[Federal Register Volume 74, Number 237 (Friday, December 11, 2009)]
[Proposed Rules]
[Pages 65724-65731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29589]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 0808041047-9114-02]
RIN 0648-AW62
Magnuson-Stevens Act Provisions; National Standard 2--Scientific
Information
AGENCY: National Marine Fisheries Service (NMFS); National Oceanic and
Atmospheric Administration (NOAA); Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes revisions to the guidelines for National
Standard 2 (NS2) of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) regarding scientific information. This action is
necessary to provide guidance on the use of best scientific information
available (BSIA) for the effective conservation and management of the
nation's marine living resources. NMFS proposes to modify the existing
NS2 guidelines on BSIA and establish new guidelines for scientific peer
review to ensure the reliability, credibility, and integrity of the
scientific information used in fishery conservation and management
measures. Further, NMFS is proposing to add language to the guidelines
regarding the role of the Scientific and Statistical Committees (SSCs)
of the Regional Fishery Management Councils (Councils), and the
relationship of SSCs to the peer review process. The proposed NS2
guidelines will also clarify the content and purpose of the Stock
Assessment and Fishery Evaluation (SAFE) Report and related documents.
These actions are necessary to ensure the use of BSIA in the
development of fishery management plans and plan amendments, as
required by NS2 of the MSA. The intended effect of these actions is to
ensure that scientific information, including its collection and
analysis, has been validated through formal peer review or other
appropriate review, is transparent, and is used appropriately by SSCs,
Councils, and NMFS in the conservation and management of marine
fisheries. These guidelines are designed to provide quality standards
for the collection and provision of biological, ecological, economic,
and sociological information to fishery managers, Councils, and the
public, while recognizing regional differences in fisheries and their
management.
DATES: Written comments must be received by March 11, 2010.
ADDRESSES: You may submit comments, identified by 0648-AW62, by any one
of the following methods:
Electronic Submissions: Submit all electronic comments via
the Federal eRulemaking Portal http://www.regulations.gov.
Fax: Attn: William Michaels 301-713-1875.
Mail: William Michaels, NOAA Fisheries Service, Office of
Science and Technology, F/ST4, 1315 East-West Highway, Silver Spring,
MD 20910.
Instructions: No comments will be posted for public viewing until
after the comment period has closed. All comments received are a part
of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying
information (for example, name address, etc.) voluntarily submitted by
the commenter may 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, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: William Michaels, 301-713-2363 x136.
SUPPLEMENTARY INFORMATION:
I. Overview of Proposed Revisions to the Guidelines for National
Standard 2
Section 301(a)(2) of the MSA specifies that fishery conservation
and management measures shall be based upon the best scientific
information available. Section 301(b) of the MSA states that ``the
Secretary (of Commerce) shall establish advisory guidelines
[[Page 65725]]
(which shall not have the force and effect of law), based on national
standards, to assist in the development of fishery management plans.''
The existing national standard guidelines appear at 50 CFR 600.310
through 600.355. The Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act (MSRA) of 2006 included provisions to
improve the use of science in decisionmaking, provide a stronger role
for Councils' SSCs, and establish an optional peer review process for
scientific information used to advise Councils about conservation and
management of fisheries. Therefore, NMFS is proposing revisions to the
NS2 guidelines to address these MSA provisions and provide guidance and
recommendations on peer review processes. NMFS published an advanced
notice of proposed rulemaking (ANPR) in the Federal Register on
September 18, 2008 (73 FR 54132). NMFS has carefully considered the
public comments received in developing this proposed rule.
II. Major Components of the Proposed Action
A. Best Scientific Information Available (BSIA)
In 2004, the National Research Council (NRC) of the National
Academies examined the application of the BSIA standard in the
development of fishery conservation and management measures. The NRC
recommended approaches to more uniformly apply the BSIA standard for
current and future fishery management actions. The NRC recommendations
are available in the NRC (2004) publication entitled ``Improving the
Use of the `Best Scientific Information Available' Standard in
Fisheries Management'' (2004, http://books.nap.edu/openbook.php).
NMFS proposes that the 2004 NRC recommendations regarding the use
of BSIA for fishery management should be incorporated to the extent
possible in this proposed revision to the NS2 guidance. The ANPR
comments provided a nearly unanimous recommendation that the NS2
guidelines be revised to incorporate the NRC recommendations, and that
an overly prescriptive definition of BSIA should be avoided due to the
dynamic nature of science. Therefore, as recommended by the NRC, the
proposed NS2 guideline revisions are based on the following widely
accepted principles for evaluating BSIA: Relevance, inclusiveness,
objectivity, transparency, timeliness, verification, validation, and
peer review of fishery management information as appropriate. NMFS also
agrees with the comments that the NS2 guidelines should not prescribe a
static definition of BSIA because of the dynamic developments inherent
in making improvements in scientific information for fishery
management.
