevent 
overfishing, rebuild overfished stocks, and achieve optimum yield (OY).

DATES: This rule is effective October 18, 2016.

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: http://www.regulations.gov 
by searching for RIN 0648-BB92.

FOR FURTHER INFORMATION CONTACT: Stephanie Hunt, 301-427-8563.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of Revisions to the NS Guidelines
II. Major Components of the Proposed Action
III. Major Changes Made in the Final Action
IV. Overview of the Major Aspects of the Final Action
    A. Stocks That Require Conservation and Management
    B. Multi-Year Approaches to Overfishing Stock Status 
Determinations
    C. Acceptable Biological Catch (ABC) Control Rules
    D. Adequate Progress Determinations for Rebuilding Plans
    E. Adding Flexibility in Rebuilding Plans
V. Response to Comments
VI. Changes From Proposed Action (80 FR 2786, January 20, 2015)
VII. Reference Cited
VIII. Classification

I. Overview of Revisions to the NS Guidelines

    The MSA serves as the chief authority for fisheries management in 
the U.S. Exclusive Economic Zone (EEZ). The Act sets ten national 
standards (NS) for fishery conservation and management, and requires 
that the Secretary of Commerce (the Secretary) establish advisory 
guidelines based on the NS to assist in the development of fishery 
management plans. Guidelines for the NS are codified in subpart D of 50 
CFR part 600. This final action amends the General section of the NS 
guidelines and the guidelines for NS1, NS3, and NS7.
    Since 2007, fisheries management within the U.S. has experienced 
many changes, in particular the development and implementation of 
annual catch limits (ACLs) and accountability measures (AMs) under all 
fishery management plans to end and prevent overfishing. Due to a 
number of concerns raised during the implementation of ACLs and AMs, 
NMFS initiated a revision of the NS guidelines in 50 CFR 600.305, 
600.310, 600.320, and 600.340 in order to improve the utility of the 
guidelines for managers and the public. NMFS published an Advance 
Notice of Public Rulemaking (ANPR) on May 3, 2012, (77 FR 26238, May 3, 
2012) to solicit public comments on potential adjustments to the NS 
guidelines. The comment period on the ANPR was extended once (77 FR 
39459, July 3, 2012), and then reopened (77 FR 58086, September 12, 
2012), and ended on October 12, 2012. In March 2013, NMFS published a 
report that summarizes the comments received on the ANPR (http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html). In addition to the ANPR, issues related to the NS 
guidelines were discussed at several other public forums. NMFS proposed 
revisions to the General section of the NS guidelines and the 
guidelines for NS1, NS3, and NS7 on January 20, 2015 (80 FR 2786, 
January 20, 2015). Further background is provided in the above-
referenced Federal Register documents and is not repeated here. The 
proposed rule described the objective of the proposed revisions, which 
is to improve and streamline the NS1 guidelines, address concerns 
raised during the implementation of ACLs and AMs, and provide 
flexibility within current statutory limits to address fishery 
management issues.
    NMFS solicited public comment on the proposed revisions to the 
guidelines through June 30, 2015, and during that time made 
presentations on the proposed revisions to seven of the eight Regional 
Fisheries Management Councils (Councils) and held one public meeting on 
March 25, 2015 (Silver Spring, Maryland). NMFS received more than 
102,000 comments on all aspects of the proposed revisions. Many of the 
comment letters were form letters or variations on a form letter. In 
general, the fishing industry and the Councils supported the majority 
of the provisions in the proposed action meant to provide flexibility 
within the current statutory limits but stated that many of the new 
provisions required additional guidance in the final action. In 
general, the environmental community opposed the proposed revisions, 
stating that they would reverse recent successes in U.S. fisheries 
management and did not address pertinent issues such as ecosystem-based 
fisheries management (EBFM), forage fish, and climate change.

II. Major Components of the Proposed Action

    Some of the major items covered in the proposed guidelines included 
the following: (1) Add a recommendation that Councils reassess the 
objectives of their fisheries on a regular basis; (2) consolidate and 
clarify guidance on identifying whether stocks require conservation and 
management; (3) provide additional flexibility in managing data limited 
stocks; (4) revise the guidance on stock complexes to encourage the use 
of indicator stocks; (5) describe how aggregate maximum sustainable 
yield (MSY) estimates can be used; (6) develop a definition for a 
depleted stock; (7) provide increased stability in fisheries by 
providing guidance on the use of multi-year overfishing determinations; 
(8) revise the guidance on optimum yield (OY) to improve clarity and 
better describe the role of OY under the ACL framework; (9) clarify the 
guidance on acceptable biological catch (ABC) control rules, describe 
how ABC control rules can allow for phase-in adjustments to ABC, and 
allow for carry-over of all or some of an unused portion of the ACL; 
(10) revise the guidance on AMs to improve clarity; (11) clarify the 
guidance on establishing ACL and AM mechanisms in FMPs; (12) clarify 
the guidance on adequate progress in rebuilding and extending 
rebuilding timelines; and (13) provide flexibility in rebuilding 
stocks.

III. Major Changes Made in the Final Action

    The approaches proposed under items #1, 3-5, 8, and 10-11 above are 
retained in this final action. The main substantive change in the final 
action pertains to the proposed definition for

[[Page 71859]]

depleted stocks (#6). NMFS proposed adding the term ``depleted'' to the 
NS1 guidelines to describe those stocks whose biomass has declined as a 
result of habitat loss and other environmental conditions, as opposed 
to fishing pressure. However, separating out the impacts of 
environmental factors from the impacts of fishing on a stock is a 
difficult task and public comments reflected concern that the proposed 
definition for depleted stocks was overly restrictive and would not 
definitively distinguish between stocks primarily impacted by 
environmental factors and stocks primarily impacted by fishing 
pressure. Thus, the final action does not include the proposed 
definition of depleted stocks and instead retains the current 
requirement that stocks whose biomass has declined below its MSST are 
considered to be overfished, regardless of the factors (fishing-related 
or otherwise) responsible for the stock's decline. A Council may use 
the term ``depleted'' to further describe the status of an overfished 
stock that has been impacted to some extent by environmental factors in 
addition to (or in the absence of) fishing pressure.
    In response to public comment, this final action also clarifies 
text on stocks that require conservation and management (#2), multi-
year approaches to overfishing stock status determinations (#7), phase-
in and carry-over ABC control rules (#9), adequate progress 
determinations for rebuilding plans (#12), and discontinuing rebuilding 
plans (#13), and makes minor clarifications to other text. Further 
explanation of why changes were or were not made is provided in the 
``Response to Comments'' section below. Details on changes made in the 
codified text are provided in the ``Changes from Proposed Action'' 
section.

IV. Overview of the Major Aspects of the Final Action

A. Stocks That Require Conservation and Management

    NMFS received numerous comments on proposed Sec.  600.305(c), which 
contains new guidance to Councils on determining, pursuant to their 
obligation under MSA section 302(h)(1), whether stocks require (or, are 
in need of) conservation and management. The MSA establishes that each 
Council should prepare an FMP for each fishery under its authority that 
requires conservation and management. 16 U.S.C. 1801(b)(1). Because not 
every fishery requires federal management, NMFS believes that 
consolidated, streamlined guidance on determining which stocks are in 
need of conservation and management and thus, federal management, will 
be beneficial to managers. Further background and rationale for this 
proposed revision to the guidelines was provided on pages 2788-2789 of 
the proposed rule. See 80 FR 2788-2789, January 20, 2015.
    Sections V and VI (Responses to Comments and Changes from Proposed 
Rule) provide a detailed explanation of changes made from the proposed 
to final action. Here, NMFS highlights a few of those changes. Final 
Sec.  600.305(c)(1) provides--unchanged from the proposed action--that 
stocks that are predominately caught in Federal waters and are 
overfished or subject to overfishing, or likely to become overfished or 
subject to overfishing, are considered to require conservation and 
management. 16 U.S.C. 1853(a)(1)(A) (requiring that FMPs contain 
conservation and management necessary to prevent overfishing and 
rebuild overfished stocks). However, the final action clarifies that 
Federal management is not limited to such stocks (i.e., predominantly 
caught in Federal waters and overfished or subject to overfishing, or 
likely to become so). To determine if other stocks require conservation 
and management, the guidelines contain a non-exhaustive list of factors 
(see Sec.  600.305(c)(1)(i)-(x)) that Councils should consider when 
determining whether a stock requires conservation and management.
    The final action adds an explanation at Sec.  600.305(c)(3) that, 
when considering adding a stock to an FMP, no single factor is 
dispositive or required. One or more of the factors may provide a basis 
for determining a stock is in need of conservation and management. When 
considering removing a stock from an FMP, final Sec.  600.305(c)(4) 
provides--as proposed--that Councils should consider each of the ten 
factors. NMFS received many comments on Sec.  600.305(c)(1)(x) in 
particular. Section 600.305(c)(1)(x) speaks to the consideration of 
other existing management regimes when determining whether Federal 
management is necessary. In response to comments, the final action 
deletes the phrase ``could be or'' from Sec.  600.305(c)(1)(x), which 
implied that the mere possibility that other management regimes may 
exist is an appropriate consideration for determining whether a stock 
requires conservation and management, which was not the intention 
behind the proposed revisions.
    Finally, while nothing in the proposed revisions changed previous 
guidance on the optional usage of ecosystem component (EC) species, 
NMFS clarifies in the final action that Councils may still use EC 
species at their discretion and re-inserts a definition of EC species. 
However, the definition of EC species in the final action does not 
include criteria for designation because a Council is free to designate 
any stock, that is determined not in need of conservation of 
management, as an EC species at their discretion. Criteria for the 
designation of EC species is no longer necessary because the factors 
listed in Sec.  600.305(c)(1)(i)-(x) of this final action clarify which 
stocks are in need of conservation and management and therefore cannot 
be designated as EC species. Because the designation of EC species may 
be done to accomplish several different goals, NMFS does not believe it 
is appropriate to prescribe specific guidance on the requirements for 
managing and monitoring EC species.

B. Multi-Year Approaches to Overfishing Stock Status Determinations

    Another major aspect of the revised NS1 guidelines is the inclusion 
of guidance on a method for determining the overfishing status of a 
stock based on a multi-year approach. The MSA defines overfishing as a 
``rate or level of fishing mortality that jeopardizes the capacity of a 
fishery to produce the MSY on a continuing basis.'' 16 U.S.C. 1802(34). 
Thresholds for deciding whether a stock is subject to overfishing can 
be determined either by comparing rates of fishing mortality (F) to the 
maximum fishing mortality threshold (MFMT) or catch to the overfishing 
limit (OFL). See Sec.  600.310(e)(2)(i)(B)-(D).
    Pursuant to MSA section 304(e)(1), NMFS must report annually to 
Congress and the eight Councils on the status of all Federally-managed 
fish stocks. 16 U.S.C. 1854(e)(1). Overfishing status determinations 
are typically made based on the most recent year for which there is 
information. When utilizing the F-based approach, the estimate of F for 
the most recent year for which there is data is often more uncertain 
than the estimates of F in prior years (NRC 1998). In addition, the 
extent to which the effort or catch exceeded the threshold for 
overfishing has not traditionally been considered when determining 
whether the stock was subject to overfishing. Small amounts of excess 
effort or catch in a single year may not jeopardize a stocks' ability 
to produce MSY over the long term, thus an overfishing stock status 
determination based on that single year's reference point may not be 
the most appropriate characterization of stock status. To

[[Page 71860]]

address this issue, the proposed revisions introduced a multi-year 
approach (that may not exceed 3 years) to allow Councils to examine 
whether the extent to which a stock has surpassed its overfishing 
threshold actually jeopardizes the stock's ability to produce MSY on a 
continuing basis. See Sec.  600.310(e)(2)(ii)(A)(3) of the proposed 
action. Using a multi-year approach to determine overfishing stock 
status is best used when managers believe the most recent year's data 
point may not reflect the overall status of the stock. Further 
background on the proposed multi-year overfishing stock status 
determination provision was provided on pages 2791-2792 of the proposed 
rule. See 80 FR 2791-2792, January 20, 2015.
    Public comments reflected confusion regarding proper use of this 
provision. Thus, the final action clarifies that, under certain 
circumstances, a Council may determine that it is appropriate to use a 
multi-year approach for overfishing status determination criteria 
(SDC). Such circumstances may include, but are not limited to, 
situations where there is high uncertainty in the estimate of F in the 
most recent year, cases where stock abundance fluctuations are high and 
assessments are not timely enough to forecast such changes, or other 
circumstances where the most recent catch or F data does not reflect 
the overall status of the stock. The final action clarifies that a 
Council must identify, within its FMP or FMP amendment, the 
circumstances (such as those listed above) in which a multi-year 
approach to overfishing SDC will be used. The final action also 
emphasizes that a multi-year approach is to be used only for 
retrospective stock status determinations, i.e., determinations that 
NMFS makes to fulfill statutory reporting requirements. 16 U.S.C. 
1854(e)(1). The provision may not be used to establish annual catch 
limits. For example, if the catch of a stock in a single year was well 
below its ACL, a Council may not justify setting the next year's catch 
level above the OFL based on the multi-year approach. NMFS provides 
additional explanation and clarification on this issue in the responses 
to comments below.

C. Acceptable Biological Catch (ABC) Control Rules

    An ABC control rule accounts for scientific uncertainty in the OFL 
and for the Council's risk policy when establishing an ABC. The 
proposed guidelines would allow Councils to develop an ABC control rule 
that would phase-in changes to the ABC over a period of time not to 
exceed 3 years, so long as overfishing is prevented. See Sec.  
600.310(f)(2)(ii)(A) of the proposed action. NMFS also proposed 
allowing Councils to carry-over some of the unused portion of the ACL 
from one year to increase the ABC for the next year, based on increased 
stock abundance resulting from the fishery harvesting less than the 
full ACL. The proposed NS1 guidelines clarified that Councils 
establishing phase-in and/or carry-over provisions in their ABC control 
rules would need to specify when each provision can and cannot be used 
and how each provision prevents overfishing, based on a comprehensive 
analysis. See Sec.  600.310(f)(2)(ii). Further background and rationale 
on the proposed revisions to establish phase-in and carry-over ABC 
control rules was provided on page 2794 of the proposed rule. See 80 FR 
2794, January 20, 2015.
    NMFS received a variety of public comments expressing concern that 
phase-in and carry-over provisions would increase the risk of 
overfishing. The final action emphasizes that Councils should conduct a 
comprehensive analysis of every ABC control rule--which would include 
those with phase-in and/or carry-over provisions--that shows how the 
control rule prevents overfishing. See Sec.  600.310(f)(2)(i) and (ii) 
of final action. The final action also clarifies that, for stocks that 
are overfished and/or rebuilding, Councils should evaluate the 
appropriateness of carry-over provisions for such stocks. Finally, the 
final action contains language recommending that Councils should 
consider the reason for ACL underages when deciding whether to allow 
carry-over.

D. Adequate Progress Determinations for Rebuilding Plans

    MSA section 304(e)(7) requires the Secretary to review rebuilding 
plans to ensure that adequate progress toward ending overfishing and 
rebuilding affected fish stocks is being made. 16 U.S.C. 1854(e)(7). 
NMFS received several comments in response to the ANPR requesting 
additional guidance on adequate progress determinations and thus, NMFS 
proposed guidance to clarify that the review of rebuilding progress 
could include the review of recent stock assessments, comparisons of 
catches to the ACL, or other appropriate performance measures. NMFS 
also proposed that the Secretary may find that adequate progress in 
rebuilding is not being made if: (1) Frebuild or the ACL 
associated with Frebuild are being exceeded and AMs are not 
effective at correcting for the overages; or (2) when the rebuilding 
expectations of the stock or stock complex have significantly changed 
due to new and unexpected information about the status of the stock. 
See Sec.  600.310(f)(3)(iv). Public comment raised concern that these 
criteria do not consider biomass trends, which would allow adequate 
progress determinations to be made for stocks where, despite 
maintaining catch at or below Frebuild, the biomass is 
failing to increase. Having considered public comment, NMFS has decided 
to keep the proposed criteria for adequate progress determinations in 
the final action. As mentioned in the proposed action, the 2013 
National Research Council (NRC) report on rebuilding highlighted that 
the primary objective of a rebuilding plan should be to maintain 
fishing mortality at or below Frebuild. By doing so, 
managers can avoid issues with updating timelines that are based on 
biomass milestones, which are subject to uncertainty (see Sec.  
600.310(j)(3)(i)(A)) and changing environmental conditions that are 
outside the control of fishery managers. NMFS emphasizes in the final 
action that, despite the uncertainty associated with biomass trends, 
there is a strong relationship between F-rates and biomass trends. 
Stocks that consistently experience fishing mortality above 
Frebuild generally experience declining or little increases 
in biomass, while stocks that consistently experience fishing mortality 
equal to or below Frebuild generally experience increasing 
biomass. Cases where stock biomass is not increasing despite 
maintaining catch levels at or below Frebuild levels would 
be unexpected. Such cases would likely trigger the second criteria for 
determining that adequate progress is not being made (i.e., new and 
unexpected information has significantly changed the rebuilding 
expectations of the stock). Thus, NMFS is confident that the criteria 
for adequate progress determinations (see Sec.  600.310(j)(3)(iv) of 
the final action), address and cover situations where a rebuilding plan 
fails to properly constrain fishing mortality rates as well as 
situations where a rebuilding stock's biomass is failing to increase. 
NMFS believes that further guidance on this issue is not necessary to 
include within the NS1 guidelines.

E. Adding Flexibility in Rebuilding Plans

Calculating Tmax
    The NS1 guidelines provide guidance on determining the minimum 
(Tmin), maximum (Tmax), and target 
(Ttarget) time to rebuild a stock to a level that supports 
MSY (Bmsy). In the past, Councils have had difficulties

[[Page 71861]]

calculating Tmax based on the original data-intensive method 
(i.e., Tmin + one generation time) that requires data on 
life history, natural mortality, age at maturity, fecundity, and 
maximum age of the stock (Restrepo, et al. 1998). In order to allow 
Councils to make Tmax calculations despite variable 
information and data availability amongst stocks, NMFS proposed 
specifying three methods to calculate Tmax within the 
guidelines: (1) Tmin plus one mean generation time (status 
quo); (2) the amount of time the stock is expected to take to rebuild 
to its Bmsy if fished at 75 percent of the MFMT; or (3) 
Tmin multiplied by two. Further background and rationale on 
the proposed revisions to the guidance on the calculation of 
Tmax was provided on pages 2795-2796 of the proposed rule. 
See 80 FR 2795-2796, January 20, 2015.
    NMFS received many comments on the proposed additional methods to 
calculate Tmax, and some commenters stated that if Councils 
use the method that yields the longest Tmax estimate, the 
resulting rebuilding plan would not be effective nor meet the statutory 
requirement that rebuilding plans rebuild a stock in as short a time as 
possible. 16 U.S.C. 1854(e)(4)(A)(i).
    After taking into consideration public comment, NMFS has decided to 
keep the additional Tmax calculation methods, but has 
revised the final action to provide additional guidance on how to 
determine which method to use. First, NMFS added language to the final 
action to emphasize that, where Tmin exceeds 10 years, 
Tmax establishes a maximum time for rebuilding that is 
linked to the biology of the stock. As such, NMFS also highlighted that 
decisions regarding which Tmax calculation method to use 
should be driven by the best scientific information available with 
consideration of relevant biological data and the scientific 
uncertainty of that data (rather than the outcome of the calculation). 
Councils must also work with their Scientific and Statistical 
Committees (SSCs) (or agency scientists or peer review processes in the 
case of Secretarial actions) to determine which Tmax 
calculation method to use. Finally, NMFS also provided examples of 
cases where, given data availability and the life history 
characteristics of a stock, it may be appropriate to use one of the 
alternative methods instead of the status quo calculation method 
(Tmin plus one mean generation time).
    Furthermore, while Councils may use Tmax as a 
measureable upper bound on the duration of rebuilding time periods, 
Councils must set a target time for rebuilding (Ttarget) 
that is as short as possible, taking into consideration certain 
statutory factors. See Sec.  600.310(j)(3)(i). Thus, Councils must 
demonstrate that their adopted Ttarget is the shortest time 
possible for rebuilding and Council action addressing an overfished 
fishery should be based on Ttarget.
Discontinuing Rebuilding Plans
    Due to scientific uncertainty in the biomass estimates of fish 
stocks, occasionally a stock is identified as overfished, but is later 
determined to have never been overfished. In the past, NMFS' approach 
has been that, once a rebuilding plan has been implemented, the 
rebuilding plan cannot be discontinued until the stock has been rebuilt 
to Bmsy, regardless of new information about the status of 
the stock when it was originally declared overfished. To address this 
issue, NMFS proposed to allow a rebuilding plan to be discontinued if 
both of the following criteria are met: (1) The Secretary 
retrospectively determines the stock was not overfished in the year 
that the overfished determination was made; and (2) the biomass of the 
stock is not currently below the MSST. See Sec.  600.310(j)(5) of the 
proposed action. Further background and rationale on the proposed 
revisions to the guidance on the discontinuation of rebuilding plans 
was provided on pages 2796-2797 of the proposed rule. See 80 FR 2796-
2797, January 20, 2015.
    Based on public comments, this final action adds that the stock 
must be shown to have never been overfished in subsequent years 
following the original overfished determination, including the current 
year. This revision effectively covers the two criteria, thus the final 
action deletes the proposed second criteria. See Sec.  600.310(j)(5) of 
the final action. Should new information demonstrate that the stock was 
overfished in a subsequent year, a rebuilding plan is still necessary 
and rebuilding timeframes should be adjusted accordingly. It should 
also be noted that discontinuation of a rebuilding plan that meets the 
criteria listed within the final action is not mandatory or automatic; 
a Council may choose to retain a rebuilding plan for conservation and 
management purposes.

V. Response to Comments

Management Objectives of FMPs

    Comment 1: NMFS received several comments regarding the proposed 
provision to regularly re-assess FMP management objectives. Some 
comments requested clarity regarding the flexibility of the term 
``regular''--whether it meant reassessments could be completed on an 
as-needed basis, or whether the Council needs to specify a numerical 
period (e.g., every 5 or 7 years). Some commenters suggested that 
opportunities for reassessments already exist within standard Council 
processes (e.g., creating FMP amendments; biennial reviews) and that 
the regularity of objective reassessments should be at the Council's 
discretion based on workload and resource constraints. Commenters also 
requested that the guidelines specify ``triggers'' for FMP 
reassessments, especially to encourage reassessment of outdated 
objectives. Commenters also supported evaluations of whether management 
is achieving FMP management objectives. Another commenter requested 
that the provision be expanded to include a periodic review of fishery 
monitoring systems that provide data for implementing FMPs in addition 
to FMP management objectives. Finally, with regard to the result of the 
proposed reassessments, one commenter requested that the guidelines 
outline a process for instances when a reassessment finds the FMP 
management objectives are no longer valid.
    Response: NMFS believes that a prescribed time period for 
reassessments is not appropriate and provided rationale for this 
decision in the proposed action preamble. Nothing raised in the 
comments has caused NMFS to revise this rationale. NMFS chose not to 
prescribe a set time period for ``a regular basis'' in order to provide 
the Councils with the flexibility to determine this time frame 
themselves. While no time frame is prescribed, Councils should provide 
notice to the public of their expected schedule for review. Given the 
scope and complexity of such a task, NMFS does not expect Councils to 
reassess their FMP objectives every few years; rather some longer time 
frame which staggers the review of each FMP may be more appropriate. 
See 80 FR 2787, January 20, 2015.
    If, following reassessment, a Council finds that an FMP's 
management objectives are no longer meeting the needs of the fishery 
and do not properly address relevant social, economic, and ecological 
factors, NMFS encourages Councils to adjust their management 
objectives. As with the issue of time periods for review, NMFS believes 
that it is important to preserve Council flexibility in determining how 
best to make these adjustments and therefore declines to establish a 
single process to address issues raised in the reassessments. NMFS 
urges Councils to

[[Page 71862]]

evaluate whether management measures are meeting FMP objectives, 
especially within the context of evaluating the changing needs of the 
fishery.
    Finally, while NMFS agrees that the fishery monitoring systems and 
data collection programs set up to deliver the necessary data for FMP 
implementation are crucial to successfully meeting FMP management 
objectives, a review of these systems and programs does not need to be 
included in the reassessment of an FMP's management objectives.
    Comment 2: One commenter suggested that NMFS replace ``objectives 
of the fishery'' in Sec.  600.305(b)(2) with ``FMP's management 
objectives'' to make the language consistent with the rest of the 
guidelines.
    Response: NMFS agrees, and has made the suggested edit in the final 
action.
    Comment 3: Commenters requested more guidance on what Councils 
should consider when creating and assessing FMP management objectives. 
Specifically, commenters requested that the guidelines include 
additional guidance on how management objectives should tie into 
objectives related to the MSA; its national standards; and the 
ecological, economic, and social factors of OY specifications. 
Commenters also requested guidance on how conflicting objectives should 
be resolved in favor of the conservation mandate in NS1. While one 
commenter requested the guidelines encourage reassessments to respond 
to changes in ecosystem components (e.g., protected species), other 
commenters requested that the requirements for reassessments be kept at 
a minimum to preserve resources and flexibility.
    Response: NMFS believes that the proposed guidelines set 
appropriate parameters for the reassessment of FMP management 
objectives while leaving the exact considerations for management 
objectives up to the discretion of the Councils. The MSA itself 
``guides'' (or rather, drives) the development of FMPs, as it sets 
forth conservation and management mandates and requirements, including 
the national standards, with which FMPs must be consistent. With regard 
to ecosystems, NMFS believes that the Council has discretion and 
flexibility to efficiently respond to changes in ecosystems during 
their reassessments of FMP management objectives. Thus, NMFS does not 
believe any further guidance is needed within the NS1 guidelines.
    Comment 4: One commenter suggested adding language to Sec.  
600.310(e)(3)(iii)(B)(1) of the proposed action on the enjoyment and 
participation gained from recreational fishing when some stocks are 
managed for abundance rather than maximum harvest. The commenter also 
suggested adding language to Sec.  600.310(e)(3)(iii)(B)(2) of the 
proposed action on necessary shifts in mixed use allocations to achieve 
maximum economic and public use benefits.
    Response: NMFS does not believe that Sec.  600.310(e)(3)(iii)(B)(1) 
needs to be revised as suggested. OY is derived from MSY, which is the 
largest long-term average catch or yield that can be taken from a stock 
or stock complex, thus ``abundance'' of a stock is a consideration 
addressed through the description of OY within the guidelines. See 
Sec.  600.310(e)(1)(i), (e)(3)(i)(A) (defining MSY and OY). NMFS agrees 
that allocation of fishery resources is one of the issues that may need 
to be considered when re-assessing an FMP's management objectives. NMFS 
explicitly highlighted allocation as a consideration for reassessments 
of management objectives in the proposed action. See 80 FR 2787, 
January 20, 2015. However, NMFS disagrees that further allocation 
examples need to be added to the economic and social factors a Council 
can consider when setting OY and their management objectives. The NS1 
guidelines set forth examples of different considerations for each 
factor, and NMFS believes the examples provide sufficient guidance.

Stocks That Require Conservation and Management

    Comment 5: NMFS received numerous comments on the newly proposed 
section on stocks in need of conservation and management. See Sec.  
600.305(c). Many commenters perceived the revisions as an impermissible 
narrowing of the obligations imposed by the MSA. Some commenters urged 
that, to the extent that NMFS is offering guidance on whether stocks 
are in need of conservation and management, that any factors considered 
should be solely based on the MSA's definition of ``conservation and 
management'' at 16 U.S.C. 1802(5) and that it was inappropriate to 
bring in other statutory provisions such as National Standards 3 and 7 
as part of that analysis. In contrast, others believed that by 
prescribing a list of factors to consider when determining that stocks 
are in need of conservation and management that NMFS has 
inappropriately curtailed the discretion afforded to the Councils to 
make that determination. Commenters suggested alternative approaches 
for Councils to take to determine whether conservation and management 
is necessary. Commenters also suggest that in addition to answering 
whether a stock is in need of conservation and management, they should 
also consider why that stock may be in need of conservation and 
management and how that stock should be best managed (if at all). In 
particular, one commenter requested that NMFS provide additional 
information on the deletion of two provisions from the NS7 guidelines 
published in 1998 (Sec.  600.340(b)(1); 600.340(b)(2)(vii); (see 63 FR 
24234, May 1, 1998)) from the proposed action. The commenter suggested 
the provisions should be incorporated into Sec.  600.305(c)(1) to allow 
Councils to balance the costs and benefits of management and consider 
whether management serves some useful purpose. Finally, some commenters 
noted that Councils have the ability to implement protective measures 
for species that are not necessarily included as stocks in an FMP.
    Response: An FMP must be prepared for a fishery that requires 
conservation and management. 16 U.S.C. 1852(h)(1). In proposing Sec.  
600.305(c), NMFS did not intend to narrow this requirement to merely 
those fisheries that are overfished or subject to overfishing. Instead, 
as explained in the proposed action, NMFS sought to clarify that, while 
not every stock requires federal management, stocks that are overfished 
or subject to overfishing (or likely to become so) and that are 
predominately caught in federal waters must be included in an FMP. In 
addition, a Council may find that other stocks within its jurisdiction 
require conservation and management as well. Beyond stocks that are 
overfished or subject to overfishing (or likely to become so), NMFS 
provides a list of non-exhaustive factors within the guidelines that 
Councils should consider when determining whether a stock requires 
conservation and management.
    As MSA section 1852(h)(1) is broadly worded, the proposed 
regulatory guidance was intended to assist Councils in making 
determinations under this section. To make sure that NMFS' intent is 
clear, the final action includes clarifying edits to emphasize the 
agency's approach with regard to overfishing/overfished stocks and 
other stocks.
    As discussed further in response to comment 7, the factors are 
drawn in the first instance from the statutory definition of 
``conservation and management.'' 16 U.S.C. 1802(5). The proposed action 
cited to that definition,

[[Page 71863]]

and the final action adds the citation for the definition. Although the 
definition of ``conservation and management'' speaks generally to 
actions that are required to rebuild fisheries, designed to assure a 
supply of food and recreational benefits, and meet other goals, that 
definition and section 1852(h)(1) do not provide clear direction on 
when a stock is in need of conservation and management. Thus, NMFS 
believes that it is appropriate to consider the statute as a whole, 
including the National Standards and relevant definitions and 
provisions, to provide constructive guidance to the Councils on section 
1852(h)(1). See FR 2786, 2788-278980, January 20, 2015 (discussing 
National Standard 3 and 7 guidelines and relevant MSA provisions in 
preamble to proposed action).
    The factors incorporate the general principle from the 1998 NS7 
guidelines at Sec.  600.340(b)(1) that not every fishery needs Federal 
management. See 63 FR 24234, May 1, 1998. NMFS does not agree with 
adding a factor on balancing costs associated with an FMP against 
benefits: This was a criteria under Sec.  600.340(b)(2)(vii) of the 
1998 guidelines for deciding whether a fishery ``needs management 
through regulations implementing an FMP.'' Section 600.305(c) of this 
action provides guidance on the threshold determination of whether to 
add a stock to an FMP or remove a stock from an FMP, based on whether a 
stock requires conservation and management. The factors do not speak to 
what regulatory measures, if any, may or may not be needed for the 
stock. Costs and benefits should be evaluated when specific regulatory 
measures are being considered. For clarification and streamlining 
purposes, Sec.  600.340(b)(2)(vii) was deleted from the proposed and 
final revisions to the NS7 guidelines, as Sec.  600.340(c) addresses 
analysis of costs and benefits.
    NMFS disagrees that the factors curtail Council discretion. The 
list of factors is non-exhaustive, and Councils may take into account 
any additional considerations that may be relevant to the particular 
stock. See responses to comments 7 and 8 for further discussion of the 
factors. NMFS realizes that the proposed text may have implied that a 
Council must analyze all ten factors before adding a stock to an FMP. 
Thus, NMFS has revised final Sec.  600.305(c)(3) to state that one or 
more of the factors may provide the basis for adding a stock to an FMP. 
Response to comment 8 provides a more detailed explanation of other 
clarifications made in final Sec.  600.305(c)(3) and (4) regarding use 
of the factors when adding a stock to or removing a stock from an FMP.
    NMFS agrees, particularly with respect to stocks that may require 
conservation and management to address biological or ecological 
concerns, that the cause of those concerns would be a useful 
consideration for the Councils. The final guidance does not preclude 
such considerations, and in fact provides a framework for a Council to 
consider these very relevant questions. Furthermore, based on factor 3, 
which considers whether an FMP can improve or maintain the condition of 
the stocks, NMFS has added language within Sec.  600.305(c)(3)-(4) that 
emphasizes that if the amount and/or type of catch that occurs in 
Federal waters is a significant contributing factor to the stock's 
status, such information would weigh heavily in favor of inclusion of 
the stock within an FMP. See Sec.  600.305(c)(3)-(4).
    Finally, NMFS agrees that Councils may implement discretionary 
measures for species, even if they do not ``require conservation and 
management'' pursuant to section 302(h)(1). Section 303(b)(12) of the 
MSA provides that Councils may include management measures in the plan 
to conserve target and non-target species and habitats, considering the 
variety of ecological factors affecting fishery populations. 16 U.S.C. 
1853(b)(12). Additionally, in implementing measures to comply with 
National Standard 9's requirement that an FMP's conservation and 
management measures minimize bycatch and bycatch mortality to the 
extent practicable, Councils can take measures that conserve and 
protect bycatch species even if those bycatch species are not, 
themselves, included as stocks in a fishery under an FMP. Id. 
1851(a)(9).
    Comment 6: Some commenters expressed concern with the proposed text 
at Sec.  600.305(c)(1) regarding stocks that are ``predominately 
caught'' in Federal waters. Commenters stated that the limiting 
``predominately'' language is not part of the MSA and would improperly 
exclude stocks from management.
    Response: The ``predominately caught'' language in Sec.  
600.305(c)(1) does not exclude any stocks from management. As explained 
in the response to comment 5, MSA section 302(h)(1) and other related 
MSA provisions do not provide clear direction on when to include stocks 
in an FMP. NMFS proposed the text regarding overfished/overfishing 
stocks predominately caught in Federal waters to provide clear guidance 
on when stocks must be included in an FMP. MSA section 1853(a)(1)(A), 
among other provisions, supports this approach, as it requires that 
FMPs contain conservation and management measures ``necessary and 
appropriate'' to prevent overfishing and rebuild overfished stocks. 16 
U.S.C. 1853(a)(1)(A). If a stock is not predominately (i.e. mainly, or 
for the most part) caught in Federal waters, a Council may lack the 
authority, and thus ability, to adopt measures that would prevent 
overfishing and rebuild overfished stocks. It would not make sense, in 
that case, to require a Council to automatically include the stock in 
an FMP.
    ``Conservation and management'' and ``fishery'' are defined in 
terms of practical use or benefit and the ability to manage, which 
supports the inclusion of predominately in 600.305(c). ``Conservation 
and management'' refers to regulations, measures, etc., which are 
required [i.e., considered essential; indispensable] to rebuild, 
restore, or maintain, and which are useful [i.e., having a beneficial 
use; being of practical use] in rebuilding, restoring, or maintaining 
any fishery resource and the marine environment. 16 U.S.C. 1802(5). 
``Fishery'' refers to ``one or more stocks of fish which can be treated 
as a unit for purposes of conservation and management . . .'' Id. Sec.  
1802(13) (emphasis added). ``Stock of fish,'' which is referenced in 
the definition of ``fishery,'' means a species, subspecies, 
geographical grouping, or other category of fish capable of management 
as a unit. Id. Sec.  1802(42).
    As noted above, NMFS does not believe it is appropriate to require 
inclusion of overfishing/overfished stocks in an FMP, if a Council 
lacks the authority or ability to adopt measures that will prevent or 
end overfishing or rebuild the stocks. NMFS proposed, and is retaining 
in this final action, use of the phrase ``predominately caught in 
Federal waters'' to address this concern. A similar phrase--fishing 
``engaged in predominately within the exclusive economic zone and 
beyond that zone''--is one of two factors that allow NMFS to regulate a 
fishery within the boundaries of a State. Id. Sec.  1856(b)(1)(A). 
While section 1856(b) is about preemption, it provides further support 
for the ``predominately caught'' approach under Sec.  600.305(c)(1). 
Section 306 recognizes the efficacy of federal management when a 
fishery is engaged in ``predominately'' in federal waters. Likewise, 
Sec.  600.305(c) includes ``predominately'' based on efficacy 
considerations.
    NMFS notes that, even if a stock is not required to be included in 
an FMP (i.e., stock is not overfishing/overfished and predominately 
caught in Federal

