32526 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Proposed Rules 

and commercial information, we solicit 

comment from the public, other 

governmental agencies, the scientific 

community, industry, and any other 

interested parties. Title 50, CFR 

424.16(c)(3) requires the Secretary of 

Commerce to promptly hold at least one 

public hearing if any person requests 

one within 45 days of publication of a 

proposed regulation to change the listed 

status of a species under the ESA. 

Requests for public hearing must be 

made in writing (see DATES and 

ADDRESSES). Such hearings provide the 

opportunity for interested individuals 

and parties to give comments, exchange 

information and opinions, and engage in 

a constructive dialogue concerning this 

proposed rule. We encourage the 

public’s involvement in such ESA 

matters. 

Classification 

National Environmental Policy Act 

The 1982 amendments to the ESA, in 

section 4(b)(1)(A), restrict the 

information that may be considered 

when assessing species for listing to the 

best scientific and commercial data 

available. Based on this limitation of 

criteria for a listing decision and the 

opinion in Pacific Legal Foundation v. 

Andrus, 657 F 2d 829 (6th Cir.1981), we 

have concluded that ESA listing actions 

are not subject to the environmental 

assessment requirements of the National 

Environmental Policy Act. (see also 

NOAA Administrative Order 216 6.) 

Executive Order (E.O.) 12866, 

Regulatory Flexibility Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. In addition, this rule is 

exempt from review under E. O. 12866. 

Paperwork Reduction Act 

This proposed rule does not contain 

a collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific consultation directives 

for situations where a regulation will 

preempt state law, or impose substantial 

direct compliance costs on state and 

local governments (unless required by 

statute). Neither of these circumstances 

is applicable to this proposed listing 

determination. In keeping with the 

intent of the Administration and 

Congress to provide continuing and 

meaningful dialogue on issues of mutual 

State and Federal interest, this proposed 

rule will be given to the relevant state 

agencies in each state in which the 

Caribbean monk seal formerly occurred, 

and each will be invited to comment. 

List of Subjects in 50 CFR Part 224 

Administrative practice and 

procedure, Endangered and threatened 

species, Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Dated: June 3, 2008. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, we propose to amend 50 CFR 

part 224 as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

1. The authority citation for part 224 

continues to read as follows: 

Authority: 16 U.S.C. 1531 1543 and 16 

U.S.C. 1361 et seq. 

2. Amend § 224.101(b) by removing 

the term ‘‘Caribbean monk seal 

(Monachus tropicalis);’’. 

[FR Doc. E8–12808 Filed 6–6–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 600 

[Docket No. 070717348–7766–02] 

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: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes revisions to 

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, 

maximum sustainable yield (MSY), 

optimum yield (OY), and other 

applicable reference points. The intent 

of this action is to facilitate compliance 

with requirements of the MagnusonStevens Act to end and prevent 

overfishing, rebuild overfished stocks 

and achieve OY. 

DATES: Comments must be received by 

September 8, 2008. 

ADDRESSES: You may submit comments, 

identified by 0648-AV60, by any of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking portal: http:// 

www.regulations.gov; 

• Fax: 301–713–1193, Attn: Mark 

Millikin; 

• Mail: Mark R. Millikin, National 

Marine Fisheries Service, NOAA, Office 

of Sustainable Fisheries, 1315 East-West 

Highway, Room 13357, Silver Spring, 

MD 20910 (mark outside of envelope 

‘‘Comments on Annual Catch Limits 

proposed rule’’); 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, Wordperfect, or Adobe 

PDF file formats only. 

Copies of the Regulatory Impact 

Review (RIR)/Regulatory Flexibility Act 

Analysis (RFAA) for this proposed rule 

are available from Mark R. Millikin at 

the address listed above. The RIR/RFAA 

document is also available via the 

internet at http://www.nmfs.noaa.gov/ 

msa2007/catchlimits.htm. 

FOR FURTHER INFORMATION CONTACT: 

Mark R. Millikin, Senior Fishery 

Management Specialist, 301–713–2341. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Overview of Proposed Revisions 

II. Acronyms 

III. Background 

IV. NMFS’s Proposed Rule for Further 

Revisions to NS1 Guidelines in 2005 

V. NMFS’s Initial Action on MSRA 

Requirements for ACLs 

VI. MSRA Ending Overfishing Requirements 

VII. Reasons for Overfishing and 

Expectations for ACLs to Prevent/End 

Overfishing 


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VIII. Definition, Interpretation, and 

Application of the Term ‘‘Fishery’’ and 

Its Relevance to ACLs 

A. Stocks in the Fishery 

B. Ecosystem Component Species 

C. Stocks Identified in More Than One 

FMP 

D. Stock Complexes 

IX. Statutory Exceptions to Requirements for 

ACLs and AMs and Flexibility in 

Application of the NS1 Guidelines 

X. MSRA Requirements for SSCs Related to 

ACLs 

XI. MSY, OY, and SDC: A Review 

XII. Description of the Relationship of OFL 

to MSY and ACT to OY 

XIII. Definition Framework for OFL, ABC, 

ACL, and ACT 

XIV. Control Rules 

XV. Sector ACLs, ACTs, and AMs 

XVI. Accountability Measures 

XVII. Summary of Items to Include in FMPs 

XVIII. Change in Timetable When 

Establishing a Rebuilding Plan 

XIX. Establishing the Length of Time for a 

Rebuilding Plan 

XX. Action When a Stock’s Rebuilding Plan 

Ends and the Stock Is Not Rebuilt 

XXI. Changes to the definitions of Some 

Components of MSY 

XXII. Social, Economic and Ecological 

Factors as They Relate to OY 

XXIII. Scope of This Proposed Action 

XXIV. Republishing Codified Text in Its 

Entirety 

XXV. Classification 

I. Overview of Proposed Revisions 

NMFS fulfills the requirements of 

section 301(b) of the Magnuson-Stevens 

Act—‘‘The Secretary shall establish 

advisory guidelines (which shall not 

have the force and effect of law), based 

on national standards, to assist in the 

development of fishery management 

plans,’’ with its national standard 

guidelines that appear at 50 CFR 

600.310 through 50 CFR 600.355. NMFS 

is proposing revisions to the NS1 

guidelines to address, among other 

things, new requirements for fisheries 

undergoing overfishing, to have ACLs 

and AMs to end overfishing by 2010, 

and all fisheries to have ACLs and AMs 

in place to prevent or end overfishing by 

2011, and beyond. A stock or stock 

complex may not require an ACL and 

AMs if it qualifies for a statutory 

exception under the Magnuson-Stevens 

Act. Other proposed revisions to the 

NS1 guidelines include: (1) A 

description of the relationship between 

MSY, OY, overfishing limits (OFL), 

acceptable biological catch (ABC), 

ACLs, and annual catch targets (ACTs); 

(2) guidance on how to combine the use 

of ACLs and AMs for a stock to prevent 

overfishing when possible, and adjust 

ACTs or ACLs, or both, and AMs, if an 

ACL is exceeded; (3) allowing for 

inclusion of ecosystem component (EC) 

species in FMPs and, in such cases, 

guidance for how to classify which 

stocks are ‘‘in the fishery’’ and which 

species are ecosystem components; (4) 

replacing MSY control rules with ABC 

control rules and replacing OY control 

rules with ACT control rules; (5) new 

requirements for scientific and 

statistical committees (SSC); (6) 

changing the timeline to prepare new 

rebuilding plans; (7) revised guidance 

on how to establish rebuilding time 

targets; and (8) advice on action to take 

at the end of a rebuilding period if a 

stock is not yet rebuilt. 

II. Acronyms 

ABC—acceptable biological catch 

ACL—annual catch limit 

ACT—annual catch target 

AM—accountability measures 

ANPR—Advance Notice of Proposed 

Rulemaking 

Bmsy—MSY stock size 

EC—ecosystem component species 

EEZ—Exclusive Economic Zone 

Fmsy—MSY fishing mortality rate 

FMP—fishery management plan 

MFMT—maximum fishing mortality 

threshold 

MSA—Magnuson-Stevens Act 

MSRA—Magnuson-Stevens Fishery 

Conservation and Management 

Reauthorization Act 

MSST—minimum stock size threshold 

MSY—maximum sustainable yield 

NOI—Notice of Intent 

NS1—National Standard 1 

OFL—overfishing limit 

OY—optimum yield 

SDC—status determination criteria 

SFA—Sustainable Fisheries Act 

SSC—scientific and statistical 

committee 

Tmax—maximum time allowable for 

rebuilding a stock 

Tmin—minimum time for rebuilding a 

stock 

Ttarget—target time for rebuilding a stock 

III. Background 

The MSA serves as the chief authority 

for fisheries management in the U.S. 

Exclusive Economic Zone (EEZ). 

Section 301(b) of the MSA requires that 

‘‘The Secretary shall establish advisory 

guidelines (which shall not have the 

force and effect of law), based on the 

national standards, to assist in the 

development of fishery management 

plans.’’ Guidelines for the national 

standards are codified in subpart D of 50 

CFR part 600. The guidelines for 

national standards were last revised 

through a final rule published in the 

Federal Register on May 1, 1998 (63 FR 

24212), by adding revisions to the 

guidelines for National Standards 1 

(optimum yield), 2 (scientific 

information), 4 (allocations), 5 

(efficiency), and 7 (costs and benefits); 

and adding new guidelines for National 

Standards 8 (communities), 9 (bycatch), 

and 10 (safety of life at sea). 

The guidelines for NS1 were revised 

extensively in the final rule published 

on May 1, 1998, to bring them into 

conformance with revisions to the MSA, 

as amended in 1996 by the Sustainable 

Fisheries Act (SFA). In particular, the 

1998 revisions to the NS1 guidelines 

addressed new requirements for FMPs 

brought about by SFA amendments to 

MSA section 304(e) (rebuilding 

overfished fisheries). 

The Magnuson-Stevens Fishery 

Conservation and Management 

Reauthorization Act of 2006 (MSRA), 

which President Bush signed into law 

on January 12, 2007, included new 

requirements regarding preventing and 

ending overfishing and rebuilding 

fisheries. Therefore, NMFS is proposing 

revisions to the NS1 guidelines at 50 

CFR 600.310, to integrate these new 

requirements with existing provisions 

related to overfishing, rebuilding 

overfished stocks, and achieving 

optimum yield. 

IV. NMFS’s Proposed Rule for Further 

Revisions to NS1 Guidelines in 2005 

NMFS published an advance notice of 

proposed rulemaking (ANPR) in 2003 

(68 FR 7492, February 14, 2003), and a 

proposed rule in 2005 (70 FR 36240, 

June 22, 2005), in the Federal Register 

to propose further revisions to the NS1 

guidelines. NMFS sought to improve the 

utility of the 1998 guidelines in 

assisting the regional fishery 

management councils, and the Secretary 

of Commerce (Secretary) in the case of 

a Secretarial Amendment or a 

Secretarial FMP (denoted collectively 

hereafter as ‘‘Councils,’’ as 50 CFR 

600.305(c)(11) provides that ‘‘Council’’

includes both the regional fishery 

management councils and the Secretary 

when preparing FMPs or amendments), 

when establishing or revising status 

determination criteria (SDC) for 

overfishing and overfished definitions 

for stocks, and constructing or revising 

rebuilding plans for overfished stocks. 

