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Statement of Need: The overall intent of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) is to achieve optimum yield, prevent overfishing and rebuild overfished stocks in as short a time as possible. The National Marine Fisheries Service (NMFS) and the Regional Fishery Management Councils (Councils) are charged with the difficult, but important task of balancing the need to prevent overfishing and rebuild overfished stocks in as short a time as possible, taking into account the needs of fishing communities and fishing industry infrastructure, and evaluating actions in terms of overall benefits to the nation. NMFS, the Councils, the public, and various stakeholders in fisheries in the Exclusive Economic Zone (EEZ) have worked with the current version of the National Standards 1 (NS1) guidelines since June 1998, while developing overfishing definitions and rebuilding plans for various fisheries. Through this experience, NMFS has developed new perspectives about the utility of the current NS1 guidelines. NMFS decided in November 2003, after receiving public comment on the current usefulness of the NS1 guidelines, and convening a NMFS Working Group (Working Group) to review the guidelines, that it would propose revisions to the guidelines. NMFS believes that the proposed revisions would improve the ability of the Councils to establish meaningful status determination criteria (SDC) and rebuilding plans that facilitate compliance with the Magnuson-Stevens Act.

Summary of the Legal Basis: The Magnuson-Stevens Act serves as the chief authority for fisheries management in the U.S. Exclusive Economic Zone. Section 301(a) of the Magnuson-Stevens Act contains 10 national standards with which all FMPs and their amendments must be consistent. Section 301(b) of the Magnuson-Stevens Act requires that “the Secretary establish advisory guidelines (which shall not have the force and effect of law), based on the national standards, to assist in the development of fishery management plans.” Guidelines for the national standards are codified in Subpart D of 50 CFR part 600. The guidelines for the national standards were last revised through a final rule published in the Federal Register on May 1, 1998 (63 FR 24212), by adding revisions to the guidelines for National Standards 1 (OY), 2 (scientific information), 4 (allocations), 5 (efficiency), and 7 (costs and benefits), and adding new guidelines for National Standards 8 (communities), 9 (bycatch), and 10 (safety of life at sea). The guidelines for NS1 were revised extensively in the final rule published on May 1, 1998, to bring them into conformance to revisions to the Magnuson-Stevens Act, as amended in 1996 by the Sustainable Fisheries Act (SFA). In particular, the 1998 revisions to the NS1 guidelines addressed new requirements for FMPs brought about by SFA amendments to section 304(e) (rebuilding overfished fisheries).

