[Federal Register Volume 67, Number 12 (Thursday, January 17, 2002)]
[Rules and Regulations]
[Pages 2343-2383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-885]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 961030300-1007-05; I.D. 120996A]
RIN 0648-AJ30


Magnuson-Stevens Act Provisions; Essential Fish Habitat (EFH)

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to revise the regulations 
implementing the essential fish habitat (EFH) provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This rule establishes guidelines to assist the Regional 
Fishery Management Councils (Councils) and the Secretary of Commerce 
(Secretary) in the description and identification of EFH in fishery 
management plans (FMPs), the identification of adverse effects to EFH, 
and the identification of actions required to conserve and enhance EFH. 
The regulations also detail procedures the Secretary (acting through 
NMFS), other Federal agencies, and the Councils will use to coordinate, 
consult, or provide recommendations on Federal and state actions that 
may adversely affect EFH. The intended effect of the rule is to promote 
the protection, conservation, and enhancement of EFH.

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 If further changes to the EFH regulations are warranted in the future, 
NMFS will propose changes through an appropriate public process.

DATES: Effective on February 19, 2002.

ADDRESSES: Requests for copies of the Environmental Assessment (EA) or 
related documents should be sent to EFH Coordinator, Office of Habitat 
Conservation, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-
3282. The EA and related documents are also available via the internet 
at: http://www.nmfs.noaa.gov/habitat.

FOR FURTHER INFORMATION CONTACT: Jonathan Kurland, NMFS EFH 
Coordinator, 301/713-2325; fax 301/713-1043; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    This rulemaking is required by the Magnuson-Stevens Act (16 U.S.C. 
1801 et seq.) as reauthorized by the Sustainable Fisheries Act, signed 
into law on October 11, 1996. NMFS published an advance notice of 
proposed rulemaking (ANPR) in the Federal Register on November 8, 1996 
(61 FR 57843) to solicit comments to assist NMFS in developing an 
approach for the proposed regulations. NMFS published a second ANPR on 
January 9, 1997 (62 FR 1306) to announce the availability of the 
``Framework for the Description, Identification, Conservation, and 
Enhancement of Essential Fish Habitat'' (Framework) and to solicit 
additional public comment. The Framework provided a detailed outline 
for the proposed regulations. NMFS held 15 public meetings, briefings, 
and workshops across the nation during the public comment period on the 
Framework and issued a proposed rule on April 23, 1997 (62 FR 19723). 
NMFS held an additional 6 public meetings and numerous briefings 
nationwide during the comment period on the proposed rule and issued an 
interim final rule on December 19, 1997 (62 FR 66531). The interim 
final rule took effect on January 20, 1998.
    NMFS decided to issue the regulations as an interim final rule in 
1997 for two reasons. First, NMFS decided to provide an additional 
comment period to allow another opportunity for affected parties to 
provide input prior to the development of a final rule. Second, NMFS 
determined that it would be advantageous to implement the EFH 
provisions of the Magnuson-Stevens Act for a period of time via interim 
final regulations, which would afford an opportunity to gain experience 
adding EFH information to fishery management plans and carrying out 
consultations and coordination with Federal and state agencies whose 
actions may adversely affect EFH. NMFS planned to use the additional 
comments and its experience implementing the interim final rule to make 
any necessary changes in the final rule.
    The comment period on the interim final rule closed on March 19, 
1998 (63 FR 8607, February 20, 1998). On November 8, 1999, NMFS 
reopened the comment period (64 FR 60731) to announce its intention to 
proceed with development of a final rule and to request additional 
public comments on four specific issues: how to improve the regulatory 
guidance on the identification of EFH; how to improve the regulatory 
guidance on minimizing the effects of fishing on EFH; whether the final 
rule should provide additional guidance on using existing environmental 
reviews to satisfy EFH consultation requirements; and whether to revise 
in the final rule the requirement for Federal agencies to prepare EFH 
Assessments as part of the EFH consultation process.
    In total, NMFS provided five separate public comment periods for 
this rulemaking totaling 270 days. NMFS also held numerous public 
meetings and briefings to explain the EFH requirements for interested 
parties and to solicit their input. Based on the comments received, as 
well as NMFS' experience implementing the interim final rule, NMFS 
identified a number of improvements that would clarify and simplify the 
regulations. NMFS incorporated those changes in the final rule.
    Although NMFS is finalizing this rule, NMFS recognizes that there 
remains a great deal of interest in the EFH regulations from various 
stakeholders. There is a diversity of opinions on the best way to 
integrate habitat and ecosystem considerations into fishery management. 
NMFS is actively evaluating these issues, and will continue to work 
with stakeholders to use the best available scientific information 
regarding habitat and ecosystem principles in fishery management 
decisions. For example, NMFS will hold a workshop in the coming months 
to examine the concepts underlying ecosystem-based approaches to marine 
resource management, followed by a second workshop to develop technical 
guidelines for implementing an ecosystem-based approach to fishery 
management. NMFS is also developing new environmental impact statements 
that will reexamine the EFH sections of many FMPs. NMFS will evaluate 
the efficacy of the EFH final rule in light of these activities and 
will apply the lessons learned as appropriate. If further changes to 
the EFH regulations are warranted, NMFS will propose changes through an 
appropriate public process.

Overview of the EFH Regulations

    The final rule retains the same overall structure as the interim 
final rule, with minor organizational and editorial changes to improve 
clarity. These clarifications do not constitute substantial changes to 
the rule. Subpart J of 50 CFR part 600 contains guidelines to assist 
Councils in developing the EFH components of FMPs. Subpart K of 50 CFR 
part 600 contains procedures for coordination, consultations, and 
recommendations for Federal and state agency actions that may adversely 
affect EFH. NMFS is finalizing both subparts together so that all 
interested parties will understand the implications of areas being 
identified as EFH. The final rule contains no major substantive changes 
from the interim final rule, although the final rule includes numerous 
clarifications, simplifications, and editorial improvements intended to 
make the regulations easier to use.
    Under subpart J, Councils must identify in FMPs EFH for each life 
stage of each managed species in the fishery management unit. Councils 
should organize information on the habitat requirements of managed 
species using a four-tier approach based on the type of information 
available. Councils must identify as EFH those habitats that are 
necessary to the species for spawning, breeding, feeding, or growth to 
maturity. Councils must describe EFH in text and must provide maps of 
the geographic locations of EFH or the geographic boundaries within 
which EFH for each species and life stage is found. Councils should 
identify EFH that is especially important ecologically or particularly 
vulnerable to degradation as ``habitat areas of particular concern'' 
(HAPC) to help provide additional focus for conservation efforts. 
Councils must evaluate the potential adverse effects of fishing 
activities on EFH and must include in FMPs management measures that 
minimize adverse effects to the extent practicable. Councils must 
identify other activities that may adversely affect EFH and recommend 
actions to reduce or eliminate these effects.
    Subpart K contains procedures for implementing the EFH 
coordination, consultation, and recommendation requirements of the 
Magnuson-Stevens Act. NMFS will make available descriptions and maps of 
EFH to

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promote EFH conservation and enhancement. The regulations encourage 
Federal agencies to use existing environmental review procedures to 
fulfill the requirement to consult with NMFS on actions that may 
adversely affect EFH, and they contain procedures for abbreviated or 
expanded consultation in cases where no other environmental review 
process is available. Consultations may be conducted at a programmatic 
and/or project-specific level. In cases where adverse effects from a 
type of actions will be minimal, both individually and cumulatively, a 
General Concurrence procedure further simplifies the consultation 
requirements. The regulations encourage coordination between NMFS and 
the Councils in the development of recommendations to Federal or state 
agencies for actions that would adversely affect EFH. Federal agencies 
must respond in writing within 30 days of receiving EFH Conservation 
Recommendations from NMFS. If the action agency's decision is 
inconsistent with NMFS' EFH Conservation Recommendations, the agency 
must explain its reasoning and NMFS may request further review of the 
decision. EFH Conservation Recommendations are non-binding.

Effect on Approved FMP EFH Provisions

    The final rule modifies portions of the guidelines to Councils for 
developing the EFH components of FMPs (Subpart J of the rule). Although 
the changes do not constitute substantial revisions to the guidelines 
contained in the interim final rule, some of the clarifications and 
explanations in the final rule result in minor changes to the 
Secretary's interpretation of the mandatory contents of FMPs. Existing 
FMP EFH provisions were approved (or in some cases partially approved) 
by the Secretary pursuant to the interim final rule. Councils are not 
required to develop immediate amendments to those FMPs to address any 
changes in regulatory guidelines pursuant to this final rule. To the 
extent that changes to approved FMPs are necessary to meet the 
standards of the final rule, Councils should incorporate those changes 
during the next regular review and revision of FMP EFH provisions. 
Section 600.815(a)(9) of the final rule (renumbered from 
Sec. 600.815(a)(11) of the interim final rule) states that Councils 
should conduct such reviews as recommended by the Secretary, but at 
least once every five years.

Related Documents

    NMFS prepared a draft internal technical guidance manual for EFH in 
conjunction with the interim final rule. That guidance will be 
superseded with guidance for the final rule. The draft technical 
guidance, the Framework, the EA, and other related documents that led 
to this final rule are available via the internet or by mail upon 
request (see ADDRESSES).

Comments and Responses

    NMFS received approximately 3,300 written comments during the two 
comment periods on the interim final rule. Commenters included Fishery 
Management Councils, Federal agencies, state agencies, fishery groups, 
environmental groups, non-fishing industry groups, other non-
governmental organizations, academicians, citizens groups, and numerous 
individuals. The comments and responses discussed below are arranged by 
topic to parallel the organizational structure of the interim final 
rule.

1. Comments Asking for Additional Opportunity to Comment on the Rule or 
to be Involved in the Designation of EFH

    Comment A: Several commenters requested that the public comment 
period be extended and development of the final rule be delayed to 
allow the public to better assess EFH implementation.
    Response A: NMFS disagrees that additional time is needed for 
public comment. NMFS provided five separate public comment periods on 
the EFH regulations, for a total of 270 days, which generated more than 
3,600 separate written public comments. NMFS published the regulations 
as an interim final rule for the express purpose of allowing additional 
comments and gaining experience implementing the EFH provisions of the 
Magnuson-Stevens Act before issuing a final rule. Since the public 
comments received during each comment period raised similar issues and 
concerns with the EFH regulations, NMFS has had ample opportunity to 
gain understanding of the range of topics and opinions raised by the 
public and has made many revisions to the EFH regulations to address 
public comments.
    Comment B: Several commenters criticized NMFS for failing to engage 
non-fishing stakeholders in the development of the EFH regulations and 
for failing to develop mechanisms to consider non-fishing interests in 
the EFH regulations.
    Response B: NMFS disagrees that non-fishing groups were not given 
the opportunity to be included in this rulemaking. NMFS held numerous 
public meetings, briefings, and workshops to engage all interested 
parties in the development of the EFH regulations and held five 
separate public comment periods. In addition, NMFS met with every 
stakeholder group that asked to discuss how the regulations might 
affect them, including many prominent non-fishing organizations. Many 
of the changes to the regulations, from the proposed rule to the 
interim final rule and from the interim final rule to the final rule, 
responded directly to non-fishing stakeholder concerns.
    Comment C: Two commenters requested that NMFS suspend the 
designation of EFH for Pacific salmon until after final revisions to 
the EFH regulations are made, since the EFH provisions of the Pacific 
salmon FMP had not been completed at the time NMFS reopened the comment 
period on the interim final rule. These commenters also asked NMFS to 
reopen the comment period on the rule again after the Pacific salmon 
EFH designations are in effect for a period of time.
    Response C: NMFS approved the designation of EFH for Pacific salmon 
on September 27, 2000 (65 FR 63047). The Magnuson-Stevens Act 
prescribes a strict time frame for Secretarial action on an FMP 
amendment following submission by a Council, including an opportunity 
for public comment on what action the Secretary should take. NMFS 
cannot delay Secretarial review, and sees no need for another formal 
comment period on the EFH regulations to gauge implementation of 
Pacific salmon EFH. Nevertheless, if problems arise related to Pacific 
salmon EFH, NMFS will address them as appropriate.
    Comment D: Several non-fishing industry groups commented that NMFS 
did not make necessary information on the consultation process 
available to commenters when the comment period for the interim final 
rule was reopened in November 1999. Some of these commenters referred 
specifically to their pending Freedom of Information Act (FOIA) request 
for copies of documents related to the EFH consultation process and 
every individual consultation that had occurred to date.
    Response D: NMFS' intent in reopening the public comment period on 
the interim final rule in November 1999 was to solicit comments from 
interested parties on four specific issues: the scope of EFH 
designations, documentation of measures to minimize adverse fishing 
impacts to EFH, the use of existing environmental review

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procedures for EFH consultations, and the preparation of EFH 
Assessments (64 FR 60731). NMFS asked commenters to answer based on 
their individual experience under the interim final rule. NMFS did not 
request that commenters conduct a program review of the EFH 
consultation process, nor did NMFS ask for comments on the totality of 
experience gained through all of the consultations completed thus far. 
The information requested by the commenters under FOIA was not 
necessary to enable the commenters to provide answers to NMFS' 
questions regarding their experience under the interim final rule, and 
analysis of that information was not a prerequisite to providing 
informed comments.
    Comment E: One commenter noted that the absence of lists of species 
managed under FMPs and prey species in the proposed and interim final 
rules made it more difficult to provide meaningful comment on the EFH 
regulations.
    Response E: NMFS determined that providing lists of managed and 
prey species in the EFH regulations was unnecessary. NMFS' intent in 
soliciting public comment on the regulations was to seek input on the 
process of identifying EFH and implementing the other EFH provisions of 
the Magnuson-Stevens Act, and not on how to identify EFH for specific 
managed species. Furthermore, the list of managed species changes 
whenever Councils develop management plans for new species. 
Nonetheless, the EA that accompanied publication of the interim final 
rule contained a list of managed species, and this list has been 
updated in the revised EA. Since the list will continue to change over 
time, interested parties should contact the Councils to obtain the most 
updated information on managed species. EFH cannot be designated for 
non-managed prey species, so a list of such species is not directly 
relevant to the rule.
    Comment F: Several non-fishing groups commented that Fishery 
Management Councils should include representation of non-fishing 
interests.
    Response F: The Secretary appoints members of each Council from 
lists of individuals recommended by the Governors of applicable states. 
Section 302(b)(2)(A) of the Magnuson-Stevens Act states that the 
appointed members of each Council ``must be individuals who, by reason 
of their occupational or other experience, scientific expertise, or 
training, are knowledgeable regarding the conservation and management, 
or the commercial or recreational harvest, of the fishery resources of 
the geographical area concerned.'' There is ample flexibility in this 
requirement to allow for a broad range of representation on Councils. 
For example, a rancher from Idaho formerly served as a member of the 
Pacific Fishery Management Council.
    Comment G: One commenter noted that the rule contains no provisions 
to ensure that non-fishing interests receive timely notification of 
Council meetings.
    Response G: There are ample mechanisms through which interested 
parties can obtain information regarding Council meetings, and it is 
unnecessary to ensure such notification in the EFH regulations. Section 
302(i) of the Magnuson-Stevens Act requires timely public notice of 
Council meetings in local newspapers and the Federal Register. All 
Councils have internet sites, most of which post the schedule and 
agendas for upcoming meetings. Additionally, interested parties can 
call Councils directly to receive information on upcoming meetings, and 
many Councils maintain mailing lists and send agendas to interested 
parties. NMFS encourages all interested parties to participate in the 
Council process.
    Comment H: Both fishing and non-fishing groups commented that NMFS 
should engage local stakeholders in the process of EFH identification.
    Response H: NMFS agrees and continues to encourage public 
involvement in EFH identification via the Council process. Section 
305(b)(1)(B) of the Magnuson-Stevens Act requires NMFS, in consultation 
with participants in the fishery, to provide recommendations and 
information to assist Councils in EFH identification. NMFS typically 
solicits this input from the public via the Council process. Each 
Council holds numerous meetings throughout the year that focus on 
habitat and other issues related to fishery management. These meetings 
include public scoping meetings and public hearings and are 
specifically designed to engage interested parties in fishery 
management decisions, including decisions related to EFH 
identification. Furthermore, many Councils have habitat advisory 
panels. NMFS encourages interested parties to seek membership on 
Council advisory panels.

2. General Concerns with the Rule

    Comment A: Several non-fishing groups commented that the EFH 
regulations are too complex, ambiguous, and burdensome.
    Response A: NMFS has attempted to improve the clarity of the EFH 
regulations by eliminating wordiness, increasing specificity of the 
language, improving the efficiency of certain procedures, and 
reorganizing several sections. These changes should make the 
regulations easier to use and should promote better understanding of 
how to implement the EFH provisions of the Magnuson-Stevens Act. 
Councils, Federal agencies, and other interested parties should benefit 
from the modifications that were made to the EFH regulations.
    Comment B: Two non-fishing industry groups expressed concern that 
their comments on the proposed rule were not addressed and asked NMFS 
to revisit their initial concerns. The comments questioned NMFS' 
authority to address non-fishing activities and said that the EFH 
coordination, consultation, and recommendation requirements of the 
regulations are burdensome and duplicative.
    Response B: NMFS considered all comments received on the proposed 
rule, but did not accept all of the recommendations for changes to the 
rule. NMFS responded to the cited comments in the preamble to the 
interim final rule at 62 FR 66539-66540 and 66543. NMFS revisited these 
concerns while developing the final rule and concluded that, with the 
exception of changes described herein to clarify and streamline 
portions of the rule, no additional changes are warranted.
    Comment C: One commenter questioned NMFS' approach to implementing 
the EFH provisions in light of the commenter's concerns about the U.S. 
Fish and Wildlife Service's efforts to protect bull trout under the 
Endangered Species Act.
    Response C: Bull trout are not managed under the Magnuson-Stevens 
Act and the commenter's concerns are unrelated to the EFH regulations.

3. Comments in Favor of Implementing the Rule Without Substantial 
Changes

    Comment A: Numerous commenters, primarily from conservation groups, 
expressed concern about the extended comment period and delay in 
promulgating the final rule, and questioned NMFS' commitment to 
implementing the EFH regulations. Many commenters urged NMFS to 
finalize the EFH regulations immediately without weakening them.
    Response A: NMFS has been implementing the EFH regulations since 
January 1998, 30 days following publication of the interim final rule. 
The final rule benefitted from public comments on ways to improve the 
EFH regulations, and it incorporates many of the suggestions NMFS 
received.
    Comment B: Several commenters supported the rule but expressed

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concern that the EFH regulations impose an additional burden on the 
already heavy workload of NMFS personnel without offering new budgetary 
or staff resources. These commenters were concerned that resources may 
be diverted from other priorities to EFH, or that insufficient NMFS 
staff levels may slow the EFH consultation process.
    Response B: NMFS agrees that the EFH mandate will impose additional 
work on NMFS staff and has taken this into consideration in crafting 
the final rule to minimize duplication and maximize efficiency. For 
example, NMFS encourages agencies to use existing environmental review 
procedures to complete EFH consultations. Additionally, NMFS has 
created options such as the General Concurrence and programmatic 
consultations that will help streamline the EFH consultation process. 
NMFS has redirected staff from other tasks as necessary to fulfill the 
new requirements of the Magnuson-Stevens Act.
    Comment C: Several individuals and organizations from Alaska 
remarked that the future of fishing in Alaska depends on marine 
habitat, and thus the rule is important for Alaska fisheries.
    Response C: NMFS agrees. The final rule is intended to benefit 
marine, estuarine, and riverine habitats of federally managed species 
and help promote sustainable fisheries in Alaska and nationwide.

4. Comments Regarding Definition of Terms in the Rule

    Comment A: Several commenters questioned NMFS' interpretation of 
the statutory definition of EFH, wherein NMFS interpreted the meaning 
of several key terms: ``waters,'' ``substrate,'' necessary,'' and 
``spawning, breeding, feeding, and growth to maturity.'' Some 
commenters asked whether, for purposes of identifying EFH, the term 
``waters'' may include wetlands or riparian areas in proximity to 
waters occupied by a managed species. Other commenters suggested that 
NMFS remove the interpretation that ``waters'' and ``substrate'' can 
include biological properties, stating that the references to 
biological features inappropriately expand the definition of EFH. Two 
commenters thought that the interpretation of ``substrate'' should 
explicitly include historically important substrate areas that may have 
been modified by human activity. One commenter said that the word 
``structures,'' which is part of the interim final rule interpretation 
of the word ``substrate,'' should not refer to human-made structures 
such as oil platforms, but only to natural structures that support 
fish. Several commenters took the opposite view and wanted the rule to 
encourage identifying artificial reefs, jetties, and shipwrecks as EFH. 
Other commenters objected to the narrowed interpretation of 
``necessary'' in the interim final rule and recommended that NMFS 
return to the approach in the proposed rule where ``necessary'' meant 
the habitat required to support a sustainable fishery and a health 
ecosystem.
    Response A: NMFS is not modifying its interpretation of the 
statutory definition of EFH in the final rule. The final rule retains 
the language in Sec. 600.805(b)(2) of the interim final rule stating 
that EFH may be identified in waters of the United States, as defined 
in 33 CFR 328.3, which includes wetlands. EFH is limited to aquatic 
areas, so it may not include riparian habitats. As explained in the 
preamble to the interim final rule at 62 FR 66533, NMFS disagrees that 
interpreting ``waters'' and ``substrate'' to include ``biological 
properties'' and ``biological communities'' respectively is an 
impermissible expansion of the statutory definition of EFH. Certain 
biological properties of water and substrate are fundamental components 
of habitat and are necessary to maintain the function of habitat for 
fish. NMFS is not modifying the interpretation of ``substrate'' to 
discuss historically important substrate areas because the potential 
identification of historic habitats as EFH is addressed adequately in 
Sec. 600.815(a) of the rule. NMFS is not modifying the interpretation 
of ``substrate'' to exclude human-made structures, because in some 
cases such structures can provide valuable habitat for managed species. 
As discussed in the preamble to the interim final rule at 62 FR 66534, 
structures such as artificial reefs, jetties, and shipwrecks may be 
identified as EFH in an FMP if they meet the criteria for EFH 
identification in the rule. The interpretation of ``necessary'' in the 
final rule continues to include the clarifying phrase ``and the managed 
species' contribution to'' a healthy ecosystem because it would be 
inappropriate for the rule to suggest that EFH must include habitats 
for species other than managed fish.
    Comment B: Many commenters objected to or asked for clarification 
of the definition of ``adverse effect'' in Secs. 600.810(a) and 
600.910(a). Most of these commenters said the definition is vague and 
can be interpreted too broadly to include even effects that are of no 
consequence or significance to EFH. One commenter asked to what extent 
an activity must reduce the quality and/or quantity of EFH to trigger 
action. Some commenters thought that the example of a loss of prey 
being an adverse effect to EFH exceeds the proper interpretation of 
what constitutes EFH. These commenters felt that prey is not part of 
EFH so should not be referenced in a definition of ``adverse effect.'' 
One commenter recommended that the definition of ``adverse effect'' in 
the rule address only statistically significant adverse effects and 
provide for documentation of probabilities of error when predicting 
adverse effects. Another commenter focused on the statutory requirement 
for Federal agencies to consult with NMFS regarding actions that may 
adversely affect EFH and said NMFS' definition of ``adverse effect'' 
illegally negates the statutory duty of other agencies to decide what 
effects are adverse.
    Response B: NMFS is modifying the definition of ``adverse effect'' 
in response to comments. The revised definition retains the original 
standard that an adverse effect is any impact that reduces the quality 
and/or quantity of EFH. The definition clarifies the types of 
alterations that may be included and explains that such modifications 
to habitat are only considered adverse effects if they reduce the 
quality and/or quantity of EFH. The definition also clarifies that 
adverse effects to EFH may result from actions occurring within EFH or 
outside of EFH. NMFS disagrees with the comments that loss of prey is 
beyond the appropriate scope of adverse effects to EFH. The revised 
definition specifically mentions the loss of or injury to prey species 
and their habitats as potential adverse effects to EFH because, as 
mentioned above, prey can be a vital component of habitat for managed 
species. NMFS disagrees that only statistically significant adverse 
effects should be considered because the Magnuson-Stevens Act contains 
no such limitations. A much more inclusive definition of ``adverse 
effect'' is necessary in the regulations to clarify what kinds of 
potential effects should be addressed in FMPs and in the coordination, 
consultation, and recommendation process for Federal and state agency 
actions. Federal agencies retain the discretion to make their own 
determinations as to what actions may fall within NMFS' definition of 
``adverse effect.''
    Comment C: One commenter said that the definition of ``healthy 
ecosystem'' should not say that such areas should be similar to 
undisturbed ecosystems, because hardly any ecosystem could be 
characterized as pristine or entirely undisturbed. Another commenter 
asked

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for an explanation of the terms ``species richness'' and ``resilience'' 
within the definition of ``healthy ecosystem.''
    Response C: NMFS does not agree that the regulations should omit 
the reference to undisturbed ecosystems. The definition of ``healthy 
ecosystem'' in the rule refers to comparing ecological features of 
ecosystems. Saying that healthy ecosystems should be similar to 
comparable undisturbed ecosystems is intended to convey that the basic 
functions of such ecosystems have not been altered by anthropogenic 
events, and not that such ecosystems are entirely pristine. The term 
``species richness'' refers to biodiversity. The term ``resilience'' 
refers to the ability of a healthy ecosystem to withstand a certain 
level of environmental stress yet maintain its ecological functions.
    Comment D: One commenter inferred that best professional judgment 
will be necessary to evaluate available data and identify EFH, and 
asked for a definition of ``best professional judgment'' in the final 
rule. The commenter asked what process NMFS envisions for gathering a 
range of scientific opinions and how NMFS will overcome the 
disadvantages of expert panels.
    Response D: NMFS decided not to add a definition of ``best 
professional judgment.'' The regulations do not specifically call for 
using such judgments, so a definition is unnecessary. NMFS recognizes 
that professional opinion must be factored into EFH-related decisions 
by Councils, Federal agencies, and NMFS, but NMFS sees no need to 
define a separate process for considering professional opinions related 
to EFH as opposed to professional opinions on other matters.
    Comment E: One commenter said that NMFS had overstepped its 
authority by referring to EFH ``protection'' when the Magnuson-Stevens 
Act uses the words ``conservation and enhancement'' of EFH.
    Response E: NMFS reviewed the EFH regulations carefully to ensure 
that word usage reflected the intent of the Magnuson-Stevens Act. For 
instance, language in Sec. 600.815(a)(2)(ii)(A) of the interim final 
rule was revised in the final rule (now in Sec. 600.815(a)(1)(iv)(A)) 
to replace ``protected'' with ``identified'' as follows: ``Councils 
should interpret this information in a risk-averse fashion, to ensure 
adequate areas are identified as EFH for managed species.'' In other 
cases, use of the term ``protection'' was appropriate. For example, 
Sec. 600.905(a), which reads, ``The purpose of these procedures is to 
promote the protection of EFH in the review of Federal and state 
actions that may adversely affect EFH'' is consistent with section 
(2)(b)(7) of the Magnuson-Stevens Act, which states that one of the 
Act's purposes is to ``promote the protection of EFH in the review of 
projects conducted under Federal permits, licenses, or other 
authorities that affect such habitat.''

5. Comments on the Purpose and Scope of the Rule

    Comment A: Numerous commenters endorsed the use of the 
precautionary principle in identifying EFH. Several said that EFH 
should be identified for all marine fish species, and not just those 
managed under an FMP. Other commenters said that EFH designations 
should consider all relevant ecosystem components, including prey for 
managed species. A few commenters thought the regulations should call 
for identifying all areas as EFH until proven otherwise.
    Response A: NMFS addressed similar comments from the proposed rule 
in the preamble to the interim final rule at 62 FR 66534. The Magnuson-
Stevens Act requires that each FMP describe and identify EFH, and it is 
not appropriate to extend this requirement to species not managed under 
an FMP. NMFS agrees that EFH designations should account for pertinent 
features of the ecosystem such as prey, as noted in the interpretation 
of EFH in Sec. 600.10. However, only the habitat necessary to managed 
species may be considered EFH. The final rule retains language in 
Sec. 600.815(a) stating that Councils should interpret habitat 
information in a risk-averse fashion when identifying EFH. NMFS does 
not agree that all areas should be identified as EFH until proven 
otherwise, because EFH designations must be based on available 
scientific information indicating that the specified habitat is 
necessary for the managed species.
    Comment B: Some commenters objected to the interim final rule 
restricting EFH designations to the outer limits of the U.S. Exclusive 
Economic Zone (EEZ), and thought that Councils should be required to 
address adverse effects to EFH in waters beyond the EEZ.
    Response B: As explained in the preamble to the interim final rule 
at 62 FR 66535, areas beyond the EEZ cannot be identified as EFH, and 
Federal agencies need not consult with NMFS regarding the effects of 
actions on habitats beyond the EEZ. However, Councils may promote the 
protection of managed species' habitats outside the EEZ, and NMFS will 
use that information as appropriate in discussions regarding 
international actions.
    Comment C: One commenter said that NMFS should delete from 
Sec. 600.805(b) the language saying that a Council may describe, 
identify, and protect the habitat of species not in a fishery 
management unit, but such habitat may not be considered EFH. The 
commenter said that under the Magnuson-Stevens Act, Councils may only 
develop FMPs for identified species and may not act to describe, 
identify, or protect the habitat of other species. The commenter also 
said that Councils have no authority under the Magnuson-Stevens Act to 
protect the habitat of any fish.
    Response C: The preamble to the interim final rule at 62 FR 66534 
notes that the Magnuson-Stevens Act does not preclude Councils from 
identifying habitat (other than EFH) of a fishery resource under its 
authority even if the species is not managed under an FMP. Council 
action to protect the habitats of managed or non-managed species is 
limited to protecting habitats from fishing activities. Councils have 
no authority to protect habitats from other activities, although they 
may comment to state and Federal agencies on non-fishing activities 
under section 305(b)(3) of the Act.
    Comment D: One organization commented that the regulations should 
consider recreationally important species, including the economic value 
of recreational fisheries, in any actions taken pursuant to the rule.
    Response D: NMFS agrees. EFH must be identified for all species in 
the fishery management unit of an FMP, including recreationally 
important species. Actions taken by a Council, NMFS, or a Federal or 
state action agency to address threats to EFH should account for the 
recreational as well as commercial value of fishery resources dependent 
on EFH. However, no specific changes to the rule are necessary to 
provide for consideration of recreational fisheries.
    Comment E: A few commenters urged regional flexibility in the 
regulations so Councils can develop their own EFH designations and 
procedures for tracking actions that may adversely affect EFH.
    Response E: NMFS agrees. The final rule contains national 
guidelines for Councils but provides sufficient flexibility to account 
for the variety of managed species and to address regional variations 
in the availability of scientific information and differences in 
Council operating procedures nationwide.

