# Magnuson-Stevens Act Provisions; National Standard Guidelines

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-24500

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 18, 2016
- **Citation:** 81 FR 71858

## Text

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 o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-24500. Public record. Not legal advice.