[Federal Register Volume 80, Number 12 (Tuesday, January 20, 2015)]
[Proposed Rules]
[Pages 2785-2811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00586]



[[Page 2785]]

Vol. 80

Tuesday,

No. 12

January 20, 2015

Part II





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; 
Proposed Rule

Federal Register / Vol. 80 , No. 12 / Tuesday, January 20, 2015 / 
Proposed Rules

[[Page 2786]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 120416013-4641-02]
RIN 0648-BB92


Magnuson-Stevens Act Provisions; National Standard Guidelines

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes revisions to the guidelines for National 
Standards (NS) 1, 3, and 7 of the Magnuson-Stevens Fishery Conservation 
and Management Act (MSA) 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: Written comments must be received on or before June 30, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2012-0059, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to: 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0059, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Wesley Patrick, National 
Marine Fisheries Service, NOAA, Office of Sustainable Fisheries, 1315 
East-West Highway, Room 13357, Silver Spring, MD 20910.
     Fax: 301-713-1193; Attn: Wesley Patrick.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only. Copies of 
supporting documents can be obtained from Wesley Patrick (see FOR 
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:  Wesley Patrick, 301-427-8563

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Purpose and Overview of Proposed Revisions
II. Background
III. Goals and Objectives of Fishery Management Plans
IV. Stocks That Require Conservation and Management
V. Data Limited Stocks
VI. Stock Complexes and Indicator Stocks
VII. Aggregate Maximum Sustainable Yield (MSY) Estimates
VIII. Developing a Definition for ``Depleted''
IX. Developing an Alternative Definition of Overfishing To Include a 
Multi-Year Approach
X. Revising Optimum Yield (OY) Guidance
XI. Acceptable Biological Catch and Annual Catch Limit Guidance
XII. Accountability Measures
XIII. Establishing Annual Catch Limit (ACL) and Accountability 
Measure (AM) Mechanisms
XIV. Adding Flexibility in Rebuilding
XV. Recreational Fisheries
XVI. Republishing Codified Text in its Entirety
XVII. References Cited
XVIII. Classification

I. Purpose and Overview of Proposed Revisions

    The National Marine Fisheries Service (NMFS) fulfills the 
requirements of section 301(b) of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA)--``The Secretary shall establish 
advisory guidelines (which shall not have the force and effect of law), 
based on the national standards, to assist in the development of 
fishery management plans''--with its National Standard (NS) guidelines 
that appear at 50 CFR 600.305 through 600.355. NMFS is proposing 
revisions to 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. Based on this experience, NMFS believes the NS 
guidelines can be improved to enhance the utility of the guidelines for 
managers and the public. The objective of these proposed revisions 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. 
The purpose of this action is to facilitate compliance with 
requirements of the MSA, 16 U.S.C. 1801 et seq., to end and prevent 
overfishing, rebuild overfished stocks, and achieve optimum yield (OY). 
The proposed revisions would not establish new, specific requirements 
or require Fishery Management Councils (Councils) to revise their 
Fishery Management Plans (FMPs) to comply with the MSA. Rather, the 
proposal offers additional clarity and potential alternatives to 
highlight the current flexibility in meeting the MSA's current 
mandates.
    Proposed revisions to the General section of the NS guidelines and 
the guidelines for NS1, NS3, and NS7 include 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) propose 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 Annual Catch Limit (ACL) framework; (9) clarify the 
guidance on acceptable biological catch (ABC) control rules, describe 
how the 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 accountability measures (AMs) to 
improve clarity; (11) clarify the guidance on establishing ACL and AM 
mechanisms in FMPs; and (12) provide flexibility in rebuilding stocks. 
Further explanations of the major revisions that are being proposed, 
and the rationale for those revisions, are provided below.

II. Background

    Section 301(a) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) contains 10 national standards for fishery 
conservation and management. Any FMP prepared under the MSA, and any 
regulation promulgated pursuant to the

[[Page 2787]]

MSA to implement any such plan, must be consistent with these national 
standards. National Standard 1 (NS1) of the MSA states that 
conservation and management measures shall prevent overfishing while 
achieving, on a continuing basis, the OY from each fishery for the U.S. 
fishing industry. National Standard 3 (NS3) of the MSA states that, 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. National Standard 7 (NS7) 
of the MSA states that conservation and management measures shall, 
where practicable, minimize costs and avoid unnecessary duplication.
    Guidelines for NS1, NS3, and NS7 were first published in 1977 (42 
FR 34450, July 5, 1977) and are codified in 50 CFR 600.310, 600.320, 
and 600.340, respectively. NMFS last revised the NS1 guidelines on 
January 16, 2009, to provide guidance for the implementation of 
requirements enacted by the Magnuson-Stevens Fishery Conservation and 
Management Reauthorization Act of 2006 for annual catch limits (ACLs) 
and accountability measures (AMs) to end and prevent overfishing (74 FR 
3178). The NS3 and NS7 guidelines were last revised in 1998 (63 FR 
24212, May 1, 1998).
    From 2007 to 2012, the 46 Federal FMPs have been amended to 
implement ACLs and AMs to end and prevent overfishing. This has been a 
transformative process for Federal fisheries; before the ACL 
requirement, some U.S. fisheries were managed under a total allowable 
catch system, but the majority were managed through effort controls 
(e.g., days at sea, closures) or without explicit accountability.
    Due to a number of concerns raised during the implementation of 
ACLs and AMs, NMFS published an Advance Notice of Proposed Rulemaking 
(ANPR) on May 3, 2012, (77 FR 26238) to solicit public comments on 
potential adjustments to the NS1 guidelines. The comment period on the 
ANPR was extended once (77 FR 39459, July 3, 2012), and then reopened 
(77 FR 58086, Sept. 19, 2012), and ended on October 12, 2012. In March 
2013, NMFS published a report that summarizes the comments received on 
the ANPR; the report is available online at: http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html.
    In addition to the ANPR, issues related to the national standard 
guidelines were discussed at other public forums. In May 2013, NMFS 
sponsored the Managing Our Nation's Fisheries 3 conference in 
Washington, DC. The conference focused on identifying ways to advance 
sustainability within U.S. fisheries. The discussions at the conference 
addressed MSA reauthorization issues, as well as adjustments to current 
management (including potential revisions to the NS1 guidelines) that 
do not require legislation to implement. More information about the 
conference is available here: http://www.managingfisheries.org/. In 
September 2013, in response to a 2010 request from Congress, the 
National Research Council released its report titled ``Evaluating the 
Effectiveness of Fish Stock Rebuilding Plans in the United States.'' 
This included an evaluation of success in stock rebuilding, an 
investigation of the effects of uncertainty, and identification of 
means to better account for social, economic and ecosystem factors in 
the rebuilding plans. The purpose of the report was to help NOAA and 
the regional Councils better construct efficient and effective 
rebuilding plans. More information about the report is available here: 
http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/rebuilding.htm.
    In December 2013, the Marine Fisheries Advisory Committee 
Recreational Fishing Group presented NMFS with a white paper on 
recreational fisheries perspectives. The paper included recommendations 
for possible changes to the MSA, as well as possible changes to fishing 
regulations and policy. The full report can be found here: http://www.nmfs.noaa.gov/sfa/management/recreational/2014_summit/pre-summit_resources.html. In February 2014, the Commission on Saltwater 
Recreational Fisheries Management published its report, A Vision for 
Managing America's Saltwater Recreational Fisheries, providing 
recommendations for management measures to address the needs of the 
recreational community (Morris and Deal 2014). The report can be found 
here: http://asafishing.org/uploads/Marine_Visioning_Report_January_2014.pdf. Lastly, NMFS provided updates 
on the NS1 guidelines at Council Coordination Committee (CCC) meetings 
in 2013 and 2014. The CCC consists of the chairs, vice chairs, and 
executive directors from each regional Council, or other staff, as 
appropriate. This committee meets twice each year to discuss issues 
relevant to all Councils, including issues related to the 
implementation of the MSA. More information about CCC meetings can be 
found here: http://www.nmfs.noaa.gov/sfa/management/councils/ccc/ccc.htm.

III. Goals and Objectives of Fishery Management Plans

    The General section of the NS guidelines, 50 CFR 600.305, describes 
the purpose of the NS guidelines and the importance of identifying 
fishery management objectives within a FMP, and defines words that are 
used throughout the NS guidelines. This section was last revised in 
1998 (63 FR 24211, May 1, 1998). More recently, stakeholders, Councils, 
and NMFS have recognized the importance of re-evaluating the management 
objectives of FMPs on a regular basis, because the needs of the fishery 
may change over time. Examples of re-evaluations include Council 
discussions over allocation of catch among sectors of the fishery, and 
visioning projects that several Councils have initiated to identify 
long-term objectives for its fisheries. Measureable goals and 
objectives are an integral part of the adaptive fishery management 
system used in the United States, where such metrics are used to 
measure the performance of the management actions taken by the Councils 
(see, e.g., Punt 2006; Hilborn 2007; Levin et al. 2009). To highlight 
the importance of having well-defined management objectives, and as 
part of NOAA's effort to carry out the President's directive in 
Executive Order 13563 to conduct retrospective analysis of existing 
significant regulations, NMFS proposes to add a statement to Sec.  
600.305(b) to recommend that Councils should reassess the objectives of 
their fisheries on a regular basis to reflect the changing needs of the 
fishery over time (see Sec.  600.305(b)(2) of this proposed action). 
Similarly, NMFS proposes to recommend that Councils consider the 
management objectives of their FMPs and their management framework to 
determine the relevant factors to determine OY (see section X of the 
preamble and Sec.  600.310(e)(3)(iii)(B) of this proposed action). NMFS 
chose not to proscribe a set time period for ``a regular basis'' in 
order to provide the Councils the flexibility to determine this time 
frame themselves; although no time frame is proscribed, 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. For example, limited access privilege programs (a type of 
catch share program) must be formally

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reviewed 5 years after implementation and at least every 7 years 
thereafter. See 16 U.S.C. 1853a(c)(1)(G).

