[Federal Register Volume 64, Number 76 (Wednesday, April 21, 1999)]
[Rules and Regulations]
[Pages 19503-19507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9990]
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DEPARTMENT OF COMMERCE
50 CFR Part 648
National Oceanic and Atmospheric Administration
[I.D. 111998B]
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery, Atlantic Sea Scallop Fishery, and Atlantic Salmon
Fishery; Fishery Management Plan (FMP) Amendments to Designate
Essential Fish Habitat (EFH), Atlantic Salmon Overfishing Definition,
and Aquaculture Framework Specification Process
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Approval of amendments to FMPs.
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SUMMARY: NMFS announces that the Secretary of Commerce (Secretary) has
approved Amendment 11 to the Northeast Multispecies FMP, Amendment 9 to
the Atlantic Sea Scallop FMP, and Amendment 1 to the Atlantic Salmon
FMP. These amendments were prepared by the New England Fishery
Management Council (NEFMC) to implement the requirements of section
303(a)(7) of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act). The amendments describe and identify EFH
for the specified fisheries, discuss measures to address the effects of
fishing on EFH, and identify other actions for the conservation and
enhancement of EFH. Atlantic Salmon Amendment 1 also discusses a
definition for overfishing and establishes an aquaculture framework
adjustment process for Atlantic salmon.
The amendments are included in an omnibus amendment that also
includes Amendment 1 to the Monkfish FMP prepared jointly by NEFMC and
the Mid-Atlantic Fishery Management Council (MAFMC). Because of
additional time required for coordination with MAFMC, the monkfish FMP
amendment is being considered for Secretarial approval in a separate
action. Finally, the omnibus amendment includes the EFH components of
the Atlantic Herring FMP that are being developed by the NEFMC. The EFH
information for Atlantic Herring will be incorporated by reference into
the Atlantic Herring FMP when that FMP is submitted for Secretarial
approval.
DATES: The amendments were approved on March 3, 1999.
ADDRESSES: Copies of the amendments and the Environmental Assessment
(EA) are available from the Executive Director, New England Fishery
Management Council, 5 Broadway, Saugus, MA 01906-1036.
FOR FURTHER INFORMATION CONTACT: Jonathan M. Kurland, Assistant Habitat
Program Coordinator, 978-281-9204 or [email protected].
SUPPLEMENTARY INFORMATION:
Background
The omnibus EFH amendment was prepared by NEFMC to satisfy the EFH
mandates of the Magnuson-Stevens Act. The omnibus amendment includes an
Environmental Assessment (EA), which describes the background, purpose
and need for the action, the management action alternatives, and the
environmental, social and economic impacts of the alternatives. A copy
of the EA can be obtained from the NEFMC (see ADDRESSES).
A notice of availability (NOA) for Amendment 11 to the Northeast
Multispecies FMP, Amendment 9 to the Atlantic Sea Scallop FMP, and
Amendment 1 to the Atlantic Salmon FMP was published on December 1,
1998 (63 FR 66110). The comment period ended on February 1, 1999. An
amendment to the NOA was issued on December 7, 1998 (63 FR 67450) to
clarify that Atlantic Salmon Amendment 1 also discusses an overfishing
definition and establishes a framework process to add or adjust
Atlantic salmon aquaculture management measures, if necessary, to meet
the goals and objectives of the Atlantic Salmon FMP. A second amendment
to the NOA, issued January 6, 1999 (64 FR 823), clarified that there
would be implementing regulations to allow for Atlantic salmon
aquaculture through a framework adjustment process. The proposed rule
for these regulations was published on February 5, 1999 (64 FR 5754).
The comment period closed on March 22, 1999.
The omnibus EFH amendment designates EFH in waters of the United
States for 14 species of groundfish, as
[[Page 19504]]
well as Atlantic sea scallops and Atlantic salmon. The omnibus
amendment designates Habitat Areas of Particular Concern (HAPC) for
Atlantic salmon and juvenile Atlantic cod in accordance with 50 CFR
600.815(a)(9). Although no new management measures are proposed for
these HAPC, the Atlantic cod HAPC would be protected from potential
adverse effects from fishing by maintaining the existing restrictions
on fishing for the region known as Closed Area II on Georges Bank,
pursuant to 50 CFR 648.81(b). In addition to the original rationale for
implementing Closed Area II in 1994 (reducing overfishing of severely
depleted groundfish stocks, as noted in the preamble to the emergency
interim rule published in the Federal Register 59 FR 63926, December
12, 1994), under the omnibus amendment these management measures would
be retained for habitat protection reasons.
