[Federal Register Volume 89, Number 139 (Friday, July 19, 2024)]
[Rules and Regulations]
[Pages 58632-58635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15930]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[RTID 0648-XD632]


Fisheries of the Exclusive Economic Zone off Alaska; Essential 
Fish Habitat Amendments

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

ACTION: Notice of agency decision.

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SUMMARY: NMFS announces the approval of amendment 127 to the Fishery 
Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (BSAI), amendment 115 to the FMP for Groundfish 
of the Gulf of Alaska (GOA), amendment 56 to the FMP for BSAI King and 
Tanner Crabs, amendment 17 to the FMP for the Salmon Fisheries in the 
exclusive economic zone (EEZ) off Alaska, and amendment 3 to the FMP 
for Fish Resources of the Arctic Management Area (amendments). These 
amendments revise the FMPs by updating the description and 
identification of essential fish habitat (EFH) and updating information 
on adverse effects on EFH from fishing and non-fishing activities based 
on the best scientific information available. These amendments are 
intended to promote the goals and objectives of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), the 
FMPs, and other applicable laws.

DATES: The amendments were approved on July 15, 2024.

ADDRESSES: Electronic copies of the amendments, maps of the EFH areas, 
and the Environmental Assessment (the analysis) prepared for this 
action may be obtained from https://www.regulations.gov under the 
docket number NOAA-NMFS-2023-0160.

FOR FURTHER INFORMATION CONTACT: Molly Zaleski, 907-586-7228.

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Act requires that each 
regional fishery management council submit any FMP amendment it 
prepares to NMFS for review and approval, disapproval, or partial 
approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens 
Act also requires that NMFS, upon receiving an FMP amendment, 
immediately publish a notice in the Federal Register announcing that 
the amendment is available for public review and comment. The North 
Pacific Fishery Management Council (NPFMC or Council) submitted these 
amendments to the Secretary for review. The notice of availability 
(NOA) for the amendments was published in the Federal Register on April 
23, 2024 (89 FR 30318) with a 60-day comment period that ended on June 
24, 2024. NMFS received five comment letters during the public comment 
period on the NOA. NMFS summarized and responded to these comments 
under Comments and Responses, below.
    This notice of decision announces NMFS's approval of amendment 127 
to the FMP for Groundfish of the BSAI (BSAI Groundfish FMP); amendment 
115 to the FMP for Groundfish of the GOA (GOA Groundfish FMP); 
amendment 56 to the FMP for BSAI King and Tanner Crabs (Crab FMP); 
amendment 17 to the FMP for the Salmon Fisheries in the EEZ Off Alaska 
(Salmon FMP); and amendment 3 to the FMP for Fish Resources of the 
Arctic Management Area (Arctic FMP).
    The Council prepared the FMPs under the authority of the Magnuson-
Stevens

[[Page 58633]]

Act. Regulations governing U.S. fisheries and implementing the FMPs 
appear at 50 CFR parts 600, 679, and 680. Section 303(a)(7) of the 
Magnuson-Stevens Act requires that each FMP describe and identify EFH, 
minimize to the extent practicable the adverse effects of fishing on 
EFH, and identify other measures to encourage the conservation and 
enhancement of EFH. Section 3(10) of the Magnuson-Stevens Act defines 
EFH as ``those waters and substrate necessary to fish for spawning, 
breeding, feeding, or growth to maturity.'' Implementing regulations at 
50 CFR 600.815 list the EFH contents required in each FMP and direct 
councils to conduct a complete review of all EFH information at least 
once every 5 years (referred to here as ``the 5-year Review'').
    The Council developed the amendments as a result of new scientific 
information made available through the 5-year Review that began in 2019 
(2023 5-year Review) and adopted the amendments in December 2023. The 
2023 5-year Review is the Council's fourth review of EFH in the FMPs. 
Prior 5-year Reviews were completed in 2005, 2012, and 2018. The 
Council recommended amendments to the description of, information 
about, and identification of EFH in the FMPs based on the new 
information and improved mapping as described in the draft EFH 5-year 
Summary Report for the 2023 5-year Review. The Council recommended 
updates to EFH for all FMPs except for the Scallop FMP because no new 
information is available to update EFH descriptions for scallops.
    The amendments make the following changes to the FMPs:
     BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and 
Arctic FMP: update EFH descriptions and maps, including up to EFH Level 
3 information on habitat-related vital rates (see 50 CFR 
600.815(a)(1)(iii)(A)). Add or revise the EFH text descriptions and add 
or replace the maps for--
    [cir] 41 species or complexes in the BSAI Groundfish FMP;
    [cir] 46 species or complexes in the GOA Groundfish FMP;
    [cir] all five species in the Crab FMP; and
    [cir] all three species in the Arctic FMP.
     Salmon FMP: replace the distribution maps for all five 
species with the EFH maps.
     BSAI Groundfish FMP, GOA Groundfish FMP, and Crab FMP: 
update information for fishing effects (FE) to reflect updates to the 
FE model, analysis, and evaluation.
     BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and 
Arctic FMP: revise the EFH appendices where conservation 
recommendations for non-fishing activities are described.
     BSAI Groundfish FMP, GOA Groundfish FMP, and Crab FMP: 
revise prey species descriptions for two species of BSAI sharks, BSAI 
pollock, GOA Pacific cod, and BSAI red king crab.
     BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and 
Arctic FMP: revise EFH appendices with updated research and information 
needs.