[[Page 71864]]

waters), a Council may still determine that a stock requires 
conservation and management based on consideration of one or more of 
the factors in paragraphs Sec.  600.305(c)(1)(i) through (x). See 
response to comment 8 for further explanation of use of the factors 
when adding a stock to an FMP.
    Comment 7: NMFS received numerous comments regarding the specific 
factors included in paragraphs Sec.  600.305(c)(1)(i) through (x) of 
the proposed action. One commenter argued that factor (i)--whether the 
species plays an important role in the ecosystem--should be modified to 
focus on whether the species' role in the ecosystem is potentially 
affected by fishing. Additionally, many commenters believed that 
factors iv-vi, which took into consideration economic or social 
implications of management decisions were inappropriate because they 
improperly brought those considerations into a matter that should be 
solely focused on the conservation needs of a stock based on the best 
available science. Factor iv--the stock is a target of a fishery--was 
particularly polarizing with some commenters expressing that it should 
be the primary factor considered by Councils while others were urging 
that it be removed from the list as irrelevant. NMFS also received 
mixed reactions to factor (x)--the extent to which the fishery could be 
or is already adequately managed. Some called for factor (x) to be 
removed and, in particular, the phrase ``industry self-regulation'' to 
be removed because, for example, no other management regime has proven 
as effective as Federal management under the MSA and there is no 
description of what ``adequate management'' under industry self-
regulation would entail. Other commenters stressed the importance of 
factor (x).
    Response: NMFS disagrees that the first nine factors require 
revision. Potential effects on a species from a fishery is addressed in 
factor (ii) and, beyond the factors, a Council may take into account 
any additional considerations that may be relevant to the particular 
stock. Whether a fishery targets a stock (factor (iv)) is a relevant 
consideration: If a fishery is targeting a stock in federal waters, it 
is likely that the stock will be vulnerable to the impacts of fishing 
mortality and that there may be conflicts over the allocation of that 
stock. With regard to factors (iv) through (vi), the definition of 
``conservation and management'' indicates that whether a stock requires 
measures to rebuild, restore, or maintain any fishery resource and the 
marine environment is as important to consider as whether measures are 
needed to ensure a multiplicity of options available with respect to 
future uses of these resources. 16 U.S.C.1802(5). Many of the factors 
that commenters objected to are intended to prompt consideration of the 
necessity and appropriateness of Federal management. 16 U.S.C. 
1853(a)(1)(A). NMFS believes that the factors, as written, allow 
significant discretion for the Councils to evaluate the specific facts 
presented by a wide variety of stocks and fisheries to determine the 
necessity and utility of federal management.
    With respect to factor (x), NMFS continues to believe that MSA 
section 302(h)(1) does not require preparation of FMPs for all 
fisheries in the EEZ. Among other things, the MSA recognizes the 
authority of a State to regulate fisheries within its boundaries and 
authorizes a State under certain circumstances to regulate its vessels 
outside state boundaries. Furthermore, the MSA mandates that the 
conservation and management measures for stocks under an FMP, where 
practicable, minimize costs and avoid unnecessary duplication. 16 
U.S.C. 1851(a)(7) (National Standard 7) and 1856(a)(3) (state 
jurisdiction); see also 80 FR 2786, 2788-2789, January 20, 2015 
(discussing these and other provisions in preamble to proposed action). 
Thus, if a Council determines (and the Secretary concurs) that a 
particular industry self-regulation structure constitutes an adequate 
management structure consistent with the national standards, other 
provisions of the Magnuson-Stevens Act, and other applicable law, an 
industry self-regulation structure that minimizes costs and avoids 
unnecessary duplication of management measures is a relevant 
consideration under Sec.  600.305(c). Therefore, NMFS retains factor 
(x) in this final action. However, in response to public comment, NMFS 
is revising factor (x) to delete the words ``could be or'' from ``[t]he 
extent to which the fishery is already adequately managed . . .'' NMFS 
agrees with commenters that the mere possibility of other management 
regimes should not be considered as a relevant factor when determining 
whether federal management is required.
    Comment 8: Commenters requested further guidance in applying the 
factors under Sec.  600.305(c)(1). Some commenters requested that the 
final guidelines make clear which factors weighed in favor of 
inclusion, but should not be used to justify exclusion. Other 
commenters suggested that NMFS provide greater guidance on how to weigh 
the factors relative to each other, for example ``tiering'' the factors 
based on their relative specificity and significance.
    Response: Section 600.305(c)(2) of the proposed action explained 
that, when considering adding a new stock to an FMP or keeping a stock 
within an FMP, Councils should prepare an analysis of the factors to 
assist in determining which stocks require conservation and management. 
NMFS has modified this text in the final action to clarify the process 
for adding and removing stocks from an FMP (final Sec.  600.305(c)(3) 
and (4), respectively). In Sec.  600.305(c)(3), NMFS explains that, 
when considering adding a stock to an FMP, no single factor is 
dispositive or required. An analysis of all ten factors is not required 
to add a stock to an FMP. One or more of the factors, and any 
additional considerations that may be relevant to the particular stock, 
may provide the basis for determining that a stock requires 
conservation and management.
    For clarity, NMFS revised the phrase ``keeping an existing stock 
within an FMP'' (proposed Sec.  600.305(c)(2)) to ``removing a stock 
from, or continuing to include a stock in, an FMP'' (final Sec.  
600.305(c)(4)). The final action explains that, when considering such 
action, Councils should analyze all ten factors. Factors (i) through 
(ix) are all factors that counsel for inclusion of stocks, and factor 
(x) counsels against inclusion. See Section VI of this preamble for 
more details on changes to Sec.  600.305(c). A Council's analysis 
should clearly demonstrate why, on balance, the factors considered 
(which may include factors beyond the list included in the final action 
if relevant to the particular situation) support the ultimate 
conclusion to remove a stock from an FMP. Given the wide range of 
potential scenarios that Councils may face when evaluating the 
conservation and management needs of various fisheries, NMFS does not 
believe that it would be advisable to offer more prescriptive guidance 
on how to balance the factors against each other. In some cases a 
particular factor may have more significance than in another case, 
depending on the circumstances of the fishery.
    Comment 9: Some commenters raised concerns regarding application of 
the factors listed in Sec.  600.305(c)(1) of the proposed action within 
the context of data limited situations. One commenter recommended that 
NMFS include guidance regarding how to address the factors in a data 
limited situation. Another commenter suggested that NMFS allow Councils 
to categorize all data poor stocks as EC species and therefore exempt 
from ACLs.

[[Page 71865]]

    Response: The MSA does not distinguish between requirements for 
stocks that have robust data available and those for which data is 
lacking--accordingly, NMFS and the Councils cannot exempt stocks from 
ACLs and other mandatory requirements solely due to the availability of 
data for those stocks. As discussed in response to comment 5, all 
stocks that require conservation and management must be included in an 
FMP. This is true regardless of the data available for those stocks. 
NMFS notes that National Standard 2 requires that all conservation and 
management measures must be based on the best scientific information 
available. 16 U.S.C. 1851(a)(2). Recognizing the challenges posed by 
data limited situations, NMFS has adopted several measures (see 
Sec. Sec.  600.310(e)(2)(ii); 600.310(h)(2) of the final action) that 
are intended to provide additional flexibility in applying the NS1 
guidelines in data limited situations.
    Comment 10: Some commenters sought additional guidance on how to 
deal with management of stocks that either straddle multiple areas of 
Council jurisdiction or shift from one jurisdiction to another, for 
example due to the impacts of climate change.
    Response: The proposed guideline revisions moved language 
discussing management of stocks that straddle multiple Council 
jurisdictions from the National Standard 1 guidelines to the General 
section, but did not propose any substantive changes to that provision. 
See Sec.  600.305(c)(6). This provision is based on MSA section 304(f), 
which provides that for fisheries that occur in the geographical area 
of authority of more than one Council, the Secretary may either 
designate a lead Council to prepare an FMP or require joint preparation 
of such an FMP. 16 U.S.C. 1854(f). The guideline provision is designed 
to complement this statutory requirement by explaining that the primary 
FMP should contain reference points for stocks. In addition to this 
guidance, the newly revised guidance for reassessing an FMP's 
management objectives can also potentially provide an avenue for a 
Council to address a shift in occurrence of a stock, or the previous 
designation of a lead FMP. See Sec.  600.305(b)(2). NMFS does not 
believe that any further revisions are necessary at this time.
    Comment 11: Several commenters sought clarification on the impact 
of the proposed provisions on stocks in need of conservation and 
management and the concept of EC species. NMFS received several 
comments on the revised discussions of EC species, in particular 
expressing concern about the proposed deletion of the 2009 NS1 
guideline definition of EC species and non-target species. Commenters 
sought additional guidance on the proper criteria for designating an EC 
species and the management and monitoring requirements for EC species.
    Response: NMFS introduced the concept of EC species in the 2009 
revisions to the NS1 guidelines. In those guidelines, NMFS explained 
that the ``in the fishery'' and ``EC species'' classifications address 
the fact that while FMPs typically include target species (and some 
non-target species that require conservation and management), other 
FMPs include hundreds of species which may or may not require 
conservation and management in an effort to advance ecosystem 
management in the fishery. See 74 FR 3179, January 16, 2009. By 
adopting the ``EC species'' classification, NMFS sought to encourage 
Councils to continue to pursue ecosystem approaches to management. Even 
when a species does not require ``conservation and management,'' a 
Council may include it as an EC species in an FMP. Unlike stocks in the 
fishery, EC species designation does not trigger all of the mandatory 
provisions of the Magnuson-Stevens Act, such as FMP requirements under 
section 303(a).
    In this final action, NMFS is providing further guidance on the 
question of what stocks require conservation and management. Nothing in 
these proposed provisions changes previous guidance on the optional 
usage of EC species. To make clear this intent, NMFS has made minor 
modifications in this final action to more closely follow the language 
discussing EC species in the 2009 action. Additionally, NMFS has re-
inserted a definition of EC species. See Sec.  600.305(d)(13) of final 
action. This definition, however, does not rely on the previously 
established criteria for designation. The criteria included in the 2009 
guidelines were intended to prevent stocks that were in need of 
conservation and management from being re-designated as EC species. 
See, e.g., response to comment 17, 74 FR 3186, January 16, 2009. There 
is no need to retain the 2009 criteria, because the final action 
provides factors for determining whether a stock is in need of 
conservation and management, and includes clarifying language that 
makes clear that stocks in need of conservation and management cannot 
be designated as EC species. In response to numerous comments, NMFS has 
reinserted a definition for ``non-target stocks,'' with minor 
modifications from the definition in the 2009 guidelines, to ensure 
consistency with the remainder of the NS1 guidelines. See Sec.  
600.305(d)(12) of final action.
    Because the designation of EC species is discretionary and may be 
done to accomplish several different goals, NMFS is not providing 
further specific guidance on EC species. Determining whether the EC 
species designation is appropriate requires a case-specific look at 
stocks or stock complexes in light of Sec.  600.305(c) as well as the 
broader mandates and requirements of the MSA. NMFS has worked closely 
with Councils who have decided to pursue EC species designation and 
will continue to provide support and guidance going forward.

Data Limited Stocks

    Comment 12: While many commenters supported the clarification that, 
when it is not possible to specify MSY or MSY proxies for a data 
limited stock, a Council may use alternative types of SDCs, other 
commenters requested additional technical guidance on using alternative 
types of SDCs. See Sec.  600.310(e)(2)(ii). Some commenters also 
provided suggestions to improve the provision, including: acknowledging 
the limitations of alternative types of SDCs (particularly with regard 
to addressing stocks with ``model uncertainty''); addressing 
circumstances when reference points such as MSY and OY cannot be 
determined; requiring an analysis of the regional applicability of 
different data limited methodologies; acknowledging that the 
alternative SDCs listed in the guidelines are not the only alternatives 
available; and including a definition for ``data limited stocks'' 
within the guidelines. Some comments stated that Sec.  600.310(h) of 
the proposed action improperly exempted Councils from setting annual 
ACLs for data limited stocks and requested the guidelines clarify that 
all reference points required by the MSA are required to be established 
for data limited stocks that require conservation and management.
    Response: The list of examples of alternative SDCs within Sec.  
600.310(e)(2)(ii) is not exclusive, and Councils may explore other 
alternate types of SDCs. Any alternative approach adopted by a Council, 
in consultation with their SSC, must be based on the best scientific 
information available and identify overfishing and overfished 
thresholds. See Sec.  600.310(b)(2)(v) (describing SSC role in 
providing scientific advice to the Council). Section 600.310(e)(2)(ii) 
provides that, when specifying SDCs, a Council must provide an analysis 
of how the SDCs were chosen, how they relate to the

[[Page 71866]]

reproductive potential of the stock within the fishery, and how the 
alternate type of SDCs will promote the sustainability of the stock on 
a long-term basis. Thus, NMFS believes that the guidelines provide 
sufficient guidance on the use of alternate types of SDCs for data 
limited stocks while retaining adequate flexibility to allow Councils 
to determine the most appropriate alternate type of SDCs on a case-by-
case basis.
    With regard to the comments proposing improvements to alternative 
SDC text, NMFS notes that specification of MSY and OY are statutory 
requirements (16 U.S.C. 1853 (a)(3)), and the intent of Sec.  
600.310(e)(2)(ii) is to help address circumstances where data are not 
available to specify SDCs based on MSY or MSY based proxies. Because 
stock assessment models are used to set reference points within the ACL 
framework, model uncertainty is best addressed when accounting for 
scientific uncertainty within the ABC reference point. While an 
analysis of the regional applicability of different data limited 
methodologies may be useful to a Council, it may not always be 
necessary or informative and NMFS does not believe such an analysis 
needs to be prescribed as part of the NS1 guidelines. With regard to 
defining ``data limited stocks,'' the characteristics of such stocks 
are so wide-ranging that a definition would not be meaningful and could 
lead to additional confusion when applying the NS1 guidelines. Finally, 
as discussed in the preamble to the proposed action, Sec.  
600.310(h)(2) does not provide an exemption from any statutory 
requirements, including the requirement to establish ACLs. See 80 FR 
2790, January 20, 2015. NMFS discussed data limited stocks under Sec.  
600.310(h)(2) in order to ensure consistency with the revisions made 
under Sec.  600.310(e)(2)(ii).
    Comment 13: One commenter requested that the guidelines be edited 
to ensure that alternate types of SDCs are appropriately referenced 
throughout the guidelines. For example, proposed Sec.  
600.310(e)(2)(ii)(B) states that MSST or reasonable proxy must be 
expressed in terms of spawning biomass or other measures of 
reproductive potential. The commenter suggested that language should be 
added to the description of SDC to determine overfished status (Sec.  
600.310(e)(2)(ii)(B)) to clarify how Councils should accommodate 
alternative types of SDCs.
    Response: NMFS does not agree that revisions are needed. A Council 
must provide an analysis of how its SDCs relate to the reproductive 
potential of the stock. If an alternate type of SDC is adopted, the 
alternate SDC is considered a reasonable proxy to determine overfished 
status within the context of Sec.  600.310(e)(2)(ii)(B) and will be 
expressed in terms of the stock's reproductive potential.

Stock Complexes & Indicator Stocks

    Comment 14: Some commenters opposed the proposed changes to the 
guidelines that encourage the use of indicator stocks within stock 
complexes, and recommended removing the changes. Commenters expressed 
concern that, if species with disparate vulnerabilities are grouped 
together within a stock complex, the risk of overfishing on weaker 
stocks would increase while others advised NMFS against using overly 
precautionary indicator stocks that may prevent OY from being achieved. 
Other commenters requested additional technical guidance and 
recommended that Councils consider the current status of each stock as 
well as the costs and benefits of stock complex-based management when 
establishing stock complexes. NMFS also received numerous suggestions 
to strengthen the language on stock complexes and indicator stocks, 
including explicitly requiring the use of indicator stocks within stock 
complexes; using ``must'' instead of ``should'' in Sec.  
600.310(d)(2)(C) in order to require that Councils, in consultation 
with their SSC, choose the most vulnerable stock within a complex as 
the indicator stock; and requiring that all Councils take additional 
precaution when establishing stock complexes where high levels of 
scientific uncertainty exist.
    Response: NMFS believes the guidelines are clear that, if an 
indicator stock is used in a stock complex, it should be representative 
of the typical vulnerability of the stocks within the complex. In cases 
where stocks within a stock complex have a wide range of 
vulnerabilities, the guidelines are also clear that, either the stocks 
should be reorganized into different stock complexes that have similar 
vulnerabilities or the indicator stock should represent the more 
vulnerable stocks within the complex. See Sec.  600.310(d)(2)(ii)(C) of 
final action. Thus, NMFS believes the use of indicator stocks in a 
stock complex will not increase the risk of overfishing other stocks 
within the complex and, in cases where the status of the stocks within 
a complex is generally unknown, the use of an indicator will likely 
reduce the probability that stocks within the complex experience 
overfishing. NMFS believes the use of SDCs and ACLs for indicator 
stocks and/or stock complexes will ensure the dual requirements of NS1 
are met: preventing overfishing while achieving, on a continuing basis, 
OY. See Sec.  600.310(e)(2)(ii); 600.310(f)(4).
    NMFS also believes that the guidelines give sufficient guidance on 
using stock complexes and indicator stocks, and give Councils the 
flexibility to weigh the costs and benefits of utilizing these 
management tools. While the MSA does not address management of stock 
complexes, NMFS believes the use of stock complexes and indicator 
stocks in accordance with the guidelines can serve a useful role in 
managing data poor stocks and/or stocks that cannot be targeted 
independently of one another. Finally, NMFS recommends the use of 
indicator stocks in order to reduce the likelihood of overfishing in 
cases of high scientific uncertainty among stocks within a complex (see 
80 FR 2790, January 20, 2015) and also recommends Councils use more 
conservative management measures in cases where it is not possible to 
use the most vulnerable stock within a complex as an indicator. Given 
that the MSA is silent on the issue of stock complex management, NMFS 
does not believe that the use of the term ``must'' rather than 
``should'' is justified.
    Comment 15: NMFS received comments expressing concern that relying 
on indicator stocks can lead to a false sense of security and 
recommending that ACLs are set for each individual stock within a stock 
complex instead. Others expressed concern that monitoring available 
qualitative and quantitative information for each stock within a 
complex may not be sufficient to monitor each stock's overfishing 
status and recommended that Councils consider each stock's 
vulnerability in addition to considering whether each stock is being 
sustainably managed. NMFS also received recommendations that the 
guidelines require SSCs to review monitoring data on each stock within 
a complex and that the guidelines encourage Bmsy values for 
stocks within each stock complex to be calculated to reflect its 
productivity within the current ecological context.
    Response: NMFS disagrees that stock-by-stock management is 
preferable to stock complex management in all cases. Stocks with 
insufficient data to measure a stock's status relative to SDCs or 
stocks that cannot be targeted independently of one another may be best 
managed as a stock complex in order to base management on informed 
reference points. NMFS does agree that monitoring the status of each 
stock within a complex based on the best scientific information 
available is important. However, a stock within a

[[Page 71867]]

stock complex may not have sufficient information available to 
determine its status relative to SDCs, and thus, in these cases, the 
Councils should monitor the stock to determine whether it is being 
sustainably managed and to look for any indications that the stock 
might be subject to overfishing. The guidelines are clear that a 
Council must consider the vulnerability of each stock within a stock 
complex when establishing or reorganizing stock complexes. See Sec.  
600.310(d)(2)(i). Furthermore, each SSC shall provide its Council 
ongoing scientific advice for fishery management decisions, including 
reports on stock status and health. 16 U.S.C. 1852(g)(1)(B). Thus, the 
SSC must give scientific advice on the ongoing management of stocks 
within a stock complex and NMFS does not believe that the NS1 
guidelines need to specifically address this issue. Finally, NMFS 
agrees that current ecological conditions and ecosystem factors need to 
be taken into account when specifying MSY for both stocks and stock 
complexes and believes the current language within the definition of 
MSY (``prevailing ecological, environmental conditions'') adequately 
reflects this need. See Sec.  600.310(e)(1)(i)(A).
    Comment 16: Several commenters expressed concern regarding the term 
``where practicable'' within Sec.  600.310(d)(2)(i). Commenters stated 
that the modified definition of stock complexes is not necessary or 
justified and the term ``where practicable'' conflicts with the 
intention of the modified definition while weakening the standard for 
stock complexes. Some commenters also expressed concern that the 
modified definition could allow Councils to ``hide'' stocks that are 
undergoing overfishing within a complex or avoid managing ``choke'' 
stocks in a multi-species fishery. Therefore, several commenters 
recommended removing the ``where practicable'' language from the 
provision. Other commenters recommended that, if a Council uses stock 
complexes, they must complete a comprehensive analysis showing how 
overfishing will be prevented.
    Response: As addressed in response to comment 78, the term 
practicable (i.e., reasonably capable of being accomplished; feasible) 
is used appropriately within Sec.  600.310(d)(2)(i). The MSA does not 
mandate a particular method for establishing stock complexes, and thus, 
NMFS has provided guidance on this issue, based on the agency's 
expertise. The term ``where practicable'' within this provision does 
not conflict with or weaken the intended use of stock complexes. The 
guidelines are clear that, where practicable, stock complexes should 
consist of stocks with similar geographic distribution, life history 
characteristics, and vulnerabilities to fishing pressure and that the 
most vulnerable stock should be used as the indicator stock within a 
complex in order to fulfill the requirements of the MSA. As emphasized 
in comment 15, it is important that Councils monitor the status of all 
individual stocks within a complex to ensure they are sustainably 
managed and to look for indications of overfishing. While there may be 
insufficient data to ascertain whether some stocks within a complex are 
subject to overfishing on an individual basis, if a stock within a 
complex is found to be subject to overfishing, further overfishing on 
the stock must be prevented. Furthermore, such a finding that 
overfishing is occurring does not require prior specification of SDC, 
but can be based on the best scientific information available. If NMFS 
determines that a stock within a complex appears to be subject to 
overfishing, the agency notifies the appropriate Council. Finally, as 
described in Sec.  600.310(d)(2)(i), a Council should consider the 
vulnerabilities of individual stocks and provide a ``full and explicit 
description of the proportional composition of each stock in the stock 
complex'' when establishing a stock complex within a FMP. Thus, the 
guidelines are clear that the establishment of stock complexes within 
FMPs should be adequately documented based on a thorough analysis of 
stock vulnerabilities.

Aggregate MSY

    Comment 17: Commenters requested additional clarification on the 
intended use of aggregate MSY estimates, in particular requesting 
further clarification on the relationship between the aggregate MSY 
approach and the ACL framework and rebuilding targets. Several 
commenters requested that NMFS provide additional technical guidance on 
the use of aggregate MSY to specify OY, and, in the absence of such 
guidance, recommended that NMFS remove the option to use aggregate MSY 
from the guidelines. Commenters were concerned that without such 
guidance, aggregate MSY could be used in a way that would increase the 
risk that individual stocks would be subject to overfishing. In 
addition, one commenter suggested that the guidelines be revised to 
clarify that the aggregate MSY estimates could be used as a substitute 
for stock (or stock complex)-specific MSY estimates. Further 
explanation was also sought with respect to the intended meaning of the 
word ``common'' in proposed Sec.  600.310(e)(1)(iv). Finally, two 
comments pointed out that using aggregate MSY to track-long term 
environmental changes may be difficult as it can be difficult to 
distinguish between long-term and temporary environmental changes.
    Response: Aggregate MSY is an optional tool that Councils can use 
at their discretion to specify fishery-level OYs and further facilitate 
the Councils' use of EBFM. Aggregate MSY estimates are not an 
appropriate substitute for stock-specific MSY estimates that are 
necessary to inform the development of the required stock-specific 
reference points in the ACL framework. Fundamentally, aggregate MSY is 
an additional limit on the management system that encourages more 
conservative EBFM-based measures. Even when aggregate level MSY is 
estimated, stock-specific MSY must still be used to inform single stock 
management. Other annual reference points (within the ACL framework) 
must also be specified in order to prevent overfishing from occurring 
in single stocks. In light of the above, and because aggregate MSY is 
merely an optional tool that can be used in addition to stock-specific 
reference points, the final guidelines retain the aggregate MSY 
provision.
    The term ``common'' in Sec.  600.310(e)(1)(iv) was intended to 
provide further context as to how aggregate MSY can be estimated using 
multi-species, aggregated, and ecosystem modeling. Upon further 
consideration, the phrase ``common biomass (energy) flow'' is not 
considered a widely used phrase within relevant scientific fields, and 
thus the term ``common'' is not included within the final action to 
avoid confusion. However, the final action retains the phrase ``biomass 
(energy) flow'' to clarify that the models used for estimating 
aggregate MSY should account for the flow of energy through the 
aggregate group of stocks under consideration. A Council's SSC should 
assist a Council using an aggregate MSY to use the best scientific 
information available with regards to biomass (energy) flows.
    Finally, aggregate MSY is not intended to be used to track long-
term environmental or ecological conditions. Instead, aggregate MSY is 
intended to ensure that fishery management measures are reflecting how 
environmental variability within the ecosystem is impacting fisheries 
as a whole.

[[Page 71868]]

Definition for ``Depleted'' Stocks

    Comment 18: While NMFS received some comments supporting the 
proposed definition for ``depleted'' stocks, the majority of comments 
received opposed the proposed definition and/or requested additional 
technical guidance on its use. Commenters expressed a wide-array of 
concerns, including that: The proposed definition is overly 
restrictive, especially with regard to long-lived species; and the 
definition would not adequately distinguish between stocks that are 
depleted due to environmental factors and stocks that are overfished 
due to fishing pressure. NMFS also received many suggestions to improve 
the proposed definition.
    Response: In light of public comment, NMFS agrees that further 
consideration is needed regarding how to distinguish between stocks 
whose current poor status is due to fishing pressure and stocks that 
have been negatively affected by environmental factors. Thus, NMFS has 
deleted the definition for ``depleted'' stocks in the final action. The 
final action retains the existing requirements within the guidelines 
that all Councils define stocks whose biomass has declined below its 
MSST as overfished. Even though the guidelines do not include 
``depleted stocks,'' a Council may use the term to further describe the 
status of an overfished stock that has been impacted to some extent by 
environmental factors in addition to (or in the absence of) fishing 
pressure.

MSST

    Comment 19: NMFS received a number of comments expressing concern 
about two revisions connected to the terms overfished and MSST (maximum 
stock size threshold). The proposed action revised the definition of 
overfished to state that a stock or stock complex is considered 
`overfished' when its biomass has declined below MSST. See Sec.  
600.310(e)(2)(i)(E). MSST was in turn defined as the level of biomass 
below which the capacity of the stock or stock complex to produce MSY 
on a continuing basis has been jeopardized. See Sec.  
600.310(e)(2)(i)(F). In addition, the proposed guidelines also included 
revised language regarding the specification of MSST, which stated that 
MSST should be specified between \1/2\ Bmsy and 
Bmsy. To inform this decision, the proposed guidelines 
provided a list of potential considerations, including the life history 
of the stock, the natural fluctuations in biomass associated with 
fishing at MFMT over the long-term, the time needed to rebuild to 
Bmsy and associated social and/or economic impacts on the 
fishery, the requirements of internationally-managed stocks, and other 
considerations. See Sec.  600.310(e)(ii)(B).
    Some commenters objected to the proposed changes to the definitions 
of overfished and MSST, arguing that NMFS improperly replaced the pre-
existing, statutory-based definition with a new, less supportable 
definition. Commenters expressed concern with linking a determination 
that a stock is overfished with a Council-specified MSST because, 
according to commenters, MSSTs are not always properly specified or 
updated. Other commenters believed that connecting MSST to 
``overfished'' was too restrictive and that a preferable definition 
would connect the ability of a stock to return to its Bmsy 
level in the absence of a rebuilding plan (rather than linking to the 
ability of the stock to produce MSY on a continuing basis).
    Other commenters took issue with the proposed change to the 
provision regarding the specification of MSST. Some commenters felt 
that the language from the 2009 action set a clearer standard and that 
the proposed language made the MSST specification depend on criteria 
that are not easily quantifiable. Especially concerning for some were 
the ``social and/or economic'' considerations. Commenters argued that 
the proposed revisions increase the likelihood that stocks declared 
overfished will not be able to rebuild within ten years. Others felt 
that the factors in the proposed revisions provided needed additional 
flexibility to the Councils should they wish to revisit MSST 
specifications.
    Response: As NMFS explained in the preamble to the proposed action, 
the changes to the definitions of ``overfished'' and ``MSST'' are minor 
changes intended to improve clarity and reduce redundancy with no 
resulting changes in how the terms overfished and MSST are used. See 80 
FR 2791, January 20, 2015. While definitions for both overfished and 
MSST were provided within the 1998 guidelines, the 2009 guidelines 
established that a stock or stock complex is considered overfished when 
its biomass has declined below a level that jeopardizes the capacity of 
the stock or stock complex to produce MSY on a continuing basis. The 
2009 action then defined MSST as the level of biomass below which the 
stock or stock complex is considered to be overfished. Read together, 
these provisions relied on MSST as the determining threshold of whether 
a stock was overfished. MSST was, and continues to be in this final 
action, the threshold by which an overfished determination is made. The 
revisions eliminate ambiguity by referring directly to MSST in the 
definition of overfished. This final action is consistent with the MSA 
as it incorporates the statutory definition of ``overfished'' (i.e., 
level of biomass that ``jeopardizes the capacity of a fishery to 
produce [MSY] on a continuing basis'') into the definition of MSST. See 
16 U.S.C. 1802(34) and Sec.  600.310(e)(2)(i)(A) (clarifying that MSA 
``overfished'' definition relates to biomass). NMFS does not believe 
the suggestion to link the definition of MSST to the ability of a stock 
to return to its Bmsy level in the absence of a rebuilding 
plan would be consistent with the statutory definition of 
``overfished.''
    NMFS disagrees that the revisions to the MSST specification 
provision would prevent stocks from being classified as overfished. The 
2009 guidelines provided two options for specifying MSST: one-half the 
MSY stock size, or the minimum stock size at which the stock could 
rebuild to the MSY level within 10 years if the stock was fished at 
MFMT. The guidelines stated that MSST should be set equal to the 
greater of the two options. See Sec.  600.310(e)(2)(ii)(B) (2009). NMFS 
revised the provision to set a clearer standard for MSST 
specifications, allow for a broader range of considerations, and allow 
Councils increased flexibility to re-visit and update MSST 
specifications, based on the changing conditions of a fishery. By 
providing that MSST should be between \1/2\ Bmsy and 
Bmsy, this final action affords Councils the ability to 
adopt an MSST consistent with overfished thresholds used by some 
regional fishery management organizations for stocks that are 
internationally-and Federally-managed. The revisions also allow 
Councils to retain MSST definitions in existing FMPs that were based on 
the 1998 NS1 Technical Guidance, but were not reflected within the 2009 
guidelines (Restrepo et al., 1998). NMFS believes that MSST definitions 
based on the 1998 Technical Guidance continue to be sound from a 
scientific perspective and consistent with the MSA and approaches under 
the NS1 guidelines. Finally, the increased flexibility within the 
proposed changes to MSST specifications increases the probability that 
MSST thresholds are utilized for data limited stocks.
    NMFS also disagrees that the MSST specification provision will 
decrease the likelihood that overfished stocks will be able to rebuild 
within 10 years. Although the provision no longer includes a reference 
to 10 years in the

[[Page 71869]]

formulaic calculation of MSST, this does not alter the MSA's 
requirement that a rebuilding period shall ``not exceed 10 years,'' 
subject to certain exceptions. 16 U.S.C. 1854(e)(4)(A)(ii).
    Furthermore, based on public comment, NMFS has removed the phrase 
``social and/or economic impacts on the fishery,'' from the list of 
factors that could inform MSST. MSST is a biological reference point 
and is based on the level of biomass below which the capacity of the 
stock to produce MSY on a continuing basis is jeopardized. Thus, it is 
not appropriate to consider social and economic impacts when 
determining MSST.
    Finally, NMFS disagrees that reliance upon quantitative data 
invariably yield more accurate or precautionary MSST values. Councils 
should consult with their SSCs to ensure that the information used to 
specify MSST, whether quantitative or qualitative, is the best 
scientific information available.
    Comment 20: Some commenters asserted that the definition of MSST is 
inconsistent in the guidelines. As an example, when explaining the 
relationship of SDCs to environmental and habitat change, the 
guidelines assume that there are cases where environmental changes 
cause a stock or stock complex to fall below its MSST without affecting 
its long-term reproductive potential. See Sec.  600.310(e)(2)(iii)(A). 
One commenter stated that this section is inconsistent with the revised 
definition of MSST, which refers to a level below which the capacity of 
the stock to reproduce MSY has been jeopardized.
    Response: NMFS disagrees that there is any inconsistency in Sec.  
600.310(e)(2)(iii)(A). That section is unchanged in this action, and as 
explained in the response to comment 19, the definition of MSST 
fundamentally has not changed. MSST means the level of biomass below 
which the capacity of the stock or stock complex to produce MSY on a 
continuing basis has been jeopardized. Thus, the focus is on producing 
MSY in the long-term. The purpose of Sec.  600.310(e)(2)(iii)(A) is to 
address the reality that there may be short-term, environmental 
changes, but recognize that such changes do not normally jeopardize the 
ability of a stock to produce MSY on a continuing basis. For example, 
El Ni[ntilde]o increases mortalities and reduces growth within certain 
stocks, but after the short El Ni[ntilde]o period ends, stocks should 
regain their health and ability to produce MSY on a continuing basis.

Multi-Year Overfishing Stock Status Determinations

    Comment 21: NMFS received many comments on the multi-year approach 
to determining the overfishing status of a stock or stock complex. Many 
commenters expressed concern that the method may delay action and allow 
an overfishing trend to go unaddressed. Comments also requested the 
final action include technical guidance on how to apply this method. 
Other commenters asked whether the provision allows stock status 
determinations to be completed every 3 years, and whether using a 
multi-year approach for overfishing status determinations could impact 
reference points for future catch levels. Other commenters suggested: 
emphasizing the multi-year approach as an optional tool; endorsing the 
use of the catch to OFL method over the F to MFMT method; replacing the 
proposal with more support for the annual catch specification process 
and adequate AMs; allowing the SSC to determine an appropriate multi-
year time period; and encouraging other overfishing determination 
methods that reduce lag time.
    Response: The existing NS1 guidelines provide for two methods for 
specifying SDCs to determine overfishing status: F rate exceeds MFMT or 
catch exceeds OFL. See Sec.  600.310(e)(2)(ii)(A)(1)-(2). As discussed 
in the proposed action preamble (see 80 FR 2791, January 20, 2015), the 
multi-year approach in Sec.  600.310(e)(2)(ii)(A)(3) is an optional 
method for specifying overfishing SDCs that is intended to allow 
consideration of ``the extent to which F exceeded the MFMT or catch 
exceeded the OFL.'' Small amounts of excess effort or catch in a single 
year may not jeopardize a stock's ability to produce MSY over the long 
term, and an overfishing stock status determination based on that 
single year's data point may not be the most appropriate 
characterization of stock status. To further clarify how to apply the 
multi-year approach, the final action clarifies the relationship 
between subparagraphs Sec.  600.310(e)(2)(ii)(A)(1)-(3) and includes 
further detail on the circumstances in which the multi-year approach 
should be used. Section 600.310(e)(2)(ii)(A)(3) of the final action 
explains that, while an FMP should specify which of the methods 
established in Sec.  600.310(e)(2)(ii)(A)(1) and (2) will be used to 
determine overfishing status, a Council may utilize a multi-year 
approach to determine overfishing status in certain circumstances. If a 
Council should develop a multi-year approach to determine overfishing 
status, the Council should identify in its FMP or FMP amendment, the 
circumstances when a multi-year approach is appropriate and will be 
used. Such circumstances may include situations where there is high 
uncertainty in the estimate of F in the most recent year, cases where 
stock abundance fluctuations are high and assessments are not timely 
enough to forecast such changes, or other circumstances where the most 
recent catch or F data does not reflect the overall status of the 
stock. See Sec.  600.310(e)(2)(ii)(A)(3) of the final action.
    Regardless of which SDC specification method is used, the MSA 
requires that NMFS report annually to Congress on the status of stocks. 
16 U.S.C. 1854(e)(1). Thus, a multi-year approach to overfishing stock 
status determinations would not allow Councils to ignore available 
information and wait for additional years' information before 
evaluating stock status, nor would it allow an overfishing trend to go 
unaddressed or impact the timeliness of a Council and/or agency 
response to overfishing.
    NMFS acknowledges that wording in proposed Sec.  
600.310(e)(2)(ii)(A)(3) may have caused confusion regarding whether 
this provision may impact reference points for future catch levels. 
Thus, NMFS revised Sec.  600.310(e)(2)(ii)(A)(3) to emphasize that a 
Council may only use a multi-year approach to ``retrospectively 
determine overfishing status.'' Stock status determinations are 
relevant to NMFS' annual reporting requirement under 16 U.S.C. 
1854(e)(1), mentioned above. The multi-year approach may not be used in 
establishing ACLs and ABCs, because annual reference points must be 
designed to prevent overfishing and cannot exceed the OFL in any year. 
For example, if the catch of a stock in a single year was well below 
its ACL, a Council may not anticipate using a multi-year approach to 
overfishing status determinations in order to justify allowing next 
year's catch levels to be set above the OFL. To further clarify this 
point, NMFS has added language within Sec.  600.310(e)(2)(ii)(A)(3) 
explaining that the multi-year approach to determine overfishing status 
may not be used to specify future annual catch limits at levels that do 
not prevent overfishing. In addition, NMFS has reinserted the term 
``annual basis'' within the definition of MFMT. See Sec.  
600.310(e)(2)(i)(C) of the final action. NMFS notes that, if the catch 
of a stock in a single year was well below its ACL, a Council could 
consider

[[Page 71870]]

using a carry-over ABC control rule. See comment 34 for further 
discussion.
    In this final action, NMFS adds in Sec.  600.310(e)(2)(ii)(A)(3) 
that: ``A multi-year approach must compare fishing mortality rate to 
MFMT or catch to OFL.'' In that same subparagraph, NMFS has also 
deleted reference to a comprehensive analysis to determine whether a 
multi-year approach will jeopardize the capacity of the fishery to 
produce MSY on a continuing basis. As the multi-year approach may only 
be applied to retrospective stock status determinations, the proposed 
comprehensive analysis needed to use a multi-year approach is not 
necessary.
    NMFS disagrees that one method for specifying SDCs to determine 
overfishing status is invariably superior to another. Councils should 
select a method using the best scientific information available. NMFS 
agrees that robust annual catch specification processes and 
accountability measures can reduce the likelihood of overfishing. 
However, there are circumstances where NMFS believes a multi-year 
approach is a useful tool to protect a stock while providing stability 
to the fishery. In addition, NMFS believes the proposed action preamble 
(see 80 FR 2792, January 20, 2015) provides sufficient rationale for 
choosing 3 years as a maximum time period for multi-year approaches to 
overfishing status determinations. Finally, the existing guidelines 
recommend Councils take action to allow SDCs to be ``quickly updated'' 
and reduce lag time in Sec.  600.310(e)(2)(ii).
    Comment 22: Several commenters asked how phase-in provisions will 
interact with the multi-year overfishing stock status determinations.
    Response: As detailed in comment 21, a multi-year approach to 
determining a stock's overfishing status cannot be used to influence 
future annual catch reference points, such as ABCs, ACLs, etc. Thus, a 
multi-year approach to determining a stock's overfishing status would 
not influence a Council setting an ABC based on a phase-in ABC control 
rule. For instance, a Council may not anticipate the use of a multi-
year approach to overfishing status determinations to rationalize a 
phase-in ABC control rule designed to allow overfishing in some years 
and underages in others.