Alternatives: If the proposed revisions to terminology are adopted, NMFS would request that Regional Fishery Management Councils (Councils) begin using the new terms in place of the old terms, revise FMP language related to the revised terminology the next time a Council submits an FMP amendment for Secretarial review. NMFS would begin using the new terms in its next Annual Report to Congress of the Status of U.S. Fisheries. Any codified language existing under 50 CFR Part 600 for fisheries managed under the Magnuson-Stevens Act related to “overfished”, “minimum stock size threshold”, and “maximum fishing mortality threshold,” would be revised by NMFS. For the proposed revisions to the NS1 guidelines other than terminology, the new guidelines would apply to some, but not all new actions submitted by a Council. Any new action, that includes new or revised SDC (“depleted” or “overfishing” definitions), OY control rules or rebuilding plans, would need to be developed and evaluated according to the revised NS1 guidelines. However, if a Council action containing SDC, OY control rules or rebuilding plans is already under development and a draft environmental impact statement’s (DEIS) notice of availability has already been published in the Federal Register, before the final rule implementing the revised NS1 guidelines is effective, then a Council could submit an FMP or FMP amendment under either the “old” or “new” NS1 guidelines. Likewise, if the public hearing draft of an FMP amendment or other regulatory action not containing an EIS has already been adopted by a Council for public hearing, before the final rule implementing the revised NS1 guidelines is effective, then a Council could submit an FMP or FMP amendment under either the “old” or “new” NS1 guidelines. After any final rule implementing the revisions to the NS1 guidelines becomes effective, if a Council submits an action (e.g., annual specifications, an FMP amendment, interim rulemaking, or a regulatory amendment) that does not involve new or revised SDC, OY control rules, or rebuilding plans, then that action could be reviewed and approved without the FMP being amended to bring existing SDC, OY control rules, and rebuilding plans into conformance with the new guidelines. The proposed action would still need to be in conformance with all of the national standard guidelines to be approvable. Any FMP amendment or other regulatory action that involves: (1) Proposed SDC, an OY control rule, or a rebuilding plan for a stock not previously managed by SDC or by a rebuilding plan; or (2) proposed revisions to SDC, an OY control rule, or a rebuilding plan for a stock already managed under SDC or by a rebuilding plan, then the proposed SDC, OY control rule, and/or rebuilding plan would need to comply with the new NS1 guidelines. Regarding the proposed recommendation that stocks in FMPs be managed according to core stocks and stock assemblages, if a Council determines that a given FMP only has core stocks (e.g., the Mid-Atlantic Council’s Spiny Dogfish FMP, the New England Council’s Atlantic Sea Scallops FMP, the Deep-Sea Red Crab FMP, and the FMP for the Gulf of Mexico Stone Crab Fishery), then the Council should make such a determination with accompanying rationale in its next FMP amendment. In the case of an FMP that has a mixture of SDC-known stocks and stocks having an “unknown status” related to SDC (e.g., Snapper-Grouper FMP) when a Council begins to align its management under “core stocks” and “stock assemblages,” the Council could begin such alignment in a stepwise fashion (in a series of separate FMP actions) for given core stocks or stock assemblages, once new or revised SDC, OY control rules, or rebuilding plans are developed. If a Council determines that the stepwise method is problematic it could take action to realign all of the FMP’s stocks into core stocks and stock assemblages in one action. If some stocks are not being managed effectively under a given FMP because their status relative to SDC is unknown, and the proposed revisions to the NS1 guidelines are approved, then the Council should re-evaluate those stocks as soon as possible, to decide whether or not any grouping of some or all stocks having an unknown status could be managed by an SDC under one or more indicator stocks, or through stock assemblage-wide SDC. A Council should clearly designate which stocks in the FMP are in the FMPs and thus subject to SDC and to inclusion in the NMFS Annual Report to Congress on the Status of U.S. Fisheries. Stocks that are listed as threatened or endangered under the Endangered Species Act would be exempt from being evaluated according to SDC, but must be evaluated against SDC within 1 year of being de-listed. Finally, stocks that are primarily dependent on artificial propagation from hatcheries would be exempt from being evaluated according to SDC. If any stocks are currently undergoing overfishing as part of an approved rebuilding plan (e.g., reductions in F are being phased in over a number of years until F is less than or equal to Film), then, the first time that the Council submits a revised rebuilding plan for those stocks, overfishing must be prevented, beginning in the first year of the revised rebuilding plan, except under circumstances listed under section 304(e)(4)(A) of the Magnuson-Stevens Act. In general, the Councils would not be required to amend their SDC, OY control rules and rebuilding plans approved under the SFA by any “date certain,” with the following exceptions. In the event that NMFS, on behalf of the Secretary of Commerce, determines that a fishery is overfished or approaching an overfished condition under section 304(e)(1) or (e)(2) of the Magnuson-Stevens Act, or a rebuilding plan needs to be revised under section 304(e)(7) of the Magnuson-Stevens Act, then the Council needs to take action consistent with the revised NS1 guidelines. NMFS should notify the appropriate Council if overfishing is occurring in a fishery, even if the fish stock is not determined to be overfished, under the same procedures as described in Section 304(e) (1) and (2) of the Magnuson-Stevens Act. If one or more stocks in an FMP do not currently have OY control rules, or the OY control rule equals its respective MY control rule, then the appropriate Council would need to develop and submit an FMP amendment or other appropriate regulatory action and analyses when the SDC or the rebuilding plan for such a fishery needs to be revised. Revisions are necessary when a stock’s rebuilding plan is not making adequate progress under section 304(e)(7) of the Magnuson-Stevens Act, or new data or an assessment indicates that SDC or the rebuilding target needs revision. A Council can submit an OY control rule for Secretarial review before SDC or the rebuilding plan needs to be revised, if it chooses to do so.

Anticipated Costs and Benefits: There will be no immediate economic or social impacts upon effectiveness of the final rule for the revised NS1 guidelines. Management actions that incorporate the new NS1 guidelines in their SDC, rebuilding plans would be evaluated individually and would not begin to have any economic or social impacts until about 1½ to 2 years after the effective date of this action.

Risks: The National Marine Fisheries Service intends to clarify, amplify and simplify the NS1 guidelines in several instances so that the regional fishery management councils and the public have a better understanding of how to: (1) Establish definitions for “depleted” and “overfishing” for fish stocks that vary in data quality, (2) construct and revise rebuilding plans, and (3) improve the ability of Councils and NMFS to comply with the requirements of section 304 of the Manson-Stevens Fishery Conservation and Management Act. The proposed revisions should improve the Councils’ ability to protect stocks of unknown status (i.e., core stocks and stock assemblages provision), manage towards ending overfishing and rebuilding overfished stocks (i.e., biomass stock size limits, OY control rules, rebuilding targets, revision of rebuilding plans) and provide better clarity in the NS1 guidelines. Improved conservation of various stocks should enhance the likelihood that optimum yield will be attained for those stocks, a chief goal of the Manson-Stevens Act.