Although NMFS received many 

public comments on the ANPR and the 

2005 proposed rule, NMFS decided not 

to pursue publication of a final rule 

when it learned that Congress was 

preparing an amendment to the MSA 

that seemed likely to revise how to 

manage stocks undergoing overfishing 

and stocks that need a rebuilding plan. 

Congress’s efforts culminated in passage 

of the 2006 MSRA. 


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V. NMFS’s Initial Action on MSRA 

Requirements for ACLs 

NMFS published a notice of intent 

(NOI) to prepare an environmental 

impact statement (EIS) and 

commencement of a scoping period for 

ACLs and AMs in the Federal Register 

on February 14, 2007 (72 FR 7016), with 

a comment period ending date of April 

17, 2007. NMFS held nine scoping 

sessions, one associated with each of the 

eight Regional Fishery Management 

Councils’ meetings and one at NMFS 

Headquarters in Silver Spring, MD. 

Comments that NMFS received are 

contained in ‘‘Summary of Comments 

Received on NMFS Proposal to Develop 

Guidance on ACLs and AMs, July 

2007,’’ that is available at the NMFS 

Web site: http://www.nmfs.noaa.gov/ 

msa2007/catchlimits.htm. 

The NOI indicated that an 

environmental assessment or EIS would 

be prepared for this action. However, 

NMFS has decided that, for purposes of 

compliance with the National 

Environmental Policy Act, a categorical 

exclusion is appropriate for this action. 

The proposed action would provide 

general guidance on ACL and AM and 

other requirements, but there is 

considerable diversity in federallymanaged fisheries and FMPs. Thus, any 

analysis of the environmental, 

economic, and social impacts of the NS1 

guidelines would be highly speculative. 

Potential environmental, economic, and 

social impacts cannot be meaningfully 

analyzed until the Councils apply the 

guidelines to specific fisheries and 

FMPs. At that time, the Councils would 

prepare an EIS or EA, as appropriate. 

VI. MSRA Ending Overfishing 

Requirements 

Section 104(a)(10) of the MSRA 

established new requirements to end 

and prevent overfishing, including 

ACLs and AMs. Section 303(a)(15) was 

added to the MSA to read as follows: 

‘‘establish a mechanism for specifying 

annual catch limits in the plan 

(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.’’ ACLs and AMs are 

required by fishing year 2010 if 

overfishing is occurring in a fishery, and 

they are required for all other fisheries 

by fishing year 2011. 

In practical terms, given the time it 

takes to prepare and implement an FMP 

amendment, if the status of one or more 

stocks in a fishery at the end of 2008 is 

‘‘subject to overfishing,’’ Councils 

should submit ACL and AM 

mechanisms and actual ACLs for that 

fishery to be effective in fishing year 

2010. If overfishing is determined to be 

occurring in a fishery in 2009, Councils 

should submit ACL and AM 

mechanisms and actual ACLs for that 

fishery to be effective in fishing year 

2010, if possible, or in fishing year 2011, 

at the latest. All fisheries must have 

ACL and AM mechanisms and actual 

ACLs by the fishing year 2011, and 

beyond. The Secretary should amend 

Secretarial FMPs, to comply with ACL 

and AM requirements on the same 

timetable. Section 305(c) of the MSA, 

which was unchanged by MSRA, also 

provides authority to the Secretary to 

promulgate emergency regulations or 

interim measures necessary to address 

an emergency or overfishing for any 

fishery without regard to whether an 

FMP exists for such fishery. 

NMFS recognizes that the phrase, ‘‘at 

a level such that overfishing does not 

occur’’ in section 303(a)(15) of the MSA 

is subject to different interpretations, as 

reflected in the varying comments 

received during scoping. On the one 

hand, the phrase could be interpreted to 

mean that overfishing is strictly 

prohibited at any cost. On the other 

hand, section 303(a)(15) refers to a 

‘‘mechanism’’ for setting ACLs, 

including AMs, which seems to imply a 

more dynamic process that allows for 

adjustment of management measures as 

a fishery is carried out. The only way to 

ensure absolutely no overfishing occurs 

is to stop fishing. As long as fishing 

occurs, there is a chance for occasional 

instances of overfishing due to scientific 

uncertainty of data, influence of nonfishing factors, and management 

uncertainty. Continued overfishing for a 

period of years (chronic overfishing), 

presents the greatest danger to the 

health of fish stocks, and often leads to 

stocks becoming overfished. NMFS has 

noted that overfished stocks with 

chronic overfishing seem to seldom 

rebuild, whereas overfished stocks that 

are rarely subject to overfishing have a 

better chance of rebuilding. 

Taking the above considerations into 

account, NMFS believes that the ACL 

requirement should be interpreted to 

provide for some flexibility given 

scientific and management uncertainty 

and other factors, but at the same time, 

must address overfishing and facilitate 

rebuilding. Chronic overfishing can be 

prevented by ensuring that the 

combination of ACLs and AMs decrease 

the risk of future overfishing each 

successive time an ACL is exceeded. 

NMFS thus proposes a performance 

standard such that if catch of a stock 

exceeds its ACL more often than once in 

the last four years (i.e., more often than 

25 percent of the time), then the system 

of ACLs, ACTs and AMs should be reevaluated to improve its performance 

and effectiveness (see § 600.310(g)(3) in 

this proposed action). NMFS believes 

that allowing a higher frequency of the 

ACL being exceeded would not 

safeguard enough against overfishing. 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. 

VII. Reasons for Overfishing and 

Expectations for ACLs to Prevent/End 

Overfishing 

The ‘‘NMFS Fourth Quarterly Report 

for 2007 Status of U.S. Fisheries’’

indicates that 41 stocks managed by 

federal FMPs were undergoing 

overfishing as of December 31, 2007. 

Stocks become listed as ‘‘overfishing’’ or 

remain in an overfishing status for a 

variety of reasons, including: 

1. The goal of the FMP may be to end 

overfishing over several years by 

gradually reducing fishing mortality 

rates instead of ending overfishing 

immediately. 

2. Management measures have proven 

ineffective at ending overfishing (e.g., 

lack of inseason closure authority for 

the fishery or management measures are 

aimed at achieving a target catch that is 

set too close to the catch amount that 

results in overfishing, or both). 

3. Management measures to address 

overfishing have not been implemented 

yet. 

4. Recent change in scientific advice 

(i.e., the Council has not had sufficient 

time to amend the FMP and no 

automatic measures exist in the FMP to 

make necessary adjustments to end 

overfishing in the subsequent fishing 

year). 

5. Bycatch mortality in other fisheries 

has not been addressed adequately or is 

poorly known. 

6. Data sufficient to verify whether or 

not overfishing is occurring are not 

available, so the existing overfishing 

determination is retained. 

7. International fishing pressure is 

responsible for the large majority of 

overfishing. 

8. Fishing pressure in state or 

territorial waters is responsible for the 

large majority of overfishing, federal 

action alone is not sufficient to end 

overfishing, and managers in the various 

jurisdictions are unable thus far to agree 

on a concerted approach for preventing 

overfishing. 

NMFS believes that the ACL and AM 

requirements will address overfishing 

that results from reasons 1, 2, 3, and 4 


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Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Proposed Rules 32529 

above. Better scientific data, along with 

adequate ACLs and AMs, should enable 

Councils to prevent overfishing for 

reasons 5 and 6. Stocks that are 

undergoing overfishing for reason 7 

would be exempt from the ACL 

requirement (see §§ 600.310(h)(2)(ii) and 

600.310(k) of this proposed action for 

discussion of international fisheries). 

There may be circumstances where 

managers in various jurisdictions are 

unable to agree on an ACL and AMs that 

would end or prevent overfishing for a 

fishery described under reason 8. In 

such cases, these proposed guidelines 

would require an ACL for the overall 

fishery, but AMs would be implemented 

only for the portion of the fishery under 

federal management authority. 

VIII. Definition, Interpretation, and 

Application of the Term ‘‘Fishery’’ and 

Its Relevance to ACLs 

The MSA, as amended by MSRA, 

requires that a Council shall develop 

ACLs ‘‘for each of its managed fisheries’’

(see MSA section 302(h)(6)) and as 

noted earlier, that each FMP have a 

mechanism for specifying ACLs ‘‘at a 

level such that overfishing does not 

occur in the fishery’’ (see MSA section 

303(a)(15)). Consistent with these 

sections of the MSA, the proposed NS1 

guidelines provide that ACLs and AMs 

are needed for each ‘‘fishery’’ under 

federal FMP management, unless 

covered by a statutory exception. 

The MSA defines ‘‘fishery’’ broadly, 

and this definition did not change with 

the passage of the MSRA. A ‘‘fishery’’ is 

‘‘one or more stocks of fish which can 

be treated as a unit for purposes of 

conservation and management and 

which are identified on the basis of 

geographical, scientific, technical, 

recreational and economic 

characteristics,’’ and ‘‘any fishing of 

such stocks’’ (see MSA section 3(13) and 

50 CFR 600.10). The term ‘‘fishery’’ can 

mean different things in different 

contexts. For example, when dealing 

with biological concepts such as 

determining a status of overfishing or 

overfished, the NS1 guidelines generally 

apply at the ‘‘stock or stock complex’’

level (See, e.g., 50 CFR 600.310(c)(1), (d) 

(defining MSY and ‘‘overfish’’ with 

regard to ‘‘stock or stock complex’’) and 

§ 600.305(c)(12) (explaining that ‘‘stock 

or stock complex’’ is used as a synonym 

for ‘‘fishery’’ in NS guidelines). In other 

instances, such as managing a fishery 

for OY, the term ‘‘fishery’’ is viewed 

more broadly (see 50 CFR 600.310(f) 

(referring to OY at the ‘‘fishery’’ and not 

the ‘‘stock or stock complex’’ level)). 

Given the broad definition of 

‘‘fishery,’’ the Councils have had, and 

continue to have, considerable 

discretion in defining the ‘‘fishery’’

under FMPs. Some FMPs include only 

one or a few stocks whereas others 

include several or hundreds of species. 

Looking at existing FMPs, the primary 

reasons why stocks are included in 

FMPs are because people seek to harvest 

them for sale or personal use (i.e., the 

fish are the target of fishing activity), or 

they are caught incidentally in the 

pursuit of harvesting one or more other 

stocks and could experience overfishing 

or become overfished without 

conservation and management 

measures. These reasons are consistent 

with the stated purposes of the MSA, 

which includes the preparation and 

implementation of FMPs ‘‘which will 

achieve and maintain, on a continuing 

basis, the optimum yield from each 

fishery’’ (see MSA section 2(b)(4)). OY 

is defined with regard to ‘‘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’’

(see MSA section 3(33)). 

