[Federal Register Volume 64, Number 79 (Monday, April 26, 1999)]
[Rules and Regulations]
[Pages 20216-20220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10408]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[I.D. 100698A]
RIN 0648-AL40


Fisheries of the Exclusive Economic Zone Off Alaska; Amendments 
for Addressing Essential Fish Habitat (EFH) Requirements

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

ACTION: Notification of approval of fishery management plan amendments.

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SUMMARY: NMFS announces approval of the following fishery management 
plan (FMP) amendments: Amendment 55 to the FMP for the Groundfish 
Fishery of the Bering Sea and Aleutian Islands Area; Amendment 55 to 
the FMP for Groundfish of the Gulf of Alaska; Amendment 8 to the FMP 
for the Commercial King and Tanner Crab Fisheries in the Bering Sea/
Aleutian Islands; Amendment 5 to the FMP for Scallop Fisheries off 
Alaska; and Amendment 5 to the FMP for the Salmon Fisheries in the 
Exclusive Economic Zone (EEZ) off the Coast of Alaska (Amendments 55/
55/8/5/5). These amendments describe and identify EFH in Alaska, and 
risks to that habitat, for groundfish, scallops, salmon, and king and 
Tanner crabs.
    Under the provisions of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act), Federal agencies must 
consult with NMFS, acting for the Secretary of Commerce (Secretary), on 
any activity, or proposed activity, authorized, funded, or undertaken, 
that may adversely affect EFH. This action is necessary to promote the 
protection and conservation of habitat used by FMP species at crucial 
stages of their life cycles. It is intended to promote the goals and 
objectives of these FMPs.

DATES: The amendments were approved on January 20, 1999.

ADDRESSES: Copies of Amendments 55/55/8/5/5 and the environmental 
assessment (EA) prepared for the amendments are available from the 
North Pacific Fishery Management Council, 605 West 4th Ave., 
Suite 306, Anchorage, AK 99501-2252; telephone 907-271-2809.

FOR FURTHER INFORMATION CONTACT: Cindy Hartmann, 907-586-7312, or Nina 
Mollett, 907-586-7492.

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
of the Bering Sea and Aleutian Islands Management Area (BSAI) and the 
Gulf of Alaska under the FMPs for groundfish in their respective 
management areas. With Federal oversight, the State of Alaska (State) 
manages the commercial king crab and Tanner crab fisheries in the BSAI, 
and the scallop and salmon fisheries off Alaska, under the FMPs for 
those fisheries. The North Pacific Fishery Management Council (Council) 
prepared these FMPs in accordance with the Magnuson-Stevens Act. 
Regulations implementing the FMPs appear at 50 CFR part 679. General 
regulations at 50 CFR part 600 also apply.
    The following EFH reports, which are referenced in the amendments, 
are also available from the Council (see Addresses):
    1. Essential Fish Habitat Report for the Groundfish Resources of 
the Bering Sea and Aleutian Islands, April 1, 1998.
    2. Essential Fish Habitat Report for the Groundfish Resources of 
the Gulf of Alaska Region, April 1, 1998.
    3. Essential Fish Habitat Report for the King and Tanner Crab 
Fisheries in the Bering Sea/Aleutian Islands, March 31, 1998.
    4. Essential Fish Habitat Report for the Salmon Fisheries in the 
EEZ off the Coast of Alaska, March 31, 1998.
    5. Essential Fish Habitat Report for the Scallop Fisheries off the 
Coast of Alaska, March 31, 1998.
    A Notice of Availability (NOA) of Amendments 55/55/8/5/5, which 
described the proposed action and solicited comments from the public 
through December 21, 1998, was published in the Federal Register on 
October 22, 1998 (63 FR 56601). Eleven letters were received within the 
60-day comment period. They are summarized and responded to here.
    After review of the amendments and comments received, the 
Administrator, Alaska Region, NMFS (Regional Administrator), determined 
that Amendments 55/55/8/5/5 are consistent with the Magnuson-Stevens 
Act and other applicable laws and approved the amendments on January 
20, 1999. These FMP amendments became effective on approval. No 
regulatory changes are necessary to implement these FMP amendments.

