[Federal Register Volume 64, Number 117 (Friday, June 18, 1999)]
[Rules and Regulations]
[Pages 32825-32827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15535]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[I.D. 011399A]


Fisheries of the Northeastern United States; Northeast Monkfish 
Fishery; Amendment 1 to the Monkfish Fishery Management Plan (FMP) to 
Designate Essential Fish Habitat (EFH) for Monkfish

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

ACTION: Approval of Amendment 1 to the Monkfish FMP.

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SUMMARY: NMFS announces that the Secretary of Commerce (Secretary) has 
approved Amendment 1 to the Monkfish FMP. This amendment was prepared 
jointly by the New England Fishery Management Council (NEFMC) and the 
Mid-Atlantic Fishery Management Council (MAFMC). This amendment 
implements the requirements of section 303(a)(7) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
The amendment describes and identifies EFH for the monkfish fishery, 
discusses measures to address the effects of fishing on EFH, and 
identifies other actions for the conservation and enhancement of EFH.

DATES: Amendment 1 to the Monkfish FMP was approved on April 22, 1999.

ADDRESSES: Copies of the amendment 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: Peter Colosi, Chief, Habitat 
Conservation Division, 978-281-9332 or [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Amendment 1 to the Monkfish FMP is part of an omnibus amendment for 
EFH, which also includes Amendment 11 to the Northeast Multispecies 
FMP, Amendment 9 to the Atlantic Sea Scallop FMP, and Amendment 1 to 
the Atlantic Salmon FMP. Because of the additional time required for 
coordination with MAFMC, the monkfish FMP amendment was considered for 
Secretarial approval in an action separate from these other amendments, 
which were approved on March 3, 1999. The omnibus amendment also 
includes the EFH components of the Atlantic Herring FMP that is 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. An EA is also included with 
the Monkfish Amendment 1.
    Monkfish Amendment 1 was prepared by the NEFMC and MAFMC to satisfy 
the EFH mandates of the Magnuson-Stevens Act. The amendment designates 
EFH in waters of the United States for monkfish. Public comments were 
invited on Monkfish Amendment 1 from January 22, 1999 (64 FR 3480), 
through March 23, 1999. NMFS has determined that the amendment is 
consistent with the Magnuson-Stevens Act and other applicable laws, and 
approved it on April 22, 1999. Additional information on this action is 
contained in the January 22, 1999, Notice of Availability (64 FR 3480).
    Upon initial consideration, it appeared that regulations to 
implement the amendment were not required. However, further 
consideration identified that implementing regulations are required to 
codify the framework specifications for designating EFH and Habitat 
Area of Particular Concern for the Monkfish FMP. A rulemaking to 
promulgate these regulations will be initiated in the near future.

Comments and Responses

    Two letters were received during the comment period.
    Comment 1: One commenter provided extensive comments on technical 
aspects of the amendment's discussion of potential impacts to EFH from 
oil, gas, and mineral extraction, and the recommended conservation and 
enhancement measures dealing with these activities.
    Response: NMFS appreciates the detailed comments that were 
provided, and has forwarded them to the Councils for future reference.
    Comment 2: Another commenter considered the amendment to be overly 
broad and exceeding the intent of Congress. The commenter specifically 
cited the breadth of EFH designation, noting that EFH appeared to be 
designated over the range of the species, and in estuarine waters. The 
commenter stated that the Councils' methodology for designating EFH 
based on the highest relative density of monkfish was arbitrary.
    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 must be 
sufficiently broad to encompass the biological requirements of the 
species. The information that the Councils 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 approach 
prescribed by the regulations led to fairly broad EFH designations. The 
EFH regulations at 50 CFR 600.10 interpret the statutory 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 Councils' EFH designation is consistent with these requirements. 
EFH for monkfish was not designated in estuarine waters.
    The specific methodology used by the Councils for designating EFH 
was based on the highest relative density of monkfish. This methodology 
was developed by scientists at the NMFS Northeast Fisheries Science 
Center, and is supported by scientific research and ecological concepts 
that show that the distribution and abundance of a species or stock are 
determined by physical and biological variables. The abundance of a 
species is higher where conditions are more favorable, and this tends 
to occur near the center of a species' range. As population abundance 
fluctuates, the area occupied changes. At low levels of abundance, 
populations are expected to occupy the habitat that maximizes their 
survival, growth, and reproduction. As population abundance increases, 
individuals move into other available habitats. NMFS and the Council 
have developed a management regime designed to increase the population 
of monkfish. The broad EFH designation for monkfish is intended to 
include habitat essential for the species' long-term well-being.
    Comment 3: A commenter stated that the conservation and enhancement 
recommendations for non-fishing impacts to EFH that are provided in the 
amendment are not based on the best available science, nor sufficiently 
supported. The commenter contends that the recommended measures do not 
take into consideration current practices, and are likely to be in 
conflict with measures being pursued under