OY & Catch Accounting

    Comment 23: While several commenters supported the addition of a 
paragraph clarifying the relationship between OY and the ACL framework, 
see Sec.  600.310(f)(4)(iv) of the proposed and final action, some 
believed the proposed language could be clarified and strengthened. One 
comment stated that the OY concept is redundant when management is 
based on the ACL framework. Others stated that additional guidance is 
needed in order to address OY factors within the ACL-setting process. 
One comment reflected confusion regarding whether ACLs can be set above 
the Fmsy in order to achieve a long-term average OY. 
Commenters also requested that the guidelines define the ACL in 
relation to OY and encourage the use of ABC to generate OY values.
    Response: NMFS disagrees that managing under an ACL framework 
renders the OY concept redundant. National Standard 1 requires that 
conservation and management measures prevent overfishing ``while 
achieving, on a continuing basis, the optimum yield from each 
fishery.'' 16 U.S.C. 1851(a)(1). When the MSA was amended to introduce 
ACLs, this OY requirement remained unchanged. NMFS believes that 
guidance in Sec.  600.310(f)(4)(iv) on addressing OY factors within the 
ACL framework is sufficient. As described in that section, ACLs (or 
ACTs if used) can be reduced from the ABC based upon the OY-based 
ecological, economic, and/or social (EES) considerations (as described 
in Sec.  600.310(e)(3)(iii)(B)) in addition to reductions accounting 
for management uncertainty. Furthermore, EES trade-offs could also be 
evaluated when determining the risk policy for an ABC control rule. 
Thus, the ACL framework can support achieving OY.
    ACLs and other annual reference points are annual limits and cannot 
be defined in terms of OY, which is a long-term average. While the ACL 
framework supports achieving OY, OY (as well as annualized OY values) 
and the ACL framework are two separate concepts which cannot be defined 
in terms of one another. Thus, an ACL may not be set to exceed the 
stock's ABC/OFL reference points in order to achieve OY and 
correspondingly, annual catch reference points such as ABC cannot be 
used to specify OY.
    Comment 24: One commenter stated that the second and sixth 
sentences within proposed Sec.  600.310(f)(4)(iv) conflict and 
suggested a revision to the second sentence to clarify the relationship 
between the need for the ABC to prevent overfishing while also taking 
into account the ABC control rule's risk policy.
    Response: NMFS disagrees that the second and sixth sentences within 
proposed Sec.  600.310(f)(4)(iv) directly conflict, however, NMFS has 
made the suggested clarifying revision in this final action.
    Comment 25: Some commenters opposed the concept of annualized OY 
values and stated that having both annual and long-term average OY 
values is confusing. Some commenters requested clarification on whether 
annualized OY values can exceed MSY in order to achieve long-term OYs 
and how annualized OYs can address tradeoffs associated with mixed 
stock fisheries. Other commenters recommended the use of a control rule 
to ensure that relevant OY factors and management uncertainty are being 
considered when using the ACL or ACT as an annualized OY.
    Response: Annualized OY values are an optional tool for managers to 
use if it benefits the conservation and management needs of a stock, 
stock complex, or fishery, including as an example, a mixed stock 
fishery. A stock, stock complex, and/or fishery thus can have both an 
OY and an annualized OY value. MSY is a long term average with a 
corresponding annual value: The OFL. While an annualized OY could be 
higher than the MSY if stock biomass is high, it cannot exceed the OFL. 
NMFS also notes that, while ACLs (or ACTs) can be conceptually compared 
to annualized OY values, they have different definitions and cannot be 
automatically equated to each other (see response to comment 23). 
Finally, the 1998 NS1 guidelines permitted the use of an OY control 
rule (see 63 FR 24232, May 1, 1998), and the current NS1 guidelines in 
the final action do not exclude the possibility of using an OY control 
rule. However, if an OY control rule is used, the annual catch of a 
stock must still be constrained through the application of the ACL 
framework.
    Comment 26: Two commenters suggested that, in addition to 
specifying OY at the stock, stock complex, or fishery level, managers 
should also be able to specify OY at the ``FMP level.''
    Response: NMFS does not believe that the proposed revision is 
appropriate or needed. OY is supposed to be specified for the 
``fishery.'' 16 U.S.C. 1851(a)(1) and 1853(a)(3). In addition, the MSA 
defines the term ``fishery'' broadly, thus providing flexibility to the 
Councils in how they describe fisheries in their FMPs.
    Comment 27: Commenters requested additional guidance on EES 
factors, especially the social and ecological effects of management 
actions. One commenter stated that it is inconceivable to imagine how 
social and economic factors could lead to a reduction from MSY. Other 
commenters recommended that the guidance clarify

[[Page 71871]]

that if OY is set very close to MSY, the Secretary may presume that the 
Council failed to adequately consider OY factors. Commenters also 
recommended that the guidelines be updated to include additional 
examples of ecosystem, climate change, protected species, and forage 
fish considerations within Sec.  600.310(e)(3)(iii)(B). One commenter 
suggested nesting the list of potential EES factors under Sec.  
600.310(e)(3)(iii)(A) instead of (B). Other commenters suggested 
legislative action to allow OY to be the result of either reductions or 
additions from MSY based on EES factors and opposed the use of the term 
``trade-offs'' when referring to EES factors.
    Response: NMFS received extensive public comment on the use of EES 
factors during the development of the 2009 guidelines and thus, because 
NMFS did not propose any substantive changes to the guidance on EES 
factors in the proposed action, NMFS continues to believe that the NS1 
guidelines set forth examples that provide sufficient guidance on using 
EES factors. The guidelines include examples of factors that clearly 
relate to ecosystems, climate change, and forage fish, as well as 
social and economic factors that may lead to a reduction in MSY. NMFS 
disagrees that it is ``inconceivable'' for OY to be reduced from MSY 
based on social and economic factors. For example, OY could be lowered 
from MSY to match a limited market demand or to provide more stability 
in annual catches within a fishery over the long-term. While a Council 
must address each factor (ecological, economic, and social), the exact 
method that a Council uses to consider EES factors and the amount the 
OY is reduced from the MSY is at the Council's discretion. With regard 
to OY and MSY, NMFS disagrees that setting OY close to MSY means that 
OY factors were not adequately considered. If estimates of MFMT and 
current biomass are known with a high level of certainty, if management 
controls can accurately limit catch, and if no reductions are necessary 
for EES factors, it is possible to set an OY very close to MSY. See 
Sec.  600.310(e)(3)(iv). NMFS is keeping text at Sec.  
600.310(e)(3)(iii)(B)(1)-(3) under subparagraph (B), because 
subparagraph (B) clarifies the process for assessing and specifying OY 
based on EES factors. In order for the EES factors to be used to 
increase OY from MSY, a legislative change would be needed, as OY is 
defined based on MSY ``as reduced by any relevant economic, social, or 
ecological factor.'' 16 U.S.C. 1802 (33)(B). Finally, as stated in 
Sec.  600.305(b)(1), trade-offs among EES factors are an expected 
component of fishery management objectives.
    Comment 28: One commenter stated that the OY concept does not 
appear to consider subsistence uses for U.S. fisheries.
    Response: NMFS disagrees. Subsistence fishing is explicitly 
mentioned in the list of potential social factors to be considered when 
specifying OY. See Sec.  600.310(e)(3)(iii)(B)(1).
    Comment 29: Commenters expressed concern that the guidelines 
provide too much room for interpretation of what might constitute an 
acceptable qualitative description of OY and requested additional 
technical guidance, as well as increased data collection efforts to 
increase the availability of quantitative data. Other commenters 
recommended restoring language that recommends OY should be considered 
quantitatively when possible and adding language recommending the use 
of proxies when quantitative, stock-specific information on EES factors 
is not available.
    Response: As discussed in the proposed action, NMFS believes one 
impediment to Councils addressing EES factors when specifying OY is the 
perception that the Councils must quantify their analysis of these 
factors. See 80 FR 2792, January 20, 2015. Thus, NMFS clarified in the 
proposed revisions to the guidelines that a Council may provide a 
qualitative description of OY. NMFS clearly indicated that 
qualitatively describing OY is only acceptable when it is not possible 
to specify OY quantitatively. See Sec.  600.310(e)(3)(iv)(A). NMFS 
believes that the guidelines provide sufficient guidance on what 
constitutes an acceptable qualitative description of OY. Section 
600.310(e)(3)(iii) requires that an FMP assess and specify OY, and that 
the assessment include, among other things, an explanation of how the 
OY specification will produce the greatest benefits to the nation and 
prevent overfishing, consistent with the MSA and taking into 
consideration the EES factors relevant to the particular stock, stock 
complex, or fishery. Councils may specify OY based on MSY proxy values 
as provided under Sec.  600.310(e)(3)(iv)(B)), and NMFS believes that 
when insufficient information is available to consider stock-specific 
EES factors, proxy values may be used if they are considered the best 
scientific information available. Finally, NMFS agrees that more 
quantitative data would improve OY specifications. See e.g., 74 FR 
3199, January 16, 2009 (addressing similar comments regarding data 
collection in response to comment 80 of 2009 NS1 guidelines).
    Comment 30: NMFS received several comments on the revisions to 
Sec.  600.310(e)(3)(iii) that clarify how Councils account for their OY 
specifications within their FMPs. Comments included recommendations to 
revise the guidelines to reflect that specification of OY is an MSA 
requirement, to add language to require the identification of all 
relevant EES factors considered in setting OY, and to articulate the 
influence of the factors on setting OY within FMPs. Another commenter 
expressed concern that the proposed changes would require Councils to 
``document'' as opposed to ``summarize'' (as prescribed within the MSA) 
OY specifications within FMPs, creating a regulatory burden that may 
not be appropriate if the technical documentation spans many pages. The 
commenter suggested the guidelines be revised to allow documentation 
either in the FMP itself or within other documents such as 
environmental assessments or regulatory impact reviews. Another 
commenter recommended that the language be revised to acknowledge 
changing circumstances of not just targeted fish stocks, but other 
components of the ecosystem (e.g., protected species) as well.
    Response: In accordance with MSA section 303(a)(3), all FMPs must 
contain an assessment and specification of OY and summaries of the 
information utilized in making the specification. However, the MSA does 
not prescribe what types of information or factors should be taken into 
consideration. NMFS agrees that the proposed language may be 
interpreted as an additional requirement to provide a thorough 
technical documentation of OY specifications within an FMP. Thus, in 
the final action, NMFS has deleted references to documentation while 
retaining the requirement that OY specifications and assessments are 
adequately summarized within FMPs. NMFS believes that the section is 
worded broadly enough to encompass consideration of changes to other 
components of the ecosystem, such as protected species, in addition to 
targeted stocks.
    Comment 31: NMFS received several comments regarding the definition 
of OY, including: Requests for clarification on the meaning of term 
``near Bmsy'' within the definition of OY and whether or not 
the term ``near'' implies maintaining the stock above MSST; and a 
request that the production of bait from our fishery resources be 
included within the definition of OY. Another

[[Page 71872]]

commenter recommended removing the definition of OY entirely.
    Response: Achieving OY on a continuing basis is required under 
National Standard 1, thus, a definition of OY within the NS1 guidelines 
is appropriate and helpful. One of the characteristics used to describe 
OY in the guidelines is ``maintains the long-term average biomass near 
or above Bmsy.'' See Sec.  600.310(e)(3)(i)(B). The term 
``near'' is used to emphasize, that while the biomass of a stock, stock 
complex, or fishery may be above or below the desired long-term average 
in any given year, a Council should rely on its SSC's advice to 
determine the level at which a stock's biomass is sufficiently ``near'' 
Bmsy to ensure the desired long-term average biomass can be 
achieved. With regards to whether the term ``near'' Bmsy 
implies maintaining a stock above MSST, NMFS notes that OY and MSST are 
not directly comparable. OY is a long term desired amount of yield 
(catch) from the fishery that corresponds to a desired level of long-
term average biomass of a stock. MSST is a stock abundance reference 
point. If a stock's biomass is below its MSST, a stock is determined to 
be overfished and a rebuilding plan must be initiated to rebuild the 
stock from below its MSST to its Bmsy. In contrast, as 
stated above, the biomass of a stock may be above or below the desired 
long-term average in any given year, as long as the Council relies on 
its SSC's advice on whether the stock's biomass is sufficiently 
``near'' Bmsy. Additionally, NMFS believes that the 
definition of OY given within the guidelines is sufficiently broad to 
cover the production of bait and other considerations.
    Comment 32: Some commenters supported the deletion and replacement 
of text on accounting for catch against OY (previously at Sec.  
600.310(e)(3)(v)(C)) with the addition of text on accounting for all 
sources of mortality (where practicable) in the SDC section (Sec.  
600.310(e)(2)(ii)(C)). Other commenters stated that moving the text 
created inconsistent guidance and, because OY is defined in the MSA as 
an ``amount of fish,'' the only reasonable interpretation of the 
statute is to specify OY based on catch. Others requested additional 
guidance on catch accounting in general. Another commenter believed the 
change indicates that bycatch does not need to be measured or counted 
against OY, which the commenter characterized as the ``the total amount 
of catch permitted in a fishery.'' Other commenters believed that all 
sources of mortality must be accounted for when setting SDCs and thus, 
the proposed ``where practicable'' language should be removed and 
recommended changing ``should'' to ``must'' within Sec.  
600.310(e)(2)(ii)(C). One commenter did not believe that mortality 
resulting from scientific research should be included. Others 
recommended that the Councils must consider catch accounting when 
determining the status of the stock, setting catch levels, and 
determining OY.
    Response: Section 600.310(e)(3)(v)(C) of the 2009 guidelines stated 
that all catch must be counted against OY, including that resulting 
from bycatch, scientific research, and all fishing activities. NMFS 
proposed deleting this text and inserting text on accounting for all 
sources of mortality (where practicable) in Sec.  600.310(e)(2)(ii)(C) 
(SDC specification), because in practice, mortality (including fishing-
related catch) is typically accounted for when evaluating stock status 
with respect to reference points. NMFS believes that accounting for all 
fishing activities while evaluating stock status with respect to 
reference points (i.e. ACLs) is more informative to managers. NMFS 
agrees that OY must be specified as an amount of fish and that, because 
stock status is based upon a consideration of all sources of fishing 
mortality, OY specifications (which include considerations of stock 
status) will be influenced by catch accounted for at the SDC level. 
NMFS disagrees with the comment that stated that Sec.  
600.310(e)(2)(ii)(C) indicates that bycatch does not need to be 
measured or counted against OY and that characterized OY as the total 
amount of catch permitted in a fishery. First, NMFS notes that the 
``total amount of catch permitted in a fishery'' is an inaccurate 
characterization of OY, which is described within the guidelines as the 
long-term average amount of desired yield from a stock, stock complex, 
or fishery. See Sec.  600.310(e)(3)(ii). Second, Sec.  
600.310(e)(2)(ii)(C) states that Councils should consider all sources 
of fishing mortality when evaluating stock status with respect to 
reference points, which will impact annual catch reference points and 
may influence OY specifications. NMFS believes that language in Sec.  
600.310(e)(2)(ii)(C) sufficiently explains that, where practicable, all 
sources of mortality should be accounted for; this would include fish 
that are retained for any purposes, mortality of fish that have been 
discarded, mortality of fish resulting from scientific research, and 
mortality from any other fishing activity. Further, NMFS believes that 
use of the term ``where practicable'' is appropriate, because as 
explained in the proposed rule preamble (see 80 FR 2793, January 20, 
2015), the term recognizes that data on scientific research catch may 
not always be available. See response to comment 78 for further 
discussion of ``where practicable.'' Thus, NMFS believes that 
additional guidance on accounting for all sources of mortality (where 
practicable) in the SDC section (Sec.  600.310(e)(2)(ii)(C)) is not 
necessary within the guidelines.

Carry-Over & Phase-In ABC Control Rules

    Comment 33: Many commenters supported including phase-in and/or 
carry-over provisions within ABC control rules (see Sec.  
600.310(f)(2)(ii) of proposed action), but requested that the 
guidelines specify explicit criteria to be considered within the 
comprehensive analysis required to use these provisions. Commenters 
expressed concerns that, without explicit technical guidance and 
criteria guiding Councils on how to use these provisions, phase-in and/
or carry-over provisions would increase the risk of overfishing for 
some stocks. Commenters also requested that more research on the 
impacts of these approaches be conducted and that the guidelines 
clarify that the Councils should complete a comprehensive analysis each 
time one of the provisions is used. Other commenters requested 
clarification on the SSC's role in the decision-making process for 
phase-in/carry-over provisions. Finally, several commenters suggested 
that phase-in and carry-over provisions be addressed in the ACL setting 
process rather than in the ABC control rule.
    Response: This action clarifies that all ABC control rules must be 
based on a comprehensive analysis that shows how the control rule 
prevents overfishing. See Sec.  600.310(f)(2)(i) of this final action. 
This action also emphasizes that the comprehensive analysis of the ABC 
control rule includes examining--if there is a carry-over and/or phase-
in provision in the ABC control rule--when the carry-over and phase-in 
provisions can and cannot be used and how those provisions prevent 
overfishing. See Sec.  600.310(f)(2)(ii) of this final action. For 
instance, a Council may decide that, due to a stock's life history, 
characteristics, and/or other vulnerabilities, phase-in/carry-over 
provisions will not be used if the stock is under a rebuilding plan. 
NMFS does not believe that research is needed on phase-in and carry-
over approaches before including them in the NS1 guidelines, but future 
research on both

[[Page 71873]]

approaches (e.g., stock-specific best practices) would inform the best 
scientific information available for such control rules. As explained 
above, the guidelines require a comprehensive analysis, based on the 
best scientific information available and SSC advice, that phase-in or 
carry-over provisions will prevent overfishing. Given the above-
described guidance, NMFS does not believe that further guidance and 
criteria for the comprehensive analysis of ABC control rules are 
necessary.
    With regard to the SSC, the 2009 NS1 Guidelines explained that 
``[t]he Council should use the advice of its science advisors in 
developing [the ABC] control rule,'' (see 74 FR 3178, 3192, January 16, 
2009), and this final action continues to support that statement. The 
definition of ``control rule'' explicitly provides that a control rule 
is ``. . . established by the Council in consultation with its SSC.'' 
See Sec.  600.310(f)(1)(iv). In addition, NMFS is re-inserting into 
Sec.  600.310(f)(3) of this final action language from the 2009 
guidelines that states that ``[t]he SSC must recommend the ABC to the 
Council.'' NMFS does not believe further clarification regarding the 
role of the SSC is needed.
    Finally, NMFS disagrees that phase-in and carry-over provisions 
should be addressed through the ACL setting process, rather than ABC 
control rules. ACLs cannot exceed ABCs, and are the level of annual 
catch based on management uncertainty that serve as the basis for 
invoking AMs. In contrast, the ABC control rule is an established 
policy for establishing an ABC that accounts for scientific uncertainty 
in the OFL and for the Council's risk policy. NMFS believes that 
scientific uncertainty and the Council's risk policy are the two 
factors that are most relevant to the decision of whether to use phase-
in and/or carry-over provisions. It should be noted that, carry-over 
can impact ACL specifications, as explained in response to comment 34 
and in the final action. However, NMFS maintains that carry-over 
provisions are most appropriately addressed through ABC control rules 
that are based on scientific uncertainty and the Council's risk policy 
because carry-over ABC control rules instruct Councils on how to 
account for increased stock abundance resulting from the fishery 
harvesting less than the full ACL as well as articulate when the carry-
over provision can and cannot be used and how it prevents overfishing.
    Comment 34: Several comments were received related to the use of 
carry-over provisions. Some commenters expressed concern that carry-
over provisions are not appropriate when a stock is overfished and/or 
in a rebuilding plan or when stock abundance is over-estimated. One 
commenter suggested that fisheries that are primarily prosecuted 
through recreational effort may not be appropriate candidates for 
carry-over provisions. One commenter stated a preference for lower, 
guaranteed carry-over amounts. Another commenter asked whether catch 
that is currently subject to a phase-in provision is eligible for use 
within a carry-over provision. Finally, one comment stated that the 
last sentence within proposed Sec.  600.310(f)(2)(ii)(B) created 
confusion regarding how a carry-over provision could be used in cases 
where the ACL has been reduced from the ABC.
    Response: NMFS agrees that, in addition to preventing overfishing, 
the Councils should consider the vulnerability of stocks that are 
overfished and/or in rebuilding plans when considering using a carry-
over provision. NMFS has added in this final action that Councils 
should evaluate the appropriateness of carry-over provisions for stocks 
that are overfished and/or rebuilding. See Sec.  600.310(f)(2)(ii)(B) 
of the final action. NMFS also agrees that the cause (e.g., management 
inaccuracy or scientific uncertainty) for an ACL underage should be 
considered when using carry-over provisions. For instance, if a fishery 
is closed early in anticipation of an ACL exceedance but, once the data 
is finalized, the results show the fishery's ACL was never exceeded, 
carry-over provisions may be appropriate. In contrast, if managers 
believe that ACL underages are linked to low abundance and there is 
uncertainty in data collection, then carry-over provisions may not be 
appropriate. As such, NMFS has added additional clarifying language to 
Sec.  600.310(f)(2)(ii)(B) of the final action.
    Carry-over provisions are intended to allow the fishery to catch 
unused portions of the previous year's ACL while preventing 
overfishing. They may be appropriate if the ACL for the second year was 
established based on an analysis that assumes the full ACL for the 
first year is caught. If in reality the full ACL in year one is not 
caught, then more fish may be available in year two, and it may be 
appropriate to adjust the ACL in year two upwards. NMFS acknowledges 
that the wording in the last sentence of proposed Sec.  
600.310(f)(2)(ii)(B) may have caused confusion and clarifies within the 
final action on this section that carry-over provisions could allow an 
ACL to be adjusted upwards as long as the revised ACL does not exceed 
the specified ABC.
    Regarding ``guaranteed carry-over provisions,'' the final action 
explains that a Council must articulate within its FMP when carry-over 
provisions of the control rule can and cannot be used and how the 
provision prevents overfishing, based on a comprehensive analysis. See 
Sec.  600.310(f)(2)(ii) of final action. Finally, some portion of 
unused catch from ACLs that are currently subject to a phase-in 
provision could be carried over, as long as the Council demonstrates 
that overfishing will be prevented.
    Comment 35: Commenters raised several questions about how to use 
carry-over provisions when new information leads the OFL and/or ABC to 
change. One commenter believed that, in order to ensure that carry-over 
provisions would not result in overfishing, the amount of allowed 
carry-over should be calculated based on the OFL from the first year 
(i.e., the year of the ACL underage). However, another commenter 
believed that carry-over should not be allowed when new information is 
available that indicates a change in stock condition. Another commenter 
asked whether or not any further carry-over is justified if the catch 
in the second year equaled the original ACL, but fell below the revised 
ACL due to prior carry-over. Commenters also requested that the 
guidelines establish a naming convention for reference points 
associated with carry-over provisions.
    Response: If new information results in a revised ABC, carry-over 
provisions can be used as long as overfishing is prevented and the 
approach used is consistent with the provisions established within the 
FMP. If a stock's current reference points (e.g., ABC, ACL) were 
revised based on carry-over from the previous year and catch fell below 
the revised ACL, the Council may apply another carry-over provision for 
the next year. However, as is the case for all carry-over provisions, 
the resulting ABC recommended by the SSC must prevent overfishing, and 
must consider the scientific uncertainty associated with the Council's 
risk policy and take into account other considerations under Sec.  
600.310(f)(2)(ii)(B) of the final action. Finally, Councils may 
establish naming conventions for reference points associated with 
carry-over provisions at their discretion.
    Comment 36: Several comments were received related to phase-in 
provisions. Commenters requested that the guidelines explicitly 
prohibit practices of using phase-in provisions to ``front-load'' high 
catch levels in the first year when increases are appropriate; or, 
delay decreases in catch levels for two years without taking any real 
action (i.e.,

[[Page 71874]]

back-loading). Commenters also expressed concern that phase-in 
provisions could be used to delay action when new information suggests 
the health of the fish population has changed. Two commenters stated 
that the phase-in provision was not worth the trouble of implementing 
because it can only apply to the difference between the OFL and ABC. 
One commenter asked how the phase-in tool is applicable to the interim 
measures under Sec.  600.310(j)(4) of proposed action. One commenter 
asked if a Council could theoretically use the 2-year time period 
allowed to develop a rebuilding plan (16 U.S.C. 1854(e)(3)) in addition 
to a 3-year phase-in approach to delay reducing catches to at or below 
the ABC for 5 years. Two commenters expressed concern regarding how the 
use of phase-in would affect the evaluation of adequate progress within 
a rebuilding plan. 16 U.S.C. 1854(e)(7). Finally, one commenter felt 
that market impacts should not be considered when deciding whether to 
use phase-in provisions while another commenter requested that 
ecosystem factors be considered.
    Response: NMFS believes that the guidelines address the ``front-
loading'' and ``back-loading'' concern, and do not require further 
revision in this regard. As discussed in comment 33, the Councils are 
required to specify in the FMP, based on a comprehensive analysis, when 
a phase-in provision can and cannot be used, and how it prevents 
overfishing. The Councils must provide an adequate record that supports 
how each application of the phase-in provision is consistent with the 
FMP. Arbitrary ``front-loading'' or ``back-loading'' approaches will 
not satisfy these requirements. Furthermore, phase-in provisions cannot 
be used to allow for overfishing. NMFS has added language to the final 
action that explicitly states that the phased-in catch level cannot 
exceed the OFL in any year. See Sec.  600.310(f)(2)(ii)(A) of the final 
action. In accordance with MSA section 304(e)(3), if a stock is 
determined to be undergoing overfishing, whether or not subject to a 
phase-in provision, new catch limits must be set to end overfishing 
immediately, unless MSA section 304(e)(6) is applied. Additionally, a 
Council may designate other indicators of stock health in its ABC 
control rule to be considered when applying a phase-in provision.
    NMFS believes that there are benefits to using phase-in provisions, 
particularly for stocks with large degrees of scientific uncertainty 
(which accordingly should have large buffers between the OFL and ABC). 
Such stocks are most likely to experience a dramatic shift in reference 
points from one assessment to another, and thus, NMFS believes that 
phase-in provisions will give managers additional flexibility and 
increase stability within fisheries.
    Section 600.310(j)(4) of the final action is based on MSA section 
304(e)(6), which authorizes NMFS to take interim measures to reduce, 
but not necessarily end, overfishing during the development of an FMP 
or FMP amendment needed to rebuild overfished stocks. 16 U.S.C. 
1854(e)(6) (authorizing interim measures for 180 days plus an 
additional 186 days). As such measures likely would deviate from the 
ABC control rule in an existing FMP, or from a new ABC control rule 
that is developed, the interim measures would not be included as part 
of any phase-in that might be adopted in an ABC control rule in a new 
FMP or FMP amendment.
    The guidelines do not preclude a Council from considering the use 
of a phase-in provision for stocks under a rebuilding plan. However, in 
addition to preventing overfishing, the Councils should consider the 
vulnerability of stocks that are overfished and/or in rebuilding plans 
when considering using a phase-in provision. NMFS has added in this 
final action that Councils should evaluate the appropriateness of 
phase-in provisions for stocks that are overfished and/or rebuilding. 
See Sec.  600.310(f)(2)(ii)(A) of the final action. A Council may 
determine that certain stocks subject to rebuilding plans are 
particularly vulnerable and should not have phase-in provisions within 
their ABC control rules. If a Council makes use of a phase-in 
provision, the provision must allow a stock to meet its specified 
timeframe for rebuilding (16 U.S.C. 1854(e)(4)). Thus, a rebuilding ABC 
must be set to reflect the amount of catch consistent with the 
designated fishing mortality rate (i.e., Frebuild) in the 
rebuilding plan. See Sec.  600.310(f)(3)(ii). If a phase-in approach is 
used for a stock under a rebuilding plan, it would not impact the 
evaluation of whether the stock has made adequate progress toward 
rebuilding.
    Finally, under Sec.  600.310(f)(2)(ii)(A), a Council may consider 
the short-term effects of a phase-in ABC control rule on a fishing 
industry, as well as long-term ecosystem effects. NMFS believes that 
economic, social, and ecological trade-offs are all relevant 
considerations when determining an ABC control rule risk policy. The 
fact that these considerations are important in fishery management is 
reflected in the National Standards and other MSA provisions.
    Comment 37: Several commenters offered suggestions for improvements 
to the phase-in provision. For example, one commenter suggested that 
NMFS consider alternative timeframes for using a phase-in ABC control 
rule based on the life history characteristics of the stock. Another 
commenter recommended NMFS replace the phase-in provision with a 
provision allowing, in the case of stocks subject to overfishing, the 
phase-in of catch levels below the OFL to end overfishing. Other 
commenters recommended that NMFS limit the use of the phase-in 
provision to the ``slow up/full down'' approach described in the 
preamble to the proposed rule. See 80 FR 2794, January 20, 2015. One 
commenter suggested that having frequent stock assessments would 
eliminate the need for phase-in provisions. Finally, another commenter 
suggested revising the guidelines to explicitly state that phase-in 
provisions apply to both increases and decreases in catch limits.
    Response: NMFS limited the use of the phase-in provision to three 
years (instead of a stock-specific time period based on life history) 
because a shorter time frame may not be that helpful in stabilizing 
catches, while a longer time frame that spans multiple stock 
assessments may prevent necessary changes to catch levels from 
occurring in a timely manner. See 80 FR 2792, 2794, January 20, 2015 
(referring to explanation in Section IX of proposed action preamble 
that many stocks are assessed every 1, 2 or 3 years). A three year time 
period is enough time to smooth out dramatic changes in annual catch 
levels while avoiding delays to address needed changes in catch levels. 
See 80 FR 2794, January 20, 2015. Additionally, NMFS believes it is 
more appropriate to base the allowable time period for phase-in 
provisions on the flow of new information, rather than the stock's life 
history characteristics because phase-in provisions are used to mediate 
management responses to new information.
    The OFL is the threshold above which a stock is determined to be 
subject to overfishing. Thus, NMFS does not believe that phasing-in 
changes to the OFL is appropriate, given that any catch level above the 
OFL would subject the stock to overfishing and the MSA requires 
preventing overfishing. While NMFS supports the use of the ``slow up/
full down'' approach as an appropriate option to consider for phase-in 
provisions, NMFS believes that the Councils should have the flexibility 
to design their own phase-in provisions, based on a comprehensive 
analysis that prevents overfishing.

[[Page 71875]]

    NMFS agrees that having frequent stock assessments may reduce the 
need for phase-in provisions. However, the phase-in provision will 
address the current levels of uncertainty and accommodate reduced 
uncertainty in the future, as improvements in the stock assessment 
process are made. Finally, NMFS does not believe that revisions are 
needed to the language on phase-in provisions to explicitly refer to 
increases and decreases in catch levels. The text refers generally to 
``changes to ABC,'' thus allowing for potential application of phase-in 
provisions in both directions.

ABC Control Rules--Risk Policy and Role of SSC

    Comment 38: NMFS received several comments regarding a Council's 
risk policy for ABC control rules. Several commenters requested that 
the guidelines define risk policies, require their use, and provide 
more specific and transparent technical guidance on establishing risk 
policies. Commenters also expressed concern that the term ``at least 50 
percent'' within Sec.  600.310(f)(2)(i) of the proposed action could be 
interpreted as a recommendation of the level of acceptable probability 
that overfishing will be prevented, rather than a lower bound and 
sought additional guidance on how much overfishing risk is prudent and 
legal. Other commenters recommended that the agency formally evaluate 
risk policies; that ABC control rules must lower fishing mortality as 
stock size declines (not just consider doing so); and that risk 
policies only consider biological and ecological factors. One commenter 
also opposed risk policies that utilize the ``P* approach'' to set 
buffers that account for scientific uncertainty, stating the approach 
provides a mechanism for Councils to ``reverse engineer'' their risk 
policies to obtain desirable catch levels.
    Response: NMFS believes sufficient guidance is given within the NS1 
guidelines to allow Councils to establish well-documented ABC control 
rules and risk policies, as supported by a comprehensive analysis (see 
response to comment 33). NMFS strongly recommends the use of risk 
policies in order to properly establish measures (i.e., ABCs) that are 
consistent with the dual mandates of NS1 (preventing overfishing while 
achieving, on a continuing basis, OY) and other MSA provisions. As 
described in the preamble to the final 2009 NS1 Guidelines, a 50 
percent probability that the catch equal to the stock's ABC will not 
result in overfishing is a lower bound, not a default value. See 
response to comment 63, 74 FR 3195-96, January 16, 2009. ABC control 
rules that are more risk adverse may be prudent, depending on the OY 
considerations (i.e. ecological, economic, and social trade-offs) that 
a Council may consider. See Sec.  600.310(f)(4)(iv) of final action.
    The Secretary reviews ABC control rules and the Council's risk 
policy when conducting its review of FMPs or FMP amendments, as 
required under MSA section 304(a). A risk policy for ABC control rules 
is a policy decision made by the Council, based on the fishery 
management objectives (ecological, economic, and social) identified 
within the FMP. NMFS believes that social and economic factors, as well 
as biological and ecological ones, are relevant when developing risk 
policies in light of a Council's fishery management objectives. The 
fact that these considerations are important in fishery management is 
reflected in the National Standards and other MSA provisions.
    While the guidelines recommend Councils consider reducing fishing 
mortality as stock size declines below Bmsy and as 
scientific uncertainty increases, that action may not be appropriate in 
every case. Finally, as described in Sec.  600.310(f)(2)(i) and 
discussed in comment 40, the SSC applies the Council's ABC control rule 
and risk policy (which are established within its FMP) when 
recommending an ABC to the Council. Thus, the guidelines are clear that 
risk policies are established within FMPs and are not capable of being 
modified to attain a desirable ABC recommendation for a single year.
    Comment 39: Several commenters supported the addition of 
definitions for scientific and management uncertainty. See Sec.  
600.310(f)(1)(v)-(vi) of proposed action. In addition, NMFS received 
several comments requesting additional guidance on how to set 
appropriate, transparent, and quantifiable scientific and management 
uncertainty buffers to reduce the risk of overfishing and/or achieve 
OY. Some commenters recommended that the guidelines require all sources 
of scientific and management uncertainty be described and considered. 
Some commenters requested the guidelines require scientific uncertainty 
buffers to account for uncertainty in the relationship between 
environmental factors (including protected resources) and stock 
biomass, while others expressed that accounting for those types of 
uncertainty is overly precautionary. Commenters also requested the 
guidelines: Clarify the definition of ABC; cross-reference the 
definitions of scientific and management uncertainty throughout Sec.  
600.310(f); and require proxies to be used to account for types of 
uncertainty that are known to exist but not typically accounted for in 
standard error values.
    Response: NMFS believes that Sec.  600.310(f) of the final action 
provides sufficient guidance to the Councils on appropriately 
accounting for scientific and management uncertainty to meet the 
requirements of NS1 while providing Councils with adequate flexibility 
to address the particular levels of uncertainty for their stocks. While 
all sources of scientific and management uncertainty should be 
considered, NMFS acknowledges that consideration and quantification of 
uncertainty is limited by data availability. As stated in Sec.  
600.310(f)(1)(vi), uncertainty regarding the relationship between 
environmental factors (including protected resources) and stock biomass 
can be accounted for through the consideration of ``longer-term 
uncertainties due to potential ecosystem and environmental effects.'' 
Potential sources of scientific and management uncertainty are listed 
in Sec.  600.310(f)(1)(v) and (vi) of the final action. The extent to 
which those sources of uncertainty are considered is at the discretion 
of the Council, thus NMFS believes the guidelines are not overly 
prescriptive or overly precautionary.
    Furthermore, the definitions for ABC, scientific uncertainty, and 
management uncertainty are clearly established within the guidelines 
and do not need to be cross-referenced. Finally, the guidelines clearly 
state that when scientific uncertainty cannot be directly calculated, a 
proxy for uncertainty itself should be established based on the best 
scientific information available. See Sec.  600.310(f)(2)(ii).
    Comment 40: NMFS received several comments expressing concern that 
proposed revisions to Sec.  610.310(f) will minimize the SSC's role in 
setting the ABC and ABC control rules. Commenters stated that the 
proposed definition of ``control rule,'' in combination with the 
deletion of the phrases ``The SSC must recommend the ABC to the 
Council'' and ``based on scientific advice from its SSC'' from Sec.  
600.310(f)(3) of the proposed action will weaken the requirement that 
Councils cannot exceed the SSC's fishing level recommendations and are 
inconsistent with NS2. Commenters recommended restoring the existing 
language related to the SSC's role in setting ABCs and ABC control 
rules, revising the definition of ``control rule,'' and adding 
additional plain language guidance on the relationship between

[[Page 71876]]

the SSC and the ABC, as well as other parts of the ACL framework. 
Another commenter requested clarification on whether an SSC can 
recommend an ABC that exceeds the catch that results from the 
application of the control rule.
    Response: As discussed in the 2009 final action (see 74 FR 3181, 
January 16, 2009), the statute is clear that the SSC is required to 
recommend the ABC to the Council. 16 U.S.C. 302(g)(1)(B), 302(h)(6). 
However, NMFS agrees that this statutory requirement should be clearly 
stated within the NS1 guidelines and NMFS has re-instated the phrase 
``The SSC must recommend the ABC to the Council'' within Sec.  
600.310(f)(3) of the final action. The role of the SSC in the 
establishment of ABC control rules is accurately described within Sec.  
600.310(f)(1)(iv), and the guidelines clearly emphasize using the best 
scientific information available (NS2) in the specification of the ABC 
within Sec.  600.310(f)(3). Thus, NMFS believes the NS1 guidelines 
provide sufficient guidance on the role of the SSC within the ABC-
setting process. Finally, the SSC may recommend an ABC that differs 
from the result of the application of the ABC control rule, based on 
factors such as data uncertainty, recruitment variability, declining 
trends in population variables, and other factors. However, if a 
different value is recommended, the SSC must provide a well-documented 
and adequate record for the deviation.
    Comment 41: NMFS received requests for additional plain-language 
descriptions of the relationships between ABC, ACL, and OFL. One 
commenter recommended clarifying that ABC and ACL should be set in 
terms of catch, rather than landings.
    Response: The relationships between ABC, ACL, and OFL were clearly 
described in the 2009 action. See 74 FR 3180, January 16, 2009. NMFS 
agrees that, wherever practical in the management context, ABC and ACL 
should be set in terms of catch, rather than landings. However, there 
are fisheries for which data on bycatch (discards) is not available in 
the same time-frame as data on landed catch. In these cases, Councils 
may express an ABC (and, correspondingly, ACL) in terms of landings as 
long as estimates of bycatch and any other fishing mortality not 
accounted for in the landings are incorporated into the determination 
of ABC. See Sec.  600.310(f)(3)(i).

