Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard Guidelines, 3178-3213 [E9-636]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 3178-3213]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-636]



[[Page 3177]]

-----------------------------------------------------------------------

Part III





Department of Commerce





-----------------------------------------------------------------------



 National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



50 CFR Part 600



Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard 
Guidelines; Final Rule

Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules 
and Regulations

[[Page 3178]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 070717348-81398-03]
RIN 0648-AV60


Magnuson-Stevens Act Provisions; Annual Catch Limits; National 
Standard Guidelines

AGENCY: National Marine Fisheries Service (NMFS); National Oceanic and 
Atmospheric Administration (NOAA); Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final action amends the guidelines for National Standard 
1 (NS1) of the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA). This action is necessary to provide guidance on how to comply 
with new annual catch limit (ACL) and accountability measure (AM) 
requirements for ending overfishing of fisheries managed by Federal 
fishery management plans (FMPs). It also clarifies the relationship 
between ACLs, acceptable biological catch (ABC), maximum sustainable 
yield (MSY), optimum yield (OY), and other applicable reference points. 
This action is necessary to facilitate compliance with requirements of 
the Magnuson-Stevens Act to end and prevent overfishing, rebuild 
overfished stocks and achieve OY.

DATES: Effective February 17, 2009.

ADDRESSES: Copies of the Regulatory Impact Review (RIR)/Regulatory 
Flexibility Act Analysis (RFAA) can be obtained from Mark R. Millikin, 
National Marine Fisheries Service, 1315-East-West Highway, Room 13357, 
Silver Spring, Maryland 20910. The RIR/RFAA document is also available 
via the internet at https://www.nmfs.noaa.gov/msa2007/catchlimits.htm. 
Public comments that were received can be viewed at the Federal e-
Rulemaking portal: https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mark R. Millikin by phone at 301-713-
2341, by FAX at 301-713-1193, or by e-mail: Mark.Millikin@noaa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of Revisions to the NS1 Guidelines
II. Major Components of the Proposed Action
III. Major Changes Made in the Final Action
IV. Overview of the Major Aspects of the Final Action
    A. Stocks in the Fishery and Ecosystem Component Species
    B. Definition Framework for OFL, ABC, and ACL
    C. Accountability Measures (AMs)
    D. SSC Recommendations and Process
    E. Management Uncertainty and Scientific Uncertainty
V. Response to Comments
VI. Changes from Proposed Action
VII. References Cited
VIII. Classification

I. Overview of Revisions to the NS1 Guidelines

    The MSA serves as the chief authority for fisheries management in 
the U.S. Exclusive Economic Zone (EEZ). The Act provides for ten 
national standards (NS) for fishery conservation and management, and 
requires that the Secretary establish advisory guidelines based on the 
NS to assist in the development of fishery management plans. Guidelines 
for the NS are codified in subpart D of 50 CFR part 600. NS1 requires 
that conservation and management measures ``shall prevent overfishing 
while achieving, on a continuing basis, the optimum yield from each 
fishery for the United States fishing industry.''
    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA) amended the MSA to include new 
requirements for annual catch limits (ACLs) and accountability measures 
(AMs) and other provisions regarding preventing and ending overfishing 
and rebuilding fisheries. To incorporate these new requirements into 
current NS1 guidance, NMFS initiated a revision of the NS1 guidelines 
in 50 CFR 600.310. NMFS published a notice of intent (NOI) to prepare 
an environmental impact statement (EIS) and commenced a scoping period 
for this action on February 14, 2007 (72 FR 7016), and proposed NS1 
guidelines revisions on June 9, 2008 (73 FR 32526). Further background 
is provided in the above-referenced Federal Register documents and is 
not repeated here. The proposed guidelines provided a description of 
the reasons that overfishing is still occurring and the categories of 
reasons for overfishing likely to be addressed by new MSA requirements 
combined with the NS1 guidelines. The September 30, 2008 NMFS Quarterly 
Report on the Status of U.S. Fisheries indicates that 41 stocks managed 
under Federal FMPs are undergoing overfishing.
    NMFS solicited public comment on the proposed NS1 guidelines 
revisions through September 22, 2008, and during that time, held three 
public meetings, on July 10, 2008 (Silver Spring, Maryland), July 14, 
2008 (Tampa, Florida), and July 24, 2008 (Seattle, Washington), and 
made presentations on the proposed revisions to each of the eight 
Regional Fishery Management Councils (Councils). NMFS received over 
158,000 comments on all aspects of the proposed NS1 guidelines 
revisions. Many of the comment letters were form letters or variations 
on a form letter. In general, the environmental community supported the 
provisions in the proposed action but commented that they needed to be 
strengthened in the final action. Alternatively, comments from the 
fishing industry and some of the Councils said the proposed revisions 
were confusing, too proscriptive or strict, and lacked sufficient 
flexibility.

II. Major Components of the Proposed Action

    Some of the major items covered in the proposed NS1 guidelines 
were: (1) A description of the relationship between MSY, OY, 
overfishing limits (OFL), ABC, ACLs, and annual catch targets (ACT); 
(2) guidance on how to combine the use of ACLs and AMs for a stock to 
prevent overfishing when possible, and adjust ACLs and AMs, if an ACL 
is exceeded; (3) statutory exceptions to requirements for ACLs and AMs 
and flexibility in application of NS1 guidelines; (4) ``stocks in the 
fishery'' and ``ecosystem component species'' classifications; (5) 
replacement of MSY control rules with ABC control rules and replacement 
of OY control rules with ACT control rules; (6) new requirements for 
scientific and statistical committees (SSC); (7) explanation of the 
timeline to prepare new rebuilding plans; (8) revised guidance on how 
to establish rebuilding time targets; (9) advice on action to take at 
the end of a rebuilding period if a stock is not yet rebuilt; and (10) 
exceptions to the requirements to prevent overfishing.

III. Major Changes Made in the Final Action

    The main substantive change in the final action pertains to ACTs. 
NMFS proposed ACT as a required reference point that needed to be 
included in FMPs. The final action retains the concept of an ACT and an 
ACT control rule, but does not require them to be included in FMPs. 
After taking public comment into consideration, NMFS has decided that 
ACTs are better addressed as AMs. The final guidelines provide that: 
``For fisheries without inseason management control to prevent the ACL 
from being exceeded, AMs should utilize ACTs that are set below ACLs so 
that catches do not exceed the ACL.''

