[Federal Register Volume 82, Number 172 (Thursday, September 7, 2017)]
[Notices]
[Pages 42329-42337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18961]


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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 Final Environmental Assessment.

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SUMMARY: NMFS announces the availability of a Final Environmental 
Assessment for Amendment 10 to the 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP). This Final 
Amendment updates Atlantic HMS essential fish habitat (EFH) based on 
new scientific evidence or other

[[Page 42330]]

relevant information and following the EFH delineation methodology 
established in Amendment 1 to the 2006 Consolidated Atlantic HMS FMP 
(Amendment 1); updates and considers new habitat areas of particular 
concern (HAPCs) for Atlantic HMS based on new information, as 
warranted; minimizes to the extent practicable the adverse effects of 
fishing on EFH; and identifies other actions to encourage the 
conservation and enhancement of EFH. This action is necessary to comply 
with the EFH provisions of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act), and the National Standard 2 
requirement that conservation and management measures be based on the 
best scientific information available.

DATES: The amendment was approved on August 30, 2017.

ADDRESSES: Electronic copies of Final Amendment 10 to the 2006 
Consolidated HMS FMP and associated documents (including maps and 
shapefiles) may be obtained on the internet at: www.nmfs.noaa.gov/sfa/hms/documents/fmp/am10/index.html.

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

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Act requires that Fishery Management Plans 
identify and describe EFH and, to the extent practicable, minimize the 
adverse effects on EFH caused by fishing, and to also identify other 
actions to encourage the conservation and enhancement of such habitat. 
(16 U.S.C. 1853(a)(7)). NMFS has defined EFH as waters and substrate 
necessary to fish for spawning, breeding, feeding, or growth to 
maturity (50 CFR 600.10). Federal agencies that authorize, fund, or 
undertake actions, or propose to authorize, fund, or undertake actions 
that may adversely affect EFH must consult with NMFS. In addition, if a 
Federal or State action or proposed action may adversely affect EFH, 
NMFS must provide the action agency with recommended measures to 
conserve EFH (Sec.  600.815(a)(9)). An adverse effect is defined as an 
effect that reduces quality and/or quantity of EFH. This includes 
direct or indirect physical, chemical, or biological alterations of the 
waters or substrate; 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.
    In addition to identifying EFH, NMFS or Regional Fishery Management 
Councils may designate HAPCs where appropriate. The purpose of a HAPC 
is 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.
    In addition to identifying and describing EFH for managed fish 
species, NMFS or Regional Fishery Management Councils must periodically 
review EFH FMP components, and make revisions or amendments, as 
warranted, based on new scientific evidence or other relevant 
information (Sec.  600.815(a)(10)). NMFS commenced this review and 
solicited information 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. 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 and information regarding 
Atlantic HMS and their habitats that have become available since 2009 
that were not included in EFH updates finalized in Amendment 1 to the 
2006 Consolidated HMS FMP (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 determined that a revision of 
Atlantic HMS EFH was warranted, and that Amendment 10 to the Atlantic 
HMS FMP should be developed in order to implement these updates. NMFS 
determined in the 5-Year Review that the method used in Amendment 1 to 
delineate Atlantic HMS EFH was still the best approach. This method was 
therefore applied to complete analyses that support the new amendment.
    On September 8, 2016, NMFS published a notice of availability of 
the Draft Environmental Assessment (EA) for Amendment 10 to the 2006 
Consolidated Atlantic HMS FMP (81 FR 62100). Draft Amendment 10 
considered all 10 components of EFH listed at Sec.  600.815(a). For 
evaluation of EFH geographic boundaries, the Draft Amendment 
incorporated new information and data that became available to the 
agency following publication of the previous EFH update (Amendment 1 to 
the 2006 Consolidated Atlantic HMS FMP in 2009). New information and 
data came from a literature and data meta-analysis completed as part of 
the recent EFH 5-Year Review, and from data and information submitted 
by NOAA scientists and the public during public comment periods. These 
data sets included sources such as fishery-independent survey data 
records collected between 2009-2014, even for species where there were 
limited or no new EFH data found in the literature review. A complete 
list of data sources and information used to update Draft Amendment 10 
is available in the Draft EA. Draft Amendment 10 used the same EFH 
delineation methodology established in Amendment 1 to update EFH 
boundaries. Draft Amendment 10 proposed alternatives to modify existing 
HAPCs or designate new HAPCs for bluefin tuna (Thunnus thynnus), and 
sandbar (Carcharhinus plumbeus), lemon (Negaprion brevisorstris), and 
sand tiger sharks (Carcharias taurus); analyzed fishing and non-fishing 
impacts on EFH through a consideration of environmental and management 
changes and new information that has become available since 2009; 
identified ways to minimize to the extent practicable the adverse 
effects of fishing activities on EFH; and identified other actions to 
encourage the conservation and enhancement of EFH.
    NMFS sought public comment on Draft Amendment 10 through December 
22, 2016. Additionally, NMFS conducted two public hearing conference 
calls/webinars for interested members of the public to submit verbal 
comments (81 FR 71076). Furthermore, NMFS presented information on 
Draft Amendment 10 to the Caribbean, Gulf of Mexico, South Atlantic, 
Mid-Atlantic, and New England Fishery Management Councils. NMFS 
received 26 unique written comments on the Draft Amendment, and 
received a number of additional comments and/or clarifying questions at 
the Atlantic HMS Advisory Panel meeting and at Council meetings.
    NMFS received multiple comments in support of the proposed updates 
to EFH

