[Federal Register Volume 89, Number 24 (Monday, February 5, 2024)]
[Rules and Regulations]
[Pages 7633-7635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02239]



[[Page 7633]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 240130-0029]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action implements the New England Fishery Management 
Council's Framework Adjustment that identifies a Habitat Area of 
Particular Concern offshore of Southern New England. This rule adjusts 
the following fishery management plans: Northeast Multispecies; 
Atlantic Sea Scallop; Monkfish; Northeast Skate Complex; and Atlantic 
Herring. The Habitat Area of Particular Concern is 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: Effective March 6, 2024.

ADDRESSES: 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. Cate 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/230926-SNE-HAPC-Framework-FINAL.pdf.

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

SUPPLEMENTARY INFORMATION:

Background

    This action identifies a Habitat Area of Particular Concern (HAPC) 
in and around offshore wind lease areas in Southern New England, 
including Cox Ledge. The New England Fishery Management 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 designation focuses 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. The HAPC designation 
will be applied during EFH consultation when data indicate that cod 
spawning and/or complex habitats occur within or near the footprint of 
a project located within the border of the HAPC area identified in 
Figure 6 of the Framework document.
    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, the HAPC 
designated by this action has all four of these attributes.
    An area's status as an HAPC is intended to 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.
    The proposed rule for this action was published in the Federal 
Register on September 26, 2023 (88 FR 65944), and comments were 
accepted through October 26, 2023. NMFS received 14 comments from the 
public, and no changes were made to the final rule because of those 
comments (see Comments and Responses for additional detail).

Habitat Area of Particular Concern Designation

    This action implements Alternative 5, the Council's preferred 
alternative for the Southern New England HAPC designation, which 
identifies 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. Figure 6 on page 29 of the Framework document 
(online at https://d23h0vhsm26o6d.cloudfront.net/230926-SNE-HAPC-Framework-FINAL.pdf) contains a map of the HAPC designation area. As 
noted in the Framework document (at 27), when projects are proposed 
within this area, ``The HAPC designation will be applied during EFH 
consultation when data indicate that cod spawning and/or complex 
habitats occur within or near the project footprint.''
    The HAPC area is located within 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 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 places 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

[[Page 7634]]

are currently undergoing environmental review, and others are still 
within the site assessment phase. The 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 HAPC meet all four of the HAPC 
criteria identified above, and the complex bottom habitats meet all 
criteria except for ``rarity.'' The 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 stocks. Georges Bank Atlantic cod, which is in 
poor stock condition (i.e., overfished and experiencing overfishing), 
spawns in the area, and Southern New England cod represents a 
genetically distinct subpopulation. The subpopulation also contributes 
to the Georges Bank cod stock; thus, any impacts to Southern New 
England cod could also detrimentally impact the Georges Bank 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 HAPC meets 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. On the other hand, complex habitat features alone 
are not considered rare (i.e., spatially or temporally very limited).
    The HAPC identified herein is a non-regulatory designation. 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.