[[Page 3179]]

    In response to public comment, this final action also clarifies 
text on ecosystem component species, OFL, OY specification, ABC control 
rule and specification, SSC recommendations, the setting of ACLs, 
sector-ACLs, and AMs, and makes minor clarifications to other text. 
Apart from these clarifications, the final action retains the same 
approaches described in the proposed guidelines with regard to: (1) 
Guidance on how to combine the use of ACLs and AMs for a stock to 
prevent overfishing when possible, and adjust ACLs and AMs, if an ACL 
is exceeded; (2) statutory exceptions to requirements for ACLs and AMs 
and flexibility in application of NS1 guidelines; (3) ``stocks in the 
fishery'' and ``ecosystem component species'' classifications; (4) new 
requirements for SSCs; (5) the timeline to prepare new rebuilding 
plans; (6) rebuilding time targets; (7) advice on action to take at the 
end of a rebuilding period if a stock is not yet rebuilt; and (8) 
exceptions to the requirements to prevent overfishing. Further 
explanation of why changes were or were not made is provided in the 
``Response to Comments'' section below. Detail on changes made in the 
codified text is provided in the ``Changes from Proposed Action'' 
section.

IV. Overview of the Major Aspects of the Final Action

A. Stocks in the Fishery and Ecosystem Component Species

    The proposed NS1 guidelines included suggested classifications of 
``stocks in the fishery'' and ``ecosystem component (EC) species.'' See 
Figure 1 for diagram of classifications. Public comments reflected 
confusion about this proposal, so NMFS has clarified its general intent 
with regard to these classifications. More detailed responses to 
comments on this issue are provided later in this document.
    The classifications in the NS1 guidelines are intended to reflect 
how FMPs have described ``fisheries,'' and to provide a helpful 
framework for thinking about how FMPs have incorporated and may 
continue to incorporate ecosystem considerations. To that end, the 
proposed NS1 guidelines attempted to describe the fact that FMPs 
typically include certain target species, and sometimes certain non-
target species, that the Councils and/or the Secretary believed 
required conservation and management. In some FMPs, Councils have taken 
a broader approach and included hundreds of species, many of which may 
or may not require conservation and management but could be relevant in 
trying to further ecosystem management in the fishery.
    NMFS wants to encourage ecosystem approaches to management, thus it 
proposed the EC species as a possible classification a Council or the 
Secretary could--but is not required to--consider. The final NS1 
guidelines do not require a Council or the Secretary to include all 
target and non-target species as ``stocks in the fishery,'' do not 
mandate use of the EC species category, and do not require inclusion of 
particular species in an FMP. The decision of whether conservation and 
management is needed for a fishery and how that fishery should be 
defined remains within the authority and discretion of the relevant 
Council or the Secretary, as appropriate. NMFS presumes that stocks or 
stock complexes currently listed in an FMP are ``stocks in the 
fishery,'' unless the FMP is amended to explicitly indicate that the EC 
species category is being used. ``Stocks in the fishery'' need status 
determination criteria, other reference points, ACL mechanisms and AMs; 
EC species would not need them. NMFS recognizes the confusion caused by 
wording in the proposed action and has revised the final action to be 
more clear on these points.
[GRAPHIC] [TIFF OMITTED] TR16JA09.000


[[Page 3180]]



 B. Definition Framework for OFL, ABC, and ACL

    The MSRA does not define ACLs, AMs, and ABC, so NMFS proposed 
definitions for these terms in the proposed action. NMFS also proposed 
definitions for the terms OFL and ACT because it felt that they would 
be useful tools in helping ensure that ACLs are not exceeded and 
overfishing does not occur. The proposed NS1 guidelines described the 
relationship between the terms as: OFL >= ABC >= ACL >= ACT. In 
response to public comment, the final action revises the definition 
framework as: OFL >= ABC >= ACL. As described above, NMFS has retained 
ACT and the ACT control rule in the NS1 guidelines, but believes that 
they are more appropriate as AMs. NMFS believes ACTs could prove useful 
as management tools in fisheries with poor management control over 
catch (i.e., that frequently exceed catch targets).
    NMFS received many comments on the definition framework, and some 
commenters stated that it should be revised as: OFL > ABC > ACL. Having 
considered public comment and reconsidered this issue, NMFS has decided 
to keep the framework as: OFL >= ABC >= ACL. However, NMFS believes 
there are few fisheries where setting OFL, ABC, and ACL all equal to 
each other would be appropriate. While the final action allows ABC to 
equal OFL, NMFS expects that in most cases ABC will be reduced from OFL 
to reduce the probability that overfishing might occur in a year. NMFS 
has added a provision to the final NS1 guidelines stating that, if a 
Council recommends an ACL which equals ABC, and the ABC is equal to 
OFL, the Secretary may presume that the proposal would not prevent 
overfishing, in the absence of sufficient analysis and justification 
for the approach. See figure 2 for an illustration of the relationship 
between OFL, ABC, ACL and ACT. Further detail on the definition 
framework and associated issues is provided in the ``Response to 
Comments'' section below.
[GRAPHIC] [TIFF OMITTED] TR16JA09.001

C. Accountability Measures (AMs)

    Another major aspect of the revised NS1 guidelines is the inclusion 
of guidance on AMs. AMs are management controls to prevent ACLs, 
including sector-ACLs, from being exceeded, and to correct or mitigate 
overages of the ACL if they occur. NMFS has identified two categories 
of AMs, inseason AMs and AMs for when the ACL is exceeded. As described 
above, ACTs are recommended in the system of AMs so that ACLs are not 
exceeded. As a performance standard, if catch exceeds 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 re-evaluated, and modified if 
necessary, to improve its performance and effectiveness.

D. SSC Recommendations and Process

    Section 302(h)(6) of the MSA provides that each Council is required 
to ``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).'' MSA did not define ``fishing level recommendations,'' 
but in section 302(g)(1)(B), stated that an SSC shall provide 
``recommendations for acceptable biological catch, preventing 
overfishing, maximum sustainable yield, and achieving rebuilding 
targets,'' and other scientific advice.

[[Page 3181]]

    NMFS received a variety of public comments regarding interpretation 
of ``fishing level recommendations.'' Some commenters felt that the 
SSC's ``fishing level recommendations'' that should constrain ACLs is 
the overfishing limit (OFL); other commenters stated that ``fishing 
level recommendations'' should be equated with MSY. NMFS does not 
believe that MSA requires ``fishing level recommendations'' to be 
equated to the OFL or MSY. As described above, the MSA specifies a 
number of things that SSCs recommend to their Councils. Of all of these 
things, ABC is the most directly relevant to ACL, as both ABC and ACL 
are levels of annual catch.
    The preamble to the proposed NS1 guidelines recommended that the 
Councils could establish a process in their Statement of Organization, 
Practices and Procedures (SOPPs) for: establishing an ABC control rule, 
applying the ABC control rule (i.e., calculating the ABC), and 
reviewing the resulting ABC. NMFS believes that this may have caused 
confusion and that some commenters misunderstood the intent of this 
recommendation. NMFS received comment regarding inclusion of the ABC 
control rule in the SOPPs, and wants to clarify that the actual ABC 
control rule should be described in the FMP. NMFS believes it is 
important to understand how the Councils, SSC, and optional peer review 
process work together to implement the provisions of the MSA and 
therefore recommends that the description of the roles and 
responsibilities of the Council, SSC, and optional peer review process 
be included in the SOPPs, FMP, or some other public document. The SSC 
recommends the ABC to the Council whether or not a peer review process 
is utilized.