[[Page 42331]]

and for modification and/or creation of new HAPCs. Among other things, 
NMFS received comments and suggestions on the following: suggestions to 
improve EFH analysis methodology; recommendations against the 
establishment of EFH boundaries for dusky sharks north of a New England 
management demarcation line; modifications to proposed EFH updates for 
multiple shark species based on research submitted by commenters; 
modifications on the proposed extent of the bluefin tuna HAPC; and 
requests for inclusion of additional information in the EA.
    The Final Amendment modifies EFH for Atlantic HMS (Preferred 
Alternative 2). When preparing Draft Amendment 10, NMFS identified 
several new datasets and completed a comprehensive analysis of agency 
datasets that included the addition of six years of new data (2009-
2014). Additional relevant datasets were not available in time for 
inclusion in Draft Amendment 10 but have been included in the Final 
Amendment 10. These datasets contained Level 1 point data from the 
Billfish Foundation, the Southeast Area Monitoring and Assessment 
Program (SEAMAP) icthyoplankton trawl survey, the SEAMAP Acoustic/Small 
Pelagics survey, the SEAMAP Shrimp/Bottomfish survey, and the North 
Carolina Department of Natural Resources inshore gillnet/trawl survey 
data. There was additional pelagic longline observer data for white 
marlin was available following publication of Draft Amendment 10.
    Given the large number of new data points that became available 
during and following the public comment period for Draft Amendment 10, 
NMFS determined that for Final Amendment 10 it was appropriate to rerun 
models for multiple species. For example, the inclusion of SEAMAP 
Acoustic/Small Pelagic and Shrimp/Bottomfish surveys in analyses rerun 
for Final Amendment 10 added 1,533 data points for angel shark in the 
Gulf of Mexico. Inclusion of these new data points into the Kernal 
Density Estimation/95 Percent Volume Contour models resulted in minor 
modifications to the EFH boundary updates that were previously 
presented in Draft Amendment 10.
    The EFH model output generated for Final Amendment 10 was then 
subjected to robust scientific peer review and quality assurance/
quality control (QA/QC) to ensure that updates to EFH boundaries were 
sound. The use of robust scientific peer review and QA/QC after models 
are developed and EFH boundaries are derived from the 95 percent 
probability boundary is consistent with provisions of the Magnuson-
Stevens Act section 305(b)(1)(A). For example, Councils or NMFS may 
describe, identify, and protect habitats of managed species that are 
beyond the EEZ; however, such habitat may not be considered EFH for the 
purposes of the requirements under sections 303(a)(7) and 305(b) of the 
Magnuson-Stevens Act (Sec.  600.805(a)(2)). Given these aspects of the 
EFH regulations, the 95 percent probability boundary derived from 
models is clipped, or made to match, the seaward EEZ boundary, 
depending on where the overlap occurred. Based on the recommendations 
of NMFS scientists in the Northeast and Southeast Fisheries Science 
Centers, and in cases where it made biological sense, NMFS clipped 
polygons to specified features or areas (e.g., bathymetric (depth) 
contours (isobaths), the continental shelf break, Chesapeake Bay, 
shorelines). This reflects the known information about these species' 
habitats. In Final Amendment 10, NMFS provides additional 
clarifications on the process for QA/QC and scientific peer review 
considerations of model output (see Appendix F of the EA, see ADDRESSES 
above for instructions on how to view/locate the Final EA). Similarly, 
NMFS also added a more recently updated definition of shark nursery 
areas in Final Amendment 10 based on the discussion presented in Heupel 
et al. (2007) to assist in identifying habitats that were considered 
necessary for neonate/YOY and juvenile life stages of sharks (EFH 
definition) and/or may have been rare or played a particularly 
important ecological role (per HAPC criteria) (see Comments 15 and 16 
below; see Appendix F of the EA, see ADDRESSES above for instructions 
on how to view/locate the Final EA).
    Final Amendment 10 modifies the HAPC for bluefin tuna (Preferred 
Alternative 3b) and sandbar shark (Preferred Alternative 4b) from that 
established in Amendment 1 to the 2006 Consolidated HMS FMP. New 
literature published by Muhling et al. (2010) suggests moderate (20-40 
percent) probabilities of collecting larvae in areas of the eastern 
Gulf of Mexico that are not completely covered by the existing HAPC. 
Based on this information, Final Amendment 10 extends the HAPC for the 
Spawning, Eggs, and Larval life stage in the Gulf of Mexico from its 
current boundary of 86[deg] W. longitude (long.), eastward to 82[deg] 
W. long. The HAPC extends from the 100-meter isobath to the EEZ, and is 
based on the distribution of available data and recommendations from 
the SEFSC during QA/QC review. Final Amendment 10 also adjusts the 
neonate/YOY sandbar shark HAPC established in the 1999 FMP for Atlantic 
Tunas, Swordfish, and Sharks such that it is consistent with updates to 
EFH (Preferred Alternative 2b) in coastal North Carolina, Chesapeake 
Bay, and Delaware Bay for this life stage. The sandbar shark EFH 
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 to remove areas in 
Pamlico Sound. The HAPC for sandbar shark designated in 1999 is outside 
the geographic boundaries of the most recent EFH designation (Amendment 
1) for sandbar shark. This alternative would therefore adjust the 
boundaries of the HAPC so that it is contained within the geographic 
boundaries of the sandbar shark EFH.
    Amendment 10 also creates new HAPCs for juvenile and adult lemon 
sharks (Preferred Alternative 5b) off southeastern Florida between Cape 
Canaveral and Jupiter inlet and for sand tiger shark (Preferred 
Alternative 6b) in Delaware Bay (all life stages) and the Plymouth, 
Kingston, Duxbury (PKD) Bay system in coastal Massachusetts (neonate/
YOY and juveniles). These HAPCs were proposed in the Draft Amendment 
10. The new HAPC for juvenile and adult lemon sharks is based upon 
tagging studies and public comments received that expressed concern 
about protection of habitat in locations where aggregations of lemon 
sharks are known to occur. The two new sand tiger shark HAPCs are based 
on data collected by the NEFSC, Haulsee et al. (2014 and 2016), and 
Kilfoil et al. (2014) indicating that Delaware Bay constitutes 
important habitat for sand tiger sharks.

