Magnuson-Stevens Act Provisions; National Standard Guidelines

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 120416013-6270-03]

RIN 0648-BB92

Magnuson-Stevens Act Provisions; National Standard Guidelines

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final action revises the guidelines for National Standards (NS) 1, 3, and 7 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA or The Act) and to the General section of the NS guidelines. This action is necessary to improve and clarify the guidance within the NS guidelines. The purpose of this action is to facilitate compliance with requirements of the MSA to end and prevent overfishing, rebuild overfished stocks, and achieve optimum yield (OY).

DATES:

This rule is effective October 18, 2016.

ADDRESSES:

Copies of supporting documents prepared for this final rule, such as the proposed rule and public comments that were received, can be found at the Federal e-Rulemaking portal:

http://www.regulations.gov

by searching for RIN 0648-BB92.

FOR FURTHER INFORMATION CONTACT:

Stephanie Hunt, 301-427-8563.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of Revisions to the NS Guidelines

II. Major Components of the Proposed Action

III. Major Changes Made in the Final Action

IV. Overview of the Major Aspects of the Final Action

A. Stocks That Require Conservation and Management

B. Multi-Year Approaches to Overfishing Stock Status Determinations

C. Acceptable Biological Catch (ABC) Control Rules

D. Adequate Progress Determinations for Rebuilding Plans

E. Adding Flexibility in Rebuilding Plans

V. Response to Comments

VI. Changes From Proposed Action (80 FR 2786, January 20, 2015)

VII. Reference Cited

VIII. Classification

I. Overview of Revisions to the NS Guidelines

The MSA serves as the chief authority for fisheries management in the U.S. Exclusive Economic Zone (EEZ). The Act sets ten national standards (NS) for fishery conservation and management, and requires that the Secretary of Commerce (the Secretary) establish advisory guidelines based on the NS to assist in the development of fishery management plans. Guidelines for the NS are codified in subpart D of 50 CFR part 600. This final action amends the General section of the NS guidelines and the guidelines for NS1, NS3, and NS7.

Since 2007, fisheries management within the U.S. has experienced many changes, in particular the development and implementation of annual catch limits (ACLs) and accountability measures (AMs) under all fishery management plans to end and prevent overfishing. Due to a number of concerns raised during the implementation of ACLs and AMs, NMFS initiated a revision of the NS guidelines in 50 CFR 600.305, 600.310, 600.320, and 600.340 in order to improve the utility of the guidelines for managers and the public. NMFS published an Advance Notice of Public Rulemaking (ANPR) on May 3, 2012, (77 FR 26238, May 3, 2012) to solicit public comments on potential adjustments to the NS guidelines. The comment period on the ANPR was extended once (77 FR 39459, July 3, 2012), and then reopened (77 FR 58086, September 12, 2012), and ended on October 12, 2012. In March 2013, NMFS published a report that summarizes the comments received on the ANPR (

http://www.nmfs.noaa.gov/sfa/laws_policies/national_standards/ns1_revisions.html

). In addition to the ANPR, issues related to the NS guidelines were discussed at several other public forums. NMFS proposed revisions to the General section of the NS guidelines and the guidelines for NS1, NS3, and NS7 on January 20, 2015 (80 FR 2786, January 20, 2015). Further background is provided in the above-referenced

Federal Register

documents and is not repeated here. The proposed rule described the objective of the proposed revisions, which is to improve and streamline the NS1 guidelines, address concerns raised during the implementation of ACLs and AMs, and provide flexibility within current statutory limits to address fishery management issues.

NMFS solicited public comment on the proposed revisions to the guidelines through June 30, 2015, and during that time made presentations on the proposed revisions to seven of the eight Regional Fisheries Management Councils (Councils) and held one public meeting on March 25, 2015 (Silver Spring, Maryland). NMFS received more than 102,000 comments on all aspects of the proposed revisions. Many of the comment letters were form letters or variations on a form letter. In general, the fishing industry and the Councils supported the majority of the provisions in the proposed action meant to provide flexibility within the current statutory limits but stated that many of the new provisions required additional guidance in the final action. In general, the environmental community opposed the proposed revisions, stating that they would reverse recent successes in U.S. fisheries management and did not address pertinent issues such as ecosystem-based fisheries management (EBFM), forage fish, and climate change.

II. Major Components of the Proposed Action

Some of the major items covered in the proposed guidelines included the following: (1) Add a recommendation that Councils reassess the objectives of their fisheries on a regular basis; (2) consolidate and clarify guidance on identifying whether stocks require conservation and management; (3) provide additional flexibility in managing data limited stocks; (4) revise the guidance on stock complexes to encourage the use of indicator stocks; (5) describe how aggregate maximum sustainable yield (MSY) estimates can be used; (6) develop a definition for a depleted stock; (7) provide increased stability in fisheries by providing guidance on the use of multi-year overfishing determinations; (8) revise the guidance on optimum yield (OY) to improve clarity and better describe the role of OY under the ACL framework; (9) clarify the guidance on acceptable biological catch (ABC) control rules, describe how ABC control rules can allow for phase-in adjustments to ABC, and allow for carry-over of all or some of an unused portion of the ACL; (10) revise the guidance on AMs to improve clarity; (11) clarify the guidance on establishing ACL and AM mechanisms in FMPs; (12) clarify the guidance on adequate progress in rebuilding and extending rebuilding timelines; and (13) provide flexibility in rebuilding stocks.

III. Major Changes Made in the Final Action

The approaches proposed under items #1, 3-5, 8, and 10-11 above are retained in this final action. The main substantive change in the final action pertains to the proposed definition for

depleted stocks (#6). NMFS proposed adding the term “depleted” to the NS1 guidelines to describe those stocks whose biomass has declined as a result of habitat loss and other environmental conditions, as opposed to fishing pressure. However, separating out the impacts of environmental factors from the impacts of fishing on a stock is a difficult task and public comments reflected concern that the proposed definition for depleted stocks was overly restrictive and would not definitively distinguish between stocks primarily impacted by environmental factors and stocks primarily impacted by fishing pressure. Thus, the final action does not include the proposed definition of depleted stocks and instead retains the current requirement that stocks whose biomass has declined below its MSST are considered to be overfished, regardless of the factors (fishing-related or otherwise) responsible for the stock's decline. A Council may use the term “depleted” to further describe the status of an overfished stock that has been impacted to some extent by environmental factors in addition to (or in the absence of) fishing pressure.

In response to public comment, this final action also clarifies text on stocks that require conservation and management (#2), multi-year approaches to overfishing stock status determinations (#7), phase-in and carry-over ABC control rules (#9), adequate progress determinations for rebuilding plans (#12), and discontinuing rebuilding plans (#13), and makes minor clarifications to other text. Further explanation of why changes were or were not made is provided in the “Response to Comments” section below. Details on changes made in the codified text are provided in the “Changes from Proposed Action” section.

IV. Overview of the Major Aspects of the Final Action

A. Stocks That Require Conservation and Management

NMFS received numerous comments on proposed § 600.305(c), which contains new guidance to Councils on determining, pursuant to their obligation under MSA section 302(h)(1), whether stocks require (or, are in need of) conservation and management. The MSA establishes that each Council should prepare an FMP for each fishery under its authority that requires conservation and management. 16 U.S.C. 1801(b)(1). Because not every fishery requires federal management, NMFS believes that consolidated, streamlined guidance on determining which stocks are in need of conservation and management and thus, federal management, will be beneficial to managers. Further background and rationale for this proposed revision to the guidelines was provided on pages 2788-2789 of the proposed rule.

See

80 FR 2788-2789, January 20, 2015.

Sections V and VI (Responses to Comments and Changes from Proposed Rule) provide a detailed explanation of changes made from the proposed to final action. Here, NMFS highlights a few of those changes. Final § 600.305(c)(1) provides—unchanged from the proposed action—that stocks that are predominately caught in Federal waters and are overfished or subject to overfishing, or likely to become overfished or subject to overfishing, are considered to require conservation and management. 16 U.S.C. 1853(a)(1)(A) (requiring that FMPs contain conservation and management necessary to prevent overfishing and rebuild overfished stocks). However, the final action clarifies that Federal management is not limited to such stocks (

i.e.,

predominantly caught in Federal waters and overfished or subject to overfishing, or likely to become so). To determine if other stocks require conservation and management, the guidelines contain a non-exhaustive list of factors (

see

§ 600.305(c)(1)(i)-(x)) that Councils should consider when determining whether a stock requires conservation and management.

The final action adds an explanation at § 600.305(c)(3) that, when considering adding a stock to an FMP, no single factor is dispositive or required. One or more of the factors may provide a basis for determining a stock is in need of conservation and management. When considering removing a stock from an FMP, final § 600.305(c)(4) provides—as proposed—that Councils should consider each of the ten factors. NMFS received many comments on § 600.305(c)(1)(x) in particular. Section 600.305(c)(1)(x) speaks to the consideration of other existing management regimes when determining whether Federal management is necessary. In response to comments, the final action deletes the phrase “could be or” from § 600.305(c)(1)(x), which implied that the mere possibility that other management regimes may exist is an appropriate consideration for determining whether a stock requires conservation and management, which was not the intention behind the proposed revisions.

Finally, while nothing in the proposed revisions changed previous guidance on the optional usage of ecosystem component (EC) species, NMFS clarifies in the final action that Councils may still use EC species at their discretion and re-inserts a definition of EC species. However, the definition of EC species in the final action does not include criteria for designation because a Council is free to designate any stock, that is determined not in need of conservation of management, as an EC species at their discretion. Criteria for the designation of EC species is no longer necessary because the factors listed in § 600.305(c)(1)(i)-(x) of this final action clarify which stocks are in need of conservation and management and therefore cannot be designated as EC species. Because the designation of EC species may be done to accomplish several different goals, NMFS does not believe it is appropriate to prescribe specific guidance on the requirements for managing and monitoring EC species.

B. Multi-Year Approaches to Overfishing Stock Status Determinations

Another major aspect of the revised NS1 guidelines is the inclusion of guidance on a method for determining the overfishing status of a stock based on a multi-year approach. The MSA defines overfishing as a “rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the MSY on a continuing basis.” 16 U.S.C. 1802(34). Thresholds for deciding whether a stock is subject to overfishing can be determined either by comparing rates of fishing mortality (F) to the maximum fishing mortality threshold (MFMT) or catch to the overfishing limit (OFL).

See

§ 600.310(e)(2)(i)(B)-(D).

Pursuant to MSA section 304(e)(1), NMFS must report annually to Congress and the eight Councils on the status of all Federally-managed fish stocks. 16 U.S.C. 1854(e)(1). Overfishing status determinations are typically made based on the most recent year for which there is information. When utilizing the F-based approach, the estimate of F for the most recent year for which there is data is often more uncertain than the estimates of F in prior years (NRC 1998). In addition, the extent to which the effort or catch exceeded the threshold for overfishing has not traditionally been considered when determining whether the stock was subject to overfishing. Small amounts of excess effort or catch in a single year may not jeopardize a stocks' ability to produce MSY over the long term, thus an overfishing stock status determination based on that single year's reference point may not be the most appropriate characterization of stock status. To

address this issue, the proposed revisions introduced a multi-year approach (that may not exceed 3 years) to allow Councils to examine whether the extent to which a stock has surpassed its overfishing threshold actually jeopardizes the stock's ability to produce MSY on a continuing basis.

See

§ 600.310(e)(2)(ii)(A)(

3

) of the proposed action. Using a multi-year approach to determine overfishing stock status is best used when managers believe the most recent year's data point may not reflect the overall status of the stock. Further background on the proposed multi-year overfishing stock status determination provision was provided on pages 2791-2792 of the proposed rule.

See

80 FR 2791-2792, January 20, 2015.

Public comments reflected confusion regarding proper use of this provision. Thus, the final action clarifies that, under certain circumstances, a Council may determine that it is appropriate to use a multi-year approach for overfishing status determination criteria (SDC). Such circumstances may include, but are not limited to, situations where there is high uncertainty in the estimate of F in the most recent year, cases where stock abundance fluctuations are high and assessments are not timely enough to forecast such changes, or other circumstances where the most recent catch or F data does not reflect the overall status of the stock. The final action clarifies that a Council must identify, within its FMP or FMP amendment, the circumstances (such as those listed above) in which a multi-year approach to overfishing SDC will be used. The final action also emphasizes that a multi-year approach is to be used only for retrospective stock status determinations,

i.e.,

determinations that NMFS makes to fulfill statutory reporting requirements. 16 U.S.C. 1854(e)(1). The provision may not be used to establish annual catch limits. For example, if the catch of a stock in a single year was well below its ACL, a Council may not justify setting the next year's catch level above the OFL based on the multi-year approach. NMFS provides additional explanation and clarification on this issue in the responses to comments below.

C. Acceptable Biological Catch (ABC) Control Rules

An ABC control rule accounts for scientific uncertainty in the OFL and for the Council's risk policy when establishing an ABC. The proposed guidelines would allow Councils to develop an ABC control rule that would phase-in changes to the ABC over a period of time not to exceed 3 years, so long as overfishing is prevented.

See

§ 600.310(f)(2)(ii)(A) of the proposed action. NMFS also proposed allowing Councils to carry-over some of the unused portion of the ACL from one year to increase the ABC for the next year, based on increased stock abundance resulting from the fishery harvesting less than the full ACL. The proposed NS1 guidelines clarified that Councils establishing phase-in and/or carry-over provisions in their ABC control rules would need to specify when each provision can and cannot be used and how each provision prevents overfishing, based on a comprehensive analysis.

See

§ 600.310(f)(2)(ii). Further background and rationale on the proposed revisions to establish phase-in and carry-over ABC control rules was provided on page 2794 of the proposed rule.

See

80 FR 2794, January 20, 2015.

NMFS received a variety of public comments expressing concern that phase-in and carry-over provisions would increase the risk of overfishing. The final action emphasizes that Councils should conduct a comprehensive analysis of every ABC control rule—which would include those with phase-in and/or carry-over provisions—that shows how the control rule prevents overfishing.

See

§ 600.310(f)(2)(i) and (ii) of final action. The final action also clarifies that, for stocks that are overfished and/or rebuilding, Councils should evaluate the appropriateness of carry-over provisions for such stocks. Finally, the final action contains language recommending that Councils should consider the reason for ACL underages when deciding whether to allow carry-over.

D. Adequate Progress Determinations for Rebuilding Plans

MSA section 304(e)(7) requires the Secretary to review rebuilding plans to ensure that adequate progress toward ending overfishing and rebuilding affected fish stocks is being made. 16 U.S.C. 1854(e)(7). NMFS received several comments in response to the ANPR requesting additional guidance on adequate progress determinations and thus, NMFS proposed guidance to clarify that the review of rebuilding progress could include the review of recent stock assessments, comparisons of catches to the ACL, or other appropriate performance measures. NMFS also proposed that the Secretary may find that adequate progress in rebuilding is not being made if: (1) F

rebuild

or the ACL associated with F

rebuild

are being exceeded and AMs are not effective at correcting for the overages; or (2) when the rebuilding expectations of the stock or stock complex have significantly changed due to new and unexpected information about the status of the stock.