[[Page 2349]]

6. Comments on Using an Ecosystem or Watershed Approach to Resource 
Management

    Comment A: A number of commenters representing non-fishing 
interests stated that the Magnuson-Stevens Act does not authorize a 
risk-averse or ecosystem approach to EFH. These commenters thought that 
the focus should be limited to fish species and not ecosystem 
principles.
    Response A: NMFS provided a detailed response to this comment in 
the preamble to the interim final rule at 62 FR 66532-66533, and the 
response remains the same. In summary, the Magnuson-Stevens Act 
provides authority for the link between EFH and the managed species' 
contribution to a healthy ecosystem in a number of places. Ecosystem 
concepts are common in the statutory definitions of ``fishery 
resources,'' ``conservation and management,'' and ``optimum.'' The fact 
that the Magnuson-Stevens Act directs the Councils to address the 
degradation and loss of EFH from both fishing and non-fishing 
activities through conservation and enhancement measures further 
reflects support for the ecosystem-based management of marine and 
anadromous fisheries. Ecosystem management encourages sustainable 
resource use and recognizes the uncertainties inherent in management 
and the need to make risk-averse decisions. This regulation embraces 
those concepts and urges Councils to seek environmental sustainability 
in fishery management, within the current statutorily prescribed 
fishery management framework (i.e., management by FMPs).
    Comment B: A number of commenters from Louisiana stated that the 
rule places too much emphasis on species managed under FMPs, to the 
detriment of activities that are designed to protect and restore the 
coastal ecosystem. The commenters expressed concern that the focus on 
habitat for federally managed species would undermine the importance of 
ecosystem components besides federally managed fish species and 
potentially hinder Louisiana's extensive efforts to restore coastal 
wetlands as authorized under the Coastal Wetlands Planning, Protection, 
and Restoration Act (also known as the Breaux Act).
    Response B: The rule is intended to promote the conservation and 
enhancement of EFH for federally managed species through means other 
than traditional harvest management. The EFH provisions are designed to 
encourage a broader, ecosystem approach to meet the requirements of the 
Magnuson-Stevens Act. NMFS recognizes the importance of Louisiana's 
coastal restoration efforts and is an active partner in implementing 
the Breaux Act. Although the final rule requires Federal agencies to 
consult with NMFS on any activity ``that may adversely affect EFH,'' 
including habitat restoration projects, EFH and ecosystem restoration 
can be compatible. NMFS works closely with other agencies and the 
private sector to ensure that restoration projects proceed 
expeditiously while considering and minimizing any temporary or 
permanent adverse effects to EFH. The rule recognizes the importance of 
ecosystem restoration and states that EFH may be designated for certain 
historic habitats for which restoration is technologically and 
economically feasible.
    Comment C: Commenters from Louisiana wanted NMFS to examine the 
state's coastal management program and its relationship to the rule. 
These commenters asked NMFS to exempt from the final rule Louisiana's 
state programs and Federal activities in Louisiana with existing review 
procedures, and/or place an emphasis on programmatic consultations and 
General Concurrences for these actions.
    Response C: NMFS highlighted its interaction and coordination with 
the states and state coastal zone management programs in the preamble 
to the interim final rule at 62 FR 66536. NMFS has no authority to 
exempt Federal and state actions in Louisiana from the EFH consultation 
and recommendation requirements of the Magnuson-Stevens Act. As 
outlined in Subpart K, NMFS encourages Federal action agencies to 
combine EFH consultations with other environmental review processes and 
to complete programmatic consultations and General Concurrences where 
appropriate.

7. Comments on the Guidance for Description and Identification of EFH 
in Fishery Management Plans

    Comment A: Where the rule states that ``EFH can be inferred'' based 
on a species' distribution among habitats and on information about the 
species' habitat requirements and behavior, one commenter wanted the 
rule to require that the Councils clearly identify instances when EFH 
is designated based on these inferences.
    Response A: The rule provides guidance to the Councils to evaluate 
all available information and use specified criteria to identify EFH. 
In some cases, Councils may need to use their best scientific 
judgement. To help explain how Councils identify EFH in FMPs, including 
cases where EFH is based on inferences, the final rule includes new 
language advising Councils to explain the analyses conducted to 
distinguish EFH from all habitats potentially used by a species. 
Councils must also demonstrate that the identification of EFH is based 
on the best scientific information available.
    Comment B: Several groups of commenters expressed concern about the 
guidance in Sec. 600.815(a)(2)(ii)(B) of the interim final rule that 
states all habitats, including historic habitats, ``should be 
considered essential'' if a species is overfished and habitat loss or 
degradation may be contributing to the species being overfished. One of 
these commenters stated that this was unreasonable because not all 
habitat used by an overfished species is essential. Another commenter 
wanted NMFS to require that the Councils establish a stronger link 
between the loss of habitat and its contribution to overfishing before 
it is considered essential. Several commenters wanted this provision 
deleted from the rule entirely, while others wanted to see all habitat 
for overfished species identified as EFH. One commenter evaluated the 
provisions for designating EFH for overfished species in the context of 
the Endangered Species Act (ESA). This commenter stated that the EFH 
provisions appear inconsistent with the way in which NMFS evaluates 
habitat in the ESA. The commenter noted that in NMFS' implementation of 
the ESA, the agency recognizes that currently available habitat is 
sufficient for conservation for some species. These commenters stated 
that identifying EFH in areas historically used by fish may not be the 
best means to ensure the conservation and enhancement of EFH.
    Response B: NMFS agrees that it might not always be appropriate to 
identify as EFH all current habitats as well as certain historic 
habitats. NMFS has changed the guidance related to determining EFH for 
overfished species, now in Sec. 600.815(a)(1)(iv)(C), to state that all 
habitats currently used by the species ``may be considered essential'' 
(versus ``should be considered essential'') if a species is overfished 
and habitat loss or degradation may be contributing to the species 
being overfished. Councils should make this determination on a case-by-
case basis.
    All FMP conservation and management measures, including identifying 
the limits of EFH for overfished species, must be based on the best 
scientific information available. As addressed in the preamble to the 
interim final rule at 62 FR 66537, the rule advocates a risk-averse 
approach to

[[Page 2350]]

identifying EFH because of the uncertainty in our knowledge of habitat 
and its relation to fisheries production. Councils should take 
particular care when inadequate information exists on overfished stocks 
to ensure that habitat losses do not hinder the stock rebuilding.
    EFH and the habitat components of the ESA are authorized under 
different legislative mandates and have unique objectives. EFH must be 
designated for all federally managed species. Conservation and 
enhancement measures for EFH, if implemented by the agencies with 
relevant jurisdiction, should help prevent the need to list species 
under the ESA.
    Comment C: One commenter wanted the guidance in 
Sec. 600.815(a)(2)(ii)(F) of the interim final rule to be deleted from 
the regulations. This commenter stated that the Magnuson-Stevens Act 
only authorizes designation of existing habitat as EFH and does not 
provide the authority to identify EFH for degraded or inaccessible 
habitat.
    Response C: NMFS responded to similar comments in the preamble to 
the interim final rule at 62 FR 66534, and upon further consideration 
takes the same position. The provision of the rule that allows the 
designation of inaccessible or degraded habitat as EFH is consistent 
with the EFH provisions of the Magnuson-Stevens Act. Section 2 of the 
Magnuson-Stevens Act recognizes that habitat losses have resulted in a 
diminished capacity to support sustainable fisheries and that the 
protection of habitat is necessary to prevent overfishing and rebuild 
overfished stocks. The restoration of degraded or inaccessible habitats 
may therefore be necessary to maintain or rebuild sustainable 
fisheries.
    Comment D: Several commenters wanted the final rule to restrict EFH 
designation to the habitat required to maintain commercial fisheries at 
optimal yield or another quantitative measure of the status of a stock.
    Response D: NMFS provided a detailed response to this comment in 
the preamble to the interim final rule at 62 FR 66533, and, upon 
further consideration, still takes the same position. The Magnuson-
Stevens Act states that one of its purposes is to provide for the 
preparation and implementation of FMPs that will achieve and maintain 
the optimal yield from each fishery. Therefore, NMFS has linked the 
guidelines for identifying EFH to sustainable fisheries as is 
appropriate under the Magnuson-Stevens Act. The rule states that FMPs 
should identify sufficient EFH to support a population adequate to 
maintain a sustainable fishery and the managed species' contributions 
to a healthy ecosystem. When considering the EFH requirements of a 
managed species, the rule advises Councils to describe and identify 
enough habitat to support the total population, of which optimal yield 
is a subset, not just the individual fish that are removed by fishing.
    Comment E: Several commenters wanted the final rule to establish 
incentives for improving the data available for identifying EFH. These 
commenters thought a research agenda should be developed to collect the 
information needed to identify EFH with Level 2, 3, and 4 data.
    Response E: NMFS agrees that a prioritized EFH research agenda 
would be beneficial. The final rule asks the Councils to set priority 
research needs to improve upon the description and identification of 
EFH, the identification of threats to EFH from fishing and non-fishing 
activities, and the development of conservation and enhancement 
recommendations. The rule also encourages the Councils to strive to 
describe habitat based on the highest level of detail (i.e., Level 4). 
Additionally, the final rule says that Councils and NMFS should 
periodically review and revise the EFH components of FMPs based on 
available pertinent information. NMFS is working within the constraints 
of available funding to conduct additional research to improve the 
designations of EFH.
    Comment F: One port authority stated that the EFH designations 
should undergo a formal rulemaking process.
    Response F: NMFS disagrees. Councils identify EFH within the 
existing statutory and regulatory process for FMP development and 
amendment, which provides numerous opportunities for public 
involvement. All Council deliberations on fishery management measures 
are open to the public, and all Council meeting agendas are published 
in the Federal Register. Additionally, NMFS publishes notices of 
availability and solicits public comments for FMPs and amendments 
received for Secretarial review. NMFS also publishes a public notice of 
decision in the Federal Register.
    Comment G: A member of the recreational fishing community commented 
that the rule should be revised to require the identification of EFH 
for species assemblages, not individual species. Another commenter 
asked that Councils describe EFH separately within each FMP rather than 
making broad regional designations.
    Response G: The final rule clarifies that every FMP must describe 
and identify EFH for each life stage of each managed species, but if 
appropriate, EFH may be designated for assemblages of species or life 
stages that have similar habitat requirements. If an FMP designates EFH 
for species assemblages, it must include a justification and scientific 
rationale.
    Comment H: One Council stated that the specification that tables 
must be used to describe EFH may constrain the development of useful 
EFH descriptions. The Council stated that textual EFH descriptions 
would be more helpful.
    Response H: NMFS agrees, and the final rule does not require that 
EFH be described in tables. The final rule clarifies that FMPs must 
describe and identify EFH in text and should use text and tables as 
appropriate to summarize information on variables that control or limit 
distribution, abundance, reproduction, growth, survival, and 
productivity.
    Comment I: Many commenters stated that the final rule should allow 
the Councils to identify EFH within state and Federal waters. One 
commenter wanted to see EFH designations based on the biological needs 
of each species, not geographic or political boundaries.
    Response I: NMFS agrees, and addressed these comments in the 
preamble to the interim final rule at 62 FR 66535. The Magnuson-Stevens 
Act requires Councils to describe and identify EFH based on the 
biological requirements of all life stages of the managed species, with 
no limitations placed on the geographic location of EFH. EFH may be 
designated in state or Federal waters, but may not be designated beyond 
the United States exclusive economic zone.
    Comment J: One commenter from a non-fishing industry group 
expressed concern that EFH might be designated in upland areas where 
fish habitat does not exist. One commenter from a conservation group 
and a commenter from a fishing group recommended that Councils be 
allowed to designate EFH in riparian corridors and on other dry lands 
that influence the productivity of aquatic areas.
    Response J: EFH is defined in the Magnuson-Stevens Act as those 
waters and substrate necessary to fish for spawning, breeding, feeding, 
or growth to maturity. The EFH regulations interpret this definition by 
defining ``waters'' and ``substrate.'' ``Waters'' include aquatic areas 
and their associated physical, chemical, and biological properties that 
are used by fish and may include aquatic areas historically used by 
fish where appropriate. ``Substrate'' includes

[[Page 2351]]

sediment, hard bottom, structures underlying the waters, and associated 
biological communities. EFH can only be designated in aquatic areas. 
EFH cannot be designated in riparian habitat or on dry land, although 
actions in these areas that may adversely affect EFH do require 
consultation with NMFS. The definition of ``adverse effect'' in the 
final rule clarifies that adverse effects to EFH may result from 
actions occurring within EFH or outside of EFH.
    Comment K: Several commenters, including fishing and non-fishing 
groups and some government agencies, expressed concern that the EFH 
designations made under the interim final rule are extremely broad. 
Non-fishing groups commented that NMFS arbitrarily designated all 
habitat as EFH rather than designating ``necessary'' or ``essential'' 
habitats, as the statute requires. In contrast, one commenter thought 
that the guidance in Sec. 600.815(a)(2)(ii) of the interim final rule 
that asks the Councils to identify EFH as the habitats areas ``valued 
most highly'' and ``most commonly used'' was not sufficiently inclusive 
to capture all the areas that should be identified as EFH.
    Response K: Councils were justified in designating broad areas as 
EFH based on the guidance in the interim final rule. For many species 
there is little available scientific information linking the biological 
requirements of managed species to specific habitats. In such cases the 
rule encourages Councils to interpret available information in a risk-
averse fashion. Moreover, NMFS is undertaking research in several 
regions to obtain additional scientific information. As further 
information becomes available, EFH designations will be refined.
    NMFS has also taken steps to clarify in the final rule that EFH 
identification should emphasize necessary habitats for fish, based on 
available information. To reduce confusion about what habitats 
generally should be considered essential, the final rule omits language 
from the interim final rule saying that ``habitats of intermediate or 
low value may also be essential, depending on the health of the fish 
population'' because this concept is covered elsewhere in the rule. The 
final rule also clarifies that if sufficient information is available, 
EFH should be identified as the habitats supporting the highest 
relative abundance; growth, reproduction, or survival rates; and/or 
production rates within the geographic range of a species. Furthermore, 
the final rule encourages Councils to identify EFH based on the highest 
level of information available, and states that EFH should not be 
designated if there is no information available and if habitat usage 
cannot be inferred from other means, such as information on a similar 
species.
    Comment L: Two conservation groups expressed concern about specific 
elements of Amendment 14 to the Pacific Coast Salmon FMP.
    Response L: These comments were not relevant to the EFH 
regulations.

8. Comments on the Sources and Quality of Information Used to Identify 
EFH

    Comment A: Commenters representing fishing and non-fishing 
interests and environmental groups wanted to see NMFS use all good 
quality information to identify EFH. Some of these commenters wanted 
the standard of ``best scientific information'' to be replaced with a 
standard of ``best available information from all sources,'' including 
fishing interests. Some commenters also wanted this standard of 
information to extend to NMFS' EFH Conservation Recommendations.
    Response A: Section 600.815(a)(1)(ii)(B) of the final rule reflects 
that Councils should use information from the best available sources to 
identify EFH, including peer-reviewed literature, unpublished 
scientific reports, data files of government resource agencies, 
fisheries landing reports, and other sources of information. As stated 
in the preamble to the interim final rule at 62 FR 66536, NMFS intended 
to have the Councils use the best available information from a variety 
of sources, and the Magnuson-Stevens Act requires NMFS to consult with 
participants in the fishery before submitting its recommendations to 
the Councils to assist in developing the EFH components of FMPs. 
However, all information should be evaluated with regard to 
reliability, so the final rule clarifies that Councils should consider 
different types of information according to its scientific rigor. NMFS 
intends to continue using the best available sources of information to 
develop EFH Conservation Recommendations to Federal and state agencies.
    Comment B: One marine conservation group thought the requirement 
that Councils must demonstrate their use of best available science in 
the identification of EFH may place an inappropriate burden of proof on 
the Councils.
    Response B: The final rule maintains the requirement that Councils 
demonstrate that the best scientific information available was used in 
the description and identification of EFH, consistent with national 
standard 2. Section 301(a) of the Magnuson-Stevens Act requires all 
fishery management plans, and any regulation promulgated to implement 
such plans, to be consistent with the national standards. National 
standard 2 requires that fishery conservation and management measures 
be based on the best scientific information available. Applying this 
standard to the identification of EFH is appropriate and necessary to 
comply with the Magnuson-Stevens Act.
    Comment C: A commenter representing non-fishing industry interests 
wanted the final rule to require the Councils to record, and make 
available for public review and comment, the scientific basis for all 
Council decisions. Another commenter wanted to require a list of all 
judgments for which data were not available and recommended that this 
list of data gaps be used to set a research agenda.
    Response C: All Council deliberations on fishery management 
measures are open to the public, and adopted measures must be based on 
the best scientific information available. The final rule clarifies 
that FMPs should identify species-specific habitat data gaps. The final 
rule also clarifies that FMPs should contain recommendations for 
research needed to improve upon the description and identification of 
EFH, the identification of threats to EFH from fishing and non-fishing 
activities, and the development of conservation and enhancement 
measures for EFH.

9. Comments on the Four-Level Approach for Organizing EFH Data

    Comment A: As discussed separately above, NMFS received numerous 
general comments in favor of implementing the regulations without 
substantial changes, many of which mentioned specific support for the 
approach used in the interim final rule for organizing information used 
to designate EFH.
    Response A: The final rule retains the four-level approach for 
organizing information used to designate EFH. However, the final rule 
clarifies that Level 1 information encompasses a variety of types of 
distribution data, which may be derived from systematic presence/
absence sampling and/or may include information collected 
opportunistically. Since distribution data are lacking for a number of 
managed species, especially in Alaska, the final rule clarifies that 
habitat use for a given species or life stage may be inferred, if 
appropriate, based on information on a similar species or another life 
stage. The final rule also clarifies that if there is no information on 
a given species or life stage, and habitat usage cannot be inferred 
from

[[Page 2352]]

other means, EFH should not be designated.
    Comment B: One commenter recommended that NMFS develop an 
incentives program or funding mechanism to encourage data collection to 
support identifying EFH with Level 3 or 4 data, as described in the 
interim final rule. Another commenter said that EFH should be 
categorized and prioritized according to its availability, 
vulnerability, and utilization.
    Response B: For most species managed under the Magnuson-Stevens 
Act, available information on habitat requirements falls into Levels 1 
or 2 (distribution or relative abundance data). NMFS agrees that having 
Level 3 or 4 data (rates of habitat-related growth, reproduction, or 
survival, or production rate data) would enable the Councils to refine 
the designations of EFH. NMFS is pursuing budget initiatives and 
partnerships with others to encourage the development of this type of 
information. Regarding the characterization and prioritization of EFH, 
NMFS agrees that the categories mentioned by the commenter are valid 
considerations for evaluating habitats. However, NMFS does not agree 
that the regulations should require EFH to be categorized, because 
requisite information to categorize EFH in this fashion is not 
available in many cases. Where Councils have more information on the 
ecological importance or vulnerability of portions of EFH, they may 
identify those areas as Habitat Areas of Particular Concern.
    Comment C: One commenter said that further mechanisms are necessary 
to delineate important habitats based on habitat characteristics rather 
than the distribution of fish species. The commenter recommended adding 
to the regulations guidance that is complementary to the four-level 
approach but is based on an assessment of ecological significance and 
function of habitat.
    Response C: NMFS agrees that where sufficient information is 
available, EFH designations should specify those habitat features that 
contribute most to the growth, reproduction, and survival of managed 
species (Level 3) or, ideally, those habitats with the highest 
production rates (Level 4) for each species. The final rule clarifies 
that this type of information, if available, should be used to identify 
EFH as the habitats supporting the highest growth, reproduction, 
survival, and/or production rates within the geographic range of a 
species. Currently, however, in most cases the best available 
scientific information is fish distribution (Level 1) or relative 
abundance (Level 2) data. Additional guidance linking EFH to habitat 
function, beyond the clarification mentioned above, is not necessary at 
this time because the rule already explains how to use Level 3 and 4 
information to identify habitats with the highest ecological function 
for managed species.

10. Comments on the Guidelines for Determining the Limits of EFH

    Comment A: One commenter representing waterfowl management efforts 
said that the importance of long-term sustainability of coastal 
wetlands habitat is overshadowed by the narrow focus of the EFH 
regulations on achieving optimal yield from a fishery.
    Response A: As explained in the preamble to the interim final rule 
at 62 FR 66533, the Magnuson-Stevens Act states that FMPs must achieve 
the optimum yield from each fishery on a continuing basis, and 
determinations of optimal yield should take into account the protection 
of marine ecosystems. There is no inherent inconsistency between the 
overall objectives of promoting the conservation of coastal wetlands 
for waterfowl and promoting the conservation of EFH that is necessary 
to support a sustainable fishery and the managed species' contribution 
to a healthy ecosystem (including avian predators of managed species). 
However, specific wetlands management activities may not always advance 
both these objectives, and should be evaluated on a case-by-case basis.
    Comment B: An alliance of Pacific northwest conservation groups 
commented that habitats that were historically used by salmon but are 
currently degraded or inaccessible should be included in EFH.
    Response B: NMFS agrees that EFH should include historic habitats 
in certain circumstances. The final rule retains language in 
Sec. 600.815(a) allowing the inclusion of such habitats as EFH, 
provided that the habitats are necessary to support rebuilding the 
fishery and that restoration is technologically and economically 
feasible.
    Comment C: One organization commented that the Magnuson-Stevens Act 
defines EFH in terms of life history characteristics for managed 
species, whereas the interim final rule interprets EFH in terms of 
productivity.
    Response C: The guidelines for determining the limits of EFH 
emphasize the habitat functions that have the most benefits to fish 
during the life stages contained in the statutory definition of EFH: 
spawning, breeding, feeding, and growth to maturity. Thus, the 
guidelines refer to habitats that support the highest productivity of 
managed species at each life stage. The regulations must make this 
connection between species and productivity to offer guidance on how to 
identify EFH based on the habitat needs of managed species at each life 
stage.
    Comment D: One commenter asked who will determine whether it is 
economically feasible to restore degraded or inaccessible habitat in 
connection with the provision of the interim final rule that allows 
Councils to identify such areas as EFH.
    Response D: The final rule retains language from the interim final 
rule saying that the Secretary and the appropriate Council(s) determine 
whether, for purposes of potentially identifying degraded or 
inaccessible aquatic habitat as EFH, restoration of such habitats is 
technologically and economically feasible. Through the Magnuson-Stevens 
Act process for developing FMPs and amendments, there are numerous 
opportunities for public comment on any proposal to designate degraded 
or inaccessible habitat as EFH, including the economic feasibility or 
infeasibility of restoration.

11. Comments on the Relationship Between EFH and Critical Habitat

    Comment A: Several commenters said that EFH should be restricted to 
waters and substrate only and must always be greater than or equal to 
``critical habitat'' identified for managed species that are listed as 
threatened or endangered under the ESA. Several other commenters 
thought it was inappropriate for the interim final rule to state a 
relationship between EFH and ``critical habitat'' that will always 
apply for ESA listed species. These commenters thought that the extent 
of EFH for listed species should be left to the Councils to decide on a 
case-by-case basis.
    Response A: In the preamble to the interim final rule at 62 FR 
66537, NMFS responded to similar comments that were critical of the 
corresponding provision in the proposed rule, and noted that the 
interim final rule contained modifications to help distinguish between 
EFH and critical habitat. NMFS maintained that it is appropriate for 
the rule to state that EFH will always be greater than or equal to the 
aquatic portions of critical habitat because, for example, important 
adult marine habitats for endangered salmonids have not been identified 
as critical habitat. Upon further consideration of this issue, NMFS 
agrees that there could conceivably be some

[[Page 2353]]

circumstances where this relationship between EFH and critical habitat 
might not be appropriate, so the word ``always'' is not appropriate in 
this provision of the regulations. The term ``will'' in the EFH 
regulations is used descriptively and does not denote an obligation to 
act, but apparently the use of ``will'' in combination with ``always'' 
implied to some readers a mandatory requirement. Therefore, the final 
rule states that areas described as EFH ``will normally'' (rather than 
``will always'') be greater than or equal to aquatic areas that have 
been identified as critical habitat. NMFS agrees with the commenters 
who stated that EFH must be limited to aquatic areas.
    Comment B: One commenter addressed the explanation in the preamble 
to the interim final rule at 62 FR 66537 stating that directed fishing 
of listed species is not permitted. This commenter said that rather 
than focus on non-fishing related threats to managed species that are 
listed under the ESA, NMFS should control indirect fishing effects on 
listed runs (which NMFS assumes to mean bycatch).
    Response B: Salmon managed under the Pacific Coast Salmon FMP and 
the Atlantic Salmon FMP are the only species that currently are both 
listed under the ESA and managed under the Magnuson-Stevens Act. The 
1996 amendments to the Magnuson-Stevens Act included a new requirement 
that fishery management measures minimize bycatch and, to the extent 
bycatch cannot be avoided, minimize the mortality of bycatch. Amendment 
14 to the Pacific Coast Salmon FMP addresses this requirement by 
providing guidance for minimizing salmon bycatch and bycatch mortality, 
and by establishing salmon bycatch reporting specifications. The 
Atlantic Salmon FMP minimizes bycatch by prohibiting the possession of 
Atlantic salmon in the EEZ. The Magnuson-Stevens Act also requires 
evaluation of threats to EFH from non-fishing activities, so NMFS 
cannot divert all efforts to bycatch reduction at the expense of 
addressing threats from activities other than fishing.

12. Comments on the Effects of Fishing on EFH

    Comment A: Some commenters expressed concern that the EFH 
regulations imply that fishing is the major, if not only, cause of 
habitat degradation.
    Response A: NMFS disagrees with the commenters' perception of the 
interim final rule. Fishing and non-fishing activities have potential 
adverse effects on habitat and the regulations address both. The 
regulations provide guidance to Councils and procedures for Federal 
agencies on how to address adverse effects from non-fishing activities 
on EFH. The Magnuson-Stevens Act specifically requires that FMPs 
minimize to the extent practicable adverse fishing effects on EFH, so 
the regulations also include sections that focus on habitat impacts 
from fishing.
    Comment B: One commenter expressed concern that the EFH provisions 
are being used arbitrarily to prevent the use of certain fishing gears, 
rather than to protect EFH based on scientific information.
    Response B: NMFS disagrees with the commenter's opinion. The EFH 
provisions require Councils to minimize to the extent practicable the 
adverse effects on EFH caused by fishing. The Magnuson-Stevens Act and 
the EFH regulations address impacts caused by fishing activities in 
general and do not target specific gear types. Councils must evaluate 
the effects of all fishing activities (e.g., each gear type) on EFH, 
and fishery management measures must be based on the best scientific 
information available.
    Comment C: One commenter from the commercial fishing community 
remarked that the size and duration of time/area closures, mentioned in 
the EFH regulations as an option for managing adverse effects from 
fishing, must be considered carefully since these management measures 
can impact the socioeconomic status of fishermen and their families.
    Response C: NMFS agrees. By including the language ``to the extent 
practicable'' in the requirement to minimize adverse fishing impacts, 
Congress intended for fishery managers to take both ecological and 
socioeconomic effects of measures into consideration in determining 
whether it is appropriate to adopt particular management measures. The 
final rule clarifies the guidance to Councils for determining whether 
it is practicable to minimize an adverse effect from fishing, and 
states that Councils should consider the nature and extent of the 
adverse effect on EFH and the long and short-term costs and benefits of 
potential management measures to EFH, associated fisheries, and the 
nation.

13. Comments on the Evaluation of the Effects of Fishing

    Comment A: One commenter expressed concern about the quality of 
information that Councils were using to conduct assessments of the 
effects of fishing on EFH as required by the interim final rule, and 
recommended that NMFS provide Councils with a standard of review for 
non-scientific information such as ``gray'' literature, videos, and 
anecdotal information. Other commenters suggested that NMFS provide 
guidance to Councils for how to fulfill their obligation to minimize 
adverse fishing effects on EFH to the extent practicable when 
information is lacking.
    Response A: NMFS agrees that further guidance is warranted to 
explain how Councils should consider available information. The final 
rule clarifies the requirement for Councils to examine the effects of 
fishing on EFH, and refers to this analysis as an ``evaluation'' rather 
than an ``assessment'' to avoid confusion with the requirement to 
perform an EFH Assessment during consultations as described in Subpart 
K. The final rule retains language from the interim final rule advising 
Councils to complete the evaluation using the best scientific 
information available, as well as other appropriate information 
sources, as available. When information is lacking, or when Councils 
use non-peer-reviewed or non-scientific information to augment the 
evaluation, the final rule states that Councils should consider the 
different types of available information according to its scientific 
rigor.
    Comment B: Several commenters said that Councils did not adequately 
evaluate adverse effects from fishing in their EFH FMP amendments and 
urged NMFS to establish specific requirements, such as requiring 
Councils to classify the level of impacts according to gear type, to 
guide Councils in completing fishing impact evaluations.
    Response B: The EFH regulations require Councils to evaluate the 
potential adverse effects of fishing activities on EFH so that Councils 
will be informed when making decisions regarding minimization of 
adverse effects to EFH from fishing. NMFS did not fully approve those 
EFH FMP amendments that did not meet this requirement.
    Based upon experience implementing the interim final rule, NMFS 
agrees that the regulations should clarify the requirements for 
conducting fishing impact evaluations, and NMFS has modified the rule 
accordingly. Specifically, the final rule requires Councils to describe 
each fishing activity, review and discuss all available relevant 
information (such as information regarding the intensity, extent, and 
frequency of any adverse effect on EFH; the type of habitat within EFH 
that may be affected adversely; and the habitat functions that may be 
disturbed), and provide conclusions regarding whether and how each 
fishing

[[Page 2354]]

activity adversely affects EFH. The final rule also clarifies that 
Councils should consider the cumulative impacts of multiple fishing 
activities on EFH in the fishing impact evaluation.
    Comment C: Two commenters recommended that the EFH regulations be 
revised to advise Councils to document and assess in FMPs all 
management actions taken prior to the enactment of the EFH provisions 
that benefit habitat before recommending new measures to conserve and 
enhance EFH.
    Response C: NMFS agrees that it is useful for Councils to document 
and consider any past management actions that provide habitat 
protection. The final rule recommends that Councils list past 
management actions that minimize potential adverse effects on EFH and 
describe the benefits of those actions to EFH in the evaluation of 
fishing impacts on EFH.