Response to Comments

    NMFS received 26 unique written comments from fishermen, council 
members, states, environmental groups, academia and scientists, and 
other interested parties on the Draft EA during the public comment 
period. Comments included submissions of 17 form letters that were 
identical or similar to comments provided by organizations. We also 
received comments from fishermen, states, and other interested parties 
at Council meetings, Atlantic HMS Advisory Panel meetings, and at two 
public conference calls/webinars. All written comments can be found at 
http://www.regulations.gov.

[[Page 42332]]

    Comments are summarized below by major topic together with NMFS' 
responses.
    1. Draft EA Content (Comments 1-2),
    2. EFH Methodology (Comments 3-5),
    3. Bluefin Tuna EFH Boundary Designations (Comments 6-9),
    4. Bluefin Tuna HAPC Alternative (Comments 10-11),
    5. Shark EFH Boundary Designations (Comments 12-16),
    6. Sandbar Shark HAPC Alternative (Comment 17),
    7. Lemon Shark HAPC Alternative (Comments 18-20),
    8. Sand Tiger Shark HAPC Alternative (Comments 21-22),
    9. Other Comments (Comment 23), and
    10. Research and Restoration (Comments 24-26).

Comments by Subject

1. Draft EA Content

    Comment 1: NMFS received several comments on the content of the 
Draft EA, requesting information confirming the importance of habitat 
associations, seasonality of peak EFH utilization, and a rationale for 
the changes in EFH made between Amendment 1 and Draft Amendment 10.
    Response: Habitat association and seasonality information, based on 
available scientific literature, have been included in both the Life 
History reviews and EFH Text Descriptions for Atlantic HMS species (see 
Chapter 6 of the Final EA). If appropriate, NMFS may develop products, 
such as GIS maps depicting peak seasonal use of EFH by region in the 
future. A rationale for the changes in EFH between Amendment 1 and 
those established by Final Amendment 10 is included for each species, 
where applicable, following EFH Text Descriptions in Chapter 6 of the 
EA.
    Comment 2: NMFS should provide online access to the shapefiles and 
maps of non-preferred alternatives.
    Response: Shapefiles and maps depicting preferred alternative EFH 
and HAPC boundaries, and maps showing the extent of non-preferred HAPC 
alternatives, may be downloaded at the following Web site: http://www.nmfs.noaa.gov/sfa/hms/documents/fmp/am10/index.html. NMFS did not 
make available shapefiles or maps of the non-preferred EFH boundary 
alternative (i.e., status quo) on the Amendment 10 Web site to reduce 
confusion between what EFH designations are currently in effect and 
what is being considered in this amendment. Shapefiles representing the 
previous EFH revision exercise, which reflect the status quo--no action 
alternative in Draft Amendment 10, are available on the Web site for 
Amendment 1 to the 2006 Consolidated Atlantic HMS FMP.

2. EFH Methodology

    Comment 3: Preferred Alternative 2, which updates all Atlantic HMS 
EFH designations using the methodology established under Amendment 1, 
is appropriate.
    Response: NMFS concurs that it is appropriate to update Atlantic 
HMS EFH using new data collected since 2009 and the methodology 
established under Amendment 1. Review and updates of Atlantic HMS EFH 
are consistent with the EFH provisions of the Magnuson-Stevens Act and 
National Standard 2 (i.e., that conservation and management measures be 
based on the best scientific information available). During the 5-Year 
Review process, NMFS evaluated 11 different approaches used to assess 
EFH by the Agency or published in the literature, and determined that 
the methodology established under Amendment 1 remained the best 
approach to update Atlantic HMS EFH.
    Comment 4: NMFS should consider designations of EFH by depth 
(surface, middle, and bottom) where appropriate and if there is 
scientific information that supports such a designation.
    Response: EFH text descriptions (see Chapter 6 of the EA) include 
references to depth where appropriate based on best available 
scientific information. EFH delineation in other sections of the water 
column could be useful in Habitat Consultations; however, information 
describing vertical distribution and habitat utilization in the water 
column are not available for all Atlantic HMS species in the 
literature. While NMFS did not specifically request vertical depth data 
from the public during the 5-Year Review and Draft Amendment comment 
periods, NMFS generally requested information on relevant EFH data and 
ideas for delineation methods and no data on vertical depth 
distribution data were submitted. NMFS may explore new models and 
approaches in the future, and at that time, could evaluate the 
feasibility of designating EFH vertically through the water column for 
Atlantic HMS.
    Comment 5: The methods used to delineate EFH may bias results. 
Sampling intensity can affect the observed density, particularly for 
larvae, as well as for determining the distribution of other species, 
which impacts EFH designations. In those cases, EFH becomes a function 
of data availability, not a function of animal behavior.
    Response: The current approach to designating EFH uses an 
unweighted model that delineates contour intervals around data points; 
therefore, the models are influenced by sampling intensity, the spatial 
distribution of data, and data availability. Several Atlantic HMS 
species are data-poor, and the available datasets may provide data 
points that are clustered in space or time based on the extent of 
sampling. NMFS may explore alternative models and approaches in the 
future, if appropriate, that better account for the spatial 
distribution of available data and other biases that may influence 
results.