The availability of scientific information to inform fisheries
management varies. Ecosystems and human societies are complex,
interacting, dynamic systems that are impacted by multiple factors,
including those within the scope of fisheries management. Some
fisheries are well studied and have much information from long-term
annual research surveys and comprehensive biological, social, and
economic fisheries data collection programs. Other fisheries do not
have the same breadth of information available. In light of this
variability, the proposed NS2 guideline revisions elevate the
importance of evaluating the uncertainty and associated risk of the
scientific information used to help inform fishery management
decisions.
Similarly, the time available to review scientific information and
the importance of that information to fishery management decisions are
also variable. As a general rule, substantial management alternatives
considered by a Council should be peer reviewed, but in some cases,
formal peer review may not be possible due to time and resource
constraints. For example, Councils may request that a NMFS Science
Center provide calculations or analyses used in the development and
assessment of fishery management alternatives for area-based or time-
based harvest limits. It may be impractical to submit that scientific
information to a formal peer review due to time and resource
constraints. However, the development of such scientific information
should be in accordance with the principles of transparency and
openness set forth in this proposed action.
The proposed NS2 guidelines provide guidance that is fundamental
for the reliability and integrity of scientific information to be used
by NMFS and the Councils to effectively manage and conserve our
nation's living marine resources.
B. Peer Review Processes
Pursuant to its authority under the Information Quality Act (Pub.
L. 106-554, Section 515), the Office of Management and Budget (OMB)
issued a Final Information Quality Bulletin for Peer Review (70 FR
2664, January 14, 2005) that establishes minimum peer review
requirements for ``influential scientific information'' disseminated by
Federal agencies. As described in section II.C, a Council's SSC is
responsible for providing ongoing scientific advice to its Council for
fishery management decisions. However, section 302(g)(1)(E) of the MSA
provides for an optional peer review process: ``(T)he Secretary and
each Council may establish a peer review process for that Council for
scientific information used to advise the Council about the
conservation and management of the fishery.'' If the Secretary and a
Council establish such a process, it will be deemed to satisfy the
requirements of the Information Quality Act, including the OMB Peer
Review Bulletin guidelines. This proposed action provides guidance and
national quality standards that are widely accepted, which should be
followed in order to establish a peer review process per section
302(g)(1)(E). This action provides flexibility to maintain existing
peer review processes established by the Secretary and Councils and
also clarifies the role of the Councils' SSCs in the scientific review
process.
Section 302(g)(1)(E) peer review processes must be carefully
designed to maximize the likelihood of an outcome that is objective,
provides useful information, and meets the intent or scope of work of
the particular process. This proposed action adopts many of the OMB
peer review standards, including balance in the peer review process in
terms of expertise, knowledge, and bias; lack of conflicts of interest;
independence from the work being reviewed; and transparency of the
process. A peer review may take many forms, including individual letter
or written review or panel reviews. The amount of time and resources
spent on any particular review may depend on the novelty and complexity
of the scientific information being reviewed. Peer reviewers who are
federal employees must comply with all applicable federal ethics
requirements (available at: http://www.usoge.gov/federal_employees.aspx). Potential reviewers who are not federal employees must
be screened for conflicts of interest in accordance with the procedures
set forth in the NOAA Policy on Conflicts of Interest for Peer Review
subject to OMB's Peer Review Bulletin (available at: http://www.cio.noaa.gov/Policy_Programs/NOAA_PRB_COI_Policy_110606.html).
The nature and scope of each peer review should be developed and
defined prior to the selection of reviewers, to ensure reviewers with
the
[[Page 65726]]
appropriate expertise and skills are selected.
Peer review processes established by the Secretary and a Council
for that Council should not be duplicative and should focus on
providing review for information that has not already undergone
rigorous peer review. When the Secretary and a Council develop a peer
review process per MSA section 302(g)(1)(E), the proposed NS2
guidelines provide that they must publish a notice and brief
description of the process in the Federal Register, make a complete,
detailed description of the process publicly available on the Council's
Web site, and update it as necessary.
The proposed NS2 guidelines are not intended to replace or result
in the duplication of effective peer review processes that have already
been established by NMFS and the Councils, such as the Stock Assessment
Review Committee (SARC), Southeast Data Assessment Review (SEDAR),
Stock Assessment Review (STAR), and Western Pacific Stock Assessment
Review (WPSAR). Section 302(g)(1)(E) provides that the peer review
process established by the Secretary and a Council may include existing
committees or panels. The aforementioned existing peer review processes
(SARC, SEDAR, STAR and WPSAR) may qualify as 302(g)(1)(E) review
processes, but the Secretary, in conjunction with the relevant
Councils, has not yet made that determination. If such a determination
is made, the Secretary will announce the decision in the Federal
Register.