Comments and Responses

    The public comment period for the proposed rule ended on October 
26, 2023, and NMFS received 14 comments from the public. No changes 
were made to the final rule as a result of these comments. Eight 
comments expressed concern over offshore wind development and its 
impacts on marine life, but they did not address this specific action; 
therefore, no response is warranted at this time.
    Comment 1: Two comments expressed general support for the HAPC 
designation.
    Response: NMFS agrees and is implementing this rule in a timely 
manner.
    Comment 2: Three comments were in support of the HAPC designation 
and also urged additional habitat protections and considerations for 
Cox Ledge, sensitive habitats, and protected species.
    Response: This action does not add any restrictions on offshore 
development or fisheries management restrictions related to the HAPC. 
The Council's problem statement and objectives described in section 3.3 
of the framework document (see ADDRESSES) focused on the potential for 
enhancing the EFH consultation process and conservation 
recommendations; developing new restrictions on fishing were outside 
the scope for the framework. Neither NMFS nor the Council has the 
ability to directly restrict offshore development, including offshore 
wind.
    Comment 3: A comment from the American Clean Power Association 
expressed opposition to the HAPC and support for Alternative 2 
identified in the Council's framework document because it includes only 
those areas for which scientific research has demonstrated the presence 
of cod spawning. The comment also urged the Council to rely on ``the 
best available sources'' when identifying EFH ``. . . and not the 
presence of an offshore wind lease,'' noted that the ``lack of data on 
cod spawning in southern New England waters does not equate to actual 
scientific evidence of rarity,'' and contended that ``wind development 
has not been directly linked to impacts on cod spawning habitat.''
    Response: The Council's preferred alternative, Alternative 5, was 
chosen in part because it identifies a broader area of Southern New 
England within which the HAPC designation would be applied if 
additional cod spawning activity is documented by future data/studies 
and/or complex habitat is identified. Alternative 5 provides NMFS with 
the opportunity at the time of a project review to use available data 
that are related to the suitability for cod spawning, or the presence 
or absence of cod spawning activity, and/or complex habitat in order to 
determine whether to consult on a project area as an HAPC, without the 
need for a new designation from the Council. Alternative 2, supported 
by the commenter, focuses on Atlantic cod habitat, but this designation 
addresses multiple species and threats to those species. In addition, 
the preferred alternative designates areas of complex habitat within a 
broad Southern New England footprint as HAPC for certain life stages of 
Atlantic cod, Atlantic herring, Atlantic sea scallop, little skate, 
monkfish, ocean pout, red hake, winter flounder, and winter skate that 
use these habitats. Habitat for these additional species should also 
benefit from conservation recommendations based on this HAPC.
    The Council and NMFS have utilized the best available data sources 
to map EFH for multiple federally managed fish species. The presence of 
offshore wind lease areas is not determinative of what areas are mapped 
EFH. Federal agencies are required to consult with the Secretary with 
respect to any action or proposed action authorized, funded, or 
undertaken that may adversely affect any identified EFH. In 
establishing HAPC designations, which are a subset of EFH, the Council 
and NMFS can consider whether, and to what extent, development 
activities are, or will be, stressing the habitat type. Offshore wind 
development is a specific stressor within the Southern New England 
lease areas, and therefore the spatial extent of the HAPC is based on 
the combined footprint of spawning grounds, complex habitats, and lease 
areas.
    With respect to rarity, as noted above, NMFS concluded that active 
cod spawning habitats are rare based on information regarding critical 
ecosystem features such as the acoustic environment, seafloor and water 
column setting, which is the best scientific information available. 
Only one known group of active spawning sites exists in Southern New 
England. They are not

[[Page 7635]]

considered rare due to lack of data. EFH for cod spawning that may lead 
to an active cod spawning habitat is identified in the HAPC, and any 
updated data may be considered at the time of any action or proposed 
action to determine whether consultation is necessary. This is 
consistent with National Standard 2, one of the statutory principles 
that must be followed in any FMP as per the Magnuson-Stevens Fishery 
Conservation and Management Act, which recognizes the dynamic nature of 
the scientific process, the need to evaluate new data and uncertainties 
in available information, and to identify gaps in available 
information. Overall, cod is a very well-studied species with a long 
fishing history, decades of fishery independent surveys, extensive 
tagging work, and, most recently, acoustic surveys that have been used 
to document spawning grounds in space and time.
    Finally, broad categories of activities that may adversely affect 
EFH 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.

Changes From the Proposed Rule

    There are no substantive changes from the proposed rule.

Classification

    Pursuant to section 305(d) of the Magnuson-Stevens Fishery 
Conservation and Management Act, this action is necessary to implement 
adjustments to fishery management plans as identified below. In a 
previous action taken pursuant to section 304(b), the Council designed 
the fishery management plans (FMP) to specify the process for NMFS to 
take this action pursuant to Magnuson-Stevens Act section 305(d), and 
this action puts in place administrative designations that are not 
implementing any associated management measures. The NMFS Assistant 
Administrator has determined that this rule is consistent with the 
Northeast Multispecies 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.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866, as amended by Executive Order 14094.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The basis for the certification was published in the proposed 
rule and is not repeated here. No comments were received regarding this 
certification, and the initial certification remains unchanged.
    This final rule does not duplicate, conflict, or overlap with any 
existing Federal rules.
    This final rule contains no new information collection requirements 
under the Paperwork Reduction Act of 1995.

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

    Dated: January 30, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2024-02239 Filed 2-2-24; 8:45 am]
BILLING CODE 3510-22-P