While the focus of FMPs has been 

stocks managed for OY, in recent years, 

some FMPs have included other stocks 

in an effort to incorporate ecosystem 

approaches to management. Congress 

acknowledged this increased attention 

to ecosystem approaches in the 

‘‘Findings’’ section of the Act (see MSA 

section 2(a)(11) (acknowledging that a 

number of Councils have demonstrated 

significant progress in integrating 

ecosystem considerations under existing 

authorities of the MSA)). In addition, 

MSRA added a new section 303(b)(12) 

that provides that an FMP may ‘‘include 

management measures in the plan to 

conserve target and non-target species 

and habitats, considering the variety of 

ecological factors affecting fishery 

populations.’’

NMFS wants to encourage ecosystem 

approaches to fishery management and 

believes that clarification of what 

constitutes the ‘‘fishery’’ would be 

helpful. As such, NMFS is proposing 

guidance pertaining to ‘‘stocks in the 

fishery’’ and ‘‘ecosystem component 

(EC) species,’’ which are described in 

detail below. The intent of this guidance 

is to articulate approaches taken under 

existing FMPs and to provide a 

framework for thinking about future 

FMPs and FMP amendments. The 

Councils would have the discretion to 

determine, on a case-by-case basis, 

whether changes in their stock 

classifications under current FMPs are 

needed. 

A. Stocks in the Fishery 

As a default, all stocks currently 

identified in an FMP are considered 

‘‘stocks in the fishery.’’ ‘‘Stocks in the 

fishery’’ would include target stocks 

(i.e., stocks that fishers seek to catch for 

sale or personal use, including 

‘‘economic discards’’ as defined under 

MSA section 3(9)), non-target stocks that 

are retained for sale or personal use, and 

non-target stocks that are not retained 

for sale or personal use and that are 

either determined to be subject to 

overfishing, approaching overfished, or 

overfished, or could become so, 

according to the best scientific 

information available, without 

conservation and management measures 

(see Figure 1 and § 600.310(d)(2) of this 

proposed action). Stocks and stock 

complexes in the fishery should have 

quantitative SDC, MSY, ABC, ACL, and 

ACT (collectively called ‘‘reference 

points’’ throughout this section) and 

AMs (see Table 1 for reference points 

needed for different types of stocks, and 

see § 600.310(b)(2)(iv) of this proposed 

action), although some stocks in the 

fishery may not require ACLs and AMs 

if they are covered by a statutory 

exception (see § 600.310(h)(2) of this 

proposed action). Hereafter, in these 

guidelines, ‘‘stock’’ or ‘‘stock(s) and 

stock complex(es)’’ refer to ‘‘stocks in 

the fishery.’’

B. Ecosystem Component Species 

Beyond the ‘‘stocks in the fishery,’’ a 

Council may, but is not required to, 

include EC species in an FMP. Such 

species would include non-target fish 

species that are not considered part of 

the ‘‘fishery’’ but rather species with 

which the fishery may occasionally 

interact (i.e., catch) (see § 600.310(d)(5) 

of this proposed action). A Council may 

choose to include EC species for 

purposes of incorporating ecosystem 

approaches to fishery management, data 

collection, etc. Identification of EC 

species must be done through an FMP 

amendment process (see § 600.310(d) of 

this proposed action). Such species are 

appropriate to consider when 

addressing specification of OY and 

conservation and management measures 

for the fishery (see MSA sections 3(33) 

(referring to taking into account the 

marine ecosystems in OY definition), 

and 3(5) (referring to avoiding 

irreversible or long-term effects on 

fishery resources and the marine 

environment and ensuring multiplicity 

of options)). Because EC species are not 

considered to be ‘‘in the fishery,’’

specification of reference points, ACLs, 

and AMs are not required (see Table 1). 

However, a Council should consider 


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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. NMFS 

is especially interested in the public’s 

comments on the appropriate criteria for 

classification of EC species. 

C. Stocks Identified in More Than One 

FMP 

If a stock is identified as part of more 

than one ‘‘fishery,’’ Councils should 

choose which FMP will be the ‘‘primary 

FMP’’ in which management objectives, 

SDC, and other reference points for the 

stock are established. In most cases, the 

primary FMP for a stock will be the one 

in which the stock is identified as a 

target stock. Other FMPs in which the 

stock is identified as part of a fishery 

should contain management measures 

consistent with the primary FMP for the 

stock. 

TABLE 1.—REFERENCE POINTS, ACCOUNTABILITY MEASURES, AND CONTROL RULES THAT WOULD BE REQUIRED OR

RECOMMENDED

Reference points, 

accountability measures, and 

control rules 

Stocks and stock complexes 

in a fishery (excluding those 

with an approximate 1 year 

life cycle and those managed 

under international fishery 

agreements) 

Stocks and stock complexes 

in a fishery that have a life 

cycle of approximately 1 year 

Stocks and stock complexes 

in a fishery managed under an 

international fishery 

agreement 3

Ecosystem 

component 

species 4

MSY1 ....................................... ✓ ............................................. ✓ ............................................. ✓ ............................................. N/A 

SDC 1 (e.g. MFMT 2, MSST 2) ✓ ............................................. ✓ ............................................. ✓ ............................................. N/A 

OY1 ......................................... At the stock, stock complex, 

or fishery level.

At the stock, stock complex, 

or fishery level.

R ............................................. N/A 

OFL 2 ........................................ R ............................................. R ............................................. R ............................................. N/A 

ABC 1 ....................................... ✓ ............................................. ✓ ............................................. R ............................................. N/A 

ACL 1 ........................................ ✓ ............................................. Only if ‘‘subject to overfishing’’ R ............................................. N/A 

AMs 1 ....................................... ✓ ............................................. Only if ‘‘subject to overfishing’’ R ............................................. N/A 

ACT 2 ....................................... ✓ ............................................. Only if ‘‘subject to overfishing’’ R ............................................. N/A 

ABC control rule 2 .................... ✓ ............................................. ✓ ............................................. R ............................................. N/A 

ACT control rule 2 .................... ✓ ............................................. R ............................................. R ............................................. N/A 

1 MSA requirement. 

2For consistency with the NS1 Guidelines. 

3 If the stock is in a U.S. FMP and managed under an international fishery agreement to which the U.S. is party. 

4 Not required by MSA, but an option provided in the NS1 Guidelines. 

Legend: 

✓ = Yes, this is applicable. 

ABC = Acceptable Biological Catch. 

ACL = Annual Catch Limit. 

AM = Accountability Measures. 

MFMT = Maximum Fishing Mortality Threshold. 

MSST = Minimum Stock Size Threshold. 


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MSY = Maximum Sustainable Yield. 

N/A = Not Applicable. 

OFL = Overfishing Limit. 

OY = Optimum Yield. 

R = Recommended. 

SDC = Status Determination Criteria. 

D. Stock Complexes 

‘‘Stock complex’’ means a group of 

stocks in an FMP that are sufficiently 

similar in geographic distribution, life 

history, and vulnerability to the fishery 

that the impacts of management actions 

on the stocks in the complex is similar 

(see § 600.310(d)(8) of this proposed 

action). Stock complexes may be 

comprised of: (1) One or more indicator 

stocks, each of which has SDC and 

ACLs, and several other stocks; (2) 

several stocks without an indicator 

stock, with SDC and an ACL for the 

complex as a whole; or (3) one or more 

indicator stocks, each of which has SDC 

and management objectives, with an 

ACL for the complex as a whole (this 

situation might be applicable to some 

salmon species). 

For stock complexes, the SDC 

measured on a stock complex-wide 

basis or for an indicator stock should 

satisfy the MSA’s requirements to 

prevent overfishing and achieve OY for 

a fishery. Vulnerability of stocks to the 

fishery should be evaluated when 

determining if: (1) A particular stock 

complex should be established or 

reorganized; (2) a particular stock 

should be a member of a stock complex; 

or (3) a stock complex should be 

reorganized. Indicator stocks are stocks 

selected as a representative for a stock 

complex because they have known 

determinations regarding SDC, and 

known values for MSY and OY, and can 

form the basis for an MSY and OY for 

the combinations of stocks in a 

complex. Although it is common for the 

indicator stock for a stock complex to be 

the most abundant stock, if an indicator 

stock is less vulnerable than other 

stocks in the complex, the management 

measures should be more conservative 

to protect the more vulnerable stocks 

from overfishing. 

IX. Statutory Exceptions to 

Requirements for ACLs and AMs and 

Flexibility in Application of NS1 

Guidelines 

The MSRA provides two statutory 

exceptions to the ACL and AM 

requirements under MSA section 

303(a)(15) (see MSRA section 104(b) 

(adding two exceptions under a MSA 

section 303 note); see also 

§ 600.310(h)(2) of this proposed action). 

First, MSA section 303(a)(15) ‘‘shall not 

apply to a fishery for species that have 

a life cycle of approximately 1 year 

unless the Secretary has determined the 

fishery is subject to overfishing of that 

species’’ (see MSRA section 104(b)(2)). 

NMFS interprets ‘‘fishery for species’’ to 

be a stock. In addition, NMFS interprets 

‘‘a life cycle of approximately 1 year’’ to 

mean that 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 stocks that qualify 

for the 1-year life cycle exception would 

not need to have ACLs and AMs, such 

stocks should still have SDC, MSY, OY, 

ABC, and an ABC control rule. 

Second, MSA section 303(a)(15) shall 

take effect in 2010 and 2011, as 

discussed earlier, ‘‘unless otherwise 

provided for under an international 

agreement in which the United States 

participates’’ (see MSRA section 

104(b)(1)). It is not clear to what the text 

‘‘unless otherwise provided for’’ is 

referring. NMFS has considered several 

possible interpretations of this text in 

light of other provisions in MSRA, 

including the new international 

overfishing provisions in MSA section 

304(i). Prior to MSRA, fisheries 

managed under international 

agreements in which the United States 

participates (referred to in this action as 

‘‘international fisheries’’) were subject 

to MSA section 304(e) requirements 

regarding overfishing and rebuilding. 

However, in many of these fisheries, the 

United States could not unilaterally end 

overfishing or rebuild the stocks. New 

MSA section 304(i) and other MSRA 

provisions acknowledge the increasing 

problem of international overfishing and 

the challenges of establishing 

conservation and management measures 

at the international level. Given 

Congress’s recognition of the increasing 

problem of international overfishing and 

the complexities of international 

negotiation, NMFS believes that the 

ACL exception should apply to fisheries 

that are subject to management under 

international agreements in which the 

United States participates. Applying 

ACLs or AMs only to the U.S. portion 

of the catch would not effect rebuilding 

or end overfishing, would potentially 

disadvantage U.S. fishermen with 

respect to foreign fishermen, and could 

weaken U.S. negotiating positions at 

international fora in which it 

participates. 