The impact of the proposed action on current Council peer review
practices should be minimal since the proposed peer review standards
are consistent with OMB's policy and presently incorporated in the
existing peer review processes established by the Secretary and
Councils. However, it may be necessary to refine those existing review
processes in accordance with these proposed guidelines.
C. The Role of the SSC in the Review of Scientific Information
The proposed NS2 guidelines address several roles of the SSC and/or
SSC members: the SSC as scientific advisor to its Council; the SSC as a
peer review panel; and SSC members' participation on other peer review
panels. With regard to the advisory role, the proposed NS2 guidelines
provide that the SSCs are the scientific advisory bodies to the
Councils.
Section 302(g)(1)(A) of the MSA mandates that ``Each Council shall
establish, maintain, and appoint the members of a scientific and
statistical committee to assist it in the development, collection,
evaluation, and peer review of such statistical, biological, economic,
social, and other scientific information as is relevant to such
Council's development and amendment of any fishery management plan.''
As stated in MSA section 302(g)(1)(B), each SSC ``shall provide its
Council ongoing scientific advice for fishery management decisions,
including recommendations for acceptable biological catch, preventing
overfishing, maximum sustainable yield, and achieving rebuilding
targets, and reports on stock status and health, bycatch, habitat
status, social and economic impacts of management measures, and
sustainability of fishing practices.''
Questions have arisen with regard to the role of the SSC and peer
review process under MSA section 302(h)(6). That section states that
``each Council shall * * * develop annual catch limits for each of its
managed fisheries that may not exceed the fishing level recommendations
of its scientific and statistical committee or the peer review process
established under subsection (g).'' A possible interpretation of this
section is that a Council could not exceed the fishing level
recommendation of either the SSC or peer review process; the lower of
the two levels would be the limit. However, NMFS believes that section
302(h)(6) should not be interpreted so as to displace the SSC's role in
providing advice and recommendations to the Council. While MSA provides
for establishment of peer review processes, such processes are
optional, and as noted above, MSA section 302(g)(1)(A)-(B) mandates the
types of advice the SSC provides for fishery management decisions.
Further, as a practical matter, it is not clear how often an SSC or
peer review panel would be generating different fishing level
recommendations. The purpose of a peer review process is to ensure the
quality and credibility of scientific information, rather than
providing a specific result, such as a fishing level recommendation.
To address the above issues, as reflected in section (b)(1)(ii) of
the proposed NS2 guidelines, a peer review process per section
302(g)(1)(E) should be conducted early in the scientific evaluation
process, in order to provide the SSC with a reasonable opportunity to
review the peer review report and make recommendations to the Council.
The proposed NS2 guidelines also state that the SSC may provide a
recommendation to its Council that is inconsistent with the findings of
a peer review, in whole or in part, but in such cases, the SSC should
prepare a report outlining the areas of disagreement and the rationale
and information supporting the SSC's determination. The proposed
guidelines also state that the SSC should not repeat the peer review
process by conducting a subsequent detailed technical review.
With regard to the SSC conducting a peer review of scientific
information, the proposed action provides that the SSC's review should
be complementary to, and not duplicative of, existing peer review
processes established by the Secretary and each Council. Council and
SSC members are encouraged to learn about the details in assessments
and peer reviews by attending working group and peer review meetings
that occur before any formal SSC evaluations of the scientific
information are made.
With regard to SSC members, the proposed NS2 guidelines state that
an SSC member may participate in the peer review of scientific
information when beneficial due to the expertise and regional knowledge
of the SSC member, as long as the SSC member meets the peer review
quality standards as described in this proposed action. For an SSC
member to participate in a peer review, the proposed action requires
screening the SSC member as well as all other potential reviewers for
conflicts of interest pursuant to NOAA's Policy on Conflicts of
Interest for Peer Reviews Subject to OMB's Peer Review Bulletin. That
policy limits review of one's own work. Furthermore, this proposed
action provides that the review and evaluation of scientific
information by the Councils' SSCs should be transparent, and include
the recording of minority viewpoints.
Many ANPR comments focused on the evaluation and recommendations of
the SSCs on the scientific information for catch-level specifications
and pertinent measures of uncertainty; however, these issues were
addressed in the recent revisions to the MSA National Standard 1 (NS1)
guidelines (74 FR 3178, January 16, 2009).
D. SAFE Reports
The Secretary of Commerce (Secretary) has the responsibility for
preparation and review of SAFE reports. The current NS2 guidelines
state that the SAFE report is a document or set of documents that
provides the Councils with a summary of scientific information, and
contain specifications on the contents of SAFE reports. This proposed
action would provide further clarification on the purpose and content
of the SAFE report. Specifically, it provides guidance on the
scientific
[[Page 65727]]
information that should be included in the SAFE to enable the SSC to
fulfill its role in providing its Council with ongoing scientific
advice for fishery management decisions.