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other regulatory programs. The commenter also stated that the Magnuson-
Stevens Act did not empower the Councils to address non-fishing 
activities.
    Response: NMFS disagrees that the conservation and enhancement 
recommendations for non-fishing impacts to EFH are not based on the 
best available science. The information presented in this section of 
the amendment is well researched and substantiated by the best 
available information. Moreover, the commenter did not provide examples 
of specific information not considered by the Councils.
    Conservation and enhancement recommendations for non-fishing 
industries were included to satisfy the requirements of section 
303(a)(7) of the Magnuson-Stevens Act to ``identify other actions to 
encourage the conservation and enhancement of [EFH].'' This information 
is provided to assist non-fishing industries in avoiding impacts to 
EFH. The recommendations are neither posed as, nor meant to be, binding 
in nature. It is up to the discretion of the non-fishing industries and 
relevant regulatory agencies whether these recommendations are 
implemented.
    Additionally, under section 305(b) of the Magnuson-Stevens Act, 
NMFS is required and the Councils are authorized to make conservation 
recommendations to any Federal or state agency regarding any activity 
that would adversely affect EFH. Moreover, Federal agencies are 
required to respond to these recommendations in writing.
    Comment 4: A commenter stated that the amendment contains no 
meaningful threshold of significance or likelihood of adverse effect on 
habitat for non-fishing impacts. The commenter suggested that the 
consultation and conservation recommendation provisions of the 
Magnuson-Stevens Act will be burdensome and unworkable. The commenter 
also contended that the consultation procedures will be redundant with 
the National Environmental Policy Act (NEPA), costly, and time 
consuming.
    Response: The Magnuson-Stevens Act requires Federal action agencies 
to consult with NMFS on activities that may adversely affect EFH. 
Adverse effects, as defined at 50 CFR 600.810(a), means any impact that 
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 that have a reasonably foreseeable adverse effect require 
consultation.
    Consultations are not likely to be redundant or inefficient. The 
EFH 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. 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.
    Comment 5: A commenter stated that the amendment generally failed 
to address the potential for significant adverse impacts of this 
amendment on non-fishing entities, specifically citing the requirements 
of NEPA and the Regulatory Flexibility Act (RFA).
    Response: The conservation and enhancement recommendations outlined 
in the amendment include a review of suggested measures for municipal, 
state, and Federal agencies and other organizations for the 
conservation and enhancement of EFH. As stated earlier, these 
recommendations are non-binding. Any regulatory action that may reflect 
these recommendations will be subject to the analysis and public review 
required by state or Federal law, which will be the appropriate vehicle 
for consideration of impacts to both fishing and non-fishing entities.
    In the EA included with the amendment, the Council found, and NMFS 
concurs, that there will be no significant impacts on the human 
environment as a result of this amendment. The EFH regulations and NOAA 
policy require that NMFS coordinate EFH consultations with other 
consultation and commenting requirements under environmental review 
procedures currently in place. This will eliminate duplication and 
ensure a workable review process. 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 
another statute. The requirements of the RFA do not apply to the 
approval of this amendment, since a proposed rule has not been 
developed.
    Comment 6: A commenter charged that the amendment does not address 
Magnuson-Stevens Act national standards 1 (overfishing), 2 (best 
available scientific information), and 7 (unnecessary duplication).
    Response: As a part of the Council's omnibus EFH amendment, 
Monkfish Amendment 1 was intended to address only habitat issues, 
including the EFH mandate of the Magnuson-Stevens Act. The recently 
approved (March 3, 1999) Monkfish FMP includes the necessary provisions 
to satisfy national standard 1. Since Amendment 1 does not detract from 
nor negate the overfishing discussion and measures implemented in the 
Monkfish FMP, it is consistent with national standard 1.
    The amendment was developed with significant input from scientists 
of the NMFS Northeast Fisheries Science Center and is based upon the 
best scientific information available. In the strategic plan portion of 
the amendment, the Councils have clearly stated their commitment to 
updating the amendment as new information becomes available. NMFS finds 
the amendment consistent with national standard 2.
    The commenter does not elaborate upon its assertion that the 
amendment violates national standard 7, so NMFS assumes, for the 
purpose of responding to this comment, that the commenter is alleging 
that the EFH consultation process is duplicative of other federally 
required consultation processes. NMFS has determined that the EFH 
amendment is consistent with the Magnuson-Stevens Act, including 
national standard 7. Inter-agency consultations on Federal activities 
that may adversely affect EFH are required by the Magnuson-Stevens Act; 
they are not optional. 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 statutes 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. 
As explained above, EFH consultations will be conducted to the greatest 
extent possible under existing review processes and within existing 
process time frames. NMFS is committed to a consultation process that 
will be effective, efficient, and non-duplicative. The EFH regulations 
at 50 CFR Part 600.920 suggest that NMFS be consulted as early as 
possible in project planning so that appropriate

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conservation measures can minimize the potential for adverse effects to 
EFH. The amendment contains conservation recommendations that are 
appropriate for many Federal actions, and they can also serve as 
guidelines that should be considered during project planning.
    Comment 7: A commenter stated that the amendment avoided discussion 
of fishing impacts to EFH.
    Response: The Councils 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 Councils also evaluated fisheries management measures 
currently in place and assessed their impact on EFH. Finally, the 
Councils 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. Although the commenter may disagree with 
the manner in which the information was presented, NMFS concludes that 
the Councils satisfied the requirements of the Magnuson-Stevens Act and 
the EFH regulations (50 CFR 600.815(a)(3)) regarding the assessment of 
fishing gear impacts.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: June 11, 1999.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-15535 Filed 6-17-99; 8:45 am]
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