NMFS Proposes Changes to National Standard 1

National Standard 1 (NS1) of the MSA states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry.

NMFS has issued an advance notice of proposed rulemaking  to provide background information and request public comment on potential adjustments to the National Standard 1 Guidelines, one of 10 national standards for fishery conservation and management contained in Section 301 of the Magnuson Stevens Fishery Conservation and Management Act.  This action provides the public with a formal opportunity to comment on the specific ideas, as well as any additional ideas and solutions that couldimprove provisions of the National Standard 1 Guidelines.


Section 301(a) of the Magnuson-Stevens Fishery Conservation and 

Management Act (MSA) contains 10 national standards for fishery 

conservation and management. Any fishery management plans (FMP) 

prepared under the MSA, and any regulation promulgated pursuant to the 

MSA to implement any such plan, must be consistent with these national 

standards. National Standard 1 (NS1) of the MSA states that 

conservation and management measures shall prevent overfishing while 

achieving, on a continuing basis, the optimum yield (OY) from each 

fishery for the U.S. fishing industry.


From 2007 to 2012, the 46 Federal FMPs have been amended to 

implement ACLs and AMs to end and prevent overfishing. In the course of 

this work, a number of issues regarding the application of the NS1 

Guidelines were identified that may warrant their revision. NMFS seeks 

public comments on these and any other issues related to NS1:

  1. Stocks in a fishery. The MSA requires that Councils develop FMPs 

for fisheries that require ``conservation and management'' (MSA 

302(h)(1)). The MSA provides the Councils with wide latitude in 

defining the scope of an FMP. Some FMPs include a relatively small 

number of species, focusing on the primary target species of the 

fishery. In other FMPs, a much broader range of species are included. 

The NS1 Guidelines establish and define Ecosystem Component (EC) 

species and provide that EC species may be included in the FMP but are 

not considered stocks in the fishery and thus are not required to have 

biological reference points or ACLs. There has been considerable 

discussion about the criteria for classifying EC species and the 

utility of the EC species concept. Thus, revision of the guidance may 

be warranted to further describe criteria for classifying stocks in a 

fishery and EC species.

      2. Overfishing and multi-year impacts. The current NS1 Guidelines 

provide that overfishing must be determined either by comparing catch 

to the overfishing limit (OFL) or by comparing fishing mortality to the 

maximum fishing mortality threshold (Sec.  600.310 (e)(2)(ii)(A)). 

Overfishing determinations are made for the most recent year for which 

there is information. Stakeholders have expressed interest in exploring 

alternative definitions of overfishing that would take a longer, multi-

year view of the impact of fishing on the stock's ability to produce 

maximum sustainable yield (MSY).

    3. Annual catch limits and optimum yield. In some fisheries, 

implementation of the guidance on acceptable biological catch (ABC) 

control rules, ACLs, and AMs has resulted in real or perceived 

reductions in catch. Questions have been raised about the relationship 

between ACLs and the objective of achieving the OY for a fishery. The 

MSA defines OY as being reduced from MSY to account for relevant 

economic, social, or ecological factors, and states that OY in an 

overfished fishery must provide for rebuilding the fishery (MSA 3(33)). 

There is interest from stakeholders in improving guidance to better 

address economic, social, and ecological considerations in the 

establishment of OY and to more clearly describe the relationship 

between ACL and OY.

    4. Mixed-stock fisheries and optimum yield. Management of mixed-

stock fisheries is challenging, because some stocks are relatively more 

abundant or are more or less susceptible to overfishing than others. 

The MSA requires that overfishing be prevented, and that the OY for a 

fishery provide for rebuilding overfished stocks. Nonetheless, some 

stakeholders believe that ACL and rebuilding requirements prevent them 

from achieving OY of healthy stocks. Further guidance on how OY should 

be specified to balance the multiple considerations in mixed-stock 

fisheries may be warranted.

    5. Scientific uncertainty and management uncertainty. The NS1 

Guidelines identify two types of uncertainty that should be addressed

when setting catch limits and accountability measures: Scientific 

uncertainty and management uncertainty (Sec.  600.310 (f)). Scientific 

uncertainty is related to the uncertainty of calculating the true OFL, 

and is addressed by a Council's Scientific and Statistical Committee 

(SSC) by setting ABC below the OFL. Management uncertainty is the 

uncertainty of controlling catch so that it does not exceed the ACL, 

and is addressed when setting AMs and in setting an annual catch target 

below the ACL. Some stakeholders believe that consideration of both 

scientific and management uncertainty causes ACLs to be overly 

precautionary. Further clarification on the consideration of scientific 

and management uncertainty may be warranted.

    6. Data poor stocks. Stocks without sufficient data to conduct a 

formal scientific stock assessment are considered to be data poor 

stocks. Establishing appropriate ACLs for data poor stocks can be 

challenging. The experience of the Councils and their SSCs in 

implementing ABCs and ACLs for data poor stocks may provide valuable 

information on which to base improvements in the NS1 Guidelines for 

data poor stocks.

    7. Acceptable biological catch control rules. The NS1 Guidelines 

require a Council to establish an ABC control rule for each stock and 

stock complex, based on scientific advice from its SSC (Sec.  600.310 

(f)). ABC control rules are a specified approach to setting the ABC 

that addresses scientific uncertainty, and incorporate a policy 

decision on the acceptable level of risk that overfishing might occur. 

