[Federal Register Volume 62, Number 244 (Friday, December 19, 1997)]
[Rules and Regulations]
[Pages 66531-66559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33133]



[[Page 66531]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 961030300-7238-04; I.D. 120996A]
RIN 0648-AJ30


Magnuson-Stevens Act Provisions; Essential Fish Habitat (EFH)

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues this interim final rule to implement the essential 
fish habitat (EFH) provisions of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). This rule 
establishes guidelines to assist the Regional Fishery Management 
Councils (Councils) and the Secretary of Commerce (Secretary) in the 
description and identification of EFH in fishery management plans 
(FMPs), including identification of adverse impacts from both fishing 
and non-fishing activities on EFH, and identification of actions 
required to conserve and enhance EFH. The regulations also detail 
procedures the Secretary (acting through NMFS), other Federal agencies, 
state agencies, and the Councils will use to coordinate, consult, or 
provide recommendations on Federal and state activities that may 
adversely affect EFH. The intended effect of the rule is to promote the 
protection, conservation, and enhancement of EFH.

DATES: Effective on January 20, 1998. Comments must be received no 
later than February 17, 1998.

ADDRESSES: Requests for copies of the Environmental Assessment (EA) 
should be sent to the Director, Office of Habitat Conservation, 
Attention: EFH, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-
3282. (see SUPPLEMENTARY INFORMATION). These documents are also 
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 regional NMFS Offices:
    Northeast Regional Office, Attention: Habitat and Protected 
Resources Division, One Blackburn Drive, Gloucester, MA 01930-2298; 
978/281-9328.
    Southeast Regional Office, Attention: Habitat Conservation 
Division, 9721 Executive Center Drive North, St. Petersburg, FL 33702-
2432; 813/570-5317.
    Southwest Regional Office, Attention: Habitat Conservation 
Division, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; 
562/980-4041.
    Northwest Regional Office, Attention: Habitat Conservation Branch, 
525 N.E. Oregon St., Suite 500, Portland, OR 97232-2737; 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.

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

SUPPLEMENTARY INFORMATION: 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. Details concerning 
the justification for and development of this interim final rule were 
provided in the proposed rule (62 FR 19723, April 23, 1997) and will 
not be repeated here. In the proposed rule, the guidelines to the 
Councils for amending FMPs and the regulations outlining the processes 
for coordinating and consulting with, and providing recommendations to, 
the appropriate Federal and state agencies were combined within one 
subpart. For increased clarity and easier access for agencies involved 
in coordination or consultation, the interim final regulations separate 
the guidelines from the coordination, consultation, and recommendation 
procedures. The former is in subpart J and the latter is in subpart K 
of 50 CFR part 600. Both subparts are being issued together because of 
the importance for all affected parties to understand the implications 
of an area being identified as EFH.

Overview of EFH FMP Amendment Guidelines

    The themes of sustainability and risk-averse management are 
prevalent throughout the Magnuson-Stevens Act, both in the management 
of fishing practices (e.g., reduction of bycatch and overfishing and 
consideration of ecological factors in determining optimum yield [OY]) 
and in the protection of habitats (i.e., prevention of direct and 
indirect losses of habitats, including EFH). Management of fishing 
practices and habitat protection are both necessary to ensure long-term 
productivity of our Nation's fisheries. Mitigation of EFH losses and 
degradation will supplement the traditional management of marine 
fisheries. Councils and managers will be able to address a broader 
range of impacts that may be contributing to the reduction of fisheries 
resources. Habitats that have been severely altered or impacted may be 
unable to support populations adequately to maintain sustainable 
fisheries. Councils should recognize that fishery resources are 
dependent on healthy ecosystems; and that actions that alter the 
ecological structure and/or functions within the system can disturb the 
health or integrity of an ecosystem. Excess disturbance, including 
over-harvesting of key components (e.g., managed species) can alter 
ecosystems and reduce their productive capacity. Even though 
traditional fishery management and FMPs have been mostly based on 
yields of single-species or multi-species stocks, these regulations 
encourage a broader, ecosystem approach to meet the EFH requirements of 
the Magnuson-Stevens Act. Councils should strive to understand the 
ecological roles (e.g., prey, competitors, trophic links within food 
webs, nutrient transfer between ecosystems, etc.) played by managed 
species within their ecosystems. They should protect, conserve, and 
enhance adequate quantities of EFH to support a fish population that is 
capable of fulfilling all of those other contributions that the managed 
species makes to maintaining a healthy ecosystem as well as supporting 
a sustainable fishery.
    Councils must identify in FMPs the habitats used by all life 
history stages of each managed species in their fishery management 
units (FMUs). Habitats that are necessary to the species for spawning, 
breeding, feeding, or growth to maturity will be described and 
identified as EFH. These habitats must be described in narratives (text 
and tables) and identified geographically (in text and maps) in the 
FMP. Mapping of EFH maximizes the ease with which the information can 
be shared with the public, affected parties, and Federal and state 
agencies to facilitate conservation and consultation. EFH that is 
judged to be particularly important to the long-term productivity of 
populations of one or more managed species, or to be particularly 
vulnerable to degradation, should be identified as ``habitat areas of 
particular concern'' (HAPC) to help provide additional focus for 
conservation efforts. After describing and identifying EFH, Councils 
must assess the potential adverse effects of all fishing-equipment 
types on EFH and must include management measures that minimize adverse 
effects, to the extent practicable, in FMPs. Councils

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are also directed to examine non-fishing sources of adverse impacts 
that may affect the quantity or quality of EFH and to consider actions 
to reduce or eliminate the effects. Councils are directed to identify 
proactive means to further the conservation and enhancement of EFH.

Overview of Coordination, Consultation, and Recommendation Regulations

    This regulation establishes procedures for implementing the 
coordination, consultation, and recommendation requirements of the 
Magnuson-Stevens Act. NMFS will coordinate with other Federal and state 
action agencies by providing them with descriptions and maps of EFH, as 
well as information on ways to conserve and enhance EFH. The 
regulations allow Federal agencies to use existing consultation/
environmental review procedures or the procedures outlined in the 
regulation to fulfill their requirement to consult with NMFS on actions 
that may adversely affect EFH. Consultations may be conducted at a 
programmatic and/or project-specific level. In cases where effects from 
an action will be minimal, both individually and cumulatively, a 
General Concurrence (GC) procedure has been developed to simplify the 
Federal consultation requirements. Consultation on Federal actions may 
be conducted under Abbreviated or Expanded Consultation, depending on 
the severity of the threat to EFH. NMFS anticipates that a majority of 
Federal actions with the potential for adverse effects on EFH may be 
addressed through the abbreviated consultation process or the General 
Concurrence process. Coordination between NMFS and the Councils is 
encouraged in the identification of threats to EFH and the development 
of appropriate EFH conservation recommendations to Federal or state 
agencies. When NMFS or a Council provides EFH conservation 
recommendations to a Federal agency, that agency must respond in 
writing within 30 days. If the action agency's decisions differ from 
NMFS' conservation recommendations, further review of the decision may 
be continued by the two agencies, as detailed in the regulations.

Related Documents

    Other related documents that led to this interim final rule were 
referenced in the proposed rule. The Technical Assistance Manual that 
was released for public comment concurrent with the proposed rule 
received very little public comment. This was in part due to the very 
technical nature of the document. Therefore, NMFS will maintain this 
information as internal technical guidance, and as such, is not making 
it available for public comment again.

Comments and Responses

    Six regional public meetings and numerous briefings were held 
during the comment period to explain the proposed rule and solicit 
public comments from all interested parties. Fishery and non-fishery 
representatives attended the public meetings and were included in 
briefings. Comments were received in writing from 6 Regional Fishery 
Management Councils, 3 Interstate Marine Fishery Commissions, 8 Federal 
agencies, 22 state agencies, 13 fishery groups, 49 conservation/
environmental groups, 60 non-fishing industry groups, 11 other non-
governmental organizations, 11 academicians, 1 local government, and 40 
individuals.

1. Comments Asking for Additional Time to Comment

    Comments: Several commenters requested that, given the complex 
nature of the proposed regulations, additional time should be granted 
for public comment.
    Response: NMFS agrees that, because the EFH rule outlines a new 
program, additional public comment is desirable. However, because it is 
critical that these guidelines be available to the Councils and to the 
Secretary as soon as possible so that EFH FMP amendments can be 
developed and submitted to the Secretary in time to meet the statutory 
deadline of October 11, 1998, NMFS is issuing this rule as an interim 
final rule to provide necessary certainty to conduct this work. NMFS 
will also consider additional comments received during the comment 
period on this interim final rule before issuing the final rule. NMFS 
is particularly interested in receiving comments on those sections of 
the interim final rule that have been changed in response to comments 
and any new information not previously submitted.

2. Comments in Favor of Protection of Fish Habitats

    Comments: Most of the commenters supported the concept of 
protecting fish habitats as a means to support fisheries, sustain 
ecosystems, or preserve aesthetics, some in spite of the fact that they 
were wary of the approach outlined in the proposed rule because of 
potential adverse impacts on their activities. Numerous groups and 
individuals expressed concern that the habitat conservation approach 
set forth in the proposed rule was a dilution of the previously 
presented ecosystem approach from the Framework for the Description and 
Identification of EFH (62 FR 1306, January 9, 1997) (Framework) and 
feared that it would be weakened further in the interim final rule 
under pressure from non-fishing interests. Many commenters pointed out 
that marine fisheries belong to all Americans, not just to certain 
industries.
    Response: NMFS believes that EFH must be conserved and enhanced to 
prevent future depletions of managed species and to restore many 
presently overfished stocks. Measures detailed in these regulations are 
necessary to ensure that adverse impacts from both fishing and non-
fishing will be adequately addressed in accordance with the 
requirements of the Magnuson-Stevens Act. The regulations were 
developed by NMFS to provide the Councils with guidance that is both 
feasible and scientifically defensible. Although the guidelines vary 
superficially from the Framework, they are not fundamentally different. 
Additional input from Councils and the public, and discussions with 
other Federal agencies, were used to make the program workable. NMFS 
will continue to work with all parties to protect both quantity and 
quality of these habitats in a streamlined and efficient manner. NMFS 
has worked to insure that an ecologically sound approach was developed 
to protect, conserve, and enhance EFH to support sustainable fisheries 
and the ecosystems that support them in accordance with the mandate set 
by Congress.

3. Comments on the Interpretation of EFH

    Comments: Some industry groups commented that linking EFH to the 
amount of habitat necessary to support a healthy ecosystem exceeds the 
authority granted to NMFS under the Magnuson-Stevens Act. Additionally, 
they criticized this linkage as vague and overly broad. Some fishing 
interests expressed concern that ecosystem considerations might 
interfere with the focus on maintaining fishing production. Other 
commenters supported the linkage to healthy ecosystems, but asked that 
a healthy ecosystem be more clearly defined. Some commenters suggested 
that healthy ecosystems should be defined by species composition and 
abundance, presence of key interactions, and habitat persistence.
    Response: In the proposed rule, NMFS linked EFH to the amount of 
habitat required to support a sustainable fishery and healthy 
ecosystem. In the

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interim final rule, NMFS clarified this linkage to be the habitat 
required to support a sustainable fishery and the managed species' 
contribution to a healthy ecosystem.
    The Magnuson-Stevens Act provides authority for the link between 
EFH and the managed species' contribution to a healthy ecosystem in a 
number of places. Ecosystem themes are common in the definitions of 
``fishery resources,'' ``conservation and management,'' and 
``optimum.'' These definitions link protection of the marine 
environment to managing fisheries. Specifying that Councils should 
address the degradation and loss of EFH from both fishing and through 
conservation and enhancement measures further reflects support for more 
ecologically-based management of marine fisheries. In addition to its 
present emphasis on ecological components of management, the Magnuson-
Stevens Act, in section 406, calls for the establishment of an advisory 
panel to analyze the extent to which ecosystem principles are being 
applied, and to recommend to the Secretary and Congress ways to expand 
the application of ecosystem principles in fishery conservation and 
management in the future.
    Although the implementation of ecosystem management varies among 
the agencies and organizations that have adopted it, there are common 
elements among the approaches. Ecosystem management encourages 
sustainable resource use that is achieved through goal setting and the 
use of ecological precepts and understanding to achieve those goals; 
recognition that different processes occur at different temporal and 
spatial scales and must be addressed appropriately; recognition of the 
complexity and integration of ecosystems; recognition of humans as 
active components in ecosystems; recognition of the uncertainties 
inherent in management and the need to make risk-averse decisions; and 
the need for adaptive management (Christensen et al., 1996; Grumbine, 
1997; Hancock, 1993). This regulation embraces those concepts and urges 
Councils to seek environmental sustainability in fishery management of 
living marine and anadromous resources, within the current statutorily-
prescribed fishery management framework (i.e., management by FMPs).
    Linking EFH to healthy ecosystems will improve conserving and 
enhancing the habitats of all living marine resources which depend on 
the same marine ecosystem. Applying an ecosystem approach to the 
conservation and enhancement of EFH will require NMFS and the Councils 
to consider the inter-relationships between and among species managed 
under the Magnuson-Stevens Act, the Marine Mammal Protection Act, and 
the Endangered Species Act (ESA). Carrying out the habitat conservation 
mandates of these laws independently is inefficient, because the 
interrelationships between species are not considered. Concerns 
expressed by fishing interests that focusing on the ecosystem will 
divert attention from promoting sustainable fisheries are unfounded 
since sustainable resource use must be grounded in a sustained 
ecosystem.
    In response to comments requesting clarification, this interim 
final rule provides additional guidance by listing the general 
attributes of a healthy ecosystem in a definition. The linkage between 
a healthy ecosystem and EFH has been clarified to mean the habitat 
required to support a sustainable fishery and the managed species 
contribution to a healthy ecosystem.
    Comments: Many comments, mainly from conservation groups, opposed 
linking EFH to fisheries in the definition and throughout the proposed 
rule. In particular, they wanted the quantity of EFH to be linked to 
the support of fish populations rather than to fisheries production. 
Conversely, some Councils' comments suggested that NMFS link EFH to a 
quantifiable fishery term such as maximum sustainable yield (MSY) or 
OY. One Council urged NMFS to clarify that the term sustainable fishery 
means the level necessary to maintain at least the current production. 
Other commenters supported the linkage of EFH to sustainable fisheries, 
but were unclear about the meaning of target production goal as used in 
the proposed rule. One asked that the time period over which 
sustainable should apply be better defined. Some non-fishing commenters 
criticized the linkage to sustainable fisheries as vague and too broad.
    Response: The Magnuson-Stevens Act mandates that EFH requirements 
be incorporated into FMPs. It also explicitly states that one of its 
purposes is to provide for the preparation and implementation of FMPs 
that will achieve and maintain on a continuing basis, the OY from each 
fishery. The definition of optimum states that the yield from a fishery 
should provide the greatest national benefit. This benefit includes 
food production and recreational opportunities, and takes into account 
protection of marine ecosystems. This is the basis for long-term 
sustainable fisheries. Therefore, NMFS continues to maintain that 
linking EFH to sustainable fisheries is appropriate and based on the 
Magnuson-Stevens Act. Because managed species are integral parts of the 
ecosystems that support them, consideration of ecosystem processes are 
equally important, as expressed in the rule.
    In managing a fishery under their jurisdiction, Councils limit the 
quantity of fish that can be harvested by fishers from a population or 
stock. These limits or yields, usually expressed as MSY or OY, are 
based on estimates of the total population (or stock) size and the 
ability of the population to sustain itself when subjected to some 
level of fishing pressure. When considering the EFH requirements of a 
managed species, Councils must describe and identify enough habitat to 
support the total population, not just the individual fish that are 
removed by fishing (the fisheries production). ``Target production 
goal'' was intended to portray this concept in the proposed rule; but, 
because commenters confused biological production with fisheries 
production, NMFS has modified this wording. The interim final rule 
states that FMPs should identify enough EFH to support a population 
adequate to maintain a sustainable fishery and the managed species' 
contributions to a healthy ecosystem. If the current stock size 
supports the long-term potential yield of the fishery then EFH should 
be adequate to support that population and its contribution to a 
healthy ecosystem. If the current stock size is lower than that (i.e., 
overfished), then EFH may need to be bigger or annually enlarged to 
support a larger spawning stock if habitat is limiting.
    Comments: Some commenters stated that including ``biological 
properties'' and ``biological communities'' in the interpretation of 
``waters'' and ``substrate'' was an inappropriate expansion of the 
Magnuson-Stevens Act. Other commenters criticized NMFS for including 
``chemical properties'' in the interpretation of ``waters'' because 
other agencies have greater expertise in, and jurisdiction over, water 
quality issues.
    Response: NMFS disagrees with these comments and did not change the 
rule. ``Biological properties'' and ``biological communities'' are 
fundamental aspects of habitat and have long been recognized as such by 
the scientific and technical communities. The fact that an area is 
aquatic or contains a specific physical structure may not necessarily 
make it fish habitat. Fish species require waters with, among other 
things, appropriate biological properties and chemical properties 
(e.g., prey, nutrient sources, salinities, dissolved oxygen 
concentrations, and pH) to meet their

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physiological/habitat requirements. Substrata also must often have 
certain biological communities (typically sessile organisms) before 
they function as fish habitat. For example, it is the presence of 
seagrasses (associated biological community) that provides appropriate 
settlement habitat for post-larval queen conch, not just the underlying 
coarse grain sand.
    NMFS and other NOAA offices have considerable expertise and state-
of-the-art scientific facilities to assess and evaluate water quality 
issues. The fact that NMFS does not have statutory authority for 
regulation of water quality makes it no less important in the research 
and management of resources under NMFS' jurisdiction.
    Comments: Some commenters objected to the inclusion of ``structures 
underlying the waters'' in the interpretation of ``substrate.'' Others 
supported the inclusion of ``structures,'' but questioned whether the 
owners of structures that are identified as EFH would be required to 
maintain them as EFH. Several commenters, primarily dive groups, 
recreational fishers, and oil industry representatives, applauded the 
inclusion of artificial reefs as structures, and further stressed the 
importance of offshore oil platforms as artificial reefs and potential 
EFH. One commenter pointed out that artificial reefs, if 
inappropriately established, have the potential to adversely impact 
EFH.
    Response: NMFS included ``structures underlying the waters'' in its 
interpretation of substrate to clarify that structures such as 
artificial reefs, jetties, and shipwrecks may be considered EFH if they 
provide essential habitat for a managed species. This should not be 
interpreted to mean that all such structures are EFH. Only those 
structures that meet the criteria outlined in these guidelines and 
identified as such in an FMP are EFH. If a structure is identified as 
EFH, the Secretary is required to comment on any state or Federal 
action that may have an adverse impact on such habitat. Activities, 
such as routine maintenance, that do not require a state or Federal 
permit or license would not require consultation. If a state or Federal 
agency is involved in creating or modifying an artificial reef in, or 
affecting, EFH, NMFS will be required to comment on ways to minimize or 
mitigate any adverse impacts to the EFH.
    Comment: Some commenters were opposed to interpreting ``spawning, 
breeding, feeding, or growth to maturity'' to cover a species' full 
life cycle. Other commenters supported it.
    Response: The Magnuson-Stevens Act established this definition for 
EFH. NMFS recognizes that some may interpret spawning, breeding, and 
growth to maturity to exclude key life stages, (e.g., mature adults). 
However, all immature life stages grow to maturity and all mature 
adults feed, spawn, and/or breed. Therefore, it is appropriate to 
interpret this phrase to cover the entire life cycle.
    Comments: Some commenters criticized the definition of EFH in the 
proposed rule for allowing historic or degraded habitat to be 
identified as EFH ``if the loss of that habitat has contributed to 
reduced yields for the species and it is feasible to restore the lost 
habitat.'' Other commenters criticized NMFS for allowing degraded or 
inaccessible habitat to be identified as EFH. The commenters argued 
that these provisions exceed NMFS' statutory authority. Port 
authorities in particular are concerned that facilities on dry land may 
be identified as EFH.
    Response: These provisions were included in the proposed rule 
because the restoration of historic, degraded, or inaccessible habitat, 
where technologically and economically feasible, may be necessary to 
meet the rule's stated goal of ensuring the production necessary for 
some species to support a sustainable fishery and contribute to a 
healthy ecosystem. This interim final rule continues to allow the 
identification of historic or degraded habitat as EFH but further 
clarifies that ``historic habitat'' must currently be an aquatic area 
before it can be identified as EFH and that restoration must be 
technologically and economically feasible. Therefore, dry land could 
not be identified as EFH.