E. Management Uncertainty and Scientific Uncertainty

    A major aspect of the revised NS1 guidelines is the concept of 
incorporating management and scientific uncertainty in using ACLs and 
AMs. Management uncertainty occurs because of the lack of sufficient 
information about catch (e.g., late reporting, underreporting and 
misreporting of landings or bycatch). Recreational fisheries generally 
have late reporting because of the method of surveying catches and the 
lack of an ability for managers to interview only marine recreational 
anglers. NMFS is addressing management uncertainty in the recreational 
fishery by implementing a national registry of recreational fishers in 
the Exclusive Economic Zone (EEZ) (see proposed rule published in the 
Federal Register (73 FR 33381, June 12, 2008)) and a Marine 
Recreational Implementation Program that will, in part, revise the 
sampling design of NMFS's marine recreational survey for fishing 
activity.
    Management uncertainty also exists because of the lack of 
management precision in many fisheries due to lack of inseason 
fisheries landings data, lack of inseason closure authority, or the 
lack of sufficient inseason management in some FMPs when inseason 
fisheries data are available. The final NS1 guidelines revisions 
provide that FMPs should contain inseason closure authority that gives 
NMFS the ability to close fisheries if it determines, based on data 
that it deems sufficiently reliable, that an ACL has been exceeded or 
is projected to be reached, and that closure of a fishery is necessary 
to prevent overfishing. NMFS believes that such closure authority will 
enhance efforts to prevent overfishing. Councils can derive some idea 
of their overall extent of management uncertainty by comparing past 
actual catches to target catches to evaluate the magnitude and 
frequency of differences between actual catch and target catch, and how 
often actual catch exceeded the overfishing limit for a stock.
    Scientific uncertainty includes uncertainty around the estimate of 
a stock's biomass and its maximum fishing mortality threshold (MFMT); 
therefore, any estimate of OFL has uncertainty. Stock assessment models 
have various sources of scientific uncertainty associated with them and 
many assessments have shown a repeating pattern that the previous 
assessment overestimated near-future biomass, and underestimated near-
future fishing mortality rates (i.e., called retrospective patterns).

V. Response to Comments

    NMFS received many comments about the proposed definition framework 
(OFL >= ABC >= ACL >= ACT), especially regarding the ACT and ACT 
control rule. Some commenters suggested that the ACT and ACT control 
rule should not be required, while others supported their use. NMFS 
also received comments expressing: That the proposed terminology should 
not be required; OFL should always be greater than ABC; and concern 
that too many factors (i.e., management and scientific uncertainty, and 
ACT) will reduce future target catches unnecessarily. Some commenters 
felt additional emphasis should be placed on Tmin in the 
rebuilding provisions. Councils, for the most part, are very concerned 
about the challenge of implementing ACLs and AMs by 2010, and 2011, as 
required. Some commenters felt the international fisheries exception to 
ACLs is too broad. Several commenters stated that an EIS should have 
been or should be prepared and two commenters stated an Initial 
Regulatory Flexibility Analysis under the Regulatory Flexibility Act 
should be prepared. NMFS also received many comments regarding the 
mixed-stock exception.
    NMFS received many comments expressing support for the proposed 
revisions to the Magnuson-Stevens Act National Standard 1 guidelines. 
Comments included: This good faith effort to implement Congress' intent 
will work to end overfishing and protect the marine ecosystem; these 
guidelines reduce the risk of overfishing and will work to rebuild 
depleted stocks through the use of science based annual catch limits, 
accountability measures, `buffers' for scientific and management 
uncertainty, and protections for weak fish stocks; and this solid 
framework will ensure not only healthy stocks but healthy fisheries.
    Comment 1: Several comments were received regarding NMFS's decision 
to not prepare an environmental impact statement or environmental 
assessment for this action. Some supported the decision, while others 
opposed it and believed that a categorical exclusion under the National 
Environmental Policy Act (NEPA) is not appropriate.
    Response: NMFS believes a categorical exclusion is appropriate for 
this action. Under Sec. Sec.  5.05 and 6.03c.3(i) of NOAA's 
Administrative Order (NAO) 216-6, the following types of actions may be 
categorically excluded from the requirement to prepare an EA or EIS: 
``* * * policy directives, regulations and guidelines of an 
administrative, financial, legal, technical or procedural nature, or 
the environmental effects of which are too broad, speculative or 
conjectural to lend themselves to meaningful analysis and will be 
subject later to the NEPA process, either collectively or case-by-case. 
* * *''
    In this instance, a Categorical Exclusion is appropriate for this 
action, because NMFS cannot meaningfully analyze potential 
environmental, economic, and social impacts at this stage. This action 
revises NS1 guidelines, which are advisory only; MSA provides that NS 
guidelines ``shall not have the force and effect of law.'' MSA section 
301(b). See Tutein v. Daley, 43 F. Supp.2d 113, 121-122 (D. Mass. 1999) 
(reaffirming that the guidelines are only advisory and holding that the 
national standards are not subject to judicial review under the

[[Page 3182]]