14. Comments on the Threshold That Requires Councils to Minimize 
Adverse Effects of Fishing on EFH

    Comment A: One commenter questioned use of the words ``prevent'' 
and ``mitigate'' in the portion of the EFH regulations that states, 
``Councils must act to prevent, mitigate, or minimize any adverse 
effects from fishing, to the extent practicable...'' The commenter 
indicated that use of these words is inappropriate since the Magnuson-
Stevens Act only authorizes Councils to ``minimize'' adverse fishing 
effects on EFH.
    Response A: NMFS disagrees. By using the words ``prevent'' and 
``mitigate'' in this provision of the EFH regulations, NMFS' intent is 
to give Councils the flexibility to adopt the approach that is most 
suitable to meet the statutory obligation to minimize adverse fishing 
effects on EFH. For instance, it might be more effective for Councils 
to act to prevent particularly damaging adverse effects rather than 
allowing all types of effects to occur with some degree of 
minimization.
    Comment B: The interim final rule stated that Councils must 
minimize to the extent practicable adverse effects on EFH from fishing 
if there is evidence that a fishing practice is having an identifiable 
adverse effect on EFH. Some commenters from conservation groups were 
pleased that NMFS replaced the word ``substantial'' (from the proposed 
rule) with ``identifiable,'' stating that ``identifiable'' is closer to 
the intent of the statute in terms of indicating the threshold at which 
Councils must take action to minimize adverse fishing effects to EFH. 
Others expressed concern that the word ``identifiable'' is 
inappropriate since this language does not appear in the Magnuson-
Stevens Act and may still raise the threshold for action above that set 
by the Act. Commenters also expressed concern that the need to 
demonstrate an ``identifiable'' adverse effect might lead the Councils 
to inaction. Furthermore, commenters questioned the meaning of the 
descriptors for the term ``identifiable,'' offered in both the preamble 
to the interim final rule and the draft technical guidance manual, that 
``identifiable means both more than minimal and not temporary in 
nature.'' Some commenters recommended that the EFH regulations require 
Councils to demonstrate adverse impacts scientifically and make the 
specific connection between adverse impacts and reduced stock 
productivity before taking action to minimize these impacts.
    Response B: As discussed in the preamble to the interim final rule 
at 62 FR 66538, NMFS' intent was to provide guidance to Councils for 
determining when to act to minimize adverse fishing effects to EFH. 
Such action is warranted to regulate fishing activities that reduce the 
capacity of EFH to support managed species, not fishing activities that 
result in inconsequential changes to the habitat. In response to 
commenters' concern over the word ``identifiable'' in the interim final 
rule, NMFS modified this section to read, ``Councils must act to 
prevent, mitigate, or minimize any adverse effects from fishing, to the 
extent practicable, if there is evidence that a fishing activity 
adversely affects EFH in a manner that is more than minimal and not 
temporary in nature'' based on the Councils' evaluation of the 
potential adverse effects of fishing. Temporary impacts are those that 
are limited in duration and that allow the particular environment to 
recover without measurable impact. Minimal impacts are those that may 
result in relatively small changes in the affected environment and 
insignificant changes in ecological functions.
    It is not appropriate to require definitive proof of a link between 
fishing impacts to EFH and reduced stock productivity before Councils 
can take action to minimize adverse fishing impacts to EFH to the 
extent practicable. Such a requirement would raise the threshold for 
action above that set by the Magnuson-Stevens Act. The final rule 
encourages Councils to use the best available science as well as other 
appropriate information sources when evaluating the impacts of fishing 
activities on EFH, and to consider different types of information 
according to its scientific rigor.
    Comment C: Several conservation groups criticized Councils for not 
adopting any new measures to minimize adverse effects from fishing 
activities and requested that NMFS require in the EFH regulations that 
new measures be taken to comply with the Magnuson-Stevens Act. Many of 
the same groups commented that NMFS should develop documentation 
requirements for Councils to demonstrate compliance with the 
requirement to minimize adverse fishing impacts to EFH to the extent 
practicable.
    Response C: The final rule clarifies that Councils should document 
compliance with the requirement to minimize to the extent practicable 
adverse effects on EFH caused by fishing. When there is evidence that a 
fishing activity adversely affects EFH in a manner that is more than 
minimal and not temporary in nature, Councils should identify in FMPs a 
range of potential new actions that could be taken to address adverse 
effects on EFH; include an analysis of the practicability of potential 
new actions; and adopt any new measures that are necessary and 
practicable. However, new measures may not be necessary in all cases. 
The final rule requires that FMPs explain the reasons for Councils' 
conclusions regarding the past and/or new actions that minimize to the 
extent practicable the adverse effects of fishing on EFH.
    Comment D: One commenter suggested that NMFS revise the EFH 
regulations to require Councils to adopt framework measures to address 
fishing impacts.
    Response D: NMFS disagrees with this suggestion. It is not 
necessary or appropriate to add a requirement to the EFH regulations 
that Councils use framework measures as the mechanism to address 
fishing impacts. Rather, Councils should decide which administrative 
approach is most appropriate to use to meet the requirements of the EFH 
provisions.
    Comment E: Several conservation groups recommended that each 
fishing activity be prohibited until it can be demonstrated that the 
activity does not adversely affect EFH.
    Response E: NMFS disagrees. The approach suggested by the 
commenters would not be consistent with the statutory requirement to 
minimize adverse effects on EFH ``to the extent practicable'' and would 
have significant adverse socioeconomic impacts. The EFH provisions of 
the Magnuson-Stevens Act and the EFH regulations provide adequate 
mechanisms to evaluate the effects of fishing activities on EFH and 
ensure the minimization of adverse impacts on such habitat.

[[Page 2355]]

    Comment F: Two commenters recommended that NMFS provide clearer 
guidance on how to interpret the term ``practicable'' and how Councils 
should carry out practicability analyses to comply with the statutory 
requirement to minimize to the extent practicable adverse effects on 
EFH caused by fishing. Another commenter noted that the phrase 
``consistent with national standard 7'' in the section on conducting 
practicability analyses is unnecessary since all actions must be 
consistent with national standard 7 under the Magnuson-Stevens Act.
    Response F: The final rule clarifies the guidance for considering 
practicability. The revised language eliminates redundancy and advises 
Councils to consider long- and short-term costs and benefits of 
potential management measures to EFH, associated fisheries, and the 
nation. The final rule retains a reference to national standard 7 to 
provide context for the consideration of the costs and benefits of 
potential management measures.
    Comment G: One commenter requested that NMFS reinsert the words 
``the marine ecosystem'' in place of ``EFH'' in the following passage 
from Sec. 600.815(a)(3)(iv) of the interim final rule: ``Councils 
should consider whether, and to what extent, the fishing activity is 
adversely impacting EFH...'' The commenter stated that the language 
used in the proposed rule was a more accurate reflection of the spirit 
of the Magnuson-Stevens Act.
    Response G: NMFS disagrees. The Magnuson-Stevens Act requires 
Councils to address the effects of fishing on EFH, not on the entire 
marine ecosystem. The final rule incorporates editorial changes to 
eliminate redundancy, and therefore omits language cited by the 
commenter. The cited paragraph appears at Sec. 600.815(a)(2)(iii) of 
the final rule.
    Comment H: One commenter suggested that the EFH regulations clarify 
that Councils must address the effects of fishing covered under one FMP 
on EFH covered under another FMP.
    Response H: NMFS agrees. The final rule clarifies that each FMP 
must minimize to the extent practicable adverse effects from fishing on 
EFH, including EFH designated under other Federal FMPs. The final rule 
also clarifies that each FMP must contain an evaluation of the 
potential adverse effects of fishing on EFH designated under the FMP, 
including effects of each fishing activity regulated under the FMP or 
other Federal FMPs.
    Comment I: Several commenters recommended that NMFS revise the EFH 
regulations to indicate what constitutes grounds for disapproval of the 
portion of FMPs pertaining to minimization of fishing impacts.
    Response I: Disapproval is warranted if an FMP or amendment is not 
consistent with the national standards, other provisions of the 
Magnuson-Stevens Act, or other applicable law. The EFH regulations 
provide guidance on meeting the EFH requirements of the Act, and 
failure to follow the guidance may lead to disapproval or partial 
approval of an FMP or amendment. It is unnecessary to state the grounds 
for disapproval in the regulations.
    Comment J: One commenter recommended that NMFS require Councils to 
coordinate with states and other authorities to provide conservation 
recommendations when Council-managed fisheries adversely affect EFH 
outside Federal jurisdiction.
    Response J: The Magnuson-Stevens Act does not authorize NMFS to 
require Councils to coordinate with or provide recommendations to 
states or other authorities, although Councils have authority under the 
Act to provide recommendations to states regarding actions that may 
affect the habitat of species under Council jurisdiction. When Council-
managed fisheries adversely affect EFH in state waters, the Council 
should coordinate with the affected state(s) when developing management 
strategies.

15. Comments on the Identification of Specific Industries with 
Potential Adverse Effects on EFH

    Comment A: Two commenters thought that the final rule should 
identify specific industries that adversely impact EFH.
    Response A: During the comment period for the proposed rule, many 
commenters objected to their particular industries or activities being 
highlighted as having potential adverse effects on EFH. Many pointed 
out that non-fishing activities do not always adversely impact fish 
habitat. Some industries pointed out that they are involved in 
restoration efforts and that some of their activities have been 
documented as producing positive effects on fisheries, not adverse 
effects. In the preamble to the interim final rule at 62 FR 66540, NMFS 
acknowledged that many industries take certain actions specifically to 
improve fish habitat even if other activities conducted by the industry 
may adversely affect fish habitat. Therefore, the final rule avoids 
singling out specific industries or activities that have the potential 
to adversely affect EFH.
    Comment B: One port authority asked NMFS to clarify that ``non-
water dependent activities,'' as used in the interim final rule, 
excludes port development and maintenance activities. The commenter's 
request extended to other location-dependent activities such as bridge 
and utility/cable-line installation and maintenance.
    Response B: Although NMFS has removed from the regulations the 
reference to specific non-water dependent activities, any Federal 
action that may adversely affect EFH is subject to consultation 
regardless of water dependency.
    Comment C: Several non-fishing industry commenters asked NMFS to 
explain its authority for asking the Councils to identify non-fishing 
activities, and stated that the Magnuson-Stevens Act appears only to 
provide authority to identify fishing activities.
    Response C: NMFS addressed this concern in the preamble to the 
interim final rule at 62 FR 66539-66540 and continues to disagree that 
its authority is limited to addressing fishing activities. One of the 
stated purposes of the Magnuson-Stevens Act is to promote the 
protection of EFH through the review of projects conducted under 
Federal permits, licenses, or other authorities that affect, or have 
the potential to affect, such habitat. These projects include non-
fishing activities. Section 303(a)(7) of the Magnuson-Stevens Act 
requires FMPs to address the effects of fishing on EFH and identify 
other actions to encourage the conservation and enhancement of EFH. The 
statute does not limit these measures to pertain only to fishing 
activities. A necessary first step to identifying conservation and 
enhancement measures is to identify adverse effects.
    Comment D: One commenter representing non-fishing industry 
interests wanted the final rule to require that FMPs document actual 
adverse effects to EFH, rather than potential adverse effects.
    Response D: NMFS disagrees. Documentation of actual adverse effects 
in most cases depends on site-specific factors, whereas the intent of 
this portion of the rule is to identify the types of activities that 
can commonly cause adverse effects. The final rule omits language 
stating that FMPs must identify activities that ``have the potential to 
adversely affect EFH'' and instead says that FMPs must identify 
activities ``that may adversely affect EFH.'' This change will make the 
standard for identifying threats to EFH consistent with the standard 
for actions

[[Page 2356]]

that require consultation under section 305(b)(2)of the Magnuson-
Stevens Act.

16. Comments on Cumulative Impacts Analysis

    Comment A: Many commenters, primarily environmental organizations 
and some individual commenters, wanted the final rule to mandate that 
the FMPs contain a cumulative impacts analysis of fishing and non-
fishing activities on EFH.
    Response A: NMFS agrees that FMPs should provide an analysis of 
cumulative impacts, but does not agree that such an analysis should be 
mandatory. The final rule clarifies that, to the extent feasible and 
practicable, FMPs should analyze how the cumulative impact of fishing 
and non-fishing activities influence the function of EFH on an 
ecosystem or watershed scale.
    Comment B: Commenters representing non-fishing interests asked that 
cumulative impact analysis concentrate on a more clearly defined and 
focused group of watershed activities. The commenters also wanted to 
know what time period the cumulative impact analysis should address and 
why cumulative risk assessments would be conducted at all, since they 
are likely to be time consuming and expensive.
    Response B: NMFS has clarified the cumulative impacts analysis 
language in the final rule. A cumulative impacts analysis is intended 
to evaluate the effect on EFH of impacts occurring within a watershed 
or marine ecosystem that may result from individually minor but 
collectively significant actions. It should consider the effects of all 
actions that affect the quantity and/or quality of EFH spanning a time 
frame deemed appropriate by the Councils. The resulting analysis will 
improve NMFS' and the Councils' ability to examine actions within a 
watershed or marine ecosystem that adversely affect EFH and will 
highlight the potential for future concerns. The final rule retains 
language stating that the FMPs should contain such an analysis to the 
extent feasible and practicable.
    Comment C: One commenter requested that the word ``minor'' be 
removed from the description of what can cause cumulative impacts from 
Sec. 600.815(a)(6) of the interim final rule.
    Response C: NMFS disagrees. The intent of a cumulative impacts 
analysis is to address potential effects of actions that may appear 
minor individually, yet have more serious consequences when viewed in 
the aggregate. Thus, the final rule retains language stating that 
cumulative impacts can result from individually minor, but collectively 
significant actions taking place over a period of time.
    Comment D: One commenter stated that the final rule should require 
the Councils to gather data to analyze cumulative impacts and that the 
quantity and quality of data should guide the conclusions on cumulative 
impacts. The commenter also wanted the FMPs to indicate which impacts 
are supported by data.
    Response D: National standard 2 requires that all conservation and 
management measures, including those that arise from a cumulative 
impacts analysis, be based upon the best scientific information 
available. NMFS agrees that the quantity and quality of available data 
should guide Councils' conclusions on cumulative impacts, although 
Councils should also consider that cumulative impacts may not be easily 
discernable from available data.

17. Comments on the Guidance for Identifying Actions to Encourage the 
Conservation and Enhancement of EFH

    Comment A: Two commenters addressed the guidance for general 
conservation and enhancement recommendations found in 
Sec. 600.815(a)(7)(ii) of the interim final rule. One of the commenters 
focused on the statement that ``Activities that may result in 
significant adverse effect on EFH should be avoided where less 
environmentally harmful alternatives are available.'' The commenter 
questioned the use of the term ``significant'' here as opposed to 
``identifiable'' in Sec. 600.815(a)(3) of the interim final rule and 
said that NMFS appears to be condoning an increased level of habitat 
disturbance for non-fishing activities. The commenter also suggested 
replacing ``should be avoided'' with ``will be avoided'' in this 
sentence. Another commenter, representing non-fishing interests, wanted 
NMFS to delete the reference to ``protecting'' EFH in this portion of 
the regulations.
    Response A: In the final rule NMFS deleted a large portion of the 
section entitled ``Conservation and enhancement'' that appeared in the 
interim final rule at Sec. 600.815(a)(7), including the language 
referenced by the commenters. The deleted paragraphs contained general 
recommendations and options for EFH conservation and enhancement to 
assist Councils in developing the required provision of FMPs discussing 
measures to conserve and enhance EFH. However, NMFS determined that 
such general recommendations do not need to be codified in regulations 
and that including this information in the final rule could lead to 
confusion since the general recommendation might not apply equally in 
all areas. The shortened section dealing with conservation and 
enhancement recommendations appears in the final rule at 
Sec. 600.815(a)(6).
    Comment B: One commenter wanted NMFS to clarify that habitat 
creation should be reserved for mitigating habitat losses or restoring 
native fish populations and should not alter natural habitats.
    Response B: As discussed above, the rule no longer contains any 
general recommendations for habitat creation or other methods to 
conserve and enhance EFH. Conservation and enhancement recommendations 
in FMPs must include options to avoid, minimize, or compensate for 
adverse effects to EFH. If appropriate, habitat creation may be a means 
of compensating for lost or degraded habitat. However, converting 
naturally functioning systems to another type of habitat warrants 
justification within an ecosystem context.
    Comment C: One state commenter asked for clarification on how the 
Councils will evaluate the effectiveness of each recommended mitigation 
measure (i.e., conservation and enhancement option). The commenter 
asked that the FMPs include feedback mechanisms to assess the 
effectiveness of, and establish a monitoring program for, recommended 
mitigation measures.
    Response C: The final rule does not require Councils to evaluate 
the effectiveness of each recommendation in FMPs for EFH conservation 
and enhancement. Council recommendations, however, should be based on 
the best scientific information available. NMFS and Councils may 
suggest monitoring requirements or other appropriate measures in their 
recommendations on state and Federal agency actions under sections 
305(b)(3) and (4) of the Magnuson-Stevens Act.
    Comment D: One commenter representing non-fishing interests wanted 
NMFS to delete the requirements of Sec. 600.815(a)(5) of the interim 
final rule that require Councils to identify non-fishing activities 
that may adversely affect EFH. Several commenters representing non-
fishing interests wanted NMFS to delete the language in 
Sec. 600.815(a)(7)(i) of the interim final rule that refers to 
conservation and enhancement measures for non-fishing activities. The 
commenters thought that the language addressing non-fishing activities 
exceeded the statutory authority of the Magnuson-Stevens Act and should 
be limited to fishing activities. The

[[Page 2357]]

commenters also stated that since the rule does not require listing 
conservation and enhancement recommendations for fishing activities, 
then it cannot do so for non-fishing activities.
    Response D: NMFS disagrees and maintains that it has statutory 
authority to address non-fishing activities. NMFS has clarified the 
language in the final rule that discusses the identification of non-
fishing activities that may adversely affect EFH in Sec. 600.815(a)(4) 
and conservation and enhancement recommendations in Sec. 600.815(a)(6), 
but these modifications did not change the substantive requirements of 
the rule. One stated purpose of the Magnuson-Stevens Act is to promote 
the protection of EFH through the review of projects conducted under 
Federal permits, licenses, or other authorities that affect, or have 
the potential to affect, such habitat. These projects include non-
fishing activities. Section 303(a)(7) of the Magnuson-Stevens Act 
requires FMPs to address the effects of fishing on EFH and identify 
other actions to encourage the conservation and enhancement of EFH. The 
statute does not limit these measures to fishing activities only. 
Likewise, section 305(b)(2) of the Magnuson-Stevens Act requires 
consultation for any federal action that may adversely affect EFH 
regardless of whether it is a fishing or non-fishing activity.
    Comment E: Several non-fishing interests wanted the final rule to 
require the Councils to report on current conservation and enhancement 
practices and use data to identify how further conservation and 
enhancement of EFH is possible with additional measures. One commenter 
said that FMPs should document existing conservation measures before 
recommending new measures.
    Response E: Councils must recommend appropriate measures for 
conservation and enhancement of EFH. These measures may include new 
recommendations or existing, routine practices of industry or other 
organizations that minimize potential harm to fish habitat. All Council 
recommendations should be based on the best scientific information 
available.
    Comment F: A port authority asked that the Councils be required to 
consider the economic impacts to non-fishing maritime interests of 
making recommendations for minimizing adverse effects to EFH. The 
commenter pointed out that the rule requires the Councils to consider 
whether it is practicable to recommend conditions to minimize adverse 
effects from fishing. Given the economic importance of ports, the 
commenter thought that the Councils should apply the same standard of 
practicability to other recommendations for minimizing adverse effects 
to EFH from port maintenance and development activities.
    Response F: As explained in the preamble to the interim final rule 
at 62 FR 66540, non-fishing and fishing impacts are held to different 
standards in the EFH regulations because of differences in the 
applicable provisions of the Magnuson-Stevens Act. Section 303(a)(7) of 
the Magnuson-Stevens Act requires that FMPs minimize effects of fishing 
on EFH to the extent practicable, and NMFS and the Councils manage 
fishing activities through regulations that must consider costs and 
benefits of required management measures. The requirement in Section 
303(a)(7) of the Magnuson-Stevens Act for Councils to recommend 
conservation and enhancement measures for non-fishing activities does 
not mention practicability, and it is the responsibility of the 
agencies with relevant jurisdiction to determine whether it is 
practicable to implement Council recommendations. Nevertheless, Council 
recommendations should be reasonable.

18. Comments on Habitat Areas of Particular Concern

    Comment A: Some commenters requested that NMFS delete all 
references to Habitat Areas of Particular Concern (HAPCs), saying that 
in encouraging Councils to designate HAPCs, NMFS is going beyond the 
scope of the EFH provisions since the Magnuson-Stevens Act does not 
specifically authorize the development of a subset of habitat within 
EFH. One commenter asked NMFS to clarify how the designation of HAPCs 
will be used to protect EFH, and specifically, how it will affect 
implementation of the consultation process. Other commenters urged NMFS 
to require Councils to designate HAPCs for all species and to hold 
HAPCs to a higher standard of protection.
    Response A: NMFS disagrees that development of HAPCs as a subset of 
EFH goes beyond the scope of the Magnuson-Stevens Act. The statutory 
definition of EFH is broad, encompassing all habitat necessary for fish 
to carry out their basic life functions. HAPCs provide a mechanism to 
acknowledge areas where more is known about the ecological function 
and/or vulnerability of portions of EFH.
    The designation of HAPCs is a valuable way to highlight priority 
areas within EFH for conservation and management. For example, a 
General Concurrence that is proposed for actions affecting HAPCs should 
be subject to a higher level of scrutiny than a General Concurrence not 
affecting HAPCs. Proposed fishing activities that might threaten HAPCs 
may likewise receive a higher level of scrutiny. NMFS has no authority 
to regulate activities other than fishing that may adversely affect EFH 
or HAPCs, so NMFS cannot impose protective measures for HAPCs through 
the consultation process. However, NMFS may recommend such measures to 
the applicable Federal or state action agency.
    NMFS cannot require Councils to designate HAPCs. Any higher degree 
of protection for areas designated as HAPCs would result from having 
more available information about the function or sensitivity of the 
habitat, or the human-induced threats to the habitat, which may justify 
more stringent or precautionary management approaches.
    Comment B: Some commenters recommended that the EFH regulations be 
revised to direct Councils to use HAPCs as the principal means to meet 
the requirements of the EFH provisions.
    Response B: While HAPCs help to focus EFH conservation priorities, 
HAPCs are localized areas that are especially vulnerable or 
ecologically important. Healthy populations of fish require not only 
these relatively small habitats, but also other suitable areas that 
provide necessary habitat functions to support larger numbers of fish. 
HAPCs can highlight valuable and/or vulnerable habitats, but alone are 
not intended to comprise the areas necessary to support healthy stocks 
of fish throughout all of their life stages.
    Comment C: One commenter requested that NMFS add a provision to the 
EFH regulations to allow stakeholders to petition NMFS to designate 
HAPCs.
    Response C: It is not appropriate to add an HAPC petitioning 
provision to the rule, because HAPCs should be proposed through the 
Council process. NMFS encourages interested parties to participate in 
the identification of HAPCs through the Council process. Council 
meetings occur regularly throughout the year and are open to the 
public.
    Comment D: The interim final rule listed four criteria for 
identifying HAPCs. One commenter requested that NMFS change the term 
``criteria'' to more accurately reflect that the four items are 
``considerations.''
    Response D: NMFS agrees and has changed ``criteria'' to 
``considerations.''
    Comment E: One commenter requested that NMFS revise the first

[[Page 2358]]

consideration for HAPCs to distinguish between current and historical 
importance of ecological function provided by a particular habitat. The 
commenter also noted that this consideration should be expanded to 
include a determination as to whether the area in question serves more 
than one ecological function.
    Response E: NMFS disagrees that a revision to this portion of the 
rule is necessary. The HAPC consideration regarding ecological 
importance may include both currently and historically important areas, 
provided that restoration of historic habitat functions is 
technologically and economically feasible. Additionally, Councils have 
flexibility to identify areas as HAPC that provide one or more 
important ecological functions.
    Comment F: One commenter requested that NMFS define the word 
``rarity'' in the fourth consideration for HAPC designation.
    Response F: The fourth consideration for HAPC designation is the 
rarity of the habitat type. NMFS disagrees that a definition of 
``rarity'' in the rule is needed, but suggests that Councils consider 
as rare those habitats that are less common than other habitats in a 
particular geographic area.
    Comment G: One commenter recommended that the EFH regulations be 
revised to require Councils to address all four HAPC considerations to 
designate an area as an HAPC.
    Response G: NMFS disagrees. Councils may designate HAPCs based on 
one or more of the four specified considerations, because any one of 
the considerations may provide sufficient basis for distinguishing a 
subset of EFH from the remainder of EFH.
    Comment H: One commenter recommended that the EFH regulations be 
revised to require Councils to use information sources that meet a high 
scientific standard to designate HAPCs.
    Response H: National standard 2 states that conservation and 
management measures shall be based upon the best scientific information 
available. This standard applies to all fishery management actions, 
including HAPC designation, and the final rule reemphasizes this point. 
Section 600.815(a)(1)(ii)(B) states, ``Councils should obtain 
information to describe and identify EFH from the best available 
sources, including peer-reviewed literature, unpublished scientific 
reports, data files of government resource agencies, fisheries landing 
reports, and other sources of information.'' The final rule further 
clarifies that Councils should consider different types of information 
according to its scientific rigor. Since HAPCs are a subset of EFH, the 
same standard applies to HAPC designation.
    Comment I: One Council requested that NMFS rename HAPCs ``EFH-
HAPCs'' to distinguish them from HAPCs identified by the Council prior 
to enactment of the EFH provisions of the Magnuson-Stevens Act.
    Response I: The final rule does not change the terminology for 
HAPCs because doing so would likely result in unnecessary confusion. 
Councils had the ability to identify particularly important habitat 
areas prior to the development of the EFH regulations, and may now 
identify such areas in the context of EFH. If a Council chooses to 
refer to HAPCs identified under the EFH regulations as ``EFH-HAPCs,'' 
it may do so. NMFS encourages the Councils to determine whether their 
previous identification of important habitats should be designated as 
HAPCs under the final rule.
    Comment J: One commenter questioned why the draft technical 
guidance manual would not be reopened for public review and comment 
given that it elaborates on the considerations on which to base HAPC 
designations.
    Response J: The rationale for not soliciting additional public 
comment on the guidance is discussed in the preamble to the interim 
final rule at 62 FR 66532. The draft technical guidance will be 
superseded with appropriate guidance for the final rule.
    Comment K: One Council stated that all mid-Atlantic estuaries 
should be considered as HAPCs because they function as spawning grounds 
and/or nursery areas for many managed species.
    Response K: The rule allows Councils to designate HAPCs in FMPs 
based on the ecological importance of an area of EFH, its sensitivity 
to anthropogenic degradation, whether it is or will be subject to 
stress from development, or its rarity. The commenting Council may 
designate HAPCs as appropriate using these guidelines.

19. Comments on New FMPs, FMP Amendments, and Updates

    Comment: A Council suggested that the final rule encourage updating 
the EFH information in FMPs whenever better information becomes 
available, rather than just once every five years. Several conservation 
groups commented that the regulations should require that new FMPs and 
modifications to existing FMPs continue to comply with the EFH 
requirements of section 303(a)(7) of the Magnuson-Stevens Act. Another 
commenter asked for clarification of what constitutes new information 
worthy of updating the EFH portions of an FMP. The same commenter 
recommended that NMFS amend the regulations regarding Stock Assessment 
and Fishery Evaluation (SAFE) reports at 50 CFR 600.315(e) to require 
the inclusion of EFH information, rather than keeping such information 
optional as in the current regulations.
    Response: NMFS agrees that the EFH components of FMPs should be 
revised as warranted based on available pertinent information. The 
final rule clarifies this point and encourages Councils to outline the 
procedures that will be used to review and update EFH information. The 
final rule also explains some of the types of information that Councils 
should review. The final rule does not establish a threshold level of 
information that should prompt revisions to an FMP because such 
decisions are best made on a case-by-case basis. Regarding SAFE 
reports, the regulations describing these reports do not list mandatory 
contents, but list information that ``should'' or ``may'' be included. 
NMFS does not intend to make EFH information a required part of SAFE 
reports since Councils should be able to report on their review of EFH 
information using other means if appropriate.