In addition to the amendments for the Northeast Multispecies,
Atlantic Sea Scallops, and Atlantic Salmon FMPs, the omnibus amendment
also includes Amendment 1 to the Monkfish FMP and the EFH components of
the Atlantic Herring FMP that is being developed by NEFMC. Monkfish
Amendment 1 was submitted for Secretarial review under separate action
on January 22, 1999 (64 FR 3480), and the comment period closed on
March 23, 1999. The EFH information for herring will be incorporated by
reference into the Atlantic Herring FMP when that FMP is submitted for
Secretarial review, and an NOA will be published in the Federal
Register.
Amendment 1 to the Atlantic Salmon FMP also includes an aquaculture
framework process and information on an overfishing definition for
Atlantic salmon. The overfishing definition is based on the assumption
that the number of spawning salmon corresponding to maximum sustainable
yield is 54,000 (a proxy for Bmsy) and that fishing
mortality on the current stock of 200 fish should be zero. No biomass
threshold is given that describes when fishing mortality can be greater
than zero. However, overfishing is not occurring in this fishery since
fishing mortality in the exclusive economic zone has been reduced to
zero and is expected to stay at zero for the foreseeable future. NMFS
informed the Council that should the status of the resource change, it
would need to revisit the overfishing definition to clarify what level
of fishing mortality is appropriate to rebuild the resource to a
sustainable level. In the interim, the omnibus amendment is providing
maximum protection to conserve Atlantic salmon habitat and may offer
solutions to enhance Atlantic salmon spawning habitat.
Amendment 1 to the Atlantic Salmon FMP also contains an aquaculture
framework process to allow the Council to initiate action to implement,
add or adjust Atlantic salmon management measures, provided that such
an action is consistent with the goals and objectives of the Atlantic
Salmon FMP. The proposed rule to implement the aquaculture framework
process was published on February 5, 1999 (64 FR 5754). NMFS
anticipates that a final rule will be published within the next few
weeks.
NMFS determined that Amendment 11 to the Northeast Multispecies
FMP, Amendment 9 to the Atlantic Sea Scallop FMP, and Amendment 1 to
the Atlantic Salmon FMP are consistent with the Magnuson-Stevens Act
and other applicable laws, and approved these amendments on March 3,
1999. Additional information on this action is contained in the NOA
published on December 1, 1998 (63 FR 66110).
Upon initial consideration, it appeared that regulations to
implement the EFH provisions of the amendments were not required.
However, NMFS subsequently determined that implementing regulations are
required to add the framework specification process for designating EFH
and HAPC to existing regulations for the Northeast Multispecies FMP,
the Atlantic Sea Scallop FMP, and the Atlantic Salmon FMP. NMFS will
initiate these rulemaking actions in the near future.
Comments and Responses
Eight letters were received during the comment period, including
four from environmental organizations (two from the American Oceans
Campaign and one each from Marine Fish Conservation Network and
Conservation Law Foundation), two from the fishing industry (Cape Cod
Commercial Hook Fisherman's Association and Fisheries Survival Fund),
one from the U.S. Department of State, and a joint letter from Maine
Pulp and Paper Association and Maine Forest Products Council.
Comments on Identification and Description of EFH
Comment: One commenter stated that the EFH designations were overly
broad and exceeded the intent of Congress. The commenter cited specific
concerns about the designation for Atlantic salmon extending into state
waters, including inland rivers upstream of manmade barriers, which
will affect non-fishing interests and activities in adjacent upland
areas. Other commenters noted that the Council had done a good job at
using the precautionary approach to EFH identification.
Response: The Magnuson-Stevens Act defines EFH as those waters and
substrate necessary to fish for spawning, breeding, feeding, or growth
to maturity. Therefore, the geographic scope of EFH may be sufficiently
broad to encompass the biological requirements of the species. The
information that the Council used for EFH designation was primarily
species distribution and relative abundance data, which would be
classified as ``level 2'' information under the EFH regulations (50 CFR
600.815). Since the information available was not more specific (e.g.,
did not show species production by habitat type), the precautionary
approach prescribed by the regulations led to fairly broad EFH
designations. The EFH regulations at 50 CFR 600.10 interpret the
definition of EFH to include aquatic areas that are used by fish,
including historically used areas, where appropriate, to support a
sustainable fishery and the managed species' contribution to a healthy
ecosystem, provided that restoration is technologically and
economically feasible. The Council's EFH designation for Atlantic
salmon is consistent with these requirements.
Comment: An environmental organization commented that biological
attributes such as epiflora and epifauna should have been included in
the EFH text descriptions.
