[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 3178-3213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-636]



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Part III





Department of Commerce





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 National Oceanic and Atmospheric Administration



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50 CFR Part 600



Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard 
Guidelines; Final Rule

  Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 070717348-81398-03]
RIN 0648-AV60


Magnuson-Stevens Act Provisions; Annual Catch Limits; National 
Standard Guidelines

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

ACTION: Final rule.

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SUMMARY: This final action amends the guidelines for National Standard 
1 (NS1) of the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA). This action is necessary to provide guidance on how to comply 
with new annual catch limit (ACL) and accountability measure (AM) 
requirements for ending overfishing of fisheries managed by Federal 
fishery management plans (FMPs). It also clarifies the relationship 
between ACLs, acceptable biological catch (ABC), maximum sustainable 
yield (MSY), optimum yield (OY), and other applicable reference points. 
This action is necessary to facilitate compliance with requirements of 
the Magnuson-Stevens Act to end and prevent overfishing, rebuild 
overfished stocks and achieve OY.

DATES: Effective February 17, 2009.

ADDRESSES: Copies of the Regulatory Impact Review (RIR)/Regulatory 
Flexibility Act Analysis (RFAA) can be obtained from Mark R. Millikin, 
National Marine Fisheries Service, 1315-East-West Highway, Room 13357, 
Silver Spring, Maryland 20910. The RIR/RFAA document is also available 
via the internet at http://www.nmfs.noaa.gov/msa2007/catchlimits.htm. 
Public comments that were received can be viewed at the Federal e-
Rulemaking portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mark R. Millikin by phone at 301-713-
2341, by FAX at 301-713-1193, or by e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of Revisions to the NS1 Guidelines
II. Major Components of the Proposed Action
III. Major Changes Made in the Final Action
IV. Overview of the Major Aspects of the Final Action
    A. Stocks in the Fishery and Ecosystem Component Species
    B. Definition Framework for OFL, ABC, and ACL
    C. Accountability Measures (AMs)
    D. SSC Recommendations and Process
    E. Management Uncertainty and Scientific Uncertainty
V. Response to Comments
VI. Changes from Proposed Action
VII. References Cited
VIII. Classification

I. Overview of Revisions to the NS1 Guidelines

    The MSA serves as the chief authority for fisheries management in 
the U.S. Exclusive Economic Zone (EEZ). The Act provides for ten 
national standards (NS) for fishery conservation and management, and 
requires that the Secretary establish advisory guidelines based on the 
NS to assist in the development of fishery management plans. Guidelines 
for the NS are codified in subpart D of 50 CFR part 600. NS1 requires 
that conservation and management measures ``shall prevent overfishing 
while achieving, on a continuing basis, the optimum yield from each 
fishery for the United States fishing industry.''
    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA) amended the MSA to include new 
requirements for annual catch limits (ACLs) and accountability measures 
(AMs) and other provisions regarding preventing and ending overfishing 
and rebuilding fisheries. To incorporate these new requirements into 
current NS1 guidance, NMFS initiated a revision of the NS1 guidelines 
in 50 CFR 600.310. NMFS published a notice of intent (NOI) to prepare 
an environmental impact statement (EIS) and commenced a scoping period 
for this action on February 14, 2007 (72 FR 7016), and proposed NS1 
guidelines revisions on June 9, 2008 (73 FR 32526). Further background 
is provided in the above-referenced Federal Register documents and is 
not repeated here. The proposed guidelines provided a description of 
the reasons that overfishing is still occurring and the categories of 
reasons for overfishing likely to be addressed by new MSA requirements 
combined with the NS1 guidelines. The September 30, 2008 NMFS Quarterly 
Report on the Status of U.S. Fisheries indicates that 41 stocks managed 
under Federal FMPs are undergoing overfishing.
    NMFS solicited public comment on the proposed NS1 guidelines 
revisions through September 22, 2008, and during that time, held three 
public meetings, on July 10, 2008 (Silver Spring, Maryland), July 14, 
2008 (Tampa, Florida), and July 24, 2008 (Seattle, Washington), and 
made presentations on the proposed revisions to each of the eight 
Regional Fishery Management Councils (Councils). NMFS received over 
158,000 comments on all aspects of the proposed NS1 guidelines 
revisions. Many of the comment letters were form letters or variations 
on a form letter. In general, the environmental community supported the 
provisions in the proposed action but commented that they needed to be 
strengthened in the final action. Alternatively, comments from the 
fishing industry and some of the Councils said the proposed revisions 
were confusing, too proscriptive or strict, and lacked sufficient 
flexibility.

II. Major Components of the Proposed Action

    Some of the major items covered in the proposed NS1 guidelines 
were: (1) A description of the relationship between MSY, OY, 
overfishing limits (OFL), ABC, ACLs, and annual catch targets (ACT); 
(2) guidance on how to combine the use of ACLs and AMs for a stock to 
prevent overfishing when possible, and adjust ACLs and AMs, if an ACL 
is exceeded; (3) statutory exceptions to requirements for ACLs and AMs 
and flexibility in application of NS1 guidelines; (4) ``stocks in the 
fishery'' and ``ecosystem component species'' classifications; (5) 
replacement of MSY control rules with ABC control rules and replacement 
of OY control rules with ACT control rules; (6) new requirements for 
scientific and statistical committees (SSC); (7) explanation of the 
timeline to prepare new rebuilding plans; (8) revised guidance on how 
to establish rebuilding time targets; (9) advice on action to take at 
the end of a rebuilding period if a stock is not yet rebuilt; and (10) 
exceptions to the requirements to prevent overfishing.

III. Major Changes Made in the Final Action

    The main substantive change in the final action pertains to ACTs. 
NMFS proposed ACT as a required reference point that needed to be 
included in FMPs. The final action retains the concept of an ACT and an 
ACT control rule, but does not require them to be included in FMPs. 
After taking public comment into consideration, NMFS has decided that 
ACTs are better addressed as AMs. The final guidelines provide that: 
``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.''

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    In response to public comment, this final action also clarifies 
text on ecosystem component species, OFL, OY specification, ABC control 
rule and specification, SSC recommendations, the setting of ACLs, 
sector-ACLs, and AMs, and makes minor clarifications to other text. 
Apart from these clarifications, the final action retains the same 
approaches described in the proposed guidelines with regard to: (1) 
Guidance on how to combine the use of ACLs and AMs for a stock to 
prevent overfishing when possible, and adjust ACLs and AMs, if an ACL 
is exceeded; (2) statutory exceptions to requirements for ACLs and AMs 
and flexibility in application of NS1 guidelines; (3) ``stocks in the 
fishery'' and ``ecosystem component species'' classifications; (4) new 
requirements for SSCs; (5) the timeline to prepare new rebuilding 
plans; (6) rebuilding time targets; (7) advice on action to take at the 
end of a rebuilding period if a stock is not yet rebuilt; and (8) 
exceptions to the requirements to prevent overfishing. Further 
explanation of why changes were or were not made is provided in the 
``Response to Comments'' section below. Detail on changes made in the 
codified text is provided in the ``Changes from Proposed Action'' 
section.

IV. Overview of the Major Aspects of the Final Action

A. Stocks in the Fishery and Ecosystem Component Species

    The proposed NS1 guidelines included suggested classifications of 
``stocks in the fishery'' and ``ecosystem component (EC) species.'' See 
Figure 1 for diagram of classifications. Public comments reflected 
confusion about this proposal, so NMFS has clarified its general intent 
with regard to these classifications. More detailed responses to 
comments on this issue are provided later in this document.
    The classifications in the NS1 guidelines are intended to reflect 
how FMPs have described ``fisheries,'' and to provide a helpful 
framework for thinking about how FMPs have incorporated and may 
continue to incorporate ecosystem considerations. To that end, the 
proposed NS1 guidelines attempted to describe the fact that FMPs 
typically include certain target species, and sometimes certain non-
target species, that the Councils and/or the Secretary believed 
required conservation and management. In some FMPs, Councils have taken 
a broader approach and included hundreds of species, many of which may 
or may not require conservation and management but could be relevant in 
trying to further ecosystem management in the fishery.
    NMFS wants to encourage ecosystem approaches to management, thus it 
proposed the EC species as a possible classification a Council or the 
Secretary could--but is not required to--consider. The final NS1 
guidelines do not require a Council or the Secretary to include all 
target and non-target species as ``stocks in the fishery,'' do not 
mandate use of the EC species category, and do not require inclusion of 
particular species in an FMP. The decision of whether conservation and 
management is needed for a fishery and how that fishery should be 
defined remains within the authority and discretion of the relevant 
Council or the Secretary, as appropriate. NMFS presumes that stocks or 
stock complexes currently listed in an FMP are ``stocks in the 
fishery,'' unless the FMP is amended to explicitly indicate that the EC 
species category is being used. ``Stocks in the fishery'' need status 
determination criteria, other reference points, ACL mechanisms and AMs; 
EC species would not need them. NMFS recognizes the confusion caused by 
wording in the proposed action and has revised the final action to be 
more clear on these points.
[GRAPHIC] [TIFF OMITTED] TR16JA09.000


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 B. Definition Framework for OFL, ABC, and ACL

    The MSRA does not define ACLs, AMs, and ABC, so NMFS proposed 
definitions for these terms in the proposed action. NMFS also proposed 
definitions for the terms OFL and ACT because it felt that they would 
be useful tools in helping ensure that ACLs are not exceeded and 
overfishing does not occur. The proposed NS1 guidelines described the 
relationship between the terms as: OFL >= ABC >= ACL >= ACT. In 
response to public comment, the final action revises the definition 
framework as: OFL >= ABC >= ACL. As described above, NMFS has retained 
ACT and the ACT control rule in the NS1 guidelines, but believes that 
they are more appropriate as AMs. NMFS believes ACTs could prove useful 
as management tools in fisheries with poor management control over 
catch (i.e., that frequently exceed catch targets).
    NMFS received many comments on the definition framework, and some 
commenters stated that it should be revised as: OFL > ABC > ACL. Having 
considered public comment and reconsidered this issue, NMFS has decided 
to keep the framework as: OFL >= ABC >= ACL. However, NMFS believes 
there are few fisheries where setting OFL, ABC, and ACL all equal to 
each other would be appropriate. While the final action allows ABC 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. NMFS 
has added a provision to the final NS1 guidelines stating that, 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. See figure 2 for an illustration of the relationship 
between OFL, ABC, ACL and ACT. Further detail on the definition 
framework and associated issues is provided in the ``Response to 
Comments'' section below.
[GRAPHIC] [TIFF OMITTED] TR16JA09.001

C. Accountability Measures (AMs)

    Another major aspect of the revised NS1 guidelines is the inclusion 
of guidance on AMs. 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. NMFS has identified two categories 
of AMs, inseason AMs and AMs for when the ACL is exceeded. As described 
above, ACTs are recommended in the system of AMs so that ACLs are not 
exceeded. As a 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 re-evaluated, and modified if 
necessary, to improve its performance and effectiveness.

D. SSC Recommendations and Process

    Section 302(h)(6) of the MSA provides that each Council is required 
to ``develop annual catch limits for each of its managed fisheries that 
may not exceed the fishing level recommendations of its scientific and 
statistical committee or the peer review process established under 
subsection (g).'' MSA did not define ``fishing level recommendations,'' 
but in section 302(g)(1)(B), stated that an SSC shall provide 
``recommendations for acceptable biological catch, preventing 
overfishing, maximum sustainable yield, and achieving rebuilding 
targets,'' and other scientific advice.

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    NMFS received a variety of public comments regarding interpretation 
of ``fishing level recommendations.'' Some commenters felt that the 
SSC's ``fishing level recommendations'' that should constrain ACLs is 
the overfishing limit (OFL); other commenters stated that ``fishing 
level recommendations'' should be equated with MSY. NMFS does not 
believe that MSA requires ``fishing level recommendations'' to be 
equated to the OFL or MSY. As described above, the MSA specifies a 
number of things that SSCs recommend to their Councils. Of all of these 
things, ABC is the most directly relevant to ACL, as both ABC and ACL 
are levels of annual catch.
    The preamble to the proposed NS1 guidelines recommended that the 
Councils could establish a process in their Statement of Organization, 
Practices and Procedures (SOPPs) for: establishing an ABC control rule, 
applying the ABC control rule (i.e., calculating the ABC), and 
reviewing the resulting ABC. NMFS believes that this may have caused 
confusion and that some commenters misunderstood the intent of this 
recommendation. NMFS received comment regarding inclusion of the ABC 
control rule in the SOPPs, and wants to clarify that the actual ABC 
control rule should be described in the FMP. NMFS believes it is 
important to understand how the Councils, SSC, and optional peer review 
process work together to implement the provisions of the MSA and 
therefore recommends that the description of the roles and 
responsibilities of the Council, SSC, and optional peer review process 
be included in the SOPPs, FMP, or some other public document. The SSC 
recommends the ABC to the Council whether or not a peer review process 
is utilized.

E. Management Uncertainty and Scientific Uncertainty

    A major aspect of the revised NS1 guidelines is the concept of 
incorporating management and scientific uncertainty in using ACLs and 
AMs. Management uncertainty occurs because of the lack of sufficient 
information about catch (e.g., late reporting, underreporting and 
misreporting of landings or bycatch). Recreational fisheries generally 
have late reporting because of the method of surveying catches and the 
lack of an ability for managers to interview only marine recreational 
anglers. NMFS is addressing management uncertainty in the recreational 
fishery by implementing a national registry of recreational fishers in 
the Exclusive Economic Zone (EEZ) (see proposed rule published in the 
Federal Register (73 FR 33381, June 12, 2008)) and a Marine 
Recreational Implementation Program that will, in part, revise the 
sampling design of NMFS's marine recreational survey for fishing 
activity.
    Management uncertainty also exists because of the lack of 
management precision in many fisheries due to lack of inseason 
fisheries landings data, lack of inseason closure authority, or the 
lack of sufficient inseason management in some FMPs when inseason 
fisheries data are available. The final NS1 guidelines revisions 
provide that FMPs should contain inseason closure authority that gives 
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 a fishery is necessary 
to prevent overfishing. NMFS believes that such closure authority will 
enhance efforts to prevent overfishing. Councils can derive some idea 
of their overall extent of management uncertainty by comparing past 
actual catches to target catches to evaluate the magnitude and 
frequency of differences between actual catch and target catch, and how 
often actual catch exceeded the overfishing limit for a stock.
    Scientific uncertainty includes uncertainty around the estimate of 
a stock's biomass and its maximum fishing mortality threshold (MFMT); 
therefore, any estimate of OFL has uncertainty. Stock assessment models 
have various sources of scientific uncertainty associated with them and 
many assessments have shown a repeating pattern that the previous 
assessment overestimated near-future biomass, and underestimated near-
future fishing mortality rates (i.e., called retrospective patterns).

V. Response to Comments

    NMFS received many comments about the proposed definition framework 
(OFL >= ABC >= ACL >= ACT), especially regarding the ACT and ACT 
control rule. Some commenters suggested that the ACT and ACT control 
rule should not be required, while others supported their use. NMFS 
also received comments expressing: That the proposed terminology should 
not be required; OFL should always be greater than ABC; and concern 
that too many factors (i.e., management and scientific uncertainty, and 
ACT) will reduce future target catches unnecessarily. Some commenters 
felt additional emphasis should be placed on Tmin in the 
rebuilding provisions. Councils, for the most part, are very concerned 
about the challenge of implementing ACLs and AMs by 2010, and 2011, as 
required. Some commenters felt the international fisheries exception to 
ACLs is too broad. Several commenters stated that an EIS should have 
been or should be prepared and two commenters stated an Initial 
Regulatory Flexibility Analysis under the Regulatory Flexibility Act 
should be prepared. NMFS also received many comments regarding the 
mixed-stock exception.
    NMFS received many comments expressing support for the proposed 
revisions to the Magnuson-Stevens Act National Standard 1 guidelines. 
Comments included: This good faith effort to implement Congress' intent 
will work to end overfishing and protect the marine ecosystem; these 
guidelines reduce the risk of overfishing and will work to rebuild 
depleted stocks through the use of science based annual catch limits, 
accountability measures, `buffers' for scientific and management 
uncertainty, and protections for weak fish stocks; and this solid 
framework will ensure not only healthy stocks but healthy fisheries.
    Comment 1: Several comments were received regarding NMFS's decision 
to not prepare an environmental impact statement or environmental 
assessment for this action. Some supported the decision, while others 
opposed it and believed that a categorical exclusion under the National 
Environmental Policy Act (NEPA) is not appropriate.
    Response: NMFS believes a categorical exclusion is appropriate for 
this action. Under Sec. Sec.  5.05 and 6.03c.3(i) of NOAA's 
Administrative Order (NAO) 216-6, the following types of actions may be 
categorically excluded from the requirement to prepare an EA or EIS: 
``* * * policy directives, regulations and guidelines of an 
administrative, financial, legal, technical or procedural nature, or 
the environmental effects of which are too broad, speculative or 
conjectural to lend themselves to meaningful analysis and will be 
subject later to the NEPA process, either collectively or case-by-case. 
* * *''
    In this instance, a Categorical Exclusion is appropriate for this 
action, because NMFS cannot meaningfully analyze potential 
environmental, economic, and social impacts at this stage. This action 
revises NS1 guidelines, which are advisory only; MSA provides that NS 
guidelines ``shall not have the force and effect of law.'' MSA section 
301(b). See Tutein v. Daley, 43 F. Supp.2d 113, 121-122 (D. Mass. 1999) 
(reaffirming that the guidelines are only advisory and holding that the 
national standards are not subject to judicial review under the

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MSA). The NS1 guidelines are intended to provide broad guidance on how 
to comply with new statutory requirements. While the guidelines explain 
in detail how different concepts, such as ACL, ABC, MSY, and OY, should 
be addressed, the guidelines do not mandate specific management 
measures for any fishery. It is not clear what Councils will or will 
not do in response to the NS1 guidelines. Thus, it is not possible to 
predict any concrete impacts on the human environment without the 
necessary intervening actions of the Councils, e.g., consideration of 
best available scientific information and development of specific 
conservation and management measures that may be needed based on that 
information. Any analysis of potential impacts would be speculative at 
best.
    None of the exceptions for Categorical Exclusions provided by Sec.  
5.05c of NAO 216-6 apply. While there is controversy concerning the NS1 
guidelines revisions, the controversy is primarily related to different 
views on how new MSA requirements should be interpreted, rather than 
potential environmental consequences. The NS1 guidelines would not, in 
themselves, have uncertain environmental impacts, unique or unknown 
risks, or cumulatively significant or adverse effects upon endangered 
or threatened species or their habitats. Moreover, this action would 
not establish a precedent or decision in principle about future 
proposals. As noted above, the guidelines provide broad guidance on how 
to address statutory requirements but do not mandate specific 
management actions.
    Comment 2: One commenter criticized NMFS' approach as placing 
unnecessary burden on the Councils to conduct the NEPA analysis.
    Response: No change was made. One of the Councils' roles is to 
develop conservation and management measures that are necessary and 
appropriate for management of fisheries under their authority. NMFS 
believes that Councils should continue to have the discretion to 
determine what measures may be needed in each fishery and what 
alternatives should be considered and analyzed as part of the fishery 
management planning process. Councils routinely incorporate NEPA into 
this process, and the actions to implement ACLs in specific fisheries 
must address the NEPA requirements, regardless of the level of analysis 
conducted for the guidelines. Therefore, having reviewed the issue 
again, NMFS continues to find that a categorical exclusion is 
appropriate for this action.
    Comment 3: Two commenters stated that NMFS should have prepared an 
initial regulatory flexibility analysis under the RFA for this action. 
They said it was not appropriate to certify under the RFA because in 
their opinion, this action will have significant economic impacts on a 
substantial number of small entities.
    Response: No change was made. The final NS1 guidelines will not 
have significant economic impacts on a substantial number of small 
entities. The guidelines are advisory only; they provide general 
guidance on how to address new overfishing, rebuilding, and related 
requirements under the MSA. Pursuant to MSA section 301(b), the 
guidelines do not have the force and effect of law. When the Councils/
Secretary apply the guidelines to individual fisheries and implement 
ACL and AM mechanisms, they will develop specific measures in their 
FMPs and be able to analyze how the new measures compare with the 
status quo (e.g., annual measures before the MSRA was signed into law 
and the NS1 guidelines were revised) with respect to economic impacts 
on small entities. At this point, any analysis of impacts on small 
entities across the range of diverse, Federally-managed fisheries would 
be highly conjectural. Therefore, a certification is appropriate.
    Comment 4: Several comments were received that the guidelines are 
too complex and they contain guidance for things, such as the ACT that 
are not required by the MSA. They suggested removing these provisions 
from the guidance, or only providing guidance for terms specifically 
mentioned in the statute.
    Response: NMFS agrees that the guidelines can appear complex. 
However, the purpose of the guidelines is not simply to regurgitate 
statutory provisions, rather it is to provide guidance on how to meet 
the requirements of the statute. As discussed in other comments and 
responses, MSRA includes new, undefined terms (ABC and ACL), while 
retaining other long-standing provisions, such as the national 
standards. In considering how to understand new provisions in light of 
existing ones, NMFS considered different ways to interpret language in 
the MSA, practical challenges in fisheries management including 
scientific and management uncertainty, the fact that there are 
differences in how fisheries operate, and public comment on proposed 
approaches in the NS1 guidelines. MSA does not preclude NMFS from 
including additional terminology or explanations in the NS1 guidelines, 
as needed, in order to facilitate understanding and effective 
implementation of MSA mandates. In the case of NS1, conservation and 
management measures must prevent overfishing while achieving, on a 
continuing basis, the optimum yield. This is inherently challenging 
because preventing overfishing requires that harvest of fish be 
limited, while achieving OY requires that harvest of fish occur. In 
developing the guidelines, NMFS identified the reasons that overfishing 
was still occurring in about 20 percent of U.S. Fisheries, and wrote 
the guidelines to address the primary causes. These include:
    (1) Setting OY too close to MSY,
    (2) Failure to consider all sources of fishing mortality,
    (3) Failure to adequately consider both uncertainty in the 
reference points provided by stock assessments (scientific uncertainty) 
and uncertainty in management control of the actual catch (management 
uncertainty),
    (4) Failure to utilize best available information from the fishery 
for inseason management, and
    (5) Failure to identify and correct management problems quickly.
    NMFS believes that the guidelines address these causes and 
appropriately provide practical guidance on how to address them, while 
providing sufficient flexibility to acknowledge the differences in 
fisheries. NMFS believes that Congress intended that the ACLs be 
effective in ending and preventing overfishing. Simply amending the 
FMPs to include ACL provisions is not enough--the actual performance of 
the fishery is what ultimately matters. NMFS believes that all of the 
provisions in the guidelines are essential to achieving that goal, and 
that if the guidelines are followed, most of the problems that have led 
to continued overfishing will be addressed. NMFS has made changes in 
the final action to clarify the guidelines and simplify the provisions 
therein, to the extent possible. One specific change is that the final 
guidelines do not require that ACT always be established. Instead, NMFS 
describes how catch targets, such as ACT, would be used in a system of 
AMs in order to meet the requirements of NS1 to prevent overfishing and 
achieve OY. More details on these revisions are covered in responses 
pertaining to comments 8, 32, 44, 45, and 48.
    Comment 5: Several commenters stated that Councils' workloads and 
the delay of final NS1 guidelines will result in some Councils having 
great difficulty or not being able to develop ACLs and AMs for 
overfishing stocks by 2010, and all other stocks by 2011.