20. Comments on Development and Review of NMFS EFH Recommendations to 
Councils

    Comment: One commenter said that in NMFS' recommendations to 
Councils regarding the EFH components of FMPs, NMFS should include a 
description of the extent and quality of the best available scientific 
information.
    Response: NMFS' recommendations to Councils under Sec. 600.815(c) 
may take one of two forms: suggestions for the EFH components of an FMP 
that precede a Council's development of a draft EFH document, or a 
technical and policy review of a draft EFH document prepared by a 
Council. In cases where NMFS' recommendations precede a Council's 
development of a draft EFH document, the recommendations typically will 
include a review of the best available science. In cases where the 
recommendations constitute a review of a draft Council document, it may 
not be necessary for the recommendations to describe the available 
science if that information is summarized adequately in the Council's 
document. Therefore, the final rule does not contain language 
specifying that NMFS' recommendations should address the extent and 
quality of the best available scientific information. Nevertheless, 
national standard 2

[[Page 2359]]

requires fishery management measures to be based upon the best 
scientific information available.

21. Comments on the Effect of EFH Designations on other Agencies and 
Other Uses of Aquatic Areas

    Comment A: One commenter requested that NMFS delete reference to 
the word ``state'' in the sentence in Sec. 600.905(a) of the EFH 
regulations that reads, ``The purpose of these procedures is to promote 
the protection of EFH in the review of Federal and state actions that 
may adversely affect EFH.'' The commenter said that use of the word 
``state'' is inappropriate since the Magnuson-Stevens Act only applies 
to the review of Federal actions.
    Response A: NMFS disagrees. References to state actions is 
appropriate in this case since sections 305(b)(3) and (4) of the 
Magnuson-Stevens Act include provisions for NMFS and Councils to 
provide recommendations to state agencies on actions that could harm 
EFH.
    Comment B: One commenter suggested that NMFS defer to the U.S. Army 
Corps of Engineers on matters related to dredging and contaminated 
dredged material.
    Response B: NMFS has coordinated extensively with the Corps of 
Engineers on matters related to dredging and dredged material disposal 
and will continue to do so in the future. However, the Corps must 
consult with NMFS regarding its actions that may adversely affect EFH, 
and NMFS must provide EFH Conservation Recommendations on actions that 
would adversely affect EFH. NMFS and the Corps may in some cases 
disagree about potential impacts to EFH or appropriate measures to 
avoid, minimize, or offset such impacts.
    Comment C: One commenter requested that NMFS clarify that owners of 
structures designated as EFH are not required to maintain them for the 
sole purpose of providing EFH.
    Response C: NMFS does not have the authority to require owners of 
structures designated as EFH to maintain them as EFH.
    Comment D: One commenter opposed designation of heavily 
industrialized areas, such as active ports, as EFH, stating that EFH 
designation would be in direct conflict with the purpose of such areas.
    Response D: The Magnuson-Stevens Act requires Councils to identify 
as EFH those waters and substrate necessary to fish for spawning, 
breeding, feeding, or growth to maturity, regardless of whether those 
habitats occur in an industrialized area. NMFS disagrees that EFH 
designation is necessarily in conflict with heavily industrialized 
areas, since many active ports and other industrial areas continue to 
provide useful habitat for managed species.
    Comment E: Several commenters expressed concern that EFH 
designations would affect the rights of private landowners.
    Response E: NMFS addressed this concern in the preamble to the 
interim final rule at 62 FR 66535, and the response remains the same. 
EFH designation has no effect on the rights of private landowners.
    Comment F: One commenter recommended that the EFH identification 
process should recognize existing treaties, statutes, compacts, 
decrees, and other laws and regulations that apply to areas under 
consideration for EFH designation so that the public is aware that EFH 
identification does not supersede other existing laws, interests, 
rights, or jurisdictions.
    Response F: NMFS agrees that the identification of EFH in an area 
and any applicable regulations do not supersede the regulations, 
rights, interests, or jurisdictions that pertain to such an area under 
treaties, compacts, decrees, and other laws.
    Comment G: One commenter requested that NMFS add language to the 
rule to recognize that non-fishing activities provide important 
economic and security benefits to the nation. The commenter suggested 
that NMFS direct the Councils to seek ways to provide for these 
activities while conserving EFH.
    Response G: NMFS recognizes the value and contributions of non-
fishing activities to the general public, but disagrees with the 
suggestion. NMFS and Councils have authority under the Magnuson-Stevens 
Act to provide recommendations to Federal and state agencies to 
minimize the adverse effects of non-fishing activities on EFH. It would 
be inappropriate to include in the EFH regulations a requirement for 
Council or NMFS positions on non-fishing activities to balance 
competing public interest factors. Council and NMFS recommendations on 
non-fishing activities under the Magnuson-Stevens Act are non-binding 
and are intended to address effects on EFH and fishery resources. 
Action agencies must consider the overall public interest, including 
the public benefits of the proposed action, when deciding whether to 
adopt these recommendations.

22. Comments on the Authority to Issue Regulations Regarding EFH 
Coordination, Consultation, and Recommendations

    Comment A: A number of non-fishing industry groups questioned NMFS' 
authority to establish procedures by regulation for the EFH 
coordination, consultation, and recommendation process. These 
commenters questioned the need for such procedures and asserted that 
the Magnuson-Stevens Act does not authorize NMFS to establish 
requirements for other agencies as part of the EFH consultation 
process.
    Response A: NMFS addressed similar comments in the preamble to the 
interim final rule at 62 FR 66542, and continues to maintain that it 
has the authority to issue regulations to implement the EFH 
coordination, consultation, and recommendation requirements of the 
Magnuson-Stevens Act. Section 305(d) of the Magnuson-Stevens Act 
confers upon the Secretary the authority to promulgate such regulations 
as may be necessary to carry out any provision of the Act. Regulations 
are necessary to implement Sections 305(b)(1)(D) and 305(b)(2)-(4) of 
the Magnuson-Stevens Act so that all affected parties will understand 
the Secretary's interpretation of these sections of the Act and the 
processes and information needs associated with carrying out the 
specific statutory requirements. Without such regulations, there likely 
would be considerable confusion, inconsistency, and inefficiency 
amongst Federal agencies, state agencies, Councils, and NMFS regarding 
the implementation of these sections of the Act.
    Comment B: Several non-fishing industry groups identified specific 
provisions of the interim final rule that they believed illustrate that 
NMFS has exceeded its authority. With regard to the preparation of EFH 
Assessments, some commenters said that the Magnuson-Stevens Act gives 
NMFS no authority to require other agencies to provide specific 
information or otherwise prescribe how they should consult with NMFS 
regarding EFH. Some commenters felt that EFH consultations can be 
addressed through existing environmental review processes under other 
laws (such as the National Environmental Policy Act) with no additional 
EFH-specific information. Some commenters said that the requirement for 
a finding by NMFS is not authorized by the Magnuson-Stevens Act and 
should not be necessary before an existing environmental review process 
can be used for EFH consultations. Others said

[[Page 2360]]

that it is inappropriate for NMFS to suggest time frames that Federal 
agencies should follow as part of the EFH consultation process. A few 
commenters said NMFS has no authority to require other agencies to use 
the best scientific information available regarding potential adverse 
effects of an action on EFH, suggesting that action agencies may simply 
notify NMFS of proposed actions and leave the evaluation to NMFS.
    Response B: Subpart K of the regulations details the procedures and 
information determined by the Secretary to be necessary to carry out 
the specific requirements of Sections 305(b)(1)(D) and 305(b)(2)-(4) of 
the Magnuson-Stevens Act in an efficient and effective manner. As noted 
in the preamble to the interim final rule at 62 FR 66542, information 
in an EFH Assessment is necessary to enable NMFS to fulfill its 
statutory requirement to provide EFH Conservation Recommendations to 
Federal agencies. This cooperative exchange of information and 
recommendations between NMFS and Federal agencies is vital for 
effective consultation regarding actions that may adversely affect EFH, 
and is inherent in the requirement for Federal agencies to consult with 
NMFS.
    The Magnuson-Stevens Act does not provide for an exemption from EFH 
consultations if another environmental review is required for an 
action, and other environmental reviews generally do not address 
specific habitat considerations for managed species of fish and 
shellfish. However, NMFS encourages Federal agencies to combine EFH 
consultations with other environmental reviews. When Federal agencies 
choose this approach to EFH consultation, the regulations require a 
finding by NMFS that the selected process provides specific EFH-related 
information in a timely way. A finding is necessary to ensure that 
consultations are implemented effectively and efficiently. It is 
appropriate for NMFS to require the EFH Assessment information and a 
finding because otherwise consultations using different environmental 
review processes might not fulfill the requirements of Section 
305(b)(2) of the Magnuson-Stevens Act.
    The final rule continues to provide time frames for abbreviated and 
expanded consultation, and continues to include language allowing NMFS 
and a Federal action agency to agree to use a compressed schedule in 
cases where shorter time frames are appropriate. The inclusion of time 
frames in the regulations helps to make consultations efficient, and 
NMFS recognizes the need to be flexible when consultation using those 
time frames is not practicable for other agencies.
    Regarding the requirement for Federal agencies and NMFS to use the 
best available scientific information, NMFS' intent is to promote an 
open exchange of information regarding the effects of actions on EFH. 
Federal agencies may have scientific information about their actions 
that is not readily available to NMFS, so providing this information 
will help to make consultations efficient.
    Comment C: A national association involved in the construction 
trades requested that NMFS rescind or suspend the consultation and 
coordination provisions of the interim final rule until an open, 
constructive dialog has occurred with all interested parties.
    Response C: NMFS has provided numerous opportunities for 
constructive dialog as part of this rulemaking. NMFS held five public 
comment periods, 21 public meetings, and numerous briefings and 
meetings with individual groups, including representatives of the 
construction trades and other non-fishing industries. NMFS received 
many written comments as well as extensive verbal feedback from these 
groups and others interested in the EFH regulations, and NMFS has 
carefully considered these comments. Based in part on this productive 
exchange of information, NMFS decided to proceed with the final rule.

23. Comments on Coordination for the Conservation and Enhancement of 
EFH

    Comment: One commenter criticized the section of the interim final 
rule that says NMFS will compile and make available to other agencies 
information on the locations of EFH, and that NMFS will provide 
information on ways to improve ongoing Federal operations to promote 
the conservation and enhancement of EFH. The commenter said there is no 
authority for what the commenter characterized as NMFS' aggressive 
provision of information to other agencies, and implied that NMFS is 
seeking to reopen approved Federal programs. The same commenter said 
that the final rule should allow for public access to the information 
NMFS provides to Federal agencies under this section of the 
regulations.
    Response: Section 305(b)(1)(D) of the Magnuson-Stevens Act requires 
the Secretary to coordinate with and provide information to other 
Federal agencies to further the conservation and enhancement of EFH. 
The interim final rule addressed this requirement by stating that NMFS 
would provide pertinent information to Federal and state agencies. NMFS 
does not consider this to be improper; rather, it is an attempt to 
promote awareness of EFH and opportunities for conservation of EFH, as 
required by the Act. The final rule clarifies that EFH consultation is 
not required for Federal actions that were completed prior to the 
approval of EFH designations by the Secretary. The final rule also 
states that NMFS will make available to Federal and state agencies, and 
the general public, information on the locations of EFH, including maps 
and/or narrative descriptions.

24. Comments on Federal Actions Subject to EFH Consultation

    Comment A: One commenter, concerned about potentially large 
workload requirements on Councils, NMFS, and action agencies, 
recommended that NMFS restrict the consultation requirements to those 
actions that will adversely affect EFH, rather than those that may. The 
commenter also recommended that NMFS establish realistic procedures and 
requirements for EFH consultation.
    Response A: The Magnuson-Stevens Act requires Federal agencies to 
consult on any action that may adversely affect EFH, and NMFS cannot 
change this requirement by regulation. The final rule clarifies the 
approaches for conducting EFH consultation and simplifies the 
development of General Concurrences to improve the efficiency of the 
consultation process.
    Comment B: One commenter recommended that the taking of species 
under special permits, such as for research and monitoring, not be 
subject to consultation. Another commenter recommended that projects 
designed to restore, improve, or protect fish habitat be excluded from 
consultation.
    Response B: Any Federal action that may adversely affect EFH 
requires consultation, and NMFS cannot grant waivers for specific types 
of actions. The action agency must determine whether the approved 
action may adversely affect EFH and, if so, consult with NMFS. Not all 
activities result in adverse effects on EFH. Research or monitoring 
activities may cause no adverse effects at all, or may result in 
minimal impacts that could be addressed through a General Concurrence. 
Restoration or similar projects for beneficial purposes may still 
result in habitat disruption or alteration, both short- and long-term, 
and are subject to consultation if they may adversely affect EFH. In 
such cases, consultation provides an opportunity for NMFS to make EFH 
Conservation

[[Page 2361]]

Recommendations to reduce or eliminate any adverse effects.
    Comment C: One commenter requested clarification on how NMFS 
intended to handle consultations regarding Federal programs delegated 
to states.
    Response C: The rule requires consultation on Federal programs 
delegated to non-Federal entities at the time of delegation for those 
programs that result in activities that may adversely affect EFH. For 
programs that were delegated prior to the approval of EFH designations 
by the Secretary, EFH consultation is required when the delegation is 
reviewed, renewed, or revised. The delegation itself, and any review, 
renewal, or revision of the delegation, are Federal actions, and the 
Federal agency may consult with NMFS using any of the approaches for 
conducting consultation (Sec. 600.920(a)(2)) applicable for a 
particular delegation. Such consultations can be performed on a 
national or regional basis, as appropriate.
    Comment D: Three commenters questioned the guidance on actions 
requiring EFH consultation, and specifically the guidance regarding 
consultation for existing or completed actions. One specifically 
requested clarification regarding the need for consultation on Federal 
reviews of actions.
    Response D: The final rule clarifies that EFH consultation is not 
required for actions that were completed prior to the approval of EFH 
designations by the Secretary. In addition, the rule clarifies that 
consultation is required on renewals, reviews, or substantial revisions 
of actions only if the renewal, review, or revision may adversely 
affect EFH.
    Comment E: One non-fishing industry trade association commented 
that in many cases there are statutory constraints on Federal 
delegations of authority to states that may prevent the delegating 
agency from addressing other concerns, such as EFH. The commenter said 
that such actions therefore should not be subject to EFH consultation.
    Response E: Federal agency delegations are subject to consultation 
if they may adversely affect EFH, regardless of whether the agency has 
the discretion to condition the delegation. Many agencies provide for 
interagency review of these actions specifically to incorporate other 
concerns, and condition the delegations accordingly. If a particular 
agency is incapable of addressing such concerns because of statutory 
constraints, such information should be provided as part of the EFH 
Assessment during consultation. Additionally, the final rule retains a 
provision that NMFS will not recommend that state or Federal agencies 
take actions beyond their statutory authority.
    Comment F: One commenter representing agricultural interests said 
that NMFS should establish a causal link between agricultural practices 
and effects to EFH before requesting consultation or providing EFH 
Conservation Recommendations. The commenter expressed concern that 
there is no clear threshold of significance or likelihood of adverse 
effect on EFH to trigger consultation or recommendations from NMFS or a 
Council.
    Response F: The Magnuson-Stevens Act contains no requirement for 
definitive proof of an adverse effect to EFH before triggering the 
requirements for consultation and recommendations. Section 305(b)(2) of 
the Act requires Federal agencies to consult with the Secretary 
regarding any action or proposed action that may adversely affect EFH. 
Section 305(b)(3) of the Act authorizes Councils to comment on any 
Federal or state agency action that may affect the habitat, including 
EFH, of a fishery resource under Council jurisdiction, and requires 
such comments when a Council believes the action would substantially 
affect the habitat of an anadromous fishery resource. Section 
305(b)(4)(A) of the Act requires NMFS to provide conservation 
recommendations for any Federal or state agency action that would 
adversely affect EFH.
    Comment G: One sport diving association expressed concern about the 
loss of artificial reefs, jetties, shipwrecks, and other shoreline fish 
habitat as a result of large-scale sand replenishment projects and 
recommended a number of measures to address these concerns through the 
EFH consultation process.
    Response G: If artificial structures are identified as EFH in a 
fishery management plan, NMFS will address potential adverse effects 
through the consultation process.

25. General Comments on the Coordination, Consultation, and 
Recommendation Procedures

    Comment A: A number of non-fishing industry commenters said that 
the interim final rule creates a duplicative regulatory review process 
and recommended that NMFS exempt all activities currently subject to 
habitat review under other statutes from EFH consultations.
    Response A: The Magnuson-Stevens Act requires consultation on all 
Federal actions that may adversely affect EFH. While other laws also 
have environmental review requirements, no other mandate specifically 
evaluates potential adverse effects on habitats for commercially and 
recreationally important species of fish. Section 2(b) of the Act 
states that one of Congress' purposes was ``to promote the protection 
of essential fish habitat in the review of projects conducted under 
Federal permits, licenses, or other authorities that affect or have the 
potential to affect such habitat.'' Therefore, an important purpose of 
EFH consultations is to provide information to action agencies to 
ensure consideration of potential impacts to EFH. NMFS has no authority 
to exempt any Federal actions from the consultation requirements, but 
has provided flexibility in the rule to combine EFH consultations with 
other environmental reviews to avoid duplication.
    Comment B: Two non-fishing interests suggested that EFH 
consultation provides little benefit given the comprehensive 
protections already in place through other environmental review 
processes.
    Response B: Congress indicated through the EFH provisions of the 
Magnuson-Stevens Act that existing environmental reviews are not 
adequate for the conservation and management of fishery resources of 
the United States. Direct and indirect habitat losses have been and 
continue to be serious threats to the long-term sustainability of many 
fisheries. Fish habitat has received limited consideration in the 
assessment of environmental impacts for activities authorized or 
supported by Federal agencies. The EFH provisions enable NMFS to work 
cooperatively with other agencies to promote the conservation of EFH.
    Comment C: Four non-fishing industry organizations recommended that 
the final rule make clear that EFH consultations are an information 
exchange process, not a separate regulatory review, and may be 
documented in an informal manner. A separate forestry association 
commenter recommended that EFH consultations be verbal since they are 
not binding.
    Response C: NMFS disagrees with these suggestions. The EFH 
provisions of the Magnuson-Stevens Act require more than a simple 
information exchange. Federal agencies must consult with NMFS regarding 
actions that may adversely affect EFH and must provide detailed written 
responses to NMFS' EFH Conservation Recommendations. An informal 
process without documentation would not fulfill these

[[Page 2362]]

statutory requirements. Moreover, documenting EFH consultations in 
writing reduces the chances for errors and misunderstandings.
    Comment D: One commenter suggested that NMFS write a clear 
explanation about the minimum steps an action agency must take to 
comply with this rule.
    Response D: The final rule simplifies and more clearly explains the 
approaches for conducting EFH consultations, the level of detail and 
mandatory contents of an EFH Assessment, the preparation of General 
Concurrences, and the process for programmatic consultations. Because 
the rule provides flexibility for Federal action agencies to choose a 
particular consultation approach depending on the nature and scope of 
the actions that may adversely affect EFH and the opportunities for 
combining EFH consultation with other environmental review procedures, 
there is no single set of minimum steps.
    Comment E: One Federal agency recommended that the final rule 
contain a provision allowing more flexibility regarding the timing for 
notification and consultation through the use of memoranda of agreement 
at the field level.
    Response E: NMFS disagrees that memoranda of agreement are 
necessary. However, the final rule retains language allowing Federal 
agencies to combine EFH consultations with other environmental reviews, 
and specific time frames may be developed in findings signed by NMFS at 
the regional level. In cases where EFH consultation is handled 
separately through abbreviated or expanded consultation, the rule also 
allows NMFS and action agencies to use a compressed schedule, which may 
be agreed upon at the field level.
    Comment F: One commenter expressed a need for greater clarification 
regarding the EFH and ESA consultation requirements and recommended a 
single point of contact for both programs.
    Response F: NOAA is implementing a one-stop-shopping approach to 
coordinate EFH, ESA, and other consultative requirements in an 
efficient and effective manner. As part of this approach NOAA staff 
will assist other agencies and the public in meeting all applicable 
NOAA consultative requirements, which in many cases (but not all) will 
mean that there is one principal NOAA point of contact. In addition, 
the interim final rule encouraged consolidating EFH consultations with 
other environmental reviews and incorporating EFH Assessments into 
documents prepared for other purposes, such as ESA biological 
assessments. This language has been retained in the final regulations.
    Comment G: Several states and non-fishing interests asked for 
clarification on how to meet the EFH requirements, including meshing 
multiple state and Federal environmental reviews when undertaking 
activities with Federal permits or funding. These commenters wanted the 
EFH requirements combined with existing Federal and state environmental 
programs.
    Response G: The final rule retains provisions from the interim 
final rule that encourage Federal agencies to consolidate EFH 
consultations with other environmental reviews. Further details on the 
operational procedures for combining EFH consultations with other 
environmental reviews should be provided in findings developed by NMFS 
pursuant to Sec. 600.920(f)(3) (renumbered from Sec. 600.920(e)(3) in 
the interim final rule). NMFS has developed over 40 such findings with 
Federal agencies to date. Regarding NMFS' EFH Conservation 
Recommendations to state agencies, the rule continues to state that 
NMFS will use existing coordination procedures or establish new 
procedures to identify state actions that may adversely affect EFH and 
to determine the most appropriate method for providing EFH Conservation 
Recommendations to state agencies.
    Comment H: Two commenters recommended that the final rule provide 
clarification on how NMFS and the Councils will coordinate in 
developing recommendations on Federal and state actions to ensure that 
agencies are not forced to choose between NMFS and Council 
recommendations.
    Response H: The final rule includes a new subsection 
(Sec. 600.925(d)) stating that NMFS will coordinate with each Council 
to identify the types of actions on which Councils intend to comment 
and that NMFS will share pertinent information with the Council on such 
actions. However, Councils have independent authority under section 
305(b)(3) of the Magnuson-Stevens Act to comment on Federal and state 
actions.
    Comment I: One commenter recommended that the rule be strengthened 
to prevent the segmentation of approvals for a single overall project 
in a specific geographic area that includes EFH.
    Response I: NMFS has no authority to prevent or restrict project 
approvals by other agencies. Under most circumstances, approaching 
project approvals in a piecemeal fashion is contrary to the 
environmental assessment requirements of statutes such as the National 
Environmental Policy Act and Clean Water Act, which call for the review 
of single and complete projects versus the sequential review of smaller 
phases of a larger project.
    Comment J: Several environmental organizations expressed concern 
that there will be instances where an action should not go forward 
because its adverse impacts are so significant. These commenters 
expressed particular concern for actions that have no available 
alternatives and for which mitigation will not eliminate significant 
adverse impacts.
    Response J: Section 305(b)(4)(A) of the Magnuson-Stevens Act 
directs NMFS to provide EFH Conservation Recommendations to Federal or 
state agencies on actions that would adversely affect EFH. The EFH 
Conservation Recommendations may include measures to avoid, minimize, 
mitigate, or otherwise offset adverse effects on EFH. NMFS could 
recommend that a particular Federal action should not be allowed. 
However, NMFS will not ask state or Federal agencies to take actions 
beyond their statutory authority and EFH Conservation Recommendations 
are not binding.

26. Comments Regarding Participation in the Consultation Process

    Comment A: One Federal agency commenter advocated its participation 
as an active technical team member in the process of developing EFH 
consultative procedures.
    Response A: NMFS will continue to work closely with Federal 
agencies when developing agency-specific procedures for EFH 
consultation, such as findings regarding the use of existing 
environmental review processes to handle EFH consultations.
    Comment B: One commenter requested clarification regarding the 
types of entities that a Federal agency may designate as a non-Federal 
representative for EFH consultation purposes, and expressed concern 
about the potential resource expenditures for non-Federal 
representatives to perform these duties.
    Response B: The rule places no restrictions on which entities a 
Federal agency may designate as non-Federal representatives for EFH 
consultation purposes. However, the Federal agency remains ultimately 
responsible for compliance with the EFH consultation provisions of the 
Magnuson-Stevens Act, including any costs associated with consultation. 
Federal agencies can reduce costs and maximize the

[[Page 2363]]

efficiency of required environmental analyses by combining EFH 
consultations with other environmental reviews.
    Comment C: Two non-fishing industry associations recommended that 
the rule provide an opportunity for Federal permit applicants to be 
involved in EFH consultations, beyond the possibility of designation as 
a non-Federal representative. One of these commenters said that NMFS 
should provide public notices of consultations, individual notices to 
stakeholders that are likely to be affected, and opportunities for 
affected stakeholders to request a hearing following the issuance of 
any recommendations.
    Response C: The Magnuson-Stevens Act requires that Federal agencies 
consult on actions that may adversely affect EFH. Permit applicants and 
other parties are under no such obligation and should confer with the 
applicable action agency to identify any opportunities for their 
involvement. It is not appropriate to provide public or personalized 
notices of consultations or opportunities for hearings regarding EFH 
Conservation Recommendations because the recommendations from NMFS are 
advisory in nature and because these additional steps would be 
inefficient, time consuming, and beyond the statutory requirements for 
EFH consultation.

27. Comments on EFH Assessments

    Comment A: A large number of environmental groups and individual 
commenters wanted NMFS to retain in the regulations the requirement to 
prepare an EFH Assessment. Similarly, these commenters wanted the final 
rule to ensure that EFH Assessments are required for Federal land-based 
actions that may adversely affect EFH. These commenters argued that the 
EFH Assessment is a necessary and appropriate mechanism to evaluate 
effects to EFH during the consultation process.
    Response A: The final rule maintains the requirement to prepare an 
EFH Assessment for any Federal action that may adversely affect EFH, 
regardless of whether the action is land-based or directly within 
waters designated as EFH. For actions covered by a General Concurrence, 
an EFH Assessment should be completed during the development of the 
General Concurrence and is not required for the individual actions. For 
actions addressed by a programmatic consultation, an EFH Assessment 
should be completed during the programmatic consultation and is not 
required for individual actions implemented under the program, except 
in those instances identified by NMFS in the programmatic consultation 
as requiring separate EFH consultation.
    Comment B: Many commenters addressed the required contents of an 
EFH Assessment. Many environmental groups and individual commenters 
asked that NMFS expand the required contents of an EFH Assessment to 
include mitigation measures, but some cautioned that the effectiveness 
of many mitigation measures is unproven. Many of the commenters thought 
the EFH Assessment should include the additional information 
requirements in Sec. 600.920(g)(3) of the interim final rule if 
available rather than just ``if appropriate.'' Several commenters 
wanted to know when the inclusion of additional information is needed 
and whether it related to the need for expanded consultation. One 
Fishery Management Council believed that a literature review should be 
included in the mandatory contents of an EFH Assessment.
    Response B: The final rule clarifies that the level of detail in an 
EFH Assessment should be commensurate with the complexity and magnitude 
of the potential adverse effects of the Federal action. Relatively 
simple actions involving minor adverse effects on EFH may have very 
brief EFH Assessments. Actions that pose a more serious threat to EFH, 
or involve more complex potential adverse effects, warrant a more 
detailed EFH Assessment. Since an expanded consultation is meant to 
address actions with substantial adverse effects, in many cases it 
would be appropriate for expanded consultations to include the 
additional information in an EFH Assessment. However, there also may be 
cases where some of the additional information (e.g., an alternatives 
analysis) is warranted for an abbreviated consultation. The level of 
information in an EFH Assessment depends on the action, and it is not 
appropriate to require additional information such as literature 
reviews and the results of on-site inspections for every EFH 
Assessment.
    Comment C: An industry association representing non-fishing 
interests wanted clarification on whether project applicants would be 
required to support a more detailed evaluation and incur the costs of 
developing Level 3 or 4 data when EFH had been identified by Level 1 or 
2 data.
    Response C: The description of data levels in the rule notes the 
type of information that the Councils will use to describe and identify 
EFH, whereas EFH Assessments do not require data collection for the 
purposes of identifying and describing EFH. The consultation 
requirements of the regulations apply to the Federal action agency and 
neither the action agency nor project applicant will be asked to 
collect Level 3 or 4 data as a consultation requirement. The Federal 
agency, however, might in some cases request information from the 
applicant for a Federal permit, license, or grant when the agency is 
completing an EFH Assessment.
    Comment D: One commenter thought a written EFH Assessment should be 
required only when an existing environmental review procedure could not 
be used and indicated that otherwise the EFH Assessment requirement 
would be too burdensome.
    Response D: The final rule maintains the requirement to prepare a 
written EFH Assessment for every Federal action that may adversely 
affect EFH. As described in the preamble to the interim final rule at 
62 FR 66543, to promote efficiency, when existing environmental review 
processes are available the EFH Assessment should be integrated into 
the same processes and documents that are used to satisfy other review 
requirements. NMFS encourages the use of existing environmental review 
procedures, but such procedures must include the information that 
comprises an EFH Assessment to support the consultation requirement set 
forth in section 305(b)(2) of the Magnuson-Stevens Act.
    Comment E: Some commenters wanted the final rule to reflect that a 
prior EFH Assessment could only be incorporated by reference into a new 
EFH Assessment if the Council(s) and NMFS determine it is adequate.
    Response E: Prior approval from NMFS or a Council is not necessary 
before a Federal agency incorporates by reference a completed EFH 
Assessment from another action. However, to make consultations 
efficient and to avoid requests for additional information, NMFS 
encourages action agencies to ensure that EFH Assessments include all 
necessary information.
    Comment F: One commenter cited the provision of the interim final 
rule regarding additional information that should be included in EFH 
Assessments, and recommended deleting the language that encouraged 
providing an alternatives analysis ``particularly when an action is 
non-water dependent.'' Furthermore, this commenter thought nothing in 
the Magnuson-Stevens Act suggests that non-fishing, non-water dependent 
activities should be covered by the rule.
    Response F: NMFS has deleted the reference to non-water dependent

[[Page 2364]]

activities from this section of the regulations because water 
dependency is not necessarily a more important consideration than 
others in determining the need for an alternatives analysis. NMFS 
disagrees, however, with the commenter's assertion that non-water 
dependent activities should not be covered by the rule. Section 
305(b)(2) of the Magnuson-Stevens Act requires consultation for any 
federal action that may adversely affect EFH and does not distinguish 
between water and non-water dependent activities.
    Comment G: A commenter asked NMFS to explain a statement in the 
response to comments on EFH Assessments in the preamble to the interim 
final rule at 62 FR 66545, which said that an action agency's 
conclusions regarding a potential adverse impact should be ``well 
supported by relevant research.'' The commenter asked that NMFS use the 
same standard when making EFH Conservation Recommendations.
    Response G: The final rule contains additional language to clarify 
that the level of detail in an EFH Assessment should be commensurate 
with the complexity and magnitude of the potential adverse effects of 
the federal action. Simple actions involving minor adverse effects on 
EFH would not necessitate that an action agency's conclusions be 
documented by citations to relevant research, whereas more complex 
actions and more detailed EFH Assessments could benefit from a review 
of pertinent literature. NMFS agrees that its EFH Conservation 
Recommendations must be based on the best scientific information 
available, and has modified Sec. 600.920(d) accordingly.