Response: The information that was available for EFH designation by
the Council consisted primarily of regional species abundance and
distribution. Although some species- specific information exists that
indicates species associations with more complex habitat such as that
including epiflora and/or epifauna, it is unclear whether or to what
degree these habitat attributes are actually essential.
Comment: One environmental organization commended the Council's
designating the HAPC for juvenile cod and its adding protection of EFH
as a reason for the basis of the current closure to fishing in the
area. Another environmental organization stated that HAPCs should be
designated for all species under management.
Response: The EFH regulations (50 CFR 600.815(a)(9)) suggest the
designation of HAPCs, which are defined as areas that are ecologically
important, sensitive to human-induced degradation, impacted by
development activities, or rare. It is conceivable that many areas of
Council-designated EFH could satisfy these criteria. The Council
[[Page 19505]]
has designated HAPCs for both juvenile cod and Atlantic salmon based on
readily available information and has committed in its strategic plan
to continue to evaluate further HAPC designations.
Comments on Impacts to EFH from Fishing Gear
The majority of comments from the environmental organizations and
one fishing industry association addressed the section of the
amendments that evaluated the impacts of fishing gears on EFH, and
measures to minimize any such impacts.
Comment: Two commenters stated that the amendments did not
adequately evaluate the impacts of fishing gear on EFH. The commenters
found that the evaluation of impacts in the amendments was cursory and
did not specifically evaluate the impacts of each fishing gear on each
type of EFH. One of the commenters pointed out that the Council did not
follow the recommendations of the NMFS EFH technical guidance in
addressing this topic and stated that a lack of sufficient detail in
the discussion of fishing gear impacts was an impediment to public
involvement, since it was difficult for the public to ascertain the
reasoning behind the conclusions. The commenter also identified that
cumulative impacts from fishing gears were not assessed.
Response: The Council approached the evaluation of impacts from
fishing gears methodically. It identified the major gears used in the
region based on landings; described the major gears; identified that
otter trawls and scallop dredges were the most likely to have adverse
impacts on habitat; appended a summary of the literature on fishing
gear impacts to habitat; and described other impacts from fishing
activities such as the impacts of fishing-related marine debris and
lost gear, impacts of aquaculture, and impacts of at-sea fish
processing. The Council also evaluated fisheries management measures
currently in place, and determined their impact on EFH. Finally, the
Council identified a number of areas that required further research in
order to provide a better basis for determining fishing gear impacts,
such as the spatial distribution and extent of fishing effort for gear
types; the effects of specific gear types along a gradient of effort on
specific habitat types; and recovery rates of various habitat types
following fishing activity. The information in the document could have
been presented in a more convenient manner (e.g., rather than the
fishing impacts summary being appended it could have been synthesized
into the document). This would have addressed the comment regarding the
need for a thorough discussion of the Council's deliberations on
fishing gear impacts, which is duly noted. However, based on the
information available, the Council satisfied the requirements of the
EFH regulations (50 CFR 600.815(a)(3)) regarding the assessment of
fishing gear impacts.
The Council was not required to implement the recommendations of
the draft NMFS EFH Technical Guidance (NMFS 1998); nor was it required
to address cumulative impacts, absent adequate information.
Comment: The majority of environmental organizations and one
fishing industry association stated that the amendments did not satisfy
the Magnuson-Stevens Act requirements to minimize impacts from fishing
gears to EFH, to the extent practicable, and the commenters thought
that the amendments should be disapproved, or section 4 of the document
should be disapproved. One commenter requested that the amendments be
disapproved, and/or that the Secretary prepare a separate EFH
amendment, or promulgate emergency regulations, or pursue negotiated
conservation and management measures. One of the commenters suggested
that the legal basis for existing management measures should be changed
to include protection of EFH, since the Council relied on these
measures to provide such protection. One commenter stated that the
Council did not request public input on this issue.
Response: The EFH regulations at 50 CFR 600.815(a)(3)(iv) require
that the Council consider a number of factors when evaluating whether
it is practicable to minimize an adverse effect from fishing. These
factors include (1) whether and to what extent the fishing activity is
adversely impacting EFH including the fishery; (2) the nature and
extent of the adverse effect on EFH; (3) whether management measures
are practicable, taking into consideration the long and short-term
costs and benefits to the fishery and its EFH; and (4) any other
appropriate factors.