ANPR comments suggested that a SAFE report should be a single
report; however the proposed action maintains the existing NS2
guidelines language that describes the SAFE as a document or set of
documents. This is necessary to provide the Secretary flexibility in
the preparation of the SAFE report and accommodates differing regional
practices with regard to the SAFE report. These proposed guidelines
clarify that the SAFE report should include essential fish habitat
(EFH) information, in accordance with the EFH provisions contained in
Sec. 600.815(a)(10), as a stand-alone chapter or clearly noted
section.
The proposed NS2 guideline revisions contain provisions intended to
facilitate the use of information in the SAFE reports and its
availability to the Councils, NMFS, and public. For example, the
proposed NS2 guideline revisions specify, as recommended by ANPR
comments, that SAFE reports or similar documents must be made available
by the Council or NMFS on a Web site accessible to the public, and that
they include a summary of the information they contain and an index or
table of contents of each component that comprises the SAFE report.
The proposed action would amend the existing NS2 guidelines by
deleting the recommendation that the SAFE report contain information on
safety for the fishery at issue. Safety of life at sea is now addressed
in the National Standard 10 guidelines at Sec. 600.355.
E. Fishery Management Plan (FMP) Development
This proposed action maintains the current NS2 guidelines language
on FMP development, with only minor changes to the organization of the
text.
III. References Cited
National Research Council of the National Academies (NRC). 2004.
Improving the use of the ``best scientific information available''
standard in fisheries management. The National Academies Press,
Washington, DC 105 pp.; http://www.nap.edu/openbook.php.
NOAA Office of the Chief Information Officer & High Performance
Computing and Communications. 2006. National Oceanic and Atmospheric
Administration Policy on Conflicts of Interest for Peer Review Subject
to OMB Peer Review Bulletin. NOAA Memorandum, November 6, 2006; http://www.cio.noaa.gov/Policy_Programs/NOAA_PRB_COI_Policy_110606.html.
Office of Management and Budget (OMB). 2004. Final Information
Quality Bulletin for Peer Review. Executive Office of the President,
Office of Management and Budget, memorandum M-05-03; December 16, 2004.
Classification
The NMFS Assistant Administrator has determined that this proposed
action is consistent with the provisions of the MSA and other
applicable law, subject to further consideration after public comment.
This proposed action has been determined to be not significant for
purposes of Executive Order 12866.
NMFS has prepared a regulatory impact review of this action, which
is available at: http://www.nmfs.noaa.gov/msa2007/otherprovisions.html.
This analysis describes the economic impact this proposed action, if
adopted, would have on small entities of the United States. NMFS
invites the public to comment on this proposal and the supporting
analysis.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that these proposed revisions to the NS2 guidelines, if
adopted, would not have any significant economic impact on a
substantial number of small entities, as follows:
I certify that the attached proposed action issued under the
authority of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) will not have any significant economic impacts
on a substantial number of small entities, as defined under the
Regulatory Flexibility Act. The proposed action would revise the
National Standard 2 (NS2) guidelines at 50 CFR 600.315.
The proposed revisions to the NS2 guidelines provide guidance
on: use of ``best scientific information available;'' standards for
discretionary peer review processes established by the regional
Fishery Management Councils (Councils), in conjunction with the
Secretary of Commerce; the role of the Councils' Scientific and
Statistical Committees (SSCs) in the review and evaluation of
scientific information; and requirements for Stock Assessment and
Fishery Evaluation (SAFE) reports. Pursuant to section 301(b) of the
MSA, the NS guidelines do not have the force and effect of law.
Councils and the Secretary of Commerce would use the NS2 guidelines
when developing or amending Fishery Management Plans (FMPs) and
regulations to implement FMPs and FMP amendments. NMFS believes that
revisions to the NS2 guidelines will assist the Councils and the
Secretary in addressing new MSA requirements intended to strengthen
the role of science in fishery management actions.
When NMFS takes fishery management actions, such actions
typically could have impacts on vessel owners and operators and
dealers. In this case, the proposed action would provide procedural
guidance to the Secretary and Council regarding the development of
fishery conservation and management measures. Because the NS2
guidelines are general guidance and focus on scientific information
and review processes, they would not have any economic impacts on
vessel owners, operators, dealers, or any other entities. The NS2
guidelines leave considerable discretion to the Councils and the
Secretary to consider alternative ways to accomplish fishery
conservation and management goals consistent with the NS, other
provisions of the Magnuson-Stevens Act, and other applicable law. As
the Councils and/or the Secretary develop FMPs, FMP amendments, or
other regulatory actions, the actions will be accompanied by
environmental, economic, and social analyses prepared pursuant to
the Regulatory Flexibility Act, National Environmental Policy Act,
and other statutes. Therefore, an IRFA has not been prepared for
this action.