Comments and Responses

    During the public comment period for the NOA for the amendments, 
NMFS received five comment letters from three individuals, one industry 
group, and one environmental nongovernmental organization with eight 
unique comments. NMFS' responses to these comments are presented below.
    Comment 1: One commenter expressed general support for this action.
    Response: NMFS acknowledges support for this action.
    Comment 2: One commenter expressed concerns over salmon bycatch in 
Federal fisheries and FE to salmon EFH during their marine life history 
stage.
    Response: Comments concerning salmon bycatch are outside the scope 
of this action. Amendments to the Salmon FMP were corrections to 
replace the salmon distribution maps with the EFH maps, both 
originating from the 2017 EFH 5-year Review. NMFS notes that the 
Council's 2023 EFH 5-year Review Roadmap did not include updates to the 
FE analysis for Pacific salmon EFH during their marine life history 
stage because no new information was available.
    Comment 3: There was a general concern of FE on benthic habitat.
    Response: The 5-year Review evaluated the impacts of all fishing 
gears on benthic habitat. None of the stock assessment authors 
concluded that habitat disturbance within the core EFH area for their 
species was affecting their stocks in ways that were more than minimal 
or not temporary. None of the authors recommended any change in 
management with regards to fishing within EFH at this time.
    Comment 4: One commenter expressed concerns over pelagic trawl gear 
contacting benthic habitats in the Bering Sea.
    Response: The FE evaluation is a comprehensive evaluation of all 
gear types on species' core EFH areas. The FE model uses bottom contact 
adjustments when estimating the impacts of different gear types on 
benthic habitat. The list of gear types and adjustments is in appendix 
2 of the 2022 Evaluation of Fishing Effects on Essential Fish Habitat 
discussion paper (available on the NPFMC eAgenda for the February 2023 
meeting). Pelagic trawl gear was included in the gear types evaluated. 
The overall conclusion of the FE evaluation was that the impacts to 
species' core EFH areas were not more than minimal or temporary. Gear-
specific impacts are slated for future analyses.
    Comment 5: NMFS did not use the best available science when 
assessing fishing impacts on EFH: they did not account for uncertainty 
and error; the model was not independently reviewed; impacts to 
juvenile and subadult EFH; NMFS did not evaluate fishing effects to 
habitats for non-FMP species, and NMFS also did not address impacts of 
pelagic trawl fishing in conservation areas closed to bottom trawling.
    Response: The Council's Scientific and Statistical Committee (SSC) 
found that the current EFH fishing FE evaluation methodology is 
appropriate for the 2023 5-year Review when they reviewed the FE 
evaluations completed by the stock assessment authors in October 2022. 
An SSC subcommittee provided guidance in 2016 for the stock assessment 
authors to evaluate FE model results for their species using three 
thresholds (if the stock was below minimum stock size threshold, if the 
estimated disturbance within the core EFH area was greater than or 
equal to 10 percent, and/or if data limitation concerns would better 
suit a qualitative, rather than quantitative, evaluation). The 
subcommittee also noted that the 10 percent threshold does not preclude 
stock assessment authors from completing the evaluation for levels of 
habitat disturbance less than 10 percent, if other data suggest that 
impacts may be affecting the population.
    Uncertainty and Error: Model updates through this iterative process 
were summarized in the 2022 Evaluation of Fishing Effects on Essential 
Fish Habitat discussion paper (available on the NPFMC eAgenda for the 
February 2023 meeting). A sensitivity analysis was performed by running 
multiple iterations of the model to allow for estimation of uncertainty 
(section 2.2). The model code correction was explained clearly (section 
2.3) and the model code was made available upon request from Alaska 
Pacific University (APU).
    Independent Review: The model used for FE evaluation was developed 
by scientists at APU and went through peer review prior to publishing 
in the