IV. Stocks That Require Conservation and Management

    The MSA provides for Federal fishery management authority in the 
U.S. exclusive economic zone (EEZ), 16 U.S.C. 1801(b)(1), and provides 
that each Council shall prepare an FMP for each fishery under its 
authority that requires conservation and management. Id. section 
1852(h)(1). In recent years, NMFS has received multiple legal 
challenges regarding which stocks should or should not be managed under 
an MSA FMP. NMFS does not believe that MSA section 302(h)(1) on its 
face directs preparation of an FMP for all fisheries in the EEZ and 
other MSA provisions support this view. See, e.g., id. section 
1856(a)(3)(A) (authorizing a State to regulate a fishing vessel outside 
the boundaries of the State in certain circumstances, including when 
there is no Federal FMP or other applicable Federal regulations), and 
id. section 1881(a)(1)-(2) (authorizing information collection for 
purpose of ``determining whether a fishery is in need of 
management.''). Legislative history for section 302(h)(1) affirms that 
``Councils are not required to prepare FMPs for every fishery within 
their geographical areas of authority.'' See House Rep. No. 97-549, on 
insertion of language ``in need of conservation and management'' as 
part of the 1982 amendment of MSA reprinted in 1983 U.S.C.C.A.N. at 
4339, (May 17, 1982).
    The question is how a Council should determine whether a fishery 
requires or is in need of conservation and management. The MSA and 
current NS guidelines indirectly touch upon this issue in several 
places, but NMFS believes that consolidating, streamlining, and 
clarifying guidance in the General section of the NS guidelines would 
be beneficial. NMFS believes that it is appropriate that guidance on 
which stocks need conservation and management should be contained 
separately from the 10 National Standard guidelines as it would be the 
basis for implementation of all the National Standards.
    MSA section 302(h)(1) and other related provisions refer to a 
``fishery'' and ``conservation and management.'' A ``fishery'' is ``(A) 
one or more stocks of fish which can be treated as a unit for purposes 
of conservation and management and which are identified on the basis of 
geographical, scientific, technical, recreational, and economic 
characteristics; and (B) any fishing for such stocks.'' 16 U.S.C. 
1802(13). The first part of the definition is nearly identical to the 
MSA's definition for ``stock of fish''--``species, subspecies, 
geographical grouping, or other category of fish capable of management 
as a unit.'' Id. section 1802(42). In other words, a ``fishery'' 
includes stocks of fish, as well as the people, vessels, gear, and 
other infrastructure that is designed to capture and process the stocks 
of fish. ``Conservation and management'' includes ``all of the rules, 
regulations, conditions, methods, and other measures (A) which are 
required to rebuild, restore, or maintain, and which are useful in 
rebuilding, restoring, or maintaining, any fishery resource and the 
marine environment; and (B) which are designed to assure that-- (i) a 
supply of food and other products may be taken, and that recreational 
benefits may be obtained, on a continuing basis; (ii) irreversible or 
long-term adverse effects on fishery resources and the marine 
environment are avoided; and (iii) there will be a multiplicity of 
options available with respect to future uses of these resources.'' Id. 
section 1802(5).
    When developing an FMP, a Council must, among other things, 
describe the fishery (e.g. species of fish involved) in the FMP. Id. 
section 1853(a)(2). An FMP must also be consistent with the 10 National 
Standards, id. section 1851(a), and contain conservation and management 
measures that are ``necessary and appropriate for the conservation and 
management of the fishery to prevent overfishing and rebuild overfished 
stocks, and to protect, restore, and promote the long-term health and 
stability of the fishery.'' Id. section 1853(a)(1)(A).
    The addition of MSA section 303(a)(15), which requires that all 
FMPs establish mechanisms for specifying ACLs and AMs, led to the most 
recent revision of the NS1 guidelines in 2009 (74 FR 3178, Jan. 16, 
2009). The 2009 NS1 guidelines interpreted this requirement to mean 
that stocks and stocks complexes ``in the fishery'' need ACLs and AMs. 
The 2009 NS1 guidelines explained that as a default, all stocks in an 
FMP are considered ``in the fishery'' unless the Council identifies 
them as an ecosystem component (EC) species. FMPs are required to 
provide the mandatory measures described in MSA section 303(a), 
including ACLs and AMs, for only those ``stocks in the fishery.'' 
Although NMFS' interpretation has been that ``stocks in the fishery'' 
are in need of ``conservation and management,'' the NS1 guidelines do 
not specifically address the determination of whether a stock is in 
need of conservation and management.
    The NS3 Guidelines address structuring appropriate management units 
for stocks and stock complexes and instruct that 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. 50 CFR 600.320(d)(1). The NS3 
guidelines also state that a management unit may contain stocks for 
which data is not available to specify MSY and OY or to establish 
management measures, so that data on those stocks may be collected.
    The NS7 guidelines state that MSA requires Councils to prepare FMPs 
only for overfished fisheries and for other fisheries where regulation 
would serve some useful purpose and where the present or future 
benefits of regulation would justify the costs. 50 CFR 600.340(b)(2). 
The NS7 Guidelines provide seven criteria for determining whether a 
fishery needs management through regulations implementing an FMP. Id.
    In this action, NMFS proposes a new section specifically regarding 
``stocks that require conservation and management'' (see proposed Sec.  
600.305(c)). 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, would be considered to require 
conservation and management and therefore must be included in an FMP 
(see proposed Sec.  600.305(c)(1)). See 16 U.S.C.1853(a)(1)(A) 
(requiring that FMPs contain conservation and management measures that 
are necessary ``to prevent overfishing and rebuild overfished 
stocks''). Proposed sections 600.305(c)(1)(i)-(x) set forth factors \1\ 
to be considered in all other situations when determining a 
conservation and management need:
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    \1\ The list of factors are based on concepts from the current 
NS1 guidelines (see Sec.  600.305(c)(2)(ii) and (iv) of this 
proposed action), the NS7 guidelines (see Sec.  600.305(c)(2)(iii), 
(vi)-(x) of this proposed action), the MSA definition of 
conservation and management (see Sec.  600.305(c)(2)(i) of this 
proposed action), and other provisions of the MSA (see Sec.  
600.305(c)(2)(v) of this proposed action).
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    (1) The stock is an important component of the marine environment.
    (2) The stock is caught by the fishery.
    (3) Whether an FMP can improve or maintain the condition of the 
stocks.
    (4) The stock is a target of a fishery.
    (5) The stock is important to commercial, recreational, or 
subsistence users.
    (6) The fishery is important to the Nation and to the regional 
economy.
    (7) The need to resolve competing interests and conflicts among 
user

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groups and whether an FMP can further that resolution.
    (8) The economic condition of a fishery and whether an FMP can 
produce more efficient utilization.
    (9) The needs of a developing fishery, and whether an FMP can 
foster orderly growth.
    (10) The extent to which the fishery could be or is already 
adequately managed by states, by state/Federal programs, by Federal 
regulations pursuant to other FMPs or international commissions, or by 
industry self-regulation, consistent with the policies and standards of 
the Magnuson-Stevens Act.
    When considering adding a new stock to an FMP or keeping an 
existing stock within an FMP, Councils should prepare a thorough 
analysis of the factors, and any additional considerations that may be 
relevant to the particular stock. No single factor is dispositive, but 
Councils should consider weighting the factors as follows. Factors (i-
iii) should be considered first, as they address maintaining a fishery 
resource and the marine environment. See section 1802(5)(A). These 
factors weigh in favor of including a stock in an FMP. Councils should 
next consider factors (iv-ix), 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). Regardless of whether any of the first nine factors 
indicates a conservation and management need, a Council should consider 
factor (x) before deciding to include or maintain 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. See, e.g., 16 U.S.C. 1851(a)(7); 1856(a)(3). In 
evaluating the above criteria, 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 be addressed by Federal 
management.
    For stocks that do not require conservation and management, 
consistent with the current NS1 guidelines at 50 CFR 
600.310(d)(5)(iii), proposed Sec.  600.305(c)(3) would allow councils 
to continue to include such stocks in FMPs as ecosystem component (EC) 
species to collect data, minimize bycatch and bycatch mortality 
consistent with NS9, protect their associated role in the ecosystem, or 
for other reasons. See also 16 U.S.C. 1853(b)(12) (providing Councils 
the discretion to ``include management measures in the plan to conserve 
target and non-target species and habitats, considering the variety of 
ecological factors affecting fishery populations'').
    Consistent with the current NS1 guidelines at 50 CFR 600.310(d)(7), 
proposed Sec.  600.305(c)(4) would continue to provide that, where 
stocks may be identified in more than one FMP, Councils should choose 
which FMP will be the primary FMP in which reference points for the 
stock are established. In other FMPs, the stock may be identified as 
``other managed stocks'' and management measures that are consistent 
with the objectives of the primary FMP can be established. Proposed 
Sec.  600.305(c)(5) provides that Councils should, periodically, review 
their FMPs and the best scientific information available and determine 
if stocks are appropriately identified and if the FMP is meeting the 
conservation and management needs of their fisheries.
    Because proposed Sec.  600.305 consolidates text from several NS 
guidelines provisions, NMFS would make the following edits for 
consistency or to eliminate duplication:
     Move the definition of ``target stock'' from the current 
NS1 guidelines to the general definitions at proposed Sec.  
600.305(d)(11), and remove the definition of ``stock and stock 
complexes'' at Sec.  600.305(c)(12).
     Remove the description of and use of the terms ``in the 
fishery'' and remove the criteria for ``ecosystem component species'' 
in the NS1 guidelines (see Sec.  600.310 of this proposed action).
     Consistent with proposed Sec. Sec.  600.305(c)(1)-(5), 
revise the NS1 guidelines at proposed Sec.  600.310(d)(1) to state that 
stocks in need of conservation and management must have ACLs, other 
reference points, and accountability measures; but that other stocks 
identified within an FMP (i.e., ecosystem component species and stocks 
primarily managed under another FMP) do not require these measures.
     Revise the NS3 guidelines to specify that stocks in the 
``management unit'' are considered to require conservation and 
management (see Sec.  600.320(d) of this proposed action).
     Remove current NS3 guidelines text at Sec.  
600.320(d)(1)(i)-(vi) which provides some cursory examples of ways to 
organize a management unit because proposed Sec.  600.305(c)(1) now 
sets forth the factors to consider when deciding whether stocks require 
conservation and management.
     Revise current NS3 guidelines text at Sec.  600.320(d)(2), 
which state that a management unit may contain, in addition to 
regulated species, stocks of fish which there is not enough information 
available to specify MSY and OY, or to establish management measures, 
so that data for one of these species may be collected under the FMP. 
The new guidelines would state that a management unit may contain 
stocks of fish for which there is not enough information available to 
specify MSY and OY or their proxies. Even if data are not available to 
specify MSY and OY or their proxies, that is not a reason to determine 
that a stock does not require conservation and management.
     Remove Sec.  600.340(b) of the current NS7 guidelines as 
the majority of that guidance has been captured in the description of 
factors to consider under proposed Sec.  600.305(c).
    NMFS believes that the proposed revisions to Sec.  600.305 and the 
NS1, NS3, and NS7 guidelines will not require Councils to revise their 
existing FMPs. NMFS is aware that Councils have identified stocks in 
their FMPs as ``management unit species'' or ``stocks in the fishery.'' 
Councils can still continue to use those terms and NMFS presumes that 
the stocks that have been identified as ``management unit species'' or 
``stocks in the fishery'' are stocks that are in need of conservation 
and management and are required to have ACLs, other reference points, 
and AMs as described in the proposed revisions to the NS1 guidelines 
(see Sec.  600.310(d)(1) of this proposed action) unless the two 
statutory exceptions apply (see Sec.  600.310(h) of this proposed 
action).

V. Data Limited Stocks

    Establishing ACLs for data-limited stocks can be challenging. In 
data-limited situations there remains a high degree of uncertainty in 
determining the appropriate catch level for the fishery, leading some 
to believe that ACLs for data-limited stocks are overly restrictive, 
and others to argue that they should be reduced further to limit the 
chance of overfishing. NMFS continually strives to advance the science 
that informs fisheries management. Over time, scientific information 
and stock assessment methods have improved, and NMFS has increased the 
number of stocks with stock assessments. However, NMFS acknowledges 
that the status of many stocks is unknown. Since passage of the ACL 
requirements, scientists have developed tools to evaluate and manage 
data-limited stocks. Some include catch based methods, depletion based 
methods, or abundance based methods (Carruthers et al. 2014).

[[Page 2790]]

    MSA section 303(a)(3) requires that FMPs assess and specify MSY. 
NMFS acknowledges that it may not be possible, based on the best 
scientific information available, to estimate MSY (as defined in the 
NS1 guidelines at Sec.  600.310(e)(1)(i)) or MSY based proxies for some 
stocks. In such instances, proposed Sec.  600.310(e)(2)(ii) provides 
that when data are not available to specify status determination 
criteria (SDCs) based on MSY or MSY proxies, alternative types of SDCs 
that promote sustainability of the stock or stock complex can be used. 
NMFS proposes adding to the examples provided for circumstances that 
may not fit the standard approaches for establishing reference points 
pursuant to the NS1 guidelines to address situations where data are not 
available to either set reference points based on MSY or MSY proxies, 
or manage to reference points based on MSY or MSY proxies (see Sec.  
600.310(h)(2) of this proposed action). However, note that Sec.  
600.310(h)(2) does not provide an exemption from any statutory 
requirements, including the requirement to establish ACLs; rather, it 
provides flexibility in the application of the NS1 guidelines. NMFS 
notes that existing Sec.  600.310(h)(3) describes that one of the 
limited circumstances that may not fit the standard approaches to 
specification of reference points is harvests from aquaculture 
operations (e.g., Gulf of Mexico Aquaculture FMP).

