50 CFR § 600.305-600.355 - Magnuson-Stevens Act Provisions - National Standards

34 50 CFR Ch. VI (10–1–22 Edition) § 600.245 members and other attendees have the appropriate security clearances. (b) Each nominee to a Council is re quired to complete a Certification of Status form (‘‘form’’). All nominees must certify, pursuant to the Foreign Agents Registration Act of 1938, wheth er they serve as an agent of a foreign principal. Each nominee must certify, date, sign, and return the form with his or her completed nomination kit. Nominees will not be considered for ap pointment to a Council if they have not filed this form. Any nominee who currently is an agent of a foreign prin cipal will not be eligible for appoint ment to a Council, and therefore should not be nominated by a Governor for appointment. [61 FR 32540, June 24, 1996, as amended 75 FR 59153, Sept. 27, 2010] § 600.245 Council member compensa tion. (a) All voting Council members whose eligibility for compensation has been established in accordance with NOAA guidelines will be paid through the cooperative agreement as a direct line item on a contractual basis with out deductions being made for Social Security or Federal and state income taxes. A report of compensation will be furnished each year by the member’s Council to the proper Regional Pro gram Officer, as required by the Inter nal Revenue Service. Such compensa tion may be paid on a full day’s basis, whether in excess of 8 hours a day or less than 8 hours a day. The time is compensable where the individual member is required to expend a signifi cant private effort that substantially disrupts the daily routine to the extent that a work day is lost to the member. ‘‘Homework’’ time in preparation for formal Council meetings is not com pensable. (b) Non-government Council mem bers receive compensation for: (1) Days spent in actual attendance at a meeting of the Council or jointly with another Council. (2) Travel on the day preceding or fol lowing a scheduled meeting that pre cluded the member from conducting his normal business on the day in ques tion. (3) Meetings of standing committees of the Council if approved in advance by the Chair. (4) Individual member meeting with scientific and technical advisors, when approved in advance by the Chair and a substantial portion of any day is spent at the meeting. (5) Conducting or attending hearings, when authorized in advance by the Chair. (6) Other meetings involving Council business when approved in advance by the Chair. (c) The Executive Director of each Council must submit to the appro priate Regional Office annually a re port, approved by the Council Chair, of Council member compensation author ized. This report shall identify, for each member, amount paid, dates, and location and purpose of meetings at tended. [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 66 FR 57888, Nov. 19, 2001] § 600.250 Council member training. (a) The Secretary shall provide a training course covering a variety of topics relevant to matters before the Councils and shall make the training course available to all Council mem bers and staff and staff from NMFS re gional offices and science centers. To the extent resources allow, the Sec retary will make the training available to Council committee and advisory panel members. (b) Council members appointed after January 12, 2007, shall, within one year of appointment, complete the training course developed by the Secretary. Any Council member who completed such a training course within 24 months of January 12, 2007, is considered to have met the training requirement of this section. [75 FR 59154, Sept. 27, 2010] Subpart D—National Standards § 600.305 General. (a) Purpose. (1) This subpart estab lishes guidelines, based on the national standards, to assist in the development and review of FMPs, amendments, and 35 Fishery Conservation and Management § 600.305 regulations prepared by the Councils and the Secretary. (2) In developing FMPs, the Councils have the initial authority to ascertain factual circumstances, to establish management objectives, and to propose management measures that will achieve the objectives. The Secretary will determine whether the proposed management objectives and measures are consistent with the national stand ards, other provisions of the Magnuson Stevens Act (MSA), and other applica ble law. The Secretary has an obliga tion under section 301(b) of the MSA to inform the Councils of the Secretary’s interpretation of the national stand ards so that they will have an under standing of the basis on which FMPs will be reviewed. (3) The national standards are statu tory principles that must be followed in any FMP. The guidelines summarize Secretarial interpretations that have been, and will be, applied under these principles. The guidelines are intended as aids to decision-making; FMPs for mulated according to the guidelines will have a better chance for expedi tious Secretarial review, approval, and implementation. FMPs that are not formulated according to the guidelines may not be approved by the Secretary if the FMP or FMP amendment is in consistent with the MSA or other ap plicable law (16 U.S.C. 1854(a)(3)). (b) Fishery management objectives. (1) Each FMP, whether prepared by a Council or by the Secretary, should identify what the FMP is designed to accomplish (i.e., the management ob jectives to be attained in regulating the fishery under consideration). In es tablishing objectives, Councils balance biological constraints with human needs, reconcile present and future costs and benefits, and integrate the diversity of public and private inter ests. If objectives are in conflict, prior ities should be established among them. (2) To reflect the changing needs of the fishery over time, Councils should reassess the FMP’s management objec tives on a regular basis. (3) How objectives are defined is im portant to the management process. Objectives should address the problems of a particular fishery. The objectives should be clearly stated, practicably attainable, framed in terms of defin able events and measurable benefits, and based upon a comprehensive rather than a fragmentary approach to the problems addressed. An FMP should make a clear distinction between ob jectives and the management measures chosen to achieve them. The objectives of each FMP provide the context with in which the Secretary will judge the consistency of an FMP’s conservation and management measures with the national standards. (c) Stocks that require conservation and management. (1) Magnuson-Stevens Act section 302(h)(1) requires a Council to prepare an FMP for each fishery under its authority that requires (or in other words, is in need of) conservation and management. 16 U.S.C. 1852(h)(1). Not every fishery requires Federal manage ment. Any stocks that are predomi nately caught in Federal waters and are overfished or subject to over fishing, or likely to become overfished or subject to overfishing, are consid ered to require conservation and man agement. Beyond such stocks, Councils may determine that additional stocks require ‘‘conservation and manage ment.’’ (See Magnuson-Stevens Act definition at 16 U.S.C. 1802(5)). Based on this definition of conservation and management, and other relevant provi sions of the Magnuson-Stevens Act, a Council should consider the following non-exhaustive list of factors when de ciding whether additional stocks re quire conservation and management: (i) The stock is an important compo nent of the marine environment. (ii) The stock is caught by the fish ery. (iii) Whether an FMP can improve or maintain the condition of the stock. (iv) The stock is a target of a fishery. (v) The stock is important to com mercial, recreational, or subsistence users. (vi) The fishery is important to the Nation or to the regional economy. (vii) The need to resolve competing interests and conflicts among user groups and whether an FMP can fur ther that resolution. (viii) The economic condition of a fishery and whether an FMP can produce more efficient utilization. 36 50 CFR Ch. VI (10–1–22 Edition) § 600.305 (ix) The needs of a developing fish ery, and whether an FMP can foster or derly growth. (x) The extent to which the fishery is already adequately managed by states, by state/Federal programs, or by Fed eral regulations pursuant to other FMPs or international commissions, or by industry self-regulation, consistent with the requirements of the Magnu son-Stevens Act and other applicable law. (2) In evaluating factors in para graphs (c)(1)(i) through (x) of this sec tion, a Council should consider the spe cific circumstances of a fishery, based on the best scientific information available, to determine whether there are biological, economic, social and/or operational concerns that can and should be addressed by Federal man agement. (3) When considering adding a stock to an FMP, no single factor is disposi tive or required. One or more of the above factors, and any additional con siderations that may be relevant to the particular stock, may provide the basis for determining that a stock requires conservation and management. Based on the factor in paragraph (c)(1)(iii) of this section, 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 adding a stock to an FMP. However, Councils should consider the factor in paragraph (c)(1)(x) of this section before deciding to include a stock in an FMP. In many circumstances, adequate management of a fishery by states, state/Federal programs, or another Federal FMP would weigh heavily against a Federal FMP action. See, e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3). (4) When considering removing a stock from, or continuing to include a stock in, an FMP, Councils should pre pare a thorough analysis of factors in paragraphs (c)(1)(i) through (x) of this section, and any additional consider ations that may be relevant to the par ticular stock. As mentioned in para graph (c)(3) of this section, if the amount and/or type of catch that oc curs in Federal waters is a significant contributing factor to the stock’s sta tus, such information would weigh heavily in favor of continuing to in clude a stock in an FMP. Councils should consider weighting the factors as follows. Factors in paragraphs (c)(1)(i) through (iii) of this section should be considered first, as they ad dress maintaining a fishery resource and the marine environment. See 16 U.S.C. 1802(5)(A). These factors weigh in favor of continuing to include a stock in an FMP. Councils should next consider factors in paragraphs (c)(1)(iv) through (ix) of this section, which set forth key economic, social, and other reasons contained within the MSA for an FMP action. See 16 U.S.C. 1802(5)(B). Finally, a Council should consider the factor in paragraph (c)(1)(x) of this sec tion before deciding to remove a stock from, or continue to include a stock in, an FMP. In many circumstances, ade quate management of a fishery by states, state/Federal programs, or an other Federal FMP would weigh in favor of removing a stock from an FMP. See e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3). (5) Councils may choose to identify stocks within their FMPs as ecosystem component (EC) species (see § § 600.305(d)(13) and 600.310(d)(1)) if a Council determines that the stocks do not require conservation and manage ment based on the considerations and factors in paragraph (c)(1) of this sec tion. EC species may be identified at the species or stock level, and may be grouped into complexes. Consistent with National Standard 9, MSA section 303(b)(12), and other applicable MSA sections, management measures can be adopted in order to, for example, col lect data on the EC species, minimize bycatch or bycatch mortality of EC species, protect the associated role of EC species in the ecosystem, and/or to address other ecosystem issues. (6) A stock or stock complex may be identified in more than one FMP. In this situation, the relevant Councils should choose which FMP will be the primary FMP in which reference points for the stock or stock complex will be established. In other FMPs, the stock or stock complex may be identified as ‘‘other managed stocks’’ and manage ment measures that are consistent with the objectives of the primary FMP can be established. 37 Fishery Conservation and Management § 600.305 (7) Councils should periodically re view their FMPs and the best scientific information available and determine if the stocks are appropriately identified. As appropriate, stocks should be re classified within an FMP, added to or removed from an existing FMP, or added to a new FMP, through an FMP amendment that documents the ration ale for the decision. (d) Word usage within the National Standard Guidelines. The word usage re fers to all regulations in this subpart. (1) Must is used, instead of ‘‘shall’’, to denote an obligation to act; it is used primarily when referring to require ments of the Magnuson-Stevens Act, the logical extension thereof, or of other applicable law. (2) Shall is used only when quoting statutory language directly, to avoid confusion with the future tense. (3) Should is used to indicate that an action or consideration is strongly rec ommended to fulfill the Secretary’s in terpretation of the Magnuson-Stevens Act, and is a factor reviewers will look for in evaluating a statement of orga nization, practices, and procedures (SOPP) or an FMP. (4) May is used in a permissive sense. (5) Will is used descriptively, as dis tinguished from denoting an obligation to act or the future tense. (6) Could is used when giving exam ples, in a hypothetical, permissive sense. (7) Can is used to mean ‘‘is able to,’’ as distinguished from ‘‘may.’’ (8) Examples are given by way of illus tration and further explanation. They are not inclusive lists; they do not limit options. (9) Analysis, as a paragraph heading, signals more detailed guidance as to the type of discussion and examination an FMP should contain to demonstrate compliance with the standard in ques tion. (10) Council includes the Secretary, as applicable, when preparing FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens Act. (11) Target stocks are stocks or stock complexes that fishers seek to catch for sale or personal use, including such fish that are discarded for economic or regulatory reasons as defined under Magnuson-Stevens Act section 3(9) and 3(38). (12) Non-target species and non-target stocks are fish caught incidentally dur ing the pursuit of target stocks in a fishery. Non-target stocks may require conservation and management and, if so, must be included in a FMP and be identified at the stock or stock com plex level. If non-target species are not in need of conservation and manage ment, they may be identified in an FMP as ecosystem component species. (13) Ecosystem Component Species (see §§ 600.305(c)(5) and 600.310(d)(1)) are stocks that a Council or the Secretary has determined do not require con servation and management, but desire to list in an FMP in order to achieve ecosystem management objectives. (e) Relationship of National Standard 1 to other national standards—General. Na tional Standard 1 addresses preventing overfishing and achieving optimum yield. See 16 U.S.C. 1851(a)(1) and 50 CFR 600.310. National Standards 2 through 10 provide further require ments for conservation and manage ment measures in FMPs. See 16 U.S.C. 1851(a)(2) through (10) and 50 CFR 600.315 through 600.355. Below is a de scription of how some of the other Na tional Standards intersect with Na tional Standard 1. (1) National Standard 2 (see § 600.315). Management measures and reference points to implement NS1 must be based on the best scientific information available. When data are insufficient to estimate reference points directly, Councils should develop reasonable proxies to the extent possible (also see § 600.310(e)(1)(v)(B)). In cases where sci entific data are severely limited, effort should also be directed to identifying and gathering the needed data. SSCs should advise their Councils regarding the best scientific information avail able for fishery management decisions. (2) National Standard 3 (see § 600.320). Reference points should generally be specified in terms of the level of stock aggregation for which the best sci entific information is available (also see § 600.310(e)(1)(ii) and (iii)). (3) National Standard 6 (see § 600.335). Councils must build into the reference points and control rules appropriate 38 50 CFR Ch. VI (10–1–22 Edition) § 600.310 consideration of risk, taking into ac count uncertainties in estimating har vest, stock conditions, life history pa rameters, or the effects of environ mental factors. (4) National Standard 8 (see § 600.345). National Standard 8 addresses eco nomic and social considerations and minimizing to the extent practicable adverse economic impacts on fishing communities within the context of pre venting overfishing and rebuilding overfished stocks as required under Na tional Standard 1 and other MSA provi sions. Calculation of OY as reduced from maximum sustainable yield (MSY) also includes consideration of economic and social factors, but the combination of management measures chosen to achieve the OY must prin cipally be designed to prevent over fishing and rebuild overfished stocks. (5) National Standard 9 (see § 600.350). Evaluation of stock status with respect to reference points must take into ac count mortality caused by bycatch. In addition, the estimation of catch should include the mortality of fish that are discarded. [81 FR 71893, Oct. 18, 2016] § 600.310 National Standard 1—Opti mum Yield. (a) Standard 1. Conservation and management measures shall prevent overfishing while achieving, on a con tinuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry. (b) General. (1) The guidelines set forth in this section describe fishery management approaches to meet the objectives of National Standard 1 (NS1), and include guidance on: (i) Specifying maximum sustainable yield (MSY) and OY; (ii) Specifying status determination criteria (SDC) so that overfishing and overfished determinations can be made for stocks and stock complexes in an FMP; (iii) Preventing overfishing and achieving OY, incorporation of sci entific and management uncertainty in control rules, and adaptive manage ment using annual catch limits (ACL) and measures to ensure accountability (i.e., accountability measures (AMs)); and (iv) Rebuilding stocks and stock complexes. (2) Overview of Magnuson-Stevens Act concepts and provisions related to NS1— (i) MSY. The Magnuson-Stevens Act es tablishes MSY as the basis for fishery management and requires that: The fishing mortality rate must not jeop ardize the capacity of a stock or stock complex to produce MSY; the abun dance of an overfished stock or stock complex must be rebuilt to a level that is capable of producing MSY; and OY must not exceed MSY. (ii) OY. The determination of OY is a decisional mechanism for resolving the Magnuson-Stevens Act’s conservation and management objectives, achieving an FMP’s objectives, and balancing the various interests that comprise the greatest overall benefits to the Nation. OY is based on MSY as reduced under paragraphs (e)(3)(iii)(A) and (B) of this section. The most important limitation on the specification of OY is that the choice of OY and the conservation and management measures proposed to achieve it must prevent overfishing. (iii) ACLs and AMs. Any FMP shall establish a mechanism for specifying ACLs in the FMP (including a multiyear plan), implementing regula tions, or annual specifications, at a level such that overfishing does not occur in the fishery, including meas ures to ensure accountability (Magnu son-Stevens Act section 303(a)(15)). (iv) Reference points. SDC, MSY, OY, acceptable biological catch (ABC), and ACL, which are described further in paragraphs (e) and (f) of this section, are collectively referred to as ‘‘ref erence points.’’ (v) Scientific advice. The Magnuson Stevens Act has requirements regard ing scientific and statistical commit tees (SSC) of the Regional Fishery Management Councils, including but not limited to, the following provisions (paragraphs (b)(2)(v)(A) through (D) of this section). See the National Stand ard 2 guidelines for further guidance on SSCs and the peer review process (§ 600.315). (A) Each Regional Fishery Manage ment Council shall establish an SSC as described in section 302(g)(1)(A) of the Magnuson-Stevens Act. 39 Fishery Conservation and Management § 600.310 (B) Each SSC shall provide its Re gional Fishery Management Council recommendations for ABC as well as other scientific advice, as described in Magnuson-Stevens Act section 302(g)(1)(B). (C) The Secretary and each Regional Fishery Management Council may es tablish a peer review process for that Council for scientific information used to advise the Council about the con servation and management of a fishery (see Magnuson-Stevens Act section 302(g)(1)(E)). If a peer review process is established, it should investigate the technical merits of stock assessments and other scientific information to be used by the SSC or agency or inter national scientists, as appropriate. For Regional Fishery Management Coun cils, the peer review process is not a substitute for the SSC and both the SSC and peer review process should work in conjunction with each other. For the Secretary, which does not have an SSC, the peer review process should provide the scientific information nec essary. (D) Each Council shall develop ACLs for each of its managed fisheries that may not exceed the ‘‘fishing level rec ommendations’’ of its SSC or peer re view process (Magnuson-Stevens Act section 302(h)(6)). The SSC rec ommendation that is the most relevant to ACLs is ABC, as both ACL and ABC are levels of annual catch. (3) Approach for setting limits and ac countability measures, including targets, for consistency with NS1. When speci fying limits and accountability meas ures, Councils must take an approach that considers uncertainty in scientific information and management control of the fishery. These guidelines de scribe how the Councils could address uncertainty such that there is a low risk that limits are exceeded as de scribed in paragraphs (f)(2) and (g)(4) of this section. (4) Vulnerability. A stock’s vulner ability to fishing pressure is a com bination of its productivity, which de pends upon its life history characteris tics, and its susceptibility to the fish ery. Productivity refers to the capacity of the stock to produce MSY and to re cover if the population is depleted, and susceptibility is the potential for the stock to be impacted by the fishery, which includes direct captures, as well as indirect impacts of the fishery (e.g., loss of habitat quality). (c) Summary of items to include in FMPs related to NS1. This section pro vides a summary of items that Coun cils must include in their FMPs and FMP amendments in order to address ACL, AM, and other aspects of the NS1 guidelines. Councils must describe fish eries data for the stocks and stock complexes in their FMPs, or associated public documents such as Stock As sessment and Fishery Evaluation (SAFE) Reports. For all stocks and stock complexes that require conserva tion and management (see § 600.305(c)), the Councils must evaluate and de scribe the following items in their FMPs and amend the FMPs, if nec essary, to align their management ob jectives to end or prevent overfishing and to achieve OY: (1) MSY and SDC (see paragraphs (e)(1) and (2) of this section). (2) OY at the stock, stock complex, or fishery level and provide the OY specification analysis (see paragraph (e)(3) of this section). (3) ABC control rule (see paragraph (f)(2) of this section). (4) Mechanisms for specifying ACLs (see paragraph (f)(4) of this section). (5) AMs (see paragraph (g) of this sec tion). (6) Stocks and stock complexes that have statutory exceptions from ACLs and AMs (see paragraph (h)(1) of this section) or which fall under limited cir cumstances which require different ap proaches to meet the Magnuson-Ste vens Act requirements (see paragraph (h)(2) of this section). (d) Stocks and stock complexes— (1) Introduction. As described in § 600.305(c), Councils should identify in their FMPs the stocks that require conservation and management. Such stocks must have ACLs, other ref erence points, and accountability measures. Other stocks that are identi fied in an FMP (i.e., EC species or stocks that the fishery interacts with but are managed primarily under an other FMP, see § 600.305(c)(5) through (6)) do not require ACLs, other ref erence points, or accountability meas ures. 40 50 CFR Ch. VI (10–1–22 Edition) § 600.310 (2) Stock complex. Stocks that require conservation and management can be grouped into stock complexes. A ‘‘stock complex’’ is a tool to manage a group of stocks within a FMP. (i) At the time a stock complex is es tablished, the FMP should provide, to the extent practicable, a full and ex plicit description of the proportional composition of each stock in the stock complex. Stocks may be grouped into complexes for various reasons, includ ing where stocks in a multispecies fish ery cannot be targeted independent of one another; where there is insufficient data to measure a stock’s status rel ative to SDC; or when it is not feasible for fishermen to distinguish individual stocks among their catch. Where prac ticable, the group of stocks should have a similar geographic distribution, life history characteristics, and vulnerabilities to fishing pressure such that the impact of management ac tions on the stocks is similar. The vul nerability of individual stocks should be considered when determining if a particular stock complex should be es tablished or reorganized, or if a par ticular stock should be included in a complex. (ii) Indicator stocks. (A) An indicator stock is a stock with measurable and objective SDC that can be used to help manage and evaluate more poorly known stocks that are in a stock com plex. (B) Where practicable, stock com plexes should include one or more indi cator stocks (each of which has SDC and ACLs). Otherwise, stock complexes may be comprised of: Several stocks without an indicator stock (with SDC and an ACL for the complex as a whole), or one or more indicator stocks (each of which has SDC and manage ment objectives) with an ACL for the complex as a whole (this situation might be applicable to some salmon species). Councils should review the available quantitative or qualitative information (e.g., catch trends, changes in vulnerability, fish health indices, etc.) of stocks within a complex on a regular basis to determine if they are being sustainably managed. (C) If an indicator stock is used to evaluate the status of a complex, it should be representative of the typical vulnerability of stocks within the com plex. If the stocks within a stock com plex have a wide range of vulnerability, they should be reorganized into dif ferent stock complexes that have simi lar vulnerabilities; otherwise the indi cator stock should be chosen to rep resent the more vulnerable stocks within the complex. In instances where an indicator stock is less vulnerable than other members of the complex, management measures should be more conservative so that the more vulner able members of the complex are not at risk from the fishery. (D) More than one indicator stock can be selected to provide more infor mation about the status of the com plex. (E) When indicator stocks are used, the stock complex’s MSY could be list ed as ‘‘unknown,’’ while noting that the complex is managed on the basis of one or more indicator stocks that do have known stock-specific MSYs, or suitable proxies, as described in para graph (e)(1)(v) of this section. (e) Features of MSY, SDC, and OY— (1) MSY. Each FMP must include an esti mate of MSY for the stocks and stock complexes that require conservation and management. MSY may also be specified for the fishery as a whole. (i) Definitions. (A) MSY is the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics (e.g., gear selectivity), and the distribution of catch among fleets. (B) MSY fishing mortality rate (Fmsy) is the fishing mortality rate that, if ap plied over the long term, would result in MSY. (C) MSY stock size (Bmsy) means the long-term average size of the stock or stock complex, measured in terms of spawning biomass or other appropriate measure of the stock’s reproductive po tential that would be achieved by fish ing at Fmsy. (ii) MSY for stocks. MSY should be es timated for each stock based on the best scientific information available (see § 600.315). (iii) MSY for stock complexes. When stock complexes are used, MSY should be estimated for one or more indicator 41 Fishery Conservation and Management § 600.310 stocks or for the complex as a whole (see paragraph (d)(2)(ii)). (iv) Methods of estimating MSY for an aggregate group of stocks. Estimating MSY for an aggregate group of stocks (including stock complexes and the fishery as a whole) can be done using models that account for multi-species interactions, composite properties for a group of similar species, biomass (en ergy) flow and production patterns, or other relevant factors (see paragraph (e)(3)(iv)(C) of this section). (v) Specifying MSY. (A) Because MSY is a long-term average, it need not be estimated annually, but it must be based on the best scientific informa tion available (see § 600.315), and should be re-estimated as required by changes in long-term environmental or ecologi cal conditions, fishery technological characteristics, or new scientific infor mation. (B) When data are insufficient to es timate MSY directly, Councils should adopt other measures of reproductive potential that can serve as reasonable proxies for MSY, Fmsy, and Bmsy. (C) The MSY for a stock or stock complex is influenced by its inter actions with other stocks in its eco system and these interactions may shift as multiple stocks in an eco system are fished. Ecological and envi ronmental information should be taken into account, to the extent practicable, when assessing stocks and specifying MSY. Ecological and environmental in formation that is not directly ac counted for in the specification of MSY can be among the ecological factors considered when setting OY below MSY. (D) As MSY values are estimates or are based on proxies, they will have some level of uncertainty associated with them. The degree of uncertainty in the estimates should be identified, when practicable, through the stock assessment process and peer review (see § 600.335), and should be taken into ac count when specifying the ABC Control rule (see paragraph (f)(2) of this sec tion). (2) Status determination criteria—(i) Definitions. (A) Status determination cri teria (SDC) mean the measurable and objective factors, MFMT, OFL, and MSST, or their proxies, that are used to determine if overfishing has oc curred, or if the stock or stock complex is overfished. Magnuson-Stevens Act (section 3(34)) defines both ‘‘over fishing’’ and ‘‘overfished’’ to mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the MSY on a continuing basis. To avoid confusion, this section clarifies that ‘‘overfished’’ relates to biomass of a stock or stock complex, and ‘‘overfishing’’ pertains to a rate or level of removal of fish from a stock or stock complex. (B) Overfishing occurs whenever a stock or stock complex is subjected to a level of fishing mortality or total catch that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis. (C) Maximum fishing mortality thresh old (MFMT) means the level of fishing mortality (i.e. F), on an annual basis, above which overfishing is occurring. The MFMT or reasonable proxy may be expressed either as a single number (a fishing mortality rate or F value), or as a function of spawning biomass or other measure of reproductive poten tial. (D) Overfishing limit (OFL) means the annual amount of catch that cor responds to the estimate of MFMT ap plied to a stock or stock complex’s abundance and is expressed in terms of numbers or weight of fish. (E) Overfished. A stock or stock com plex is considered ‘‘overfished’’ when its biomass has declined below MSST. (F) Minimum stock size threshold (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. (G) Approaching an overfished condi tion. A stock or stock complex is ap proaching an overfished condition when it is projected that there is more than a 50 percent chance that the bio mass of the stock or stock complex will decline below the MSST within two years. (ii) Specification of SDC and over fishing and overfished determinations. Each FMP must describe how objective and measurable SDCs will be specified, as described in paragraphs (e)(2)(ii)(A) 42 50 CFR Ch. VI (10–1–22 Edition) § 600.310 and (B) of this section. To be measur able and objective, SDC must be ex pressed in a way that enables the Coun cil to monitor the status of each stock or stock complex in the FMP. Applying the SDC set forth in the FMP, the Sec retary determines if overfishing is oc curring and whether the stock or stock complex is overfished (Magnuson-Ste vens Act section 304(e)). SDCs are often based on fishing rates or biomass levels associated with MSY or MSY based proxies. When data are not available to specify SDCs based on MSY or MSY proxies, alternative types of SDCs that promote sustainability of the stock or stock complex can be used. For exam ple, SDC could be based on recent aver age catch, fish densities derived from visual census surveys, length/weight frequencies, or other methods. In speci fying SDC, a Council must provide an analysis of how the SDC were chosen and how they relate to reproductive po tential of stocks of fish within the fish ery. If alternative types of SDCs are used, the Council should explain how the approach will promote sustain ability of the stock or stock complex on a long term basis. A Council should consider a process that allows SDCs to be quickly updated to reflect the best scientific information available. In the case of internationally-managed stocks, the Council may decide to use the SDCs defined by the relevant inter national body. In this instance, the SDCs should allow the Council to mon itor the status of a stock or stock com plex, recognizing that the SDCs may not be defined in such a way that a Council could monitor the MFMT, OFL, or MSST as would be done with a domestically managed stock or stock complex. (A) SDC to Determine Overfishing Sta tus. Each FMP must specify a method used to determine the overfishing sta tus for each stock or stock complex. For domestically-managed stocks or stock complexes, one of the following methods (described in (e)(2)(ii)(A)(1) and (2) of this section) should be speci fied. If the necessary data to use one of the methods described in either sub paragraph (e)(2)(ii)(A)(1) or (2) is not available, a Council may use an alter nate type of overfishing SDC as de scribed in paragraph (e)(2)(ii). (1) Fishing Mortality Rate Exceeds MFMT. Exceeding the MFMT for a pe riod of 1 year constitutes overfishing. (2) Catch Exceeds the OFL. Exceeding the annual OFL for 1 year constitutes overfishing. (3) Multi-Year Approach to Determine Overfishing Status. Subparagraphs (e)(2)(ii)(A) (1) and (2) establish meth ods to determine overfishing status based on a period of 1 year. As stated in paragraph (e)(2)(ii)(A), a Council should specify, within the FMP, which of these methods will be used to deter mine overfishing status. However, in certain circumstances, a Council may utilize a multi-year approach to deter mine overfishing status based on a pe riod of no more than 3 years. The Coun cil should identify in its FMP or FMP amendment, circumstances when the 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 cir cumstances where the most recent catch or F data does not reflect the overall status of the stock. The multi year approach to determine overfishing status may not be used to specify fu ture annual catch limits at levels that do not prevent overfishing. (B) SDC to determine overfished status. The MSST or reasonable proxy must be expressed in terms of spawning biomass or other measure of reproductive po tential. MSST should be between 1⁄2 Bmsy and Bmsy, and could be informed by the life history of the stock, the nat ural fluctuations in biomass associated with fishing at MFMT over the long term, the requirements of internation ally-managed stocks, or other consid erations. (C) Where practicable, all sources of mortality including that resulting from bycatch, scientific research catch, and all fishing activities should be accounted for in the evaluation of stock status with respect to reference points. (iii) Relationship of SDC to environ mental and habitat change. Some short term environmental changes can alter the size of a stock or stock complex 43 Fishery Conservation and Management § 600.310 without affecting its long-term repro ductive potential. Long-term environ mental changes may affect both the short-term size of the stock or stock complex and the long-term reproduc tive potential of the stock or stock complex. (A) If environmental changes cause a stock or stock complex to fall below its MSST without affecting its long-term reproductive potential, fishing mor tality must be constrained sufficiently to allow rebuilding within an accept able time frame (see also paragraph (j)(3)(i) of this section). SDC should not be respecified. (B) If environmental, ecosystem, or habitat changes affect the long-term reproductive potential of the stock or stock complex, one or more compo nents of the SDC must be respecified. Once SDC have been respecified, fish ing mortality may or may not have to be reduced, depending on the status of the stock or stock complex with re spect to the new criteria. (C) If manmade environmental changes are partially responsible for a stock or stock complex’s biomass being below MSST, in addition to controlling fishing mortality, Councils should rec ommend restoration of habitat and other ameliorative programs, to the ex tent possible (see also the guidelines issued pursuant to section 305(b) of the Magnuson-Stevens Act for Council ac tions concerning essential fish habi tat). (iv) Secretarial approval of SDC. Secre tarial approval or disapproval of pro posed SDC will be based on consider ation of whether the proposal: (A) Is based on the best scientific in formation available; (B) Contains the elements described in paragraph (e)(2)(ii) of this section; (C) Provides a basis for objective measurement of the status of the stock or stock complex against the criteria; and (D) Is operationally feasible. (3) Optimum