These proposed revisions to the NS2 guidelines do not contain
any new recordkeeping or reporting requirements subject to the
Paperwork Reduction Act. When the Councils and the Secretary develop
FMPs, FMP amendments, or other regulatory actions per the Magnuson-
Stevens Act and NS2 guidelines, such actions may include new
proposed collection-of-information requirements. In the event that
new collection-of-information requirements are proposed, a specific
analysis regarding the public's reporting burden would accompany
such action. NMFS is not aware of any other relevant Federal rules
that may duplicate, overlap or conflict with the proposed action.
List of Subjects in 50 CFR Part 600
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: December 7, 2009.
Steve A. Murawski,
Director of Scientific Programs and Chief Science Advisor, National
Marine Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 600 is proposed
to be amended as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
1. The authority citation for part 600 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 600.315 is revised to read as follows:
Sec. 600.315 National Standard 2--Scientific Information.
(a) Standard 2. Conservation and management measures shall be based
upon the best scientific information available.
(1) Fishery conservation and management require high quality and
[[Page 65728]]
timely biological, ecological, economic, and sociological scientific
information to effectively conserve and manage living marine resources.
Successful fishery management depends, in part, on the thorough
analysis of this information, and the extent to which the information
is applied for evaluating the impact that conservation and management
measures will have on living marine resources, essential fish habitat
(EFH), marine ecosystems, fisheries participants, fishing communities,
and the nation.
(2) Scientific information that is used to inform decision making
should include an evaluation of its uncertainty and identify gaps in
the information. Management decisions should recognize the biological
(e.g., overfishing), ecological, sociological, and economic (e.g., loss
of fishery benefits) risks associated with the sources of uncertainty
and gaps in the scientific information. Limitations in scientific
information may not be used as a justification for delaying fishery
management actions.
(3) Information from data-poor fisheries may require use of simpler
assessment methods and greater use of proxies for quantities that can
not be directly estimated, as compared to data-rich fisheries.
(4) Scientific information includes, but is not limited to, factual
input, data, models, analyses, technical information, or scientific
assessments. Scientific information can be conveyed through data
compiled directly from surveys or sampling programs, or through models
that are mathematical representations of reality constructed with
primary data. The complexity of the model should not be the defining
characteristic of its value; the data requirements and assumptions
associated with a model should be commensurate with the resolution and
accuracy of the available primary data.
(5) Science is a dynamic process, and new scientific findings
constantly advance the state of knowledge. Best scientific information
is, therefore, not static and entails developing and following a
research plan with the following elements: Clear statement of
objectives; conceptual model that provides the framework for
interpreting results, making predictions, or testing hypotheses; study
design with an explicit and standardized method of collecting data;
documentation of methods, results, and conclusions; peer review, as
appropriate; and communication of findings.
(6) Principles for evaluating best scientific information must be
based on 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,
relevant 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 related stocks or
species is a powerful 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 particular behavioral responses from participants or
business decisions from industry, such social and economic information
may be relevant.
(ii) Inclusiveness. Three aspects of inclusiveness should be
considered when developing and evaluating best scientific information:
(A) The relevant range of scientific disciplines should be
consulted to encompass the scope of potential impacts of the management
decision.
(B) Alternative points of view should be acknowledged and addressed
openly when there is a diversity of scientific thought.
(C) Relevant local and traditional knowledge should be acknowledged
(i.e., fishermen's empirical knowledge about the behavior and
distribution of fish stocks). To the extent possible, an effort should
be made to reconcile scientific information with local and traditional
knowledge.
(iii) Objectivity. Scientific information should use standards for
objectivity that prevent non-scientific considerations from impacting
on its scientific integrity. The objectivity standards should ensure
that information is accurate, reliable, and unbiased, and that
information products are presented in an accurate, clear, complete, and
balanced manner.
(iv) Transparency and openness.--(A) The Magnuson-Stevens Act
provides broad public and stakeholder access to the fishery
conservation and management process, including access to the scientific
information upon which the process and management measures are based.
Subject to the Magnuson-Stevens Act confidentiality requirements, the
public should have access to each stage in the development of
scientific information, from data collection, to analytical modeling,
to decision making. Public comment should be solicited at appropriate
times during the development of scientific information. Communication
with the public should be structured to foster understanding of the
scientific process.
(B) Scientific information products should describe data collection
methods, 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.
Finally, such products should openly acknowledge gaps in scientific
information.
(v) Timeliness.--(A) Sufficient time should be allotted to analyze
recently acquired data to ensure its reliability and that it has been
audited and subjected to appropriate review before it is used to inform
management decisions. For those data that require being updated on a
regular basis, the temporal gap between information collection and
management implementation should be as short as possible, subject to
regulatory constraints, and should be explicitly considered when
developing conservation and management measures. In particular, late
submission of scientific information to the Council process should be
avoided if the information has circumvented the review process.