28. Comments on the Use of Existing Consultation or Environmental 
Review Procedures

    Comment A: One commenter stated that it was not NMFS' 
responsibility to make the implementation of all Federal laws more 
efficient.
    Response A: In emphasizing the use of existing environmental review 
processes for EFH consultation, NMFS seeks to make more efficient the 
implementation of the EFH coordination, consultation, and 
recommendation requirements of the Magnuson-Stevens Act, not all 
Federal laws.
    Comment B: Many commenters expressed concern about significant 
project delays due to the requirements for EFH consultation, and argued 
that EFH consultation should occur within the normal approval times 
established by Federal agencies for their authorizations. Some of these 
commenters said that NMFS does not have the authority to set or 
influence time frames for EFH consultations.
    Response B: The EFH regulations include numerous provisions to make 
EFH consultations efficient and effective, such as the use of existing 
environmental review procedures, General Concurrences, programmatic 
consultations, and options for using compressed schedules for 
abbreviated or expanded consultation. Regardless of the approach used 
for EFH consultation, NMFS will strive to provide its EFH Conservation 
Recommendations to action agencies within the normal public or agency 
comment periods for proposed actions.
    Federal agencies are required by section 305(b)(2) of the Magnuson-
Stevens Act to consult with the Secretary regarding actions that may 
adversely affect EFH. Section 305(d) of the Act authorizes the 
Secretary to promulgate such regulations as may be necessary to 
implement any provision of the Act. Accordingly, NMFS may establish 
time lines it considers appropriate to provide adequate notification 
and coordination regarding proposed actions and to allow sufficient 
time to prepare EFH Conservation Recommendations for actions that would 
adversely affect EFH. The rule allows NMFS and Federal agencies to 
agree to compressed consultation schedules in certain situations. In 
addition, existing environmental review processes may be used that 
allow shorter time frames for EFH consultation.
    Comment C: Numerous individuals and ten conservation and fishery 
organizations stated that the regulatory language in the interim final 
rule for the use of existing environmental review procedures was 
adequate and should not be changed. Another two commenters requested 
that procedures for use of existing environmental review processes not 
be changed until additional experience has been gained with the use of 
these processes to determine whether they meet the requirements of the 
law.
    Response C: The final rule includes only minor changes to the 
regulations regarding use of existing processes for EFH consultations. 
The changes are not substantive and are intended to clarify this 
portion of the rule.
    Comment D: Numerous individuals and ten conservation and fishery 
organizations expressed concern that a specific review of potential 
impacts of activities that may adversely affect EFH was critical, and 
that NMFS should not rely wholly on other environmental review 
processes.
    Response D: NMFS agrees, and the final rule clarifies that Federal 
agencies must provide NMFS with a written assessment of the effects of 
any action that may adversely affect EFH. While agencies may 
incorporate an EFH Assessment into documents prepared under another 
environmental review process, the assessment must still include all of 
the required information specified in the rule, which will ensure 
specific consideration of potential impacts to EFH. The final rule also 
explains that the level of detail in the EFH Assessment should be 
commensurate with the complexity and magnitude of the potential adverse 
impacts on EFH.
    Comment E: Three commenters recommended that the final rule require 
(rather than encourage) the use of existing environmental review 
processes for EFH consultations.
    Response E: While NMFS strongly encourages the use of existing 
processes and has signed more than 40 findings to date with various 
Federal agencies at both the national and regional levels, the use of 
existing processes is not appropriate in all situations. An action may 
be so unique or infrequent that a stand-alone EFH consultation is the 
most efficient approach to meet the statutory requirements, or a 
Federal agency may prefer to complete EFH consultation prior to 
initiating another required consultation (e.g., under ESA). In 
addition, other approaches to EFH consultation, such as programmatic 
consultations and General Concurrences, may be more efficient for 
certain categories of actions.
    Comment F: Three fishery or conservation organizations recommended 
that the rule be modified such that when using an existing process to 
complete EFH consultation, Federal agencies are required to notify NMFS 
of a proposed action according to the same time frames as in the 
existing process or 60-90 days prior to final agency action, whichever 
provides greater notice.
    Response F: The final rule specifies that existing processes must 
provide NMFS with timely notification and states that whenever possible 
NMFS should have at least 60 days notice prior to a final decision, or 
at least 90 days if the actions would result in substantial adverse 
impacts. NMFS and the action agency may agree to use shorter time 
frames provided they allow sufficient time for NMFS to develop EFH 
Conservation Recommendations. Any use of an existing environmental 
review process for EFH consultation requires that NMFS determine that 
the existing or modified process satisfies the

[[Page 2365]]

requirements of the Magnuson-Stevens Act, and if so, make a finding 
before the process may be used for EFH consultation. NMFS will not make 
findings for existing processes that do not provide adequate time to 
conduct EFH consultations.
    Comment G: One commenter remarked that the rule sets forth 
extremely stringent criteria for the use of existing environmental 
review processes for EFH consultations, such that no existing processes 
are likely to meet these criteria and all will have to be modified 
significantly to satisfy the requirements.
    Response G: Based on NMFS' experience implementing the interim 
final rule, this has proven not to be the case. To date NMFS has signed 
more than 40 findings with Federal agencies at both the regional and 
national level to use existing processes for EFH consultation. Numerous 
EFH consultations have been completed using a variety of other review 
processes pursuant to the National Environmental Policy Act; Clean 
Water Act; Rivers and Harbors Act; Marine Protection, Research, and 
Sanctuaries Act; Fish and Wildlife Coordination Act; and Endangered 
Species Act.
    Comment H: One commenter supported the use of existing procedures 
but noted that their use does not mean that no additional resources or 
time would be needed to comply with the EFH consultation requirements, 
because existing procedures may not have considered the specific 
factors involved in addressing adverse affects to EFH.
    Response H: NMFS agrees. Congress declared in section 2 of the 
Magnuson-Stevens Act that habitat considerations should receive 
increased attention for the conservation and management of fishery 
resources of the United States and noted that a purpose of the Act is 
to promote the protection of EFH in the review of projects conducted 
under Federal permits, licenses, or other authorities that affect or 
have the potential to affect such habitat. The statutory mandates for 
Federal agencies to consult on activities that may adversely affect EFH 
and to respond to NMFS' EFH Conservation Recommendations were intended 
as new requirements. NMFS designed the approaches to EFH consultation 
detailed in the final rule to implement the EFH provisions in an 
efficient manner, using existing processes and other mechanisms to 
minimize additional workload.

29. Comments on the Use or Development of General Concurrences and/or 
Programmatic Consultations

    Comment A: Two commenters asked NMFS to provide an update in the 
preamble to the final rule on the number of General Concurrences and 
programmatic consultations completed under the interim final rule and 
the overall status of NMFS' efforts to encourage the use of these two 
approaches to EFH consultations.
    Response A: NMFS has completed one General Concurrence and five 
programmatic consultations to date. The General Concurrence applies to 
actions authorized by the Army Corps of Engineers New England District 
via programmatic general permits under Section 404 of the Clean Water 
Act, Section 10 of the Rivers and Harbors Act, and Section 103 of the 
Marine Protection, Research, and Sanctuaries Act. The programmatic 
consultations cover certain Minerals Management Service petroleum 
development activities in the central and western Gulf of Mexico; 
certain Corps of Engineers nationwide permits; actions authorized by 
the Corps of Engineers Alaska District under general permits associated 
with the Anchorage Wetlands Management Plan; actions authorized by the 
Corps of Engineers Alaska District under general permits for water, 
wastewater, and sanitation facilities in Alaskan villages; and land 
management activities undertaken by the Bureau of Land Management and 
the Forest Service with the Oregon Coast, Lower Columbia River, and 
Willamette River Provinces of Oregon. NMFS is discussing several more 
General Concurrences and programmatic consultations with Federal 
agencies, and continues to advocate the use of these approaches to help 
reduce the number of actions that require individual consultations.
    In the course of working with Federal agencies to identify 
opportunities for developing General Concurrences and programmatic 
consultations, it became apparent to NMFS that some parties were 
confused about the distinction between these two approaches to EFH 
consultation. General Concurrences may be developed for categories of 
similar actions that would cause no more than minimal adverse effects 
on EFH individually or cumulatively. No further consultation is 
generally required for actions that fall within a General Concurrence. 
Programmatic consultations also cover categories of actions, but are 
not limited to actions with minimal effects on EFH and may result in 
identifying effects that need to be addressed separately through 
project-specific consultation. To help clarify the difference between 
General Concurrences and programmatic consultations, and to provide 
clearer guidance on how to conduct programmatic consultations, the 
final rule discusses programmatic consultations in a distinct section.
    NMFS also discovered through implementing the interim final rule 
that although General Concurrences are meant to be an efficient way of 
dispensing with consultations on actions that have minimal adverse 
effects, the process for issuing General Concurrences has actually 
hindered their development. The interim final rule required NMFS to 
consult with the appropriate Council(s) and provide an opportunity for 
public review prior to issuing a General Concurrence. These 
requirements stemmed from comments NMFS received on the Framework and 
proposed rule expressing concern that General Concurrences might allow 
more than minimal adverse effects to EFH without some degree of 
oversight.
    For the General Concurrence that NMFS completed, NMFS coordinated 
with the affected Councils. However, NMFS found the process to be 
cumbersome and not very beneficial. Council meeting agendas are often 
very full, and because General Concurrences are intended to address 
minor threats to EFH, the Councils did not view the proposed General 
Concurrence as a high priority and were not able to accommodate it 
immediately on their meeting agendas. Also, a discussion of the 
proposed General Concurrence could not be added to Council agendas at 
the last minute if time permitted because the Magnuson-Stevens Act does 
not allow additions to Council meeting agendas without public notice or 
within 14 days before a meeting. Since Councils meet relatively 
infrequently, this led to delays. After NMFS briefed the Councils, NMFS 
sought public comment through Council meetings and a Federal Register 
notice, but received no comments. In other cases nationwide, NMFS 
considered developing General Concurrences but deferred action because 
the time-consuming process of soliciting Council and public input led 
to potential General Concurrences being eclipsed by other EFH 
priorities. In summary, while the intent behind General Concurrences 
was to improve efficiency and allow NMFS and other agencies to focus 
more effort on actions posing a greater threat to EFH, the cumbersome 
process of issuing General Concurrences has discouraged their use, with 
little

[[Page 2366]]

apparent benefit in terms of public and Council review.
    NMFS modified the regulations to address these procedural 
inefficiencies while still keeping the public and Councils informed 
regarding General Concurrences. The final rule omits the requirements 
for public review and consultation with the appropriate Council(s), but 
contains a new provision stating that after completing a General 
Concurrence NMFS will provide a copy to the appropriate Council(s) and 
will make the General Concurrence available to the public by posting 
the document on the internet or through other appropriate means. The 
final rule retains language allowing NMFS to review and revise General 
Concurrences as needed, so NMFS can make adjustments if necessary to 
ensure that General Concurrences only cover actions with minimal 
adverse effects to EFH.
    Comment B: One conservation group commented that programmatic 
consultations do not ensure that individual projects or actions will be 
designed to minimize adverse effects, and thus consultation should 
occur at both the programmatic and project-specific level. Another 
organization commented that General Concurrences should not be used as 
an excuse to avoid project-specific consultations.
    Response B: Neither programmatic consultations nor General 
Concurrences may be used to avoid abbreviated or expanded consultation 
if an action warrants individual review to evaluate potential adverse 
effects to EFH. The final rule clarifies that for a programmatic 
consultation, NMFS will respond to the Federal agency with programmatic 
EFH Conservation Recommendations and will identify any potential 
adverse effects that require project-specific consultation because they 
could not be addressed programmatically. In some cases, however, it may 
be possible to address all reasonably foreseeable adverse effects to 
EFH with programmatic recommendations, so there would be no need for 
consultation on individual actions taken as part of the program. 
Likewise, General Concurrences can only be used for specified actions 
that have no more than minimal adverse effects on EFH, and any action 
that does not meet that standard would require separate consultation.
    Comment C: One commenter asked for clarification of the 
programmatic consultation process.
    Response C: NMFS agrees that clearer guidance is warranted for the 
programmatic consultation process. The final rule discusses 
programmatic consultation in a distinct subsection of Sec. 600.920 to 
allow easier comparison to the other approaches to conducting EFH 
consultations, and provides more detail on the purpose of and process 
for programmatic consultations.
    Comment D: One commenter said the process for developing General 
Concurrences is vague and may be burdensome.
    Response D: As discussed above, NMFS discovered through 
implementation that the process in the interim final rule for 
developing General Concurrences was more complicated and time-consuming 
than NMFS intended. The final rule simplifies and clarifies this 
process by removing the requirements for public review and consultation 
with the appropriate Council(s).
    Comment E: Many commenters said that NMFS should develop General 
Concurrences or programmatic consultations to cover actions related to 
the specific industries or activities in which the commenters are 
engaged, such as port development and operations, forest products, and 
petroleum development. Some of these commenters asked for clarification 
of proponents' responsibilities when advancing such a request.
    Response E: The development of a General Concurrence or 
programmatic consultation is initiated by NMFS or a Federal agency, 
although other interested parties may bring to the attention of NMFS or 
a Federal agency specific types of actions that might be appropriate 
for one of these categorical approaches to EFH consultation. Affected 
industries or other groups are not required to provide specific 
information in support of such a request, although specificity 
regarding the actions to be covered and their potential effects to EFH 
would help NMFS and the action agency evaluate such proposals.
    Comment F: A few commenters addressed the standards for determining 
whether a General Concurrence is appropriate for a given suite of 
actions. Two of these commenters asked for clarification of the 
standard that General Concurrences may be used for actions that would 
not cause greater than minimal adverse effects on EFH individually and 
cumulatively. A Federal agency recommended that NMFS should determine 
before issuing a General Concurrence not only that the actions would 
cause no more than minimal adverse effects, but also that coastal 
ecosystem health, including EFH, will generally benefit as a result of 
the Federal actions.
    Response F: Given the wide variety of Federal actions that could 
adversely affect EFH, NMFS decided that rather than defining ``minimal 
adverse effects'' in the rule, it is best to determine separately for 
each contemplated General Concurrence whether the actions would cause 
greater than minimal adverse effects on EFH individually and 
cumulatively. In general terms, however, minimal effects are those that 
can be considered negligible in terms of their impact on the quality or 
quantity of EFH due to their limited scope and/or duration. Since EFH 
consultation covers effects to EFH specifically rather than effects to 
coastal ecosystems in general, it is not appropriate to state in the 
rule that General Concurrences must benefit coastal ecosystem health.
    Comment G: One commenter said that it should be up to the Federal 
action agency to determine whether programmatic consultation is 
appropriate for a given circumstance, and suggested that it is improper 
for NMFS to tell Federal agencies how to consult.
    Response G: NMFS disagrees. NMFS must determine what type of EFH 
consultation is appropriate for any given Federal action or group of 
actions so that NMFS can ensure the consultation is consistent with the 
Secretary's interpretation of the requirements of section 305(b)(2) of 
the Magnuson-Stevens Act. It is important to select the appropriate 
approach to EFH consultation so that the exchange of information 
between NMFS and the Federal agency considers potential effects to EFH 
at a suitable level of detail, resulting in NMFS having the information 
necessary to provide EFH Conservation Recommendations as required by 
section 305(b)(4)(A) of the Magnuson-Stevens Act. If a Federal agency 
attempts to use a method of consultation that NMFS determines is 
inappropriate for a given action or actions, NMFS will advise the 
agency as to which approach is best suited to handle the action(s). If 
a Federal agency nevertheless fails to consult properly for actions 
that would adversely affect EFH, NMFS will provide EFH Conservation 
Recommendations based on the information available.
    Comment H: One commenter suggested that NMFS provide an example to 
illustrate how a Federal agency would track actions taken under a 
General Concurrence, as called for in the interim final rule. The 
commenter also recommended that the final rule require, rather than 
just suggest, annual reporting from each action agency.

[[Page 2367]]

    Response H: Tracking actions covered by a General Concurrence is 
necessary to ensure that the cumulative effects of the actions are no 
more than minimal. The final rule retains language from the interim 
final rule stating that tracking should include the number of actions 
taken under a General Concurrence, the amount and type of habitat 
adversely affected, and the baseline against which the actions will be 
tracked. For example, for a particular General Concurrence tracking 
could entail a Federal agency providing NMFS with periodic reports 
specifying this information, comparing the condition of the EFH prior 
to the actions with its condition after the actions, and providing any 
revised estimates of the number or location of actions expected during 
the next reporting period. The final rule does not require such 
reporting on an annual basis because there may be circumstances where 
reporting on another time cycle would be equally effective.
    Comment I: One commenter said that General Concurrences should also 
apply to Councils, so that Councils would not comment on individual 
Federal actions for which a General Concurrence has been issued.
    Response I: General Concurrences are a means of obviating the need 
for Federal agencies to consult with NMFS individually on specified 
types of actions that would cause no more than minimal adverse effects 
on EFH. The Magnuson-Stevens Act does not require Federal agencies to 
consult with Councils regarding EFH, and General Concurrences do not 
apply to comments from Councils on Federal actions. As discussed above, 
the final rule modifies the process for NMFS to coordinate with 
Councils regarding the development of General Concurrences. NMFS will 
provide a copy of all General Concurrences to the appropriate 
Council(s). If the Councils agree that the actions covered by a General 
Concurrence would have no more than minimal adverse effects on EFH, it 
is unlikely that the Councils would comment on those actions. However, 
Councils have independent authority under section 305(b)(3) of the 
Magnuson-Stevens Act to comment on federal and state agency actions 
that may affect the habitat of fishery resources under Council 
jurisdiction.

30. Comments on the Expanded Consultation Process

    Comment: Several commenters representing non-fishing interests 
wanted NMFS to clarify the thresholds for conducting EFH consultations 
and EFH expanded consultations. The commenters wanted NMFS to define 
the ``substantial adverse effects'' standard for actions requiring 
expanded consultation, and wanted examples of federal actions that 
would result in expanded consultation. Also, one commenter wanted to 
know who would be responsible for the costs of completing an EFH 
Assessment if an expanded consultation was required.
    Response: Section 305(b)(2) of the Magnuson-Stevens Act requires 
federal agencies to consult with NMFS when any Federal action may 
adversely affect EFH. The EFH regulations require expanded consultation 
for Federal actions that would result in substantial adverse effects to 
EFH. Generally, the action agency determines the appropriate level of 
consultation, although if NMFS believes that a proposed action will 
have substantial adverse effects on EFH, NMFS may request expanded 
consultation. The determination of substantial adverse effects should 
be based on project-specific considerations, such as the ecological 
importance or sensitivity of an area, the type and extent of EFH 
affected, and the type of activity. Substantial adverse effects are 
effects that may pose a relatively serious threat to EFH and typically 
could not be alleviated through minor modifications to a proposed 
action. For example, a harbor development project that requires 
significant dredging and filling, channel realignments, or shoreline 
stabilization near EFH would likely be considered to have substantial 
adverse effects to EFH. Regardless of the type of consultation, the 
action agency is responsible for preparing an EFH Assessment.

31. Comments on Supplemental Consultation

    Comment: Two commenters recommended that NMFS delete the section of 
the rule concerning supplemental consultation. One of these commenters 
said there is no provision in the Magnuson-Stevens Act to reopen a 
consultation. The other commenter thought this section was ambiguous 
and said that because of this provision action agencies and affected 
parties will not know whether consultations are final.
    Response: The provision on supplemental consultation is a necessary 
and appropriate part of the regulations because it informs Federal 
agencies that changes to the factual basis behind a completed EFH 
consultation may warrant reinitiating the consultation. Supplemental 
consultation is not necessary unless a Federal agency substantially 
revises its plans for an action in a manner that may adversely affect 
EFH, or if new information becomes available that affects the basis for 
NMFS' EFH Conservation Recommendations. It is reasonable to expect that 
a substantial change in circumstances may warrant review and 
potentially a change in EFH Conservation Recommendations.

32. Comments on NMFS' EFH Conservation Recommendations

    Comment A: Several commenters asked for more information to clarify 
the role of EFH Conservation Recommendations. One commenter asked 
whether the recommendations NMFS will make on Federal or state actions 
that would adversely affect EFH are limited to the recommendations 
contained in FMPs for EFH conservation and enhancement. Another 
expressed confusion about the difference between EFH Conservation 
Recommendations and EFH Assessments.
    Response A: The term ``EFH Conservation Recommendations'' in the 
final rule refers to recommendations provided by NMFS to a Federal or 
state agency pursuant to section 305(b)(4)(A) of the Magnuson-Stevens 
Act. NMFS is required to provide these recommendations regarding any 
Federal or state agency action that would adversely affect EFH, and 
Federal agencies are required to provide a detailed written response to 
such recommendations under section 305(b)(4)(B) of the Act. Thus, EFH 
Conservation Recommendations have different legal connotations than 
other EFH-related recommendations called for under the Magnuson-Stevens 
Act, such as Council recommendations to Federal or state agencies under 
section 305(b)(3), or recommendations for EFH conservation and 
enhancement in FMPs pursuant to section 303(a)(7). The final rule 
capitalizes the term ``EFH Conservation Recommendations'' to help 
emphasize that these recommendations differ from other EFH-related 
recommendations discussed in the regulations.
    EFH Conservation Recommendations are not limited to the 
recommendations contained in FMPs for EFH conservation and enhancement 
under section 303(a)(7) of the Act. For EFH consultations, NMFS' EFH 
Conservation Recommendations are based in part on EFH Assessments 
prepared by Federal agencies to describe the effects of agency actions 
on EFH.
    Comment B: One commenter said that NMFS should release its EFH 
Conservation Recommendations in draft form and make them available for 
public comment before conveying the

[[Page 2368]]

recommendations to a Federal or state agency.
    Response B: NMFS disagrees. Providing a comment period on EFH 
Conservation Recommendations could result in delays for Federal and 
state agencies that may be relying on NMFS' input to decide on 
appropriate measures to avoid or minimize adverse effects to EFH. 
Moreover, since EFH Conservation Recommendations are non-binding, they 
do not impose restrictions on proposed actions. If an action agency 
agrees with NMFS' EFH Conservation Recommendations but determines that 
adopting the recommendations may result in substantial changes to a 
proposed action, the agency may be required to seek additional public 
input under other laws before taking a final action that incorporates 
NMFS' recommendations.
    Comment C: Several commenters asked NMFS to clarify the process for 
providing EFH Conservation Recommendations to state agencies. Three of 
these commenters suggested that the final rule say specifically that 
state agencies are not required to consult with NMFS. A state 
regulatory agency asked for clarification as to when NMFS will provide 
EFH Conservation Recommendations to state agencies. The same agency 
asked whether NMFS and the Councils will provide recommendations by 
category of activity or adverse impact (e.g., dredging or filling) or 
on a case-by-case basis.
    Response C: The final rule includes a clarification that the 
Magnuson-Stevens Act does not require state agencies to consult with 
the Secretary regarding EFH. The final rule retains language stating 
that NMFS will use existing coordination procedures or establish new 
procedures to identify state agency actions that may adversely affect 
EFH and to determine the most appropriate method for providing EFH 
Conservation Recommendations to state agencies. In general, NMFS will 
strive to provide EFH Conservation Recommendations as appropriate on 
individual actions during the agency or public comment period. Councils 
may provide general recommendations in FMPs by category of activity or 
adverse impact under section 303(a)(7) of the Magnuson-Stevens Act, and 
may comment on individual actions under section 305(b)(3) of the Act.
    Comment D: A number of non-fishing industries commented that NMFS 
has little or no experience or expertise to evaluate non-fishing 
activities and provide recommendations.
    Response D: NMFS has commented on a variety of non-fishing threats 
to fish habitat under the Fish and Wildlife Coordination Act, National 
Environmental Policy Act, and other statutes since the agency was 
established in 1970. NMFS comments on thousands of such activities 
every year. Under section 305(b)(4)(A) of the amended Magnuson-Stevens 
Act, NMFS now is required to provide conservation recommendations for 
any Federal or state agency action that would adversely affect EFH. 
While NMFS may not have extensive expertise on all such threats to EFH, 
the information provided by Federal agencies through the consultation 
process in EFH Assessments will help NMFS to understand potential 
adverse effects and develop appropriate EFH Conservation 
Recommendations.
    Comment E: One commenter referenced the section of the interim 
final rule that said Federal agencies and NMFS must use the best 
scientific information available regarding the effects of proposed 
actions on EFH. The commenter said that NMFS should also use the best 
scientific information available to support its mitigation 
recommendations.
    Response E: NMFS agrees and has modified the regulations to add 
that Federal agencies and NMFS also must use the best scientific 
information available regarding the measures that can be taken to 
avoid, minimize, or offset adverse effects on EFH.

33.Comments on Federal Action Agency Responsibilities After Receiving 
NMFS' EFH Conservation Recommendations

    Comment A: Three commenters recommended that NMFS delete the 
provision requiring that Federal agency responses that are inconsistent 
with EFH Conservation Recommendations must include the scientific 
justification for any disagreements with NMFS over the anticipated 
effects of the proposed action and the measures needed to avoid, 
minimize, mitigate, or offset such effects. The commenters stated that 
NMFS has no authority to require a scientific justification, and 
pointed out that agencies may reject NMFS' recommendations on non-
scientific grounds.
    Response A: As noted in the preamble to the interim final rule at 
62 FR 66546, section 305(d) of the Magnuson-Stevens Act gives the 
Secretary authority to issue regulations necessary to carry out any 
provision of the Act, including the provision that calls for a detailed 
written response to NMFS' EFH Conservation Recommendations and an 
explanation for not following the recommendations. In the regulations, 
NMFS interprets this statutory requirement to include explaining the 
basis for any disagreement over technical matters that are within NMFS' 
area of expertise. NMFS acknowledges that Federal agencies may disagree 
with EFH Conservation Recommendations for reasons that involve economic 
costs, public safety considerations, or other factors unrelated to the 
scientific merit of the recommendations, and the rule does not require 
a scientific justification in such cases.
    Comment B: Several commenters said that NMFS does not have the 
authority to request further review of Federal agency decisions that 
are inconsistent with EFH Conservation Recommendations.
    Response B: NMFS disagrees. The process for further review of 
Federal agency decisions that are inconsistent with NMFS' EFH 
Conservation Recommendations is integral to completing interagency 
consultation effectively under section 305(b)(2) of the Magnuson-
Stevens Act. Interagency consultations by nature involve an exchange of 
information between agencies, and the process for further review 
provides a mechanism for resolving disagreements. NMFS has no authority 
to compel another Federal agency to hold final actions in abeyance 
pending the resolution of disputes about EFH. However, since NMFS does 
not anticipate requesting further review very frequently, NMFS hopes 
that Federal agencies will agree to defer final decisions temporarily 
if NMFS requests further review.
    Comment C: One commenter said that the process for further review 
must preserve the autonomy of the action agency to decide whether to 
implement NMFS' recommendations.
    Response C: NMFS agrees. NMFS' recommendations are non-binding. If 
a Federal agency ultimately decides not to accept one or more 
recommendations, the final rule and section 305(b)(4)(B) of the 
Magnuson-Stevens Act merely require the agency to explain in writing 
the reasons for not following the recommendations.
    Comment D: Several commenters requested more information about the 
process for further review of Federal action agency decisions that are 
inconsistent with NMFS' EFH Conservation Recommendations. One of these 
commenters said the final rule should specify a time period within 
which disagreements must be resolved. Another asked for the final rule 
to specify sequential levels of review in each agency and procedures 
for suspending action agency decisions during higher level review. Two 
of the commenters asked for more detailed procedures for involving the 
Councils in

[[Page 2369]]

higher level review of action agency decisions.
    Response D: The final rule does not include a time frame for 
resolving disagreements, nor does it specify sequential levels of 
review. Likewise, the final rule does not call for suspending action 
agency decisions pending higher level review. NMFS relies on other 
agencies to agree to further review of decisions that are inconsistent 
with NMFS' EFH Conservation Recommendations, including the procedures 
and time frames for such review. Procedures for Council involvement in 
higher level review are already discussed in the regulations, and may 
be elaborated upon if appropriate in any written procedures NMFS might 
develop to refine the process in the future.