yield. For stocks that re quire conservation and management, OY may be established at the stock, stock complex, or fishery level. (i) Definitions— (A) Optimum yield (OY). Magnuson-Stevens Act section (3)(33) defines ‘‘optimum,’’ with respect to the yield from a fishery, as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food pro duction and recreational opportunities and taking into account the protection of marine ecosystems; that is pre scribed on the basis of the MSY from the fishery, as reduced by any relevant economic, social, or ecological factor; and, in the case of an overfished fish ery, that provides for rebuilding to a level consistent with producing the MSY in such fishery. (B) In NS1, use of the phrase ‘‘achieving, on a continuing basis, the OY from each fishery’’ means: pro ducing, from each stock, stock com plex, or fishery, an amount of catch that is, on average, equal to the Coun cil’s specified OY; prevents overfishing; maintains the long term average bio mass near or above Bmsy; and rebuilds overfished stocks and stock complexes consistent with timing and other re quirements of section 304(e)(4) of the Magnuson-Stevens Act and paragraph (j) of this section. (ii) General. OY is a long-term aver age amount of desired yield from a stock, stock complex, or fishery. An FMP must contain conservation and management measures, including ACLs and AMs, to achieve OY on a con tinuing basis, and provisions for infor mation collection that are designed to determine the degree to which OY is achieved. These measures should allow for practical and effective implementa tion and enforcement of the manage ment regime. If these measures cannot meet the dual requirements of NS1 (preventing overfishing while achiev ing, on a continuing basis, OY), Coun cils should either modify the measures or reexamine their OY specifications to ensure that the dual NS1 requirements can be met. (iii) Assessing OY. An FMP must con tain an assessment and specification of OY (MSA section 303(a)(3)). The assess ment should include: a summary of in formation utilized in making such specification; an explanation of how the OY specification will produce the greatest benefits to the nation and pre vent overfishing and rebuild overfished stocks; and a consideration of the eco nomic, social, and ecological factors 44 50 CFR Ch. VI (10–1–22 Edition) § 600.310 relevant to the management of a par ticular stock, stock complex, or fish ery. Consistent with Magnuson-Stevens Act section 302(h)(5), the assessment and specification of OY should be re viewed on a continuing basis, so that it is responsive to changing cir cumstances in the fishery. (A) Determining the greatest benefit to the Nation. In determining the greatest benefit to the Nation, the values that should be weighed and receive serious attention when considering the eco nomic, social, or ecological factors used in reducing MSY, or its proxy, to obtain OY are: (1) The benefits of food production derived from providing seafood to con sumers; maintaining an economically viable fishery together with its attend ant contributions to the national, re gional, and local economies; and uti lizing the capacity of the Nation’s fish ery resources to meet nutritional needs. (2) The benefits of recreational op portunities reflect the quality of both the recreational fishing experience and non-consumptive fishery uses such as ecotourism, fish watching, and rec reational diving. Benefits also include the contribution of recreational fishing to the national, regional, and local economies and food supplies. (3) The benefits of protection af forded to marine ecosystems are those resulting from maintaining viable pop ulations (including those of unexploited species), maintaining ade quate forage for all components of the ecosystem, maintaining evolutionary and ecological processes (e.g., disturb ance regimes, hydrological processes, nutrient cycles), maintaining produc tive habitat, maintaining the evolu tionary potential of species and eco systems, and accommodating human use. (B) Economic, Ecological, and Social Factors. Councils should consider the management objectives of their FMPs and their management framework to determine the relevant social, eco nomic, and ecological factors used to determine OY. There will be inherent trade-offs when determining the objec tives of the fishery. The following is a non-exhaustive list of potential consid erations for social, economic, and eco logical factors. (1) Social factors. Examples are enjoy ment gained from recreational fishing, avoidance of gear conflicts and result ing disputes, preservation of a way of life for fishermen and their families, and dependence of local communities on a fishery (e.g., involvement in fish eries and ability to adapt to change). Consideration may be given to fishery related indicators (e.g., number of fish ery permits, number of commercial fishing vessels, number of party and charter trips, landings, ex-vessel reve nues etc.) and non-fishery related indi cators (e.g., unemployment rates, per cent of population below the poverty level, population density, etc.), and preference for a particular type of fish ery (e.g., size of the fishing fleet, type of vessels in the fleet, permissible gear types). Other factors that may be con sidered include the effects that past harvest levels have had on fishing com munities, the cultural place of subsist ence fishing, obligations under tribal treaties, proportions of affected minor ity and low-income groups, and world wide nutritional needs. (2) Economic factors. Examples are prudent consideration of the risk of overharvesting when a stock’s size or reproductive potential is uncertain (see § 600.335(c)(2)(i)), satisfaction of con sumer and recreational needs, and en couragement of domestic and export markets for U.S. harvested fish. Other factors that may be considered include: The value of fisheries, the level of cap italization, the decrease in cost per unit of catch afforded by an increase in stock size, the attendant increase in catch per unit of effort, alternate em ployment opportunities, and economic contribution to fishing communities, coastal areas, affected states, and the nation. (3) Ecological factors. Examples in clude impacts on EC species, forage fish stocks, other fisheries, predator prey or competitive interactions, ma rine mammals, threatened or endan gered species, and birds. Species inter actions that have not been explicitly taken into account when calculating MSY should be considered as relevant factors for setting OY below MSY. In addition, consideration should be given 45 Fishery Conservation and Management § 600.310 to managing forage stocks for higher biomass than Bmsy to enhance and pro tect the marine ecosystem. Also impor tant are ecological or environmental conditions that stress marine orga nisms or their habitat, such as natural and manmade changes in wetlands or nursery grounds, and effects of pollut ants on habitat and stocks. (iv) Specifying OY. If the estimates of MFMT and current biomass are known with a high level of certainty and man agement controls can accurately limit catch, then OY could be set very close to MSY, assuming no other reductions are necessary for social, economic, or ecological factors. To the degree that such MSY estimates and management controls are lacking or unavailable, OY should be set farther from MSY. (A) The OY can be expressed in terms of numbers or weight of fish, and either as a single value or a range. When it is not possible to specify OY quan titatively, OY may be described quali tatively. (B) The determination of OY is based on MSY, directly or through proxy. However, even where sufficient sci entific data as to the biological charac teristics of the stock do not exist, or where the period of exploitation or in vestigation has not been long enough for adequate understanding of stock dynamics, or where frequent large scale fluctuations in stock size dimin ish the meaningfulness of the MSY concept, OY must still be established based on the best scientific informa tion available. (C) An OY established at a fishery level may not exceed the sum of the MSY values for each of the stocks or stocks complexes within the fishery. Aggregate level MSY estimates could be used as a basis for specifying OY for the fishery (see paragraph (e)(1)(iv) of this section). When aggregate level MSY is estimated, single stock MSY estimates can also be used to inform single stock management. For exam ple, OY could be specified for a fishery, while other reference points are speci fied for individual stocks in order to prevent overfishing on each stock with in the fishery. (D) For internationally-managed stocks, fishing levels that are agreed upon by the U.S. at the international level are considered to be consistent with OY requirements under the MSA and these guidelines. (v) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens Act provides that fishing by foreign nations is limited to that portion of the OY that will not be harvested by vessels of the United States. The FMP must in clude an assessment to address the fol lowing, as required by section 303(a)(4) of the Magnuson-Stevens Act: (A) The OY specification is the basis for establishing any total allowable level of foreign fishing (TALFF). (B) Part of the OY may be held as a reserve to allow for domestic annual harvest (DAH). If an OY reserve is es tablished, an adequate mechanism should be included in the FMP to per mit timely release of the reserve to do mestic or foreign fishermen, if nec essary. (C) DAH. Councils and/or the Sec retary must consider the capacity of, and the extent to which, U.S. vessels will harvest the OY on an annual basis. Estimating the amount that U.S. fish ing vessels will actually harvest is re quired to determine the surplus. (D) Domestic annual processing (DAP). Each FMP must assess the capacity of U.S. processors. It must also assess the amount of DAP, which is the sum of two estimates: The estimated amount of U.S. harvest that domestic proc essors will process, which may be based on historical performance or on sur veys of the expressed intention of man ufacturers to process, supported by evi dence of contracts, plant expansion, or other relevant information; and the es timated amount of fish that will be harvested by domestic vessels, but not processed (e.g., marketed as fresh whole fish, used for private consump tion, or used for bait). (E) Joint venture processing (JVP). When DAH exceeds DAP, the surplus is available for JVP. (f) Acceptable biological catch and an nual catch limits—(1) Definitions.— (i) Catch is the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries. Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded. 46 50 CFR Ch. VI (10–1–22 Edition) § 600.310 (ii) Acceptable biological catch (ABC) is a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of OFL, any other scientific uncer tainty, and the Council’s risk policy. (iii) Annual catch limit (ACL) is a limit on the total annual catch of a stock or stock complex, which cannot exceed the ABC, that serves as the basis for invoking AMs. An ACL may be divided into sector-ACLs (see para graph (f)(4) of this section). (iv) Control rule is a policy for estab lishing a limit or target catch level that is based on the best scientific in formation available and is established by the Council in consultation with its SSC. (v) Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could in clude: Late catch reporting; misreporting; underreporting of catches; lack of sufficient inseason management, including inseason clo sure authority; or other factors. (vi) Scientific uncertainty refers to un certainty in the information about a stock and its reference points. Sources of scientific uncertainty could include: Uncertainty in stock assessment re sults; uncertainty in the estimates of MFMT, MSST, the biomass of the stock, and OFL; time lags in updating assessments; the degree of retrospec tive revision of assessment results; un certainty in projections; uncertainties due to the choice of assessment model; longer-term uncertainties due to po tential ecosystem and environmental effects; or other factors. (2) ABC control rule.— (i) For stocks and stock complexes required to have an ABC, each Council must establish an ABC control rule that accounts for scientific uncertainty in the OFL and for the Council’s risk policy, and that is based on a comprehensive analysis that shows how the control rule pre vents overfishing. The Council’s risk policy could be based on an acceptable probability (at least 50 percent) that catch equal to the stock’s ABC will not result in overfishing, but other appro priate methods can be used. When de termining the risk policy, Councils could consider the economic, social, and ecological trade-offs between being more or less risk averse. The Council’s choice of a risk policy cannot result in an ABC that exceeds the OFL. The process of establishing an ABC control rule may involve science advisors or the peer review process established under Magnuson-Stevens Act section 302(g)(1)(E). (ii) The ABC control rule must ar ticulate how ABC will be set compared to the OFL based on the scientific knowledge about the stock or stock complex and taking into account sci entific uncertainty (see paragraph (f)(1)(vi) of this section). The ABC con trol rule should consider reducing fish ing mortality as stock size declines below Bmsy and as scientific uncer tainty increases, and may establish a stock abundance level below which fishing would not be allowed. When sci entific uncertainty cannot be directly calculated, such as when proxies are used, then a proxy for the uncertainty should be established based on the best scientific information, including com parison to other stocks. The control rule may be used in a tiered approach to address different levels of scientific uncertainty. Councils can develop ABC control rules that allow for changes in catch limits to be phased-in over time or to account for the carry-over of some of the unused portion of the ACL from one year to the next. The Council must articulate within its FMP when the phase-in and/or carry-over provi sions of the control rule can and can not be used and how each provision prevents overfishing, based on a com prehensive analysis. (A) Phase-in ABC control rules. Large changes in catch limits due to new sci entific information about the status of the stock can have negative short-term effects on a fishing industry. To help stabilize catch levels as stock assess ments are updated, a Council may choose to develop a control rule that phases in changes to ABC over a period of time, not to exceed 3 years, as long as overfishing is prevented each year (i.e., the phased-in catch level cannot 47 Fishery Conservation and Management § 600.310 exceed the OFL in any year). In addi tion, the Councils should evaluate the appropriateness of phase-in provisions for stocks that are overfished and/or rebuilding, as the overriding goal for such stocks is to rebuild them in as short a time as possible. (B) Carry-over ABC control rules. An ABC control rule may include provi sions for the carry-over of some of the unused portion of an ACL (i.e., an ACL underage) from one year to increase the ABC for the next year, based on the increased stock abundance resulting from the fishery harvesting less than the full ACL. The resulting ABC rec ommended by the SSC must prevent overfishing and must consider sci entific uncertainty consistent with the Council’s risk policy. Carry-over provi sions could also allow an ACL to be ad justed upwards as long as the revised ACL does not exceed the specified ABC. When considering whether to use a carry-over provision, Councils should consider the likely reason for the ACL underage. ACL underages that result from management uncertainty (e.g., premature fishery closure) may be ap propriate circumstances for consid ering a carry-over provision. ACL underages that occur as a result of poor or unknown stock status may not be appropriate to consider in a carry over provision. In addition, the Coun cils should evaluate the appropriate ness of carry-over provisions for stocks that are overfished and/or rebuilding, as the overriding goal for such stocks is to rebuild them in as short a time as possible. (3) Specification of ABC. ABC may not exceed OFL (see paragraph (e)(2)(i)(D) of this section). Councils and their SSC should develop a process by which the SSC can access the best scientific in formation available when imple menting the ABC control rule (i.e., specifying the ABC). The SSC must recommend the ABC to the Council. An SSC may recommend an ABC that dif fers from the result of the ABC control rule calculation, based on factors such as data uncertainty, recruitment varia bility, declining trends in population variables, and other factors, but must provide an explanation for the devi ation. For Secretarial FMPs or amend ments, agency scientists or a peer re view process would provide the sci entific advice to establish ABC. For internationally-assessed stocks, an ABC as defined in these guidelines is not required if stocks fall under the international exception (see paragraph (h)(1)(ii) of this section). While the ABC is allowed to equal OFL, NMFS expects that in most cases ABC will be reduced from OFL to reduce the prob ability that overfishing might occur. (i) Expression of ABC. ABC should be expressed in terms of catch, but may be expressed in terms of landings as long as estimates of bycatch and any other fishing mortality not accounted for in the landings are incorporated into the determination of ABC. (ii) ABC for overfished stocks. For overfished stocks and stock complexes, a rebuilding ABC must be set to reflect the annual catch that is consistent with the schedule of fishing mortality rates (i.e., Frebuild) in the rebuilding plan. (4) Setting the annual catch limit— (i) General. ACL cannot exceed the ABC and may be set annually or on a multiyear plan basis. ACLs in coordi nation with AMs must prevent over fishing (see MSA section 303(a)(15)). If an Annual Catch Target (ACT), or functional equivalent, is not used, management uncertainty should be ac counted for in the ACL. If a Council recommends an ACL which equals ABC, and the ABC is equal to OFL, the Secretary may presume that the pro posal would not prevent overfishing, in the absence of sufficient analysis and justification for the approach. A ‘‘multiyear plan’’ as referenced in sec tion 303(a)(15) of the Magnuson-Stevens Act is a plan that establishes harvest specifications or harvest guidelines for each year of a time period greater than 1 year. A multiyear plan must include a mechanism for specifying ACLs for each year with appropriate AMs to pre vent overfishing and maintain an ap propriate rate of rebuilding if the stock or stock complex is in a rebuilding plan. A multiyear plan must provide that, if an ACL is exceeded for a year, then AMs are implemented for the next year consistent with paragraph (g)(3) of this section. (ii) Sector-ACLs. A Council may, but is not required to, divide an ACL into 48 50 CFR Ch. VI (10–1–22 Edition) § 600.310 sector-ACLs. If sector-ACLs are used, sector-AMs should also be specified. ‘‘Sector,’’ for purposes of this section, means a distinct user group to which separate management strategies and separate catch quotas apply. Examples of sectors include the commercial sec tor, recreational sector, or various gear groups within a fishery. If the manage ment measures for different sectors dif fer in the degree of management uncer tainty, then sector-ACLs may be nec essary so that appropriate AMs can be developed for each sector. If a Council chooses to use sector-ACLs, the sum of sector-ACLs must not exceed the stock or stock complex level ACL. The sys tem of ACLs and AMs designed must be effective in protecting the stock or stock complex as a whole. Even if sec tor-ACLs and sector-AMs are estab lished, additional AMs at the stock or stock complex level may be necessary. (iii) ACLs for State-Federal Fisheries. For stocks or stock complexes that have harvest in state or territorial waters, FMPs and FMP amendments should include an ACL for the overall stock that may be further divided. For example, the overall ACL could be di vided into a Federal-ACL and state ACL. However, NMFS recognizes that Federal management is limited to the portion of the fishery under Federal authority. See 16 U.S.C. 1856. When stocks are co-managed by Federal, state, tribal, and/or territorial fishery managers, the goal should be to de velop collaborative conservation and management strategies, and scientific capacity to support such strategies (in cluding AMs for state or territorial and Federal waters), to prevent overfishing of shared stocks and ensure their sus tainability. (iv) Relationship between OY and the ACL framework. The dual goals of NS1 are to prevent overfishing and achieve OY on a continuing basis. The ABC is an upper limit on catch that prevents overfishing within an established framework of risk and other consider ations. As described in paragraph (e)(3) of this section, ecological, economic, and social factors, as well as values as sociated with determining the greatest benefit to the Nation, are important considerations in specifying OY. These types of considerations can also be con sidered in the ACL framework. For ex ample, an ACL (or ACT) could be set lower than the ABC to account for eco logical, economic, and social factors (e.g., needs of forage fish, promoting stability, addressing market condi tions, etc.). Additionally, economic, so cial, or ecological trade-offs could be evaluated when determining the risk policy for an ABC control rule (see paragraph (f)(2) of this section). While OY is a long-term average amount of desired yield, there is, for each year, an amount of fish that is consistent with achieving the long-term OY. A Council can choose to express OY on an annual basis, in which case the FMP or FMP amendment should indicate that the OY is an ‘‘annual OY.’’ An annual OY cannot exceed the ACL. (g) Accountability measures (AMs)—(1) Introduction. AMs are management con trols to prevent ACLs, including sec tor-ACLs, from being exceeded, and to correct or mitigate overages of the ACL if they occur. AMs should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible. NMFS identi fies two categories of AMs, inseason AMs and AMs for when the ACL is ex ceeded. The FMP should identify what sources of data will be used to imple ment AMs (e.g., inseason data, annual catch compared to the ACL, or multi year averaging approach). (2) Inseason AMs. Whenever possible, FMPs should include inseason moni toring and management measures to prevent catch from exceeding ACLs. Inseason AMs could include, but are not limited to: An annual catch target (see paragraph (g)(4) of this section); closure of a fishery; closure of specific areas; changes in gear; changes in trip size or bag limits; reductions in effort; or other appropriate management con trols for the fishery. If final data or data components of catch are delayed, Councils should make appropriate use of preliminary data, such as landed catch, in implementing inseason AMs. FMPs should contain inseason closure authority giving NMFS the ability to close fisheries if it determines, based on data that it deems sufficiently reli able, that an ACL has been exceeded or 49 Fishery Conservation and Management § 600.310 is projected to be reached, and that clo sure of the fishery is necessary to pre vent overfishing. For fisheries without inseason management control to pre vent the ACL from being exceeded, AMs should utilize ACTs that are set below ACLs so that catches do not ex ceed the ACL. (3) AMs for when the ACL is exceeded. On an annual basis, the Council must determine as soon as possible after the fishing year if an ACL was exceeded. If an ACL was exceeded, AMs must be im plemented as soon as possible to cor rect the operational issue that caused the ACL overage, as well as any bio logical consequences to the stock or stock complex resulting from the over age when it is known. These AMs could include, among other things, modifica tions of inseason AMs, the use or modi fication of ACTs, or overage adjust ments. The type of AM chosen by a Council will likely vary depending on the sector of the fishery, status of the stock, the degree of the overage, re cruitment patterns of the stock, or other pertinent information. If an ACL is set equal to zero and the AM for the fishery is a closure that prohibits fish ing for a stock, additional AMs are not required if only small amounts of catch (including bycatch) occur, and the catch is unlikely to result in over fishing. For stocks and stock com plexes in rebuilding plans, the AMs should include overage adjustments that reduce the ACLs in the next fish ing year by the full amount of the overage, unless the best scientific in formation available shows that a re duced overage adjustment, or no ad justment, is needed to mitigate the ef fects of the overage. (4) Annual Catch Target (ACT) and ACT control rule. ACTs, or the func tional equivalent, are recommended in the system of AMs so that ACL is not exceeded. An ACT is an amount of an nual catch of a stock or stock complex that is the management target of the fishery, and accounts for management uncertainty in controlling the catch at or below the ACL. ACT control rules can be used to articulate how manage ment uncertainty is accounted for in setting the ACT. ACT control rules can be developed by the Council, in coordi nation with the SSC, to help the Coun cil account for management uncer tainty. (5) AMs based on multi-year average data. Some fisheries have highly vari able annual catches and lack reliable inseason or annual data on which to base AMs. If there are insufficient data upon which to compare catch to ACL, AMs could be based on comparisons of average catch to average ACL over a three-year moving average period or, if supported by analysis, some other ap propriate multi-year period. Councils should explain why basing AMs on a multi-year period is appropriate. Eval uation of the moving average catch to the average ACL must be conducted annually, and if the average catch ex ceeds the average ACL, appropriate AMs should be implemented consistent with paragraph (g)(3) of this section. (6) AMs for State-Federal Fisheries. For stocks or stock complexes that have harvest in state or territorial waters, FMPs and FMP amendments must, at a minimum, have AMs for the portion of the fishery under Federal authority. Such AMs could include closing the EEZ when the Federal portion of the ACL is reached, or the overall stock’s ACL is reached, or other measures. (7) Performance Standard. If catch ex ceeds the ACL for a given stock or stock complex more than once in the last four years, the system of ACLs and AMs should be reevaluated, and modi fied if necessary, to improve its per formance and effectiveness. If AMs are based on multi-year average data, the performance standard is based on a comparison of the average catch to the average ACL. A Council could choose a higher performance standard (e.g., a stock’s catch should not exceed its ACL more often than once every five or six years) for a stock that is particu larly vulnerable to the effects of over fishing, if the vulnerability of the stock has not already been accounted for in the ABC control rule. (h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP amend ments must establish ACL mechanisms and AMs for all stocks and stock com plexes that require conservation and management (see § 600.305(c)), unless paragraph (h)(1) of this section is appli cable. These mechanisms should de scribe the annual or multiyear process 50 50 CFR Ch. VI (10–1–22 Edition) § 600.310 by which ACLs, AMs, and other ref erence points such as OFL and ABC will be established. (1) Exceptions from ACL and AM re quirements—(i) Life cycle. Section 303(a)(15) of the Magnuson-Stevens Act ‘‘shall not apply to a fishery for species that have a life cycle of approximately 1 year unless the Secretary has deter mined the fishery is subject to over fishing of that species’’ (Pub. L. 109–479 104(b)(2)). This exception applies to a stock for which the average age of spawners in the population is approxi mately 1 year or less. While exempt from the ACL and AM requirements, FMPs or FMP amendments for these stocks must have SDC, MSY, OY, ABC, and an ABC control rule. (ii) International fishery agreements. Section 303(a)(15) of the Magnuson-Ste vens Act applies ‘‘unless otherwise pro vided for under an international agree ment in which the United States par ticipates’’ (Pub. L. 109–479 104(b)(1)). This exception applies to stocks or stock complexes subject to manage ment under an international agree ment, which is defined as ‘‘any bilat eral or multilateral treaty, convention, or agreement which relates to fishing and to which the United States is a party’’ (see Magnuson-Stevens Act sec tion 3(24)). These stocks would still need to have SDC, MSY, and OY. (2) Flexibility in application of NS1 guidelines. There are limited cir cumstances that may not fit the stand ard approaches to specification of ref erence points and management meas ures set forth in these guidelines. These include, among other things, conservation and management of En dangered Species Act listed species, harvests from aquaculture operations, stocks with unusual life history char acteristics (e.g., Pacific salmon, where the spawning potential for a stock is spread over a multi-year period), and stocks for which data are not available either to set reference points based on MSY or MSY proxies, or to manage to reference points based on MSY or MSY proxies. In these circumstances, Coun cils may propose alternative ap proaches for satisfying requirements of the Magnuson-Stevens Act other than those set forth in these guidelines. Councils must document their ration ale for any alternative approaches in an FMP or FMP amendment, which will be reviewed for consistency with the Magnuson-Stevens Act. (i) Fisheries data. In their FMPs, or associated public documents such as SAFE reports as appropriate, Councils must describe general data collection methods, as well as any specific data collection methods used for all stocks and stock complexes in their FMPs, in cluding: (1) Sources of fishing mortality (both landed and discarded), including com mercial and recreational catch and by catch in other fisheries; (2) Description of the data collection and estimation methods used to quan tify total catch mortality in each fish ery, including information on the man agement tools used (e.g., logbooks, ves sel monitoring systems, observer pro grams, landings reports, fish tickets, processor reports, dealer reports, rec reational angler surveys, or other methods); the frequency with which data are collected and updated; and the scope of sampling coverage for each fishery; and (3) Description of the methods used to compile catch data from various catch data collection methods and how those data are used to determine the relationship between total catch at a given point in time and the ACL for stocks and stock complexes that re quire conservation and management. (j) Council actions to address over fishing and rebuilding for stocks and stock complexes— (1) Notification. The Secretary will immediately notify in writing a Re gional Fishery Management Council whenever the Secretary determines that: (i) Overfishing is occurring; (ii) A stock or stock complex is over fished; (iii) A stock or stock complex is ap proaching an overfished condition; or (iv) Existing remedial action taken for the purpose of ending previously identified overfishing or rebuilding a previously identified overfished stock or stock complex has not resulted in adequate progress (see MSA section 304(e)). (2) Timing of actions—(i) If a stock or stock complex is undergoing overfishing. 51 Fishery Conservation and Management § 600.310 Upon notification that a stock or stock complex is undergoing overfishing, a Council should immediately begin working with its SSC (or agency sci entists or peer review processes in the case of Secretarially-managed fish eries) to ensure that the ABC is set ap propriately to end overfishing. Coun cils should evaluate the cause of over fishing, address the issue that caused overfishing, and reevaluate their ACLs and AMs to make sure they are ade quate. (ii) If a stock or stock complex is over fished or approaching an overfished con dition. Upon notification that a stock or stock complex is overfished or ap proaching an overfished condition, a Council must prepare and implement an FMP, FMP amendment, or proposed regulations within two years of notifi cation, consistent with the require ments of section 304(e)(3) of the Magnu son-Stevens Act. Council actions should be submitted to NMFS within 15 months of notification to ensure suffi cient time for the Secretary to imple ment the measures, if approved. (3) Overfished fishery.—(i) Where a stock or stock complex is overfished, a Council must specify a time period for rebuilding the stock or stock complex based on factors specified in Magnuson Stevens Act section 304(e)(4). This tar get time for rebuilding (Ttarget) shall be as short as possible, taking into ac count: The status and biology of any overfished stock, the needs of fishing communities, recommendations by international organizations in which the U.S. participates, and interaction of the stock within the marine eco system. In addition, the time period shall not exceed 10 years, except where biology of the stock, other environ mental conditions, or management measures under an international agree ment to which the U.S. participates, dictate otherwise. SSCs (or agency sci entists or peer review processes in the case of Secretarial actions) shall pro vide recommendations for achieving re building targets (see Magnuson-Stevens Act section 302(g)(1)(B)). The above fac tors enter into the specification of Ttarget as follows: (A) The minimum time for rebuilding a stock (Tmin). Tmin means the amount of time the stock or stock complex is ex pected to take to rebuild to its MSY biomass level in the absence of any fishing mortality. In this context, the term ‘‘expected’’ means to have at least a 50 percent probability of attain ing the Bmsy, where such probabilities can be calculated. The starting year for the Tmin calculation should be the first year that the rebuilding plan is ex pected to be implemented. (B) The maximum time for rebuilding a stock or stock complex to its Bmsy (Tmax). (1) If Tmin for the stock or stock com plex is 10 years or less, then Tmax is 10 years. (2) If Tmin for the stock or stock com plex exceeds 10 years, then one of the following methods can be used to deter mine Tmax: (i) Tmin plus the length of time associ ated with one generation time for that stock or stock complex. ‘‘Generation time’’ is the average length of time be tween when an individual is born and the birth of its offspring, (ii) The amount of time the stock or stock complex is expected to take to rebuild to Bmsy if fished at 75 percent of MFMT, or (iii) Tmin multiplied by two. (3) In situations where Tmin exceeds 10 years, Tmax establishes a maximum time for rebuilding that is linked to the biology of the stock. When select ing a method for determining Tmax, a Council, in consultation with its SSC, should consider the relevant biological data and scientific uncertainty of that data, and must provide a rationale for its decision based on the best scientific information available. One of the methods listed in subparagraphs (j)(3)(i)(B)(2)(ii) and (iii) may be appro priate, for example, if given data avail ability and the life history characteris tics of the stock, there is high uncer tainty in the estimate of generation time, or if generation time does not ac curately reflect the productivity of the stock. (C) Target time to rebuilding a stock or stock complex (Ttarget). Ttarget is the speci fied time period for rebuilding a stock that is considered to be as short a time as possible, taking into account the factors described in paragraph (j)(3)(i) of this section. Ttarget shall not exceed 52 50 CFR Ch. VI (10–1–22 Edition) § 600.310 Tmax, and the fishing mortality associ ated with achieving Ttarget is referred to as Frebuild. (ii) Council action addressing an overfished fishery must allocate both overfishing restrictions and recovery benefits fairly and equitably among sectors of the fishery. (iii) For fisheries managed under an international agreement, Council ac tion addressing an overfished fishery must reflect traditional participation in the fishery, relative to other na tions, by fishermen of the United States. (iv) Adequate Progress. The Secretary shall review rebuilding plans at routine intervals that may not exceed two years to determine whether the plans have resulted in adequate progress to ward ending overfishing and rebuilding affected fish stocks (MSA section 304(e)(7)). Such reviews could include the review of recent stock assessments, comparisons of catches to the ACL, or other appropriate performance meas ures. The Secretary may find that ade quate progress is not being made if Frebuild or the ACL associated with Frebuild is exceeded, and AMs are not cor recting the operational issue that caused the overage, nor addressing any biological consequences to the stock or stock complex resulting from the over age when it is known (see paragraph (g)(3) of this section). A lack of ade quate progress may also be found when the rebuilding expectations of a stock or stock complex are significantly changed due to new and unexpected in formation about the status of the stock. If a determination is made under this provision, the Secretary will no tify the appropriate Council and rec ommend further conservation and man agement measures, and the Council must develop and implement a new or revised rebuilding plan within two years (see MSA sections 304(e)(3) and (e)(7)(B)). For Secretarially-managed fisheries, the Secretary would take im mediate action necessary to achieve adequate progress toward rebuilding and ending overfishing. (v) While a stock or stock complex is rebuilding, revising rebuilding time frames (i.e., Ttarget and Tmax) or Frebuild is not necessary, unless the Secretary finds that adequate progress is not being made. (vi) If a stock or stock complex has not rebuilt by Tmax, then the fishing mortality rate should be maintained at its current Frebuild or 75 percent of the MFMT, whichever is less, until the stock or stock complex is rebuilt or the fishing mortality