VI. Stock Complexes and Indicator Stocks

    Stocks that require conservation and management can be grouped into 
stocks complexes and managed within a FMP. Stocks may be grouped into 
complexes for various reasons. For example, stock complexes may be 
useful tools when stocks in a multispecies fishery cannot be targeted 
independent of one another, when there is insufficient data to measure 
a stock's status relative to its SDC, or when it is not feasible for 
fishermen to distinguish individual stocks among their catch. In 2009, 
the NS1 guidelines defined stock complexes to mean a group of stocks 
that are sufficiently similar in geographic distribution, life history, 
and vulnerabilities to the fishery such that the impact of management 
actions on the stocks is similar. 50 CFR 600.310(d)(8). However, this 
definition potentially limits the applicability of stock complexes in 
many of the circumstances in which they may be most useful, such as 
situations where stocks in a multispecies fishery cannot be targeted 
independent of one another, or when it is not feasible for fishermen to 
distinguish individual stocks among their catch. Under these 
circumstances, stock complexes may not have similar life histories and 
vulnerabilities. To resolve this issue, NMFS is proposing to define 
stock complex more generally as a tool to manage groups of stocks 
within a FMP (see Sec.  600.310(d)(2) of this proposed action) with 
consideration of geographic distribution, life history characteristics, 
and vulnerabilities to fishing pressure such that the impact of 
management actions on the stocks is similar (see Sec.  600.310(d)(2)(i) 
of this proposed action).
    Stock complexes are often created when there is not enough 
information to set reference points at the individual stock level. 
Therefore, the status of individual stocks within a complex is 
generally unknown. The current NS1 guidelines note that stock complexes 
can be comprised of many different combinations of indicator stocks and 
other stocks. In practice, few stock complexes are managed with 
indicator stocks. One reason for the dearth of indicator stocks is 
that, once a stock within a complex is assessed, it is often taken out 
of the complex and managed separately, rather than serving as the 
indicator for the complex. The current NS1 guidelines, while endorsing 
the use of indicator stocks, may be inadvertently contributing to the 
removal of assessed stocks from complexes by stating that MSY should be 
estimated on a stock-by-stock basis, whenever possible. Sec. Sec.  
600.310(d)(8) and (e)(1)(iii). To encourage the use of indicator stocks 
in stock complexes, NMFS is proposing to delete the afore-mentioned 
text in Sec. Sec.  600.310(d)(8) and (e)(1)(iii). The proposed NS1 
guidelines state that, where practicable, stock complexes should be 
comprised of one or more indicator stocks, each of which has SDC and 
ACLs (see Sec.  600.310(d)(2)(ii)(B) of the proposed rule). These 
revisions are intended to reduce the practice of removing a stock from 
a complex once it has been assessed, so that the assessed stock can be 
used as an indicator for the complex, if it is practicable to do so. 
The revisions also help alleviate some of the discontinuities in how 
data-limited stock complexes are managed compared to data-rich multi-
species fisheries. In mixed-stock fisheries, biological reference 
points are often specified for several of the stocks within the fishery 
and management measures are developed to prevent overfishing of each 
stock. Management measures for stocks that have lower productivities 
will restrict fishing effort for the overall mixed-stock fishery to 
some extent. However, in stock complex management the status of stocks 
within a complex is generally unknown and complexes often lack 
indicator species. Therefore, it possible that stocks that have lower 
productivities in the complex may experience occasional overfishing, 
since the status of these stocks are unknown. Encouraging the use of 
indicator species will likely reduce the probability that stocks within 
the complex could experience overfishing or become overfished. This is 
because the use of an indicator enhances the ability to discern the 
status of the complex, especially if the complex is of similar 
geographic distribution, life history, and vulnerabilities to the 
fishery such that the impact of management actions on the stocks is 
similar.

VII. Aggregate Maximum Sustainable Yield (MSY) Estimates

    MSA section 303(a)(3) requires that each FMP include an estimate of 
MSY and OY for the fishery. The current NS1 guidelines do not provide 
guidance on describing MSY at the fishery level, but encourage 
specifying MSY at the stock level, while allowing it to be set for 
stock complexes. The current NS1 guidelines state that OY can be 
specified for a stock, stock complex, or fishery. In practice, Councils 
typically set MSY and other reference points for individual stocks when 
the data is available to do so. In data-limited situations, when it is 
not possible to specify single species reference points, stocks are 
often grouped into complexes.
    A growing body of literature on ecosystem-based fisheries 
management has emphasized the importance of accounting for species 
interactions and environmental variability within fisheries management. 
Councils are increasingly working toward developing ecosystem-based 
fisheries management programs. These ecosystem-based considerations can 
be incorporated in a number of ways, including single species stock 
assessments and models that estimate MSY for an aggregate group of 
stocks. The phrase ``aggregate group of stocks'' refers to a group of 
stocks, such as: a stock complex; all of the stocks caught within a 
fishery; or some sub-component of a fishery. To further facilitate the 
Councils' use of ecosystem approaches to management, the proposed 
revisions to the NS1 guidelines introduce the concept of aggregate MSY 
estimates and describe how the concept can be used as an optional tool 
in fisheries management. In this action, NMFS would revise Sec.  
600.310(e)(1) to state that MSY may be specified for the fishery as a 
whole. Proposed Sec.  600.310(e)(1)(iv) further

[[Page 2791]]

provides that estimating aggregate level MSY for a group of stocks can 
be done using models that account for multi-species interactions, 
composite properties for a group of similar species, common biomass 
(energy) flow and production patterns, or other relevant factors. In 
addition, NMFS proposes adding a paragraph to the OY section of the NS1 
guidelines to note that aggregate level MSY estimates can be used as a 
basis for specifying OY for a fishery (see Sec.  600.310(e)(3)(iv)(C) 
of this proposed action). When aggregate level MSY is estimated, single 
stock MSY estimates can 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. Lastly, NMFS proposes to 
encourage the incorporation of environmental information into stock 
assessments by noting that environmental information (e.g., salinity, 
temperature), in addition to ecological information (e.g., predator-
prey interactions), should be taken into account, to the extent 
practicable, when assessing stocks and specifying MSY (see Sec.  
600.310(e)(1)(v)(C) of this proposed action).

VIII. Developing a Definition for ``Depleted''

    The MSA defines the terms overfished and overfishing together 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). The NS1 guidelines define overfishing and overfished 
separately, where the term ``overfishing'' refers to the fishing 
mortality rate or total catch, and the term ``overfished'' refers to a 
biomass condition. 50 CFR 600.310(e)(2)(i)(B) and (E). The NS1 
overfished definition, unlike the statutory definition, gives no 
consideration to the ``rate or level of fishing mortality'' when 
determining if a stock is overfished. Rather the criteria to determine 
an overfished status, called the minimum stock size threshold (MSST), 
is defined as the level of biomass below which the stock or stock 
complex is considered to be overfished. Therefore, a stock may be 
determined to be overfished when overfishing has not occurred. 
Stakeholders have noted that the term ``overfished'' implies that 
fishing is the sole cause for a decline in stock biomass, when factors 
such as habitat and other environmental conditions may bear greater 
responsibility for the stock's biomass decline. Similarly, the 2013 NRC 
report recognized that the rate at which a fish stock rebuilds depends 
on ecological and other environmental conditions such as climate 
change, in addition to the fishing-induced mortality. However, 
separating out the impacts of environmental change from the impacts of 
fishing on a stock is a difficult task.
    To address these concerns, NMFS proposes adding the term 
``depleted'' to the NS1 guidelines to describe those stocks whose 
biomass has declined as a result of habitat and other environmental 
conditions, as opposed to fishing pressure. The proposed revision to 
the guidelines state that an overfished stock or stock complex is 
considered depleted when it has not experienced overfishing at any 
point over a period of two generation times of the stock and its 
biomass has declined below MSST, or when a rebuilding stock or stock 
complex has reached its targeted time to rebuild and the stock's 
biomass has shown no significant signs of growth despite being fished 
at or below catch levels that are consistent with the rebuilding plan 
throughout that period (see Sec.  600.310(e)(2)(i)(F) of this proposed 
action). The time periods chosen (i.e., two generation times and 
targeted time to rebuild) were chosen because: (1) They will scale with 
the productivity of the stock rather than being a fixed time period 
that is applied to all stocks, and (2) they are of a sufficient time 
period to allow fisheries scientists to easily separate out the impacts 
of environmental change from the impacts of fishing on a stock, given 
the requirements of not overfishing or exceeding catch levels that are 
consistent with the rebuilding plan during those time periods. 
Rebuilding plans would still be required for depleted stocks and 
Councils could consider additional measures for these stocks such as a 
re-evaluation of their SDCs to determine if they are representative of 
the current environmental conditions, restoration of habitat, 
identification of research priorities, or partnerships with other 
agencies to address non-fishing related impacts (see Sec.  
600.310(j)(6) of this proposed action).
    Additionally, NMFS proposes minor revisions to the definitions of 
``overfished'' and ``MSST'' to improve clarity and reduce redundancy, 
and to clearly show that the MSST is a reference point used to 
determine if a stock is overfished (see Sec.  600.310(e)(2)(i)(G) of 
this proposed action). These revisions together will not result in any 
change to how the terms `overfished' and `MSST' are used; the revisions 
are proposed only to improve clarity in the definitions.

IX. Developing an Alternative Definition of Overfishing To Include 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). The MSA does not specify a 
timeframe for determining overfishing, but the current NS1 guidelines 
state that overfishing should be determined by comparing annual rates 
of fishing mortality (F) to the maximum fishing mortality threshold 
(MFMT) or annual catch to the overfishing limit (OFL). 50 CFR 
600.310(e)(2)(i)(B)-(C). In either case, under the current guidelines, 
overfishing determinations are made for the most recent year for which 
there is information. For example, if the F-based approach is used, the 
last available year of data in a stock assessment will be used to 
determine whether a stock will be declared subject to overfishing.
    NMFS first adopted an annual approach to overfishing in its 1998 
revision to the NS Guidelines. See 63 FR 24212, May 1, 1998. In those 
revisions, NMFS required Councils to establish status determination 
criteria for determining overfishing; in particular, NMFS required the 
establishment of a MFMT. Fishing in excess of the MFMT for a period of 
1 or more years would constitute overfishing (63 FR 24230). Prior to 
these revisions, NMFS had deliberately chosen not to ``mandate a 
particular form for all specific overfishing definitions,'' leaving it 
to the discretion of the Councils to decide how to determine if 
overfishing was occurring. See 54 FR 30826, 30829 (response to comment 
7), July 24, 1989. NMFS based the decision to take a more prescriptive 
approach in 1998 on the legislative changes made by Congress in the 
1996 amendments to the MSA, which NMFS viewed as changing the statute's 
emphasis on and timeframe for addressing overfishing. See 63 FR 24215 
(response to comment 2), May 1, 1998. When Congress amended the MSA in 
2007 to add new ACL and AM requirements, NMFS revised its requirements 
for SDCs, providing the option to Councils to either compare annual 
fishing mortality rates against the MFMT or the annual level of catch 
against the OFL. 50 CFR 600.310(e)(2)(i)(B)-(C); see also 74 FR 3192 
(response to comment 27), Jan. 16, 2009, (describing relative 
advantages of each methodology).
    These current methods for determining overfishing do not consider 
the extent to which F exceeded the MFMT or catch exceeded the OFL. For

[[Page 2792]]

many stocks, a small amount of fishing effort above MFMT or catch in 
excess of OFL in a single year may not jeopardize the stocks' ability 
to produce MSY over the long term, though for other stocks a small 
overage may be significant. Another concern with the current approach 
of comparing F to MFMT, is that the terminal year's estimate of F in a 
stock assessment is often more uncertain than the estimates of F in 
prior years (NRC 1998). In some cases, subsequent assessments have 
revised the previous assessment's terminal year's estimate of F to a 
much greater degree than the prior years' estimates of F.
    To address this issue, NMFS is proposing to give Councils the 
option to use a method for determining the overfishing status of a 
stock that is based on a multi-year approach (that may not exceed 3 
years) that examines whether a stock's ability to produce MSY over the 
long term has been jeopardized (see Sec.  600.310(e)(2)(ii)(A) of the 
proposed action). The proposed revisions to the NS1 guidelines would 
still allow Councils to have overfishing SDCs that are based on single 
year comparisons of F to MFMT or catch to OFL. A Council may develop 
overfishing SDCs that use a multi-year approach, so long as it provides 
a comprehensive analysis based on the best scientific information 
available that supports that the approach will not jeopardize the 
capacity of the fishery to produce the MSY on a continuing basis. The 
rationale for choosing 3 years as a maximum, versus some shorter or 
longer time period, was based on the fact that many stocks (57 percent) 
are assessed every 1, 2, or 3 years. Thus it is NMFS's assumption that 
using a 2- or 3-year time period will be sufficiently long as to 
capture the recent impacts of fishing on a stock and help smooth out 
retrospective bias in our understanding of stock status. Additionally, 
using a 2- or 3-year time period will dampen the effects of outliers 
within the data and help provide a more consistent determination of 
when the capacity of the stock to produce MSY on a continuing basis has 
been jeopardized. A single year's data point may not reflect the 
overall status of the stock. Were Councils to use a longer time period, 
there could be a longer delay between exceeding limit reference points 
and a subsequent management response, which could jeopardize the stocks 
ability to produce MSY on a continuing basis.
    Although the current approach to single year overfishing 
determinations has been in place since 1998 and has the benefit of 
simplicity in calculation and use, NMFS believes that multi-year 
overfishing SDCs can, in appropriate cases, be used effectively to 
protect the stock while providing stability to the fishery. Multi-year 
overfishing SDCs, if used, would be based on the best scientific 
information available and would not impact the timeliness of Council 
and agency response to any overfishing. ACL and AM mechanisms are in 
place for all fisheries, and they would continue to constrain fishing 
mortality on an annual basis. The multi-year approach would only be 
used for overfishing determinations, where the focus appropriately is 
on the impact of fishing over a set period of time and the capacity of 
the stock to produce MSY.