(B) Timeliness may also mean that in some cases, results of
important studies or monitoring programs must be brought forward before
a study is complete. Uncertainties and risks that arise from an
incomplete study should be acknowledged, but interim results may be
better than no results to help inform a management decision. Management
decisions should not be delayed due to data limitations or the promise
of future data collection or analysis.
(C) Historical information should be evaluated for its relevance,
to inform the current situation. For example, species' life history
characteristics may not change over time, and so remain relevant. Other
time-series data (e.g., abundance, catch statistics, market and trade
trends) provide context for changes in fish populations, fishery
participation, and effort, and therefore provide valuable information
to inform current management decisions.
(vi) Verification and validation.-- Methods used to produce
scientific information should be verified and validated to the extent
possible.
(A) Verification means that the data and procedures used to produce
the
[[Page 65729]]
scientific information are documented in sufficient detail to allow
reproduction of the analysis by others with an acceptable degree of
precision. External reviewers of scientific information require 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 precision of the estimates is adequate, model estimates
are unbiased, 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
characteristics. The concept of validation using simulation testing
should be used, to the extent possible, to evaluate how well a
management strategy meets management objectives.
(vii) Peer review. Peer review is a process used to ensure that the
quality and credibility of scientific information and scientific
methods meet the standards of the scientific and technical community.
Peer review helps ensure objectivity, reliability, and integrity of
scientific information. The peer review process is an organized method
that uses peer scientists with appropriate and relevant expertise to
evaluate scientific information.
(viii) To the extent practicable, substantial fishery management
alternatives considered by a Council should be peer reviewed. Factors
to consider when determining whether to conduct a peer review and if
so, the appropriate level of review, include the novelty and complexity
of the scientific information to be reviewed, the level of previous
review and the importance of the information to be reviewed to the
decision making process. If formal peer review is not practicable due
to time or resource constraints, the development and analysis of
scientific information used in or in support of fishery management
actions should be as transparent as possible, in accordance with
paragraph (a)(6)(iv) of this section.
(b) Peer review process. The Secretary and each Council may
establish a peer review process for that Council for scientific
information used to advise about the conservation and management of the
fishery (Magnuson-Stevens Act section 302(g)(1)(E)). A peer review
process is not a substitute for an SSC and should work in conjunction
with the SSC (see Sec. 600.310(b)(2)(v)(C)). This section provides
guidance and standards that should be followed in order to establish a
peer review process per section 302(g)(1)(E).
(1) The objective or scope of the peer review, the nature of the
scientific information 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 for each Council
should focus on providing review for information that has not yet
undergone rigorous peer review, but that must be peer reviewed in order
to provide reliable, high quality scientific advice for fishery
conservation and management. Duplication of previously conducted peer
review should be avoided.
(i) Form of process. The peer review process may include or consist
of existing Council committees or panels if they meet the standards
identified herein. The Secretary and Council have discretion to
determine the appropriate peer review process for a specific
information product. A peer review can take many forms, including
individual letter or written reviews, and panel reviews.
(ii) Timing. The peer review should be conducted early in the
process of producing scientific information or a work product, to the
extent practicable. The timing will depend 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 investment of time and resources
in implementing the model and interpreting the results. The results of
this type of peer review may contribute to improvements in the model or
assessment.
(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 selection of reviewers. The scope of work contains the
objective of the specific advice being sought. The scope of work should
be carefully designed, with specific technical questions to guide the
peer review process; it should ask peer reviewers to ensure that
scientific uncertainties are clearly identified and characterized, it
should allow peer reviewers the opportunity to offer a broad evaluation
of the overall scientific or technical product under review, and it
must not change during the course of the peer review. The scope of work
may not request reviewers to provide advice on scientific policy (e.g.,
amount of uncertainty that is acceptable or amount of precaution used
in an analysis). Such policy considerations are in the purview of the
Secretary and the Councils.
(2) Peer reviewer selection. The selection of participants in a
peer review must be based on expertise, independence, and a balance of
viewpoints, and be free of conflicts of interest.
(i) Expertise and balance. Peer reviewers must be selected based on
scientific expertise and experience relevant to the disciplines of
subject matter to be reviewed, including a balance in perspectives. The
group of reviewers that constitute the peer review should have
sufficiently broad and diverse expertise to represent the range of
relevant scientific and technical perspectives to complete the
objectives of the peer review.
(ii) Conflict of interest. Peer reviewers who are federal employees
must comply with all applicable federal ethics requirements. Peer
reviewers who are not federal employees must comply with the following
provisions. Peer reviewers must not have any real or perceived
conflicts of interest with the scientific information, 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 interest which conflicts with the
service of the individual on a review panel because it:
(A) Could significantly impair the reviewer's objectivity; or
(B) Could create an unfair competitive advantage for a person or
organization.
