[Federal Register Volume 62, Number 78 (Wednesday, April 23, 1997)]
[Proposed Rules]
[Pages 19723-19732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10540]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 961030300-7090-03; I.D. 120996A]
RIN 0648-AJ30


Magnuson Act Provisions; Essential Fish Habitat (EFH)

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 to issue regulations containing guidelines for 
the description and identification of essential fish habitat (EFH) in 
fishery management plans (FMPs), adverse impacts on EFH, and actions to 
conserve and enhance EFH. The regulations would also provide a process 
for NMFS to coordinate and consult with Federal and state agencies on 
activities that may adversely affect EFH. The guidelines are required 
by the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). The purpose of the rule is to assist Fishery 
Management Councils (Councils) in fulfilling the requirements set forth 
by the Magnuson-Stevens Act to amend their FMPs to describe and 
identify EFH, minimize adverse effects on EFH, and identify other 
actions to conserve and enhance EFH. The coordination and consultation 
provisions would specify procedures for adequate consultation with NMFS 
on activities that may adversely affect EFH.


[[Page 19724]]


DATES: Written comments on the proposed rule must be received on or 
before May 23, 1997.

ADDRESSES: Comments should be sent to the Director, Office of Habitat 
Conservation, Attention: EFH, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910-3282. Copies of the Technical Assistance Manual, 
previous advance notices of proposed rulemaking (ANPR), draft 
environmental assessment (EA) and finding of no significant impact 
(FONSI), and ``Framework for the Description, Identification, 
Conservation, and Enhancement of Essential Fish Habitat'' (Framework) 
are available. (see SUPPLEMENTARY INFORMATION).

FOR FURTHER INFORMATION CONTACT: Lee Crockett, NMFS, 301/713-2325.

SUPPLEMENTARY INFORMATION: A copy of the ANPRs, Framework, proposed 
regulation, draft EA and FONSI, and Technical Assistance Manual are 
available via the NMFS Office of Habitat Conservation Internet website 
at: http://kingfish.ssp.nmfs.gov/rschreib/habitat.html or by contacting 
one of the following NMFS Offices:

Office of Habitat Conservation, Attention: EFH, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3282; 301/713-2325.
Northeast Regional Office, Attention: Habitat and Protected Resources 
Division, One Blackburn Drive, Gloucester, MA 01930; 508/281-9328.
Southeast Regional Office, Attention: Habitat Conservation Division, 
9721 Executive Center Drive North, St. Petersburg, FL 33702; 813/570-
5317.
Southwest Regional Office, Attention: Habitat Conservation Division, 
501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802; 310/980-4041.
Northwest Regional Office, Attention: Habitat Conservation Branch, 525 
N.E. Oregon St., suite 500, Portland, OR 97232; 503/230-5421.
Alaska Regional Office, Attention: Protected Resources Management 
Division, 709 West 9th Street, Federal Bldg., room 461, P.O. Box 21668, 
Juneau, AK 99802-1668; 907/586-7235.

Related Documents

    Concurrent with publication of this proposed rule, NMFS will make 
available ``Technical Guidance to Implement the Essential Fish Habitat 
Requirements for the Magnuson-Stevens Act.'' This manual provides 
supplemental information for developing EFH recommendations and FMP 
amendments. The document is intended to be updated regularly as new and 
innovative methods are available in habitat identification and mapping. 
The Technical Guidance Manual is based on and will contain similar 
detail to that included in the Framework. The draft manual is available 
for comment and may be obtained from any NMFS office listed in the 
SUPPLEMENTARY INFORMATION section.

Background

    This rulemaking is required by the Magnuson-Stevens Act (16 U.S.C. 
1801 et seq) as reauthorized by the Sustainable Fisheries Act, signed 
into law on October 11, 1996. It mandates that the Secretary of 
Commerce (Secretary) shall, within 6 months of the date of enactment, 
establish guidelines by regulation to assist the Councils to describe 
and identify EFH in FMPs (including adverse impacts on such habitat) 
and to consider actions to conserve and enhance such habitat. These 
proposed regulations would establish a process for Councils to identify 
and describe EFH, including adverse impacts to that habitat, per the 
requirements of the Magnuson-Stevens Act. The Magnuson-Stevens Act also 
requires that the Secretary, in consultation with fishing participants, 
provide each Council with recommendations and information regarding 
each fishery under that Council's authority to assist it to identify 
EFH, the adverse impacts on that habitat, and actions that should be 
considered to conserve and enhance that habitat. The proposed 
regulation would establish procedures to carry out this mandate. 
Councils must submit FMP amendments containing these new provisions by 
October 11, 1998.
    In addition, the Magnuson-Stevens Act requires that Federal 
agencies consult with the Secretary on any activity authorized, funded, 
or undertaken, or proposed to be authorized, funded, or undertaken, 
that may adversely affect EFH. The Secretary must respond with 
recommendations for measures to conserve EFH. The Secretary must 
provide recommendations to states as well. The regulation would also 
establish procedures to implement these consultative requirements.
    This regulation proposes to address ecosystem considerations in 
fishery management. Through the 1996 Magnuson-Stevens Act 
reauthorization, FMPs are now required to describe and identify EFH 
used by managed fishery resources. In addition, FMPs are required to 
identify actions to ensure conservation and enhancement of EFH.
    In developing this rule, NMFS published two ANPRs. The first, 
published in the Federal Register on November 8, 1996 (61 FR 57843), 
solicited comments to assist NMFS in developing a framework for the 
proposed guidelines. The second ANPR was published on January 9, 1997 
(62 FR 1306). That ANPR announced the availability of the Framework. 
The Framework was developed to provide a detailed outline for the 
regulations and to serve as an instrument to solicit public comments. 
The document was made available to the public for comment from January 
9, 1997, through February 12, 1997. During that time, NMFS held fifteen 
public meetings, briefings, and workshops across the nation. Eighty-
eight comments were received via mail or fax, and numerous comments 
were received during the public meetings. NMFS considered those 
comments in developing the proposed regulations. In addition to the 
regulations, a Technical Guidance Manual is available (see 
SUPPLEMENTARY INFORMATION) to provide further details on how the 
Councils will identify EFH for managed species and develop amendments 
to their FMPs.