See

§ 600.310(f)(3)(iv). Public comment raised concern that these criteria do not consider biomass trends, which would allow adequate progress determinations to be made for stocks where, despite maintaining catch at or below F

rebuild,

the biomass is failing to increase. Having considered public comment, NMFS has decided to keep the proposed criteria for adequate progress determinations in the final action. As mentioned in the proposed action, the 2013 National Research Council (NRC) report on rebuilding highlighted that the primary objective of a rebuilding plan should be to maintain fishing mortality at or below F

rebuild

. By doing so, managers can avoid issues with updating timelines that are based on biomass milestones, which are subject to uncertainty (

see

§ 600.310(j)(3)(i)(A)) and changing environmental conditions that are outside the control of fishery managers. NMFS emphasizes in the final action that, despite the uncertainty associated with biomass trends, there is a strong relationship between F-rates and biomass trends. Stocks that consistently experience fishing mortality above F

rebuild

generally experience declining or little increases in biomass, while stocks that consistently experience fishing mortality equal to or below F

rebuild

generally experience increasing biomass. Cases where stock biomass is not increasing despite maintaining catch levels at or below F

rebuild

levels would be unexpected. Such cases would likely trigger the second criteria for determining that adequate progress is not being made (

i.e.,

new and unexpected information has significantly changed the rebuilding expectations of the stock). Thus, NMFS is confident that the criteria for adequate progress determinations (see § 600.310(j)(3)(iv) of the final action), address and cover situations where a rebuilding plan fails to properly constrain fishing mortality rates as well as situations where a rebuilding stock's biomass is failing to increase. NMFS believes that further guidance on this issue is not necessary to include within the NS1 guidelines.

E. Adding Flexibility in Rebuilding Plans

Calculating T

max

The NS1 guidelines provide guidance on determining the minimum (T

min

), maximum (T

max

), and target (T

target

) time to rebuild a stock to a level that supports MSY (B

msy

). In the past, Councils have had difficulties

calculating T

max

based on the original data-intensive method (

i.e.,

T

min

+ one generation time) that requires data on life history, natural mortality, age at maturity, fecundity, and maximum age of the stock (Restrepo, et al. 1998). In order to allow Councils to make T

max

calculations despite variable information and data availability amongst stocks, NMFS proposed specifying three methods to calculate T

max

within the guidelines: (1) T

min

plus one mean generation time (status quo); (2) the amount of time the stock is expected to take to rebuild to its B

msy

if fished at 75 percent of the MFMT; or (3) T

min

multiplied by two. Further background and rationale on the proposed revisions to the guidance on the calculation of T

max

was provided on pages 2795-2796 of the proposed rule.

See

80 FR 2795-2796, January 20, 2015.

NMFS received many comments on the proposed additional methods to calculate T

max

, and some commenters stated that if Councils use the method that yields the longest T

max

estimate, the resulting rebuilding plan would not be effective nor meet the statutory requirement that rebuilding plans rebuild a stock in as short a time as possible. 16 U.S.C. 1854(e)(4)(A)(i).

After taking into consideration public comment, NMFS has decided to keep the additional T

max

calculation methods, but has revised the final action to provide additional guidance on how to determine which method to use. First, NMFS added language to the final action to emphasize that, where T

min

exceeds 10 years, T

max

establishes a maximum time for rebuilding that is linked to the biology of the stock. As such, NMFS also highlighted that decisions regarding which T

max

calculation method to use should be driven by the best scientific information available with consideration of relevant biological data and the scientific uncertainty of that data (rather than the outcome of the calculation). Councils must also work with their Scientific and Statistical Committees (SSCs) (or agency scientists or peer review processes in the case of Secretarial actions) to determine which T

max

calculation method to use. Finally, NMFS also provided examples of cases where, given data availability and the life history characteristics of a stock, it may be appropriate to use one of the alternative methods instead of the status quo calculation method (T

min

plus one mean generation time).

Furthermore, while Councils may use T

max

as a measureable upper bound on the duration of rebuilding time periods, Councils must set a target time for rebuilding (T

target

) that is as short as possible, taking into consideration certain statutory factors.

See

§ 600.310(j)(3)(i). Thus, Councils must demonstrate that their adopted T

target

is the shortest time possible for rebuilding and Council action addressing an overfished fishery should be based on T

target.

Discontinuing Rebuilding Plans

Due to scientific uncertainty in the biomass estimates of fish stocks, occasionally a stock is identified as overfished, but is later determined to have never been overfished. In the past, NMFS' approach has been that, once a rebuilding plan has been implemented, the rebuilding plan cannot be discontinued until the stock has been rebuilt to B

msy

, regardless of new information about the status of the stock when it was originally declared overfished. To address this issue, NMFS proposed to allow a rebuilding plan to be discontinued if both of the following criteria are met: (1) The Secretary retrospectively determines the stock was not overfished in the year that the overfished determination was made; and (2) the biomass of the stock is not currently below the MSST.

See

§ 600.310(j)(5) of the proposed action. Further background and rationale on the proposed revisions to the guidance on the discontinuation of rebuilding plans was provided on pages 2796-2797 of the proposed rule.

See

80 FR 2796-2797, January 20, 2015.

Based on public comments, this final action adds that the stock must be shown to have never been overfished in subsequent years following the original overfished determination, including the current year. This revision effectively covers the two criteria, thus the final action deletes the proposed second criteria.

See

§ 600.310(j)(5) of the final action. Should new information demonstrate that the stock was overfished in a subsequent year, a rebuilding plan is still necessary and rebuilding timeframes should be adjusted accordingly. It should also be noted that discontinuation of a rebuilding plan that meets the criteria listed within the final action is not mandatory or automatic; a Council may choose to retain a rebuilding plan for conservation and management purposes.

V. Response to Comments

Management Objectives of FMPs

Comment 1:

NMFS received several comments regarding the proposed provision to regularly re-assess FMP management objectives. Some comments requested clarity regarding the flexibility of the term “regular”—whether it meant reassessments could be completed on an as-needed basis, or whether the Council needs to specify a numerical period (

e.g.,

every 5 or 7 years). Some commenters suggested that opportunities for reassessments already exist within standard Council processes (

e.g.,

creating FMP amendments; biennial reviews) and that the regularity of objective reassessments should be at the Council's discretion based on workload and resource constraints. Commenters also requested that the guidelines specify “triggers” for FMP reassessments, especially to encourage reassessment of outdated objectives. Commenters also supported evaluations of whether management is achieving FMP management objectives. Another commenter requested that the provision be expanded to include a periodic review of fishery monitoring systems that provide data for implementing FMPs in addition to FMP management objectives. Finally, with regard to the result of the proposed reassessments, one commenter requested that the guidelines outline a process for instances when a reassessment finds the FMP management objectives are no longer valid.

Response:

NMFS believes that a prescribed time period for reassessments is not appropriate and provided rationale for this decision in the proposed action preamble. Nothing raised in the comments has caused NMFS to revise this rationale. NMFS chose not to prescribe a set time period for “a regular basis” in order to provide the Councils with the flexibility to determine this time frame themselves. While no time frame is prescribed, Councils should provide notice to the public of their expected schedule for review. Given the scope and complexity of such a task, NMFS does not expect Councils to reassess their FMP objectives every few years; rather some longer time frame which staggers the review of each FMP may be more appropriate.

See

80 FR 2787, January 20, 2015.

If, following reassessment, a Council finds that an FMP's management objectives are no longer meeting the needs of the fishery and do not properly address relevant social, economic, and ecological factors, NMFS encourages Councils to adjust their management objectives. As with the issue of time periods for review, NMFS believes that it is important to preserve Council flexibility in determining how best to make these adjustments and therefore declines to establish a single process to address issues raised in the reassessments. NMFS urges Councils to

evaluate whether management measures are meeting FMP objectives, especially within the context of evaluating the changing needs of the fishery.

Finally, while NMFS agrees that the fishery monitoring systems and data collection programs set up to deliver the necessary data for FMP implementation are crucial to successfully meeting FMP management objectives, a review of these systems and programs does not need to be included in the reassessment of an FMP's management objectives.

Comment 2:

One commenter suggested that NMFS replace “objectives of the fishery” in § 600.305(b)(2) with “FMP's management objectives” to make the language consistent with the rest of the guidelines.

Response:

NMFS agrees, and has made the suggested edit in the final action.

Comment 3:

Commenters requested more guidance on what Councils should consider when creating and assessing FMP management objectives. Specifically, commenters requested that the guidelines include additional guidance on how management objectives should tie into objectives related to the MSA; its national standards; and the ecological, economic, and social factors of OY specifications. Commenters also requested guidance on how conflicting objectives should be resolved in favor of the conservation mandate in NS1. While one commenter requested the guidelines encourage reassessments to respond to changes in ecosystem components (

e.g.,

protected species), other commenters requested that the requirements for reassessments be kept at a minimum to preserve resources and flexibility.

Response:

NMFS believes that the proposed guidelines set appropriate parameters for the reassessment of FMP management objectives while leaving the exact considerations for management objectives up to the discretion of the Councils. The MSA itself “guides” (or rather, drives) the development of FMPs, as it sets forth conservation and management mandates and requirements, including the national standards, with which FMPs must be consistent. With regard to ecosystems, NMFS believes that the Council has discretion and flexibility to efficiently respond to changes in ecosystems during their reassessments of FMP management objectives. Thus, NMFS does not believe any further guidance is needed within the NS1 guidelines.

Comment 4:

One commenter suggested adding language to § 600.310(e)(3)(iii)(B)(

1

) of the proposed action on the enjoyment and participation gained from recreational fishing when some stocks are managed for abundance rather than maximum harvest. The commenter also suggested adding language to § 600.310(e)(3)(iii)(B)(

2

) of the proposed action on necessary shifts in mixed use allocations to achieve maximum economic and public use benefits.

Response:

NMFS does not believe that § 600.310(e)(3)(iii)(B)(

1

) needs to be revised as suggested. OY is derived from MSY, which is the largest long-term average catch or yield that can be taken from a stock or stock complex, thus “abundance” of a stock is a consideration addressed through the description of OY within the guidelines.

See

§ 600.310(e)(1)(i), (e)(3)(i)(A) (defining MSY and OY). NMFS agrees that allocation of fishery resources is one of the issues that may need to be considered when re-assessing an FMP's management objectives. NMFS explicitly highlighted allocation as a consideration for reassessments of management objectives in the proposed action.

See

80 FR 2787, January 20, 2015. However, NMFS disagrees that further allocation examples need to be added to the economic and social factors a Council can consider when setting OY and their management objectives. The NS1 guidelines set forth examples of different considerations for each factor, and NMFS believes the examples provide sufficient guidance.

Stocks That Require Conservation and Management

Comment 5:

NMFS received numerous comments on the newly proposed section on stocks in need of conservation and management.

See

§ 600.305(c). Many commenters perceived the revisions as an impermissible narrowing of the obligations imposed by the MSA. Some commenters urged that, to the extent that NMFS is offering guidance on whether stocks are in need of conservation and management, that any factors considered should be solely based on the MSA's definition of “conservation and management” at 16 U.S.C. 1802(5) and that it was inappropriate to bring in other statutory provisions such as National Standards 3 and 7 as part of that analysis. In contrast, others believed that by prescribing a list of factors to consider when determining that stocks are in need of conservation and management that NMFS has inappropriately curtailed the discretion afforded to the Councils to make that determination. Commenters suggested alternative approaches for Councils to take to determine whether conservation and management is necessary. Commenters also suggest that in addition to answering whether a stock is in need of conservation and management, they should also consider why that stock may be in need of conservation and management and how that stock should be best managed (if at all). In particular, one commenter requested that NMFS provide additional information on the deletion of two provisions from the NS7 guidelines published in 1998 (§ 600.340(b)(1); 600.340(b)(2)(vii); (

see

63 FR 24234, May 1, 1998)) from the proposed action. The commenter suggested the provisions should be incorporated into § 600.305(c)(1) to allow Councils to balance the costs and benefits of management and consider whether management serves some useful purpose. Finally, some commenters noted that Councils have the ability to implement protective measures for species that are not necessarily included as stocks in an FMP.

Response:

An FMP must be prepared for a fishery that requires conservation and management. 16 U.S.C. 1852(h)(1). In proposing § 600.305(c), NMFS did not intend to narrow this requirement to merely those fisheries that are overfished or subject to overfishing. Instead, as explained in the proposed action, NMFS sought to clarify that, while not every stock requires federal management, stocks that are overfished or subject to overfishing (or likely to become so) and that are predominately caught in federal waters

must

be included in an FMP. In addition, a Council may find that other stocks within its jurisdiction require conservation and management as well. Beyond stocks that are overfished or subject to overfishing (or likely to become so), NMFS provides a list of non-exhaustive factors within the guidelines that Councils should consider when determining whether a stock requires conservation and management.

As MSA section 1852(h)(1) is broadly worded, the proposed regulatory guidance was intended to assist Councils in making determinations under this section. To make sure that NMFS' intent is clear, the final action includes clarifying edits to emphasize the agency's approach with regard to overfishing/overfished stocks and other stocks.

As discussed further in response to comment 7, the factors are drawn in the first instance from the statutory definition of “conservation and management.” 16 U.S.C. 1802(5). The proposed action cited to that definition,

and the final action adds the citation for the definition. Although the definition of “conservation and management” speaks generally to actions that are required to rebuild fisheries, designed to assure a supply of food and recreational benefits, and meet other goals, that definition and section 1852(h)(1) do not provide clear direction on when a stock is in need of conservation and management. Thus, NMFS believes that it is appropriate to consider the statute as a whole, including the National Standards and relevant definitions and provisions, to provide constructive guidance to the Councils on section 1852(h)(1).

See

FR 2786, 2788-278980, January 20, 2015 (discussing National Standard 3 and 7 guidelines and relevant MSA provisions in preamble to proposed action).

The factors incorporate the general principle from the 1998 NS7 guidelines at § 600.340(b)(1) that not every fishery needs Federal management.

See

63 FR 24234, May 1, 1998. NMFS does not agree with adding a factor on balancing costs associated with an FMP against benefits: This was a criteria under § 600.340(b)(2)(vii) of the 1998 guidelines for deciding whether a fishery “needs management through regulations implementing an FMP.” Section 600.305(c) of this action provides guidance on the threshold determination of whether to add a stock to an FMP or remove a stock from an FMP, based on whether a stock requires conservation and management. The factors do not speak to what regulatory measures, if any, may or may not be needed for the stock. Costs and benefits should be evaluated when specific regulatory measures are being considered. For clarification and streamlining purposes, § 600.340(b)(2)(vii) was deleted from the proposed and final revisions to the NS7 guidelines, as § 600.340(c) addresses analysis of costs and benefits.

NMFS disagrees that the factors curtail Council discretion. The list of factors is non-exhaustive, and Councils may take into account any additional considerations that may be relevant to the particular stock.

See

responses to comments 7 and 8 for further discussion of the factors. NMFS realizes that the proposed text may have implied that a Council must analyze all ten factors before adding a stock to an FMP. Thus, NMFS has revised final § 600.305(c)(3) to state that one or more of the factors may provide the basis for adding a stock to an FMP. Response to comment 8 provides a more detailed explanation of other clarifications made in final § 600.305(c)(3) and (4) regarding use of the factors when adding a stock to or removing a stock from an FMP.

NMFS agrees, particularly with respect to stocks that may require conservation and management to address biological or ecological concerns, that the cause of those concerns would be a useful consideration for the Councils. The final guidance does not preclude such considerations, and in fact provides a framework for a Council to consider these very relevant questions. Furthermore, based on factor 3, which considers whether an FMP can improve or maintain the condition of the stocks, NMFS has added language within § 600.305(c)(3)-(4) that emphasizes that if the amount and/or type of catch that occurs in Federal waters is a significant contributing factor to the stock's status, such information would weigh heavily in favor of inclusion of the stock within an FMP.

See

§ 600.305(c)(3)-(4).