Apart from the statutory exceptions, 

NMFS recognizes that there are limited 

circumstances that do not fit the 

standard approaches to specification of 

reference points and management 

measures set forth in the proposed 

revisions to the NS1 guidelines. These 

include, among other things, 

conservation and management of ESAlisted 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). For fisheries where ESA-listed 

species are incidentally caught, the ESA 

recovery plan would be a significant 

driver for setting management 

objectives, including ACLs, for the 

fishery. For aquaculture, once managers 

address status of broodstock taken from 

the wild (i.e., whether overfishing is 

occurring and/or whether the stock is in 

need of rebuilding), then the levels of 

harvests from an aquaculture facility 

would not necessarily need to focus on 

ending or preventing overfishing or 

rebuilding stocks. In these 

circumstances, Councils may propose 

alternative approaches for satisfying the 

NS1 requirements of the MagnusonStevens Act other than those set forth in 

these guidelines. Councils should 

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. 

For a fishery in a federal FMP that has 

a large majority of harvest in state or 

territorial waters, the fishery should 

have ACL that takes into account the 

overall status of the stock, whether in 

state or federal waters or beyond. 

However, NMFS recognizes that AMs 

could only be applied to the portion of 

the fishery under federal jurisdiction. 

Given the jurisdictional issue, one 

approach proposed is that the overall 

ACL could be divided into a federal 

portion (federal-ACL) and a state 

portion (state-ACL). AMs would then be 

triggered when the federal-ACL was 

reached or projected to be reached (see 

further explanation in ‘‘Accountability 

Measures’’ section below). 

X. MSRA Requirements for SSCs 

Related to ACLs 

The MSRA added new requirements 

for SSCs in the MSA. New section 


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302(g)(1)(B) of the MSA states that an 

SSC for each Regional Fishery 

Management Council ‘‘shall provide its 

Council ongoing scientific advice for 

fishery management decisions, 

including recommendations for 

acceptable biological catch, preventing 

overfishing, maximum sustainable 

yield, and achieving rebuilding targets, 

and reports on stock status and health, 

bycatch, habitat status, social and 

economic impacts of management 

measures, and sustainability of fishing 

practices.’’ New section 302(g)(1)(E) 

provides that ‘‘The Secretary and each 

Council may establish a peer review 

process for that Council for scientific 

information used to advise the Council 

about the conservation and management 

of the fishery.’’ In addition, new section 

302(h)(6) provides that each Regional 

Fishery Management 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).’’

NMFS recognizes that there is 

variability in the peer review processes 

and involvement of SSCs amongst the 

various Councils. In addition, the above 

statutory sections could be subject to 

different interpretations. While MSA 

section 302(h)(6) refers generally to 

‘‘fishing level recommendations,’’

section 302(g)(1)(B) refers to 

recommendations for ABC and MSY, 

among other things, and section 

302(g)(1)(E) refers generally to 

‘‘scientific information.’’ Further, the 

text provides for advice from the SSC 

but also refers to peer review processes, 

leaving open a question about the role 

and relationship between the two. 

NMFS believes that clear processes for 

implementing these provisions are 

important in order to ensure that 

Councils get the information needed to 

establish ACL mechanisms, prevent 

confusion in the decision making 

process, and ensure general consistency 

in approaches taken. 

For purposes of setting ACLs, a 

critical piece of scientific advice that 

Councils will need will be the ABC. 

Taking this into account, and 

considering the new requirements in 

light of existing SSC, Council, and peer 

review processes, NMFS proposes that 

the Councils establish a process that 

could be included in their Statement of 

Organization, Practices and Procedures 

(see § 600.115) which will: Establish an 

ABC control rule, identify the body that 

will apply the ABC control rule (i.e., 

calculates the ABC), identify the review 

process that will verify the resulting 

ABC, and confirm that the SSC 

recommends the ABC to the Council. 

For Secretarial FMPs or FMP 

amendments, agency scientists or a peer 

review process would provide the 

scientific advice to establish ABC. For 

fisheries managed under international 

agreements in which the United States 

participates (referred to in this action as 

‘‘international fisheries’’), stock 

assessments are conducted through 

international scientific bodies that may 

include U.S. and non-U.S. scientists. 

While the United States promotes 

fishery conservation and management 

principles as embodied in the MSA (see, 

e.g., MSA section 102(c)), it cannot 

guarantee that international actions will 

be consistent with the Act or NS1 

guidelines. Thus, an ABC as defined in 

these guidelines would not be required 

for international fisheries. 

For stock and stock complexes 

required to have an ABC, NMFS 

recommends that each Council should 

establish an ABC control rule (see 

§ 600.310(f)(4) of this proposed action) 

based on scientific advice from its SSC. 

The process of establishing an ABC 

control rule could also involve science 

advisors or the peer review process 

established under MSA section 

302(g)(1)(E). Stock assessment scientists, 

a plan development team, or other 

designated body would then apply the 

ABC control rule. If a peer review 

process is established it should 

investigate the technical merits of stock 

assessments and other scientific 

information used by the SSC. For 

example, a peer review process (e.g., 

Stock Assessment Review Panel) could 

validate the ABC calculation and then 

pass their results to the SSC. Ultimately, 

the SSC should make the formal ABC 

recommendation to the Council. For 

Council-managed fisheries, the peer 

review process is not a substitute for the 

SSC, and should work in conjunction 

with the SSC. 

XI. MSY, OY, and SDC: A Review 

MSY, OY, and SDC are concepts 

described in the current NS1 guidelines, 

and MSRA did not effect changes to the 

MSA that would require changes to 

these concepts. The following sections 

provide a review of MSY, OY, and SDC 

and an explanation of the relationship 

between them and the proposed 

guidance on ACLs and other 

requirements. 

MSY is the largest long-term average 

catch or yield that can be taken from a 

stock or stock complex under prevailing 

ecological and environmental 

conditions and fishery technological 

characteristics. Any estimate of MSY 

depends on the population dynamics of 

the stock and the characteristics of the 

fisheries (e.g. gear selectivity). MSY 

stock size (Bmsy) is 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. 

OY is the amount of fish that will 

provide the greatest overall benefit to 

the Nation, while preventing 

overfishing, particularly with respect to 

food production and recreational 

opportunities, and taking into account 

the protection of marine ecosystems. OY 

is prescribed on the basis of the MSY 

from the fishery, as reduced by relevant 

economic, social or ecological factors. In 

the case of an overfished fishery, OY 

provides for rebuilding to a level 

consistent with producing MSY in such 

a fishery. 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 OY, overfishing is prevented, 

the long term average biomass is near or 

above Bmsy, and overfished stocks are 

rebuilt in as short a time as possible as 

specified in MSA section 304(e)(4). OY 

might be established at the stock or 

stock complex level, or for a fishery 

comprised of stocks, many of which 

have their own ACL and ACT (e.g., 

groundfish of the Gulf of Alaska and 

groundfish of the Bering Sea and 

Aleutian Islands). 

Section 3(34) of the MSA states that 

‘‘overfishing’’ and ‘‘overfished’’ mean a 

rate or level of fishing mortality that 

jeopardizes the capacity of a fishery to 

produce the maximum sustainable yield 

on a continuing basis. To reduce 

confusion and conform to usage of those 

terms in other fisheries worldwide, in 

the current NS1 guidelines, NMFS 

interpreted these terms so that 

‘‘overfished’’ pertains to the biomass of 

the stock or stock complex, and 

‘‘overfishing’’ pertains to a rate or level 

of removal of fish from the stock or 

stock complex. The current NS1 

guidelines also provide for SDC, which 

are quantifiable factors for determining 

whether a stock or stock complex is 

overfished or if overfishing is occurring. 

An overfished definition consists of a 

measure of stock abundance called the 

minimum stock size threshold (MSST), 

below which a stock’s or stock 

complex’s capacity to produce MSY on 

a continuing basis is jeopardized. 

Overfishing of a stock or stock complex 

occurs whenever a stock or stock 

complex is subjected to a rate or level 

of fishing mortality, called the 


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maximum fishing mortality threshold 

(MFMT), above which the stock’s or 

stock complex’s capacity to produce 

MSY on a continuing basis is 

jeopardized or annual catch exceeds a 

stock’s or stock complex’s OFL. MSRA 

made no changes to the MSA that would 

necessitate different interpretations of 

these terms or different approaches to 

these concepts. 

XII. Description of the Relationship of 

OFL to MSY and ACT to OY 

National Standard 1 establishes the 

relationship between conservation and 

management measures, preventing 

overfishing, and achieving OY from 

each stock, stock complex or fishery. 

The following sections describe in detail 

NMFS’ proposed guidance on ACLs and 

other new requirements. Among other 

things, the proposed guidance 

introduces new terms—overfishing limit 

(OFL) and annual catch target (ACT)—

which are not set forth in the MSA but 

which NMFS believes would be helpful 

to implement the statutory 

requirements. As an overview, OFL is 

an annual amount of catch that 

corresponds to the estimate of MFMT 

applied to a stock or complex’s 

abundance; MSY is the long-term 

average of such catches. The current 

NS1 guidelines define overfishing with 

regard to MFMT, which is a rate of 

fishing. The use of OFL would provide 

another method for measuring 

overfishing by allowing the comparison 

of a stock or stock complexes’ annual 

catch to its OFL; if catch exceeds OFL, 

overfishing is occurring. It is 

recommended that ABC would be set 

below OFL to take into account the 

scientific uncertainty in the estimate of 

OFL. 

ACL would be the limit that triggers 

AMs, and ACT would be the 

management target for the fishery. 

Management measures for a fishery 

should, on an annual basis, achieve the 

ACT and prevent the ACL from being 

exceeded. The long-term objective is to 

achieve OY through annual 

achievement of ACT. 

XIII. Definition Framework for OFL, 

ABC, ACL, and ACT 

The MSRA does not define ACLs, 

AMs, and ABC, and there are many 

different ways in which these terms can 

be defined. The voluminous comments 

that NMFS received during scoping 

reflects the wide range of possible 

interpretations and approaches. For 

example, some commenters felt that 

ACL should be considered a target catch 

level and others felt it should be a limit 

that should not be approached or 

reached. Many commenters suggested, 

in general, that a buffer be implemented 

between management targets and limits 

in order to prevent overfishing and 

account for uncertainty. Over the past 

year, NMFS spent considerable time 

reviewing different interpretations of 

the ACL requirement in light of MSA 

sections 303(a)(15), 302(h)(6), and 

302(g) and other sections of the MSA, 

and taking into consideration the 

current NS1 guidelines, previously 

proposed changes to those guidelines, 

existing FMPs and FMP amendments, 

scientific and management roles in the 

decision making process, and public 

comment. Based on this review, NMFS 

proposes the following definitions for 

ACL, AM, and ABC, and also for ACT 

and OFL: 

1. 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.’’ See 

§ 600.310(e)(2)(i)(D) of this proposed 

action. 