[[Page 3183]]

    Response: The requirements in MSA related to 2010 and 2011 are 
statutory; therefore ACLs and AMs need to be in place for those fishing 
years such that overfishing does not occur. NMFS understands that 
initial ACL measures for some fisheries have been developed before the 
NS1 guidelines were finalized in order to meet the statutory deadline, 
and thus may not be fully consistent with the guidelines. ACL 
mechanisms developed before the final guidelines should be reviewed and 
eventually revised consistent with the guidelines.
    Comment 6: Several commenters stated that certain existing FMPs and 
processes are already in compliance with the ACL and AM provisions of 
the MSA and consistent with the proposed guidelines. One commenter 
stated that NMFS should bear the burden of determining whether current 
processes are inconsistent with the MSA, and indicate what action 
Councils should take. Another commenter stated that Congress intended 
Total Allowable Catch (TAC), which is already used in some fisheries, 
to be considered to be an ACL. NMFS also received comments stating that 
certain terms have had longstanding use under FMPs, and changing the 
terminology could cause too much confusion.
    Response: NMFS believes that some existing FMPs may be found to 
need little or no modification in order to be found to be consistent 
with the MSA and NS1 guidelines. In general, these are fisheries where 
catch limits are established and the fishery is managed so that the 
limits are not exceeded, and where overfishing is not occurring. NMFS 
agrees that, in some fisheries, the TAC system currently used may meet 
the requirements of an ACL. However, there are a wide variety of 
fisheries that use the term TAC, and while some treat it as a true 
limit, others treat it simply as a target value on which to base 
management measures. Therefore, NMFS does not agree that the use of a 
TAC necessarily means the fishery will comply with the ACL and AM 
provisions of the MSA. NMFS will have to review specific FMPs or FMP 
amendments. In addition, upon request of a Council, NMFS can provide 
input regarding any changes to current processes that might be needed 
for consistency with the MSA and guidance in the NS1 guidelines.
    Regarding the comment about terminology, the preamble to the 
proposed action provided that Councils could opt to retain existing 
terminology and explain in a proposed rule how the terminology and 
approaches to the FMPs are consistent with those set forth in the NS1 
guidelines. NMFS has given this issue further consideration and 
believes that a proposed rule would not be necessary or appropriate. 
Instead, a Council could explain in a Federal Register notice why its 
terminology and approaches are consistent with the NS1 guidelines.
    Comment 7: Some commenters thought that before requiring 
implementation of a new management system, it should first be 
demonstrated that the current management system is not effective at 
preventing overfishing or rebuilding stocks that are overfished, and 
that a new management system would be more effective. Changing a 
management system that is effective and responsive would not be 
productive.
    Response: While NMFS understands that current conservation and 
management measures prevent overfishing in some fisheries, the MSA 
requires a mechanism for specifying ACLs and AMs in all fisheries, 
including those that are not currently subject to overfishing, unless 
an exception applies. There is no exception to the requirement for ACLs 
and AMs for fisheries where other, non-ACL management measures are 
preventing overfishing. NMFS is required by the MSRA to implement the 
new provisions in all FMPs, unless an exception applies, even on those 
whose current management is preventing overfishing. NMFS believes the 
guidance provides the tools for Councils to implement ACLs in these 
fisheries that will continue to prevent overfishing without disrupting 
successful management approaches. The guidelines provide flexibility to 
deviate from the specific framework described in the guidelines, if a 
different approach will meet the statutory requirements and is more 
appropriate for a specific fishery (see Sec.  600.310(h)(3) of the 
final action).
    Comment 8: Some commenters supported the use of ACT to address 
management uncertainty in the fishery. Others did not support ACTs, and 
commented that ACTs are not required under the MSA and that inclusion 
of ACTs in the guidelines creates confusion and complexity. One 
commenter stated that the proposed guidelines were ``out of line'' with 
NMFS's mandate and authority provided under the MSA because the 
guidelines for ACTs and associated control rules completely undermine 
the clear directive Congress provides in National Standard 1 to achieve 
optimum yield on an ongoing basis.
    Response: The proposed guidelines stressed the importance of 
addressing scientific and management uncertainty in establishing ACL 
and AM mechanisms. Scientific uncertainty was addressed in the ABC 
control rule, and management uncertainty was addressed in the ACT 
control rule. Use of catch targets associated with catch limits is a 
well-recognized principle of fishery management. The current NS1 
guidelines call for establishment of limits, and targets set 
sufficiently below the limits so that the limits are not exceeded. The 
revised guidelines are based on this same principle, but, to 
incorporate the statutory requirements for ABC and ACLs, are more 
explicit than the current guidelines. While MSA does not refer to the 
term ACT, inclusion of the term in the NS1 guidelines is consistent 
with the Act. The NS1 guidelines are supposed to provide advice on how 
to address MSA requirements, including how to understand terminology in 
the Act and how to apply that terminology given the practical realities 
of fisheries management. In developing the proposed guidelines, NMFS 
considered a system that used ABC as the limit that should not be 
exceeded, and that required that ACL be set below the ABC to account 
for management uncertainty. This had the advantage of minimizing the 
number of terms, but would result in the ACL having been a target catch 
level. NMFS decided, that since Congress called for annual catch limits 
to be set, that the ACL should be considered a true limit--a level not 
to be exceeded. ACT was the term adopted for the corresponding target 
value which the fishery is managed toward so that the ACL is not 
exceeded.
    Taking public comment into consideration, NMFS has decided to 
retain ACTs and ACT control rules in the final guidelines, but believes 
they are better addressed as AMs for a fishery. One purpose of the AMs 
is to prevent the ACL from being exceeded. Setting an ACT with 
consideration of management uncertainty is one way to achieve this, but 
may not be needed in all cases. In fisheries where monitoring of catch 
is good and in-season management measures are effective, managers may 
be able to prevent ACLs from being exceeded through direct monitoring 
and regulation of the fishery. Therefore, the final guidelines make 
ACTs optional, but, to prevent ACLs from being exceeded, Councils must 
adequately address the management uncertainty in their fisheries using 
the full range of AMs.
    NMFS disagrees that ACTs undermine NS1. NS1 requires that 
conservation and management measures prevent overfishing while 
achieving, on a continuing basis, the OY. The MSA describes that OY is 
based on MSY, as reduced based on consideration of

[[Page 3184]]

several factors. In some cases, the amount of reduction may be zero, 
but in no case may the OY exceed MSY. Therefore, if OY is set close to 
MSY, the conservation and management measures in the fishery must have 
very good control of the amount of catch in order to achieve the OY 
without overfishing.
    The amount of fishing mortality that results in overfishing is 
dictated by the biology of the stock and its environment, and 
establishes a limit that constrains fisheries management. However, the 
specification of OY and the conservation and management measures for 
the fishery are both set by fishery managers. To achieve the dual 
requirements of NS1, Councils must specify an OY and establish 
conservation and management measures for the fishery that can achieve 
the OY without overfishing. The closer that OY is set to MSY, the 
greater degree of control over harvest is necessary in order to meet 
both objectives. The choice of conservation and management measures for 
a fishery incorporates social and economic considerations. For example, 
a Council may prefer to use effort controls instead of hard quotas to 
have a year-round fishery without a ``race for fish,'' and to provide 
higher average prices for the fishermen. However, compared to hard 
quotas, management with effort controls gives more uncertainty in the 
actual amount of fish that will be caught. Because of this increased 
uncertainty, the OY needs to be reduced from MSY so that overfishing 
does not occur. Thus the social and economic considerations of the 
choice of management measures should be considered in setting the OY.
    In cases where the conservation and management measures for a 
fishery are not capable of achieving OY without overfishing occurring, 
overfishing must be ended even if it means the OY is not achieved in 
the short-term. Overfishing a stock in the short term to achieve OY 
jeopardizes the capacity of the stock to produce OY in the long term, 
and thus cannot be sustained. Preventing overfishing in a fishery on an 
annual basis is important to ensure that a fishery can continue to 
achieve OY on a continuing basis. The specification of OY and the 
associated conservation and management measures need to be improved so 
that OY can be achieved without overfishing occurring. In a fishery 
where the NS1 objectives are fully met, the OY specification will 
adequately account for the management uncertainty in the associated 
conservation and management measures. Overfishing will not occur, and 
the OY will be achieved.
    Comment 9: Commenters stated that the designation of the Virgin 
Islands Coral Reef Monument was not being taken into account in the 
Caribbean Council's FMPs.
    Response: NMFS does not believe any revision of the NS1 guidelines 
is necessary in response to this comment but will forward the comment 
to the Council for its consideration.
    Comment 10: NMFS received comments in support of the flexibility 
given to councils to manage stocks for which ACLs are not a good fit, 
such as management of Endangered Species Act listed species, stocks 
with unusual life history characteristics, and aquaculture operations. 
Commenters noted that Pacific salmon should be treated with flexibility 
under the NS1 guidelines, because they are managed to annual escapement 
levels that are functionally equivalent to ACLs, and there are 
accountability, review, and oversight measures in the fishery.
    Response: NMFS agrees that flexibility is needed for certain 
management situations, and clarifies that Sec.  600.310(h)(3) provides 
for flexibility in application of the NS1 guidelines but is not an 
exception from requirements of MSA section 303(a)(15) or other 
sections.
    Comment 11: Congress did not mandate that all fisheries be managed 
by hard quotas, and so NMFS should include guidance for the 
continuation of successful, non-quota management systems, such as that 
used to successfully manage the Atlantic sea scallop fishery.
    Response: NMFS agrees that the conservation and management measures 
for a fishery are not required to be ``hard quotas.'' However, NMFS 
believes that the ACL was intended by Congress to be a limit on annual 
catch. Therefore, conservation and management measures must be 
implemented so that the ACL is not exceeded, and that accountability 
measures must apply whenever the ACL is exceeded. Congress did not 
exempt any fisheries from the ACL requirement on the basis that current 
management was successful. If the current conservation and management 
measures are effective in controlling harvest of sea scallops such that 
the ACL is not regularly exceeded, the ACL would have little effect on 
the fishery. If the current management measures are not effective in 
keeping catch from exceeding the ACL, then consistent with the ACL 
requirement in the MSA, additional management action should be taken to 
prevent overfishing.
    Comment 12: The summary list of items to be included in FMPs should 
be ``as appropriate'' (see Sec.  600.310(c) of the final action).
    Response: No change was made. NMFS believes that if any item does 
not apply to a particular fishery, the Council can explain why it is 
not included, but believes that ``as appropriate'' would create further 
confusion as there is no clear definition of what appropriate means in 
this context.
    Comment 13: The list of items to include in FMPs related to NS1 is 
extremely long, and it is unclear whether each item on the list needs 
to be addressed for all stocks that are ``in the fishery,'' which is a 
very broad term. Including the extra information is unlikely to 
materially improve management.
    Response: As a default, all the stocks or stock complexes in an FMP 
are considered ``in the fishery'' (see Sec.  600.310(d)(1)), unless 
they are reclassified as ecosystem component stocks through an FMP 
amendment process. Further explanation of these classifications is 
provided below in other comments and responses. The benefit of 
including this list of items is to provide transparency in how the NS1 
guidelines are being met. In addition, Councils should already have 
some of the items in their FMPs (ex: MSY, status determination criteria 
(SDC), and OY). The other items are new requirements of the MSA or a 
logical extension of the MSA.
    Comment 14: NMFS received several comments both supporting and 
opposing the proposed ``stocks in a fishery'' and ``ecosystem component 
species'' (EC) classifications of stocks in a FMP. Comments included: 
EC species are not provided under the MSA and should not be required in 
FMPs; EC species classification is needed but may lead to duplication 
in different FMPs; support for the distinction between ``stocks in a 
fishery'' and EC species; and clarify how data collection only species 
should be classified.
    Response: NMFS provided language for classifying stocks in a FMP 
into two categories: (1) ``Stocks in the fishery'' and (2) ``ecosystem 
component species.'' MSA requires that Councils develop ACLs for each 
of their managed fisheries (see MSA sections 302(h)(6) and 303(a)(15)), 
but Councils have had, and continue to have, considerable discretion in 
defining the ``fishery'' under their FMPs. As a result, some FMPs 
include one or a few stocks (e.g. , Bluefish FMP, Dolphin-Wahoo FMP) 
that have been traditionally managed for OY, whereas others have begun 
including hundreds of species (e.g., Coral Reef Ecosystem of the 
Western Pacific Region FMP) in an

[[Page 3185]]

effort to incorporate ecosystem approaches to management.
    While EC species are not explicitly provided in the MSA, in the 
MSRA, Congress acknowledged that certain Councils have made significant 
progress in integrating ecosystem considerations, and also included new 
provisions to support such efforts (e.g., MSA section 303(b)(12)). As 
noted in the preamble of this action, NMFS wants to continue to 
encourage Councils to incorporate ecosystem considerations, and having 
classifications for ``stocks in the fishery'' versus ``ecosystem 
component species'' could be helpful in this regard. Thus, the final 
guidelines do not require Councils or the Secretary to change which 
species are or are not included in FMPs, nor do the guidelines require 
FMPs to incorporate the EC species classification. NMFS has revised the 
final guidelines to state explicitly that Councils or the Secretary 
may--but are not required to--use an EC species classification.
    In developing the text regarding EC species and ``stocks in the 
fishery,'' NMFS examined what existing FMPs are already doing and 
utilized that in its description of these classifications. For example, 
based on existing FMPs, the guidelines envision that species included 
for data collection and other monitoring purposes could be considered 
EC species (assuming they meet the criteria described in Sec.  
600.310(d)(5)(i)). However, such species could also be ``stocks in the 
fishery,'' as described under the NS3 guidelines (Sec.  600.320(d)(2)). 
NMFS recognizes the desire for greater specificity regarding exactly 
which species could or could not be considered EC species, but does not 
believe that further detail in the guidelines could clarify things 
definitively. Determining whether the EC category is appropriate 
requires a specific look at stocks or stock complexes in light of the 
general EC species description provided in the NS1 guidelines as well 
as the broader mandates and requirements of the MSA. If Councils decide 
that they want to explore potential use of the EC species 
classification, NMFS will work closely with them to consider whether 
such a classification is appropriate.
    Comment 15: NMFS received several comments regarding the level of 
interaction that would be appropriate for the EC classification. 
Comments included: de minimis levels of catch should be defined to 
clarify the difference between ``stocks in a fishery'' and EC species; 
all stocks that interact with a fishery should be included as ``stocks 
in a fishery''; requiring non-target stocks to be considered part of 
the fishery as written supersedes NS9; guidelines should clarify that 
EC species do not have significant interaction with the fishery; and, 
bycatch species should not be included as ``stocks in a fishery.''
    Response: NMFS is revising the final guidelines to clarify 
preliminary factors to be taken into account when considering a species 
for possible classification as an EC species. Such factors include that 
the species should: (1) Be a non-target species or non-target stock; 
(2) not be determined to be subject to overfishing, approaching 
overfished, or overfished; (3) not likely to become subject to 
overfishing or overfished, according to the best available information, 
in the absence of conservation and management measures; and (4) not 
generally retained for sale or personal use. Factors (2) and (3) are 
more relevant to species that are currently listed in FMPs and that 
have specified SDCs. With regard to factor (4), the final guidelines 
add new language in Sec.  600.310(d)(5)(i)(D)--``not generally retained 
for sale or personal use''--in lieu of ``de minimis levels of catch'' 
and clarify that occasional retention of a species would not, in 
itself, preclude consideration of a species in the EC classification. 
The NS1 guidelines provide general factors to be considered, as well as 
some examples of possible reasons for using the EC category. However, 
the decision of whether to use an EC classification requires 
consideration of the specific fishery and a determination that the EC 
classification will be consistent with conservation and management 
requirements of the MSA.
    Under the MSA, a Council prepares and submits FMPs for each fishery 
under its authority that requires conservation and management, and 
there is considerable latitude in the definition of the fishery under 
different FMPs. The definition of ``fishery'' is broad, and could 
include one or more stocks of fish treated as a unit for different 
purposes, as well as fishing for such stock (see MSA section 3(13)(B)). 
While some comments encouraged inclusion of all species that might 
interact with a fishery, all bycatch species, or all species for which 
there may be ``fishing'' as defined in MSA section 3(13)(B), NMFS does 
not believe that MSA mandates such a result. MSA does not compel FMPs 
to include particular stocks or stock complexes, but authorizes the 
Councils or the Secretary to make the determination of what the 
conservation and management needs are and how best to address them. 
Taking the broader approaches noted above would interfere with this 
discretion and also could result in overlapping or duplicative 
conservation and management regimes in multiple FMPs under different 
Council jurisdictions. As National Standard 6 requires that 
conservation and management measures, where practicable, minimize costs 
and avoid unnecessary duplication, NMFS believes that Councils should 
retain the discretion to determine which fisheries require specific 
conservation and management measures. With regard to bycatch, 
regardless of whether a species is identified as part of a fishery or 
not, National Standard 9 requires that FMPs, to the extent practicable, 
minimize bycatch and to the extent it cannot be avoided minimize 
bycatch mortality. Additional protections are afforded to some species 
under the Endangered Species Act, regardless of whether they are listed 
as stocks in a fishery. Further, as a scientific matter, NMFS disagrees 
that every bycatch species would require conservation and management 
measures to protect the species from becoming overfished, because some 
bycatch species exhibit high productivity levels (e.g., mature early) 
and low susceptibilities to fishery (e.g., rarely captured) that 
preclude them from being biologically harmed or depleted by particular 
fisheries.
    Comment 16: NMFS received several comments requesting that the 
guidelines include a description of vulnerability and how it should be 
determined, since it is referenced throughout the guidelines.
    Response: NMFS agrees, and has added Sec.  600.310(d)(10) to the 
final action, to define vulnerability. In general, to determine the 
vulnerability of a species/stock becoming overfished, NMFS suggests 
using quantitative estimates of biomass and fishing rates where 
possible; however, when data are lacking, qualitative estimates can be 
used. NMFS is currently developing a qualitative methodology for 
evaluating the productivity and susceptibility of a stock to determine 
its vulnerability to the fishery, and anticipates the methodology to be 
finalized by February 2009. The methodology is based on the 
productivity-susceptibility analysis (PSA) developed by Stobutzki et 
al. (2001), which was suggested by many commenters. Stocks that have 
low susceptibilities (e.g., rarely interact with the fishery, no 
indirect impacts to habitat, etc.) and high productivities (e.g., 
mature at an early age, highly fecund, etc.) are considered to have a 
low vulnerability of becoming overfished, while stocks that have low 
productivities and high susceptibilities

[[Page 3186]]

to the fishery are considered highly vulnerable to becoming overfished.
    Comment 17: Some commenters noted that the EC classification could 
be used to avoid reference point specification.
    Response: NMFS believes that the guidelines provide mechanisms to 
address this issue. As a default, NMFS presumes that all stocks or 
stock complexes that Councils or the Secretary decided to include in 
FMPs are ``stocks in the fishery'' that need ACL mechanisms and AMs and 
biological reference points. Whether it would be appropriate to include 
species in the EC category would require consideration of whether such 
action was consistent with the NS1 guidelines as well as the MSA as a 
whole. If a Council or the Secretary wishes to add or reclassify 
stocks, a FMP amendment would be required, which documents rationale 
for the decision. However, the guidelines have been modified to note 
that EC species should be monitored to the extent that any new 
pertinent scientific information becomes available (e.g., catch trends, 
vulnerability, etc.) to determine if the stock should be reclassified.
    Comment 18: With regard to ecological, economic, and social (EES) 
factors related to OY, some commenters requested more specific guidance 
in incorporating the factors, and others commented that accounting for 
the factors is too time consuming. Other commenters expressed support 
for the reference to forage fish species and suggested including text 
on maximum economic yield and fish health.
    Response: The NS1 guidelines generally describe OY as the long-term 
average amount of desired yield from a stock, stock complex, or 
fishery. OY is prescribed on the basis of MSY as reduced by EES factors 
(MSA section 3(33)). The NS1 guidelines set forth examples of different 
considerations for each factor, and NMFS believes the examples provide 
sufficient guidance on EES factors. NMFS has not made substantive 
changes from the proposed action, but has clarified that FMPs must 
address each factor but not necessarily each example.
    Comment 19: NMFS received several comments in support of using 
stock complexes as a management tool in data poor situations and other 
comments that expressed concern about the use of stock complexes and 
indicator species. Comments included: stock complexes should only be 
used when sufficient data are lacking to generate species-specific SDCs 
and related reference points; there is little ecological basis for 
using indicator species to set ACLs for stock complexes (see Shertzer 
and Williams (2008)) as stocks within a stock complex exhibit different 
susceptibilities to the fishery; if used, stock complexes should be 
managed using the weakest or most vulnerable stock within the complex 
as a precautionary approach to management; it would be helpful to have 
examples of how a data poor stock could be periodically examined to 
determine if the stock is overfished or subject to overfishing.
    Response: NMFS agrees that where possible Councils should generate 
stock-specific SDCs and related reference points for stocks in fishery; 
however, there are other circumstances in which stock complex 
management could be used. NMFS notes in Sec.  600.310(d)(8) of the 
final action that stocks may be grouped into complexes for various 
reasons, including: where stocks in a multispecies fishery cannot be 
targeted independent of one another and MSY can not be defined on a 
stock-by-stock basis (see Sec.  600.310(e)(1)(iii) of the final 
action); where there is insufficient data to measure their status 
relative to SDC; or when it is not feasible for fishermen to 
distinguish individual stocks among their catch.
    NMFS believes that the guidelines sufficiently addressed the issue 
that stock complexes should be managed using the most vulnerable stock 
within the complex. In Sec.  600.310(d)(9) of the final action the 
guidelines note that ``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 need to be more 
conservative so that the more vulnerable members of the complex are not 
at risk from the fishery.'' Additionally, these guidelines address the 
concerns of Shertzer and Williams (2008), by recommending that both 
productivity and susceptibility of the stock (i.e., vulnerability to 
the fishery) is considered when creating or re-organizing stock 
complexes.
    Lastly, NMFS agrees and has modified the phrase in Sec.  
600.310(d)(9) of the proposed action ``Although the indicator stock(s) 
are used to evaluate the status of the complex, individual stocks 
within complexes should be examined periodically using available 
quantitative or qualitative information to evaluate whether a stock has 
become overfished or may be subject to overfishing'' to provide 
examples of quantitative or qualitative analysis.
    Comment 20: NMFS received comments regarding the process for 
specifying the ACL for either a stock complex or for a single indicator 
species. The commenters were concerned that the proper data will not be 
utilized to determine whether the ACL should be set for the stock 
complex or for single indicator species. They feel that the use of 
single indicator species would not represent the stock's abundance, 
especially in the St. Thomas/St. John and St. Croix fisheries.
    Response: NMFS understands the concern, but does not believe the 
guidelines need to be revised. NMFS will refer this comment to the 
Council.
    Comment 21: NMFS received comments stating that the final action 
should clarify how SDCs and ACLs should be applied to stocks that are 
targeted in one fishery and bycatch in another, as well as 
circumstances where the stock is targeted by two or more FMPs that are 
managed by different regional councils.
    Response: NMFS believes that the guidelines sufficiently addressed 
this issue in Sec.  600.310(d)(7) of the final action, which notes ``* 
* * Councils should choose which FMP will be the primary FMP in which 
management objectives, SDC, the stock's overall ACL and other reference 
points for the stock are established.'' NMFS believes that the Councils 
should continue to have the discretion to make such determinations. 
NMFS, however, suggests that the primary FMP should usually be the FMP 
under which the stock is targeted. In instances where the stock is 
targeted in two or more FMPs (e.g., managed by two or more Councils), 
Councils should work together to determine which FMP is the primary.
    Comment 22: Several commenters requested further clarification on 
how prohibited species should be classified under the proposed 
classification scheme (see Sec.  600.310(d)) because they felt it was 
unclear whether a species for which directed catch and retention is 
prohibited would be classified as ``in the fishery'' or as an 
``ecosystem component''.
    Response: NMFS believes that the information in Sec.  600.310(d) 
provides a sufficient framework in which decisions can be made about 
how to classify a prohibited species under an FMP. Prohibition on 
directed catch and/or retention can be applied to either a stock that 
is ``in the fishery'' or an ``ecosystem component'' species. Managers 
should consider the classification scheme outlined in Sec.  600.310(d) 
of the final action as well