In the amendments, the Council concludes and NMFS concurs that no
additional fishing restrictions to protect EFH are practicable at this
time. It bases this conclusion on a number of findings relative to the
factors outlined in the EFH regulations. The Council has determined
that otter trawls and scallop dredges are the New England fishery gear
types most likely to have an impact on EFH. The amendments cite an
appended document by Auster and Langton (1998), which describes the
impacts of such bottom tending mobile fishing gears on different
habitat types in general. Auster and Langton state that the direction
and type of impact of these gears can be determined; however,
information that is required for a complete analysis of impacts is
currently unavailable. The impact rate in relationship to the effort
for each gear type is required in order to evaluate the effects of
fishing on different habitat types. In order to determine these
relationships, effort- specific rates of impacts for different gear
types would need to be determined experimentally. Auster and Langton
also found that information on distribution of fishing effort is
lacking. Additionally, a detailed review of the habitat types and their
locations is necessary. These information needs are identified in the
amendments under the section of research needs. Without this
information, the Council is unable to perform a complete analysis of
fishing gear impacts.
In considering whether further management measures were practicable
based on impacts to the fishery and its EFH, the Council, first,
reviewed current and proposed fishery management measures that could
protect EFH and had already been established as ``practicable'' under
the Magnuson-Stevens Act. The Council found that many potential adverse
effects to EFH from fishing are already minimized because of some of
the current fishery management measures under the FMPs for the Atlantic
Sea Scallop Fishery and the Northeast Multispecies Fishery. Such
measures include Closed Areas I and II on Georges Bank (4,150 sq.
nautical miles), which prohibits all gear capable of taking groundfish
(including groundfish bottom trawls and scallop dredge gear), and the
Hudson Canyon South and Virginia Beach closed areas (2,300 sq. nautical
miles), which prohibit the use of scallop dredges. The Council also
found that other effort reduction measures, such as days-at-sea
allocations and vessel size/power limits, limit impacts to EFH as well.
Second, the Council determined that some management measures contained
in Amendment 7 to the Atlantic Sea Scallop FMP and Amendment 9 to the
Northeast Multispecies FMP, designed to fulfill requirements of the
Sustainable Fisheries Act, other than EFH, will also reduce adverse
impacts to EFH. These new measures include the prohibition of
streetsweeper gear and, beginning in year 2 of the Atlantic sea scallop
rebuilding plan, a reduction in sea scallop fishing effort by more than
50
[[Page 19506]]
percent. Third, the Council approved the designation of a HAPC for
juvenile Atlantic cod, and stated that the current Closed Area II
restrictions, pursuant to 50 CFR 648.81(b) will be maintained in the
HAPC portion, for habitat protection reasons. All of these current and
proposed measures are consistent with those identified in the EFH
regulations for controlling fishing gear impacts to EFH. The EFH
regulations at 50 CFR 600.815(a)(4) specifically list fishing equipment
restrictions, time/area closures, and harvest limits as methods to
control fishing gear impacts to EFH. In addition, the measures
currently in place and under review for other amendments under
development have been determined to be practicable for New England
fisheries, have addressed socio-economic impacts, including long and
short-term benefits to the fishery, and are consistent with the
national standards. Neither the Magnuson-Stevens Act, nor the EFH
regulations, require that fishing impacts be controlled by newly
proposed management measures.
The Council found that further information is necessary before it
can responsibly determine what additional practicable measures may be
necessary specifically for the protection of EFH from fishing impacts.
For example, information on the net effects of using one particular
gear design over another, as well as the effects of effort displacement
that may be associated with additional closed areas or reductions to
days-at-sea, is needed. To illustrate this point, the Council considers
that reductions to scallop or groundfish days-at-sea programs may have
the unintended effect of forcing fisheries to be concentrated in small
areas near shore, which may also be EFH. The Council points out that
any additional measures that might be imposed would likely be similar
to those measures currently in place to control fishing effort. In FMP
amendments and framework actions to address overfishing in the New
England region, fishing has already been substantially reduced. Any
additional EFH protection measures would impose additional socio-
economic impacts to an already stressed industry. In the amendments,
the Council determines that the uncertainty associated with the actual
benefits predicted from additional management measures designed to
mitigate habitat impacts impedes it from concluding that the additional
short- and long-term costs to the fishing industry associated with
those measures would be justifiable. Based on the fisheries management
measures proposed and in place that will serve to protect habitat, the
economically depressed status of the fisheries, and the Council's
expressed intent to continue to move forward on EFH conservation, the
amendments meet the requirement of the Act to minimize fishing gear
impacts on EFH to the extent practicable.