Background

    The Magnuson-Stevens Act mandates increased consideration of fish 
habitat in the process of managing and conserving the Nation's 
fisheries. Section 303(a)(7) of the Magnuson-Stevens Act requires all 
FMPs to describe and identify EFH, which it defines as ``those waters 
and substrate necessary to fish for spawning, breeding, feeding or 
growth to maturity.'' In addition, FMPs must minimize adverse effects 
on EFH caused by fishing and identify other actions to conserve and 
enhance EFH.
    As required by section 305(b) of the Magnuson-Stevens Act, NMFS 
published regulatory guidelines on December 19, 1997 (62 FR 66531, 
codified at 50 CFR part 600), to assist regional fishery management 
councils in their task of describing and identifying EFH, identifying 
adverse impacts on EFH, and identifying actions to conserve and enhance 
EFH. In accordance with these procedural guidelines, the Regional 
Administrator submitted draft EFH recommendations to the Council on 
April 3, 1998, for review and public comment. These draft 
recommendations were based on habitat assessment reports drafted by 
four technical teams, consisting of Federal and State biologists, 
working in cooperation with the Alaska Regional EFH Core Team, whose 
members were appointed by the NMFS Deputy Regional Administrator. NMFS 
submitted its final recommendations for the EFH amendments at the 
Council's June 1998 meeting. The Council adopted the recommended EFH 
amendments at that time. The Council submitted the amendments for 
Secretarial review on October 5, 1998. NMFS published an NOA for 
Amendments 55/55/8/5/5 on October 22, 1998 (63 FR 56601). The contents 
of the amendments were provided in the NOA and will not be repeated 
here. On January 20, 1999, the

[[Page 20217]]

Regional Administrator approved the five amendments.

EFH Consultation Requirements for Federal Agencies

    Section 305(b)(2) of the Magnuson-Stevens Act requires each Federal 
agency to consult with the Secretary with respect to any action it has 
authorized, funded, or undertaken, or proposed to be authorized, 
funded, or undertaken, that may adversely affect any EFH identified 
under the Magnuson-Stevens Act. On December 19, 1997 (62 FR 66531), 
NMFS established procedures under 50 CFR part 600, subpart K, for 
implementing the requirements of the Magnuson-Stevens Act for other 
agencies to coordinate and consult with NMFS, and to consider NMFS' 
recommendations for EFH conservation.
    Effective January 20, 1999, Federal agencies must consult with the 
Secretary with respect to actions that may adversely affect EFH 
identified and described in Amendments 55/55/8/5/5. NMFS must provide 
conservation and enhancement recommendations on any action that would 
adversely affect EFH, and the Federal action agency must provide a 
detailed, written response to NMFS within 30 days of receiving the EFH 
recommendations.

