[Federal Register Volume 88, Number 185 (Tuesday, September 26, 2023)]
[Proposed Rules]
[Pages 65944-65945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20938]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 230921-0230]
RIN 0648-BM51


Fisheries of the Northeastern United States; Framework 
Adjustments to Northeast Multispecies, Atlantic Sea Scallop, Monkfish, 
Northeast Skate Complex, and Atlantic Herring Fisheries; Southern New 
England Habitat Area of Particular Concern Designation

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This action proposes to implement the New England Fishery 
Management Council's Framework Adjustment that would identify a Habitat 
Area of Particular Concern offshore of Southern New England. This rule 
would adjust the following fishery management plans: Northeast 
Multispecies; Atlantic Sea Scallop; Monkfish; Northeast Skate Complex; 
and Atlantic Herring. The proposed Habitat Area of Particular Concern 
would be within and around wind lease areas in Southern New England, 
including Cox Ledge, to focus conservation recommendations on cod 
spawning habitats and complex benthic habitats that are known to serve 
important habitat functions to Council-managed fishery species.

DATES: Comments must be received by October 26, 2023.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2023-0101, by the following method:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov, and 
enter ``NOAA-NMFS-2023-0101'' in the Search box. Click the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    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 part of the 
public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
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). If you are unable to submit your comment through https://www.regulations.gov, contact Sabrina Pereira (see FOR FURTHER 
INFORMATION CONTACT).
    Copies of the Southern New England Habitat Area of Particular 
Concern Framework and other supporting documents for this action are 
available upon request from Dr. Catherine O'Keefe, Executive Director, 
New England Fishery Management Council, 50 Water Street, Mill 2, 
Newburyport, MA 01950. The supporting documents are also accessible via 
the internet at: https://d23h0vhsm26o6d.cloudfront.net/220822-SNE-HAPC-Framework.pdf.

FOR FURTHER INFORMATION CONTACT: Sabrina Pereira, Marine Habitat 
Resource Specialist, email: [email protected]; phone: (978) 675-
2178.

SUPPLEMENTARY INFORMATION: 

Background

    This action proposes the identification of a Habitat Area of 
Particular Concern (HAPC) in and around offshore wind lease areas in 
Southern New England (SNE), including Cox Ledge. The New England 
Fishery Management Council (Council) recommended the HAPC designation 
due to concerns about the potential adverse impact on essential fish 
habitat (EFH) from the development of offshore wind energy projects. 
The proposed designation would focus on important cod spawning grounds 
and areas of complex habitat that are known to serve important habitat 
functions to federally managed species within and adjacent to offshore 
wind development areas. Complex benthic habitat provides shelter for 
certain species during their early life history, refuge from predators, 
and feeding opportunities.
    HAPCs highlight specific types or areas of habitat within EFH that 
may be particularly vulnerable to human impacts. HAPC designations 
should be based on one or more of the following criteria: (1) The 
importance of the ecological function provided by the habitat, 
including both the historical and current ecological function; (2) the 
extent to which the habitat is sensitive to human-induced environmental 
degradation; (3) whether, and to what extent, development activities 
are, or will be, stressing the habitat type; and (4) the rarity of the 
habitat type (50 CFR 600.815(a)(8)). As detailed below, if adopted, the 
HAPC designated by this action is based on all four of these 
attributes.
    An area's status as an HAPC should lead to special attention 
regarding potential adverse effects on habitats within areas of 
particular concern from various activities (e.g., fishing, offshore 
wind energy). An HAPC designation does not provide any specific habitat 
management measures, such as restrictions on gear types, harvest 
levels, fishing locations, offshore wind survey and construction 
activities, or other activities with adverse effects on habitat in the 
area.

Proposed Habitat Area of Concern Designation

    This action proposes the Council's preferred alternative for the 
Southern New England HAPC designation, which would identify as an HAPC 
certain habitats in the area overlapping offshore wind lease sites in 
southern New England. The spatial extent of the HAPC is based on the 
footprint of the lease areas, buffered by approximately 10 km on all 
sides, combined with the footprint of the Cox Ledge spawning ground, 
which is based on recent evidence of cod spawning activity. Maps for 
the proposed HAPC designation are provided in the Council's document 
(see ADDRESSES).
    The HAPC area would be designated EFH for the following species 
that occupy complex habitats within the footprint: Atlantic cod egg, 
larvae, juveniles, and adults; Atlantic herring eggs; Atlantic sea 
scallop eggs, juveniles, and adults; little skate juveniles and adults; 
monkfish juveniles and adults; ocean pout eggs, juveniles, and adults; 
red hake juveniles and