4. Comments Requesting Definition of Other Terms in the Interim Final 
Rule

    Comment: Several commenters suggested that the interim final rule 
contain a definition of ``adverse impact.''
    Response: NMFS agrees and has included a definition in the rule.
    Comment: Several commenters suggested that a definition for 
critical habitat'' is necessary.
    Response: NMFS disagrees that a definition is necessary but has 
modified the rule to clarify that ``critical habitat'' relates to 
species that are listed as threatened or endangered under the ESA.
    Comment: Some commenters suggested that the acronym ``FMU'' needs 
to be defined.
    Response: The acronym FMU is already defined in 50 CFR 600.10, 
which contains the definitions for all of part 600. The EFH provisions 
contained in this interim final rule will become subparts of part 600 
and as such are subject to those definitions.
    Comment: Several commenters suggested that the terms ``high value 
habitat'' and ``ecosystem scale'' need to be defined in the interim 
final rule.
    Response: NMFS disagrees that these terms need to be defined in the 
rule since they may be interpreted from the contexts in which they are 
used in the rule.

5. Comments on the Purpose and Scope of the Rule

    Comments: Several commenters criticized NMFS for not requiring 
Councils to describe and identify EFH for all fish species inhabiting 
the geographic jurisdiction of a Council, and suggested that such a 
limitation is not supported by the Magnuson-Stevens Act. Other 
commenters suggested that EFH be described and identified for all major 
fisheries, even those not in an FMP. They stated that Councils should 
be able to describe and identify EFH of non-managed species in order to 
protect habitats that are affected by fishing for a managed species. 
Others suggested that as soon as EFH is identified in a proposed FMP, 
management measures and consultations should begin without waiting for 
final approval of the FMP.
    Response: NMFS continues to maintain that the Magnuson-Stevens Act 
requires Councils to describe and identify EFH for only those species 
managed under an FMP. According to section 303(a)(7) of the Magnuson-
Stevens Act, EFH provisions are required components of an FMP. 
Therefore, it is appropriate to describe and identify EFH only for 
those species managed in the FMP. However, the Magnuson-Stevens Act 
does not preclude Councils from identifying habitat of a fishery 
resource under its authority. Section 305(b)(3) describes the Councils' 
commenting responsibilities for activities that may affect such 
habitat. In the rule, NMFS points out that Councils have the option to 
describe and identify habitats (not EFH) and institute management 
measures to protect species (and their habitats) that are not managed 
under FMPs. This is currently done by some Councils. However, the 
habitats of species not managed under a Federal FMP would not be 
considered EFH for the purposes of consultation.
    EFH consultation and management measures can not be implemented 
until FMPs include an EFH provision. Consultation and management 
measures would have no statutory basis without the EFH provisions in an 
FMP.
    Comments: Several commenters questioned whether EFH would be

[[Page 66535]]

identified in state waters. Many commenters urged NMFS to do so; others 
opposed it. Commenters urged NMFS to clearly state that management 
actions regarding fishing impacts only apply to species managed by 
Councils in Federal waters. While some commenters pointed out that NMFS 
cannot regulate fishing in state waters, others asked that fishing be 
regulated in state waters as well as Federal waters. Three commenters 
suggested that the Submerged Lands Act, in combination with the 
Magnuson-Stevens Act, would allow NMFS to assert jurisdiction over 
state waters, and that the rule should explain how states' authority 
over their waters and submerged lands will be affected by this rule. 
Some suggested that fishing regulations be closely coordinated with 
state management agencies to ensure consistency in habitat protection. 
The commenters who stated that EFH should not be identified in state 
waters, further asserted that NMFS should not provide comments on 
Federal and state activities that take place in state waters.
    Response: The Magnuson-Stevens Act requires Councils to describe 
and identify EFH based on all life stages of the managed species, with 
no limitations placed on the geographic location of EFH. Therefore, EFH 
may be in state or Federal waters depending on the biological 
requirements of the species. Regarding actions that occur in state 
waters that may adversely affect EFH, the Magnuson-Stevens Act provides 
authority for NMFS to provide EFH conservation recommendations, not 
regulate.
    With few exceptions, direct NMFS regulatory authority applies only 
to Federal waters, the exclusive economic zone (EEZ). Generally, 
without appropriate preemptive procedures, NMFS can not implement 
management measures for state waters. However, many species targeted in 
Federal fisheries spend part of their life cycle in state waters and 
may be impacted by fishing activities that are managed by a state. 
Effective management of marine resources that cross jurisdictional 
boundaries requires coordination between management entities, and NMFS 
has added additional language to the interim final rule to emphasize 
such arrangements. Adverse impacts to EFH that result from state-
managed fisheries will be addressed through conservation 
recommendations to the appropriate state agency. Failure to consult or 
comment on activities adversely affecting all habitats would be a 
failure to carry out the legislative mandate to protect EFH for all 
life history stages.
    Comments: Several commenters recommended that the EFH mandate 
should be applied beyond U.S. territorial waters. They argue that many 
of the species managed under the Magnuson-Stevens Act range beyond U.S. 
territorial waters, e.g., New England groundfish and Alaska salmon are 
found in Canadian waters and the high seas. The highly migratory 
species that are managed under Secretarial FMPs range into 
international waters and the waters of other nations. The basic 
question raised in the comments is whether NMFS and the Councils can 
identify EFH for those species in the territorial waters of another 
country or in international waters.
    Response: The EFH provisions under the Magnuson-Stevens Act do not 
direct the Councils to include waters beyond the jurisdiction of the 
U.S. Since provisions in statutes are not presumed to apply 
extraterritorially, NMFS has determined that waters beyond the United 
States' EEZ are not to be identified as EFH. Therefore, NMFS will not 
regulate fishing beyond the EEZ, and Federal consultation will not be 
required. However, Councils may describe, identify, and promote 
protection of habitats for managed species in waters beyond the EEZ. 
The Secretary will use such information in discussions with Federal 
agencies involved in international actions, including negotiations with 
foreign nations.
    Comment: One Federal agency commented that the Great Lakes should 
be added to the EFH program. Other commenters suggested that 
interjurisdictional fisheries be added to the program.
    Response: In order for an area, like the Great Lakes, to be 
identified as EFH, it must provide essential habitat for a species 
managed under the Magnuson-Stevens Act. Similarly, an 
interjurisdictional fishery must be at least partially managed under 
the Magnuson-Stevens Act for the EFH mandate to apply.
    Comment: Commenters asked whether EFH would be described and 
identified in waters under the jurisdiction of tribes or native 
corporations.
    Response: NMFS intends that tribal and native corporation waters be 
treated the same as state waters for the purposes of describing and 
identifying EFH (i.e., EFH may be identified in those waters if the 
habitat is essential for a managed species). However, tribes and native 
corporations are not required to consult with NMFS on actions that do 
not require Federal or state authorization or action. Tribal and native 
corporation actions, including activities carried out through Federal 
financial assistance and under permits or licenses issued by Federal or 
state governments, will require the appropriate procedures for 
consultation and/or recommendations as set forth in subpart K.
    Comment: Commenters voiced concern that this regulation would 
affect the rights of private landowners to manage their own property.
    Response: Private landowners have no new responsibilities to 
consult with NMFS on private land activities as a result of the 
Magnuson-Stevens Act or this interim final rule. No consultation is 
required unless an activity may have an adverse impact on EFH and it 
requires a Federal or state action, such as permitting or licensing. 
Those Federal or state actions will trigger the consultation and/or 
recommendation requirements of section 305(b)(2-4) of the Magnuson-
Stevens Act. EFH coordination, consultation, and recommendation 
procedures are detailed in this interim final rule and will be added to 
part 600 as new subpart, K. Use of existing consultation procedures to 
minimize adverse impacts to EFH is strongly advocated in the rule.
    Comment: One organization suggested that EFH should be expanded 
beyond aquatic areas to include riparian areas and hydrological basins.
    Response: The statutory definition of EFH limits it to ``waters''; 
therefore, terrestrial areas may not be identified as EFH. However, 
there is not a similar legal limit on Federal or state activities that 
may adversely impact EFH. The only criteria is that the activity may 
have an adverse impact on EFH, with no limits on where the activity is 
located. An adverse effect on EFH should be reasonably foreseeable for 
the action to require consultation. Therefore, NMFS may comment on 
Federal or state actions which take place within riparian areas or 
hydrological basins if they may have a reasonably foreseeable adverse 
impact on EFH. In this rule, NMFS has confined EFH to include only 
aquatic habitat because the Magnuson-Stevens Act definition of EFH 
limits it to ``waters.'' However, NMFS believes that areas important to 
a sustainable fishery necessarily include riparian and upland areas, as 
well as aquatic areas, particularly in the case of anadromous species. 
Areas that NMFS considers important are illustrated in the critical 
habitat designation for Snake River chinook.
    Comment: One commenter expressed concern that those areas not 
identified as EFH will be subject to greater threat of disturbance 
because they will be thought of as expendable.

[[Page 66536]]

    Response: The Fish and Wildlife Coordination Act (FWCA) provides a 
directive to Federal agencies to consult with NMFS when waters of the 
United States may be modified by activities requiring a Federal permit 
or license. The FWCA will continue to allow the Secretary to comment on 
Federal activities that may adversely affect living marine resources 
and their habitat, even if such habitat is not identified as EFH.

6. Comments on Mandatory Contents of Fishery Management Plans

    Comments: Some non-fishing industry commenters argued that NMFS has 
exceeded the authority granted by the Magnuson-Stevens Act by including 
mandatory provisions in the EFH guidelines. They argue that Congress 
intended the guidelines to be voluntary. Other commenters argued that 
proposing discretionary components that ``should'' be included in an 
FMP will expose the Councils and NMFS to third-party suits. They stated 
that the guidelines need to be far less prescriptive to guard against 
such suits. Conversely, other commenters argued that NMFS should change 
many of the discretionary components of FMPs in the proposed rule to 
mandatory components in the interim final rule.
    Response: The Magnuson-Stevens Act directs the Secretary to 
``establish by regulation guidelines to assist Councils'' in carrying 
out the EFH mandate. The mandatory components specified in the rule 
reflect requirements of the Magnuson-Stevens Act, or are logical 
extensions of it. Since receiving these comments, NMFS has reviewed the 
use of each term (i.e., must, should, may, etc.) to ensure that the 
requirements of the Magnuson-Stevens Act are reflected in the interim 
final rule. NMFS will continue to maintain a mixture of voluntary 
(may), strongly suggested (should), and mandatory (must) components to 
inform Councils of the elements needed in an EFH amendment to receive 
Secretarial approval.

7. Comments on Description and Identification of EFH in Fishery 
Management Plans

    Comment: A commenter criticized NMFS for not providing tighter, 
less vague standards for the description and identification of EFH.
    Response: The guidelines contained in this rule apply to all 
regions of the United States, including the Caribbean and western 
Pacific territories, and will be used to amend 39 different FMPs 
covering over 400 species. Because of this diversity of regional needs, 
the guidelines need to be flexible, while providing consistent guidance 
to ensure that amendments meet equivalent standards.
    Comments: Many commenters suggested other types of information that 
should be included in describing and identifying EFH. These include: 
(1) Sensitive life stages; (2) reproductive and dispersal patterns; (3) 
information generated from spatial, temporal, and fishing gear 
experiments; (4) historical information for each data level; (5) 
carrying capacity, habitat availability, quality, and utilization; and 
(6) spawning structures and structural complexity.
    Response: NMFS concurs that this information may be useful. The 
lists of information types were intended to be instructive, not 
exhaustive. The interim final rule has been modified to provide more 
flexibility with regard to the data used.

8. Comments on the Sources and Quality of Information Used

    Comment: Several comments, particularly from state agencies, 
stressed the need to involve states and use state agency data in 
satisfying the EFH requirements of the Magnuson-Stevens Act. Several 
commenters urged NMFS to cooperate with states in gathering 
information, developing FMP amendments, and funding restoration.
    Response: NMFS agrees, and is already collaborating with the states 
in many activities. For example, NMFS is coordinating with the state 
fisheries agencies and the three interstate fisheries commissions to 
gather the best available information for use in the EFH amendments. 
NMFS is also working with state coastal zone programs to coordinate EFH 
efforts with approved coastal management plans. These interactions with 
states are facilitated by the fact that Council members represent each 
state under the Council's jurisdiction, and many resource agency 
experts also serve on various Council committees and panels, including 
habitat committees and advisory panels. All Council activities are open 
to the public, which affords further opportunities for cooperation. 
Subpart J of the interim final rule has been further modified to 
emphasize coordination between states, interstate commissions, and 
Councils in the development of EFH FMP provisions.
    Comment: Several commenters suggested that ``best available 
information'' might preclude NMFS and the Councils from using local 
knowledge and log books as sources of information to describe and 
identify EFH.
    Response: Section 305(b)(1)(B) of the Magnuson-Stevens Act requires 
NMFS to consult with participants in the fishery before submitting its 
recommendations and information to the Councils to assist in the 
description and identification of EFH. This indicates Congress' intent 
to use information from fishers. NMFS intends for Councils to use the 
best available information, including local knowledge and log books, to 
describe and identify EFH. However, all information should be evaluated 
with regard to the reliability of the information and its source.

9. Comments on the Four-Level Approach for Gathering and Organizing EFH 
Data

    Comments: Many commenters expressed concern about the four-level 
approach to gathering and organizing data for the description and 
identification of EFH. Some expressed concern that there is no 
incentive for Councils to move beyond level 1 information (i.e., 
presence/absence information) and that Councils would identify all 
habitats occupied by managed species as EFH to ensure the greatest 
amount of protection. Other commenters suggested that there should be a 
rebuttable presumption that all habitat is EFH if data from levels 2 
through 4 are used to refine the identification of EFH. Finally, some 
commenters criticized NMFS for allowing the identification of EFH to be 
based on production rates by habitat type, because it restricts the 
goal of the Magnuson-Stevens Act to promote the protection of EFH.
    Response: The four-level approach provides a logical method to 
gather and organize data for the identification of EFH. There is a 
natural incentive to gather and use information from progressively 
higher levels, because this will enable NMFS and the Councils to target 
their habitat conservation efforts to ensure that the most productive 
habitats receive greater attention. The rule has been modified to 
reinforce this intention. Councils are required to demonstrate that the 
best scientific information available was used in the identification of 
EFH. NMFS also disagrees with the comment that linking EFH to 
production will not promote the protection of EFH. Clearly linking EFH 
to biological production, and advocating research to quantify these 
relationships, will increase awareness of the importance of habitat to 
sustainable fisheries and will likely lead to greater emphasis on 
protecting EFH. NMFS did not create a rebuttable presumption that all 
habitat identified by levels 2 through

[[Page 66537]]

4 information is EFH because it could lead to an overly broad area 
being identified as EFH without adequate scientific justification. 
NMFS' use of the four levels of information is a means of organizing 
the available data for the identification of EFH. This data will be 
considered in determining the extent of EFH.
    Comment: One commenter suggested that NMFS require Councils to 
submit a schedule detailing when higher levels of information will be 
developed.
    Response: Periodic updates are required for EFH amendments. 
Amendments should include an assessment of the information needed to 
improve the description and identification of EFH. The research needs 
identified in an FMP should include a schedule for meeting those needs.

10. Comments on Criteria for EFH Determinations

    Comments: Several commenters questioned the role of Council 
judgment when there is only level 1 information available. Others asked 
for additional guidance on how to interpret level 1 information.
    Response: The role of Councils is to evaluate information and use 
the EFH determination criteria in the interim final rule to identify 
EFH and the measures required to conserve it. Councils will need to 
evaluate all available information, according to its merit, and use 
best scientific judgement in arriving at their decisions. Demonstration 
that this identification is based on the best scientific information 
available will be necessary to attain Secretarial approval of an EFH 
amendment. Additional clarification on how to interpret level 1 
information to identify EFH has been added to the interim final rule.
    Comments: Comments from conservation groups, many fishing groups, 
and most individual commenters fully supported a ``precautionary 
approach'' and encouraged expansion of these provisions. A few 
commenters urged that all habitats be designated EFH and that those 
people who impact the habitat should be responsible for proving that 
their activities are not decreasing the habitat's capacity to support 
fish populations. Many comments, primarily from non-fishing industry 
interests, criticized NMFS for establishing a ``risk-averse'' process 
for identifying EFH that they claim will result in most aquatic areas 
being identified as EFH. Of particular concern is the guidance in the 
proposed rule that if only species distribution information is 
available, EFH should be everywhere a species is found. Also of concern 
is a provision which states that, if a species is overfished, all 
habitats used by the species, plus certain historic habitats, should be 
considered EFH. The commenters believed that these provisions will 
result in most, if not all, habitats being identified as EFH and that 
this is not the intent of the Magnuson-Stevens Act.
    Response: The ``risk-averse'' approach to describing and 
identifying EFH was advocated in the proposed regulation because of the 
uncertainty inherent in much of our knowledge of habitat-productivity 
relationships. Care should be exercised in the face of inadequate 
information or overfished stocks to guard against habitat losses or 
alterations that may prove significant to the long-term productivity of 
the species. The rule continues to endorse these risk-averse 
approaches, but clarifies that Councils should use information from all 
available levels to make best scientific judgments on how to describe 
and identify EFH. Presence/absence data should be used to delineate the 
geographic range of the species. Habitat-specific information on 
density, reproduction, and growth should be used to identify EFH within 
that range. If only presence/absence information are available on a 
managed species, these data should be evaluated to identify those areas 
most commonly used by the species as EFH. The rule also clarifies that, 
for overfished species, all habitats currently used, and certain 
historic habitats, should be identified as EFH only if habitat loss or 
degradation may be contributing to the species' being identified as 
overfished.

11. Comments on the Relationship Between EFH and Critical Habitat

    Comments: Some commenters criticized the proposed rule for stating 
that EFH will always be greater than or equal to ``critical habitat.'' 
One commenter noted that some critical habitat can include upland 
habitats and therefore this linkage is not consistent with the 
statutory definition of EFH. Others stated that EFH should not be 
described and identified for species listed under the ESA. One 
commenter questioned why NMFS is allowing fishing on endangered 
species. Some commenters supported EFH being equal to or greater than 
critical habitat because it will promote the recovery of endangered 
species.
    Response: NMFS maintains that it is appropriate to state that EFH 
will always be greater than or equal to critical habitat, as defined 
under ESA. The interim final rule includes a minor modification to the 
language that helps distinguish between critical habitat and EFH and to 
reiterate that EFH is aquatic only. EFH includes habitats for all life 
history stages of a species, while for some anadromous salmonids listed 
under ESA, adult marine habitats have not been identified as critical 
habitat. NMFS does recognize that critical habitat may contain 
terrestrial areas and has modified the interim final rule to clarify 
that those areas may not be considered EFH.
    NMFS and the Councils do not allow directed fishing on listed 
species but EFH requirements are still necessary if the species are 
covered by an FMP. Certain stocks of west coast salmon are currently 
part of the management unit of an FMP. Specific runs of those stocks 
are listed as threatened or endangered under the ESA. Even though 
certain runs of a larger stock are listed under the ESA, the Magnuson-
Stevens Act still requires Councils to describe, identify, and consider 
actions to conserve and enhance EFH for the species. This does not mean 
that directed fishing will be allowed on the listed runs.