X. Revising Optimum Yield (OY) Guidance

    The MSA defines OY as an ``amount of fish which: (A) 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; (B) is prescribed as such 
on the basis of the maximum sustainable yield from the fishery, as 
reduced by any relevant economic, social, or ecological factor; and (C) 
in the case of an overfished fishery, provides for rebuilding to a 
level consistent with producing the maximum sustainable yield in such 
fishery.'' 16 U.S.C. 1802(33). Setting and describing OY continues to 
be a challenge for fishery managers. OY is specified in several 
different ways by Councils (e.g., the catch corresponding to 75 percent 
of Fmsy, all catch harvested pursuant to the FMP, OY is less 
than or equal to ABC, etc.), and the economic, social, and ecological 
factors required to be considered in the specification of OY are often 
not explicitly described by Councils. The proposed revisions to the NS1 
guidelines (see Sec.  600.305(e)(3) of this proposed action) are 
intended to provide greater clarity and guidance to the Councils in how 
to determine and specify OY. Once specified, OY may be achieved by 
different management programs.\2\
---------------------------------------------------------------------------

    \2\ The proposed rule does not revise the regulatory text at 
Sec.  600.310(e)(3)(i)(B) (describing achievement of OY) except for 
minor grammatical corrections.
---------------------------------------------------------------------------

    Prior to the requirement for ACLs, the concept of treating OY as a 
target was prominent in fisheries management. The Sustainable Fisheries 
Act, passed in 1996, revised the definition of OY to its current 
definition--notably these revisions required that OY can only be 
reduced from MSY upon consideration of any relevant economic, social or 
ecological factors. When NMFS revised the NS1 guidelines in 1998 (63 FR 
24212, May 1, 1998), OY was described as a target reference point which 
should be set safely below limit reference points, and preference was 
placed on specifying OY in terms of numbers or weight of fish. Councils 
were encouraged to specify OY control rules, and Restrepo et al. (1998) 
recommended a default OY control rule of fishing at 75 percent of 
FMSY. After passage of the Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act of 2006, NMFS revised 
the NS1 guidelines to provide guidance on implementing ACLs (74 FR 
3178, Jan. 16, 2009). With the requirement for setting OFL, ABC, and 
ACLs in fisheries, the concept of specifying OY as an annual target 
became less relevant. However, OY remains a key concept and requirement 
of the MSA, and NMFS believes that further revisions to the NS1 
guidelines may assist Councils in better specifying and integrating OY 
into their management regimes.
    NMFS received many comments in response to the ANPR requesting that 
NMFS provide further guidance to the Councils on addressing the 
economic, social, and ecological factors used in determining OY. NMFS 
believes that one impediment to Councils addressing these factors is 
the perception that the Councils must quantify their analysis of these 
factors. Such an analysis may not be possible in all cases, so NMFS 
proposes revising Sec.  600.310(e)(3)(iv)(A) to provide that where it 
is not possible to specify OY quantitatively, Councils may instead 
provide a qualitative description of OY that explains how OY accounts 
for the economic, ecological, and social factors that are important to 
the fishery.
    In the comments received on the NS1 ANPR, several stakeholders 
asked for clarification of the relationship of OY to the ACL 
framework--a relationship that is not discussed in the current 
guidelines. In response to these comments, proposed Sec.  
600.310(f)(4)(iv) of the NS1 guidelines includes a new explanation of 
the 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 and is designed to prevent 
overfishing. ACLs (or ACTs if used) can be reduced from ABC based upon 
OY considerations for the fishery. Additionally, economic, social, or 
ecological trade-offs may be evaluated when determining the risk policy 
for an ABC control rule.
    While OY is a long-term average amount of desired yield, there is, 
for each year, an amount of fish that is

[[Page 2793]]

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 ``annual OY.'' An annual OY cannot 
exceed the ACL. If there is a desire to obtain a yield that is higher 
than the ACL, then a Council needs to determine if a change in the 
management regime (e.g., improved data collection to reduce scientific 
and management uncertainty, minimized bycatch in mixed-stock fisheries, 
etc.) is needed in order to increase yield.
    NMFS proposes to remove current Sec.  600.310(e)(3)(v)(C) (which 
states that all catch must be counted against OY, including that 
resulting from bycatch, scientific research, and all fishing 
activities) and instead incorporate the concept within Sec.  
600.310(e)(2)(ii)(C) of the proposed action by stating that where 
practicable, all sources of mortality should be accounted for in the 
evaluation of stock status. The current language implies that catch 
accounting occurs at the level of OY, while in practice it typically 
occurs at the level of the ACL. However, the concept of accounting for 
all sources of mortality is critical to fisheries management; therefore 
NMFS proposes to retain the concept but incorporate it within the 
guidance on SDCs. NMFS uses the term ``where practicable'' because it 
recognizes that data on scientific research catch may not always be 
available. To the extent that data is available on scientific research 
catch, it should be accounted for within the system of reference 
points. For example, it could be accounted for within stock 
assessments, as a set-aside within the ACL framework, or by other 
methods.
    NMFS is also proposing minor revisions and consolidations of 
redundant guidance. To remove repetition and improve clarity, NMFS 
proposes merging the guidance on determining the greatest benefits to 
the Nation and the considerations for economic, ecological, and social 
(EES) factors (currently contained in Sec.  600.310(e)(3)(ii)-(iv)) 
together into a paragraph on assessing OY (see Sec.  
600.310(e)(3)(iii)(A) and (B) of the proposed action). Both are 
important for assessing OY. Additionally, NMFS proposes minor revisions 
to the guidance on the total allowable level of foreign fishing and 
domestic annual harvest at Sec.  600.310(e)(3)(v)(D) and (H) to improve 
clarity and consolidate it with the rest of the guidance on foreign 
fishing (see Sec.  600.310(e)(3)(v)(A) and (B) of this proposed 
action). NMFS also proposes removing Sec.  600.310(e)(3)(v)(G) (stating 
that there should be a mechanism in the FMP for periodic reassessment 
of OY), and instead explain in proposed Sec.  600.310(e)(3)(iii) that, 
consistent with MSA section 302(h)(5), the assessment and specification 
of OY should be reviewed on a continuing basis, so that it is 
responsive to the changing circumstances in the fishery. Lastly, NMFS 
proposes that for internationally managed stocks, fishing levels that 
are agreed upon by the U.S. at the international level are consistent 
with achieving OY (see Sec.  600.310(e)(3)(iv)(D) of this proposed 
action).

XI. Acceptable Biological Catch and Annual Catch Limit Guidance

    In general, NMFS proposes revisions to the guidance regarding ABC 
in section Sec.  600.310(f) to minimize redundancy and improve clarity. 
For example, the ABC control rule (Sec.  600.310(f)(4)) was moved 
forward in the guidelines (see Sec.  600.310(f)(2) of this proposed 
action) so that the guidance on ABC control rules is provided before 
the guidance on specifying ABC, and statements about providing a proxy 
for the uncertainty in estimate of MSY (Sec.  600.310(e)(1)(v)) was 
moved to the ABC control rule section of the guidelines to consolidate 
guidance on accounting for uncertainty (see Sec.  600.310(f)(2)(ii) of 
this proposed action). More substantial revisions to the ABC guidance 
are listed below.

Definitions

    NMFS proposes to modify the definition of the annual catch limit 
(ACL) to improve clarity. The ACL is currently defined as the level of 
annual catch of a stock or stock complex that serves as a basis for 
invoking AMs. ACL cannot exceed the ABC, but may be divided into 
sector-ACLs. 50 CFR 600.310(f)(2)(iv). This definition, while accurate, 
failed to include reference to the fact that an ACL is a limit on the 
total annual catch for a stock or stock complex. NMFS proposes 
clarifying that an ACL is a limit on the total annual catch for 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 Sec.  
600.310(f)(1)(iii) of this proposed action).
    NMFS also proposes adding three new definitions for the following 
terms: control rule, management uncertainty, and scientific uncertainty 
(see Sec.  600.310(f)(1)(iv)-(vi) of this proposed action). These terms 
are currently used throughout the guidelines, but were never separately 
defined. To reduce redundancy, NMFS proposes deleting the ABC control 
rule and ACT control rule definitions, since these definitions were 
very similar to the definitions of ABC and ACT, and there is a more 
general definition of control rule provided. Lastly, NMFS is proposing 
to move the definition of ``ACT'' to Sec.  600.310 (g)(4) of this 
proposed rule, because ACTs are a type of AM, and thus better suited in 
the AMs section of the guidelines.

Acceptable Biological Catch (ABC) Risk Policy

    Section 302(g)(1)(B) of the MSA states that the Scientific and 
Statistical Committee (SSC) for each Council shall provide its Council 
with ongoing scientific advice for fishery management decisions, 
including recommendations for ABC. 16 U.S.C. 1852(g)(1)(B). In 2009, 
the NS1 guidelines described ABC as the level of a stock or stock 
complex's annual catch that accounts for the scientific uncertainty in 
the estimate of the overfishing limit and any other scientific 
uncertainty, and should be specified based on the ABC control rule. 
When these provisions began to be implemented in 2009, Councils were 
uncertain as to whether or not the SSC could specify the ABC without 
input from the Council on its risk preferences. At that time, NMFS 
referred Councils and their SSCs to the response to comments section of 
the 2009 final guidelines, which noted that the ``SSC must recommend an 
ABC to the Council after the Council advises the SSC what would be the 
acceptable probability that a catch equal to the ABC would result in 
overfishing. This risk policy is part of the required ABC control 
rule.'' 74 FR at 3191-92 (response to comment 42), Jan. 16, 2009. NMFS 
also addressed this issue within its NS1 guidelines frequently asked 
questions document, which was published online (http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_resources.html).
    When the NS1 provisions began to be implemented in 2009, Councils 
were interested in using alternative methods to specify ABC, which were 
not based on ``the probability that an actual catch equal to the 
stock's ABC would result in overfishing'' even though such an approach 
could be calculated. In particular, in their comment to the NS1 ANPR, 
the North Pacific Council expressed interest in using a decision 
theoretic approach, which is similar in concept but is not the same as 
the probabilistic approach (Thompson 2011). Thompson (2011) suggests 
that the use of a decision theoretic approach may actually be more 
effective at accounting for scientific uncertainty than the recommended 
probabilistic approach.

[[Page 2794]]

    To address the above issues, NMFS is proposing revisions to 
existing guidance on ABC control rules to state that 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. (See Sec.  600.310(f)(2)(i) of this proposed action.) 
References to the Council's risk policy were also included in the 
definition of ABC (see Sec.  600.310(f)(1)(ii)).