Response to Comments

    Eleven letters were received on Amendments 55/55/8/5/5 during the 
60-day comment period ending December 21, 1998. Six letters were from 
non-fishing industry groups, three were from environmental 
organizations, one was from the State, and one was from the U.S. Coast 
Guard.
    Comment 1. The scope of the EFH definition is too broad. Specific 
features should be identified for EFH designation. Instead, the 
definition in the amendments encompasses nearly all existing and 
potential fresh and saltwater habitat within and offshore Alaska. It 
includes all Alaska coastal and inland river, stream, and lake systems 
in which any of the five salmon species has been documented to occur.
    Because the EFH area is so large, NMFS may not be able to 
adequately review and provide conservation recommendations on all 
Federal and State actions that might adversely affect EFH. The failure 
to rank or prioritize ``truly essential'' habitat areas is the logical 
equivalent of concluding that no habitat is essential.
    According to one comment, the broadness of the definitions could 
invite third party lawsuits by ``radical environmentalist groups.''
    Response: NMFS recommended a broad definition of EFH to the 
Council, and most of the other NMFS regions arrived at similar 
definitions. These definitions are consistent with a conservative 
approach to managing the fishery. NMFS considered the alternative of 
using known concentrations to define EFH for species' life stages for 
which Level 2 or higher information is available. At Level 2, 
quantitative data are available for the habitats occupied by a species 
or life history stage. This alternative was rejected, as explained in 
NMFS' Final Recommendations to the Council (May 11, 1998), for the 
following reasons:
    1. Areas of known concentrations, based on current information, do 
not adequately address unpredictable annual differences in spatial 
distributions of a life stage, nor changes due to long-term shifts in 
oceanic regimes.
    2. All habitats occupied by a species contribute to production at 
some level. Although contributions from individual locations may be 
small, collectively they can account for a significant part of total 
production. For example, fisheries for coho and pink salmon depend on 
the cumulative production from thousands of streams that are widely 
distributed across coastal Alaska.
    3. A stock's long-term productivity is based on high and low levels 
of abundance. A broad range and diversity must be conserved to provide 
for periods of abundance, and to avoid severely reduced production 
during poor years. For example, high concentrations of rock sole were 
found in only two discrete areas of the southeastern Bering Sea during 
the early 1980s, but were found throughout regions with 100-m water 
depth during the mid-1990s, a period of much higher abundance.
    4. The advice in the NMFS guidelines is to use the best scientific 
information available in a risk-averse fashion, employing an ecosystem 
approach. This suggests that, unless the information indicates 
otherwise, the more inclusive general distribution should be used to 
designate EFH. Observed concentrations do not necessarily reflect all 
the habitat required to maintain healthy stocks within the ecosystem.
    From a scientific perspective, identifying areas outside of a known 
concentration as non-essential for maintaining healthy production 
levels would require extensive knowledge of habitat-related linkages to 
productivity and the ecosystem. Based on such knowledge, making a 
determination that portions of habitat encompassed by a general 
distribution definition are non-essential might be possible. However, 
NMFS does not have the information to make such a determination at this 
time.
    5. In the case of juvenile and adult life stages of salmon in 
marine waters, scientists, through research and observation, have 
determined that salmon are distributed over a large expanse of the 
Pacific Ocean, Gulf of Alaska, Bering Sea, and Chukchi Sea, from the 
shoreline to beyond the limit of the U.S. EEZ. The fish actually 
require a much larger area than earlier had been expected. They require 
a broad geographical distribution of habitat to obtain the prey species 
needed for their growth, and to obtain the diversity necessary so that 
they can withstand changing environmental conditions.
    NMFS disagrees that it will not be able to afford habitat 
protection with this broad definition and that it will not be able to 
adequately review and provide conservation recommendations on Federal 
and State agency actions. The process of providing such review will be 
incorporated into existing processes whenever possible, and will ensure 
that concerns are raised when an action is proposed that may have 
adverse impacts on EFH.
    Comment 2. No basis exists in the Magnuson-Stevens Act for 
addressing habitat outside the EEZ regulatory authority of the Council 
(extending 3-200 nautical miles from shore), and therefore the EFH 
amendments exceed the scope of the Magnuson-Stevens Act.
    Response: The Magnuson-Stevens Act requires the regional fishery 
management councils to describe and identify EFH based on all life 
stages of the species managed in their FMPs, with no limitations placed 
on the geographic location of EFH. Since provisions in statutes are not 
presumed to apply extraterritorially, NMFS has determined that waters 
beyond the U.S. EEZ are not to be identified as EFH. None of the Alaska 
EFH FMPs extend EFH seaward of the EEZ.
    EFH may be in State and/or Federal waters, depending on a species' 
biological requirements. Identifying coastal and inland State waters as 
EFH authorizes NMFS to consult on actions that may adversely affect 
EFH, and to provide conservation recommendations. The description and 
identification of EFH in State waters does not authorize NMFS to 
regulate activities in these areas. The Magnuson-Stevens Act requires 
NMFS to work closely with other agencies and groups to ensure the 
conservation and enhancement of EFH in State and Federal waters.
    Comment 3: No basis exists in the Magnuson-Stevens Act for the 
regional fishery management councils to address

[[Page 20218]]