12. Comments on Inclusion of Mariculture and Indirect Fishing Effects

    Comments: NMFS received comments suggesting that fishing activities 
should include all components of the activity (e.g., anchoring, 
refueling). Some commenters requested that mariculture be considered a 
fishing activity.
    Response: As fishing is defined in section 3(4) of the Magnuson-
Stevens Act it includes ``harvesting of fish.'' Commercial fishing, in 
the same section, means ``fishing in which the fish harvested, either 
in whole or in part, are intended to enter commerce or enter commerce 
through sale, barter or trade.'' NMFS agrees that mariculture is 
included within these definitions because the fish harvested enter 
commerce. The interim final rule was not changed, because mariculture 
was already considered to be part of commercial fishing. Under these 
regulations Councils would be required to assess the impacts of 
mariculture activities and minimize any adverse effects that impact EFH 
within their jurisdiction. The indirect effects of fishing activities 
should also be considered, when evaluating adverse impacts from 
fishing, as well as when analyzing cumulative impacts on EFH.
    In the rule, NMFS has used the term ``fishing equipment'' to 
replace the term ``fishing gear,'' that was used in the proposed rule. 
Fishing equipment is used to portray the intention to more broadly 
consider impacts from fishing-related activities when assessing

[[Page 66538]]

adverse impacts on EFH. Councils should assess impacts of different 
fishing gears, fishing techniques, equipment, and practices used in 
mariculture, and other factors, as appropriate.

13. Comments on Fishing Gear (Equipment) Assessment

    Comments: In addition to completing an assessment of fishing gear, 
commenters requested that Councils rank gear based on the severity of 
impacts to specific habitats. Some argued that recreational fishing 
impacts should be excluded from such assessment.
    Response: The effects of fishing practices or gear types is 
habitat-dependent. NMFS has modified the rule to direct that during the 
assessment of fishing equipment (gear) impacts, the relative effect of 
different equipment types or techniques on different habitat types 
should be assessed. This will help the Councils focus research and 
management efforts on those habitats that require the most attention. 
Assessments and subsequent research should be conducted on all types of 
fishing impacts, including recreational and commercial fishing 
equipment or practices, however relative impacts should be prioritized 
and management and research should address needs accordingly.
    NMFS also emphasizes in the rule that the fishing equipment 
assessment should be conducted periodically with subsequent review or 
revision. As new equipment is developed, techniques are changed, or 
additional research is conducted, new information on effects on EFH 
will be developed. Language has been added to the rule to clarify that 
Councils should assess all new information regarding EFH, including new 
assessments of fishing equipment impacts, to determine when an 
amendment needs to be updated. EFH amendments are to be reviewed and 
revised as appropriate, but at least once every 5 years. New 
information regarding equipment effects on EFH should be incorporated 
as available into any updates of EFH amendments.
    Comments: Commenters suggested that technology, such as the use of 
remotely operated vehicles, should be an acceptable alternative to 
research closure areas in assessing the effects of gear. One Council 
asked that it be able to base assessments on operational 
characteristics of gear in their specific area rather than inference 
from studies in other areas.
    Response: The rule recommends ``consideration of the establishment 
of research closure areas and other measures'' to assess the effects of 
fishing equipment on EFH. It does not restrict Councils from 
considering any options. Councils should use the most appropriate 
measures to assess impacts. Councils, however, should not discount some 
methods or tools because they may be time-consuming or require 
management action, if they are the most appropriate method to use. All 
relevant research should be considered when assessing impacts of 
fishing gear on EFH, including research that has been conducted in 
other, biogeographically similar areas.
    Comment: Several commenters expressed concern that there is no 
requirement to conduct a cumulative impacts assessment of fishing 
impacts, as there is for non-fishing impacts.
    Response: NMFS assumed that all forms of adverse impacts, including 
those from fishing, were included as cumulative impacts on EFH. 
However, NMFS has modified the rule to further clarify this intent. 
Impacts of fishing and non-fishing activities should be considered when 
a cumulative impacts analysis is conducted. This may be particularly 
important where fishing gear of one fishery impacts the habitat of 
another fishery. Furthermore, cumulative impacts analysis should 
consider synergistic effects of both fishing and non-fishing impacts on 
habitat, and should give additional consideration to cumulative impacts 
affecting HAPC.
    Comment: Commenters stated that adverse impacts from fishing should 
be demonstrated scientifically.
    Response: National standard 2 requires that conservation and 
management measures be based upon the best scientific information 
available. Councils should, however, take into consideration 
information available through other valid sources. If scientific 
information is limited, the best available information should be 
considered for assessing adverse impacts of fishing equipment on 
habitats. This information should be weighed, based on the quality of 
information, and considered appropriately in the development of EFH 
conservation and management decisions.

14. Comments on the Threshold That Requires Councils To Regulate 
Fishing Activities That Adversely Impact EFH

    Comments: The proposed rule required Councils to act to mitigate or 
minimize any adverse effect from fishing, to the extent practicable, if 
there is evidence that a fishing practice is having ``substantial'' 
adverse effect on EFH. Many comments from environmental and fishing 
groups criticized the proposed rule for using ``substantial'' to 
characterize adverse impacts that would require a Council to regulate 
damaging fishing practices. They claimed this was a higher threshold 
than intended in the Magnuson-Stevens Act. Under the Magnuson-Stevens 
Act, Councils are required to ``minimize to the extent practicable 
adverse effects on such habitat caused by fishing.'' Many of the 
commenters maintain that this ``higher threshold,'' is so high that 
Councils will never act to control a damaging fishing practice, nor 
will research be conducted to assess less understood impacts from 
fishing. Commenters, additionally, suggested that the burden to prove 
they are in fact causing no impact should be placed on those wishing to 
exploit the public resource.
    Response: The language of the proposed rule was not meant to raise 
the threshold of damage from fishing impacts higher than that intended 
in the statute. The language was intended to provide guidance to assist 
Councils in determining when they are required to take action on a 
fishing impact. NMFS believes that the intent of the Magnuson-Stevens 
Act is to regulate fishing gears or techniques that reduce an essential 
habitat's capacity to support marine resources, not practices that 
produce inconsequential changes in the habitat. Therefore, NMFS 
continues to support this concept but has deleted the word 
``substantial'' from the rule and added new language to clarify this 
concept. Impacts from fishing practices that justify the implementation 
of management actions should be ``identifiable'' (i.e., both more than 
minimal and not temporary in nature).
    Comments: Commenters stated that the inclusion of a formal cost-
benefit analysis to determine whether it is practicable to impose 
management restrictions on a damaging fishing activity goes beyond the 
statute. Costs to industry and costs to the environment cannot be 
directly compared because they are measured differently. Commenters 
pointed out that the legislative history indicates that while the term 
``to the extent practicable'' was intended to allow for the 
consideration of costs; it was not a requirement that the benefits 
justify the costs. Commenters suggested that the long-term costs to the 
ecosystem and long-term benefits to the fishery and all potential users 
(since this is a public resource) must be weighed and that short-term 
cost to the fishers is only one of many factors that must be 
considered.
    Response: NMFS agrees that the Magnuson-Stevens Act does not 
require a formal cost/benefit analysis or a

[[Page 66539]]

demonstration that the benefits of minimizing adverse impacts justifies 
the costs to fishers. In considering management measures, Councils 
should evaluate the long-term benefits to the habitat and the managed 
species (including long-term benefits to the fishery), as well as 
short-term economic consequences to the fishery. This provision is 
intended to simply focus Council attention on costs and benefits 
consistent with national standard 7, which requires consideration of 
costs and benefits in the development of conservation and management 
measures. Further, Executive Order (E.O.) 12866 requires NMFS to 
regulate in the most cost effective manner to achieve the regulatory 
objective. The rule has additional clarifying language to avoid the 
interpretation that a formal cost/benefit analysis must be completed 
before taking action.
    Comment: Several commenters urged that immediate management 
measures should be taken as precautionary measures against further EFH 
degradation, rather than waiting for Councils to identify and describe 
EFH, and assess gear impacts on EFH. Many commenters identified 
specific gear types that should be immediately banned or restricted.
    Response: Councils must know what types and locations of habitats 
constitute EFH before they will be able to act to prevent, minimize, or 
mitigate adverse impacts from either fishing or non-fishing activities 
on EFH. Banning a gear type to protect EFH before it is identified, in 
an FMP and without assessment of adverse impacts, is contrary to the 
Magnuson-Stevens Act. The interim final rule presents a logical 
progression for description and identification of EFH, identification 
of adverse impacts to EFH, and development of management, conservation, 
or enhancement measures, as appropriate.

15. Comments Objecting to Listing of Specific Fishing Gears/Diving as 
Fishing Impacts

    Comment: Commenters opposed the listing of diving or specific 
fishing gears as potentially causing adverse impacts that would require 
fishing restrictions. Dive groups commented that commercial diving 
should be distinguished from recreational diving, or that diving should 
not be listed at all. Commenters suggested that anchoring on artificial 
reefs was as damaging as the other examples listed and that it should 
also be included in the list of potential restrictions.
    Response: The intent of this language was to provide the Councils 
with some examples of typical activities that have the potential to 
adversely affect diverse types of EFH (e.g., careless divers and 
snorkelers have been widely documented to cause adverse effects on 
coral reef habitats). However, NMFS agrees that it is more appropriate 
to address these considerations in a broader manner. As a result, the 
language in the interim final rule was modified to present general 
options that Councils should consider in determining appropriate 
management measures. These general options are illustrative only, many 
activities may result in habitat-specific impacts. Councils should 
examine all practices that may contribute to EFH degradation and act to 
minimize the impacts as appropriate.

16. Comments on Marine Fishery Reserves as Options for Managing Adverse 
Effects From Fishing

    Comment: Many commenters, primarily individuals, fishing groups, 
and conservation groups, requested that language be added to the 
interim final rule to clarify that Councils are not restricted from 
considering closed areas (Marine Protected Areas, Marine Fishery 
Reserves, No-Take Zones, or Research Closure Areas) as management tools 
for protection of habitats and habitat functions and for enhancing 
recovery of overfished species, as well as for conducting research. 
Commenters felt that a statement in the preamble of the proposed rule 
which stated, ``NMFS has clarified that the intent [of the regulation] 
is not to preclude fishing in areas identified as EFH,'' could be 
interpreted to mean that fishing or specific fishing gears would never 
be restricted in any area. Commenters indicated that establishment of 
such zones is supportive of a precautionary approach to habitat 
conservation where there is uncertainty on the extent and degree of 
impacts that occur from fishing. They suggested that early 
establishment of such zones could protect areas and stocks from further 
impacts while additional information is gathered. Additional commenters 
suggested that NOAA's National Marine Sanctuaries and National 
Estuarine Research Reserves and the Environmental Protection Agency's 
National Estuary Program provide sites that should be utilized for 
research areas. These areas are the focus of current research efforts 
and many have extensive databases on habitat types and usage within the 
reserve areas.
    Response: The interim final rule continues to advocate research 
closures areas and other measures, as appropriate, to evaluate the 
impact of fishing equipment and techniques on EFH. The regulations 
continue to encourage Councils to consider time/area closures as 
management tools for minimizing impacts of fishing gears on EFH. The 
language in the preamble of the proposed rule, ``* * * that the intent 
[of the regulation] is not to preclude fishing in areas identified as 
EFH,'' was intended to confirm that identification of an area as EFH 
did not automatically bring restrictions on fishing in the area. NMFS 
altered the language in the interim final rule to clarify that Councils 
are encouraged to consider marine protected areas as management tools 
for habitat conservation as well as management of fishing practices. 
Currently established Federal and state research areas (e.g., National 
Marine Sanctuaries or Estuarine Research Reserves) should be evaluated 
as logical locations for additional studies.

17. Comments on the Statutory Authority To Address Adverse Impacts on 
EFH From Non-Fishing Activities

    Comments: Many commenters, primarily non-fishing industry groups, 
did not agree that the Magnuson-Stevens Act provided NMFS or the 
Councils the statutory authority to comment and make recommendations on 
non-fishing activities. They proposed that the sections regarding 
identification of adverse impacts from non-fishing activities and 
consultation be deleted in their entirety.
    Response: NMFS disagrees for a number of reasons. First, one of the 
stated purposes of the Magnuson-Stevens Act is to promote the 
protection of EFH through the review of projects conducted under 
Federal permits, licenses, or other authorities that affect, or have 
the potential to affect, such habitat. These projects would include 
non-fishing activities. Second, the Magnuson-Stevens Act, in section 
303(a)(7), requires that FMPs identify conservation and enhancement 
measures for EFH. These measures are not limited by statute to 
addressing only fishing activities. A necessary first step to 
identifying conservation and enhancement measures is to identify 
adverse impacts that will require conservation and enhancement measures 
to adequately promote the protection of EFH. Therefore, a logical 
extension of the Magnuson-Stevens Act requirement to identify 
conservation and enhancement measures is the consideration of adverse 
impacts from non-fishing activities that would necessitate the use of 
such measures. Third, the requirements for coordination, consultation, 
and

[[Page 66540]]

recommendations relate directly to non-fishing actions. The Magnuson-
Stevens Act requires that other Federal agencies consult with the 
Secretary and then consider and respond in writing to the Secretary's 
EFH conservation recommendations regarding actions that may adversely 
impact EFH. These actions will be non-fishing actions. Therefore, the 
EFH amendments must include consideration of adverse impacts from non-
fishing activities to aid NMFS and the Councils when they are 
consulting/commenting on actions that may adversely impact EFH.

18. Comments on Different Levels of Scrutiny of Non-Fishing Impacts

    Comment: Many non-fishing interests commented that their impacts on 
EFH were being held to a higher standard than adverse impacts from 
fishing, because NMFS does not have to determine whether it is 
practicable to minimize or mitigate the adverse impact before providing 
a recommendation. The commenters were also concerned that too much 
emphasis is placed on non-fishing adverse impacts on EFH.
    Response: Non-fishing and fishing impacts are held to two different 
levels of scrutiny because of legal differences in how the impacts are 
addressed. Fishing impacts, as required by the Magnuson-Stevens Act, 
must be minimized to the extent practicable by implementing 
conservation and management measures. For non-fishing activities, NMFS 
is required to provide EFH conservation recommendations to action 
agencies for all actions that may have an adverse impact on EFH. NMFS 
and the Councils control fishing activities through regulation, whereas 
recommendations by NMFS and the Councils on non-fishing activities are 
advisory. The action agency then considers NMFS' recommendations 
according to its statutory requirements. The emphasis placed on non-
fishing in the coordination, consultation, and recommendation process 
will depend on the level of impact from each.

19. Comments on the Identification of Specific Industries With 
Potential Adverse Effects on EFH

    Comments: Many commenters objected to their particular industries 
or activities being highlighted in the proposed rule as having 
potential adverse effects on EFH. Many pointed out that non-fishing 
activities do not always adversely impact fish habitat. Some forest 
industry groups pointed out that they are involved in restoration of 
anadromous fish habitats. Oil and gas industry commenters pointed out 
that oil platforms have been documented as artificial reefs that 
support fish populations and therefore produce positive effects on 
fisheries, not adverse effects.
    Response: NMFS acknowledges that many industries take certain 
actions specifically to improve fish habitat even if other activities 
conducted by the industry may adversely affect fish habitat. Therefore, 
NMFS agrees that the language of the rule should be more generic and 
that the types of activities that have been demonstrated to have 
potentially adverse effects on EFH should be highlighted for the 
Councils in the interim final rule rather than identifying the 
industries that may engage in these activities. NMFS revised this 
section to clarify that its intent is to avoid, minimize, or compensate 
for adverse impacts on EFH. The rule avoids singling out specific 
industries just because they have the potential to adversely impact 
EFH.

20. Comments on Cumulative Impacts Analysis

    Comments: Several commenters were concerned that the relationship 
between the required analysis of cumulative impacts and EFH was not 
clearly specified. Many cited an ecological risk assessment as a 
lengthy, expensive procedure that would tell little about EFH. Some 
commenters asked NMFS to provide criteria for conducting an ecological 
risk assessment.
    Response: NMFS has clarified the cumulative impacts analysis 
requirements in the rule. Cumulative impacts analysis is intended to 
monitor the effect on EFH of the incremental impacts, occurring within 
a watershed or marine ecosystem context, that may result from 
individually minor but collectively significant actions. The assessment 
of ecological risks is intended in a generic sense to examine actions 
occurring within the watershed or marine ecosystem that adversely 
affect the ecological structure or function of EFH. The assessment 
should specifically consider the habitat variables, previously noted 
while describing and identifying EFH, that control or limit a managed 
species' use of a habitat. It should consider the effects of all 
impacts that affect either the quantity or quality of EFH. The term 
``ecological risk assessment'' was not meant to be interpreted in the 
stricter toxicological sense. NMFS will continue to develop further 
criteria for conducting an ecological risk assessment.

21. Comments on Mapping of Cumulative Impacts Analysis

    Comments: Some commenters thought the requirement to map adverse 
impacts should be discretionary. Others thought it should be deleted 
altogether.
    Response: NMFS disagrees and considers mapping of the impacts to be 
one of the most important ways to analyze the data and to easily share 
the information with other resource management agencies and the public. 
It is also an efficient way to track cumulative effects over time and 
detect when effects are reaching threshold limits. The rule has been 
revised to clarify that the mapping requirements are strongly 
encouraged.

22. Comments on the Options for Conservation and Enhancement of EFH

    Comments: Several commenters were concerned about the broad 
examples given in this section. They recommended that FMPs address 
site-specific activities because an activity might adversely impact EFH 
under certain conditions and not under others. Other commenters 
expressed concern that statements suggesting that certain activities 
(such as diversion of fresh water) always produce adverse effects did 
not reflect their regional perspective. There were many comments about 
the examples used and questions over whether these were the best or 
even proper examples. There were many suggestions of different examples 
to include in the rule. Several commenters were concerned that NMFS was 
mandating best management practices for non-fishing activities.
    Response: NMFS recognizes that this section did not provide the 
clarity that it intended, and that the listing of examples, while not 
meant to be exhaustive, needs modification. The section has been 
revised in the interim final rule to clarify that the intent of the 
section is to provide examples of proactive and reactive measures to 
conserve and enhance EFH. The revisions focus on avoiding, minimizing, 
or compensating for impacts on EFH derived from activities both inside 
and outside of EFH and the need for Councils to provide recommendations 
to address those impacts. The management measures listed in this 
section are intended to be optional. Certain actions may have positive 
or negative impacts on EFH depending on the location and the purpose of 
the action. The effect of actions should be judged within the context 
of watershed planning and/or by ecosystem considerations.

[[Page 66541]]

    Comment: One commenter expressed concern that habitat creation was 
listed as an option to conserve and enhance EFH.
    Response: The Magnuson-Stevens Act requires NMFS and the Councils 
to conserve and enhance EFH. NMFS believes that, under certain 
circumstances, habitat creation is a viable means to enhance EFH on a 
watershed basis.
    Comment: One commenter criticized NMFS for not encouraging 
proactive measures to conserve and enhance EFH.
    Response: NMFS modified the rule to include language stating that 
the Councils and NMFS will provide information on ways to improve 
ongoing Federal operations.