Phase-In ABC Control Rules

    In practice, the management system described in the NS1 guidelines 
has led managers to adjust ABCs and ACLs in lock-step with assessment 
results through the use of control rules. A manager's understanding 
about the status of a stock may change from one assessment to another, 
but some of that change could be due to scientific uncertainty. 
Scientific uncertainty, particularly regarding the data from the most 
recent years within the assessment, can produce perceived fluctuations 
in stock abundance that do not match the actual, but unknown, status of 
the stock (NRC 1998). In the time period between stock assessments, 
Councils often hold ACLs constant because, absent stock forecasts, 
information is lacking on which to justify changes to the ACL. The 
result is that an ACL could be left unchanged for several years when 
there is no assessment update, but upon completion of a new assessment, 
reference points could change dramatically (Methot 2014). This type of 
dramatic change could be the result of a changed understanding of the 
stock or due to a change in the level of scientific uncertainty; it may 
be extremely difficult to parse the cause of such changes.
    Making large reductions in catch limits to prevent overfishing may 
cause negative short-term impacts on fishery participants, while large 
increases in catch limits due to a favorable assessment result may have 
negative short-term impacts by flooding markets and reducing 
profitability. Patrick et al. (2013) has also shown that management 
uncertainty (i.e., the inability of managers to control catch) 
increases when quotas vary substantially (i.e., >20 percent) from year 
to year. The ability to make ACL adjustments that provide more 
stability to fishing participants, yet do not jeopardize the capacity 
of the stock or stock complex to produce MSY on a continuing basis, 
would be useful to Councils.
    NMFS proposes revising the NS1 guidelines to 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 this action). The 
rationale for choosing 3 years is similar to that described in Section 
IX of this preamble. For example, choosing a shorter time frame may not 
be that helpful in stabilizing catches, while a longer time frame that 
spans multiple stock assessments does not seem logical or transparent.
    Phase-in approaches to management are currently being used 
successfully elsewhere in the world. For example, the International 
Pacific Halibut Commission (IPHC) currently adjusts its quotas 
according to a ``slow up/full down'' policy. Under IPHC policy, 1/3 of 
the indicated annual increases are taken and 100 percent of decreases 
are taken (Hare and Clark 2008, Hare 2011). Similarly, multi-annual 
plans for some European Union marine fisheries limit annual change in 
catch quota to 15 percent (Marchal et al. 2009). When fishing effort 
needs to be reduced in the fishery, using a phase-in approach will 
likely result in the use of a less risk averse ABC control rule; 
whereas, when fishing effort can be increased in the fishery, a phase-
in approach will likely result in a more risk averse ABC control rule. 
For example, if a 15 percent reduction is needed to set the ABC at the 
Council's preferred level of risk (i.e., using the Council's regular 
ABC control rule), using the phase-in control rule, a Council could 
incrementally reduce the ABC by 5 percent each year over a period of 3 
years, and still prevent overfishing. Alternatively if a 15 percent 
increase is allowed, using the phase-in control rule a Council could 
incrementally increase the ABC by 5 percent each year over a period of 
3 years. To ensure that phase-in ABC control rules do not lead to 
overfishing, NMFS also proposes that Councils must provide a 
comprehensive analysis of the control rules and articulate within an 
FMP or FMP amendment when a phase-in ABC control rule can and cannot be 
used and demonstrate how the control rule prevents overfishing (see 
Sec.  600.310 (f)(2)(ii) of this action).

Carry-Over ABC Control Rules

    The term carry-over is often used in the context of catch share 
programs, where unused allocation from one year can be carried over to 
the next. Historically, carry-over provisions have allowed fishermen to 
carry over a portion of the quota they had available at the end of the 
year. Carry-over provisions can reduce the likelihood that quotas are 
exceeded by minimizing incentives to catch every last pound. Similarly, 
carry-over provisions can relieve pressure on fishermen to fish in 
potentially unsafe conditions to ensure full utilization of quota. The 
amount of carry-over historically allowed has been relatively small 
compared to the total ACL, and could well be offset, in a typical year, 
with under-harvest by other fishermen.
    Some Councils have expressed interest in carrying over significant 
levels of catch that could result in the previously specified ACL and 
in some cases the ABC being exceeded. The NS1 guidelines currently do 
not provide any guidance regarding carry-over. In Conservation Law 
Foundation v. Pritzker, the U.S. District Court for the District of 
Columbia found that Framework 50 of the Northeast Multispecies FMP 
violated the MSA by allowing sectors to carry over unused catch in an 
amount that would exceed the SSC's recommendation of ABC for several 
stocks. The court held that MSA section 302(h)(6) requires that 
carryover plus ACLs cannot exceed a stock's specified ABC. Consistent 
with this court decision, NMFS proposes revising the NS1 guidelines at 
proposed Sec.  600.310(f)(2)(ii)(B) to state that an ABC control rule 
may include provisions for carry-over of 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 resulting ABC recommended by the SSC must 
prevent overfishing and consider scientific uncertainty consistent with 
the Council's risk policy. In cases where an ACL has been reduced from 
the ABC, carry-over provisions may not require the ABC to be re-
specified if the ACL can be adjusted upward so that it is equal to or 
below the existing ABC. Like phase-in control rules, to ensure that 
carry-over ABC control rules do not lead to overfishing, NMFS proposes 
that Councils must provide a comprehensive analysis and articulate 
within an FMP or FMP amendment when a carry-over ABC control rule can 
and cannot be used and demonstrate how the control rule prevents 
overfishing (see Sec.  600.310(f)(2)(ii) of this proposed action).

XII. Accountability Measures

    NMFS proposes minor revisions to consolidate and clarify the 
guidance on accountability measures (see Sec.  600.310(g) of this 
proposed action).

[[Page 2795]]

NMFS proposes moving the guidance on ACT and ACT control rules from 
current paragraph (f) into the section of the guidelines that provides 
guidance on accountability measures (see Sec.  600.310(g)(4) of this 
proposed action), as ACTs and ACT control rules are types of 
accountability measures. NMFS is also proposing to simplify the 
guidance on ACT control rules, as they are an optional tool that 
managers can use. Additionally, NMFS is moving the description of 
management uncertainty out of the description of the ACT control rule 
and other sections of the guidelines (Sec.  600.310(f)(1) and 
(f)(6)(i)) into a definition of management uncertainty (see Sec.  
600.310(f)(1)(v) of this proposed action). Consistent with the current 
NS1 guidelines, some Councils have chosen to account for management 
uncertainty when setting ACLs. NMFS acknowledges and encourages this 
practice by adding a sentence in proposed Sec.  600.310(f)(4) stating 
that if ACT is not used, management uncertainty should be accounted for 
in the ACL.
    Additionally, NMFS proposes moving the guidance on AMs that is 
currently contained in Sec.  600.310(h)(1) into paragraphs (f) and (g) 
of the NS1 guidelines. Specifically, NMFS proposes adding ``if sector-
ACLs are used, sector-AMs should also be specified'' to Sec.  
600.310(f)(4)(ii) of this proposed action. This concept is currently in 
Sec.  600.310(h)(1)(iv) and was moved into the discussion of sector-
ACLs to improve clarity. NMFS also proposes to add ``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)'' into the introductory paragraph on AMs (see Sec.  
600.310(g)(1) of this proposed action). This concept is currently in 
Sec.  600.310(h)(1)(iii) and was moved into the discussion on AMs to 
consolidate the guidance on AMs.
    NMFS also proposes to consolidate the guidance regarding the ACL 
performance standard from current Sec. Sec.  600.310(g)(3) and (g)(4) 
into one section (see Sec.  600.310(g)(7) of this proposed action). 
However, the guidance regarding the performance standard remains the 
same; 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.
    NMFS also proposes to clarify in the guidance for AMs when ACL is 
exceeded that 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 (see Sec.  600.310(g)(3) of this proposed action). For 
example, some stocks have highly variable recruitment and when 
environmental conditions are favorable, the catches may exceed the ACL 
because the abundance of the stock is higher than anticipated. When 
deciding on the appropriate AM, Councils could consider if higher than 
expected recruitment played a role in catches exceeding the ACL. 
Another example of how the type of AM may vary is that a Council may 
choose to use a more stringent AM as the biomass of the stock declines.
    Lastly, within the guidance on AMs for when the ACL is exceeded, 
NMFS proposes that, 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 (1) only small amounts of catch or bycatch occur, 
and (2) that catch or bycatch is unlikely to result in overfishing (see 
Sec.  600.310(g)(3) of this proposed action). Under these 
circumstances, NMFS believes that a closure that prohibits fishing for 
a stock is an adequate AM for a fishery, and in some cases, it may be 
the only option available for a Council.

XIII. Establishing Annual Catch Limit (ACL) and Accountability Measure 
(AM) Mechanisms

    NMFS is proposing minor revisions to reduce redundancy and improve 
clarity within Sec.  600.310(h). NMFS proposes to remove the guidance 
on stock complexes and indicator stocks within current paragraph (h) 
because it is redundant; similar guidance is contained in Sec.  
600.310(d)(2)(ii) of the proposed action.
    NMFS proposes to remove current Sec. Sec.  600.310(h)(1)(i) and 
(h)(1)(ii), because they are redundant with the guidance in Sec. Sec.  
600.310(f)(4)(i) and (f)(4)(ii), respectively, of this proposed action. 
As described above in preamble section XII, NMFS proposes to remove the 
guidance on AMs in current Sec. Sec.  600.310(h)(1)(iii) and (iv), and 
consolidate it into Sec. Sec.  600.310(g)(1) and (f)(4)(ii), 
respectively, of this proposed action to improve clarity.
    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. Section 
600.310(h)(2) of the current NS1 guidelines further explains that the 
life cycle exception 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 individual has only one 
breeding season in its lifetime.'' NMFS believes that the current 
guidance is confusing and that the requirement to only have one 
breeding season in a lifetime is overly restrictive. Some short lived 
species have multiple breeding cycles in a lifetime. NMFS proposes to 
revise this 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 the proposed action). NMFS believes that this 
is a more scientifically correct description of a species that has a 
life cycle of approximately 1 year.
    Lastly, as described above in preamble section V, NMFS proposes 
amending the ``Flexibility in application of NS1 guidelines'' provision 
of the guidelines by adding two additional examples of circumstances 
that may not fit the standard approaches to specification of reference 
points as those described in the NS1 guidelines (see Sec.  
600.310(h)(2) of this proposed action).

XIV. Adding Flexibility in Rebuilding

    The topic of rebuilding plans has been discussed extensively in a 
number of public forums. NMFS received several comments in response to 
the NS1 ANPR stating that the 10-year rebuilding requirement is 
arbitrary and expressing a desire for more flexibility in meeting the 
statutory rebuilding requirements, while other commenters supported the 
use of the 10-year rebuilding requirement. Similar comments were 
provided at the Managing Our Nation's Fisheries III conference held in 
Washington, DC, in 2013. The National Research Council also published a 
report on U.S. rebuilding plans in 2013 (NRC 2013), which provided 
several findings and recommendations on improving rebuilding guidance. 
Below is a summary of the proposed revisions to the NS1 guidelines 
related to providing flexibility in developing effective rebuilding 
plans.

Calculating Tmax

    When the biomass of a stock has declined below a level that 
jeopardizes the capacity of the stock to produce MSY on a continuing 
basis, the stock is considered overfished. Section 304(e)(4) of the MSA 
requires Councils to specify a time period for rebuilding overfished 
stocks within 10 years, except in cases where the biology of the stock, 
other environmental conditions, or management measures under an 
international agreement in which the

[[Page 2796]]

United States participates dictate otherwise. 16 U.S.C. 1854(e)(4). 
Currently, 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). Tmin is defined as the amount of time 
the stock or stock complex is expected to take to rebuild to 
Bmsy in the absence of any fishing mortality. If 
Tmin for the stock or stock complex is 10 years or less, 
then Tmax for that stock is 10 years. Otherwise, 
Tmax is calculated as Tmin plus the length of 
time associated with one generation time for that stock or stock 
complex. ``Generation time'' is defined in the proposed NS1 guidelines 
at Sec.  600.310(j)(3)(i)(B)(2)(i) as the average length of time 
between when an individual is born and the birth of its offspring.
    In the past, Councils have had difficulties calculating 
Tmax (i.e., Tmin + 1 generation time), because it 
requires life history information on the natural mortality, age at 
maturity, fecundity, and maximum age of the stock (Restrepo, et al. 
1998). As a result, several Councils have had to rely on proxies of 
generation time, which can sometimes lead to either overly conservative 
or exaggerated estimates of Tmax. To address the data 
requirement issues of calculating generation time, NMFS is proposing to 
add two additional ways of calculating Tmax (see Sec.  
600.310(j)(3)(i)(B) of the proposed rule). Thus, Councils will have 
three options for calculating Tmax: (1) Tmin plus 
one generation time; (2) the amount of time the stock is expected to 
take to rebuild to its MSY biomass level if fished at 75 percent of 
MFMT; and (3) Tmin multiplied by two. These alternative 
methods of calculating Tmax rely on different life history 
parameters, and provide similar timelines for rebuilding when compared 
to Tmin plus one generation time. The 75 percent of MFMT 
approach is potentially advantageous in that MFMT is highly correlated 
with the productivity of a stock, meaning there is a reduced 
probability of calculating less conservative or exaggerated estimates 
of Tmax. Whereas, Tmin multiple by two, is the 
most simplistic method of calculating Tmax, and it is has 
been applied elsewhere in the world. For example, the New Zealand's 
Ministry of Primary Industries uses this method to calculate 
Tmax for their overfished stocks. When selecting a method 
for determining Tmax, a Council must provide a rationale for 
its decision based on the best scientific information available.
    NMFS does not expect that drastically different estimates of 
Tmax will result from one option to another. Rather, NMFS 
expects the method selected will largely depend on the best scientific 
information available for calculating Tmax. It is also 
important to note, that an overfished stock is expected to have a 
Ttarget that is less than Tmax, which rebuilds 
the stock in as short a time as possible (see Sec.  600.310(j)(3)(i)(C) 
of this proposed rule).