Accountability Measures

    Comment 42: One commenter suggested adding ``or functional 
equivalent'' to the discussion of annual catch targets (ACTs) in Sec.  
600.310(f)(4)(i) and Sec.  600.310(g)(4).
    Response: NMFS agrees and has included the suggested language in 
Sec.  600.310(f)(4)(i) of the final action and the phrase ``or the 
functional equivalent'' in Sec.  600.310(g)(4) of the final action.
    Comment 43: NMFS received many comments on the relationship between 
ACLs and AMs. Some commenters requested the guidelines recommend 
applying AMs with increasing severity as catch overages approach the 
OFL while others emphasized that Councils should be given deference in 
deciding how to implement AMs. Other comments included: Suggested 
revisions to require AMs to prevent overfishing (as opposed to 
preventing ACL overages); confusion regarding how to implement AMs 
based on multi-year averaging; recommendations to encourage the use of 
overage adjustments to counter the biological consequences of ACL 
overages; recommendations to require overage adjustments for rebuilding 
stocks unless the overage is due to higher than expected recruitment 
and abundance; and recommendations that the guidelines include examples 
of SDCs and AMs that address habitat-based criteria. Finally, one 
commenter suggested that in cases where an ACL is exceeded due to 
higher than expected recruitment, the corresponding ABC should be 
revised based on the higher observed recruitment and ACLs should be 
reset accordingly.
    Response: AMs are management controls to prevent ACLs from being 
exceeded and to correct or mitigate overages of the ACL if they occur. 
The proposed action did not make any substantive changes to the 
guidance on the relationship between AMs and ACLs. Based on experience 
in implementing Sec. Sec.  600.310(f)(4); 600.310(g), and after taking 
into consideration public comments, NMFS does not believe that any 
further revisions to the guidelines are required. As discussed in the 
2009 final action, the decision of how to establish and implement AMs 
for each fishery is at the discretion of the Council. Also as discussed 
in the 2009 final action, NMFS interprets the MSA as requiring AMs to 
prevent the ACL from being exceeded (as opposed to preventing the ABC 
or OFL from being exceeded). See e.g., response to comment 59, 74 FR 
3194, January 16, 2009 (addressing similar comments). Consistent with 
that, NMFS recommends that, whenever possible, Councils establish AMs 
that allow in-season monitoring and adjustment to the management of the 
fishery. Section 600.310(g)(5) of the final action allows Councils, in 
cases where fisheries lack timely and/or consistent data, to establish 
AMs based on comparisons of average catch to average ACL. See e.g., 
response to comment 65, 74 FR 3196, January 16, 2009 (addressing 
similar comments).
    The guidelines clearly state within Sec.  600.310(g)(3) that 
biological consequences on the status of the stock (i.e., its ability 
to produce MSY or achieve rebuilding goals) must be accounted for when 
designing and implementing AMs. While NMFS encourages Councils to use 
overage paybacks when appropriate to compensate for ACL overages, NMFS 
believes that Councils should design and implement AMs based on the 
particular conditions and needs of the fishery. In addition, AMs are 
controls to prevent ACLs from being exceeded, and do not consider non-
fishing factors that affect stock health, such as habitat-based 
criteria. Such considerations should be accounted for in OY 
specifications. Finally, as described in the preamble to the proposed 
action, a Council may consider if higher than expected recruitment 
played a role in catches exceeding the ACL when deciding on the 
appropriate AM to implement. See 80 FR 2795, January 20, 2015. The ABC 
is not a type of inseason AM and may not be revised during a fishing 
season based on catches that exceed the ACL. Nevertheless, data showing 
higher than expected recruitment may be accounted for by a Council's 
SSC when specifying the ABC for subsequent fishing seasons based on the 
Council's ABC control rule.
    Comment 44: One comment suggested that NMFS, as opposed to the 
Councils, should be responsible for inseason management. The commenter 
also expressed concern that Sec.  600.310(g)(3) expands the purpose of 
AMs into a punishment for overages by requiring an automatic reduction 
of ACLs in the case of overages. The commenter asked whether the 
provision provides a similar exception for stocks that are not in 
rebuilding plans as stocks that are in rebuilding plans.
    Response: Councils must establish appropriate AMs within their 
FMPs, which are subject to review and approval by NMFS. 16 U.S.C. 1853 
(a)(15); 1854(a). Based on the AMs established by a Council's FMP, NMFS 
may have implementation responsibilities. For example, NMFS may provide 
data to the Councils in support of inseason monitoring and adjustment 
for each fishery, as well as implement any necessary inseason AMs 
(e.g., fishery closures) should certain

[[Page 71877]]

conditions be met. Furthermore, if an ACL is exceeded, the existing 
guidelines do not require that the ACL be automatically reduced in the 
following year. The guidelines explain that Councils may determine the 
most appropriate AM to use in response to an ACL overage based on a 
variety of factors. While NMFS strongly recommends that full overage 
adjustments should be applied to stocks in rebuilding plans (due to 
their increased vulnerability), the guidelines acknowledge that there 
may be cases where the best scientific information available shows that 
a reduced overage adjustment (or no adjustment) is needed to mitigate 
the effects of overages for a rebuilding stock. Such cases are expected 
to be rare. Councils have the flexibility to determine the most 
appropriate AM for stocks. Because overage adjustments are not required 
for stocks that are not in rebuilding plans, it is not necessary to add 
additional exceptions into the guidelines. See Sec.  600.310(g)(3). 
Section 600.310(g)(3) was adopted in the 2009 NS1 Guidelines, and this 
action did not propose any revisions to the text. Based on experience 
in implementing Sec.  600.310(g)(3), and after taking into 
consideration public comments, NMFS does not believe that further 
revisions to the section are required.
    Comment 45: One commenter asserted that Sec.  600.310(g)(6) of the 
proposed action, which states that fisheries that have harvest in state 
or Federal waters must have AMs for the portion of the fishery in 
Federal waters, is in conflict with Sec.  600.310(g)(1), which states 
that AMs must prevent the ACL from being exceeded.
    Response: Federal management authority is limited to the portion of 
the fishery under Federal jurisdiction. Therefore, the 2009 NS1 
guidelines only require AMs for the Federal fishery, and this approach 
is unchanged in this final action. NMFS continues to strongly recommend 
collaboration with state managers (and other applicable managers) to 
develop ACLs and AMs that prevent overfishing of the stock as a whole. 
See e.g., response to comment 71, 74 FR 3197, January 16, 2009 
(addressing similar comments).
    Comment 46: NMFS received many comments on the proposed revision 
within Sec.  600.310(g)(3) that clarifies that no additional AMs are 
necessary for stocks whose ACL is zero and the AM for the fishery is a 
closure. Commenters expressed concern that stocks with ACLs equal to 
zero are particularly vulnerable and the provision could be construed 
to exempt a Council from implementing adequate AMs that prevent the ACL 
from being exceeded as well as exempt the fishery from the requirements 
of NS9 and NS1 guidelines catch accounting requirements (Sec.  
600.310(e)(2)(ii)(C)). Commenters also stated that the provision is in 
conflict with the decision in Oceana v. Locke, 831 F. Supp. 2d 95 
(D.D.C. 2011). Finally, commenters requested additional clarification 
on the meaning of the term ``small'' within the phrase ``only small 
amounts of catch or bycatch'' within Sec.  600.310(g)(3).
    Response: The final action retains the clarification within Sec.  
600.310(g)(3) that, if an ACL is set equal to zero and the AM for the 
fishery is a closure of the fishery, additional AMs are not required if 
(1) only small amounts of catch or bycatch occur, and (2) that catch or 
bycatch is unlikely to result in overfishing. The provision is an 
optional tool that will only apply to a limited set of cases where 
there is no way to account for the small amounts of bycatch occurring 
and, therefore, it is not pragmatic to establish AMs to try to account 
for such small amounts of bycatch that are unlikely to result in 
overfishing. In order to utilize this provision, Councils must provide 
a well-documented record supporting that the stock meets both of the 
above-mentioned criteria. Additional AMs are not required when the 
catch or bycatch is unlikely to result in overfishing and is at such a 
low level that it is not practicable to require additional AMs. See 
response to comment 78 for further discussion of the term 
``practicable''.
    NMFS disagrees that the provision is contrary to Sec.  
600.310(e)(2)(ii)(C) of the NS1 guidelines or NS9. Section 
600.310(e)(2)(ii)(C) provides for accounting for all sources of 
mortality ``where practicable,'' when evaluating stock status with 
respect to reference points. See response to comments 32 and 78 for 
further discussion of that section and the term ``practicable.'' NS9 is 
a separate statutory requirement (16 U.S.C. 1851(a)(9)) from the ACL/AM 
requirement (16 U.S.C. 1853(a)(15)), and in any event, NS9 requires 
that measures, ``to the extent practicable,'' minimize bycatch and 
bycatch mortality. 16 U.S.C. 1851(a)(9).
    NMFS also disagrees that the provision conflicts with Oceana v. 
Locke. In that decision, the court held that when sector-specific sub-
ACLs are established, sector-specific sub-AMs may be necessary. The 
court found that NMFS could not demonstrate that overfishing would be 
prevented when there were no sub-AMs specified that could address 
overages of specified sub-ACLs. Sector-ACLs are not required under the 
NS1 guidelines. However, as explained in the response to comment 80, 
Sec.  600.310(f)(4)(ii) now provides that, if sector-ACLs are used, 
then sector-AMs should also be specified. That section emphasizes that 
``ACLs in coordination with AMs must prevent overfishing.'' See Sec.  
600.310(f)(4)(i). Section 600.310(g)(3) reinforces the requirement to 
prevent overfishing by clarifying that, in cases where an ACL is set 
equal to zero and the AM for the fishery is a closure, additional AMs 
are not required if catch or bycatch is unlikely to result in 
overfishing. Thus, the approach under Sec.  600.310(g)(3) is consistent 
with Oceana v. Locke.
    Comment 47: NMFS received several suggestions to modify the 
language in both Sec.  600.310(f)(4)(i) and Sec.  600.310(g)(4). 
Comments included: The agency should be required to provide catch data 
within 60 days of the end of the fishing year; revise the use of the 
word ``should'' from the description of in-season AMs; replace ``for 
the next year'' with ``as soon as possible'' within Sec.  
600.310(f)(4)(i); and repeat that management uncertainty should be 
accounted for at the ACL level if an ACT is not used in Sec.  
600.310(g)(4). Finally, while some commenters requested that the 
guidelines clarify that sector-AMs should be applied when sector-ACLs 
are used, others opposed sector-ACLs and AMs and recommended that the 
guidelines replace ``sector-AMs should also be specified'' with 
``sector-AMs may also be specified.''
    Response: First, while NMFS aims to provide catch data to the 
Councils as soon as possible, a specific deadline to provide catch data 
for all fisheries is not realistic, given the various mitigating 
circumstances that arise. As discussed within Sec.  600.310(g)(2), 
Councils should plan to make appropriate use of preliminary data, if 
needed to implement inseason AMs. Second, while NMFS strongly 
recommends the use of inseason AMs, NMFS is not requiring them to be 
used (i.e., not changing ``should'' to a ``must'' in the description of 
inseason AMs), because inseason AMs are not a statutory requirement, 
and NMFS believes that Councils should have discretion to consider 
different types of AMs. Third, ACLs are set on an annual basis and, 
because AMs are management measures to help prevent fisheries from 
exceeding ACLs, AMs should be applied on an annual basis as well. 
Lastly, NMFS believes that the guidance adopted in the 2009 NS1 
Guidelines regarding accounting for management uncertainty within the 
ACL-setting process and using sector-AMs is sufficient. After 
considering public comments, NMFS

[[Page 71878]]

has determined that no additional guidance on these topics is necessary 
in the NS1 guidelines.

ACL & AM Mechanisms--Life Cycle Exemption

    Comment 48: Several comments were received regarding NMFS' proposal 
to revise the life cycle exception to apply to ``a stock for which the 
average age of spawners in the population is approximately 1 year or 
less.'' See Sec.  600.310(h)(1)(i) of proposed action. Some commenters 
felt this modification to the exception was still too restrictive. One 
commenter proposed that the exception should apply to stocks for which 
the average age of spawners is 2 or 3 years. Others felt the exception 
was not restrictive enough. One commenter said that the life cycle 
exception should only apply to an ``unfished population.'' They 
expressed concern that excessive fishing could truncate the life cycle 
of the stock to the point that it qualifies for the exception. Another 
recommended expanding the life cycle exception in the MSA to include 
species with life cycles of 1-2 years but then limiting it to those 
species that also experience a rate of natural mortality that far 
exceeds the effects of fishing mortality. Finally, one commenter asked 
for more guidance on how to apply the exception.
    Response: The MSA provides a statutory exception to the 
requirements for ACLs and AMs for ``a fishery for species that have a 
life cycle of approximately 1 year unless the Secretary has determined 
the fishery is subject to overfishing of that species.'' 16 U.S.C. 1853 
note (Pub. L. 109-479 104(b)). The 2009 NS1 guidelines explained that 
this statutory exemption applies to a stock for which the average 
length of time it takes for an individual to produce a reproductively 
active offspring is approximately 1 year and that the individual has 
only one breeding season in its lifetime. See 74 FR 3210, January 16, 
2009. In this action, NMFS is revising the exception to apply to ``a 
stock for which the average age of spawners in the population is 
approximately 1 year or less,'' as this is a more scientifically 
correct description of a species that has a life cycle of approximately 
1 year. As explained in the preamble to the proposed action, NMFS 
believes that the 2009 NS1 guidelines' reference to one breeding season 
in a lifetime was overly restrictive, because some short lived species 
have multiple breeding cycles in a lifetime. NMFS cannot change the 
reference to 1 year in the NS1 guidelines, because that is based on the 
statutory text for the exception, which is quoted above.
    NMFS does not agree with limiting the exception to ``unfished 
populations'' or to stocks that experience a rate of natural mortality 
that far exceeds the effects of fishing morality. The exception itself 
does not include these limitations, and NMFS does not believe that they 
are necessary, given that the exception will not apply if ``the 
Secretary has determined the fishery is subject to overfishing of that 
species.'' 16 U.S.C. 1853 note.
    NMFS continues to believe that the National Standard 1 guidelines 
should not include overly prescriptive guidance as to which stocks meet 
the criteria for the exception; this is a decision that is best made by 
the Councils, subject to Secretarial review and approval under MSA 
section 304(a). To the extent that questions arise as to the 
application of the exemption, NMFS will provide case-specific guidance 
to the Councils as necessary.

ACL & AM Mechanisms--Flexibility in Application of NS1 Guidelines

    Comment 49: Some commenters expressed support for the proposal to 
add additional examples of circumstances that might call for 
flexibility in the application of the NS1 guidelines. See Sec.  
600.310(h)(2) of proposed action. Others felt that the proposal could 
be improved. For instance, one commenter felt that the Pacific salmon 
example in the proposed action mischaracterizes the spawning potential 
of Pacific salmon. The commenter recommended keeping the original 
language or inserting the phrase ``of each run'' after ``potential.'' 
Another commenter suggested relocating the provision to make it clear 
that it applies to the complete set of NS1 guidelines and is not 
limited to only flexibility in establishing ACL mechanisms and AMs in 
FMPs.
    Response: NMFS agrees with the commenter about the proposed 
language regarding Pacific salmon spawning potential, thus the sentence 
in this final action reverts back to as it was written in the 2009 NS1 
guidelines: ``(e.g., Pacific salmon, where the spawning potential for a 
stock is spread over a multi-year period).''
    NMFS disagrees with the suggestion to relocate the flexibility 
provision in Sec.  600.310(h)(2). NMFS believes the guidance in Sec.  
600.310(h)(2) is clear and that further revision is not necessary. 
Section Sec.  600.310(h)(2) is meant to only provide flexibility in 
establishing ACLs and AMs. The revisions to Sec.  600.310(h)(2) were 
not meant to expand what it applies to but rather to connect the 
proposed change in Sec.  600.310(e)(2)(ii) to the requirement to 
specify ACLs and AMs because a Council specifying SDC in a manner that 
deviates from the standard NS1 guidelines approach will also likely 
need to deviate from the standard approach to setting ACLs and AMs.

Calculating Tmax

    Comment 50: NMFS received many comments supporting the inclusion of 
two additional methods to calculate Tmax within the NS1 
guidelines. Other commenters expressed concern that providing 
additional options for calculating Tmax would incentivize 
Councils to merely pick the longest Tmax, which would result 
in a rebuilding plan that is ineffective and/or fails to meet the 
statutory requirement that rebuilding plans rebuild a stock in as short 
a time as possible. Similarly, many commenters sought additional 
guidance from NMFS as to how to pick between the three different 
Tmax calculations. Several commenters also requested 
additional technical guidance on whether factors discussed in Sec.  
600.310(j)(3)(i) can be used to justify the method used for calculating 
Tmax, and additional guidance on the preferred methodology 
to calculate mean generation time. Several commenters provided 
suggestions to either improve the proposed Tmax calculation 
methods or include other alternate Tmax calculation methods 
within the guidelines. Commenters also recommended that the guidelines 
encourage setting Ttarget as close to Tmin as 
possible and encourage the use of management measures that adhere to 
Ttarget as opposed to Tmax.
    Response: As the preamble to the proposed rule discussed, while 
NMFS does not anticipate that the proposed alternative approaches to 
calculate Tmax will produce drastically different values, 
NMFS has added these methods to give Councils the flexibility to 
calculate Tmax in light of variable information and data 
availability. See 80 FR 2795-96, January 20, 2015. NMFS expects these 
additional methods will help Councils avoid using overly conservative 
or exaggerated Tmax values in cases where there is a lack of 
available data to calculate mean generation time as required under the 
only available approach under the previous guidelines (i.e., 
Tmin plus one mean generation time). However, NMFS revised 
the final action to provide additional guidance on decisions regarding 
which Tmax calculation method to use. NMFS emphasized that, 
in cases where Tmin exceeds 10 years, Tmax is a 
biological calculation. Because Tmax is a biological 
calculation, the calculation methods provided in the

[[Page 71879]]

guidelines do not include other factors such as those outlined in Sec.  
600.310(j)(3)(i). NMFS also clarified in the final action that the 
determination of which Tmax calculation method to use should 
be made by the Councils in consultation with their SSCs (or agency 
scientists or peer review processes in the case of Secretarial actions) 
and should be based on the best scientific information available. See 
Sec.  600.310(j)(3)(i)(B)(3).To this end, NMFS has also added language 
to the final action emphasizing that a Council and its SSC should 
consider the relevant biological data and scientific uncertainty of 
that data when deciding which calculation method to use. Finally, NMFS 
also provided examples of cases where, given data availability and the 
life history characteristics of a stock, one of the alternative methods 
may be more appropriate than the status quo calculation method 
(Tmin plus one mean generation time).
    As noted in the 2009 final action, Tmax is an upper 
bound on the duration of rebuilding time periods and is a limit that 
should be avoided. See 74 FR 3200, January 16, 2009. When developing 
and implementing an effective rebuilding plan, Councils must determine 
Ttarget, which is the shortest rebuilding time period 
possible based on the factors in Sec.  600.310(j)(3)(i). Thus, Councils 
must demonstrate that their adopted Ttarget is the shortest 
time possible for rebuilding and Council action addressing an 
overfished fishery should be based on Ttarget (16 U.S.C. 
1854(e)(4)(A); NRDC v. NMFS, 421 F.3d 872, 882 (9th Cir. 2005)). NMFS 
believes the methods given for Tmax calculations in the 
final guidelines are sufficient to produce appropriate Tmax 
values and there is no need for additional guidance within the NS1 
guidelines.
    Finally, NMFS has already developed technical guidance on 
calculating mean generation time for use in rebuilding plans, which 
includes a definition for mean generation time (Restrepo et al., 1998). 
NMFS believes this technical guidance document is sufficient and does 
not believe an exact method should be specified in the NS1 guidance.
    Comment 51: NMFS received several comments on the requirement 
within MSA section 304(e)(4)(A)(ii) to specify a time period for 
rebuilding overfished stocks that does not exceed 10 years (henceforth 
referred to as the ``10 year rebuilding requirement''). Comments 
reflected disappointment that the proposed changes to the guidelines do 
not address the issue of ``discontinuity'' among rebuilding plans: 
Where Councils with stocks that have a Tmin greater than 10 
years are able to adopt rebuilding plans significantly longer than 10 
years while stocks with a Tmin of 10 years or less are 
required to rebuild within 10 years. Comments included suggestions to 
remove the 10 year rebuilding requirement and replace it with 
alternative rebuilding requirements. Another commenter suggested that 
socio-economic considerations should be included when assessing a 
stock's ability to rebuild in 10 years. One commenter recommended 
revising the language in Sec.  600.310(j)(3)(i)(B)(1) to clarify that, 
because fishing mortality cannot be guaranteed to equal zero, the 10 
year rebuilding requirement should apply to stocks with a 
Tmin of less than 10 years, rather than less than or equal 
to 10 years. Finally, other commenters suggested legislative action to 
modify the 10 year rebuilding requirement within the MSA.
    Response: While NMFS acknowledges that the 10 year requirement 
under MSA section 304(e)(4)(A)(ii) can lead to disparate outcomes for 
different stocks, action by Congress would be required to change that 
statutory requirement. See 74 FR 3200-01, January 16, 2009. Under the 
2009 NS1 Guidelines and this action, NMFS does not include socio-
economic considerations with regard to the 10 year rebuilding 
requirement, because MSA section 304(e)(4)(A)(ii) does not provide for 
this. 16 U.S.C. 1854(e)(4)(A)(i) and (ii) (requiring under (ii) that 
rebuilding period not exceed 10 years, except under certain 
circumstances which do not include socio-economic considerations, but 
providing under (i) that ``needs of fishing communities'' may be 
considered when determining if period is as short as possible). NMFS 
reiterated in the 2009 final NS1 Guidelines that the needs of fishing 
communities are not part of the criteria for determining whether a 
rebuilding period can or cannot exceed 10 years, but are an important 
factor in establishing Ttarget. See 74 FR 3200, January 16, 
2009.
    Finally, NMFS acknowledges that hypothetically, there could be a 
situation where Tmin for a stock is equal to 10 years and 
Tmax is equal to 10 years, in which case a fishery may need 
to be closed in order to meet the 10 year rebuilding requirement. 
However, a Federally-managed stock has yet to be determined to be 
overfished and present the aforementioned situation, and NMFS believes 
such an extreme situation is unlikely.
    Comment 52: Some commenters regarded the proposed language in Sec.  
600.310(j)(3)(i)(A), which clarifies that the starting year for the 
Tmin calculation should be the first year the rebuilding 
plan is implemented, as a loophole that encourages Councils to delay 
the implementation of a rebuilding plan and set the starting date for 
Tmin later than is appropriate. One commenter recommended 
re-instating ``whichever is sooner'' in subsection Sec.  
600.310(j)(3)(i)(B) of the existing guidelines in addition to retaining 
the proposed ``expected to be'' language.
    Response: NMFS disagrees that guidance on the starting year for the 
calculation of Tmin creates an incentive to delay 
implementation of rebuilding plans. MSA section 304(e)(3) requires that 
following notification that a fishery is overfished or approaching a 
condition of being overfished, a Council prepare and implement an FMP, 
FMP amendment, or proposed regulations within 2 years. This provision 
does not require that the starting year for a reference point for 
rebuilding plans (i.e., Tmin) be set prior to the first year 
the rebuilding plan is expected to be implemented. Because MSA section 
304(e)(4) addresses reference points in the context of the rebuilding 
measures that the Council will be adopting, NMFS believes that the 
starting year reference point should be the same year as the 
implementation of those measures. Additionally, the MSA required that, 
by fishing year 2010/2011, FMPs establish mechanisms to specify ACLs to 
prevent overfishing, which means that during the period of rebuilding 
plan development, ACLs will be in place that end overfishing. 
Therefore, catch of stocks in poor shape (i.e., overfished stocks 
undergoing overfishing) will be constrained immediately in order to end 
overfishing, regardless of when the rebuilding plan is implemented.

Adequate Progress & Extending Rebuilding Timelines

    Comment 53: While NMFS received some comments in support of the 
proposed guidance on adequate progress determinations, some comments 
opposed the proposed changes and expressed that they are unnecessary, 
ineffective, and likely to decrease the odds of a stock being rebuilt. 
Many commenters expressed concern that the proposed criteria for 
adequate progress determinations in Sec.  600.310(j)(3)(iv) of the 
proposed action were too vague, required additional guidance, and would 
allow stock biomass levels to be ignored. Many commenters emphasized 
that the criteria for adequate progress determinations should include 
some consideration of biomass trends to help identify when changing 
conditions render original Frebuild and/or biomass targets 
no longer appropriate. NMFS

[[Page 71880]]

also received many suggestions on how to significantly modify the 
guidance on adequate progress determinations.
    Response: While NMFS agrees that a stock's biomass is a relevant 
factor when making adequate progress determinations, NMFS also 
emphasizes that there is a strong relationship between 
Frebuild and biomass trends. Stocks that consistently 
experience fishing mortality above Frebuild generally 
experience declining or little increases in biomass, while stocks that 
consistently experience fishing mortality equal to or below 
Frebuild generally experience increasing biomass. NMFS plans 
to work with Councils to actively review available biomass estimates 
for stocks in rebuilding plans and monitor whether rebuilding stocks 
are experiencing the expected relationship between Frebuild 
and biomass. Cases where a stock's biomass is not increasing, despite 
catch levels being maintained at or below Frebuild would be 
unexpected. Such cases would likely trigger the second criteria listed 
in Sec.  600.310(j)(3)(iv) (i.e., new and unexpected information has 
significantly changed the rebuilding expectations of the stock). See 80 
FR 2796, January 20, 2015. Thus, NMFS is confident that the criteria 
for adequate progress determinations (see Sec.  600.310(j)(3)(iv) of 
the final action) address and cover situations where a rebuilding plan 
fails to properly constrain fishing mortality rates as well as 
situations where a rebuilding stock's biomass is failing to increase. 
NMFS believes that further prescriptive guidance on adequate progress 
determinations is not needed in the NS1 guidelines.
    Comment 54: Some commenters opposed Sec.  600.310(j)(3)(v) of the 
proposed action. Commenters felt it would allow the same rebuilding 
parameters to be used for an indefinite period of time past the 
original rebuilding timeframes as long as adequate progress is not 
found. Commenters stated that the provision is a ``set it and forget 
it'' policy that gives no incentive to revisit a stock's 
Frebuild even if Frebuild was initially 
overestimated and/or the stock's biomass is not making progress toward 
reaching Bmsy due to environmental stressors or other 
factors. Commenters recommended several revisions that encourage 
Councils to periodically assess whether their rebuilding plan 
parameters are adequate to rebuild the stock in the length of time 
mandated by Congress.
    Response: As highlighted in the National Research Council report on 
rebuilding (NRC 2013), the primary objective of a rebuilding plan 
should be to maintain fishing mortality at or below 
Frebuild. By doing so, managers can avoid issues with 
updating timelines that are based on biomass milestones, which are 
subject to uncertainty and changing environmental conditions that are 
outside the control of fishery managers. Thus, the final action 
includes language to clarify that the NS1 guidelines recommend Councils 
maintain F rates at Frebuild when implementing a rebuilding 
plan, unless the Secretary finds that adequate progress is not being 
made. NMFS disagrees that Sec.  600.310(j)(3)(v) allows original 
rebuilding timeframes to be used indefinitely. The final action gives 
the Secretary specific criteria to use when evaluating rebuilding plans 
for adequate progress every 2 years, which prevents rebuilding 
timeframes from continuing indefinitely without adequate progress 
towards rebuilding. Councils must develop and implement a new or 
revised rebuilding plan within two years of a determination that 
adequate progress is not being made. 16 U.S.C. 1854(e)(7).
    Comment 55: Commenters requested more stringent guidance for 
Councils with stocks that have not been rebuilt by Tmax. 
Some commenters recommended NMFS replace ``Tmax'' with 
``Ttarget'' in Sec.  600.310(j)(3)(vi) of the proposed 
action because Ttarget is the specified time period for 
rebuilding a stock that is considered to be in as short a time as 
possible and therefore is the reference point that is required to be 
met by the MSA. Commenters also recommended that the guidelines require 
F to be lowered in situations where a stock reaches Tmax (or 
Ttarget) without having been rebuilt. Commenters suggested 
that the guidance contained in Sec.  600.310(j)(3)(vi) should also 
apply to stocks where the Secretary finds that adequate progress is not 
being made. Two commenters recommended striking ``or the Secretary 
finds that adequate progress is not being made'' from the provision to 
avoid ``resetting the clock'' and potentially relaxing rebuilding 
parameters.
    Response: NMFS believes that use of Tmax in Sec.  
600.310(j)(3)(vi) gives Councils appropriate guidance in cases where a 
stock is not rebuilt by Tmax. As explained in response to 
comment 54, the primary objective of a rebuilding plan is to maintain 
Frebuild. Thus, NMFS believes that requiring that F does not 
exceed Frebuild or 75 percent of the MFMT, whichever is 
lower, is an appropriate approach. See e.g., response to comment 85, 74 
FR 3200, January 16, 2009 (addressing similar comments). However, 
Councils should consider a lower mortality rate in light of the MSA's 
goal to rebuild stocks in as short a time as possible (i.e. 
Ttarget). Finally, MSA section 304(e)(7)(B) requires the 
Secretary, upon notifying a Council that adequate progress is not being 
made, ``to recommend further conservation and management measures which 
the Council should consider . . .'' Such recommendations may include, 
but are not limited to, rebuilding measures similar to those in Sec.  
600.310(j)(3)(vi) (e.g., maintaining Frebuild or 75 percent 
of MFMT, whichever is lower). The phrase within Sec.  
600.310(j)(3)(vi)--``or the Secretary finds that adequate progress is 
not being made''--is appropriate because MSA section 304(e)(7) requires 
a Secretarial review of rebuilding plans at least every two years to 
determine adequate progress. Even if a stock or stock complex has not 
rebuilt by Tmax, a rebuilding plan is still in place, and if 
the Secretary finds that adequate progress is not being made, further 
action may be required to revise the plan.

Emergency Actions and Interim Measures

    Comment 56: Several commenters expressed concern with the proposed 
deletions and revisions in Sec.  600.310(j)(4) addressing emergency 
rules and interim measures that are authorized under MSA sections 
304(e)(6) and 305(c). Some interpreted the proposed deletions as 
limiting NMFS' authority under MSA section 305(c). Others were 
concerned that the limitations imposed on the use of the authority 
under MSA section 304(e)(6) to reduce, but not end, overfishing were 
overly restrictive. Finally, one commenter requested that NMFS' final 
guidance allow for interim measures or emergency rules that are 2, 
rather than 1 year in duration to better align with time lines under 
MSA section 304(e).
    Response: For streamlining purposes, as discussed in the preamble 
to the proposed action, NMFS is deleting text under Sec.  600.310(j)(4) 
that simply repeats language in MSA section 305(c). The deletions have 
no effect on authority set forth in MSA section 305(c). NMFS notes that 
it has a separate policy on emergency rules (see NMFS Policy Directive 
01-101-07, Policy Guidelines on the Use of Emergency Rules, 62 FR 
44421, August 21, 1997). Because the NS1 guidelines include extensive 
guidance on rebuilding plans and the implementation of MSA section 
304(e), NMFS believes it is appropriate to provide guidance in the NS1 
guidelines regarding MSA section 304(e)(6), which authorizes the 
Secretary to implement interim measures to reduce, but not necessarily 
end, overfishing.

[[Page 71881]]

    The limitations imposed by this final action on the Secretary's use 
of MSA section 304(e)(6) were adopted as a means of reconciling the new 
mandate in the 2007 revisions to the MSA to ``end overfishing 
immediately,'' 16 U.S.C. 1854(e)(3)(A), and the provision in MSA 
section 304(e)(6) that allows for some reduced level of overfishing 
while a rebuilding plan is developed. Noting the tension between these 
two provisions, NMFS strove to find a way to give effect to 304(e)(6) 
without undermining Congress's explicit direction in 304(e)(3)(A). 
Because 304(e)(6) grants discretionary authority, NMFS is well within 
its authority to adopt limitations on its application in order to avoid 
undermining the agency's other competing obligations under the statute.
    The final action requires three conditions before the Secretary 
uses section 304(e)(6) authority to allow overfishing to occur. First, 
interim measures taken under section 304(e)(6) must be necessary to 
address an unanticipated and significantly changed understanding of the 
status of the stock or stock complex. This ensures that action is taken 
to address either (1) a new overfished determination or (2) a failure 
of a rebuilding plan that has resulted, not from clear management 
failures (i.e., overfishing), but from an unanticipated change in 
understanding of the stock that has rendered the existing management 
plan inadequate. Second, ending overfishing immediately must be 
expected to result in severe social and/or economic impacts to a 
fishery. This condition ensures that overfishing is only permitted in 
order to prevent serious negative consequences for the fishery. Third, 
interim measures must ensure that the stock or stock complex will 
increase its current biomass through the duration of those measures. In 
the context of the rebuilding provisions as a whole, MSA section 
304(e)(6) suggests that the Secretary's obligation is to take action 
that would permit the Council time to develop measures that will 
rebuild the fishery. 16 U.S.C. 1854(e)(6) (allowing action ``[d]uring 
the development of a [rebuilding plan]''). Inherent in that provision 
is the assumption that the Secretary's actions will not worsen the 
current situation for the fishery, and will be a part of rebuilding the 
fishery. Thus, it was appropriate to require that any actions taken 
under this provision ensure that the fishery will increase its current 
biomass through the duration of the interim measures.
    Finally, NMFS cannot extend the effective length of emergency rules 
and interim measures to 2 years. While MSA section 304(e)(3) provides 2 
years to develop or revise a rebuilding plan, MSA section 305(c) 
specifies that an emergency rule or interim measure shall remain in 
effect for not more than 180 days after publication, and may be 
extended by publication in the Federal Register for one additional 
period of not more than 186 days. 16 U.S.C. 1855(c)(3)(B). Section 
304(e)(6) does not change the duration of actions under section 305(c), 
and in fact, explicitly requires that action taken under 304(e)(6) be 
done ``under section 305(c).'' Id. 1854(e)(6).