(C) Except for those situations in which a conflict of interest is
unavoidable, and the conflict is promptly and publicly disclosed, 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.
Conflicts of interest include, but are not limited to, the personal
financial interests and investments, employer affiliations, and
consulting arrangements, grants, or contracts of the individual and of
others with whom the individual has substantial common financial
interests, if these interests are relevant to the functions to be
performed. Potential reviewers must be screened for conflicts of
interest in accordance with the procedures set forth in the NOAA Policy
on Conflicts of Interest for Peer Review subject to OMB's Peer Review
Bulletin.
(iii) Independence. Peer reviewers must not have participated in
the development of the work product or scientific information under
review. For peer review of some work products or scientific
information, a greater degree of independence may be necessary to
assure credibility of the peer review process; reviewers should not be
employed by the Council or entity that produced or utilizes the product
for
[[Page 65730]]
management decisions. Peer review responsibilities should rotate across
the available pool of qualified reviewers or among the members on a
standing peer review panel, recognizing that, in some cases, repeated
service by the same reviewer may be needed because of essential
expertise.
(3) Transparency. A transparent process is one that allows the
public full and open access to peer review panel meetings, background
documents, and reports, subject to Magnuson-Stevens Act confidentiality
requirements. The evaluation and review of scientific information by
the Councils and their advisory panels must also be publicly
transparent in accordance with the Councils' requirements for notifying
the public of meetings. The date, time, location, and terms of
reference (scope and objectives) of the peer review should be publicly
announced 14 days before the review to allow public comments during
meetings. Background documents should be available for public review in
a timely manner prior to meetings. Peer review reports describing the
scope and objectives of the review, findings in accordance with each
objective, and conclusions should be publicly available. Names and
organizational affiliations of reviewers also should be publicly
available prior to review.
(4) Publication of the peer review process. 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 information on
such processes will be made publicly available on the Council's Web
site, and updated as necessary.
(c) SSC scientific advice to the Council. Each scientific and
statistical committee shall provide its Council ongoing scientific
advice for fishery management decisions, including recommendations for
acceptable biological catch, preventing overfishing, maximum
sustainable yield, and achieving rebuilding targets, and reports on
stock status and health, bycatch, habitat status, social and economic
impacts of management measures, and sustainability of fishing practices
(Magnuson-Stevens Act 302(g)(1)(B)).
(1) SSC scientific advice and recommendations to the Councils based
on review and evaluation of scientific information must meet the
guidelines of best scientific information available as described in
paragraph (a) of this section. SSCs may conduct peer reviews,
participate in peer reviews, or evaluate peer reviews to provide clear
scientific advice to the Council. Such scientific advice should attempt
to resolve conflicting scientific information, so that the Council will
not be forced to engage in debate on technical merits. Debate and
evaluation of scientific information should be part of the role of the
SSC.
(2) SSC members may participate in a peer review when such
participation is beneficial to the peer review due to the expertise and
institutional memory of that SSC member, or beneficial to the Council's
advisory body by allowing that SSC member to make a more informed
evaluation of the scientific information. Participation of a SSC member
in a peer review should not impair the ability of that SSC member to
accomplish the advisory responsibilities to the Council.
(3) If an SSC as a body, or individual members of an SSC, conducts
or participates in a peer review, those SSC members must meet the peer
reviewer selection criteria as described in paragraph (b)(2) of this
section. These guidelines require separate consideration from those of
Sec. 600.235, Financial Disclosure for Councils and Council
committees. Additionally, when the SSC as a body is conducting a peer
review, it should strive for consensus and meet the transparency
guidelines for best scientific information available and peer reviews
as described in 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 review conducted by a body other
than the SSC should be linked to the extent and quality of peer review
that has already taken place. For Councils with extensive 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
conducted and detailed technical peer review. However, SSCs must
maintain their role as advisors to the Council about scientific
information that comes from an external peer review process. Therefore,
the peer review of scientific information used to advise the Council,
including a peer review process established 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 reasonable opportunity to review the peer review
report and make recommendations to the Council as required under
Magnuson-Stevens Act section 302(g)(1)(B).
(5) If the evaluation of scientific information by the SSC is
inconsistent with the findings or conclusions of a peer review, in
whole or in part, the SSC should prepare a report outlining the areas
of disagreement, and the rationale and information used by the SSC for
making its determination.
(6) Annual catch limits (ACLs) may not exceed the SSC's
recommendations for fishing levels (Magnuson-Stevens Act section
302(h)(6)). The SSC recommendation that is most relevant to ACLs is
acceptable biological catch (ABC), as both ACL and ABC are levels of
annual catch (see Sec. 600.310(b)(2)(v)(D)). Any peer review related
to such recommendations should be conducted early in the process as
described in paragraph (c)(4) of this section. The SSC should resolve
differences between its recommendations and any relevant peer review
recommendations per paragraph (c)(5) of this section.