3. Bluefin Tuna EFH Boundary Designations

    Comment 6: NMFS received comments both supporting and not 
supporting the inclusion of the Slope Sea into the bluefin tuna EFH for 
the Spawning, Eggs, and Larval life stage. Some commenters supported 
the inclusion of Slope Sea spawning areas into EFH designations for 
this life stage because this reflects the best available scientific 
information. Other commenters voiced opposition to including EFH for 
bluefin tuna larvae areas outside the Gulf of Mexico, stating that the 
designation of EFH cannot be justified based on current scientific 
knowledge. Specifically, commenters had concerns about limited sample 
sizes in space and time across the Slope Sea. As discussed in Comment 
24 below, commenters asked that NMFS encourage additional research on 
the Slope Sea.
    Response: During preparation of Draft Amendment 10, NMFS identified 
relevant research by Richardson et al. (2016) that included 67 data 
points where larval bluefin tuna were collected in the Slope Sea. Those 
data points were used as information input for the model. Despite the 
small sample size associated with Richardson et al. 2016, the number 
and distribution of data points were sufficient to meet or exceed model 
thresholds for inclusion in the 95 percent volume contour. Since model 
results included the Slope Sea areas as part of the EFH for the bluefin 
tuna Spawning, Eggs, and Larval life stage, NMFS is retaining the Slope 
Sea area as EFH but is also encouraging additional research on these 
habitats (see Chapter 7 of the EA) and Comment 24 below.
    Comment 7: Several commenters expressed concerns about management 
implications of identifying Spawning, Eggs, and Larval EFH in areas 
outside of the Gulf of Mexico given that current ICCAT management 
recommendations

[[Page 42333]]

stipulate that the United States should not permit directed fishing on 
bluefin tuna in spawning areas.
    Response: The relative importance of the Slope Sea bluefin tuna 
spawning, eggs and larval EFH to the stock is unclear at this time, 
however the EFH model results included the Slope Sea as part of the EFH 
for the bluefin tuna Spawning, Eggs, and Larval life stage because the 
distribution of data points met the model's threshold for inclusion in 
the 95 percent volume contour. ICCAT's Standing Committee on Research 
and Statistics (SCRS) has noted that hypotheses concerning the Slope 
Sea's importance as a spawning area still need to be tested (ICCAT 
2016, http://iccat.int/Documents/Meetings/Docs/2016_BFT_DATA_PREP_ENG.pdf). Furthermore, there are a number of 
concerns about the conclusions drawn by the Richardson et al. (2016) 
paper concerning sample size, larval data corrections, variance in 
data, and conclusions about early maturation (e.g., Walter et al. 
2016). The SCRS has recommended additional research be conducted to 
address these concerns and, at this time, the Slope Sea has not been 
recognized by ICCAT as western Atlantic spawning grounds. As additional 
information on the relative importance of the Slope Sea and if 
recognition as spawning grounds becomes available, NMFS will consider 
that information in developing or advocating for appropriate domestic 
and international measures.
    Comment 8: In concert with accepting Preferred Alternative 3b 
(Expand HAPC eastward), NMFS should, at a minimum, expand adult bluefin 
EFH to include the entire HAPC boundary.
    Response: Model results did not include the entire Gulf of Mexico 
into the EFH boundaries of adult bluefin tuna. Expansion of adult 
bluefin EFH eastward in the Gulf of Mexico to encompass all areas of 
the bluefin spawning, eggs, and larval life stage HAPC, would add only 
an additional 25 locations (+ ~2 percent of data points in the Gulf of 
Mexico). PSAT tagging data suggest that adult bluefin tuna migrate 
through this area, but do not utilize it as heavily as other areas of 
the central and western Gulf of Mexico (e.g., Wilson et al. 2015; see 
Figure 6.1, Section 6.2.3 of the Amendment 10 EA, see ADDRESSES above 
for instructions on how to view/locate the Final EA). As previously 
mentioned, the intent of EFH is not to delineate all areas where the 
species is known to occur, but rather the areas that are necessary for 
spawning, breeding, feeding, or growth to maturity. Therefore, NMFS has 
not modified the EFH designation for adult bluefin EFH to include the 
entire eastern GOM.
    Comment 9: NMFS should incorporate the migratory corridor to the 
Gulf of Mexico as adult EFH, rather than stopping abruptly off the 
coast of North Carolina, most importantly including the waters around 
the Charleston Bump where tagging studies have shown adult bluefin feed 
(Wilson et al. 2015).
    Response: Examination of PSAT tagging data (see Figure 6.1, Section 
6.2.3) implies that tagged bluefin tuna may heavily use pelagic 
habitats ranging from coastal North Carolina to areas north and east of 
the Bahamas. Data available for EFH analyses also indicate that pelagic 
habitats of the Blake Plateau are necessary habitat for adult Bluefin 
tuna. Therefore, based on further review of available data, NMFS 
adjusted the boundaries of adult bluefin EFH to include some of the 
areas recommended by the commenter. However, it is important to note 
that EFH designations are designed to focus attention on those habitats 
necessary for feeding, breeding, spawning, or growth to maturity. 
Migration routes, while important in their own right, are not within 
the scope of EFH as defined under NMFS' regulations.

4. Bluefin Tuna HAPC Alternative

    Comment 10: NMFS should accept Preferred Alternative 3b to expand 
the bluefin tuna HAPC in the Gulf of Mexico, as it meets all four 
considerations for a HAPC pursuant to Sec.  600.815(a)(8).
    Response: NMFS agrees that Preferred Alternative 3b is warranted 
based on the application of the HAPC criteria to the current body of 
scientific literature. Therefore, NMFS has expanded the current HAPC 
for the bluefin tuna Spawning, Eggs, and Larval life stage as provided 
under this alternative.
    Comment 11: NMFS should designate or include the Slope Sea, newly 
discovered bluefin tuna spawning habitat, as a HAPC.
    Response: A HAPC designation for a particular habitat must be based 
on one of four criteria: The importance of the ecological function 
provided by the habitat; the extent of sensitivity to human induced 
environmental degradation; whether, and to what extent, development 
activities are or will be stressing the habitat type; and the rarity of 
the habitat type. Whether the Slope Sea satisfies these criteria for 
bluefin tuna is unknown and research to better understand the role of 
this area as a spawning ground and other habitats for the species 
continue. Given the limited sample size to date, it is difficult to 
determine the importance of the ecological function provided by the 
Slope Sea for the western Atlantic bluefin stock. Additional sampling 
and research are also needed in order to effectively evaluate all HAPC 
criteria. The number of data points are fairly small and are limited 
temporally; therefore, it is difficult to delineate boundaries for an 
effective HAPC at this time.