Discontinuing Rebuilding Plans

    Comment 57: Many commenters supported the additional provision in 
Sec.  600.310(j)(5) that allows rebuilding plans to be discontinued for 
stocks that are later determined to have not been overfished in the 
year of the original overfished determination (but are not yet above 
Bmsy). Commenters recommended that the discontinuation of 
rebuilding plans that meet the criteria within Sec.  600.310(j)(5) 
should be mandatory and that Management Strategy Evaluations (MSEs) 
should be used to prevent establishment of unnecessary rebuilding 
plans.
    In contrast, some commenters expressed concern that this provision 
would move away from a precautionary approach to rebuilding stocks and 
achieving OY. Specifically, commenters expressed concerns that this 
provision will encourage assumptions in a stock assessment model to be 
changed in order to achieve a desired outcome (e.g., that the stock was 
never overfished and meets the criteria within Sec.  600.310(j)(5)). 
Other commenters opposed the provision because the rebuilding plan 
might still be useful to achieving OY even if the stock is not 
technically overfished, ``especially if the stock is in limbo between 
51 percent of Bmsy and 100 percent of Bmsy.''
    Response: Discontinuing a rebuilding plan based on new information 
is an option a Council may choose to use in order to alleviate negative 
impacts on fishery participants due to reduced landings of a stock (or 
reduced landings of other stocks in mixed-stock fisheries) where new 
information has shown that the stock was not overfished in the year it 
was determined to be overfished, nor in subsequent years. NMFS 
highlights that the provision does not require discontinuing a 
rebuilding plan that meets the criteria within Sec.  600.310(j)(5), and 
NMFS does not believe it is appropriate to mandate discontinuation. As 
discussed in the preamble to the proposed action, a Council may always 
opt to continue following the rebuilding plan to further the 
conservation and management needs of a stock or stock complex that 
remains below Bmsy, because such action is consistent with 
the MSA's objective that fisheries produce MSY on a continuing basis. 
See 80 FR 2796-98, January 20, 2015. Furthermore, NMFS agrees that 
additional decision-making tools that increase the accuracy of stock 
status determinations, such as MSEs, are beneficial. However, NMFS 
believes that, while the implementation of these tools is feasible 
within the current NS1 guidelines, the benefits of using such tools 
should be evaluated on a case-by-case basis and, therefore no further 
guidance on such decision-making tools is necessary.
    Section 600.310(j)(5) allows Councils to be responsive to the best 
scientific information available while managing stocks to meet MSA 
mandates, including NS1's requirement to prevent overfishing while 
achieving OY on a continuing basis. The provision does not interfere or 
conflict with MSA conservation mandates because a Council may only 
discontinue a plan when new information shows the stock was not 
overfished in the year it was originally determined to be overfished, 
nor in subsequent years. NMFS disagrees that management action under 
this provision will encourage assumptions in stock assessment models to 
be changed, because assumptions within a stock assessment model are 
based on the best scientific information available. See Sec.  600.315.
    Comment 58: Commenters expressed concern that the proposed criteria 
in Sec.  600.310(j)(5) only requires a stock to have not been 
overfished in the year the overfished determination was based on. If 
the stock was--in light of new information--overfished not in the year 
of the original overfished determination, but rather a year just prior 
to or just after that year, commenters argued that rebuilding plans 
would still be necessary and discontinuing the rebuilding plan would be 
inappropriate. Commenters suggested changes to the guidelines to 
prevent discontinuation of rebuilding plans for stocks that are shown 
not to have been overfished in the year of the original overfished 
determination, but are shown to have been overfished in subsequent 
years. One commenter also expanded this suggestion to include ``any of 
the five years prior to the original overfished determination.''
    Response: NMFS agrees that new information in support of 
discontinuing a rebuilding plan must demonstrate that the stock is 
currently not below its MSST, was not overfished in the year of

[[Page 71882]]

the original determination, and was not overfished in subsequent years. 
NMFS has revised the guidelines accordingly. See Sec.  600.310 (j)(5) 
of final action. The final action deletes proposed text that states 
that the ``biomass of the stock is not currently below the MSST,'' as 
this consideration is covered in the revised text. If new information 
demonstrates that a stock was not overfished in the year of the 
original overfished determination, but instead overfished in a 
subsequent year, a rebuilding plan is still necessary and the 
rebuilding timeframes should be adjusted accordingly.
    NMFS disagrees with the suggestion that the provision should also 
include ``any of the five years prior to the original overfished 
determination.'' NMFS does not believe it has a scientific basis to 
specify a particular number of years prior to an original overfished 
determination where the discontinuation of a rebuilding plan would be 
inappropriate in all cases and for all Federally-managed stocks and 
stock complexes. Discontinuing a rebuilding plan based on new 
information for a stock that was not overfished in the original year of 
the overfished determination, but was overfished in a subsequent year 
would not have the same repercussions on a stock as stocks that have 
not been overfished in subsequent years. See 600.310(j)(5) of the final 
action. In the latter case, the stock is unlikely to be experiencing an 
overfished trend (i.e., the stock was not overfished in the original 
determination year, nor in any of the subsequent years and is not 
currently overfished). Furthermore, as described in comment 57, the 
discontinuation of a rebuilding plan is an optional tool for managers. 
A Council may always opt to continue following rebuilding plans, in 
light of the conservation and management needs of the stock and FMP 
objectives.

Other Comments on Rebuilding

    Comment 59: NMFS received several comments on rebuilding plans in 
general. One commenter requested that the guidelines explicitly 
encourage Councils to use rebuilding measures beyond catch limits if 
they are appropriate (e.g., gear and effort limits). Other commenters 
expressed concern that the guidelines retain a minimum acceptable 
probability of 50 percent that management measures will rebuild the 
stock within the ``maximum allowable rebuilding time'' and recommended 
that the guidelines increase this threshold. NMFS also received 
requests for additional guidance on how to evaluate and incorporate 
consideration of environmental conditions within rebuilding timeframes.
    Response: Councils must specify ACLs and AMs for all federally 
managed stocks, including stocks within rebuilding plans. 16 U.S.C. 
1853(a)(15). As described in Sec.  600.310(g), Councils may use 
accountability measures other than catch limits at their discretion 
(e.g., gear restrictions, spatial and/or temporal restrictions, bag 
limits). As discussed in the preamble to the final 2009 NS1 Guidelines 
(see 74 FR 3196, January 16, 2009), NMFS stated at that time that the 
50 percent probability is a lower bound and not a default value. Thus, 
if the management measures within a rebuilding plan have a 50 percent 
probability of achieving rebuilding by Ttarget, the 
probability that the management measures will achieve rebuilding by 
Tmax is greater than 50 percent. When selecting management 
measures within a rebuilding plan, Councils should analyze a range of 
alternatives and select from among the measures that have an 
appropriate probability of rebuilding by Ttarget. After 
considering public comment, NMFS does not believe that prescribing a 
specific probability greater than 50 percent is appropriate for several 
reasons. See, e.g., response to comment 86, 74 FR 3200, January 16, 
2009 (addressing similar comments). One reason is that fisheries are 
diverse and the ecological, social, and economic impacts of managing at 
a specific probability will differ depending on the characteristics of 
the fishery. Finally, when specifying a Ttarget that is as 
short as possible, the guidelines clearly state that Councils may take 
the ``interaction of the stock within the marine ecosystem'' into 
account, thus allowing Councils to account for environmental conditions 
within rebuilding timeframes. See Sec.  600.310(j)(3)(i).

Recreational Fisheries

    Comment 60: Commenters encouraged providing flexibility to consider 
the objectives of the recreational and commercial sectors differently. 
Additionally, some commenters requested that if NMFS emphasizes 
recreational objectives in FMPs, that formal, specific, and separate 
definitions are provided for the private angler and for hire sectors as 
those sectors have different objectives. Commenters also cautioned that 
NMFS must control the impacts of recreational fishing and stressed that 
the same scrutiny and accountability must be applied to both the 
commercial and recreational sectors.
    Other commenters raised concerns about the impact of limited data 
availability on management of the recreational sector, noting a 
disconnect between the state of recreational fisheries data collection 
and management. One commenter suggested that NMFS develop a methodology 
for calculating the mortality on all forage fish attributable to the 
recreational sector and develop a better understanding of the role of 
forage fisheries that supply bait for the recreational fishing 
industry.
    Response: NMFS agrees that flexibility should be afforded to 
Councils to take actions that reflect the differences between the 
commercial and recreational sectors and that all sectors should be 
adequately controlled to prevent overfishing. NMFS in Sec.  600.305(b) 
directs Councils to reassess the objectives of the fishery on a regular 
basis so that all impacted sectors--recreational and commercial--can 
work with the Councils to ensure that their sector-specific objectives 
are adequately reflected in the FMPs.
    NMFS does not believe that it is necessary to formally define the 
private angler and for hire sectors as the specific composition, needs, 
and objectives of recreational sectors will differ across regions. NMFS 
does not state in this final action what specific objectives of fishing 
sectors to consider; instead NMFS merely requires that Councils 
consider and incorporate the objectives of sectors that are impacted by 
their FMPs.
    As discussed in the preamble to the proposed action, NMFS did not 
propose recreational-specific provisions in the guidelines. Instead, 
NMFS chose to highlight how various flexibility provisions that were 
proposed could be used to address needs raised by the recreational 
community. These flexibility provisions, such as conditional AMs, are 
universally applicable and not limited to the recreational sector. 
Also, in the 2009 revisions to the guidelines, the use of sector-ACLs 
and corresponding AMs and ACTs were discussed as an option for Councils 
should they decide that fishing sectors require different types of 
management strategies and measures.
    NOAA's Marine Recreational Information Program is continuously 
working to improve how it collects, analyzes, and reports information. 
Recent improvements include the 2013 implementation of the Access Point 
Angler Intercept Survey that removes sources of potential bias from the 
sampling process. More information about data collection improvements 
is located at http://www.st.nmfs.noaa.gov/recreational-fisheries/MRIP/making-improvement. NMFS continues to

[[Page 71883]]

support research on the needs of the recreational fishery industry, 
including the need for enough forage fish to provide for healthy 
recreational fish species, and believes the NS1 guidelines provide 
adequate flexibility to reflect the results of such research as 
appropriate.

National Standard 3

    Comment 61: One commenter suggested that NMFS require that the 
analysis discussed in Sec.  600.320(e) be specified in the documents 
that support the FMP (Environmental Assessments, Regulatory Impact 
Reviews, etc.) rather than in the FMP itself to avoid excessively long 
FMPs. Another commenter felt that the proposal to delete language 
stating that the aforementioned analysis is required to document that 
an FMP ``is as comprehensive as practicable'' (see Sec.  600.320(e) of 
proposed action) weakens the NS3 guidelines and contravenes the 
precautionary approach to management contained in the MSA. The 
commenter suggested keeping the language and replacing ``practicable'' 
with ``possible'' as a way to strengthen it.
    The same commenter, while acknowledging that the purpose of NMFS' 
proposed deletion of the list of factors in Sec.  600.320(d)(1) was for 
streamlining purposes, requested that the ecological factor be retained 
because it is important to manage species that are associated with the 
same ecosystem or dependent on similar habitat.
    Another commenter opposed the proposed change to Sec.  600.320(d) 
that used the phrase ``stocks in the fishery management unit'' because 
the issue of stocks in need of conservation and management is addressed 
with different language in Sec.  600.305 of the proposed action.
    Response: NMFS agrees that FMPs should not be excessively long but 
believes it is important that the analysis required in Sec.  600.320(e) 
be contained in the FMP. This analysis enables both NMFS and the public 
to understand decisions made by a Council to implement NS3. The 
specific requirements of Sec.  600.320(e) are all necessary steps in an 
analysis to determine how to manage an individual stock of fish as a 
unit (e.g., range and distribution of stocks, management activities of 
adjacent states, etc.). Without providing this analysis, NMFS would be 
unable to determine under MSA 304(a) whether the FMP is consistent with 
NS3.
    NMFS does not agree with the need to retain the ``as comprehensive 
as practicable'' language in Sec.  600.320(e). The deletion of this 
language from the guidance does not change the requirements of the 
guidelines; Councils still ``should include'' the information contained 
in Sec.  600.320(e)(1)-(4).
    Although NMFS agrees that ecological similarity is an important 
factor in determining an appropriate management unit, retaining the 
specific language that slightly expands on the ecosystem factor is not 
necessary. The final action retains language that establishes that 
biological, geographic, economic, technical, social, and ecological 
perspectives are all valid considerations when organizing a management 
unit based on the FMP's objectives. See Sec.  600.320(d)(1). NMFS does 
not believe that the deleted text (explaining that ecological 
perspectives could be based on species that are associated in the 
ecosystem or are dependent on a particular habitat) adds much value or 
guidance.
    NMFS agrees that the issue of whether a stock requires conservation 
and management is adequately addressed in Sec.  600.305 and thus, NMFS 
has deleted the last sentence of Sec.  600.320(d) to avoid any 
potential confusion. See Sec.  600.320(d) of final action. As NMFS 
explained in the proposed action, a Council, by determining that a 
stock should be included in a management unit, has determined that said 
stock is in need of conservation and management. See 80 FR 2789, 
January 20, 2015.

National Standard 7

    Comment 62: Some commenters suggested retaining the text that NMFS 
proposed deleting at Sec.  600.340(b). They argued that the text: 
Speaks to the need to weigh the benefits and costs of management; 
acknowledges the reality that management resources are limited and must 
be prioritized; and made it clear that management is not always 
necessary. One commenter felt the deletion of the language required all 
species to be under an FMP even if there is little benefit, high costs, 
and federal management would fail to serve a useful purpose. Other 
commenters felt that the deletion of the section was warranted because 
the relevant factors in the section have been incorporated into the new 
conservation and management framework in Sec.  600.305(c) of the 
proposed action.
    Another commenter recommended that Sec.  600.340(c) of the proposed 
action be revised so that an evaluation of benefits and costs is 
limited to situations where alternative management measures are being 
considered, as opposed to FMPs justifying their own existence.
    Other commenters requested that NMFS add language to the guidelines 
to note the value of engaging with enforcement agencies to solicit 
feedback when considering an action's costs, as directed under NS7.
    Response: NMFS believes that Sec.  600.305(c) of the final action 
(regarding stocks that require conservation and management) eliminates 
the need for the language that was deleted in Sec.  600.340(b). Its 
deletion does not mean that all species, regardless of costs and 
benefits, must be included in an FMP--in fact Sec.  600.305(c)(1) 
explicitly states that ``[n]ot every fishery requires federal 
management.'' MSA section 302(h)(1) only requires a Council to prepare 
an FMP for each fishery under its authority that requires (or in other 
words, is in need of) conservation and management.
    National Standard 7 requires that for those stocks determined to be 
in need of conservation and management and therefore included in an 
FMP, Councils should develop conservation and management measures that, 
where practicable, minimize costs and avoid unnecessary duplication. 16 
U.S.C. 1851(7). The language retained in the final NS7 guidelines, 
which was not changed by this action, explains how to implement this 
requirement through supporting analyses for FMPs. Such analyses should 
demonstrate ``real and substantial'' benefits of fishery regulation, 
taking into account the added research, administrative, and enforcement 
costs, as well as costs to the industry for compliance. See Sec.  
600.340(c). NS7 applies to all stocks determined to be in need of 
Federal management. Thus, the supporting analysis described in Sec.  
600.340(c) is needed for all stocks that require Federal management, 
not just for stocks that are managed using alternative measures.
    NMFS agrees that enforcement costs are an important consideration, 
which is why they are noted for consideration several times in the NS7 
guidelines. Certainly one way to acquire information about these costs 
would be to engage directly with enforcement agencies, but NMFS does 
not believe that the guidelines should mandate such engagement.

Forage Fish and Other Ecosystem Considerations

    Comment 63: NMFS received many comments that the proposed action 
missed an opportunity to take a more transparent and comprehensive 
approach to incorporating EBFM into the NS1 guidelines, especially 
within the context of OY. One commenter

[[Page 71884]]

requested additional guidance on how to incorporate ecological factors 
into OY and ACL specifications.
    Response: NMFS supports the implementation of EBFM. In that vein, 
NMFS proposed several revisions to the NS1 guidelines to facilitate the 
incorporation of EBFM into U.S. federal fisheries management, including 
the concept of using aggregate MSY estimates. EBFM is a developing 
scientific field, and NMFS believes that implementation of EBFM 
management strategies is feasible within the current NS1 guidelines 
framework, especially in light of the revisions NMFS has made. See 80 
FR 2790, January 20, 2015.
    Pursuant to MSA section (3)(33), OY is prescribed on the basis of 
MSY as reduced by ecological, economic, and social (``EES'') factors. 
The NS1 guidelines set forth examples of different considerations for 
each factor, and NMFS believes the examples provide sufficient guidance 
on how to apply these factors when setting OY. See Sec.  
600.310(e)(3)(iii)(B) of the final action. NMFS agrees with the 
commenter that clarification of the relationship between OY and ACL is 
necessary, and for that reason added a new section (Sec.  
600.310(f)(4)(iv) of the final action) to the guidelines, which 
explains that ACLs (or ACTs) can be reduced from the ABC based on OY 
considerations. Section 600.310(f)(4)(iv) of the final action also 
clarifies that EES trade-offs may be evaluated when determining the 
risk policy for an ABC control rule. NMFS does not believe that further 
guidance on this issue is necessary.
    Comment 64: One commenter requested more guidance on how 
``prevailing'' is meant to be interpreted in the context of the 
environmental and ecological conditions that are taken into account 
when specifying a stock's MSY. See Sec.  600.310(e)(1)(i)(A).
    Response: The MSY definition is unchanged from the 2009 NS1 
Guidelines. As explained in the preamble to the final 2009 guidelines, 
NMFS believes that ecological conditions and ecosystem factors should 
be taken into account when specifying MSY. See e.g., response to 
comment 24, 74 FR 3187, January 16, 2009 (addressing similar comments). 
Accordingly, the definition of MSY refers to the ``prevailing 
ecological, environmental conditions,'' which requires Councils to 
consider what the existing ecological and environmental conditions of 
the fishery are at the time that MSY is specified, as those conditions 
may impact the level of catch or yield specified.
    Comment 65: NMFS received many comments requesting additional 
guidance on the management of forage fish. One commenter opposed 
alternative management strategies for forage fish and instead called 
for more robust stock assessments for forage fish so that the existing 
framework for adaptive management can be used. Another commenter 
opposed the discussion of maintaining forage fish biomass higher than 
Bmsy in the section of the guidelines that discuss 
considerations for specifying OY. See Sec.  600.310 (e)(3)(iii)(B)(3) 
of proposed action.
    Response: NMFS agrees that forage fish are important to both 
fisheries and the marine ecosystem. However, as stated in the proposed 
action, NMFS did not propose any new revisions to the NS1 guidelines 
related to forage fish, as the importance of forage fish to fisheries 
and the marine ecosystem was adequately highlighted in the 2009 
revisions to the NS1 guidelines. See 80 FR 2798, January 20, 2015. For 
example, in Sec.  600.310(e)(3)(iii)(A)(3), NMFS notes that maintaining 
adequate forage for all components of the ecosystem is one 
consideration that should be weighed and given serious attention when 
determining the greatest benefit to the Nation, and accordingly, 
determining the EES factors used to obtain OY. Additionally, the 
current guidelines state that, consideration should also be given to 
managing forage stocks for a higher biomass than Bmsy to 
enhance and protect the marine ecosystem when specifying OY. NMFS did 
not change these concepts within the guidelines.
    With regard to the comment requesting that ``alternative management 
strategies'' for forage stocks (i.e., maintaining forage above 
Bmsy) be removed, NMFS notes that the text is only a 
suggested consideration as part of the ecological factors a Council may 
consider when specifying OY. Councils are free to manage forage fish 
species under status quo management strategies, as long as those 
strategies are consistent with the National Standards and other 
applicable provisions of the MSA. Furthermore, NMFS disagrees that the 
discussion of forage fish biomass is misplaced in the discussion of OY 
specifications. Managing forage stocks for higher biomass than 
Bmsy to enhance and protect the marine ecosystem is a valid 
ecological consideration for determining OY.
    Comment 66: Several commenters requested that the guidelines give 
additional guidance on how Councils should use an ecosystem-based 
approach to manage stocks impacted by environmental stressors such as 
climate change, ocean acidification, pollution, etc. Some also provided 
suggestions to address these issues within the guidelines. One specific 
example was a request for more guidance on how Councils should manage a 
fish stock that moves from one Council's jurisdiction to another due to 
the impacts of climate change.
    Response: NMFS believes that the existing NS1 guidelines support an 
adaptive, science-based approach to responding to changes in 
environmental conditions. Furthermore, as stated in Sec.  600.305(b)(2) 
of the final action, NMFS has instructed Councils to manage their fish 
stocks according to the changing needs of the fishery, which would 
encompass necessary management adjustments in response to changing 
environmental conditions.
    Finally, the National Standard 3 guidelines address the case where 
a stock moves between Council jurisdictions. The guidelines state that 
the entities involved should coordinate during the development of an 
FMP and, if a stock's range covers multiple Council areas, the 
preferred approach is to establish one FMP that covers the stock's 
entire range. See Sec.  600.320(c) of the final action.

Other Comments

    Comment 67: One commenter felt that the phrase ``including section 
304(e) of the Magnuson-Stevens Act'' in Sec.  600.310(k) should be 
deleted because it is directing Councils to consider a section of the 
MSA (i.e., MSA section 304(e)--rebuilding overfished fisheries) that is 
expressly excluded from the MSA 304(i) process.
    Response: NMFS did not propose changes to Sec.  600.310(k), as 
adopted in the 2009 NS1 Guidelines, because NMFS believes that it is 
valid and valuable to consider MSA 304(e) when developing 
recommendations to the Secretary of State for international actions 
that will end overfishing. MSA section 304(i) was added in the 2007 
reauthorization of the MSA as part of several significant new 
requirements regarding international fisheries. Consideration of the 
principles that guide domestic rebuilding does not mean that NMFS will 
seek to impose those requirements on fisheries that are not subject to 
MSA 304(e). NMFS believes that the experience gained domestically in 
applying MSA section 304(e) may be valuable when addressing rebuilding 
of stocks that experience international fishing pressure. Thus, the 
guidelines merely direct Councils to consider section 304(e) and other 
relevant MSA provisions. NMFS notes that, for highly migratory species, 
MSA

[[Page 71885]]

section 102(c) provides for promotion of MSA provisions in 
international or regional fisheries organizations, when such 
organizations do not have a process for developing rebuilding plans.
    Comment 68: One commenter suggested that Sec.  600.305 of the 
proposed action include language that identifies differences in 
application of the guidelines to internationally managed stocks and 
that identifies management entities under the umbrella of the term 
``Secretary'' other than Regional Fishery Management Councils. This 
language would help clarify how the NS guidelines are applied. They 
felt that this would help clarify that the Highly Migratory Species 
Management Division does not establish SSCs and that Regional Fishery 
Management Councils must establish SSCs.
    Response: The statute is clear as to what provisions apply to 
internationally- or Secretarially-managed stocks and what provisions 
pertain specifically to the Councils. For example, sections 302 and 
304(a)-(b) address the Council process and Secretarial review of 
Council-adopted FMPs and proposed regulations. Section 304(g) sets 
forth the requirements for Secretarial development of an FMP for 
Atlantic highly migratory species, and section 304(c) provides for 
Secretarial development of FMPs under other circumstances. Section 
304(i) details actions the Secretary is required to take when the 
Secretary determines a fishery is overfished or approaching a condition 
of being overfished due to excessive international fishing pressure. 
NS1 and other MSA requirements apply to all FMPs whether developed by 
the Council or Secretary. Moreover, this final action (which is 
unchanged from the 2009 NS1 Guidelines) explicitly states that the 
Secretary is included within the term ``Council'' when the term is used 
in the context of section 304(c) and (g) of the Magnuson-Stevens Act 
(where applicable). See Sec.  600.305(d)(10).
    Comment 69: Many commenters expressed concern regarding the 
deletion of what they considered ``plain-language guidance'' without 
adequate rationale. They believe the ``plain-language guidance'' 
provides useful guidance to managers and more certainty in the 
complicated area of fishery management with the result being greater 
compliance with the MSA. Several examples were cited. Some commenters 
felt that deletions of the phrase ``based on the best science 
available'' throughout the proposed action creates ambiguity and 
decreases the importance of sound science in decision-making. One 
commenter specifically pointed to the removal of the reference to the 
best scientific information available in Sec.  600.310(e)(1)(v) of the 
proposed action, remarking that NMFS provided no explanation for 
deleting the reference to this statutory requirement when specifying 
MSY. Another commenter did not agree with the deletion in Sec.  
600.310(b)(3) of the proposed action of the phrase ``intended to avoid 
overfishing and achieve sustainable fisheries'' within the description 
of ACLs and AMs. The commenter felt that no reason was provided for 
deleting this language. One commenter said ``the most glaring example'' 
of deleting plain-language guidance is the removal of the last sentence 
of Sec.  600.310(j)(2)(ii) regarding rebuilding plan requirements for 
stocks that are overfished and for which overfishing is occurring. The 
commenter felt this language was important because it ensures 
compliance with the Act and clearly states the mandate in 16 U.S.C. 
1854(e)(3)(A) to end overfishing ``immediately.''
    Response: NMFS agrees with the commenters that providing guidance 
in a clear fashion is important, and eliminating unnecessary repetition 
and streamlining the text of the guidelines facilitates that. NMFS 
proposed to delete the phrase ``based on the best scientific 
information available'' in Sec.  600.310(e)(1)(v) to avoid unnecessary 
repetition, as this is a statutory requirement under NS2. Furthermore, 
the point is made in Sec.  600.305(e)(1) of the final action, which 
establishes that NS2 applies directly to the management measures and 
reference points that are needed to implement NS1. However, this final 
action will retain the text in Sec.  600.310(e)(1)(v) to emphasize the 
importance of using the best scientific information available in 
calculating MSY. Although several commenters noted that the phrase 
``based on the best scientific information available'' was deleted 
``throughout the proposed rule,'' the other deletions occurred in 
sections that were either replaced in new sections or were not 
substantive.
    The deletion in Sec.  600.310(b)(3) of the language ``intended to 
avoid overfishing and achieve sustainable fisheries'' was proposed to 
streamline the text. NS1 requires preventing overfishing and achieving 
OY, so the limits and accountability measures being discussed in Sec.  
600.310(b)(3) logically pertain to avoiding overfishing and achieving 
sustainable fisheries. NMFS does not believe that the deletion will 
lead to any confusion or change the intended meaning of this section.
    The deletion of the last sentence from Sec.  600.310(j)(2)(ii) was 
also proposed to avoid repetition and because it was not pertinent 
given the purpose of this subsection. As the commenter noted, this 
sentence is repeating what 16 U.S.C. 1854(e)(3)(A) already commands--to 
end overfishing immediately and rebuild affected stocks. Furthermore, 
Sec.  600.310(j)(2) addresses the ``Timing of actions'' with regards to 
an overfished fishery. Thus, this subsection is mainly about when the 
Councils must take certain actions. The last sentence that was deleted 
from Sec.  600.310(j)(2)(ii) was not pertinent to the purpose of this 
subsection because it prescribed the actions to take to address an 
overfished fishery. Due to the focus of this subsection on timing and 
because the language to be deleted is stated clearly in the statute, 
this final action deletes the text from the end of Sec.  
600.310(j)(2)(ii), as proposed.
    Comment 70: One commenter expressed concern that the proposed 
change to Sec.  600.310(b)(1)(ii) and the proposed addition of Sec.  
600.305(c)(1) result in a circular logic when the two are read 
together. The commenter asked, if a determination that a stock is 
overfished or undergoing overfishing is relevant to the determination 
that a stock requires conservation and management, how can the 
guidelines limit the application of SDCs to only stocks that have 
already been determined to require conservation and management?
    Response: NMFS does not agree that there is a ``circular logic'' 
concern with the two provisions. First, a stock may be found to be 
overfished or subject to overfishing based on the best scientific 
information available, despite no prior specification of SDCs for the 
stock. See comment 16 (addressing similar comments). In such case, if 
the stock was predominantly caught in Federal waters, it must be 
included in an FMP. See Sec.  600.305(c)(1). Second, as discussed in 
response to comment 5, stocks that require conservation and management 
are not limited under Sec.  600.305(c)(1) to stocks that are 
overfished, subject to overfishing, or likely to become so. Thus, a 
Council may determine that a stock is in need of conservation and 
management, even if it is not overfished or subject to overfishing, 
based on consideration of one or more of the factors under Sec.  
600.305(c)(3). Furthermore, while SDCs are required to monitor the 
status of stocks or stock complexes in an FMP (see Sec.  
600.310(e)(2)(ii)), Councils may monitor other stocks (e.g., EC 
species) for a variety of reasons. Through monitoring, a non-managed 
stock may

[[Page 71886]]

be found to be overfished or subject to overfishing based on the best 
scientific information available, despite no prior specification of 
SDCs for the stock. In such case, a Council would take appropriate 
action per Sec.  600.305(c).
    Comment 71: One commenter felt that the guidance on how to address 
short-term versus long-term environmental changes should be revised 
given the uncertainty surrounding the cause/effect relationship between 
environmental factors and fish stock abundance. This commenter said 
that Sec.  600.310(e)(2)(iii)(B) is too rigid in requiring a re-
specification of SDC, given that the magnitude and interconnectedness 
of the relationship between environmental factors and fish stock 
abundance is so uncertain. Also, the commenter states that the addition 
of ``ecosystem or habitat'' to Sec.  600.310(e)(2)(iii)(B) increases 
the ways that a Council could misinterpret this subsection and justify 
not lowering fishing mortality as long as the effects are long-term, 
regardless of how uncertain the cause/effect relationship. The 
commenter also believes that the language in Sec.  
600.310(e)(2)(iii)(B) is redundant because existing MSY guidance 
already suggests re-estimating SDC when conditions change or there is 
new information.
    Another commenter appreciated the attention given to environmental 
and ecological considerations but believed differentiating between 
short-term and long-term effects will take too long given the time 
sensitive economic realities of a fishery. The commenter suggested 
defining what are ``prevailing ecological, environmental conditions'' 
in the definition of MSY, and how and in what specific time frame those 
conditions are to be accounted.
    Response: Section 600.310(e)(2)(iii) is a longstanding provision of 
the NS1 guidelines. See 74 FR 3178, January 16, 2009 (discussing 
provision in response to comment 30 in the final 2009 NS1 Guidelines). 
The requirements of NS2, that conservation and management measures be 
based on the best scientific information available, apply to the 
establishment of SDC. Therefore, in cases where changing environmental 
conditions alter the long-term reproductive potential of a stock, the 
SDC must be modified. As stocks and stock complexes are routinely 
assessed, long-term trends are updated with current environmental, 
ecological, and biological data to estimate SDCs. NMFS believes Sec.  
600.310(e)(2)(iii) continues to allow for accounting for variability in 
both environmental changes and variation in a stock's biological 
reaction to the environment.
    The guidelines include language requiring a high standard for 
changing SDC that is consistent with NMFS technical guidance (Restrepo 
et al. 1998). NMFS outlines the relationship of SDC to environmental 
and habitat change in both the short and long-term in Sec.  
600.310(e)(2)(iii) of the final action. Total mortality of fish 
includes many factors other than fishing mortality. Short-term 
environmental changes may alter the size of a stock or complex, for 
instance, by episodic recruitment failures, but these events are not 
likely to change the reproductive biology or reproductive potential of 
the stock over the long-term. Thus, in such cases, a Council should not 
change the SDC. Other environmental, ecosystem, or habitat changes, 
such as some changes in ocean conditions, can alter both a stock's 
short-term size, and alter long-term reproductive biology. To respecify 
the SDC, Councils should indicate how such changes impact the stock's 
long-term reproductive potential and must provide an analysis, based on 
the best scientific information available, of how the SDC were chosen 
and how changes to the SDC impact the stock's long-term reproductive 
potential. See Sec.  600.310(e)(2)(ii), (iii)(B), (iv). In all cases, 
fishing mortality must be controlled so that overfishing is prevented.
    The language in Sec.  600.310(e)(2)(iii)(B) is not redundant 
because it clarifies how to treat different kinds of environmental and 
habitat change when considering whether to respecify the SDC. 
Furthermore, NMFS believes distinguishing between short-term and long-
term environmental changes is needed in order to determine whether 
respecifying the SDC is necessary. Finally, while ``prevailing'' in the 
context of Sec.  600.310(e)(1)(i)(A) indicates the existing ecological 
and environmental conditions of the fishery at the time MSY is 
specified, the guidance also clarifies that MSY should be re-estimated 
as required by changes in long-term environmental or ecological 
conditions (Sec.  600.310(e)(1)(v)(A) of the final action). See 
response to comment 64 for further explanation of ``prevailing . . . 
conditions.''
    Comment 72: One commenter asked if the guidelines could recommend a 
multi-year definition of overfished where, if stock biomass falls below 
MSST, a second stock assessment is required within a set number of 
years, and other risk-averse management measures are required in the 
interim. The commenter also stated that the commitment to rebuild 
overfished stocks to 100 percent of Bmsy does not make 
biological sense.
    Response: The NS1 guidelines currently define an overfished stock 
as a stock whose biomass has declined below MSST. See Sec.  
600.310(e)(2)(i)(E). If a stock is determined to be overfished, the MSA 
mandates that a Council prepare an FMP or amendment to end overfishing 
immediately and rebuild the overfished stock to a level consistent with 
producing MSY. 16 U.S.C. 304(e)(3). In light of this, NMFS does not 
believe that a second stock assessment to reaffirm a stock's overfished 
status, as recommended by the commenter, would be appropriate. However, 
NMFS acknowledges that, due to scientific uncertainty in biomass 
estimates of fish stocks, occasionally a stock that is identified as 
overfished is later determined to have never been overfished (NRC, 
2013). NMFS addresses this issue by allowing a Council to discontinue a 
rebuilding plan that meets specific criteria. See Sec.  600.310(j)(5). 
Finally, the long-standing requirement to rebuild overfished stocks to 
100 percent of Bmsy is consistent with the MSA. The MSA 
defines ``overfished'' with reference to ``the capacity of the fishery 
to produce the maximum sustainable yield on a continuing basis,'' 16 
U.S.C. 1802(34), and the NS1 Guidelines have long clarified that 
``overfished'' relates to the biomass of a stock or stock complex. See 
Sec.  600.310(e)(2)(i). Bmsy is defined in the guidelines as 
the long-term average size of a stock measured in terms of spawning 
biomass or other appropriate measure of the stock's reproductive 
potential that would be achieved by fishing at Fmsy. See 
Sec.  600.310(e)(1)(i)(C). Because ``overfished'' is defined in 
reference to MSY, rebuilding to 100 percent of Bmsy--which 
is itself defined with reference to MSY--is appropriate and consistent 
with the MSA.
    Comment 73: A number of commenters included discussions on the 
possible reauthorization of the MSA. Some commenters asked that NMFS 
delay final action on revisions to the NS1 guidelines until after any 
MSA reauthorization since NMFS will have to again revise and revisit 
the guidelines based on potential legislative changes. A number of 
commenters said generally that NMFS' proposed revisions do not preclude 
the need to reauthorize the MSA. Commenters also suggested what they 
would like to see included in the MSA reauthorization and their 
thoughts on current proposals.
    Response: While NMFS appreciates the importance of MSA 
reauthorization and the many valid viewpoints on what should be 
included, this revision to the

[[Page 71887]]