34.Comments on Compliance with Applicable Laws and Executive Orders

    Comment A: One commenter asked for clarification on the 
relationship between the interim final rule and Executive Order 12962 
on Recreational Fisheries.
    Response A: Although the EFH regulations and Executive Order 12962 
both promote the themes of sustainability and interagency cooperation, 
there is no direct relationship between Executive Order 12962 and the 
Magnuson-Stevens Act EFH provisions. Executive Order 12962 was 
specifically designed to restore and enhance aquatic systems to provide 
for increased recreational fishing opportunities nationwide. Executive 
Order 12962 established the National Recreational Fisheries 
Coordination Council (the Coordination Council) to develop and 
encourage partnerships between government and private sports fishing 
and boating groups to foster aquatic conservation that benefits 
recreational fisheries. The Coordination Council was to promote 
conservation awareness of aquatic restoration programs and evaluate the 
effects of Federal activities on recreational fishing. The EFH 
regulations pertain to all federally managed species without 
distinguishing between commercial and recreational fisheries. The EFH 
regulations establish procedures to identify important habitats and 
evaluate the effects of various actions on EFH, rather than on 
recreational or commercial fishing.
    Comment B: Several commenters questioned whether NMFS had met its 
responsibilities under the Small Business Regulatory Enforcement 
Fairness Act (SBREFA), Title II of the Unfunded Mandates Reform Act, 
and Executive Order 12866.
    Response B: The Regulatory Flexibility Act (RFA), as amended by 
SBREFA, requires federal agencies to prepare an initial and final 
regulatory flexibility analysis for a rule unless the agency can 
certify that the rule will not have a significant economic impact on a 
substantial number of small entities. The Assistant General Counsel for 
Legislation and Regulation of the Department of Commerce made such a 
certification to the Chief Counsel for Advocacy of the Small Business 
Administration, as required by 5 U.S.C. 605(b). Therefore, NMFS was not 
required to complete an initial or final regulatory flexibility 
analysis under RFA.
    Under the Unfunded Mandates Reform Act, Federal agencies are 
required to enter a consultation process for any rulemaking that places 
responsibilities on another level of government (e.g., states) without 
paying the costs for carrying out these duties. Title II describes 
analyses and consultations that agencies must undertake for rules that 
may result in expenditures over $100 million in any year by state, 
local, and tribal governments, or the private sector. This rule will 
not require any expenditures by, nor place any responsibilities or 
duties on, state, local, or tribal governments, or the private sector. 
EFH consultations regarding Federal permits, licenses, or funding could 
lead the responsible Federal agency to restrict or limit the proposed 
action, which may result in indirect costs on the entity seeking the 
authorization or funding. However, any such requirements would be 
imposed at the discretion of the responsible Federal agency, and it 
would be speculative to evaluate such costs in conjunction with this 
rulemaking. Therefore, NMFS was not required to develop an assessment 
of the effects of this rule on other levels of government or the 
private sector.
    The final rule has been determined to be significant for the 
purposes of Executive Order 12866. As such, NMFS submitted this rule to 
the Office of Management and Budget (OMB) for review and approval.
    Comment C: One commenter thought the finding of no significant 
impact under the National Environmental Policy Act ignores the 
substantial amounts of staff time and other resources that Federal 
agencies will divert from other priorities to meet the EFH 
requirements.
    Response C: NMFS completed a revised EA that addresses how the 
final rule could affect various parties, including Federal agencies. 
The provisions of the final rule related to Federal agency consultation 
with NMFS could result in an expenditure of time and resources that 
detracts from other activities. However, the rule implements a clear 
requirement in the Magnuson-Stevens Act for Federal agencies to consult 
with NMFS on any action that may adversely affect EFH. The rule 
provides guidance on required information for consultations and 
encourages agencies to combine the consultation process with existing 
environmental review procedures, so that consultations will be 
completed in an efficient and effective manner.

Changes from the Interim Final Rule

    NMFS restructured parts of the section detailing the EFH contents 
of FMPs by providing a separate overview of the mandatory requirements 
and separating into distinct sections the guidelines for addressing 
general habitat information, information necessary to describe and 
identify EFH, and considerations for determining the limits of EFH. 
NMFS also restructured the section addressing fishing activities that 
may adversely affect EFH by separating into distinct sections the 
guidelines for evaluation of fishing activities and minimization of 
adverse effects. NMFS made these changes in response to commenters' 
concerns about a lack of clarity in the interim final rule, and based 
on NMFS' experience working with the Councils to add EFH information to 
existing FMPs.
    NMFS reorganized parts of the coordination, consultation, and 
recommendation procedures by providing a separate summary of the five 
approaches for conducting EFH consultation; addressing the requirements 
for EFH Assessments before providing the procedures for each approach 
for EFH consultation; and placing the requirements for programmatic 
consultations in a distinct section. NMFS made these revisions in 
response to commenters' concerns that the consultation requirements 
were confusing and difficult to follow.
    The changes to the rule are predominantly technical or 
administrative in nature and clarify intent or otherwise ease 
implementation of the EFH provisions of the Magnuson-Stevens Act. The 
following changes are listed in the order that they appear in the 
regulations. Grammatical or other minor changes are not detailed. 
Unless otherwise discussed below, the rationale for why changes were 
made from the interim final rule is contained in the Comments and 
Responses section.
    In many cases throughout the final rule ``effect'' or ``affect'' 
replaces ``impact'' because the Magnuson-

[[Page 2370]]

Stevens Act uses ``affect'' in the applicable provision of the statute, 
and/or to reflect common usage of the terms in the fields of ecology 
and environmental assessment. Also, ``Federal agency'' or ``agency'' 
replaces ``Federal action agency'' or ``action agency'' in many places 
throughout the rule. This change eliminates redundancy and simplifies 
the text, particularly given that many sections of the rule only apply 
to Federal agencies with actions that may adversely affect EFH (i.e., 
Federal action agencies).
    Throughout the final rule the phrase ``fishery management unit'' 
replaces the acronym ``FMU'' to improve understanding. ``Action'' 
replaces ``proposed action'' in many places to be inclusive of all 
types of agency actions. In several instances throughout Subpart J of 
the final rule ``life stage'' replaces ``life history stage'' to use 
the more common scientific term. In several places throughout Subpart 
K, ``existing environmental review process'' replaces ``existing 
consultation process'' to encompass environmental reviews that are not 
consultations per se.
    In a number of places throughout the final rule, paragraphs have 
been renumbered and references to paragraphs and sections have been 
changed to reflect the renumbering.
    In Sec. 600.805, paragraph (a), ``EFH provisions'' replaces 
``provision on EFH'' to improve clarity.
    In Sec. 600.805, paragraph (b), ``An FMP may'' replaces ``A Council 
may'' to clarify that FMPs are the appropriate vehicle to discuss 
habitat for species not included in the fishery management unit, if a 
Council chooses to do so.
    In Sec. 600.810, paragraph (a), NMFS modified the definition of 
``adverse effect'' by deleting the parenthetical examples of direct and 
indirect effects and instead explaining that ``Adverse effects may 
include direct or indirect physical, chemical, or biological 
alterations of the waters or substrate and loss of, or injury to, 
benthic organisms, prey species and their habitat, and other ecosystem 
components, if such modifications reduce the quality and/or quantity of 
EFH.'' The definition also includes new language to clarify that 
``Adverse effects to EFH may result from actions occurring within EFH 
or outside of EFH and may include site-specific or habitat-wide 
impacts, including individual, cumulative, or synergistic consequences 
of actions.''
    In Sec. 600.810, paragraph (a), the definition of ``Council'' omits 
the word ``Secretarial'' to be consistent with the definition of this 
term in Sec. 600.305(c) and 600.910(a).
    In Sec. 600.810, paragraph (a), the definition of ``habitat area of 
particular concern'' refers to areas identified pursuant to 
Sec. 600.815(a)(8) rather than Sec. 600.815(a)(9) because the final 
rule includes renumbered paragraphs.
    In Sec. 600.815, paragraph (a), a new paragraph (1) entitled 
``Description and identification of EFH'' replaces the former 
paragraphs (1) ``Habitat requirements by life history stage'' and (2) 
``Description and identification of EFH.'' As discussed above, the new 
organization clarifies the mandatory contents of FMPs by providing a 
separate overview and separating into distinct sections the guidelines 
for addressing general habitat information, information necessary to 
describe and identify EFH, and considerations for determining the 
limits of EFH. The language within this paragraph includes much of the 
language from corresponding sections of the interim final rule. 
Substantive changes are described below.
    In Sec. 600.815, paragraph (a), the description of Level 1 
information (formerly Sec. 600.815(a)(2)(i)(C)(1); now 
Sec. 600.815(a)(1)(iii)(A)(1)) clarifies that distribution data need 
not necessarily be limited to systematic presence/absence sampling 
data. The word ``distribution'' replaces ``presence/absence'' and 
``geographic range'' replaces ``distribution.'' The paragraph also 
includes a new sentence: ``Habitat use may also be inferred, if 
appropriate, based on information on a similar species or another life 
stage.''
    In Sec. 600.815, paragraph (a), a new paragraph (1)(iii)(B) says 
that in the absence of information to identify habitat usage by a given 
species or life stage, EFH should not be designated.
    In Sec. 600.815, paragraph (a), the former paragraph (2)(ii)(A) 
(now numbered (1)(iv)(A)) includes a new introductory sentence. The 
word ``described'' replaces ``obtained through the analysis'' and 
``identified as EFH of managed species'' replaces ``protected as EFH 
for managed species.'' The words ``at each life stage'' now appear at 
the end of the sentence regarding Level 1 information. The sentence 
regarding Level 2 through 4 information appears in a different place in 
the paragraph to improve organization, and instead of saying the 
information should be used ``to identify the habitats valued most 
highly within the geographic range of the species'' the sentence 
includes new language to identify ``habitats supporting the highest 
relative abundance; growth, reproduction, or survival rates; and/or 
production rates within the geographic range of a species.'' In the 
same paragraph ``distribution'' replaces ``presence/absence'' and the 
former ``identify those habitat areas most commonly used'' reads 
``identify EFH as those habitat areas most commonly used'' because the 
purpose of the analysis is to identify EFH, if sufficient information 
is available. A new sentence advises Councils to explain the analyses 
conducted to distinguish EFH from all habitats potentially used by a 
species, which will improve understanding of the basis for the 
designations. The paragraph omits three sentences: ``Areas so 
identified should be considered essential for the species. However, 
habitats of intermediate and low value may also be essential, depending 
on the health of the fish population and the ecosystem. Councils must 
demonstrate that the best scientific information available was used in 
the identification of EFH, consistent with national standard 2, but 
other data may also be used for the identification.'' The first of 
these sentences is unnecessary since references to identifying EFH now 
appear earlier in the paragraph. The second sentence is unnecessary and 
confusing since other provisions of the rule allow Councils to identify 
EFH broadly if warranted, and in such cases the habitats would not be 
regarded as intermediate or low value. The third sentence is 
unnecessary and redundant with the requirements of the Magnuson-Stevens 
Act.
    In Sec. 600.815, paragraph (a), a new paragraph (1)(iv)(B) includes 
more specific guidance for the text descriptions of EFH.
    In Sec. 600.815, paragraph (a), in the former paragraph (2)(ii)(B) 
(now numbered (1)(iv)(C)), ``may'' replaces ``should'' so that the rule 
permits, but no longer strongly recommends, considering all habitats 
currently used by a species to be essential, as well as certain 
historic habitats, if a species is overfished and habitat factors may 
be contributing to the species being identified as overfished. Councils 
should make this determination on a case-by-case basis. In the same 
paragraph, ``should be reviewed and amended'' replaces ``should be 
reviewed, and the FMP amended'' because in many cases the 
identification of EFH can be amended via a framework adjustment rather 
than a full FMP amendment.
    In Sec. 600.815, paragraph (a), in the former paragraph (2)(ii)(C) 
(now numbered (1)(iv)(D)), ``Areas described as EFH will normally'' 
replaces ``EFH will always.''
    The final rule omits the language that appeared as Sec. 600.815 
(a)(2)(ii)(D) of the

[[Page 2371]]

interim final rule to eliminate redundancy.
    In Sec. 600.815, paragraph (a), the former paragraph (2)(ii)(E) 
(now numbered (1)(v)(E)) omits ``or species assemblage'' and includes 
two new sentences to explain the conditions for designating EFH for 
species assemblages.
    In Sec. 600.815, paragraph (a), in the former paragraph (2)(ii)(F) 
(now numbered (1)(iv)(F)), ``stream or river blockages'' replaces 
``fish blockages'' to be more accurate about the problem to be address 
by improved fish passage techniques. The text omits the words ``or 
quantity'' before ``measures'' to eliminate jargon and redundancy. The 
word ``necessary'' replaces ``essential'' to improve consistency with 
the Magnuson-Stevens Act.
    In Sec. 600.815, paragraph (a), in the former paragraph (2)(iii) 
(now numbered (1)(v)), the final rule contains new language to clarify 
the guidance for mapping EFH. The changes are intended to encourage 
more explicit and informative EFH maps in FMPs, based on NMFS' 
experience with maps produced using the guidance in the interim final 
rule. The new language requires that FMPs include maps that display, 
within the constrains of available information, the geographic 
locations of EFH or the geographic boundaries within which EFH for each 
species and life stage is found. The new language also encourages 
Councils to map different types of habitat designated as EFH to the 
extent possible; to use maps to distinguish EFH from non-EFH areas; to 
confer with NMFS regarding national mapping standards; and to include 
maps of HAPCs.
    Section 600.815, paragraph (a)(2) includes reorganized and expanded 
guidance regarding fishing activities that may adversely affect EFH 
(formerly addressed in paragraph (a)(3)). The final rule includes 
separate subsections on the evaluation of fishing activities and 
minimization of adverse effects, and explains in more detail the 
information that Councils should address in these portions of FMPs.
    In Sec. 600.815, paragraph (a), the former paragraph (3)(iv) (now 
numbered (2)(iii)) includes a new title, ``Practicability,'' and omits 
the phrase ``whether, and to what extent, the fishing activity is 
adversely impacting EFH, including the fishery'' to eliminate 
redundancy. The language also omits the phrase ``and whether the 
management measures are practicable, taking into consideration'' to 
eliminate redundancy. To clarify the intent of considering costs and 
benefits, the words ``the long and short-term costs and benefits of 
potential management measures to EFH, associated fisheries, and the 
nation'' replace ``the long and short-term costs as well as benefits to 
the fishery and its EFH, along with other appropriate factors.'' A new 
sentence clarifies that Councils are not required to perform a formal 
cost/benefit analysis.
    In Sec. 600.815, paragraph (a), in the former paragraph (4)(i) (now 
numbered (2)(iv)(A)), ``damage to EFH'' replaces ``physical damage in 
EFH'' because adverse effects are not limited to physical effects.
    Section 600.815, paragraph (3) is new. The paragraph clarifies that 
FMPs must identify threats to EFH from fishing activities that are 
managed under laws other than the Magnuson-Stevens Act, such as state 
managed fisheries or those fisheries managed by other agencies. The 
language addresses non-Magnuson-Stevens Act fishing directly, whereas 
the interim final rule more indirectly stated in Sec. 600.815(a)(3)(ii) 
that FMPs must assess all fishing equipment types used in EFH.
    In Sec. 600.815, paragraph (a), the former paragraph (5) is now 
numbered (4). The title of the paragraph omits ``Identification of'' to 
reduce wordiness. The sentence ``FMPs must identify activities other 
than fishing that may adversely affect EFH'' replaces ``FMPs must 
identify activities that have the potential to adversely affect EFH 
quantity or quality, or both.'' This change clarifies that the 
requirement is to identify all adverse effects to EFH from non-fishing 
activities. The same paragraph omits language saying that FMPs should 
describe the EFH most likely to be adversely affected and should 
explain the mechanisms that may cause the effects, because this 
language is redundant with the sentence saying that FMPs should 
describe known and potential adverse effects to EFH. The paragraph also 
omits two sentences regarding geographical analysis of non-fishing 
impacts, because Councils should have the flexibility to analyze 
potential impacts using any suitable approach.
    In Sec. 600.815, the former paragraph (a)(6) is now numbered 
(a)(5). To provide context, the explanation of cumulative impacts 
appears at the beginning of the paragraph rather than later. The words 
``the cumulative impacts of'' appear before ``fishing and non-fishing 
activities'' to emphasize that the focus is cumulative effects. To 
emphasize EFH over other fish habitat, the term ``the function of EFH'' 
replaces ``habitat function'' and ``EFH'' replaces ``the managed 
species' habitat.'' The paragraph omits the discussion of cumulative 
impacts from fishing that appeared in the interim final rule, because 
the final rule addresses cumulative impacts from fishing as part of the 
evaluation of fishing activities that may adversely affect EFH 
(Sec. 600.815(a)(2)(i)). The paragraph omits other language from the 
interim final rule that described suggested contents of cumulative 
impacts analyses and mapping for cumulative impacts, because Councils 
should have flexibility to evaluate cumulative impacts using any 
appropriate methods. The paragraph omits discussion of research needs 
pertaining to cumulative impacts because research needs are covered 
adequately in Sec. 600.815(a)(9). The paragraph also omits language 
regarding schedules for research because Councils have no control over 
such schedules.
    In Sec. 600.815, the former paragraph (a)(7) is now numbered 
(a)(6). To more accurately reflect the statutory language, the text 
states that ``FMPs must identify actions to encourage the conservation 
and enhancement of EFH, including recommended options to avoid, 
minimize, or compensate for'' adverse effects. The paragraph omits 
``and promote the conservation and enhancement of EFH'' to better 
reflect the Councils' role as outlined in the EFH provisions of the 
Magnuson-Stevens Act. The paragraph also omits the general 
recommendations and options for conservation and enhancement that 
appeared in the interim final rule.
    In Sec. 600.815, the former paragraph (a)(8) is now numbered 
(a)(7). The words ``may be'' replace ``is'' because loss of prey does 
not always constitute an adverse effect on EFH and managed species. The 
first sentence omits the word ``a'' before ``managed species'' because 
adverse effects may apply to more than one species. To clarify that the 
consideration of effects to prey is consistent with the Magnuson-
Stevens Act, the phrase ``because the presence of prey makes waters and 
substrate function as feeding habitat, and the definition of EFH 
includes waters and substrate necessary to fish for feeding'' replaces 
``because one component of EFH is that it be necessary for feeding.'' 
To clarify the conditions under which effects to prey should be 
considered, the phrase ``may be considered adverse effects on EFH if 
such actions reduce the quality and/or quantity of EFH'' replaces ``may 
be considered adverse effects on a managed species and its EFH.'' The 
word ``list'' replaces ``identify'' and ``discuss'' replaces 
``generally describe'' to be clearer about how FMPs should address prey 
species and their habitat. The final rule omits

[[Page 2372]]

the sentence from the interim final rule saying that actions that cause 
a reduction of the prey species population should be described and 
identified. This language caused confusion about the scope of the 
required analysis, and was substantially redundant with other text in 
the paragraph.
    In Sec. 600.815, the former paragraph (a)(9) is now numbered 
(a)(8). The final rule combines the two introductory sentences from the 
interim final rule to be more concise, and the word ``considerations'' 
replaces ``criteria.''
    In Sec. 600.815, the former paragraph (a)(10) is now numbered 
(a)(9). The final rule includes much more concise text to explain that 
FMPs should identify the research and information needed to improve 
upon the description and identification of EFH, the identification of 
threats to EFH from fishing and other activities, and the development 
of conservation and enhancement measures for EFH.
    In Sec. 600.815, the former paragraph (a)(11) is now numbered 
(a)(10). The final rule omits the words ``including an update of the 
equipment assessment originally conducted pursuant to paragraph 
(a)(3)(ii) of this section'' to eliminate redundancy. The final rule 
clarifies that Councils and NMFS should ``revise or amend EFH 
provisions as warranted based on available information.'' The final 
rule omits the language stating that ``each FMP amendment should 
include a provision requiring review and update of EFH information and 
preparation of a revised FMP amendment if new information becomes 
available'' and instead says that ``FMPs should outline the procedures 
the Council will follow to review and update EFH information.'' The 
final rule adds a sentence to provide guidance on the type of 
information the Councils and NMFS should examine when updating the EFH 
provisions of FMPs. These changes better reflect the process for 
revising FMPs based on a review of current information. The language in 
this section also clarifies that the Councils should report on their 
review of EFH information as part of the annual Stock Assessment and 
Fishery Evaluation report. The new words ``all EFH'' clarify the type 
of information that needs to be reviewed at least once every five 
years.
    In Sec. 600.815, the final rule omits paragraph (b) of the interim 
final rule to eliminate redundancy with Sec. 600.805(b)(1).
    In Sec. 600.815, the former paragraph (c) is now (b) and the 
heading includes the words ``for Councils'' to clarify that the EFH 
recommendations referred to in this paragraph are recommendations from 
NMFS to the Councils. The final rule adds new text explaining the 
intent and timing of NMFS' written recommendations to assist the 
Councils in identifying EFH and adverse affects to EFH, and 
incorporating EFH information into FMPs. The paragraph omits several 
sentences from the interim final rule that provided for public review 
of NMFS' written EFH recommendations.
    In Sec. 600.905, paragraph (c), ``NMFS'' replaces ``the Secretary'' 
to clarify that the NMFS is the agency responsible for working with the 
Councils. Additional language changes in this paragraph serve to 
simplify the language and reduce wordiness.
    In Sec. 600.910, paragraph (a), the final rule modifies the 
definition of ``adverse effect'' in the same manner as in 
Sec. 600.810(a). The final rule omits the definition of ``Council'' 
provided in the interim final rule because the definition was 
originally meant to provide for NMFS' comments under section 305(b)(3) 
of the Magnuson-Stevens Act, allowing NMFS to comment as a Council for 
FMPs developed by the Secretary. This provision is unnecessary since 
NMFS comments will be provided under section 305(b)(4)(A).
    In Sec. 600.910, paragraph (a) also includes a new definition for 
``anadromous fishery resource under Council authority'' to clarify that 
the term means an anadromous species managed under an FMP. The interim 
final rule discussed anadromous fishery resources in Sec. 600.930(c), 
and NMFS explained that provision in the preamble to the interim final 
rule at 62 FR 66546. Upon further consideration, NMFS determined that 
Sec. 600.930(c) and the preamble were not sufficiently clear as to what 
species should be considered anadromous fishery resources under Council 
authority for purposes of section 305(b)(3)(B) of the Magnuson-Stevens 
Act. Since Councils may not have sufficient expertise regarding non-
managed anadromous species to provide the comments and recommendations 
that are required by section 305(b)(3)(B) of the Act, NMFS determined 
that the most appropriate interpretation of that section is for 
``anadromous fishery resource under Council authority'' to mean those 
anadromous species managed under FMPs.
    In Sec. 600.915 the final rule adds the phrase ``and the general 
public'' and ``EFH'' replaces ``such habitat.''
    In Sec. 600.920, paragraph (a)(1), the phrase ``actions that were 
completed prior to the approval of EFH designations by the Secretary'' 
replaces the phrase ``completed actions.'' The second sentence of the 
paragraph adds the phrase ``if the renewal, review, or revision may 
adversely affect EFH'' to the end of the sentence. The final rule adds 
a reference to paragraph (j) of this section to refer to the procedures 
for programmatic consultation. The final rule includes new text that 
describes the requirement to complete EFH consultations for emergency 
Federal actions that may adversely affect EFH. This addition clarifies 
the requirement and timing for EFH consultations for Federal actions 
that must be carried out in an expedited manner due to emergency 
circumstances. If consultation is not practicable before taking an 
emergency action, Federal agencies may consult after-the-fact and NMFS 
may provide EFH Conservation Recommendations for measures to offset any 
unavoidable adverse effects to EFH.
    The final rule omits Sec. 600.920(a)(2) of the interim final rule 
and instead describes the five approaches for conducting consultation, 
and discusses procedures for programmatic consultation in a separate 
section. Section 600.920, new paragraph (a)(3), titled ``Early 
notification and coordination,'' encourages discussions of measures to 
conserve EFH for actions that may adversely affect EFH as early as 
practicable during project planning. In the interim final rule this 
language appeared in the procedures for abbreviated consultation but it 
applies equally to other types of consultation.
    In Sec. 600.920, paragraph (b), ``should'' replaces ``must'' to 
encourage, but not require, the lead agency to notify NMFS in writing 
that is representing another agency or agencies. New text provides 
additional clarification of when one Federal agency's EFH consultation 
may suffice for one of another Federal agency.
    In Sec. 600.920, paragraph (c), the final rule allows a non-Federal 
representative to conduct any type of EFH consultation.
    In Sec. 600.920, paragraph (d) adds a phrase clarifying that the 
best scientific information is needed regarding the effects of actions 
on EFH ``and the measures that can be taken to avoid, minimize, or 
offset such effects.
    In Sec. 600.920, paragraph (e) discusses EFH Assessments. This 
discussion was moved from Sec. 600.920, paragraph (g) of the interim 
final rule to provide better organization and understanding of the 
provision.
    In Sec. 600.920, paragraph (e)(1) omits the language that suggested 
that EFH Assessments are unnecessary for some activities, and clarifies 
the preparation requirements for EFH Assessments associated with the 
development of General Concurrences and

[[Page 2373]]

programmatic consultations. Additional text clarifies that ``Federal 
agencies are not required to provide NMFS with assessments regarding 
actions that they have determined would not adversely affect EFH 
because EFH consultation is not required for such actions.'' The final 
sentence omits that words ``consultation of'' to eliminate confusing 
language.
    Section 600.920 adds a new paragraph (e)(2), titled ``Level of 
detail,'' to explain that the extent of information in an EFH 
Assessment should be based on the complexity and magnitude of the 
adverse affects of the action.
    In Sec. 600.920, paragraph (e)(3)(ii) adds ``potential adverse'' 
before ``effects'' and omits ``cumulative effects'' and ``associated 
species such as major prey species, including affected life history 
stages.'' This simplifies the rule and provides consistency with the 
definition of ``adverse effects'' provided in the final rule.
    In Sec. 600.920, paragraph (e)(3)(iii) ``conclusions'' replaces 
``views'' to clarify that Federal agencies must indicate their opinions 
regarding the results or implications of the EFH Assessment.
    In Sec. 600.920, paragraph (e)(4)(iv) omits ``particularly when an 
action is non-water dependent.''
    In Sec. 600.920, former paragraph (e) is now paragraph (f) and the 
heading as been changed from ``Use of existing consultation/
environmental review procedures'' to ``Use of existing environmental 
review procedures.''
    In Sec. 600.920, paragraph (f)(1) is newly titled ``Criteria'' 
rather than ``Purpose and criteria'' to better reflect the content of 
the paragraph. The paragraph now uses acronyms for ``National 
Environmental Policy Act'' and ``Endangered Species Act.'' The final 
rule adds reference to section 305(b)(4) of the Magnuson-Stevens Act 
and additional text to reflect that consultation under sections 
305(b)(2) and 305(b)(4) of the Act, including abbreviated or expanded 
consultations, can be combined with existing environmental review 
procedures if the procedures meet or are modified to meet stated 
criteria.
    In Sec. 600.920, paragraph (f)(1)(i), to improve clarity ``Whenever 
possible'' replaces ``However'' and ``provided that'' replaces ``if.''
    In Sec. 600.920, paragraph (f)(1)(ii), the phrase ``the action 
agency must identify that section of the document as the EFH 
Assessment'' replaces the phrase ``that section of the document must be 
clearly identified as the EFH Assessment'' to clarify that it is the 
action agency's responsibility to identify an EFH Assessment when 
submitted as part of another document.
    In Sec. 600.920, paragraph (f)(1)(iii), ``can be used to satisfy'' 
replaces ``satisfies'' because even when using another environmental 
review process, specified procedures must be followed to fulfill the 
requirements of the Magnuson-Stevens Act. Also, the final rule adds 
reference to section 305(b)(4) of the Magnuson-Stevens Act to clarify 
that when consulting under section 305(b)(2), NMFS will use the process 
specified in a finding to provide EFH Conservation Recommendations. 
However, in the absence of a finding, if a Federal agency fails to 
consult under section 305(b)(2) of the Act, NMFS may provide EFH 
Conservation Recommendations under section 305(b)(4) either through 
another environmental review process or separately.
    In Sec. 600.920, paragraph (f)(2) is newly titled as ``NMFS 
response to Federal agency'' rather than ``EFH conservation 
recommendation requirements'' to better reflect the process described 
in this paragraph. The final rule replaces ``consultation'' with 
``environmental review'' to clarify that the use of existing review 
processes is not limited to consultation processes. To eliminate 
redundancy, the final rule omits language reiterating the requirements 
of section 305(b)(4)(B) of the Magnuson-Stevens Act and the procedures 
for further review of Federal agency decisions. ``Will'' replaces 
``shall'' since ``shall'' is used in the regulations only when quoting 
statutory language directly, to avoid confusion with the future tense, 
and ``will'' is used descriptively, as distinguished from denoting an 
obligation to act or the future tense. ``Action agency'' has been added 
to clarify from whom a response is needed pursuant to section 
305(b)(4)(B) of the Magnuson-Stevens Act.
    In Sec. 600.920, paragraph (f)(3) includes a new phrase ``to 
combine the EFH consultation requirements with'' and removes the phrase 
``can be used to satisfy the EFH consultation requirements.'' These and 
other minor changes to the paragraph clarify that existing or modified 
environmental reviews cannot substitute for an EFH consultation but can 
provide the format and process for an EFH consultation.
    In Sec. 600.920, paragraph (f) is now paragraph (g). Paragraph 
(g)(1) omits the word ``process'' to emphasize the end product rather 
than the process.
    In Sec. 600.920, paragraph (g)(2)(i) omits ``after consultation 
with the appropriate Council(s).'' The rule no longer requires NMFS to 
consult with the Councils before issuing a General Concurrence.
    In Sec. 600.920, paragraph (g)(2)(ii) includes the new phrase 
``actions covered by a General Concurrence'' to clarify what activities 
need to be tracked. The final rule splits the second sentence into two 
sentences and restructures the language to improve clarity and remove 
redundancy. The final rule omits ``of habitat adversely affected'' and 
includes other minor edits to increase clarity and reduce wordiness. 
The addition of ``applicable'' clarifies that tracking information 
related to actions covered by a General Concurrence does not need to be 
made available to all Councils.
    In Sec. 600.920, paragraph (g)(2)(iv), ``proposed for actions that 
may adversely affect'' replaces ``developed for actions affecting'' to 
convey that the review for potential effect to HAPCs should occur while 
a proposed General Concurrence is being evaluated.
    In Sec. 600.920, paragraph (g)(3), ``an EFH Assessment containing a 
description'' replaces ``a written description'' to clarify that a 
Federal agency's request for a General Concurrence must include an EFH 
Assessment that evaluates the anticipated effects of the actions to be 
covered under the General Concurrence. The final rule omits the phrase 
``and associated species and their life history stages,'' since this is 
implicit in an evaluation of effects to EFH. The final rule omits the 
phrase ``after consultation with the appropriate Council(s).'' The 
final rule also removes the phrase ``and that preparation of EFH 
Assessments for individual actions subject to the General Concurrence 
is not necessary'' to eliminate redundancy. ``Another type of'' 
replaces ``abbreviated or expanded'' to better describe the options 
available for consultation if a General Concurrence is not issued.
    In Sec. 600.920, paragraph (g)(4) is newly titled as ``Further 
consultation'' rather than ``Notification and further consultation.'' 
``Request'' replaces ``require'' to more accurately reflect NMFS' role 
in asking for further consultation for actions covered under a General 
Concurrence.
    In Sec. 600.920, paragraph (g)(5) is newly titled as 
``Notification'' rather than ``Public review.'' The rule no longer 
requires an opportunity for public or Council review before NMFS 
provides a Federal agency with a written statement of General 
Concurrence. The new paragraph states that NMFS will notify the 
appropriate Council(s) and make the General Concurrence available to 
the public.

