[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
[[Page 66532]]
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