NS1 guidelines is separate from MSA reauthorization. The NS1 guidelines 
do not change the law as these guidelines do not have the force and 
effect of law (16 U.S.C. 1851(b)).
    NMFS does not intend to delay these revisions to the NS1 guidelines 
because it is unclear when any Congressional revisions to the MSA will 
be finalized. It is important that the clarity and adjustments that 
this final action provides is in place as soon as possible to improve 
fisheries management decisions. When MSA reauthorization is concluded 
and if it contains changes pertaining to the provisions in these 
guidelines, NMFS will make any necessary revisions. Comments related to 
what should be included in the MSA reauthorization and thoughts on 
current legislative proposals before Congress are outside the scope of 
these NS1 guidelines.
    Comment 74: NMFS received a number of comments on Sec.  600.310(m), 
a provision commonly known as the ``mixed stock exception.'' NMFS did 
not include any proposed changes to this provision in the notice of 
proposed rulemaking. Most of the comments were advocating for one of 
two positions: (1) Removal of the mixed stock exception because it is 
contrary to the MSA or (2) revision of the mixed stock exception to 
make it a more useful management tool. Several commenters said that 
this exception to overfishing is contrary to the MSA mandate to prevent 
overfishing. Further, since the MSA does not contain any exceptions to 
overfishing, NMFS cannot create one in its guidance. Other commenters 
stated that the exception should provide a similar level of flexibility 
as the proposed phase-in ABC control rules and multi-year overfishing 
determinations. Some commenters asked for an expansion of the exception 
to avoid the ``choke stock'' scenario, whereby a stock in a mixed 
fishery with low population levels leads to closure or a reduction in 
catch of another healthier stock to avoid overfishing of the weaker 
stock. One commenter also proposed returning to NMFS' earlier 
definition that merely required that permitted overfishing would not 
cause any species to require protection under the Endangered Species 
Act (ESA). See 63 FR 24231, May 1, 1998.
    Response: While NMFS has chosen in the NS1 guidelines to emphasize 
the importance of stock-level analyses, NS1 and other MSA provisions 
refer to preventing overfishing in a ``fishery'' (16 U.S.C. 1851(a)(1)) 
and provide for flexibility in terms of the specific mechanisms and 
measures used to achieve this goal. Thus, the 2009 guidelines retained 
the mixed stock exception--with some revisions--to provide Councils 
with needed flexibility for managing fisheries, while ensuring that all 
stocks in the fishery continue to be subject to strong conservation and 
management. NMFS continues to believe that the exception should be 
applied with a great deal of caution, taking into consideration the 
2007 revisions to the MSA and other provisions in the NS1 guidelines 
regarding stock complexes and indicator species. NMFS also believes 
that Councils should work to improve selectivity of fishing gear and 
practices in their mixed stock fisheries so that the need to apply the 
mixed stock exception is reduced in the future.
    For the above reasons, NMFS does not believe the exception should 
be expanded. In addition, NMFS does not agree that flexibility similar 
to the approach taken for phase-in ABC control rules and multi-year 
overfishing determinations is appropriate. Those provisions address a 
different issue than the mixed stock exception, specifically, data 
limitation issues that make it difficult to set overfishing thresholds 
and determine with certainty if overfishing has occurred.
    As discussed in the preamble to the final 2009 guidelines, NMFS 
believes that ESA listing is an inappropriate threshold for application 
of the mixed stock exception and that stocks should be managed so that 
they retain their potential to achieve MSY. See 80 FR 3201, January 16, 
2009. Accordingly, the guidelines as refined in 2009 and retained in 
this final action include a higher threshold that limits F to a level 
that will not lead to the stock becoming overfished in the long term. 
In addition, if any stock, including those under the mixed stock 
exception, were to drop below its MSST, it would be subject to the 
rebuilding requirements of the MSA, which require that the Council take 
action to ``end overfishing immediately in the fishery'' and ``rebuild 
affected stocks of fish.'' 16 U.S.C. 1854(e)(3)(A).
    Comment 75: One commenter suggested that EBFM be used to 
distinguish between ``low-value'' fish species and ``high-value'' fish 
species in order to avoid having to apply the same conservation and 
management standards to both types of species. The commenter stated 
that OY is more likely to be attained if the same conservation and 
management standards do not apply to both types of species.
    Response: Once stocks are determined to require conservation and 
management, and thus preparation of an FMP, the measures developed for 
those stocks under the FMP must comply with applicable MSA requirements 
and standards. Neither the MSA nor the NS1 guidelines sets forth 
different conservation and management standards for low- or high-value 
fish. 16 U.S.C. 1802(5) (defining conservation and management broadly). 
It would be up to the appropriate Council to determine what the 
conservation and management needs and objectives are for the particular 
stocks and to develop measures accordingly, consistent with MSA 
requirements including NS1's mandate to prevent overfishing while 
achieving OY on a continuing basis. 16 U.S.C. 1851(a)(1). NMFS notes 
that Sec.  600.305(c) of the final action does include consideration of 
a stock's economic and ecological value to the fishery (as discussed in 
comments 5 & 7).
    Comment 76: Many commenters asked for clarity regarding the 
relationship of NS1 to the other national standards. The proposed 
changes to the NS1 guidelines remove the language from Sec.  600.310(l) 
that the other national standards ``do not alter the requirement to 
prevent overfishing and rebuild overfished stocks.'' Commenters felt 
that this deletion creates ambiguity about the primacy of conservation 
and cited to NRDC v. Daley, 209 F.3d 747 (D.C. Cir. 2000) and NRDC v. 
NMFS, 421 F.3d 872 (9th Cir. 2005) as supporting the precedence of NS1. 
Several commenters included lengthy proposed language for this 
subsection that emphasizes that conservation supersedes all other 
requirements in the national standards. Some commenters also felt that 
the addition, in several sections, of a reference to ``trade-offs'' 
could undermine the primacy of conservation.
    A number of commenters also suggested moving Sec.  600.310(l) to 
Sec.  600.305 (General section), as that would introduce the national 
standards at the outset rather than at the end of the NS1 section. Some 
commenters also suggested modifying subsection Sec.  600.310(l) to 
state that SSCs ``shall'' rather than ``should'' advise their Councils 
regarding the best scientific information available for fishery 
management decisions. Finally, several commenters also recommended a 
change to Sec.  600.305(b) to clarify that fishery management plans 
resolve conflicting objectives by giving NS1 priority.
    Response: NMFS agrees with moving the text at Sec.  600.310(l) to 
the General Section, and has added the text to the new Sec.  600.305(e) 
in the final action. The ``but do not alter the requirement to prevent 
overfishing and rebuild overfished stocks.'' language was deleted 
because it is already clear from

[[Page 71888]]

the MSA, and case law interpreting its requirements, that the other 
national standards cannot be cited as a reason for failing to prevent 
overfishing or rebuild stocks. However, NMFS is re-inserting clarifying 
text to emphasize that National Standard 1 addresses preventing 
overfishing and achieving optimum yield.
    NMFS disagrees with the need to eliminate references to ``trade-
offs.'' The references to ``trade-offs'' properly reflects the delicate 
balance that Councils must perform in deciding what fishery management 
practices to implement so that there is compliance with all ten 
national standards and other MSA requirements. When considering the 
different means by which the conservation goals of the MSA can be 
achieved, Councils can consider the potential trade-offs between the 
national standards.
    NMFS does not agree with the proposed change from ``should'' to 
``shall'' with respect to SSC advice to Councils. The MSA specifies at 
16 U.S.C. 1852(g)(1)(B) the scientific advice that the SSC ``shall'' 
provide to the Councils, and best scientific information available is 
not explicitly referenced there. See Sec.  600.305(d)(2) (explaining 
that ``shall'' is used in the NS guidelines when quoting statutory 
language directly). There are diverse processes in place throughout the 
various regions, Councils, and SSCs for determining the best scientific 
information available, and the NS2 guidelines are the appropriate place 
to address specific roles of the SSC, as was noted in the response to 
comment 41 in the final 2009 guidelines. See 74 FR 3191, January 16, 
2009. NMFS notes that the NS2 Guidelines provide that the SSC is 
required to base its scientific advice and recommendations on what the 
SSC determines, according to the guidelines in Sec.  600.315(a), is the 
best scientific information available. See Sec.  600.315(c)(1).
    Comment 77: Several commenters asked the agency to revisit the 
guidelines' discussion of the MSA's ACL international exception. Some 
commented that the exception only pertains to the 2010/2011 timing 
requirement for establishing ACL/AM mechanisms. Several commenters 
recommended that the interpretation of what qualifies as an 
international agreement be broadened. One commenter suggested 
broadening the definition to include instances: (1) Where there is an 
informal agreement in a given fishery; and (2) where the fishing 
activities of another country(s) affect the ability of U.S. fishermen 
to achieve rebuilding and conservation, such as in the Atlantic 
mackerel fishery. One commenter asked for an express statement in Sec.  
600.310(h)(1)(ii) clarifying that Sec.  600.310(f) and Sec.  600.310(g) 
do not apply to stocks and stock complexes to which the international 
exception applies. Others said that internationally managed species are 
not excluded from the MSA's ACL requirement and thus the interpretation 
of the international exception at Sec.  600.310(h)(2)(ii) is 
unreasonable and outside NMFS' authority.
    Response: This final action does not change the international 
exception as adopted in the 2009 NS1 Guidelines. The response to 
comment 78 in the final 2009 guidelines (see 74 FR 3198-99, January 16, 
2009) discussed the exception at length, and the reasoning behind the 
agency's response is still valid and reasonable. As explained in that 
response, the text of the exception is vague, thus NMFS considered and 
took public comment on different possible interpretations, including 
specifically looking at the interpretation advanced by some commenters 
that the exception only pertains to the 2010/2011 timing requirements. 
Having considered the text of the exception and other relevant MSA 
provisions, NMFS decided in 2009 not to interpret the exception as 
applying only to the timing of ACL/AM requirements. Based on public 
comments received here, NMFS has identified no new considerations or 
issues that warrant re-examination of the approach it adopted in 2009.
    NMFS also addressed broadening the definition of ``international 
agreement'' in its response to comment 78 in the final 2009 guidelines. 
See 74 FR 3199, January 16, 2009. When considering what qualifies as an 
``international agreement,'' for the purpose of Public Law 109-479 
104(b), NMFS considers if the arrangement or understanding qualifies as 
an ``international agreement'' as understood under MSA section 3(24) 
(defining ``international fishery agreement'') and as generally 
understood in international negotiations. The Case-Zablocki Act, 1 
U.S.C. 112b, and its implementing regulations also provide helpful 
guidance on interpreting the term ``international agreement.'' NMFS 
believes applying the exception to all fisheries where there is any 
kind of informal agreement and where the fishing activities of another 
country affect in any way the ability of U.S. fishermen to achieve 
rebuilding and conservation would be beyond what Congress prescribed.
    NMFS believes there is no need to add language to Sec.  
600.310(h)(1)(ii) clarifying that Sec.  600.310(f) and Sec.  600.310(g) 
do not apply to stocks and stock complexes to which the international 
exception applies because Sec.  600.310(h)(2)(ii) is clear that stocks 
or stock complexes subject to an international agreement are exempt 
from ACL and AM requirements. ACLs are detailed in Sec.  600.310(f) and 
AMs are detailed in Sec.  600.310(g). The title of Sec.  600.310(h)(2) 
is ``Exceptions from ACL and AM requirements'' and includes 
``International fishery agreements'' as one of the exceptions at Sec.  
600.310(h)(2)(ii).
    Comment 78: A number of commenters noted the use of the word 
``practicable'' in several parts of the proposed guidelines. Some 
simply wanted clarification on the word's intended definition. Others 
felt that the use of the word weakens statutory requirements. Another 
commenter felt that identifying the degree of uncertainty ``when 
practicable'' instead of ``when possible'' would reduce the importance 
of the requirement to account for uncertainty. Other commenters felt 
``practicable'' was proper since it provides greater flexibility in 
dealing with the difficult weighing of options that is inherent in 
fisheries management decisions.
    Response: NMFS believes that use of ``practicable'' in the NS1 
guidelines is consistent with the MSA, and is intended to be understood 
based on the basic dictionary definition of that term. Black's Law 
Dictionary, for one, defines ``practicable'' as ``(of a thing) 
reasonably capable of being accomplished; feasible in a particular 
situation.'' See Black's Law Dictionary (10th ed. 2014). NMFS notes 
that ``practicable'' is used several times in the MSA, including in 
sections 302(b)(2)(B)-(C), 303(a)(7) & (11)-(13), and 304(g), and may 
have a different definition or interpretation specific to those 
provisions. NMFS does not believe that use of the term ``practicable'' 
in the NS1 guidelines weakens any statutory requirements. Of the six 
instances where NMFS uses ``practicable'' in the NS1 guidelines, none 
involve mandatory duties under the MSA.
    Comment 79: One commenter felt that the requirement to describe 
data methods was an unnecessary burden. This requirement is in both 
Sec.  600.310(c) and Sec.  600.310(i) of the current regulations and 
remains basically unchanged in the proposed revisions. The commenter 
said that the data collection methods are under the control of NMFS 
rather than the Councils, some of this information is reported via the 
standardized bycatch reporting methodology, and the statute

[[Page 71889]]

does not list describing data collection methods as something that 
needs to be in the FMP.
    Response: NMFS believes, as it also stated in the final 2009 NS1 
Guidelines, that detailing the sources of data for the fishery and how 
they are used to account for all sources of fishing mortality in the 
annual catch limit system will be beneficial. See 74 FR 3199, January 
16, 2009. These sections, which are essentially unchanged in this 
revision, only ask that the Councils provide documentation of the 
fisheries data and data collection methods they are already utilizing 
in either their FMPs or associated public documents such as Stock 
Assessment and Fishery Evaluation (SAFE) Reports.
    Comment 80: One commenter suggested that in proposed Sec.  
600.310(f)(4)(ii), NMFS retain the language clarifying that sector-ACLs 
can be used for set-asides for research and bycatch. The commenter 
asserted that these set-asides are important management tools to 
account for all sources of mortality in the catch-setting process.
    Response: NMFS believes the commenter is referring to the deletion 
of the language in Sec.  600.310(h)(1)(ii) that refers to set-asides 
for research or bycatch as possible examples of sector-ACLs. The 
proposed Sec.  600.310(f)(4)(ii) left unchanged Sec.  600.310(f)(5)(ii) 
of the current regulations except for adding a sentence stating that if 
sector-ACLs are used, then sector-AMs should also be specified. NMFS 
does not believe that Sec.  600.310(f)(4)(ii) limits the Council's 
ability to use a sector-ACL for set-asides for research and bycatch. 
While sector-ACLs can be used to account for set-asides for research 
and bycatch, NMFS does not believe that it is necessary to offer 
prescriptive guidance to Councils as to how best to account for that 
mortality.
    Comment 81: One commenter requested that NMFS explore an 
alternative management strategy under which a ``sweet spot'' for catch 
is identified based on a long-term evaluation of stock biomass 
performance relative to catch, and annual catch limits could be 
exceeded if they fell below the ``sweet spot'' catch level.
    Response: NMFS does not believe the proposed alternative management 
strategy would meet the requirements of the MSA, which requires the 
management of stocks based on annual catch reference points that are 
designed to prevent overfishing. The NS1 guidelines define overfishing 
in terms of fishing mortality and/or total catch, and Councils must 
specify catch limits that prevent overfishing on an annual basis. Thus, 
one ``sweet spot'' level of catch that is not specified on an annual 
basis, but is instead based on a historical relationship between the 
stock's biomass and total catch, would not be considered an appropriate 
reference point that can be used to determine whether overfishing is 
being prevented.
    Comment 82: One commenter stated that the definition for target 
stocks given in Sec.  600.305(d)(11) is not internally consistent 
within the guidelines because economic discards do not provide any sale 
or personal use benefits and thus, a fisherman would not target them. 
Therefore, the commenter suggested that the guidelines define target 
stocks as stocks or stock complexes that fisheries seek to catch for 
sale or personal use, or are `economic discards' as defined under 
Magnuson-Stevens Act section 3(9).
    Response: NMFS believes the definition of target stocks is 
consistent with both the MSA and within the NS1 guidelines. Economic 
discards are defined within the MSA as fish which are the target of a 
fishery, but which are not retained because they are of an undesirable 
size, sex, or quality, or for other economic reasons. 16 U.S.C. 3(9). 
Thus, economic discards are, by definition, fish stocks that are 
targeted by a fishery and are properly characterized within the current 
definition of target stocks in the NS1 guidelines.
    Comment 83: One commenter requested additional clarification 
regarding the use of Sec.  600.310(m) in cases where a stock is found 
to be overfished after overfishing is allowed under this provision.
    Response: As explained in the final 2009 NS1 Guidelines, a 
rebuilding plan is required for any stock (including those under the 
mixed stock exception) that is determined to be overfished. The MSA 
requires that rebuilding plans end overfishing immediately and rebuild 
the affected stock to Bmsy. See 74 FR 3201, January 16, 
2009.
    Comment 84: Several commenters expressed concern that the proposed 
changes to the NS guidelines would require, or at least strongly 
encourage, amendment to FMPs. One commenter requested that the agency 
revise the guidelines to explicitly state that modifications to FMPs 
based on the final action are not required.
    Response: As emphasized in the preamble to the proposed rule, this 
action to revise the NS guidelines will not establish any new, specific 
requirements that would require Councils to revise their FMPs in order 
to comply with the MSA. The purpose of the final action remains the 
same as the proposed action--to facilitate compliance with the 
requirements of the MSA. See 80 FR 2786, January 20, 2015. The final 
action facilitates compliance with the MSA, but does not require 
modifications to FMPs. NMFS does not believe it is necessary to further 
emphasize this point within the NS guidelines themselves.
    Comment 85: Two commenters requested that NMFS undergo an 
additional public engagement process prior to finalizing the proposed 
rule.
    Response: NMFS does not believe that a further public comment or 
engagement process is needed to finalize this action. As detailed in 
Section I of the preamble of this final action, there was a robust 
opportunity for public engagement during the development of this rule, 
which included opportunities for public comment on an ANPR and proposed 
rule and opportunities for engagement at Council and other meetings. 
See also 80 FR 2786, January 15, 2015. NMFS has carefully considered 
the public comments received during the development of this final 
action, making changes as appropriate based on recommendations from 
commenters.

VI. Changes From Proposed Action (80 FR 2786, January 20, 2015)

    In the revisions to Sec.  600.305, paragraph (a)(3) was revised to 
clarify the approval process for FMP and FMP amendments. The last 
sentence of the paragraph was removed and replaced with a sentence 
clarifying that FMPs that are not formulated according to the 
guidelines may not be approved by the Secretary if the FMP or FMP 
amendment is inconsistent with the MSA or other applicable law (16 
U.S.C. 1854(a)(3)).
    Section 600.305(b)(2) was revised to clarify the discussion of 
fishery management objectives.
    Section 600.305(c)(1) was revised to reference the MSA definition 
of ``conservation and management,'' and relevant cross-references. The 
sentence was also revised to clarify that based on this definition, and 
other relevant provisions of the Magnuson-Stevens Act, a Council should 
consider the non-exhaustive list of factors when deciding whether 
additional stocks require conservation and management.
    Paragraph (c)(1)(iii) was revised for clarity by replacing 
``stocks'' with ``stock.'' Paragraph (c)(1)(vi) was also revised for 
clarity by replacing ``and'' with ``or.'' Paragraph (c)(1)(x) was 
revised by removing the phrase ``could be or'' in order to clarify the 
conditions in which Councils should consider existing management 
regimes when

[[Page 71890]]

determining whether stocks require conservation and management. The 
phrase ``policies and standards'' was also removed from paragraph 
(c)(1)(x) and the paragraph was revised to clarify that factor (x) 
allows the following considerations to be considered when determining 
whether a stock requires conservation and management: The extent to 
which the fishery is already adequately managed by states, by state/
Federal programs, or by Federal regulations pursuant to other FMPs or 
international commissions, or by industry-self regulation, consistent 
with the requirements of the Magnuson-Stevens Act and other applicable 
law.
    Paragraph (c)(2) was reorganized into three paragraphs to break out 
and clarify considerations for adding a stock to an FMP versus removing 
a stock from an FMP. Paragraph (c)(2) retains the last sentence of 
proposed paragraph (c)(2) with the addition of a cross-reference and 
the text ``and should'' after the word ``can.''
    Paragraph (c)(3) retains some text from the proposed paragraph 
(c)(2) and gives further explanation on what the proposed paragraph 
meant by no single factor being dispositive or required. New paragraph 
(c)(3) explains that, when considering adding a stock to an FMP, no 
single factor is dispositive or required. One or more of the above 
factors, and any additional considerations that may be relevant to the 
particular stock, may provide the basis for determining that a stock 
requires conservation and management. Based on the factor in paragraph 
(c)(1)(iii) of this section, if the amount and/or type of catch that 
occurs in Federal waters is a significant contributing factor to the 
stock's status, such information would weigh heavily in favor of adding 
a stock to an FMP. However, Councils should consider factor (c)(1)(x) 
before deciding to include a stock in an FMP. In many circumstances, 
adequate management of a fishery by states, state/Federal programs, or 
another Federal FMP would weigh heavily against a Federal FMP action.
    Paragraph (c)(4) retains the bulk of the text from proposed 
paragraph (c)(2), except for sentences broken out into paragraphs 
(c)(2)-(3) as described above. For clarity, paragraph (c)(4) revises 
the phrase ``keeping an existing stock within an FMP'' to ``removing a 
stock from, or continuing to include a stock in, an FMP.'' The second 
sentence in paragraph (c)(4) was revised to provide further explanation 
on how to consider stocks whose status is impacted by catch in Federal 
waters. In addition, the first phrase in the 6th sentence of proposed 
paragraph (c)(2) was simplified to ``Finally,'' in the 6th sentence of 
paragraph (c)(4).
    Paragraph (c)(5) retains the bulk of the text from proposed 
paragraph (c)(3). However, the 1st sentence was edited to clarify the 
circumstances under which a Council may designate stocks as EC species. 
The phrase ``or for other reasons'' at the end of the last sentence of 
the paragraph is also replaced with ``and/or to address other 
ecosystems'' to improve clarity of the paragraph. Other minor 
clarifying revisions were made to the citations within paragraph 
(c)(5).
    Paragraph (c)(7) retains the text from proposed paragraph (c)(5), 
except for two instances where ``a FMP'' was corrected to ``an FMP.''
    Paragraph (d)(3) was revised to clarify the definition of the term 
``SOPP'' and correct ``a FMP'' to ``an FMP.'' Paragraph (d)(11) was 
revised to clarify that target stocks may include, but are not limited 
to, economic and regulatory discards. Furthermore, economic discards 
are, by definition, part of a target stock. On the other hand, 
regulatory discards may or may not be part of a target stock, depending 
on the stock in question. Paragraphs (d)(12-13) were added to Sec.  
600.305 to further clarify how a Council may refer to certain species. 
Paragraph (d)(12) explains that `Non-target species' and `non-target 
stocks' are fish caught incidentally during the pursuit of target 
stocks in a fishery. Non-target stocks may require conservation and 
management and, if so, must be included in a FMP and be identified at 
the stock level. If non-target species are not in need of conservation 
and management, they may be identified in an FMP as ecosystem component 
species. Paragraph (d)(13) explains that Ecosystem Component Species 
(see 50 CFR 600.305(c)(3) and 600.310(d)(1)) are stocks that a Council 
or the Secretary has determined do not require conservation and 
management, but desire to list in a FMP in order to achieve ecosystem 
management objectives.
    Section 600.310(l) of the proposed rule was moved to the 
``General'' section and designated as Sec.  600.305(e) because the 
discussion of the relationship of the National Standards to each other 
is more appropriately discussed in the General section of the NS 
guidelines. The beginning of the paragraph further clarifies the 
relationship between NS1 and the other National Standards by 
reiterating that National Standard 1 addresses preventing overfishing 
and achieving optimum yield. Other minor clarifying revisions were made 
to the citations within paragraphs Sec.  600.305(e)(1)-(2). New Sec.  
600.310(l)(4) was revised to add the phrase ``and other MSA 
provisions'' at the end of first sentence to clarify the scope of 
National Standard 8. Section 600.310(m) was re-designated as paragraph 
(1).
    In the revisions to Sec.  600.310, paragraph (b)(1)(ii) was revised 
to replace ``that require, or are in need of, conservation and 
management'' with ``in an FMP'' to simplify the text. To clarify the 
relationship between the SSC and the peer review process, the 3rd 
sentence of paragraph (b)(2)(v)(C) now explains that, for Regional 
Fishery Management Councils, the peer review process is not a 
substitute for the SSC and both the SSC and peer review process should 
work in conjunction with each other. Paragraph (b)(4) was also revised 
to remove ``or overfished'' to restore the original language used in 
this sentence, prior to the introduction of the proposed depleted 
definition.
    Paragraph (d)(1) was revised to replace ``and'' with ``or'' after 
the term ``other reference points'' in the last sentence for 
clarification purposes. Other minor updates were made to the citations 
within paragraph (d)(1).
    Paragraph (e)(1)(iv) was revised to remove the term ``common'' text 
from the description of aggregate MSY. This text is unnecessary and may 
cause confusion.
    The following phrase was added after ``annually,'' in paragraph 
(e)(1)(v)(A): ``but it must be based on the best scientific information 
available (see Sec.  600.315)'' for clarification.
    To clarify that MFMT and all reference points that stem from it are 
required to be specified on an annual basis, the words ``on an annual 
basis,'' were restored to the first sentence of paragraph (e)(2)(i)(C).
    Paragraph (e)(2)(ii)(A) was revised to clarify the relationship 
between paragraphs (e)(2)(ii)(A)(1)-(3) and (e)(2)(ii). For clarity and 
consistency, the terms ``describe'' and ``used'' in the first and 
second sentences were revised as ``specify'' and ``specified.'' 
Subparagraphs (e)(2)(ii)(A)(1) and (2) were revised to delete the 
phrase ``or exceeding a multi-year catch reference point'' to prevent 
any confusion between a multi-year catch reference point and the multi-
year approach in subparagraph (e)(2)(ii)(A)(3).
    Subparagraph (e)(2)(ii)(A)(3) was revised to address confusion 
reflected in public comments regarding when a multi-year approach to 
determine overfishing status can be used and whether the provision may 
impact reference points for future catch levels. Subparagraph 
(e)(2)(ii)(A)(3) clarifies that subparagraphs (e)(2)(ii)(A) (1) and

[[Page 71891]]

(2) establish methods to determine overfishing status based on a period 
of 1 year. As stated in paragraph (e)(2)(ii)(A), a Council should 
specify, within the FMP, which of these methods will be used to 
determine overfishing status. However, in certain circumstances, a 
Council may utilize a multi-year approach to determine overfishing 
status based on a period of no more than 3 years. The Council should 
identify in its FMP or FMP amendment, the circumstances when a multi-
year approach is appropriate and will be used. Such circumstances may 
include situations where there is high uncertainty in the estimate of F 
in the most recent year, cases where stock abundance fluctuations are 
high and assessments are not timely enough to forecast such changes, or 
other circumstances where the most recent catch or F data does not 
reflect the overall status of the stock. The multi-year approach to 
determine overfishing status may not be used to specify future annual 
catch limits at levels that do not prevent overfishing. In addition, 
the subparagraph deletes text that refers to a comprehensive analysis 
based on the best scientific information available.
    Paragraph (e)(2)(i)(F), which addressed ``depleted'' stocks, was 
deleted in response to public comment and given the need for further 
consideration of this issue. A minor grammatical edit was also made in 
the 6th sentence of paragraph (e)(2)(ii). Finally, the word ``may'' was 
added after ``Long-term environmental changes'' in paragraph 
(e)(2)(iii) to clarify the nature of the expected relationship between 
long-term environmental changes and a stock or stock complex.
    Paragraph (e)(2)(ii)(B) was revised to remove the phrase ``social 
and/or economic impacts on the fishery,'' from the list of factors that 
could inform MSST to clarify that MSST is a biological reference point 
and is based on the level of biomass below which the capacity of the 
stock to produce MSY on a continuing basis is jeopardized.
    Paragraph (e)(3)(ii) was revised by removing the last sentence and 
explaining that if conservation and management measures cannot meet the 
dual requirements of NS1 (preventing overfishing, while achieving, on a 
continuing basis, OY), Councils should either modify the measures or 
reexamine their OY specifications to ensure that the dual NS1 
requirements can be met. To clarify how summaries of OY specifications 
should be included in FMPs, paragraph (e)(3)(iii) was revised by 
removing the words: ``which documents how the OY will produce the 
greatest benefits to the nation and prevent overfishing'' from the 1st 
sentence and combining the 2nd and 3rd sentences to explain that the OY 
assessment should include: a summary of information utilized in making 
such specification, an explanation of how the OY specification will 
produce the greatest benefits to the nation and prevent overfishing and 
rebuild overfished stocks; and a consideration of the economic, social, 
and ecological factors relevant to the management of a particular 
stock, stock complex, or fishery. Finally, paragraph (e)(3)(iv)(D) was 
revised to clarify the relationship between internationally-managed 
stocks and specifying OY.
    Paragraph (f)(2)(i) was revised to clarify the level of analysis 
required when establishing ABC control rules by explaining that the 
Council must provide a comprehensive analysis and articulate within 
their FMP when the control rule can and cannot be used and how the 
control rule prevents overfishing.
    Paragraph (f)(2)(i) was revised to further explain how to properly 
establish ABC control rules. The 1st sentence of paragraph (f)(2)(i) 
explains that Councils must establish an ABC control rule that accounts 
for scientific uncertainty in the OFL and for the Council's risk 
policy, and that is based on a comprehensive analysis that shows how 
the control rule prevents overfishing. Paragraph (f)(2)(ii) was revised 
by removing ``directed'' from the phrase: ``and may establish a stock 
abundance level below which directed fishing would not be allowed.'' 
Finally, the words ``in which case,'' ``provide a comprehensive 
analysis,'' and ``the control rule'' were removed from the last 
sentence of the paragraph so the last two sentences of the paragraph.
    Paragraph (f)(2)(ii)(A) was revised to clarify that phase-in ABC 
control rules must be designed to prevent overfishing every year. In 
addition, the end of the paragraph explains that the Councils should 
evaluate the appropriateness of phase-in provisions for stocks that are 
overfished and/or rebuilding, as the overriding goal for such stocks is 
to rebuild them in as short a time as possible.
    Paragraph (f)(2)(ii)(B) was revised to clarify the proper use of 
carry-over ABC control rules. To explain the meaning of the term ``ACL 
underage,'' the following words were added after ``unused portion of'' 
in the first sentence of paragraph (f)(2)(ii)(B): ``an ACL (i.e., ACL 
underage) . . .'' The word ``must'' was also added before ``consider 
scientific uncertainty'' in the second sentence of the paragraph. To 
clarify that revising the ABC may not be necessary if the ACL was set 
below the ABC in the first place, the last sentence of the paragraph 
was removed and the third sentence of the paragraph now explains that 
carry-over provisions could also allow an ACL to be adjusted upwards as 
long as the revised ACL does not exceed the specified ABC. The end of 
the paragraph further clarifies the proper use of carry-over ABC 
control rules by explaining that, when considering whether to use a 
carry-over provision, Councils should consider the likely reason for 
the ACL underage. ACL underages that result from management uncertainty 
(i.e., premature fishery closure) may be appropriate circumstances for 
considering a carry-over provision. ACL underages that occur as a 
result of poor or unknown stock status may not be appropriate to 
consider in a carry-over provision. In addition, the Councils should 
evaluate the appropriateness of carry-over provisions for stocks that 
are overfished and/or rebuilding, as the overriding goal for such 
stocks is to rebuild them in as short a time as possible.
    Paragraph (f)(3) was revised to clarify the meaning of the term 
``implementation of the ABC control rule.'' The second sentence of the 
paragraph explains that Councils and their SSCs should develop a 
process by which the SSC can access the best scientific information 
available when implementing the ABC control rule (i.e., specifying the 
ABC). Paragraph (f)(3) was also revised to clarify that, in accordance 
with MSA section 302(g)(1)(B), specification of the ABC is the 
responsibility of the SSC.
    To clarify that Councils may use varying terms to describe ACTs, 
the words ``or functional equivalent,'' were added to the third 
sentence of paragraph (f)(4)(i) that explains that, if an annual catch 
target (ACT), or functional equivalent, is not used, management 
uncertainty should be accounted for in the ACL. The words ``or the 
functional equivalent,'' were also added to paragraph (g)(4) so it 
reads: ``ACTs, or the functional equivalent, . . .'' for consistency.
    Paragraph (f)(4)(iv) was revised to clarify how ABC is set in 
relation to OY. The words ``and is designed to prevent overfishing'' 
were removed from the 2nd sentence of paragraph (f)(4)(iv). Minor 
related revisions were also made to the 4th and 5th sentences of 
paragraph (f)(4(iv).
    Minor revisions were made to the 5th sentence in paragraph (g)(3) 
to make the language consistent with the MSA.
    A minor correction was made to paragraph (h)(1)(i) by replacing 
``has''

[[Page 71892]]

with ``have'' after the phrase ``for species that.'' Minor updates were 
made to the citations within paragraphs (h)(1)(i)-(ii). In paragraph 
(h)(2), clarifications regarding the spawning potential of Pacific 
salmon were addressed by revising the example within the second 
sentence to ``e.g., Pacific salmon, where the spawning potential for a 
stock is spread over a multi-year period.'' The word ``to'' was also 
added before the words ``manage to reference points based on MSY or MSY 
proxies.''
    Paragraph (i)(2) was revised to replace ``i.e.,'' with ``e.g.,'' 
for clarification purposes.
    Paragraph (j)(1) was revised to clarify that, consistent with MSA 
section 304(e), the Secretary will immediately notify in writing a 
Regional Fishery Management Council whenever the Secretary determines 
that one of the circumstances listed in subparagraphs (j)(1)(i)-(iv) is 
occurring.
    Paragraph (j)(3)(i)(B)(3) was revised to provide additional 
guidance on how to determine which calculation method to use when 
calculating Tmax. The paragraph now explains that, in 
situations where Tmin exceeds 10 years, Tmax 
establishes a maximum time for rebuilding that is linked to the biology 
of the stock. When selecting a method for determining Tmax, 
a Council, in consultation with its SSC, should consider the relevant 
biological data and scientific uncertainty of that data, and must 
provide a rationale for its decision based on the best scientific 
information available. One of the methods listed in subparagraphs 
(j)(3)(i)(B)(2)(ii) and (iii) may be appropriate, for example, if given 
data availability and the life history characteristics of the stock, 
there is high uncertainty in the estimate of generation time, or if 
generation time does not accurately reflect the productivity of the 
stock.
    Minor edits were made to the 1st sentence of paragraph (j)(3)(i)(C) 
to align the paragraph more closely with the MSA.
    Paragraph (j)(3)(iv) was revised so that the word ``are'' was 
replaced with ``is'' before ``exceeded'' and ``and'' was replaced with 
``nor'' before ``caused the overage'' in the 3rd sentence of paragraph 
(j)(3)(iv). In addition, paragraph (j)(3)(iv) now explains that, for 
Secretarially-managed fisheries, the Secretary would take immediate 
action necessary to achieve adequate progress toward rebuilding and 
ending overfishing.
    Paragraph (j)(3)(vi) was revised to explain that the one of the 
circumstances under which the fishing mortality rate for a stock or 
stock complex that has not rebuilt by Tmax can change is 
when the fishing mortality rate is changed as a result of the Secretary 
finding that adequate progress is not being made.
    Paragraphs (j)(5)(i)-(ii) were removed. Paragraph (j)(5) clarifies 
the criteria for discontinuing rebuilding plans by explaining that a 
Council may discontinue a rebuilding plan for a stock or stock complex 
before it reaches Bmsy if the Secretary determines that the 
stock was not overfished in the year that the overfished determination 
(see MSA section 304(e)(3)) was based on and has never been overfished 
in any subsequent year, including the current year.
    Paragraph (j)(6) was deleted because the definition for depleted 
stocks was removed from the final action.
    Paragraph (l)(2) was revised to replace ``characteristic'' with 
``characteristics'' for clarification purposes.
    In the revisions to Sec.  600.320, the last sentences of paragraphs 
(b)-(d) were removed to clarify, streamline, and reduce duplication 
between Sec.  600.320 and Sec.  600.305(c).

VII. References Cited

    A complete list of all the references cited in this final action is 
available upon request from Stephanie Hunt (see FOR FURTHER INFORMATION 
CONTACT).

VIII. Classification

    Pursuant to section 301(b) of the MSA, the NMFS Assistant 
Administrator has determined that this final rule is consistent with 
the Magnuson-Stevens Act and other applicable law.
    This rule has been determined to be significant for purposes of 
Executive Order 12866 because it may raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in E.O. 12866.
    The provision of the Administration Procedure Act (5 U.S.C. 553) 
requiring a delay in effective date is inapplicable because this rule 
is a statement of policy. 5 U.S.C. 553(d)(2).
    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 rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. The factual basis for the certification was 
published in the proposed action . See 80 FR 2799, January 20, 2015). 
In summary, this action makes technical changes to the general section 
of the National Standard Guidelines and the guidelines for National 
Standards 1, 3, and 7 and does not require the Councils or the 
Secretary to make changes to their FMPs. Furthermore, because the 
guidelines do not directly regulate any entities, the proposed changes 
will not directly alter the behavior of any entities operating in 
federally managed fisheries, and thus no direct economic effects on 
small entities (as described within the proposed action) are expected 
to result from this action. Therefore, no small entities will be 
directly affected by this action and a reduction in profits for a 
substantial number of small entities is not expected. See 80 FR 2800, 
January 20, 2015. No public comments were received regarding this 
certification.
    NMFS notes that on January 26, 2016, the Small Business 
Administration (SBA) issued a final rule revising the small business 
size standards for several industries, effective February 26, 2016 (81 
FR 4469). The rule increased the size standard for Seafood Product 
Preparation and Packaging (NAICS code 311710) from 500 to 750 
employees. Furthermore, on December 29, 2015, NMFS issued a final rule 
establishing a small business size standard of $11 million in annual 
gross receipts for all businesses primarily engaged in the commercial 
fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) 
compliance purposes only. See 80 FR 81194, December 29, 2015. The $11 
million standard became effective on July 1, 2016, and is to be used in 
place of the U.S. Small Business Administration's (SBA) current 
standards of $20.5 million, $5.5 million, and $7.5 million for the 
finfish (NAICS 114111), shellfish (NAICS 114112), and other marine 
fishing (NAICS 114119) sectors of the U.S. commercial fishing industry 
in all NMFS rules subject to the RFA after July 1, 2016. See 80 FR 
81194, December 29, 2015. Pursuant to the Regulatory Flexibility Act, 
and prior to July 1, 2016, a certification was developed for this 
regulatory action using SBA's size standards prior to February 26, 
2016. NMFS has reviewed the analyses prepared for this regulatory 
action in light of the new size standards discussed above and has 
determined that the new size standards do not affect analyses prepared 
for this regulatory action. Further, because the guidelines do not 
directly regulate any entities, any new size standard will not directly 
alter the behavior of any entities operating in federally managed 
fisheries, and thus no direct economic effects on commercial harvesting 
businesses, marinas, seafood dealers/wholesalers, or seafood processors 
are expected to result from this action. Thus, no small entities will 
be directly affected by this action and a

[[Page 71893]]

reduction in profits for a substantial number of small entities is not 
expected.
    Therefore, the Chief Counsel for Regulation of the Department of 
Commerce hereby reaffirms that the rule will not have a significant 
economic impact on a substantial number of small entities. Thus, NMFS 
has determined that the certification established during the proposed 
rule stage is still appropriate for this final action and a final 
regulatory flexibility analysis has not been prepared for this final 
action.

