[Federal Register Volume 81, Number 174 (Thursday, September 8, 2016)]
[Notices]
[Pages 62100-62103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21621]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD990


Atlantic Highly Migratory Species; Essential Fish Habitat

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

ACTION: Notice of availability of Draft Environmental Assessment; 
request for comments.

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SUMMARY: NMFS announces the availability of a Draft Environmental 
Assessment for Amendment 10 to the 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP).
    NMFS finalized the most recent Atlantic HMS Essential Fish Habitat 
(EFH) 5-Year Review on July 1, 2015 and determined that updates to 
Atlantic HMS EFH were warranted. NMFS also determined that 
modifications to current Habitat Areas of Particular Concern (HAPCs) 
for bluefin tuna (Thunnus thynnus) and sandbar shark (Carcharhimus 
plumbeus) and the consideration of new HAPCs for lemon sharks 
(Negaprion brevisostris) and sand tiger sharks (Carcharias taurus) may 
be warranted.
    The purpose of this Draft Amendment is to update Atlantic HMS EFH 
with recent information following the EFH delineation methodology 
established in Amendment 1 to the 2006 Consolidated Atlantic HMS FMP 
(Amendment 1); update and consider new HAPCs for Atlantic HMS based on 
recent information, as warranted; minimize to the extent practicable 
the adverse effects of fishing and non-fishing activities on EFH, and 
identify other actions to encourage the conservation and enhancement of 
EFH.

DATES: Written comments must be received by December 22, 2016.

ADDRESSES: Electronic copies of Draft Amendment 10 to the 2006 
Consolidated HMS FMP may also be obtained on the internet at: http://www.nmfs.noaa.gov/sfa/hms/documents/fmp/am10/index.html.
    You may submit comments on this document, identified by NOAA-NMFS-
2016-0117, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov, enter NOAA-NMFS-2016-0117 into the search box, 
click the ``Comment Now!'' icon, complete the required fields, and 
enter or attach your comments.
     Mail: Submit written comments to Jennifer Cudney, National 
Marine Fisheries Service, Highly Migratory Species Management Division, 
263 13th Ave., Saint Petersburg, FL 33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying

[[Page 62101]]

information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Jennifer Cudney or Randy Blankinship 
by phone at (727) 824-5399.