non-fishing interests. The 1996 amendments to the Magnuson-Stevens Act 
do not authorize the promulgation of standards and regulations that 
affect non-fishing entities. The amendments exceed the authority of the 
Magnuson-Stevens Act by affecting resource management disciplines for 
which Council members do not have the required expertise. The affected 
industries have no representation on the Council.
    Response: One of the stated purposes of the 1996 amendments to 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 EFH, or have the potential to affect it (16 
U.S.C. 1801(b)(7)). The Magnuson-Stevens Act does not limit review of 
projects to fishing activities, but also includes non-fishing 
activities. Additional evidence of the intent of the Magnuson-Stevens 
Act to include non-fishing activities is in 16 U.S.C. 1855(b)(3), which 
states that councils may comment on and make recommendations to the 
Secretary and to any Federal or state agency concerning any activity 
authorized or proposed that may affect the habitat of a fishery 
resource under the council's authority.
    Furthermore, the Magnuson-Stevens Act requires that councils 
identify, in their FMPs, potential adverse impacts to EFH and measures 
that will encourage the conservation and enhancement of EFH. Amendments 
55/55/8/5/5, in compliance with the Magnuson-Stevens Act, identify both 
fishing and non-fishing activities that may adversely affect EFH for 
those species.
    The regulatory relationship of NMFS to non-fishing interests is not 
the same as it is to fishing interests. NMFS regulates fishing 
activities in the EEZ, whereas EFH recommendations to a Federal agency 
on its non-fishing activities are advisory. Amendments 55/55/8/5/5 do 
not authorize NMFS or the Council to regulate non-fishing activities. 
The amendments identify and describe EFH for FMP-managed species, and 
Federal agencies are required to consult with NMFS on activities that 
may adversely affect EFH for those species. If the Secretary makes EFH 
conservation recommendations concerning an action that has been 
determined as likely to cause adverse impacts to EFH, the responsible 
Federal agency is required to consider the recommendations and respond 
in writing within 30 days of receiving them.
    NMFS does not anticipate that approval of Amendments 55/55/8/5/5 
will substantively alter NMFS' interactions with other Federal 
agencies. NMFS currently provides comments and conservation 
recommendations for non-fishing activities under various legislative 
mandates, including the Rivers and Harbors Act, the Clean Water Act, 
the National Environmental Policy Act (NEPA), the National Fish and 
Wildlife Coordination Act, the Federal Power Act, and others.
    In response to the comment about Council expertise to handle EFH 
requirements under the Magnuson-Stevens Act, councils may comment on 
and make recommendations to the Secretary and any Federal or state 
agency on any activity that is, or is proposed to be, authorized, 
funded, or undertaken that, in the view of the Council, may affect EFH 
of a managed species. The Secretary appoints members of regional 
councils, including the North Pacific Fishery Management Council, on 
the basis of their expertise and knowledge of the fishery resources of 
their geographic area. The current structure of the councils is 
sufficient to meet the EFH consultation requirements of the Magnuson-
Stevens Act. The Council and its staff have the requisite expertise to 
judge whether an action may have adverse impacts on EFH and to make 
recommendations regarding those impacts.
    Comment 4. The amendments do not go far enough in meeting the EFH 
requirements of the Magnuson-Stevens Act in that they fail to 
adequately analyze adverse effects from fishing, fail to devise 
adequate conservation measures to minimize such effects, and fail to 
undertake an adequate cumulative impacts analysis. Additionally, 
specific habitat areas of particular concern (HAPCs) should have been 
identified. NMFS and the Council stopped too soon by broadly listing 
types of HAPCs, but not by identifying specific places where these 
types of habitats exist. Because of these failings, the relevant 
portions of the amendments should be disapproved.
    Response: NMFS has determined that these amendments meet statutory 
and regulatory requirements for incorporating information identifying 
EFH and potential adverse effects on EFH from fishing activities. NMFS 
agrees that impacts from fishing, measures to mitigate adverse impacts 
from fishing, and determining cumulative impacts to EFH are all 
important components of the amendments. These components will be 
expanded in future amendments to incorporate new information as it 
becomes available.
    NMFS disagrees that parts of the amendments should be disapproved 
while further analysis is conducted and further mitigation measures 
developed. The amendments meet the EFH requirements, and by adopting 
them now, NMFS can address environmental concerns sooner than a partial 
approval would allow. NMFS and the Council have collated existing 
information, identified data gaps, and laid the groundwork for an 
ongoing process of further research. As further research is completed, 
the Council and NMFS will amend the FMPs to reflect new information, 
and it will be possible to undertake a more complex cumulative impacts 
analysis.
    NMFS has recommended to the Council that the subject FMP amendments 
be considered a starting point, not an endpoint. Research on the 
effects of different kinds of fishing gear, mapping to better identify 
sensitive habitat, and additional analysis of cumulative impacts should 
be continued and strengthened, along with development of measures to 
mitigate harmful effects on habitat.
    The FMPs have already set into motion the process of ensuring that 
understanding and protection of EFH will continue. The FMPs now require 
that (1) the annual review of existing and new EFH information be 
conducted during the annual Stock Assessment and Fishery Evaluation 
Report, (2) the Council utilize its annual FMP amendment cycle to 
solicit proposals on HAPCs and/or conservation and enhancement measures 
to minimize potential impacts from fishing, and (3) a complete review 
of all EFH components of each FMP be conducted once every 5 years.
    NMFS will continue to work with the Council, as budget and staffing 
constraints allow, to identify HAPCs, and to further refine the 
criteria for identification of sites (see the EA, section 11.2). In the 
summer of 1998, the Council sought public proposals for HAPCs. The 
Council received six proposals, and the Council has requested technical 
support from NMFS to analyze some of them. The scientific fieldwork 
necessary to support HAPC designations cannot be conducted 
instantaneously; it will require a period of years. That is why NMFS 
developed criteria for identifying HAPCs, rather than attempting at 
this time, with insufficient information, to specify them 
geographically.
    Comment 5: The EA is inconsistent with national standard 2 of the 
Magnuson-Stevens Act, which requires that conservation and management 
measures be based upon the best