2. Acceptable biological catch (ABC) 

means ‘‘a level of a stock or stock 

complex’s annual catch that accounts 

for the scientific uncertainty in the 

estimate of OFL and should be specified 

based on the ABC control rule.’’ See 

§ 600.310 (f)(2)(ii) of this proposed 

action. 

3. Annual catch limit (ACL) means 

‘‘the level of annual catch of a stock or 

stock complex that serves as the basis 

for invoking accountability measures.’’

See § 600.310(f)(2)(iv) of this proposed 

action. 

4. Annual catch target (ACT) means 

‘‘an amount of annual catch of a stock 

or stock complex that is the 

management target of the fishery. A 

stock or stock complex’s ACT should 

usually be less than its ACL and results 

from the application of the ACT control 

rule. If sector-ACLs have been 

established, each one should have a 

corresponding sector-ACT.’’ See 

§§ 600.310(f)(2)(v) and (f)(6) of this 

proposed action. 

5. Accountability measures (AMs) 

means ‘‘management controls that 

prevent ACLs or sector-ACLs from being 

exceeded (inseason AMs), where 

possible, and correct or mitigate 

overages if they occur.’’ See § 600.310(g) 

of this proposed action. 

As proposed in this action, the 

relationship between the above terms 

would be OFL≥ABC≥ACL≥ACT (see 

Figure 2). Because a primary goal of the 

MSA, and management responsibility of 

NMFS and the Councils, is to end and 

prevent overfishing, rather than account 

for it after it occurs, NMFS believes that 

a good approach to management is to 

have OFL>ABC and ACL>ACT. The 

ABC is lower than the OFL to address 

scientific uncertainty in the estimate of 

OFL, and ACT is lower than the ACL to 

address uncertainty in the accounting 

for catch and in the degree to which 

management measures can control catch 

to the target level. 

OFL is an annual amount of catch that 

corresponds to the estimate of MFMT 

applied to a stock or complex’s 

abundance, and MSY is the long-term 

average of such catches. NMFS proposes 

that OFL be the upper bound of ABC, 

but that ABC should usually be reduced 

from the OFL to account for scientific 

uncertainty in the estimate of OFL. For 

overfished stocks, ABC must also be set 

to reflect the annual catch that is 

consistent with the rebuilding plan for 

that stock. Therefore, if a stock is being 

managed under a rebuilding program, 

its ABC should be lower during some or 

all stages of rebuilding than when the 

stock is rebuilt. The ABC will be set on 

the basis of the ABC control rule. 

The proposed guidelines would have 

the Councils set the ACL as a level of 

catch specified for a stock or stock 

complex each year that cannot exceed 

its ABC. If a stock or stock complex’s 

catch exceeds its ACL, AMs will be 

invoked as specified in the FMP. The 

ACL may typically be equal to the ABC 

and setting the ACL provides an 

opportunity to divide the total ACL into 

sector-specific ACLs. As noted above, 

the purpose of the ACT is to address 

management uncertainty. The ACT 

would be the target catch of a stock or 

stock complex that a fishery is managed 

to attain and should generally be less 

than the stock or stock complex’s ACL. 

‘‘Catch’’ includes fish that are retained 

for any purpose, as well as mortality of 

fish that are discarded (see 

§ 600.310(f)(2)(i) of this proposed 

action). Therefore, for fisheries where 

bycatch estimates are not available in a 

timely enough manner to manage 

annual catch, targets may be specified 

for landings, so long as an estimate of 

bycatch is accounted for such that total 

of landings and bycatch will not exceed 

the stock’s or stock complex’s ACL. For 

a stock with sufficient inseason data 

monitoring, the fishery for that stock 

would be closed in time to prevent the 

ACL from being exceeded. 

NMFS notes that when it published 

an initial notice about ACLs, ACT was 

not a parameter used when exploring 

the concept of how to make ACLs and 

AMs operational. At that time, NMFS 

suggested an initial approach of 

OFL>ABC≥ACL with ACL as the target 

catch that management measures should 

try to attain. Under that approach, if 

catch of a stock reached the OFL, its 


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fishery would be closed. During the 

scoping period, NMFS received some 

public comments expressing concern 

about the use of an ACL as a 

management target as opposed to a 

‘‘limit.’’ Also, the framework contained 

in this proposed rule provides for better 

separation between scientific 

uncertainty in estimating OFL (i.e., a 

recommendation that ABC be lower 

than OFL), and management uncertainty 

and OY factors indicating that an ACT 

be lower than the ACL. 

XIV. Control Rules 

Control rules are harvest strategies 

that specify how a stock’s or stock 

complex’s catch will be modified in 

response to one or more factors, 

particularly estimated stock size. The 

current NS1 guidelines include MSY 

control rules which are ‘‘limit’’ control 

rules and OY control rules which are 

‘‘target’’ control rules. For any stock, the 

limit control rule results in a higher 

amount than the target control rule for 

a given stock abundance. Because of the 

new MSA requirement for annual catch 

limits to end and prevent overfishing for 

stocks in a fishery, NMFS proposes that 

MSY control rules be replaced by ABC 

control rules and become the new limit 

control rule, and OY control rules be 

replaced by ACT control rules and 

become the new target control rule. This 

would align the control rules more 

directly with the new requirement to 

specify an ABC and an ACL for stocks 

in the fishery (see earlier discussion in 

the preamble for the relationship 

between OFL and MSY, and between 

ACT and OY). 

ABC and ACT control rules should be 

developed for each stock when possible. 

For stock complexes, ABC and ACT 

control rules should be developed for 

each indicator stock or for the stock 

complex as a whole. ACTs should be set 

with the intention that they typically 

will be achieved. A stock’s or stock 

complex’s ACT control rule should 

result in lower target catches than the 

ABC control rule would, for all levels of 

a stock’s or stock complex’s abundance. 

In the proposed revisions to NS1 

guidelines, an ABC control rule is 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. An ACT control 

rule is an approach to setting the ACT 

for each stock and stock complex such 

that the risk of exceeding ACL due to 

management uncertainty (ability to 

control catch and variability in catch 

data) is an acceptably low level. Both 

control rules are designed to reduce the 

risk that overfishing will occur. 

For rebuilding stocks, the ABC, ACL, 

and ACT should be set at lower levels 

than for rebuilt stocks because two 


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objectives are combined. First, 

overfishing should not occur; and 

second, rebuilding at a rate 

commensurate with the stock’s 

rebuilding plan should occur. This 

means that, for a rebuilding stock, a 

lower target fishing mortality rate may 

be needed to accomplish rebuilding, in 

addition to avoiding overfishing (i.e., 

ACL and ACT are lower than they 

would be if the stock was rebuilt). 

XV. Sector ACLs, ACTs, and AMs 

A Council may decide, but is not 

required, to divide the ACL into sectorACLs. ‘‘Sector’’ for purposes of the NS1 

guidelines means a distinct user group 

to which separate management 

strategies and catch quotas apply. 

Examples of sectors could include the 

commercial sector, recreational sector, 

or various gear groups within a fishery. 

It is up to each Council to decide how 

to designate sectors, if any. If sectorACLs are established, sector-AMs and 

sector-ACTs must be developed for each 

sector-ACL. In cases where states 

cooperatively manage a stock, it is 

possible that a sector ACL could be 

further subdivided in order to establish 

‘‘subsector’’ ACLs and ACTs for various 

states to align with current management 

of catch limits or quotas in the state 

fisheries. The system of ACLs and AMs 

must be effective and equitable and 

protect the stock as a whole from 

overfishing. The sum of a stock’s sectorACLs must not exceed the stock’s ACL. 

If sector-ACLs and sector-AMs are 

established, additional AMs at the stock 

level would also be appropriate. A 

sector must be closed inseason if timely 

catch data indicates its ACL has been 

reached. If a sector does not have timely 

inseason fisheries data, or has a history 

of annual overages, then a Council 

should establish a large enough 

difference between a sector’s ACT and 

ACL to improve the probability that the 

sector-ACL and the stock’s ACL are not 

exceeded. 

XVI. Accountability Measures 

AMs are management controls 

implemented for stocks such that 

exceeding the ACL or sector-ACL is 

prevented, where possible, and 

corrected or mitigated if it occurs (see 

§ 600.310(g) of this proposed action). 

AMs include: (1) Those that are applied 

inseason and designed to prevent the 

ACL from being reached; (2) measures 

applied after the fishing year that are 

designed to address the operational 

issue that caused the ACL overage, 

ensuring it does not happen in 

subsequent fishing years, and, as 

necessary, address any biological harm 

to the stock; and (3) those based on 

multi-year average data which are still 

reviewed and applied annually (see 

discussion below). AMs should address 

and minimize both the frequency of 

overages and the magnitude of an 

overage. AMs should be designed so 

that if an ACL is exceeded, specific 

adjustments are effective in the next 

fishing year, or as soon as possible, with 

explanation of why more timely 

adjustment is not possible. 

If timely inseason fishery catch data 

are available for a stock, Councils 

should ensure their FMPs contain 

inseason closure authority as an AM to 

prevent a stock’s ACL from being 

exceeded. Where fishery catch data are 

not timely enough to implement 

inseason AMs, the ACT should be 

adjusted downward from the ACL to 

account for the increased management 

uncertainty and the delayed ability to 

implement AMs. 

A ‘‘multiyear plan’’ as referenced in 

section 303(a)(15) of the MSA is a plan 

that establishes harvest specifications or 

harvest guidelines for each year of a 

time period greater than one year. 

Because ‘‘multiyear plans’’ establish 

ACLs and ACTs for more than one year 

at a time, they should include AMs that 

provide if an ACL is exceeded in one 

year, then a subsequent year’s harvest 

specification (including ACLs and 

ACTs) could be revised (see 

§ 600.310(f)(5)(i) of this proposed 

action). 

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, a 

Council could base AMs on comparison 

of average catch to average ACL over a 

three-year moving average period or, if 

supported by analysis, some other 

appropriate multi-year period (see 

§ 600.310(g)(4) of this proposed action). 

As a performance standard, if the 

average catch exceeds the average ACL 

more than once in the last four years, 

then the ACL, ACT and AM system 

should be re-evaluated to improve its 

performance. The initial ACL and 

management measures should 

incorporate information from previous 

years so that AMs based on average 

ACLs can be applied from the first year. 

If a stock is in a rebuilding plan and 

its ACL is exceeded, the AMs should 

include overage adjustments that reduce 

the ACL in the next fishing year by the 

full amount of the overage, unless the 

best scientific information available 

shows that a reduced overage 

adjustment is sufficent, or no 

adjustment is needed to mitigate the 

effects of the overage. This AM is 

important to increase the likelihood that 

the stock will continue to rebuild. 