Relation to Other Laws

    The Magnuson-Stevens Act establishes expanded requirements for 
habitat sections of FMPs and requires consultation between the 
Secretary and Federal and state agencies on activities that may 
adversely impact EFH for those species managed under the Act. It also 
requires the Federal action agency to respond to comments and 
recommendations made by the Secretary and Councils. For the purpose of 
consultation on activities that may adversely affect EFH, the 
description of EFH included in the FMP would be determinative of the 
limits of EFH. Mapping of EFH would be required in the proposed 
regulations to assist the public and affected parties to learn where 
EFH is generally located. However, due to anticipated data gaps and the 
dynamic nature of physical and biological habitat characteristics, maps 
would be used as supplementary information during the consultation 
process.
    The Fish and Wildlife Coordination Act (FWCA) provides a mechanism 
for the Secretary to comment to other Federal agencies on activities 
affecting any living marine resources. Under the FWCA, Federal agencies 
are required to consult with the Secretary on habitat impacts from 
water development projects. The Secretary is not, however, required to 
consult with Federal agencies on all activities that may adversely 
affect habitat of managed species, nor are agencies required to

[[Page 19725]]

respond to Secretarial comments under the FWCA. The FWCA will continue 
to allow the Secretary to comment and make recommendations on Federal 
activities that may adversely affect living marine resources and their 
habitat, even if such habitat is not identified as EFH.
    The Endangered Species Act (ESA) definition of ``critical habitat'' 
to describe habitats under its authority includes areas occupied by the 
species at the time of listing, as well as those unoccupied areas that 
are deemed ``essential for the conservation of a species.'' The EFH 
regulations would specify that, for species listed under ESA, EFH will 
always include critical habitat. EFH may be broader than critical 
habitat if restoration of historic habitat areas is feasible, and more 
habitat is necessary to support a sustainable fishery. Because the 
statutory definition of EFH includes the full life cycle of species, 
including growth to maturity, EFH will also be broader than critical 
habitat where marine habitats have not been included in the 
identification of critical habitat (e.g., for anadromous salmonids 
listed under the ESA).

Coordination with Interested Parties

    NMFS would closely coordinate the development of EFH 
recommendations with the appropriate Councils, fishing participants, 
interstate fisheries commissions, Federal agencies, state agencies, and 
other interested parties.

Relation Between EFH and State-Managed Waters

    Many species managed under the Magnuson-Stevens Act spend some part 
of their life cycle in state waters (in most states 0-3 miles offshore) 
as well as Federal waters (generally 3-200 miles offshore). Because the 
statutory definition of EFH covers the entire life cycle of a species, 
EFH may be identified within both Federal and state waters. Therefore, 
the consultation provisions for activities that may adversely affect 
EFH may require the Secretary to consult on activities in both Federal 
and state waters. Councils may also comment on activities in both 
Federal and state waters. The requirement for Councils to institute 
management measures to minimize adverse effects of fishing, however, 
would only address those fishing activities that occur in Federal 
waters.

Summary of Principal Comments

    The public comments focused on eight issues. A summary of these 
issues and the NMFS response follows.
    Issue 1: Species of fish for which the Councils must describe and 
identify EFH. NMFS received comments suggesting that EFH should be 
described and identified for only those species managed by a Council in 
a FMP. Other interpretations suggested that ``fish'' includes all 
species inhabiting the geographic jurisdiction of a Council. The latter 
interpretation could include species not currently managed, but 
considered important by the Council. NMFS concludes that Councils 
should describe and identify EFH for only those species managed under 
an FMP. According to the Magnuson-Stevens Act, EFH can only be 
designated through an amendment to an FMP. The Council would not be 
precluded from identifying the habitat required by other species not 
covered in an FMP and taking steps to protect it. To the extent that 
such habitat requirements enhance the ecosystem approach to FMPs, the 
Councils would be encouraged to identify such habitat. However, those 
habitats of currently non-managed species would not be considered EFH.
    Issue 2: Timing of the development of EFH recommendations by NMFS. 
Some commentors suggested that EFH for all species within a fishery 
management unit must be completed simultaneously. Other commentors 
suggested that EFH be described for only those species whose catch is a 
significant component of the fishery. NMFS has concluded that the law 
requires the Councils to identify EFH for all managed species within 
its jurisdiction within the Act's EFH amendment period. The Technical 
Guidance Manual suggests several ways that Councils may perform this 
task more efficiently.
    Issue 3: Identification of EFH for prey species. Some comments 
suggested that EFH be identified for all prey species, as opposed to 
just the predominant prey species. Other comments suggested that 
identification of EFH for prey species was unnecessary because their 
habitat requirements are covered by the range of EFH for the managed 
species. NMFS has concluded that the habitat of prey species would not 
be included as EFH for managed species. Rather, Councils would identify 
the major prey species for the species managed under the FMP, and would 
describe the habitat of significant prey species to help in determining 
if there are activities that would adversely affect their habitat. This 
analysis would be included in the ``adverse effects'' section of the 
EFH FMP amendment, rather than the description and identification of 
EFH section. The Councils should consider loss of prey habitat as an 
adverse effect on a managed species.
    Issue 4: Interpretation of what habitat is ``necessary'' for 
spawning, breeding, feeding, and growth to maturity. In the Framework, 
NMFS interpreted ``necessary'' to mean the amount of habitat needed to 
support a target production level which included, at a minimum, maximum 
sustainable yield of the fishery plus other ecological benefits such as 
being prey for other living marine resources. Many commentors were 
concerned that this connection was too narrow and suggested that either 
it not be included in the guidelines, thereby coupling EFH only to 
feeding, breeding, and growth to maturity, or expanding the definition. 
NMFS has concluded that the goal of linking ``necessary'' to production 
is appropriate, however, this objective has now been defined as the 
production necessary to support a sustainable fishery and a healthy 
ecosystem.
    Issue 5: Intent of the EFH amendments in relation to fishing. NMFS 
received comments that clarification is needed regarding fishing in 
areas identified as EFH. NMFS has now clarified that the intent is not 
to preclude fishing in areas identified as EFH. Rather, the intent is 
to refine the Council's and NMFS' abilities to manage fishing 
activities by taking into account the increasing knowledge and 
understanding of the importance of habitat, and taking actions to 
minimize adverse impacts from fishing, to the extent practicable.
    Many comments requested guidance on how the Councils would 
determine when a fishing activity has an adverse impact requiring 
action. NMFS has provided additional guidance on this concern by 
proposing to require an assessment of the impacts of all gear types 
used in the EFH. The assessment would consider closure areas for 
research to evaluate impacts. The Councils would act to prevent, 
mitigate, or minimize any adverse impacts from fishing, to the extent 
practicable, if there is evidence that a fishing practice is having a 
substantial adverse impact on EFH based on the assessment.
    Issue 6: Interpretation of ``to the extent practicable''. No 
guidance was provided in the Framework on the exact meaning of the 
phrase. Some commentors expressed concern that a lack of guidance 
risked no additional actions being taken by Councils. Others expressed 
the opinion that the impacts of fishing were already known, and 
suggested closure areas to protect sensitive habitats. Cost-benefit 
analysis was also suggested. NMFS has provided additional guidance 
within the proposed rule. The regulation states that in determining 
whether minimizing an