Finally, NMFS agrees that Councils may implement discretionary measures for species, even if they do not “require conservation and management” pursuant to section 302(h)(1). Section 303(b)(12) of the MSA provides that Councils 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. 16 U.S.C. 1853(b)(12). Additionally, in implementing measures to comply with National Standard 9's requirement that an FMP's conservation and management measures minimize bycatch and bycatch mortality to the extent practicable, Councils can take measures that conserve and protect bycatch species even if those bycatch species are not, themselves, included as stocks in a fishery under an FMP.

Id.

1851(a)(9).

Comment 6:

Some commenters expressed concern with the proposed text at § 600.305(c)(1) regarding stocks that are “predominately caught” in Federal waters. Commenters stated that the limiting “predominately” language is not part of the MSA and would improperly exclude stocks from management.

Response:

The “predominately caught” language in § 600.305(c)(1) does not exclude any stocks from management. As explained in the response to comment 5, MSA section 302(h)(1) and other related MSA provisions do not provide clear direction on when to include stocks in an FMP. NMFS proposed the text regarding overfished/overfishing stocks predominately caught in Federal waters to provide clear guidance on when stocks

must

be included in an FMP. MSA section 1853(a)(1)(A), among other provisions, supports this approach, as it requires that FMPs contain conservation and management measures “necessary and appropriate” to prevent overfishing and rebuild overfished stocks. 16 U.S.C. 1853(a)(1)(A). If a stock is not predominately (

i.e.

mainly, or for the most part) caught in Federal waters, a Council may lack the authority, and thus ability, to adopt measures that would prevent overfishing and rebuild overfished stocks. It would not make sense, in that case, to require a Council to automatically include the stock in an FMP.

“Conservation and management” and “fishery” are defined in terms of practical use or benefit and the ability to manage, which supports the inclusion of predominately in 600.305(c). “Conservation and management” refers to regulations, measures, etc., which are

required

[

i.e.,

considered essential; indispensable] to rebuild, restore, or maintain, and which are

useful

[

i.e.,

having a beneficial use; being of practical use] in rebuilding, restoring, or maintaining any fishery resource and the marine environment. 16 U.S.C. 1802(5). “Fishery” refers to “one or more stocks of fish which

can be treated as a unit

for purposes of conservation and management . . .”

Id.

§ 1802(13) (emphasis added). “Stock of fish,” which is referenced in the definition of “fishery,” means a species, subspecies, geographical grouping, or other category of fish

capable of management as a unit. Id.

§ 1802(42).

As noted above, NMFS does not believe it is appropriate to require inclusion of overfishing/overfished stocks in an FMP, if a Council lacks the authority or ability to adopt measures that will prevent or end overfishing or rebuild the stocks. NMFS proposed, and is retaining in this final action, use of the phrase “predominately caught in Federal waters” to address this concern. A similar phrase—fishing “engaged in predominately within the exclusive economic zone and beyond that zone”—is one of two factors that allow NMFS to regulate a fishery within the boundaries of a State.

Id.

§ 1856(b)(1)(A). While section 1856(b) is about preemption, it provides further support for the “predominately caught” approach under § 600.305(c)(1). Section 306 recognizes the efficacy of federal management when a fishery is engaged in “predominately” in federal waters. Likewise, § 600.305(c) includes “predominately” based on efficacy considerations.

NMFS notes that, even if a stock is not required to be included in an FMP (

i.e.,

stock is not overfishing/overfished and predominately caught in Federal

waters), a Council may still determine that a stock requires conservation and management based on consideration of one or more of the factors in paragraphs § 600.305(c)(1)(i) through (x).

See

response to comment 8 for further explanation of use of the factors when adding a stock to an FMP.

Comment 7:

NMFS received numerous comments regarding the specific factors included in paragraphs § 600.305(c)(1)(i) through (x) of the proposed action. One commenter argued that factor (i)—whether the species plays an important role in the ecosystem—should be modified to focus on whether the species' role in the ecosystem is potentially affected by fishing. Additionally, many commenters believed that factors iv-vi, which took into consideration economic or social implications of management decisions were inappropriate because they improperly brought those considerations into a matter that should be solely focused on the conservation needs of a stock based on the best available science. Factor iv—the stock is a target of a fishery—was particularly polarizing with some commenters expressing that it should be the primary factor considered by Councils while others were urging that it be removed from the list as irrelevant. NMFS also received mixed reactions to factor (x)—the extent to which the fishery could be or is already adequately managed. Some called for factor (x) to be removed and, in particular, the phrase “industry self-regulation” to be removed because, for example, no other management regime has proven as effective as Federal management under the MSA and there is no description of what “adequate management” under industry self-regulation would entail. Other commenters stressed the importance of factor (x).

Response:

NMFS disagrees that the first nine factors require revision. Potential effects on a species from a fishery is addressed in factor (ii) and, beyond the factors, a Council may take into account any additional considerations that may be relevant to the particular stock. Whether a fishery targets a stock (factor (iv)) is a relevant consideration: If a fishery is targeting a stock in federal waters, it is likely that the stock will be vulnerable to the impacts of fishing mortality and that there may be conflicts over the allocation of that stock. With regard to factors (iv) through (vi), the definition of “conservation and management” indicates that whether a stock requires measures to rebuild, restore, or maintain any fishery resource and the marine environment is as important to consider as whether measures are needed to ensure a multiplicity of options available with respect to future uses of these resources. 16 U.S.C.1802(5). Many of the factors that commenters objected to are intended to prompt consideration of the necessity and appropriateness of Federal management. 16 U.S.C. 1853(a)(1)(A). NMFS believes that the factors, as written, allow significant discretion for the Councils to evaluate the specific facts presented by a wide variety of stocks and fisheries to determine the necessity and utility of federal management.

With respect to factor (x), NMFS continues to believe that MSA section 302(h)(1) does not require preparation of FMPs for all fisheries in the EEZ. Among other things, the MSA recognizes the authority of a State to regulate fisheries within its boundaries and authorizes a State under certain circumstances to regulate its vessels outside state boundaries. Furthermore, the MSA mandates that the conservation and management measures for stocks under an FMP, where practicable, minimize costs and avoid unnecessary duplication. 16 U.S.C. 1851(a)(7) (National Standard 7) and 1856(a)(3) (state jurisdiction);

see

also 80 FR 2786, 2788-2789, January 20, 2015 (discussing these and other provisions in preamble to proposed action). Thus, if a Council determines (and the Secretary concurs) that a particular industry self-regulation structure constitutes an adequate management structure consistent with the national standards, other provisions of the Magnuson-Stevens Act, and other applicable law, an industry self-regulation structure that minimizes costs and avoids unnecessary duplication of management measures is a relevant consideration under § 600.305(c). Therefore, NMFS retains factor (x) in this final action. However, in response to public comment, NMFS is revising factor (x) to delete the words “could be or” from “[t]he extent to which the fishery is already adequately managed . . .” NMFS agrees with commenters that the mere possibility of other management regimes should not be considered as a relevant factor when determining whether federal management is required.

Comment 8:

Commenters requested further guidance in applying the factors under § 600.305(c)(1). Some commenters requested that the final guidelines make clear which factors weighed in favor of inclusion, but should not be used to justify exclusion. Other commenters suggested that NMFS provide greater guidance on how to weigh the factors relative to each other, for example “tiering” the factors based on their relative specificity and significance.

Response:

Section 600.305(c)(2) of the proposed action explained that, when considering adding a new stock to an FMP or keeping a stock within an FMP, Councils should prepare an analysis of the factors to assist in determining which stocks require conservation and management. NMFS has modified this text in the final action to clarify the process for adding and removing stocks from an FMP (final § 600.305(c)(3) and (4), respectively). In § 600.305(c)(3), NMFS explains that, when considering adding a stock to an FMP, no single factor is dispositive or required. An analysis of all ten factors is not required to add a stock to an FMP. One or more of the factors, and any additional considerations that may be relevant to the particular stock, may provide the basis for determining that a stock requires conservation and management.

For clarity, NMFS revised the phrase “keeping an existing stock within an FMP” (proposed § 600.305(c)(2)) to “removing a stock from, or continuing to include a stock in, an FMP” (final § 600.305(c)(4)). The final action explains that, when considering such action, Councils should analyze all ten factors. Factors (i) through (ix) are all factors that counsel for inclusion of stocks, and factor (x) counsels against inclusion.

See

Section VI of this preamble for more details on changes to § 600.305(c). A Council's analysis should clearly demonstrate why, on balance, the factors considered (which may include factors beyond the list included in the final action if relevant to the particular situation) support the ultimate conclusion to remove a stock from an FMP. Given the wide range of potential scenarios that Councils may face when evaluating the conservation and management needs of various fisheries, NMFS does not believe that it would be advisable to offer more prescriptive guidance on how to balance the factors against each other. In some cases a particular factor may have more significance than in another case, depending on the circumstances of the fishery.

Comment 9:

Some commenters raised concerns regarding application of the factors listed in § 600.305(c)(1) of the proposed action within the context of data limited situations. One commenter recommended that NMFS include guidance regarding how to address the factors in a data limited situation. Another commenter suggested that NMFS allow Councils to categorize all data poor stocks as EC species and therefore exempt from ACLs.

Response:

The MSA does not distinguish between requirements for stocks that have robust data available and those for which data is lacking—accordingly, NMFS and the Councils cannot exempt stocks from ACLs and other mandatory requirements solely due to the availability of data for those stocks. As discussed in response to comment 5, all stocks that require conservation and management must be included in an FMP. This is true regardless of the data available for those stocks. NMFS notes that National Standard 2 requires that all conservation and management measures must be based on the best scientific information available. 16 U.S.C. 1851(a)(2). Recognizing the challenges posed by data limited situations, NMFS has adopted several measures (

see

§§ 600.310(e)(2)(ii); 600.310(h)(2) of the final action) that are intended to provide additional flexibility in applying the NS1 guidelines in data limited situations.

Comment 10:

Some commenters sought additional guidance on how to deal with management of stocks that either straddle multiple areas of Council jurisdiction or shift from one jurisdiction to another, for example due to the impacts of climate change.

Response:

The proposed guideline revisions moved language discussing management of stocks that straddle multiple Council jurisdictions from the National Standard 1 guidelines to the General section, but did not propose any substantive changes to that provision.

See

§ 600.305(c)(6). This provision is based on MSA section 304(f), which provides that for fisheries that occur in the geographical area of authority of more than one Council, the Secretary may either designate a lead Council to prepare an FMP or require joint preparation of such an FMP. 16 U.S.C. 1854(f). The guideline provision is designed to complement this statutory requirement by explaining that the primary FMP should contain reference points for stocks. In addition to this guidance, the newly revised guidance for reassessing an FMP's management objectives can also potentially provide an avenue for a Council to address a shift in occurrence of a stock, or the previous designation of a lead FMP.

See

§ 600.305(b)(2). NMFS does not believe that any further revisions are necessary at this time.

Comment 11:

Several commenters sought clarification on the impact of the proposed provisions on stocks in need of conservation and management and the concept of EC species. NMFS received several comments on the revised discussions of EC species, in particular expressing concern about the proposed deletion of the 2009 NS1 guideline definition of EC species and non-target species. Commenters sought additional guidance on the proper criteria for designating an EC species and the management and monitoring requirements for EC species.

Response:

NMFS introduced the concept of EC species in the 2009 revisions to the NS1 guidelines. In those guidelines, NMFS explained that the “in the fishery” and “EC species” classifications address the fact that while FMPs typically include target species (and some non-target species that require conservation and management), other FMPs include hundreds of species which may or may not require conservation and management in an effort to advance ecosystem management in the fishery.

See

74 FR 3179, January 16, 2009. By adopting the “EC species” classification, NMFS sought to encourage Councils to continue to pursue ecosystem approaches to management. Even when a species does not require “conservation and management,” a Council may include it as an EC species in an FMP. Unlike stocks in the fishery, EC species designation does not trigger all of the mandatory provisions of the Magnuson-Stevens Act, such as FMP requirements under section 303(a).

In this final action, NMFS is providing further guidance on the question of what stocks require conservation and management. Nothing in these proposed provisions changes previous guidance on the optional usage of EC species. To make clear this intent, NMFS has made minor modifications in this final action to more closely follow the language discussing EC species in the 2009 action. Additionally, NMFS has re-inserted a definition of EC species.

See

§ 600.305(d)(13) of final action. This definition, however, does not rely on the previously established criteria for designation. The criteria included in the 2009 guidelines were intended to prevent stocks that were in need of conservation and management from being re-designated as EC species.

See, e.g.,

response to comment 17, 74 FR 3186, January 16, 2009. There is no need to retain the 2009 criteria, because the final action provides factors for determining whether a stock is in need of conservation and management, and includes clarifying language that makes clear that stocks in need of conservation and management cannot be designated as EC species. In response to numerous comments, NMFS has reinserted a definition for “non-target stocks,” with minor modifications from the definition in the 2009 guidelines, to ensure consistency with the remainder of the NS1 guidelines.

See

§ 600.305(d)(12) of final action.

Because the designation of EC species is discretionary and may be done to accomplish several different goals, NMFS is not providing further specific guidance on EC species. Determining whether the EC species designation is appropriate requires a case-specific look at stocks or stock complexes in light of § 600.305(c) as well as the broader mandates and requirements of the MSA. NMFS has worked closely with Councils who have decided to pursue EC species designation and will continue to provide support and guidance going forward.

Data Limited Stocks

Comment 12:

While many commenters supported the clarification that, when it is not possible to specify MSY or MSY proxies for a data limited stock, a Council may use alternative types of SDCs, other commenters requested additional technical guidance on using alternative types of SDCs.

See

§ 600.310(e)(2)(ii). Some commenters also provided suggestions to improve the provision, including: acknowledging the limitations of alternative types of SDCs (particularly with regard to addressing stocks with “model uncertainty”); addressing circumstances when reference points such as MSY and OY cannot be determined; requiring an analysis of the regional applicability of different data limited methodologies; acknowledging that the alternative SDCs listed in the guidelines are not the only alternatives available; and including a definition for “data limited stocks” within the guidelines. Some comments stated that § 600.310(h) of the proposed action improperly exempted Councils from setting annual ACLs for data limited stocks and requested the guidelines clarify that all reference points required by the MSA are required to be established for data limited stocks that require conservation and management.

Response:

The list of examples of alternative SDCs within § 600.310(e)(2)(ii) is not exclusive, and Councils may explore other alternate types of SDCs. Any alternative approach adopted by a Council, in consultation with their SSC, must be based on the best scientific information available and identify overfishing and overfished thresholds.

See

§ 600.310(b)(2)(v) (describing SSC role in providing scientific advice to the Council). Section 600.310(e)(2)(ii) provides that, when specifying SDCs, a Council must provide an analysis of how the SDCs were chosen, how they relate to the

reproductive potential of the stock within the fishery, and how the alternate type of SDCs will promote the sustainability of the stock on a long-term basis. Thus, NMFS believes that the guidelines provide sufficient guidance on the use of alternate types of SDCs for data limited stocks while retaining adequate flexibility to allow Councils to determine the most appropriate alternate type of SDCs on a case-by-case basis.

With regard to the comments proposing improvements to alternative SDC text, NMFS notes that specification of MSY and OY are statutory requirements (16 U.S.C. 1853 (a)(3)), and the intent of § 600.310(e)(2)(ii) is to help address circumstances where data are not available to specify SDCs based on MSY or MSY based proxies. Because stock assessment models are used to set reference points within the ACL framework, model uncertainty is best addressed when accounting for scientific uncertainty within the ABC reference point. While an analysis of the regional applicability of different data limited methodologies may be useful to a Council, it may not always be necessary or informative and NMFS does not believe such an analysis needs to be prescribed as part of the NS1 guidelines. With regard to defining “data limited stocks,” the characteristics of such stocks are so wide-ranging that a definition would not be meaningful and could lead to additional confusion when applying the NS1 guidelines. Finally, as discussed in the preamble to the proposed action, § 600.310(h)(2) does not provide an exemption from any statutory requirements, including the requirement to establish ACLs.