[[Page 3187]]

as MSA conservation and management requirements generally. If a stock 
contains one of the ``in the fishery'' characteristics, then it belongs 
``in the fishery'', regardless of the management tools that will be 
applied to it (e.g., prohibition, bag limits, quotas, seasons, etc.). 
Also, if the intent is to prohibit directed fishing and retention 
throughout the exclusive economic zone (EEZ) for which a Council has 
jurisdiction, then the stock would, most likely, be identified in an 
FMP as ``in the fishery'' rather than as an ecosystem component of one 
particular FMP.
    Comment 23: Several commenters asked at what level an ACL would be 
specified for a species for which directed catch and retention is 
prohibited. Setting the ACL at zero would not be logical because if 
even one was caught incidentally then AMs would be triggered. Setting 
it higher would also not be logical because the point is to ensure 
little to no catch of the stock.
    Response: Prohibiting retention is a management measure to 
constrain the catch to a minimal amount. If listed as a stock in the 
fishery, the reference points for the species, such as OFL and ABC, 
should be set based on the MSY for the stock, or, if ESA listed, would 
be set according to the associated ESA consultation's incidental take 
statement, regardless of the management approach used. The ACL may not 
exceed the ABC, but should be set at a level so that the mortality 
resulting from catch and discard is less than the ACL.
    Comment 24: NMFS received a comment stating that the specification 
of MSY must incorporate risk, be based on gear selectivity and support 
a healthy, functioning ecosystem. The commenter supported revisions to 
Sec.  600.310(e)(1) of the proposed action but suggested that it should 
be strengthened to address ecosystem principles. The commenter cited 
NOAA Tech Memo NMFS-F/SPO-40 in contending that the concept of MSY 
contains inherent risks that must be addressed in establishing 
reference points. Other commenters stated that: Councils establish 
management measures with high probabilities of success (e.g., 80 
percent); ``fishery technological characteristics'' should be re-
evaluated every two years; and MSY values normally equate to fishing 
down a population to forty percent of historic abundance and this may 
not be consistent with ecosystem based management.
    Response: NMFS agrees that ecological conditions and ecosystem 
factors should be taken into account when specifying MSY and has added 
additional language to Sec.  600.310(e)(1)(iv) of the final action to 
highlight this point. Such factors might include establishing a higher 
target level of biomass than normally associated with the specific 
stock's Bmsy. In addition, ecological conditions not 
directly accounted for in the specification of MSY can be among the 
ecological factors considered when setting OY below MSY. Regarding the 
comment about establishing management measures with a high probability 
of success, this is addressed in comment 63. NMFS does not 
believe that the NS1 guidelines need to be revised to require that 
fishery technological characteristics be evaluated every 2 years; such 
characteristics would be routinely updated with each stock assessment. 
The MSA bases management of fishery resources on MSY, but provides that 
OY can be reduced from MSY for ecological factors. NMFS believes the 
guidelines are consistent with the MSA and allow Councils to implement 
ecosystem approaches to management.
    Comment 25: Several comments requested the guidelines state that 
specification of reference points should not be required for a stock 
``in the fishery'' if its directed catch and retention is prohibited 
because managers applied the prohibition in an effort to prevent 
overfishing.
    Response: Prohibition of retention does not necessarily mean that 
overfishing is prevented. Even though the species cannot be retained, 
the level of fishing mortality may still result in overfishing. Many 
stocks for which prohibitions are currently in place are considered 
data-poor. NMFS acknowledges that specifying reference points and AMs 
will be a challenge for such stocks, but reiterates the requirement to 
establish ACLs and AMs for all managed fisheries, unless they fall 
under the two statutory exceptions (see Sec.  600.310(h)(2) of the 
final action), and also the need to take into consideration best 
scientific information available per National Standard 2.
    Comment 26: NMFS received comments voicing a concern about the NMFS 
process of determining the overfishing status of a fishery, because 
fishery management measures have been implemented to end overfishing, 
but stocks are still listed as subject to overfishing and require ACLs 
by 2010. The commenters felt that several species under the Caribbean 
Fishery Management Council's protection should currently be removed 
from the overfished species list.
    Response: NMFS agrees that this is an important issue. Due to the 
process inherent in determining the status of a stock there is 
inevitably a lag time between implementation of management measures and 
a new assessment of the stock's status under those measures. NMFS is 
required by the MSA to establish new requirements to end and prevent 
overfishing through the use of ACLs and AMs. The fisheries subject to 
overfishing, including several in the Caribbean, are required to have 
ACLs by 2010, and all other fisheries must have ACLs by 2011. The 
Council's Comprehensive Amendment that implemented the Sustainable 
Fisheries Act in 2006 included measures designed to end overfishing. 
Although these measures may have ameliorated fishing pressure for some 
fishery resources in the U.S. Virgin Islands, the Council will need to 
evaluate the existing fishery management measures to determine whether 
they are sufficient to meet the new statutory requirements for ACLs and 
AMs.
    Comment 27: Several commenters stated that NMFS should not include 
the OFL as the basis for overfishing SDC. Specific comments included: 
(1) The MSA does not define or require OFL, so NMFS should not use it 
in the guidelines; (2) catch-based SDC are inconsistent with the 
Magnuson-Stevens Act intent and SDC should only be based on the fishing 
mortality rate as it relates to a stock or stock complex's capacity to 
achieve MSY on a continual basis; (3) the Magnuson-Stevens Act does not 
require use of the long term average OFL as MSY; (4) NMFS increases the 
risk of overfishing when theoretical catch estimates or a constant 
fishing mortality rate (F) are used to manage a fishery especially when 
a retrospective pattern exists in a stock or stock complex.
    Response: The term, OFL, is not defined in the MSA. However, OFL is 
directly based on requirements of the MSA, including the concept of 
MSY, and the requirement to prevent overfishing. NMFS does not believe 
that lack of a definition in the MSA precludes definition and use of 
OFL in order to meet the objectives of the MSA. The MSA defines 
overfishing as a rate or level of fishing mortality that jeopardizes 
the capacity of the stock to produce MSY. This mortality rate is 
defined by NMFS as the MFMT. The OFL for a year is calculated from the 
MFMT and the best estimate of biomass for a stock in that year, and 
thus is simply the MFMT converted into an amount of fish. The OFL is an 
annual level of catch that corresponds directly to the MFMT, and is the 
best estimate of the catch level above which overfishing is occurring. 
OFL is in terms

[[Page 3188]]

of catch, and thus is in the same units as ABC and ACL. NMFS believes, 
therefore, that comparing catch to OFL is a valid basis for determining 
if overfishing has occurred that year. The relationship of MSY to OFL 
is that MSY is the maximum yield that the stock can provide, in the 
long term, while OFL is an annual estimate of the amount of catch above 
which overfishing is occurring. The annual OFL varies above and below 
the MSY level depending on fluctuations in stock size. Since both MSY 
and OFL are related to the highest fishing mortality rate that will not 
result in overfishing, it is expected that the long-term average of 
OFLs would equate to MSY, provided that the stock abundance is high 
enough to support MSY.
    The NS1 guidelines give the Councils flexibility to determine if 
overfishing occurs by using either MFMT (F > MFMT) or actual annual 
catch (catch > OFL) as the criteria for overfishing determinations. 
There are advantages and disadvantages of using either measure. The 
advantages of using OFL as a SDC are that catch can be easily 
understood by constituents, a determination can be made as soon as 
catch totals are available, and there is no retrospective problem with 
setting the SDC itself. Use of OFL might not be appropriate for stocks 
with highly variable recruitment that can not be predicted and 
therefore incorporated into the forecast of stock condition on which 
OFL is based. The advantage of using MFMT to determine if overfishing 
is occurring is because F is based on a stock assessment analyzing the 
past performance of the fishery. This means that the MFMT method is 
less sensitive than the OFL method to recent fluctuations in 
recruitment. However, F cannot not be calculated until an assessment 
has been updated, which may lag the fishery by several years. 
Therefore, a status determination based on MFMT could be less current 
than a determination based on OFL and catch, and reflects past, rather 
than current, fishery performance. Also, if there is a retrospective 
pattern in the assessment, then the hindsight estimate of F for a 
particular year used for the SDC will be different than the forecast 
estimate of stock condition used when setting target catch levels and 
management measures for that same year. The choice of SDC for a stock 
should consider things like the frequency of stock assessments, the 
ability to forecast future stock size, and any known retrospective 
patterns in the assessment. If the SDC are appropriately chosen, NMFS 
does not believe that one method necessarily presents more risk that 
overfishing will occur.
    Comment 28: NMFS received one comment which proposed that instead 
of being required to choose between OFL or MFMT as the SDC, that 
Councils should have the flexibility to use both. The comment implied 
that this would allow Councils to use MFMT as the SDC in years in which 
there is an assessment and OFL in years in which there is not an 
assessment.
    Response: The NS1 guidelines require documentation for the 
rationale a Council uses to select the SDC within the FMP including 
defining overfishing status in terms of the MFMT (i.e., fishing 
mortality rate) or OFL (i.e., annual total catch) in such a way that 
overfishing can be monitored and determined on an annual basis. A 
Council could develop SDC based on both criteria, if sufficient 
rationale is provided.
    Comment 29: NMFS received two comments in opposition to the 
``overfished'' definition used by NMFS in the proposed rule. They point 
out that the current overfished definition could include stocks that 
are ``depleted'' due to changing environmental conditions not caused by 
fishing pressure. They propose that NMFS should revise the definition 
of ``overfished'' and create a ``depleted'' category for stocks that 
have declined below the minimum stock size threshold (MSST) due to 
changing environmental conditions.
    Response: The overfished definition used by NMFS is consistent with 
the MSA. NMFS acknowledges that factors other than fishing mortality 
can reduce stock size below the MSST but NMFS believes the definition 
of overfished should not be altered. For stocks in a FMP, the MSA 
requires the Councils to rebuild the stock to a level consistent with 
producing the MSY regardless of the contributing factors. In most 
cases, the variation in relative contribution of environmental and 
fishing factors from year to year in reducing stock abundance is not 
known. When specifying SDC the Council is required to provide an 
analysis of how the SDC were chosen and how they relate to the 
reproductive potential of the stock. Specifically, the MSST should be 
expressed in terms of reproductive potential or spawning biomass. 
Furthermore, the stock assessment process can adjust the 
Bmsy estimates and associated SDC due to environmental and 
ecological factors or changes in the estimates of reproductive 
potential, size/age at maturity, or other biological parameters.
    Comment 30: Several comments suggested that NMFS should strike 
Sec.  600.310(e)(2)(iii)(B) from the proposed action as it contradicts 
Sec.  600.310(e)(2)(iii)(A) and could increase fishing pressure on a 
depleted stock by attributing low stock abundance to environmental 
conditions. Commenters criticized the requirement at Sec.  
600.310(e)(2)(iii)(B) that Councils ``must'' take action to modify SDC, 
and stated that there is little scientific evidence to show linkages 
between stock size and environmental conditions (citing to Restrepo et 
al. 1998 and NMFS. 2000. Endangered Species Act--Section 7 Consultation 
Biological Opinion and Incidental Take Statement). Commenters asserted 
that there is no statutory basis for this provision in the MSA and the 
legal standard for the word ``affect'' is vague and inadequate for 
ending overfishing. The comments stated that, in a time of 
anthropogenic climate change, stock dynamics are likely to change and 
by establishing this provision in the final action NMFS will undermine 
the statute's mandate to end overfishing. Commenters asserted that 
fisheries managers have and will respecify SDC to justify circumventing 
rebuilding targets, and the final guidelines should establish a high 
burden of proof to modify SDC due to changing environmental conditions 
or ``regime change'' (citing Fritz & Hinckley 2005).
    Response: Section 600.310(e)(2)(iii) of this final action is 
essentially the same as text at Sec.  600.310(d)(4) in the current NS1 
guidelines, except for clarifications noted below. There is no change 
in the usage of ``must'' between the current guidance and this final 
NS1 guidance at Sec.  600.310(e)(2)(iii). NMFS believes that the 
requirement of NS2, that conservation and management measures be based 
on the best available science, applies to the establishment of SDC. 
Therefore, in cases where changing environmental conditions alter the 
long-term reproductive potential of a stock, the SDC must be modified. 
As stocks and stock complexes are routinely assessed, long-term trends 
are updated with current environmental, ecological, and biological data 
to estimate SDCs. NMFS allows for flexibility in these provisions to 
account for variability in both environmental changes and variation in 
a stock's biological reaction to the environment.
    The guidelines include language requiring a high standard for 
changing SDC that is consistent with NMFS Technical Guidance (Restrepo 
et al. 1998). NMFS outlines the relationship of SDC to environmental 
change in both the short and long-term in

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Sec.  600.310(e)(2)(iii) of the final action. Total mortality of fish 
stocks includes many factors other than fishing mortality. Short-term 
environmental changes may alter the size of a stock or complex, for 
instance, by episodic recruitment failures, but these events are not 
likely to change the reproductive biology or reproductive potential of 
the stock over the long-term. In this case the Council should not 
change the SDC. Other environmental changes, such as some changes in 
ocean conditions, can alter both a stock's short-term size, and alter 
long-term reproductive biology. In such instances the Councils are 
required to respecify the SDC based on the best available science and 
document how the changes in the SDC relate to reproductive potential. 
In all cases, fishing mortality must be controlled so that overfishing 
does not occur. NMFS notes that, depending on the impact of the 
environmental change on the stock, failure to respecify SDC could 
result in overfishing, or could result in failure to achieve OY. In 
both cases, the fishery would not meet the requirements of NS1.
    One change from Sec.  600.310(d)(4) of the current NS1 guidelines 
occurs in Sec.  600.310(e)(2)(iii)(A) of this final action. NMFS 
clarified that SDC ``should not'' rather than ``need not'' be changed 
if the long-term reproductive potential of a stock has not been 
affected by a changing environment. NMFS feels that this is consistent 
with setting a high standard for changing the SDC due to environmental 
changes. In addition, this action changes the phrase ``long-term 
productive capacity'' from the current NS1 guidance to ``long-term 
reproductive potential.'' NMFS believes the latter phrase is clearer 
and more accurately reflects the language in MSA section 303(a)(10).
    Any changes to SDC are subject to Secretarial approval (Sec.  
600.310(e)(2)(iv) of the final action), and the NS1 guidelines set a 
high standard for respecification of SDC due to environmental change. 
The Council must utilize the best available science, provide adequate 
rationale, and provide a basis for measuring the status of the stock 
against these criteria, and the SDC must be consistent with Sec.  
600.310(e)(2)(iii) of the final action. If manmade environmental 
changes are partially responsible for the overfished condition, the 
Council should recommend restoration of habitat and ameliorative 
programs in addition to curtailing fishing mortality.
    Comment 31: NMFS received several comments that state that by 
requiring reference points to be point estimates NMFS is not 
acknowledging the uncertainty inherent in fishery management science. 
The comments expressed that the best way to incorporate uncertainty was 
to express SDCs as ranges and not point estimates.
    Response: NMFS believes that uncertainty in SDC, OFL, and other 
fishing level quantities is best dealt with by fully analyzing the 
probability that overfishing will occur and that the stock might 
decline into an overfished condition, but we recognize that such a full 
analysis is not possible in many data-limited situations. When using a 
probability based approach, the distribution of probabilities includes 
a point estimate and it extends along a range. A probability based 
approach is already used in many rebuilding plans, for example, what 
fishing level will provide at least a 70% chance that the stock will be 
rebuilt in 10 years. NMFS scientists are working on a technical 
document that will describe some of the currently available methods to 
do such calculations, as well as some proxy approaches that could be 
used in situations where available data and methods do not allow 
calculation of the probability distributions.
    Comment 32: NMFS received a number of comments regarding the 
proposed description of the relationship between ACT and OY--that 
achieving the ACT on an annual basis would, over time, equate to the 
OY. Comments requested more clarification, or did not agree with the 
described ACT-OY relationship.
    Response: NMFS has revised the final action to remove the 
requirement that ACT be established, and instead discussed how targets, 
including ACT, function within the system of AMs to prevent the ACL 
from being exceeded. NMFS has also removed the discussion about the 
relationship of ACT to OY, based on the comments received. The full 
range of conservation and management measures for a fishery, which 
include the ACL and AM provisions, are required to achieve the OY for 
the fishery on a continuing basis. NMFS interprets the phrase 
``achieving, on a continuing basis, the optimum yield for each 
fishery'' to mean producing from each stock or stock complex or fishery 
a long-term series of catches such that the average catch is equal to 
OY, overfishing is prevented, the long-term average biomass is near or 
above Bmsy, and overfished stocks and stock complexes are 
rebuilt consistent with timing and other requirements of section 
304(e)(4) of the MSA and Sec.  600.310(j) of the final NS1 guidelines. 
NMFS notes that for fisheries where stock abundance is below the level 
that can produce the OY without the fishing mortality rate exceeding 
the MFMT, the annual yield will be less than the long-term OY level. In 
the case of an overfished fishery, ``optimum'' with respect to yield 
from a fishery means providing for rebuilding to a level consistent 
with producing the MSY in such fishery. When stock abundance is above 
Bmsy, a constant fishing mortality control rule may allow 
the annual catch to exceed the long-term average OY without overfishing 
occurring, but frequent stock assessments need to be conducted to 
update the level of stock abundance.
    Comment 33: One commenter stated that ``OY equates with the 
acceptable biological catch (``ABC''), which in turn is the level at 
which ACL should be set.'' Another commenter stated that, in specifying 
ACLs, a Council should not exceed MSY, because MSY--as opposed to ABC--
is the ``fishing level recommendation'' that should not be exceeded per 
MSA 302(h)(6).
    Response: MSA includes the terms ``fishing level recommendations,'' 
``acceptable biological catch,'' and ``annual catch limits'' but does 
not define them. As such, NMFS has considered how to interpret these 
provisions in light of the statutory text and taking into consideration 
public comment during scoping and in response to the proposed NS1 
guidelines. NMFS believes that ABC refers to a level of ``catch'' that 
is ``acceptable'' given the ``biological'' characteristics of the stock 
or stock complex. As such, OY does not equate with ABC. The 
specification of OY is required to consider a variety of factors, 
including social and economic factors, and the protection of marine 
ecosystems, which are not part of the ABC concept. The Councils 
determine the ACL, which may not exceed the fishing level 
recommendations of its science advisors. Of the several required SSC 
recommendations (MSA 302(g)(1)(B)), the ABC is most directly applicable 
as the constraint on the Council's ACL. Although MSY and ABC are both 
derived from a control rule, the ABC is the appropriate constraint on 
ACL because it is the annualized result of applying that control rule 
(thus is responsive to current stock abundance) whereas the MSY is the 
expected long-term average from a control rule. The Council should 
generally set the ACL lower than the ABC to take into account other 
factors related to preventing overfishing or achieving OY, or it may 
set the ACL equal to the ABC and take these additional factors into 
account when setting an ACT below the ACL.
    Comment 34: Several commenters stated that NMFS's definition