[[Page 19726]]

adverse impact from fishing is practicable, Councils should consider: 
(1) Whether, and to what extent, the fishing activity is adversely 
impacting the marine ecosystem, including the managed species; (2) the 
nature and extent of the adverse effect on EFH; and (3) whether the 
cost to the fishery is reasonable.
    Issue 7: NMFS' interpretation of ``substrate.'' Commentors 
suggested it be modified to include artificial reefs and shipwrecks as 
EFH. NMFS agrees with this modification and clarifies that artificial 
reefs and shipwrecks could be identified as EFH.
    Issue 8: Notification of projects under general concurrence. 
Several comments were received on general concurrences, suggesting that 
if no notification is required for projects that fall within a general 
concurrence category, NMFS would be unable to track the cumulative 
effects of these categories of activities. NMFS continues to state in 
the regulation that no notice of those actions covered by a general 
concurrence would be required, but only if a process is in place by the 
action agency to adequately assess cumulative impacts.
    Comments were also received concerning opportunities for public 
review of general concurrences prior to final approval and 
implementation. Commentors were concerned that general concurrences 
could be established that would exempt specific activities from the 
consultation process without an opportunity for public review. NMFS has 
provided in the regulations that it would use public Council meetings, 
or other means, to provide opportunities for public comment on general 
concurrences prior to formalization. If Council review is not 
available, NMFS would provide other reasonable means for public review.

Compliance Requirements

    While the Magnuson-Stevens Act requires Federal agencies to consult 
with NMFS on activities that may adversely affect EFH and respond to 
NMFS' recommendations, the Act did not place direct requirements for 
compliance with conservation and enhancement recommendations provided 
by NMFS. The procedures identified in the regulations however, outline 
a method for cooperation and coordination between agencies, and options 
for dispute resolution should this become necessary.

Classification

    NMFS has prepared a draft environmental assessment that discusses 
the impact on the environment as a result of this rule. A copy of the 
environmental assessment is available from NMFS (see SUPPLEMENTARY 
INFORMATION).
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The proposed rule would establish guidelines for 
Councils to identify and describe EFH, including adverse impacts, and 
conservation and enhancement measures. The proposed regulation requires 
that the Councils conduct assessments of the effects of fishing on EFH 
within their jurisdiction. Should Councils establish regulations on 
fishing as a result of the guidelines and assessments of fishing gear, 
that action may affect small entities and could be subject to the 
requirement to prepare a regulatory flexibility analysis at that time. 
Finally, the consultation procedures establish a process for NMFS to 
provide conservation recommendations to Federal and state action 
agencies. However, because compliance with NMFS' recommendations are 
not mandatory, any effects on small businesses would be speculative. As 
a result, a regulatory flexibility analysis for this proposed rule was 
not prepared. This proposed rule has been determined to be not 
significant for the purposes of E.O. 12866.
    For purposes of Executive Order 12612, the Assistant Administrator 
for Fisheries has determined that this proposed rule does not include 
policies that have federalism implications sufficient to warrant 
preparation of a Federalism Assessment. This proposed rule establishes 
circumstances and procedures for consultations between the states and 
NMFS or the Councils in situations where state action may adversely 
impact EFH in state waters. The proposed rule states that, in such 
circumstances, NMFS or the Councils would furnish the state with EFH 
conservation recommendations. NMFS' recommendations are not mandatory, 
and the states are not required to expend funds in a way not of their 
own choosing.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing.

    Dated: April 17, 1997.
Charles Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
U.S. Department of Commerce.

    For the reasons stated in the preamble, 50 CFR part 600 is proposed 
to be amended as follows:

PART 600--MAGNUSON ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. Section 600.10 is amended by adding the definition for 
``Essential fish habitat'', in alphabetical order, to read as follows:


Sec. 600.10  Definitions.

* * * * *
    Essential fish habitat means those waters and substrate necessary 
to fish for spawning, breeding, feeding, or growth to maturity. For the 
purpose of interpreting the definition of essential fish habitat: 
``waters'' includes aquatic areas and their associated physical, 
chemical, and biological properties that are used by fish, and may 
include areas historically used by fish where appropriate; 
``substrate'' includes sediment, hard bottom, structures underlying the 
waters, and associated biological communities; ``necessary'' means the 
habitat required to support a sustainable fishery and a healthy 
ecosystem; and ``spawning, breeding, feeding, or growth to maturity'' 
covers a species' full life cycle.
* * * * *
    3. A new subpart is added to part 600 to read as follows:

Subpart I--Essential Fish Habitat (EFH)

Sec.
600.805  Purpose and scope.
600.810  Contents of Fishery Management Plans.
600.815  Coordination and consultation on actions that may adversely 
affect EFH.


Sec. 600.805  Purpose and scope.

    (a) Purpose. This subpart provides guidelines for the description, 
identification, conservation, and enhancement of, and adverse impacts 
to, EFH. These guidelines provide the basis for Councils and the 
Secretary to use in adding the required provision on EFH to an FMP, 
i.e., description and identification of EFH, adverse impacts on EFH 
(including minimizing, to the extent practicable, adverse impacts from 
fishing), and other actions to conserve and enhance EFH. This subpart 
also

[[Page 19727]]

includes procedures to implement the consultation requirements for all 
Federal and state actions that may adversely affect EFH.
    (b) Scope. An EFH provision in an FMP must include all fish species 
in the FMU. An FMP may describe, identify, and protect the habitat of 
species not in an FMU; however, such habitat may not be considered EFH 
for the purposes of sections 303(a)(7) and 305(b) of the Magnuson Act.


Sec. 600.810  Contents of Fishery Management Plans.