rate is changed as a result of the Secretary finding that adequate progress is not being made. (4) Emergency actions and interim measures. If a Council is developing a rebuilding plan or revising an existing rebuilding plan due to a lack of ade quate progress (see MSA section 304(e)(7)), the Secretary may, in re sponse to a Council request, implement interim measures that reduce, but do not necessarily end, overfishing (see MSA section 304(e)(6)) if all of the fol lowing criteria are met: (i) The interim measures are needed to address an unanticipated and signifi cantly changed understanding of the status of the stock or stock complex; (ii) Ending overfishing immediately is expected to result in severe social and/or economic impacts to a fishery; and (iii) The interim measures will en sure that the stock or stock complex will increase its current biomass through the duration of the interim measures. (5) Discontinuing a rebuilding plan based on new scientific information. A Council may discontinue a rebuilding plan for a stock or stock complex be fore it reaches Bmsy if the Secretary de termines that the stock was not over fished in the year that the overfished determination (see MSA section 304(e)(3)) was based on and has never been overfished in any subsequent year including the current year. (k) International overfishing. If the Secretary determines that a fishery is overfished or approaching a condition of being overfished due to excessive international fishing pressure, and for which there are no management meas ures (or no effective measures) to end overfishing under an international agreement to which the United States is a party, then the Secretary and/or 53 Fishery Conservation and Management § 600.315 the appropriate Council shall take cer tain actions as provided under Magnu son-Stevens Act section 304(i). The Sec retary, in cooperation with the Sec retary of State, must immediately take appropriate action at the inter national level to end the overfishing. In addition, within one year after the determination, the Secretary and/or appropriate Council shall: (1) Develop recommendations for do mestic regulations to address the rel ative impact of the U.S. fishing vessels on the stock. Council recommendations should be submitted to the Secretary. (2) Develop and submit recommenda tions to the Secretary of State, and to the Congress, for international actions that will end overfishing in the fishery and rebuild the affected stocks, taking into account the relative impact of vessels of other nations and vessels of the United States on the relevant stock. Councils should, in consultation with the Secretary, develop rec ommendations that take into consider ation relevant provisions of the Magnu son-Stevens Act and NS1 guidelines, in cluding section 304(e) of the Magnuson Stevens Act and paragraph (j)(3)(iii) of this section, and other applicable laws. For highly migratory species in the Pa cific, recommendations from the West ern Pacific, North Pacific, or Pacific Councils must be developed and sub mitted consistent with Magnuson-Ste vens Reauthorization Act section 503(f), as appropriate. (3) Considerations for assessing ‘‘rel ative impact.’’ ‘‘Relative impact’’ under paragraphs (k)(1) and (2) of this section may include consideration of factors that include, but are not limited to: Domestic and international manage ment measures already in place, man agement history of a given nation, esti mates of a nation’s landings or catch (including bycatch) in a given fishery, and estimates of a nation’s mortality contributions in a given fishery. Infor mation used to determine relative im pact must be based upon the best avail able scientific information. (l) Exceptions to requirements to pre vent overfishing. Exceptions to the re quirement to prevent overfishing could apply under certain limited cir cumstances. Harvesting one stock at its optimum level may result in over fishing of another stock when the two stocks tend to be caught together (This can occur when the two stocks are part of the same fishery or if one is bycatch in the other’s fishery). Before a Council may decide to allow this type of over fishing, an analysis must be performed and the analysis must contain a jus tification in terms of overall benefits, including a comparison of benefits under alternative management meas ures, and an analysis of the risk of any stock or stock complex falling below its MSST. The Council may decide to allow this type of overfishing if the fishery is not overfished and the anal ysis demonstrates that all of the fol lowing conditions are satisfied: (1) Such action will result in long term net benefits to the Nation; (2) Mitigating measures have been considered and it has been dem onstrated that a similar level of long term net benefits cannot be achieved by modifying fleet behavior, gear selec tion/configuration, or other technical characteristics in a manner such that no overfishing would occur; and (3) The resulting rate of fishing mor tality will not cause any stock or stock complex to fall below its MSST more than 50 percent of the time in the long term, although it is recognized that persistent overfishing is expected to cause the affected stock to fall below its Bmsy more than 50 percent of the time in the long term. [81 FR 71895, Oct. 18, 2016] § 600.315 National Standard 2—Sci entific Information. (a) Standard 2. Conservation and management measures shall be based upon the best scientific information available. (1) Fishery conservation and manage ment require high quality and timely biological, ecological, environmental, economic, and sociological scientific information to effectively conserve and manage living marine resources. Suc cessful fishery management depends, in part, on the thorough analysis of this information, and the extent to which the information is applied for: (i) Evaluating the potential impact that conservation and management measures will have on living marine re sources, essential fish habitat (EFH), 54 50 CFR Ch. VI (10–1–22 Edition) § 600.315 marine ecosystems, fisheries partici pants, fishing communities, and the nation; and (ii) Identifying areas where addi tional management measures are need ed. (2) Scientific information that is used to inform decision making should include an evaluation of its uncer tainty and identify gaps in the infor mation. Management decisions should recognize the biological (e.g., over fishing), ecological, sociological, and economic (e.g., loss of fishery benefits) risks associated with the sources of un certainty and gaps in the scientific in formation. (3) Information-limited fisheries, commonly referred to as ‘‘data-poor’’ fisheries, may require use of simpler assessment methods and greater use of proxies for quantities that cannot be directly estimated, as compared to data-rich fisheries. (4) Scientific information includes, but is not limited to, factual input, data, models, analyses, technical infor mation, or scientific assessments. Sci entific information includes data com piled directly from surveys or sampling programs, and models that are mathe matical representations of reality con structed with primary data. The com plexity of the model should not be the defining characteristic of its value; the data requirements and assumptions as sociated with a model should be com mensurate with the resolution and ac curacy of the available primary data. Scientific information includes estab lished and emergent scientific informa tion. Established science is scientific knowledge derived and verified through a standard scientific process that tends to be agreed upon often without con troversy. Emergent science is rel atively new knowledge that is still evolving and being verified, therefore, may potentially be uncertain and con troversial. Emergent science should be considered more thoroughly, and sci entists should be attentive to effective communication of emerging science. (5) Science is a dynamic process, and new scientific findings constantly ad vance the state of knowledge. Best sci entific information is, therefore, not static and ideally entails developing and following a research plan with the following elements: Clear statement of objectives; conceptual model that pro vides the framework for interpreting results, making predictions, or testing hypotheses; study design with an ex plicit and standardized method of col lecting data; documentation of meth ods, results, and conclusions; peer re view, as appropriate; and communica tion of findings. (6) Criteria to consider when evalu ating best scientific information are relevance, inclusiveness, objectivity, transparency and openness, timeliness, verification and validation, and peer review, as appropriate. (i) Relevance. Scientific information should be pertinent to the current questions or issues under consideration and should be representative of the fishery being managed. In addition to the information collected directly about the fishery being managed, rel evant information may be available about the same species in other areas, or about related species. For example, use of proxies may be necessary in data-poor situations. Analysis of re lated stocks or species may be a useful tool for inferring the likely traits of stocks for which stock-specific data are unavailable or are not sufficient to produce reliable estimates. Also, if management measures similar to those being considered have been introduced in other regions and resulted in par ticular behavioral responses from par ticipants or business decisions from in dustry, such social and economic infor mation may be relevant. (ii) Inclusiveness. Three aspects of in clusiveness should be considered when developing and evaluating best sci entific information: (A) The relevant range of scientific disciplines should be consulted to en compass the scope of potential impacts of the management decision. (B) Alternative scientific points of view should be acknowledged and ad dressed openly when there is a diver sity of scientific thought. (C) Relevant local and traditional knowledge (e.g., fishermen’s empirical knowledge about the behavior and dis tribution of fish stocks) should be ob tained, where appropriate, and consid ered when evaluating the BSIA. 55 Fishery Conservation and Management § 600.315 (iii) Objectivity. Scientific informa tion should be accurate, with a known degree of precision, without address able bias, and presented in an accurate, clear, complete, and balanced manner. Scientific processes should be free of undue nonscientific influences and con siderations. (iv) Transparency and openness. (A) The Magnuson-Stevens Act provides broad public and stakeholder access to the fishery conservation and manage ment process, including access to the scientific information upon which the process and management measures are based. Public comment should be solic ited at appropriate times during the re view of scientific information. Commu nication with the public should be structured to foster understanding of the scientific process. (B) Scientific information products should describe data collection meth ods, report sources of uncertainty or statistical error, and acknowledge other data limitations. Such products should explain any decisions to exclude data from analysis. Scientific products should identify major assumptions and uncertainties of analytical models. Fi nally, such products should openly ac knowledge gaps in scientific informa tion. (v) Timeliness. Mandatory manage ment actions should not be delayed due to limitations in the scientific infor mation or the promise of future data collection or analysis. In some cases, due to time constraints, results of im portant studies or monitoring pro grams may be considered for use before they are fully complete. Uncertainties and risks that arise from an incom plete study should be acknowledged, but interim results may be better than no results to help inform a manage ment decision. Sufficient time should be allotted to audit and analyze re cently acquired information to ensure its reliability. Data collection methods are expected to be subjected to appro priate review before providing data used to inform management decisions. (A) For information that needs to be updated on a regular basis, the tem poral gap between information collec tion and management implementation should be as short as possible, subject to regulatory constraints, and such timing concerns should be explicitly considered when developing conserva tion and management measures. Late submission of scientific information to the Council process should be avoided if the information has circumvented the review process. Data collection is a continuous process, therefore analysis of scientific information should specify a clear time point beyond which new information would not be considered in that analysis and would be reserved for use in subsequent analytical updates. (B) Historical information should be evaluated for its relevance to inform the current situation. For example, some species’ life history characteris tics might not change over time. Other historical data (e.g., abundance, envi ronmental, catch statistics, market and trade trends) provide time-series information on changes in fish popu lations, fishery participation, and fish ing effort that may inform current management decisions. (vi) Verification and validation. Meth ods used to produce scientific informa tion should be verified and validated to the extent possible. (A) Verification means that the data and procedures used to produce the sci entific information are documented in sufficient detail to allow reproduction of the analysis by others with an ac ceptable degree of precision. External reviewers of scientific information re quire this level of documentation to conduct a thorough review. (B) Validation refers to the testing of analytical methods to ensure that they perform as intended. Validation should include whether the analytical method has been programmed correctly in the computer software, the accuracy and precision of the estimates is adequate, and the estimates are robust to model assumptions. Models should be tested using simulated data from a population with known properties to evaluate how well the models estimate those charac teristics and to correct for known bias to achieve accuracy. The concept of validation using simulation testing should be used, to the extent possible, to evaluate how well a management strategy meets management objec tives. (vii) Peer review. Peer review is a process used to ensure that the quality 56 50 CFR Ch. VI (10–1–22 Edition) § 600.315 and credibility of scientific informa tion and scientific methods meet the standards of the scientific and tech nical community. Peer review helps en sure objectivity, reliability, and integ rity of scientific information. The peer review process is an organized method that uses peer scientists with appro priate and relevant expertise to evalu ate scientific information. The sci entific information that supports con servation and management measures considered by the Secretary or a Coun cil should be peer reviewed, as appro priate. Factors to consider when deter mining whether to conduct a peer re view and if so, the appropriate level of review, include the novelty and com plexity of the scientific information to be reviewed, the level of previous re view and the importance of the infor mation to be reviewed to the decision making process. Routine updates based on previously reviewed methods re quire less review than novel methods or data. If formal peer review is not practicable due to time or resource constraints, the development and anal ysis of scientific information used in or in support of fishery management ac tions should be as transparent as pos sible, in accordance with paragraph (a)(6)(iv) of this section. Other applica ble guidance on peer review can be found in the Office of Management and Budget Final Information Quality Bul letin for Peer Review. (b) Peer review process. The Secretary and each Council may establish a peer review process for that Council for sci entific information used to advise about the conservation and manage ment of the fishery. 16 U.S.C. 1852(g)(1)(E). A peer review process is not a substitute for an SSC and should work in conjunction with the SSC (see § 600.310(b)(2)(v)(C)). This section pro vides guidance and standards that should be followed in order to establish a peer review process per Magnuson Stevens Act section 302(g)(1)(E). (1) The objective or scope of the peer review, the nature of the scientific in formation to be reviewed, and timing of the review should be considered when selecting the type of peer review to be used. The process established by the Secretary and Council should focus on providing review for information that has not yet undergone rigorous peer review, but that must be peer re viewed in order to provide reliable, high quality scientific advice for fish ery conservation and management. Du plication of previously conducted peer review should be avoided. (i) Form of process. The peer review process may include or consist of exist ing Council committees or panels if they meet the standards identified herein. The Secretary and Council have discretion to determine the appro priate peer review process for a specific information product. A peer review can take many forms, including individual letter or written reviews and panel re views. (ii) Timing. The peer review should, to the extent practicable, be conducted early in the process of producing sci entific information or a work product, so peer review reports are available for the SSC to consider in its evaluation of scientific information for its Council and the Secretary. The timing will de pend in part on the scope of the review. For instance, the peer review of a new or novel method or model should be conducted before there is an invest ment of time and resources in imple menting the model and interpreting the results. The results of this type of peer review may contribute to im provements in the model or assess ment. (iii) Scope of work. The scope of work or charge (sometimes called the terms of reference) of any peer review should be determined in advance of the selec tion of reviewers. The scope of work contains the objectives of the peer re view, evaluation of the various stages of the science, and specific rec ommendations for improvement of the science. The scope of work should be carefully designed, with specific tech nical questions to guide the peer re view process; it should ask peer review ers to ensure that scientific uncertain ties are clearly identified and charac terized, it should allow peer reviewers the opportunity to offer a broad eval uation of the overall scientific or tech nical product under review, as well as to make recommendations regarding areas of missing information, future re search, data collection, and improve ments in methodologies, and it must 57 Fishery Conservation and Management § 600.315 not change during the course of the peer review. The scope of work may not request reviewers to provide advice on policy or regulatory issues (e.g., amount of precaution used in decision making) which are within the purview of the Secretary and the Councils, or to make formal fishing level rec ommendations