[[Page 3190]]

framework for ACLs contains buffers that are not required by the 
Magnuson-Stevens Act and reduce or prevent the likelihood that OY can 
be achieved for a stock (Reducing a stock's OFL for scientific and 
management uncertainty, and OY factors results in too many reductions 
and makes it too difficult to achieve OY).
    Response: NMFS believes that fisheries managers cannot consistently 
meet the requirements of the MSA to prevent overfishing and achieve, on 
a continuing basis, OY unless they address scientific and management 
uncertainty. The reductions in fishing levels that may be necessary in 
order to prevent overfishing should be only the amount necessary to 
achieve the results mandated by the MSA. Properly applied, the system 
described in the guidelines does not result in ``too many deductions,'' 
but rather, sets forth an approach that will prevent overfishing, 
achieve on a continuing basis OY, and incorporate sufficient 
flexibility so that the guidelines can be applied in different 
fisheries.
    Comment 35: Several commenters suggested that NMFS clarify language 
to ensure that all aspects of fishing mortality (e.g., dead discards 
and post-release mortality) are accounted for in the estimates of ABC 
or when setting the ACL, and that all catch is counted against OY. NMFS 
also received comments that accounting for bycatch mortality in data 
poor situations should not be required.
    Response: NMFS agrees that all sources of fishing mortality, 
including dead discards and post-release mortality from recreational 
fisheries must be accounted for, but believes that language in Sec.  
600.310(e)(3)(v)(C), (f)(2)(i) and (f)(3)(i) in both the proposed and 
final action sufficiently explains that catch includes fish that are 
retained for any purposes, mortality of fish that have been discarded, 
allocations for scientific research, and mortality from any other 
fishing activity. NMFS, however, disagrees that, when bycatch data is 
lacking, managers could ignore this known source of fishing mortality. 
Ignoring a known source of fishing mortality because data are lacking 
leads to underestimating catch. Unless this is factored in--for 
instance, as increased uncertainty leading to more conservative ABC and 
appropriate AMs (including ACT control rules)--overfishing could occur. 
NMFS's National Bycatch Report (due to be published in late 2008 or 
early 2009) provides comprehensive estimates of bycatch of fish, marine 
mammals, and non-marine mammal protected resources in major U.S. 
commercial fisheries. For instances where the National Bycatch Report 
does not provide bycatch data, NMFS suggests developing proxies based 
on National Bycatch Report bycatch ratios in similar fisheries until 
better data are available. For more information on the National Bycatch 
Report, see http://www.st.nmfs.noaa.gov/st4/nop/Outreach/NBR_Factsheet_Final.pdf. However, the decision about the best methodology 
for estimating bycatch should be made by the Council in consultation 
with its SSC, considering the best available scientific information.
    Comment 36: One commenter requested clearer guidance for the 
specification of ABC and ultimately an ACL in cases where scientific 
uncertainty ``overwhelms'' the SSC's ability to make a valid ABC 
recommendation.
    Response: The NS1 Guidelines recognize that precise quantitative 
assessments are not available for all stocks and some stocks do not 
have sufficient data for any assessment beyond an accounting of 
historical catch. It remains important to prevent overfishing in these 
situations, even though the exact level of catch that causes 
overfishing is not known. The overall guidance is that when stocks have 
limited information about their potential yield, harvest rates need to 
be moderated until such information can be obtained. Possible 
approaches include setting the ABC as 75% of recent average catch; see 
NMFS' Technical Guidance in Restrepo et al. (1998). NMFS is currently 
working on a report on control rules that will provide additional 
examples of possible approaches for data-limited situations as well as 
approaches that can use a better set of information.
    Comment 37: ABC and ACT control rules should be revised to require 
consideration of life history characteristics (e.g., productivity, 
geographic range, habitat preferences, etc.) of a stock when setting 
control rules or catch limits.
    Response: NMFS agrees that the productivity of stock, as well as 
the stocks susceptibility to the fishery should be considered when 
developing the ABC control rule. NMFS refers to these factors together 
as the vulnerability of stock, which is defined in Sec.  600.310(d)(10) 
of the final action. The ABC control rule (see Sec.  600.310(f)(4) of 
the final action) is based on scientific knowledge about the stock, 
which includes a stock's vulnerability to the fishery.
    Regarding the ACT control rule, the final guidelines do not require 
that ACTs always be established, but provide that ACTs may be used as 
part of a system of AMs. When used, ACT control rules address 
management uncertainty, which is not related to the productivity of the 
stock. As noted in Sec.  600.310(g)(3) of the final action, however, 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. In considering the performance standard, a Council should 
consider if the vulnerability of the stock has been accounted for in 
the ABC control rule, so as not to double count this type of 
uncertainty and provide unduly cautious management advice.
    Comment 38: NMFS received comments requesting that text in Sec.  
600.310(f) of the proposed action be modified to clarify that ABC may 
not equal or exceed OFL; Councils are required to establish ABC control 
rules; the ABC and ACT control rules must stipulate the stock level at 
which fishing will be prohibited; and ACL cannot equal or exceed the 
ABC.
    Response: NMFS does not agree that the guidelines should prohibit 
ABC from being equal to OFL, or ACL from being equal to ABC. NMFS has 
added text to the guidelines (Sec.  600.310(f)(3) and (f)(4)) to 
clarify that it believes that ABC should be reduced from OFL in most 
cases, and that 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. NMFS agrees that an ABC control 
rule is required. NMFS does not agree, however, that the ABC and ACT 
control rules must stipulate the level at which fishing is prohibited. 
Here it is important to distinguish between setting an annual level of 
catch equal to zero because the stock biomass is low, from prohibiting 
landings for the remainder of a fishing year because the ACL has 
already been achieved. For the first type of prohibition, an ABC 
control rule could stipulate the level at which fishing is prohibited 
due to low stock biomass, but such a low level of biomass is likely to 
be below the MSST which will invoke development of a rebuilding plan 
with associated modification of the ABC control rule for the duration 
of the plan. NMFS, however, disagrees that the ACT control rule should 
have a similar stipulation as the primary function of this control rule 
is to account for management uncertainty and to serve as the target for 
inseason management actions.

[[Page 3191]]

    Comment 39: NMFS received several comments that spatial-temporal 
management of ACLs should be employed as an integral part of effective 
catch-limit management. The commenters noted that apportioning ACLs by 
seasons and areas could reduce bycatch, protect sensitive habitats, 
reduce competition among fishery sectors, avoid localized and serial 
depletions of stocks, and ensure geographic and seasonal availability 
of prey to key predators.
    Response: NMFS acknowleges that spatial and temporal considerations 
of fishery removals from a stock can be important. Many fisheries 
currently incorporate spatial and temporal considerations. However, in 
the context of NS1, these considerations would be relevant only if the 
overfishing definition or the OY definition for a stock included 
spatial or temporal divisions of the stock structure. NMFS believes the 
guidelines give Councils flexibility to consider spatial and temporal 
issues in establishing ACLs for a stock, and does not agree that the 
NS1 guidelines need to specifically address this issue. Apportioning 
ACLs by seasons and areas could be considered as Councils develop 
conservation and management measures for a fishery to meet the full 
range of MSA requirements, including the NS for basing conservation and 
management measures upon the best scientific information available 
(NS2); taking into account the importance of fishery resources to 
fishing communities to provide sustained participation and minimize 
adverse economic impacts (NS8); minimizing bycatch (NS9); and 
allocating fishing privileges among various U.S. fishermen that are 
fair and equitable, reasonably calculated, and carried out in such a 
manner that no particular entity acquires an excessive share of the 
catch (NS4).
    Comment 40: NMFS received several comments about the role of the 
SSC in specifying ABC. Several commenters stated that the final ABC 
recommendation should be provided by the SSC (i.e., final peer review 
process), rather than an additional peer review process. Some 
commenters expressed concern that both the SSC and peer review process 
would recommend an ABC, leaving the Council to use the lower of the two 
recommended ABC values. One comment stated that the SSC should have the 
discretion to recommend an ABC that is different from the result of the 
control rule calculation in cases where there was substantial 
uncertainty or concern relating to the control rule calculated ABC.
    Response: NMFS agrees that the SSC should provide the final ABC 
recommendation to their Council. In the preamble of the proposed NS1 
revisions, NMFS acknowledged that the statutory language could be 
subject to different interpretations (see p. 32532 of 73 FR 32526; June 
9, 2008). MSA refers to not exceeding fishing level recommendations of 
``scientific and statistical committee or peer review process'' in one 
place and SSC recommendations for ABC and MSY in another place. Compare 
MSA sections 302(h)(6) and 302(g)(1)(B). Section 302(g)(1)(E) of the 
MSA provides that the Secretary and a Council may, but are not required 
to, establish a peer review process. NMFS feels that the Council should 
not receive ABC recommendations from two different sources (SSC and 
peer review). In order to avoid confusion, and in consideration of the 
increased role of SSCs in the MSA, NMFS believes that the SSC should 
provide the ABC recommendation and Councils should establish a clear 
process for receiving the ABC recommendation (as described in Sec.  
600.310(f)(3) of this action). The advance notice of proposed 
rulemaking (ANPR) (73 FR 54132; September 18, 2008) for potential 
revision of the National Standard 2 Guidelines includes consideration 
of the relationship between SSCs and peer review processes. NMFS 
believes the roles of the peer review process and the SSC complement 
each other. For example, a peer review process may conduct an extensive 
technical review of the details of each stock assessment. The SSC can 
then use the assessment document and its peer review, consider 
unresolved uncertainties, seek consistency with assessment decisions 
made for other stocks in the region, and arrive at an ABC 
recommendation. In addition, NMFS agrees that SSCs could provide an ABC 
recommendation that differed from the result of the ABC control rule 
calculation based on the full range of scientific information available 
to the SSC. The SSC would have explain why the recommendation differed 
from the calculated value. NMFS has added clarifying language into 
Sec.  600.310(f)(3) of this action.
    Comment 41: NMFS received a variety of comments on the role of the 
SSC and suggestions that the SSC role should be clarified. Comments 
included: There should be a mandatory peer review of significant SSC 
recommendations; the SSC should be directed to draw information and 
recommendations from the broadest possible range of scientific opinion; 
the SSC recommendation should include a discussion of alternative 
recommendations that were considered and alternative methodologies that 
were explored; what is the role of the SSC in providing recommendations 
for achieving rebuilding targets?; what is the SSC's role in providing 
``reports on stock status and health, bycatch, habitat status, social 
and economic impacts of management measures and sustainability of 
fishing practices''?; the rule should clarify that the SSC is not 
charged with actually collecting the data and writing reports; the 
guidelines should specify the appropriate qualifications and membership 
of the SSCs and peer review process; the guidelines should specify the 
relative roles of the SSCs, peer review process, and Councils in 
establishing ACLs; the guidelines should specify the relative roles of 
NMFS, the Councils, the SSCs and the peer review process in selecting 
and evaluating AMs; NMFS should establish formal criteria for SSC 
membership, including formal training and/or experience in fisheries 
and/or ecological science or economics; NMFS should create oversight 
mechanisms and responsibility within NMFS to ensure that members are 
both qualified and acting in the public interest rather than 
representing stakeholders; NMFS should provide adequate training 
programs so that new members are well-prepared to meet these 
challenges; and NMFS should provide a mechanism for SSC members to 
identify and challenge political interventions, including potentially 
the development of a new scientific appeal function, staffed by a board 
of objective, external expert scientists.
    Response: In developing the NS1 guidelines, NMFS focused on the SSC 
recommendation of the ABC as it is an important reference point for the 
Councils to use when developing ACLs. NMFS feels that the NS1 
guidelines as proposed are clear in that the SSC provides the ABC 
recommendation and the Councils establish the ACLs. Both the ABC 
control rules and the ACT control rules could be developed with input 
from the SSC, Council, and peer review process as appropriate. NMFS 
believes that the NS1 guidelines adequately address the requirements 
for SSC recommendations that pertain to NS1. NMFS believes that other 
specific roles of the SSC would be more appropriately addressed in the 
National Standard 2 (NS2) guidelines.
    Comment 42: Some commenters supported the proposed guidelines 
regarding the SSC, its relation to the Council, and provision of 
science advice such as ABC, but requested that the

[[Page 3192]]

guidelines further emphasize that managers follow the advice of their 
scientific advisors in all cases when setting catch limits. Other 
commenters opposed the provisions and stated that accounting for 
scientific uncertainty is a matter of policy, not science and therefore 
should be delegated to the Council. Instead, the commenters proposed 
that the SSC should be recommending the OFL and that the Council may 
not set an ACL in excess of the OFL as determined by the SSC.
    Response: NMFS believes that determining the level of scientific 
uncertainty is not a matter of policy and is a technical matter best 
determined by stock assessment scientists as reviewed by peer review 
processes and SSCs. Determining the acceptable level of risk of 
overfishing that results from scientific uncertainty is the policy 
issue. 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. The Council should use the advice of 
its science advisors in developing this control rule and should 
articulate the control rule in the FMP. In providing guidance on 
establishing a control rule for the ABC, NMFS recognizes that all 
estimates of the OFL are uncertain, and that in order to prevent 
overfishing with more than a 50 percent probability of success, the ABC 
must be reduced from the OFL. The guidance is clear that the control 
rule policy on the degree of reduction appropriate for a particular 
stock is established by the Council. To the extent that it results in 
the ABC being reduced from the OFL, the SSC is carrying out the policy 
established by the Council. NMFS disagrees that the SSC should 
recommend OFL and not ABC. The MSA specifies a number of things that 
make up the recommendations that SSCs provide to their Council 
including recommendations for ABC, preventing overfishing, MSY, 
achieving rebuilding targets, reports on stock status and health, 
bycatch, habitat status, social and economic impacts of management 
measures, and sustainability of fishing practices. Of these, the ABC is 
directly relevant as the fishing level recommendation that constrains 
the ACL.
    Comment 43: One comment expressed that Councils must be allowed to 
specify information needed in the SAFE report.
    Response: NMFS agrees. NMFS has removed the following sentence from 
Sec.  600.310(b)(2)(v)(B) of the final action: ``The SSC may specify 
the type of information that should be included in the Stock Assessment 
and Fishery Evaluation (SAFE) report (see Sec.  600.315).''
    The contents of the SAFE report fall under the purview of the 
National Standard 2 (NS2) guidelines. NMFS is currently considering 
revising the NS2 guidelines, including modification of the language 
describing the content and purpose of SAFE reports. NMFS recently 
published an advance notice of proposed rulemaking (73 FR 54132; 
September 18, 2008) to revise the NS2 guidelines and encourages the 
public to provide comment.
    Comment 44: One commenter believed the ACT should be a suggested 
component of a fishery management plan rather than a mandated component 
of an FMP. Although the ACT may clearly distinguish management 
uncertainty from other sources of uncertainty, adding a target does not 
fundamentally improve the process. It is more important to correctly 
adjust the ACL based on actual performance data than to create a 
separate target or ACT control rule based on theory to account solely 
for management uncertainty.
    Response: The final guidelines do not require that ACTs always be 
established, but provide that ACTs may be used as part of a system of 
AMs. NMFS disagrees that a target does not fundamentally improve the 
process. ACL is to be treated as a limit--an amount of catch that the 
fishery should not exceed. The purpose of utilizing an ACT is so that, 
given uncertainty in the amount of catch that will result from the 
conservation and management measures in the fishery, the ACL will not 
be exceeded. Whether or not an ACT is explicitly specified, the AMs 
must address the management uncertainty in the fishery in order to 
avoid exceeding the ACL. ACLs are subject to modification by AMs.
    Comment 45: One comment stated that the purpose of an ACT is to 
address ``management uncertainty'' which seems to be a very abstract 
and unquantifiable concept that the Councils are likely to struggle 
with.
    Response: NMFS disagrees that management uncertainty is an abstract 
concept. It relates to the difference between the actual catch and the 
amount of catch that was expected to result from the management 
measures applied to a fishery. It can be caused by untimely catch data 
that usually prevents inseason management measures from being 
effective. Management uncertainty also results from underreporting, 
late reporting and misreporting and inaccurate assumptions about 
discard mortality of a stock in commercial and recreational fisheries. 
One way to estimate management uncertainty is to examine a set of 
annual actual catches compared to target catches or catch quotas for a 
stock. If all or most of the catches fall closely around their target 
catches and don't exceed the OFL then management uncertainty is low; if 
actual catches often or usually result in overfishing then the 
management uncertainty is high and should be accounted for when 
establishing the AMs for a fishery, which may include setting an ACT.
    Comment 46: NMFS received several comments regarding scientific and 
management uncertainty. In general these comments included: Clarify the 
meaning of scientific uncertainty; clarify that some types of 
uncertainty may not be considered in the ABC control rule process; 
increase research efforts in order to deal with scientific uncertainty; 
provide flexibility in the guidelines regarding how the Councils deal 
with uncertainty; and recognize that recreational fisheries are unduly 
impacted by the guidelines due to delayed monitoring of catch.
    Response: Scientific uncertainty occurs in estimates of OFL because 
of uncertainty in calculations of MFMT, projected biomass amounts, and 
estimates in F (i.e., confidence intervals around those parameter 
estimates). In addition, retrospective patterns in estimates of future 
stock biomass and F (i.e., biomass may be overestimated and F 
underestimated on a regular basis) occur in some stock assessments and 
should be accounted for in determining ABC. NMFS revised the guidelines 
to make clear that all sources of scientific uncertainty--not just 
uncertainty in the level of the OFL--must be considered in establishing 
the ABC, and that SSCs may incorporate consideration of uncertainty 
beyond that specifically accounted for in the ABC control rule, when 
making their ABC recommendation. Management uncertainty should be 
considered primarily in establishing the ACL and AMs, which could 
include ACTs, rather than in specification of the ABC.
    Comment 47: The definition of ABC in Sec.  600.310(f)(2)(ii) of the 
proposed rule provides that ABC is a level of catch ``that accounts for 
scientific uncertainty in the estimate of OFL'' and is specified based 
on the ABC control rule. Scientific uncertainty is not and should not 
be limited to the estimate of OFL. That restriction would make it more 
difficult to implement other appropriate methods for incorporating 
scientific uncertainty in other quantities such as distribution of long 
term yield.
    Response: NMFS agrees. NMFS has revised Sec. Sec.  
600.310(f)(2)(ii), (f)(2)(iii),

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and (f)(4) of the action to state that ABC accounts for scientific 
uncertainty in the estimate of OFL and other scientific uncertainty.
    Comment 48: Several commenters stated that buffers, or margins of 
safety, need to be required between the overfishing level and annual 
catch limits to account for uncertainty, and that the final action 
should require the use of such buffers to achieve a high probability 
that overfishing does not occur. NMFS received comments suggesting that 
buffers between limit and target fishing levels reduce the chance that 
overfishing will occur and should be recognized as an accountability 
measure. Other commenters thought that the provision for setting ACT 
less than ACL meant that a Council has no discretion but to establish 
buffers. They said that while buffers may be appropriate in certain 
circumstances, they may also prevent achievement of OY in some 
circumstances.
    Response: As noted elsewhere, NMFS has revised the final 
guidelines: they do not require that ACTs always be established, but 
provide that ACTs may be used as part of a system of AMs. The 
guidelines are intended only to provide Councils with direction on how 
the requirements of NS1 can be met, incorporating the requirement for 
ACLs and AMs such that overfishing does not occur. To prevent 
overfishing, Councils must address scientific and management 
uncertainty in establishing ABC, ACLs, and AMs. In most cases, some 
reduction in the target catch below the limit will result. NMFS does 
not believe that requiring buffers is appropriate, as there may be 
circumstances where that is not necessary to prevent overfishing. 
However, the guidelines require that AMs in a fishery be adequate to 
prevent ACLs from being exceeded, and that additional AMs are invoked 
if ACL is exceeded.
    Comment 49: Some commenters stated that Councils needed flexibility 
to effectively tailor fishery management plans to the unique conditions 
of their fisheries, and that Councils should also have flexibility in 
how to account for scientific and management uncertainty.
    Response: NMFS agrees that Councils should have flexibility, so 
long as they meet the requirements of the statute. ACLs to prevent 
overfishing are required, and management and scientific uncertainty 
must be considered and addressed in the management system in order to 
achieve that objective. NMFS also believes that Councils should be as 
transparent and explicit as possible in how uncertainty is determined 
and addressed, and believes the guidelines provide a good framework to 
meet these objectives.
    Comment 50: One commenter supported NMFS' attention to scientific 
and management uncertainty, but thought that the better approach to 
deal with uncertainty is to reduce uncertainty. They stated that to 
accomplish this objective NMFS must increase its support for agency 
scientific research specific to stock assessments and ecosystem 
science.
    Response: NMFS agrees. However, the processes proposed in the 
guidelines will address the current levels of uncertainty and 
accommodate reduced uncertainty in the future, as improvements in data 
are made.
    Comment 51: Some commenters said that implementing ACLs would lead 
to economic disruption, particularly in the recreational fishing 
sector, because of a large degree of management uncertainty. One 
commenter cited difficulties in obtaining timely and accurate data, 
particularly for recreational fisheries, and asked if recreational 
allocations would have to be reduced due to delays in obtaining 
recreational harvest estimates.
    Response: Preventing overfishing is a requirement of the MSA. The 
ACL mechanisms and AMs for a fishery must be adequate to meet that 
requirement, and in some cases, reductions in catch levels and economic 
benefits from a fishery may result. The specific impacts of 
implementing ACLs in a fishery will be analyzed when the ACLs are 
established in an FMP.
    Comment 52: One commenter stated that the guidelines would require 
reducing catches well below existing OY levels, and that many species 
are known to be fished at low levels which are highly unlikely to lead 
to overfishing. They stated that this is inconsistent with responsible 
marine management and seems unlikely to represent the intent of 
Congress.
    Response: Nothing in the guidelines would require a reduction in 
fishing if, in fact, the stocks are fished at low levels which are 
highly unlikely to lead to overfishing, and this conclusion is 
supported by science.
    Comment 53: One commenter asked if OY could be specified for a 
fishery or a complex, or if the guidelines would require specification 
of OY for each species or complex.
    Response: The guidelines provide that OY can be specified at the 
stock, stock complex or fishery level.
    Comment 54: NMFS received several comments both supporting and 
opposing the use of inseason AMs (Sec.  600.310(g) of the proposed 
action). The commenters that supported the use of inseason AMs 
typically suggested that the Councils and NMFS improve their capability 
to use inseason AMs and/or that NMFS must make inseason closure 
authority a required element of FMPs. Opponents of inseason AMs 
commented that it is more reasonable to implement AMs after reviewing 
annual fishery performance data; there is no requirement in the law to 
impose inseason measures; inseason closures without individual 
transferable quotas will generate derby fisheries; and the requirement 
to use inseason AMs whenever possible would be difficult where 
monitoring data is not available.
    Response: MSA provides for ACLs to be limits on annual catch, thus 
it is fully appropriate and consistent with the Act that available data 
be utilized to prevent ACLs from being exceeded. Conservation and 
management measures for a fishery should be designed so that ACLs are 
not routinely exceeded. Therefore, 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. NMFS believes that the alternative 
result, which is that data are available inseason that show an ACL is 
being exceeded, but no management action is taken to prevent 
overfishing, would not meet the intent of the MSA. The MSA requires 
ACLs in all fisheries. It does not provide an exemption based on a 
concern about derby fishing. NMFS has modified the language in Sec.  
600.310(g)(2) of this action to indicate that ``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.''
    Comment 55: NMFS received some comments that generally expressed 
that AMs will be difficult to implement and that the provisions need to 
be clarified. Comments included: if an ACL is exceeded, a review by the 
Council must occur before implementation of the AMs; the Council must 
examine the ``problem'' that caused the overage--which means nothing 
will happen quickly; and it is not clear what ``biological 
consequences'' means in Sec.  600.310(g)(3) of the proposed action.
    Response: As proposed, AMs are management measures designed to 
prevent an ACL from being exceeded, as well as measures to address an 
overage of an ACL if it does occur. NMFS recommends that, whenever 
possible, Councils implement AMs that allow inseason monitoring and 
adjustment of