    (a) Mandatory contents--(1) Habitat requirements by life history 
stage. FMPs must describe EFH in text and with tables that provide 
information on the biological requirements for each life history stage 
of the species. These tables should summarize all available information 
on environmental and habitat variables that control or limit 
distribution, abundance, reproduction, growth, survival, and 
productivity of the managed species. Information in the tables should 
be supported with citations.
    (2) Description and identification of EFH--(i) Information 
requirements. (A) An initial inventory of available environmental and 
fisheries data sources relevant to the managed species should be useful 
in describing and identifying EFH. This inventory should also help to 
identify major species-specific habitat data gaps. Deficits in data 
availability (i.e., accessibility and application of the data) and in 
data quality (including considerations of scale and resolution; 
relevance; and potential biases in collection and interpretation) 
should be identified.
    (B) To identify EFH, basic information is needed on current and 
historic stock size and on the geographic range of the managed species. 
Information is also required on the temporal and spatial distribution 
of each major life history stages (defined by developmental and 
functional shifts). Since EFH should be identified for each major life 
history stage, data should be collected on the distribution, density, 
growth, mortality, and production of each stage within all habitats 
occupied by the species. These data should be obtained from the best 
available information, including peer-reviewed literature, data reports 
and ``gray'' literature, data files of government resource agencies, 
and any other sources of quality information.
    (C) The following approach should be used to gather and organize 
the data necessary for identifying EFH. Information from all levels 
will be useful in identifying EFH, and the goal of this procedure 
should be to include as many levels of analysis as possible within the 
constraints of the available data. Councils should strive to obtain 
data sufficient to describe habitat at the highest level of detail 
(i.e., Level 4).
    (1) Level 1: Presence/absence distribution data are available for 
some or all portions of the geographic range of the species. At this 
level, only presence/absence data are available to describe the 
distribution of a species (or life history stage) in relation to 
existing and potential habitats. Care should be taken to ensure that 
all habitats have been sampled adequately. In the event that 
distribution data are available for only portions of the geographic 
area occupied by a particular life history stage of a species, EFH can 
be inferred on the basis of distributions among habitats where the 
species has been found and on information about its habitat 
requirements and behavior.
    (2) Level 2: Habitat-related densities of the species are 
available. At this level, quantitative data (i.e., relative densities) 
are available for the habitats occupied by a species or life history 
stage. Because the efficiency of sampling gear is often affected by 
habitat characteristics, strict quality assurance criteria are required 
to ensure that density estimates are comparable among habitats. Density 
data should reflect habitat utilization, and the degree that a habitat 
is utilized is assumed to be indicative of habitat value. When 
assessing habitat value on the basis of fish densities in this manner, 
temporal changes in habitat availability and utilization should be 
considered.
    (3) Level 3: Growth, reproduction, or survival rates within 
habitats are available. At this level, data are available on habitat-
related growth, reproduction, and/or survival by life history stage. 
The habitats contributing the most to productivity should be those that 
support the highest growth, reproduction, and survival of the species 
(or life history stage).
    (4) Level 4: Production rates by habitat are available. At this 
level, data are available that directly relate the production rates of 
a species or life history stage to habitat type, quantity, quality, and 
location. Essential habitats are those necessary to maintain fish 
production consistent with a sustainable fishery and a healthy 
ecosystem.
    (ii) EFH determination. (A) The information obtained through the 
analysis in paragraph (a)(2)(i) of this section will allow Councils to 
assess the relative value of habitats. Councils should apply this 
information in a risk-averse fashion, erring on the side of 
inclusiveness to ensure adequate protection for EFH of managed species. 
If only Level 1 information is available, EFH is everywhere a species 
is found. If Levels 2 through 4 information is available, habitats 
valued most highly through this analysis should be considered essential 
for the species. However, habitats of intermediate and low value may 
also be essential, depending on the health of the fish population and 
the ecosystem.
    (B) If a species is overfished or recovering from a population 
decline, all habitats used by the species should be considered 
essential in addition to certain historic habitats that are necessary 
to support the recovery of the population and for which restoration is 
feasible.
    (C) EFH will always be greater than or equal to the ``critical 
habitat'' for any managed species listed as threatened or endangered 
under the Endangered Species Act.
    (D) Where a stock of a species is considered to be healthy and 
sufficient information exists to determine the necessary habitat to 
support the target production goal, then EFH for a species should be a 
subset of all existing habitat for the species.
    (E) Ecological relationships among species, and between the species 
and their habitat, require, where possible, that an ecosystem approach 
be used in determining the EFH of a managed species or species 
assemblage. The extent of the EFH should be based on the judgment of 
the Secretary and the appropriate Council(s) regarding the quantity and 
quality of habitat that is necessary to maintain a managed species or 
species assemblage at a target production goal that supports a 
sustainable fishery and a healthy ecosystem. Councils must establish 
target production goals for the fish species in the FMU of an FMP as a 
goal of the FMP. In determining a target production goal that supports 
a sustainable fishery and a healthy ecosystem, the Secretary and the 
appropriate Council(s) should consider: the prey requirements of the 
managed species; the extent to which the managed species is prey for 
other managed species or marine mammals; the production necessary to 
support a sustainable fishery; and other ecological functions provided 
by the managed species. If degraded or inaccessible habitat has 
contributed to the reduced yields of a species or assemblage, and in 
the judgment of the Secretary and the appropriate Council(s), the 
degraded conditions can be reversed through such actions as improved 
fish passage techniques (for fish blockages), improved water quality or 
quantity measures (removal of contaminants or

[[Page 19728]]