As discussed earlier, stocks and stock 

complexes in federal FMPs that have a 

large majority of harvest in state or 

territorial waters should have an ACL 

that takes into consideration the overall 

status of the stock. However, federal 

management would be limited to that 

portion of the fishery under federal 

jurisdiction. Options for AMs that a 

Council could consider for stocks or 

stock complexes caught mostly in state 

or territorial waters would include, but 

are not limited to: (1) Close the EEZ 

when the federal portion of the ACL is 

reached, or (2) close the EEZ when the 

overall stock or stock complex’s ACL is 

reached. The AMs should ensure that 

federal managers are doing as much as 

possible to end and prevent overfishing. 

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, to 

prevent overfishing of shared stocks and 

ensure their sustainability. 

XVII. Summary of Items To Include in 

FMPs 

This section provides a summary of 

items that Councils should include in 

their FMPs and FMP amendments in 

order to address ACL, AM, and other 

aspects of the proposed NS1 guidelines. 

Some items are specific to new MSRA 

provisions. Others were required prior 

to MSRA, but are included here so as to 

be comprehensive. Councils may review 

their FMPs to decide if all stocks are ‘‘in 

the fishery’’ or whether some fit the 

category of ‘‘ecosystem component 

species’’ and amend their FMP as 

appropriate. If they do not establish EC 

species through an FMP amendment, 

then all stocks in an FMP are presumed 

to be ‘‘in the fishery.’’ For all stocks and 

stock complexes that are in the fishery, 

the Councils should 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 

(see § 600.310(c) of this proposed 

action): (1) MSY and SDC, (2) OY at the 

stock, stock complex or fishery level, (3) 

ABC control rule, (4) ACLs and 

mechanisms for setting ACLs and 

possible sector-specific ACLs in 

relationship to the ABC, (5) ACT control 

rule, (6) AMs and AM mechanisms, and 

(7) stocks and stock complexes that have 

statutory exceptions from ACLs or fall 

under limited circumstances which 

require different approaches to meet the 

ACL requirements (e.g., ESA-listed 


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stocks and harvests from aquaculture 

facilities). 

The Councils should evaluate the 

extent to which their FMPs comply with 

requirements to define MSY and OY for 

stocks in the fishery, and the reasons 

that OY is reduced from MSY (see 

§ 600.310(e)(3)(iv) of this proposed 

action). An overall objective of 

management of federal fisheries under 

the MSA is to conserve fishery resources 

so as to prevent overfishing and achieve 

OY (see sections 2(a)(6) and 2(b)(4) of 

the MSA). OY is based on MSY for a 

fishery, as reduced for economic, social, 

or ecological reasons (see section 

3(33)(B) of the MSA). Therefore, it is 

important that all FMPs have MSY and 

OY prescribed correctly. 

FMPs should contain a description of 

fisheries data for the stocks, stock 

complexes, and ecosystem component 

species. The sources of fishing 

mortality, such as commercial catch 

(both landed and discarded), 

recreational catch, and bycatch in other 

fisheries should be listed in the FMP for 

each fishery, along with a description of 

the data collection and estimation 

methods used to quantify total catch 

mortality in each fishery. The 

description of the data collection 

methods used to monitor the fishery 

should include information on the 

frequency that those data are collected 

and updated and the scope of sampling 

coverage for the fishery. In addition, the 

FMP should describe how those data are 

used to determine the relationship 

between total catch at a given point in 

time and the ACL for a stock or stock 

complex. 

FMPs should explain issues related to 

shared jurisdiction of stocks (if any), 

and the degree to which ACLs and AMs 

established by the Councils will ensure 

that overfishing does not occur on the 

stock as a whole. 

NMFS is aware that existing FMPs 

may use terms that are similar to, 

associated with, or may be equivalent to 

ABC, ACL, ACT, and AM in many 

fisheries for which annual specifications 

are set for different stocks or stock 

complexes. NMFS’ preference is that, as 

Councils revise their FMPs, they use the 

same terms as set forth in the NS1 

guidelines as finalized. However, given 

the longstanding use of terms under 

certain FMPs, if changing terminology 

could cause confusion, Councils could 

opt to retain existing terminology and 

explain in a proposed rule how the 

terminology and approaches in the 

FMPs are consistent with those set forth 

in the NS1 guidelines. 

Councils should amend their FMPs to 

provide explicit narrative of how the 

FMP objectives and annual management 

measures will work with ACLs and 

AMs. All stocks and stock complexes 

should have an annual or multiyear 

specification process for stocks managed 

in a fishery. An annual or multiyear 

specification process for setting or 

adjusting ACLs provides a timely, 

consistent method that the public and 

stakeholders can understand, and that 

provides an opportunity for public 

comment. Such a process could also 

provide a method for assigning an ACL, 

ACT, and AM to a ‘‘stock having a life 

cycle of approximately one year’’ that is 

undergoing overfishing. 

XVIII. Change in Timetable When 

Establishing a Rebuilding Plan 

The MSA provides that the Secretary 

shall annually identify stocks and stock 

complexes that are overfished or 

approaching a condition of being 

overfished; notify the appropriate 

Council at any time when a stock or 

stock complex is determined to be 

overfished; and notify the appropriate 

Council when adequate progress is not 

being made under existing FMPs, FMP 

amendments, or regulations (see MSA 

sections 304(e)(1), (2), and (7)). MSRA 

did not change these identification and 

notification provisions but revised the 

timing of Council actions. Currently, the 

Councils have 1 year to prepare an FMP, 

an FMP amendment, or proposed 

regulations (see MSA sections 304(e)(3) 

and 304 note (Effective Date for 

Subsection (c)). Beginning July 12, 2009, 

the Councils have 2 years from the date 

of an identification or notification to 

prepare and implement an FMP, an 

FMP amendment, or proposed 

regulations ‘‘to end overfishing 

immediately in the fishery and to 

rebuild affected stocks * * * or to 

prevent overfishing from occurring in 

the fishery whenever such fishery is 

identified as approaching an overfished 

condition’’ (see MSA section 304(e)(3), 

as revised by MSRA section 104(c)). To 

facilitate timely implementation of 

actions under revised section 304(e)(3), 

the Councils should submit an FMP, an 

FMP amendment, or proposed 

regulations within 15 months of an 

identification or notification under this 

section. This will provide the Secretary 

with 9 months to implement the 

measures, if approved (see 

§ 600.310(j)(2)(ii) of this proposed 

action). 

While MSA section 304(e)(3) provides 

for two years for a Council to prepare 

and implement an FMP, FMP 

amendment, or proposed regulations, as 

discussed earlier, MSA section 

303(a)(15) has a separate requirement 

for FMPs and ACLs that is effective in 

fishing year 2010 for fisheries 

determined to be subject to overfishing 

and in fishing year 2011 for all other 

fisheries. Thus, as of 2010 and beyond, 

for a stock and stock complex 

determined to be overfished and 

experiencing overfishing, a Council 

needs to take measures consistent with 

MSA section 303(a)(15) that address 

overfishing while the rebuilding plan is 

under development. 

XIX. Establishing the Length of Time for 

a Rebuilding Plan 

NMFS proposes clarifying guidance 

for calculating the target time to rebuild 

(Ttarget) in rebuilding plans for stocks 

(see § 600.310(j)(3)(i)(E) of this proposed 

action), based on experiences with 

FMPs since the last NS1 guideline 

revisions. The purpose of this 

clarification is to emphasize that the 

rebuilding time must be ‘‘as short as 

possible,’’ taking several factors into 

account (see MSA section 

304(e)(4)(A)(i)). Establishing the Ttarget

should be based on the minimum time 

for rebuilding a stock (Tmin), and factors 

described in § 600.310(j)(3) of this 

proposed action with priority given to 

rebuilding in as short a time as possible. 

Ttarget shall not exceed the maximum 

time allowable for rebuilding (Tmax) and 

should generally be less than Tmax. 

XX. Action When a Stock’s Rebuilding 

Plan Ends and the Stock Is Not Rebuilt 

Many rebuilding plans for overfished 

stocks under section 304(e) of the MSA 

were initiated in 1998, or later, and 

some of those plans are reaching the end 

of their rebuilding periods such that a 

stock is no longer overfished, but not 

rebuilt. NMFS does not have explicit 

guidance in the NS1 guidelines to 

describe what a Council should do 

under such circumstances. Therefore, 

NMFS proposes that if a stock reaches 

the end of its rebuilding plan period and 

it is not yet determined to be rebuilt, 

then the rebuilding F should not be 

increased until the stock has been 

demonstrated to be rebuilt (see 

§ 600.310(j)(3)(ii) of this proposed 

action). If the rebuilding plan was based 

on a Ttarget that was less than Tmax, and 

the stock is not rebuilt by Ttarget, 

rebuilding measures should be revised if 

necessary, such that the stock will be 

rebuilt by Tmax. If the stock has not 

rebuilt by Tmax, and the rebuilding F is 

greater than 75 percent of MFMT, then 

the rebuilding F should be reduced to 

no more than 75 percent of MFMT until 

the stock has been demonstrated to be 

rebuilt. 


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XXI. Changes to the Definitions of Some 

Components of MSY 

NMFS is proposing changes to the 

definitions of some components of 

MSY. The purposes of these changes are 

to improve some portions of the MSY 

related definitions and to further clarify 

how MSY is estimated. The definition of 

MSY in the NS1 guidelines would 

remain the same for the most part but 

the phrase ‘‘and fishery technological 

characteristics (e.g., gear selectivity) and 

the distribution of catch among fleets’’

would be added to the end of the 

definition (see § 600.310(e)(1)(i)(A) of 

this proposed action). The purpose of 

this change is to acknowledge that MSY 

also depends upon gear selectivity (age 

at entry) and the catch performance of 

the fishery, which can depend on the 

relative proportion of catch between 

different fleets with differing fishing 

characteristics. The definition of MSY 

stock size would be changed in two 

places. Currently, the guidelines state 

that ‘‘MSY stock size means the longterm average size of the stock or stock 

complex, measured in terms of 

spawning biomass or other appropriate 

units that would be achieved under a 

MSY control rule in which the fishing 

mortality rate is constant.’’ In the 

proposed guidelines (see 

§ 600.310(e)(1)(i)(C) of the proposed 

action), NMFS clarifies that ‘‘other 

appropriate units’’ means an 

‘‘appropriate measure of the stock’s 

reproductive potential.’’ NMFS also 

replaces the statement that ‘‘the fishing 

mortality rate is constant’’ with ‘‘Fmsy.’’

NMFS also added a definition for MSY 

fishing mortality rate (Fmsy) (see 

§ 600.310(e)(1)(i)(B) of the proposed 

action), which was lacking in the 

current guidelines. MSY fishing 

mortality ‘‘is the fishing mortality rate 

that, if applied over the long term, 

would result in MSY.’’

XXII. Social, Economic and Ecological 

Factors as They Relate to OY 

NMFS proposes additional guidance 

to better describe social and ecological 

factors, and minor revisions to the 

economic factors as they relate to setting 

OY for a stock (see § 600.310(e)(3)(iv) of 

this proposed action). The revisions to 

the social factors describe fisheryrelated indicators and non-fishery 

related indicators that should be 

considered when OY needs to be 

reduced for a stock or stock complex. 