which are within the purview of the SSC. (2) Peer reviewer selection. The selec tion of participants in a peer review should be based on expertise, independ ence, and a balance of viewpoints, and be free of conflicts of interest. (i) Expertise and balance. Peer review ers must be selected based on scientific expertise and experience relevant to the disciplines of subject matter to be reviewed. The group of reviewers that constitute the peer review should re flect a balance in perspectives, to the extent practicable, and should have sufficiently broad and diverse expertise to represent the range of relevant sci entific and technical perspectives to complete the objectives of the peer re view. (ii) Conflict of interest. Peer reviewers who are federal employees must com ply with all applicable federal ethics requirements. Potential reviewers who are not federal employees must be screened for conflicts of interest in ac cordance with the NOAA Policy on Conflicts of Interest for Peer Review Subject to OMB’s Peer Review Bulletin or other applicable rules or guidelines. (A) Under the NOAA policy, peer re viewers must not have any conflicts of interest with the scientific informa tion, subject matter, or work product under review, or any aspect of the statement of work for the peer review. For purposes of this section, a conflict of interest is any financial or other in terest which conflicts with the service of the individual on a review panel be cause it: could significantly impair the reviewer’s objectivity, or could create an unfair competitive advantage for a person or organization. (B) No individual can be appointed to a review panel if that individual has a conflict of interest that is relevant to the functions to be performed. For re views requiring highly specialized ex pertise, the limited availability of qualified reviewers might result in an exception when a conflict of interest is unavoidable; in this situation, the con flict must be promptly and publicly disclosed. Conflicts of interest include, but are not limited to, the personal fi nancial interests and investments, em ployer affiliations, and consulting ar rangements, grants, or contracts of the individual and of others with whom the individual has substantial common fi nancial interests, if these interests are relevant to the functions to be per formed. (iii) Independence. Peer reviewers must not have contributed or partici pated in the development of the work product or scientific information under review. For peer review of products of higher novelty or controversy, a great er degree of independence is necessary to ensure credibility of the peer review process. Peer reviewer responsibilities should rotate across the available pool of qualified reviewers or among the members on a standing peer review panel to prevent a peer reviewer from repeatedly reviewing the same sci entific information, recognizing that, in some cases, repeated service by the same reviewer may be needed because of limited availability of specialized expertise. (3) Transparency. A transparent proc ess is one that ensures that back ground documents and reports from peer review are publicly available, sub ject to Magnuson-Stevens Act con fidentiality requirements, and allows the public full and open access to peer review panel meetings. The evaluation and review of scientific information by the Councils, SSCs or advisory panels must be conducted in accordance with meeting procedures at § 600.135. Con sistent with that section, public notice of peer review panel meetings should be announced in the FEDERAL REGISTER with a minimum of 14 days and with an aim of 21 days before the review to allow public comments during meet ings. Background documents should be available for public review in a timely manner prior to meetings. Peer review reports describing the scope and objec tives of the review, findings in accord ance with each objective, and conclu sions should be publicly available. Names and organizational affiliations 58 50 CFR Ch. VI (10–1–22 Edition) § 600.315 of reviewers also should be publicly available. (4) Publication of the peer review proc ess. The Secretary will announce the establishment of a peer review process under Magnuson-Stevens Act section 302(g)(1)(E) in the FEDERAL REGISTER along with a brief description of the process. In addition, detailed informa tion on such processes will be made publicly available on the Council’s Web site, and updated as necessary. (c) SSC scientific evaluation and advice to the Council. Each scientific and sta tistical committee shall provide its Council ongoing scientific advice for fishery management decisions, includ ing recommendations for acceptable bi ological catch, preventing overfishing, maximum sustainable yield, achieving rebuilding targets, and reports on stock status and health, bycatch, habi tat status, social and economic im pacts of management measures, and sustainability of fishing practices. 16 U.S.C. 1852(g)(1)(B). (1) SSC scientific advice and rec ommendations to its Council are based on scientific information that the SSC determines to meet the guidelines for best scientific information available as described in paragraph (a) of this sec tion. SSCs may conduct peer reviews or evaluate peer reviews to provide clear scientific advice to the Council. Such scientific advice should attempt to re solve conflicting scientific informa tion, so that the Council will not need to engage in debate on technical mer its. Debate and evaluation of scientific information is the role of the SSC. (2) An SSC member may participate in a peer review when such participa tion is beneficial to the peer review due to the expertise and institutional mem ory of that member, or beneficial to the Council’s advisory body by allow ing that member to make a more in formed evaluation of the scientific in formation. Participation of an SSC member in a peer review should not im pair the ability of that member to ful fill his or her responsibilities to the SSC. (3) If an SSC as a body conducts a peer review established under Magnu son-Stevens Act section 302(g)(1)(E) or individual members of an SSC partici pate in such a peer review, the SSC members must meet the peer reviewer selection criteria as described in para graph (b)(2) of this section. In addition, the financial disclosure requirements under § 600.235, Financial Disclosure for Councils and Council committees, apply. When the SSC as a body is con ducting a peer review, it should strive for consensus and must meet the trans parency guidelines under paragraphs (a)(6)(iv) and (b)(3) of this section. If consensus cannot be reached, minority viewpoints should be recorded. (4) The SSC’s evaluation of a peer re view conducted by a body other than the SSC should consider the extent and quality of peer review that has already taken place. For Councils with exten sive and detailed peer review processes (e.g., a process established pursuant to Magnuson-Stevens Act section 302(g)(1)(E)), the evaluation by the SSC of the peer reviewed information should not repeat the previously con ducted and detailed technical peer re view. However, SSCs must maintain their role as advisors to the Council about scientific information that comes from a peer review process. Therefore, the peer review of scientific information used to advise the Council, including a peer review process estab lished by the Secretary and the Council under Magnuson-Stevens Act section 302(g)(1)(E), should be conducted early in the scientific evaluation process in order to provide the SSC with reason able opportunity to consider the peer review report and make recommenda tions to the Council as required under Magnuson-Stevens Act section 302(g)(1)(B). (5) If an SSC disagrees with the find ings or conclusions of a peer review, in whole or in part, the SSC must prepare a report outlining the areas of dis agreement, and the rationale and infor mation used by the SSC for making its determination. This report must be made publicly available. (6) Annual catch limits (ACLs) devel oped by a Council may not exceed its SSC’s fishing level recommendations. 16 U.S.C. 1852(h)(6). Per the National Standard 1 Guidelines, the SSC fishing level recommendation that is most rel evant to ACLs is acceptable biological catch (ABC), as both ACL and ABC are levels of annual catch (see 59 Fishery Conservation and Management § 600.315 § 600.310(b)(2)(v)(D)). The SSC is ex pected to take scientific uncertainty into account when making its ABC rec ommendation (§ 600.310(f)(4)). The ABC recommendation may be based upon input and recommendations from the peer review process. Any such peer re view related to such recommendations should be conducted early in the proc ess as described in paragraph (c)(4) of this section. The SSC should resolve differences between its recommenda tions and any relevant peer review rec ommendations per paragraph (c)(5) of this section. (d) SAFE Report. The term SAFE (Stock Assessment and Fishery Eval uation) report, as used in this section, refers to a public document or a set of related public documents, that pro vides the Secretary and the Councils with a summary of scientific informa tion concerning the most recent bio logical condition of stocks, stock com plexes, and marine ecosystems in the fishery management unit (FMU), essen tial fish habitat (EFH), and the social and economic condition of the rec reational and commercial fishing inter ests, fishing communities, and the fish processing industries. Each SAFE re port must be scientifically based with appropriate citations of data sources and information. Each SAFE report summarizes, on a periodic basis, the best scientific information available concerning the past, present, and pos sible future condition of the stocks, EFH, marine ecosystems, and fisheries being managed under Federal regula tion. (1) The Secretary has the responsi bility to ensure that SAFE reports are prepared and updated or supplemented as necessary whenever new information is available to inform management de cisions such as status determination criteria (SDC), overfishing level (OFL), optimum yield, or ABC values (§ 600.310(c)). The SAFE report and any comments or reports from the SSC must be available to the Secretary and Council for making management deci sions for each FMP to ensure that the best scientific information available is being used. The Secretary or Councils may utilize any combination of per sonnel from Council, State, Federal, university, or other sources to acquire and analyze data and produce the SAFE report. (2) The SAFE report provides infor mation to the Councils and the Sec retary for determining annual catch limits (§ 600.310(f)(5)) for each stock in the fishery; documenting significant trends or changes in the resource, ma rine ecosystems, and fishery over time; implementing required EFH provisions (§ 600.815(a)(10)); and assessing the rel ative success of existing relevant state and Federal fishery management pro grams. The SAFE report should con tain an explanation of information gaps and highlight needs for future sci entific work. Information on bycatch and safety for each fishery should also be summarized. In addition, the SAFE report may be used to update or expand previous environmental and regulatory impact documents and ecosystem de scriptions. (3) Each SAFE report should contain the following scientific information when it exists: (i) Information on which to base catch specifications and status deter minations, including the most recent stock assessment documents and asso ciated peer review reports, and rec ommendations and reports from the Council’s SSC. (A) A description of the SDC (e.g., maximum fishing mortality rate threshold and minimum stock size threshold for each stock or stock com plex in the fishery) (§ 600.310(e)(2)). (B) Information on OFL and ABC, preventing overfishing, and achieving rebuilding targets. Documentation of the data collection, estimation meth ods, and consideration of uncertainty in formulating catch specification rec ommendations should be included (§ 600.310(f)(2)). The best scientific infor mation available to determine whether overfishing is occurring with respect to any stock or stock complex, whether any stock or stock complex is over fished, whether the rate or level of fish ing mortality applied to any stock or stock complex is approaching the max imum fishing mortality threshold, and whether the size of any stock or stock complex is approaching the minimum stock size threshold; and (C) The best scientific information available in support of management 60 50 CFR Ch. VI (10–1–22 Edition) § 600.320 measures necessary to rebuild an over fished stock or stock complex (if any) in the fishery to a level consistent with producing the MSY in that fishery. (ii) Information on sources of fishing mortality (both landed and discarded), including commercial and recreational catch and bycatch in other fisheries and a description of data collection and estimation methods used to quantify total catch mortality, as required by the National Standard 1 Guidelines (§ 600.310(i)). (iii) Information on bycatch of non target species for each fishery. (iv) Information on EFH to be in cluded in accordance with the EFH pro visions (§ 600.815(a)(10)) . (v) Pertinent economic, social, com munity, and ecological information for assessing the success and impacts of management measures or the achieve ment of objectives of each FMP. (4) Transparency in the fishery man agement process is enhanced by com plementing the SAFE report with the documentation of previous manage ment actions taken by the Council or Secretary including a summary of the previous ACLs, ACTs, and account ability measures (AMs), and assess ment of management uncertainty. (5) To facilitate the use of the infor mation in the SAFE report, and its availability to the Council, NMFS, and the public: (i) The SAFE report should contain, or be supplemented by, a summary of the information and an index or table of contents to the components of the report. Sources of information in the SAFE report should be referenced, un less the information is proprietary. (ii) The SAFE report or compilation of documents that comprise the SAFE report and index must be made avail able by the Council or NMFS on a read ily accessible Web site. (e) FMP development. (1) FMPs must take into account the best scientific information available at the time of preparation. Between the initial draft ing of an FMP and its submission for final review, new information often be comes available. This new information should be incorporated into the final FMP where practicable; but it is un necessary to start the FMP process over again, unless the information in dicates that drastic changes have oc curred in the fishery that might re quire revision of the management ob jectives or measures. (2) The fact that scientific informa tion concerning a fishery is incomplete does not prevent the preparation and implementation of an FMP (see related §§ 600.320(d)(2) and 600.340(b)). (3) An FMP must specify whatever information fishermen and processors will be required or requested to submit to the Secretary. Information about harvest within state waters, as well as in the EEZ, may be collected if it is needed for proper implementation of the FMP and cannot be obtained other wise. Scientific information collections for stocks managed cooperatively by Federal and State governments should be coordinated with the appropriate state jurisdictions, to the extent prac ticable, to ensure harvest information is available for the management of stocks that utilize habitats in state and federal managed waters. The FMP should explain the practical utility of the information specified in moni toring the fishery, in facilitating inseason management decisions, and in judging the performance of the man agement regime; it should also con sider the effort, cost, or social impact of obtaining it. (4) An FMP should identify scientific information needed from other sources to improve understanding and manage ment of the resource, marine eco system, the fishery, and fishing com munities. (5) The information submitted by various data suppliers should be com parable and compatible, to the max imum extent possible. (6) FMPs should be amended on a timely basis, as new information indi cates the necessity for change in objec tives or management measures con sistent with the conditions described in paragraph (d) of this section (SAFE re ports). Paragraphs (e)(1) through (5) of this section apply equally to FMPs and FMP amendments. [78 FR 43086, July 19, 2013] § 600.320 National Standard 3—Man agement Units. (a) Standard 3. To the extent prac ticable, an individual stock of fish 61 Fishery Conservation and Management § 600.325 shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. (b) General. The purpose of this standard is to induce a comprehensive approach to fishery management. The geographic scope of the fishery, for planning purposes, should cover the en tire range of the stocks(s) of fish, and not be overly constrained by political boundaries. (c) Unity of management. Cooperation and understanding among entities con cerned with the fishery (e.g., Councils, states, Federal Government, inter national commissions, foreign nations) are vital to effective management. Where management of a fishery in volves multiple jurisdictions, coordina tion among the several entities should be sought in the development of an FMP. Where a range overlaps Council areas, one FMP to cover the entire range is preferred. (d) Management unit. The term ‘‘management unit’’ means a fishery or that portion of a fishery identified in an FMP as relevant to the FMP’s man agement objectives. (1) Basis. The choice of a manage ment unit depends on the focus of the FMP’s objectives, and may be orga nized around biological, geographic, economic, technical, social, or ecologi cal perspectives. (2) Conservation and management meas ures. FMPs should include conservation and management measures for that part of the management unit within U.S. waters, although the Secretary can ordinarily implement them only within the EEZ. The measures need not be identical for each geographic area within the management unit, if the FMP justifies the differences. A man agement unit may contain stocks of fish for which there is not enough in formation available to specify MSY and OY or their proxies. (e) Analysis. An FMP should include discussion of the following: (1) The range and distribution of the stocks, as well as the patterns of fish ing effort and harvest. (2) Alternative management units and reasons for selecting a particular one. A less-than-comprehensive man agement unit may be justified if, for example, complementary management exists or is planned for a separate geo graphic area or for a distinct use of the stocks, or if the unmanaged portion of the resource is immaterial to proper management. (3) Management activities and habi tat programs of adjacent states and their effects on the FMP’s objectives and management measures. Where state action is necessary to implement measures within state waters to achieve FMP objectives, the FMP should identify what state action is necessary, discuss the consequences of state inaction or contrary action, and make appropriate recommendations. The FMP should also discuss the im pact that Federal regulations will have on state management activities. (4) Management activities of other countries having an impact on the fish ery, and how the FMP’s management measures are designed to take into ac count these impacts. International boundaries may be dealt with in sev eral ways. For example: (i) By limiting the management unit’s scope to that portion of the stock found in U.S. waters; (ii) By estimating MSY for the entire stock and then basing the determina tion of OY for the U.S. fishery on the portion of the stock within U.S. waters; or (iii) By referring to treaties or coop erative agreements. [81 FR 71903, Oct. 18, 2016] § 600.325 National Standard 4—Alloca tions. (a) Standard 4. Conservation and management measures shall not dis criminate between residents of dif ferent states. If it becomes necessary to allocate or assign fishing privileges among various U.S. fishermen, such al location shall be: (1) Fair and equitable to all such fish ermen. (2) Reasonably calculated to promote conservation. (3) Carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. 