5. Shark EFH Boundary Designations

    Comment 12: Dusky sharks do not occur in New England waters. NMFS 
should establish a north/south demarcation line off New England where 
appropriate measures to reduce dusky shark mortality and protect dusky 
shark EFH could be implemented in areas south of the demarcation line. 
Eighteen copies of a form letter suggested that dusky shark EFH should 
be moved to waters south of New England and/or Montauk, NY. Other 
commenters supported designation south of an area known as ``The Dump'' 
(approximately 75 km east and slightly south of Montauk), or 
designation south of a line extending eastward from Shinnecock, NY 
(40[deg]50'25'' N. latitude).
    Response: Most of the data points collected for the EFH modeling 
exercise were located south of the Gulf of Maine, and therefore NMFS 
agrees it was not appropriate to include Gulf of Maine habitats in the 
proposed updates to EFH boundaries that were included in Draft 
Amendment 10. The available data and historical information from the 
scientific literature indicate that dusky sharks do occur in southern 
New England waters. The dusky shark EFH boundaries included in Draft 
Amendment 10, and the data used in the EFH models considered in Draft 
Amendment 10, reflect data points that are located offshore of southern 
New England (i.e., south of the southern coast of Long Island, 
Nantucket, and Martha's Vineyard) and along the southern edge of 
Georges Bank and the continental shelf. However, the proposed EFH 
boundaries in Draft Amendment 10 for dusky sharks also included some 
inshore areas in Narragansett Bay, near coastal Rhode Island, and areas 
adjacent to southeastern Massachusetts. In consideration of public 
comments received and review of life history information and 
distribution data on dusky sharks, NMFS determined that minor 
adjustments to EFH boundary designations to remove some nearshore 
coastal areas of southern New England were appropriate. For example, 
model output published in Draft Amendment 10 as EFH for dusky sharks 
included Narragansett Bay and parts of Buzzards Bay, however, the 
salinity of these areas

[[Page 42334]]

is generally considered to be too low for dusky sharks (C. McCandless, 
pers. comm, NOAA NEFSC). Parts of Vineyard Sound, Rhode Island Sound, 
Block Island Sound, and Nantucket Sound were also included, likely as a 
result of their proximity to a larger cluster of data points located 
further south and offshore. Generally, dusky sharks are collected in 
scientific surveys further offshore (C. McCandless, pers. comm, NOAA 
NEFSC). Therefore, in response to public comment and based on further 
review of the best available biological information, the EFH boundary 
designations for dusky shark have been revised to exclude these coastal 
areas.
    Commenters also advocated for the use of a north/south demarcation 
line to be used for management measures that would reduce dusky shark 
mortality and to implement EFH. Under the current modeling method, EFH 
boundaries are based on the distribution and availability of point 
data, which provide empirical evidence that the habitat is important 
for feeding, breeding, spawning or growth to maturity. While landmarks 
or features can be used as representations to describe the extent of 
current EFH, they must take into account the specific locations of a 
species' habitat. Available data and the models developed using the 
current EFH delineation methodology suggested that some areas north and 
east of Montauk and Shinnecock NY or ``the Dump'' should be included 
within the EFH Boundaries. NMFS has described these locations within 
the EA.
    Comment 13: NMFS should adjust its EFH boundaries to encompass 
highly suitable habitats for great hammerhead and tiger sharks as 
predicted from habitat suitability modeling. The updates to EFH 
boundaries proposed by NMFS in Draft Amendment 10 are consistent with 
habitat suitability modeling for bull sharks.
    Response: NMFS compared the areas of high habitat suitability to 
data available for EFH analyses and found that, in general, the 
adjustment of EFH based on habitat suitability models is inconsistent 
with the approach used by NMFS in Amendment 10 because certain areas 
that were deemed highly suitable by the commenter contained little to 
no empirical point data. Rather the identification of highly suitable 
habitat was based on the confluence of certain environmental 
characteristics that was predicted to create a more favorable habitat 
for that species. The intent of EFH is not to delineate all areas where 
the species is known to occur, but rather areas that are necessary to a 
species spawning, breeding, feeding, and growth to maturity. The 
current methodology assumes a relationship between the presence and 
density of points and the presence of EFH, and does not at this time 
incorporate a predictive aspect based on environmental variables. NMFS 
may explore alternative models and approaches for the next revision of 
EFH and, at that time, would evaluate the feasibility of incorporating 
habitat suitability modeling approaches (such as those put forward by 
this commenter) into the delineation of EFH, if appropriate.
    Comment 14: Maps and data pertaining to drumline surveys conducted 
between 2008-2015 by the University of Miami Shark Research and 
Conservation Lab suggest that areas with high catch rates in northern 
Biscayne Bay (between Elliot Key and Key Biscayne) should have been 
included in updates to EFH for blacktip sharks. NMFS should expand the 
EFH proposed in Draft Amendment 10 to include these areas. Areas with 
highest nurse, lemon, and sandbar shark CPUE are already contained 
within the proposed updates to EFH boundaries. NMFS should finalize the 
EFH boundary adjustments included in Draft Amendment 10 for these 
species.
    Response: NMFS agrees that areas identified for blacktip, nurse, 
lemon, and sandbar shark EFH off South Florida are necessary habitats 
for these species, and it is therefore appropriate to include these 
areas in the EFH boundaries that would be finalized under Amendment 10. 
Blacktip sharks are managed regionally, with a demarcation line 
separating the Gulf of Mexico and Atlantic shark stocks at 25[deg]20.4' 
N. latitude. In response to public comment and in consultation with the 
NEFSC and SEFSC, NMFS determined that adjustments to the EFH boundaries 
for the Atlantic stock of blacktip sharks were appropriate and, in 
Final Amendment 10, extended the southern extent of juvenile and adult 
EFH boundaries southward along the Florida east coast to 25[deg]20.4' 
N. latitude (which includes northern Biscayne Bay). Similarly, NMFS 
determined that the Gulf of Mexico stock boundary needed to be moved 
south along the Florida coast to terminate at the 25[deg]20.4' N. 
latitude stock demarcation line in order to be consistent with the 
management extent for this stock (it previously extended north of this 
line).
    Comment 15: NMFS should adjust EFH boundaries to include portions 
of Pamlico Sound, Core Sound, Back Sound, and other inshore coastal 
waters for juvenile and adult blacktip sharks, neonate/YOY and juvenile 
bull sharks, neonate/YOY and juvenile sandbar sharks, juvenile and 
adult blacknose sharks, neonate/YOY and adult Atlantic sharpnose 
sharks, and all life stages of smooth dogfish based on data from the 
annual North Carolina Division of Marine Fisheries (NC DMF) gillnet and 
longline survey and from research on delineation of coastal shark 
habitat within coastal North Carolina waters using acoustic telemetry, 
fishery-independent surveys, and local ecological knowledge (Bangley 
2016).
    Response: The information and data referenced in this comment, NC 
DMF gillnet and longline survey data and data from Bangley 2016, 
provided NMFS an opportunity to evaluate Atlantic HMS nursery habitat 
utilization in inshore and coastal North Carolina waters. As noted in 
Heupel et al. (2007), ``the use of the term `shark nursery area' by a 
wide array of scientists, resource managers and conservationists 
appears to be inconsistent and lacks proper scientific analysis and 
justification. In some cases regions are labeled shark nursery areas 
simply because of the presence of a few juvenile sharks . . . [which] 
threatens to undermine the importance of protecting EFH by potentially 
identifying all coastal waters as shark nursery areas.'' Due to 
inconsistent use of the term ``nursery area'' across the scientific 
community and concerns identified in Heupel et al. 2007), NMFS now 
prefers to apply the definitions laid out in Heupel et al. 2007 to 
identify habitats in which: (1) Sharks are more commonly encountered in 
these areas versus other areas; (2) sharks remain or return to these 
areas for extended periods of time (i.e., site fidelity that is greater 
than mean fidelity to all sites across years); and (3) the habitat is 
repeatedly used across all years, whereas others are not. The annual 
mean number of neonate/YOY bull, sandbar, and blacktip sharks was small 
(e.g., approximately 5 bull and sandbar sharks per year, 9 blacktip 
sharks per year) and not consistent from year to year. Additionally, 
the survey with the longest timespan, NC DMF, had no supporting data 
for these species in Back and Core Sounds.
    Although some acoustic data are available (n = 1 blacktip and 3 
blacknose sharks), a bigger sample size would be needed to establish 
residency patterns of individuals and demonstrate site fidelity through 
time for these species in inshore North Carolina waters. The NC DMF 
dataset also contained only one blacknose shark, and therefore does not 
provide a scientifically sufficient means to analyze habitat 
utilization and potential EFH. NMFS had very few data points for

