[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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