[[Page 3194]]

the fishery. The AMs should consider the amount of time required for a 
Council to conduct analyses and develop new measures. In general, AMs 
need to be pre-planned so they can be effective/available in the 
subsequent year, otherwise, there could be considerable delay from the 
time that an overage occurs to the time when measures are developed to 
address the overage. Not all overages may warrant the same management 
response. Consider hypothetically the example of a fishery for which a 
3 fish bag limit with 16 inch minimum size is expected to achieve the 
target catch level without exceeding the ACL. For such a fishery, the 
Council might implement AMs such that, if the catch was under the ACL 
or exceeded it by less than 5 percent, the same bag and size limits 
would apply the following year. If the ACL was exceeded by 5-25 
percent, the bag limit the following year would be reduced to 2 fish, 
and if the ACL was exceeded by more than 25 percent the bag limit would 
be reduced to 1 fish. The AMs could also address a situation where 
catch was below the target level, indicating that the initial measures 
might be too strict. The objective is to have pre-planned management 
responses to ACL overages that will be implemented in the next season, 
so that flawed management measures do not result in continuing overages 
for years while Councils consider management changes. An FMP must 
contain AMs (see Sec.  600.310(c)(5) of the final action). However, 
NMFS believes that the FMP could contain more general framework 
measures and that specific measures, such as those described 
hypothetically above, could be implemented through harvest 
specifications or another rulemaking process.
    By ``biological consequences,'' NMFS means the impact on the 
stock's status, such as its ability to produce MSY or achieve 
rebuilding goals. For example, if information was available to indicate 
that, because of stronger than expected recruitment, a stock was above 
its Bmsy level and continued to grow, even though the ACL 
was exceeded for the year, that could indicate that the overage did not 
have any adverse biological consequences that needed to be addressed 
through the AM. On the other hand, if the ACL for a long lived stock 
with low reproductive potential was exceeded by 100 percent, AMs should 
be responsive to the likelihood that some long-term harm to the stock 
may have been caused by the overage.
    Comment 56: One commenter expressed concern about the term ``re-
evaluated'' in Sec. Sec.  600.310(g)(3) and (g)(4) in the proposed 
action. They stated that this could imply that Councils simply have to 
increase ACLs when they have ACL exceedances, and suggested that, if 
catch exceeds ACL more than once in last four years, there should be 
automatic buffer increases in setting ACL below OFL to decrease 
likelihood of exceeding ACL.
    Response: If the performance standard is not met, the Councils must 
re-evaluate the system of ACLs and AMs, and modify it if necessary so 
that the performance standard is met. Since the ACL cannot exceed the 
ABC recommended by the SSC, NMFS does not believe that the scenario 
described by the commenter would arise. NMFS also does not believe that 
the guidelines should recommend automatic buffer increases in this 
case. The specific factors that caused the performance standard to not 
be met need to be analyzed and addressed. NMFS also notes that, in 
addition to this re-evaluation of the system of ACLs and AMs, AMs 
themselves are supposed to prevent and address ACL overages.
    Comment 57: Several comments were received related to 
accountability measures for when catch exceeds the ACL. Some comments 
supported the concept that a full payback of ACL overages should be 
required for all stocks. Comments included: Overage deductions should 
be normal business for rebuilding and healthy stocks alike; NMFS should 
require all overages to be accounted for in full for all managed 
fisheries no later than when the ACL for the following fishing year is 
determined; and overage deductions must be viewed as an independent 
requirement from actions geared to preventing overages from occurring 
in the future, such as modifications of management measures or changes 
to the full system of ACLs, ACTs, and AMs.
    Response: MSRA is silent with regard to mandatory payback of ACL 
overages. However, in developing the ACL provisions in the MSRA, it 
appears that Congress considered mandatory paybacks and did not include 
that requirement in the MSRA. NMFS believes that paybacks may be an 
appropriate AM in some fisheries, but that they should not be mandated, 
but rather considered on a case by case basis for stocks and stock 
complexes that are not in a rebuilding plan.
    Comment 58: Several comments opposed the concept of an overage 
adjustment when catch exceeds the ACL for stocks that are in rebuilding 
plans (Sec.  600.310(g)(3) of the proposed action). Comments included: 
The MSA does not require this, this provision was removed from the 
drafts of the MSRA, and a full ``payback'' the following year may be 
unnecessary. Other comments supported the concept but wanted to 
strengthen Sec.  600.310(g)(3) of the guidelines to remove text that 
stated: ``unless the best scientific information available shows that a 
reduced overage adjustment, or no adjustment, is needed to mitigate the 
effects of the overages.''
    Response: NMFS believes that more stringent requirements for AMs 
are necessary for stocks in rebuilding plans. MSA 304(e)(3) provides 
that, for overfished stocks, an FMP, FMP amendment, or proposed 
regulations are needed to end overfishing immediately in the fishery 
and rebuild overfished stocks. There are a number of examples where 
failure to constrain catch to planned levels early in a rebuilding plan 
has led to failure to rebuild and the imposition of severe catch 
restrictions in later years in order to attempt to meet the required 
rebuilding timeframe. Thus, for rebuilding stocks, NMFS believes that 
an AM which reduces a subsequent year's ACL by the amount of any 
overage is appropriate, and will help prevent stocks failing to rebuild 
due to annual rebuilding targets being exceeded. NMFS does provide that 
if there is an analysis to show that all or part of the deduction is 
not necessary in order to keep the stock on its rebuilding trajectory, 
the full overage payback is not necessary. For example, an updated 
stock assessment might show that the stock size has increased faster 
than expected, in spite of the overage, and that a deduction from the 
subsequent ACL was not needed. For most rebuilding stocks, assessments 
cannot be updated annually, and in the absence of such analytical 
information, NMFS believes that the guideline provision is necessary to 
achieve rebuilding goals for overfished stocks.
    Comment 59: Some commenters expressed support for the AMs as 
proposed and agreed that AMs should prevent catch from exceeding the 
ACL and address overages if they should occur. Other commenters 
suggested that AMs should be tied to overfishing or that AMs should be 
triggered when catch exceeds the ABC (as opposed to the ACL). Some 
commenters expressed that the MSA does not require the application of 
AMs if the ACL is exceeded.
    Response: In developing the guidelines, NMFS considered using OFL 
or ABC as a point at which mandatory AMs should be triggered. However, 
NMFS believes that Congress intended the ACL to be a limit, and as 
such, it should not be exceeded. In addition, ``measures to ensure 
accountability'' are required in association with the ACL in MSA 
section 303(a)(15). Therefore, it is

[[Page 3195]]

most appropriate to apply AMs if the ACL is exceeded. In addition, the 
purpose of ACLs is to prevent overfishing, and AMs triggered at the ACL 
level should be designed so that the ABC and OFL are not exceeded.
    Comment 60: Several comments were received regarding the proposed 
performance standards. The performance standard that NMFS proposed in 
the proposed action stated that: ``If catch exceeds the ACL more than 
once in the last four years, the system of ACLs, ACTs and AMs should be 
re-evaluated to improve its performance and effectiveness.'' In cases 
where AMs are based on multi-year average data, the proposed 
performance standard stated: ``If average catch exceeds the average ACL 
more than once in the last four years, then the ACL, ACT and AM system 
should be re-evaluated.'' The commenters that supported the proposed 
performance standard suggested that it would allow the Council more 
flexibility in the management of their fisheries with ACLs. Commenters 
that disliked the proposed performance standard suggested that the 
Councils should have more flexibility in determining the performance 
standards, expressed concerns that the performance standard may not be 
precautionary enough, or expressed that it was arbitrary.
    Response: NMFS believes it is important to establish a performance 
standard to establish accountability for how well the ACL mechanisms 
and AMs are working that is consistent across all Councils and 
fisheries. NMFS believes that ACLs are designed to prevent overfishing 
and that it is important to prevent catches from exceeding ACLs. NMFS 
also believes that, given scientific and management uncertainty, it is 
possible that catch will occasionally exceed ACL for a given stock or 
stock complex. However, it would be unacceptable to allow catch to 
continually exceed ACL. Therefore, NMFS proposed the performance 
standard to allow for some flexibility in the management system but 
also prevent overfishing. It should not limit a Council from 
establishing stronger performance measures, or from reevaluating their 
management measures more often. Notwithstanding the performance 
standard, if, at any time, a Council determines that the conservation 
and management measures for a fishery are not achieving OY while 
preventing overfishing, it should revise the measures as appropriate.
    Comment 61: Several comments were received that suggested that 
fishery managers should or be required to re-evaluate the system of 
ACLs, ACT and AMs every time catch exceeds ACL. In addition, some 
expressed that NMFS should make clear that the ``reevaluation'' called 
for in the proposed action does not authorize simply raising ACLs or 
other numeric fishing restrictions in order to avoid the inconvenient 
fact that they have been exceeded.
    Response: NMFS does not agree that a re-evaluation of the entire 
system of ACLs and AMs should be required every time an ACL is 
exceeded. If catch exceeds ACL in any one year, or if the average catch 
exceeds the average ACL, then AMs will be implemented and they should 
correct the operational issues that caused the overage, as well as any 
biological consequences resulting from the overage. Councils should be 
allowed the opportunity to see if their AMs work to prevent future 
overages of the ACL.
    Comment 62: NMFS received comments that requested clarification or 
changes to the proposed performance standard. For example, one 
commenter suggested that NMFS should require a higher performance 
standard for vulnerable stocks. Two commenters expressed that the 
performance standard should apply at the stock or stock complex level 
as opposed to the fishery or FMP level. Another commenter questioned if 
the performance standard was if catch exceeds the ACL more than once in 
the last four years or if average catch exceeds the average ACL more 
than once in the last four years. NMFS also received some comments 
about the phrase ``to improve its performance and effectiveness'' in 
paragraph Sec.  600.310(g)(3) of the proposed action. Those comments 
included: The phrase does not make sense in this context, because 
simply re-evaluating a system cannot improve its performance or 
effectiveness (only changing a system can do so); and use of this 
phrase in Sec.  600.310(g)(3) is inconsistent with a similar sentence 
in paragraph Sec.  600.310(g)(4) of the proposed action, where the same 
requirement is expressed, but this phrase does not appear.
    Response: NMFS stated in the preamble of the proposed guidelines 
that a Council could choose a higher performance standard for a stock 
that is particularly vulnerable to the effects of overfishing. While 
NMFS agrees that a higher performance standard could be used for a 
stock or stock complex that is particularly vulnerable, NMFS believes 
the discretion to use a higher performance standard should be left to 
the Council. To reiterate this point, NMFS is adding additional 
language in Sec.  600.310(g)(3) of the final action. NMFS intended that 
the performance standards would apply at the stock or stock complex 
level and is adding additional clarifying language in the regulatory 
text. The National Standard 1 guidelines as proposed offered two 
performance standards, one applies when annual catch is compared to the 
ACL for a given stock or stock complex, as described in paragraph Sec.  
600.310(g)(3) of this action, the other performance standard applies in 
instances when the multi-year average catch is compared to the average 
ACL, as described in Sec.  600.310(g)(4) of this action. NMFS intended 
that in both scenarios, if the catch exceeds the ACL more than once in 
the last four years, or if the average catch exceeds the average ACL 
more than once in the last four years, then the system of ACLs and AMs 
should be re-evaluated and modified if necessary to improve its 
performance and effectiveness. NMFS has modified language to Sec.  
600.310(g)(3) and (4) of this action to clarify this issue.
    Comment 63: NMFS received several suggestions to require a specific 
and high probability of success in either preventing overfishing, 
preventing catch from exceeding the ACL, or achieving the ACT. Comments 
included: The rule should make clear that management measures must have 
a high probability of success in achieving the OY or ACT; we recommend 
a probability of at least eighty percent of achieving the OY or ACT; 
NMFS should establish a performance standard that defines low risk, as 
well as an acceptable probability of successfully managing catch levels 
of 90 percent; National Standard guidelines should explicitly define 
the maximum acceptable risk of overfishing. One commenter cited to 
several court cases (NRDC v. Daley, Fishermen's Dock Coop., and Coastal 
Conservation Ass'n) and stated that the ACT control rule should be 
revised to state that the risk of exceeding the ACL due to management 
uncertainty is no greater than 25 percent.
    Response: Considering and making appropriate allowances for 
uncertainty in science and management is emphasized in the NS1 
guidelines. NMFS believes that, if this is done, ACLs will not often be 
exceeded, and when they are, the overages will typically be small and 
will not jeopardize the status of the stock. Fisheries where ACLs are 
exceeded regularly or by large amounts should be quickly modified to 
improve the measures.
    During the initial scoping period, NMFS received many comments on 
the topic of setting a specific probability of success; some commenters 
expressed that a 50 percent probability of success is all that is 
legally required, while other

[[Page 3196]]

commenters expressed that the probability of success should be higher 
(e.g. 75 or 100 percent). When developing the definition framework of 
OFL, ABC, ACL, and ACT, NMFS considered including specific 
probabilities of success regarding preventing overfishing or preventing 
catch from exceeding ACL. NMFS did not specify a particular probability 
in the NS1 guidelines, for a number of reasons. NMFS did not believe it 
had a basis for picking a specific probability number that would be 
appropriate for all stocks and stock complexes in a fishery. Councils 
should analyze a range of alternatives for the probability that ACL 
will not be exceeded or that overfishing will not occur. NMFS 
recognizes that fisheries are different and that the biological, social 
and economic impacts of managing at a specific probability will differ 
depending on the characteristics of the fishery. NMFS also recognizes 
that it is not possible to calculate a probability of success in many 
fisheries, due to data limitations.
    NMFS does not believe that MSA and relevant case law require use of 
specific probabilities. However, a 50 percent probability of success is 
a lower bound, and NMFS believes it should not simply be used as a 
default value. Therefore, in Sec.  600.310(f)(4) of the final action, 
NMFS states that the determination of ABC should be based, when 
possible, on the probability that catch equal to the stock's ABC would 
result in overfishing, and that this probability cannot exceed 50 
percent and should be a lower value.
    To determine if the system of ACLs was working adequately, NMFS 
decided to establish a performance standard in terms of the frequency 
that ACLs were exceeded. The comparison of catch to an ACL is a simpler 
task than calculating a probability of success, and can be applied to 
all fisheries, albeit some fisheries have more timely catch data than 
others. This does not preclude the Councils from using the probability 
based approach to setting limits and targets in their fisheries if they 
are able to do so.
    Comment 64: Several comments were received urging NMFS to either 
require or encourage the use of sector ACLs and AMs and hold each 
sector accountable. Comments expressed that to provide the right 
incentives for conservation, catch reductions and increases must be 
tied to compliance and performance in adhering to ACLs. One commenter 
stated that MSA 303(a)(14) compels distinct ACLs and AMs for each 
sector due in part to the variation in management uncertainty among 
sectors. Sector management should be required in FMPs to ensure 
equitable treatment for all stakeholder groups including harvest 
restrictions and benefits to each sector.
    Response: Separate ACLs and AMs for different fishery sectors may 
be appropriate in many situations, but the Councils should have the 
flexibility to determine this for each fishery. The decision to use 
sectors should be at the discretion of each Council. NMFS agrees that, 
if Councils decide to use sectors, each sector should be held 
accountable if catches for a sector exceed sector-ACLs. In addition, 
the NS1 guidelines provide that the ACL/AM system must protect the 
stock or stock complex as a whole. NMFS does not believe that MSA 
necessarily compels use of sector ACLs and AMs, thus the final action 
does not require their use. However, in developing any FMP or FMP 
amendment, it is important to ensure consistency with MSA 303(a)(14), 
NS 4, and other MSA provisions. Section 303(a)(14) pertains to 
allocation of harvest restrictions or recovery benefits fairly and 
equitably among commercial, recreational, and charter fishing sectors. 
NS 4, in part, pertains to fair and equitable allocations.
    Comment 65: Some commenters expressed that managing recreational 
fisheries with ACLs and AMs will be difficult as they typically lack 
timely data. Comments included: The initiative to set ACLs and AMs for 
any fishery that has a recreational component cannot be done and any 
attempt will be arbitrary at best; in-season management is impractical 
in most recreational fisheries; current data collection programs used 
to evaluate recreational fishing activity do not offer a level of 
confidence to fisheries managers or fishermen to implement ACL in the 
recreational sector; and NMFS should improve recreational data 
collection to a level where inseason management is possible.
    Response: NMFS acknowledges that recreational fisheries often do 
not have timely catch data and that is why NMFS suggested the multi-
year averaging provision for AMs. NMFS and the Council still need to 
meet the mandate of the MSA and have ACLs for all fisheries. NMFS is 
developing a new data collection program for recreational fisheries to 
improve the data needed to implement the new provisions of the MSA.
    Comment 66: Some commenters suggested that for recreational 
fisheries, catch limits should be expressed in terms of fishing 
mortality rates or in terms of numbers of fish instead of pounds of 
fish.
    Response: NMFS intends that ACLs be expressed in terms of weight or 
numbers of fish. In fact, the definition of ``catch'' in the proposed 
guidelines indicates that catch is measured in weight or numbers of 
fish. NMFS disagrees that ACL can be expressed in terms of fishing 
mortality rates. While conservation and management measures for a 
fishery can be designed to achieve a target fishing mortality rate, the 
fishing mortality rates that are achieved can only be estimated by 
performing a stock assessment. Stock assessments usually lag the 
fishery by a year or more, and are not suitable as the basis for ACL 
accountability measures.
    Comment 67: One commenter suggested that when recreational 
fisheries account for a significant portion of the catch, the buffers 
should be correspondingly larger to account for the management 
uncertainty.
    Response: NMFS believes that management uncertainty should be 
addressed in all fisheries. Accountability measures may include an ACT 
set below the ACL based on the degree of uncertainty that the 
conservation and management measures will achieve the ACL. This applies 
to all fisheries, commercial or recreational.
    Comment 68: NMFS received a few comments expressing that Councils 
should have flexibility when specifying AMs.
    Response: NMFS agrees and believes that the guidelines provide this 
flexibility.
    Comment 69: AMs should be approved by the Secretary of Commerce, 
should be subject to regular scientific review, and should provide 
opportunities for public comment; performance must be measurable and 
AMs must be modified if not working; AMs should be reviewed annually as 
part of the catch specification process.
    Response: AMs will be implemented through public processes used for 
amending FMPs and implementing regulations. There is no need for 
additional guidance in the NS1 guidelines.
    Comment 70: NMFS received comments that support the use of AMs 
based on comparisons of average catch to average ACL, if there is 
insufficient data to compare catch to ACL, either inseason or on an 
annual basis. In recreational fisheries, the use of a three-year 
rolling average ACL would moderate wild swings in ACLs due to variable 
fishing conditions and participation from year to year. Flexibility, 
such as the use of a multi-year average for the recreational sector, is 
needed due to limitations in the data collection. However, some 
commenters

[[Page 3197]]

expressed concerns about using the multi-year averaging approach and 
stated that it should be used rarely. In order to use such an approach, 
Councils should provide clear and compelling reasons in their FMPs as 
to why the use of multi-year average data are necessary and a plan for 
moving the fishery to AMs based on annual data. The guidelines should 
make it clear that AMs will be triggered annually in cases where the 
average catch exceeds the average ACL. NMFS should engage its 
quantitative experts in an investigation of the performance of using 
multi-year averages for managing highly variable fisheries with poor 
inseason data. Until such results are available, NMFS should use annual 
statistics for management of all fisheries, including those involving 
highly variable stocks or catch limits.
    Response: Use of AMs based on comparison of average catch to 
average ACL is only appropriate in a limited number of fisheries, such 
as fisheries that have high variability in the estimate of total annual 
catch or highly fluctuating annual catches and no effective way to 
monitor and control catches inseason. NMFS intends that a comparison of 
the moving average catch to the average ACL would be conducted annually 
and that AMs would be implemented if average catch exceeds the average 
ACL. If the average catch exceeds the average ACL more than once in the 
last four years, then the system of ACLs and AMs should be re-evaluated 
and modified if necessary to improve its performance and effectiveness. 
NMFS agrees that the Council should analyze and explain why they are 
basing AMs on multi-year averaged data. NMFS has added clarifying 
language to Sec.  600.310(g)(4) of the final action to make these 
points clear. Future improvements in data and management approaches 
should also be pursued so that true annual accountability for catch can 
be achieved. In addition, NMFS believes that AMs such as the use of ACT 
may be appropriate in fisheries that use the multi-year averaging 
approach.
    Comment 71: Several comments were received regarding ACLs and AMs 
for fisheries that occur partly in state waters. Some comments stated 
that accountability measures for State-Federal fisheries could use 
further elaboration and should specifically address fisheries where 
management had been delegated to the state. Some commenters supported 
separate ACLs and AMs for Federal and state portions of the fishery, 
while others wanted combined overall ACLs and AMs. Some comments 
disagreed that closure of Federal waters while fishing continues in 
non-Federal waters is a preferred option, and that efforts should be 
made to undertake cooperative management that allows coordinated 
responses.
    Response: 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 to prevent 
overfishing of shared stocks and ensure their sustainability. NMFS 
encourages collaboration with state managers to develop ACLs and AMs 
that prevent overfishing of the stock as a whole. As FMPs currently 
consider whether overfishing is occurring for a stock or stock complex 
overall, NMFS thinks it is appropriate to specify an overall ACL for 
the stock or stock complex. This ACL could be subdivided into state and 
Federal ACLs, similar to the approach used for sector-ACLs. However, 
NMFS recognizes that Federal management authority is limited to that 
portion of the fishery under Federal jurisdiction and therefore the NS1 
guidelines only require AMs for the Federal fishery. The AMs could 
include closing the EEZ when the Federal portion of the ACL is reached, 
closing the EEZ when the overall stock or stock complex's ACL is 
reached, or other measures. NMFS recognizes the problem that may occur 
when Federal fisheries are closed but fishing continues in state 
waters. NMFS will continue to work with states to ensure consistency 
and effectiveness of management measures. If Councils delegate 
management under an FMP to the states, the FMPs still need to meet the 
requirements of the MSA, including establishment of ACLs and AMs.
    Comment 72: One commenter asked, in the case where ACLs are 
exceeded because of the regulatory failures of one state, if other 
states in the Council's or the Atlantic States Marine Fisheries 
Commission's (ASMFC) area of jurisdiction be affected through mandatory 
AMs. Barring state-by-state allocations for all species (as with summer 
flounder), the proposed regulations could punish commercial fishermen 
and anglers in all states in a region.
    Response: The guidelines acknowledge that NMFS and the Councils 
cannot mandate AMs on state fisheries. However, NMFS encourages 
collaboration between state and Federal managers to develop ACLs and 
AMs to prevent overfishing for the stock as a whole. In cases where 
there is collaboration, accountability measures for the fishery should 
be designed to address this issue. Specific AMs that may be needed 
would have to be evaluated and addressed on a case-by-case basis.
    Comment 73: NMFS received a question regarding the meaning of the 
phrase ``large majority'' in Sec.  600.310(g)(5) of the proposed 
action. NMFS had stated that: ``For stocks or stock complexes that have 
a large majority of harvest in state or territorial waters, AMs should 
be developed for the portion of the fishery under Federal authority and 
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.'' 
The commenter stated that the meaning of the term ``large majority'' 
and its importance is not clear and should therefore be eliminated.
    Response: NMFS agrees that ACL and AMs need to be established for 
all stocks and stock complexes in Federal fisheries regardless of the 
whether a large majority of harvest occurs in state waters. NMFS agrees 
the amount, i.e., ``large majority,'' is not pertinent to this 
provision. Therefore, Sec.  600.310(f)(5)(iii) and (g)(5) have been 
revised in the final action.
    Comment 74: NMFS received several comments noting that NMFS should 
require or recommend the use of limited access privilege programs 
(LAPPs) or catch shares by Councils in the final rule. Many commenters 
referenced an article on catch shares (Costello et al. 2008).
    Response: The article cited above and other articles note the 
potential benefits of LAPPs. NMFS supports use of LAPPs, and believes 
they can be a beneficial approach to use in implementing effective 
ACLs. However, while ACLs are required in all fisheries, under the 
MSRA, LAPPs are optional and at the discretion of each Council. NMFS 
does not have authority to require Councils to use LAPPs, but is 
currently developing guidelines on LAPPs that will be published for 
public comment in the future.
    Comment 75: One comment requested that NMFS expand the concept of 
accountability measures to include effective catch monitoring, data 
collection and analysis, and enforcement. The commenter suggested that 
for accountability measures that are not LAPPs, managers should 
demonstrate how the measures will ensure compliance with the ACLs as 
well as improve data and enforcement, reduce bycatch, promote safety, 
and minimize adverse economic impacts at least as well as LAPPs.
    Response: NMFS agrees that catch monitoring, data collection and 
analysis, and enforcement are all important to consider in developing