[[Page 2374]]

    In Sec. 600.920, paragraph (g)(6) omits ``findings of'' to avoid 
confusion between establishing a finding pursuant to Sec. 600.920(f)(3) 
of the final rule and issuing a General Concurrence under 
Sec. 600.920(g).
    Section 600.920(g) of the interim final rule addressed EFH 
Assessments. The final rule discusses EFH Assessments in 
Sec. 600.920(e).
    In Sec. 600.920, paragraph (h)(2) is newly titled as ``Notification 
by agency and submittal of EFH Assessment'' rather then ``Notification 
by agency.'' Paragraph (h)(2) is combined with former paragraph (h)(3) 
and condensed to provide clearer guidance on notification and submittal 
of an EFH assessment.
    In Sec. 600.920, the former paragraph (h)(4)is now numbered (h)(3). 
The final rule provides new language regarding NMFS' response to an EFH 
Assessment to clarify that the type of response depends upon NMFS' 
determination of potential adverse effects to EFH. The final rule 
removes ``accurately'' to eliminate any suggestion that a Federal 
agency's EFH Assessment for abbreviated consultation might include 
inaccuracies. The paragraph adds the words ``in writing'' to clarify 
how NMFS will request that a Federal agency initiate expanded 
consultation for actions that may result in substantial adverse effects 
to EFH. The term ``additional'' replaces ``expanded'' to more 
accurately describe the type of consultation being discussed. The 
paragraph is restructured to state more succinctly that NMFS will 
provide EFH Conservation Recommendations, if appropriate. Also, the 
final rule deletes the sentence stating that ``NMFS will send a copy of 
its response to the appropriate Council.''
    In Sec. 600.920, the former paragraph (h)(5), which is now numbered 
(h)(4), omits ``complete'' and ``NMFS must receive it'' to reduce 
wordiness.
    Section 600.920, paragraph (i)(2), is newly titled ``Notification 
by agency and submittal of EFH Assessment'' rather than ``Initiation.'' 
This paragraph omits ``completed'' to reduce wordiness. The paragraph 
includes the new phrase ``to facilitate review of the effects of the 
action on EFH'' to clarify why additional information identified under 
Sec. 600.920(e)(4) should be submitted. To eliminate potential 
confusion with programmatic consultations, the paragraph omits the 
language that allowed a request for expanded consultation to encompass 
several similar individual actions within a given geographic area.
    In Sec. 600.920, paragraph (i)(3)(iv), the final rule omits the 
sentence stating that ``NMFS will also provide a copy of the 
recommendations to the appropriate Council(s).''
    In Sec. 600.920, paragraph (i)(4) omits ``complete'' to reduce 
wordiness, and contains new language clarifying that NMFS and Federal 
agencies may agree to conduct consultation early in the planning cycle 
for actions with lengthy approval processes.
    In Sec. 600.920, paragraph (j) is a new section on programmatic 
consultation.
    In Sec. 600.920, former paragraph (j) is now paragraph (k).
    Section 600.920 paragraph (k)(1) replaces ``the appropriate 
Council'' with ``to any Council commenting on the action under section 
305(b)(3) of the Magnuson-Stevens Act'' to clarify which Councils must 
receive the Federal agency's written response to EFH Conservation 
Recommendations. The final rule adds ``from NMFS'' to more accurately 
parallel the statutory language requiring the Federal agency to provide 
its detailed written response within 30 days of receiving 
recommendations under section 305(b)(4)(A) of the Act. The final rule 
restructures the language from the interim final rule that required a 
response be provided at least 10 days prior to final approval of an 
action, if a decision by the Federal agency is required in fewer than 
30 days. The new language requires a response at least 10 days prior to 
final approval only if the Federal agency's response is inconsistent 
with any of NMFS' EFH Conservation Recommendations, because there is no 
need for a 10-day review period if the Federal agency accepts NMFS' 
recommendations.
    In Sec. 600.920, paragraph (k)(2), ``NMFS may develop written 
procedures'' replaces ``Memoranda of agreement or other written 
procedures will be developed'' to reflect that any form of written 
procedures may be developed as necessary to further define review 
processes. The word ``may'' replaces ``will'' because written 
procedures may not be necessary in all cases. Also, the paragraph omits 
``with Federal action agencies'' to reduce wordiness.
    In Sec. 600.925, paragraph (a) omits ``EFH conservation 
recommendations'' and ``suggest'' and adds ``recommend'' to be clearer 
and more concise.
    In Sec. 600.925, paragraph (b) omits the redundant statement that 
the recommendations fulfill the requirements of section 305(b)(4)(A) of 
the Magnuson-Stevens Act. The paragraph also omits the statement that 
``NMFS will provide a copy of such recommendation to the appropriate 
Councils.''
    In Sec. 600.925, paragraph (c)(1) clarifies with new text that 
``the Magnuson-Stevens Act does not require state agencies to consult 
with the Secretary regarding EFH.'' ``NMFS will'' replaces ``each NMFS 
region should'' to convey more clearly that NMFS intends to use 
existing coordination procedures when making recommendations to state 
agencies. The final rule omits the unnecessary reference to other 
statutes in describing the use of existing coordination procedures. 
``To determine'' replaces ``for determining.'' The final rule omits the 
sentence stating the ``NMFS will provide a copy of such recommendation 
to the appropriate Council(s).''
    In Sec. 600.925, paragraph (c)(2), the phrase ``is authorized, 
funded, or undertaken'' replaces ``requires authorization or funding'' 
to better reflect the requirements of the Magnuson-Stevens Act.
    In Sec. 600.925, paragraph (d) is a new paragraph, titled 
``Coordination with Councils,'' that describes how NMFS will coordinate 
with each Council to identify actions on which the Councils intend to 
comment pursuant to section 305(b)(3) of the Magnuson-Stevens Act.
    Section 600.930 includes new language describing the statutory 
authority for Council comments and recommendations to Federal and state 
agencies.
    In Sec. 600.930, paragraph (a), the words ``habitat, including EFH, 
of a species under its authority'' replace ``EFH of a species managed 
under its authority'' to better reflect the statutory authority for 
Councils to comment on Federal or state actions. The phrase ``actions 
of concern that would adversely affect EFH'' replaces ``actions that 
may adversely impact EFH'' to convey more clearly that the Regional 
Administrator would screen the actions.
    In Sec. 600.930, paragraph (b), a change from passive to active 
voice clarifies that ``Each Council should provide NMFS with copies of 
its comments and recommendations to state and Federal agencies.''
    The final rule omits Sec. 600.930, paragraph (c) of the interim 
final rule because that paragraph is redundant with the new definition 
of ``anadromous fishery resource under Council authority'' in 
Sec. 600.910(a).

Classification

    The NOAA Assistant Administrator for Fisheries (AA) has determined 
that this final rule is consistent with the Magnuson-Stevens Act and 
other applicable laws.
    Pursuant to the National Environmental Policy Act (NEPA)

[[Page 2375]]

NMFS prepared a new EA for the final rule, and the AA concluded that 
there will be no significant impact on the human environment as a 
result of this rule. The regulations contain guidelines to the Councils 
for incorporating EFH information into FMPs in accordance with the 
Magnuson-Stevens Act, and procedures to be used by NMFS, the Councils, 
and Federal action agencies to satisfy the coordination, consultation, 
and recommendation requirements of the Magnuson-Stevens Act. Any 
specific effects of the EFH provisions of individual FMPs will be 
addressed in NEPA documents prepared for the approval of those FMP 
provisions. A copy of the EA is available from NMFS (see ADDRESSES).
    This final rule has been determined to be significant for the 
purposes of Executive Order 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule would not have a 
significant economic impact on a substantial number of small entities. 
As discussed in the response to comments above, NMFS received comments 
on the interim final rule questioning whether the agency had met its 
responsibilities under applicable laws requiring economic analyses. 
These comments did not cause any change in the certification regarding 
effects on small entities. As a result, NMFS was not required to 
prepare a regulatory flexibility analysis under the Regulatory 
Flexibility Act/Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 601 et seq.). The rule provides guidelines to the Councils for 
developing the EFH components of FMPs in compliance with the Magnuson-
Stevens Act, and the guidelines do not have the force of law. Should 
Councils establish fishing regulations as a result of the guidelines, 
those actions may affect small entities and could be subject to the 
requirement to prepare regulatory flexibility analyses at the time the 
Councils propose them. The rule also establishes consultation 
procedures and a process for NMFS to provide EFH Conservation 
Recommendations to Federal and state action agencies. However, because 
compliance with NMFS recommendations is not mandatory, any effects on 
small businesses would be speculative.
    This final rule does not include policies that have federalism 
implications as that term is defined in Executive Order 13132. This 
rule establishes procedures for consultation between Federal agencies 
and NMFS when Federal actions may adversely affect EFH. States are not 
required to consult regarding EFH. The rule requires NMFS to provide 
conservation recommendations for any Federal or state actions that 
would adversely affect EFH. The Councils may comment and make 
recommendations on Federal and state actions that may affect EFH and 
must comment and make conservation recommendations concerning any 
Federal or state activity that is likely to substantially affect the 
habitat of an anadromous fishery resource under Council authority. 
Neither NMFS' nor the Council's recommendations are mandatory, and 
states are not required to respond to the recommendations. Similarly, 
the rule does not require any expenditures by, nor place any 
responsibilities or duties on, state, local, or tribal governments. 
Therefore, in accordance with the provisions of the Unfunded Mandates 
Reform Act, NMFS was not required to develop an assessment of the 
effects of this rule on other levels of government or the private 
sector.
    NMFS determined that this rule does not have reasonably foreseeable 
coastal effects and that this action is consistent to the maximum 
extent practicable with the approved coastal management programs for 
the coastal states. Therefore, a Coastal Zone Management Act 
consistency determination is not needed. EFH provisions of FMPs should 
be provided to state coastal zone consistency coordinators for review 
prior to approval by the Secretary.
    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act (PRA). The PRA 
requires OMB clearance for most planned information collections. The 
only information collection that derives from the rule is the 
requirement for Federal agencies to prepare EFH Assessments for actions 
that may adversely affect EFH. OMB clearance is not required for a 
collection of information from Federal agencies.
    The rule provides guidance to the Councils on how to designate EFH 
and establishes a consultation process for Federal actions that may 
adversely affect EFH. This action will not result in a taking of 
private property and does not have takings implications. Accordingly, 
NMFS was not required to complete a Federal takings assessment.
    This rule does not contain policies that have tribal implications 
as that term is defined in Executive Order 13175.
    This rule will not have a significant adverse effect on the supply, 
distribution, or use of energy, and preparation of a Statement of 
Energy Effects under Executive Order 13211 is not required. EFH 
consultations result in non-binding conservation recommendations. EFH 
consultations regarding Federal permits, licenses, or funding could 
lead the responsible Federal agency to restrict or limit proposed 
actions, which potentially may affect entities seeking authorization or 
funding for projects involving energy supply, distribution, or use. 
However, any such requirements would be imposed at the discretion of 
the responsible Federal agency, and it would be speculative to evaluate 
the effects of such requirements in conjunction with this rulemaking.

List of Subjects in 50 CFR Part 600

    Administrative practice and procedures, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations.

    Dated: January 7, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons stated in the preamble, NMFS amends 50 CFR part 600 
as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1.The authority citation for part 600 continues to read as follows:

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

    2.In Sec. 600.10, the definition for ``Essential fish habitat'' is 
revised to read as follows:


Sec. 600.10  Definitions.

* * * * *
    Essential fish habitat (EFH) means those waters and substrate 
necessary to fish for spawning, breeding, feeding, or growth to 
maturity. For the purpose of interpreting the definition of essential 
fish habitat: ``Waters'' include aquatic areas and their associated 
physical, chemical, and biological properties that are used by fish and 
may include aquatic areas historically used by fish where appropriate; 
``substrate'' includes sediment, hard bottom, structures underlying the 
waters, and associated biological communities; ``necessary'' means the 
habitat required to support a sustainable fishery and the managed 
species' contribution to a healthy ecosystem; and ``spawning, breeding, 
feeding, or growth to maturity'' covers a species' full life cycle.
* * * * *

[[Page 2376]]


    3. Subparts J and K of part 600 are revised to read as follows:
* * * * *

Subpart J--Essential Fish Habitat (EFH)

Sec.
600.805  Purpose and scope.
600.810  Definitions and word usage.
600.815  Contents of Fishery Management Plans.

Subpart K--EFH Coordination, Consultation, and Recommendations

600.905  Purpose, scope, and NMFS/Council cooperation.
600.910  Definitions and word usage.
600.915  Coordination for the conservation and enhancement of EFH.
600.920  Federal agency consultation with the Secretary.
600.925  NMFS EFH Conservation Recommendations to Federal and state 
agencies.
600.930  Council comments and recommendations to Federal and state 
agencies.

Subpart J--Essential Fish Habitat (EFH)


Sec. 600.805  Purpose and scope.

    (a) Purpose. This subpart provides guidelines for Councils and the 
Secretary to use in adding the required EFH provisions to an FMP, i.e., 
description and identification of EFH, adverse effects on EFH 
(including minimizing, to the extent practicable, adverse effects from 
fishing), and actions to conserve and enhance EFH.
    (b) Scope--(1) Species covered. An EFH provision in an FMP must 
include all fish species in the fishery management unit (FMU). An FMP 
may describe, identify, and protect the habitat of species not in an 
FMU; however, such habitat may not be considered EFH for the purposes 
of sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act.
    (2) Geographic. EFH may be described and identified in waters of 
the United States, as defined in 33 CFR 328.3, and in the exclusive 
economic zone, as defined in Sec. 600.10. Councils may describe, 
identify, and protect habitats of managed species beyond the exclusive 
economic zone; however, such habitat may not be considered EFH for the 
purposes of sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act. 
Activities that may adversely affect such habitat can be addressed 
through any process conducted in accordance with international 
agreements between the United States and the foreign nation(s) 
undertaking or authorizing the action.


Sec. 600.810  Definitions and word usage.

    (a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the 
following meanings:
    Adverse effect means any impact that reduces quality and/or 
quantity of EFH. Adverse effects may include direct or indirect 
physical, chemical, or biological alterations of the waters or 
substrate and loss of, or injury to, benthic organisms, prey species 
and their habitat, and other ecosystem components, if such 
modifications reduce the quality and/or quantity of EFH. Adverse 
effects to EFH may result from actions occurring within EFH or outside 
of EFH and may include site-specific or habitat-wide impacts, including 
individual, cumulative, or synergistic consequences of actions.
    Councilincludes the Secretary, as applicable, when preparing FMPs 
or amendments under sections 304(c) and (g) of the Magnuson-Stevens 
Act.
    Ecosystem means communities of organisms interacting with one 
another and with the chemical and physical factors making up their 
environment.
    Habitat areas of particular concern means those areas of EFH 
identified pursuant to Sec. 600.815(a)(8).
    Healthy ecosystem means an ecosystem where ecological productive 
capacity is maintained, diversity of the flora and fauna is preserved, 
and the ecosystem retains the ability to regulate itself. Such an 
ecosystem should be similar to comparable, undisturbed ecosystems with 
regard to standing crop, productivity, nutrient dynamics, trophic 
structure, species richness, stability, resilience, contamination 
levels, and the frequency of diseased organisms.
    Overfished means any stock or stock complex, the status of which is 
reported as overfished by the Secretary pursuant to section 304(e)(1) 
of the Magnuson-Stevens Act.
    (b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'', 
``may not'', ``will'', ``could'', and ``can'' are used in the same 
manner as in Sec. 600.305(c).


Sec. 600.815  Contents of Fishery Management Plans.

    (a) Mandatory contents--(1) Description and identification of EFH--
(i) Overview. FMPs must describe and identify EFH in text that clearly 
states the habitats or habitat types determined to be EFH for each life 
stage of the managed species. FMPs should explain the physical, 
biological, and chemical characteristics of EFH and, if known, how 
these characteristics influence the use of EFH by the species/life 
stage. FMPs must identify the specific geographic location or extent of 
habitats described as EFH. FMPs must include maps of the geographic 
locations of EFH or the geographic boundaries within which EFH for each 
species and life stage is found.
    (ii) Habitat information by life stage. (A) Councils need basic 
information to understand the usage of various habitats by each managed 
species. Pertinent information includes the geographic range and 
habitat requirements by life stage, the distribution and 
characteristics of those habitats, and current and historic stock size 
as it affects occurrence in available habitats. FMPs should summarize 
the life history information necessary to understand each species' 
relationship to, or dependence on, its various habitats, using text, 
tables, and figures, as appropriate. FMPs should document patterns of 
temporal and spatial variation in the distribution of each major life 
stage (defined by developmental and functional shifts) to aid in 
understanding habitat needs. FMPs should summarize (e.g., in tables) 
all available information on environmental and habitat variables that 
control or limit distribution, abundance, reproduction, growth, 
survival, and productivity of the managed species. The information 
should be supported with citations.
    (B) Councils should obtain information to describe and identify EFH 
from the best available sources, including peer-reviewed literature, 
unpublished scientific reports, data files of government resource 
agencies, fisheries landing reports, and other sources of information. 
Councils should consider different types of information according to 
its scientific rigor. FMPs should identify species-specific habitat 
data gaps and deficits in data quality (including considerations of 
scale and resolution; relevance; and potential biases in collection and 
interpretation). FMPs must demonstrate that the best scientific 
information available was used in the description and identification of 
EFH, consistent with national standard 2.
    (iii) Analysis of habitat information. (A) The following approach 
should be used to organize the information necessary to describe and 
identify EFH.
    (1) Level 1: Distribution data are available for some or all 
portions of the geographic range of the species. At this level, only 
distribution data are available to describe the geographic range of a 
species (or life stage). Distribution data may be derived from 
systematic presence/absence sampling and/or may include information on 
species and life stages collected

[[Page 2377]]

opportunistically. In the event that distribution data are available 
only for portions of the geographic area occupied by a particular life 
stage of a species, habitat use can be inferred on the basis of 
distributions among habitats where the species has been found and on 
information about its habitat requirements and behavior. Habitat use 
may also be inferred, if appropriate, based on information on a similar 
species or another life stage.
    (2) Level 2: Habitat-related densities of the species are 
available. At this level, quantitative data (i.e., density or relative 
abundance) are available for the habitats occupied by a species or life 
stage. Because the efficiency of sampling methods is often affected by 
habitat characteristics, strict quality assurance criteria should be 
used to ensure that density estimates are comparable among methods and 
habitats. Density data should reflect habitat utilization, and the 
degree that a habitat is utilized is assumed to be indicative of 
habitat value. When assessing habitat value on the basis of fish 
densities in this manner, temporal changes in habitat availability and 
utilization should be considered.
    (3) Level 3: Growth, reproduction, or survival rates within 
habitats are available. At this level, data are available on habitat-
related growth, reproduction, and/or survival by life stage. The 
habitats contributing the most to productivity should be those that 
support the highest growth, reproduction, and survival of the species 
(or life stage).
    (4) Level 4: Production rates by habitat are available. At this 
level, data are available that directly relate the production rates of 
a species or life stage to habitat type, quantity, quality, and 
location. Essential habitats are those necessary to maintain fish 
production consistent with a sustainable fishery and the managed 
species' contribution to a healthy ecosystem.
    (B) Councils should strive to describe habitat based on the highest 
level of detail (i.e., Level 4). If there is no information on a given 
species or life stage, and habitat usage cannot be inferred from other 
means, such as information on a similar species or another life stage, 
EFH should not be designated.
    (iv) EFH determination. (A) Councils should analyze available 
ecological, environmental, and fisheries information and data relevant 
to the managed species, the habitat requirements by life stage, and the 
species' distribution and habitat usage to describe and identify EFH. 
The information described in paragraphs (a)(1)(ii) and (iii) of this 
section will allow Councils to assess the relative value of habitats. 
Councils should interpret this information in a risk-averse fashion to 
ensure adequate areas are identified as EFH for managed species. Level 
1 information, if available, should be used to identify the geographic 
range of the species at each life stage. If only Level 1 information is 
available, distribution data should be evaluated (e.g., using a 
frequency of occurrence or other appropriate analysis) to identify EFH 
as those habitat areas most commonly used by the species. Level 2 
through 4 information, if available, should be used to identify EFH as 
the habitats supporting the highest relative abundance; growth, 
reproduction, or survival rates; and/or production rates within the 
geographic range of a species. FMPs should explain the analyses 
conducted to distinguish EFH from all habitats potentially used by a 
species.
    (B) FMPs must describe EFH in text, including reference to the 
geographic location or extent of EFH using boundaries such as longitude 
and latitude, isotherms, isobaths, political boundaries, and major 
landmarks. If there are differences between the descriptions of EFH in 
text, maps, and tables, the textual description is ultimately 
determinative of the limits of EFH. Text and tables should explain 
pertinent physical, chemical, and biological characteristics of EFH for 
the managed species and explain any variability in habitat usage 
patterns, but the boundaries of EFH should be static.
    (C) If a species is overfished and habitat loss or degradation may 
be contributing to the species being identified as overfished, all 
habitats currently used by the species may be considered essential in 
addition to certain historic habitats that are necessary to support 
rebuilding the fishery and for which restoration is technologically and 
economically feasible. Once the fishery is no longer considered 
overfished, the EFH identification should be reviewed and amended, if 
appropriate.
    (D) Areas described as EFH will normally be greater than or equal 
to aquatic areas that have been identified as ``critical habitat'' for 
any managed species listed as threatened or endangered under the 
Endangered Species Act.
    (E) Ecological relationships among species and between the species 
and their habitat require, where possible, that an ecosystem approach 
be used in determining the EFH of a managed species. EFH must be 
designated for each managed species, but, where appropriate, may be 
designated for assemblages of species or life stages that have similar 
habitat needs and requirements. If grouping species or using species 
assemblages for the purpose of designating EFH, FMPs must include a 
justification and scientific rationale. The extent of the EFH should be 
based on the judgment of the Secretary and the appropriate Council(s) 
regarding the quantity and quality of habitat that are necessary to 
maintain a sustainable fishery and the managed species' contribution to 
a healthy ecosystem.
    (F) If degraded or inaccessible aquatic habitat has contributed to 
reduced yields of a species or assemblage and if, in the judgment of 
the Secretary and the appropriate Council(s), the degraded conditions 
can be reversed through such actions as improved fish passage 
techniques (for stream or river blockages), improved water quality 
measures (removal of contaminants or increasing flows), and similar 
measures that are technologically and economically feasible, EFH should 
include those habitats that would be necessary to the species to obtain 
increased yields.
    (v) EFH mapping requirements. (A) FMPs must include maps that 
display, within the constraints of available information, the 
geographic locations of EFH or the geographic boundaries within which 
EFH for each species and life stage is found. Maps should identify the 
different types of habitat designated as EFH to the extent possible. 
Maps should explicitly distinguish EFH from non-EFH areas. Councils 
should confer with NMFS regarding mapping standards to ensure that maps 
from different Councils can be combined and shared efficiently and 
effectively. Ultimately, data used for mapping should be incorporated 
into a geographic information system (GIS) to facilitate analysis and 
presentation.
    (B) Where the present distribution or stock size of a species or 
life stage is different from the historical distribution or stock size, 
then maps of historical habitat boundaries should be included in the 
FMP, if known.
    (C) FMPs should include maps of any habitat areas of particular 
concern identified under paragraph (a)(8) of this section.
    (2) Fishing activities that may adversely affect EFH--
(i)Evaluation. Each FMP must contain an evaluation of the potential 
adverse effects of fishing on EFH designated under the FMP, including 
effects of each fishing activity regulated under the FMP or other 
Federal FMPs. This evaluation should consider the effects of each 
fishing

[[Page 2378]]

activity on each type of habitat found within EFH. FMPs must describe 
each fishing activity, review and discuss all available relevant 
information (such as information regarding the intensity, extent, and 
frequency of any adverse effect on EFH; the type of habitat within EFH 
that may be affected adversely; and the habitat functions that may be 
disturbed), and provide conclusions regarding whether and how each 
fishing activity adversely affects EFH. The evaluation should also 
consider the cumulative effects of multiple fishing activities on EFH. 
The evaluation should list any past management actions that minimize 
potential adverse effects on EFH and describe the benefits of those 
actions to EFH. The evaluation should give special attention to adverse 
effects on habitat areas of particular concern and should identify for 
possible designation as habitat areas of particular concern any EFH 
that is particularly vulnerable to fishing activities. Additionally, 
the evaluation should consider the establishment of research closure 
areas or other measures to evaluate the impacts of fishing activities 
on EFH. In completing this evaluation, Councils should use the best 
scientific information available, as well as other appropriate 
information sources. Councils should consider different types of 
information according to its scientific rigor.
    (ii) Minimizing adverse effects. Each FMP must minimize to the 
extent practicable adverse effects from fishing on EFH, including EFH 
designated under other Federal FMPs. Councils must act to prevent, 
mitigate, or minimize any adverse effects from fishing, to the extent 
practicable, if there is evidence that a fishing activity adversely 
affects EFH in a manner that is more than minimal and not temporary in 
nature, based on the evaluation conducted pursuant to paragraph 
(a)(2)(i) of this section and/or the cumulative impacts analysis 
conducted pursuant to paragraph (a)(5) of this section. In such cases, 
FMPs should identify a range of potential new actions that could be 
taken to address adverse effects on EFH, include an analysis of the 
practicability of potential new actions, and adopt any new measures 
that are necessary and practicable. Amendments to the FMP or to its 
implementing regulations must ensure that the FMP continues to minimize 
to the extent practicable adverse effects on EFH caused by fishing. 
FMPs must explain the reasons for the Council's conclusions regarding 
the past and/or new actions that minimize to the extent practicable the 
adverse effects of fishing on EFH.
    (iii) Practicability. In determining whether it is practicable to 
minimize an adverse effect from fishing, Councils should consider the 
nature and extent of the adverse effect on EFH and the long and short-
term costs and benefits of potential management measures to EFH, 
associated fisheries, and the nation, consistent with national standard 
7. In determining whether management measures are practicable, Councils 
are not required to perform a formal cost/benefit analysis.(iv) Options 
for managing adverse effects from fishing. Fishery management options 
may include, but are not limited to:
    (A) Fishing equipment restrictions. These options may include, but 
are not limited to: seasonal and areal restrictions on the use of 
specified equipment, equipment modifications to allow escapement of 
particular species or particular life stages (e.g., juveniles), 
prohibitions on the use of explosives and chemicals, prohibitions on 
anchoring or setting equipment in sensitive areas, and prohibitions on 
fishing activities that cause significant damage to EFH.
    (B) Time/area closures. These actions may include, but are not 
limited to: closing areas to all fishing or specific equipment types 
during spawning, migration, foraging, and nursery activities and 
designating zones for use as marine protected areas to limit adverse 
effects of fishing practices on certain vulnerable or rare areas/
species/life stages, such as those areas designated as habitat areas of 
particular concern.
    (C) Harvest limits. These actions may include, but are not limited 
to, limits on the take of species that provide structural habitat for 
other species assemblages or communities and limits on the take of prey 
species.
    (3) Non-Magnuson-Stevens Act fishing activities that may adversely 
affect EFH. FMPs must identify any fishing activities that are not 
managed under the Magnuson-Stevens Act that may adversely affect EFH. 
Such activities may include fishing managed by state agencies or other 
authorities.
    (4) Non-fishing related activities that may adversely affect EFH. 
FMPs must identify activities other than fishing that may adversely 
affect EFH. Broad categories of such activities include, but are not 
limited to: dredging, filling, excavation, mining, impoundment, 
discharge, water diversions, thermal additions, actions that contribute 
to non-point source pollution and sedimentation, introduction of 
potentially hazardous materials, introduction of exotic species, and 
the conversion of aquatic habitat that may eliminate, diminish, or 
disrupt the functions of EFH. For each activity, the FMP should 
describe known and potential adverse effects to EFH.
    (5) Cumulative impacts analysis. Cumulative impacts are impacts on 
the environment that result from the incremental impact of an action 
when added to other past, present, and reasonably foreseeable future 
actions, regardless of who undertakes such actions. Cumulative impacts 
can result from individually minor, but collectively significant 
actions taking place over a period of time. To the extent feasible and 
practicable, FMPs should analyze how the cumulative impacts of fishing 
and non-fishing activities influence the function of EFH on an 
ecosystem or watershed scale. An assessment of the cumulative and 
synergistic effects of multiple threats, including the effects of 
natural stresses (such as storm damage or climate-based environmental 
shifts) and an assessment of the ecological risks resulting from the 
impact of those threats on EFH, also should be included.
    (6) Conservation and enhancement. FMPs must identify actions to 
encourage the conservation and enhancement of EFH, including 
recommended options to avoid, minimize, or compensate for the adverse 
effects identified pursuant to paragraphs (a)(3) through (5) of this 
section, especially in habitat areas of particular concern.
    (7) Prey species. Loss of prey may be an adverse effect on EFH and 
managed species because the presence of prey makes waters and substrate 
function as feeding habitat, and the definition of EFH includes waters 
and substrate necessary to fish for feeding. Therefore, actions that 
reduce the availability of a major prey species, either through direct 
harm or capture, or through adverse impacts to the prey species' 
habitat that are known to cause a reduction in the population of the 
prey species, may be considered adverse effects on EFH if such actions 
reduce the quality of EFH. FMPs should list the major prey species for 
the species in the fishery management unit and discuss the location of 
prey species' habitat. Adverse effects on prey species and their 
habitats may result from fishing and non-fishing activities.
    (8) Identification of habitat areas of particular concern. FMPs 
should identify specific types or areas of habitat within EFH as 
habitat areas of particular concern based on one or more of the 
following considerations:

[[Page 2379]]

    (i) The importance of the ecological function provided by the 
habitat.
    (ii) The extent to which the habitat is sensitive to human-induced 
environmental degradation.
    (iii) Whether, and to what extent, development activities are, or 
will be, stressing the habitat type.
    (iv) The rarity of the habitat type.
    (9) Research and information needs. Each FMP should contain 
recommendations, preferably in priority order, for research efforts 
that the Councils and NMFS view as necessary to improve upon the 
description and identification of EFH, the identification of threats to 
EFH from fishing and other activities, and the development of 
conservation and enhancement measures for EFH.
    (10) Review and revision of EFH components of FMPs. Councils and 
NMFS should periodically review the EFH provisions of FMPs and revise 
or amend EFH provisions as warranted based on available information. 
FMPs should outline the procedures the Council will follow to review 
and update EFH information. The review of information should include, 
but not be limited to, evaluating published scientific literature and 
unpublished scientific reports; soliciting information from interested 
parties; and searching for previously unavailable or inaccessible data. 
Councils should report on their review of EFH information as part of 
the annual Stock Assessment and Fishery Evaluation (SAFE) report 
prepared pursuant to Sec. 600.315(e). A complete review of all EFH 
information should be conducted as recommended by the Secretary, but at 
least once every 5 years.
    (b) Development of EFH recommendations for Councils. After 
reviewing the best available scientific information, as well as other 
appropriate information, and in consultation with the Councils, 
participants in the fishery, interstate commissions, Federal agencies, 
state agencies, and other interested parties, NMFS will develop written 
recommendations to assist each Council in the identification of EFH, 
adverse impacts to EFH, and actions that should be considered to ensure 
the conservation and enhancement of EFH for each FMP. NMFS will provide 
such recommendations for the initial incorporation of EFH information 
into an FMP and for any subsequent modification of the EFH components 
of an FMP. The NMFS EFH recommendations may be provided either before 
the Council's development of a draft EFH document or later as a review 
of a draft EFH document developed by a Council, as appropriate.
    (c) Relationship to other fishery management authorities. Councils 
are encouraged to coordinate with state and interstate fishery 
management agencies where Federal fisheries affect state and interstate 
managed fisheries or where state or interstate fishery regulations 
affect the management of Federal fisheries. Where a state or interstate 
fishing activity adversely affects EFH, NMFS will consider that action 
to be an adverse effect on EFH pursuant to paragraph (a)(3) of this 
section and will provide EFH Conservation Recommendations to the 
appropriate state or interstate fishery management agency on that 
activity.