MSA). The NS1 guidelines are intended to provide broad guidance on how 
to comply with new statutory requirements. While the guidelines explain 
in detail how different concepts, such as ACL, ABC, MSY, and OY, should 
be addressed, the guidelines do not mandate specific management 
measures for any fishery. It is not clear what Councils will or will 
not do in response to the NS1 guidelines. Thus, it is not possible to 
predict any concrete impacts on the human environment without the 
necessary intervening actions of the Councils, e.g., consideration of 
best available scientific information and development of specific 
conservation and management measures that may be needed based on that 
information. Any analysis of potential impacts would be speculative at 
best.
    None of the exceptions for Categorical Exclusions provided by Sec.  
5.05c of NAO 216-6 apply. While there is controversy concerning the NS1 
guidelines revisions, the controversy is primarily related to different 
views on how new MSA requirements should be interpreted, rather than 
potential environmental consequences. The NS1 guidelines would not, in 
themselves, have uncertain environmental impacts, unique or unknown 
risks, or cumulatively significant or adverse effects upon endangered 
or threatened species or their habitats. Moreover, this action would 
not establish a precedent or decision in principle about future 
proposals. As noted above, the guidelines provide broad guidance on how 
to address statutory requirements but do not mandate specific 
management actions.
    Comment 2: One commenter criticized NMFS' approach as placing 
unnecessary burden on the Councils to conduct the NEPA analysis.
    Response: No change was made. One of the Councils' roles is to 
develop conservation and management measures that are necessary and 
appropriate for management of fisheries under their authority. NMFS 
believes that Councils should continue to have the discretion to 
determine what measures may be needed in each fishery and what 
alternatives should be considered and analyzed as part of the fishery 
management planning process. Councils routinely incorporate NEPA into 
this process, and the actions to implement ACLs in specific fisheries 
must address the NEPA requirements, regardless of the level of analysis 
conducted for the guidelines. Therefore, having reviewed the issue 
again, NMFS continues to find that a categorical exclusion is 
appropriate for this action.
    Comment 3: Two commenters stated that NMFS should have prepared an 
initial regulatory flexibility analysis under the RFA for this action. 
They said it was not appropriate to certify under the RFA because in 
their opinion, this action will have significant economic impacts on a 
substantial number of small entities.
    Response: No change was made. The final NS1 guidelines will not 
have significant economic impacts on a substantial number of small 
entities. The guidelines are advisory only; they provide general 
guidance on how to address new overfishing, rebuilding, and related 
requirements under the MSA. Pursuant to MSA section 301(b), the 
guidelines do not have the force and effect of law. When the Councils/
Secretary apply the guidelines to individual fisheries and implement 
ACL and AM mechanisms, they will develop specific measures in their 
FMPs and be able to analyze how the new measures compare with the 
status quo (e.g., annual measures before the MSRA was signed into law 
and the NS1 guidelines were revised) with respect to economic impacts 
on small entities. At this point, any analysis of impacts on small 
entities across the range of diverse, Federally-managed fisheries would 
be highly conjectural. Therefore, a certification is appropriate.
    Comment 4: Several comments were received that the guidelines are 
too complex and they contain guidance for things, such as the ACT that 
are not required by the MSA. They suggested removing these provisions 
from the guidance, or only providing guidance for terms specifically 
mentioned in the statute.
    Response: NMFS agrees that the guidelines can appear complex. 
However, the purpose of the guidelines is not simply to regurgitate 
statutory provisions, rather it is to provide guidance on how to meet 
the requirements of the statute. As discussed in other comments and 
responses, MSRA includes new, undefined terms (ABC and ACL), while 
retaining other long-standing provisions, such as the national 
standards. In considering how to understand new provisions in light of 
existing ones, NMFS considered different ways to interpret language in 
the MSA, practical challenges in fisheries management including 
scientific and management uncertainty, the fact that there are 
differences in how fisheries operate, and public comment on proposed 
approaches in the NS1 guidelines. MSA does not preclude NMFS from 
including additional terminology or explanations in the NS1 guidelines, 
as needed, in order to facilitate understanding and effective 
implementation of MSA mandates. In the case of NS1, conservation and 
management measures must prevent overfishing while achieving, on a 
continuing basis, the optimum yield. This is inherently challenging 
because preventing overfishing requires that harvest of fish be 
limited, while achieving OY requires that harvest of fish occur. In 
developing the guidelines, NMFS identified the reasons that overfishing 
was still occurring in about 20 percent of U.S. Fisheries, and wrote 
the guidelines to address the primary causes. These include:
    (1) Setting OY too close to MSY,
    (2) Failure to consider all sources of fishing mortality,
    (3) Failure to adequately consider both uncertainty in the 
reference points provided by stock assessments (scientific uncertainty) 
and uncertainty in management control of the actual catch (management 
uncertainty),
    (4) Failure to utilize best available information from the fishery 
for inseason management, and
    (5) Failure to identify and correct management problems quickly.
    NMFS believes that the guidelines address these causes and 
appropriately provide practical guidance on how to address them, while 
providing sufficient flexibility to acknowledge the differences in 
fisheries. NMFS believes that Congress intended that the ACLs be 
effective in ending and preventing overfishing. Simply amending the 
FMPs to include ACL provisions is not enough--the actual performance of 
the fishery is what ultimately matters. NMFS believes that all of the 
provisions in the guidelines are essential to achieving that goal, and 
that if the guidelines are followed, most of the problems that have led 
to continued overfishing will be addressed. NMFS has made changes in 
the final action to clarify the guidelines and simplify the provisions 
therein, to the extent possible. One specific change is that the final 
guidelines do not require that ACT always be established. Instead, NMFS 
describes how catch targets, such as ACT, would be used in a system of 
AMs in order to meet the requirements of NS1 to prevent overfishing and 
achieve OY. More details on these revisions are covered in responses 
pertaining to comments 8, 32, 44, 45, and 48.
    Comment 5: Several commenters stated that Councils' workloads and 
the delay of final NS1 guidelines will result in some Councils having 
great difficulty or not being able to develop ACLs and AMs for 
overfishing stocks by 2010, and all other stocks by 2011.

[[Page 3183]]