List of Subjects in 50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

    Dated: October 5, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 600 is 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 and16 U.S.C. 1801 et seq.

0
2. Section 600.305 is revised to read as follows:


Sec.  600.305  General.

    (a) Purpose. (1) This subpart establishes guidelines, based on the 
national standards, to assist in the development and review of FMPs, 
amendments, and regulations prepared by the Councils and the Secretary.
    (2) In developing FMPs, the Councils have the initial authority to 
ascertain factual circumstances, to establish management objectives, 
and to propose management measures that will achieve the objectives. 
The Secretary will determine whether the proposed management objectives 
and measures are consistent with the national standards, other 
provisions of the Magnuson-Stevens Act (MSA), and other applicable law. 
The Secretary has an obligation under section 301(b) of the MSA to 
inform the Councils of the Secretary's interpretation of the national 
standards so that they will have an understanding of the basis on which 
FMPs will be reviewed.
    (3) The national standards are statutory principles that must be 
followed in any FMP. The guidelines summarize Secretarial 
interpretations that have been, and will be, applied under these 
principles. The guidelines are intended as aids to decision-making; 
FMPs formulated according to the guidelines will have a better chance 
for expeditious Secretarial review, approval, and implementation. FMPs 
that are not formulated according to the guidelines may not be approved 
by the Secretary if the FMP or FMP amendment is inconsistent with the 
MSA or other applicable law (16 U.S.C. 1854(a)(3)).
    (b) Fishery management objectives. (1) Each FMP, whether prepared 
by a Council or by the Secretary, should identify what the FMP is 
designed to accomplish (i.e., the management objectives to be attained 
in regulating the fishery under consideration). In establishing 
objectives, Councils balance biological constraints with human needs, 
reconcile present and future costs and benefits, and integrate the 
diversity of public and private interests. If objectives are in 
conflict, priorities should be established among them.
    (2) To reflect the changing needs of the fishery over time, 
Councils should reassess the FMP's management objectives on a regular 
basis.
    (3) How objectives are defined is important to the management 
process. Objectives should address the problems of a particular 
fishery. The objectives should be clearly stated, practicably 
attainable, framed in terms of definable events and measurable 
benefits, and based upon a comprehensive rather than a fragmentary 
approach to the problems addressed. An FMP should make a clear 
distinction between objectives and the management measures chosen to 
achieve them. The objectives of each FMP provide the context within 
which the Secretary will judge the consistency of an FMP's conservation 
and management measures with the national standards.
    (c) Stocks that require conservation and management. (1) Magnuson-
Stevens Act section 302(h)(1) requires a Council to prepare an FMP for 
each fishery under its authority that requires (or in other words, is 
in need of) conservation and management. 16 U.S.C. 1852(h)(1). Not 
every fishery requires Federal management. Any stocks that are 
predominately caught in Federal waters and are overfished or subject to 
overfishing, or likely to become overfished or subject to overfishing, 
are considered to require conservation and management. Beyond such 
stocks, Councils may determine that additional stocks require 
``conservation and management.'' (See Magnuson-Stevens Act definition 
at 16 U.S.C. 1802(5)). Based on this definition of conservation and 
management, and other relevant provisions of the Magnuson-Stevens Act, 
a Council should consider the following non-exhaustive list of factors 
when deciding whether additional stocks require conservation and 
management:
    (i) The stock is an important component of the marine environment.
    (ii) The stock is caught by the fishery.
    (iii) Whether an FMP can improve or maintain the condition of the 
stock.
    (iv) The stock is a target of a fishery.
    (v) The stock is important to commercial, recreational, or 
subsistence users.
    (vi) The fishery is important to the Nation or to the regional 
economy.
    (vii) The need to resolve competing interests and conflicts among 
user groups and whether an FMP can further that resolution.
    (viii) The economic condition of a fishery and whether an FMP can 
produce more efficient utilization.
    (ix) The needs of a developing fishery, and whether an FMP can 
foster orderly growth.
    (x) The extent to which the fishery is already adequately managed 
by states, by state/Federal programs, or by Federal regulations 
pursuant to other FMPs or international commissions, or by industry 
self-regulation, consistent with the requirements of the Magnuson-
Stevens Act and other applicable law.
    (2) In evaluating factors in paragraphs (c)(1)(i) through (x) of 
this section, a Council should consider the specific circumstances of a 
fishery, based on the best scientific information available, to 
determine whether there are biological, economic, social and/or 
operational concerns that can and should be addressed by Federal 
management.
    (3) When considering adding a stock to an FMP, no single factor is 
dispositive or required. One or more of the above factors, and any 
additional considerations that may be relevant to the particular stock, 
may provide the basis for determining that a stock requires 
conservation and management. Based on the factor in paragraph 
(c)(1)(iii) of this section, if the amount and/or type of catch that 
occurs in Federal waters is a significant contributing factor to the 
stock's status, such information would weigh heavily in favor of adding 
a stock to an FMP. However, Councils should consider the factor in 
paragraph (c)(1)(x) of this section before deciding to include a stock 
in an FMP. In many circumstances, adequate management of a fishery by 
states, state/Federal

[[Page 71894]]

programs, or another Federal FMP would weigh heavily against a Federal 
FMP action. See, e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3).
    (4) When considering removing a stock from, or continuing to 
include a stock in, an FMP, Councils should prepare a thorough analysis 
of factors in paragraphs (c)(1)(i) through (x) of this section, and any 
additional considerations that may be relevant to the particular stock. 
As mentioned in paragraph (c)(3) of this section, if the amount and/or 
type of catch that occurs in Federal waters is a significant 
contributing factor to the stock's status, such information would weigh 
heavily in favor of continuing to include a stock in an FMP. Councils 
should consider weighting the factors as follows. Factors in paragraphs 
(c)(1)(i) through (iii) of this section should be considered first, as 
they address maintaining a fishery resource and the marine environment. 
See 16 U.S.C. 1802(5)(A). These factors weigh in favor of continuing to 
include a stock in an FMP. Councils should next consider factors in 
paragraphs (c)(1)(iv) through (ix) of this section, which set forth key 
economic, social, and other reasons contained within the MSA for an FMP 
action. See 16 U.S.C. 1802(5)(B). Finally, a Council should consider 
the factor in paragraph (c)(1)(x) of this section before deciding to 
remove a stock from, or continue to include a stock in, an FMP. In many 
circumstances, adequate management of a fishery by states, state/
Federal programs, or another Federal FMP would weigh in favor of 
removing a stock from an FMP. See e.g., 16 U.S.C. 1851(a)(7) and 
1856(a)(3).
    (5) Councils may choose to identify stocks within their FMPs as 
ecosystem component (EC) species (see Sec.  Sec.  600.305(d)(13) and 
600.310(d)(1)) if a Council determines that the stocks do not require 
conservation and management based on the considerations and factors in 
paragraph (c)(1) of this section. EC species may be identified at the 
species or stock level, and may be grouped into complexes. Consistent 
with National Standard 9, MSA section 303(b)(12), and other applicable 
MSA sections, management measures can be adopted in order to, for 
example, collect data on the EC species, minimize bycatch or bycatch 
mortality of EC species, protect the associated role of EC species in 
the ecosystem, and/or to address other ecosystem issues.
    (6) A stock or stock complex may be identified in more than one 
FMP. In this situation, the relevant Councils should choose which FMP 
will be the primary FMP in which reference points for the stock or 
stock complex will be established. In other FMPs, the stock or stock 
complex may be identified as ``other managed stocks'' and management 
measures that are consistent with the objectives of the primary FMP can 
be established.
    (7) Councils should periodically review their FMPs and the best 
scientific information available and determine if the stocks are 
appropriately identified. As appropriate, stocks should be reclassified 
within an FMP, added to or removed from an existing FMP, or added to a 
new FMP, through an FMP amendment that documents the rationale for the 
decision.
    (d) Word usage within the National Standard Guidelines. The word 
usage refers to all regulations in this subpart.
    (1) Must is used, instead of ``shall'', to denote an obligation to 
act; it is used primarily when referring to requirements of the 
Magnuson-Stevens Act, the logical extension thereof, or of other 
applicable law.
    (2) Shall is used only when quoting statutory language directly, to 
avoid confusion with the future tense.
    (3) Should is used to indicate that an action or consideration is 
strongly recommended to fulfill the Secretary's interpretation of the 
Magnuson-Stevens Act, and is a factor reviewers will look for in 
evaluating a statement of organization, practices, and procedures 
(SOPP) or an FMP.
    (4) May is used in a permissive sense.
    (5) Will is used descriptively, as distinguished from denoting an 
obligation to act or the future tense.
    (6) Could is used when giving examples, in a hypothetical, 
permissive sense.
    (7) Can is used to mean ``is able to,'' as distinguished from 
``may.''
    (8) Examples are given by way of illustration and further 
explanation. They are not inclusive lists; they do not limit options.
    (9) Analysis, as a paragraph heading, signals more detailed 
guidance as to the type of discussion and examination an FMP should 
contain to demonstrate compliance with the standard in question.
    (10) Council includes the Secretary, as applicable, when preparing 
FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens 
Act.
    (11) Target stocks are stocks or stock complexes that fishers seek 
to catch for sale or personal use, including such fish that are 
discarded for economic or regulatory reasons as defined under Magnuson-
Stevens Act section 3(9) and 3(38).
    (12) Non-target species and non-target stocks are fish caught 
incidentally during the pursuit of target stocks in a fishery. Non-
target stocks may require conservation and management and, if so, must 
be included in a FMP and be identified at the stock or stock complex 
level. If non-target species are not in need of conservation and 
management, they may be identified in an FMP as ecosystem component 
species.
    (13) Ecosystem Component Species (see Sec. Sec.  600.305(c)(5) and 
600.310(d)(1)) are stocks that a Council or the Secretary has 
determined do not require conservation and management, but desire to 
list in an FMP in order to achieve ecosystem management objectives.
    (e) Relationship of National Standard 1 to other national 
standards--General. National Standard 1 addresses preventing 
overfishing and achieving optimum yield. See 16 U.S.C. 1851(a)(1) and 
50 CFR 600.310. National Standards 2 through 10 provide further 
requirements for conservation and management measures in FMPs. See 16 
U.S.C. 1851(a)(2) through (10) and 50 CFR 600.315 through 600.355. 
Below is a description of how some of the other National Standards 
intersect with National Standard 1.
    (1) National Standard 2 (see Sec.  600.315). Management measures 
and reference points to implement NS1 must be based on the best 
scientific information available. When data are insufficient to 
estimate reference points directly, Councils should develop reasonable 
proxies to the extent possible (also see Sec.  600.310(e)(1)(v)(B)). In 
cases where scientific data are severely limited, effort should also be 
directed to identifying and gathering the needed data. SSCs should 
advise their Councils regarding the best scientific information 
available for fishery management decisions.
    (2) National Standard 3 (see Sec.  600.320). Reference points 
should generally be specified in terms of the level of stock 
aggregation for which the best scientific information is available 
(also see Sec.  600.310(e)(1)(ii) and (iii)).
    (3) National Standard 6 (see Sec.  600.335). Councils must build 
into the reference points and control rules appropriate consideration 
of risk, taking into account uncertainties in estimating harvest, stock 
conditions, life history parameters, or the effects of environmental 
factors.
    (4) National Standard 8 (see Sec.  600.345). National Standard 8 
addresses economic and social considerations and minimizing to the 
extent practicable adverse economic impacts on fishing communities 
within the context of preventing overfishing and rebuilding overfished 
stocks as required under National Standard 1 and

[[Page 71895]]

other MSA provisions. Calculation of OY as reduced from maximum 
sustainable yield (MSY) also includes consideration of economic and 
social factors, but the combination of management measures chosen to 
achieve the OY must principally be designed to prevent overfishing and 
rebuild overfished stocks.
    (5) National Standard 9 (see Sec.  600.350). Evaluation of stock 
status with respect to reference points must take into account 
mortality caused by bycatch. In addition, the estimation of catch 
should include the mortality of fish that are discarded.

0
3. Section 600.310 is revised to read as follows:


Sec.  600.310  National Standard 1--Optimum Yield.

    (a) Standard 1. Conservation and management measures shall prevent 
overfishing while achieving, on a continuing basis, the optimum yield 
(OY) from each fishery for the U.S. fishing industry.
    (b) General. (1) The guidelines set forth in this section describe 
fishery management approaches to meet the objectives of National 
Standard 1 (NS1), and include guidance on:
    (i) Specifying maximum sustainable yield (MSY) and OY;
    (ii) Specifying status determination criteria (SDC) so that 
overfishing and overfished determinations can be made for stocks and 
stock complexes in an FMP;
    (iii) Preventing overfishing and achieving OY, incorporation of 
scientific and management uncertainty in control rules, and adaptive 
management using annual catch limits (ACL) and measures to ensure 
accountability (i.e., accountability measures (AMs)); and
    (iv) Rebuilding stocks and stock complexes.
    (2) Overview of Magnuson-Stevens Act concepts and provisions 
related to NS1--(i) MSY. The Magnuson-Stevens Act establishes MSY as 
the basis for fishery management and requires that: The fishing 
mortality rate must not jeopardize the capacity of a stock or stock 
complex to produce MSY; the abundance of an overfished stock or stock 
complex must be rebuilt to a level that is capable of producing MSY; 
and OY must not exceed MSY.
    (ii) OY. The determination of OY is a decisional mechanism for 
resolving the Magnuson-Stevens Act's conservation and management 
objectives, achieving an FMP's objectives, and balancing the various 
interests that comprise the greatest overall benefits to the Nation. OY 
is based on MSY as reduced under paragraphs (e)(3)(iii)(A) and (B) of 
this section. The most important limitation on the specification of OY 
is that the choice of OY and the conservation and management measures 
proposed to achieve it must prevent overfishing.
    (iii) ACLs and AMs. Any FMP shall establish a mechanism for 
specifying ACLs in the FMP (including a multiyear plan), implementing 
regulations, or annual specifications, at a level such that overfishing 
does not occur in the fishery, including measures to ensure 
accountability (Magnuson-Stevens Act section 303(a)(15)).
    (iv) Reference points. SDC, MSY, OY, acceptable biological catch 
(ABC), and ACL, which are described further in paragraphs (e) and (f) 
of this section, are collectively referred to as ``reference points.''
    (v) Scientific advice. The Magnuson-Stevens Act has requirements 
regarding scientific and statistical committees (SSC) of the Regional 
Fishery Management Councils, including but not limited to, the 
following provisions (paragraphs (b)(2)(v)(A) through (D) of this 
section). See the National Standard 2 guidelines for further guidance 
on SSCs and the peer review process (Sec.  600.315).
    (A) Each Regional Fishery Management Council shall establish an SSC 
as described in section 302(g)(1)(A) of the Magnuson-Stevens Act.
    (B) Each SSC shall provide its Regional Fishery Management Council 
recommendations for ABC as well as other scientific advice, as 
described in Magnuson-Stevens Act section 302(g)(1)(B).
    (C) The Secretary and each Regional Fishery Management Council may 
establish a peer review process for that Council for scientific 
information used to advise the Council about the conservation and 
management of a fishery (see Magnuson-Stevens Act section 
302(g)(1)(E)). If a peer review process is established, it should 
investigate the technical merits of stock assessments and other 
scientific information to be used by the SSC or agency or international 
scientists, as appropriate. For Regional Fishery Management Councils, 
the peer review process is not a substitute for the SSC and both the 
SSC and peer review process should work in conjunction with each other. 
For the Secretary, which does not have an SSC, the peer review process 
should provide the scientific information necessary.
    (D) Each Council shall develop ACLs for each of its managed 
fisheries that may not exceed the ``fishing level recommendations'' of 
its SSC or peer review process (Magnuson-Stevens Act section 
302(h)(6)). The SSC recommendation that is the most relevant to ACLs is 
ABC, as both ACL and ABC are levels of annual catch.
    (3) Approach for setting limits and accountability measures, 
including targets, for consistency with NS1. When specifying limits and 
accountability measures, Councils must take an approach that considers 
uncertainty in scientific information and management control of the 
fishery. These guidelines describe how the Councils could address 
uncertainty such that there is a low risk that limits are exceeded as 
described in paragraphs (f)(2) and (g)(4) of this section.
    (4) Vulnerability. A stock's vulnerability to fishing pressure is a 
combination of its productivity, which depends upon its life history 
characteristics, and its susceptibility to the fishery. Productivity 
refers to the capacity of the stock to produce MSY and to recover if 
the population is depleted, and susceptibility is the potential for the 
stock to be impacted by the fishery, which includes direct captures, as 
well as indirect impacts of the fishery (e.g., loss of habitat 
quality).
    (c) Summary of items to include in FMPs related to NS1. This 
section provides a summary of items that Councils must include in their 
FMPs and FMP amendments in order to address ACL, AM, and other aspects 
of the NS1 guidelines. Councils must describe fisheries data for the 
stocks and stock complexes in their FMPs, or associated public 
documents such as Stock Assessment and Fishery Evaluation (SAFE) 
Reports. For all stocks and stock complexes that require conservation 
and management (see Sec.  600.305(c)), the Councils must evaluate and 
describe the following items in their FMPs and amend the FMPs, if 
necessary, to align their management objectives to end or prevent 
overfishing and to achieve OY:
    (1) MSY and SDC (see paragraphs (e)(1) and (2) of this section).
    (2) OY at the stock, stock complex, or fishery level and provide 
the OY specification analysis (see paragraph (e)(3) of this section).
    (3) ABC control rule (see paragraph (f)(2) of this section).
    (4) Mechanisms for specifying ACLs (see paragraph (f)(4) of this 
section).
    (5) AMs (see paragraph (g) of this section).
    (6) Stocks and stock complexes that have statutory exceptions from 
ACLs and AMs (see paragraph (h)(1) of this section) or which fall under 
limited circumstances which require different approaches to meet the 
Magnuson-

[[Page 71896]]

Stevens Act requirements (see paragraph (h)(2) of this section).
    (d) Stocks and stock complexes--
    (1) Introduction. As described in Sec.  600.305(c), Councils should 
identify in their FMPs the stocks that require conservation and 
management. Such stocks must have ACLs, other reference points, and 
accountability measures. Other stocks that are identified in an FMP 
(i.e., EC species or stocks that the fishery interacts with but are 
managed primarily under another FMP, see Sec.  600.305(c)(5) through 
(6)) do not require ACLs, other reference points, or accountability 
measures.
    (2) Stock complex. Stocks that require conservation and management 
can be grouped into stock complexes. A ``stock complex'' is a tool to 
manage a group of stocks within a FMP.
    (i) At the time a stock complex is established, the FMP should 
provide, to the extent practicable, a full and explicit description of 
the proportional composition of each stock in the stock complex. Stocks 
may be grouped into complexes for various reasons, including where 
stocks in a multispecies fishery cannot be targeted independent of one 
another; where there is insufficient data to measure a stock's status 
relative to SDC; or when it is not feasible for fishermen to 
distinguish individual stocks among their catch. Where practicable, the 
group of stocks should have a similar geographic distribution, life 
history characteristics, and vulnerabilities to fishing pressure such 
that the impact of management actions on the stocks is similar. The 
vulnerability of individual stocks should be considered when 
determining if a particular stock complex should be established or 
reorganized, or if a particular stock should be included in a complex.
    (ii) Indicator stocks. (A) An indicator stock is a stock with 
measurable and objective SDC that can be used to help manage and 
evaluate more poorly known stocks that are in a stock complex.
    (B) Where practicable, stock complexes should include one or more 
indicator stocks (each of which has SDC and ACLs). Otherwise, stock 
complexes may be comprised of: Several stocks without an indicator 
stock (with SDC and an ACL for the complex as a whole), or one or more 
indicator stocks (each of which has SDC and management objectives) with 
an ACL for the complex as a whole (this situation might be applicable 
to some salmon species). Councils should review the available 
quantitative or qualitative information (e.g., catch trends, changes in 
vulnerability, fish health indices, etc.) of stocks within a complex on 
a regular basis to determine if they are being sustainably managed.
    (C) If an indicator stock is used to evaluate the status of a 
complex, it should be representative of the typical vulnerability of 
stocks within the complex. If the stocks within a stock complex have a 
wide range of vulnerability, they should be reorganized into different 
stock complexes that have similar vulnerabilities; otherwise the 
indicator stock should be chosen to represent the more vulnerable 
stocks within the complex. In instances where an indicator stock is 
less vulnerable than other members of the complex, management measures 
should be more conservative so that the more vulnerable members of the 
complex are not at risk from the fishery.
    (D) More than one indicator stock can be selected to provide more 
information about the status of the complex.
    (E) When indicator stocks are used, the stock complex's MSY could 
be listed as ``unknown,'' while noting that the complex is managed on 
the basis of one or more indicator stocks that do have known stock-
specific MSYs, or suitable proxies, as described in paragraph (e)(1)(v) 
of this section.
    (e) Features of MSY, SDC, and OY-- (1) MSY. Each FMP must include 
an estimate of MSY for the stocks and stock complexes that require 
conservation and management. MSY may also be specified for the fishery 
as a whole.
    (i) Definitions. (A) MSY is the largest long-term average catch or 
yield that can be taken from a stock or stock complex under prevailing 
ecological, environmental conditions and fishery technological 
characteristics (e.g., gear selectivity), and the distribution of catch 
among fleets.
    (B) MSY fishing mortality rate (Fmsy) is the fishing 
mortality rate that, if applied over the long term, would result in 
MSY.
    (C) MSY stock size (Bmsy) means the long-term average 
size of the stock or stock complex, measured in terms of spawning 
biomass or other appropriate measure of the stock's reproductive 
potential that would be achieved by fishing at Fmsy.
    (ii) MSY for stocks. MSY should be estimated for each stock based 
on the best scientific information available (see Sec.  600.315).
    (iii) MSY for stock complexes. When stock complexes are used, MSY 
should be estimated for one or more indicator stocks or for the complex 
as a whole (see paragraph (d)(2)(ii)).
    (iv) Methods of estimating MSY for an aggregate group of stocks. 
Estimating MSY for an aggregate group of stocks (including stock 
complexes and the fishery as a whole) can be done using models that 
account for multi-species interactions, composite properties for a 
group of similar species, biomass (energy) flow and production 
patterns, or other relevant factors (see paragraph (e)(3)(iv)(C) of 
this section).
    (v) Specifying MSY. (A) Because MSY is a long-term average, it need 
not be estimated annually, but it must be based on the best scientific 
information available (see Sec.  600.315), and should be re-estimated 
as required by changes in long-term environmental or ecological 
conditions, fishery technological characteristics, or new scientific 
information.
    (B) When data are insufficient to estimate MSY directly, Councils 
should adopt other measures of reproductive potential that can serve as 
reasonable proxies for MSY, Fmsy, and Bmsy.
    (C) The MSY for a stock or stock complex is influenced by its 
interactions with other stocks in its ecosystem and these interactions 
may shift as multiple stocks in an ecosystem are fished. Ecological and 
environmental information should be taken into account, to the extent 
practicable, when assessing stocks and specifying MSY. Ecological and 
environmental information that is not directly accounted for in the 
specification of MSY can be among the ecological factors considered 
when setting OY below MSY.
    (D) As MSY values are estimates or are based on proxies, they will 
have some level of uncertainty associated with them. The degree of 
uncertainty in the estimates should be identified, when practicable, 
through the stock assessment process and peer review (see Sec.  
600.335), and should be taken into account when specifying the ABC 
Control rule (see paragraph (f)(2) of this section).
    (2) Status determination criteria--(i) Definitions. (A) Status 
determination criteria (SDC) mean the measurable and objective factors, 
MFMT, OFL, and MSST, or their proxies, that are used to determine if 
overfishing has occurred, or if the stock or stock complex is 
overfished. Magnuson-Stevens Act (section 3(34)) defines both 
``overfishing'' and ``overfished'' to mean a rate or level of fishing 
mortality that jeopardizes the capacity of a fishery to produce the MSY 
on a continuing basis. To avoid confusion, this section clarifies that 
``overfished'' relates to biomass of a stock or stock complex, and 
``overfishing'' pertains to a rate or level of removal of fish from a 
stock or stock complex.

[[Page 71897]]

    (B) Overfishing occurs whenever a stock or stock complex is 
subjected to a level of fishing mortality or total catch that 
jeopardizes the capacity of a stock or stock complex to produce MSY on 
a continuing basis.
    (C) Maximum fishing mortality threshold (MFMT) means the level of 
fishing mortalityi.e F), on an annual basis, above which overfishing is 
occurring. The MFMT or reasonable proxy may be expressed either as a 
single number (a fishing mortality rate or F value), or as a function 
of spawning biomass or other measure of reproductive potential.
    (D) Overfishing limit (OFL) means the annual amount of catch that 
corresponds to the estimate of MFMT applied to a stock or stock 
complex's abundance and is expressed in terms of numbers or weight of 
fish.
    (E) Overfished. A stock or stock complex is considered 
``overfished'' when its biomass has declined below MSST.
    (F) Minimum stock size threshold (MSST) means the level of biomass 
below which the capacity of the stock or stock complex to produce MSY 
on a continuing basis has been jeopardized.
    (G) Approaching an overfished condition. A stock or stock complex 
is approaching an overfished condition when it is projected that there 
is more than a 50 percent chance that the biomass of the stock or stock 
complex will decline below the MSST within two years.
    (ii) Specification of SDC and overfishing and overfished 
determinations. Each FMP must describe how objective and measurable 
SDCs will be specified, as described in paragraphs (e)(2)(ii)(A) and 
(B) of this section. To be measurable and objective, SDC must be 
expressed in a way that enables the Council to monitor the status of 
each stock or stock complex in the FMP. Applying the SDC set forth in 
the FMP, the Secretary determines if overfishing is occurring and 
whether the stock or stock complex is overfished (Magnuson-Stevens Act 
section 304(e)). SDCs are often based on fishing rates or biomass 
levels associated with MSY or MSY based proxies. When data are not 
available to specify SDCs based on MSY or MSY proxies, alternative 
types of SDCs that promote sustainability of the stock or stock complex 
can be used. For example, SDC could be based on recent average catch, 
fish densities derived from visual census surveys, length/weight 
frequencies, or other methods. In specifying SDC, a Council must 
provide an analysis of how the SDC were chosen and how they relate to 
reproductive potential of stocks of fish within the fishery. If 
alternative types of SDCs are used, the Council should explain how the 
approach will promote sustainability of the stock or stock complex on a 
long term basis. A Council should consider a process that allows SDCs 
to be quickly updated to reflect the best scientific information 
available. In the case of internationally-managed stocks, the Council 
may decide to use the SDCs defined by the relevant international body. 
In this instance, the SDCs should allow the Council to monitor the 
status of a stock or stock complex, recognizing that the SDCs may not 
be defined in such a way that a Council could monitor the MFMT, OFL, or 
MSST as would be done with a domestically managed stock or stock 
complex.
    (A) SDC to Determine Overfishing Status. Each FMP must specify a 
method used to determine the overfishing status for each stock or stock 
complex. For domestically-managed stocks or stock complexes, one of the 
following methods (described in (e)(2)(ii)(A)(1) and (2) of this 
section) should be specified. If the necessary data to use one of the 
methods described in either subparagraph (e)(2)(ii)(A)(1) or (2) is not 
available, a Council may use an alternate type of overfishing SDC as 
described in paragraph (e)(2)(ii).
    (1) Fishing Mortality Rate Exceeds MFMT. Exceeding the MFMT for a 
period of 1 year constitutes overfishing.
    (2) Catch Exceeds the OFL. Exceeding the annual OFL for 1 year 
constitutes overfishing.
    (3) Multi-Year Approach to Determine Overfishing Status. 
Subparagraphs (e)(2)(ii)(A) (1) and (2) establish methods to determine 
overfishing status based on a period of 1 year. As stated in paragraph 
(e)(2)(ii)(A), a Council should specify, within the FMP, which of these 
methods will be used to determine overfishing status. However, in 
certain circumstances, a Council may utilize a multi-year approach to 
determine overfishing status based on a period of no more than 3 years. 
The Council should identify in its FMP or FMP amendment, circumstances 
when the multi-year approach is appropriate and will be used. Such 
circumstances may include situations where there is high uncertainty in 
the estimate of F in the most recent year, cases where stock abundance 
fluctuations are high and assessments are not timely enough to forecast 
such changes, or other circumstances where the most recent catch or F 
data does not reflect the overall status of the stock. The multi-year 
approach to determine overfishing status may not be used to specify 
future annual catch limits at levels that do not prevent overfishing.
    (B) SDC to determine overfished status. The MSST or reasonable 
proxy must be expressed in terms of spawning biomass or other measure 
of reproductive potential. MSST should be between \1/2\ Bmsy 
and Bmsy, and could be informed by the life history of the 
stock, the natural fluctuations in biomass associated with fishing at 
MFMT over the long-term, the requirements of internationally-managed 
stocks, or other considerations.
    (C) Where practicable, all sources of mortality including that 
resulting from bycatch, scientific research catch, and all fishing 
activities should be accounted for in the evaluation of stock status 
with respect to reference points.
    (iii) Relationship of SDC to environmental and habitat change. Some 
short-term environmental changes can alter the size of a stock or stock 
complex without affecting its long-term reproductive potential. Long-
term environmental changes may affect both the short-term size of the 
stock or stock complex and the long-term reproductive potential of the 
stock or stock complex.
    (A) If environmental changes cause a stock or stock complex to fall 
below its MSST without affecting its long-term reproductive potential, 
fishing mortality must be constrained sufficiently to allow rebuilding 
within an acceptable time frame (see also paragraph (j)(3)(i) of this 
section). SDC should not be respecified.
    (B) If environmental, ecosystem, or habitat changes affect the 
long-term reproductive potential of the stock or stock complex, one or 
more components of the SDC must be respecified. Once SDC have been 
respecified, fishing mortality may or may not have to be reduced, 
depending on the status of the stock or stock complex with respect to 
the new criteria.
    (C) If manmade environmental changes are partially responsible for 
a stock or stock complex's biomass being below MSST, in addition to 
controlling fishing mortality, Councils should recommend restoration of 
habitat and other ameliorative programs, to the extent possible (see 
also the guidelines issued pursuant to section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat).
    (iv) Secretarial approval of SDC. Secretarial approval or 
disapproval of proposed SDC will be based on consideration of whether 
the proposal:
    (A) Is based on the best scientific information available;
    (B) Contains the elements described in paragraph (e)(2)(ii) of this 
section;

[[Page 71898]]

    (C) Provides a basis for objective measurement of the status of the 
stock or stock complex against the criteria; and
    (D) Is operationally feasible.
    (3) Optimum yield. For stocks that require conservation and 
management, OY may be established at the stock, stock complex, or 
fishery level.
    (i) Definitions-- (A) Optimum yield (OY). Magnuson-Stevens Act 
section (3)(33) defines ``optimum,'' with respect to the yield from a 
fishery, as the amount of fish that will provide the greatest overall 
benefit to the Nation, particularly with respect to food production and 
recreational opportunities and taking into account the protection of 
marine ecosystems; that is prescribed on the basis of the MSY from the 
fishery, as reduced by any relevant economic, social, or ecological 
factor; and, in the case of an overfished fishery, that provides for 
rebuilding to a level consistent with producing the MSY in such 
fishery.
    (B) In NS1, use of the phrase ``achieving, on a continuing basis, 
the OY from each fishery'' means: producing, from each stock, stock 
complex, or fishery, an amount of catch that is, on average, equal to 
the Council's specified OY; prevents overfishing; maintains the long 
term average biomass near or above Bmsy; and rebuilds 
overfished stocks and stock complexes consistent with timing and other 
requirements of section 304(e)(4) of the Magnuson-Stevens Act and 
paragraph (j) of this section.
    (ii) General. OY is a long-term average amount of desired yield 
from a stock, stock complex, or fishery. An FMP must contain 
conservation and management measures, including ACLs and AMs, to 
achieve OY on a continuing basis, and provisions for information 
collection that are designed to determine the degree to which OY is 
achieved. These measures should allow for practical and effective 
implementation and enforcement of the management regime. If these 
measures cannot meet the dual requirements of NS1 (preventing 
overfishing while achieving, on a continuing basis, OY), Councils 
should either modify the measures or reexamine their OY specifications 
to ensure that the dual NS1 requirements can be met.
    (iii) Assessing OY. An FMP must contain an assessment and 
specification of OY (MSA section 303(a)(3)). The assessment should 
include: a summary of information utilized in making such 
specification; an explanation of how the OY specification will produce 
the greatest benefits to the nation and prevent overfishing and rebuild 
overfished stocks; and a consideration of the economic, social, and 
ecological factors relevant to the management of a particular stock, 
stock complex, or fishery. Consistent with Magnuson-Stevens Act section 
302(h)(5), the assessment and specification of OY should be reviewed on 
a continuing basis, so that it is responsive to changing circumstances 
in the fishery.
    (A) Determining the greatest benefit to the Nation. In determining 
the greatest benefit to the Nation, the values that should be weighed 
and receive serious attention when considering the economic, social, or 
ecological factors used in reducing MSY, or its proxy, to obtain OY 
are:
    (1) The benefits of food production derived from providing seafood 
to consumers; maintaining an economically viable fishery together with 
its attendant contributions to the national, regional, and local 
economies; and utilizing the capacity of the Nation's fishery resources 
to meet nutritional needs.
    (2) The benefits of recreational opportunities reflect the quality 
of both the recreational fishing experience and non-consumptive fishery 
uses such as ecotourism, fish watching, and recreational diving. 
Benefits also include the contribution of recreational fishing to the 
national, regional, and local economies and food supplies.
    (3) The benefits of protection afforded to marine ecosystems are 
those resulting from maintaining viable populations (including those of 
unexploited species), maintaining adequate forage for all components of 
the ecosystem, maintaining evolutionary and ecological processes (e.g., 
disturbance regimes, hydrological processes, nutrient cycles), 
maintaining productive habitat, maintaining the evolutionary potential 
of species and ecosystems, and accommodating human use.
    (B) Economic, Ecological, and Social Factors. Councils should 
consider the management objectives of their FMPs and their management 
framework to determine the relevant social, economic, and ecological 
factors used to determine OY. There will be inherent trade-offs when 
determining the objectives of the fishery. The following is a non-
exhaustive list of potential considerations for social, economic, and 
ecological factors.
    (1) Social factors. Examples are enjoyment gained from recreational 
fishing, avoidance of gear conflicts and resulting disputes, 
preservation of a way of life for fishermen and their families, and 
dependence of local communities on a fishery (e.g., involvement in 
fisheries and ability to adapt to change). Consideration may be given 
to fishery-related indicators (e.g., number of fishery permits, number 
of commercial fishing vessels, number of party and charter trips, 
landings, ex-vessel revenues etc.) and non-fishery related indicators 
(e.g., unemployment rates, percent of population below the poverty 
level, population density, etc.), and preference for a particular type 
of fishery (e.g., size of the fishing fleet, type of vessels in the 
fleet, permissible gear types). Other factors that may be considered 
include the effects that past harvest levels have had on fishing 
communities, the cultural place of subsistence fishing, obligations 
under tribal treaties, proportions of affected minority and low-income 
groups, and worldwide nutritional needs.
    (2) Economic factors. Examples are prudent consideration of the 
risk of overharvesting when a stock's size or reproductive potential is 
uncertain (see Sec.  600.335(c)(2)(i)), satisfaction of consumer and 
recreational needs, and encouragement of domestic and export markets 
for U.S. harvested fish. Other factors that may be considered include: 
The value of fisheries, the level of capitalization, the decrease in 
cost per unit of catch afforded by an increase in stock size, the 
attendant increase in catch per unit of effort, alternate employment 
opportunities, and economic contribution to fishing communities, 
coastal areas, affected states, and the nation.
    (3) Ecological factors. Examples include impacts on EC species, 
forage fish stocks, other fisheries, predator-prey or competitive 
interactions, marine mammals, threatened or endangered species, and 
birds. Species interactions that have not been explicitly taken into 
account when calculating MSY should be considered as relevant factors 
for setting OY below MSY. In addition, consideration should be given to 
managing forage stocks for higher biomass than Bmsy to 
enhance and protect the marine ecosystem. Also important are ecological 
or environmental conditions that stress marine organisms or their 
habitat, such as natural and manmade changes in wetlands or nursery 
grounds, and effects of pollutants on habitat and stocks.
    (iv) Specifying OY. If the estimates of MFMT and current biomass 
are known with a high level of certainty and management controls can 
accurately limit catch, then OY could be set very close to MSY, 
assuming no other reductions are necessary for social, economic, or 
ecological factors. To the degree that such MSY estimates and 
management controls are lacking or