See

80 FR 2790, January 20, 2015. NMFS discussed data limited stocks under § 600.310(h)(2) in order to ensure consistency with the revisions made under § 600.310(e)(2)(ii).

Comment 13:

One commenter requested that the guidelines be edited to ensure that alternate types of SDCs are appropriately referenced throughout the guidelines. For example, proposed § 600.310(e)(2)(ii)(B) states that MSST or reasonable proxy must be expressed in terms of spawning biomass or other measures of reproductive potential. The commenter suggested that language should be added to the description of SDC to determine overfished status (§ 600.310(e)(2)(ii)(B)) to clarify how Councils should accommodate alternative types of SDCs.

Response:

NMFS does not agree that revisions are needed. A Council must provide an analysis of how its SDCs relate to the reproductive potential of the stock. If an alternate type of SDC is adopted, the alternate SDC is considered a reasonable proxy to determine overfished status within the context of § 600.310(e)(2)(ii)(B) and will be expressed in terms of the stock's reproductive potential.

Stock Complexes & Indicator Stocks

Comment 14:

Some commenters opposed the proposed changes to the guidelines that encourage the use of indicator stocks within stock complexes, and recommended removing the changes. Commenters expressed concern that, if species with disparate vulnerabilities are grouped together within a stock complex, the risk of overfishing on weaker stocks would increase while others advised NMFS against using overly precautionary indicator stocks that may prevent OY from being achieved. Other commenters requested additional technical guidance and recommended that Councils consider the current status of each stock as well as the costs and benefits of stock complex-based management when establishing stock complexes. NMFS also received numerous suggestions to strengthen the language on stock complexes and indicator stocks, including explicitly requiring the use of indicator stocks within stock complexes; using “must” instead of “should” in § 600.310(d)(2)(C) in order to require that Councils, in consultation with their SSC, choose the most vulnerable stock within a complex as the indicator stock; and requiring that all Councils take additional precaution when establishing stock complexes where high levels of scientific uncertainty exist.

Response:

NMFS believes the guidelines are clear that, if an indicator stock is used in a stock complex, it should be representative of the typical vulnerability of the stocks within the complex. In cases where stocks within a stock complex have a wide range of vulnerabilities, the guidelines are also clear that, either the stocks should be reorganized into different stock complexes that have similar vulnerabilities or the indicator stock should represent the more vulnerable stocks within the complex.

See

§ 600.310(d)(2)(ii)(C) of final action. Thus, NMFS believes the use of indicator stocks in a stock complex will not increase the risk of overfishing other stocks within the complex and, in cases where the status of the stocks within a complex is generally unknown, the use of an indicator will likely reduce the probability that stocks within the complex experience overfishing. NMFS believes the use of SDCs and ACLs for indicator stocks and/or stock complexes will ensure the dual requirements of NS1 are met: preventing overfishing while achieving, on a continuing basis, OY.

See

§ 600.310(e)(2)(ii); 600.310(f)(4).

NMFS also believes that the guidelines give sufficient guidance on using stock complexes and indicator stocks, and give Councils the flexibility to weigh the costs and benefits of utilizing these management tools. While the MSA does not address management of stock complexes, NMFS believes the use of stock complexes and indicator stocks in accordance with the guidelines can serve a useful role in managing data poor stocks and/or stocks that cannot be targeted independently of one another. Finally, NMFS recommends the use of indicator stocks in order to reduce the likelihood of overfishing in cases of high scientific uncertainty among stocks within a complex (

see

80 FR 2790, January 20, 2015) and also recommends Councils use more conservative management measures in cases where it is not possible to use the most vulnerable stock within a complex as an indicator. Given that the MSA is silent on the issue of stock complex management, NMFS does not believe that the use of the term “must” rather than “should” is justified.

Comment 15:

NMFS received comments expressing concern that relying on indicator stocks can lead to a false sense of security and recommending that ACLs are set for each individual stock within a stock complex instead. Others expressed concern that monitoring available qualitative and quantitative information for each stock within a complex may not be sufficient to monitor each stock's overfishing status and recommended that Councils consider each stock's vulnerability in addition to considering whether each stock is being sustainably managed. NMFS also received recommendations that the guidelines require SSCs to review monitoring data on each stock within a complex and that the guidelines encourage B

msy

values for stocks within each stock complex to be calculated to reflect its productivity within the current ecological context.

Response:

NMFS disagrees that stock-by-stock management is preferable to stock complex management in all cases. Stocks with insufficient data to measure a stock's status relative to SDCs or stocks that cannot be targeted independently of one another may be best managed as a stock complex in order to base management on informed reference points. NMFS does agree that monitoring the status of each stock within a complex based on the best scientific information available is important. However, a stock within a

stock complex may not have sufficient information available to determine its status relative to SDCs, and thus, in these cases, the Councils should monitor the stock to determine whether it is being sustainably managed and to look for any indications that the stock might be subject to overfishing. The guidelines are clear that a Council must consider the vulnerability of each stock within a stock complex when establishing or reorganizing stock complexes.

See

§ 600.310(d)(2)(i). Furthermore, each SSC shall provide its Council ongoing scientific advice for fishery management decisions, including reports on stock status and health. 16 U.S.C. 1852(g)(1)(B). Thus, the SSC must give scientific advice on the ongoing management of stocks within a stock complex and NMFS does not believe that the NS1 guidelines need to specifically address this issue. Finally, NMFS agrees that current ecological conditions and ecosystem factors need to be taken into account when specifying MSY for both stocks and stock complexes and believes the current language within the definition of MSY (“prevailing ecological, environmental conditions”) adequately reflects this need.

See

§ 600.310(e)(1)(i)(A).

Comment 16:

Several commenters expressed concern regarding the term “where practicable” within § 600.310(d)(2)(i). Commenters stated that the modified definition of stock complexes is not necessary or justified and the term “where practicable” conflicts with the intention of the modified definition while weakening the standard for stock complexes. Some commenters also expressed concern that the modified definition could allow Councils to “hide” stocks that are undergoing overfishing within a complex or avoid managing “choke” stocks in a multi-species fishery. Therefore, several commenters recommended removing the “where practicable” language from the provision. Other commenters recommended that, if a Council uses stock complexes, they must complete a comprehensive analysis showing how overfishing will be prevented.

Response:

As addressed in response to comment 78, the term practicable (

i.e.,

reasonably capable of being accomplished; feasible) is used appropriately within § 600.310(d)(2)(i). The MSA does not mandate a particular method for establishing stock complexes, and thus, NMFS has provided guidance on this issue, based on the agency's expertise. The term “where practicable” within this provision does not conflict with or weaken the intended use of stock complexes. The guidelines are clear that, where practicable, stock complexes should consist of stocks with similar geographic distribution, life history characteristics, and vulnerabilities to fishing pressure and that the most vulnerable stock should be used as the indicator stock within a complex in order to fulfill the requirements of the MSA. As emphasized in comment 15, it is important that Councils monitor the status of all individual stocks within a complex to ensure they are sustainably managed and to look for indications of overfishing. While there may be insufficient data to ascertain whether some stocks within a complex are subject to overfishing on an individual basis, if a stock within a complex

is

found to be subject to overfishing, further overfishing on the stock must be prevented. Furthermore, such a finding that overfishing is occurring does not require prior specification of SDC, but can be based on the best scientific information available. If NMFS determines that a stock within a complex appears to be subject to overfishing, the agency notifies the appropriate Council. Finally, as described in § 600.310(d)(2)(i), a Council should consider the vulnerabilities of individual stocks and provide a “full and explicit description of the proportional composition of each stock in the stock complex” when establishing a stock complex within a FMP. Thus, the guidelines are clear that the establishment of stock complexes within FMPs should be adequately documented based on a thorough analysis of stock vulnerabilities.

Aggregate MSY

Comment 17:

Commenters requested additional clarification on the intended use of aggregate MSY estimates, in particular requesting further clarification on the relationship between the aggregate MSY approach and the ACL framework and rebuilding targets. Several commenters requested that NMFS provide additional technical guidance on the use of aggregate MSY to specify OY, and, in the absence of such guidance, recommended that NMFS remove the option to use aggregate MSY from the guidelines. Commenters were concerned that without such guidance, aggregate MSY could be used in a way that would increase the risk that individual stocks would be subject to overfishing. In addition, one commenter suggested that the guidelines be revised to clarify that the aggregate MSY estimates could be used as a substitute for stock (or stock complex)-specific MSY estimates. Further explanation was also sought with respect to the intended meaning of the word “common” in proposed § 600.310(e)(1)(iv). Finally, two comments pointed out that using aggregate MSY to track-long term environmental changes may be difficult as it can be difficult to distinguish between long-term and temporary environmental changes.

Response:

Aggregate MSY is an optional tool that Councils can use at their discretion to specify fishery-level OYs and further facilitate the Councils' use of EBFM. Aggregate MSY estimates are not an appropriate substitute for stock-specific MSY estimates that are necessary to inform the development of the required stock-specific reference points in the ACL framework. Fundamentally, aggregate MSY is an additional limit on the management system that encourages more conservative EBFM-based measures. Even when aggregate level MSY is estimated, stock-specific MSY must still be used to inform single stock management. Other annual reference points (within the ACL framework) must also be specified in order to prevent overfishing from occurring in single stocks. In light of the above, and because aggregate MSY is merely an optional tool that can be used in addition to stock-specific reference points, the final guidelines retain the aggregate MSY provision.

The term “common” in § 600.310(e)(1)(iv) was intended to provide further context as to how aggregate MSY can be estimated using multi-species, aggregated, and ecosystem modeling. Upon further consideration, the phrase “common biomass (energy) flow” is not considered a widely used phrase within relevant scientific fields, and thus the term “common” is not included within the final action to avoid confusion. However, the final action retains the phrase “biomass (energy) flow” to clarify that the models used for estimating aggregate MSY should account for the flow of energy through the aggregate group of stocks under consideration. A Council's SSC should assist a Council using an aggregate MSY to use the best scientific information available with regards to biomass (energy) flows.

Finally, aggregate MSY is not intended to be used to track long-term environmental or ecological conditions. Instead, aggregate MSY is intended to ensure that fishery management measures are reflecting how environmental variability within the ecosystem is impacting fisheries as a whole.

Definition for “Depleted” Stocks

Comment 18:

While NMFS received some comments supporting the proposed definition for “depleted” stocks, the majority of comments received opposed the proposed definition and/or requested additional technical guidance on its use. Commenters expressed a wide-array of concerns, including that: The proposed definition is overly restrictive, especially with regard to long-lived species; and the definition would not adequately distinguish between stocks that are depleted due to environmental factors and stocks that are overfished due to fishing pressure. NMFS also received many suggestions to improve the proposed definition.

Response:

In light of public comment, NMFS agrees that further consideration is needed regarding how to distinguish between stocks whose current poor status is due to fishing pressure and stocks that have been negatively affected by environmental factors. Thus, NMFS has deleted the definition for “depleted” stocks in the final action. The final action retains the existing requirements within the guidelines that all Councils define stocks whose biomass has declined below its MSST as overfished. Even though the guidelines do not include “depleted stocks,” a Council may use the term to further describe the status of an overfished stock that has been impacted to some extent by environmental factors in addition to (or in the absence of) fishing pressure.

MSST

Comment 19:

NMFS received a number of comments expressing concern about two revisions connected to the terms overfished and MSST (maximum stock size threshold). The proposed action revised the definition of overfished to state that a stock or stock complex is considered `overfished' when its biomass has declined below MSST.

See

§ 600.310(e)(2)(i)(E). MSST was in turn defined as the level of biomass below which the capacity of the stock or stock complex to produce MSY on a continuing basis has been jeopardized.

See

§ 600.310(e)(2)(i)(F). In addition, the proposed guidelines also included revised language regarding the specification of MSST, which stated that MSST should be specified between

1/2

B

msy

and B

msy.

To inform this decision, the proposed guidelines provided a list of potential considerations, including the life history of the stock, the natural fluctuations in biomass associated with fishing at MFMT over the long-term, the time needed to rebuild to B

msy

and associated social and/or economic impacts on the fishery, the requirements of internationally-managed stocks, and other considerations.

See

§ 600.310(e)(ii)(B).

Some commenters objected to the proposed changes to the definitions of overfished and MSST, arguing that NMFS improperly replaced the pre-existing, statutory-based definition with a new, less supportable definition. Commenters expressed concern with linking a determination that a stock is overfished with a Council-specified MSST because, according to commenters, MSSTs are not always properly specified or updated. Other commenters believed that connecting MSST to “overfished” was too restrictive and that a preferable definition would connect the ability of a stock to return to its B

msy

level in the absence of a rebuilding plan (rather than linking to the ability of the stock to produce MSY on a continuing basis).

Other commenters took issue with the proposed change to the provision regarding the specification of MSST. Some commenters felt that the language from the 2009 action set a clearer standard and that the proposed language made the MSST specification depend on criteria that are not easily quantifiable. Especially concerning for some were the “social and/or economic” considerations. Commenters argued that the proposed revisions increase the likelihood that stocks declared overfished will not be able to rebuild within ten years. Others felt that the factors in the proposed revisions provided needed additional flexibility to the Councils should they wish to revisit MSST specifications.

Response:

As NMFS explained in the preamble to the proposed action, the changes to the definitions of “overfished” and “MSST” are minor changes intended to improve clarity and reduce redundancy with no resulting changes in how the terms overfished and MSST are used.

See

80 FR 2791, January 20, 2015. While definitions for both overfished and MSST were provided within the 1998 guidelines, the 2009 guidelines established that 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. The 2009 action then defined MSST as the level of biomass below which the stock or stock complex is considered to be overfished. Read together, these provisions relied on MSST as the determining threshold of whether a stock was overfished. MSST was, and continues to be in this final action, the threshold by which an overfished determination is made. The revisions eliminate ambiguity by referring directly to MSST in the definition of overfished. This final action is consistent with the MSA as it incorporates the statutory definition of “overfished” (

i.e.,

level of biomass that “jeopardizes the capacity of a fishery to produce [MSY] on a continuing basis”) into the definition of MSST.

See

16 U.S.C. 1802(34) and § 600.310(e)(2)(i)(A) (clarifying that MSA “overfished” definition relates to biomass). NMFS does not believe the suggestion to link the definition of MSST to the ability of a stock to return to its B

msy

level in the absence of a rebuilding plan would be consistent with the statutory definition of “overfished.”

NMFS disagrees that the revisions to the MSST specification provision would prevent stocks from being classified as overfished. The 2009 guidelines provided two options for specifying MSST: one-half the MSY stock size, or the minimum stock size at which the stock could rebuild to the MSY level within 10 years if the stock was fished at MFMT. The guidelines stated that MSST should be set equal to the greater of the two options.

See

§ 600.310(e)(2)(ii)(B) (2009). NMFS revised the provision to set a clearer standard for MSST specifications, allow for a broader range of considerations, and allow Councils increased flexibility to re-visit and update MSST specifications, based on the changing conditions of a fishery. By providing that MSST should be between

1/2

B

msy

and B

msy,

this final action affords Councils the ability to adopt an MSST consistent with overfished thresholds used by some regional fishery management organizations for stocks that are internationally-and Federally-managed. The revisions also allow Councils to retain MSST definitions in existing FMPs that were based on the 1998 NS1 Technical Guidance, but were not reflected within the 2009 guidelines (Restrepo et al., 1998). NMFS believes that MSST definitions based on the 1998 Technical Guidance continue to be sound from a scientific perspective and consistent with the MSA and approaches under the NS1 guidelines. Finally, the increased flexibility within the proposed changes to MSST specifications increases the probability that MSST thresholds are utilized for data limited stocks.