23. Comments on the Treatment of Prey Species Under the Proposed Rule

    Comments: Several commenters asked that the proposed rule be 
modified to require that EFH be described and identified for all prey 
species. Numerous commenters stated that habitat for forage species 
should be included in an ecosystem approach, and mapped as well. Other 
commenters, against the inclusion of prey, stated that loss of prey 
should not categorically be considered an adverse impact because the 
fishery decline could be due to other factors such as overfishing, 
rather than loss of prey. Inclusion of threats to prey, they commented, 
exceeds the scope of the statute. Commenters concerned with anadromous 
species stated that predators should be considered if prey are 
included. They stated that this reflects more of an ecosystem approach 
and could take into consideration the effects of pinniped predation on 
the fishery. One Council asked NMFS to clarify that Councils may not 
place harvest limits on prey species unless the prey species is managed 
under an FMP.
    Response: NMFS continues to maintain that describing and 
identifying separate EFH for prey species not included in an FMU is 
beyond the scope of the Magnuson-Stevens Act. However, NMFS recognizes 
the importance of prey to the managed species. The statutory definition 
of EFH includes ``feeding'' as an ecological function of EFH necessary 
to a species. Therefore, presence of adequate prey is one of the 
biological properties that can make a habitat essential. It is 
appropriate to consider loss of prey as an adverse impact to a managed 
species' EFH because the species would not be able to use the habitat 
for feeding. Therefore, the rule requires Councils to identify prey 
species for managed species in the FMU and the habitats of major prey 
species. Councils must address threats to the prey species and its 
habitat if there is evidence that such adverse effects may lead to a 
decline in the prey species population and by extension reduce the 
quality of a managed species' EFH. These threats should be covered 
under the adverse effects section of the EFH amendment.
    A requirement to describe and identify EFH for predators is not 
authorized by statute, and therefore, not included in the rule. In 
identifying EFH through an ecosystem approach, however, NMFS does 
suggest that Councils consider the extent to which the managed species 
is prey for other managed and non-managed species or marine mammals in 
determining the habitat necessary to support a sustainable fishery and 
the managed species' contribution to a healthy ecosystem. Predators of 
managed species need to be considered a source of natural mortality 
inherent in the ecosystem. The MMPA does include provisions which 
address the interactions between marine mammals and other species. NMFS 
is able to address these interactions through that statute.

24. Comments on Vulnerable Habitats (Habitat Areas of Particular 
Concern)

    Comment: Some commenters asked for a definition of ``vulnerable 
habitat'' and wanted to know how broad this category may be. Other 
commenters supported the identification of vulnerable habitats or 
prioritizing actions in ``areas of special concern'' and suggested that 
important habitats be ranked. Some commenters asked for guidance in 
determining whether a habitat type is vulnerable. They asked that 
impacts analyses consider both fishing and non-fishing impacts as 
human-induced degradation in vulnerable habitats. Some commenters 
thought that an additional level of habitat delineation, as envisioned 
with the identification of vulnerable habitats would add confusion, and 
thought that this was beyond the scope of the statute.
    Response: Comments on the Framework indicated a need for 
prioritizing the habitats and determining which should be given 
greatest attention in the coordination and consultation process when 
little is known about a species' distribution. The vulnerable habitat 
provision was added to the proposed rule to address these concerns. 
After consideration of comments on the proposed rule, NMFS has refined 
this concept to include ecological function of the habitat along with 
considerations of vulnerability. In the rule, NMFS renamed vulnerable 
habitats as ``habitat areas of particular concern'' (HAPC). In 
determining HAPCs, Councils should consider ecological value of a type 
or area of EFH, its susceptibility to perturbation from both 
anthropogenic (human-caused) sources and natural stressors, and whether 
it is currently stressed or rare. HAPC criteria are outlined in the 
interim final rule. NMFS will elaborate on these criteria in internal 
technical guidance.
    These HAPCs can be used to focus the conservation, enhancement, 
management, and research efforts of NMFS and the Councils, as well as 
the consultation requirements of the Federal action agencies and EFH 
conservation recommendations. These areas should be a primary focus to 
provide insight into relationships between key habitat characteristics 
and ecological productivity or sustainability and the ways in which 
human activity adversely affects such habitat and its contribution to 
population productivity.

25. Comments on Research Needs and FMP Amendments and Updates

    Comment: Commenters suggested annual reviews of research needs and 
assessments of progress towards meeting those needs. Other commenters 
were concerned that reviewing EFH sections of FMPs at least once every 
5 years is too long.
    Response: The proposed rule states that reviews of EFH sections of 
FMPs must be completed as recommended by the Secretary, at least once 
every 5 years. NMFS considers this amount of time appropriate and has 
maintained it in the rule. Councils are strongly encouraged to include 
interim reviews of EFH information needs during annual reviews of Stock 
Assessment and Fishery Evaluation (SAFE) reports. NMFS will work to 
develop an appropriate format for future SAFE reports to address the 
requirements under the Magnuson-Stevens Act EFH mandate.
    Comment: One Council commented that Councils should have the option 
of including a framework adjustment mechanism in the EFH amendment to 
allow for more timely changes in management measures.
    Response: NMFS agrees that framework amendments may be an 
appropriate way to institute management measures to conserve and 
enhance EFH.
    Comments: Commenters called for incentives to encourage research to 
address gear effects and management measures to minimize adverse 
impacts. They suggested that a schedule be established under which the 
Councils or industry will be obliged to conduct the

[[Page 66542]]

necessary research that will indicate the extent, if any, of impacts 
caused by fishing sectors. As written, there is no incentive to conduct 
further research. They feel there is a disincentive, because findings 
of impacts could be used to restrict a fishery.
    Response: To address this concern the interim final rule specifies 
that, as part of a Council's assessment of impacts caused by fishing, a 
schedule should be developed detailing the Council's plan to collect 
any missing information. Regular reporting of progress toward meeting 
these research goals will provide added incentive for Councils to 
conduct added research. A standardized schedule for all FMPs would not 
be useful since existing data and research needs regarding each 
fishery's impacts to different habitats vary greatly both within and 
among regions.
    Comments: Some commenters asked that research needs be categorized 
and that cost estimates be included in FMPs. Many commenters stressed 
that gear effects research is needed.
    Response: In developing research recommendations in FMPs, the 
interim final rule encourages Councils to prioritize research needs. 
The interim final rule does not require cost estimates; however, 
Councils may include budget information if they choose. Fishing gear-
effects research should be considered, along with research on habitat 
utilization, habitat availability, and adverse impacts from non-fishing 
activities. Research should be conducted on all types of fishing 
impacts, including recreational and commercial fishing equipment or 
practices, however relative impacts should be prioritized and research 
should address needs accordingly.

26. Comments on Development and Review of NMFS EFH Recommendations to 
Councils

    Comments: Many commenters stated that a public process must be 
available for participation in the development and review of EFH 
recommendations. They sought participation outside of the Council 
process. They want all stakeholders to be involved in the development 
of recommendations. Some state resource agencies commented that, prior 
to approval of recommendations, public meetings should be held in each 
state. Some commenters suggested that conservation groups should be 
specifically listed as interested parties, and some commenters 
suggested that any potentially impacted party should be contacted so 
that they could review the recommendations.
    Response: The proposed rule stated that the NMFS draft 
recommendation will be made available for public review. The interim 
final rule continues to suggest that the public review process be 
coordinated with Council meetings in order to accommodate those user 
groups most closely associated with the regulation. Stakeholders that 
have not previously been involved in the Council process are not 
precluded from participating. Where appropriate, additional meetings 
outside the Council process may be held. Individual meetings in every 
state may not be practicable, but where feasible, should be considered, 
as is standard practice with many Council proceedings. Contacting 
individual stakeholders to extend the review process is not 
practicable. It is incumbent upon stakeholders to take the initiative 
and become involved in the EFH process.
    Comment: One commenter criticized NMFS for establishing a standard 
of ``best available scientific information'' for NMFS EFH conservation 
recommendations to Councils. The commenter pointed out that this 
standard is stricter than that established in Sec. 600.815(a)(2)(i).
    Response: NMFS agrees and has modified the rule to allow other 
appropriate information to be used. However, NMFS will evaluate the 
quality of information in determining if it is appropriate to use.

27. Comments on Authority To Issue the Coordination, Consultation, and 
Recommendation Section

    Comment: Many non-fishing industry representatives doubted the 
Agency's legal authority to issue regulations for the consultation 
process, including the requirements that Federal action agencies 
prepare EFH Assessments or participate in a dispute resolution process.
    Response: First, NMFS does have authority to issue the 
coordination, consultation, and recommendation regulations. Section 
305(d) of the Magnuson-Stevens Act gives the Secretary the authority to 
issue regulations to carry out any provision of the Act. This 
rulemaking authority applies directly to the EFH coordination, 
consultation, and recommendation provisions of the Magnuson-Stevens 
Act.
    The provision calling for dispute resolution has been retitled 
``further review'' in the interim final rule to clarify that a formal 
dispute resolution is not envisioned. Further review is not required 
each time agencies disagree. It is an option available to reach 
agreement only if both agencies so choose. Information in an EFH 
Assessment is needed to allow NMFS to fulfill its requirement to 
provide EFH conservation recommendations to a Federal or state action 
agency. Thus, the requirements calling for EFH Assessments and further 
review are mechanisms to improve the efficiency of the consultative 
process.

28. Comments on the Inclusion of Coordination, Consultation, and 
Recommendation Procedures

    Comments: Many comments from non-fishing industries suggested that 
NMFS develop the consultation regulations at a later time. Some 
suggested that the EFH guidelines to Councils and the regulations 
detailing the coordination, consultation, and recommendation procedures 
should be published separately.
    Response: Within section 305(b), the Magnuson-Stevens Act requires 
Councils to amend FMPs in order to describe, identify, conserve, and 
enhance EFH, and requires Federal action agencies to consult with NMFS 
if their actions may adversely affect EFH identified in FMPs. 
Developing the consultation regulations at a later date would be 
neither efficient for implementing the Magnuson-Stevens Act, nor clear 
to the public. Including the consultation provisions in this rulemaking 
allows the public and affected parties to fully understand the 
significance and effect of an area being identified as EFH in an FMP. 
Description and identification of EFH does not automatically require 
increased management measures (for fishing) or consultation (for non-
fishing) except when Federal or state actions may adversely impact the 
quality or quantity of EFH. In those cases, it is important for the 
Councils and the action agency to understand completely the procedures 
involved. Therefore, NMFS considers it necessary for the development of 
the two sections to proceed in parallel. Moreover, between completion 
of this interim final rule and before the first required consultations, 
NMFS and the Councils will need to develop memoranda or other 
agreements with Federal and state agencies on how to work within or 
modify existing consultation procedures and in developing general 
concurrences, consistent with the rule. The Councils and NMFS will also 
need to establish procedures to coordinate sharing of information, 
tracking of projects, and development of conservation recommendations. 
NMFS does acknowledge that the coordination, consultation, and 
recommendation provisions for action agencies and

[[Page 66543]]

guidelines to the Councils may be clearer and better presented by 
assigning them to separate subparts (J and K) of 50 CFR part 600.

29. Comments on Use of Existing Consultation/Environmental Review 
Procedures

    Comments: Many non-fishing groups and one government agency 
commented that the proposed consultation process was burdensome and 
duplicative because it did not recognize existing procedures that may 
fulfill the Magnuson-Stevens Act mandate that Federal action agencies 
must consult with NMFS on actions that may adversely impact EFH.
    Response: The coordination, consultation, and recommendation 
procedures in the proposed and interim final rules reflect the 
Magnuson-Stevens Act's mandate. The proposed rule included a provision 
that EFH consultation may be consolidated with other existing 
consultation and environmental review processes. To clarify that it is 
NMFS' intention to use existing processes whenever appropriate, the 
interim final rule contains language strongly encouraging the use of 
existing consultation and environmental review processes to fulfill the 
EFH consultation requirements. The procedures will not be duplicative 
because only one review process will be used.
    Existing Federal statutes such as the FWCA, ESA, and National 
Environmental Policy Act (NEPA) already require consultation or 
coordination between NMFS and other Federal agencies. Therefore, the 
need for Federal agencies to evaluate the effects of their actions on 
fish and fish habitat is not a new requirement imposed by the Magnuson-
Stevens Act. As required by section 305(b)(1)(D) of the Magnuson-
Stevens Act, NMFS will coordinate with, and provide information to, 
other Federal agencies on conservation and enhancement of EFH. This 
will include distribution of maps, tables and narrative descriptions of 
EFH. The EFH FMP amendments, which will be widely available at all NMFS 
Regional offices (see ADDRESSES), the NMFS Office of Habitat 
Conservation, Council offices, and other locations such as the World 
Wide Web, will provide additional information to assist Federal 
agencies in the assessment of their actions. FMPs will describe EFH and 
identify those characteristics of EFH that control or limit the 
habitat's use by a managed species. Action agencies can use this 
information to determine if, and how, an action will affect EFH. Thus, 
EFH consultation should not be burdensome, since it will use readily 
available information that may be incorporated into the same processes 
that are currently invoked to satisfy existing review requirements.
    Comments: Several industry groups commented that the EFH 
coordination, consultation, and recommendation process will mean 
additional restrictions on non-fishing industry activities and will not 
result in any benefit to EFH.
    Response: The coordination, consultation, and recommendation 
process itself will not automatically impose additional restrictions, 
because NMFS' and the Councils' EFH conservation recommendations are 
non-binding. However, one of the purposes of the Magnuson-Stevens Act 
is to promote the protection of EFH in the review of projects that 
require Federal or state action. Accordingly, Federal and state action 
agencies must give NMFS' and the Councils' comments and EFH 
conservation recommendations due weight in their decision-making 
process. After consideration, Federal or state action agencies may 
recommend modifications of any actions with adverse effects on EFH, in 
order to conserve EFH. Benefits to EFH will depend on the extent to 
which these recommendations are followed.
    Comments: Many environmental groups commented that NMFS' 
recommendations should be mandatory and that NMFS should be able to 
either stop a project based on adverse effects on EFH or postpone it 
pending completion of consultation.
    Response: The Magnuson-Stevens Act does not provide such authority. 
Therefore, NMFS' EFH conservation recommendations are not mandatory, 
and NMFS has no authority to stop a project based on adverse effects on 
EFH.
    Comment: One environmental group suggested that NMFS EFH 
conservation recommendations contain performance criteria.
    Response: Where appropriate, NMFS EFH conservation recommendations 
will contain performance criteria.
    Comments: Several agencies and many industry representatives 
commented that actions covered by other consultation procedures should 
be exempt from EFH consultation or covered by a General Concurrence. 
Many industry groups or resource management programs requested a 
blanket exemption for their activities.
    Response: A purpose of the Magnuson-Stevens Act is ``to promote the 
protection of essential fish habitat in the review of projects 
conducted under Federal permits, licenses, or other authorities that 
affect or have the potential to affect such habitat.'' The Magnuson-
Stevens Act does not provide exemptions from its consultation 
requirements in section 305(b)(2). Therefore, NMFS has no authority to 
exempt any actions from the consultation requirement. Existing 
environmental consultation procedures do not necessarily ``promote'' 
the protection of EFH. The rule is sufficiently flexible to consolidate 
EFH requirements with those environmental review procedures that do 
promote EFH, or that are modified to conform to the EFH consultation 
requirements. To address programs or groups of actions that have 
minimal adverse effects on EFH, the interim final rule allows NMFS to 
issue a General Concurrence rather than review each of these actions 
separately.
    Comment: One Council commented that the Coastal Zone Management Act 
(CZMA) consistency process be cited as an existing environmental review 
that may be used to evaluate adverse impacts from Federal activities.
    Response: The CZMA consistency process is a state-run program which 
would not be appropriate for NMFS to use to evaluate Federal actions. 
However, NMFS recognizes that state CZM programs may be helpful in 
learning of, and providing recommendations on, state actions that may 
adversely impact EFH, and has included this in the rule. Moreover, 
through joint permitting processes used by many Federal agencies, NMFS 
attends monthly permit review meetings along with state CZM 
representatives. NMFS encourages exchanges of this type.
    Comment: Four commenters would prefer that the consultation 
procedures focus on only those activities with the potential for the 
most significant impacts.
    Response: NMFS agrees that effective coordination, consultation, 
and recommendation will require prioritization of efforts. The three-
tiered consultation process (GCs, abbreviated consultation, and 
expanded consultation) is intended to focus effort on those activities 
with the greatest potential to adversely affect EFH. If HAPCs are 
identified in an FMP, NMFS and the appropriate Council may use these as 
areas to further focus the consultation procedures.
    Comments: Several environmental groups commented that states should 
be subject to the same consultation requirement as Federal agencies. 
Those commenters also asked for more details on state roles in the 
consultation process.

[[Page 66544]]

    Response: The Magnuson-Stevens Act does not require that states 
consult with the Secretary. NMFS and the Councils are required to 
provide EFH conservation recommendations to states on activities that 
may adversely affect EFH. This is why the rule suggests establishing 
formal agreements with states to inform NMFS and the Councils of such 
activities. The Secretary and the state may also enter into agreements 
to promote the protection of EFH.
    Comment: One Council commented that NMFS should keep a record of 
Federal and state actions for which it provides recommendations.
    Response: NMFS agrees and plans to establish a system to track the 
disposition of its recommendations.
    Comment: One commenter asked whether it was NMFS' responsibility to 
develop agreements with states to facilitate providing recommendations 
on state actions that may adversely impact EFH.
    Response: It is NMFS' responsibility to develop such agreements.
    Comment: One commenter stated that NMFS should separate the 
consultation functions from the recommendation functions.
    Response: The requirement in the Magnuson-Stevens Act for Federal 
agencies to consult with NMFS is immediately followed by the provisions 
that Councils and NMFS provide recommendations to Federal action 
agencies. The two are also linked because consultation is the main way 
NMFS receives information about actions that may adversely affect EFH. 
NMFS must provide EFH conservation recommendations for these actions. 
Congress clearly intended that these activities be linked; therefore, 
NMFS continues to link the requirements in the rule.

30. Comments Regarding Federal Actions Requiring Consultation

    Comment: Many state and Federal agencies and several non-fishing 
industries questioned when EFH consultations would begin, whether 
ongoing or delegated Federal actions require consultation, and to what 
extent Federal funding may trigger consultation.
    Response: No consultation is required until the Secretary has 
approved an FMP amendment identifying EFH. The Councils are required to 
submit these amendments to the Secretary by October 11, 1998. Once EFH 
is identified, completed actions such as issued permits do not require 
consultation. Permit renewals, modifications, or reviews are a Federal 
action that could result in further consultation. Delegated programs 
will require consultation at the time of delegation or renewal of 
delegation. All Federal funding for programs that may have an adverse 
effect on EFH will trigger consultation. NMFS encourages agencies 
funding programs that may adversely affect EFH to initiate programmatic 
consultation to evaluate their programs. Once funds are dispersed to a 
non-Federal entity, they are no longer considered Federal funds. 
Therefore, non-Federal entities receiving Federal funds for certain 
actions are not required to consult on these actions.
    Comments: Several commenters expressed concern about requiring EFH 
consultation for actions not actually occurring in EFH.
    Response: The Magnuson-Stevens Act requires consultation for all 
actions that may adversely affect EFH, and it does not distinguish 
between actions in EFH and actions outside EFH. Any reasonable attempt 
to encourage the conservation of EFH must take into account actions 
that occur outside of EFH when those actions may have an adverse effect 
on EFH. Therefore, EFH consultation is required on any Federal action 
that may adversely affect EFH, regardless of its location. An adverse 
effect on EFH must be reasonably foreseeable before consultation is 
required.

