3178 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

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. 

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 MagnusonStevens 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: Mark.Millikin@noaa.gov. 

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. 


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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. 

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 nearfuture 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 §§ 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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3182 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

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 § 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, Federallymanaged 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. 


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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 

§ 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 


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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 § 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 § 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 

§ 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 


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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 

§ 600.310(d)(5)(i)). However, such 

species could also be ‘‘stocks in the 

fishery,’’ as described under the NS3 

guidelines (§ 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 nontarget 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 § 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 § 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 


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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 speciesspecific 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 stockspecific 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 § 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 § 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 § 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 reorganizing stock complexes. 

Lastly, NMFS agrees and has modified 

the phrase in § 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 § 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 § 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 § 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 

§ 600.310(d) of the final action as well 


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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 

§ 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 

§ 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 § 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 


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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 

§ 600.310(e)(2)(iii)(B) from the proposed 

action as it contradicts 

§ 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 § 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 § 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 

§ 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 longterm 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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§ 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 § 600.310(d)(4) of 

the current NS1 guidelines occurs in 

§ 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 (§ 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 

§ 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 

§ 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 longterm 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 longterm 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 


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framework for ACLs contains buffers 

that are not required by the MagnusonStevens 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 postrelease 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 § 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 § 600.310(d)(10) of the final action. 

The ABC control rule (see 

§ 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 

§ 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 

§ 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 (§ 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. 


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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 § 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 § 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 wellprepared 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 


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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 

§ 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 

§ 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 § 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 §§ 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 

(§ 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 

§ 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 

§ 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 


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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 § 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 ‘‘reevaluated’’ in §§ 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 reevaluate 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 reevaluation 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 

(§ 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 § 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 


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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 reevaluated.’’ 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 reevaluate 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 

§ 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 

§ 600.310(g)(3) is inconsistent with a 

similar sentence in paragraph 

§ 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 

§ 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 § 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 § 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 § 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 


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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 

§ 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 sectorACLs. 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 threeyear 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 multiyear average for the recreational sector, 

is needed due to limitations in the data 

collection. However, some commenters 


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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 reevaluated 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 § 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 StateFederal 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 comanaged 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-bycase basis. 

Comment 73: NMFS received a 

question regarding the meaning of the 

phrase ‘‘large majority’’ in 

§ 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, § 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 


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AMs for a fishery and believes the 

guidelines are adequate. Under 

§ 600.310(i) of the final action, FMPs, or 

associated documents such as SAFE 

reports, must describe data collection 

methods. In addition, § 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 caseby-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. 


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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 (§ 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 

§ 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 


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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, 


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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 

§ 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 § 600.310 (j)(3)(i)(E) of 

the final action. That text is unnecessary 

given that § 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 § 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 

§ 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. 


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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 § 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 


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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 MagnusonStevens Act’’ and ‘‘the logical extension 

thereof’’ (see section 600.305(c) of the 

MSA). In the following, items in 

paragraphs of § 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 

■ 1. The authority citation for part 600 

continues to read as follows: 

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


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■ 2. Section 600.310 is revised to read 

as follows: 

§ 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 

§ 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 MagnusonStevens 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 


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considered to be ‘‘in the fishery,’’ unless 

they are identified as EC species (see 

§ 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 ‘‘nontarget 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 nontarget 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 


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under prevailing ecological, 

environmental conditions and fishery 

technological characteristics (e.g., gear 

selectivity), and the distribution of catch 

among fleets. 

(B) MSY fishing mortality rate (Fmsy) is 

the fishing mortality rate that, if applied 

over the long term, would result in 

MSY. 

(C) MSY stock size (Bmsy) means the 

long-term average size of the stock or 

stock complex, measured in terms of 

spawning biomass or other appropriate 

measure of the stock’s reproductive 

potential that would be achieved by 

fishing at Fmsy. 

(ii) MSY for stocks. MSY should be 

estimated for each stock based on the 

best scientific information available (see 

§ 600.315). 

(iii) MSY for stock complexes. 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 § 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 § 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. 