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juvenile and adult blacktip sharks (n = 23 out of 6,383) and adult 
blacknose sharks (n = 2) in Pamlico, Core, and Back Sound.
    A larger number of smoothhound and Atlantic sharpnose shark records 
were noted in areas of Pamlico Sound closer to the inlets of the Outer 
Banks, and the model results supported keeping EFH in these areas as 
proposed. However, the NC DMF dataset did not include any Atlantic 
sharpnose or smoothhound shark data points for Core Sound or Back 
Sound, and the number of data points from the Bangley (2016) dataset in 
these locations were also small (n = 33 Atlantic sharpnose sharks and 
10 smooth dogfish) so these are excluded for these species and life 
stages. Many of the habitats identified near inlets as potentially 
important may reflect a temporary condition that is tolerable to these 
animals as they follow schools of baitfish to feed; however, these 
conditions are temporary as the tides change. Bangley (2016) analyzes 
data with respect to distance to inlets and salinity, however, it does 
not consider tidal influence on the creation of temporary habitat 
through the presence of prey schools responding to tidal fluctuations. 
Therefore, NMFS encourages additional research to further evaluate 
these areas as nursery habitat per the definitions outlined in Heupel 
et al. 2007 (see Section 7.1.6 of the Final Environmental Asessement, 
which discusses HMS Research Needs), but has not designated Pamlico, 
Core, and Back Sounds as EFH for blacktip, sandbar, and bull sharks; or 
Core and Back Sounds as EFH for Atlantic sharpnose sharks and smooth 
dogfish. NMFS may evaluate inshore areas of coastal North Carolina for 
inclusion in these species' EFH boundaries in the future if more data 
become available.
    Comment 16: Neonate/YOY and juvenile sandbar sharks are among the 
most common coastal sharks captured in NC DMF gillnet and longline 
surveys conducted in the spring and fall. NMFS should adjust EFH 
boundaries for sandbar shark to include portions of Pamlico Sound based 
on a dissertation (Bangley 2016) that suggested coastal North Carolina 
habitats, including Pamlico Sound, may be primary and secondary nursery 
habitats for multiple shark species, including sandbar shark.
    Response: Using NC DMF gillnet and longline survey data,and the 
data presented in Bangley (2016), NMFS assessed whether the information 
provided by the commenter supported inclusion of these habitats into 
neonate/YOY EFH boundaries as nursery areas which are necessary for 
feeding and growth to maturity. Due to inconsistent use of the term 
``nursery area'' across the scientific community and the contention of 
Heupel et al. (2007) that ``the occurrence of juvenile sharks in an 
area is insufficient evidence to proclaim it a nursery'', NMFS now 
prefers to apply the definitions laid out in Heupel et al 2007 to 
identify habitats in which (1) sharks are more commonly encountered in 
these areas versus other areas; (2) sharks remain or return to these 
areas for extended periods of time (i.e., site fidelity that is greater 
than mean fidelity to all sites across years); and (3) the habitat is 
repeatedly used across all years, whereas others are not. NC DMF data 
indicate that, while these species are caught consistently between 
years in Pamlico Sound, the numbers of data points tend to be low 
compared to areas seaward of the Outer Banks. Additional research is 
needed to indicate an elevated degree of dependency, site fidelity, and 
utilization of these habitats compared to nearshore habitats that are 
seaward of the Outer Banks before they should be included within EFH 
boundaries per the rationale that they are ``nursery areas''.