Adequate Progress and Extending Rebuilding Timelines

    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). 
The current NS1 guidelines do not provide any guidance on this 
provision, and NMFS received several comments in response to the ANPR 
requesting additional guidance on this provision. NMFS proposes adding 
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 
proposes that the Secretary may find that adequate progress in 
rebuilding is not being made if: Frebuild or the ACL 
associated with Frebuild are being exceeded and AMs are not 
effective at correcting for the overages; or 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) of this proposed action).
    NMFS also proposes clarifying that, 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 (see Sec.  
600.310(f)(3)(v) of this proposed action). As highlighted in the NRC 
(2013) report on rebuilding, 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.

Emergency Actions and Interim Measures

    The NS1 guidelines provide guidance on emergency actions and 
interim measures to reduce overfishing that can be taken under sections 
304(e)(6) and 305(c) of the MSA. NMFS is proposing to delete Sec. Sec.  
600.310(j)(4)(i) and (ii) because: (1) The guidance simply repeats the 
language in the MSA; (2) NMFS has separately published a policy on 
implementing the provisions of MSA 305(c) (NMFS Policy Directive 01-
101-07, Policy Guidelines on the Use of Emergency Rules, 62 FR 44421 
(Aug. 21, 1997)); and (3) NS1 guidance should only provide guidance on 
the 304(e)(6) provisions of the MSA, because it pertains to rebuilding 
stocks. NMFS proposes to clarify in Sec.  600.310(j)(4) of this 
proposed action that the Secretary's ability to implement interim 
measures to reduce, but not necessarily end, overfishing should rarely 
be used and require that the following three criteria be met before the 
interim measure can be used: (1) The interim measure is needed to 
address an unanticipated and significantly changed understanding of the 
stock's status; (2) ending overfishing immediately is expected to 
result in severe social and/or economic impacts to a fishery; and (3) 
the interim measures will at least ensure that the stock will increase 
its current biomass through the duration of the interim measure.

Discontinuing a Rebuilding Plan Based on New Information

    Due to scientific uncertainty in the biomass estimate of fish 
stocks, occasionally a stock is identified as overfished, but is later 
determined to have never been overfished. The recent NRC (2013) study 
on rebuilding estimated that approximately 30 percent of rebuilding 
stocks are later discovered to have never been overfished. In the past, 
it has been NMFS' policy that once a rebuilding plan has been 
implemented, the rebuilding plan cannot be discontinued until the stock 
has rebuilt to Bmsy, regardless of new information about the 
status of the stock when it was originally declared overfished. This 
policy was in place because a future stock assessment could find that 
the stock actually had been overfished, and rebuilding to 
Bmsy is consistent with the MSA's objective that fisheries 
produce MSY on a continuing basis.
    However, NMFS realizes that rebuilding stocks are sometimes 
restricted to relatively low Frebuilds, which can have 
negative impacts on fishery participants due to the reduced landings of 
the overfished stock, as well as reduced catch of other stocks in 
mixed-stock fisheries. Therefore, NMFS is proposing to allow a Council 
to discontinue a rebuilding plan before it reaches Bmsy so 
long as the stock meets

[[Page 2797]]

the following criteria: (1) The Secretary determines that the stock was 
not overfished in the year that the MSA section 304(e)(3) overfished 
determination was based on; and (2) the biomass of the stock is not 
currently below the MSST (see Sec.  600.310(j)(5) of this proposed 
action). This proposed revision is based on the rationale that the 
terminal year of a stock assessment (i.e., the most recent year) is 
often the most uncertain, while subsequent reviews of that same year by 
stock assessments conducted several years later are often more accurate 
(NRC 1998). Thus, if a subsequent assessment shows that the stock was 
not overfished in the year that the overfished determination was based 
on, it is more likely that the stock was never overfished. However, in 
such a situation, 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.

Other Revisions

    In Sec.  600.310(j)(2), NMFS proposes deleting text that referred 
to the 2010 and 2011 implementation dates for ACLs and AMs, given that 
these deadlines have passed and all 46 FMPs have implemented ACLs and 
AMs (see Sec. Sec.  600.310(j)(2)(i) and (ii) of this proposed action). 
NMFS also proposes adding guidance to clarify that, when a Council is 
notified that a stock or stock complex is undergoing overfishing, it 
should work with its SSC to ensure that the ABC is set appropriately to 
end overfishing. Councils should evaluate the cause of the overfishing, 
address the issue that caused overfishing, and reevaluate their ACLs 
and AM to make sure they are adequate (see Sec.  600.310(j)(2)(i) of 
this proposed action).

XV. Recreational Fisheries

    Since the reauthorization of the MSA in 2007, many recreational 
stakeholders have commented that the ACL requirements of the MSA do not 
recognize the different ways in which recreational and commercial 
fisheries are managed and prosecuted. The recreational community has 
provided comments through a variety of forums, such as: the 2012 NS1 
ANPR; NMFS's Marine Fisheries Advisory Committee's White Paper on 
Recommendations for MSA by the Recreational Working Group; NMFS's 
Recreational Regional Roundtable discussions of 2013; Managing Our 
Nations Fisheries III (2013); The Commission on Saltwater Recreational 
Fisheries Management, A Vision for Managing America's Saltwater 
Recreational Fisheries (Morris and Deal 2014); and NMFS Recreational 
Saltwater Fishing Summits in 2010 and 2014. In general, the 
recreational community has expressed an interest in increased fishing 
opportunities; having the opportunity to catch larger fish; flexibility 
in setting ACLs for recreational fisheries; managing for greater 
abundance; and, managing forage fish more conservatively to improve the 
resiliency of recreationally important fish stocks. While not 
highlighted in a separate or specific section, these issues are 
addressed in various sections of this proposed rule.

Recreational Fishing Objectives

    NMFS recognizes that recreational and commercial sectors of a 
fishery will sometimes have different objectives for a fishery. 
Existing guidelines note that it is the Councils' responsibility to 
integrate the objectives of these various sectors or fishery 
participants into their fishery management plans, and prioritize among 
these objectives when they are in conflict (see Sec. Sec.  600.305(b) 
and 600.310(e)(3)). However, in practice the process of identifying and 
prioritizing the objectives of a fishery are rarely reexamined once 
defined; there are some exceptions like the Mid-Atlantic and South-
Atlantic Councils' recent visioning processes (for more information on 
these projects, see: http://safmc.net/resource-library/council-visioning-project and http://www.mafmc.org/strategic-plan/). Because 
the needs and objectives of a fishery change over time, NMFS is 
proposing that Councils reassess the objectives of the fishery on a 
regular basis (see Sec.  600.305(b)(2) of this proposed action). 
Recreational fishermen should work with their Councils to advance their 
sector specific objectives, such as increasing the opportunity to catch 
larger fish.

Flexibility in Setting ACLs and AMs

    The MSA requires ACLs and AMs for all managed fisheries; however, 
the NS1 guidelines do not require Councils to specify or implement AMs 
in the same manner among the sectors of a fishery. For example, in 
several cases, Councils have chosen to monitor the commercial catch 
using daily or weekly reporting mechanisms and use in-season management 
measures to close the commercial sector when it is expected to reach 
its ACL. In contrast, in some recreational fisheries, catch can only be 
monitored in 2-month increments, and ACL overages can only be addressed 
through post-season AMs. So as not to be constrained to one type of AM, 
the Mid-Atlantic and South Atlantic Councils have developed conditional 
AMs that implement different AMs depending on the status of the stock 
and/or degree of ACL overage. These conditional AMs provide flexibility 
in managing sectors of the fishery differently. NMFS encourages the use 
of conditional AMs and proposes clarifying that the type of AM chosen 
by a Council will likely vary depending on the sector of the fishery, 
the status of the stock, degree of overage, recruitment patterns of the 
stock, and other pertinent information (see Sec.  600.310(g)(3) of this 
proposed action).
    NMFS also recognizes that an impediment to implementing ACLs for 
many recreationally important fish stocks is the lack of life history 
information to calculate MSY (or a standard proxy), as well as the lack 
of timely information on the catch levels of the stock. As noted above 
in section V of the preamble, NMFS is proposing to revise the NS1 
guidelines to make clear that, when data are not available to specify 
MSY or MSY proxies, alternative types of SDCs that promote 
sustainability of the stock or stock complex can be used (see Sec.  
600.310(e)(2)(ii) of this proposed action). For example, SDCs could be 
based on recent average catch, fish densities derived from visual 
census surveys, length/weight frequencies or other methods. NMFS also 
proposes to allow alternative approaches to satisfying the NS1 
requirements for stocks for which data are not available to either set 
MSY or MSY based reference points or manage to MSY or MSY based 
reference points (see Sec.  600.310(h)(2) of this proposed action).
    NMFS understands that many of the fish stocks captured in 
recreational fisheries are not targeted, but retained because they are 
valued by the fishermen. In the current NS1 guidelines, these ``often 
retained'' non-target stocks are considered to be ``in the fishery'' 
and are therefore required to have ACLs. Many stakeholders including 
recreational fishery participants have noted that, while these non-
target stocks are often retained, many of these stocks may not be in 
need of conservation and management. As noted above in section IV of 
the preamble, NMFS is revising its guidance on stocks in the fishery 
and ecosystem component species to provide further guidance to Councils 
in determining whether stocks require conservation and management based 
on several factors. Therefore, some non-target fish stocks may no 
longer need ACLs based on this proposed rule.
    Some stakeholders have also recommended that, where appropriate,

[[Page 2798]]

NMFS should consider allowing fisheries (in their entirety) to be 
managed at the state level. They have expressed that Federal agencies 
are not always the most appropriate organizations to manage fisheries, 
and, where applicable, states or fishery management commissions should 
take control of managing fish populations. NMFS agrees that Federal 
management is not required for all stocks, and has in the past provided 
guidance on when Federal management was and was not needed within its 
NS7 guidelines. As explained in Section IV, NMFS is consolidating 
guidance on stocks that require conservation and management in proposed 
Sec.  600.305(c).

Forage Fish

    NMFS is not proposing any new revisions to the NS guidelines 
related to forage fish, as the importance of forage fish to fisheries 
and the marine ecosystem was adequately highlighted in the 2009 
revisions of the NS1 guidelines. For example, in current Sec.  
600.310(e)(3)(iii)(C), NMFS notes that maintaining adequate forage for 
all components of the ecosystem is one consideration that could be 
taken by the Council when determining the greatest benefit to the 
Nation. Additionally, current Sec.  600.310(e)(3)(iv)(C) describes 
that, when specifying OY, consideration should be given to managing 
forage stocks for higher biomass than Bmsy to enhance and 
protect the marine ecosystem. NMFS is not proposing to change these 
concepts within the guidelines.