increasing flows), and similar measures that are feasible, then EFH 
should include those habitats that would be essential to the species to 
obtain increased yields.
    (iii) EFH Mapping Requirements. The general distribution and 
geographic limits of EFH for each life history stage should be 
presented in FMPs in the form of maps. Ultimately, these data should be 
incorporated into a geographic information system (GIS) to facilitate 
analysis and presentation. These maps may be presented as fixed in time 
and space but they should encompass all appropriate temporal and 
spatial variability in the distribution of EFH. If the geographic 
boundaries of EFH change seasonally, annually, or decadally, these 
changing distributions should be represented in the maps. Different 
types of EFH should be identified on maps along with areas used by 
different life history stages of the species. The type of information 
used to identify EFH should be included in map legends, and more 
detailed and informative maps should be produced as more complete 
information about population responses (e.g., growth, survival, or 
reproductive rates) to habitat characteristics becomes available. Where 
the present distribution or stock size of a species or life history 
stage is different from the historical distribution or stock size, then 
maps of historical habitat boundaries should be included in the FMP, if 
known. The EFH maps are a means to visually present the EFH described 
in the FMP. If the maps and information in the description of EFH 
varies, the description is ultimately determinative of the limits of 
EFH.
    (3) Non-fishing related activities that may adversely affect EFH--
(i) Identification of adverse effects. FMPs must identify activities 
that have potential adverse effects on EFH quantity and quality. Broad 
categories of activities may include, but are not limited to: dredging, 
fill, excavation, mining, impoundment, discharge, water diversions, 
thermal additions, runoff, placement of contaminated material, 
introduction of exotic species, and the conversion of aquatic habitat 
that may eliminate, diminish, or disrupt the functions of EFH. If 
known, an FMP should describe the EFH most likely to be affected by 
these activities. For each activity, the FMP should describe the known 
or potential impacts to EFH. These descriptions should explain the 
mechanisms or processes that cause expected deleterious effects and 
explain the known or potential impacts on the habitat function.
    (ii) Cumulative impacts analysis. To the extent practicable, FMPs 
should identify and describe those activities that can influence 
habitat function on an ecosystem or watershed scale. This analysis 
should include a description of the ecosystem or watershed, the role of 
the managed species in the ecosystem or watershed, and the impact on 
the ecosystem or watershed of removal of the managed species. An 
assessment of the cumulative and synergistic effects of multiple 
threats, including natural adverse effects (such as storm damage or 
climate-based environmental shifts), and an ecological risk assessment 
of the managed species' habitat should also be included. For the 
purposes of this analysis, cumulative impacts are impacts on the 
environment that result from the incremental impact of an action when 
added to other past, present, and reasonably foreseeable future 
actions, regardless of who undertakes such actions. Cumulative impacts 
can result from individually minor, but collectively significant 
actions taking place over a period of time.
    (iii) Mapping adverse impacts. The use of a GIS or other mapping 
system to analyze and present these data in an FMP is suggested for 
documenting impacts identified under paragraph (a)(3)(i) of this 
section and required when the analysis in paragraph (a)(3)(ii) of this 
section is conducted.
    (iv) Conservation and enhancement. FMPs should include options to 
minimize the adverse effects identified pursuant to paragraphs 
(a)(3)(i) and (ii) of this section and identify conservation and 
enhancement measures. Generally, non-water dependent actions should not 
be located in EFH. Actions not in EFH but that may result in 
significant adverse affects on EFH should be avoided if less 
environmentally harmful alternatives are available. If there is no 
alternative, these actions should be minimized. If avoidance and 
minimization will not adequately protect EFH, mitigation to conserve 
and enhance EFH will be recommended. These recommendations may include, 
but are not limited to:
    (A) Avoidance and minimization of adverse impacts on EFH. 
Environmentally sound engineering and management practices (e.g., 
seasonal restrictions, dredging methods, and disposal options) should 
be employed for all dredging and construction projects. Disposal of 
contaminated dredged material, sewage sludge, industrial waste or other 
materials in EFH should be avoided. Oil and gas exploration, 
production, transportation, and refining activities in EFH should be 
avoided, where possible, and minimized and mitigated if unavoidable.
    (B) Restoration of riparian and shallow coastal areas. Restoration 
measures may include: Restoration of functions of riparian vegetation 
by reestablishing endemic trees or other appropriate native vegetation; 
restoration of natural bottom characteristics; removal of unsuitable 
material from areas affected by human activities; and replacement of 
suitable gravel or substrate to stream areas for spawning.
    (C) Upland habitat restoration. This may include measures to 
control erosion, stabilize roads, upgrade culverts or remove dikes or 
levees to allow for fish passage, and the management of watersheds.
    (D) Water quality. This includes use of best land management 
practices for ensuring compliance with water quality standards at state 
and Federal levels, improved treatment of sewage, and proper disposal 
of waste materials .
    (E) Watershed analysis and subsequent watershed planning. This 
should be encouraged at the local and state levels. This effort should 
minimize depletion/diversion of freshwater flows into rivers and 
estuaries, destruction/degradation of wetlands, and restoration of 
native species, and should consider climate changes.
    (F) Habitat creation. Under appropriate conditions, habitat 
creation may be considered as a means of replacing lost EFH. However, 
habitat creation at the expense of other naturally functioning systems 
must be justified (e.g., marsh creation with dredge material placed in 
shallow water habitat).
    (4) Fishing activities that may adversely affect EFH.--(i) Adverse 
effects from fishing may include physical disturbance of the substrate, 
and loss of and injury to, benthic organisms, prey species and their 
habitat, and other components of the ecosystem.
    (ii) FMPs must include management measures that minimize adverse 
effects on EFH from fishing, to the extent practicable, and identify 
conservation and enhancement measures. The FMP must contain an 
assessment of the potential adverse effects of all fishing gear types 
used in waters described as EFH. Included in this assessment should be 
consideration of the establishment of research closure areas and other 
measures to evaluate the impact of any fishing activity that physically 
alters EFH.
    (iii) Councils must act to prevent, mitigate, or minimize any 
adverse effects from fishing, to the extent

[[Page 19729]]

practicable, if there is evidence that a fishing practice is having a 
substantial adverse effect on EFH, based on the assessment conducted 
pursuant to paragraph (a)(4)(ii).
    (iv) In determining whether it is practicable to minimize an 
adverse effect from fishing, Councils should consider whether, and to 
what extent, the fishing activity is adversely impacting the marine 
ecosystem, including the fishery; the nature and extent of the adverse 
effect on EFH; and whether the benefit to the EFH achieved by 
minimizing the adverse effect justifies the cost to the fishery.
    (5) Options for managing adverse effects from fishing. Fishing 
management options may include, but are not limited to:
    (i) Fishing gear restrictions. These options may include, but are 
not limited to: limit seasonal and areal uses of trawl gear and bottom 
longlines; restrict net mesh sizes, traps, and entanglement gear to 
allow escapement of juveniles and non-target species; reduce fish and 
shellfish traps set near coral reefs and other hard bottoms; limit 
seasonal and areal uses of dredge gear in sensitive habitats; prohibit 
use of explosives and chemicals; restrict diving activities that have 
potential adverse effects; prohibit anchoring of fishing vessels in 
coral reef areas and other sensitive areas; and prohibit fishing 
activities that cause significant physical damage in EFH.
    (ii) Time/area closures. These actions may include, but are not 
limited to: closing areas to all fishing or specific gear types during 
spawning, migration, foraging and nursery activities; and designating 
zones to limit effects of fishing practices on certain vulnerable or 
rare areas/species/life history stages.
    (iii) Harvest limits. These actions may include, but are not 
limited to, limits on the take of species that provide structural 
habitat for other species assemblages or communities and limits on the 
take of prey species.
    (6) Prey species. Loss of prey is an adverse effect on a managed 
species and its EFH; therefore, FMPs should identify the major prey 
species for the species in the FMU and generally describe the location 
of prey species' habitat and the threats to that habitat. Adverse 
effects on prey species may result from fishing and non-fishing 
activities.
    (7) Identification of vulnerable habitat. FMPs should identify 
vulnerable EFH. In determining whether a type of EFH is vulnerable, 
Councils should consider:
    (i) The extent to which the habitat is sensitive to human-induced 
environmental degradation.
    (ii) Whether, and to what extent, development activities are, or 
will be, stressing the habitat type.
    (iii) The rarity of the habitat type.
    (8) Research and information needs. Each FMP should contain 
recommendations, preferably in priority order, for research efforts 
that the Councils and NMFS view as necessary for carrying out their EFH 
management mandate. The need for additional research is to make 
available sufficient information to support a higher level of 
description and identification of EFH under paragraph (a)(2)(i) of this 
section. Additional research may also be necessary to identify and 
evaluate actual and potential adverse effects on EFH, including, but 
not limited to direct physical alteration; impaired habitat quality/
functions; or indirect adverse effects such as sea level rise, global 
warming and climate shifts; and non-gear fishery impacts. The Magnuson-
Stevens Act specifically identifies the effects of fishing as a 
concern. The need for additional research on the effects of fishing 
gear on EFH should be included in this section of the FMP. If an 
adverse effect is identified and determined to be an impediment to 
reaching target long-term production levels, then the research needed 
to quantify and mitigate that effect should be identified in this 
section.
    (9) Review and revision of EFH components of FMPs. Each Council and 
NMFS are expected to periodically review the EFH components of FMPs. 
Each EFH FMP amendment should include a provision requiring review and 
update of EFH information and preparation of a revised FMP amendment if 
new information becomes available. The schedule for this review should 
be based on an assessment of both the existing data and expectations 
when new data will become available. Such a review of information 
should be conducted as recommended by the Secretary, but at least once 
every five years.
    (b) Optional components. An FMP may include a description and 
identification of, and contain management measures to protect, the 
habitat of species under the authority of the Council, but not 
contained in the FMU. However, such habitat may not be considered EFH.
    (c) Development of EFH recommendations. After reviewing the best 
available scientific information, and in cooperation with the Councils, 
participants in the fishery, interstate commissions, Federal agencies, 
state agencies, and other interested parties, NMFS will develop written 
recommendations for the identification of EFH for each FMP. Prior to 
submitting a written EFH identification recommendation to a Council for 
an FMP, the draft recommendation will be made available for public 
review and at least one public meeting will be held. NMFS will work 
with the affected Council(s) to conduct this review in association with 
scheduled public Council meetings whenever possible. The review may be 
conducted at a meeting of the Council committee responsible for habitat 
issues or as a part of a full Council meeting. After receiving public 
comment, NMFS will revise its draft recommendations, as appropriate, 
and forward written recommendation and comments to the Council(s).