    Response: The requirements in MSA related to 2010 and 2011 are 
statutory; therefore ACLs and AMs need to be in place for those fishing 
years such that overfishing does not occur. NMFS understands that 
initial ACL measures for some fisheries have been developed before the 
NS1 guidelines were finalized in order to meet the statutory deadline, 
and thus may not be fully consistent with the guidelines. ACL 
mechanisms developed before the final guidelines should be reviewed and 
eventually revised consistent with the guidelines.
    Comment 6: Several commenters stated that certain existing FMPs and 
processes are already in compliance with the ACL and AM provisions of 
the MSA and consistent with the proposed guidelines. One commenter 
stated that NMFS should bear the burden of determining whether current 
processes are inconsistent with the MSA, and indicate what action 
Councils should take. Another commenter stated that Congress intended 
Total Allowable Catch (TAC), which is already used in some fisheries, 
to be considered to be an ACL. NMFS also received comments stating that 
certain terms have had longstanding use under FMPs, and changing the 
terminology could cause too much confusion.
    Response: NMFS believes that some existing FMPs may be found to 
need little or no modification in order to be found to be consistent 
with the MSA and NS1 guidelines. In general, these are fisheries where 
catch limits are established and the fishery is managed so that the 
limits are not exceeded, and where overfishing is not occurring. NMFS 
agrees that, in some fisheries, the TAC system currently used may meet 
the requirements of an ACL. However, there are a wide variety of 
fisheries that use the term TAC, and while some treat it as a true 
limit, others treat it simply as a target value on which to base 
management measures. Therefore, NMFS does not agree that the use of a 
TAC necessarily means the fishery will comply with the ACL and AM 
provisions of the MSA. NMFS will have to review specific FMPs or FMP 
amendments. In addition, upon request of a Council, NMFS can provide 
input regarding any changes to current processes that might be needed 
for consistency with the MSA and guidance in the NS1 guidelines.
    Regarding the comment about terminology, the preamble to the 
proposed action provided that Councils could opt to retain existing 
terminology and explain in a proposed rule how the terminology and 
approaches to the FMPs are consistent with those set forth in the NS1 
guidelines. NMFS has given this issue further consideration and 
believes that a proposed rule would not be necessary or appropriate. 
Instead, a Council could explain in a Federal Register notice why its 
terminology and approaches are consistent with the NS1 guidelines.
    Comment 7: Some commenters thought that before requiring 
implementation of a new management system, it should first be 
demonstrated that the current management system is not effective at 
preventing overfishing or rebuilding stocks that are overfished, and 
that a new management system would be more effective. Changing a 
management system that is effective and responsive would not be 
productive.
    Response: While NMFS understands that current conservation and 
management measures prevent overfishing in some fisheries, the MSA 
requires a mechanism for specifying ACLs and AMs in all fisheries, 
including those that are not currently subject to overfishing, unless 
an exception applies. There is no exception to the requirement for ACLs 
and AMs for fisheries where other, non-ACL management measures are 
preventing overfishing. NMFS is required by the MSRA to implement the 
new provisions in all FMPs, unless an exception applies, even on those 
whose current management is preventing overfishing. NMFS believes the 
guidance provides the tools for Councils to implement ACLs in these 
fisheries that will continue to prevent overfishing without disrupting 
successful management approaches. The guidelines provide flexibility to 
deviate from the specific framework described in the guidelines, if a 
different approach will meet the statutory requirements and is more 
appropriate for a specific fishery (see Sec.  600.310(h)(3) of the 
final action).
    Comment 8: Some commenters supported the use of ACT to address 
management uncertainty in the fishery. Others did not support ACTs, and 
commented that ACTs are not required under the MSA and that inclusion 
of ACTs in the guidelines creates confusion and complexity. One 
commenter stated that the proposed guidelines were ``out of line'' with 
NMFS's mandate and authority provided under the MSA because the 
guidelines for ACTs and associated control rules completely undermine 
the clear directive Congress provides in National Standard 1 to achieve 
optimum yield on an ongoing basis.
    Response: The proposed guidelines stressed the importance of 
addressing scientific and management uncertainty in establishing ACL 
and AM mechanisms. Scientific uncertainty was addressed in the ABC 
control rule, and management uncertainty was addressed in the ACT 
control rule. Use of catch targets associated with catch limits is a 
well-recognized principle of fishery management. The current NS1 
guidelines call for establishment of limits, and targets set 
sufficiently below the limits so that the limits are not exceeded. The 
revised guidelines are based on this same principle, but, to 
incorporate the statutory requirements for ABC and ACLs, are more 
explicit than the current guidelines. While MSA does not refer to the 
term ACT, inclusion of the term in the NS1 guidelines is consistent 
with the Act. The NS1 guidelines are supposed to provide advice on how 
to address MSA requirements, including how to understand terminology in 
the Act and how to apply that terminology given the practical realities 
of fisheries management. In developing the proposed guidelines, NMFS 
considered a system that used ABC as the limit that should not be 
exceeded, and that required that ACL be set below the ABC to account 
for management uncertainty. This had the advantage of minimizing the 
number of terms, but would result in the ACL having been a target catch 
level. NMFS decided, that since Congress called for annual catch limits 
to be set, that the ACL should be considered a true limit--a level not 
to be exceeded. ACT was the term adopted for the corresponding target 
value which the fishery is managed toward so that the ACL is not 
exceeded.
    Taking public comment into consideration, NMFS has decided to 
retain ACTs and ACT control rules in the final guidelines, but believes 
they are better addressed as AMs for a fishery. One purpose of the AMs 
is to prevent the ACL from being exceeded. Setting an ACT with 
consideration of management uncertainty is one way to achieve this, but 
may not be needed in all cases. In fisheries where monitoring of catch 
is good and in-season management measures are effective, managers may 
be able to prevent ACLs from being exceeded through direct monitoring 
and regulation of the fishery. Therefore, the final guidelines make 
ACTs optional, but, to prevent ACLs from being exceeded, Councils must 
adequately address the management uncertainty in their fisheries using 
the full range of AMs.
    NMFS disagrees that ACTs undermine NS1. NS1 requires that 
conservation and management measures prevent overfishing while 
achieving, on a continuing basis, the OY. The MSA describes that OY is 
based on MSY, as reduced based on consideration of

[[Page 3184]]