NMFS also disagrees that the MSST specification provision will decrease the likelihood that overfished stocks will be able to rebuild within 10 years. Although the provision no longer includes a reference to 10 years in the

formulaic calculation of MSST, this does not alter the MSA's requirement that a rebuilding period shall “not exceed 10 years,” subject to certain exceptions. 16 U.S.C. 1854(e)(4)(A)(ii).

Furthermore, based on public comment, NMFS has removed the phrase “social and/or economic impacts on the fishery,” from the list of factors that could inform MSST. MSST is a biological reference point and is based on the level of biomass below which the capacity of the stock to produce MSY on a continuing basis is jeopardized. Thus, it is not appropriate to consider social and economic impacts when determining MSST.

Finally, NMFS disagrees that reliance upon quantitative data invariably yield more accurate or precautionary MSST values. Councils should consult with their SSCs to ensure that the information used to specify MSST, whether quantitative or qualitative, is the best scientific information available.

Comment 20:

Some commenters asserted that the definition of MSST is inconsistent in the guidelines. As an example, when explaining the relationship of SDCs to environmental and habitat change, the guidelines assume that there are cases where environmental changes cause a stock or stock complex to fall below its MSST without affecting its long-term reproductive potential.

See

§ 600.310(e)(2)(iii)(A). One commenter stated that this section is inconsistent with the revised definition of MSST, which refers to a level below which the capacity of the stock to reproduce MSY has been jeopardized.

Response:

NMFS disagrees that there is any inconsistency in § 600.310(e)(2)(iii)(A). That section is unchanged in this action, and as explained in the response to comment 19, the definition of MSST fundamentally has not changed. MSST means the level of biomass below which the capacity of the stock or stock complex to produce MSY on a

continuing basis

has been jeopardized. Thus, the focus is on producing MSY in the long-term. The purpose of § 600.310(e)(2)(iii)(A) is to address the reality that there may be short-term, environmental changes, but recognize that such changes do not normally jeopardize the ability of a stock to produce MSY on a continuing basis. For example, El Niño increases mortalities and reduces growth within certain stocks, but after the short El Niño period ends, stocks should regain their health and ability to produce MSY on a continuing basis.

Multi-Year Overfishing Stock Status Determinations

Comment 21:

NMFS received many comments on the multi-year approach to determining the overfishing status of a stock or stock complex. Many commenters expressed concern that the method may delay action and allow an overfishing trend to go unaddressed. Comments also requested the final action include technical guidance on how to apply this method. Other commenters asked whether the provision allows stock status determinations to be completed every 3 years, and whether using a multi-year approach for overfishing status determinations could impact reference points for future catch levels. Other commenters suggested: emphasizing the multi-year approach as an optional tool; endorsing the use of the catch to OFL method over the F to MFMT method; replacing the proposal with more support for the annual catch specification process and adequate AMs; allowing the SSC to determine an appropriate multi-year time period; and encouraging other overfishing determination methods that reduce lag time.

Response:

The existing NS1 guidelines provide for two methods for specifying SDCs to determine overfishing status: F rate exceeds MFMT or catch exceeds OFL.

See

§ 600.310(e)(2)(ii)(A)(

1)

-(

2

). As discussed in the proposed action preamble (

see

80 FR 2791, January 20, 2015), the multi-year approach in § 600.310(e)(2)(ii)(A)(

3

) is an optional method for specifying overfishing SDCs that is intended to allow consideration of “the extent to which F exceeded the MFMT or catch exceeded the OFL.” Small amounts of excess effort or catch in a single year may not jeopardize a stock's ability to produce MSY over the long term, and an overfishing stock status determination based on that single year's data point may not be the most appropriate characterization of stock status. To further clarify how to apply the multi-year approach, the final action clarifies the relationship between subparagraphs § 600.310(e)(2)(ii)(A)

(1)-(3

) and includes further detail on the circumstances in which the multi-year approach should be used. Section 600.310(e)(2)(ii)(A)

(3

) of the final action explains that, while an FMP should specify which of the methods established in § 600.310(e)(2)(ii)(A)

(1

) and (2) will be used to determine overfishing status, a Council may utilize a multi-year approach to determine overfishing status in certain circumstances. If a Council should develop a multi-year approach to determine overfishing status, the Council should identify in its FMP or FMP amendment, the circumstances when a multi-year approach is appropriate and will be used. Such circumstances may include situations where there is high uncertainty in the estimate of F in the most recent year, cases where stock abundance fluctuations are high and assessments are not timely enough to forecast such changes, or other circumstances where the most recent catch or F data does not reflect the overall status of the stock.

See

§ 600.310(e)(2)(ii)(A)(

3

) of the final action.

Regardless of which SDC specification method is used, the MSA requires that NMFS report annually to Congress on the status of stocks. 16 U.S.C. 1854(e)(1). Thus, a multi-year approach to overfishing stock status determinations would not allow Councils to ignore available information and wait for additional years' information before evaluating stock status, nor would it allow an overfishing trend to go unaddressed or impact the timeliness of a Council and/or agency response to overfishing.

NMFS acknowledges that wording in proposed § 600.310(e)(2)(ii)(A)(

3

) may have caused confusion regarding whether this provision may impact reference points for future catch levels. Thus, NMFS revised § 600.310(e)(2)(ii)(A)(

3

) to emphasize that a Council may only use a multi-year approach to “retrospectively determine overfishing status.” Stock status determinations are relevant to NMFS' annual reporting requirement under 16 U.S.C. 1854(e)(1), mentioned above. The multi-year approach may not be used in establishing ACLs and ABCs, because annual reference points must be designed to prevent overfishing and cannot exceed the OFL in any year. For example, if the catch of a stock in a single year was well below its ACL, a Council may not anticipate using a multi-year approach to overfishing status determinations in order to justify allowing next year's catch levels to be set above the OFL. To further clarify this point, NMFS has added language within § 600.310(e)(2)(ii)(A)(

3

) explaining that the multi-year approach to determine overfishing status may not be used to specify future annual catch limits at levels that do not prevent overfishing. In addition, NMFS has reinserted the term “annual basis” within the definition of MFMT.

See

§ 600.310(e)(2)(i)(C) of the final action. NMFS notes that, if the catch of a stock in a single year was well below its ACL, a Council could consider

using a carry-over ABC control rule.

See

comment 34 for further discussion.

In this final action, NMFS adds in § 600.310(e)(2)(ii)(A)(

3

) that: “A multi-year approach must compare fishing mortality rate to MFMT or catch to OFL.” In that same subparagraph, NMFS has also deleted reference to a comprehensive analysis to determine whether a multi-year approach will jeopardize the capacity of the fishery to produce MSY on a continuing basis. As the multi-year approach may only be applied to

retrospective

stock status determinations, the proposed comprehensive analysis needed to use a multi-year approach is not necessary.

NMFS disagrees that one method for specifying SDCs to determine overfishing status is invariably superior to another. Councils should select a method using the best scientific information available. NMFS agrees that robust annual catch specification processes and accountability measures can reduce the likelihood of overfishing. However, there are circumstances where NMFS believes a multi-year approach is a useful tool to protect a stock while providing stability to the fishery. In addition, NMFS believes the proposed action preamble (

see

80 FR 2792, January 20, 2015) provides sufficient rationale for choosing 3 years as a maximum time period for multi-year approaches to overfishing status determinations. Finally, the existing guidelines recommend Councils take action to allow SDCs to be “quickly updated” and reduce lag time in § 600.310(e)(2)(ii).

Comment 22:

Several commenters asked how phase-in provisions will interact with the multi-year overfishing stock status determinations.

Response:

As detailed in comment 21, a multi-year approach to determining a stock's overfishing status cannot be used to influence future annual catch reference points, such as ABCs, ACLs, etc. Thus, a multi-year approach to determining a stock's overfishing status would not influence a Council setting an ABC based on a phase-in ABC control rule. For instance, a Council may not anticipate the use of a multi-year approach to overfishing status determinations to rationalize a phase-in ABC control rule designed to allow overfishing in some years and underages in others.

OY & Catch Accounting

Comment 23:

While several commenters supported the addition of a paragraph clarifying the relationship between OY and the ACL framework,

see

§ 600.310(f)(4)(iv) of the proposed and final action, some believed the proposed language could be clarified and strengthened. One comment stated that the OY concept is redundant when management is based on the ACL framework. Others stated that additional guidance is needed in order to address OY factors within the ACL-setting process. One comment reflected confusion regarding whether ACLs can be set above the F

msy

in order to achieve a long-term average OY. Commenters also requested that the guidelines define the ACL in relation to OY and encourage the use of ABC to generate OY values.

Response:

NMFS disagrees that managing under an ACL framework renders the OY concept redundant. National Standard 1 requires that conservation and management measures prevent overfishing “while achieving, on a continuing basis, the optimum yield from each fishery.” 16 U.S.C. 1851(a)(1). When the MSA was amended to introduce ACLs, this OY requirement remained unchanged. NMFS believes that guidance in § 600.310(f)(4)(iv) on addressing OY factors within the ACL framework is sufficient. As described in that section, ACLs (or ACTs if used) can be reduced from the ABC based upon the OY-based ecological, economic, and/or social (EES) considerations (as described in § 600.310(e)(3)(iii)(B)) in addition to reductions accounting for management uncertainty. Furthermore, EES trade-offs could also be evaluated when determining the risk policy for an ABC control rule. Thus, the ACL framework can support achieving OY.

ACLs and other annual reference points are annual limits and cannot be defined in terms of OY, which is a long-term average. While the ACL framework supports achieving OY, OY (as well as annualized OY values) and the ACL framework are two separate concepts which cannot be defined in terms of one another. Thus, an ACL may not be set to exceed the stock's ABC/OFL reference points in order to achieve OY and correspondingly, annual catch reference points such as ABC cannot be used to specify OY.

Comment 24:

One commenter stated that the second and sixth sentences within proposed § 600.310(f)(4)(iv) conflict and suggested a revision to the second sentence to clarify the relationship between the need for the ABC to prevent overfishing while also taking into account the ABC control rule's risk policy.

Response:

NMFS disagrees that the second and sixth sentences within proposed § 600.310(f)(4)(iv) directly conflict, however, NMFS has made the suggested clarifying revision in this final action.

Comment 25:

Some commenters opposed the concept of annualized OY values and stated that having both annual and long-term average OY values is confusing. Some commenters requested clarification on whether annualized OY values can exceed MSY in order to achieve long-term OYs and how annualized OYs can address tradeoffs associated with mixed stock fisheries. Other commenters recommended the use of a control rule to ensure that relevant OY factors and management uncertainty are being considered when using the ACL or ACT as an annualized OY.

Response:

Annualized OY values are an optional tool for managers to use if it benefits the conservation and management needs of a stock, stock complex, or fishery, including as an example, a mixed stock fishery. A stock, stock complex, and/or fishery thus can have both an OY and an annualized OY value. MSY is a long term average with a corresponding annual value: The OFL. While an annualized OY could be higher than the MSY if stock biomass is high, it cannot exceed the OFL. NMFS also notes that, while ACLs (or ACTs) can be conceptually compared to annualized OY values, they have different definitions and cannot be automatically equated to each other (

see

response to comment 23). Finally, the 1998 NS1 guidelines permitted the use of an OY control rule (

see

63 FR 24232, May 1, 1998), and the current NS1 guidelines in the final action do not exclude the possibility of using an OY control rule. However, if an OY control rule is used, the annual catch of a stock must still be constrained through the application of the ACL framework.

Comment 26:

Two commenters suggested that, in addition to specifying OY at the stock, stock complex, or fishery level, managers should also be able to specify OY at the “FMP level.”

Response:

NMFS does not believe that the proposed revision is appropriate or needed. OY is supposed to be specified for the “fishery.” 16 U.S.C. 1851(a)(1) and 1853(a)(3). In addition, the MSA defines the term “fishery” broadly, thus providing flexibility to the Councils in how they describe fisheries in their FMPs.

Comment 27:

Commenters requested additional guidance on EES factors, especially the social and ecological effects of management actions. One commenter stated that it is inconceivable to imagine how social and economic factors could lead to a reduction from MSY. Other commenters recommended that the guidance clarify

that if OY is set very close to MSY, the Secretary may presume that the Council failed to adequately consider OY factors. Commenters also recommended that the guidelines be updated to include additional examples of ecosystem, climate change, protected species, and forage fish considerations within § 600.310(e)(3)(iii)(B). One commenter suggested nesting the list of potential EES factors under § 600.310(e)(3)(iii)(A) instead of (B). Other commenters suggested legislative action to allow OY to be the result of either reductions or

additions

from MSY based on EES factors and opposed the use of the term “trade-offs” when referring to EES factors.

Response:

NMFS received extensive public comment on the use of EES factors during the development of the 2009 guidelines and thus, because NMFS did not propose any substantive changes to the guidance on EES factors in the proposed action, NMFS continues to believe that the NS1 guidelines set forth examples that provide sufficient guidance on using EES factors. The guidelines include examples of factors that clearly relate to ecosystems, climate change, and forage fish, as well as social and economic factors that may lead to a reduction in MSY. NMFS disagrees that it is “inconceivable” for OY to be reduced from MSY based on social and economic factors. For example, OY could be lowered from MSY to match a limited market demand or to provide more stability in annual catches within a fishery over the long-term. While a Council must address each factor (ecological, economic, and social), the exact method that a Council uses to consider EES factors and the amount the OY is reduced from the MSY is at the Council's discretion. With regard to OY and MSY, NMFS disagrees that setting OY close to MSY means that OY factors were not adequately considered. If estimates of MFMT and current biomass are known with a high level of certainty, if management controls can accurately limit catch, and if no reductions are necessary for EES factors, it is possible to set an OY very close to MSY.

See

§ 600.310(e)(3)(iv). NMFS is keeping text at § 600.310(e)(3)(iii)(B)(

1

)-(

3

) under subparagraph (B), because subparagraph (B) clarifies the process for assessing and specifying OY based on EES factors. In order for the EES factors to be used to increase OY from MSY, a legislative change would be needed, as OY is defined based on MSY “as reduced by any relevant economic, social, or ecological factor.” 16 U.S.C. 1802 (33)(B). Finally, as stated in § 600.305(b)(1), trade-offs among EES factors are an expected component of fishery management objectives.

Comment 28:

One commenter stated that the OY concept does not appear to consider subsistence uses for U.S. fisheries.

Response:

NMFS disagrees. Subsistence fishing is explicitly mentioned in the list of potential social factors to be considered when specifying OY.

See

§ 600.310(e)(3)(iii)(B)(

1

).

Comment 29:

Commenters expressed concern that the guidelines provide too much room for interpretation of what might constitute an acceptable qualitative description of OY and requested additional technical guidance, as well as increased data collection efforts to increase the availability of quantitative data. Other commenters recommended restoring language that recommends OY should be considered quantitatively when possible and adding language recommending the use of proxies when quantitative, stock-specific information on EES factors is not available.

Response:

As discussed in the proposed action, NMFS believes one impediment to Councils addressing EES factors when specifying OY is the perception that the Councils must quantify their analysis of these factors.

See

80 FR 2792, January 20, 2015. Thus, NMFS clarified in the proposed revisions to the guidelines that a Council may provide a qualitative description of OY. NMFS clearly indicated that qualitatively describing OY is only acceptable when it is not possible to specify OY quantitatively.