Sec. 600.815  Coordination and consultation on actions that may 
adversely affect EFH.

    (a) General--(1) Scope. One of the greatest long-term threats to 
the viability of the Nation's fisheries is the decline in the quantity 
and quality of marine, estuarine, and other riparian habitats. These 
procedures address the coordination and consultation requirements of 
sections 305(b)(1)(D) and 305(b)(2-4) of the Magnuson-Stevens Act. The 
consultation requirements of the Magnuson-Stevens Act provide that: 
Federal agencies must consult with the Secretary on all actions, or 
proposed actions, authorized, funded, or undertaken by the agency, that 
may adversely affect EFH; and the Secretary and the Councils provide 
recommendations to conserve EFH to Federal or state agencies. EFH 
conservation recommendations are measures recommended by the Councils 
or NMFS to a Federal or state agency to conserve EFH. Such 
recommendations may include measures to avoid, minimize, mitigate, or 
otherwise offset adverse effects on EFH resulting from actions or 
proposed actions authorized, funded, or undertaken by that agency. The 
coordination section requires the Secretary to coordinate with, and 
provide information to, other Federal agencies regarding EFH. These 
procedures for coordination and consultation allow all parties involved 
to understand and implement the consultation requirements of the 
Magnuson-Stevens Act.
    (2) Coordination with other environmental reviews. Consultation and 
coordination under sections 305(b)(2) and 305(b)(4) of the Magnuson-
Stevens Act may be consolidated, where appropriate, with interagency 
coordination procedures required by other statutes, such as the 
National Environmental Policy Act, the Fish and Wildlife Coordination 
Act, the

[[Page 19730]]