The Council added habitat protection as one of the reasons for the
current closure to the juvenile cod HAPC in Closed Area II; however,
the reasons for implementation of the other fishery management measures
that the Council found to protect EFH were not modified to include
habitat. Although this issue does not affect approvability of the
amendments, NMFS agrees with the comment that the Council should
identify habitat protection as a reason for any management measures it
has identified as providing for the protection of EFH. Council
acknowledgment of its intent to protect EFH with the fishery management
measures currently in place would clarify that the habitat benefits of
measures originally developed for other purposes should be considered
expressly whenever future management actions are contemplated. It is
noted that, under the Magnuson-Stevens Act, fishery management councils
are required to evaluate the impact of management measures on EFH,
regardless of the management measure's purpose.
The Council provided opportunity for public input on these
amendments as required by the Magnuson-Stevens Act.
Comment: One fishing industry group opposed the permanent closure
of any areas to scallop gear. One environmental organization opposed
access of scallop dredges or otter trawls to currently closed areas.
Response: Since the Council retains the ability to re-open any
closed area, any future closures could be reconsidered by the Council,
and would not in fact be ``permanent.'' Potential scallop fishery
access to existing closed areas is the subject of proposed Framework
Adjustment 11 to the Atlantic Sea Scallop FMP and Framework Adjustment
29 to the Northeast Multispecies FMP, and will be addressed during the
review of those actions.
Comment: One commenter suggested that all complex cobble-bottom
should be protected.
Response: Further research is needed to identify all areas of this
habitat type. Adoption of additional HAPCs in areas of cobble-bottom
through the framework adjustment provision is a vehicle for identifying
complex cobble-bottoms and/or other habitat types as particularly
important. The Council has identified the designation of additional
HAPCs as one of its objectives in the strategic plan portion of the
amendments.
Comments on Framework Provisions
Comment: A fishing industry organization opposed the framework
provision for designation of EFH, and stated that permanent closures
should be subjected to the process of an amendment.
Response: The framework adjustment process for EFH designation will
allow the Council to respond quickly when additional information
becomes available regarding important habitats that should be
classified as EFH while still allowing the opportunity for public
participation. Nevertheless, the Council could decide to invoke the
full amendment process if circumstances warranted. Moreover, the issue
of area closures as adjustments that may be made under the framework
procedures has already been addressed, and area closures have been
approved under the Multispecies FMP and Sea Scallop FMP as fishery
management measures that may be implemented under the framework
procedures.
Comments on EFH Consultations
Comment: A commenter suggested that the consultation and
conservation recommendation provisions of the Act will be burdensome
and unworkable, citing that every Federal and state action, including
all permitting actions that occur near coastal or inland waters, would
trigger an EFH consultation. The commenter also indicated concern that
the process would add little in the way of environmental benefit to
fish or EFH.
Response: The Magnuson-Stevens Act requires Federal action agencies
to consult with NMFS on activities that may adversely impact EFH. The
EFH consultation requirements will be consolidated with other existing
consultation and environmental review procedures wherever appropriate.
This approach will ensure that EFH consultations do not duplicate other
environmental reviews, yet still fulfill the statutory requirement for
Federal actions to consider potential effects on EFH.
Comments on Atlantic Salmon Amendment 1
Comment: The commenter is concerned with how EFH and HAPC
designations will impact ongoing salmon conservation efforts being
implemented by Maine.
Response: NMFS is committed to ensure that EFH consultations and
EFH
[[Page 19507]]
conservation recommendations in areas designated as EFH for Atlantic
salmon will complement the goals set by the Maine Atlantic Salmon
Conservation Plan. NMFS will be working closely with the State of Maine
and other interested parties on this issue.
Comments on Other Issues
Comment: One fishing industry group commented that continued
closure of HAPC will be a significant impact under the Regulatory
Flexibility Act.
Response: NMFS does not believe that supplementing the basis for
the current closure as a measure to protect juvenile cod HAPC and
continuing this closure as a part of Closed Area II have any bearing on
the Regulatory Flexibility Act because no additional regulatory impacts
occur.
Comment: A commenter suggested that the Council establish and
implement a plan for satisfying information needs with specific time
frames for when objectives will be met and when notice will be provided
to the public.
Response: The Council included a strategic plan in the amendments
that addresses the refinement of EFH designations, designation of
additional HAPCs, and improving understanding of fishing gear impacts,
among other things. Since the Council is not a research body, it cannot
schedule research activities to complement EFH conservation efforts.
However, in its plan, the Council has committed to annual reviews of
its EFH conservation program, which specifically includes
identification and incorporation of ongoing and future studies as the
results become available. Information on these efforts will be
available to the public through the Council process.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 14, 1999.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-9990 Filed 4-20-99; 8:45 am]
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