See

§ 600.310(e)(3)(iv)(A). NMFS believes that the guidelines provide sufficient guidance on what constitutes an acceptable qualitative description of OY. Section 600.310(e)(3)(iii) requires that an FMP assess and specify OY, and that the assessment include, among other things, an explanation of how the OY specification will produce the greatest benefits to the nation and prevent overfishing, consistent with the MSA and taking into consideration the EES factors relevant to the particular stock, stock complex, or fishery. Councils may specify OY based on MSY proxy values as provided under § 600.310(e)(3)(iv)(B)), and NMFS believes that when insufficient information is available to consider stock-specific EES factors, proxy values may be used if they are considered the best scientific information available. Finally, NMFS agrees that more quantitative data would improve OY specifications.

See e.g.,

74 FR 3199, January 16, 2009 (addressing similar comments regarding data collection in response to comment 80 of 2009 NS1 guidelines).

Comment 30:

NMFS received several comments on the revisions to § 600.310(e)(3)(iii) that clarify how Councils account for their OY specifications within their FMPs. Comments included recommendations to revise the guidelines to reflect that specification of OY is an MSA requirement, to add language to require the identification of all relevant EES factors considered in setting OY, and to articulate the influence of the factors on setting OY within FMPs. Another commenter expressed concern that the proposed changes would require Councils to “document” as opposed to “summarize” (as prescribed within the MSA) OY specifications within FMPs, creating a regulatory burden that may not be appropriate if the technical documentation spans many pages. The commenter suggested the guidelines be revised to allow documentation either in the FMP itself or within other documents such as environmental assessments or regulatory impact reviews. Another commenter recommended that the language be revised to acknowledge changing circumstances of not just targeted fish stocks, but other components of the ecosystem (

e.g.,

protected species) as well.

Response:

In accordance with MSA section 303(a)(3), all FMPs must contain an assessment and specification of OY and summaries of the information utilized in making the specification. However, the MSA does not prescribe what types of information or factors should be taken into consideration. NMFS agrees that the proposed language may be interpreted as an additional requirement to provide a thorough technical documentation of OY specifications within an FMP. Thus, in the final action, NMFS has deleted references to documentation while retaining the requirement that OY specifications and assessments are adequately summarized within FMPs. NMFS believes that the section is worded broadly enough to encompass consideration of changes to other components of the ecosystem, such as protected species, in addition to targeted stocks.

Comment 31:

NMFS received several comments regarding the definition of OY, including: Requests for clarification on the meaning of term “near B

msy

” within the definition of OY and whether or not the term “near” implies maintaining the stock above MSST; and a request that the production of bait from our fishery resources be included within the definition of OY. Another

commenter recommended removing the definition of OY entirely.

Response:

Achieving OY on a continuing basis is required under National Standard 1, thus, a definition of OY within the NS1 guidelines is appropriate and helpful. One of the characteristics used to describe OY in the guidelines is “maintains the long-term average biomass near or above B

msy

.”

See

§ 600.310(e)(3)(i)(B). The term “near” is used to emphasize, that while the biomass of a stock, stock complex, or fishery may be above or below the desired long-term average in any given year, a Council should rely on its SSC's advice to determine the level at which a stock's biomass is sufficiently “near” B

msy

to ensure the desired long-term average biomass can be achieved. With regards to whether the term “near” B

msy

implies maintaining a stock above MSST, NMFS notes that OY and MSST are not directly comparable. OY is a long term desired amount of yield (catch) from the fishery that corresponds to a desired level of long-term average biomass of a stock. MSST is a stock abundance reference point. If a stock's biomass is below its MSST, a stock is determined to be overfished and a rebuilding plan must be initiated to rebuild the stock from below its MSST to its B

msy.

In contrast, as stated above, the biomass of a stock may be above or below the desired long-term average in any given year, as long as the Council relies on its SSC's advice on whether the stock's biomass is sufficiently “near” B

msy

. Additionally, NMFS believes that the definition of OY given within the guidelines is sufficiently broad to cover the production of bait and other considerations.

Comment 32:

Some commenters supported the deletion and replacement of text on accounting for catch against OY (previously at § 600.310(e)(3)(v)(C)) with the addition of text on accounting for all sources of mortality (where practicable) in the SDC section (§ 600.310(e)(2)(ii)(C)). Other commenters stated that moving the text created inconsistent guidance and, because OY is defined in the MSA as an “amount of fish,” the only reasonable interpretation of the statute is to specify OY based on catch. Others requested additional guidance on catch accounting in general. Another commenter believed the change indicates that bycatch does not need to be measured or counted against OY, which the commenter characterized as the “the total amount of catch permitted in a fishery.” Other commenters believed that all sources of mortality must be accounted for when setting SDCs and thus, the proposed “where practicable” language should be removed and recommended changing “should” to “must” within § 600.310(e)(2)(ii)(C). One commenter did not believe that mortality resulting from scientific research should be included. Others recommended that the Councils must consider catch accounting when determining the status of the stock, setting catch levels, and determining OY.

Response:

Section 600.310(e)(3)(v)(C) of the 2009 guidelines stated that all catch must be counted against OY, including that resulting from bycatch, scientific research, and all fishing activities. NMFS proposed deleting this text and inserting text on accounting for all sources of mortality (where practicable) in § 600.310(e)(2)(ii)(C) (SDC specification), because in practice, mortality (including fishing-related catch) is typically accounted for when evaluating stock status with respect to reference points. NMFS believes that accounting for all fishing activities while evaluating stock status with respect to reference points (

i.e.

ACLs) is more informative to managers. NMFS agrees that OY must be specified as an amount of fish and that, because stock status is based upon a consideration of all sources of fishing mortality, OY specifications (which include considerations of stock status) will be influenced by catch accounted for at the SDC level. NMFS disagrees with the comment that stated that § 600.310(e)(2)(ii)(C) indicates that bycatch does not need to be measured or counted against OY and that characterized OY as the total amount of catch permitted in a fishery. First, NMFS notes that the “total amount of catch permitted in a fishery” is an inaccurate characterization of OY, which is described within the guidelines as the long-term average amount of desired yield from a stock, stock complex, or fishery.

See

§ 600.310(e)(3)(ii). Second, § 600.310(e)(2)(ii)(C) states that Councils should consider all sources of fishing mortality when evaluating stock status with respect to reference points, which will impact annual catch reference points and may influence OY specifications. NMFS believes that language in § 600.310(e)(2)(ii)(C) sufficiently explains that, where practicable, all sources of mortality should be accounted for; this would include fish that are retained for any purposes, mortality of fish that have been discarded, mortality of fish resulting from scientific research, and mortality from any other fishing activity. Further, NMFS believes that use of the term “where practicable” is appropriate, because as explained in the proposed rule preamble (

see

80 FR 2793, January 20, 2015), the term recognizes that data on scientific research catch may not always be available.

See

response to comment 78 for further discussion of “where practicable.” Thus, NMFS believes that additional guidance on accounting for all sources of mortality (where practicable) in the SDC section (§ 600.310(e)(2)(ii)(C)) is not necessary within the guidelines.

Carry-Over & Phase-In ABC Control Rules

Comment 33:

Many commenters supported including phase-in and/or carry-over provisions within ABC control rules (

see

§ 600.310(f)(2)(ii) of proposed action), but requested that the guidelines specify explicit criteria to be considered within the comprehensive analysis required to use these provisions. Commenters expressed concerns that, without explicit technical guidance and criteria guiding Councils on how to use these provisions, phase-in and/or carry-over provisions would increase the risk of overfishing for some stocks. Commenters also requested that more research on the impacts of these approaches be conducted and that the guidelines clarify that the Councils should complete a comprehensive analysis each time one of the provisions is used. Other commenters requested clarification on the SSC's role in the decision-making process for phase-in/carry-over provisions. Finally, several commenters suggested that phase-in and carry-over provisions be addressed in the ACL setting process rather than in the ABC control rule.

Response:

This action clarifies that all ABC control rules must be based on a comprehensive analysis that shows how the control rule prevents overfishing.

See

§ 600.310(f)(2)(i) of this final action. This action also emphasizes that the comprehensive analysis of the ABC control rule includes examining—if there is a carry-over and/or phase-in provision in the ABC control rule—when the carry-over and phase-in provisions can and cannot be used and how those provisions prevent overfishing.

See

§ 600.310(f)(2)(ii) of this final action. For instance, a Council may decide that, due to a stock's life history, characteristics, and/or other vulnerabilities, phase-in/carry-over provisions will not be used if the stock is under a rebuilding plan. NMFS does not believe that research is needed on phase-in and carry-over approaches before including them in the NS1 guidelines, but future research on both

approaches (

e.g.,

stock-specific best practices) would inform the best scientific information available for such control rules. As explained above, the guidelines require a comprehensive analysis, based on the best scientific information available and SSC advice, that phase-in or carry-over provisions will prevent overfishing. Given the above-described guidance, NMFS does not believe that further guidance and criteria for the comprehensive analysis of ABC control rules are necessary.

With regard to the SSC, the 2009 NS1 Guidelines explained that “[t]he Council should use the advice of its science advisors in developing [the ABC] control rule,” (

see

74 FR 3178, 3192, January 16, 2009), and this final action continues to support that statement. The definition of “control rule” explicitly provides that a control rule is “. . . established by the Council in consultation with its SSC.”

See

§ 600.310(f)(1)(iv). In addition, NMFS is re-inserting into § 600.310(f)(3) of this final action language from the 2009 guidelines that states that “[t]he SSC must recommend the ABC to the Council.” NMFS does not believe further clarification regarding the role of the SSC is needed.

Finally, NMFS disagrees that phase-in and carry-over provisions should be addressed through the ACL setting process, rather than ABC control rules. ACLs cannot exceed ABCs, and are the level of annual catch based on management uncertainty that serve as the basis for invoking AMs. In contrast, the ABC control rule is an established policy for establishing an ABC that accounts for scientific uncertainty in the OFL and for the Council's risk policy. NMFS believes that scientific uncertainty and the Council's risk policy are the two factors that are most relevant to the decision of whether to use phase-in and/or carry-over provisions. It should be noted that, carry-over can impact ACL specifications, as explained in response to comment 34 and in the final action. However, NMFS maintains that carry-over provisions are most appropriately addressed through ABC control rules that are based on scientific uncertainty and the Council's risk policy because carry-over ABC control rules instruct Councils on how to account for increased stock abundance resulting from the fishery harvesting less than the full ACL as well as articulate when the carry-over provision can and cannot be used and how it prevents overfishing.

Comment 34:

Several comments were received related to the use of carry-over provisions. Some commenters expressed concern that carry-over provisions are not appropriate when a stock is overfished and/or in a rebuilding plan or when stock abundance is over-estimated. One commenter suggested that fisheries that are primarily prosecuted through recreational effort may not be appropriate candidates for carry-over provisions. One commenter stated a preference for lower, guaranteed carry-over amounts. Another commenter asked whether catch that is currently subject to a phase-in provision is eligible for use within a carry-over provision. Finally, one comment stated that the last sentence within proposed § 600.310(f)(2)(ii)(B) created confusion regarding how a carry-over provision could be used in cases where the ACL has been reduced from the ABC.

Response:

NMFS agrees that, in addition to preventing overfishing, the Councils should consider the vulnerability of stocks that are overfished and/or in rebuilding plans when considering using a carry-over provision. NMFS has added in this final action that Councils should evaluate the appropriateness of carry-over provisions for stocks that are overfished and/or rebuilding.

See

§ 600.310(f)(2)(ii)(B) of the final action. NMFS also agrees that the cause (

e.g.,

management inaccuracy or scientific uncertainty) for an ACL underage should be considered when using carry-over provisions. For instance, if a fishery is closed early in anticipation of an ACL exceedance but, once the data is finalized, the results show the fishery's ACL was never exceeded, carry-over provisions may be appropriate. In contrast, if managers believe that ACL underages are linked to low abundance and there is uncertainty in data collection, then carry-over provisions may not be appropriate. As such, NMFS has added additional clarifying language to § 600.310(f)(2)(ii)(B) of the final action.

Carry-over provisions are intended to allow the fishery to catch unused portions of the previous year's ACL while preventing overfishing. They may be appropriate if the ACL for the second year was established based on an analysis that assumes the full ACL for the first year is caught. If in reality the full ACL in year one is not caught, then more fish may be available in year two, and it may be appropriate to adjust the ACL in year two upwards. NMFS acknowledges that the wording in the last sentence of proposed § 600.310(f)(2)(ii)(B) may have caused confusion and clarifies within the final action on this section that carry-over provisions could allow an ACL to be adjusted upwards as long as the revised ACL does not exceed the specified ABC.

Regarding “guaranteed carry-over provisions,” the final action explains that a Council must articulate within its FMP when carry-over provisions of the control rule can and cannot be used and how the provision prevents overfishing, based on a comprehensive analysis.

See

§ 600.310(f)(2)(ii) of final action. Finally, some portion of unused catch from ACLs that are currently subject to a phase-in provision could be carried over, as long as the Council demonstrates that overfishing will be prevented.

Comment 35:

Commenters raised several questions about how to use carry-over provisions when new information leads the OFL and/or ABC to change. One commenter believed that, in order to ensure that carry-over provisions would not result in overfishing, the amount of allowed carry-over should be calculated based on the OFL from the first year (

i.e.,

the year of the ACL underage). However, another commenter believed that carry-over should not be allowed when new information is available that indicates a change in stock condition. Another commenter asked whether or not any further carry-over is justified if the catch in the second year equaled the original ACL, but fell below the revised ACL due to prior carry-over. Commenters also requested that the guidelines establish a naming convention for reference points associated with carry-over provisions.

Response:

If new information results in a revised ABC, carry-over provisions can be used as long as overfishing is prevented and the approach used is consistent with the provisions established within the FMP. If a stock's current reference points (

e.g.,

ABC, ACL) were revised based on carry-over from the previous year and catch fell below the revised ACL, the Council may apply another carry-over provision for the next year. However, as is the case for all carry-over provisions, the resulting ABC recommended by the SSC must prevent overfishing, and must consider the scientific uncertainty associated with the Council's risk policy and take into account other considerations under § 600.310(f)(2)(ii)(B) of the final action. Finally, Councils may establish naming conventions for reference points associated with carry-over provisions at their discretion.

Comment 36:

Several comments were received related to phase-in provisions. Commenters requested that the guidelines explicitly prohibit practices of using phase-in provisions to “front-load” high catch levels in the first year when increases are appropriate; or, delay decreases in catch levels for two years without taking any real action (

i.e.,

back-loading). Commenters also expressed concern that phase-in provisions could be used to delay action when new information suggests the health of the fish population has changed. Two commenters stated that the phase-in provision was not worth the trouble of implementing because it can only apply to the difference between the OFL and ABC. One commenter asked how the phase-in tool is applicable to the interim measures under § 600.310(j)(4) of proposed action. One commenter asked if a Council could theoretically use the 2-year time period allowed to develop a rebuilding plan (16 U.S.C. 1854(e)(3)) in addition to a 3-year phase-in approach to delay reducing catches to at or below the ABC for 5 years. Two commenters expressed concern regarding how the use of phase-in would affect the evaluation of adequate progress within a rebuilding plan. 16 U.S.C. 1854(e)(7). Finally, one commenter felt that market impacts should not be considered when deciding whether to use phase-in provisions while another commenter requested that ecosystem factors be considered.