[[Page 71899]]

unavailable, OY should be set farther from MSY.
    (A) The OY can be expressed in terms of numbers or weight of fish, 
and either as a single value or a range. When it is not possible to 
specify OY quantitatively, OY may be described qualitatively.
    (B) The determination of OY is based on MSY, directly or through 
proxy. However, even where sufficient scientific data as to the 
biological characteristics of the stock do not exist, or where the 
period of exploitation or investigation has not been long enough for 
adequate understanding of stock dynamics, or where frequent large-scale 
fluctuations in stock size diminish the meaningfulness of the MSY 
concept, OY must still be established based on the best scientific 
information available.
    (C) An OY established at a fishery level may not exceed the sum of 
the MSY values for each of the stocks or stocks complexes within the 
fishery. Aggregate level MSY estimates could be used as a basis for 
specifying OY for the fishery (see paragraph (e)(1)(iv) of this 
section). When aggregate level MSY is estimated, single stock MSY 
estimates can also be used to inform single stock management. For 
example, OY could be specified for a fishery, while other reference 
points are specified for individual stocks in order to prevent 
overfishing on each stock within the fishery.
    (D) For internationally-managed stocks, fishing levels that are 
agreed upon by the U.S. at the international level are considered to be 
consistent with OY requirements under the MSA and these guidelines.
    (v) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens 
Act provides that fishing by foreign nations is limited to that portion 
of the OY that will not be harvested by vessels of the United States. 
The FMP must include an assessment to address the following, as 
required by section 303(a)(4) of the Magnuson-Stevens Act:
    (A) The OY specification is the basis for establishing any total 
allowable level of foreign fishing (TALFF).
    (B) Part of the OY may be held as a reserve to allow for domestic 
annual harvest (DAH). If an OY reserve is established, an adequate 
mechanism should be included in the FMP to permit timely release of the 
reserve to domestic or foreign fishermen, if necessary.
    (C) DAH. Councils and/or the Secretary must consider the capacity 
of, and the extent to which, U.S. vessels will harvest the OY on an 
annual basis. Estimating the amount that U.S. fishing vessels will 
actually harvest is required to determine the surplus.
    (D) Domestic annual processing (DAP). Each FMP must assess the 
capacity of U.S. processors. It must also assess the amount of DAP, 
which is the sum of two estimates: The estimated amount of U.S. harvest 
that domestic processors will process, which may be based on historical 
performance or on surveys of the expressed intention of manufacturers 
to process, supported by evidence of contracts, plant expansion, or 
other relevant information; and the estimated amount of fish that will 
be harvested by domestic vessels, but not processed (e.g., marketed as 
fresh whole fish, used for private consumption, or used for bait).
    (E) Joint venture processing (JVP). When DAH exceeds DAP, the 
surplus is available for JVP.
    (f) Acceptable biological catch and annual catch limits. (1) 
Definitions.-- (i) Catch is the total quantity of fish, measured in 
weight or numbers of fish, taken in commercial, recreational, 
subsistence, tribal, and other fisheries. Catch includes fish that are 
retained for any purpose, as well as mortality of fish that are 
discarded.
    (ii) Acceptable biological catch (ABC) is a level of a stock or 
stock complex's annual catch, which is based on an ABC control rule 
that accounts for the scientific uncertainty in the estimate of OFL, 
any other scientific uncertainty, and the Council's risk policy.
    (iii) Annual catch limit (ACL) is a limit on the total annual catch 
of a stock or stock complex, which cannot exceed the ABC, that serves 
as the basis for invoking AMs. An ACL may be divided into sector-ACLs 
(see paragraph (f)(4) of this section).
    (iv) Control rule is a policy for establishing a limit or target 
catch level that is based on the best scientific information available 
and is established by the Council in consultation with its SSC.
    (v) Management uncertainty refers to uncertainty in the ability of 
managers to constrain catch so that the ACL is not exceeded, and the 
uncertainty in quantifying the true catch amounts (i.e., estimation 
errors). The sources of management uncertainty could include: Late 
catch reporting; misreporting; underreporting of catches; lack of 
sufficient inseason management, including inseason closure authority; 
or other factors.
    (vi) Scientific uncertainty refers to uncertainty in the 
information about a stock and its reference points. Sources of 
scientific uncertainty could include: Uncertainty in stock assessment 
results; uncertainty in the estimates of MFMT, MSST, the biomass of the 
stock, and OFL; time lags in updating assessments; the degree of 
retrospective revision of assessment results; uncertainty in 
projections; uncertainties due to the choice of assessment model; 
longer-term uncertainties due to potential ecosystem and environmental 
effects; or other factors.
    (2) ABC control rule.-- (i) For stocks and stock complexes required 
to have an ABC, each Council must establish an ABC control rule that 
accounts for scientific uncertainty in the OFL and for the Council's 
risk policy, and that is based on a comprehensive analysis that shows 
how the control rule prevents overfishing. The Council's risk policy 
could be based on an acceptable probability (at least 50 percent) that 
catch equal to the stock's ABC will not result in overfishing, but 
other appropriate methods can be used. When determining the risk 
policy, Councils could consider the economic, social, and ecological 
trade-offs between being more or less risk averse. The Council's choice 
of a risk policy cannot result in an ABC that exceeds the OFL. The 
process of establishing an ABC control rule may involve science 
advisors or the peer review process established under Magnuson-Stevens 
Act section 302(g)(1)(E).
    (ii) The ABC control rule must articulate how ABC will be set 
compared to the OFL based on the scientific knowledge about the stock 
or stock complex and taking into account scientific uncertainty (see 
paragraph (f)(1)(vi) of this section). The ABC control rule should 
consider reducing fishing mortality as stock size declines below 
Bmsy and as scientific uncertainty increases, and may 
establish a stock abundance level below which fishing would not be 
allowed. When scientific uncertainty cannot be directly calculated, 
such as when proxies are used, then a proxy for the uncertainty should 
be established based on the best scientific information, including 
comparison to other stocks. The control rule may be used in a tiered 
approach to address different levels of scientific uncertainty. 
Councils can develop ABC control rules that allow for changes in catch 
limits to be phased-in over time or to account for the carry-over of 
some of the unused portion of the ACL from one year to the next. The 
Council must articulate within its FMP when the phase-in and/or carry-
over provisions of the control rule can and cannot be used and how each 
provision prevents overfishing, based on a comprehensive analysis.
    (A) Phase-in ABC control rules. Large changes in catch limits due 
to new

[[Page 71900]]

scientific information about the status of the stock can have negative 
short-term effects on a fishing industry. To help stabilize catch 
levels as stock assessments are updated, a Council may choose to 
develop a control rule that phases in changes to ABC over a period of 
time, not to exceed 3 years, as long as overfishing is prevented each 
year (i.e., the phased-in catch level cannot exceed the OFL in any 
year). In addition, the Councils should evaluate the appropriateness of 
phase-in provisions for stocks that are overfished and/or rebuilding, 
as the overriding goal for such stocks is to rebuild them in as short a 
time as possible.
    (B) Carry-over ABC control rules. An ABC control rule may include 
provisions for the carry-over of some of the unused portion of an ACL 
(i.e., an ACL underage) from one year to increase the ABC for the next 
year, based on the increased stock abundance resulting from the fishery 
harvesting less than the full ACL. The resulting ABC recommended by the 
SSC must prevent overfishing and must consider scientific uncertainty 
consistent with the Council's risk policy. Carry-over provisions could 
also allow an ACL to be adjusted upwards as long as the revised ACL 
does not exceed the specified ABC. When considering whether to use a 
carry-over provision, Councils should consider the likely reason for 
the ACL underage. ACL underages that result from management uncertainty 
(e.g., premature fishery closure) may be appropriate circumstances for 
considering a carry-over provision. ACL underages that occur as a 
result of poor or unknown stock status may not be appropriate to 
consider in a carry-over provision. In addition, the Councils should 
evaluate the appropriateness of carry-over provisions for stocks that 
are overfished and/or rebuilding, as the overriding goal for such 
stocks is to rebuild them in as short a time as possible.
    (3) Specification of ABC. ABC may not exceed OFL (see paragraph 
(e)(2)(i)(D) of this section). Councils and their SSC should develop a 
process by which the SSC can access the best scientific information 
available when implementing the ABC control rule (i.e., specifying the 
ABC). The SSC must recommend the ABC to the Council. An SSC may 
recommend an ABC that differs from the result of the ABC control rule 
calculation, based on factors such as data uncertainty, recruitment 
variability, declining trends in population variables, and other 
factors, but must provide an explanation for the deviation. For 
Secretarial FMPs or amendments, agency scientists or a peer review 
process would provide the scientific advice to establish ABC. For 
internationally-assessed stocks, an ABC as defined in these guidelines 
is not required if stocks fall under the international exception (see 
paragraph (h)(1)(ii) of this section). While the ABC is allowed to 
equal OFL, NMFS expects that in most cases ABC will be reduced from OFL 
to reduce the probability that overfishing might occur.
    (i) Expression of ABC. ABC should be expressed in terms of catch, 
but may be expressed in terms of landings as long as estimates of 
bycatch and any other fishing mortality not accounted for in the 
landings are incorporated into the determination of ABC.
    (ii) ABC for overfished stocks. For overfished stocks and stock 
complexes, a rebuilding ABC must be set to reflect the annual catch 
that is consistent with the schedule of fishing mortality rates (i.e., 
Frebuild) in the rebuilding plan.
    (4) Setting the annual catch limit-- (i) General. ACL cannot exceed 
the ABC and may be set annually or on a multiyear plan basis. ACLs in 
coordination with AMs must prevent overfishing (see MSA section 
303(a)(15)). If an Annual Catch Target (ACT), or functional equivalent, 
is not used, management uncertainty should be accounted for in the ACL. 
If a Council recommends an ACL which equals ABC, and the ABC is equal 
to OFL, the Secretary may presume that the proposal would not prevent 
overfishing, in the absence of sufficient analysis and justification 
for the approach. A ``multiyear plan'' as referenced in section 
303(a)(15) of the Magnuson-Stevens Act is a plan that establishes 
harvest specifications or harvest guidelines for each year of a time 
period greater than 1 year. A multiyear plan must include a mechanism 
for specifying ACLs for each year with appropriate AMs to prevent 
overfishing and maintain an appropriate rate of rebuilding if the stock 
or stock complex is in a rebuilding plan. A multiyear plan must provide 
that, if an ACL is exceeded for a year, then AMs are implemented for 
the next year consistent with paragraph (g)(3) of this section.
    (ii) Sector-ACLs. A Council may, but is not required to, divide an 
ACL into sector-ACLs. If sector-ACLs are used, sector-AMs should also 
be specified. ``Sector,'' for purposes of this section, means a 
distinct user group to which separate management strategies and 
separate catch quotas apply. Examples of sectors include the commercial 
sector, recreational sector, or various gear groups within a fishery. 
If the management measures for different sectors differ in the degree 
of management uncertainty, then sector-ACLs may be necessary so that 
appropriate AMs can be developed for each sector. If a Council chooses 
to use sector-ACLs, the sum of sector-ACLs must not exceed the stock or 
stock complex level ACL. The system of ACLs and AMs designed must be 
effective in protecting the stock or stock complex as a whole. Even if 
sector-ACLs and sector-AMs are established, additional AMs at the stock 
or stock complex level may be necessary.
    (iii) ACLs for State-Federal Fisheries. For stocks or stock 
complexes that have harvest in state or territorial waters, FMPs and 
FMP amendments should include an ACL for the overall stock that may be 
further divided. For example, the overall ACL could be divided into a 
Federal-ACL and state-ACL. However, NMFS recognizes that Federal 
management is limited to the portion of the fishery under Federal 
authority. See 16 U.S.C. 1856. When stocks are co-managed by Federal, 
state, tribal, and/or territorial fishery managers, the goal should be 
to develop collaborative conservation and management strategies, and 
scientific capacity to support such strategies (including AMs for state 
or territorial and Federal waters), to prevent overfishing of shared 
stocks and ensure their sustainability.
    (iv) Relationship between OY and the ACL framework. The dual goals 
of NS1 are to prevent overfishing and achieve OY on a continuing basis. 
The ABC is an upper limit on catch that prevents overfishing within an 
established framework of risk and other considerations. As described in 
paragraph (e)(3) of this section, ecological, economic, and social 
factors, as well as values associated with determining the greatest 
benefit to the Nation, are important considerations in specifying OY. 
These types of considerations can also be considered in the ACL 
framework. For example, an ACL (or ACT) could be set lower than the ABC 
to account for ecological, economic, and social factors (e.g., needs of 
forage fish, promoting stability, addressing market conditions, etc.). 
Additionally, economic, social, or ecological trade-offs could be 
evaluated when determining the risk policy for an ABC control rule (see 
paragraph (f)(2) of this section). While OY is a long-term average 
amount of desired yield, there is, for each year, an amount of fish 
that is consistent with achieving the long-term OY. A Council can 
choose to express OY on an annual basis, in which case the FMP or FMP 
amendment should indicate that the OY is an

[[Page 71901]]

``annual OY.'' An annual OY cannot exceed the ACL.
    (g) Accountability measures (AMs). (1) Introduction. AMs are 
management controls to prevent ACLs, including sector-ACLs, from being 
exceeded, and to correct or mitigate overages of the ACL if they occur. 
AMs should address and minimize both the frequency and magnitude of 
overages and correct the problems that caused the overage in as short a 
time as possible. NMFS identifies two categories of AMs, inseason AMs 
and AMs for when the ACL is exceeded. The FMP should identify what 
sources of data will be used to implement AMs (e.g., inseason data, 
annual catch compared to the ACL, or multi-year averaging approach).
    (2) Inseason AMs. Whenever possible, FMPs should include inseason 
monitoring and management measures to prevent catch from exceeding 
ACLs. Inseason AMs could include, but are not limited to: An annual 
catch target (see paragraph (g)(4) of this section); closure of a 
fishery; closure of specific areas; changes in gear; changes in trip 
size or bag limits; reductions in effort; or other appropriate 
management controls for the fishery. If final data or data components 
of catch are delayed, Councils should make appropriate use of 
preliminary data, such as landed catch, in implementing inseason AMs. 
FMPs should contain inseason closure authority giving NMFS the ability 
to close fisheries if it determines, based on data that it deems 
sufficiently reliable, that an ACL has been exceeded or is projected to 
be reached, and that closure of the fishery is necessary to prevent 
overfishing. For fisheries without inseason management control to 
prevent the ACL from being exceeded, AMs should utilize ACTs that are 
set below ACLs so that catches do not exceed the ACL.
    (3) AMs for when the ACL is exceeded. On an annual basis, the 
Council must determine as soon as possible after the fishing year if an 
ACL was exceeded. If an ACL was exceeded, AMs must be implemented as 
soon as possible to correct the operational issue that caused the ACL 
overage, as well as any biological consequences to the stock or stock 
complex resulting from the overage when it is known. These AMs could 
include, among other things, modifications of inseason AMs, the use or 
modification of ACTs, or overage adjustments. The type of AM chosen by 
a Council will likely vary depending on the sector of the fishery, 
status of the stock, the degree of the overage, recruitment patterns of 
the stock, or other pertinent information. If an ACL is set equal to 
zero and the AM for the fishery is a closure that prohibits fishing for 
a stock, additional AMs are not required if only small amounts of catch 
(including bycatch) occur, and the catch is unlikely to result in 
overfishing. For stocks and stock complexes in rebuilding plans, the 
AMs should include overage adjustments that reduce the ACLs in the next 
fishing year by the full amount of the overage, unless the best 
scientific information available shows that a reduced overage 
adjustment, or no adjustment, is needed to mitigate the effects of the 
overage.
    (4) Annual Catch Target (ACT) and ACT control rule. ACTs, or the 
functional equivalent, are recommended in the system of AMs so that ACL 
is not exceeded. An ACT is an amount of annual catch of a stock or 
stock complex that is the management target of the fishery, and 
accounts for management uncertainty in controlling the catch at or 
below the ACL. ACT control rules can be used to articulate how 
management uncertainty is accounted for in setting the ACT. ACT control 
rules can be developed by the Council, in coordination with the SSC, to 
help the Council account for management uncertainty.
    (5) AMs based on multi-year average data. Some fisheries have 
highly variable annual catches and lack reliable inseason or annual 
data on which to base AMs. If there are insufficient data upon which to 
compare catch to ACL, AMs could be based on comparisons of average 
catch to average ACL over a three-year moving average period or, if 
supported by analysis, some other appropriate multi-year period. 
Councils should explain why basing AMs on a multi-year period is 
appropriate. Evaluation of the moving average catch to the average ACL 
must be conducted annually, and if the average catch exceeds the 
average ACL, appropriate AMs should be implemented consistent with 
paragraph (g)(3) of this section.
    (6) AMs for State-Federal Fisheries. For stocks or stock complexes 
that have harvest in state or territorial waters, FMPs and FMP 
amendments must, at a minimum, have AMs for the portion of the fishery 
under Federal authority. Such AMs could include closing the EEZ when 
the Federal portion of the ACL is reached, or the overall stock's ACL 
is reached, or other measures.
    (7) Performance Standard. If catch exceeds the ACL for a given 
stock or stock complex more than once in the last four years, the 
system of ACLs and AMs should be reevaluated, and modified if 
necessary, to improve its performance and effectiveness. If AMs are 
based on multi-year average data, the performance standard is based on 
a comparison of the average catch to the average ACL. A Council could 
choose a higher performance standard (e.g., a stock's catch should not 
exceed its ACL more often than once every five or six years) for a 
stock that is particularly vulnerable to the effects of overfishing, if 
the vulnerability of the stock has not already been accounted for in 
the ABC control rule.
    (h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP 
amendments must establish ACL mechanisms and AMs for all stocks and 
stock complexes that require conservation and management (see Sec.  
600.305(c)), unless paragraph (h)(1) of this section is applicable. 
These mechanisms should describe the annual or multiyear process by 
which ACLs, AMs, and other reference points such as OFL and ABC will be 
established.
    (1) Exceptions from ACL and AM requirements--(i) Life cycle. 
Section 303(a)(15) of the Magnuson-Stevens Act ``shall not apply to a 
fishery for species that have a life cycle of approximately 1 year 
unless the Secretary has determined the fishery is subject to 
overfishing of that species'' (Pub. L. 109-479 104(b)(2)). This 
exception applies to a stock for which the average age of spawners in 
the population is approximately 1 year or less. While exempt from the 
ACL and AM requirements, FMPs or FMP amendments for these stocks must 
have SDC, MSY, OY, ABC, and an ABC control rule.
    (ii) International fishery agreements. Section 303(a)(15) of the 
Magnuson-Stevens Act applies ``unless otherwise provided for under an 
international agreement in which the United States participates'' (Pub. 
L. 109-479 104(b)(1)). This exception applies to stocks or stock 
complexes subject to management under an international agreement, which 
is defined as ``any bilateral or multilateral treaty, convention, or 
agreement which relates to fishing and to which the United States is a 
party'' (see Magnuson-Stevens Act section 3(24)). These stocks would 
still need to have SDC, MSY, and OY.
    (2) Flexibility in application of NS1 guidelines. There are limited 
circumstances that may not fit the standard approaches to specification 
of reference points and management measures set forth in these 
guidelines. These include, among other things, conservation and 
management of Endangered Species Act listed species, harvests from 
aquaculture operations, stocks with unusual life history 
characteristics (e.g., Pacific salmon, where the spawning potential for 
a stock

[[Page 71902]]

is spread over a multi-year period), and stocks for which data are not 
available either to set reference points based on MSY or MSY proxies, 
or to manage to reference points based on MSY or MSY proxies. In these 
circumstances, Councils may propose alternative approaches for 
satisfying requirements of the Magnuson-Stevens Act other than those 
set forth in these guidelines. Councils must document their rationale 
for any alternative approaches in an FMP or FMP amendment, which will 
be reviewed for consistency with the Magnuson-Stevens Act.
    (i) Fisheries data. In their FMPs, or associated public documents 
such as SAFE reports as appropriate, Councils must describe general 
data collection methods, as well as any specific data collection 
methods used for all stocks and stock complexes in their FMPs, 
including:
    (1) Sources of fishing mortality (both landed and discarded), 
including commercial and recreational catch and bycatch in other 
fisheries;
    (2) Description of the data collection and estimation methods used 
to quantify total catch mortality in each fishery, including 
information on the management tools used (e.g., logbooks, vessel 
monitoring systems, observer programs, landings reports, fish tickets, 
processor reports, dealer reports, recreational angler surveys, or 
other methods); the frequency with which data are collected and 
updated; and the scope of sampling coverage for each fishery; and
    (3) Description of the methods used to compile catch data from 
various catch data collection methods and how those data are used to 
determine the relationship between total catch at a given point in time 
and the ACL for stocks and stock complexes that require conservation 
and management.
    (j) Council actions to address overfishing and rebuilding for 
stocks and stock complexes--
    (1) Notification. The Secretary will immediately notify in writing 
a Regional Fishery Management Council whenever the Secretary determines 
that:
    (i) Overfishing is occurring;
    (ii) A stock or stock complex is overfished;
    (iii) A stock or stock complex is approaching an overfished 
condition; or
    (iv) Existing remedial action taken for the purpose of ending 
previously identified overfishing or rebuilding a previously identified 
overfished stock or stock complex has not resulted in adequate progress 
(see MSA section 304(e)).
    (2) Timing of actions--(i) If a stock or stock complex is 
undergoing overfishing. Upon notification that a stock or stock complex 
is undergoing overfishing, a Council should immediately begin working 
with its SSC (or agency scientists or peer review processes in the case 
of Secretarially-managed fisheries) to ensure that the ABC is set 
appropriately to end overfishing. Councils should evaluate the cause of 
overfishing, address the issue that caused overfishing, and reevaluate 
their ACLs and AMs to make sure they are adequate.
    (ii) If a stock or stock complex is overfished or approaching an 
overfished condition. Upon notification that a stock or stock complex 
is overfished or approaching an overfished condition, a Council must 
prepare and implement an FMP, FMP amendment, or proposed regulations 
within two years of notification, consistent with the requirements of 
section 304(e)(3) of the Magnuson-Stevens Act. Council actions should 
be submitted to NMFS within 15 months of notification to ensure 
sufficient time for the Secretary to implement the measures, if 
approved.
    (3) Overfished fishery.--(i) Where a stock or stock complex is 
overfished, a Council must specify a time period for rebuilding the 
stock or stock complex based on factors specified in Magnuson-Stevens 
Act section 304(e)(4). This target time for rebuilding 
(Ttarget) shall be as short as possible, taking into 
account: The status and biology of any overfished stock, the needs of 
fishing communities, recommendations by international organizations in 
which the U.S. participates, and interaction of the stock within the 
marine ecosystem. In addition, the time period shall not exceed 10 
years, except where biology of the stock, other environmental 
conditions, or management measures under an international agreement to 
which the U.S. participates, dictate otherwise. SSCs (or agency 
scientists or peer review processes in the case of Secretarial actions) 
shall provide recommendations for achieving rebuilding targets (see 
Magnuson-Stevens Act section 302(g)(1)(B)). The above factors enter 
into the specification of Ttarget as follows:
    (A) The minimum time for rebuilding a stock (Tmin). 
Tmin means the amount of time the stock or stock complex is 
expected to take to rebuild to its MSY biomass level in the absence of 
any fishing mortality. In this context, the term ``expected'' means to 
have at least a 50 percent probability of attaining the 
Bmsy, where such probabilities can be calculated. The 
starting year for the Tmin calculation should be the first 
year that the rebuilding plan is expected to be implemented.
    (B) The maximum time for rebuilding a stock or stock complex to its 
Bmsy (Tmax).
    (1) If Tmin for the stock or stock complex is 10 years 
or less, then Tmax is 10 years.
    (2) If Tmin for the stock or stock complex exceeds 10 
years, then one of the following methods can be used to determine 
Tmax:
    (i) Tmin plus the length of time associated with one 
generation time for that stock or stock complex. ``Generation time'' is 
the average length of time between when an individual is born and the 
birth of its offspring,
    (ii) The amount of time the stock or stock complex is expected to 
take to rebuild to Bmsy if fished at 75 percent of MFMT, or
    (iii) Tmin multiplied by two.
    (3) In situations where Tmin exceeds 10 years, 
Tmax establishes a maximum time for rebuilding that is 
linked to the biology of the stock. When selecting a method for 
determining Tmax, a Council, in consultation with its SSC, 
should consider the relevant biological data and scientific uncertainty 
of that data, and must provide a rationale for its decision based on 
the best scientific information available. One of the methods listed in 
subparagraphs (j)(3)(i)(B)(2)(ii) and (iii) may be appropriate, for 
example, if given data availability and the life history 
characteristics of the stock, there is high uncertainty in the estimate 
of generation time, or if generation time does not accurately reflect 
the productivity of the stock.
    (C) Target time to rebuilding a stock or stock complex 
(Ttarget). Ttarget is the specified time period 
for rebuilding a stock that is considered to be as short a time as 
possible, taking into account the factors described in paragraph 
(j)(3)(i) of this section. Ttarget shall not exceed 
Tmax, and the fishing mortality associated with achieving 
Ttarget is referred to as Frebuild.
    (ii) Council action addressing an overfished fishery must allocate 
both overfishing restrictions and recovery benefits fairly and 
equitably among sectors of the fishery.
    (iii) For fisheries managed under an international agreement, 
Council action addressing an overfished fishery must reflect 
traditional participation in the fishery, relative to other nations, by 
fishermen of the United States.
    (iv) Adequate Progress. The Secretary shall review rebuilding plans 
at routine intervals that may not exceed two years to determine whether 
the plans have resulted in adequate progress toward ending overfishing 
and rebuilding affected fish stocks (MSA section 304(e)(7)). Such 
reviews could include

[[Page 71903]]

the review of recent stock assessments, comparisons of catches to the 
ACL, or other appropriate performance measures. The Secretary may find 
that adequate progress is not being made if Frebuild or the 
ACL associated with Frebuild is exceeded, and AMs are not 
correcting the operational issue that caused the overage, nor 
addressing any biological consequences to the stock or stock complex 
resulting from the overage when it is known (see paragraph (g)(3) of 
this section). A lack of adequate progress may also be found when the 
rebuilding expectations of a stock or stock complex are significantly 
changed due to new and unexpected information about the status of the 
stock. If a determination is made under this provision, the Secretary 
will notify the appropriate Council and recommend further conservation 
and management measures, and the Council must develop and implement a 
new or revised rebuilding plan within two years (see MSA sections 
304(e)(3) and (e)(7)(B)). For Secretarially-managed fisheries, the 
Secretary would take immediate action necessary to achieve adequate 
progress toward rebuilding and ending overfishing.
    (v) While a stock or stock complex is rebuilding, revising 
rebuilding timeframes (i.e., Ttarget and Tmax) or 
Frebuild is not necessary, unless the Secretary finds that 
adequate progress is not being made.
    (vi) If a stock or stock complex has not rebuilt by 
Tmax, then the fishing mortality rate should be maintained 
at its current Frebuild or 75 percent of the MFMT, whichever 
is less, until the stock or stock complex is rebuilt or the fishing 
mortality rate is changed as a result of the Secretary finding that 
adequate progress is not being made.
    (4) Emergency actions and interim measures. If a Council is 
developing a rebuilding plan or revising an existing rebuilding plan 
due to a lack of adequate progress (see MSA section 304(e)(7)), the 
Secretary may, in response to a Council request, implement interim 
measures that reduce, but do not necessarily end, overfishing (see MSA 
section 304(e)(6)) if all of the following criteria are met:
    (i) The interim measures are needed to address an unanticipated and 
significantly changed understanding of the status of the stock or stock 
complex;
    (ii) Ending overfishing immediately is expected to result in severe 
social and/or economic impacts to a fishery; and
    (iii) The interim measures will ensure that the stock or stock 
complex will increase its current biomass through the duration of the 
interim measures.
    (5) Discontinuing a rebuilding plan based on new scientific 
information. A Council may discontinue a rebuilding plan for a stock or 
stock complex before it reaches Bmsy if the Secretary 
determines that the stock was not overfished in the year that the 
overfished determination (see MSA section 304(e)(3)) was based on and 
has never been overfished in any subsequent year including the current 
year.
    (k) International overfishing. If the Secretary determines that a 
fishery is overfished or approaching a condition of being overfished 
due to excessive international fishing pressure, and for which there 
are no management measures (or no effective measures) to end 
overfishing under an international agreement to which the United States 
is a party, then the Secretary and/or the appropriate Council shall 
take certain actions as provided under Magnuson-Stevens Act section 
304(i). The Secretary, in cooperation with the Secretary of State, must 
immediately take appropriate action at the international level to end 
the overfishing. In addition, within one year after the determination, 
the Secretary and/or appropriate Council shall:
    (1) Develop recommendations for domestic regulations to address the 
relative impact of the U.S. fishing vessels on the stock. Council 
recommendations should be submitted to the Secretary.
    (2) Develop and submit recommendations to the Secretary of State, 
and to the Congress, for international actions that will end 
overfishing in the fishery and rebuild the affected stocks, taking into 
account the relative impact of vessels of other nations and vessels of 
the United States on the relevant stock. Councils should, in 
consultation with the Secretary, develop recommendations that take into 
consideration relevant provisions of the Magnuson-Stevens Act and NS1 
guidelines, including section 304(e) of the Magnuson-Stevens Act and 
paragraph (j)(3)(iii) of this section, and other applicable laws. For 
highly migratory species in the Pacific, recommendations from the 
Western Pacific, North Pacific, or Pacific Councils must be developed 
and submitted consistent with Magnuson-Stevens Reauthorization Act 
section 503(f), as appropriate.
    (3) Considerations for assessing ``relative impact.'' ``Relative 
impact'' under paragraphs (k)(1) and (2) of this section may include 
consideration of factors that include, but are not limited to: Domestic 
and international management measures already in place, management 
history of a given nation, estimates of a nation's landings or catch 
(including bycatch) in a given fishery, and estimates of a nation's 
mortality contributions in a given fishery. Information used to 
determine relative impact must be based upon the best available 
scientific information.
    (l) Exceptions to requirements to prevent overfishing. Exceptions 
to the requirement to prevent overfishing could apply under certain 
limited circumstances. Harvesting one stock at its optimum level may 
result in overfishing of another stock when the two stocks tend to be 
caught together (This can occur when the two stocks are part of the 
same fishery or if one is bycatch in the other's fishery). Before a 
Council may decide to allow this type of overfishing, an analysis must 
be performed and the analysis must contain a justification in terms of 
overall benefits, including a comparison of benefits under alternative 
management measures, and an analysis of the risk of any stock or stock 
complex falling below its MSST. The Council may decide to allow this 
type of overfishing if the fishery is not overfished and the analysis 
demonstrates that all of the following conditions are satisfied:
    (1) Such action will result in long-term net benefits to the 
Nation;
    (2) Mitigating measures have been considered and it has been 
demonstrated that a similar level of long-term net benefits cannot be 
achieved by modifying fleet behavior, gear selection/configuration, or 
other technical characteristics in a manner such that no overfishing 
would occur; and
    (3) The resulting rate of fishing mortality will not cause any 
stock or stock complex to fall below its MSST more than 50 percent of 
the time in the long term, although it is recognized that persistent 
overfishing is expected to cause the affected stock to fall below its 
Bmsy more than 50 percent of the time in the long term.

0
4. Section 600.320 is revised to read as follows:


Sec.  600.320  National Standard 3--Management Units.

    (a) Standard 3. To the extent practicable, an individual stock of 
fish shall be managed as a unit throughout its range, and interrelated 
stocks of fish shall be managed as a unit or in close coordination.
    (b) General. The purpose of this standard is to induce a 
comprehensive approach to fishery management. The geographic scope of 
the fishery, for planning purposes, should cover the entire range of 
the stocks(s) of fish, and

[[Page 71904]]

not be overly constrained by political boundaries.
    (c) Unity of management. Cooperation and understanding among 
entities concerned with the fishery (e.g., Councils, states, Federal 
Government, international commissions, foreign nations) are vital to 
effective management. Where management of a fishery involves multiple 
jurisdictions, coordination among the several entities should be sought 
in the development of an FMP. Where a range overlaps Council areas, one 
FMP to cover the entire range is preferred.
    (d) Management unit. The term ``management unit'' means a fishery 
or that portion of a fishery identified in an FMP as relevant to the 
FMP's management objectives.
    (1) Basis. The choice of a management unit depends on the focus of 
the FMP's objectives, and may be organized around biological, 
geographic, economic, technical, social, or ecological perspectives.
    (2) Conservation and management measures. FMPs should include 
conservation and management measures for that part of the management 
unit within U.S. waters, although the Secretary can ordinarily 
implement them only within the EEZ. The measures need not be identical 
for each geographic area within the management unit, if the FMP 
justifies the differences. A management unit may contain stocks of fish 
for which there is not enough information available to specify MSY and 
OY or their proxies.
    (e) Analysis. An FMP should include discussion of the following:
    (1) The range and distribution of the stocks, as well as the 
patterns of fishing effort and harvest.
    (2) Alternative management units and reasons for selecting a 
particular one. A less-than-comprehensive management unit may be 
justified if, for example, complementary management exists or is 
planned for a separate geographic area or for a distinct use of the 
stocks, or if the unmanaged portion of the resource is immaterial to 
proper management.
    (3) Management activities and habitat programs of adjacent states 
and their effects on the FMP's objectives and management measures. 
Where state action is necessary to implement measures within state 
waters to achieve FMP objectives, the FMP should identify what state 
action is necessary, discuss the consequences of state inaction or 
contrary action, and make appropriate recommendations. The FMP should 
also discuss the impact that Federal regulations will have on state 
management activities.
    (4) Management activities of other countries having an impact on 
the fishery, and how the FMP's management measures are designed to take 
into account these impacts. International boundaries may be dealt with 
in several ways. For example:
    (i) By limiting the management unit's scope to that portion of the 
stock found in U.S. waters;
    (ii) By estimating MSY for the entire stock and then basing the 
determination of OY for the U.S. fishery on the portion of the stock 
within U.S. waters; or
    (iii) By referring to treaties or cooperative agreements.

0
5. Section 600.340 is revised to read as follows:


Sec.  600.340  National Standard 7--Costs and Benefits.

    (a) Standard 7. Conservation and management measures shall, where 
practicable, minimize costs and avoid unnecessary duplication.
    (b) Alternative management measures. Management measures should not 
impose unnecessary burdens on the economy, on individuals, on private 
or public organizations, or on Federal, state, or local governments. 
Factors such as fuel costs, enforcement costs, or the burdens of 
collecting data may well suggest a preferred alternative.
    (c) Analysis. The supporting analyses for FMPs should demonstrate 
that the benefits of fishery regulation are real and substantial 
relative to the added research, administrative, and enforcement costs, 
as well as costs to the industry of compliance. In determining the 
benefits and costs of management measures, each management strategy 
considered and its impacts on different user groups in the fishery 
should be evaluated. This requirement need not produce an elaborate, 
formalistic cost/benefit analysis. Rather, an evaluation of effects and 
costs, especially of differences among workable alternatives, including 
the status quo, is adequate. If quantitative estimates are not 
possible, qualitative estimates will suffice.
    (1) Burdens. Management measures should be designed to give 
fishermen the greatest possible freedom of action in conducting 
business and pursuing recreational opportunities that are consistent 
with ensuring wise use of the resources and reducing conflict in the 
fishery. The type and level of burden placed on user groups by the 
regulations need to be identified. Such an examination should include, 
for example: Capital outlays; operating and maintenance costs; 
reporting costs; administrative, enforcement, and information costs; 
and prices to consumers. Management measures may shift costs from one 
level of government to another, from one part of the private sector to 
another, or from the government to the private sector. Redistribution 
of costs through regulations is likely to generate controversy. A 
discussion of these and any other burdens placed on the public through 
FMP regulations should be a part of the FMP's supporting analyses.
    (2) Gains. The relative distribution of gains may change as a 
result of instituting different sets of alternatives, as may the 
specific type of gain. The analysis of benefits should focus on the 
specific gains produced by each alternative set of management measures, 
including the status quo. The benefits to society that result from the 
alternative management measures should be identified, and the level of 
gain assessed.

[FR Doc. 2016-24500 Filed 10-13-16; 8:45 am]
 BILLING CODE 3510-22-P