A variety of ABC control rules have been implemented and a review of 

those control rules could lead to improvements in the NS1 Guidelines. 

In addition, for some fisheries there is interest in implementing 

provisions that carry over unharvested allocations from one year to the 

next. Guidance may be needed on how to consider carry-over within ABC 

control rules.

    8. Catch accounting. Questions have been raised by managers about 

the types of ``catch'' that must be considered within the ABC and ACL, 

particularly in regard to catch resulting from exempted fishing permits 

and scientific research activities. The definition of catch in the NS1 

Guidelines includes 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. In the final rule response to comment number 35 (74 FR 3718; 

January 16, 2009), NMFS stated that this definition would include 

allocations for scientific research and mortality from any other 

fishing activity. Additional guidance may be needed to clarify how to 

account for all sources of mortality (e.g., bycatch, scientific 

research catch, etc.) when establishing ABCs and ACLs.

    9. Accountability measures. AMs are management controls to prevent 

ACLs from being exceeded, and to correct or mitigate overages of the 

ACL if they occur. AMs must be tailored to the specific needs of a 

fishery, and are key to the success of ACL systems in ending and 

preventing overfishing. NMFS invites comments on the guidance for AMs.

    10. ACL exceptions. Under the MSA, stocks that have a life cycle of 

approximately 1 year and stocks subject to international agreements are 

not required to have ACLs. The NS1 Guidelines describe that the life 

cycle exception applies to ``a stock for which the average length of 

time it takes for an individual to produce a reproductively active 

offspring is approximately 1 year and that the individual has only one 

breeding season in its lifetime'' (Sec.  600.310 (h)(2)(i)). The NS1 

Guidelines also describe that the international agreement exception 

applies to stocks that are subject to ``any bilateral or multilateral 

treaty, convention, or agreement which relates to fishing and to which 

the United States is party'' (Sec.  600.310 (h)(2)(ii)). NMFS invites 

comments on the guidance pertaining to these exceptions from the ACL 


    11. Rebuilding progress and revising rebuilding plans. The current 

NS1 Guidelines address how NMFS should respond if a stock reaches the 

end of its rebuilding plan and is not fully rebuilt, or its rebuilding 

status is unknown. However, the guidelines do not address the situation 

that occurs during the course of a rebuilding plan when rebuilding 

progress is determined to be inadequate. Inadequate progress can result 

from a number of factors, including:

    a. Management measures that do not adequately control the fishery.

    b. Environmental factors that limit stock growth.

    c. Significant changes in the rebuilding target (Bmsy) resulting 

from a new stock assessment. NMFS intends to improve guidance on 

evaluating the progress of stocks in rebuilding plans and on revising 

the rebuilding plans in these situations.

Public Comments

To help determine the scope of issues to be addressed and to 

identify significant issues related to this action, NMFS is soliciting 

written comments on this ANPR. The public is encouraged to submit 

comments related to the specific ideas mentioned in this ANPR, as well 

as any additional ideas and solutions that could improve provisions of 

the NS1 Guidelines. In addition to considering revisions to the NS1 

Guidelines, NMFS will consider whether it may be more appropriate to 

address some topics in technical guidance reports or policy directives 

than to change the guidelines codified at 50 CFR 600.310. NMFS welcomes 

comment on the appropriateness and utility of additional technical 

guidance reports and policy directives.

DATES: Written comments regarding the issues in this ANPR must be 

received by 5 p.m., local time, on August 1, 2012.

ADDRESSES: You may submit comments on this document, identified by 

``NOAA-NMFS-2012-0059'', by any one of the following methods:

     Electronic Submissions: Submit all electronic public 

comments via the Federal eRulemaking Portal: www.regulations.gov. To 

submit comments via the e-Rulemaking Portal, first click the ``submit a 

comment'' icon, then enter ``NOAA-NMFS-2012-0059'' in the keyword 

search. Locate the document you wish to comment on from the resulting 

list and click on the ``Submit a Comment'' icon on the right of that 


     Fax: 301-713-1193, Attn: Wesley Patrick.

     Mail: Wesley Patrick; National Marine Fisheries Service, 

NOAA; 1315 East-West Highway, Room 13436; Silver Spring, MD 20910.

    Instructions: Comments must be submitted by one of the above 

methods to ensure that the comments are received, documented, and 

considered by NMFS. Comments sent by any other method, to another 

address or individual, or received after the end of the comment period, 

may not be considered. All comments received are part of the public 

record and will generally be posted for public viewing on 

www.regulations.gov without change. All personal identifying 

information (e.g., name, address, etc.) submitted voluntarily by the 

sender will be publicly accessible. Do not submit confidential business 

information or otherwise sensitive or protected information. NMFS will 

accept anonymous comments (enter ``N/A'' in the required fields if you 

wish to remain anonymous). Attachments to electronic comments will be 

accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 

formats only.

FOR FURTHER INFORMATION CONTACT: Wesley Patrick, Fisheries Policy 

Analyst, National Marine Fisheries Service, 301-427-8566.