[[Page 3198]]

AMs for a fishery and believes the guidelines are adequate. Under Sec.  
600.310(i) of the final action, FMPs, or associated documents such as 
SAFE reports, must describe data collection methods. In addition, Sec.  
600.310(g)(2) of the final action, states that whenever possible, 
inseason AMs should include inseason monitoring and management measures 
to prevent catch from exceeding ACLs. NMFS believes the guidelines are 
clear that catch monitoring data is very important to consider when 
Councils establish their AMs. Councils are already directed to: 
minimize adverse economic impacts under National Standard 8; minimize 
bycatch and bycatch mortality under National Standard 9; and promote 
safety of human life at sea under National Standard 10. See MSA 
301(a)(8), (9), and (10) (setting forth specific requirements of the 
national standards).
    Comment 76: NMFS received comments expressing concern about 
establishing ACL and AM mechanisms in FMPs. One commenter expressed 
concern that if ACL and AM mechanisms were located in the FMP, it would 
require a multi-year process to change any measure. They instead 
suggested that Councils should have the ability to framework the 
mechanisms and establish an annual or multi-year process for making 
adjustments. Another commenter suggested that Councils should be 
required to modify their SOPPs to incorporate a mechanism for 
specifying ACLs and reviewing AMs annually through regular catch 
specification procedures. NMFS received another comment that disagreed 
with the idea that the Council's SOPPs are the proper place to describe 
the process for establishing ABC Control Rules, including the role of 
SouthEast Data Assessment and Review (SEDAR) and the SSC. This 
commenter recommended instead that ABC Control Rules be included in 
Fishery Management Plans and have the ability to refine management 
through framework actions.
    Response: The FMP needs to contain the ACL mechanisms and AMs, as 
they are part of the conservation and management measures for the 
fishery. The ACL mechanisms and AMs can contain framework provisions 
and utilize specification processes as appropriate. NMFS does not agree 
that the ACL and AM mechanisms should be established in the SOPPs. 
Also, NMFS never intended that ABC control rules would be described in 
the SOPPs and agrees that the ABC control rules should be described in 
the Fishery Management Plans. However, it is important to understand 
how the Councils, SSC, and peer review process work together to 
implement the provisions of the MSA, and that can be explained in the 
SOPPs, FMP, or some other document.
    Comment 77: NMFS received several comments supporting the exception 
to the ACL rule for stocks with a life cycle of approximately one year. 
Commenters asked for a list of species which fit the exception, 
specific guidance on how to set ACLs for these stocks if they become 
overfished, and expansion of the exception to species with a two year 
life cycle.
    Response: Due to their unique life history, the process for setting 
ACLs does not fit well for stocks which have a life cycle of 
approximately one year. The exception for species with an annual life 
cycle allows flexibility for Councils to use other management measures 
for these stocks which are more appropriate for the unique life history 
for each stock and the specifics of the fishery which captures them. 
NMFS believes that the final guidance should not include a list of 
stocks which meets these criteria; this is a decision that is best made 
by the regional Councils. Even though ACLs are not required for these 
stocks, Councils are still required to estimate other biological 
reference points such as SDC, MSY, OY, ABC and an ABC control rule. 
However, the MSA limits the exception and clearly states that if 
overfishing is occurring on the stock, the exception can not be used, 
therefore ACLs would be required. MSA only provided for a 1-year life 
cycle exception, thus NMFS cannot expand the exception to two years. 
Section (h)(3) of the final action acknowledges that there may be 
circumstances when flexibility is needed in applying the NS1 
guidelines. Whether such flexibility is appropriate for certain two 
year life cycle species would have to be considered on a case-by-case 
basis.
    Comment 78: NMFS received many comments expressing different 
interpretations of the MSA's ACL international exception. Some 
commented that the exception only pertains to the 2010/2011 timing 
requirement. If fisheries under international agreements were intended 
to be exempt from ACLs, Congress could have drafted the exception to 
say that ACLs ``shall not apply'' to such fisheries, similar to 
language used in the one-year life cycle exception. Several comments 
stated that by requiring ACLs for U.S. fishermen, the U.S. would be in 
a better bargaining position in international fora by taking the 
``higher ground.'' Others agreed with the exception as set forth in the 
proposed guidelines but requested clarification. For example, one 
comment was that the exception should be expanded to cover the US/
Canada Resource Sharing Understanding and other arrangements that may 
not be formal international agreements. Other suggestions included 
clarifying that the exception applied where a regional fishery 
management organization had approved a stock assessment, where there 
were conservation and management measures under an international 
agreement, or where there were annual catch limits established under 
international agreement consistent with MSA overfishing and rebuilding 
requirements.
    Response: The ACL international exception is set forth in an 
uncodified note to MSA section 303. MSRA, Public Law 109-479 section 
104(b)(1). The text is vague, and NMFS has spent considerable time 
looking at different possible interpretations of this text in light of 
the plain language of the text, public comments, and other relevant MSA 
provisions. NMFS agrees that one possible interpretation, in light of 
the text of the one-year life cycle exception (MSRA section 104(b)(2)), 
is that stocks under international management are only exempt from 
timing requirements. However, Congress added significant new 
requirements under the MSRA regarding international fisheries, thus 
NMFS has tried to interpret the exception in light of these other 
statutory provisions.
    In many fisheries, the U.S. unilaterally cannot end overfishing or 
rebuild stocks or make any measurable progress towards those goals, 
even if it were to stop all U.S. harvest. Thus, it has signed onto 
various treaties and negotiates binding, international conservation and 
management measures at regional fishery management organizations 
(RFMOs) to try to facilitate international efforts to end overfishing 
and rebuild overfished stocks. MSRA acknowledged the challenges facing 
the United States in international fisheries by, among other things, 
including a new ``International Overfishing'' section (MSA section 
304(i)) that refers domestic regulations to address ``relative impact'' 
of U.S. vessels; changes to highly migratory species provisions (MSA 
section 102(b)-(c)); and amendments to the High Seas Driftnet Fishing 
Moratorium Protection Act, 16 U.S.C. 1826h-1826k, to encourage 
strengthening of RFMOs and establish a process for identification and 
certification of nations whose vessels engage in illegal, unreported or 
unregulated (IUU) fishing and bycatch of protected living marine 
resources.

[[Page 3199]]

    While NMFS actively communicates and promotes MSA requirements 
regarding ending overfishing and rebuilding overfished stocks at the 
international level (see, e.g., MSA section 102(c)), it is unlikely 
that RFMOs will adopt ACL/AM mechanisms as such mechanisms are 
understood and required in the context of U.S. domestic fisheries. 
Given the practical problem of ensuring the U.S. could negotiate such 
mechanisms, and Congress' clear recognition of U.S. fishing impact 
versus international fishing effort, NMFS believes that a reasonable 
interpretation of the exception is that it should apply to the ACL 
requirement, not just the effective date. If ACLs were required, a 
likely outcome is that U.S. fishermen may be subject to more 
restrictive measures than their foreign counterparts, e.g., each 
country may be assigned a catch quota but the U.S. portion may be 
subject to further restriction below the assigned amount. Further, 
requiring ACLs may raise potential conflicts with implementing 
legislation for some of the international fishery agreements.
    NMFS believes that the intent of MSRA is to not unfairly penalize 
U.S. fishermen for overfishing which is occurring predominantly at the 
international level. In many cases, applying ACL requirements to U.S. 
fishermen on just the U.S. portion of the catch or quota, while other 
nations fished without such additional measures, would not lead to 
ending overfishing and could disadvantage U.S. fishermen. The guidance 
given for the international exception allows the Councils to continue 
managing the U.S. portion of stocks under international agreements, 
while the U.S. delegation works with RFMOs to end overfishing through 
international cooperation. The guidelines do not preclude Councils or 
NMFS from applying ACLs or other catch limits to stocks under 
international agreements, if such action was deemed to be appropriate 
and consistent with MSA and other statutory mandates.
    NMFS considered different suggestions on how the exception might be 
clarified, e.g., exception would only apply where there is an approved 
stock assessment, conservation and management measures, annual catch 
limits consistent with MSA overfishing and rebuilding requirements, 
etc. Regardless of how the exception could be revised, establishing ACL 
mechanisms and AMs on just the U.S. portion of the fishery is unlikely 
to have any impact on ending overfishing and rebuilding. For these 
reasons, and taking into consideration possible statutory 
interpretations and public comment, NMFS has decided not to revise the 
international exception.
    With regard to whether an arrangement or understanding is an 
``international agreement,'' it will be important to consider the facts 
and see if the arrangement or understanding qualifies as an 
``international agreement'' as understood under MSA section 3(24) 
(defining ``international fishery agreement'') and as generally 
understood in international negotiation. The Case-Zablocki Act, 1 
U.S.C. 112b, and its implementing regulations provide helpful guidance 
on interpreting the term ``international agreement.''
    Comment 79: With regard to fisheries data (Sec.  600.310(i) of NS1 
guidelines), comments included: data collection guidelines are 
burdensome, clarification is needed on how the Councils would implement 
the data collection requirements, and that data collection performance 
standards and real-time accounting are needed.
    Response: NMFS believes that Sec.  600.310(i) of the final action 
provides sufficient guidance to the Councils in developing and updating 
their FMPs, or associated public documents such as SAFE reports, to 
address data needed to meet the new requirements of the MSRA. There is 
a close relationship between the data available for fishery management 
and the types of conservation and management measures that can be 
employed. Also, for effective prevention of overfishing, it is 
essential that all sources of fishing mortality be accounted for. NMFS 
believes that detailing the sources of data for the fishery and how 
they are used to account for all sources of fishing mortality in the 
annual catch limit system will be beneficial. NMFS revised the final 
guidelines to clarify that a SAFE report, or other public document 
adopted by a Council, can be used to document the required fishery data 
elements.
    Comment 80: NMFS received several comments requesting that better 
data be used when creating conservation and management measures.
    Response: NMFS agrees that improvements in fishery data can lead to 
more effective conservation and management measures, including ACLs. 
NMFS is aware of the various gaps in data collection and analysis for 
FMPs in U.S. fisheries, and has ongoing and future plans to improve the 
data needed to implement the new provisions of the MSRA. NMFS programs 
and initiatives that will help produce better quality data include the: 
Marine Recreational Information Program (MRIP), National Permits 
System, and Fisheries Information and National Saltwater Angler 
Registry.
    Comment 81: Some comments recognized the ongoing programs to 
improve data, but were concerned that the time that it would take to 
implement and fold these new data into the management process could 
cause overly restrictive measures when implementing ACLs on fisheries 
that are data poor (e.g. recreational fisheries).
    Response: ACLs must be implemented using the best data and 
information available. Future improvements in data will allow 
corresponding improvements in conservation and management measures. 
This is an incremental process. NMFS believes that Councils must 
implement the best ACLs possible with the existing data, but should 
also look for opportunities to improve the data and the ACL measures in 
the future. It is important that the ACL measures prevent overfishing 
without being overly restrictive. In data poor situations, it is 
important to monitor key indicators, and have accountability measures 
that quickly adjust the fishery in response to changes in those 
indicators.
    Comment 82: Some commenters noted they want more transparency in 
the data being used to manage fisheries.
    Response: NMFS believes the NS1 guidelines provide sufficient 
guidance to the Councils in developing and updating their FMPs, or 
associated public documents such as SAFE reports, to address data 
needed to meet the new requirements of the MSRA. NMFS agrees that 
transparency in the Council process and NMFS decision process in regard 
to data and data analysis is critical to the public and user groups 
understanding of how fisheries are managed. NMFS is aware of this issue 
and will continue to seek improvements in such processes.
    Comment 83: NMFS received several comments about the timing 
associated with submitting a rebuilding plan. Commenters asked for 
clarification on when the clock started for the implementation of the 
plan, stated that Councils should have two years to submit the plan to 
the Secretary, and suggested that a 6-month review/implementation 
period be used instead of a 9-month period. Commenters noted that MSA 
provides for specific time periods for Secretarial review.
    Response: Ending overfishing and rebuilding overfished stocks is an 
important goal of the MSA and the performance of NMFS is measured by 
its ability to reach this goal. Currently, the Council has 12 months to 
submit an FMP, FMP amendment, or proposed

[[Page 3200]]

regulations to the Secretary, but there is no time requirement for 
implementation of such actions. MSA section 304(e)(3), which is 
effective July 12, 2009, requires that a Council prepare and implement 
an FMP, FMP amendment, or proposed regulations within 2 years of the 
Secretary notifying the council that the stock is overfished or 
approaching a condition of being overfished. The guidelines provide 
that such actions should be submitted to the Secretary within 15 months 
so NMFS has 9 months to review and implement the plan and regulations. 
NMFS recognizes that there are timing requirements for Secretarial 
review of FMPs and regulations (MSA section 304(a),(b)). The 15-month 
period was not intended to expand the time for Secretarial review, but 
rather, to address the new requirement that actions be implemented 
within two years. NMFS believes the timing set forth in the guidelines 
is appropriate as a general rule: it would continue to allow for 60 
days for public comment on an FMP, 30 days for Secretarial review, and 
6 months for NMFS to implement the rebuilding plan. However, in 
specific cases NMFS and a Council may agree on a schedule that gives 
the Council more time, if the overall objective can still be met.
    Comment 84: NMFS received many comments in support of the language 
regarding ending overfishing immediately. One comment, however, stated 
that intent of the MSA is to end all overfishing, not just chronic 
overfishing, as described in the preamble.
    Response: NMFS agrees that the intent of the MSA is to end 
overfishing, and in the context of a rebuilding plan, overfishing must 
be ended immediately. However, as long as fishing is occurring, there 
always is a chance that overfishing may occur given scientific and 
management uncertainty. The guidelines explain how to incorporate 
scientific and management uncertainty so that fishing may continue but 
with an appropriately low likelihood of overfishing. The term ``chronic 
overfishing'' is used to mean that annual fishing mortality rates 
exceed the MFMT on a consistent basis over a period of years. The MSA 
definition of overfishing is ``* * * a rate or level of fishing 
mortality that jeopardizes the capacity of a fishery to produce the 
maximum sustainable yield on a continuing basis.'' NMFS believes that 
the best way to ensure that overfishing does not occur is to keep 
annual fishing mortality rates below the MFMT. However, exceeding the 
MFMT occasionally does not necessarily jeopardize the capacity of a 
fishery to produce the MSY on a continuing basis. The more frequently 
MFMT is exceeded, the more likely it becomes that the capacity of a 
fishery to produce the MSY on a continuing basis is jeopardized. Thus, 
NMFS believes that ACLs and AMs should be designed to prevent 
overfishing on an annual basis, but that conservation and management 
measures need not be so conservative as to prevent any possibility that 
the fishing mortality rate exceeds the MFMT in every year.
    Comment 85: NMFS received several comments regarding what happens 
when a rebuilding plan reaches Tmax but the stock is not 
fully rebuilt. Commenters supported the approach in the proposed action 
that provided that the rebuilding F should be reduced to no more than 
75 percent of MFMT until the stock or stock complex is rebuilt. One 
commenter suggested clarifying the final guidelines text to provide: 
``If the stock or stock complex has not rebuilt by Tmax, 
then the fishing mortality rate should be maintained at 
Frebuild or 75% of the MFMT, whichever is less.'' Other 
commenters stated that 75 percent MFMT is not precautionary enough and 
that 50 percent MFMT (or less) should be used.
    Response: This new language in the guidelines fills a gap in the 
current guidelines which did not prescribe how to proceed when a stock 
had reached Tmax but had not been fully rebuilt. NMFS 
believes that requiring that F does not exceed Frebuild or 
75 percent MFMT, whichever is lower, is an appropriate limit, but 
Councils should consider a lower mortality rate to meet the requirement 
to rebuild stocks in as short a time as possible, pursuant to the 
provisions in MSA section 304(e)(4)(a)(i). NMFS agrees that the 
suggested edit would clarify the provision, and has revised the 
guidelines.
    Comment 86: NMFS received many comments on the relationship between 
Tmin, Ttarget and Tmax. Some comments 
supported the proposed guidelines and others stated that the guidelines 
should be modified. Comments included: Tmin is inconsistent 
with MSA's requirement to take into account needs of fishing 
communities and should include those needs when evaluating whether 
rebuilding can occur in 10 years or less; management measures should be 
designed to achieve rebuilding by the Ttarget with at least 
a 50% probability of success and achieve Tmax with a 90% 
probability of success; as in the 2005 proposed NS1 guidelines 
revisions, Tmax should be calculated as Tmin plus 
one mean generation time for purposes of determining whether rebuilding 
can occur in 10 years or less; per NRDC v. NMFS, 421 F.3d 872 (9th Cir. 
2005), Ttarget should be as close to Tmin as 
possible without causing a short-term disaster; rebuilding timeframes 
should only be extended above Tmin where ``unusually severe 
impacts on fishing communities can be demonstrated, and where 
biological and ecological implications are minimal;'' rebuilding times 
for stock complexes must not be used to delay recovery of complex 
member species; and the ``generation time'' calculation for 
Tmax should refer to generation time of the current 
population.
    Response: In developing the guidance for rebuilding plans, NMFS 
developed guidelines for Councils which, if followed, are strong enough 
to rebuild overfished stocks, yet flexible enough to work for a diverse 
range of fisheries. The timeline for a rebuilding plan is based on 
three time points, Tmin, Ttarget and 
Tmax. Tmin is the amount of time, in the absence 
of any fishing mortality, for the stock to have a 50% probability of 
reaching the rebuilding goal, Bmsy. Tmin is the 
basis for determining the rebuilding period, consistent with section 
304(e)(4)(A)(ii) of the MSA which requires that rebuilding periods not 
exceed 10 years, except in cases where the biology of the stock of 
fish, other environmental conditions, or management measures under an 
international agreement in which the United States participates dictate 
otherwise. Tmin provides a biologically determined lower 
limit to Ttarget. Needs of fishing communities are not part 
of the criteria for determining whether a rebuilding period can or 
cannot exceed 10 years, but are an important factor in establishing 
Ttarget.
    Just as Tmin is a helpful reference point of the 
absolute shortest time to rebuild, Tmax provides a reference 
point of the absolute longest rebuilding period that could be 
consistent with the MSA. Tmax is clearly described in the 
guidelines as either 10 years, if Tmin is 10 years or less, 
or Tmin plus one generation time for the stock if 
Tmin is greater than 10 years. NMFS agrees that this 
calculation can cause a discontinuity problem when calculating 
Tmax, and proposed revisions to the NS1 guidelines in 2005 
that would have addressed the issue by basing Tmax on 
Tmin + one generation time in all cases, which would have 
removed the requirement that Tmax is 10 years in all cases 
where Tmin was less than 10 years. NMFS did not finalize 
those revisions, but proposed the same changes to the MSA in the 
Administration's proposed MSA reauthorization bill. However,

[[Page 3201]]

when MSRA was passed, Congress did not accept the Administration's 
proposal and chose to keep the existing provision. NMFS has, therefore, 
not revised this aspect of the NS1 guidelines.
    The generation time is defined in the guidelines as ``the average 
length of time between when an individual is born and the birth of its 
offspring.'' Typically this is calculated as the mean age of the 
spawners in the absence of fishing mortality (per Restrepo et al., 
1998), but the exact method is not specified in the guidance.
    Tmax is a limit which should be avoided. When developing 
a rebuilding plan, it is good practice for Councils to calculate the 
probability of the potential management alternatives to achieve 
rebuilding by Tmax, in order to inform their decision.
    Ttarget is bounded by Tmin and 
Tmax and is supposed to be established based on the factors 
specified in MSA section 304(e)(4). Section 600.310(j)(3) of the final 
action reiterates the statutory criteria on specifying rebuilding 
periods that are ``as short as possible,'' taking into account 
specified factors. Management measures put in place by the rebuilding 
plan should be expected (at least 50% probability) to achieve 
rebuilding by Ttarget. NMFS does not believe these sections 
should be revised to focus on ``short-term disasters'' or ``unusually 
severe'' community impacts, as the MSA provides for several factors to 
be considered. NMFS believes the final guidelines provide sufficient 
general guidance on the MSA requirements, but acknowledges that there 
is case law in different jurisdictions (such as NRDC v. NMFS), that 
fishery managers should consider in addition to the general guidance.
    Comment 87: A commenter stated that Sec.  600.310(j)(3)(i)(E) of 
the proposed action should be revised to state that ``as short as 
possible'' is a mandate, not just a priority.
    Response: NMFS deleted the ``priority'' text in Sec.  600.310 
(j)(3)(i)(E) of the final action. That text is unnecessary given that 
Sec.  600.310 (j)(3)(i) of the guidelines explains ``as short as 
possible'' and other rebuilding time period requirements from MSA 
section 304(e)(4).
    Comment 88: Commenters raised several questions about the 
relationship of NS1 and National Standard 8 (NS 8), including whether 
NS 1 ``trumps'' NS 8 and whether the ACL guidance provides sufficient 
flexibility to address NS 8 considerations.
    Response: NS 1 states: ``Conservation and management measures shall 
prevent overfishing while achieving, on a continuing basis, the optimum 
yield from each fishery for the United States fishing industry.'' MSA 
section 301(a)(1). NS 8 states: ``Conservation and management measures 
shall, consistent with the conservation requirements of this Act 
(including the prevention of overfishing and rebuilding of overfished 
stocks, take into account the importance of fishery resources to 
fishing communities by utilizing economic and social data that meet the 
requirements of paragraph (2) [i.e., National Standard 2] , in order to 
(A) provide for sustained participation of such communities, and (B) to 
the extent practicable, minimize adverse economic impacts on such 
communities.'' MSA section 301(a)(8) (emphasis added).
    The objectives in NS8 for sustained participation of fishing 
communities and minimization of adverse economic impacts do not provide 
a basis for continuing overfishing or failing to rebuild stocks. The 
text of NS8 explicitly provides that conservation and management 
measures must prevent overfishing and rebuild overfished stocks. MSA 
does provide, however, for flexibility in the specific conservation and 
management measures used to achieve its conservation goals, and NMFS 
took this into consideration in developing the revised NS1 guidelines.
    Comment 89: NMFS received many comments regarding Sec.  600.310(m) 
of the proposed action, a provision commonly called the ``mixed stock 
exception.'' One comment supported the revision as proposed. Some 
commenters noted that the provision is very important in managing 
specific mixed stock fisheries, and that changes in the proposed 
guidelines would make it impossible to use. Specific concern was noted 
about text that stated that 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.'' In addition, commenters 
stated that the proposed revisions do not allow for social and economic 
aspects to be taken in to account adequately and would negatively 
impact several fisheries and fishing communities. Many others commented 
that the provision should be removed entirely, because it is contrary 
to the intent of the MSA. The MSA, as amended by the MSRA, requires 
preventing and ending overfishing, and a mixed stock exception would 
allow for chronic overfishing on vulnerable fish stocks within a 
complex.
    Response: MSRA amended overfishing and rebuilding provisions of the 
MSA, reflecting the priority to be given to the Act's conservation 
goals. NMFS believes that the final NS1 guidelines provide helpful 
guidance on the new statutory requirements and will strengthen efforts 
to prevent overfishing from occurring in fisheries. Preventing 
overfishing and achieving, on a continuing basis, the OY is 
particularly challenging in mixed stock fisheries. To address this 
issue, the proposed action retained a mixed stock exception. NMFS 
recognizes the concerns raised about how the exception will impact 
efforts to prevent and end overfishing, and thus, revised the current 
NS1 guidelines text in light of new MSRA provisions.
    The current mixed stock exception allows overfishing to occur on 
stocks within a complex so long as they do not become listed under the 
Endangered Species Act (ESA). As explained in the proposed guidelines, 
NMFS believes that ESA listing is an inappropriate threshold, and that 
stocks should be managed so they retain their potential to achieve MSY. 
The revised guidelines propose a higher threshold, limiting F to a 
level that will not lead to the stock becoming overfished in the long 
term. In addition, if any stock, including those under the mixed stock 
exception, were to drop below its MSST, it would be subject to the 
rebuilding requirements of the MSA, which require that overfishing be 
ended immediately and that the stock be rebuilt to Bmsy (see 
Sec.  600.310(j)(2)(ii)(B) of the final action). The exception, as 
revised, addresses concerns regarding social, economic, and community 
impacts as it could allow for continued harvest of certain stocks 
within a mixed stock fishery.
    Having considered public comments on the proposed guidelines, NMFS 
has decided to retain the mixed stock exception as proposed in the 
guidance. While NMFS has chosen in the NS1 guidelines to emphasize the 
importance of stock-level analyses, MSA refers to preventing 
overfishing in a fishery and provides for flexibility in terms of the 
specific mechanisms and measures used to achieve this goal. The mixed 
stock exception provides Councils with needed flexibility for managing 
fisheries, while ensuring that all stocks in the fishery continue to be 
subject to strong conservation and management. However, NMFS believes 
that the mixed stock exception should be applied with a great deal of 
caution, taking into consideration new MSRA requirements and NS1 
guidance regarding stock complexes and indicator species. NMFS also 
believes that Councils should work to improve selectivity of fishing 
gear and practices in their mixed-stock fisheries so that the need to 
apply the mixed stock exception is reduced in the future.