XXIII. Scope of This Proposed Action 

NMFS received voluminous 

comments during its scoping comment 

period for ACLs and AMs, including 

proposals to strengthen guidance on 

ecosystem considerations when setting 

ACLs and AMs. While NMFS has 

carefully considered all comments 

received, it will not be able to include 

all proposed NS1 revisions in this 

action. These proposed revisions to the 

NS1 guidelines will address primarily 

the need to have ACL and AM 

mechanisms and ACLs and AMs in 

place such that ACLs end overfishing in 

2010, for stocks undergoing overfishing, 

and prevent overfishing for all other 

stocks beginning in 2011. 

NMFS intends to withdraw most of 

the proposed revisions to the NS1 

guidelines that were published in 2005 

in a separate withdrawal of a proposed 

rule action. A few of the topics from the 

2005 rule are considered in this action, 

such as: (1) Establishing the length of 

time for a rebuilding plan; (2) action to 

take when a stock is not determined to 

be rebuilt at the end of its rebuilding 

plan; and (3) the definition of several 

components of MSY. Other proposed 

revisions considered in the 2005 

proposed NS1 guidelines and suggested 

during the comment period for this 

action will be considered by NMFS for 

possible inclusion in subsequent 

revisions to the NS1 guidelines. 

XXIV. Republishing Codified Text in Its 

Entirety 

For clarity and convenience of the 

reader, this proposed rule would revise 

§ 600.310 in its entirety. The following 

describes the changes to § 600.310 that 

are being proposed. 

In the proposed revisions to 

§ 600.310, paragraph (b)—General, 

would be revised to contain a general 

outline of information provided by the 

NS1 guidelines. Current paragraph (b) 

only contains a brief summary of the 

relationship between MSY and OY. 

Current paragraph (c)—MSY is revised 

and redesignated paragraph (e)(1). 

Current paragraph (d)(1)—Definitions, 

is revised and redesignated paragraph 

(e)(2)(i). 

Current paragraph (d)(2)—

Specification of status determination 

criteria, is revised and redesignated 

paragraph (e)(2)(ii). 

Current paragraph (d)(3)—

Relationship of status determination 

criteria to other national standards is 

revised, redesignated paragraph (l) and 

renamed, ‘‘Relationship of National 

Standard 1 to other national 

standards.’’

Current paragraph (d)(6)—Exceptions, 

is revised, redesignated paragraph (m), 

and renamed, ‘‘Exceptions to 

requirements to prevent overfishing.’’

Current paragraph (e)—Ending 

overfishing and rebuilding overfished 

stocks, is revised and redesignated 

paragraph (j)—Council actions to 

address overfishing and rebuilding for 

stocks and stock complexes in the 

fishery. 

Current paragraph (f)—OY is 

redesignated paragraph (e)(3). 

Revised paragraphs with much 

different content include: Paragraph 

(c)—Summary of Items to Include in 

FMPs Related to NS1, paragraph (d)—

Classifying stocks in an FMP, and 

paragraph (f)—Acceptable Biological 

Catch, Annual Catch Limits, and 

Annual Catch Targets. 

New paragraphs that contain new 

content not covered in the current NS1 

guidelines include: (g) Accountability 

measures, (h) Establishing ACL and AM 

mechanisms in FMPs, (i) Fisheries data, 

and (k) International overfishing. 

XXV. Classification 

Pursuant to the Magnuson-Stevens 

Act, the NMFS Assistant Administrator 

has determined that this proposed rule 

is consistent with the MagnusonStevens Act, and other applicable law, 

subject to further consideration after 

public comment. 

This proposed rule has been 

determined to be significant for 

purposes of Executive Order 12866. 

NOAA has 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 this 

proposed rule, 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. 

NOAA invites the public to comment 

on this proposal, the supporting 

analysis, and its underlying 

interpretation of the analytical 

requirements of the MSRA. In 

particular, NOAA seeks comment on: 

The appropriate interplay of the OFL, 

ABC, ACL and ACT; whether the 

Council’s experience with MSY and OY 

would readily translate into these new 

concepts; whether the ACT and ACT 

control rules, as proposed, would be 

effective tools in managing fisheries at 

risk; the degree to which Councils 

should have the flexibility to specify 

stringent AMs to prevent the ACL from 


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being exceeded in lieu of setting an ACT 

and ACT control rules; and the expected 

burden of these analytical requirements, 

both in terms of time and resources. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that 

these proposed revisions to the NS1 

guidelines, if adopted, would not have 

any significant economic impact on a 

substantial number of small entities, as 

follows: 

I certify that the attached proposed action 

issued under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (MSA) will not have any 

significant economic impacts on a substantial 

number of small entities, as defined under 

the Regulatory Flexibility Act. The proposed 

action would revise the National Standard 1 

(NS1) guidelines at 50 CFR 600.310. 

The proposed revisions to the NS1 

guidelines provide guidance on how to 

address new overfishing and rebuilding and 

related requirements under MSA sections 

303(a)(15), 304(e), and other sections. 

Pursuant to section 301(b) of the Act, the NS 

guidelines do not have the force and effect 

of law. Regional Fishery Management 

Councils (Councils) and the Secretary of 

Commerce would use the NS1 guidelines 

when developing or amending FMPs to 

implement annual catch limits (ACLs) and 

accountability measures (AMs) and to take 

necessary actions to rebuild overfished 

fisheries. ACL and AM requirements under 

section 303(a)(15) of the Magnuson-Stevens 

Act are effective in fishing year 2010, for 

stocks undergoing overfishing and in fishing 

year 2011, for all other fisheries. NMFS 

believes that revisions to the NS1 guidelines 

will assist the Councils and the Secretary in 

addressing new MSA requirements, ensure 

greater consistency in approaches to ending 

overfishing and rebuilding stocks, increase 

efficiency in reviewing actions and tracking 

annual management performance, and 

improve communication between NMFS and 

the Councils. 

Because the NS1 guidelines are general 

guidance and there is considerable diversity 

in the different federally-managed fisheries, 

potential economic impacts of the guidelines 

are highly speculative. As the Councils and/ 

or the Secretary apply these guidelines to 

specific fisheries, they will develop FMPs, 

FMP amendments, or other regulatory actions 

that will be accompanied by environmental, 

economic, and social analyses prepared 

pursuant to the Regulatory Flexibility Act, 

National Environmental Policy Act, and 

other statutes. 

NMFS has identified a total of 59,823 

commercial vessel permit holders and 18,486 

headboat and charter boat vessel permits. A 

total of 26,074 recreational permits exist for 

Atlantic highly migratory species (HMS). 

Operator permits are estimated at 6,636 and 

dealer permits were estimated at 7,550. 

However, it is important to note that in most 

cases each vessel possesses permits for 

several fisheries (multiple vessel permits). As 

such, the total number of vessel permits 

(commercial, headboat and charter boat, and 

HMS recreational) grossly overestimate the 

actual number of vessels that are operating in 

these fisheries. All vessels included in the 

total vessel permits for each fishery are 

considered to be small entities for the 

purposes of the Regulatory Flexibility Act 

analysis. As a result, NMFS does not believe 

that these proposed revisions to the NS1 

guidelines would place a substantial number 

of small entities at a disadvantage as 

compared to large entities or that it would 

reduce profit significantly. The NS1 

guidelines would provide general guidance 

on ending and preventing overfishing and 

rebuilding fisheries, leaving considerable 

discretion to the Councils and the Secretary 

to consider alternative ways to accomplish 

these goals consistent with the NS, other 

provisions of the Magnuson-Stevens Act, and 

other applicable law. Therefore, an IRFA has 

not been prepared for this action. 

These proposed revisions to the NS1 

guidelines do not contain any new 

recordkeeping or reporting requirements 

subject to the Paperwork Reduction Act. 

When the Councils and the Secretary develop 

FMPs, FMP amendments, or other regulatory 

actions per the Magnuson-Stevens Act and 

NS1 guidelines, such actions may include 

new proposed collection-of-information 

requirements. In the event that new 

collection-of-information requirements are 

proposed, a specific analysis regarding the 

public’s reporting burden would accompany 

such action. NMFS is not aware of any other 

relevant federal rules that may duplicate, 

overlap or conflict with the proposed rule. 

List of Subjects in 50 CFR Part 600 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: June 3, 2008. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons stated in the 

preamble, 50 CFR part 600 is proposed 

to be amended as follows: 

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. 

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 using a system of limits 

and targets, 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), ACL, 

and annual catch target (ACT), which 

are described further in paragraphs (e) 


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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). The SSC may specify the 

type of information that should be 

included in the Stock Assessment and 

Fishery Evaluation (SAFE) report (see 

§ 600.315). 

(C) The Secretary and each Regional 

Fishery Management Council may 

establish a peer review process for that 

Regional Fishery Management Council 

for scientific information used to advise 

the Regional Fishery Management 

Council about the conservation and 

management of the 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. The peer review process is not 

a substitute for the SSC and should 

work in conjunction with the SSC. 

(D) Each Regional Fishery 

Management 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)). 

(3) Approach for setting limits and 

targets for consistency with NS1. In 

general, when specifying limits and 

targets intended to avoid overfishing 

and achieve sustainable fisheries, 

Councils should take an approach that 

considers uncertainty in scientific 

information and management control of 

the fishery. These guidelines identify 

limit and target reference points which 

should be set lower as uncertainty 

increases 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 should 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 paragraphs (c)(1) 

through (7) 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’’ and amend their FMPs as 

appropriate. If they do not establish 

ecosystem component species through 

an FMP amendment, then all stocks in 

an FMP are presumed to be ‘‘in the 

fishery.’’ Councils should also describe 

fisheries data for the stocks, stock 

complexes, and ecosystem component 

species in their FMPs. For all stocks and 

stock complexes that are ‘‘in the 

fishery,’’ the Councils should 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) ACLs and mechanisms for setting 

ACLs and possible sector-specific ACLs 

in relationship to the ABC (see 

paragraphs (f)(5) and (h) of this section). 

(5) ACT control rule (see paragraph 

(f)(6) of this section). 

(6) AMs and AM mechanisms (see 

paragraphs (g) and (h)(1) of this section). 

(7) 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. FMPs include 

target stocks and may also include nontarget species or stocks. All stocks listed 

in an FMP or FMP amendment are 

considered to be ‘‘in the fishery’’ unless 

they are identified as ecosystem 

component (EC) species through an 

FMP amendment process. 

(2) Stocks in a fishery. Stocks in a 

fishery include: Target stocks; nontarget stocks that are retained for sale or 

personal use; and non-target stocks that 

are not retained for sale or personal use 

and that are either determined to be 

subject to overfishing, approaching 

overfished, or overfished, or could 

become so, according to the best 

available information, without 

conservation and management 

measures. 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’’ are generally not retained for 

any purpose, although de minimis 

amounts might occasionally be retained. 