31. Comments Regarding Participation in the Consultation Process

    Comments: Several individuals and non-fishing interests expressed 
concern that the rule allowed no clear role for applicants, private 
landowners, or the conservation community in the consultation process. 
Those commenters urged more opportunities for public participation.
    Response: NMFS' coordination, consultation, and recommendation 
procedures include opportunities for public involvement, and all 
Council meetings are open to the public. Most existing environmental 
review processes, which can be used to satisfy the EFH consultation 
requirements, already include opportunities for applicants and the 
public to participate, (e.g., permit reviews under the Clean Water Act 
section 404 program). Additionally, Sec. 600.905(c)(2) of the rule 
allows a designated non-Federal representative of a Federal action 
agency to participate in consultation or preparation of an EFH 
Assessment. This non-Federal representative could be an applicant or 
landowner.
    Comment: A few commenters requested that the rule clarify the role 
of Councils in the EFH coordination, consultation, and recommendation 
process.
    Response: The Magnuson-Stevens Act does not require Federal action 
agencies to consult with Councils on actions that may adversely affect 
EFH. However, the Act authorizes Councils to provide comments and 
recommendations on Federal or state activities that may affect fish 
habitat, including EFH, and requires Councils to comment and provide 
recommendations if the activity may affect anadromous fish habitat. 
NMFS included a specific section on coordination between the Councils 
and NMFS in the interim final rule. The Councils are viewed as integral 
partners in the entire EFH process. Councils will have a significant 
role in describing and identifying EFH, in considering threats to EFH, 
and in selecting conservation measures to enhance EFH. The rule 
encourages the establishment of agreements between the Secretary and 
appropriate Council(s) to facilitate provision of Council EFH 
conservation recommendations to Federal and state agencies.
    Comment: Several non-fishing industry groups were concerned that 
the Councils might institute their own, completely different 
consultation process. Those commenters urged that NMFS should be the 
only point of contact.
    Response: The Magnuson-Stevens Act does not require Federal 
agencies to consult with the Councils, although Federal agencies are 
required to respond to Council comments and recommendations. NMFS and 
the Councils will be developing agreements to minimize duplication when 
dealing with action agencies, but Councils will have the ability to act 
on their own.

32. Comments on the Determination of Adverse Impact

    Comments: Several commenters asked that the rule clarify who 
determines adverse effects.
    Response: The action agency is responsible for making an initial 
determination of whether its activity is going to have an adverse 
effect on EFH. If NMFS becomes aware of an action that appears to have 
an adverse effect, and the action agency has not initiated 
consultation, NMFS may advise the action agency of its concerns and 
request the initiation of consultation. If the action agency does not 
initiate consultation, NMFS still has the responsibility to provide EFH 
conservation recommendations to which the action agency must respond 
within 30 days of receipt. The rule contains additional language to 
clarify this process.

[[Page 66545]]

33. Comments on the Use or Development of General Concurrences (GCs)

    Comments: Several commenters felt the criteria for GCs were 
ambiguous.
    Response: The wide range of actions that may affect EFH makes it 
impossible to implement more specific criteria for GCs. GCs, 
established for actions that cause no greater than minimal adverse 
impact on EFH, will be developed on a case-by-case basis in response to 
specific programs, activities, habitats, species, and areas. GCs 
developed for actions that affect HAPCs should be subject to a higher 
level of scrutiny. GCs will be developed through a public process to 
allow participation by all interested parties.
    Comment: Several Councils believe that GCs should not restrict them 
from commenting on activities.
    Response: GCs are agreements between Federal action agencies and 
NMFS. Each GC will be developed in coordination with the Councils to 
improve agreement on which activities have minimal impacts both 
individually and cumulatively. The informal Council role in developing 
each GC is separate from the Councils' authority to provide comments 
and recommendations to Federal and state action agencies and will not 
restrict Councils from commenting on any action that may affect EFH.
    Comments: Several commenters suggested that NMFS should track all 
activities covered by GCs.
    Response: NMFS will ask each Federal action agency to track 
activities they authorize that are covered by a GC. Tracking and 
providing information to NMFS may be a GC requirement. NMFS may 
maintain its own tracking system for specific issues that warrant 
special attention based on geography, habitat types, species, or other 
factors.
    Comment: An interstate commission commented that the rule should 
require that GCs be reviewed every 5 years. The commission also 
suggested that NMFS clarify that GCs it initiates will be subject to 
public review before issuance.
    Response: The rule states that NMFS will periodically review and 
revise its findings of general concurrence, as appropriate. It is NMFS' 
intent to conduct this review at least once every 5 years. The rule 
also requires that GC tracking information be made available to the 
public annually. Such information will allow the public to review GCs 
prior to NMFS' review and revision. Additionally, the rule states that 
NMFS will provide an opportunity for public review prior to the 
issuance of a GC, even those initiated by NMFS.

34. Comments on the Use of Appropriate Level of Consultation

    Comment: Several Federal agencies requested clarification on what 
triggers the expanded consultation. They sought guidance on whether the 
action agency or NMFS can initiate expanded consultation.
    Response: The rule has been clarified to address this comment. 
Expanded consultation is appropriate when a proposed action may have 
substantial adverse impacts on EFH. The action agency determines the 
appropriate level of consultation. However, if NMFS feels that a 
proposed action will have substantial effects on EFH and its concerns 
are not receiving proper consideration, NMFS may request expanded 
consultation.

35. Comments on EFH Assessments

    Comments: Some commenters supported the standard of ``best 
scientific information'' that is mandated in the Federal consultation 
and EFH Assessment section of the rule. They felt that all portions of 
the EFH rule should specify the same standard.
    Response: NMFS applies the best scientific information standard 
throughout the rule. When describing and identifying EFH, Councils 
should seek the broadest possible information base, since the data are 
widely scattered among various state and Federal agencies, university 
or private researchers, and diverse fishery participants. Best 
professional judgment will be required to properly weigh all data 
collected regarding habitat usage for the various life history stages 
of the managed species. With respect to assessing the effects of both 
fishing and non-fishing activities on EFH, the rule states that the 
best scientific information available should be used, but that other 
appropriate sources of information may also be considered. This 
standard is appropriate and consistent with national standard 2 that 
requires all FMP conservation and management measures to be based on 
the best scientific information available. EFH Assessments during 
Federal consultation should also be based on best scientific 
information available. An action agency's conclusions regarding the 
potential adverse impact of an action on EFH should be well supported 
by relevant research, when available. Conclusions that are contrary to 
the readily available information will not be considered adequate 
assessment of adverse effects.
    Comment: One commenter was concerned that an EFH Assessment would 
be required for actions with any adverse impact on EFH and suggested 
that NMFS establish a threshold level of adverse impact, preferably the 
NEPA significance threshold, for when such an assessment would be 
required.
    Response: The Magnuson-Stevens Act requires Federal action agencies 
to consult with NMFS on any action that may adversely affect EFH. The 
requirement for an EFH Assessment is a mechanism to improve the 
efficiency of the consultation process. The level of detail in the EFH 
Assessment should be commensurate with the potential impact. If the 
action's impacts will be minimal, then it may qualify for a GC and no 
EFH Assessment would be required.
    Comment: One commenter criticized NMFS for allowing the use of a 
completed EFH Assessment for other similar actions because of temporal 
and spatial differences in adverse impacts on EFH.
    Response: The rule states that completed EFH Assessments may be 
used for other actions only if the proposed action involves similar 
impacts to EFH in the same geographic area or a similar ecological 
setting.

36. Comments on the Establishment of Timelines in the Consultation, 
Recommendation, and Response Processes

    Comment: Several commenters sought clarification on timelines for 
NMFS action in consultation process. Some commenters were concerned 
that the consultation process would slow projects. Others expressed 
concern that NMFS would delay projects while preparing their 
recommendations.
    Response: The timelines presented in the proposed rule have been 
clarified in this rule. If an existing process is used to meet the EFH 
consultation requirement, NMFS will work within that procedure's 
specified timelines, assuming that NMFS receives timely notification of 
the action. NMFS has clearly established timelines for preparation and 
submission of its recommendations during consultation. For example, the 
interim final rule requires NMFS to respond to Federal action agencies 
within 30 days during abbreviated consultation and within 60 days 
during expanded consultation. Those timelines may be adjusted based on 
mutual agreement between the action agency and NMFS (e.g., a compressed 
schedule for special situations).
    Comment: Several commenters suggested that NMFS should not extend 
the time for the consultation process without concurrence from the 
Federal action agency.

[[Page 66546]]

    Response: That has always been NMFS's intent and the rule has been 
modified to clarify that intent.
    Comment: One commenter suggested that NMFS extend the time required 
for a Federal action agency to respond to a NMFS recommendation from 30 
to 90 days.
    Response: The deadline for Federal agency response is established 
in the Magnuson-Stevens Act and can not be extended by regulation.
    Comment: One commenter stated that the rule should clarify that if 
NMFS does not respond to a Federal action agency's request for 
consultation, the action agency may proceed with the action.
    Response: The rule states that Federal action agencies will have 
fulfilled their consultation requirement after submittal of a complete 
EFH Assessment to NMFS. The Magnuson-Stevens Act requires Federal 
agencies to consult with NMFS and NMFS is required to provide 
recommendations as part of that consultation. Federal agencies and NMFS 
will follow the requirements of the statute and the rule.

37. Comments on Supplemental Consultation

    Comment: Three commenters want supplemental consultation deleted 
from the interim final rule.
    Response: NMFS reconsidered the entire consultation process during 
its analysis of comments received on the proposed rule. The Agency 
concluded that supplemental consultation is an important element of the 
EFH rule. A Federal action agency must reinitiate consultation with 
NMFS if the agency substantially revises its plans for an action in a 
manner that may adversely affect EFH or if new information becomes 
available that affects the basis for NMFS' EFH conservation 
recommendations. This rule clarifies the language on supplemental 
consultation.

38. Comments on NMFS' EFH Conservation and Enhancement Recommendations

    Comments: Comments from several industry interests and one Federal 
agency urged NMFS not to recommend measures that are impracticable, too 
costly, or beyond the action agency's authority.
    Response: NMFS will use scientific assessments of impacts on EFH as 
the basis for conservation recommendations. NMFS agrees that its 
recommendations should be practical and cost-effective, but it is not 
NMFS' statutory responsibility to conduct a benefit/cost analysis or to 
do a public interest test. NMFS expects that action agencies will make 
their own decisions about the practicality and economic aspects of the 
EFH conservation recommendations as part of their review of proposed 
actions. NMFS will not make recommendations that are beyond the action 
agency's authority.

39. Comment on Federal Action Agency Response to NMFS EFH 
Recommendations

    Comment: One commenter stated that NMFS has no statutory authority 
to require Federal action agencies to provide the scientific 
justification for disagreeing with a NMFS EFH conservation 
recommendation.
    Response: As stated previously, section 305(d) of the Magnuson-
Stevens Act gives the Secretary authority to issue regulations to carry 
out any provision of this Act. Therefore, NMFS has the authority to 
issue regulations detailing how Federal action agencies should respond 
to NMFS' EFH recommendations. The requirement to provide scientific 
justification applies to disagreements over the anticipated adverse 
effects of the proposed action and elaborates on the requirements of 
section 305(b)(4)(B) of the Magnuson-Stevens Act that a Federal agency 
explain its reasons for disagreeing with the NMFS EFH conservation 
recommendation. Federal action agencies may also include discussions of 
non-scientific issues (e.g., lack of legal authority to carry out the 
recommendation or economic in feasibility) in their response.

40. Comments Regarding the Interpretation of Anadromous

    Comments: Several commenters were confused by the use of the term 
``anadromous fishery resource'' in the rule and how such species and 
their habitat are covered by the EFH mandate.
    Response: NMFS included this section in the rule to clarify the 
meaning of the term ``anadromous fishery resource under a Council's 
authority,'' as it applies to a Council's commenting responsibilities 
under section 305(b)(3)(B) of the Magnuson-Stevens Act. Anadromous fish 
are treated differently from other fishery resources in the Magnuson-
Stevens Act. Section 3 of the Magnuson-Stevens Act defines ``anadromous 
species'' as ``fish which spawn in fresh or estuarine waters of the 
United States and which migrate to ocean waters.'' It further defines 
``fishery resources'' as ``any fishery, any stock of fish, any species 
of fish, and any habitat of fish.'' In Sec. 600.930(c)(4) of this 
interim final rule, ``an anadromous fishery resource under a Council's 
authority'' is described as an anadromous species that inhabits waters 
under the Council's authority at some time during its life. Although 
EFH is identified only for species managed under an FMP, the Magnuson-
Stevens Act requires Councils to comment on any activity that is likely 
to substantially affect the habitat of an anadromous fishery resource 
under its authority.

41. Comments on Extending the Deadline for Councils To Submit FMP 
Amendments to the Secretary

    Comments: Several commenters asked NMFS to extend the deadline for 
Councils to submit EFH FMP amendments to the Secretary one year beyond 
the October 11, 1998 deadline.
    Response: The Sustainable Fisheries Act, Pub. L. 104-297, requires 
that each Council submit to the Secretary amendments to each of their 
FMPs to comply with the amendments of the Act by October 11, 1998. The 
Secretary does not have the authority to extend this statutory deadline 
through regulation.

42. Comment on How the NMFS National Habitat Plan Relates to 
Implementation of the EFH Mandate

    Comment: One Council commented that the rule should discuss the 
relationship between the NMFS National Habitat Plan (NHP) and the EFH 
mandate of the Magnuson-Stevens Act.
    Response: The major themes of the NHP: better integrate habitat and 
fishery management; promote habitat restoration as a routine part of 
fisheries and habitat management; expand habitat conservation to assess 
and manage habitat degradation on a watershed scale; expand 
understanding of the interrelationships between habitat quality and 
quantity and the healthy of fisheries, are woven throughout the rule.

43. Comments on Consistency With Coastal Zone Management Plans

    Comments: Several state agencies commented concerning consistency 
with their states' federally approved Coastal Zone Management Programs 
(CZMP). There was general agreement that the intent of the rule was 
consistent with CZMPs. Several of the state agencies cautioned that the 
FMP amendments and their site-specific actions that result from 
compliance with these regulations would require further review for 
consistency.
    Response: NMFS agrees with this analysis. These regulations guide 
the Councils in amending FMPs, and detail procedures for NMFS, the 
Councils, and Federal and state action agencies to use in meeting the 
EFH requirements of the

[[Page 66547]]

Magnuson-Stevens Act. Analysis of the effects of specific EFH 
amendments to FMPs at this time would be purely speculative; they are 
not reasonably foreseeable. EFH amendments to FMPs will be submitted to 
state coastal zone agencies. CZMP consistency will be determined for 
each FMP EFH section, as is required for all Federal FMPs.

44. Comments on the EA Prepared for the Rulemaking

    Comments: Some non-fishing industry commenters questioned the 
preparation of an EA, rather than an Environmental Impact Statement 
(EIS), and the finding of no significant impact.
    Response: In compliance with NEPA, NMFS prepared an EA for the 
regulations implementing EFH requirements of the Magnuson-Stevens Act. 
The environmental review process led to the conclusion that this action 
will not have a significant effect on the human environment. The rule 
provides guidelines to the Councils to assist them in developing EFH 
sections in FMPs. The rule itself does not establish any new regulatory 
jurisdiction for NMFS or the Councils over these habitats, but it does 
provide procedures for NMFS, the Councils, and Federal and state action 
agencies to use in coordinating, consulting, and providing 
recommendations on actions that may adversely affect EFH. NEPA 
documentation will be undertaken for each EFH FMP amendment, as is 
currently done, to fully address FMP-specific effects of EFH 
implementation. Therefore, an EIS is not required by section 102(2)(C) 
of NEPA or its implementing regulations.

45. Comments on NMFS' Determination of Significance for the Purposes of 
E.O. 12866

    Comments: One commenter disagreed with NMFS's determination that 
the rule is not significant for purposes of E.O. 12866 because NMFS did 
not consider whether the proposed rule was duplicative or inconsistent 
with existing regulations, and interfered with actions by other 
agencies. Another commenter did not give the basis for its 
disagreement.
    Response: NMFS continues to believe that the rule does not meet any 
of the criteria for a significant regulatory action established in E.O. 
12866, including those mentioned in the comment. This rule establishes 
procedures for coordination, consultation, and recommendations to other 
agencies on actions that may adversely affect EFH. The consultations 
will be fit into existing procedures whenever possible, and when this 
is not possible, will be fit into the other agency's time frame for 
decision-making. The EFH conservation recommendations are not 
mandatory, but will be part of the action agency's decision-making 
process. Therefore, the rule does not meet E.O. 12866's requirements 
for significance.

46. Comments on NMFS' Regulatory Flexibility Act Determination

    Comments: One commenter agreed with NMFS that no regulatory 
flexibility analysis needs to be prepared now, but that regulations 
affecting EFH will be subject to the analysis. Other commenters 
disagreed with NMFS' conclusion that the rule would not have a 
significant economic impact on a substantial number of small entities 
engaged in non-fishing activities and requested that NMFS prepare a 
regulatory flexibility analysis.
    Response: NMFS does not have mandatory authority over non-fishing 
interests. NMFS provides EFH conservation recommendations to a Federal 
or state action agency if their action may adversely affect EFH. The 
action agency considers the recommendation in its decision-making 
process and decides for itself whether it will impose any requirements 
on the entity seeking a permit or license and assess any economic 
impact on small entities. Additionally, the consultation process itself 
should not impose any additional burdens on small businesses engaged in 
non-fishing activities because the Federal action agency will most 
likely use existing consultation/environmental review procedures. If 
there are no existing consultation procedures, then the procedures in 
the rule must be used by the Federal agency. The information requested 
in the rule is material that the action agency already will need to 
make its decision on issuing a permit or license. Therefore, there will 
be no additional burden on small businesses engaged in non-fishing 
activities.

47. Comments on NMFS' determination That a Federalism Assessment is not 
Required

    Comments: Commenters expressed the opinion that NMFS' determination 
is incorrect that this rule does not include policies with federalism 
implications requiring preparation of a Federalism Assessment. This 
rule does not contain policies that have a substantial direct effect on 
the states, on the relationship between the National government and the 
states, or on the distribution of power or responsibilities among the 
various levels of government. Some commenters stated that while EFH 
conservation recommendations are not mandatory, the states will be 
pressured to comply with the recommendations. One commenter stated that 
the process to guide the agencies is mandatory and therefore raises 
federalism issues. Other commenters raised the concern that because EFH 
may be identified in state waters, and many adverse impacts may occur 
there, a federalism assessment should be prepared.
    Response: NMFS disagrees with the commenters and continues to take 
the position that the rule does not contain policies that have 
federalism implications sufficient to warrant preparation of a 
Federalism Assessment. States are not required to consult with NMFS on 
their actions that may adversely affect EFH. As stated in the 
Classification section of the rule, NMFS EFH conservation 
recommendations are not mandatory, and states are not required to 
undertake action in any way not of their own choosing.

48. Comments on NMFS Compliance With the Paperwork Reduction Act

    Comments: Two commenters expressed their opinion that NMFS has not 
complied with the Paperwork Reduction Act (PRA) because the rule 
neither displays an Office of Management and Budget (OMB) control 
number nor states that the rule is not subject to OMB review. They 
stated that the proposed rule is clearly a collection of information 
subject to the PRA. They claim that this will be a big burden on many 
entities.
    Response: Commenters correctly state that the PRA requires OMB 
approval before NMFS may require a collection of information. However, 
they overlook the regulatory definition of information in 5 CFR 
1320.3(h)(4) stating that information does not generally include 
``facts or opinions submitted in response to general solicitations of 
comments from the public published in the Federal Register * * * 
regardless of the form * * *''. The rule clearly fits the regulatory 
exemption for information and therefore is not subject to OMB approval. 
As such, it does not need either an OMB control number or a statement 
that the rule is not a collection of information.