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Fishery Conservation and Management Act 
(``Magnuson-Stevens Act'') includes provisions concerning the 
identification and conservation of EFH (16 U.S.C. 1801 et seq.). EFH is 
defined in 50 CFR 600.10 as ``those waters and substrate necessary to 
fish for spawning, breeding, feeding, or growth to maturity.'' NMFS 
must identify and describe EFH, minimize to the extent practicable the 
adverse effects of fishing on EFH, and identify other actions to 
encourage the conservation and enhancement of EFH (Sec.  600.815(a)). 
Federal agencies that authorize, fund, or undertake actions that may 
adversely affect EFH must consult with NMFS, and NMFS must provide 
conservation recommendations to Federal and state agencies regarding 
any such actions. Sec.  600.815(a)(9). Specifically, a consultation is 
required if a Federal agency has authorized, funded, or undertaken part 
or all of a proposed activity. For example, if a project proposed by a 
Federal or state agency or an individual requires a Federal permit, 
then the Federal agency authorizing the project through the issuance of 
a permit must consult with NMFS. A consultation is required if the 
action will ``adversely'' affect EFH. An adverse effect is defined as 
any impact that reduces quality and/or quantity of EFH. This includes 
direct or indirect physical, chemical, or biological alterations of the 
waters or substrate and loss of, or injury to species and their 
habitat, and other ecosystem components, or reduction of the quality 
and/or quantity of EFH. Adverse effects may result from actions 
occurring within EFH or outside of EFH. If a federal agency determines 
that an action will not adversely affect EFH, no consultation is 
required. Private landowners and state agencies are not required to 
consult with NMFS.
    In addition to identifying and describing EFH for managed fish 
species, a review of EFH must be completed every 5 years, and EFH 
provisions must be revised or amended, as warranted, based on the best 
available scientific information. NMFS announced the initiation of this 
review and solicited information for this review from the public in a 
Federal Register notice on March 24, 2014 (79 FR 15959). The initial 
public review/submission period ended on May 23, 2014. The Draft 
Atlantic HMS EFH 5-Year Review was made available on March 5, 2015 (80 
FR 11981), and the public comment period ended on April 6, 2015. NMFS 
analyzed the information gathered through the EFH review process, and 
the Notice of Availability for the Final Atlantic HMS EFH 5-Year Review 
was published on July 1, 2015 (80 FR 37598) (``5-Year Review'').
    The 5-Year Review considered data regarding Atlantic HMS and their 
habitats that have become available since 2009 that were not included 
in EFH updates finalized in Amendment 1 (June 1, 2010, 75 FR 30484); 
Final Environmental Impact Statement for Amendment 3 to the 2006 
Consolidated HMS FMP (Amendment 3) (June 1, 2010, 75 FR 30484); and the 
interpretive rule that described EFH for roundscale spearfish 
(September 22, 2010, 75 FR 57698). NMFS also determined in the 5-Year 
Review that the methodology used in Amendment 1 to delineate Atlantic 
HMS EFH was still the best approach to update EFH delineations in 
Amendment 10 because it infers habitat use and EFH from available point 
data, allows for the incorporation of multiple complex datasets into 
the analysis, is transparent, and is easily reproducible.
    As a result of this review, NMFS determined that a revision of HMS 
EFH was warranted, and that an amendment to the 2006 Consolidated 
Atlantic HMS FMP would be developed as Amendment 10. In addition to the 
literature informing the 5-year Review and the subsequent proposed 
amendment, NMFS indicated that it would also incorporate all newly 
available data collected prior to January 1, 2015, to ensure that the 
best available data would be analyzed for Draft Amendment 10, and EFH 
geographic boundaries would be re-evaluated, even for species where 
there were limited or no new EFH data found in the literature review. 
Consultation with the Atlantic HMS Advisory Panel and the public did 
not yield additional suggestions for NMFS to consider on EFH 
delineation methods for Atlantic HMS during the EFH 5-Year Review 
process. Therefore, NMFS determined that the current HMS EFH 
delineation methodology could be used for the analyses in Draft 
Amendment 10.
    Where appropriate, NMFS may designate HAPCs, which are intended to 
focus conservation efforts on localized areas within EFH that are 
vulnerable to degradation or are especially important ecologically for 
managed species. EFH regulatory guidelines encourage the Regional 
Fishery Management Councils and NMFS to identify HAPCs based on one or 
more of the following considerations (Sec.  600.815(a)(8)):
     The importance of the ecological function provided by the 
habitat;
     the extent to which the habitat is sensitive to human-
induced environmental degradation;
     whether, and to what extent, development activities are, 
or will be, stressing the habitat type; and/or,
     the rarity of the habitat type.

After reviewing the new information that has become available for 
Atlantic HMS since the last updates to EFH were completed, and based on 
analyses of new data, NMFS is considering modifications to current 
HAPCs for bluefin tuna and sandbar sharks, and the creation of new 
HAPCs for lemon sharks and sand tiger sharks.
    The purpose of the amendment would be to update EFH for Atlantic 
HMS with recent information following the EFH delineation methodology 
established in Amendment 1; minimize to the extent practicable the 
adverse effects of fishing and non-fishing activities on EFH; and 
identify other actions to encourage the conservation and enhancement of 
EFH. Specific actions would include the update and revision of existing 
HMS EFH, as necessary; modification of existing HAPCs or designation of 
new HAPCs for bluefin tuna, and sandbar, lemon, and sand tiger sharks, 
as necessary; and analysis of fishing and non-fishing impacts on EFH by 
considering environmental and management changes and new information 
since 2009.

Essential Fish Habitat Updates

    Preferred Alternative 2 would update all Atlantic HMS EFH 
designations with new data collected since 2009, using the methodology 
established under Amendment 1. The incorporation of new information and 
data into EFH analyses, and subsequent adjustment of Atlantic HMS EFH, 
is expected to result in neutral cumulative and direct and indirect, 
short-term ecological, social, and economic impacts on the natural and 
human environment. This alternative is also expected to result in 
neutral long-term direct ecological, social, and economic impacts on 
the natural and human environment. The primary effect of updating 
Atlantic HMS EFH would be a change in the areas that are subject to 
consultation with NMFS under the EFH regulations. Updating

[[Page 62102]]

Atlantic HMS EFH ensures that any management consultations subsequently 
completed by the NMFS Office of Habitat Conservation, and resulting 
conservation recommendations, are based on the best available 
scientific information considering EFH designation. These future 
consultations through the Habitat Consultation process could, among 
other things, focus conservation efforts and avoid potential adverse 
impacts from Federal actions in areas designated as EFH. Thus, NMFS 
expects that long-term cumulative and indirect impacts of Alternative 2 
would be minor and beneficial, as the consultation process and 
resulting conservation recommendations could reduce any potential 
adverse impacts to EFH from future federal actions. This could result 
in an overall positive conservation benefit.

