[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
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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
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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
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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
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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