[Federal Register Volume 77, Number 86 (Thursday, May 3, 2012)]
[Proposed Rules]
[Pages 26238-26240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10683]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 120425420-2420-01]
RIN 0648-BB92


Fisheries of the United States; National Standard 1 Guidelines

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

ACTION: Advance notice of proposed rulemaking; request for comments;

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consideration of revision to National Standard 1 Guidelines.

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SUMMARY: NMFS issues this advance notice of proposed rulemaking (ANPR) 
to provide background information and request public comment on 
potential adjustments to the National Standard 1 Guidelines, one of 10 
national standards for fishery conservation and management contained in 
Section 301 of the Magnuson Stevens Fishery Conservation and Management 
Act. Since the guidelines were last updated in 2009, a number of issues 
regarding the application of the guidelines were identified by 
stakeholders and managers that may warrant their revision. This action 
provides the public with a formal opportunity to comment on the 
specific ideas mentioned in this ANPR, as well as any additional ideas 
and solutions that could improve provisions of the National Standard 1 
Guidelines.

DATES: Written comments regarding the issues in this ANPR must be 
received by 5 p.m., local time, on August 1, 2012.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-NMFS-2012-0059'', by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter ``NOAA-NMFS-2012-0059'' in the keyword 
search. Locate the document you wish to comment on from the resulting 
list and click on the ``Submit a Comment'' icon on the right of that 
line.
     Fax: 301-713-1193, Attn: Wesley Patrick.
     Mail: Wesley Patrick; National Marine Fisheries Service, 
NOAA; 1315 East-West Highway, Room 13436; Silver Spring, MD 20910.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to another 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Wesley Patrick, Fisheries Policy 
Analyst, National Marine Fisheries Service, 301-427-8566.

SUPPLEMENTARY INFORMATION:

Background

    Section 301(a) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) contains 10 national standards for fishery 
conservation and management. Any fishery management plans (FMP) 
prepared under the MSA, and any regulation promulgated pursuant to the 
MSA to implement any such plan, must be consistent with these national 
standards. National Standard 1 (NS1) of the MSA states that 
conservation and management measures shall prevent overfishing while 
achieving, on a continuing basis, the optimum yield (OY) from each 
fishery for the U.S. fishing industry.
    Section 301(b) of the MSA requires that the Secretary establish 
advisory guidelines (which shall not have the force and effect of law), 
based on the national standards to assist in the development of fishery 
management plans. Guidelines for NS1 are codified in 50 CFR 600.310. 
NMFS revised the NS1 Guidelines on January 16, 2009 (74 FR 3178) to 
reflect the requirements enacted by the Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act of 2006 for annual 
catch limits (ACLs) and accountability measures (AMs) to end and 
prevent overfishing.
    From 2007 to 2012, the 46 Federal FMPs have been amended to 
implement ACLs and AMs to end and prevent overfishing. In the course of 
this work, a number of issues regarding the application of the NS1 
Guidelines were identified that may warrant their revision. NMFS seeks 
public comments on these and any other issues related to NS1:
    1. Stocks in a fishery. The MSA requires that Councils develop FMPs 
for fisheries that require ``conservation and management'' (MSA 
302(h)(1)). The MSA provides the Councils with wide latitude in 
defining the scope of an FMP. Some FMPs include a relatively small 
number of species, focusing on the primary target species of the 
fishery. In other FMPs, a much broader range of species are included. 
The NS1 Guidelines establish and define Ecosystem Component (EC) 
species and provide that EC species may be included in the FMP but are 
not considered stocks in the fishery and thus are not required to have 
biological reference points or ACLs. There has been considerable 
discussion about the criteria for classifying EC species and the 
utility of the EC species concept. Thus, revision of the guidance may 
be warranted to further describe criteria for classifying stocks in a 
fishery and EC species.
    2. Overfishing and multi-year impacts. The current NS1 Guidelines 
provide that overfishing must be determined either by comparing catch 
to the overfishing limit (OFL) or by comparing fishing mortality to the 
maximum fishing mortality threshold (Sec.  600.310 (e)(2)(ii)(A)). 
Overfishing determinations are made for the most recent year for which 
there is information. Stakeholders have expressed interest in exploring 
alternative definitions of overfishing that would take a longer, multi-
year view of the impact of fishing on the stock's ability to produce 
maximum sustainable yield (MSY).
    3. Annual catch limits and optimum yield. In some fisheries, 
implementation of the guidance on acceptable biological catch (ABC) 
control rules, ACLs, and AMs has resulted in real or perceived 
reductions in catch. Questions have been raised about the relationship 
between ACLs and the objective of achieving the OY for a fishery. The 
MSA defines OY as being reduced from MSY to account for relevant 
economic, social, or ecological factors, and states that OY in an 
overfished fishery must provide for rebuilding the fishery (MSA 3(33)). 
There is interest from stakeholders in improving guidance to better 
address economic, social, and ecological considerations in the 
establishment of OY and to more clearly describe the relationship 
between ACL and OY.
    4. Mixed-stock fisheries and optimum yield. Management of mixed-
stock fisheries is challenging, because some stocks are relatively more 
abundant or are more or less susceptible to overfishing than others. 
The MSA requires that overfishing be prevented, and that the OY for a 
fishery provide for rebuilding overfished stocks. Nonetheless, some 
stakeholders believe that ACL and rebuilding requirements prevent them 
from achieving OY of healthy stocks. Further guidance on how OY should 
be specified to balance the multiple considerations in mixed-stock 
fisheries may be warranted.
    5. Scientific uncertainty and management uncertainty. The NS1 
Guidelines identify two types of uncertainty that should be addressed