several factors. In some cases, the amount of reduction may be zero, 
but in no case may the OY exceed MSY. Therefore, if OY is set close to 
MSY, the conservation and management measures in the fishery must have 
very good control of the amount of catch in order to achieve the OY 
without overfishing.
    The amount of fishing mortality that results in overfishing is 
dictated by the biology of the stock and its environment, and 
establishes a limit that constrains fisheries management. However, the 
specification of OY and the conservation and management measures for 
the fishery are both set by fishery managers. To achieve the dual 
requirements of NS1, Councils must specify an OY and establish 
conservation and management measures for the fishery that can achieve 
the OY without overfishing. The closer that OY is set to MSY, the 
greater degree of control over harvest is necessary in order to meet 
both objectives. The choice of conservation and management measures for 
a fishery incorporates social and economic considerations. For example, 
a Council may prefer to use effort controls instead of hard quotas to 
have a year-round fishery without a ``race for fish,'' and to provide 
higher average prices for the fishermen. However, compared to hard 
quotas, management with effort controls gives more uncertainty in the 
actual amount of fish that will be caught. Because of this increased 
uncertainty, the OY needs to be reduced from MSY so that overfishing 
does not occur. Thus the social and economic considerations of the 
choice of management measures should be considered in setting the OY.
    In cases where the conservation and management measures for a 
fishery are not capable of achieving OY without overfishing occurring, 
overfishing must be ended even if it means the OY is not achieved in 
the short-term. Overfishing a stock in the short term to achieve OY 
jeopardizes the capacity of the stock to produce OY in the long term, 
and thus cannot be sustained. Preventing overfishing in a fishery on an 
annual basis is important to ensure that a fishery can continue to 
achieve OY on a continuing basis. The specification of OY and the 
associated conservation and management measures need to be improved so 
that OY can be achieved without overfishing occurring. In a fishery 
where the NS1 objectives are fully met, the OY specification will 
adequately account for the management uncertainty in the associated 
conservation and management measures. Overfishing will not occur, and 
the OY will be achieved.
    Comment 9: Commenters stated that the designation of the Virgin 
Islands Coral Reef Monument was not being taken into account in the 
Caribbean Council's FMPs.
    Response: NMFS does not believe any revision of the NS1 guidelines 
is necessary in response to this comment but will forward the comment 
to the Council for its consideration.
    Comment 10: NMFS received comments in support of the flexibility 
given to councils to manage stocks for which ACLs are not a good fit, 
such as management of Endangered Species Act listed species, stocks 
with unusual life history characteristics, and aquaculture operations. 
Commenters noted that Pacific salmon should be treated with flexibility 
under the NS1 guidelines, because they are managed to annual escapement 
levels that are functionally equivalent to ACLs, and there are 
accountability, review, and oversight measures in the fishery.
    Response: NMFS agrees that flexibility is needed for certain 
management situations, and clarifies that Sec.  600.310(h)(3) provides 
for flexibility in application of the NS1 guidelines but is not an 
exception from requirements of MSA section 303(a)(15) or other 
sections.
    Comment 11: Congress did not mandate that all fisheries be managed 
by hard quotas, and so NMFS should include guidance for the 
continuation of successful, non-quota management systems, such as that 
used to successfully manage the Atlantic sea scallop fishery.
    Response: NMFS agrees that the conservation and management measures 
for a fishery are not required to be ``hard quotas.'' However, NMFS 
believes that the ACL was intended by Congress to be a limit on annual 
catch. Therefore, conservation and management measures must be 
implemented so that the ACL is not exceeded, and that accountability 
measures must apply whenever the ACL is exceeded. Congress did not 
exempt any fisheries from the ACL requirement on the basis that current 
management was successful. If the current conservation and management 
measures are effective in controlling harvest of sea scallops such that 
the ACL is not regularly exceeded, the ACL would have little effect on 
the fishery. If the current management measures are not effective in 
keeping catch from exceeding the ACL, then consistent with the ACL 
requirement in the MSA, additional management action should be taken to 
prevent overfishing.
    Comment 12: The summary list of items to be included in FMPs should 
be ``as appropriate'' (see Sec.  600.310(c) of the final action).
    Response: No change was made. NMFS believes that if any item does 
not apply to a particular fishery, the Council can explain why it is 
not included, but believes that ``as appropriate'' would create further 
confusion as there is no clear definition of what appropriate means in 
this context.
    Comment 13: The list of items to include in FMPs related to NS1 is 
extremely long, and it is unclear whether each item on the list needs 
to be addressed for all stocks that are ``in the fishery,'' which is a 
very broad term. Including the extra information is unlikely to 
materially improve management.
    Response: As a default, all the stocks or stock complexes in an FMP 
are considered ``in the fishery'' (see Sec.  600.310(d)(1)), unless 
they are reclassified as ecosystem component stocks through an FMP 
amendment process. Further explanation of these classifications is 
provided below in other comments and responses. The benefit of 
including this list of items is to provide transparency in how the NS1 
guidelines are being met. In addition, Councils should already have 
some of the items in their FMPs (ex: MSY, status determination criteria 
(SDC), and OY). The other items are new requirements of the MSA or a 
logical extension of the MSA.
    Comment 14: NMFS received several comments both supporting and 
opposing the proposed ``stocks in a fishery'' and ``ecosystem component 
species'' (EC) classifications of stocks in a FMP. Comments included: 
EC species are not provided under the MSA and should not be required in 
FMPs; EC species classification is needed but may lead to duplication 
in different FMPs; support for the distinction between ``stocks in a 
fishery'' and EC species; and clarify how data collection only species 
should be classified.
    Response: NMFS provided language for classifying stocks in a FMP 
into two categories: (1) ``Stocks in the fishery'' and (2) ``ecosystem 
component species.'' MSA requires that Councils develop ACLs for each 
of their managed fisheries (see MSA sections 302(h)(6) and 303(a)(15)), 
but Councils have had, and continue to have, considerable discretion in 
defining the ``fishery'' under their FMPs. As a result, some FMPs 
include one or a few stocks (e.g. , Bluefish FMP, Dolphin-Wahoo FMP) 
that have been traditionally managed for OY, whereas others have begun 
including hundreds of species (e.g., Coral Reef Ecosystem of the 
Western Pacific Region FMP) in an

[[Page 3185]]