(d) SAFE Report. The term SAFE (Stock Assessment and Fishery
Evaluation) report, as used in this section, refers to a public
document or a set of related public documents, that provides Councils
with a summary of scientific information concerning the most recent
biological condition of stocks, stock complexes, and marine ecosystems
in the fishery management unit (FMU), essential fish habitat (EFH), and
the social and economic condition of the recreational and commercial
fishing interests, fishing communities, and the fish processing
industries. It summarizes, on a periodic basis, the best scientific
information available concerning the past, present, and possible future
condition of the stocks, EFH, marine ecosystems, and fisheries being
managed under Federal regulation.
(1) The Secretary has the responsibility to assure that SAFE
reports are prepared and updated or supplemented as necessary whenever
new information is available that requires a revision to the status
determination criteria (SDC) or is likely to affect the overfishing
level (OFL), optimum yield, or ABC values (Sec. 600.310(c)). The SAFE
report and any comments or reports from the SSC must be available to
the Council for making its management decisions for each FMP to ensure
that the best scientific information available is being used. The
Secretary or Councils may utilize any combination of personnel from
Council, state, Federal, university, or other sources to acquire and
analyze data and produce the SAFE report.
(2) The SAFE report provides information to the Councils and the
[[Page 65731]]
Secretary for determining annual catch limits (Sec. 600.310(f)(5)) for
each stock in the fishery; documenting significant trends or changes in
the resource, marine ecosystems, and fishery over time; implementing
required EFH provisions (Sec. 600.815(a)(10)); and assessing the
relative success of existing state and Federal fishery management
programs. In addition, the SAFE report may be used to update or expand
previous environmental and regulatory impact documents and ecosystem
descriptions.
(3) Each SAFE report should contain the following:
(i) A description of the SDC (e.g., maximum fishing mortality rate
threshold and minimum stock size threshold for each stock or stock
complex in the fishery) (Sec. 600.310(e)(2)), along with information
to determine:
(A) Whether overfishing is occurring with respect to any stock or
stock complex, whether any stock or stock complex is overfished,
whether the rate or level of fishing mortality applied to any stock or
stock complex is approaching the maximum fishing mortality threshold,
and whether the size of any stock or stock complex is approaching the
minimum stock size threshold; and
(B) Any management measures necessary to rebuild an overfished
stock or stock complex (if any) in the fishery to a level consistent
with producing the MSY in that fishery.
(ii) Information on which to base catch specifications, including
the most recent stock assessment documents and associated peer review
reports, and recommendations and reports from the Council's SSC on OFL
and ABC, preventing overfishing, and achieving rebuilding targets.
Documentation of the data collection, estimation methods, and
consideration of uncertainty in formulating catch specification
recommendations should be included (see also Sec. 600.310(f)(2)-(4)).
(iii) Information on sources of fishing mortality (both landed and
discarded), including commercial and recreational catch and bycatch in
other fisheries and description of data collection and estimation
methods used to quantify total catch mortality, as required by National
Standard 1 (Sec. 600.310(i)).
(iv) Information on bycatch of non-target species for each fishery.
(v) Review and evaluations of EFH information in accordance with
the EFH provisions (Sec. 600.815(a)(10)), as a standalone chapter or
in a clearly noted section.
(vi) Pertinent economic, social, community, and ecological
information for assessing the success of management measures or the
achievement of objectives of each FMP.
(4) To facilitate the use of the information 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.
(ii) The SAFE report or compilation of documents that comprise the
SAFE report and index must be made available by the Council or NMFS on
a readily 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 drafting of an FMP and its submission for final review, new
information often becomes available. This new information should be
incorporated into the final FMP where practicable; but it is
unnecessary to start the FMP process over again, unless the information
indicates that drastic changes have occurred in the fishery that might
require revision of the management objectives or measures.
(2) The fact that scientific information concerning a fishery is
incomplete does not prevent the preparation and implementation of an
FMP (see related Sec. Sec. 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 otherwise. The FMP should explain the practical
utility of the information specified in monitoring the fishery, in
facilitating inseason management decisions, and in judging the
performance of the management regime; it should also consider the
effort, cost, or social impact of obtaining it.
(4) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource, marine
ecosystem, the fishery, and fishing communities.
(5) The information submitted by various data suppliers should be
comparable and compatible, to the maximum extent possible.
(6) FMPs should be amended on a timely basis, as new information
indicates the necessity for change in objectives or management measures
consistent with the conditions described in paragraph (d) of this
section (SAFE reports). Paragraphs (e)(1) through (e)(5) of this
section apply equally to FMPs and FMP amendments.
[FR Doc. E9-29589 Filed 12-10-09; 8:45 am]
BILLING CODE 3510-22-P