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(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). MagnusonStevens 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 fisheryrelated indicators (e.g., number of 

fishery permits, number of commercial 

fishing vessels, number of party and 

charter trips, landings, ex-vessel 

revenues etc.) and non-fishery related 

indicators (e.g., unemployment rates, 

percent of population below the poverty 

level, population density, etc.). 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. 


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(B) Economic factors. Examples are 

prudent consideration of the risk of 

overharvesting when a stock’s size or 

reproductive potential is uncertain (see 

§ 600.335(c)(2)(i)), satisfaction of 

consumer and recreational needs, and 

encouragement of domestic and export 

markets for U.S. harvested fish. Other 

factors that may be considered include: 

The value of fisheries, the level of 

capitalization, the decrease in cost per 

unit of catch afforded by an increase in 

stock size, the attendant increase in 

catch per unit of effort, alternate 

employment opportunities, and 

economic contribution to fishing 

communities, coastal areas, affected 

states, and the nation. 

(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 sectorACLs (see paragraph (f)(5) of this 

section). 


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(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 


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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 year1, 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 setasides 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 sectorACLs. 

(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 MagnusonStevens 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 


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subject to management under an 

international agreement, which is 

defined as ‘‘any bilateral or multilateral 

treaty, convention, or agreement which 

relates to fishing and to which the 

United States is a party’’ (see MagnusonStevens Act section 3(24)). These stocks 

would still need to have SDC 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 MagnusonStevens 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 MagnusonStevens 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 MagnusonStevens Act section 304(e)(4). This 

target time for rebuilding (Ttarget) shall 

be as short as possible, taking into 

account: The status and biology of any 

overfished stock, the needs of fishing 

communities, recommendations by 

international organizations in which the 

U.S. participates, and interaction of the 

stock within the marine ecosystem. In 

addition, the time period shall not 

exceed 10 years, except where biology 

of the stock, other environmental 

conditions, or management measures 

under an international agreement to 

which the U.S. participates, dictate 

otherwise. SSCs (or agency scientists or 

peer review processes in the case of 

Secretarial actions) shall provide 

recommendations for achieving 

rebuilding targets (see MagnusonStevens Act section 302(g)(1)(B)). The 

above factors enter into the specification 

of Ttarget as follows: 

(A) The ‘‘minimum time for 

rebuilding a stock’’ (Tmin) 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. 


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3212 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

(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 Councilrecommended 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 MagnusonStevens Act section 304(i). The 

Secretary, in cooperation with the 

Secretary of State, must immediately 

take appropriate action at the 

international level to end the 

overfishing. In addition, within one year 

after the determination, the Secretary 

and/or appropriate Council shall: 

(1) Develop recommendations for 

domestic regulations to address the 

relative impact of the U.S. fishing 

vessels on the stock. Council 

recommendations should be submitted 

to the Secretary. 

(2) Develop and submit 

recommendations to the Secretary of 

State, and to the Congress, for 

international actions that will end 

overfishing in the fishery and rebuild 

the affected stocks, taking into account 

the relative impact of vessels of other 

nations and vessels of the United States 

on the relevant stock. Councils should, 

in consultation with the Secretary, 

develop recommendations that take into 

consideration relevant provisions of the 

Magnuson-Stevens Act and NS1 

guidelines, including section 304(e) of 

the Magnuson-Stevens Act and 

paragraph (j)(3)(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 MagnusonStevens Reauthorization Act section 

503(f), as appropriate. 

(3) Considerations for assessing 

‘‘relative impact.’’ ‘‘Relative impact’’ 

under paragraphs (k)(1) and (2) of this 

section may include consideration of 

factors that include, but are not limited 

to: Domestic and international 

management measures already in place, 

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 

§ 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 

§ 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 

§ 600.335). Councils must build into the 

reference points and control rules 

appropriate consideration of risk, taking 

into account uncertainties in estimating 

harvest, stock conditions, life history 

parameters, or the effects of 

environmental factors. 

(4) National Standard 8 (see 

§ 600.345). National Standard 8 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 


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

§ 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 longterm net benefits to the Nation; 

(2) Mitigating measures have been 

considered and it has been 

demonstrated that a similar level of 

long-term net benefits cannot be 

achieved by modifying fleet behavior, 

gear selection/configuration, or other 

technical 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 


pwalker on PROD1PC71 with RULES3