6. Sandbar HAPC Alternative

    Comment 17: NMFS should implement Alternative 4a (No Action 
Alternative) in concert with recommendations for Alternative 2 (see 
comments 15 and 16 above), which would update existing EFH designations 
and include an expansion of sandbar neonate/YOY and juvenile EFH into 
estuarine waters of North Carolina to protect nursery habitats.
    Response: As discussed in Comments 15 and 16, there was a small 
number of data points available on neonate/YOY and juvenile sandbar 
sharks from the datasets and information referenced in this public 
comment (NC DMF inshore gillnet and trawl data, and Bangley 2016). NOAA 
scientists from the SEFSC and NEFSC recommended that Pamlico Sound not 
be included in neonate/YOY EFH or that a HAPC for this life stage be 
retained in inshore North Carolina waters because insufficient data was 
available to compare the spatial and temporal utilization of these 
habitats with adjacent habitats, which are critical aspects of athe the 
nursery area definition outlined in Heupel et al. 2007. Therefore, 
updates to EFH finalized in this Amendment do not include inshore 
coastal waters of North Carolina (i.e., Pamlico Sound). The commenter 
recommends accepting the No Action Alternative, which would retain HAPC 
boundaries in Pamlico Sound. Since a HAPC must be nested within updated 
EFH, and the updated EFH for sandbar shark does not include Pamlico 
Sound, it would be inconsistent with NMFS' regulations that implement 
the EFH provisions of the Magnuson-Stevens Act to retain the current 
boundaries of the Sandbar HAPC. NMFS will continue to evaluate inshore 
areas of Pamlico Sound for EFH or HAPC inclusion as more data becomes 
available.

7. Lemon Shark HAPC Alternative

    Comment 18: NMFS received three comments (including one from the 
Florida Fish and Wildlife Conservation Commission) in support of 
Preferred Alternative 5b, the proposed lemon shark HAPC that spans from 
Cape Canaveral to Jupiter Inlet. Commenters indicated that the HAPC is 
needed and well placed, and could provide additional protection for 
Southeastern Florida lemon shark aggregations. Other commenters 
indicate that this alternative is most appropriate based on available 
tagging and genetic research that identifies the importance of 
aggregation sites and migration pathways contained within the proposed 
HAPC.
    Response: NMFS agrees that the proposed HAPC is the most 
appropriate alternative given independent research conducted by 
multiple institutions that confirm the areas are rare aggregation sites 
of unique importance (i.e., thermal refugia, nursery grounds for 
juveniles, resting/feeding grounds for adults) for lemon shark 
populations off the southeastern United States. Tagging and genetic 
studies also support the inclusion of habitats in between the two 
aggregation sites into the HAPC. These areas are adjacent to a region 
with extremely high population density, and are thus subject to 
potential environmental degradation and development activities.
    Comment 19: NMFS should not create a HAPC for lemon sharks. NMFS 
should apply the HAPC criteria strictly for this area, and not 
designate a HAPC as a response to pressure the agency has received to 
curtail fishing activity in the area.
    Response: As part of EFH designations for lemon sharks, NMFS 
considered whether those areas should include HAPCs based on the 
criteria for HAPC specification under 600.815(a): The importance of the 
ecological function provided by the habitat, the extent that the 
habitat is sensitive to human induced environmental degradation, the 
extent that development activities are or could be stressing the 
habitat type, and the rarity of the habitat type. A HAPC was included 
in the Final Amendment based on these analyses, as triggered by the

[[Page 42336]]

identification of scientific papers (e.g., Reyier et al. 2012; Kessel 
et al. 2014, Reyier et al. 2014) that indicated there was scientific 
evidence that habitats and areas had an important ecological function, 
were adjacent to highly populated areas and therefore susceptible to 
human use or degradation, and were rare aggregation sites for this 
population of lemon sharks.
    Comment 20: One commenter expressed concern that a HAPC designation 
for lemon sharks would open the door for new regulations to be 
implemented in the area.
    Response: The purpose of identifying HAPCs is to focus conservation 
efforts on localized areas within EFH that are vulnerable to 
degradation or are especially important ecologically for managed fish. 
HAPCs can also be used to target areas for area-based research. HAPCs 
are not required to have any specific management measures. However, 
such measures may need to be considered to achieve the stated goals and 
objectives of the HAPC. Public comment reflected concern for the status 
of populations of lemon sharks off Southwest Florida. Identification of 
a HAPC, or variations in abundance or even a change in stock status of 
a species for which a HAPC is identified does not, by itself, trigger 
an EFH rulemaking. Rather, an EFH rulemaking is triggered by a 
verifiable adverse effect on habitat from a fishing or non-fishing 
activity. The EFH provisions of the Magnuson-Stevens Act specify that 
FMPs must minimize to the extent practicable adverse effects of fishing 
on EFH, and that Councils (and NMFS) 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 
(600.815(a)(2)(ii). If sufficient evidence became available to suggest 
that fishing activity adversely affects EFH in a manner that is more 
than minimal and not temporary in nature, NMFS would provide 
notification to the public of any regulations associated with EFH or 
the HAPCs in a future rulemaking.