[[Page 3202]]

VI. Changes From Proposed Action

    Annual catch target (ACT) is described as a management option, 
rather than a required reference point in paragraphs (f)(1), (f)(2)(v), 
(f)(6), (f)(6)(i), and (g)(2) in the final action.
    The following sentence was deleted from paragraph (b)(2)(v)(B): 
``The SSC may specify the type of information that should be included 
in the Stock Assessment and Fishery Evaluation (SAFE) report (see Sec.  
600.315).'' Paragraph (b)(2)(v)(C) was revised to make some clarifying 
edits regarding the SSC and peer review process. The following sentence 
was included in (b)(2)(v)(D): ``The SSC recommendation that is the most 
relevant to ACLs is ABC, as both ACL and ABC are levels of annual 
catch.''
    Paragraph (c)(5) is removed because ``ACT control rule'' is no 
longer a required part of the definition framework. Paragraph (c)(6) in 
the proposed action is re-designated as paragraph (c)(5) in the final 
action. Paragraph (c)(7) in the proposed action is re-designated as 
paragraph (c)(6) in the final action.
    Paragraph (d)(1) was revised to clarify that Councils may, but are 
not required to, use the ``ecosystem component'' species 
classification. Paragraphs (d)(2) through (d)(7) were revised to better 
clarify the classification system for stocks in an FMP. Paragraph 
(d)(9) is revised to emphasize that indicator stocks are stocks with 
SDC that can be used to help manage more poorly known stocks that are 
in a stock complex. Paragraph (d)(10) has been added to describe in 
general how to evaluate ``vulnerability'' of a stock.
    Paragraph (e)(1)(iv) was revised to clarify that ecological 
conditions should be taken into account when specifying MSY. The 
following sentence was added to paragraph (e)(2)(i)(C): ``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.'' The following sentence was 
added to paragraph (e)(2)(i)(D): ``The OFL is an estimate of the catch 
level above which overfishing is occurring.'' The following sentence 
was deleted from (e)(2)(ii)(A)(1): ``The MFMT must not exceed 
Fmsy.'' Paragraph (e)(3)(iv) was revised to improve clarity. 
The following sentence was deleted from (e)(3)(v)(A): ``As a long-term 
average, OY cannot exceed MSY.''
    Paragraph (f)(1) was revised to give examples of scientific and 
management uncertainty. Paragraphs (f)(2)(ii) and (iii) were revised to 
clarify that scientific uncertainty in the OFL and any other scientific 
uncertainty should be accounted for when specifying ABC and the ABC 
control rule. Paragraph (f)(3) was revised to improve clarity; to 
acknowledge that the SSC may recommend an ABC that differs from the 
result of the ABC control rule calculation; and to state that 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. Paragraph (f)(4) on the ABC control rule was revised 
to include the following sentences: ``The determination of ABC should 
be based, when possible, on the probability that an actual catch equal 
to the stock's ABC would result in overfishing. This probability that 
overfishing will occur cannot exceed 50 percent and should be a lower 
value. The ABC control rule should consider reducing fishing mortality 
as stock size declines and may establish a stock abundance level below 
which fishing would not be allowed.'' Paragraph (f)(5)(i) was revised 
to include the following sentences: ``ACLs in coordination with AMs 
must prevent overfishing (see MSA section 303(a)(15)). 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.'' Also, paragraph (f)(5)(i) was revised to clarify that ``a 
multiyear plan must provide that, if an ACL is exceeded for a year, 
then AMs are triggered for the next year consistent with paragraph 
(g)(3) of this section.'' Paragraph (f)(5)(ii) now clarifies that ``if 
the management measures for different sectors differ in degree of 
management uncertainty, then sector-ACLs may be necessary so 
appropriate AMs can be developed for each sector.'' Paragraphs 
(f)(5)(iii) and (g)(5) were revised to remove the phrase ``large 
majority'' from both provisions. The description of the relationship 
between OFL to MSY and ACT to OY was removed from paragraph (f)(7) and 
is replaced with the following sentence: ``A Council may choose to use 
a single control rule that combines both scientific and management 
uncertainty and supports the ABC recommendation and establishment of 
ACL and if used ACT.''
    Paragraph (g)(2) on inseason AMs was revised to include the 
following sentences: ``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.'' Paragraph (g)(3) was revised to improve clarity and to include 
the following sentence: ``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.'' 
Paragraph (g)(4) on AMs based on multi-year average data was revised to 
clarify: That Councils should explain why basing AMs on a multi-year 
period is appropriate; that AMs should be implemented if the average 
catch exceeds the average ACL; the performance standard; and that 
Councils can use a stepped approach when initially implementing AMs 
based on multi-year average data.
    Paragraph (h) was revised to include the sentence: ``These 
mechanisms should describe the annual or multiyear process by which 
specific ACLs, AMs, and other reference points such as OFL, and ABC 
will be established.'' Paragraph (h)(1)(v) was removed because the 
requirement to describe fisheries data is covered under paragraph (i). 
Paragraph (i) is revised to clarify that Councils must describe ``in 
their FMPs, or associated public documents such as SAFE reports as 
appropriate,'' general data collection methods.
    Paragraph (j)(2)(ii)(C) was removed and paragraph (j)(2)(ii)(B) was 
revised to include information about stocks or stock complexes that are 
approaching an overfished condition. Paragraph (j)(3)(i)(E) was revised 
to remove the ``priority'' text. That text is unnecessary given that 
section (j)(3)(i) explains ``as short as possible'' and other 
rebuilding time period requirements from MSA section 304(e)(4). 
Paragraph (j)(3)(ii) was revised to clarify that ``if the stock or 
stock complex has not rebuilt by Tmax, then the fishing 
mortality rate should be maintained at Frebuild or 75 
percent of the MFMT, whichever is less.''
    Introductory language (General) has been added to paragraph (l) to 
clarify the relationship of other national standards to National 
Standard 1. Also, paragraph (l)(4) has been revised to ensure that the 
description about the relationship between National Standard 8 with 
National Standard 1 reflects more

[[Page 3203]]

accurately, section 301(a)(8) of the Magnuson-Stevens Act.
    The words ``should'' or ``recommended'' in the proposed rule are 
changed to ``must'' or ``are required'' or ``need to'' in this action's 
codified text if NMFS interprets the guidance to refer to 
``requirements of the Magnuson-Stevens Act'' and ``the logical 
extension thereof'' (see section 600.305(c) of the MSA). In the 
following, items in paragraphs of Sec.  600.310 are followed by an 
applicable MSA section that contains pertinent requirements:
    Paragraph (b)(3) is revised to state that Councils ``must take an 
approach that considers uncertainty in scientific information and 
management control of the fishery'' because it needs to meet 
requirements in MSA section 303(a)(15).
    Paragraph (c) is revised to state ``* * * Councils must include in 
their FMPs * * *'' because it needs to meet various requirements in MSA 
section 303(a).
    Paragraph (c) is revised to state ``Councils must also describe 
fisheries data * * *'' because it needs to meet requirements of various 
portions of MSA sections 303(a) and 303(a)(15).
    Paragraph (c) is revised to state ``* * * Councils must evaluate 
and describe the following items in their FMPs * * *'' because it needs 
to meet requirements of various portions of MSA sections 303(a) and 
303(a)(15).
    Paragraph (e)(1) is revised to state that ``Each FMP must include 
an estimate of MSY * * *'' because it needs to meet requirements of MSA 
section 303(a)(3).
    Paragraph (e)(2)(ii) is revised to state that a Council ``must 
provide an analysis of how the SDC were chosen * * *'' because it needs 
to meet requirements of MSA section 303(a)(10).
    Paragraph (e)(2)(ii)(A) is revised to state ``each FMP must 
describe which of the following two methods * * *'' because it needs to 
meet requirements of MSA section 303(a)(10).
    Paragraph (e)(2)(ii)(B) is revised to state ``the MSST or 
reasonable proxy must be expressed in terms of spawning biomass * * *'' 
because it needs to meet requirements of MSA section 303(a)(10).
    Paragraph (f)(4) is revised to state each Council ``must establish 
an ABC control rule * * *'' because it needs to meet requirements of 
MSA sections 303(a)(15) and 302(g)(1)(B).
    Paragraph (f)(4) is revised to state ``The ABC control rule must 
articulate how ABC will be set compared to the OFL * * *'' because it 
needs to meet requirements of MSA sections 303(a)(15) and 301(a)(2).
    Paragraph (f)(5)(i) is revised to state ``A multiyear plan must 
include a mechanism for specifying ACLs for each year * * *'' because 
it needs to meet requirements of MSA section 303(a)(15).
    Paragraph (f)(5)(i) is also revised to state ``A multiyear plan 
must provide that, if an ACL is exceeded * * *'' because it needs to 
meet requirements of MSA section 303(a)(15).
    Paragraph (f)(6)(i) is revised to state ``Such analyses must be 
based on best available scientific * * *'' because it needs to meet 
requirements of MSA section 301(a)(2).
    Paragraph (g)(3) is revised to state a Council ``must determine as 
soon as possible after the fishing year if an ACL is exceeded * * *'' 
because it needs to meet requirements of MSA sections 303(a)(15), 
301(a)(1) and 301(a)(2).
    Paragraph (h) is revised to state FMPs or FMP amendments ``must 
establish ACL mechanisms and AMs * * *'' because it needs to meet 
requirements of MSA section 303(a)(15).
    Paragraph (h)(3) is revised to state ``Councils must document their 
rationale for any alternative approaches * * *'' because it needs to 
meet requirements of MSA section 303(a)(15).
    Paragraph (j)(2) is revised to state ``FMPs or FMP amendments must 
establish ACL and AM mechanisms in 2010 * * *'' because it needs to 
meet requirements of MSA section 303(a)(15).
    Paragraph (j)(2)(i)(A) is revised to state that `` * * * ACLs and 
AMs themselves must be specified * * *'' because it needs to meet 
requirements of MSA section 303(a)(15).
    Paragraph (k) is revised to state that ``The Secretary, in 
cooperation with the Secretary of State, must immediately take 
appropriate action at the international level * * *'' because it needs 
to meet requirements of MSA section 304(i)--INTERNATIONAL OVERFISHING.
    Paragraph (k)(3) is revised to state that ``Information used to 
determine relative impact must be based upon the best available 
scientific * * *'' because it needs to meet requirements of MSA section 
301(a)(2).
    Paragraph (l)(2) is revised to state that ``Also scientific 
assessments must be based on the best information * * *'' because it 
needs to meet requirements of MSA section 301(a)(2).

VII. References Cited

    A complete list of all the references cited in this final action is 
available online at: http://www.nmfs.noaa.gov/msa2007/catchlimits.htm 
or upon request from Mark Millikin [see FOR FURTHER INFORMATION 
CONTACT].

VIII. Classification

    Pursuant to the Magnuson-Stevens Act, the NMFS Assistant 
Administrator has determined that these final NS1 guidelines are 
consistent with the Magnuson-Stevens Act, and other applicable law.
    The final NS1 guidelines have been determined to be significant for 
purposes of Executive Order 12866. NOAA prepared a regulatory impact 
review of this rulemaking, which is available at: http://www.nmfs.noaa.gov/msa2007/catchlimits.htm. This analysis discusses 
various policy options that NOAA considered in preparation of the 
proposed action, given NOAA's interpretation of the statutory terms in 
the MSRA, such as the appropriate meaning of the word ``limit'' in 
``Annual Catch Limit,'' and NOAA's belief that it has become necessary 
for Councils to consider separately the uncertainties in fishery 
management and the scientific uncertainties in stock evaluation in 
order to effectively set fishery management policies and ensure 
fulfillment of the goals to end overfishing and rebuild overfished 
stocks.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that these revisions to 
the NS1 guidelines, if adopted, would not have any significant economic 
impact on a substantial number of small entities. The factual basis for 
the certification was published in the proposed action and is not 
repeated here. Two commenters stated that an initial regulatory 
flexibility analysis should be prepared, and NMFS has responded to 
those comments in the ``Response to Comments.'' After considering the 
comments, NMFS has determined that a certification is still appropriate 
for this action. Therefore, a regulatory flexibility analysis is not 
required for this action and none was prepared.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 9, 2009.
 James W. Balsiger,
Acting Assistant Administrator, for Fisheries, National Marine 
Fisheries Service.

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

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

    Authority: 16 U.S.C. 1801 et seq.


[[Page 3204]]



0
2. 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 are part of a fishery;
    (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 (AM); 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 does not jeopardize the capacity of a stock or stock 
complex to produce MSY; the abundance of an overfished stock or stock 
complex be rebuilt to a level that is capable of producing MSY; and OY 
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 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) and (iv) 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 which is prepared by any Council 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)). Subject to certain exceptions and circumstances described 
in paragraph (h) of this section, this requirement takes effect in 
fishing year 2010, for fisheries determined subject to overfishing, and 
in fishing year 2011, for all other fisheries (Magnuson-Stevens Act 
section 303 note). ``Council'' includes the Regional Fishery Management 
Councils and the Secretary of Commerce, as appropriate (see Sec.  
600.305(c)(11)).
    (iv) Reference points. SDC, MSY, 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:
    (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 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. In general, when 
specifying limits and accountability measures intended to avoid 
overfishing and achieve sustainable fisheries, Councils must take an 
approach that considers uncertainty in scientific information and 
management control of the fishery. These guidelines describe how to 
address uncertainty such that there is a low risk that limits are 
exceeded as described in paragraphs (f)(4) and (f)(6) of this section.
    (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. As described in further detail in paragraph (d) 
of this section, Councils may review their FMPs to decide if all stocks 
are ``in the fishery'' or whether some fit the category of ``ecosystem 
component species.'' Councils must also describe fisheries data for the 
stocks, stock complexes, and ecosystem component species in their FMPs, 
or associated public documents such as Stock Assessment and Fishery 
Evaluation (SAFE) Reports. For all stocks and stock complexes that are 
``in the fishery'' (see paragraph (d)(2) of this section), 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:
    (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)(4) of this section).
    (4) Mechanisms for specifying ACLs and possible sector-specific 
ACLs in relationship to the ABC (see paragraphs (f)(5) and (h) of this 
section).
    (5) AMs (see paragraphs (g) and (h)(1) of this section).
    (6) Stocks and stock complexes that have statutory exceptions from 
ACLs (see paragraph (h)(2) of this section) or which fall under limited 
circumstances which require different approaches to meet the ACL 
requirements (see paragraph (h)(3) of this section).
    (d) Classifying stocks in an FMP--(1) Introduction. Magnuson-
Stevens Act section 303(a)(2) requires that an FMP contain, among other 
things, a description of the species of fish involved in the fishery. 
The relevant Council determines which specific target stocks and/or 
non-target stocks to include in a fishery. This section provides that a 
Council may, but is not required to, use an ``ecosystem component 
(EC)'' species classification. As a default, all stocks in an FMP are

[[Page 3205]]

considered to be ``in the fishery,'' unless they are identified as EC 
species (see Sec.  600.310(d)(5)) through an FMP amendment process.
    (2) Stocks in a fishery. Stocks in a fishery may be grouped into 
stock complexes, as appropriate. Requirements for reference points and 
management measures for these stocks are described throughout these 
guidelines.
    (3) ``Target stocks'' are stocks that fishers seek to catch for 
sale or personal use, including ``economic discards'' as defined under 
Magnuson-Stevens Act section 3(9).
    (4) ``Non-target species'' and ``non-target stocks'' are fish 
caught incidentally during the pursuit of target stocks in a fishery, 
including ``regulatory discards'' as defined under Magnuson-Stevens Act 
section 3(38). They may or may not be retained for sale or personal 
use. Non-target species may be included in a fishery and, if so, they 
should be identified at the stock level. Some non-target species may be 
identified in an FMP as ecosystem component (EC) species or stocks.
    (5) Ecosystem component (EC) species. (i) To be considered for 
possible classification as an EC species, the species should:
    (A) Be a non-target species or non-target stock;
    (B) Not be determined to be subject to overfishing, approaching 
overfished, or overfished;
    (C) Not be likely to become subject to overfishing or overfished, 
according to the best available information, in the absence of 
conservation and management measures; and
    (D) Not generally be retained for sale or personal use.
    (ii) Occasional retention of the species would not, in and of 
itself, preclude consideration of the species under the EC 
classification. In addition to the general factors noted in paragraphs 
(d)(5)(i)(A)-(D) of this section, it is important to consider whether 
use of the EC species classification in a given instance is consistent 
with MSA conservation and management requirements.
    (iii) EC species may be identified at the species or stock level, 
and may be grouped into complexes. EC species may, but are not required 
to, be included in an FMP or FMP amendment for any of the following 
reasons: For data collection purposes; for ecosystem considerations 
related to specification of OY for the associated fishery; as 
considerations in the development of conservation and management 
measures for the associated fishery; and/or to address other ecosystem 
issues. While EC species are not considered to be ``in the fishery,'' a 
Council should consider measures for the fishery to minimize bycatch 
and bycatch mortality of EC species consistent with National Standard 
9, and to protect their associated role in the ecosystem. EC species do 
not require specification of reference points but should be monitored 
to the extent that any new pertinent scientific information becomes 
available (e.g., catch trends, vulnerability, etc.) to determine 
changes in their status or their vulnerability to the fishery. If 
necessary, they should be reclassified as ``in the fishery.''
    (6) Reclassification. A Council should monitor the catch resulting 
from a fishery on a regular basis to determine if the stocks and 
species are appropriately classified in the FMP. If the criteria 
previously used to classify a stock or species is no longer valid, the 
Council should reclassify it through an FMP amendment, which documents 
rationale for the decision.
    (7) Stocks or species identified in more than one FMP. If a stock 
is identified in more than one fishery, Councils should choose which 
FMP will be the primary FMP in which management objectives, SDC, the 
stock's overall ACL and other reference points for the stock are 
established. Conservation and management measures in other FMPs in 
which the stock is identified as part of a fishery should be consistent 
with the primary FMP's management objectives for the stock.
    (8) Stock complex. ``Stock complex'' means 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. At the time a stock complex is 
established, the FMP should provide a full and explicit description of 
the proportional composition of each stock in the stock complex, to the 
extent possible. Stocks may be grouped into complexes for various 
reasons, including where stocks in a multispecies fishery cannot be 
targeted independent of one another and MSY can not be defined on a 
stock-by-stock basis (see paragraph (e)(1)(iii) of this section); where 
there is insufficient data to measure their status relative to SDC; or 
when it is not feasible for fishermen to distinguish individual stocks 
among their catch. The vulnerability of stocks to the fishery should be 
evaluated when determining if a particular stock complex should be 
established or reorganized, or if a particular stock should be included 
in a complex. Stock complexes may be comprised of: one or more 
indicator stocks, each of which has SDC and ACLs, and several other 
stocks; several stocks without an indicator stock, with SDC and an ACL 
for the complex as a whole; or one of more indicator stocks, each of 
which has SDC and management objectives, with an ACL for the complex as 
a whole (this situation might be applicable to some salmon species).
    (9) Indicator stocks. An indicator stock is a stock with measurable 
SDC that can be used to help manage and evaluate more poorly known 
stocks that are in a stock complex. If an indicator stock is used to 
evaluate the status of a complex, it should be representative of the 
typical status of each stock within the complex, due to similarity in 
vulnerability. 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 need to be more 
conservative so that the more vulnerable members of the complex are not 
at risk from the fishery. More than one indicator stock can be selected 
to provide more information about the status of the complex. When 
indicator stock(s) are used, periodic re-evaluation of available 
quantitative or qualitative information (e.g., catch trends, changes in 
vulnerability, fish health indices, etc.) is needed to determine 
whether a stock is subject to overfishing, or is approaching (or in) an 
overfished condition.
    (10) Vulnerability. A stock's vulnerability is a combination of its 
productivity, which depends upon its life history characteristics, and 
its susceptibility to the fishery. Productivity refers to the capacity 
of the stock to produce MSY and to recover if the population is 
depleted, and susceptibility is the potential for the stock to be 
impacted by the fishery, which includes direct captures, as well as 
indirect impacts to the fishery (e.g., loss of habitat quality). 
Councils in consultation with their SSC, should analyze the 
vulnerability of stocks in stock complexes where possible.
    (e) Features of MSY, SDC, and OY.--(1) MSY. Each FMP must include 
an estimate of MSY for the stocks and stock complexes in the fishery, 
as described in paragraph (d)(2) of this section).
    (i) Definitions. (A) MSY is the largest long-term average catch or 
yield that can be taken from a stock or stock complex