[[Page 65945]]

adults; winter flounder eggs, juveniles, and adults; and winter skate 
juveniles and adults.
    Complex habitats are defined as hard bottom substrates, defined by 
the Coastal and Marine Ecological Classification Standard (CMECS) as 
Substrate Class Rock Substrate, and by the four Substrate Groups: 
Gravels; gravel mixes; gravelly; and shell. This CMECS modifier was 
developed by NMFS for habitat mapping recommendations, including both 
large-grained and small-grained hard habitats. Hard bottom substrates 
with epifauna or macroalgae cover are also defined as complex habitat.
    Evidence of cod spawning activity at a site could be based on: 
Capture of ripe, running, or spent cod during fishery independent 
surveys; detections of acoustically tagged fish between November and 
April; detections of cod grunts in acoustic surveys; capture of cod 
larvae in ichthyoplankton surveys; and/or evidence of eggs in 
ichthyoplankton surveys (not species specific but indicative of 
spawning success).
    Designation of this HAPC would place a focus on areas that are 
experiencing current development stresses. The designated area overlaps 
areas leased for renewable energy development. Some projects are 
already permitted, others are currently undergoing environmental 
review, and others are still within the site assessment phase. The 
proposed HAPC's spatial footprint closely aligns with the wind lease 
areas because these areas face differential levels of foreseeable on-
going development-related threats compared to surrounding areas. The 
HAPC boundary includes a buffer of approximately 10 km beyond the 
leased areas, recognizing that some types of development activities can 
generate impacts at scales of tens of kilometers beyond the site of 
construction and operations. For example, acoustic impacts may extend 
kilometers from a pile driving site. Greater scrutiny would be given to 
activities within the HAPC designated area when data indicate that cod 
spawning and/or complex habitats occur within or near a project or 
activity footprint. An HAPC focused on these conservation objectives is 
consistent with the Council's Offshore Wind Energy Policy as well as 
prior offshore wind project specific comments provided by the Council 
in recent years.
    The cod spawning habitats within the proposed HAPC meet all four of 
the HAPC criteria identified above, and the complex bottom habitats 
meet all criteria except for ``rarity.'' The proposed HAPC area is 
important for current ecological function because it includes spawning 
sites, juvenile settlement areas, and feeding areas for species with 
EFH in the area, including various cod species. Georges Bank Atlantic 
cod, which is in poor stock condition (i.e., overfished and 
experiencing overfishing), spawns in the area, and SNE cod represent a 
genetically distinct sub-population. The subpopulation also contributes 
to the Georges Bank (GB) cod stock, thus, any impacts to SNE cod could 
also detrimentally impact the GB stock. With regard to sensitivity to 
anthropogenic stresses, cod spawning activities are particularly 
sensitive to adverse impacts from fishing and non-fishing activities, 
namely from offshore wind development (construction, operations, and 
maintenance), and complex habitats are susceptible to conversion and 
sedimentation. The proposed HAPC appears to meet the ``extent of 
current or future development stresses'' criterion because this area is 
facing an existing on-going development-related threat from offshore 
wind. Finally, regarding ``rarity,'' cod spawning habitats (based on 
acoustic environment, seafloor and water column setting) are rare with 
only one known grouping of active sites in Southern New England. 
Relative to complex habitat, these features are not considered rare 
(i.e., spatially or temporally very limited).
    The proposed HAPC is a non-regulatory designation. It is important 
to note that HAPC designations are intended to provide for increased 
attention when habitat protection measures are considered. HAPCs that 
are vulnerable to the potential impacts from anthropogenic activities 
warrant special attention when determining appropriate management 
measures to minimize, compensate, or mitigate those impacts.

Classification

    Pursuant to section 305(d) of the Magnuson Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), this action is 
necessary to implement adjustments to fishery management plans as 
identified below and as adopted and proposed by the New England Fishery 
Management Council. The NMFS Assistant Administrator has determined 
that this proposed rule is consistent with the Northeast Multispecies 
Fishery Management Plan (FMP); Atlantic Sea Scallop FMP; Monkfish FMP; 
Northeast Skate Complex FMP; and Atlantic Herring FMP, other provisions 
of the Magnuson-Stevens Act, and other applicable laws, subject to 
further consideration after public comment. In a previous action taken 
pursuant to section 304(b), the Council designed the FMP to specify the 
process for NMFS to take this action pursuant to MSA section 305(d), 
and this action puts in place administrative designations that are not 
implementing any associated management measures.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866, as amended by Executive Order 14094.
    This proposed rule would not have a significant economic impact on 
a substantial number of small businesses pursuant to the Regulatory 
Flexibility Act (RFA). The HAPC designation does not impose any burdens 
on small businesses as there are no reporting requirements resulting 
from this action, and there are no operational requirements or 
regulations (i.e., fishing operations or effort, prices/revenues, or 
fishery behavior) resulting from this action.
    This action, if adopted, would not establish any new reporting or 
record-keeping requirements.
    This proposed rule contains no new information collection 
requirements under the Paperwork Reduction Act of 1995.

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

    Dated: September 21, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-20938 Filed 9-25-23; 8:45 am]
BILLING CODE 3510-22-P