effort to incorporate ecosystem approaches to management.
    While EC species are not explicitly provided in the MSA, in the 
MSRA, Congress acknowledged that certain Councils have made significant 
progress in integrating ecosystem considerations, and also included new 
provisions to support such efforts (e.g., MSA section 303(b)(12)). As 
noted in the preamble of this action, NMFS wants to continue to 
encourage Councils to incorporate ecosystem considerations, and having 
classifications for ``stocks in the fishery'' versus ``ecosystem 
component species'' could be helpful in this regard. Thus, the final 
guidelines do not require Councils or the Secretary to change which 
species are or are not included in FMPs, nor do the guidelines require 
FMPs to incorporate the EC species classification. NMFS has revised the 
final guidelines to state explicitly that Councils or the Secretary 
may--but are not required to--use an EC species classification.
    In developing the text regarding EC species and ``stocks in the 
fishery,'' NMFS examined what existing FMPs are already doing and 
utilized that in its description of these classifications. For example, 
based on existing FMPs, the guidelines envision that species included 
for data collection and other monitoring purposes could be considered 
EC species (assuming they meet the criteria described in Sec.  
600.310(d)(5)(i)). However, such species could also be ``stocks in the 
fishery,'' as described under the NS3 guidelines (Sec.  600.320(d)(2)). 
NMFS recognizes the desire for greater specificity regarding exactly 
which species could or could not be considered EC species, but does not 
believe that further detail in the guidelines could clarify things 
definitively. Determining whether the EC category is appropriate 
requires a specific look at stocks or stock complexes in light of the 
general EC species description provided in the NS1 guidelines as well 
as the broader mandates and requirements of the MSA. If Councils decide 
that they want to explore potential use of the EC species 
classification, NMFS will work closely with them to consider whether 
such a classification is appropriate.
    Comment 15: NMFS received several comments regarding the level of 
interaction that would be appropriate for the EC classification. 
Comments included: de minimis levels of catch should be defined to 
clarify the difference between ``stocks in a fishery'' and EC species; 
all stocks that interact with a fishery should be included as ``stocks 
in a fishery''; requiring non-target stocks to be considered part of 
the fishery as written supersedes NS9; guidelines should clarify that 
EC species do not have significant interaction with the fishery; and, 
bycatch species should not be included as ``stocks in a fishery.''
    Response: NMFS is revising the final guidelines to clarify 
preliminary factors to be taken into account when considering a species 
for possible classification as an EC species. Such factors include that 
the species should: (1) Be a non-target species or non-target stock; 
(2) not be determined to be subject to overfishing, approaching 
overfished, or overfished; (3) not likely to become subject to 
overfishing or overfished, according to the best available information, 
in the absence of conservation and management measures; and (4) not 
generally retained for sale or personal use. Factors (2) and (3) are 
more relevant to species that are currently listed in FMPs and that 
have specified SDCs. With regard to factor (4), the final guidelines 
add new language in Sec.  600.310(d)(5)(i)(D)--``not generally retained 
for sale or personal use''--in lieu of ``de minimis levels of catch'' 
and clarify that occasional retention of a species would not, in 
itself, preclude consideration of a species in the EC classification. 
The NS1 guidelines provide general factors to be considered, as well as 
some examples of possible reasons for using the EC category. However, 
the decision of whether to use an EC classification requires 
consideration of the specific fishery and a determination that the EC 
classification will be consistent with conservation and management 
requirements of the MSA.
    Under the MSA, a Council prepares and submits FMPs for each fishery 
under its authority that requires conservation and management, and 
there is considerable latitude in the definition of the fishery under 
different FMPs. The definition of ``fishery'' is broad, and could 
include one or more stocks of fish treated as a unit for different 
purposes, as well as fishing for such stock (see MSA section 3(13)(B)). 
While some comments encouraged inclusion of all species that might 
interact with a fishery, all bycatch species, or all species for which 
there may be ``fishing'' as defined in MSA section 3(13)(B), NMFS does 
not believe that MSA mandates such a result. MSA does not compel FMPs 
to include particular stocks or stock complexes, but authorizes the 
Councils or the Secretary to make the determination of what the 
conservation and management needs are and how best to address them. 
Taking the broader approaches noted above would interfere with this 
discretion and also could result in overlapping or duplicative 
conservation and management regimes in multiple FMPs under different 
Council jurisdictions. As National Standard 6 requires that 
conservation and management measures, where practicable, minimize costs 
and avoid unnecessary duplication, NMFS believes that Councils should 
retain the discretion to determine which fisheries require specific 
conservation and management measures. With regard to bycatch, 
regardless of whether a species is identified as part of a fishery or 
not, National Standard 9 requires that FMPs, to the extent practicable, 
minimize bycatch and to the extent it cannot be avoided minimize 
bycatch mortality. Additional protections are afforded to some species 
under the Endangered Species Act, regardless of whether they are listed 
as stocks in a fishery. Further, as a scientific matter, NMFS disagrees 
that every bycatch species would require conservation and management 
measures to protect the species from becoming overfished, because some 
bycatch species exhibit high productivity levels (e.g., mature early) 
and low susceptibilities to fishery (e.g., rarely captured) that 
preclude them from being biologically harmed or depleted by particular 
fisheries.
    Comment 16: NMFS received several comments requesting that the 
guidelines include a description of vulnerability and how it should be 
determined, since it is referenced throughout the guidelines.
    Response: NMFS agrees, and has added Sec.  600.310(d)(10) to the 
final action, to define vulnerability. In general, to determine the 
vulnerability of a species/stock becoming overfished, NMFS suggests 
using quantitative estimates of biomass and fishing rates where 
possible; however, when data are lacking, qualitative estimates can be 
used. NMFS is currently developing a qualitative methodology for 
evaluating the productivity and susceptibility of a stock to determine 
its vulnerability to the fishery, and anticipates the methodology to be 
finalized by February 2009. The methodology is based on the 
productivity-susceptibility analysis (PSA) developed by Stobutzki et 
al. (2001), which was suggested by many commenters. Stocks that have 
low susceptibilities (e.g., rarely interact with the fishery, no 
indirect impacts to habitat, etc.) and high productivities (e.g., 
mature at an early age, highly fecund, etc.) are considered to have a 
low vulnerability of becoming overfished, while stocks that have low 
productivities and high susceptibilities

[[Page 3186]]

to the fishery are considered highly vulnerable to becoming overfished.
    Comment 17: Some commenters noted that the EC classification could 
be used to avoid reference point specification.
    Response: NMFS believes that the guidelines provide mechanisms to 
address this issue. As a default, NMFS presumes that all stocks or 
stock complexes that Councils or the Secretary decided to include in 
FMPs are ``stocks in the fishery'' that need ACL mechanisms and AMs and 
biological reference points. Whether it would be appropriate to include 
species in the EC category would require consideration of whether such 
action was consistent with the NS1 guidelines as well as the MSA as a 
whole. If a Council or the Secretary wishes to add or reclassify 
stocks, a FMP amendment would be required, which documents rationale 
for the decision. However, the guidelines have been modified to note 
that EC species should be monitored to the extent that any new 
pertinent scientific information becomes available (e.g., catch trends, 
vulnerability, etc.) to determine if the stock should be reclassified.
    Comment 18: With regard to ecological, economic, and social (EES) 
factors related to OY, some commenters requested more specific guidance 
in incorporating the factors, and others commented that accounting for 
the factors is too time consuming. Other commenters expressed support 
for the reference to forage fish species and suggested including text 
on maximum economic yield and fish health.
    Response: The NS1 guidelines generally describe OY as the long-term 
average amount of desired yield from a stock, stock complex, or 
fishery. OY is prescribed on the basis of MSY as reduced by EES factors 
(MSA section 3(33)). The NS1 guidelines set forth examples of different 
considerations for each factor, and NMFS believes the examples provide 
sufficient guidance on EES factors. NMFS has not made substantive 
changes from the proposed action, but has clarified that FMPs must 
address each factor but not necessarily each example.
    Comment 19: NMFS received several comments in support of using 
stock complexes as a management tool in data poor situations and other 
comments that expressed concern about the use of stock complexes and 
indicator species. Comments included: stock complexes should only be 
used when sufficient data are lacking to generate species-specific SDCs 
and related reference points; there is little ecological basis for 
using indicator species to set ACLs for stock complexes (see Shertzer 
and Williams (2008)) as stocks within a stock complex exhibit different 
susceptibilities to the fishery; if used, stock complexes should be 
managed using the weakest or most vulnerable stock within the complex 
as a precautionary approach to management; it would be helpful to have 
examples of how a data poor stock could be periodically examined to 
determine if the stock is overfished or subject to overfishing.
    Response: NMFS agrees that where possible Councils should generate 
stock-specific SDCs and related reference points for stocks in fishery; 
however, there are other circumstances in which stock complex 
management could be used. NMFS notes in Sec.  600.310(d)(8) of the 
final action that stocks may be grouped into complexes for various 
reasons, including: where stocks in a multispecies fishery cannot be 
targeted independent of one another and MSY can not be defined on a 
stock-by-stock basis (see Sec.  600.310(e)(1)(iii) of the final 
action); where there is insufficient data to measure their status 
relative to SDC; or when it is not feasible for fishermen to 
distinguish individual stocks among their catch.
    NMFS believes that the guidelines sufficiently addressed the issue 
that stock complexes should be managed using the most vulnerable stock 
within the complex. In Sec.  600.310(d)(9) of the final action the 
guidelines note that ``if the stocks within a stock complex have a wide 
range of vulnerability, they should be reorganized into different stock 
complexes that have similar vulnerabilities; otherwise the indicator 
stock should be chosen to represent the more vulnerable stocks within 
the complex. In instances where an indicator stock is less vulnerable 
than other members of the complex, management measures need to be more 
conservative so that the more vulnerable members of the complex are not 
at risk from the fishery.'' Additionally, these guidelines address the 
concerns of Shertzer and Williams (2008), by recommending that both 
productivity and susceptibility of the stock (i.e., vulnerability to 
the fishery) is considered when creating or re-organizing stock 
complexes.
    Lastly, NMFS agrees and has modified the phrase in Sec.  
600.310(d)(9) of the proposed action ``Although the indicator stock(s) 
are used to evaluate the status of the complex, individual stocks 
within complexes should be examined periodically using available 
quantitative or qualitative information to evaluate whether a stock has 
become overfished or may be subject to overfishing'' to provide 
examples of quantitative or qualitative analysis.
    Comment 20: NMFS received comments regarding the process for 
specifying the ACL for either a stock complex or for a single indicator 
species. The commenters were concerned that the proper data will not be 
utilized to determine whether the ACL should be set for the stock 
complex or for single indicator species. They feel that the use of 
single indicator species would not represent the stock's abundance, 
especially in the St. Thomas/St. John and St. Croix fisheries.
    Response: NMFS understands the concern, but does not believe the 
guidelines need to be revised. NMFS will refer this comment to the 
Council.
    Comment 21: NMFS received comments stating that the final action 
should clarify how SDCs and ACLs should be applied to stocks that are 
targeted in one fishery and bycatch in another, as well as 
circumstances where the stock is targeted by two or more FMPs that are 
managed by different regional councils.
    Response: NMFS believes that the guidelines sufficiently addressed 
this issue in Sec.  600.310(d)(7) of the final action, which notes ``* 
* * Councils should choose which FMP will be the primary FMP in which 
management objectives, SDC, the stock's overall ACL and other reference 
points for the stock are established.'' NMFS believes that the Councils 
should continue to have the discretion to make such determinations. 
NMFS, however, suggests that the primary FMP should usually be the FMP 
under which the stock is targeted. In instances where the stock is 
targeted in two or more FMPs (e.g., managed by two or more Councils), 
Councils should work together to determine which FMP is the primary.
    Comment 22: Several commenters requested further clarification on 
how prohibited species should be classified under the proposed 
classification scheme (see Sec.  600.310(d)) because they felt it was 
unclear whether a species for which directed catch and retention is 
prohibited would be classified as ``in the fishery'' or as an 
``ecosystem component''.
    Response: NMFS believes that the information in Sec.  600.310(d) 
provides a sufficient framework in which decisions can be made about 
how to classify a prohibited species under an FMP. Prohibition on 
directed catch and/or retention can be applied to either a stock that 
is ``in the fishery'' or an ``ecosystem component'' species. Managers 
should consider the classification scheme outlined in Sec.  600.310(d) 
of the final action as well