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when setting catch limits and accountability measures: Scientific 
uncertainty and management uncertainty (Sec.  600.310 (f)). Scientific 
uncertainty is related to the uncertainty of calculating the true OFL, 
and is addressed by a Council's Scientific and Statistical Committee 
(SSC) by setting ABC below the OFL. Management uncertainty is the 
uncertainty of controlling catch so that it does not exceed the ACL, 
and is addressed when setting AMs and in setting an annual catch target 
below the ACL. Some stakeholders believe that consideration of both 
scientific and management uncertainty causes ACLs to be overly 
precautionary. Further clarification on the consideration of scientific 
and management uncertainty may be warranted.
    6. Data poor stocks. Stocks without sufficient data to conduct a 
formal scientific stock assessment are considered to be data poor 
stocks. Establishing appropriate ACLs for data poor stocks can be 
challenging. The experience of the Councils and their SSCs in 
implementing ABCs and ACLs for data poor stocks may provide valuable 
information on which to base improvements in the NS1 Guidelines for 
data poor stocks.
    7. Acceptable biological catch control rules. The NS1 Guidelines 
require a Council to establish an ABC control rule for each stock and 
stock complex, based on scientific advice from its SSC (Sec.  600.310 
(f)). ABC control rules are a specified approach to setting the ABC 
that addresses scientific uncertainty, and incorporate a policy 
decision on the acceptable level of risk that overfishing might occur. 
A variety of ABC control rules have been implemented and a review of 
those control rules could lead to improvements in the NS1 Guidelines. 
In addition, for some fisheries there is interest in implementing 
provisions that carry over unharvested allocations from one year to the 
next. Guidance may be needed on how to consider carry-over within ABC 
control rules.
    8. Catch accounting. Questions have been raised by managers about 
the types of ``catch'' that must be considered within the ABC and ACL, 
particularly in regard to catch resulting from exempted fishing permits 
and scientific research activities. The definition of catch in the NS1 
Guidelines includes 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. In the final rule response to comment number 35 (74 FR 3718; 
January 16, 2009), NMFS stated that this definition would include 
allocations for scientific research and mortality from any other 
fishing activity. Additional guidance may be needed to clarify how to 
account for all sources of mortality (e.g., bycatch, scientific 
research catch, etc.) when establishing ABCs and ACLs.
    9. Accountability measures. AMs are management controls to prevent 
ACLs from being exceeded, and to correct or mitigate overages of the 
ACL if they occur. AMs must be tailored to the specific needs of a 
fishery, and are key to the success of ACL systems in ending and 
preventing overfishing. NMFS invites comments on the guidance for AMs.
    10. ACL exceptions. Under the MSA, stocks that have a life cycle of 
approximately 1 year and stocks subject to international agreements are 
not required to have ACLs. The NS1 Guidelines describe that the life 
cycle exception applies to ``a stock for which the average length of 
time it takes for an individual to produce a reproductively active 
offspring is approximately 1 year and that the individual has only one 
breeding season in its lifetime'' (Sec.  600.310 (h)(2)(i)). The NS1 
Guidelines also describe that the international agreement exception 
applies to stocks that are subject to ``any bilateral or multilateral 
treaty, convention, or agreement which relates to fishing and to which 
the United States is party'' (Sec.  600.310 (h)(2)(ii)). NMFS invites 
comments on the guidance pertaining to these exceptions from the ACL 
requirements.
    11. Rebuilding progress and revising rebuilding plans. The current 
NS1 Guidelines address how NMFS should respond if a stock reaches the 
end of its rebuilding plan and is not fully rebuilt, or its rebuilding 
status is unknown. However, the guidelines do not address the situation 
that occurs during the course of a rebuilding plan when rebuilding 
progress is determined to be inadequate. Inadequate progress can result 
from a number of factors, including:
    a. Management measures that do not adequately control the fishery.
    b. Environmental factors that limit stock growth.
    c. Significant changes in the rebuilding target (Bmsy) resulting 
from a new stock assessment. NMFS intends to improve guidance on 
evaluating the progress of stocks in rebuilding plans and on revising 
the rebuilding plans in these situations.

Public Comments

    To help determine the scope of issues to be addressed and to 
identify significant issues related to this action, NMFS is soliciting 
written comments on this ANPR. The public is encouraged to submit 
comments related to the specific ideas mentioned in this ANPR, as well 
as any additional ideas and solutions that could improve provisions of 
the NS1 Guidelines. In addition to considering revisions to the NS1 
Guidelines, NMFS will consider whether it may be more appropriate to 
address some topics in technical guidance reports or policy directives 
than to change the guidelines codified at 50 CFR 600.310. NMFS welcomes 
comment on the appropriateness and utility of additional technical 
guidance reports and policy directives.

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

    Dated: April 27, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-10683 Filed 4-30-12; 4:15 pm]
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