XVI. Republishing Codified Text in Its Entirety

    For clarity and convenience to the reader, this proposed rule would 
revise Sec.  600.305 (National Standard General), Sec.  600.310 
(National Standard 1 guidelines), Sec.  600.320 (National Standard 3 
guidelines) and Sec.  600.340 (National Standard 7 guidelines) in their 
entirety. The following describes the changes to these guidelines that 
are being proposed, and a tracked changes copy of the proposed rule is 
also available at: http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html.
    In the proposed revisions to Sec.  600.305, paragraph (b)--Fishery 
management objectives, is revised. Current paragraph (c)--Word usage is 
revised and redesignated paragraph (d). A new paragraph (c)--Stocks 
that require conservation and management, is added to describe which 
stocks are in need of conservation and management.
    In the proposed revisions to Sec.  600.310, paragraph (b)--General, 
is revised. Paragraph (c)--Summary of items to include in FMPs related 
to NS1, is revised. Current paragraph (d)--Classifying stocks in an 
FMP, is retitled Stocks and stock complexes. Paragraph (d)(1)--
Introduction, is revised. Current paragraphs (d)(2)--Stocks in a 
fishery, (d)(4)--Non-target species, and (d)(5)--Ecosystem component 
(EC) species were deleted. Current paragraph (d)(3)--Target stocks, was 
revised and redesignated (d)(11) in Sec.  600.305. Current paragraph 
(d)(6)--Reclassification, was revised and redesignated (c)(5) in Sec.  
600.305. Current paragraph (d)(7)--Stocks or species identified in more 
than on FMP, was revised and redesignated (c)(4) in Sec.  600.305. 
Current paragraph (d)(8)--Stock complex was revised and redesignated 
(d)(2)(i) and (d)(2)(ii)(B). Current paragraph (d)(9)--Indicator 
stocks, was revised and redesignated (d)(2)(ii)(A),(C)-(D). Current 
paragraph (d)(10)--Vulnerability, was revised and redesignated (b)(4). 
Current paragraph (e)(1)--MSY, was revised. Current paragraph 
(e)(1)(iii)--MSY for stock complexes, was revised and portions therein 
were redesignated in (d)(2)(ii)(E). Current paragraph (e)(1)(iv)--
Specifying MSY, was revised and redesignated (e)(1)(v)(A)-(D). A new 
paragraph (e)(1)(iv)--Methods of estimating MSY for an aggregate group 
of stocks, was added to describe alternative methods of calculating MSY 
for a group of stocks. Paragraphs (e)(2)(i)(A)--Status determination 
criteria (SDC), (e)(2)(i)(B)--Overfishing, (e)(2)(i)(C)--Maximum 
Fishing Mortality Threshold (MFMT), (e)(2)(i)(D)--Overfishing limit, 
(e)(2)(i)(E)--Overfished were revised. Current paragraph (e)(2)(i)(F)--
Minimum stock size threshold (MSST), was revised and redesignated 
(e)(2)(i)(G). Current paragraph (e)(2)(i)(G)--Approaching an overfished 
condition, was redesignated (e)(2)(i)(H). A new paragraph 
(e)(2)(i)(F)--Depleted, was added to defined the term depleted. 
Paragraphs (e)(2)(ii)--Specification of SDC and overfishing and 
overfished determinations and subsections therein (e)(2)(ii)(A)-(B) 
were revised. Paragraph (e)(2)(ii)(A)(3) was added to describe 
multiyear periods to determine overfishing status. Paragraph 
(e)(2)(ii)(C) was added to describe that sources of mortality should be 
accounted for in the evaluation of stock status with respect to 
reference points. Current paragraph (e)(2)(iii)--Relationship of SDC to 
environmental change, is retitled Relationship of SDC to environmental 
and habitat change. Current paragraphs (e)(2)(iii)(C), (e)(2)(iv)(A), 
(e)(3)--
Optimum yield, (e)(3)(i)(A)-(B), and (e)(3)(ii)--General were revised. 
Current paragraph (e)(3)(iii)--Determining the greatest benefit to the 
Nation, was revised and redesignated (e)(3)(iii)(A). Current paragraphs 
(e)(3)(iii)(A)-(C), were revised and redesignated (e)(3)(iii)(A)(1)-
(3), respectively. A new paragraph (e)(3)(iii)--Assessing OY, was added 
to described the OY assessment process. Current paragraph (e)(3)(iv)--
Factors to consider in OY specification, was revised, redesignated 
(e)(3)(iii)(B) and retitled Economic, Ecological, and Social Factors. 
Current paragraphs (e)(3)(iv)(A)-(C), were revised and redesignated 
(e)(3)(iii)(B)(1)-(3). Current paragraph (e)(3)(v)--Specification of 
OY, was revised, redesignated (e)(3)(iv), and retitled Specifying OY. 
Current paragraph (e)(3)(v)(A) was revised and redesignated 
(e)(3)(iv)(A). Current paragraph (e)(3)(v)(B), was deleted, and the 
content was incorporated into (e)(3)(v)(A). Current paragraph 
(e)(3)(v)(C), was revised and redesignated (e)(3)(ii)(C). Current 
paragraph (e)(3)(v)(D), was redesignated to (e)(3)(v)(A). Current 
paragraph (e)(3)(v)(E), was redesignated (e)(3)(iv)(B). Current 
paragraph (e)(3)(v)(F), was revised and redesignated (e)(3)(iv)(C). 
Current paragraph (e)(3)(v)(G), was deleted and the concept was moved 
to (e)(3)(iii). Current paragraph (e)(3)(v)(H), was redesignated 
(e)(3)(v)(B). A new paragraph (e)(3)(iv)(D), was added to address 
issues with internationally managed stocks. Current paragraph 
(e)(3)(vi)--OY and foreign fishing, was redesignated (e)(3)(v). Current 
paragraphs (e)(3)(vi)(A)-(C), were redesignated (e)(3)(v)(C)-(E), 
respectively. Paragraph (f)--Acceptable biological catch, annual catch 
limits, and annual catch targets, is revised and retitled Acceptable 
biological catch and annual catch limits. Paragraph (f)(1)--
Introduction, was deleted. Current paragraph (f)(2)--Definitions and 
(f)(2)(i), are redesignated (f)(1) and (f)(1)(i), respectively. Current 
paragraph (f)(2)(ii)--Acceptable biological catch (ABC), is revised and 
redesignated (f)(1)(ii). Current paragraph (f)(2)(iii)--ABC control 
rule, is deleted. Current paragraph (f)(2)(iv)--Annual catch limit 
(ACL), is revised and redesignated (f)(1)(iii). Current paragraphs 
(f)(2)(v)--Annual catch target (ACT) and (f)(2)(vi)--ACT control rule, 
were deleted and the content was moved to paragraph (g)(4). New 
paragraphs (f)(1)(iv)--Control rule, (f)(1)(v)--Management uncertainty, 
and (f)(1)(vi)--Scientific uncertainty, were added because the terms 
were not

[[Page 2799]]

clearly defined in the current guidelines. Current paragraphs (f)(3)--
Specification of ABC and (f)(3)(ii) were revised. Current paragraph 
(f)(4)--ABC control rule, was revised and redesignated (f)(2)(i)-(ii). 
Paragraphs (f)(2)(ii)(A)&(B) were added to describe phase-in and carry-
over ABC control rules. Current paragraph (f)(5)--Setting the annual 
catch limit, was redesignated (f)(4). Current paragraphs (f)(5)(i)-
(iii) were revised and redesignated (f)(4)(i)-(iii), respectively. A 
new paragraph (f)(4)(iv)--Relationship between OY and the ACL 
framework, was added. Current paragraphs (f)(6)--ACT control rule, 
(f)(6)(i)--Determining management uncertainty and (f)(6)(ii)--
Establishing tiers and corresponding ACT control rules, were revised 
and redesignated (g)(4)--Annual catch target (ACT) and ACT control 
rule. Paragraph (f)(7) was deleted. Paragraph (g)--Accountability 
measures, was revised and retitled Accountability measures (AMs). 
Paragraph (g)(1)--Introduction, and (g)(2)--Inseason AMs were revised. 
Paragraph (g)(3)--AMs for when the ACL is exceeded, was revised and 
portions therein were redesignated to a new paragraph (g)(7)--
Performance standard. Current paragraphs (g)(4)--AMs based on multi-
year average data, was revised and redesignated (g)(5). Current 
paragraph (g)(5)--AMs for State-Federal Fisheries, was redesignated 
(g)(6). Paragraph (h)--Establishing ACL mechanisms and AMs in FMPs, was 
revised. Current paragraphs (h)(1)(i)-(ii) were deleted. Current 
paragraphs (h)(1)(ii) and (h)(1)(iv) were deleted and incorporated in 
(g)(1) and (f)(4)(ii), respectively. Current paragraph (h)(2)--
Exceptions from ACL and AM requirements and (h)(2)(ii)--International 
fishery agreements, were redesignated (h)(1) and (h)(1)(ii), 
respectively. Current paragraphs (h)(2)(i)--Life cycle and (h)(3)--
Flexibility in application of NS1 guidelines, were revised and 
redesignated (h)(1)(i) and (h)(2), respectively. Paragraphs (i)--
Fisheries data and (i)(3), were revised. Paragraph (j)--Council actions 
to address overfishing and rebuilding for stocks and stock complex in 
the fishery, was retitled Council actions to address overfishing and 
rebuilding for stocks and stock complexes. Paragraph (j)(2)(i)--If a 
stock or stock complex is undergoing overfishing, was revised. 
Paragraphs (j)(2)(i)(A)-(C), were deleted. Paragraph (j)(2)(ii)--If a 
stock or stock complex is overfished or approaching an overfished 
condition, was revised. Paragraph (j)(3)(i)(A), was revised. Paragraph 
(j)(3)(i)(B), was deleted but portions therein were revised and 
incorporated into paragraph (j)(3)(i)(A). Current paragraph 
(j)(3)(i)(C), was revised and redesignated (j)(3)(i)(B)(1). Current 
paragraph (j)(3)(i)(D), was revised and redesignated (j)(3)(i)(B)(2), 
(j)(3)(i)(B)(2)(i)-(iii) and (j)(3)(i)(B)(3). Current paragraph 
(j)(3)(i)(E), is revised and redesignated (j)(3)(i)(C)--Target time to 
rebuilding a stock or stock complex (Ttarget). Paragraph (j)(3)(ii), 
was revised and redesignated (j)(4)--Adequate progress, and (j)(4)(i)-
(ii). Current paragraphs (j)(3)(iii) and (j)(3)(iv), were redesignated 
(j)(3)(ii) and (j)(3)(iii), respectively. Current paragraph (j)(4)--
Emergency actions and interim measures, was revised and redesignated 
(j)(4). Current paragraphs (j)(4)(i) and (j)(4)(ii), were deleted. New 
paragraphs (j)(5)--Discontinuing a rebuilding plan based on new 
scientific information, (j)(5)(i)-(ii), and (j)(6)--Management measures 
for depleted stocks, were added.
    In the proposed revisions to Sec.  600.320, paragraphs (d)--
Management unit and (d)(1)--Basis, were revised. Paragraphs (d)(1)(i)-
(vi), were deleted. Paragraphs (d)(2)--Conservation and management 
measures, and (e)--Analysis were revised.
    In the proposed revisions to Sec.  600.340, paragraphs (b)--
Necessity of Federal management, (b)(1)--General, and (b)(2)--Criteria 
were deleted. Current paragraphs (b)(2)(i)-(iii), were revised and 
redesignated paragraphs (c)(2)(vi), (c)(2)(iii), and (c)(2)(x), 
respectively, in Sec.  600.305. Current paragraphs (b)(2)(iv)-(vi) were 
redesignated paragraphs (c)(2)(vii)-(ix) in Sec.  600.305. Paragraph 
(b)(2)(vii), was deleted. Current paragraphs (c)--Alternative 
management measures, and (d)--Analysis, were redesignated (b)--
Alternative management measures, and (c)--Analysis.

XVII. References Cited

    A complete list of all the references cited in this final action is 
available online at: http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html or upon request from Wesley 
Patrick (see FOR FURTHER INFORMATION CONTACT).