[[Page 20219]]

scientific information available. The EFH amendments do not take into 
account the requirements of the Alaska Forest Resources and Practices 
Act and other protective laws and measures that must be followed by 
developers. The EA does not appear to recognize recent research and 
literature documenting the effectiveness of such practices.
    In particular, Amendment 5 to the salmon FMP identifies all 
resource development projects, large and small, as ``non-fishing 
related activities that may adversely affect EFH'' and as ``non-fishing 
threats to EFH.'' However, none of the references provided in support 
of identification of potential non-fishing threats to salmon EFH is 
less than 10 years old.
    Regarding Amendments 55 and 55 to the two groundfish FMPs, 
commentors assert that current protective management practices are 
ignored in reaching conclusions regarding potential adverse effects on 
EFH. Such activities as timber harvests and impoundments are identified 
as potential threats to EFH for marine species such as groundfish, 
which do not use freshwater or estuary habitat. Again, few of the 
references listed as support for these generic conclusions are less 
than 10 years old.
    Response: Scientists from NMFS's Alaska Fisheries Science Center 
were included in the development of the EFH amendments, and the 
description and identification of EFH is based on their knowledge of 
the current available science. Some of these NMFS scientists are noted 
for their expertise on logging issues and have been primary authors on 
research that led to the adoption of current forest practices 
legislation in Alaska. They are aware of current forest practices 
statutes and standards, including the Alaska Forest Resources and 
Practices Act and the Tongass Timber Reform Act, and they used this 
knowledge in identifying non-fishing activities that may affect EFH and 
in identifying conservation and enhancement measures.
    Potential threats to habitat exist even with current forest 
management practices. The absence of some current literature citations 
in the EA and the salmon EFH amendment language may have been an 
oversight. However, including those citations would not affect the 
amendments' identification and description of EFH and the potential 
threats to it. The substantive information from that literature was 
considered in the development and approval of Amendments 55/55/8/5/5, 
and their omission from the list of cited literature is not sufficient 
grounds for disapproval of the amendments.
    NMFS disagrees with the comment that groundfish do not use 
freshwater or estuarine habitat. Marine species such as eulachon, 
capelin, herring, sandlance, crab, sablefish, juvenile rockfish, 
Pacific cod, and English sole utilize freshwater and/or estuarine 
habitat during some part of their life cycles. Upland development 
activities may impact EFH for these species, and identifying such 
potential threats in the groundfish and crab FMPs is, therefore, 
relevant.
    NMFS views the identification and description of EFH and the 
development of measures to safeguard it as an evolving process, and 
will continue to use the best available science to make improvements in 
the EFH amendments to the FMPs. To that end, the FMPs will be updated 
to include any important citations that may have been inadvertently 
omitted. Information on current industry standards and practices, such 
as those required by the Alaska Forest Resources and Practices Act, 
will be more explicitly incorporated into the non-fishing threats 
sections of the FMPs.
    Comment 6: The EA is inconsistent with national standard 7 of the 
Magnuson-Stevens Act, which requires that conservation and management 
measures, where practicable, minimize costs and avoid unnecessary 