Response:

NMFS believes that the guidelines address the “front-loading” and “back-loading” concern, and do not require further revision in this regard. As discussed in comment 33, the Councils are required to specify in the FMP, based on a comprehensive analysis, when a phase-in provision can and cannot be used, and how it prevents overfishing. The Councils must provide an adequate record that supports how each application of the phase-in provision is consistent with the FMP. Arbitrary “front-loading” or “back-loading” approaches will not satisfy these requirements. Furthermore, phase-in provisions cannot be used to allow for overfishing. NMFS has added language to the final action that explicitly states that the phased-in catch level cannot exceed the OFL in any year. See § 600.310(f)(2)(ii)(A) of the final action. In accordance with MSA section 304(e)(3), if a stock is determined to be undergoing overfishing, whether or not subject to a phase-in provision, new catch limits must be set to end overfishing immediately, unless MSA section 304(e)(6) is applied. Additionally, a Council may designate other indicators of stock health in its ABC control rule to be considered when applying a phase-in provision.

NMFS believes that there are benefits to using phase-in provisions, particularly for stocks with large degrees of scientific uncertainty (which accordingly should have large buffers between the OFL and ABC). Such stocks are most likely to experience a dramatic shift in reference points from one assessment to another, and thus, NMFS believes that phase-in provisions will give managers additional flexibility and increase stability within fisheries.

Section 600.310(j)(4) of the final action is based on MSA section 304(e)(6), which authorizes NMFS to take interim measures to reduce, but not necessarily end, overfishing during the development of an FMP or FMP amendment needed to rebuild overfished stocks. 16 U.S.C. 1854(e)(6) (authorizing interim measures for 180 days plus an additional 186 days). As such measures likely would deviate from the ABC control rule in an existing FMP, or from a new ABC control rule that is developed, the interim measures would not be included as part of any phase-in that might be adopted in an ABC control rule in a new FMP or FMP amendment.

The guidelines do not preclude a Council from considering the use of a phase-in provision for stocks under a rebuilding plan. However, in addition to preventing overfishing, the Councils should consider the vulnerability of stocks that are overfished and/or in rebuilding plans when considering using a phase-in provision. NMFS has added in this final action that Councils should evaluate the appropriateness of phase-in provisions for stocks that are overfished and/or rebuilding. See § 600.310(f)(2)(ii)(A) of the final action. A Council may determine that certain stocks subject to rebuilding plans are particularly vulnerable and should not have phase-in provisions within their ABC control rules. If a Council makes use of a phase-in provision, the provision must allow a stock to meet its specified timeframe for rebuilding (16 U.S.C. 1854(e)(4)). Thus, a rebuilding ABC must be set to reflect the amount of catch consistent with the designated fishing mortality rate (

i.e.,

F

rebuild

) in the rebuilding plan. See § 600.310(f)(3)(ii). If a phase-in approach is used for a stock under a rebuilding plan, it would not impact the evaluation of whether the stock has made adequate progress toward rebuilding.

Finally, under § 600.310(f)(2)(ii)(A), a Council may consider the short-term effects of a phase-in ABC control rule on a fishing industry, as well as long-term ecosystem effects. NMFS believes that economic, social, and ecological trade-offs are all relevant considerations when determining an ABC control rule risk policy. The fact that these considerations are important in fishery management is reflected in the National Standards and other MSA provisions.

Comment 37:

Several commenters offered suggestions for improvements to the phase-in provision. For example, one commenter suggested that NMFS consider alternative timeframes for using a phase-in ABC control rule based on the life history characteristics of the stock. Another commenter recommended NMFS replace the phase-in provision with a provision allowing, in the case of stocks subject to overfishing, the phase-in of catch levels below the OFL to end overfishing. Other commenters recommended that NMFS limit the use of the phase-in provision to the “slow up/full down” approach described in the preamble to the proposed rule.

See

80 FR 2794, January 20, 2015. One commenter suggested that having frequent stock assessments would eliminate the need for phase-in provisions. Finally, another commenter suggested revising the guidelines to explicitly state that phase-in provisions apply to both increases and decreases in catch limits.

Response:

NMFS limited the use of the phase-in provision to three years (instead of a stock-specific time period based on life history) because a shorter time frame may not be that helpful in stabilizing catches, while a longer time frame that spans multiple stock assessments may prevent necessary changes to catch levels from occurring in a timely manner.

See

80 FR 2792, 2794, January 20, 2015 (referring to explanation in Section IX of proposed action preamble that many stocks are assessed every 1, 2 or 3 years). A three year time period is enough time to smooth out dramatic changes in annual catch levels while avoiding delays to address needed changes in catch levels.

See

80 FR 2794, January 20, 2015. Additionally, NMFS believes it is more appropriate to base the allowable time period for phase-in provisions on the flow of new information, rather than the stock's life history characteristics because phase-in provisions are used to mediate management responses to new information.

The OFL is the threshold above which a stock is determined to be subject to overfishing. Thus, NMFS does not believe that phasing-in changes to the OFL is appropriate, given that any catch level above the OFL would subject the stock to overfishing and the MSA requires preventing overfishing. While NMFS supports the use of the “slow up/full down” approach as an appropriate option to consider for phase-in provisions, NMFS believes that the Councils should have the flexibility to design their own phase-in provisions, based on a comprehensive analysis that prevents overfishing.

NMFS agrees that having frequent stock assessments may reduce the need for phase-in provisions. However, the phase-in provision will address the current levels of uncertainty and accommodate reduced uncertainty in the future, as improvements in the stock assessment process are made. Finally, NMFS does not believe that revisions are needed to the language on phase-in provisions to explicitly refer to increases and decreases in catch levels. The text refers generally to “changes to ABC,” thus allowing for potential application of phase-in provisions in both directions.

ABC Control Rules—Risk Policy and Role of SSC

Comment 38:

NMFS received several comments regarding a Council's risk policy for ABC control rules. Several commenters requested that the guidelines define risk policies, require their use, and provide more specific and transparent technical guidance on establishing risk policies. Commenters also expressed concern that the term “at least 50 percent” within § 600.310(f)(2)(i) of the proposed action could be interpreted as a recommendation of the level of acceptable probability that overfishing will be prevented, rather than a lower bound and sought additional guidance on how much overfishing risk is prudent and legal. Other commenters recommended that the agency formally evaluate risk policies; that ABC control rules must lower fishing mortality as stock size declines (not just consider doing so); and that risk policies only consider biological and ecological factors. One commenter also opposed risk policies that utilize the “P* approach” to set buffers that account for scientific uncertainty, stating the approach provides a mechanism for Councils to “reverse engineer” their risk policies to obtain desirable catch levels.

Response:

NMFS believes sufficient guidance is given within the NS1 guidelines to allow Councils to establish well-documented ABC control rules and risk policies, as supported by a comprehensive analysis (

see

response to comment 33). NMFS strongly recommends the use of risk policies in order to properly establish measures (

i.e.,

ABCs) that are consistent with the dual mandates of NS1 (preventing overfishing while achieving, on a continuing basis, OY) and other MSA provisions. As described in the preamble to the final 2009 NS1 Guidelines, a 50 percent probability that the catch equal to the stock's ABC will not result in overfishing is a lower bound, not a default value.

See

response to comment 63, 74 FR 3195-96, January 16, 2009. ABC control rules that are more risk adverse may be prudent, depending on the OY considerations (

i.e.

ecological, economic, and social trade-offs) that a Council may consider.

See

§ 600.310(f)(4)(iv) of final action.

The Secretary reviews ABC control rules and the Council's risk policy when conducting its review of FMPs or FMP amendments, as required under MSA section 304(a). A risk policy for ABC control rules is a policy decision made by the Council, based on the fishery management objectives (ecological, economic, and social) identified within the FMP. NMFS believes that social and economic factors, as well as biological and ecological ones, are relevant when developing risk policies in light of a Council's fishery management objectives. The fact that these considerations are important in fishery management is reflected in the National Standards and other MSA provisions.

While the guidelines recommend Councils consider reducing fishing mortality as stock size declines below B

msy

and as scientific uncertainty increases, that action may not be appropriate in every case. Finally, as described in § 600.310(f)(2)(i) and discussed in comment 40, the SSC applies the Council's ABC control rule and risk policy (which are established within its FMP) when recommending an ABC to the Council. Thus, the guidelines are clear that risk policies are established within FMPs and are not capable of being modified to attain a desirable ABC recommendation for a single year.

Comment 39:

Several commenters supported the addition of definitions for scientific and management uncertainty.

See

§ 600.310(f)(1)(v)-(vi) of proposed action. In addition, NMFS received several comments requesting additional guidance on how to set appropriate, transparent, and quantifiable scientific and management uncertainty buffers to reduce the risk of overfishing and/or achieve OY. Some commenters recommended that the guidelines require all sources of scientific and management uncertainty be described and considered. Some commenters requested the guidelines require scientific uncertainty buffers to account for uncertainty in the relationship between environmental factors (including protected resources) and stock biomass, while others expressed that accounting for those types of uncertainty is overly precautionary. Commenters also requested the guidelines: Clarify the definition of ABC; cross-reference the definitions of scientific and management uncertainty throughout § 600.310(f); and require proxies to be used to account for types of uncertainty that are known to exist but not typically accounted for in standard error values.

Response:

NMFS believes that § 600.310(f) of the final action provides sufficient guidance to the Councils on appropriately accounting for scientific and management uncertainty to meet the requirements of NS1 while providing Councils with adequate flexibility to address the particular levels of uncertainty for their stocks. While all sources of scientific and management uncertainty should be considered, NMFS acknowledges that consideration and quantification of uncertainty is limited by data availability. As stated in § 600.310(f)(1)(vi), uncertainty regarding the relationship between environmental factors (including protected resources) and stock biomass can be accounted for through the consideration of “longer-term uncertainties due to potential ecosystem and environmental effects.” Potential sources of scientific and management uncertainty are listed in § 600.310(f)(1)(v) and (vi) of the final action. The extent to which those sources of uncertainty are considered is at the discretion of the Council, thus NMFS believes the guidelines are not overly prescriptive or overly precautionary.

Furthermore, the definitions for ABC, scientific uncertainty, and management uncertainty are clearly established within the guidelines and do not need to be cross-referenced. Finally, the guidelines clearly state that when scientific uncertainty cannot be directly calculated, a proxy for uncertainty itself should be established based on the best scientific information available.

See

§ 600.310(f)(2)(ii).

Comment 40:

NMFS received several comments expressing concern that proposed revisions to § 610.310(f) will minimize the SSC's role in setting the ABC and ABC control rules. Commenters stated that the proposed definition of “control rule,” in combination with the deletion of the phrases “The SSC must recommend the ABC to the Council” and “based on scientific advice from its SSC” from § 600.310(f)(3) of the proposed action will weaken the requirement that Councils cannot exceed the SSC's fishing level recommendations and are inconsistent with NS2. Commenters recommended restoring the existing language related to the SSC's role in setting ABCs and ABC control rules, revising the definition of “control rule,” and adding additional plain language guidance on the relationship between

the SSC and the ABC, as well as other parts of the ACL framework. Another commenter requested clarification on whether an SSC can recommend an ABC that exceeds the catch that results from the application of the control rule.

Response:

As discussed in the 2009 final action (

see

74 FR 3181, January 16, 2009), the statute is clear that the SSC is required to recommend the ABC to the Council. 16 U.S.C. 302(g)(1)(B), 302(h)(6). However, NMFS agrees that this statutory requirement should be clearly stated within the NS1 guidelines and NMFS has re-instated the phrase “The SSC must recommend the ABC to the Council” within § 600.310(f)(3) of the final action. The role of the SSC in the establishment of ABC control rules is accurately described within § 600.310(f)(1)(iv), and the guidelines clearly emphasize using the best scientific information available (NS2) in the specification of the ABC within § 600.310(f)(3). Thus, NMFS believes the NS1 guidelines provide sufficient guidance on the role of the SSC within the ABC-setting process. Finally, the SSC may recommend an ABC that differs from the result of the application of the ABC control rule, based on factors such as data uncertainty, recruitment variability, declining trends in population variables, and other factors. However, if a different value is recommended, the SSC must provide a well-documented and adequate record for the deviation.

Comment 41:

NMFS received requests for additional plain-language descriptions of the relationships between ABC, ACL, and OFL. One commenter recommended clarifying that ABC and ACL should be set in terms of catch, rather than landings.

Response:

The relationships between ABC, ACL, and OFL were clearly described in the 2009 action.

See

74 FR 3180, January 16, 2009. NMFS agrees that, wherever practical in the management context, ABC and ACL should be set in terms of catch, rather than landings. However, there are fisheries for which data on bycatch (discards) is not available in the same time-frame as data on landed catch. In these cases, Councils may express an ABC (and, correspondingly, ACL) 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.

See

§ 600.310(f)(3)(i).

Accountability Measures

Comment 42:

One commenter suggested adding “or functional equivalent” to the discussion of annual catch targets (ACTs) in § 600.310(f)(4)(i) and § 600.310(g)(4).

Response:

NMFS agrees and has included the suggested language in § 600.310(f)(4)(i) of the final action and the phrase “or the functional equivalent” in § 600.310(g)(4) of the final action.

Comment 43:

NMFS received many comments on the relationship between ACLs and AMs. Some commenters requested the guidelines recommend applying AMs with increasing severity as catch overages approach the OFL while others emphasized that Councils should be given deference in deciding how to implement AMs. Other comments included: Suggested revisions to require AMs to prevent overfishing (as opposed to preventing ACL overages); confusion regarding how to implement AMs based on multi-year averaging; recommendations to encourage the use of overage adjustments to counter the biological consequences of ACL overages; recommendations to require overage adjustments for rebuilding stocks unless the overage is due to higher than expected recruitment and abundance; and recommendations that the guidelines include examples of SDCs and AMs that address habitat-based criteria. Finally, one commenter suggested that in cases where an ACL is exceeded due to higher than expected recruitment, the corresponding ABC should be revised based on the higher observed recruitment and ACLs should be reset accordingly.

Response:

AMs are management controls to prevent ACLs from being exceeded and to correct or mitigate overages of the ACL if they occur. The proposed action did not make any substantive changes to the guidance on the relationship between AMs and ACLs. Based on experience in implementing §§ 600.310(f)(4); 600.310(g), and after taking into consideration public comments, NMFS does not believe that any further revisions to the guidelines are required. As discussed in the 2009 final action, the decision of how to establish and implement AMs for each fishery is at the discretion of the Council. Also as discussed in the 2009 final action, NMFS interprets the MSA as requiring AMs to prevent the ACL from being exceeded (as opposed to preventing the ABC or OFL from being exceeded).

See e.g.,

response to comment 59, 74 FR 3194, January 16, 2009 (addressing similar comments). Consistent with that, NMFS recommends that, whenever possible, Councils establish AMs that allow in-season monitoring and adjustment to the management of the fishery. Section 600.310(g)(5) of the final action allows Councils, in cases where fisheries lack timely and/or consistent data, to establish AMs based on comparisons of average catch to average ACL.

See e.g.,

response to comment 65, 74 FR 3196, January 16, 2009 (addressing similar comments).

The guidelines clearly state within § 600.310(g)(3) that biological consequences on the status of the stock (

i.e.,

its ability to produce MSY or achieve rebuilding goals) must be accounted for when designing and implementing AMs. While NMFS encourages Councils to use overage paybacks when appropriate to compensate for ACL overages, NMFS believes that Councils should design and implement AMs based on the particular conditions and needs of the fishery. In addition, AMs are controls to prevent ACLs from being exceeded, and do not consider non-fishing factors that affect stock health, such as habitat-based criteria. Such considerations should be accounted for in OY specifications. Finally, as described in the preamble to the proposed action, a Council may consider if higher than expected recruitment played a role in catches exceeding the ACL when deciding on the appropriate AM to implement.

See

80 FR 2795, January 20, 2015. The ABC is not a type of inseason AM and may not be revised during a fishing season based on catches that exceed the ACL. Nevertheless, data showing higher than expected recruitment may be accounted for by a Council's SSC when specifying the ABC for subsequent fishing seasons based on the Council's ABC control rule.