49. Comments on Compliance With the ESA

    Comments: Two commenters stated they think that promulgation of the 
rule is an action that may affect listed species, requiring 
consultation under section 7(a)(2) of the ESA.
    Response: NMFS complied with the ESA by requesting the U.S. Fish 
and Wildlife Service (FWS) and NMFS'

[[Page 66548]]

office that handles ESA issues to concur with its determination that 
the proposed activity is not likely to adversely affect listed species. 
Both responded to NMFS stating their concurrence that the EFH rule is 
not likely to adversely affect listed species.

Changes From the Proposed Rule

    The proposed rule contained guidelines to the Councils and 
procedures addressing the requirements to coordinate, consult, and 
recommend under the EFH provisions of the Magnuson-Stevens Act. The 
guidelines to the Councils will be in part 600 subpart J, but NMFS has 
determined that the regulations on coordination, consultation, and 
recommendation should be moved to a separate subpart, K. This provides 
easier access to the regulations, clarification of purpose, and still 
maintains their proximity to subpart J so that the implications of EFH 
designation are readily apparent. This is not a substantive change from 
the proposed rule.
    NMFS reorganized parts of the coordination, consultation, and 
recommendation procedures by addressing use of existing procedures 
before the regulatory requirements for GCs, and abbreviated and 
expanded consultation. The use of existing procedures section includes 
more detail. NMFS reordered this section and expanded it in response to 
commenter's concerns that consultation could be duplicative with 
existing consultation/environmental review procedures.
    Changes made are technical or administrative in nature and clarify 
intent or otherwise enhance administration of the EFH process. These 
changes are listed in the order that they appear in the regulations; 
grammatical or other minor changes are not detailed. Unless otherwise 
discussed, the rationale for why changes were made from the proposed 
rule is contained in the Comments and Response section.
    In Sec. 600.10, ``aquatic'' was added to the interpretation of 
historically used areas of EFH.
    In Sec. 600.10, ``the managed species' contribution to'' was added 
to denote that the healthy ecosystem is the local ecosystem in which 
the managed species participates.
    In Sec. 600.805, references to the consultation procedures required 
by the Magnuson-Stevens Act have been removed since these regulations 
have been separated into a new subpart as noted above.
    In Sec. 600.805, a new paragraph was added to describe the 
geographic scope of EFH and clarify the relationship of the regulations 
to Federal waters, state waters, and extraterritorial waters.
    Section Sec. 600.810 was changed to add ``Definitions and Word 
Usage'' for terms specific to this subpart; subsequent sections were 
renumbered.
    Section 600.815 was renumbered from Sec. 600.810.
    In Sec. 600.815, paragraph (a)(2)(i)(B), the phrase ``the habitat 
requirements by life stage, and the distribution and characteristics of 
those habitats'' was added to be consistent with later sections 
regarding information on the habitat; the phase ``but not limited to'' 
was added to emphasize that this list is intended to be illustrative 
not exhaustive; ``or formerly occupied'' was added to correct the 
language to agree with the definition of EFH.
    In Sec. 600.815, paragraph (a)(2)(i)(C), ``should'' was substituted 
for ``will be'' to emphasize that Councils should use information from 
all levels that are available.
    In Sec. 600.815, paragraph (a)(2)(i)(C)(2), ``relative densities'' 
was changed to ``density or relative abundance'' as more scientifically 
acceptable language; ``gear'' was changed to ``methods'' to include 
different techniques using the same gear.
    In Sec. 600.815, paragraph (a)(2)(ii)(A), the phrase ``erring on 
the side of inclusiveness'' was deleted because it is redundant with 
the concept of identifying EFH in a ``risk-averse fashion.'' Wording 
has been changed to clarify that Level 1 information ``should be used 
to identify the geographic range'' of a species, Levels 2-4 information 
should be used to identify EFH within that range. If only Level 1 data 
exist, appropriate analyses should be used to identify EFH based on 
utilization of habitats. The sentence, ``Councils must demonstrate that 
the identification of EFH is based on the best scientific information 
available, consistent with national standard 2'' was added to clarify 
that Councils must use all available information to focus their 
identification of EFH.
    In Sec. 600.815, paragraph (a)(2)(ii)(B), references to populations 
recovering from ``declines'' were removed in favor of the terms 
``overfished'' or ``rebuilding the fishery,'' which are more commonly 
used fishery management terms. NMFS added the phase ``and habitat loss 
or degradation may be contributing to the species being identified as 
overfished'' to clarify that habitat limitations should be considered 
when identifying historic habitat as EFH. ``Once the fishery is no 
longer considered overfished, the EFH identification should be 
reviewed, and the FMP amended, as appropriate'' was added to clarify 
the dynamic nature of EFH identification.
    In Sec. 600.815, paragraph (a)(2)(ii)(C), ``aquatic areas'' has 
been added to clarify that the statutory definition limits EFH to 
aquatic portions of ``critical habitat.''
    In Sec. 600.815, paragraphs (a)(2)(ii)(D) and (E), the phrase ``a 
sustainable fishery and the managed species' contribution to a healthy 
ecosystem'' replaced ``target production goal.''
    In Sec. 600.815, paragraph (a)(2)(ii)(E), the listing of ecological 
roles to be considered in determining EFH has been removed, these 
ecological factors are considered broadly in the national standards. 
Councils should address these needs on a case-by-case basis.
    In Sec. 600.815, paragraph (a)(2)(ii)(F), ``aquatic'' is added to 
qualify ``degraded or inaccessible habitat'' to clarify that this is 
not intended to be dry land.
    In Sec. 600.815, paragraphs (a)(3), (a)(4), and (a)(5), have been 
reordered to strengthen the connections between EFH identification and 
description and the management of fishing activities that may adversely 
affect EFH as suggested by commenters. Non-fishing activities are 
addressed under Sec. 600.815(a)(5).
    In Sec. 600.815, paragraph (a)(3)(ii), the phrase ``fishing 
equipment'' has replaced ``fishing gear'' to encompass all sources of 
fishing-related adverse impacts to EFH; the wording clarifies that 
``best scientific data'' should be used but that other ``appropriate 
information sources'' should be considered. The wording also clarifies 
for the Councils that gear assessments should include effects on all 
EFH types potentially impacted (especially HAPC) and Councils should 
evaluate relative impacts.
    In Sec. 600.815, paragraph (a)(3)(iii), ``identifiable'' replaces 
``substantial.'' The phrase ``and cumulative impacts analysis'' 
clarifies that fishing impacts should be included in an analysis of 
cumulative impacts on EFH.
    In Sec. 600.815, paragraph (a)(3)(iv) clarifies that consideration 
should be given to long- and short-term benefits and costs to both EFH 
and the fishery when assessing management actions. ``EFH'' is 
substituted for ``the marine ecosystem'' to improve consistency with 
the Magnuson-Stevens Act.
    In Sec. 600.815, paragraph (a)(4)(i) is retitled ``Fishing 
equipment restrictions.'' NMFS replaced the list of mixed general and 
specific examples of fishing types with more general examples of 
potential gear restrictions.
    In Sec. 600.815, paragraph (a)(4)(ii), wording was added to clarify 
that ``marine protected areas'' can be used for management of adverse 
effects on

[[Page 66549]]

EFH, as well as research on fishing equipment impacts; especially in 
HAPC.
    In Sec. 600.815, paragraph (a)(5) is a consolidation of 
Sec. 600.810 (a)(3) paragraphs (i) and (ii) from the proposed rule.
    In Sec. 600.815, paragraph (a)(5), illustrative examples of 
``activities which can adversely affect EFH'' were made more consistent 
so that broad actions, not industries potentially causing those 
actions, were highlighted. The phrases, ``actions that contribute to 
non-point source pollution and sedimentation'' and ``introduction of 
potentially hazardous materials'' were added for clarity in place of 
``runoff'' and ``placement of contaminated material.'' The mapping 
provisions specific to this section were moved from the Cumulative 
Impacts Analysis section of the proposed rule.
    Section 600.815, paragraph (a)(6)(i), clarifies that fishing 
effects as well as non-fishing impacts on EFH should be subject to 
cumulative impacts analysis, separately and in concert. NMFS added the 
term ``feasible'' to emphasize that a cumulative impacts analysis may 
not be possible because of technological or other limitations. NMFS 
replaced the phrase ``natural stresses'' with ``natural adverse 
impacts''. NMFS changed the wording to avoid misinterpretation of 
``ecological risk assessment'' as a formalized toxicological test.
    In Sec. 600.815, paragraph (a)(6)(ii) was split out from the 
cumulative impacts section to emphasize cumulative impacts from fishing 
and to highlight that HAPCs should be examined for cumulative effects.
    In Sec. 600.815, paragraph (a)(6)(iii) splits the mapping of 
cumulative impacts into a separate paragraph.
    In Sec. 600.815, paragraph (a)(6)(iv) ``Research needs,'' was added 
to emphasize that Councils should pursue research efforts geared to 
understand ecosystem and watershed effects on fish populations and 
incorporate them into their protection of EFH if they are unable to 
conduct cumulative impacts analyses.
    In Sec. 600.815, paragraph (a)(7) was renumbered from paragraph 
(a)(3)(iv) and reordered. NMFS modified the language to emphasize that 
the preferred approach to EFH conservation should be to avoid, 
minimize, or compensate for adverse effects on EFH from specific 
actions to focus EFH conservation efforts. NMFS added ``especially in 
habitat areas of particular concern.''
    In Sec. 600.815, paragraphs (a)(7)(ii)(A), (B), (C), and (D) have 
been renumbered from paragraphs (a)(3)(iv)(A-F) of the proposed rule 
reflecting the incorporation of the wording from paragraph 
(a)(7)(ii)(A) (proposed rule) into the previous paragraph mentioned, 
and titles were generally modified for grammatical consistency. 
Language was added to clarify that conservation measures presented in 
these paragraphs are illustrative of measures that Councils may 
consider to proactively or reactively address past or present adverse 
effects to conserve and enhance EFH.
    In Sec. 600.815, paragraph (a)(7)(iii)(A) has been retitled 
``Enhancement of rivers, streams, and coastal areas.'' Paragraph 
(a)(3)(iv)(C) from the proposed rule has been incorporated into this 
paragraph. The phrase ``modification of operating procedures for dikes 
and levees'' was added to clarify that removal is not always the 
preferred option for providing fish passage. The final sentence in the 
paragraph was added to emphasize governmental planning in watershed 
management.
    In Sec. 600.815, paragraph (a)(7)(iii)(B), ``and quantity'' has 
been added to the title; and ``providing appropriate in-stream flow'' 
has been added to reflect general options to apply to all regions.
    In Sec. 600.815, paragraph (a)(7)(iii)(C), ``subsequent watershed'' 
was deleted from the title. Specific examples have been replaced by 
more general examples of watershed-scale conservation and enhancement 
options.
    In Sec. 600.815, paragraph (a)(7)(iii)(D), the example has been 
deleted since it may be only regionally applicable; ``(converting non-
EFH to EFH)'' was added for clarity; ``and degraded'' has been added to 
clarify that such areas may be appropriate for enhancement through 
habitat creation; ``conversion'' was included as a synonym for 
``creation;'' ``within an ecosystem context'' has been added for 
clarity.
    In Sec. 600.815, paragraph (a)(8), ``and their habitat'' has been 
added to better explain how prey species should be addressed. Language 
was added to explain why adverse impacts to prey and prey habitat may 
be adverse impacts to EFH.
    In Sec. 600.815, paragraph (a)(9) has been renumbered from 
paragraph (a)(7) of the proposed rule and retitled ``Identification of 
habitat areas of particular concern;'' language has been included to 
denote that HAPC might include not only those areas especially 
vulnerable to degradation, but those that provide important ecological 
functions for one or more managed species; the paragraphs have been 
renumbered after the inclusion of paragraph (i), The importance of the 
ecological function provided by the habitat.
    In Sec. 600.815, paragraph (a)(10) has been renumbered from 
paragraph (a)(8) of the proposed rule; ``cumulative impacts from 
fishing,'' ``priority,'' ``and a schedule for obtaining that 
information'' have been added; ``equipment'' replaced ``gear;'' 
``maintaining a sustainable fishery and the managed species' 
contribution to a healthy ecosystem'' replaces ``reaching target long-
term production levels.'' All of these changes were made to ensure that 
this section is consistent with other parts of the rule.
    In Sec. 600.815, paragraph (a)(11) has been renumbered from 
paragraph (a)(9) of the proposed rule; ``including an update of the 
equipment assessment originally conducted pursuant to paragraph 
(a)(3)(ii) of this section'' has been added, as has been ``This 
information should be reviewed as part of the annual Stock Assessment 
and Fishery Evaluation (SAFE) report prepared pursuant to 
Sec. 600.315(e)'' and ``complete.''
    In Sec. 600.815, paragraph (c), language has been added to clarify 
that NMFS EFH FMP recommendations may include ``other appropriate 
information.'' Language was added to acknowledge differences between 
Council procedures in preparing FMPs and to assure the flexibility to 
work within each process.
    In Sec. 600.815, paragraph (d) has been added to encourage 
coordination with other fishery management authorities.
    The consultation, coordination, and recommendation provisions in 
the proposed rule have been separated out into a new subpart K of part 
600.
    Sections 600.905, 600.915, 600.920, 600.925, and 600.930 have been 
reorganized from the proposed rule's Sec. 600.815 to provide better 
access and understanding to the provisions. Each of the provisions that 
applies to a different part of the Magnuson-Stevens Act has been 
separated into a different section to highlight the different 
requirements in response to many commenters who failed to recognize the 
distinctions between coordination, consultation, and commenting (or 
providing recommendations) and the entities involved in each process.
    Section 600.905 has been added to clarify the intent of these 
provisions in promoting the protection of EFH in the review of Federal 
and state actions that may adversely affect EFH.
    Section 600.905(c) has been revised adding language to emphasize 
cooperation between Councils and NMFS in all phases of EFH 
implementation. The clarification that ``NMFS and the Councils also 
have the

[[Page 66550]]

authority to act independently.'' has been added.
    Section 600.910 has been added for definitions and word usage that 
apply to this subpart.
    Section 600.915 has been renumbered and expanded to provide the 
details of the coordination between NMFS and other action agencies and 
to indicate that NMFS will take a proactive approach in promoting the 
conservation of EFH.
    Section 600.920 has been revised to combine all sections of the 
Federal agency consultation provisions in a more organized fashion. The 
proposed rule recommended incorporation of EFH consultations with other 
existing environmental reviews, but this was overlooked by some 
commenters. These sections clarify the details of appropriate 
consultation and emphasize that NMFS' preference is for consultations 
to occur within existing consultation/environmental review procedures, 
whenever possible.
    Section 600.920, paragraphs (a) (1) and (2) were added to provide 
specific information on which Federal actions require consultation, and 
the use of programmatic consultation.
    In Sec. 600.920, paragraph (d), language has been added to clarify 
that ``other appropriate sources of information may also be 
considered'' when evaluating the effects of a proposed action on EFH.
    In Sec. 600.920, paragraph (f)(1), ``minimal'' has been changed to 
``no more'' than minimal.
    Section 600.920, paragraph (f)(2)(ii) clarifies the requirements 
for tracking actions included in General Concurrences.
    Section 600.920, paragraph (f)(2)(iv) explains that in HAPC, 
activities will be held to a greater level of scrutiny before being 
granted a General Concurrence.
    In Sec. 600.920, paragraph (f)(4), ``if appropriate'' has been 
added.
    Section 600.920, paragraph (g)(1) has been rewritten to improve 
clarity.
    Section Sec. 600.920, paragraph (g)(2)(iv), has been moved from the 
Additional information section.
    In Sec. 600.920, paragraph (g)(3)(iv), ``particularly when an 
action is non-water dependent'' has been added to emphasize 
alternatives when an action is not water dependent.
    In Sec. 600.920, paragraph (h)(1) contains additional criteria to 
determine when abbreviated consultation is appropriate.
    In Sec. 600.920, paragraph (h)(2), ``must'' was changed to 
``should'' and language was added to clarify when notification should 
be sent to a Council.
    In Sec. 600.920, paragraph (h)(5), language on combining EFH 
Assessments with other environmental reviews was deleted because the 
same concept is included in Sec. 600.920(e)(2).
    In Sec. 600.920, paragraph (i)(1) contains additional explanation 
of the intent of expanded consultation and criteria to determine when 
expanded consultation is appropriate.
    In Sec. 600.920, paragraph (i)(3) provides additional clarification 
regarding NMFS' response to Federal agencies during expanded 
consultation.
    In Sec. 600.920, paragraph (i)(4) clarifies that there is 
flexibility in the schedules for consultation; ``or emergency 
situation'' has been added, and the NMFS deadline has been changed from 
90 to 60 days.
    In Sec. 600.920, paragraph (i)(5), ``must'' has been changed to 
``should.''
    Section 600.920, paragraph (j)(2) has been retitled ``Further 
review of decisions inconsistent with NMFS or Council recommendations'' 
from ``Dispute resolution;'' language has been added to describe 
actions available in the case when an action agency's decision is 
inconsistent with NMFS or the Council's EFH conservation 
recommendations.
    Section 600.920, paragraph (j)(1) has been rewritten to improve 
clarity.
    In Sec. 600.925, paragraph (c), ``use existing coordination 
procedures under statutes such as the Coastal Zone Management Act or 
establish new'' and other language has been added to further encourage 
the use of existing procedures to coordinate with state agencies, and 
to encourage sharing information with states.
    In Sec. 600.925, paragraph (a), language has been added stating 
that NMFS will not make recommendations beyond a Federal agency's 
authority.
    In Sec. 600.925, paragraph (b) has been added to clarify the 
relationship between Federal consultation and providing EFH 
conservation recommendation to Federal agencies.

Classification

    The Assistant Administrator for Fisheries (AA), NMFS, has 
determined that this interim final rule is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    NMFS prepared an EA for this interim final rule, and the AA 
concluded that there will be no significant impact on the human 
environment as a result of this rule. The regulations contain 
guidelines to the Councils for amending FMPs in accordance with the EFH 
requirements of the Magnuson-Stevens Act, and procedures to be used by 
NMFS, the Councils, and Federal and state action agencies to satisfy 
the coordination, consultation, and recommendation requirements of the 
Magnuson-Stevens Act. Any specific effects on the human environment 
will be addressed in NEPA documents prepared for individual FMP 
provisions that are prepared pursuant to this rule. A copy of the EA is 
available from NMFS (see ADDRESSES).
    This interim final rule has been determined to be not significant 
for the purposes of E.O. 12866. Each EFH amendment to an existing FMP 
and all new FMPs will contain detailed analyses of the benefits and 
costs of the management programs under consideration, to ensure 
compliance with E.O. 12866.
    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 rule would not have a 
significant economic impact on a substantial number of small entities. 
NMFS received comments regarding this certification. As addressed 
earlier, NMFS' consideration of these comments did not cause it to 
change its determination regarding the certification. This rule 
establishes guidelines for Councils to identify and describe EFH, 
including adverse impacts, and conservation and enhancement measures. 
The regulations require that the Councils conduct assessments of the 
effects of fishing on EFH within their jurisdiction. The Magnuson-
Stevens Act requires the Councils to examine their existing FMPs and 
all future FMPs and amend them as required to comply with the EFH 
guidelines in this rule. These guidelines are intended to provide 
direction on compliance with the EFH provisions and in themselves, do 
not have the force of law. Should Councils establish regulations on 
fishing as a result of the guidelines and the assessment of fishing 
equipment, that action may affect small entities and could be subject 
to the requirement to prepare a Regulatory Flexibility analysis at the 
time they are proposed. Any future effects on small entities that may 
eventually result from amendments to FMPs to bring them into compliance 
with the Magnuson-Stevens Act would be speculative at this 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 is not 
mandatory, any effects on small businesses would be speculative. As a 
result, a regulatory flexibility analysis was not prepared.
    For the purposes of E.O. 12612, the AA has determined that this 
interim

[[Page 66551]]

final rule does not include policies that have federalism implications 
sufficient to warrant preparation of a Federalism Assessment. This rule 
establishes procedures for coordination between the states and NMFS or 
the Councils in situations where state action may adversely impact EFH. 
The rule states that, in such circumstances, NMFS or the Councils would 
furnish the state with EFH recommendations. NMFS EFH conservation 
recommendations are not mandatory, and the states are not required to 
expend funds in a way not of their own choosing.