Subpart K--EFH Coordination, Consultation, and Recommendations


Sec. 600.905  Purpose, scope, and NMFS/Council cooperation.

    (a) Purpose. These procedures address the coordination, 
consultation, and recommendation requirements of sections 305(b)(1)(D) 
and 305(b)(2-4) of the Magnuson-Stevens Act. The purpose of these 
procedures is to promote the protection of EFH in the review of Federal 
and state actions that may adversely affect EFH.
    (b) Scope. Section 305(b)(1)(D) of the Magnuson-Stevens Act 
requires the Secretary to coordinate with, and provide information to, 
other Federal agencies regarding the conservation and enhancement of 
EFH. Section 305(b)(2) requires all Federal agencies to consult with 
the Secretary on all actions or proposed actions authorized, funded, or 
undertaken by the agency that may adversely affect EFH. Sections 
305(b)(3) and (4) direct the Secretary and the Councils to provide 
comments and EFH Conservation Recommendations to Federal or state 
agencies on actions that affect EFH. Such recommendations may include 
measures to avoid, minimize, mitigate, or otherwise offset adverse 
effects on EFH resulting from actions or proposed actions authorized, 
funded, or undertaken by that agency. Section 305(b)(4)(B) requires 
Federal agencies to respond in writing to such comments. The following 
procedures for coordination, consultation, and recommendations allow 
all parties involved to understand and implement the requirements of 
the Magnuson-Stevens Act.
    (c) Cooperation between Councils and NMFS. The Councils and NMFS 
should cooperate closely to identify actions that may adversely affect 
EFH, to develop comments and EFH Conservation Recommendations to 
Federal and state agencies, and to provide EFH information to Federal 
and state agencies. NMFS will work with each Council to share 
information and to coordinate Council and NMFS comments and 
recommendations on actions that may adversely affect EFH. However, NMFS 
and the Councils also have the authority to act independently.


Sec. 600.910  Definitions and word usage.

    (a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the 
following meanings:
    Adverse effect means any impact that reduces quality and/or 
quantity of EFH. Adverse effects may include direct or indirect 
physical, chemical, or biological alterations of the waters or 
substrate and loss of, or injury to, benthic organisms, prey species 
and their habitat, and other ecosystem components, if such 
modifications reduce the quality and/or quantity of EFH. Adverse 
effects to EFH may result from actions occurring within EFH or outside 
of EFH and may include site-specific or habitat-wide impacts, including 
individual, cumulative, or synergistic consequences of actions.
    Anadromous fishery resource under Council authority means an 
anadromous species managed under an FMP.
    Federal action means any action authorized, funded, or undertaken, 
or proposed to be authorized, funded, or undertaken by a Federal 
agency.
    Habitat areas of particular concern means those areas of EFH 
identified pursuant to Sec. 600.815(a)(8).
    State action means any action authorized, funded, or undertaken, or 
proposed to be authorized, funded, or undertaken by a state agency.
    (b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'', 
``may not'', ``will'', ``could'', and ``can'' are used in the same 
manner as in Sec. 600.305(c).


Sec. 600.915  Coordination for the conservation and enhancement of EFH.

    To further the conservation and enhancement of EFH in accordance 
with section 305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will 
compile and make available to other Federal and state agencies, and the 
general public, information on the locations of EFH, including maps 
and/or narrative descriptions. NMFS will also provide information on 
ways to improve ongoing Federal operations to promote the conservation 
and enhancement of EFH. Federal and state agencies empowered to 
authorize, fund, or undertake actions that may adversely affect EFH are 
encouraged to contact NMFS and the Councils to become

[[Page 2380]]

familiar with areas designated as EFH, potential threats to EFH, and 
opportunities to promote the conservation and enhancement of EFH.


Sec. 600.920  Federal agency consultation with the Secretary.

    (a) Consultation generally--(1) Actions requiring consultation. 
Pursuant to section 305(b)(2) of the Magnuson-Stevens Act, Federal 
agencies must consult with NMFS regarding any of their actions 
authorized, funded, or undertaken, or proposed to be authorized, 
funded, or undertaken that may adversely affect EFH. EFH consultation 
is not required for actions that were completed prior to the approval 
of EFH designations by the Secretary, e.g., issued permits. 
Consultation is required for renewals, reviews, or substantial 
revisions of actions if the renewal, review, or revision may adversely 
affect EFH. Consultation on Federal programs delegated to non-Federal 
entities is required at the time of delegation, review, and renewal of 
the delegation. EFH consultation is required for any Federal funding of 
actions that may adversely affect EFH. NMFS and Federal agencies 
responsible for funding actions that may adversely affect EFH should 
consult on a programmatic level under paragraph (j) of this section, if 
appropriate, with respect to these actions. Consultation is required 
for emergency Federal actions that may adversely affect EFH, such as 
hazardous material clean-up, response to natural disasters, or actions 
to protect public safety. Federal agencies should contact NMFS early in 
emergency response planning, but may consult after-the-fact if 
consultation on an expedited basis is not practicable before taking the 
action.
    (2) Approaches for conducting consultation. Federal agencies may 
use one of the five approaches described in paragraphs (f) through (j) 
of this section to fulfill the EFH consultation requirements. The 
selection of a particular approach for handling EFH consultation 
depends on the nature and scope of the actions that may adversely 
affect EFH. Federal agencies should use the most efficient approach for 
EFH consultation that is appropriate for a given action or actions. The 
five approaches are: use of existing environmental review procedures, 
General Concurrence, abbreviated consultation, expanded consultation, 
and programmatic consultation.
    (3) Early notification and coordination. The Federal agency should 
notify NMFS in writing as early as practicable regarding actions that 
may adversely affect EFH. Notification will facilitate discussion of 
measures to conserve EFH. Such early coordination should occur during 
pre-application planning for projects subject to a Federal permit or 
license and during preliminary planning for projects to be funded or 
undertaken directly by a Federal agency.
    (b) Designation of lead agency. If more than one Federal agency is 
responsible for a Federal action, the consultation requirements of 
sections 305(b)(2) through (4) of the Magnuson-Stevens Act may be 
fulfilled through a lead agency. The lead agency should notify NMFS in 
writing that it is representing one or more additional agencies. 
Alternatively, if one Federal agency has completed an EFH consultation 
for an action and another Federal agency acts separately to authorize, 
fund, or undertake the same activity (such as issuing a permit for an 
activity that was funded via a separate Federal action), the completed 
EFH consultation may suffice for both Federal actions if it adequately 
addresses the adverse effects of the actions on EFH. Federal agencies 
may need to consult with NMFS separately if, for example, only one of 
the agencies has the authority to implement measures necessary to 
minimize adverse effects on EFH and that agency does not act as the 
lead agency.
    (c) Designation of non-Federal representative. A Federal agency may 
designate a non-Federal representative to conduct an EFH consultation 
by giving written notice of such designation to NMFS. If a non-Federal 
representative is used, the Federal action agency remains ultimately 
responsible for compliance with sections 305(b)(2) and 305(b)(4)(B) of 
the Magnuson-Stevens Act.
    (d) Best available information. The Federal agency and NMFS must 
use the best scientific information available regarding the effects of 
the action on EFH and the measures that can be taken to avoid, 
minimize, or offset such effects. Other appropriate sources of 
information may also be considered.
    (e) EFH Assessments--(1) Preparation requirement. For any Federal 
action that may adversely affect EFH, Federal agencies must provide 
NMFS with a written assessment of the effects of that action on EFH. 
For actions covered by a General Concurrence under paragraph (g) of 
this section, an EFH Assessment should be completed during the 
development of the General Concurrence and is not required for the 
individual actions. For actions addressed by a programmatic 
consultation under paragraph (j) of this section, an EFH Assessment 
should be completed during the programmatic consultation and is not 
required for individual actions implemented under the program, except 
in those instances identified by NMFS in the programmatic consultation 
as requiring separate EFH consultation. Federal agencies are not 
required to provide NMFS with assessments regarding actions that they 
have determined would not adversely affect EFH. Federal agencies may 
incorporate an EFH Assessment into documents prepared for other 
purposes such as Endangered Species Act (ESA) Biological Assessments 
pursuant to 50 CFR part 402 or National Environmental Policy Act (NEPA) 
documents and public notices pursuant to 40 CFR part 1500. If an EFH 
Assessment is contained in another document, it must include all of the 
information required in paragraph (e)(3) of this section and be clearly 
identified as an EFH Assessment. The procedure for combining an EFH 
consultation with other environmental reviews is set forth in paragraph 
(f) of this section.
    (2) Level of detail. The level of detail in an EFH Assessment 
should be commensurate with the complexity and magnitude of the 
potential adverse effects of the action. For example, for relatively 
simple actions involving minor adverse effects on EFH, the assessment 
may be very brief. Actions that may pose a more serious threat to EFH 
warrant a correspondingly more detailed EFH Assessment.
    (3) Mandatory contents. The assessment must contain:
    (i) A description of the action.
    (ii) An analysis of the potential adverse effects of the action on 
EFH and the managed species.
    (iii) The Federal agency's conclusions regarding the effects of the 
action on EFH.
    (iv) Proposed mitigation, if applicable.
    (4) Additional information. If appropriate, the assessment should 
also include:
    (i) The results of an on-site inspection to evaluate the habitat 
and the site-specific effects of the project.
    (ii) The views of recognized experts on the habitat or species that 
may be affected.
    (iii) A review of pertinent literature and related information.
    (iv) An analysis of alternatives to the action. Such analysis 
should include alternatives that could avoid or minimize adverse 
effects on EFH.
    (v) Other relevant information.
    (5) Incorporation by reference. The assessment may incorporate by 
reference a completed EFH Assessment prepared for a similar action,

[[Page 2381]]

supplemented with any relevant new project specific information, 
provided the proposed action involves similar impacts to EFH in the 
same geographic area or a similar ecological setting. It may also 
incorporate by reference other relevant environmental assessment 
documents. These documents must be provided to NMFS with the EFH 
Assessment.
    (f) Use of existing environmental review procedures--(1) Purpose 
and criteria. Consultation and commenting under sections 305(b)(2) and 
305(b)(4) of the Magnuson-Stevens Act should be consolidated, where 
appropriate, with interagency consultation, coordination, and 
environmental review procedures required by other statutes, such as 
NEPA, the Fish and Wildlife Coordination Act, Clean Water Act, ESA, and 
Federal Power Act. The requirements of sections 305(b)(2) and 305(b)(4) 
of the Magnuson-Stevens Act, including consultations that would be 
considered to be abbreviated or expanded consultations under paragraphs 
(h) and (i) of this section, can be combined with existing procedures 
required by other statutes if such processes meet, or are modified to 
meet, the following criteria:
    (i) The existing process must provide NMFS with timely notification 
of actions that may adversely affect EFH. The Federal agency should 
notify NMFS according to the same timeframes for notification (or for 
public comment) as in the existing process. Whenever possible, NMFS 
should have at least 60 days notice prior to a final decision on an 
action, or at least 90 days if the action would result in substantial 
adverse impacts. NMFS and the action agency may agree to use shorter 
timeframes provided that they allow sufficient time for NMFS to develop 
EFH Conservation Recommendations.
    (ii) Notification must include an assessment of the impacts of the 
action on EFH that meets the requirements for EFH Assessments contained 
in paragraph (e) of this section. If the EFH Assessment is contained in 
another document, the Federal agency must identify that section of the 
document as the EFH Assessment.
    (iii) NMFS must have made a finding pursuant to paragraph (f)(3) of 
this section that the existing process can be used to satisfy the 
requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-
Stevens Act.
    (2) NMFS response to Federal agency. If an existing environmental 
review process is used to fulfill the EFH consultation requirements, 
the comment deadline for that process should apply to the submittal of 
NMFS EFH Conservation Recommendations under section 305(b)(4)(A) of the 
Magnuson-Stevens Act, unless NMFS and the Federal agency agree to a 
different deadline. If NMFS EFH Conservation Recommendations are 
combined with other NMFS or NOAA comments on a Federal action, such as 
NOAA comments on a draft Environmental Impact Statement, the EFH 
Conservation Recommendations will be clearly identified as such (e.g., 
a section in the comment letter entitled ``EFH Conservation 
Recommendations'') and a Federal agency response pursuant to section 
305(b)(4)(B) of the Magnuson-Stevens Act is required for only the 
identified portion of the comments.
    (3) NMFS finding. A Federal agency with an existing environmental 
review process should contact NMFS at the appropriate level (regional 
offices for regional processes, headquarters office for national 
processes) to discuss how to combine the EFH consultation requirements 
with the existing process, with or without modifications. If, at the 
conclusion of these discussions, NMFS determines that the existing or 
modified process meets the criteria of paragraph (f)(1) of this 
section, NMFS will make a finding that the process can be used to 
satisfy the EFH consultation requirements of the Magnuson-Stevens Act. 
If NMFS does not make such a finding, or if there are no existing 
consultation processes relevant to the Federal agency's actions, the 
agency and NMFS should follow one of the approaches for consultation 
discussed in the following sections.
    (g) General Concurrence--(1) Purpose. A General Concurrence 
identifies specific types of Federal actions that may adversely affect 
EFH, but for which no further consultation is generally required 
because NMFS has determined, through an analysis of that type of 
action, that it will likely result in no more than minimal adverse 
effects individually and cumulatively. General Concurrences may be 
national or regional in scope.
    (2) Criteria. (i) For Federal actions to qualify for General 
Concurrence, NMFS must determine that the actions meet all of the 
following criteria:
    (A) The actions must be similar in nature and similar in their 
impact on EFH.
    (B) The actions must not cause greater than minimal adverse effects 
on EFH when implemented individually.
    (C) The actions must not cause greater than minimal cumulative 
adverse effects on EFH.
    (ii) Actions qualifying for General Concurrence must be tracked to 
ensure that their cumulative effects are no more than minimal. In most 
cases, tracking actions covered by a General Concurrence will be the 
responsibility of the Federal agency. However, NMFS may agree to track 
such actions. Tracking should include numbers of actions and the amount 
and type of habitat adversely affected, and should specify the baseline 
against which the actions will be tracked. The agency responsible for 
tracking such actions should make the information available to NMFS, 
the applicable Council(s), and to the public on an annual basis.
    (iii) Categories of Federal actions may also qualify for General 
Concurrence if they are modified by appropriate conditions that ensure 
the actions will meet the criteria in paragraph (g)(2)(i) of this 
section. For example, NMFS may provide General Concurrence for 
additional actions contingent upon project size limitations, seasonal 
restrictions, or other conditions.
    (iv) If a General Concurrence is proposed for actions that may 
adversely affect habitat areas of particular concern, the General 
Concurrence should be subject to a higher level of scrutiny than a 
General Concurrence not involving a habitat area of particular concern.
    (3) General Concurrence development. A Federal agency may request a 
General Concurrence for a category of its actions by providing NMFS 
with an EFH Assessment containing a description of the nature and 
approximate number of the actions, an analysis of the effects of the 
actions on EFH, including cumulative effects, and the Federal agency's 
conclusions regarding the magnitude of such effects. If NMFS agrees 
that the actions fit the criteria in paragraph (g)(2)(i) of this 
section, NMFS will provide the Federal agency with a written statement 
of General Concurrence that further consultation is not required. If 
NMFS does not agree that the actions fit the criteria in paragraph 
(g)(2)(i) of this section, NMFS will notify the Federal agency that a 
General Concurrence will not be issued and that another type of 
consultation will be required. If NMFS identifies specific types of 
Federal actions that may meet the requirements for a General 
Concurrence, NMFS may initiate and complete a General Concurrence.
    (4) Further consultation. NMFS may request notification for actions 
covered under a General Concurrence if NMFS concludes there are 
circumstances under which such actions could result in more than a 
minimal impact on EFH, or if it determines that there is no process in 
place to adequately assess the cumulative impacts of actions covered

[[Page 2382]]

under the General Concurrence. NMFS may request further consultation 
for these actions on a case-by-case basis. Each General Concurrence 
should establish specific procedures for further consultation, if 
appropriate.
    (5) Notification. After completing a General Concurrence, NMFS will 
provide a copy to the appropriate Council(s) and will make the General 
Concurrence available to the public by posting the document on the 
internet or through other appropriate means.
    (6) Revisions. NMFS will periodically review and revise its General 
Concurrences, as appropriate.
    (h) Abbreviated consultation procedures--(1) Purpose and criteria. 
Abbreviated consultation allows NMFS to determine quickly whether, and 
to what degree, a Federal action may adversely affect EFH. Federal 
actions that may adversely affect EFH should be addressed through the 
abbreviated consultation procedures when those actions do not qualify 
for a General Concurrence, but do not have the potential to cause 
substantial adverse effects on EFH. For example, the abbreviated 
consultation procedures should be used when the adverse effect(s) of an 
action could be alleviated through minor modifications.
    (2) Notification by agency and submittal of EFH Assessment. 
Abbreviated consultation begins when NMFS receives from the Federal 
agency an EFH Assessment in accordance with paragraph (e) of this 
section and a written request for consultation.
    (3) NMFS response to Federal agency. If NMFS determines, contrary 
to the Federal agency's assessment, that an action would not adversely 
affect EFH, or if NMFS determines that no EFH Conservation 
Recommendations are needed, NMFS will notify the Federal agency either 
informally or in writing of its determination. If NMFS believes that 
the action may result in substantial adverse effects on EFH, or that 
additional analysis is needed to assess the effects of the action, NMFS 
will request in writing that the Federal agency initiate expanded 
consultation. Such request will explain why NMFS believes expanded 
consultation is needed and will specify any new information needed. If 
expanded consultation is not necessary, NMFS will provide EFH 
Conservation Recommendations, if appropriate, pursuant to section 
305(b)(4)(A) of the Magnuson-Stevens Act.
    (4) Timing. The Federal agency must submit its EFH Assessment to 
NMFS as soon as practicable, but at least 60 days prior to a final 
decision on the action. NMFS must respond in writing within 30 days. 
NMFS and the Federal agency may agree to use a compressed schedule in 
cases where regulatory approvals or emergency situations cannot 
accommodate 30 days for consultation, or to conduct consultation 
earlier in the planning cycle for actions with lengthy approval 
processes.
    (i) Expanded consultation procedures--(1) Purpose and criteria. 
Expanded consultation allows maximum opportunity for NMFS and the 
Federal agency to work together to review the action's impacts on EFH 
and to develop EFH Conservation Recommendations. Expanded consultation 
procedures must be used for Federal actions that would result in 
substantial adverse effects to EFH. Federal agencies are encouraged to 
contact NMFS at the earliest opportunity to discuss whether the adverse 
effects of an action make expanded consultation appropriate.
    (2) Notification by agency and submittal of EFH Assessment. 
Expanded consultation begins when NMFS receives from the Federal agency 
an EFH Assessment in accordance with paragraph (e) of this section and 
a written request for expanded consultation. Federal agencies are 
encouraged to provide in the EFH Assessment the additional information 
identified under paragraph (e)(4) of this section to facilitate review 
of the effects of the action on EFH.
    (3) NMFS response to Federal agency. NMFS will:
    (i) Review the EFH Assessment, any additional information furnished 
by the Federal agency, and other relevant information.
    (ii) Conduct a site visit, if appropriate, to assess the quality of 
the habitat and to clarify the impacts of the Federal agency action. 
Such a site visit should be coordinated with the Federal agency and 
appropriate Council(s), if feasible.
    (iii) Coordinate its review of the action with the appropriate 
Council(s).
    (iv) Discuss EFH Conservation Recommendations with the Federal 
agency and provide such recommendations to the Federal agency, pursuant 
to section 305(b)(4)(A) of the Magnuson-Stevens Act.
    (4) Timing. The Federal agency must submit its EFH Assessment to 
NMFS as soon as practicable, but at least 90 days prior to a final 
decision on the action. NMFS must respond within 60 days of submittal 
of a complete EFH Assessment unless consultation is extended by 
agreement between NMFS and the Federal agency. NMFS and Federal 
agencies may agree to use a compressed schedule in cases where 
regulatory approvals or emergency situations cannot accommodate 60 days 
for consultation, or to conduct consultation earlier in the planning 
cycle for actions with lengthy approval processes.
    (5) Extension of consultation. If NMFS determines that additional 
data or analysis would provide better information for development of 
EFH Conservation Recommendations, NMFS may request additional time for 
expanded consultation. If NMFS and the Federal agency agree to an 
extension, the Federal agency should provide the additional information 
to NMFS, to the extent practicable. If NMFS and the Federal agency do 
not agree to extend consultation, NMFS must provide EFH Conservation 
Recommendations to the Federal agency using the best scientific 
information available to NMFS.
    (j) Programmatic consultation--(1) Purpose. Programmatic 
consultation provides a means for NMFS and a Federal agency to consult 
regarding a potentially large number of individual actions that may 
adversely affect EFH. Programmatic consultation will generally be the 
most appropriate option to address funding programs, large-scale 
planning efforts, and other instances where sufficient information is 
available to address all reasonably foreseeable adverse effects on EFH 
of an entire program, parts of a program, or a number of similar 
individual actions occurring within a given geographic area.
    (2) Process. A Federal agency may request programmatic consultation 
by providing NMFS with an EFH Assessment in accordance with paragraph 
(e) of this section. The description of the proposed action in the EFH 
Assessment should describe the program and the nature and approximate 
number (annually or by some other appropriate time frame) of the 
actions. NMFS may also initiate programmatic consultation by requesting 
pertinent information from a Federal agency.
    (3) NMFS response to Federal agency. NMFS will respond to the 
Federal agency with programmatic EFH Conservation Recommendations and, 
if applicable, will identify any potential adverse effects that could 
not be addressed programmatically and require project-specific 
consultation. NMFS may also determine that programmatic consultation is 
not appropriate, in which case all EFH Conservation Recommendations 
will be deferred to project-specific consultations. If appropriate, 
NMFS' response may include a General Concurrence for activities that 
qualify under paragraph (g) of this section.

[[Page 2383]]

    (k) Responsibilities of Federal agency following receipt of EFH 
Conservation Recommendations--(1) Federal agency response. As required 
by section 305(b)(4)(B) of the Magnuson-Stevens Act, the Federal agency 
must provide a detailed response in writing to NMFS and to any Council 
commenting on the action under section 305(b)(3) of the Magnuson-
Stevens Act within 30 days after receiving an EFH Conservation 
Recommendation from NMFS. Such a response must be provided at least 10 
days prior to final approval of the action if the response is 
inconsistent with any of NMFS' EFH Conservation Recommendations, unless 
NMFS and the Federal agency have agreed to use alternative time frames 
for the Federal agency response. The response must include a 
description of measures proposed by the agency for avoiding, 
mitigating, or offsetting the impact of the activity on EFH. In the 
case of a response that is inconsistent with NMFS Conservation 
Recommendations, the Federal agency must explain its reasons for not 
following the recommendations, including the scientific justification 
for any disagreements with NMFS over the anticipated effects of the 
action and the measures needed to avoid, minimize, mitigate, or offset 
such effects.
    (2) Further review of decisions inconsistent with NMFS or Council 
recommendations. If a Federal agency decision is inconsistent with a 
NMFS EFH Conservation Recommendation, the Assistant Administrator for 
Fisheries may request a meeting with the head of the Federal agency, as 
well as with any other agencies involved, to discuss the action and 
opportunities for resolving any disagreements. If a Federal agency 
decision is also inconsistent with a Council recommendation made 
pursuant to section 305(b)(3) of the Magnuson-Stevens Act, the Council 
may request that the Assistant Administrator initiate further review of 
the Federal agency's decision and involve the Council in any 
interagency discussion to resolve disagreements with the Federal 
agency. The Assistant Administrator will make every effort to 
accommodate such a request. NMFS may develop written procedures to 
further define such review processes.
    (l) Supplemental consultation. A Federal agency must reinitiate 
consultation with NMFS if the agency substantially revises its plans 
for an action in a manner that may adversely affect EFH or if new 
information becomes available that affects the basis for NMFS EFH 
Conservation Recommendations.


Sec. 600.925  NMFS EFH Conservation Recommendations to Federal and 
state agencies.

    (a) General. Under section 305(b)(4)(A) of the Magnuson-Stevens 
Act, NMFS is required to provide EFH Conservation Recommendations to 
Federal and state agencies for actions that would adversely affect EFH. 
NMFS will not recommend that state or Federal agencies take actions 
beyond their statutory authority.
    (b) Recommendations to Federal agencies. For Federal actions, EFH 
Conservation Recommendations will be provided to Federal agencies as 
part of EFH consultations conducted pursuant to Sec. 600.920. If NMFS 
becomes aware of a Federal action that would adversely affect EFH, but 
for which a Federal agency has not initiated an EFH consultation, NMFS 
may request that the Federal agency initiate EFH consultation, or NMFS 
will provide EFH Conservation Recommendations based on the information 
available.
    (c) Recommendations to state agencies--(1) Establishment of 
procedures. The Magnuson-Stevens Act does not require state agencies to 
consult with the Secretary regarding EFH. NMFS will use existing 
coordination procedures or establish new procedures to identify state 
actions that may adversely affect EFH, and to determine the most 
appropriate method for providing EFH Conservation Recommendations to 
state agencies.
    (2) Coordination with states on recommendations to Federal 
agencies. When an action that would adversely affect EFH is authorized, 
funded, or undertaken by both Federal and state agencies, NMFS will 
provide the appropriate state agencies with copies of EFH Conservation 
Recommendations developed as part of the Federal consultation 
procedures in Sec. 600.920. NMFS will also seek agreements on sharing 
information and copies of recommendations with Federal or state 
agencies conducting similar consultation and recommendation processes 
to ensure coordination of such efforts.
    (d) Coordination with Councils. NMFS will coordinate with each 
Council to identify the types of actions on which Councils intend to 
comment pursuant to section 305(b)(3) of the Magnuson-Stevens Act. For 
such actions NMFS will share pertinent information with the Council, 
including copies of NMFS' EFH Conservation Recommendations.


Sec. 600.930  Council comments and recommendations to Federal and state 
agencies.

    Under section 305(b)(3) of the Magnuson-Stevens Act, Councils may 
comment on and make recommendations to the Secretary and any Federal or 
state agency concerning any activity or proposed activity authorized, 
funded, or undertaken by the agency that, in the view of the Council, 
may affect the habitat, including EFH, of a fishery resource under its 
authority. Councils must provide such comments and recommendations 
concerning any activity that, in the view of the Council, is likely to 
substantially affect the habitat, including EFH, of an anadromous 
fishery resource under Council authority.
    (a) Establishment of procedures. Each Council should establish 
procedures for reviewing Federal or state actions that may adversely 
affect the habitat, including EFH, of a species under its authority. 
Each Council may receive information on actions of concern by methods 
such as directing Council staff to track proposed actions, recommending 
that the Council's habitat committee identify actions of concern, or 
entering into an agreement with NMFS to have the appropriate Regional 
Administrator notify the Council of actions of concern that would 
adversely affect EFH. Federal and state actions often follow specific 
timetables which may not coincide with Council meetings. Therefore, 
Councils should consider establishing abbreviated procedures for the 
development of Council recommendations.
    (b) Early involvement. Councils should provide comments and 
recommendations on proposed state and Federal actions of concern as 
early as practicable in project planning to ensure thorough 
consideration of Council concerns by the action agency. Each Council 
should provide NMFS with copies of its comments and recommendations to 
state and Federal agencies.
[FR Doc. 02-885 Filed 1-15-02; 8:45 am]
BILLING CODE 3510-22-S