62 50 CFR Ch. VI (10–1–22 Edition) § 600.325 (b) Discrimination among residents of different states. An FMP may not dif ferentiate among U.S. citizens, nation als, resident aliens, or corporations on the basis of their state of residence. An FMP may not incorporate or rely on a state statute or regulation that dis criminates against residents of another state. Conservation and management measures that have different effects on persons in various geographic locations are permissible if they satisfy the other guidelines under Standard 4. Ex amples of these precepts are: (1) An FMP that restricted fishing in the EEZ to those holding a permit from state X would violate Standard 4 if state X issued permits only to its own citizens. (2) An FMP that closed a spawning ground might disadvantage fishermen living in the state closest to it, because they would have to travel farther to an open area, but the closure could be jus tified under Standard 4 as a conserva tion measure with no discriminatory intent. (c) Allocation of fishing privileges. An FMP may contain management meas ures that allocate fishing privileges if such measures are necessary or helpful in furthering legitimate objectives or in achieving the OY, and if the meas ures conform with paragraphs (c)(3)(i) through (c)(3)(iii) of this section. (1) Definition. An ‘‘allocation’’ or ‘‘assignment’’ of fishing privileges is a direct and deliberate distribution of the opportunity to participate in a fishery among identifiable, discrete user groups or individuals. Any man agement measure (or lack of manage ment) has incidental allocative effects, but only those measures that result in direct distributions of fishing privi leges will be judged against the alloca tion requirements of Standard 4. Adop tion of an FMP that merely perpet uates existing fishing practices may re sult in an allocation, if those practices directly distribute the opportunity to participate in the fishery. Allocations of fishing privileges include, for exam ple, per-vessel catch limits, quotas by vessel class and gear type, different quotas or fishing seasons for rec reational and commercial fishermen, assignment of ocean areas to different gear users, and limitation of permits to a certain number of vessels or fisher men. (2) Analysis of allocations. Each FMP should contain a description and anal ysis of the allocations existing in the fishery and of those made in the FMP. The effects of eliminating an existing allocation system should be examined. Allocation schemes considered, but re jected by the Council, should be in cluded in the discussion. The analysis should relate the recommended alloca tions to the FMP’s objectives and OY specification, and discuss the factors listed in paragraph (c)(3) of this sec tion. (3) Factors in making allocations. An allocation of fishing privileges must be fair and equitable, must be reasonably calculated to promote conservation, and must avoid excessive shares. These tests are explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this sec tion: (i) Fairness and equity. (A) An alloca tion of fishing privileges should be ra tionally connected to the achievement of OY or with the furtherance of a le gitimate FMP objective. Inherent in an allocation is the advantaging of one group to the detriment of another. The motive for making a particular alloca tion should be justified in terms of the objectives of the FMP; otherwise, the disadvantaged user groups or individ uals would suffer without cause. For instance, an FMP objective to preserve the economic status quo cannot be achieved by excluding a group of long time participants in the fishery. On the other hand, there is a rational connec tion between an objective of harvesting shrimp at their maximum size and closing a nursery area to trawling. (B) An allocation of fishing privileges may impose a hardship on one group if it is outweighed by the total benefits received by another group or groups. An allocation need not preserve the status quo in the fishery to qualify as ‘‘fair and equitable,’’ if a restructuring of fishing privileges would maximize overall benefits. The Council should make an initial estimate of the rel ative benefits and hardships imposed by the allocation, and compare its con sequences with those of alternative al location schemes, including the status quo. Where relevant, judicial guidance 63 Fishery Conservation and Management § 600.330 and government policy concerning the rights of treaty Indians and aboriginal Americans must be considered in deter mining whether an allocation is fair and equitable. (ii) Promotion of conservation. Numer ous methods of allocating fishing privi leges are considered ‘‘conservation and management’’ measures under section 303 of the Magnuson-Stevens Act. An allocation scheme may promote con servation by encouraging a rational, more easily managed use of the re source. Or, it may promote conserva tion (in the sense of wise use) by opti mizing the yield in terms of size, value, market mix, price, or economic or so cial benefit of the product. To the ex tent that rebuilding plans or other con servation and management measures that reduce the overall harvest in a fishery are necessary, any harvest re strictions or recovery benefits must be allocated fairly and equitably among the commercial, recreational, and charter fishing sectors of the fishery. (iii) Avoidance of excessive shares. An allocation scheme must be designed to deter any person or other entity from acquiring an excessive share of fishing privileges, and to avoid creating condi tions fostering inordinate control, by buyers or sellers, that would not other wise exist. (iv) Other factors. In designing an al location scheme, a Council should con sider other factors relevant to the FMP’s objectives. Examples are eco nomic and social consequences of the scheme, food production, consumer in terest, dependence on the fishery by present participants and coastal com munities, efficiency of various types of gear used in the fishery, transferability of effort to and impact on other fish eries, opportunity for new participants to enter the fishery, and enhancement of opportunities for recreational fish ing. [61 FR 32540, June 24, 1996, as amended at 63 FR 24234, May 1, 1998] § 600.330 National Standard 5—Effi ciency. (a) Standard 5. Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have eco nomic allocation as its sole purpose. (b) Efficiency in the utilization of re sources—(1) General. The term ‘‘utiliza tion’’ encompasses harvesting, proc essing, marketing, and non-consump tive uses of the resource, since manage ment decisions affect all sectors of the industry. In considering efficient utili zation of fishery resources, this stand ard highlights one way that a fishery can contribute to the Nation’s benefit with the least cost to society: Given a set of objectives for the fishery, an FMP should contain management measures that result in as efficient a fishery as is practicable or desirable. (2) Efficiency. In theory, an efficient fishery would harvest the OY with the minimum use of economic inputs such as labor, capital, interest, and fuel. Ef ficiency in terms of aggregate costs then becomes a conservation objective, where ‘‘conservation’’ constitutes wise use of all resources involved in the fishery, not just fish stocks. (i) In an FMP, management measures may be proposed that allocate fish among different groups of individuals or establish a system of property rights. Alternative measures examined in searching for an efficient outcome will result in different distributions of gains and burdens among identifiable user groups. An FMP should dem onstrate that management measures aimed at efficiency do not simply re distribute gains and burdens without an increase in efficiency. (ii) Management regimes that allow a fishery to operate at the lowest pos sible cost (e.g., fishing effort, adminis tration, and enforcement) for a par ticular level of catch and initial stock size are considered efficient. Restric tive measures that unnecessarily raise any of those costs move the regime to ward inefficiency. Unless the use of in efficient techniques or the creation of redundant fishing capacity contributes to the attainment of other social or bi ological objectives, an FMP may not contain management measures that impede the use of cost-effective tech niques of harvesting, processing, or marketing, and should avoid creating strong incentives for excessive invest ment in private sector fishing capital and labor. 64 50 CFR Ch. VI (10–1–22 Edition) § 600.335 (c) Limited access. A ‘‘system for lim iting access,’’ which is an optional measure under section 303(b) of the Magnuson-Stevens Act, is a type of al location of fishing privileges that may be considered to contribute to eco nomic efficiency or conservation. For example, limited access may be used to combat overfishing, overcrowding, or overcapitalization in a fishery to achieve OY. In an unutilized or under utilized fishery, it may be used to re duce the chance that these conditions will adversely affect the fishery in the future, or to provide adequate eco nomic return to pioneers in a new fish ery. In some cases, limited entry is a useful ingredient of a conservation scheme, because it facilitates applica tion and enforcement of other manage ment measures. (1) Definition. Limited access (or lim ited entry) is a management technique that attempts to limit units of effort in a fishery, usually for the purpose of re ducing economic waste, improving net economic return to the fishermen, or capturing economic rent for the benefit of the taxpayer or the consumer. Com mon forms of limited access are licens ing of vessels, gear, or fishermen to re duce the number of units of effort, and dividing the total allowable catch into fishermen’s quotas (a stock-certificate system). Two forms (i.e., Federal fees for licenses or permits in excess of ad ministrative costs, and taxation) are not permitted under the Magnuson Stevens Act, except for fees allowed under section 304(d)(2). (2) Factors to consider. The Magnuson Stevens Act ties the use of limited ac cess to the achievement of OY. An FMP that proposes a limited access system must consider the factors listed in section 303(b)(6) of the Magnuson Stevens Act and in § 600.325(c)(3). In ad dition, it should consider the criteria for qualifying for a permit, the nature of the interest created, whether to make the permit transferable, and the Magnuson-Stevens Act’s limitations on returning economic rent to the public under section 304(d). The FMP should also discuss the costs of achieving an appropriate distribution of fishing privileges. (d) Analysis. An FMP should discuss the extent to which overcapitalization, congestion, economic waste, and ineffi cient techniques in the fishery reduce the net benefits derived from the man agement unit and prevent the attain ment and appropriate allocation of OY. It should also explain, in terms of the FMP’s objectives, any restriction placed on the use of efficient tech niques of harvesting, processing, or marketing. If, during FMP develop ment, the Council considered imposing a limited-entry system, the FMP should analyze the Council’s decision to recommend or reject limited access as a technique to achieve efficient uti lization of the resources of the fishing industry. (e) Economic allocation. This standard prohibits only those measures that dis tribute fishery resources among fisher men on the basis of economic factors alone, and that have economic alloca tion as their only purpose. Where con servation and management measures are recommended that would change the economic structure of the industry or the economic conditions under which the industry operates, the need for such measures must be justified in light of the biological, ecological, and social objectives of the FMP, as well as the economic objectives. [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63 FR 24234, May 1, 1998] § 600.335 National Standard 6—Vari ations and Contingencies. (a) Standard 6. Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. (b) Conservation and management. Each fishery exhibits unique uncertain ties. The phrase ‘‘conservation and management’’ implies the wise use of fishery resources through a manage ment regime that includes some pro tection against these uncertainties. The particular regime chosen must be flexible enough to allow timely re sponse to resource, industry, and other national and regional needs. Continual data acquisition and analysis will help the development of management meas ures to compensate for variations and 65 Fishery Conservation and Management § 600.340 to reduce the need for substantial buff ers. Flexibility in the management re gime and the regulatory process will aid in responding to contingencies. (c) Variations. (1) In fishery manage ment terms, variations arise from bio logical, social, and economic occur rences, as well as from fishing prac tices. Biological uncertainties and lack of knowledge can hamper attempts to estimate stock size and strength, stock location in time and space, environ mental/habitat changes, and ecological interactions. Economic uncertainty may involve changes in foreign or do mestic market conditions, changes in operating costs, drifts toward overcapi talization, and economic perturbations caused by changed fishing patterns. Changes in fishing practices, such as the introduction of new gear, rapid in creases or decreases in harvest effort, new fishing strategies, and the effects of new management techniques, may also create uncertainties. Social changes could involve increases or de creases in recreational fishing, or the movement of people into or out of fish ing activities due to such factors as age or educational opportunities. (2) Every effort should be made to de velop FMPs that discuss and take into account these vicissitudes. To the ex tent practicable, FMPs should provide a suitable buffer in favor of conserva tion. Allowances for uncertainties should be factored into the various ele ments of an FMP. Examples are: (i) Reduce OY. Lack of scientific knowledge about the condition of a stock(s) could be reason to reduce OY. (ii) Establish a reserve. Creation of a reserve may compensate for uncertain ties in estimating domestic harvest, stock conditions, or environmental fac tors. (iii) Adjust management techniques. In the absence of adequate data to predict the effect of a new regime, and to avoid creating unwanted variations, a Coun cil could guard against producing dras tic changes in fishing patterns, alloca tions, or practices. (iv) Highlight habitat conditions. FMPs may address the impact of pollution and the effects of wetland and estua rine degradation on the stocks of fish; identify causes of pollution and habitat degradation and the authorities having jurisdiction to regulate or influence such activities; propose recommenda tions that the Secretary will convey to those authorities to alleviate such problems; and state the views of the Council on unresolved or anticipated issues. (d) Contingencies. Unpredictable events—such as unexpected resource surges or failures, fishing effort greater than anticipated, disruptive gear con flicts, climatic conditions, or environ mental catastrophes—are best handled by establishing a flexible management regime that contains a range of man agement options through which it is possible to act quickly without amend ing the FMP or even its regulations. (1) The FMP should describe the management options and their con sequences in the necessary detail to guide the Secretary in responding to changed circumstances, so that the Council preserves its role as policy-set ter for the fishery. The description should enable the public to understand what may happen under the flexible re gime, and to comment on the options. (2) FMPs should include criteria for the selection of management measures, directions for their application, and mechanisms for timely adjustment of management measures comprising the regime. For example, an FMP could in clude criteria that allow the Secretary to open and close seasons, close fishing grounds, or make other adjustments in management measures. (3) Amendment of a flexible FMP would be necessary when cir cumstances in the fishery change sub stantially, or when a Council adopts a different management philosophy and objectives. § 600.340 National Standard 7—Costs and Benefits. (a) Standard 7. Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication. (b) Alternative management measures. Management measures should not im pose unnecessary burdens on the econ omy, on individuals, on private or pub lic organizations, or on Federal, state, or local governments. Factors such as fuel costs, enforcement costs, or the 66 50 CFR Ch. VI (10–1–22 Edition) § 600.345 burdens of collecting data may well suggest a preferred alternative. (c) Analysis. The supporting analyses for FMPs should demonstrate that the benefits of fishery regulation are real and substantial relative to the added research, administrative, and enforce ment costs, as well as costs to the in dustry of compliance. In determining the benefits and costs of management measures, each management strategy considered and its impacts on different user groups in the fishery should be evaluated. This requirement need not produce an elaborate, formalistic cost/ benefit analysis. Rather, an evaluation of effects and costs, especially of dif ferences among workable alternatives, including the status quo, is adequate. If quantitative estimates are not pos sible, qualitative estimates will suffice. (1) Burdens. Management measures should be designed to give fishermen the greatest possible freedom of action in conducting business and pursuing recreational opportunities that are consistent with ensuring wise use of the resources and reducing conflict in the fishery. The type and level of bur den placed on user groups by the regu lations need to be identified. Such an examination should include, for exam ple: Capital outlays; operating and maintenance costs; reporting costs; ad ministrative, enforcement, and infor mation costs; and prices to consumers. Management measures may shift costs from one level of government to an other, from one part of the private sec tor to another, or from the government to the private sector. Redistribution of costs through regulations is likely to generate controversy. A discussion of these and any other burdens placed on the public through FMP regulations should be a part of the FMP’s sup porting analyses. (2) Gains. The relative distribution of gains may change as a result of insti tuting different sets of alternatives, as may the specific type of gain. The anal ysis of benefits should focus on the spe cific gains produced by each alter native set of management measures, including the status quo. The benefits to society that result from the alter native management measures should be identified, and the level of gain as sessed. [81 FR 71904, Oct. 18, 2016] § 600.345 National Standard 8—Com munities. (a) Standard 8. Conservation and management measures shall, con sistent with the conservation require ments of the Magnuson-Stevens Act (including the prevention of over fishing and rebuilding of overfished stocks), take into account the impor tance of fishery resources to fishing communities by utilizing economic and social data that are based upon the best scientific information available in order to: (1) Provide for the sustained partici pation of such communities; and (2) To the extent practicable, mini mize adverse economic impacts on such communities. (b) General. (1) This standard requires that an FMP take into account the im portance of fishery resources to fishing communities. This consideration, how ever, is within the context of the con servation requirements of the Magnu son-Stevens Act. Deliberations regard ing the importance of fishery resources to affected fishing communities, there fore, must not compromise the achieve ment of conservation requirements and goals of the FMP. Where the preferred alternative negatively affects the sus tained participation of fishing commu nities, the FMP should discuss the ra tionale for selecting this alternative over another with a lesser impact on fishing communities. All other things being equal, where two alternatives achieve similar conservation goals, the alternative that provides the greater potential for sustained participation of such communities and minimizes the adverse economic impacts on such communities would be the preferred al ternative. (2) This standard does not constitute a basis for allocating resources to a specific fishing community nor for pro viding preferential treatment based on residence in a fishing community. (3) The term ‘‘fishing community’’ means a community that is substan tially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and 67 Fishery Conservation and Management § 600.350 economic needs, and includes fishing vessel owners, operators, and crew, and fish processors that are based in such communities. A fishing community is a social or economic group whose mem bers reside in a specific location and share a common dependency on com mercial, recreational, or subsistence fishing or on directly related fisheries dependent services and industries (for example, boatyards, ice suppliers, tackle shops). (4) The term ‘‘sustained participa tion’’ means continued access to the fishery within the constraints of the condition of the resource. (c) Analysis. (1) FMPs must examine the social and economic importance of fisheries to communities potentially affected by management measures. For example, severe reductions of harvests for conservation purposes may decrease employment opportunities for fisher men and processing plant workers, thereby adversely affecting their fami lies and communities. Similarly, a management measure that results in the allocation of fishery resources among competing sectors of a fishery may benefit some communities at the expense of others. (2) An appropriate vehicle for the analyses under this standard is the fishery impact statement required by section 303(a)(9) of the Magnuson-Ste vens Act. Qualitative and quantitative data may be used, including informa tion provided by fishermen, dealers, processors, and fisheries organizations and associations. In cases where data are severely limited, effort should be directed to identifying and gathering needed data. (3) To address the sustained partici pation of fishing communities that will be affected by management measures, the analysis should first identify af fected fishing communities and then assess their differing levels of depend ence on and engagement in the fishery being regulated. The analysis should also specify how that assessment was made. The best available data on the history, extent, and type of participa tion of these fishing communities in the fishery should be incorporated into the social and economic information presented in the FMP. The analysis does not have to contain an exhaustive listing of all communities that might fit the definition; a judgment can be made as to which are primarily af fected. The analysis should discuss each alternative’s likely effect on the sustained participation of these fishing communities in the fishery. (4) The analysis should assess the likely positive and negative social and economic impacts of the alternative management measures, over both the short and the long term, on fishing communities. Any particular manage ment measure may economically ben efit some communities while adversely affecting others. Economic impacts should be considered both for indi vidual communities and for the group of all affected communities identified in the FMP. Impacts of both consump tive and non-consumptive uses of fish ery resources should be considered. (5) A discussion of social and eco nomic impacts should identify those alternatives that would minimize ad verse impacts on these fishing commu nities within the constraints of con servation and management goals of the FMP, other national standards, and other applicable law. [63 FR 24234, May 1, 1998, as amended at 73 FR 67810, Nov. 17, 2008] § 600.350 National Standard 9—By catch. (a) Standard 9. Conservation and management measures shall, to the ex tent practicable: (1) Minimize bycatch; and (2) To the extent bycatch cannot be avoided, minimize the mortality of such bycatch. (b) General. This national standard requires Councils to consider the by catch effects of existing and planned conservation and management meas ures. Bycatch can, in two ways, impede efforts to protect marine ecosystems and achieve sustainable fisheries and the full benefits they can provide to the Nation. First, bycatch can increase substantially the uncertainty con cerning total fishing-related mortality, which makes it more difficult to assess the status of stocks, to set the appro priate OY and define overfishing levels, and to ensure that OYs are attained and overfishing levels are not exceeded. Second, bycatch may also preclude 68 50 CFR Ch. VI (10–1–22 Edition) § 600.350 other more productive uses of fishery resources. (c) Definition—Bycatch. The term ‘‘bycatch’’ means fish that are har vested in a fishery, but that are not sold or kept for personal use. (1) Inclusions. Bycatch includes the discard of whole fish at sea or else where, including economic discards and regulatory discards, and fishing mor tality due to an encounter with fishing gear that does not result in capture of fish (i.e., unobserved fishing mor tality). (2) Exclusions. Bycatch excludes the following: (i) Fish that legally are retained in a fishery and kept for personal, tribal, or cultural use, or that enter commerce through sale, barter, or trade. (ii) Fish released alive under a rec reational catch-and-release fishery management program. A catch-and-re lease fishery management program is one in which the retention of a par ticular species is prohibited. In such a program, those fish released alive would not be considered bycatch. (iii) Fish harvested in a commercial fishery managed by the Secretary under Magnuson-Stevens Act sec. 304(g) or the Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971d) or highly migra tory species harvested in a commercial fishery managed by a Council under the Magnuson-Stevens Act or the West ern and Central Pacific Fisheries Con vention Implementation Act, that are not regulatory discards and that are tagged and released alive under a sci entific tagging and release program es tablished by the Secretary. (d) Minimizing bycatch and bycatch mortality. The priority under this standard is first to avoid catching by catch species where practicable. Fish that are bycatch and cannot be avoided must, to the extent practicable, be re turned to the sea alive. Any proposed conservation and management measure that does not give priority to avoiding the capture of bycatch species must be supported by appropriate analyses. In their evaluation, the Councils must consider the net benefits to the Nation, which include, but are not limited to: Negative impacts on affected stocks; incomes accruing to participants in di rected fisheries in both the short and long term; incomes accruing to partici pants in fisheries that target the by catch species; environmental con sequences; non-market values of by catch species, which include non-con sumptive uses of bycatch species and existence values, as well as rec reational values; and impacts on other marine organisms. To evaluate con servation and management measures relative to this and other national standards, as well as to evaluate total fishing mortality, Councils must— (1) Promote development of a database on bycatch and bycatch mortality in the fishery to the extent practicable. A review and, where necessary, improvement of data collection methods, data sources, and applications of data must be initi ated for each fishery to determine the amount, type, disposition, and other characteristics of bycatch and bycatch mortality in each fishery for purposes of this standard and of section 303(a)(11) and (12) of the Magnuson-Ste vens Act. Bycatch should be cat egorized to focus on management re sponses necessary to minimize bycatch and bycatch mortality to the extent practicable. When appropriate, man agement measures, such as at-sea mon itoring programs, should be developed to meet these information needs. (2) For each management measure, as sess the effects on the amount and type of bycatch and bycatch mortality in the fish ery. Most conservation and manage ment measures can affect the amounts of bycatch or bycatch mortality in a fishery, as well as the extent to which further reductions in bycatch are prac ticable. In analyzing measures, includ ing the status quo, Councils should as sess the impacts of minimizing bycatch and bycatch mortality, as well as con sistency of the selected measure with other national standards and applica ble laws. The benefits of minimizing bycatch to the extent practicable should be identified and an assessment of the impact of the selected measure on bycatch and bycatch mortality pro vided. Due to limitations on the infor mation available, fishery managers may not be able to generate precise es timates of bycatch and bycatch mor tality or other effects for each alter native. In the absence of quantitative 69 Fishery Conservation and Management § 600.355 estimates of the impacts of each alter native, Councils may use qualitative measures. Information on the amount and type of bycatch should be summa rized in the SAFE reports. (3) Select measures that, to the extent practicable, will minimize bycatch and by catch mortality. (i) A determination of whether a conservation and manage ment measure minimizes bycatch or bycatch mortality to the extent prac ticable, consistent with other national standards and maximization of net ben efits to the Nation, should consider the following factors: (A) Population effects for the by catch species. (B) Ecological effects due to changes in the bycatch of that species (effects on other species in the ecosystem). (C) Changes in the bycatch of- other species of fish and the resulting popu lation and ecosystem effects. (D) Effects on marine mammals and birds. (E) Changes in fishing, processing, disposal, and marketing costs. (F) Changes in fishing practices and behavior of fishermen. (G) Changes in research, administra tion, and enforcement costs and man agement effectiveness. (H) Changes in the economic, social, or cultural value of fishing activities and nonconsumptive uses of fishery re sources. (I) Changes in the distribution of ben efits and costs. (J) Social effects. (ii) The Councils should adhere to the precautionary approach found in the Food and Agriculture Organization of the United Nations (FAO) Code of Con duct for Responsible Fisheries (Article 6.5), which is available from the Direc tor, Publications Division, FAO, Viale delle Terme di Caracalla, 00100 Rome, Italy, when faced with uncertainty concerning any of the factors listed in this paragraph (d)(3). (4) Monitor selected management meas ures. Effects of implemented measures should be evaluated routinely. Moni toring systems should be established prior to fishing under the selected management measures. Where applica ble, plans should be developed and co ordinated with industry and other con cerned organizations to identify oppor tunities for cooperative data collec tion, coordination of data management for cost efficiency, and avoidance of duplicative effort. (e) Other considerations. Other appli cable laws, such as the MMPA, the ESA, and the Migratory Bird Treaty Act, require that Councils consider the impact of conservation and manage ment measures on living marine re sources other than fish; i.e., marine mammals and birds. [63 FR 24235, May 1, 1998, as amended at 73 FR 67811, Nov. 17, 2008] § 600.355 National Standard 10—Safety of Life at Sea. (a) Standard 10. Conservation and management measures shall, to the ex tent practicable, promote the safety of human life at sea. (b) General. (1) Fishing is an inher ently dangerous occupation where not all hazardous situations can be fore seen or avoided. The standard directs Councils to reduce that risk in crafting their management measures, so long as they can meet the other national standards and the legal and practical requirements of conservation and man agement. This standard is not meant to give preference to one method of man aging a fishery over another. (2) The qualifying phrase ‘‘to the ex tent practicable’’ recognizes that regu lation necessarily puts constraints on fishing that would not otherwise exist. These constraints may create pressures on fishermen to fish under conditions that they would otherwise avoid. This standard instructs the Councils to identify and avoid those situations, if they can do so consistent with the legal and practical requirements of conservation and management of the resource. (3) For the purposes of this national standard, the safety of the fishing ves sel and the protection from injury of persons aboard the vessel are consid ered the same as ‘‘safety of human life at sea. The safety of a vessel and the people aboard is ultimately the respon sibility of the master of that vessel. Each master makes many decisions about vessel maintenance and loading and about the capabilities of the vessel and crew to operate safely in a variety 70 50 CFR Ch. VI (10–1–22 Edition) § 600.355 of weather and sea conditions. This na tional standard does not replace the judgment or relieve the responsibility of the vessel master related to vessel safety. The Councils, the USCG, and NMFS, through the consultation proc ess of paragraph (d) of this section, will review all FMPs, amendments, and reg ulations during their development to ensure they recognize any impact on the safety of human life at sea and minimize or mitigate that impact where practicable. (c) Safety considerations. The fol lowing is a non-inclusive list of safety considerations that should be consid ered in evaluating management meas ures under national standard 10. (1) Operating environment. Where and when a fishing vessel operates is partly a function of the general climate and weather patterns of an area. Typically, larger vessels can fish farther offshore and in more adverse weather condi tions than smaller vessels. An FMP should try to avoid creating situations that result in vessels going out farther, fishing longer, or fishing in weather worse than they generally would have in the absence of management meas ures. Where these conditions are un avoidable, management measures should mitigate these effects, con sistent with the overall management goals of the fishery. (2) Gear and vessel loading require ments. A fishing vessel operates in a very dynamic environment that can be an extremely dangerous place to work. Moving heavy gear in a seaway creates a dangerous situation on a vessel. Car rying extra gear can also significantly reduce the stability of a fishing vessel, making it prone to capsizing. An FMP should consider the safety and stability of fishing vessels when requiring spe cific gear or requiring the removal of gear from the water. Management measures should reflect a sensitivity to these issues and provide methods of mitigation of these situations wherever possible. (3) Limited season and area fisheries. Fisheries where time constraints for harvesting are a significant factor and with no flexibility for weather, often called ‘‘derby’’ fisheries, can create se rious safety problems. To participate fully in such a fishery, fishermen may fish in bad weather and overload their vessel with catch and/or gear. Where these conditions exist, FMPs should at tempt to mitigate these effects and avoid them in new management re gimes, as discussed in paragraph (e) of this section. (d) Consultation. During preparation of any FMP, FMP amendment, or regu lation that might affect safety of human life at sea, the Council should consult with the USCG and the fishing industry as to the nature and extent of any adverse impacts. This consultation may be done through a Council advi sory panel, committee, or other review of the FMP, FMP amendment, or regu lations. Mitigation, to the extent prac ticable, and other safety considerations identified in paragraph (c) of this sec tion should be included in the FMP. (e) Mitigation measures. There are many ways in which an FMP may avoid or provide alternative measures to reduce potential impacts on safety of human life at sea. The following is a list of some factors that could be con sidered when management measures are developed: (1) Setting seasons to avoid haz ardous weather. (2) Providing for seasonal or trip flexibility to account for bad weather (weather days). (3) Allowing for pre- and post-season ‘‘soak time’’ to deploy and pick up fixed gear, so as to avoid overloading vessels with fixed gear. (4) Tailoring gear requirements to provide for smaller or lighter gear for smaller vessels. (5) Avoiding management measures that require hazardous at-sea inspec tions or enforcement if other com parable enforcement could be accom plished as effectively. (6) Limiting the number of partici pants in the fishery. (7) Spreading effort over time and area to avoid potential gear and/or ves sel conflicts. (8) Implementing management meas ures that reduce the race for fish and the resulting incentives for fishermen to take additional risks with respect to vessel safety. [63 FR 24236, May 1, 1998]