EC species may be identified at the 

species or stock level, and may be 

grouped into complexes. EC species 

may 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 on a regular basis, 

to the extent practicable, 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, and other 

reference points for the stock are 

established. In most cases, the primary 


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FMP for a stock will be the one in which 

the stock is identified as a target stock. 

Other FMPs in which the stock is 

identified as part of a fishery should be 

consistent with the primary FMP. 

(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. Stocks may be 

grouped into complexes for various 

reasons, including where stocks in a 

multispecies fishery cannot be targeted 

independent of one another; where 

there is insufficient data to measure 

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 that is used to help 

manage and evaluate stocks that are in 

a stock complex and do not have their 

own SDC. 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. 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. 

(e) Features of MSY, SDC, and OY 

that should be identified in FMPs for all 

stocks and stock complexes in the 

fishery—(1) MSY. Each FMP should 

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 

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. As MSY values are estimates 

and 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). 

(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. 

(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. MSY is the 

long-term average of such catches. 

(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 


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specifying SDC, a Council should 

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 should 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. The MFMT must 

not exceed Fmsy. 

(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 

should 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. 

(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. The long-term 

objective is to achieve OY through 

annual achievement of ACT, which is 

described in paragraph (f) of this 

section. An FMP must contain 

conservation and management measures 

to achieve OY, and provisions for 

information collection that are designed 

to determine the degree to which OY is 

achieved on a continuing basis—that is, 

to result in a long-term average catch 

equal to the long-term average OY, 

through an effective system of ACLs, 

ACTs, and AMs. 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, 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 


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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 can be 

reduced to a value less than MSY based 

on 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 

these factors is not possible, the FMP 

still must address these factors in its OY 

specification. 

(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. 

(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 preventing overfishing and should 

be reduced from MSY to account for 

scientific uncertainty in calculating 

MSY, and economic, social, and 

ecological factors such as those 

described in paragraph (e)(3)(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 to 

the ACT then OY could be set very close 

to MSY. To the degree that such MSY 

estimates and management controls are 

lacking or unavailable, OY should be set 

farther from MSY. In order to achieve 

OY in the long term, catch targets (i.e., 

ACT) should be set below catch limits 

(i.e., ACLs) based on the degree of 

management control so that average 

catch (or average ACT) approximates 

OY (see paragraph (f)(6) of this section). 

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. 

As a long-term average, OY cannot 

exceed MSY. 

(B) Either a range or a single value 

may be specified for OY. Specification 

of a numerical, fixed-value OY does not 

preclude use of ACTs that vary with 

stock size or management precision. For 

example, an ACT control rule (described 

in paragraph (f)(6) of this section) might 

prescribe a smaller ACT if there is less 

management precision. 

(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. If 

OY is specified at a fishery level, the 

sum of the ACTs for the stocks and 

stock complexes in the fishery should 

approximate OY. 

(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 


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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)(7) of this 

section) of acceptable biological catch, 

annual catch limits, and annual catch 

targets 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. 

Paragraph (f) of this section describes a 

three-step approach for setting limits 

and targets so as to ensure a low risk of 

overfishing while achieving, on a 

continuing basis, OY: First, ABC is set 

below the OFL to account for scientific 

uncertainty in calculating the OFL; 

second, ACL is set at an amount not to 

exceed the ABC; and third, ACT is set 

at an amount not to exceed the ACL to 

account for management uncertainty in 

controlling a fishery’s actual catch. 

(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 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. 

(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). 

(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. A stock or stock 

complex’s ACT should usually be less 

than its ACL and results from the 

application of the ACT control rule. If 

sector-ACLs have been established, each 

one should have a sector-ACT. 

(vi) ACT control rule means a 

specified approach to setting the ACT 

for each 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) and is 

recommended to be reduced from OFL 

to account for scientific uncertainty in 

the estimate of OFL. Councils should 

develop a process for receiving 

scientific information and advice used 

to establish ABC. This process should: 

Establish an ABC control rule, identify 

the body that will apply the ABC 

control rule (i.e., calculates the ABC), 

identify the review process that will 

verify the resulting ABC, and confirm 

that the SSC recommends the ABC to 

the Council. 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. 

(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 target fishing mortality rates in the 

rebuilding plan. 

(4) ABC control rule. For stocks and 

stock complexes required to have an 

ABC, each Council should establish an 

ABC control rule based on scientific 

advice from its SSC. 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 

should clearly articulate how far below 

the OFL, or OFL proxy, the ABC will be 

set based on the level of scientific 

knowledge about the stock or stock 

complex and the scientific uncertainty 

in the estimate of OFL. The ABC control 

rule should take into account 

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. 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 should include ACLs 

and ACTs 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. The AMs 

specified for a multiyear plan should 

provide that, if an ACL is exceeded for 

a year, then a subsequent year’s harvest 

specification (including ACLs and 

ACTs) could be revised. 

(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. 

Sector-AMs must be developed for each 

sector-ACL, and 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 and 

equitable and protect the stock or stock 

complex as a whole. If sector-ACLs and 

AMs are established, additional AMs at 

the stock or stock complex level would 

also be appropriate. 

(iii) ACLs for State-Federal Fisheries. 

For stocks or stock complexes that have 

a large majority of 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 would be 

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 


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strategies, and scientific capacity to 

support such strategies, to prevent 

overfishing of shared stocks and ensure 

their sustainability. 

(6) ACT control rule. For stocks and 

stock complexes required to have an 

ACL, each Council should establish 

ACT control rules for setting the ACTs. 

The ACT control rule should clearly 

articulate how far below the ACL the 

target will be established based on the 

amount of management uncertainty 

associated with harvest of a stock or 

stock complex. For example, the ACT 

may need to be set further below the 

ACL in fisheries where inseason 

monitoring of catch data is unavailable 

or infeasible, or where AMs are 

established using a multi-year averaging 

approach (see paragraph (g)(4) of this 

section). 

(i) Determining management 

uncertainty. Two sources of 

management uncertainty should be 

accounted for in establishing the ACT 

control rule: Uncertainty in the ability 

of managers to constrain catch to the 

ACT and uncertainty in quantifying the 

true catch amounts (i.e., estimation 

errors). To determine the level of 

management uncertainty in controlling 

catch, analyses should consider past 

management performance in the fishery 

and factors such as time lags in reported 

catch. Such analyses should 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 

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) Relationships of OFL to MSY and 

ACT to OY. The following (see 

paragraphs (f)(7)(i) and (ii) of this 

section) describes the relationships 

between terms used in ending and 

preventing overfishing and rebuilding 

overfished stocks and stock complexes. 

(i) Relationship of OFL to MSY. OFL 

is the amount of catch for a particular 

year that corresponds to the estimate of 

MFMT applied to a stock or stock 

complex’s abundance, and MSY is the 

long-term average of such catches. ABC 

is recommended to be set below OFL to 

take into account the scientific 

uncertainty in the estimate of OFL. 

(ii) Relationship of ACT to OY. 

Paragraphs (a) and (e)(3) of this section 

define and describe OY and the goal of 

preventing overfishing, while achieving 

on a continuing basis the OY from each 

stock, stock complex, or fishery. 

Management measures for a fishery 

should, on an annual basis, achieve the 

ACTs and prevent the ACLs from being 

exceeded. The long-term objective is to 

achieve OY through annual 

achievement of 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 that prevent ACLs 

or sector-ACLs from being exceeded 

(inseason AMs), where possible, and 

correct or mitigate overages 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. 

(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, 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. Where timely catch data 

are available for a stock, FMPs should 

include inseason closure authority to 

close the fishery on or before the date 

when the ACL for a stock or stock 

complex is projected to be reached. 

(3) AMs for when the ACL is 

exceeded. On an annual basis, the 

Council should determine as soon as 

possible after the fishing year if an ACL 

was exceeded. If an ACL was exceeded, 

AMs should 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 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. 

(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. 

Evaluation of the moving average catch 

to the average ACL must be conducted 

annually. If the average catch exceeds 

the average ACL more than once in the 

last four years, then the ACL, ACT and 

AM system should be re-evaluated. The 

initial ACL and management measures 

should incorporate information from 

previous years so that AMs based on 

average ACLs can be applied from the 

first year. 

(5) AMs for State-Federal Fisheries. 

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. 

(h) Establishing ACL and AM 

mechanisms in FMPs. FMPs or FMP 

amendments should establish ACL and 

AM mechanisms for all stocks and stock 

complexes in the fishery, unless 

paragraph (h)(2) of this section is 

applicable. 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 

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 and AM 

mechanisms, 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 their relationship to 

ABC and ACT control rules, including 

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); 

(iv) Sector-AMs, if there are sectorACLs; and 


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(v) Fisheries data described in 

paragraph (i) of this section. 

(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 life time. While exempt from the 

ACL and AM requirements, FMPs or 

FMP amendments for these stocks 

should 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 

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 ESAlisted 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 should 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, 

Councils should describe general data 

collection methods, as well as any 

specific data collection methods used 

for all stocks, stock complexes, and 

ecosystem component species. FMPs 

should: 

(1) List sources of fishing mortality 

(both landed and discarded), including 

commercial and recreational catch and 

bycatch in other fisheries; 

(2) Describe 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) Describe 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 a 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 

should 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 should 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 should 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) of the Magnuson-Stevens 

Act. If the stock or stock complex is 

approaching an overfished condition, 

the purpose of the action is to prevent 

the biomass from declining below the 

MSST. 

(B) For notifications that a stock or 

stock complex is overfished made after 

July 12, 2009, a Council must prepare an 

FMP, FMP amendment, or proposed 

regulations within two years of 

notification. Council actions should be 

submitted for Secretarial review 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 

Magnsuon-Stevens Act. 

(C) For notifications that a stock or 

stock complex is approaching an 

overfished condition made after July 12, 

2009, a Council should take immediate 

action to reduce the likelihood that the 

stock or stock complex will become 

overfished. Otherwise, the stock or stock 

complex would likely be overfished by 

the time the two-year timeline to 

implement management measures 

expired. 

(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 


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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. 

(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, 

should generally be less than Tmax, and 

should be calculated based on the 

factors described in this paragraph (j)(3) 

with a priority given to rebuilding in as 

short a time as possible. 

(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, and the 

rebuilding F is greater than 75 percent 

of MFMT, then the rebuilding F should 

be reduced to no more than 75 percent 

of MFMT until the stock or stock 

complex has been demonstrated to be 

rebuilt. 

(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, should 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 should be based upon the best 

available scientific information. 

(l) Relationship of National Standard 

1 to other national standards—(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 


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Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Proposed Rules 32547 

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 

should 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). Councils must take into 

account the importance of fishery 

resources to fishing communities when 

specifying OY and an ACT control rule. 

Also, see paragraph (e)(3)(iv)(A) of this 

section for more information on how 

factors that relate to fishing 

communities should be considered 

when reducing OY from MSY. 

(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 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. 08–1328 Filed 6–4–08; 9:34am] 

BILLING CODE 3510–22–P 


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