[[Page 3187]]

as MSA conservation and management requirements generally. If a stock 
contains one of the ``in the fishery'' characteristics, then it belongs 
``in the fishery'', regardless of the management tools that will be 
applied to it (e.g., prohibition, bag limits, quotas, seasons, etc.). 
Also, if the intent is to prohibit directed fishing and retention 
throughout the exclusive economic zone (EEZ) for which a Council has 
jurisdiction, then the stock would, most likely, be identified in an 
FMP as ``in the fishery'' rather than as an ecosystem component of one 
particular FMP.
    Comment 23: Several commenters asked at what level an ACL would be 
specified for a species for which directed catch and retention is 
prohibited. Setting the ACL at zero would not be logical because if 
even one was caught incidentally then AMs would be triggered. Setting 
it higher would also not be logical because the point is to ensure 
little to no catch of the stock.
    Response: Prohibiting retention is a management measure to 
constrain the catch to a minimal amount. If listed as a stock in the 
fishery, the reference points for the species, such as OFL and ABC, 
should be set based on the MSY for the stock, or, if ESA listed, would 
be set according to the associated ESA consultation's incidental take 
statement, regardless of the management approach used. The ACL may not 
exceed the ABC, but should be set at a level so that the mortality 
resulting from catch and discard is less than the ACL.
    Comment 24: NMFS received a comment stating that the specification 
of MSY must incorporate risk, be based on gear selectivity and support 
a healthy, functioning ecosystem. The commenter supported revisions to 
Sec.  600.310(e)(1) of the proposed action but suggested that it should 
be strengthened to address ecosystem principles. The commenter cited 
NOAA Tech Memo NMFS-F/SPO-40 in contending that the concept of MSY 
contains inherent risks that must be addressed in establishing 
reference points. Other commenters stated that: Councils establish 
management measures with high probabilities of success (e.g., 80 
percent); ``fishery technological characteristics'' should be re-
evaluated every two years; and MSY values normally equate to fishing 
down a population to forty percent of historic abundance and this may 
not be consistent with ecosystem based management.
    Response: NMFS agrees that ecological conditions and ecosystem 
factors should be taken into account when specifying MSY and has added 
additional language to Sec.  600.310(e)(1)(iv) of the final action to 
highlight this point. Such factors might include establishing a higher 
target level of biomass than normally associated with the specific 
stock's Bmsy. In addition, ecological conditions not 
directly accounted for in the specification of MSY can be among the 
ecological factors considered when setting OY below MSY. Regarding the 
comment about establishing management measures with a high probability 
of success, this is addressed in comment 63. NMFS does not 
believe that the NS1 guidelines need to be revised to require that 
fishery technological characteristics be evaluated every 2 years; such 
characteristics would be routinely updated with each stock assessment. 
The MSA bases management of fishery resources on MSY, but provides that 
OY can be reduced from MSY for ecological factors. NMFS believes the 
guidelines are consistent with the MSA and allow Councils to implement 
ecosystem approaches to management.
    Comment 25: Several comments requested the guidelines state that 
specification of reference points should not be required for a stock 
``in the fishery'' if its directed catch and retention is prohibited 
because managers applied the prohibition in an effort to prevent 
overfishing.
    Response: Prohibition of retention does not necessarily mean that 
overfishing is prevented. Even though the species cannot be retained, 
the level of fishing mortality may still result in overfishing. Many 
stocks for which prohibitions are currently in place are considered 
data-poor. NMFS acknowledges that specifying reference points and AMs 
will be a challenge for such stocks, but reiterates the requirement to 
establish ACLs and AMs for all managed fisheries, unless they fall 
under the two statutory exceptions (see Sec.  600.310(h)(2) of the 
final action), and also the need to take into consideration best 
scientific information available per National Standard 2.
    Comment 26: NMFS received comments voicing a concern about the NMFS 
process of determining the overfishing status of a fishery, because 
fishery management measures have been implemented to end overfishing, 
but stocks are still listed as subject to overfishing and require ACLs 
by 2010. The commenters felt that several species unde