Habitat Areas of Particular Concern (HAPCs)

    The preferred alternatives concerning HAPCs would modify or create 
new HAPCs for several HMS.
    Preferred alternative 3b would modify the current HAPC for the 
spawning, eggs, and larvae life stages for bluefin tuna. Specifically, 
NMFS would change the boundary of the existing bluefin tuna HAPC to 
encompass a larger area within the Gulf of Mexico. Recent literature 
suggests the potential for spawning bluefin tuna, eggs, and larvae to 
be concentrated in areas of the eastern Gulf of Mexico not encompassed 
by the current HAPC in response to variability in oceanographic 
conditions associated with the Loop Current, which moves through 
regions that are to the east of the current HAPC. NMFS would extend the 
HAPC in the Gulf of Mexico from its current extent eastward to the 
82[deg] West longitude line. The seaward boundary of the HAPC would 
continue to be the U.S. EEZ, while the shoreward extent of the HAPC 
would be restricted at the 100m bathymetric line per recommendations 
from the NMFS scientists.
    Preferred alternative 4b would modify the current HAPC for sandbar 
shark along the Atlantic coast (specifically off the coast of the Outer 
Banks (NC), in Chesapeake Bay (VA), Delaware Bay (DE) and in the 
Mullica River-Great Bay system (NJ)). Modification would include 
changing the boundary of the existing HAPC to encompass different 
areas, consistent with the updated Atlantic HMS EFH designations. The 
current sandbar shark HAPC does not overlap with the currently-
designated sandbar shark EFH as required by the Magnuson-Stevens Act 
implementing regulations, which specify FMPs ``identify specific types 
or areas of habitat within EFH as habitat areas of particular concern'' 
(emphasis added) (Sec.  600.815(a)(8)). Thus, NMFS is proposing to 
adjust the boundaries of the HAPC so that it is contained within the 
updated sandbar shark EFH. These changes include incorporation of 
additional area in Delaware Bay and Chesapeake Bay to reflect updated 
EFH designations, and adjustment of the HAPC around the Outer Banks of 
North Carolina. The updated areas identified as HAPCs are still 
considered to be important pupping and nursery grounds for sandbar 
shark. Delaware Bay and Chesapeake Bay are the largest nursery grounds 
for sandbar shark in the mid-Atlantic, and there is evidence of high 
inter-annual site fidelity for up to five years following birth to 
these nursery grounds.
    Preferred Alternative 5b would designate a new HAPC for lemon 
sharks between Jupiter Inlet, FL, and Cape Canaveral, FL. Information 
analyzed in the 5-year review suggests that areas off south central and 
south eastern Florida may provide important nursery grounds and 
aggregation sites for multiple life stages. Aggregations of juvenile 
lemon sharks have appeared annually since 2003 within sheltered 
alongshore troughs and shallow open surf zones adjacent to Cape 
Canaveral from November through February. Adult lemon sharks have also 
been observed to annually form large aggregations off Jupiter Inlet 
between December and April. Geophysical and oceanographic conditions in 
the Cape Canaveral and Jupiter inlet regions may generate a climatic 
transition zone that may create a temperature barrier to northward and 
southward migration. A new HAPC would be created to encompass both 
areas and presumed migratory corridors between them and extend from 
shore to 12 km from the beach. These habitats occur near a heavily 
populated area of southeastern Florida, are subjected to military use 
and/or are easily accessible to the public, and both appear to be 
discrete aggregation areas for lemon sharks.
    Preferred Alternative 6b would designate two new HAPCs for sand 
tiger sharks in Delaware Bay and in coastal Massachusetts. Recently, 
new research and information has become available which suggests that 
Delaware Bay might provide important seasonal (summertime) habitat for 
all life stages of sand tiger shark. The first HAPC would reflect the 
distribution of known data points in Delaware Bay. The second HAPC 
would be established in the Plymouth, Kingston, Duxbury (PKD) Bay 
system in coastal Massachusetts for juveniles and neonate sand tiger in 
the Cape Cod region. Tagging data suggest that tagged neonates and 
juveniles are seasonally distributed within the estuary (June through 
October); consistently used habitats for extended periods of time; and 
exhibited inter-annual site fidelity for the PKD Bay system.
    NMFS expects that the short-term direct and indirect ecological, 
social and economic effects of revising current HAPCs for bluefin tuna 
spawning, eggs, and larvae in the Gulf of Mexico and for sandbar shark 
in the Mid-Atlantic, and creating new HAPCs for lemon sharks off 
southeastern Florida and for sand tiger sharks in Delaware Bay and in 
the PKD Bay system of Massachusetts would be neutral, as this process 
only designates habitat and there are no additional associated 
management measures under evaluation in Draft Amendment 10 for these 
HAPCs. Similarly, NMFS expects that the long-term direct ecological, 
social and economic effects of modifying and creating these HAPCs would 
be neutral. However, NMFS expects that the long-term indirect 
ecological, social, and economic effects of Alternatives 3b, 4b, 5b, 
and 6b would be minor and beneficial as a result of any future 
consultations as the Habitat Consultation process and resulting 
conservation recommendations could reduce any potential adverse impacts 
to HAPCs from future federal actions. This could result in an overall 
positive conservation benefit. These preferred alternatives would 
permit the incorporation and consideration of the best available 
scientific information in considering an HAPC designation for, among 
other things, purposes of focusing conservation efforts and avoiding 
adverse impacts through the Habitat Consultation process, inform the 
public of areas that could receive additional scrutiny from NMFS with 
regards to EFH impacts, and/or promote additional area-based research, 
as necessary.