Clean Water Act, Endangered Species Act, and the Federal Power Act, to 
reduce duplication and improve efficiency. For example, a Federal 
agency preparing an environmental impact statement (EIS) need not 
duplicate sections of that document in a separate EFH assessment, 
provided the EIS specifically and fully evaluates the effects of the 
proposed action on EFH, notes that it is intended to function as an EFH 
assessment, is provided to NMFS for review, and meets the other 
requirements for an EFH assessment contained in this section. NMFS 
comments on these documents will also function as its response required 
under section 305(b)(4) of the Magnuson-Stevens Act.
    (3) Designation of Lead Agency. If more than one Federal or state 
agency is involved in an action (e.g., authorization is needed from 
more than one agency), the consultation requirements of sections 
305(b)(2-4) of the Magnuson-Stevens Act may be fulfilled through a lead 
agency. The lead agency must notify NMFS in writing that it is 
representing one or more additional agencies.
    (4) Conservation and enhancement of EFH. To further the 
conservation and enhancement of EFH, in accordance with section 
305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will compile and make 
available to other Federal and state agencies information on the 
locations of EFH, including maps and/or narrative descriptions. Federal 
and state agencies empowered to authorize, fund, or undertake actions 
that could adversely affect EFH should contact NMFS and the Councils to 
become familiar with the designated EFH, and potential threats to EFH, 
as well as opportunities to promote the conservation and enhancement of 
such habitat.
    (b) Council comments and recommendations to Federal and state 
agencies--(1) Establishment of procedures. Each Council should 
establish procedures for reviewing activities, or proposed activities, 
authorized, funded, or undertaken by state or Federal agencies that may 
affect the habitat, including EFH, of a species under its authority. 
Each Council may identify activities of concern by: directing Council 
staff to track proposed actions; recommending that the Council's 
habitat committee identify activities of concern; entering into an 
agreement with NMFS to have the appropriate Regional Director notify 
the Council of activities that may adversely impact EFH; or by similar 
procedures. Federal and state actions often follow specific timetables 
which may not coincide with Council meetings. Councils should consider 
establishing abbreviated procedures for the development of Council 
recommendations.
    (2) Early involvement. Councils should provide comments and 
recommendations on proposed state and Federal activities of interest as 
early as practicable in project planning to ensure thorough 
consideration of Council concerns by the action agency.
    (3) Coordination with NMFS. The Secretary will develop agreements 
with each Council to facilitate sharing information on actions that may 
adversely affect EFH and in coordinating Council and NMFS responses to 
those actions.
    (4) Anadromous fishery resources. For the purposes of the 
consultation requirement of section 305(b)(3)(B) of the Magnuson-
Stevens Act, an anadromous fishery resource under a Council's authority 
is an anadromous species where some life stage inhabits waters under 
the Council's authority.
    (c) Federal agency consultation--(1) Interagency coordination. Both 
Federal and state agencies are encouraged to coordinate their actions 
with NMFS to facilitate the early identification of potential adverse 
effects on EFH. This will allow consideration of measures to conserve 
and enhance EFH early in the project design. The consultation 
requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-
Stevens Act differ for Federal and state agencies. Only Federal 
agencies have a mandatory statutory requirement to consult with NMFS 
regarding actions that may adversely affect EFH, pursuant to section 
305(b)(2) of the Magnuson-Stevens Act. NMFS is required under section 
305(b)(4) to provide EFH recommendations regarding both state and 
Federal agency actions that could adversely affect EFH (see 
Sec. 600.810(a)(3) for further guidance on actions that could adversely 
affect EFH). Both Federal and state agencies are encouraged to develop 
agreements (or modify existing agreements) with NMFS to meet the 
consultation requirements in a manner to increase efficiency and to 
fully meet the requirements of the EFH provisions.
    (2) Designation of non-Federal representative. A Federal agency may 
designate a non-Federal representative to conduct an abbreviated 
consultation or prepare an EFH assessment by giving written notice of 
such designation to NMFS. If a non-Federal representative is used, the 
Federal action agency remains ultimately responsible for compliance 
with sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act.
    (3) General Concurrence--(i) Purpose. The General Concurrence 
process identifies specific types of Federal actions that may adversely 
affect EFH, but for which no further consultation is generally required 
because NMFS has determined, through an analysis of that type of 
action, that it will likely to result in minimal adverse effects 
individually and cumulatively. General Concurrences may be national or 
regional in scope.
    (ii) Criteria. (A) For Federal actions to qualify for General 
Concurrence, NMFS must determine, after consultation with the 
appropriate Council(s), that the actions meet all of the following 
criteria:
    (1) The actions must be similar in nature and similar in their 
impact on EFH.
    (2) The actions must not cause greater than minimal adverse effects 
on EFH when implemented individually.
    (3) The actions must not cause greater than minimal cumulative 
adverse effects on EFH.
    (B) Categories of Federal actions may also qualify for General 
Concurrence if they are modified by appropriate conditions that ensure 
the actions will meet the criteria in paragraph (c)(3)(ii)(A) of this 
section. For example, NMFS may provide General Concurrence for 
additional actions contingent upon project size limitations, seasonal 
restrictions, or other conditions.
    (iii) General Concurrence development. A Federal agency may request 
a General Concurrence for a category of its actions by providing NMFS 
with a written description of the nature and approximate number of the 
proposed actions, an analysis of the effects of the actions on EFH and 
associated species and their life history stages, including cumulative 
effects, and the Federal agency's conclusions regarding the magnitude 
of such effects. If NMFS agrees that the actions fit the criteria in 
paragraph (c)(3)(ii) of this section, NMFS, in consultation with the 
Council(s), will provide the Federal agency with a written statement of 
General Concurrence that further consultation is not required, and that 
preparation of EFH assessments for individual actions subject to the 
General Concurrence is not necessary. If NMFS determines that 
individual actions that fall within the General Concurrence would 
adversely affect EFH, NMFS will notify the Federal agency that 
abbreviated or expanded consultation is required. If NMFS identifies 
specific types of Federal actions that may meet the requirements for a 
General Concurrence, NMFS may initiate and complete a General 
Concurrence.

[[Page 19731]]

    (iv) Notification and further consultation. NMFS may request 
notification for activities covered under a General Concurrence if NMFS 
concludes there are circumstances under which such activities could 
result in more than a minimal impact on EFH, or if it determines that 
there is not a process in place to adequately assess the cumulative 
impacts of activities covered under the General Concurrence. NMFS may 
require further consultation for these activities on an individual 
action. Each General Concurrence should establish specific procedures 
for further consultation.
    (v) Public review. Prior to providing a Federal agency with a 
written statement of General Concurrence for a category of Federal 
actions, NMFS will provide an opportunity for public review through the 
appropriate Council(s), or other reasonable opportunity for public 
review.
    (vi) Revisions to General Concurrences. NMFS will periodically 
review and revise its findings of General Concurrence, as appropriate.
    (4) EFH Assessments--(i) Preparation requirement. Federal agencies 
(or designated non-Federal representatives) must complete an EFH 
assessment for any action that may adversely affect EFH, except for 
those activities covered by a General Concurrence. Where appropriate, 
Federal agencies may combine requirements for environmental documents 
such as Endangered Species Act Biological Assessments pursuant to 50 
CFR part 402 or National Environmental Policy Act documents and public 
notices pursuant to 40 CFR part 1500, with their EFH Assessment. This 
document must include all of the information required in paragraph 
(c)(4)(ii) of this section and the requirements for other applicable 
environmental documents to be considered a complete assessment.
    (ii) Mandatory contents. The assessment must contain:
    (A) A description of the proposed action.
    (B) An analysis of the effects, including cumulative effects, of 
the proposed action on EFH and the managed and associated species, 
including their life history stages.
    (C) The Federal agency's conclusions regarding the effects of the 
action on EFH.
    (iii) Additional information. If appropriate, the assessment should 
also include:
    (A) The results of an on-site inspection to evaluate the habitat 
and the site-specific effects of the project.
    (B) The views of recognized experts on the habitat or species that 
may be affected.
    (C) A review of pertinent literature and related information.
    (D) An analysis of alternatives to the proposed action, including 
alternatives that could avoid or minimize adverse effects on EFH.
    (E) Proposed mitigation.
    (F) Other relevant information.
    (iv) Incorporation by reference. The assessment may incorporate by 
reference a completed EFH Assessment prepared for a similar action, 
supplemented with any relevant new project specific information, 
provided the proposed action involves similar impacts to EFH in the 
same geographic area or a similar ecological setting. It may also 
incorporate by reference other relevant environmental assessment 
documents. These documents must be provided to NMFS.
    (5) Abbreviated consultation procedures--(i) Purpose. Abbreviated 
consultation allows NMFS to quickly determine whether, and to what 
degree, a Federal agency action may adversely affect EFH. The 
abbreviated consultation process is appropriate for Federal actions 
that would adversely affect EFH when, in NMFS' judgment, the adverse 
effect(s) of such actions could be alleviated through minor 
modifications to the proposed action.
    (ii) Notification by agency. The Federal agency must notify NMFS 
and the appropriate Council in writing as early as practicable 
regarding proposed actions that may adversely affect EFH. Notification 
will facilitate discussion of measures to conserve the habitat. Such 
early consultation must normally occur during pre-application planning 
for projects subject to a Federal permit or license, and during 
preliminary planning for projects to be funded or undertaken directly 
by a Federal agency.
    (iii) Submittal of EFH Assessment. The Federal agency must submit a 
completed EFH assessment to NMFS for review in accordance with 
paragraph (c)(4) of this section. If either the Federal agency or NMFS 
believes expanded consultation will be necessary, the Federal agency 
must initiate expanded consultation concurrently with submission of the 
EFH Assessment. Federal agencies will not have fulfilled their 
consultation requirement under paragraph (a)(1) of this section until 
timely notification and submittal of a complete EFH Assessment.
    (iv) NMFS response. NMFS must respond in writing as to whether it 
concurs with the findings of the assessment. NMFS' response shall 
indicate whether expanded consultation is required. If additional 
consultation is not necessary, NMFS' response must include any 
necessary EFH conservation recommendations to be used by the Federal 
action agency. NMFS will send a copy of its response to the appropriate 
Council.
    (v) Timing. The Federal action agency must submit its complete EFH 
Assessment to NMFS as soon as practicable, but at least 60 days prior 
to a final decision on the action, and NMFS must respond in writing 
within 30 days. If notification and the EFH Assessment are combined 
with other environmental reviews required by statute, then the 
statutory deadline for those reviews apply to the submittal and 
response. If NMFS and the Federal action agencies agree, a compressed 
schedule will be used in cases where regulatory approvals cannot 
accommodate 30 days for consultation, or to conduct consultation 
earlier in the planning cycle for proposed actions with lengthy 
approval processes.
    (6) Expanded consultation procedures--(i) Purpose. Expanded 
consultation is appropriate for Federal actions that would result in 
substantial adverse effects to EFH and/or require more detailed 
analysis to enable NMFS to develop EFH conservation recommendations.
    (ii) Initiation. Expanded consultation begins when NMFS receives a 
written request from a Federal action agency to initiate expanded 
consultation. The Federal action agency's written request must include 
a completed EFH Assessment in accordance with paragraph (c)(4) of this 
section. Because expanded consultation is required for activities that 
may potentially have substantial adverse impacts on EFH, Federal action 
agencies are encouraged to provide the additional information 
identified under paragraph (c)(4)(iii) of this section. Subject to 
NMFS's approval, any request for expanded consultation may encompass a 
number of similar individual actions within a given geographic area.
    (iii) NMFS response. NMFS will:
    (A) Review the EFH Assessment, any additional information furnished 
by the Federal agency, and other relevant information.
    (B) Conduct a site visit, if appropriate, to assess the quality of 
the habitat and to clarify the impacts of the Federal agency action.
    (C) Evaluate the effects of the action on EFH, including cumulative 
effects.
    (D) Coordinate its review of the proposed action with the 
appropriate Council.