duplication. The inter-agency consultations required for activities 
that might affect EFH add a redundant layer of bureaucracy to the 
regulatory process with which non-fishing industries must already 
comply. The process will be cumbersome and unworkable, and unnecessary 
costs will accrue to a huge range of non-fishing entities. One letter 
stated, ``This creates yet another program that, as best we can tell, 
adds nothing and duplicates other Federal and State programs all 
designated to protect habitat and water quality.''
    Response: Because the EA is an analytical document prepared under 
NEPA, it does not have to be consistent with national standard 7 of the 
Magnuson-Stevens Act. NMFS has determined that the EFH amendments are 
consistent with the Magnuson-Stevens Act, including national standard 
7. Inter-agency consultations on Federal or State activities that may 
adversely affect EFH are required by the Magnuson-Stevens Act; they are 
not an optional aspect of the EFH amendments for any of the eight 
regional fishery management councils. Section 305(b)(2) of the 
Magnuson-Stevens Act states: ``Each Federal agency shall consult with 
the Secretary with respect to any action authorized, funded, or 
undertaken, or proposed to be authorized, funded, or undertaken, by 
such agency that may adversely affect any essential fish habitat 
identified under this Act.''
    Existing Federal statues, such as the Fish and Wildlife 
Coordination Act, the Endangered Species Act, and NEPA, already require 
consultation or coordination between NMFS and other Federal agencies. 
The EFH consultations will not be duplicative, as they will be subsumed 
to the greatest extent possible under an existing review process and 
within existing process time frames. The regulatory guidelines at 50 
CFR part 600 suggest that NMFS be consulted as early as possible in 
project planning so that appropriate conservation measures can minimize 
the potential for adverse effects to EFH. The EFH amendments contain 
conservation recommendations that are appropriate for many Federal 
actions, and they can also serve as guidelines that should be 
considered during project planning.
    NMFS does not agree that the EFH requirements merely add redundancy 
to an already overburdened regulatory system. The Sustainable Fisheries 
Act of 1996, amending the Magnuson-Stevens Act, was adopted after years 
of public criticism that the Federal Government was failing in its 
responsibility to adequately protect the Nation's fishery resources 
from unacceptable stock decreases due to overfishing and habitat 
degradation. The EFH requirements were meant to address the second of 
those concerns.
    Comment 7: The EFH amendments fail to meet NEPA and Regulatory 
Flexibility Act (RFA) requirements. The EA is inadequate as a NEPA 
document, as it contains the unsupported conclusion that modification 
or relocation of non-fishing activities may result in short-term costs 
to users, but will result in long-term benefits to the economy. The 
assertion in the EA that the action proposed ``is simply to describe 
and identify EFH for FMP species, which in and of itself will have no 
economic impact,'' is erroneous. The costly and delay-generating EFH 
consultation process will have significant socioeconomic, physical, and 
biological effects, which must be addressed in order to comply with 
NEPA. The effects on the human environment of the pervasive and 
cumbersome EFH program reflected in the proposed amendments are 
potentially huge and should be addressed in an Environmental Impact 
Statement.
    Furthermore, the amendments do not incorporate any analysis of 
impacts on small entities and are not in compliance with the RFA and 
applicable executive orders.