Comment 44:

One comment suggested that NMFS, as opposed to the Councils, should be responsible for inseason management. The commenter also expressed concern that § 600.310(g)(3) expands the purpose of AMs into a punishment for overages by requiring an automatic reduction of ACLs in the case of overages. The commenter asked whether the provision provides a similar exception for stocks that are not in rebuilding plans as stocks that are in rebuilding plans.

Response:

Councils must establish appropriate AMs within their FMPs, which are subject to review and approval by NMFS. 16 U.S.C. 1853 (a)(15); 1854(a). Based on the AMs established by a Council's FMP, NMFS may have implementation responsibilities. For example, NMFS may provide data to the Councils in support of inseason monitoring and adjustment for each fishery, as well as implement any necessary inseason AMs (

e.g.,

fishery closures) should certain

conditions be met. Furthermore, if an ACL is exceeded, the existing guidelines do not require that the ACL be automatically reduced in the following year. The guidelines explain that Councils may determine the most appropriate AM to use in response to an ACL overage based on a variety of factors. While NMFS strongly recommends that full overage adjustments should be applied to stocks in rebuilding plans (due to their increased vulnerability), the guidelines acknowledge that there may be cases where the best scientific information available shows that a reduced overage adjustment (or no adjustment) is needed to mitigate the effects of overages for a rebuilding stock. Such cases are expected to be rare. Councils have the flexibility to determine the most appropriate AM for stocks. Because overage adjustments are not required for stocks that are not in rebuilding plans, it is not necessary to add additional exceptions into the guidelines.

See

§ 600.310(g)(3). Section 600.310(g)(3) was adopted in the 2009 NS1 Guidelines, and this action did not propose any revisions to the text. Based on experience in implementing § 600.310(g)(3), and after taking into consideration public comments, NMFS does not believe that further revisions to the section are required.

Comment 45:

One commenter asserted that § 600.310(g)(6) of the proposed action, which states that fisheries that have harvest in state or Federal waters must have AMs for the portion of the fishery in Federal waters, is in conflict with § 600.310(g)(1), which states that AMs must prevent the ACL from being exceeded.

Response:

Federal management authority is limited to the portion of the fishery under Federal jurisdiction. Therefore, the 2009 NS1 guidelines only require AMs for the Federal fishery, and this approach is unchanged in this final action. NMFS continues to strongly recommend collaboration with state managers (and other applicable managers) to develop ACLs and AMs that prevent overfishing of the stock as a whole.

See e.g.,

response to comment 71, 74 FR 3197, January 16, 2009 (addressing similar comments).

Comment 46:

NMFS received many comments on the proposed revision within § 600.310(g)(3) that clarifies that no additional AMs are necessary for stocks whose ACL is zero and the AM for the fishery is a closure. Commenters expressed concern that stocks with ACLs equal to zero are particularly vulnerable and the provision could be construed to exempt a Council from implementing adequate AMs that prevent the ACL from being exceeded as well as exempt the fishery from the requirements of NS9 and NS1 guidelines catch accounting requirements (§ 600.310(e)(2)(ii)(C)). Commenters also stated that the provision is in conflict with the decision in

Oceana

v.

Locke,

831 F. Supp. 2d 95 (D.D.C. 2011). Finally, commenters requested additional clarification on the meaning of the term “small” within the phrase “only small amounts of catch or bycatch” within § 600.310(g)(3).

Response:

The final action retains the clarification within § 600.310(g)(3) that, if an ACL is set equal to zero and the AM for the fishery is a closure of the fishery, additional AMs are not required if (1) only small amounts of catch or bycatch occur, and (2) that catch or bycatch is unlikely to result in overfishing. The provision is an optional tool that will only apply to a limited set of cases where there is no way to account for the small amounts of bycatch occurring and, therefore, it is not pragmatic to establish AMs to try to account for such small amounts of bycatch that are unlikely to result in overfishing. In order to utilize this provision, Councils must provide a well-documented record supporting that the stock meets both of the above-mentioned criteria. Additional AMs are not required when the catch or bycatch is unlikely to result in overfishing and is at such a low level that it is not practicable to require additional AMs.

See

response to comment 78 for further discussion of the term “practicable”.

NMFS disagrees that the provision is contrary to § 600.310(e)(2)(ii)(C) of the NS1 guidelines or NS9. Section 600.310(e)(2)(ii)(C) provides for accounting for all sources of mortality “where practicable,” when evaluating stock status with respect to reference points.

See

response to comments 32 and 78 for further discussion of that section and the term “practicable.” NS9 is a separate statutory requirement (16 U.S.C. 1851(a)(9)) from the ACL/AM requirement (16 U.S.C. 1853(a)(15)), and in any event, NS9 requires that measures, “to the extent practicable,” minimize bycatch and bycatch mortality. 16 U.S.C. 1851(a)(9).

NMFS also disagrees that the provision conflicts with

Oceana

v.

Locke.

In that decision, the court held that when sector-specific sub-ACLs are established, sector-specific sub-AMs may be necessary. The court found that NMFS could not demonstrate that overfishing would be prevented when there were no sub-AMs specified that could address overages of specified sub-ACLs. Sector-ACLs are not required under the NS1 guidelines. However, as explained in the response to comment 80, § 600.310(f)(4)(ii) now provides that, if sector-ACLs are used, then sector-AMs should also be specified. That section emphasizes that “ACLs in coordination with AMs must prevent overfishing.”

See

§ 600.310(f)(4)(i). Section 600.310(g)(3) reinforces the requirement to prevent overfishing by clarifying that, in cases where an ACL is set equal to zero and the AM for the fishery is a closure, additional AMs are not required if catch or bycatch is unlikely to result in overfishing. Thus, the approach under § 600.310(g)(3) is consistent with

Oceana

v.

Locke.

Comment 47:

NMFS received several suggestions to modify the language in both § 600.310(f)(4)(i) and § 600.310(g)(4). Comments included: The agency should be required to provide catch data within 60 days of the end of the fishing year; revise the use of the word “should” from the description of in-season AMs; replace “for the next year” with “as soon as possible” within § 600.310(f)(4)(i); and repeat that management uncertainty should be accounted for at the ACL level if an ACT is not used in § 600.310(g)(4). Finally, while some commenters requested that the guidelines clarify that sector-AMs should be applied when sector-ACLs are used, others opposed sector-ACLs and AMs and recommended that the guidelines replace “sector-AMs should also be specified” with “sector-AMs may also be specified.”

Response:

First, while NMFS aims to provide catch data to the Councils as soon as possible, a specific deadline to provide catch data for all fisheries is not realistic, given the various mitigating circumstances that arise. As discussed within § 600.310(g)(2), Councils should plan to make appropriate use of preliminary data, if needed to implement inseason AMs. Second, while NMFS strongly recommends the use of inseason AMs, NMFS is not requiring them to be used (

i.e.,

not changing “should” to a “must” in the description of inseason AMs), because inseason AMs are not a statutory requirement, and NMFS believes that Councils should have discretion to consider different types of AMs. Third, ACLs are set on an annual basis and, because AMs are management measures to help prevent fisheries from exceeding ACLs, AMs should be applied on an annual basis as well. Lastly, NMFS believes that the guidance adopted in the 2009 NS1 Guidelines regarding accounting for management uncertainty within the ACL-setting process and using sector-AMs is sufficient. After considering public comments, NMFS

has determined that no additional guidance on these topics is necessary in the NS1 guidelines.

ACL & AM Mechanisms—Life Cycle Exemption

Comment 48:

Several comments were received regarding NMFS' proposal to revise the life cycle exception to apply to “a stock for which the average age of spawners in the population is approximately 1 year or less.”

See

§ 600.310(h)(1)(i) of proposed action. Some commenters felt this modification to the exception was still too restrictive. One commenter proposed that the exception should apply to stocks for which the average age of spawners is 2 or 3 years. Others felt the exception was not restrictive enough. One commenter said that the life cycle exception should only apply to an “unfished population.” They expressed concern that excessive fishing could truncate the life cycle of the stock to the point that it qualifies for the exception. Another recommended expanding the life cycle exception in the MSA to include species with life cycles of 1-2 years but then limiting it to those species that also experience a rate of natural mortality that far exceeds the effects of fishing mortality. Finally, one commenter asked for more guidance on how to apply the exception.

Response:

The MSA provides a statutory exception to the requirements for ACLs and AMs for “a fishery for species that have a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species.” 16 U.S.C. 1853 note (Pub. L. 109-479 104(b)). The 2009 NS1 guidelines explained that this statutory exemption applies to a stock for which the average length of time it takes for an individual to produce a reproductively active offspring is approximately 1 year and that the individual has only one breeding season in its lifetime.

See

74 FR 3210, January 16, 2009. In this action, NMFS is revising the exception to apply to “a stock for which the average age of spawners in the population is approximately 1 year or less,” as this is a more scientifically correct description of a species that has a life cycle of approximately 1 year. As explained in the preamble to the proposed action, NMFS believes that the 2009 NS1 guidelines' reference to one breeding season in a lifetime was overly restrictive, because some short lived species have multiple breeding cycles in a lifetime. NMFS cannot change the reference to 1 year in the NS1 guidelines, because that is based on the statutory text for the exception, which is quoted above.

NMFS does not agree with limiting the exception to “unfished populations” or to stocks that experience a rate of natural mortality that far exceeds the effects of fishing morality. The exception itself does not include these limitations, and NMFS does not believe that they are necessary, given that the exception will not apply if “the Secretary has determined the fishery is subject to overfishing of that species.” 16 U.S.C. 1853 note.

NMFS continues to believe that the National Standard 1 guidelines should not include overly prescriptive guidance as to which stocks meet the criteria for the exception; this is a decision that is best made by the Councils, subject to Secretarial review and approval under MSA section 304(a). To the extent that questions arise as to the application of the exemption, NMFS will provide case-specific guidance to the Councils as necessary.

ACL & AM Mechanisms—Flexibility in Application of NS1 Guidelines

Comment 49:

Some commenters expressed support for the proposal to add additional examples of circumstances that might call for flexibility in the application of the NS1 guidelines.

See

§ 600.310(h)(2) of proposed action. Others felt that the proposal could be improved. For instance, one commenter felt that the Pacific salmon example in the proposed action mischaracterizes the spawning potential of Pacific salmon. The commenter recommended keeping the original language or inserting the phrase “of each run” after “potential.” Another commenter suggested relocating the provision to make it clear that it applies to the complete set of NS1 guidelines and is not limited to only flexibility in establishing ACL mechanisms and AMs in FMPs.

Response:

NMFS agrees with the commenter about the proposed language regarding Pacific salmon spawning potential, thus the sentence in this final action reverts back to as it was written in the 2009 NS1 guidelines: “(

e.g.,

Pacific salmon, where the spawning potential for a stock is spread over a multi-year period).”

NMFS disagrees with the suggestion to relocate the flexibility provision in § 600.310(h)(2). NMFS believes the guidance in § 600.310(h)(2) is clear and that further revision is not necessary. Section § 600.310(h)(2) is meant to only provide flexibility in establishing ACLs and AMs. The revisions to § 600.310(h)(2) were not meant to expand what it applies to but rather to connect the proposed change in § 600.310(e)(2)(ii) to the requirement to specify ACLs and AMs because a Council specifying SDC in a manner that deviates from the standard NS1 guidelines approach will also likely need to deviate from the standard approach to setting ACLs and AMs.

Calculating T

max

Comment 50:

NMFS received many comments supporting the inclusion of two additional methods to calculate T

max

within the NS1 guidelines. Other commenters expressed concern that providing additional options for calculating T

max

would incentivize Councils to merely pick the longest T

max,

which would result in a rebuilding plan that is ineffective and/or fails to meet the statutory requirement that rebuilding plans rebuild a stock in as short a time as possible. Similarly, many commenters sought additional guidance from NMFS as to how to pick between the three different T

max

calculations. Several commenters also requested additional technical guidance on whether factors discussed in § 600.310(j)(3)(i) can be used to justify the method used for calculating T

max

, and additional guidance on the preferred methodology to calculate mean generation time. Several commenters provided suggestions to either improve the proposed T

max

calculation methods or include other alternate T

max

calculation methods within the guidelines. Commenters also recommended that the guidelines encourage setting T

target

as close to T

min

as possible and encourage the use of management measures that adhere to T

target

as opposed to T

max

.

Response:

As the preamble to the proposed rule discussed, while NMFS does not anticipate that the proposed alternative approaches to calculate T

max

will produce drastically different values, NMFS has added these methods to give Councils the flexibility to calculate T

max

in light of variable information and data availability.

See

80 FR 2795-96, January 20, 2015. NMFS expects these additional methods will help Councils avoid using overly conservative or exaggerated T

max

values in cases where there is a lack of available data to calculate mean generation time as required under the only available approach under the previous guidelines (

i.e.,

T

min

plus one mean generation time). However, NMFS revised the final action to provide additional guidance on decisions regarding which T

max

calculation method to use. NMFS emphasized that, in cases where T

min

exceeds 10 years, T

max

is a biological calculation. Because T

max

is a biological calculation, the calculation methods provided in the

guidelines do not include other factors such as those outlined in § 600.310(j)(3)(i). NMFS also clarified in the final action that the determination of which T

max

calculation method to use should be made by the Councils in consultation with their SSCs (or agency scientists or peer review processes in the case of Secretarial actions) and should be based on the best scientific information available.

See

§ 600.310(j)(3)(i)(B)(

3

).To this end, NMFS has also added language to the final action emphasizing that a Council and its SSC should consider the relevant biological data and scientific uncertainty of that data when deciding which calculation method to use. Finally, NMFS also provided examples of cases where, given data availability and the life history characteristics of a stock, one of the alternative methods may be more appropriate than the status quo calculation method (T

min

plus one mean generation time).

As noted in the 2009 final action, T

max

is an upper bound on the duration of rebuilding time periods and is a limit that should be avoided.

See

74 FR 3200, January 16, 2009. When developing and implementing an effective rebuilding plan, Councils must determine T

target,

which is the shortest rebuilding time period possible based on the factors in § 600.310(j)(3)(i). Thus, Councils must demonstrate that their adopted T

target

is the shortest time possible for rebuilding and Council action addressing an overfished fishery should be based on T

target

(16 U.S.C. 1854(e)(4)(A);

NRDC

v.

NMFS,

421 F.3d 872, 882 (9th Cir. 2005)). NMFS believes the methods given for T

max

calculations in the final guidelines are sufficient to produce appropriate T

max

values and there is no need for additional guidance within the NS1 guidelines.

Finally, NMFS has already developed technical guidance on calculating mean generation time for use in rebuilding plans, which includes a definition for mean generation time (Restrepo et al., 1998). NMFS believes this technical guidance document is sufficient and does not believe an exact method should be specified in the NS1 guidance.

Comment 51:

NMFS received several comments on the requirement within MSA section 304(e)(4)(A)(ii) to specify a time period for rebuilding overfished stocks that does not exceed 10 years (henceforth referred to as the “10 year rebuilding requirement”). Comments reflected disappointment that the proposed changes to the guidelines do not address the issue of “discontinuity” among rebuilding plans: Where Councils with stocks that have a T

min

greater than 10 years are able to adopt rebuilding plans significantly longer than 10 years while stocks with a T

min

of 10 years or less are required to rebuild within 10 years. Comments included suggestions to remove the 10 year rebuilding requirement and replace it with alternative rebuilding requirements. Another commenter suggested that socio-economic considerations should be included when assessing a stock's ability to rebuild in 10 years. One commenter recommended revising the language in § 600.310(j)(3)(i)(B)(

1

) to clarify

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