[[Page 19732]]

    (E) Formulate EFH conservation recommendations and provide the 
recommendations to the Federal action agency and the appropriate 
Council.
    (iv) Timing. The Federal action agency must submit its complete EFH 
Assessment to NMFS as soon as practicable, but at least 120 days prior 
to a final decision on the action, and NMFS must conclude expanded 
consultation within 90 days of submittal of a complete Assessment 
unless extended by NMFS with notification to the Federal action agency. 
If notification and the EFH Assessment are combined with other 
statutorily required environmental reviews, then the statutory 
deadlines for those reviews apply to the submittal and response. NMFS 
and Federal action agencies may agree to use a compressed schedule in 
cases where regulatory approvals cannot accommodate a 60 day 
consultation period.
    (v) Best scientific information. The Federal action agency must 
provide NMFS with the best scientific information available, or 
reasonably accessible during the consultation, regarding the effects of 
the proposed action on EFH.
    (vi) Extension of consultation. If NMFS determines that additional 
data or analysis would provide better information for development of 
EFH conservation recommendations, NMFS may request additional time for 
its expanded consultation. If NMFS and the Federal action agency agree 
to an extension, the Federal action agency must provide the additional 
information to NMFS, to the extent practicable. If NMFS and the Federal 
action agency do not agree to extend consultation, NMFS must provide 
EFH conservation recommendations to the Federal action agency using the 
best scientific data available to NMFS.
    (7) Responsibilities of Federal action agency following receipt of 
EFH conservation recommendations--(i) Federal action agency response. 
Within 30 days after receiving an EFH conservation recommendation (or 
at least 10 days prior to final approval of the action, if a decision 
by the Federal agency is required in less than 30 days), the Federal 
action agency must provide a detailed response in writing to NMFS and 
the appropriate Council. The response must include a description of 
measures proposed by the agency for avoiding, mitigating, or offsetting 
the impact of the activity on EFH. In the case of a response that is 
inconsistent with the recommendations of NMFS, the Federal action 
agency must explain its reasons for not following the recommendations, 
including the scientific justification for any disagreements with NMFS 
over the anticipated effects of the proposed action and the measures 
needed to avoid, minimize, mitigate, or offset such effects.
    (ii) Dispute resolution. After receiving a Federal action agency 
response that is inconsistent with the recommendations of NMFS, the 
Assistant Administrator may request a meeting with the head of the 
Federal action agency, as well as any other agencies involved, to 
discuss the proposed action and opportunities for resolving any 
disagreements. Memoranda of agreement with Federal action agencies will 
be sought to further define such dispute resolution processes.
    (8) Supplemental consultation. A Federal action agency must resume 
consultation with NMFS following either abbreviated or expanded 
consultation if the agency substantially revises its plans for the 
action in a manner that may adversely affect EFH or if new information 
becomes available that affects the basis for NMFS' EFH conservation 
recommendations. Additionally, where Federal oversight, involvement, or 
control over the action has been retained or is authorized by law, the 
Federal action agency must resume consultation if new EFH is designated 
that may be adversely affected by the agency's exercise of its 
authority.
    (d) NMFS recommendations to state agencies--(1) Establishment of 
Procedures. Each Region should establish procedures for identifying 
actions or proposed actions authorized, funded, or undertaken by state 
agencies that may adversely affect EFH, and for identifying the most 
appropriate method for providing EFH conservation recommendations to 
the state agency.
    (2) Coordination with Federal consultation procedures. When an 
activity that may adversely affect EFH requires authorization or 
funding by both Federal and state agencies, NMFS will provide the 
appropriate state agencies with copies of EFH conservation 
recommendations developed as part of the Federal consultation 
procedures in paragraph (c) of this section.

[FR Doc. 97-10540 Filed 4-22-97; 8:45 am]
BILLING CODE 3510-22-P