[[Page 3206]]

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. MSY should be estimated on a stock-
by-stock basis whenever possible. However, where MSY cannot be 
estimated for each stock in a stock complex, then MSY may be estimated 
for one or more indicator stocks for the complex or for the complex as 
a whole. 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)(iv) of this section. When indicator stocks are not used, MSY, or 
a suitable proxy, should be calculated for the stock complex as a 
whole.
    (iv) Specifying MSY. Because MSY is a long-term average, it need 
not be estimated annually, but it must be based on the best scientific 
information available (see Sec.  600.315), and should be re-estimated 
as required by changes in long-term environmental or ecological 
conditions, fishery technological characteristics, or new scientific 
information. When data are insufficient to estimate MSY directly, 
Councils should adopt other measures of reproductive potential, based 
on the best scientific information available, that can serve as 
reasonable proxies for MSY, Fmsy, and Bmsy, to 
the extent possible. The MSY for a stock is influenced by its 
interactions with other stocks in its ecosystem and these interactions 
may shift as multiple stocks in an ecosystem are fished. These 
ecological conditions should be taken into account, to the extent 
possible, when specifying MSY. Ecological conditions not directly 
accounted for in the specification of MSY can be among the ecological 
factors considered when setting OY below MSY. 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 possible, through the stock 
assessment process and peer review (see Sec.  600.335), and should be 
taken into account when specifying the ABC Control rule. Where this 
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.
    (2) Status determination criteria--(i) Definitions. (A) Status 
determination criteria (SDC) mean the quantifiable 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 (to overfish) occurs whenever a stock or stock 
complex is subjected to a level of fishing mortality or annual 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), on an annual basis, above which overfishing is 
occurring. The MFMT or reasonable proxy may be expressed either as a 
single number (a fishing mortality rate or F value), or as a function 
of spawning biomass or other measure of reproductive potential.
    (D) Overfishing limit (OFL) means the annual amount of catch that 
corresponds to the estimate of MFMT applied to a stock or stock 
complex's abundance and is expressed in terms of numbers or weight of 
fish. The OFL is an estimate of the catch level above which overfishing 
is occurring.
    (E) Overfished. A stock or stock complex is considered 
``overfished'' when its biomass has declined below a level that 
jeopardizes the capacity of the stock or stock complex to produce MSY 
on a continuing basis.
    (F) Minimum stock size threshold (MSST) means the level of biomass 
below which the stock or stock complex is considered to be overfished.
    (G) Approaching an overfished condition. A stock or stock complex 
is approaching an overfished condition when it is projected that there 
is more than a 50 percent chance that the biomass of the stock or stock 
complex will decline below the MSST within two years.
    (ii) Specification of SDC and overfishing and overfished 
determinations. SDC must be expressed in a way that enables the Council 
to monitor each stock or stock complex in the FMP, and determine 
annually, if possible, whether overfishing is occurring and whether the 
stock or stock complex is overfished. In specifying SDC, a Council must 
provide an analysis of how the SDC were chosen and how they relate to 
reproductive potential. Each FMP must specify, to the extent possible, 
objective and measurable SDC as follows (see paragraphs (e)(2)(ii)(A) 
and (B) of this section):
    (A) SDC to determine overfishing status. Each FMP must describe 
which of the following two methods will be used for each stock or stock 
complex to determine an overfishing status.
    (1) Fishing mortality rate exceeds MFMT. Exceeding the MFMT for a 
period of 1 year or more constitutes overfishing. 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.
    (2) Catch exceeds the OFL. Should the annual catch exceed the 
annual OFL for 1 year or more, the stock or stock complex is considered 
subject to overfishing.
    (B) SDC to determine overfished status. The MSST or reasonable 
proxy must be expressed in terms of spawning biomass or other measure 
of reproductive potential. To the extent possible, the MSST should 
equal whichever of the following is greater: One-half the MSY stock 
size, or the minimum stock size at which rebuilding to the MSY level 
would be expected to occur within 10 years, if the stock or stock 
complex were exploited at the MFMT specified under paragraph 
(e)(2)(ii)(A)(1) of this section. Should the estimated size of the 
stock or stock complex in a given year fall below this threshold, the 
stock or stock complex is considered overfished.
    (iii) Relationship of SDC to environmental 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.

[[Page 3207]]

    (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 (also see paragraph (j)(3)(ii) of this 
section). SDC should not be respecified.
    (B) If environmental 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 being in an overfished condition, 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) Has sufficient scientific merit;
    (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--(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. OY may be established at the stock 
or stock complex level, or at the fishery level.
    (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: a long-term series of catches such that the 
average catch is equal to the OY, overfishing is prevented, the long 
term average biomass is near or above Bmsy, and overfished 
stocks and stock complexes are rebuilt 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. The Secretary 
has an obligation to implement and enforce the FMP. If management 
measures prove unenforceable--or too restrictive, or not rigorous 
enough to prevent overfishing while achieving OY--they should be 
modified; an alternative is to reexamine the adequacy of the OY 
specification. Exceeding OY does not necessarily constitute 
overfishing. However, even if no overfishing resulted from exceeding 
OY, continual harvest at a level above OY would violate NS1, because OY 
was not achieved on a continuing basis. An FMP must contain an 
assessment and specification of OY, including a summary of information 
utilized in making such specification, consistent with requirements of 
section 303(a)(3) of the Magnuson-Stevens Act. A Council must identify 
those economic, social, and ecological factors relevant to management 
of a particular stock, stock complex, or fishery, and then evaluate 
them to determine the OY. The choice of a particular OY must be 
carefully documented to show that the OY selected will produce the 
greatest benefit to the Nation and prevent overfishing.
    (iii) 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 to obtain OY are:
    (A) The benefits of food production are 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.
    (B) 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.
    (C) 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 the evolutionary potential of species and ecosystems, and 
accommodating human use.
    (iv) Factors to consider in OY specification. Because fisheries 
have limited capacities, any attempt to maximize the measures of 
benefits described in paragraph (e)(3)(iii) of this section will 
inevitably encounter practical constraints. OY cannot exceed MSY in any 
circumstance, and must take into account the need to prevent 
overfishing and rebuild overfished stocks and stock complexes. OY is 
prescribed on the basis of MSY as reduced by social, economic, and 
ecological factors. To the extent possible, the relevant social, 
economic, and ecological factors used to establish OY for a stock, 
stock complex, or fishery should be quantified and reviewed in 
historical, short-term, and long-term contexts. Even where 
quantification of social, economic, and ecological factors is not 
possible, the FMP still must address them in its OY specification. The 
following is a non-exhaustive list of potential considerations for each 
factor. An FMP must address each factor but not necessarily each 
example.
    (A) 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.). 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.

[[Page 3208]]

    (B) 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.
    (C) 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, such as natural and manmade changes in wetlands or nursery 
grounds, and effects of pollutants on habitat and stocks.
    (v) Specification of OY. The specification of OY must be consistent 
with paragraphs (e)(3)(i)-(iv) of this section. 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. If management measures cannot adequately 
control fishing mortality so that the specified OY can be achieved 
without overfishing, the Council should reevaluate the management 
measures and specification of OY so that the dual requirements of NS1 
(preventing overfishing while achieving, on a continuing basis, OY) are 
met.
    (A) The amount of fish that constitutes the OY should be expressed 
in terms of numbers or weight of fish.
    (B) Either a range or a single value may be specified for OY.
    (C) All catch must be counted against OY, including that resulting 
from bycatch, scientific research, and all fishing activities.
    (D) The OY specification should be translatable into an annual 
numerical estimate for the purposes of establishing any total allowable 
level of foreign fishing (TALFF) and analyzing impacts of the 
management regime.
    (E) 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.
    (F) An OY established at a fishery level may not exceed the sum of 
the MSY values for each of the stocks or stock complexes within the 
fishery.
    (G) There should be a mechanism in the FMP for periodic 
reassessment of the OY specification, so that it is responsive to 
changing circumstances in the fishery.
    (H) Part of the OY may be held as a reserve to allow for factors 
such as uncertainties in estimates of stock size and 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.
    (vi) 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) 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.
    (B) 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).
    (C) Joint venture processing (JVP). When DAH exceeds DAP, the 
surplus is available for JVP.
    (f) Acceptable biological catch, annual catch limits, and annual 
catch targets. The following features (see paragraphs (f)(1) through 
(f)(5) of this section) of acceptable biological catch and annual catch 
limits apply to stocks and stock complexes in the fishery (see 
paragraph (d)(2) of this section).
    (1) Introduction. A control rule is a policy for establishing a 
limit or target fishing level that is based on the best available 
scientific information and is established by fishery managers in 
consultation with fisheries scientists. Control rules should be 
designed so that management actions become more conservative as biomass 
estimates, or other proxies, for a stock or stock complex decline and 
as science and management uncertainty increases. Examples of scientific 
uncertainty include uncertainty in the estimates of MFMT and biomass. 
Management uncertainty may include late catch reporting, misreporting, 
and underreporting of catches and is affected by a fishery's ability to 
control actual catch. For example, a fishery that has inseason catch 
data available and inseason closure authority has better management 
control and precision than a fishery that does not have these features.
    (2) 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 that accounts for the scientific 
uncertainty in the estimate of OFL and any other scientific uncertainty 
(see paragraph (f)(3) of this section), and should be specified based 
on the ABC control rule.
    (iii) ABC control rule means a specified approach to setting the 
ABC for a stock or stock complex as a function of the scientific 
uncertainty in the estimate of OFL and any other scientific uncertainty 
(see paragraph (f)(4) of this section).
    (iv) Annual catch limit (ACL) is the level of annual catch of a 
stock or stock complex that serves as the basis for invoking AMs. ACL 
cannot exceed the ABC, but may be divided into sector-ACLs (see 
paragraph (f)(5) of this section).

[[Page 3209]]

    (v) Annual catch target (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 actual catch 
at or below the ACL. ACTs are recommended in the system of 
accountability measures so that ACL is not exceeded.
    (vi) ACT control rule means a specified approach to setting the ACT 
for a stock or stock complex such that the risk of exceeding the ACL 
due to management uncertainty is at an acceptably low level.
    (3) Specification of ABC. ABC may not exceed OFL (see paragraph 
(e)(2)(i)(D) of this section). Councils should develop a process for 
receiving scientific information and advice used to establish ABC. This 
process should: Identify the body that will apply the ABC control rule 
(i.e. , calculates the ABC), and identify the review process that will 
evaluate the resulting ABC. The SSC must recommend the ABC to the 
Council. An SSC may recommend an ABC that differs from the result of 
the ABC control rule calculation, based on factors such as data 
uncertainty, recruitment variability, declining trends in population 
variables, and other factors, but must explain why. For Secretarial 
FMPs or FMP 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 they meet the international exception (see paragraph 
(h)(2)(ii)). 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. Also, see paragraph (f)(5) of 
this section for cases where a Council recommends that ACL is equal to 
ABC, and ABC is equal to OFL.
    (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 in the 
rebuilding plan.
    (4) ABC control rule. For stocks and stock complexes required to 
have an ABC, each Council must establish an ABC control rule based on 
scientific advice from its SSC. The determination of ABC should be 
based, when possible, on the probability that an actual catch equal to 
the stock's ABC would result in overfishing. This probability that 
overfishing will occur cannot exceed 50 percent and should be a lower 
value. The ABC control rule should consider reducing fishing mortality 
as stock size declines and may establish a stock abundance level below 
which fishing would not be allowed. The process of establishing an ABC 
control rule could also involve science advisors or the peer review 
process established under Magnuson-Stevens Act section 302(g)(1)(E). 
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 the scientific uncertainty in the estimate of OFL and any 
other scientific uncertainty. The ABC control rule should consider 
uncertainty in factors such as stock assessment results, time lags in 
updating assessments, the degree of retrospective revision of 
assessment results, and projections. The control rule may be used in a 
tiered approach to address different levels of scientific uncertainty.
    (5) 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 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 
triggered 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. ``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 paragraph (g)(5) of this section). 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.
    (6) ACT control rule. If ACT is specified as part of the AMs for a 
fishery, an ACT control rule is utilized for setting the ACT. The ACT 
control rule should clearly articulate how management uncertainty in 
the amount of catch in the fishery is accounted for in setting ACT. The 
objective for establishing the ACT and related AMs is that the ACL not 
be exceeded.
    (i) Determining management uncertainty. Two sources of management 
uncertainty should be accounted for in establishing the AMs for a 
fishery, including the ACT control rule if utilized: Uncertainty in the 
ability of managers to constrain catch so the ACL is not exceeded, and 
uncertainty in quantifying the true catch amounts (i.e., estimation 
errors). To determine the level of management uncertainty in 
controlling catch, analyses need to consider past management 
performance in the fishery and factors such as time lags in reported 
catch. Such analyses must be based on the best available scientific 
information from an SSC, agency scientists, or peer review process as 
appropriate.
    (ii) Establishing tiers and corresponding ACT control rules. Tiers 
can be established based on levels of management uncertainty associated 
with the fishery, frequency and accuracy of catch monitoring data

[[Page 3210]]

available, and risks of exceeding the limit. An ACT control rule could 
be established for each tier and have, as appropriate, different 
formulas and standards used to establish the ACT.
    (7) A Council may choose to use a single control rule that combines 
both scientific and management uncertainty and supports the ABC 
recommendation and establishment of ACL and if used ACT.
    (g) Accountability measures. The following features (see paragraphs 
(g)(1) through (5) of this section) of accountability measures apply to 
those stocks and stock complexes in the fishery.
    (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.
    (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: ACT; 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 triggered and 
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 or overage adjustments. 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 
overages, unless the best scientific information available shows that a 
reduced overage adjustment, or no adjustment, is needed to mitigate the 
effects of the overages. 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 re-evaluated, and modified if necessary, to improve 
its performance and effectiveness. 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.
    (4) 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, either inseason or on an annual basis, 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 AMs should be 
implemented if the average catch exceeds the average ACL. As a 
performance standard, if the average catch exceeds the average ACL for 
a stock or stock complex more than once in the last four years, then 
the system of ACLs and AMs should be re-evaluated and modified if 
necessary to improve its performance and effectiveness. The initial ACL 
and management measures may incorporate information from previous years 
so that AMs based on average ACLs can be applied from the first year. 
Alternatively, a Council could use a stepped approach where in year-1, 
catch is compared to the ACL for year-1; in year-2 the average catch 
for the past 2 years is compared to the average ACL; then in year 3 and 
beyond, the most recent 3 years of catch are compared to the 
corresponding ACLs for those years.
    (5) 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.
    (h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP 
amendments must establish ACL mechanisms and AMs for all stocks and 
stock complexes in the fishery, unless paragraph (h)(2) of this section 
is applicable. These mechanisms should describe the annual or multiyear 
process by which specific ACLs, AMs, and other reference points such as 
OFL, and ABC will be established. If a complex has multiple indicator 
stocks, each indicator stock must have its own ACL; an additional ACL 
for the stock complex as a whole is optional. In cases where fisheries 
(e.g., Pacific salmon) harvest multiple indicator stocks of a single 
species that cannot be distinguished at the time of capture, separate 
ACLs for the indicator stocks are not required and the ACL can be 
established for the complex as a whole.
    (1) In establishing ACL mechanisms and AMs, FMPs should describe:
    (i) Timeframes for setting ACLs (e.g., annually or multi-year 
periods);
    (ii) Sector-ACLs, if any (including set-asides for research or 
bycatch);
    (iii) AMs and how AMs are triggered and what sources of data will 
be used (e.g., inseason data, annual catch compared to the ACL, or 
multi-year averaging approach); and
    (iv) Sector-AMs, if there are sector-ACLs.
    (2) 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 length of time it takes for an individual to produce a 
reproductively active offspring is approximately 1 year and that the 
individual has only one breeding season in its lifetime. 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

[[Page 3211]]

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 and MSY.
    (3) 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, and stocks with unusual life history 
characteristics (e.g., Pacific salmon, where the spawning potential for 
a stock is spread over a multi-year period). In these circumstances, 
Councils may propose alternative approaches for satisfying the NS1 
requirements of the Magnuson-Stevens Act than those set forth in these 
guidelines. Councils must document their rationale for any alternative 
approaches for these limited circumstances 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 in the fishery, and EC species, 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 are part of a fishery.
    (j) Council actions to address overfishing and rebuilding for 
stocks and stock complexes in the fishery-- (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. FMPs or FMP amendments must establish ACL and 
AM mechanisms in 2010, for stocks and stock complexes determined to be 
subject to overfishing, and in 2011, for all other stocks and stock 
complexes (see paragraph (b)(2)(iii) of this section). To address 
practical implementation aspects of the FMP and FMP amendment process, 
paragraphs (j)(2)(i)(A) through (C) of this section clarifies the 
expected timing of actions.
    (A) In addition to establishing ACL and AM mechanisms, the ACLs and 
AMs themselves must be specified in FMPs, FMP amendments, implementing 
regulations, or annual specifications beginning in 2010 or 2011, as 
appropriate.
    (B) For stocks and stock complexes still determined to be subject 
to overfishing at the end of 2008, ACL and AM mechanisms and the ACLs 
and AMs themselves must be effective in fishing year 2010.
    (C) For stocks and stock complexes determined to be subject to 
overfishing during 2009, ACL and AM mechanisms and ACLs and AMs 
themselves should be effective in fishing year 2010, if possible, or in 
fishing year 2011, at the latest.
    (ii) If a stock or stock complex is overfished or approaching an 
overfished condition. (A) For notifications that a stock or stock 
complex is overfished or approaching an overfished condition made 
before July 12, 2009, a Council must prepare an FMP, FMP amendment, or 
proposed regulations within one year of notification. If the stock or 
stock complex is overfished, the purpose of the action is to specify a 
time period for ending overfishing and rebuilding the stock or stock 
complex that will be as short as possible as described under section 
304(e)(4) of the Magnuson-Stevens Act. If the stock or stock complex is 
approaching an overfished condition, the purpose of the action is to 
prevent the biomass from declining below the MSST.
    (B) For notifications that a stock or stock complex is overfished 
or approaching an overfished condition made after July 12, 2009, 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. If the stock or stock complex is overfished and overfishing 
is occurring, the rebuilding plan must end overfishing immediately and 
be consistent with ACL and AM requirements of the Magnuson-Stevens Act.
    (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) 
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.
    (B) For scenarios under paragraph (j)(2)(ii)(A) of this section, 
the starting year for the Tmin calculation is the first year 
that a rebuilding plan is implemented. For scenarios under paragraph 
(j)(2)(ii)(B) of this section, the starting year for the 
Tmin calculation is 2 years after notification that a stock 
or stock complex is overfished or the first year that a rebuilding plan 
is implemented, whichever is sooner.

[[Page 3212]]

    (C) If Tmin for the stock or stock complex is 10 years 
or less, then the maximum time allowable for rebuilding 
(Tmax) that stock to its Bmsy is 10 years.
    (D) If Tmin for the stock or stock complex exceeds 10 
years, then the maximum time allowable for rebuilding a stock or stock 
complex to its Bmsy is 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.
    (E) Ttarget shall not exceed Tmax, and should 
be calculated based on the factors described in this paragraph (j)(3).
    (ii) If a stock or stock complex reached the end of its rebuilding 
plan period and has not yet been determined to be rebuilt, then the 
rebuilding F should not be increased until the stock or stock complex 
has been demonstrated to be rebuilt. If the rebuilding plan was based 
on a Ttarget that was less than Tmax, and the 
stock or stock complex is not rebuilt by Ttarget, rebuilding 
measures should be revised, if necessary, such that the stock or stock 
complex will be rebuilt by Tmax. If the stock or stock 
complex has not rebuilt by Tmax, then the fishing mortality 
rate should be maintained at Frebuild or 75 percent of the 
MFMT, whichever is less.
    (iii) Council action addressing an overfished fishery must allocate 
both overfishing restrictions and recovery benefits fairly and 
equitably among sectors of the fishery.
    (iv) 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.
    (4) Emergency actions and interim measures. The Secretary, on his/
her own initiative or in response to a Council request, may implement 
interim measures to reduce overfishing or promulgate regulations to 
address an emergency (Magnuson-Stevens Act section 304(e)(6) or 
305(c)). In considering a Council request for action, the Secretary 
would consider, among other things, the need for and urgency of the 
action and public interest considerations, such as benefits to the 
stock or stock complex and impacts on participants in the fishery.
    (i) These measures may remain in effect for not more than 180 days, 
but may be extended for an additional 186 days if the public has had an 
opportunity to comment on the measures and, in the case of Council-
recommended measures, the Council is actively preparing an FMP, FMP 
amendment, or proposed regulations to address the emergency or 
overfishing on a permanent basis.
    (ii) Often, these measures need to be implemented without prior 
notice and an opportunity for public comment, as it would be 
impracticable to provide for such processes given the need to act 
quickly and also contrary to the public interest to delay action. 
However, emergency regulations and interim measures that do not qualify 
for waivers or exceptions under the Administrative Procedure Act would 
need to follow proposed notice and comment rulemaking procedures.
    (k) International overfishing. If the Secretary determines that a 
fishery is overfished or approaching a condition of being overfished 
due to excessive international fishing pressure, and for which there 
are no management measures (or no effective measures) to end 
overfishing under an international agreement to which the United States 
is a party, then the Secretary and/or the appropriate Council shall 
take certain actions as provided under Magnuson-Stevens Act section 
304(i). The Secretary, in cooperation with the Secretary of State, must 
immediately take appropriate action at the international level to end 
the overfishing. In addition, within one year after the determination, 
the Secretary and/or appropriate Council shall:
    (1) Develop recommendations for domestic regulations to address the 
relative impact of the U.S. fishing vessels on the stock. Council 
recommendations should be submitted to the Secretary.
    (2) Develop and submit recommendations to the Secretary of State, 
and to the Congress, for international actions that will end 
overfishing in the fishery and rebuild the affected stocks, taking into 
account the relative impact of vessels of other nations and vessels of 
the United States on the relevant stock. Councils should, in 
consultation with the Secretary, develop recommendations that take into 
consideration relevant provisions of the Magnuson-Stevens Act and NS1 
guidelines, including section 304(e) of the Magnuson-Stevens Act and 
paragraph (j)(3)(iv) 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, but do 
not alter the requirement of NS1 to prevent overfishing and rebuild 
overfished stocks.
    (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)(iv) 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 paragraph (e)(1)(iii) of this section). Also, scientific 
assessments must be based on the best information about the total range 
of the stock and potential biological structuring of the stock into 
biological sub-units, which may differ from the geographic units on 
which management is feasible.
    (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 
directs the Councils to apply economic and social factors towards 
sustained participation of fishing communities and to the extent 
practicable, minimize adverse economic impacts on such communities 
within the context of preventing overfishing and rebuilding overfished 
stocks as required under National Standard 1. Therefore, calculation of 
OY as reduced from MSY

[[Page 3213]]

should include 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.

[FR Doc. E9-636 Filed 1-15-09; 8:45 am]
BILLING CODE 3510-22-P