8. Sand Tiger HAPC Alternative

    Comment 21: NMFS should implement Preferred Alternative 6b to 
update EFH, as Delaware Bay and the PKD bay system have been found to 
be important habitats for sand tiger sharks.
    Response: Data collected by the NEFSC via the Cooperative Atlantic 
States Shark Pupping and Nursery (COASTSPAN) survey and scientific 
research published by Haulsee et al. (2014 and 2016), Kilfoil et al. 
(2014), Kneebone et al. (2012 and 2014) suggest that the habitats meet 
several HAPC criteria (e.g., ecological function provided by the 
habitat--discrete and relatively rare nursery areas and adult 
aggregation sites, published concerns about development and 
environmental degradation). NMFS therefore agrees that it is 
appropriate to establish HAPCs in Delaware Bay and the PKD bay system.
    Comment 22: NMFS should consider a HAPC designation in the western 
end of New York's Great South Bay since it has been discovered to be an 
important nursery ground for sand tiger sharks. Tagging studies show 
strong juvenile interannual site fidelity, that the area is only used 
by juveniles, and the area is located in a heavily populated area of 
New York that is susceptible to human induced habitat degradation.
    Response: NMFS was unable to obtain data associated with a 
potential nursery in Great South Bay, NY. One commenter, who was not a 
data author, provided a point of contact associated with the New York 
Aquarium that have initiated research on sand tiger sharks in Great 
South Bay and several newspaper and gray literature articles. The data 
author submitted a comment with recommendations, but did not provide 
data associated with the comment. NMFS staff attempted to communicate 
with the data author multiple times by phone and email between October 
2016 and January 2017, however the data author/commenter ultimately did 
not provide information or data to NMFS that would allow NMFS to 
further evaluate the assertion that Great South Bay habitat met the 
HAPC criteria. Therefore, NMFS has not delineated a HAPC for sand tiger 
sharks in this area at this time.

9. Other Comments

    Comment 23: There is a white shark nursery off Long Island. NMFS 
should protect young white sharks in this area.
    Response: In Draft Amendment 10, NMFS considered a potential HAPC 
in the northern Mid-Atlantic and off southern New England for neonate/
YOY and juvenile white sharks. In particular, Curtis et al. (2014) 
noted that a large number of YOY shark observations occurred between 
Great Bay, NJ and Shinnecock Inlet, NY. Depth and temperature 
associations were provided in this paper for YOY and juveniles; 
however, this report alone was not enough to support any one HAPC 
criterion. For this final amendment, NMFS examined additional data and 
literature that might support HAPC designation; however, the findings 
were insufficient to identify a discrete area that meets the criteria 
for a HAPC. The area identified by the commenter is already included as 
part of the EFH for neonate/YOY white sharks; therefore, impacts on EFH 
would be considered as part of Habitat Consultations in the future.

10. Research and Restoration

    Comment 24: Additional research is needed to evaluate the Slope Sea 
as a potential bluefin tuna spawning site, the parentage of bluefin 
tuna larvae on the Slope Sea, and the relative magnitude of spawning in 
this area compared to other known spawning grounds.
    Response: NMFS has included these as high priority items in the 
Research Needs chapter of Final Amendment 10. Additionally, in June of 
2017, the Northeast Fisheries Science Center sponsored a cruise on NOAA 
vessel Gordon Gunter to conduct research on Slope Sea larval fish 
populations (specifically, bluefin tuna).
    Comment 25: Ongoing monitoring is prudent to ensure that there is 
no change in the distribution of dusky sharks or other species due to 
climatic shift.
    Response: In 2014, NMFS published the Atlantic HMS Management-Based 
Research Needs and Priorities document. The document contains a list of 
near- and long-term research needs and priorities that can be used by 
individuals and groups interested in Atlantic HMS to identify key 
research needs, improve management, reduce duplication, prioritize 
limited funding, and form a potential basis for future funding.
    The priorities range from biological/ecological needs to 
socioeconomic needs and the document can be found at: http://www.nmfs.noaa.gov/sfa/hms/documents/hms_research_priorities_2014.pdf. 
The Research Needs and Priorities document, along with feedback 
gathered on the Final Atlantic HMS EFH 5-Year Review and Draft 
Amendment 10 from the public and the scientific research community was 
used to develop a list of research priorities that would support future 
HMS EFH designation and protection in Chapter 7 of the Amendment 10 
Final EA. These research priorities are further characterized as high, 
medium, or low priority depending upon the needs identified by the 
managers. High priority items are generally those that are needed to 
address near-term stock assessment or management needs. Medium priority 
items are generally those that address longer-term needs, while low 
priority needs would provide

[[Page 42337]]

for more effective HMS management, despite lacking an immediate need. 
NMFS has listed as a medium priority for all Atlantic HMS species 
``[examination of] the influence of climate change on range, migration, 
nursery/pupping grounds, and prey species for Atlantic HMS in general'' 
in Chapter 7 (which itemizes Research Needs) because EFH as a 
management tool is not useful if the EFH boundaries do not account for 
shifts in the distribution of managed species.
    Comment 26: NMFS should conduct focused research or provide funding 
to evaluate impacts to Atlantic HMS EFH in the western Gulf of Mexico 
(specifically, Flower Garden Banks National Marine Sanctuary) and for 
restoration.
    Response: Funding to evaluate EFH impacts to degraded habitats and 
for habitat restoration is beyond the scope of this Amendment. NOAA 
staff from the Flower Garden Banks National Marine Sanctuary conduct 
sanctuary implemented and sanctuary facilitated ecological and 
biological research, including research focused on habitat. It is 
beyond the scope of this amendment for the Atlantic HMS Management 
Division to directly conduct focused research, or for the Atlantic HMS 
Management Division to direct the Sanctuary to conduct focused 
research, on Atlantic HMS EFH within Flower Garden Banks National 
Marine Sanctuary. Interested persons should visit the Flower Garden 
Banks National Marine Sanctuary Web page for more information on 
current research programs: https://flowergarden.noaa.gov/science/research.html

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

    Dated: September 1, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2017-18961 Filed 9-6-17; 8:45 am]
 BILLING CODE 3510-22-P