[[Page 20220]]

    Response: The analytical requirements of the RFA apply only to 
regulatory actions for which notice and comment rulemaking is required 
under the Administrative Procedure Act or other statute. If the action 
does not require notice and comment rulemaking, no further analysis is 
needed. Because there was no requirement for a proposed rule to 
implement Amendments 55/55/8/5/5, the analytical requirements of the 
RFA did not apply. During the EFH consultation process, NMFS will 
provide EFH conservation recommendations to other Federal or State 
agencies. The action agency will consider the recommendations in its 
decision making process and then decide whether it will impose any 
requirements on the entity seeking a permit or license. That is the 
point at which the action agency might be required to prepare an RFA 
analysis.
    NMFS disagrees with the comment concerning the adequacy of the EA 
prepared for the EFH amendments. As stated in the EA, the EFH FMP 
amendments describe and identify EFH for all FMP-managed species off 
Alaska and include discussions of impacts on EFH from fishing and non-
fishing activities, EFH research and information needs, and review and 
revision schedules for EFH components of the FMPs. These discussions, 
as approved, will be incorporated into the five Alaska FMPs. The EFH 
FMP provisions that were approved have no regulatory effect on fishing 
or non-fishing interests. A Finding of No Significant Impact for the 
EFH amendments is appropriate.
    NMFS also disagrees with the commenter's predictions of costly 
delays. As previously mentioned in the response to Comment 6, EFH 
consultations will in most cases be combined with existing 
consultations that are required by NEPA and by other laws. NMFS 
recognizes that changes to a Federal action agency's proposal as a 
result of an EFH recommendation may generate costs or require 
additional analyses under such applicable Federal laws as NEPA or the 
RFA. However, the coordination, consultation, and recommendation 
process itself will not automatically impose additional restrictions, 
because NMFS' EFH conservation recommendations are not mandatory, and 
because NMFS has no authority to stop a project based on adverse 
effects on EFH.
    Comment 8: The amendments include no apparent meaningful threshold 
of significance or way of gauging the likelihood of adverse effect on 
EFH, which would enable the Council, NMFS, and non-fishing entities to 
focus on activities with the potential for substantial harm to Council-
managed fisheries. Blanket presumptions subject all types of coastal 
and inland developments or land use activities to cumbersome EFH 
consultations.
    Response: ``Adverse effects,'' as defined at Sec. 600.810 of this 
title, means any impact which reduces the quality and/or quantity of 
EFH. Adverse effects may include, for example, direct effects through 
contamination or physical disruption, indirect effects such as loss of 
prey or reduction in species fecundity, and site-specific or habitat-
wide impacts, including individual, cumulative, or synergistic 
consequences of actions. Only actions which have a reasonably 
foreseeable adverse effect require consultation. Thus, NMFS must 
comment on Federal or State actions that take place within riparian 
areas or hydrological basins only if they have a reasonably foreseeable 
impact on EFH. Furthermore, the regulations provide for streamlined 
consultation procedures, such as general concurrences and abbreviated 
consultations, that may be used when the activities at issue do not 
have the potential to cause substantial adverse effects on EFH.
    Comment 9: NMFS should not finalize these amendments until the 
interim final rule is finalized. Amending FMPs to incorporate EFH in 
advance of that action would require redoing the process later, and 
would likely lead only to further disagreement and confusion in the 
meantime.
    Response: The interim final rule has the effect of a final rule. As 
mentioned in the response to Comment 4, Amendments 55/55/8/5/5 all 
require periodic reviews of new and existing EFH information. Any 
updates necessary after the rule is finalized can be accomplished 
through this review process.
    Comment 10: The State expressed ``guarded support'' of the 
amendments, but was concerned about the lack of information about the 
scope and mechanics of EFH coordination and consultations.
    Response: NMFS has held meetings with representatives of several 
State agencies to work out procedures for coordination on EFH 
consultations, and will continue to schedule meetings as needed.
    Comment 11: The U.S. Coast Guard commented that it will evaluate 
its activities for possible impacts once HAPCs are identified.
    Response: NMFS will provide the U.S. Coast Guard with technical 
guidance on EFH consultation procedures.
    Comment 12: NMFS is to be commended for tackling a difficult task 
by compiling and organizing the information contained in the 
amendments. The commentors support the goal of conserving and enhancing 
essential fish habitat, and were generally complimentary in terms of 
the hard work that went into the development of the EFH FMPs despite 
reservations covered in preceding comments and responses.
    Response: NMFS appreciates constituent support in this important 
and challenging endeavor, and looks forward to working with all parties 
to make improvements.
    Comment 13: The requirement in the NOA that comments be received by 
NMFS by the end of the comment period, and not simply postmarked by 
then, is unfair.
    Response: NMFS understands that the EFH amendments and EA were 
lengthy and may have been difficult to review thoroughly within the 60-
day comment period. In accordance with the Magnuson-Stevens Act 
requirements at section 304(a), NMFS must affirmatively approve, 
disapprove, or partially approve an FMP or FMP amendment within 30 days 
of the end of a comment period. NMFS typically needs the full 30 days 
to review public comments received and to complete the internal review 
and decision making process, particularly when the FMP or FMP amendment 
is complex and lengthy, as was the case with Amendments 55/55/8/5/5. 
NMFS asks that comments be received by the end of the comment period, 
so that they can be reviewed and considered during the decision making 
process.

    Dated: April 20, 1999.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-10408 Filed 4-23-99; 8:45 am]
BILLING CODE 3510-22-F