References

    Christensen, N.L., A.M. Bartuska, J.H. Brown, S. Carpenter, C. 
D'Antonio, R. Francis, J.F. Franklin, J.A. MacMahon, R.F. Noss, D.J. 
Parsons, C.H. Peterson, M.G. Turner, and R.G. Woodmansee. 1996. The 
report of the Ecological Society of America committee on the scientific 
basis for ecosystem management. Ecological Applications, 6(3): 665-691.
    Grumbine, R.E. 1997. Reflections on ``What is Ecosystem 
Management?'' Conservation Biology 11(1): 41-47.
    Hancock, D.A. (ed.) 1993. Sustainable Fisheries through Sustaining 
Fish Habitat, Australian Society for Fish Biology Workshop, Victor 
Harbor, SA, 12-13 August, Bureau of Resource Sciences Proceedings, 
AGPS, Canberra.

List of Subjects in 50 CFR Part 600

    Administrative practice and procedures, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations.

    Dated: December 15, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons stated in the preamble, the National Marine 
Fisheries Service amends 50 CFR part 600 as follows:

PART 600--[AMENDED]

    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 (EFH) 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 include aquatic areas and their associated 
physical, chemical, and biological properties that are used by fish and 
may include aquatic 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 the managed 
species' contribution to a healthy ecosystem; and ``spawning, breeding, 
feeding, or growth to maturity'' covers a species' full life cycle.
* * * * *
    3. New subparts J and K are added to part 600 to read as follows:
* * * * *

Subpart J--Essential Fish Habitat (EFH)

600.805  Purpose and scope.
600.810  Definitions and word usage.
600.815  Contents of Fishery Management Plans.

Subpart K--EFH Coordination, Consultation, and Recommendations

600.905  Purpose, scope, and NMFS/Council cooperation.
600.910  Definitions and word usage.
600.915  Coordination for the conservation and enhancement of EFH.
600.920  Federal agency consultation with the Secretary.
600.925  NMFS EFH conservation recommendations to Federal and state 
agencies.
600.930  Council comments and recommendations to Federal and state 
agencies.

Subpart J--Essential Fish Habitat (EFH)


Sec. 600.805  Purpose and scope.

    (a) Purpose. This subpart provides guidelines for Councils and the 
Secretary to use in adding the required provision on EFH to an FMP, 
i.e., description and identification of essential fish habitat (EFH), 
adverse impacts on EFH (including minimizing, to the extent 
practicable, adverse impacts from fishing), and actions to conserve and 
enhance EFH.
    (b) Scope--(1) Species covered. An EFH provision in an FMP must 
include all fish species in the FMU. A Council 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-Stevens Act.
    (2) Geographic. EFH may be described and identified in waters of 
the United States, as defined in 33 CFR 328.3 and the exclusive 
economic zone, as defined in Sec. 600.10. Councils may describe, 
identify, and protect habitats of managed species beyond the exclusive 
economic zone; however, such habitat may not be considered EFH for the 
purposes of section 303(a)(7) and 305(b) of the Magnuson-Stevens Act. 
Activities that may adversely impact such habitat can be addressed 
through any process conducted in accordance with international 
agreements between the United States and the foreign nation(s) 
undertaking or authorizing the action.


Sec. 600.810  Definitions and word usage.

    (a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the 
following meanings:
    Adverse effect means any impact which reduces quality and/or 
quantity of EFH. Adverse effects may include direct (e.g., 
contamination or physical disruption), indirect (e.g., loss of prey, or 
reduction in species' fecundity), site-specific or habitat-wide 
impacts, including individual, cumulative, or synergistic consequences 
of actions.
    Council includes the Secretary, as applicable, when preparing 
Secretarial FMPs or amendments under sections 304(c) and (g) of the 
Magnuson-Stevens Act.
    Ecosystem means communities of organisms interacting with one 
another and with the chemical and physical factors making up their 
environment.
    Habitat areas of particular concern means those areas of EFH 
identified pursuant to Sec. 600.815(a)(9).
    Healthy ecosystem means an ecosystem where ecological productive 
capacity is maintained, diversity of the flora and fauna is preserved, 
and the ecosystem retains the ability to regulate itself. Such an 
ecosystem should be similar to comparable, undisturbed, ecosystems with 
regard to standing crop, productivity, nutrient dynamics, trophic 
structure, species richness, stability, resilience, contamination 
levels, and the frequency of diseased organisms.
    Overfished means any stock or stock complex, the status of which is 
reported as overfished by the Secretary pursuant to Sec. 304(e)(1) of 
the Magnuson-Stevens Act.
    (b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'', 
``may not'', ``will'', ``could'', and ``can'', are used in the same 
manner as in Sec. 600.305(c).


Sec. 600.815  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

[[Page 66552]]

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 used 
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, the geographic range of the managed species, the 
habitat requirements by life history stage, and the distribution and 
characteristics of those habitats. Information is also required on the 
temporal and spatial distribution of each major life history stage 
(defined by developmental and functional shifts). Since EFH should be 
identified for each major life history stage, data should be collected 
on, but not limited to, the distribution, density, growth, mortality, 
and production of each stage within all habitats occupied, or formerly 
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 
should be used to identify EFH. The goal of this procedure is 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 
potential habitats. Care should be taken to ensure that all potential 
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., density or relative 
abundance) are available for the habitats occupied by a species or life 
history stage. Because the efficiency of sampling methods is often 
affected by habitat characteristics, strict quality assurance criteria 
should be used to ensure that density estimates are comparable among 
methods and 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 the managed 
species' contribution to 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 interpret this 
information in a risk-averse fashion, to ensure adequate areas are 
protected as EFH of managed species. Level 1 information, if available, 
should be used to identify the geographic range of the species. Level 2 
through 4 information, if available, should be used to identify the 
habitats valued most highly within the geographic range of the species. 
If only Level 1 information is available, presence/absence data should 
be evaluated (e.g., using a frequency of occurrence or other 
appropriate analysis) to identify those habitat areas most commonly 
used by the species. Areas so identified 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. Councils must demonstrate that the best scientific 
information available was used in the identification of EFH, consistent 
with national standard 2, but other data may also be used for the 
identification.
    (B) If a species is overfished, and habitat loss or degradation may 
be contributing to the species being identified as overfished, all 
habitats currently used by the species should be considered essential 
in addition to certain historic habitats that are necessary to support 
rebuilding the fishery and for which restoration is technologically and 
economically feasible. Once the fishery is no longer considered 
overfished, the EFH identification should be reviewed, and the FMP 
amended, if appropriate.
    (C) EFH will always be greater than or equal to aquatic areas that 
have been identified as ``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, then 
EFH for the 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 sustainable fishery 
and the managed species' contribution to a healthy ecosystem.
    (F) If degraded or inaccessible aquatic 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 increasing flows), and similar 
measures that are technologically and economically 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

[[Page 66553]]

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 need to 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 identifying EFH and the information in the 
description of EFH differ, the description is ultimately determinative 
of the limits of EFH.
    (3) Fishing activities that may adversely affect EFH. (i) Adverse 
effects from fishing may include physical, chemical, or biological 
alterations of the substrate, and loss of, or 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 equipment 
types used in waters described as EFH. This assessment should consider 
the relative impacts of all fishing equipment types used in EFH on 
different types of habitat found within EFH. Special consideration 
should be given to equipment types that will affect habitat areas of 
particular concern. In completing this assessment, Councils should use 
the best scientific information available, as well as other appropriate 
information sources, as available. 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 practicable, if there is 
evidence that a fishing practice is having an identifiable adverse 
effect on EFH, based on the assessment conducted pursuant to paragraph 
(a)(3)(ii) of this section and/or the cumulative impacts analysis 
conducted pursuant to paragraph (a)(6)(ii) of this section.
    (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 EFH, including 
the fishery; the nature and extent of the adverse effect on EFH; and 
whether the management measures are practicable, taking into 
consideration the long and short-term costs as well as benefits to the 
fishery and its EFH, along with other appropriate factors, consistent 
with national standard 7.
    (4) Options for managing adverse effects from fishing. Fishery 
management options may include, but are not limited to:
    (i) Fishing equipment restrictions. These options may include, but 
are not limited to: Seasonal and area restrictions on the use of 
specified equipment; equipment modifications to allow escapement of 
particular species or particular life stages (e.g., juveniles); 
prohibitions on the use of explosives and chemicals; prohibitions on 
anchoring or setting equipment in sensitive areas; and prohibitions on 
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 equipment types 
during spawning, migration, foraging, and nursery activities; and 
designating zones for use as marine protected areas to limit adverse 
effects of fishing practices on certain vulnerable or rare areas/
species/life history stages, such as those areas designated as habitat 
areas of particular concern.
    (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.
    (5) Identification of Non-fishing related activities that may 
adversely affect EFH. FMPs must identify activities that have the 
potential to adversely affect EFH quantity or quality, or both. Broad 
categories of activities which can adversely affect EFH include, but 
are not limited to: Dredging, fill, excavation, mining, impoundment, 
discharge, water diversions, thermal additions, actions that contribute 
to non-point source pollution and sedimentation, introduction of 
potentially hazardous materials, introduction of exotic species, and 
the conversion of aquatic habitat that may eliminate, diminish, or 
disrupt the functions of EFH. An FMP should describe the EFH most 
likely to be adversely affected by these or other activities. For each 
activity, the FMP should describe known and potential adverse impacts 
to EFH. The descriptions should explain the mechanisms or processes 
that may cause the adverse effects and how these may affect habitat 
function. A GIS or other mapping system should be used to support 
analyses of data. Maps geographically depicting impacts identified in 
this paragraph should be included in an FMP.
    (6) Cumulative impacts analysis--(i) Analysis. To the extent 
feasible and practicable, FMPs should analyze how fishing and non-
fishing activities influence habitat function on an ecosystem or 
watershed scale. This analysis should describe the ecosystem or 
watershed, the dependence of the managed species on the ecosystem or 
watershed, especially EFH; and how fishing and non-fishing activities, 
individually or in combination, impact EFH and the managed species, and 
how the loss of EFH may affect the ecosystem. An assessment of the 
cumulative and synergistic effects of multiple threats, including the 
effects of natural stresses (such as storm damage or climate-based 
environmental shifts), and an assessment of the ecological risks 
resulting from the impact of those threats on 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.
    (ii) Cumulative impacts from fishing. In addressing the impacts of 
fishing on EFH, Councils should also consider the cumulative impacts of 
multiple fishing practices and non-fishing activities on EFH, 
especially, on habitat areas of particular concern. Habitats that are 
particularly vulnerable to specific fishing equipment types should be 
identified for possible designation as habitat areas of particular 
concern.
    (iii) Mapping cumulative impacts. A GIS or other mapping system 
should be used to support analyses of data. Maps depicting data 
documenting cumulative

[[Page 66554]]

impacts identified in this paragraph should be included in an FMP.
    (iv) Research needs. If completion of these analyses is not 
feasible or practicable for every ecosystem or watershed within an area 
identified as EFH, Councils should, in consultation with NMFS, identify 
in the FMP priority research areas to allow these analyses to be 
completed. Councils should include a schedule for completing such 
research. Such schedule of priority research areas should be combined 
with the research needs identified pursuant to paragraph (a)(10) of 
this section.
    (7) Conservation and enhancement--(i) Contents of FMPs. FMPs must 
describe options to avoid, minimize, or compensate for the adverse 
effects identified pursuant to paragraphs (a) (5) and (6) of this 
section and promote the conservation and enhancement of EFH, especially 
in habitat areas of particular concern.
    (ii) General conservation and enhancement recommendations. 
Generally, non-water dependent actions should not be located in EFH if 
such actions may have adverse impacts on EFH. Activities that may 
result in significant adverse affects on EFH, should be avoided where 
less environmentally harmful alternatives are available. If there are 
no alternatives, the impacts of these actions should be minimized. 
Environmentally sound engineering and management practices should be 
employed for all actions which may adversely affect EFH. Disposal or 
spillage of any material (dredge material, sludge, industrial waste, or 
other potentially harmful materials) which would destroy or degrade EFH 
should be avoided. If avoidance or minimization is not possible, or 
will not adequately protect EFH, compensatory mitigation to conserve 
and enhance EFH should be recommended. FMPs may recommend proactive 
measures to conserve or enhance EFH. When developing proactive 
measures, Councils may develop a priority ranking of the 
recommendations to assist Federal and state agencies undertaking such 
measures.
    (iii) Conservation and enhancement options. FMPs should provide a 
variety of options to conserve or enhance EFH, which may include, but 
are not limited to:
    (A) Enhancement of rivers, streams, and coastal areas. EFH located 
in, or influenced by, rivers, streams, and coastal areas may be 
enhanced by reestablishing endemic trees or other appropriate native 
vegetation on adjacent riparian areas; restoring natural bottom 
characteristics; removing unsuitable material from areas affected by 
human activities; or adding gravel or substrate to stream areas to 
promote spawning. Adverse effects stemming from upland areas that 
influence EFH may be avoided or minimized by employing measures such 
as, but not limited to, erosion control, road stabilization, upgrading 
culverts, removal or modification of operating procedures of dikes or 
levees to allow for fish passage, structural and operation measures at 
dams for fish passage and habitat protection, or improvement of 
watershed management. Initiation of Federal, state, or local government 
planning processes to restore watersheds associated with such rivers, 
streams, or coastal areas may also be recommended.
    (B) Water quality and quantity. This category of options may 
include use of best land management practices for ensuring compliance 
with water quality standards at state and Federal levels, improved 
treatment of sewage, proper disposal of waste materials, and providing 
appropriate in-stream flow.
    (C) Watershed analysis and planning. This may include encouraging 
local and state efforts to minimize destruction/degradation of 
wetlands, restore and maintain the ecological health of watersheds, and 
encourage restoration of native species. Any analysis of options should 
consider natural variability in weather or climatic conditions.
    (D) Habitat creation. Under appropriate conditions, habitat 
creation (converting non-EFH to EFH) may be considered as a means of 
replacing lost or degraded EFH. However, habitat conversion at the 
expense of other naturally functioning systems must be justified within 
an ecosystem context.
    (8) Prey species. Loss of prey is an adverse effect on EFH and a 
managed species, because one component of EFH is that it be necessary 
for feeding. Therefore, actions that reduce the availability of a major 
prey species, either through direct harm or capture, or through adverse 
impacts to the prey species' habitat that are known to cause a 
reduction in the population of the prey species may be considered 
adverse effects on a managed species and its EFH. FMPs should identify 
the major prey species for the species in the FMU and generally 
describe the location of prey species' habitat. Actions that cause a 
reduction of the prey species population, including where there exists 
evidence that adverse effects to habitat of prey species is causing a 
decline in the availability of the prey species, should also be 
described and identified. Adverse effects on prey species and their 
habitats may result from fishing and non-fishing activities.
    (9) Identification of habitat areas of particular concern. FMPs 
should identify habitat areas of particular concern within EFH. In 
determining whether a type, or area of EFH is a habitat area of 
particular concern, one or more of the following criteria must be met:
    (i) The importance of the ecological function provided by the 
habitat.
    (ii) The extent to which the habitat is sensitive to human-induced 
environmental degradation.
    (iii) Whether, and to what extent, development activities are, or 
will be, stressing the habitat type.
    (iv) The rarity of the habitat type.
    (10) 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; cumulative impacts from fishing; or indirect adverse effects 
such as sea level rise, global warming and climate shifts; and non-
equipment related 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 equipment on EFH and 
a schedule for obtaining that information should be included in this 
section of the FMP. If an adverse effect on EFH is identified and 
determined to be an impediment to maintaining a sustainable fishery and 
the managed species' contribution to a healthy ecosystem, then the 
research needed to quantify and mitigate that effect should be 
identified in this section.
    (11) Review and revision of EFH components of FMPs. Councils and 
NMFS should periodically review the EFH components of FMPs, including 
an update of the equipment assessment originally conducted pursuant to 
paragraph (a)(3)(ii) of this section. 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

[[Page 66555]]

new data will become available. This information should be reviewed as 
part of the annual Stock Assessment and Fishery Evaluation (SAFE) 
report prepared pursuant to Sec. 600.315(e). A complete review of 
information should be conducted as recommended by the Secretary, but at 
least once every 5 years.
    (b) Optional components. An FMP may include a description and 
identification of the habitat of species under the authority of the 
Council, even if not contained in the FMU. However, such habitat may 
not be EFH. This subpart does not change a Council's ability to 
implement management measures for a managed species for the protection 
of another species.
    (c) Development of EFH recommendations. After reviewing the best 
available scientific information, as well as other appropriate 
information, and in consultation 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. In recognition of the different 
approaches to FMP development taken by each Council, the NMFS EFH 
recommendations may constitute a review of a draft EFH document 
developed by a Council, or may include suggestions for a draft EFH FMP 
amendment and may precede the Council's development of such documents, 
as appropriate. In both cases, 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 a 
final written recommendation and comments to the Council(s).
    (d) Relationship to other fishery management authorities. Councils 
are encouraged to coordinate with state and interstate fishery 
management agencies where Federal fisheries affect state and interstate 
managed fisheries or where state or interstate fishery regulations 
affect the management of Federal fisheries. Where a state or interstate 
fishing activity adversely impacts EFH, NMFS will consider that action 
to be an adverse effect on EFH pursuant to paragraph (a)(5) of this 
section and will provide EFH conservation recommendations to the 
appropriate state or interstate fishery management agency on that 
activity.

Subpart K--EFH Coordination, Consultation, and Recommendations


Sec. 600.905  Purpose and scope and NMFS/Council cooperation.

    (a) Purpose. These procedures address the coordination, 
consultation, and recommendation requirements of sections 305(b)(1)(D) 
and 305(b)(2-4) of the Magnuson-Stevens Act. The purpose of these 
procedures is to promote the protection of EFH in the review of Federal 
and state actions that may adversely affect EFH.
    (b) Scope. Section 305(b)(1)(D) of the Magnuson-Stevens Act 
requires the Secretary to coordinate with, and provide information to, 
other Federal agencies regarding the conservation and enhancement of 
EFH. Section 305(b)(2) requires all Federal agencies to consult with 
the Secretary on all actions, or proposed actions, authorized, funded, 
or undertaken by the agency, that may adversely affect EFH. Sections 
305(b) (3) and (4) direct the Secretary and the Councils to provide 
comments and EFH conservation recommendations to Federal or state 
agencies on actions that affect 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. Section 305(b)(4)(B) requires 
Federal agencies to respond in writing to such comments. The following 
procedures for coordination, consultation, and recommendations allow 
all parties involved to understand and implement the requirements of 
the Magnuson-Stevens Act.
    (c) Cooperation between Councils and NMFS. The Councils and NMFS 
should cooperate as closely as possible to identify actions that may 
adversely affect EFH, to develop comments and EFH conservation 
recommendations to Federal and state agencies, and to provide EFH 
information to Federal or state agencies. The Secretary will seek to 
develop agreements with each Council to facilitate sharing information 
on actions that may adversely affect EFH and in coordinating Council 
and NMFS comments and recommendations on those actions. However, NMFS 
and the Councils also have the authority to act independently.