XIII. Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Act, and other applicable law, subject to further 
consideration after public comment.
    This rule has been determined to be significant for purposes of 
Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for this determination is as follows.
    The purpose of the rule is to facilitate compliance with 
requirements of the Magnuson-Stevens Act to end and prevent 
overfishing, rebuild overfished stocks, and achieve optimum yield (OY) 
without establishing new requirements or requiring the Councils or 
Secretary to revise their Fishery Management Plans (FMPs). The 
objectives of the rule are to improve and clarify the guidance within 
the NS guidelines, address concerns that have been raised during the 
implementation of annual catch limits (ACLs) and accountability 
measures (AMs), and provide flexibility to address fishery management 
issues. Pursuant to MSA section 301(b), the NS guidelines are advisory 
in nature and do not have the force and effect of law. The Magnuson-
Stevens Act serves as the legal basis for the rule.
    Small entities include ``small businesses,'' ``small 
organizations,'' and ``small governmental jurisdictions.'' The Small 
Business Administration has established size standards for all major 
industry sectors in the U.S. including commercial finfish harvesters 
(NAICS code 114111), commercial shellfish harvesters (NAICS code 
114112), other commercial marine harvesters (NAICS code 114119), for-
hire businesses (NAICS code 487210), marinas (NAICS code 713930), 
seafood dealers/wholesalers (NAICS code 424460), and seafood processors 
(NAICS code 311710). A business primarily involved in finfish 
harvesting is classified as a small business if it is independently 
owned and operated, is not dominant in its field of operation 
(including its affiliates), and has combined annual receipts not in 
excess of $20.5 million for all its affiliated operations worldwide. 
For commercial shellfish harvesters, the other qualifiers apply and the 
receipts threshold is $5.5 million. For other commercial marine 
harvesters, for-hire businesses, and marinas, the other qualifiers 
apply and the receipts threshold is $7.5 million. A business primarily 
involved in seafood processing is classified as a small business if it 
is independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual 
employment not in excess of 500 employees for all its affiliated 
operations worldwide. For seafood

[[Page 2800]]

dealers/wholesalers, the other qualifiers apply and the employment 
threshold is 100 employees. A small organization is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. Small governmental jurisdictions are governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts, with populations of less than 50,000.
    The actions in this rule make technical changes to the general 
section to the National Standard Guidelines, and the Guidelines for 
National Standard 1 (NS 1), National Standard 3 (NS 3), and National 
Standard 7 (NS 7). Specifically, this rule would: (1) Revise the 
general section of the NS guidelines regarding the importance of 
identifying fishery management objectives within an FMP, (2) 
consolidate guidance on identifying whether stocks need conservation 
and management, (3) revise the guidelines to provide flexibility in 
managing data limited stocks, (4) revise the guidance on stock 
complexes to encourage the use of complexes and indicator stocks, (5) 
revise the guidelines to promote the use of aggregate MSY estimates, 
(6) revise the guidelines by adding a definition for a depleted stock, 
(7) revise the guidelines to allow multi-year overfishing 
determinations, methods to phase-in adjustments to ABC, and methods to 
carry-over of all or some of an unused portion of the ACL, (8) revise 
guidance on OY to improve clarity and describe the role of OY under the 
ACL framework, (9) revise the acceptable biological catch (ABC) 
guidance, (10) revise guidance on AMs, (11) revise guidance on 
establishing ACL and AM mechanisms, and (12) provide flexibility in 
rebuilding stocks.
    Because the proposed changes to the guidelines do not create new 
requirements and thus are technical in nature, this rule would allow 
but does not require the Councils or the Secretary to make changes to 
their FMPs. Further, 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 commercial harvesting businesses, for-hire 
businesses, marinas, seafood dealers/wholesalers, or seafood processors 
are expected to result from this action. Therefore, no small entities 
would be directly affected by this rule.
    As a result of the information above, a reduction in profits for a 
substantial number of small entities is not expected. Because this 
rule, if implemented, is not expected to have a significant adverse 
economic effect on the profits of a substantial number of small 
entities, an initial regulatory flexibility analysis is not required 
and none has been prepared.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. This rule would not establish any new reporting or record-
keeping requirements.

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: January 12, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Services, National Marine 
Fisheries Service.

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

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

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

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. Section 600.305 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, and other applicable law. The 
Secretary has an obligation under section 301(b) of the Magnuson-
Stevens Act 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 in substantial compliance with the guidelines, the Magnuson-
Stevens Act, and other applicable law must be approved.
    (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 objectives of the fishery 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. 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. In addition, the following non-exhaustive 
list of factors should be used by a Council when deciding whether 
stocks require conservation and management:
    (i) The stock is an important component of the marine environment.

[[Page 2801]]

    (ii) The stock is caught by the fishery.
    (iii) Whether an FMP can improve or maintain the condition of the 
stocks.
    (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 and 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 could be or is already 
adequately managed by states, by state/Federal programs, by Federal 
regulations pursuant to other FMPs or international commissions, or by 
industry self-regulation, consistent with the policies and standards of 
the Magnuson-Stevens Act.
    (2) When considering adding a new stock to an FMP or keeping an 
existing stock within an FMP, Councils should prepare a thorough 
analysis of the factors, and any additional considerations that may be 
relevant to the particular stock. No single factor is dispositive, but 
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 
including 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). Regardless of whether any of the 
first nine factors indicates a conservation and management need, a 
Council should consider factor in paragraph (c)(1)(x) of this section 
before deciding to include or maintain 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. See, e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3). In 
evaluating the above criteria, 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 be addressed by Federal 
management.
    (3) Councils may choose to identify stocks within their FMPs as 
ecosystem component (EC) species (see Sec.  600.310(d)(1)) if they do 
not require conservation and management. EC species may be identified 
at the species or stock level, and may be grouped into complexes. 
Consistent with National Standard 9, Magnuson-Stevens Fishery 
Conservation and Management Act (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, or for other reasons.
    (4) 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 are 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.
    (5) 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 a FMP, added to or removed from an existing FMP, or added to a 
new FMP, through a 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 SOPP or 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 ``economic discards'' as 
defined under Magnuson-Stevens Act section 3(9).
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 that require, or are in need of, conservation and 
management;
    (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 a

[[Page 2802]]

fishery management plan's (FMP) 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 should work 
in conjunction with the SSC. 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 or overfished, 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-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., ecosystem component species or stocks 
that the fishery interacts with but are managed primarily under another 
FMP, see Sec.  600.305(c)(3) and (4)) do not require ACLs, other 
reference points, and 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

[[Page 2803]]

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) of this section).
    (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, common 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, 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.
    (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 mortality (F) 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) Depleted. An overfished stock or stock complex is considered 
depleted when it has not experienced overfishing at any point over a 
period of two generation times of the stock and its biomass has 
declined below MSST, or when a rebuilding stock or stock complex has 
reached its targeted time to rebuild and the stock's biomass has shown 
no significant signs of growth despite being fished at or below catch 
levels that are consistent with the rebuilding plan throughout that 
period (see paragraphs (j)(3)(i)(B)(2)(i) and (j)(6) of this section).
    (G) 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.
    (H) 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

[[Page 2804]]

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 describe the 
method used to determine the overfishing status for each stock or stock 
complex. For domestically-managed stocks or stocks complexes, one of 
the following methods should be used:
    (1) Fishing Mortality Rate Exceeds MFMT. Exceeding the MFMT for a 
period of 1 year or exceeding a multi-year mortality reference point 
constitutes overfishing.
    (2) Catch Exceeds the OFL. Exceeding the annual OFL for 1 year or 
exceeding a multi-year catch reference point constitutes overfishing.
    (3) Use of Multi-Year Periods To Determine Overfishing Status. A 
multi-year period may not exceed three years. A Council may develop 
overfishing SDCs that use a multi-year approach, so long as it provides 
a comprehensive analysis based on the best scientific information 
available that supports that the approach will not jeopardize the 
capacity of the fishery to produce MSY on a continuing basis. A Council 
should identify in its FMP or FMP amendment circumstances in which the 
multi-year approach should not be used (e.g., because the capacity of 
the stock to produce MSY over the longer term could be jeopardized).
    (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 time needed to rebuild to Bmsy 
and associated social and/or economic impacts on the fishery, 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 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;
    (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 optimum yield 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 management 
measures prove unenforceable--or too restrictive, or not rigorous 
enough to prevent overfishing while achieving on a continuing basis 
OY--they should be modified; an alternative is to reexamine the 
adequacy of the OY specification to ensure that the dual requirements 
of NS1 are met (preventing overfishing while achieving, on a continuing 
basis, OY).
    (iii) Assessing OY. An FMP must contain an assessment and 
specification of OY, which documents how the OY

[[Page 2805]]

will produce the greatest benefits to the nation and prevent 
overfishing. The assessment should include a summary of information 
utilized in making such specification, consistent with requirements of 
section 303(a)(3) of the Magnuson-Stevens Act and consideration of the 
economic, social, and ecological factors relevant to 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 Indian 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 ecosystem 
component 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 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 consistent with 
achieving OY.
    (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.

[[Page 2806]]

    (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 the Council's risk 
policy. 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 directed fishing would 
not be allowed. When scientific uncertainty cannot be directly 
calculated, such as when proxies are used, then a proxy for the 
uncertainty itself 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; in which case, 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.
    (A) Phase-in ABC control rules. Large changes in catch limits due 
to new 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.
    (B) Carry-over ABC control rules. An ABC control rule may include 
provisions for carry-over of some of the unused portion of the ACL 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 consider scientific uncertainty consistent with the 
Council's risk policy. In cases where an ACL has been reduced from the 
ABC, carry-over provisions may not require the ABC to be re-specified 
if the ACL can be adjusted upwards so that it is equal to or below the 
existing ABC.
    (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 regarding implementation of the ABC control rule. 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 in a year.
    (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.

[[Page 2807]]

    (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) 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 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 on a continuing basis OY. 
The ABC is an upper limit on catch and is designed to prevent 
overfishing. 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 OY 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 OY considerations (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 ``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 
or bycatch occur, and the catch or bycatch 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 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,

[[Page 2808]]

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 has a life cycle of approximately 1 year 
unless the Secretary has determined the fishery is subject to 
overfishing of that species'' (as described in Magnuson-Stevens Act 
section 303 note). 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'' 
(Magnuson-Stevens Act section 303 note). 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 is 
concentrated in one year), and stocks for which data are not available 
either to set reference points based on MSY or MSY proxies, or 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 (i.e., 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 it is determined 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.
    (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.

[[Page 2809]]

    (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) When selecting a method for determining Tmax, a 
Council must provide a rationale for its decision based on the best 
scientific information available.
    (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 in as short a time as possible, while 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 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 are exceeded, and AMs are not correcting the 
operational issue that caused the overage and 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 ending overfishing and rebuilding.
    (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 Secretary 
finds 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 all of the 
following criteria are met:
    (i) 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
    (ii) The biomass of the stock is not currently below the MSST.
    (6) Management measures for depleted stocks. In cases where an 
overfished stock or stock complex is considered to be ``depleted'' (see 
paragraph (e)(2)(i)(F) of this section), a Council may identify in its 
rebuilding plan additional management measures or initiatives that 
could improve the status of the stock, such as: reevaluating SDCs to 
determine if they are representative of current environmental 
conditions, recommending the restoration of habitat and other 
ameliorative programs, identifying research priorities to improve the 
Councils understanding of the impediments to rebuilding, or partnering 
with Federal and state agencies to address non-fishing related impacts.
    (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

[[Page 2810]]

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) Relationship of National Standard 1 to other national 
standards--General. National Standards 2 through 10 provide further 
requirements for conservation and management measures in FMPs (see MSA 
section 301(a)), and guidelines for these standards are provided in 
Sec. Sec.  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 paragraph (e)(1)(v)(B) of this 
section). 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 paragraphs (e)(1)(ii) and (iii) of this section).
    (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. Calculation of OY as 
reduced from 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.
    (m) 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 characteristic 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 not be overly constrained by political 
boundaries. Wherever practicable, an FMP should seek to manage 
interrelated stocks of fish.
    (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. The Secretary designates 
which Council(s) will prepare the FMP (see section 304(f) of the 
Magnuson-Stevens Act).
    (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. Stocks in the fishery management unit are 
considered to be in need of conservation and management (see Sec.  
600.305(c)).

[[Page 2811]]

    (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. 2015-00586 Filed 1-15-15; 4:15 pm]
BILLING CODE 3510-22-P