Fishing and Non-Fishing Impacts and Conservation Recommendations

    As analyzed in Amendment 1, since nearly all HMS EFH is comprised 
of open water habitat, all HMS fishing gears but bottom longline and 
shrimp trawl do not have an effect on EFH. For some shark species, EFH 
includes benthic habitat types such as mud or sandy bottom that might 
be affected by fishing gears. NMFS has determined that bottom tending 
gears such as bottom longline and shrimp trawls, which are the two 
gears most likely to

[[Page 62103]]

impact EFH, have a minimal and only temporary effect on EFH. There is 
no new information that has become available since Amendment 1 to the 
2006 Consolidated HMS FMP that would alter this conclusion. As a 
result, NMFS is not proposing any measures or alternatives to minimize 
fishing impacts on these habitats.
    However, although adverse effects are not anticipated, NMFS has 
provided an example list of conservation recommendations in Chapter 5 
of Draft Amendment 10 that could address shark bottom longline fishing 
impacts; these recommendations could apply to all areas designated as 
either EFH or HAPCs. This section is included to satisfy the EFH 
provisions concerning mandatory contents of FMPs, specifically the 
Conservation and Enhancement requirements at Sec.  600.815(a)(6). This 
amendment similarly evaluates the potential adverse effects of fishing 
with all HMS gear types on designated and proposed EFH and HAPCs in 
Chapter 5 and provides conservation recommendations, as necessary.

Opportunities for Public Comment

    NMFS will conduct public hearing conference calls and webinars to 
allow for opportunities for interested members of the public from all 
geographic areas to submit verbal comments on Draft Amendment 10. These 
will be announced at a later date and in the Federal Register. NMFS has 
also requested time on the meeting agendas of the relevant Regional 
Fishery Management Councils (i.e., the Caribbean, Gulf of Mexico, South 
Atlantic, Mid-Atlantic, and New England Fishery Management Councils) to 
present information on Draft Amendment 10. Information on the date and 
time of those presentations will be provided on the appropriate council 
agendas.
    The webinar presentation and conference call transcripts will be 
made available at this Web site: http://www.nmfs.noaa.gov/sfa/hms/documents/fmp/am10/index.html. Transcripts from Council meetings may be 
provided by the Councils on respective Web sites.

Public Hearing Code of Conduct

    The public is reminded that NMFS expects participants at public 
hearings and council meetings to conduct themselves appropriately. At 
the beginning of each meeting, a representative of NMFS will explain 
the ground rules (e.g., all comments are to be directed to the agency 
on the proposed action; attendees will be called to give their comments 
in the order in which they registered to speak; each attendee will have 
an equal amount of time to speak; attendees may not interrupt one 
another; etc.). NMFS representative(s) will structure the meeting so 
that all attending members of the public will be able to comment, if 
they so choose, regardless of the controversial nature of the 
subject(s). Attendees are expected to respect the ground rules, and 
those that do not may be asked to leave the meeting.

    Authority: 16 U.S.C. 971 et seq., and 1801 et seq.

    Dated: September 2, 2016,
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-21621 Filed 9-7-16; 8:45 am]
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