Sec. 600.910  Definitions and word usage.

    (a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the 
following meanings:
    Adverse effect means any impact which reduces quality and/or 
quantity of EFH. Adverse effects may include direct (e.g., 
contamination or physical disruption), indirect (e.g., loss of prey, 
reduction in species' fecundity), site-specific or habitatwide impacts, 
including individual, cumulative, or synergistic consequences of 
actions.
    Council includes the Secretary, as applicable, when preparing FMPs 
or amendments under section 304 (c) and (g) of the Magnuson-Stevens 
Act; and when commenting and making recommendations under the authority 
of section 305(b)(3) of the Magnuson-Stevens Act to any Federal or 
state agency on actions that may affect the habitat of fishery 
resources managed under such FMPs.
    Federal action means any action authorized, funded, or undertaken, 
or proposed to be authorized, funded, or undertaken by a Federal 
agency.
    Habitat areas of particular concern means those areas of EFH 
identified pursuant to Sec. 600.815(a)(9).
    State action means any action authorized, funded, or undertaken, or 
proposed to be authorized, funded, or undertaken by a state agency.
    (b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'', 
``may not'', ``will'', ``could'', and ``can'', are used in the same 
manner as in Sec. 600.305(c).


Sec. 600.915  Coordination for the 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. NMFS will also provide information on ways to improve 
ongoing Federal operations to promote the conservation and enhancement 
of EFH. Federal and state agencies empowered to authorize, fund, or 
undertake actions that may adversely affect EFH are encouraged to 
contact NMFS and the Councils to become familiar with areas designated 
as EFH, and potential threats to EFH, as well as opportunities to 
promote the conservation and enhancement of such habitat.


Sec. 600.920  Federal agency consultation with the Secretary.

    (a) Consultation generally--(1) Actions requiring consultation. 
Pursuant

[[Page 66556]]

to section 305(b)(2) of the Magnuson-Stevens Act, Federal agencies must 
consult with NMFS regarding any of their actions authorized, funded, or 
undertaken, or proposed to be authorized, funded, or undertaken that 
may adversely affect EFH. EFH consultation is not required for 
completed actions, e.g., issued permits. Consultation is required for 
renewals, reviews, or substantial revisions of actions. Consultation on 
Federal programs delegated to non-Federal entities is required at the 
time of delegation, review, and renewal of the delegation. EFH 
consultation is required for any Federal funding of actions that may 
adversely affect EFH. NMFS and Federal agencies responsible for funding 
actions that may adversely affect EFH should consult on a programmatic 
level, if appropriate, with respect to these actions.
    (2) Appropriate level of consultation. (i) NMFS and other Federal 
agencies may conduct consultation at either a programmatic or project-
specific level. Federal actions may be evaluated at a programmatic 
level if sufficient information is available to develop EFH 
conservation recommendations and address all reasonably foreseeable 
adverse effects to EFH. Project-specific consultations are more 
appropriate when critical decisions are made at the project 
implementation stage, or when sufficiently detailed information for the 
development of EFH conservation recommendations does not exist at the 
programmatic level.
    (ii) If, after a Federal agency requests programmatic consultation, 
NMFS determines that all concerns about adverse effects on EFH can be 
addressed at a programmatic level, NMFS will develop EFH conservation 
recommendations that cover all projects implemented under that program, 
and no further EFH consultation will be required. Alternatively, NMFS 
may determine that project-specific consultation is needed for part or 
all of the program's activities, in which case NMFS may develop some 
EFH conservation recommendations at a programmatic level, but will also 
recommend that project-specific consultation will be needed to complete 
the EFH consultation requirements. NMFS may also determine that 
programmatic consultation is not appropriate, in which case all EFH 
conservation recommendations will be deferred to project-specific 
consultations.
    (b) Designation of lead agency. If more than one Federal agency is 
responsible for a Federal action, 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.
    (c) 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.
    (d) Best available information. The Federal action agency and NMFS 
must use the best scientific information available regarding the 
effects of the proposed action on EFH. Other appropriate sources of 
information may also be considered.
    (e) Use of existing consultation/environmental review procedures--
(1) Criteria. Consultation and commenting under sections 305(b)(2) and 
305(b)(4) of the Magnuson-Stevens Act should be consolidated, where 
appropriate, with interagency consultation, coordination, and 
environmental review procedures required by other statutes, such as the 
National Environmental Policy Act (NEPA), Fish and Wildlife 
Coordination Act, Clean Water Act, Endangered Species Act (ESA), and 
Federal Power Act. The consultation requirements of section 305(b)(2) 
of the Magnuson-Stevens Act can be satisfied using existing or modified 
procedures required by other statutes if such processes meet the 
following criteria:
    (i) The existing process must provide NMFS with timely notification 
of actions that may adversely affect EFH. The Federal action agency 
should notify NMFS according to the same timeframes for notification 
(or for public comment) as in the existing process. However, NMFS 
should have at least 60 days notice prior to a final decision on an 
action, or at least 90 days if the action would result in substantial 
adverse impacts. NMFS and the action agency may agree to use shorter 
timeframes if they allow sufficient time for NMFS to develop EFH 
conservation recommendations.
    (ii) Notification must include an assessment of the impacts of the 
proposed action on EFH that meets the requirements for EFH Assessments 
contained in paragraph (g) of this section. If the EFH Assessment is 
contained in another document, that section of the document must be 
clearly identified as the EFH Assessment.
    (iii) NMFS must have made a finding pursuant to paragraph (e)(3) of 
this section that the existing process satisfies the requirements of 
section 305(b)(2) of the Magnuson-Stevens Act.
    (2) EFH conservation recommendation requirements. If an existing 
consultation process is used to fulfill the EFH consultation 
requirements, then the comment deadline for that process should apply 
to the submittal of NMFS conservation recommendations under section 
305(b)(4)(A) of the Magnuson-Stevens Act, unless a different deadline 
is agreed to by NMFS and the Federal agency. The Federal agency must 
respond to these recommendations within 30 days pursuant to section 
305(b)(4)(B) of the Magnuson-Stevens Act. NMFS may request the further 
review of any Federal agency decision that is inconsistent with a NMFS 
EFH recommendation, in accordance with paragraph (j)(2) of this 
section. If NMFS EFH conservation recommendations are combined with 
other NMFS or NOAA comments on a Federal action, such as NOAA comments 
on a draft Environmental Impact Statement, the EFH conservation 
recommendations shall be clearly identified as such (e.g., a section in 
the comment letter entitled ``EFH conservation recommendations'') and a 
response pursuant to section 305(b)(4)(B) of the Magnuson-Stevens Act 
is required for only the identified portion of the comments.
    (3) NMFS finding. A Federal agency with an existing consultation 
process should contact NMFS at the appropriate level (regional offices 
for regional processes, headquarters office for national processes) to 
discuss how the existing process, with or without modifications, can be 
used to satisfy the EFH consultation requirements. If, at the 
conclusion of these discussions, NMFS determines that the existing 
process meets the criteria of paragraph (e)(1) of this section, NMFS 
will make a finding that the existing or modified process can satisfy 
the EFH consultation requirements of the Magnuson-Stevens Act. If NMFS 
does not make such a finding, or if there are no existing consultation 
processes relevant to the Federal agency's actions, the action agency 
and NMFS should follow the consultation process in the following 
sections.
    (f) General Concurrence--(1) 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 result in no more than minimal adverse 
effects individually and cumulatively. General

[[Page 66557]]

Concurrences may be national or regional in scope.
    (2) Criteria. (i) 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:
    (A) The actions must be similar in nature and similar in their 
impact on EFH.
    (B) The actions must not cause greater than minimal adverse effects 
on EFH when implemented individually.
    (C) The actions must not cause greater than minimal cumulative 
adverse effects on EFH.
    (ii) Actions qualifying for General Concurrence must be tracked to 
ensure that their cumulative effects are no more than minimal. In most 
cases, tracking will be the responsibility of the Federal action 
agency, but NMFS also may agree to track actions for which General 
Concurrence has been authorized. Tracking should include numbers of 
actions, amount of habitat adversely affected, type of habitat 
adversely affected, and the baseline against which the action will be 
tracked. The agency responsible for tracking such actions should make 
the information available to NMFS, the Councils, and to the public on 
an annual basis.
    (iii) 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 (f)(2)(i) of this 
section. For example, NMFS may provide General Concurrence for 
additional actions contingent upon project size limitations, seasonal 
restrictions, or other conditions.
    (iv) If a General Concurrence is developed for actions affecting 
habitat areas of particular concern, the General Concurrence should be 
subject to a higher level of scrutiny than a General Concurrence not 
involving a habitat area of particular concern.
    (3) 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 (f)(2) of this section, NMFS, after consultation with the 
appropriate 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 
does not agree that the actions fit the criteria in paragraph (f)(2) of 
this section, NMFS will notify the Federal agency that a General 
Concurrence will not be issued and that abbreviated or expanded 
consultation will be 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.
    (4) Notification and further consultation. NMFS may request 
notification for actions covered under a General Concurrence if NMFS 
concludes there are circumstances under which such actions 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 
actions covered under the General Concurrence. NMFS may require further 
consultation for these actions on a case-by case basis. Each General 
Concurrence should establish specific procedures for further 
consultation, if appropriate.
    (5) Public review. Prior to providing any 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.
    (6) Revisions. NMFS will periodically review and revise its 
findings of General Concurrence, as appropriate.
    (g) EFH Assessments--(1) Preparation requirement. For any Federal 
action that may adversely affect EFH, except for those activities 
covered by a General Concurrence, Federal agencies must provide NMFS 
with a written assessment of the effects of that action on EFH. Federal 
agencies may incorporate an EFH Assessment into documents prepared for 
other purposes such as ESA Biological Assessments pursuant to 50 CFR 
part 402 or NEPA documents and public notices pursuant to 40 CFR part 
1500. If an EFH Assessment is contained in another document, it must 
include all of the information required in paragraph (g)(2) of this 
section and be clearly identified as an EFH Assessment. The procedure 
for combining an EFH consultation with other consultation of 
environmental reviews is set forth in paragraph (e) of this section.
    (2) Mandatory contents. The assessment must contain:
    (i) A description of the proposed action.
    (ii) An analysis of the effects, including cumulative effects, of 
the proposed action on EFH, the managed species, and associated 
species, such as major prey species, including affected life history 
stages.
    (iii) The Federal agency's views regarding the effects of the 
action on EFH.
    (iv) Proposed mitigation, if applicable.
    (3) Additional information. If appropriate, the assessment should 
also include:
    (i) The results of an on-site inspection to evaluate the habitat 
and the site-specific effects of the project.
    (ii) The views of recognized experts on the habitat or species that 
may be affected.
    (iii) A review of pertinent literature and related information.
    (iv) An analysis of alternatives to the proposed action. Such 
analysis should include alternatives that could avoid or minimize 
adverse effects on EFH, particularly when an action is non-water 
dependent.
    (v) Other relevant information.
    (4) 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 with an EFH 
Assessment.
    (h) Abbreviated consultation procedures--(1) Purpose and criteria. 
Abbreviated consultation allows NMFS to quickly determine whether, and 
to what degree, a Federal action may adversely affect EFH. Federal 
actions that may adversely affect EFH should be addressed through the 
abbreviated consultation procedures when those actions do not qualify 
for a General Concurrence, but do not have the potential to cause 
substantial adverse effects on EFH. For example, the abbreviated 
consultation procedures should be used when the adverse effect(s) of an 
action or proposed action could be alleviated through minor 
modifications.
    (2) Notification by agency. The Federal agency should notify NMFS 
and, if NMFS so requests, the appropriate Council(s), 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 should occur during

[[Page 66558]]

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.
    (3) Submittal of EFH Assessment. The Federal agency must submit a 
completed EFH Assessment, prepared in accordance with paragraph (g) of 
this section, to NMFS for review. Federal agencies will have fulfilled 
their consultation requirement under paragraph (a) of this section 
after notification and submittal of a complete EFH Assessment.
    (4) NMFS response to Federal agency. NMFS must respond in writing 
as to whether it concurs with the findings of the EFH Assessment. If 
NMFS believes that the proposed action may result in substantial 
adverse effects on EFH, or that additional analysis is needed to 
accurately assess the effects of the proposed action, NMFS will request 
that the Federal agency initiate expanded consultation. Such request 
will explain why NMFS believes expanded consultation is needed and will 
specify any new information needed. If additional consultation is not 
necessary, NMFS will respond by commenting and recommending measures 
that may be taken to conserve EFH, pursuant to section 305(b)(4)(A) of 
the Magnuson-Stevens Act. NMFS will send a copy of its response to the 
appropriate Council.
    (5) Timing. The Federal action agency must submit its complete EFH 
Assessment to NMFS as soon as practicable, but NMFS must receive it at 
least 60 days prior to a final decision on the action. NMFS must 
respond in writing within 30 days. NMFS and the Federal action agency 
may agree to use a compressed schedule in cases where regulatory 
approvals or emergency situations cannot accommodate 30 days for 
consultation, or to conduct consultation earlier in the planning cycle 
for proposed actions with lengthy approval processes.
    (i) Expanded consultation procedures--(1) Purpose and criteria. 
Expanded consultation allows maximum opportunity for NMFS and the 
Federal agency to work together in the review of the action's impacts 
on EFH and the development of EFH conservation recommendations. 
Expanded consultation procedures must be used for Federal actions that 
would result in substantial adverse effects to EFH. Federal agencies 
are encouraged to contact NMFS at the earliest opportunity to discuss 
whether the adverse effect of a proposed action makes expanded 
consultation appropriate.
    (2) Initiation. Expanded consultation begins when NMFS receives 
from the Federal agency an EFH Assessment completed in accordance with 
paragraph (g) of this section and a written request for expanded 
consultation. Federal action agencies are encouraged to provide in the 
EFH Assessment the additional information identified under paragraph 
(g)(3) 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.
    (3) NMFS response to Federal agency. NMFS will:
    (i) Review the EFH Assessment, any additional information furnished 
by the Federal agency, and other relevant information.
    (ii) Conduct a site visit, if appropriate, to assess the quality of 
the habitat and to clarify the impacts of the Federal agency action. 
Such a site visit should be coordinated with the Federal agency and 
appropriate Council(s), if feasible.
    (iii) Coordinate its review of the proposed action with the 
appropriate Council(s).
    (iv) Discuss EFH conservation recommendations with the Federal 
agency and provide recommendations to the Federal action agency, 
pursuant to section 305(b)(4)(A) of the Magnuson-Stevens Act. NMFS will 
also provide a copy of the recommendations to the appropriate 
Council(s).
    (4) Timing. The Federal action agency must submit its complete EFH 
Assessment to NMFS as soon as practicable, but at least 90 days prior 
to a final decision on the action. NMFS must respond within 60 days of 
submittal of a complete EFH Assessment unless consultation is extended 
by agreement between NMFS and the Federal action agency. NMFS and 
Federal action agencies may agree to use a compressed schedule in cases 
where regulatory approvals or emergency situations cannot accommodate a 
60-day consultation period.
    (5) 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 
expanded consultation. If NMFS and the Federal action agency agree to 
an extension, the Federal action agency should 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 information available to NMFS.
    (j) Responsibilities of Federal action agency following receipt of 
EFH conservation recommendations--(1) Federal action agency response. 
As required by section 305(b)(4)(B) of the Magnuson-Stevens Act, the 
Federal action agency must provide a detailed response in writing to 
NMFS and the appropriate Council within 30 days after receiving an EFH 
conservation recommendation. Such a response must be provided at least 
10 days prior to final approval of the action, if a decision by the 
Federal agency is required in fewer than 30 days. 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 NMFS conservation 
recommendations, 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.
    (2) Further review of decisions inconsistent with NMFS or Council 
recommendations. If a Federal action agency decision is inconsistent 
with a NMFS EFH conservation recommendation, the Assistant 
Administrator for Fisheries 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. If a Federal action agency decision is also inconsistent 
with a Council recommendation made pursuant to section 305(b)(3) of the 
Magnuson-Stevens Act, the Council may request that the Assistant 
Administrator initiate further review of the Federal agency's decision 
and involve the Council in any interagency discussion to resolve 
disagreements with the Federal agency. The Assistant Administrator will 
make every effort to accommodate such a request. Memoranda of agreement 
or other written procedures will be developed to further define such 
review processes with Federal action agencies.
    (k) Supplemental consultation. A Federal action agency must 
reinitiate consultation with NMFS if the agency substantially revises 
its plans for an action in a manner that may adversely affect EFH or if 
new information becomes available that affects the basis

[[Page 66559]]

for NMFS' EFH conservation recommendations.


Sec. 600.925  NMFS EFH conservation recommendations to Federal and 
state agencies.

    (a) General. Under section 305(b)(4) of the Magnuson-Stevens Act, 
NMFS is required to provide EFH conservation recommendations to Federal 
and state agencies for actions that would adversely affect EFH. NMFS 
EFH conservation recommendations will not suggest that state or Federal 
agencies take actions beyond their statutory authority.
    (b) Recommendations to Federal agencies. For Federal actions, EFH 
conservation recommendations will be provided to Federal action 
agencies as part of EFH consultations conducted pursuant to 
Sec. 600.920. These recommendations fulfill the requirements of section 
305(b)(4)(A) of the Magnuson-Stevens Act. If NMFS becomes aware of a 
Federal action that would adversely affect EFH, but for which a Federal 
agency has not completed an EFH consultation, NMFS may request that the 
Federal agency initiate EFH consultation or NMFS will provide EFH 
conservation recommendations based on the information available. NMFS 
will provide a copy of such recommendation to the appropriate 
Council(s).
    (c) Recommendations to state agencies--(1) Establishment of 
procedures. Each NMFS Region should use existing coordination 
procedures under statutes such as the Coastal Zone Management Act or 
establish new procedures to identify state actions that may adversely 
affect EFH, and for determining the most appropriate method for 
providing EFH conservation recommendations to the state agency. NMFS 
will provide a copy of such recommendation to the appropriate 
Council(s).
    (2) Coordination with states on recommendations to Federal 
agencies. When an action that would 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 Sec. 600.920. NMFS will also seek agreements on sharing 
information and copies of recommendations with Federal or state 
agencies conducting similar consultation and recommendation processes 
to ensure coordination of such efforts.


Sec. 600.930  Council comments and recommendations to Federal and state 
agencies.

    (a) Establishment of procedures. Each Council should establish 
procedures for reviewing Federal or state actions that may adversely 
affect the EFH of a species managed under its authority. Each Council 
may receive information on actions of concern by methods such as: 
Directing Council staff to track proposed actions; recommending that 
the Council's habitat committee identify actions of concern; or 
entering into an agreement with NMFS to have the appropriate Regional 
Administrator notify the Council of actions that may adversely impact 
EFH. Federal and state actions often follow specific timetables which 
may not coincide with Council meetings. Therefore, Councils should 
consider establishing abbreviated procedures for the development of 
Council recommendations.
    (b) Early involvement. Councils should provide comments and 
recommendations on proposed state and Federal actions of concern as 
early as practicable in project planning to ensure thorough 
consideration of Council concerns by the action agency. Copies of 
Council comments and recommendations should be provided to NMFS.
    (c) Anadromous fishery resources. For the purposes of the 
commenting 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 that inhabits waters under the Council's 
authority at some time during its life cycle.

[FR Doc. 97-33133 Filed 12-15-97; 4:58 pm]
BILLING CODE 3510-22-P