[[Page 58634]]

Canadian Journal of Fisheries and Aquatic Sciences (Smeltz et al., 
2019, DOI: 10.1139/cjfas-2018-0243).
    Juvenile and Subadult Evaluations: The SSC's guidance focuses the 
EFH FE evaluation on the adult life stages of groundfish and all life 
stages combined for crabs. The FE model and evaluation process is an 
ongoing research priority for future EFH reviews.
    Exclusion of Non-FMP Species: EFH is designated for FMP species and 
evaluation of FE to the EFH of FMP species is directed by the EFH Final 
Rule (50 CFR 600). The Council's EFH Roadmap did not include updates to 
the FE analysis for Pacific salmon EFH in the Salmon FMP for this 
iteration of the 5-year Review. Halibut and State-managed commercial 
species are not targeted FMP species and do not have designated EFH. 
Corals, sponges, and other biogenic and long-lived habitat features 
also do not have designated EFH, though they are included as habitat 
covariates in both the species distribution models developed to map EFH 
for the 2023 EFH 5-year Review and in the FE model as biological 
features. An update to the FE model for this review included the 
incorporation of longer recovery times as supported by more recent peer 
reviewed literature (section 2.1.6 of the 2022 Evaluation of Fishing 
Effects on Essential Fish Habitat discussion paper).
    Pelagic Trawl Impacts: Application of the FE model provided a 
comprehensive evaluation of all gear types on species' core EFH areas, 
and while an evaluation of consequences for specific management areas 
is beyond the scope of this action, NMFS agrees that the Council should 
consider whether further action is warranted to address bottom contact 
by pelagic trawls in areas closed to non-pelagic trawls.
    Comment 6: NMFS failed to address EFH component 6 and identify 
actions to conserve and enhance EFH.
    Response: NMFS followed the Council's EFH Roadmap and for the 2023 
5-year Review, the Council outlined the plan for addressing EFH 
component 6 (EFH Conservation and Enhancement Recommendations) with the 
following directive:

    Review and revise the EFH conservation recommendations for non-
fishing activities in the non-fishing report under EFH component 4. 
Review new information from the FE evaluation to understand fishing 
effects on EFH. The Council may wish to identify additional 
recommendations to minimize effects from fishing based on the FE 
evaluation.

    NMFS completed the tasks set with updates to the Impacts to 
Essential Fish Habitat from Non-Fishing Activities in Alaska report 
(Limpinsel et al., 2023, DOI: 10.25923/9z4h-n860) and the 2022 
Evaluation of Fishing Effects on Essential Fish Habitat discussion 
paper. The Council and NMFS have several management measures in place, 
including habitat area closures and Habitat Areas of Particular Concern 
(HAPCs), which meet the requirements of EFH component 6. Section 1.3 of 
the 2023 EFH 5-year Review Summary Report describes the Council's EFH 
Roadmap to the 10 EFH components (available on the NPFMC eAgenda for 
the February 2023 meeting).
    Comment 7: NMFS must analyze a reasonable range of alternatives to 
meet the stated purpose for this action and cannot rely on an outdated 
Environmental Impact Statement (EIS). NMFS did not consider any 
alternatives besides maintaining the status quo and accepting the 
amendments to EFH descriptions when additional reasonable alternatives 
that would better protect EFH are available. NMFS must take a hard look 
at the impacts of its actions. The Environmental Assessment (EA) failed 
to consider important and potentially significant effects, such as 
juvenile and subadult EFH, or habitats essential to Gulf of Alaska 
crab, Pacific halibut, lingcod, salmon, Pacific herring, or forage 
fish, corals, sponges, and sea whips. Further, NMFS improperly tiered 
to the 2005 EIS and, rather, should have supplemented the 2005 EIS.
    Response: NMFS prepared a complete EIS on EFH and any adverse 
effects from fishing and non-fishing activities to EFH in 2005. 
Subsequently, NMFS has produced multiple EAs for each subsequent EFH 5-
year Review. Under regulation, agencies should tier their EAs when it 
would eliminate repetitive discussions of the same issues, focus on the 
actual issues ripe for decision, and exclude from consideration issues 
already decided or not yet ripe at each level of environmental review 
(40 CFR 1501.11(a)). This 5-year Review focused on issues ripe for 
decision during this review period, such as evaluating new 
environmental and habitat data, improving the models to map EFH, 
updating the model to evaluate fishery impacts on EFH, updating the 
assessment of non-fishing impacts on EFH, and assessing information 
gaps and research needs. The 2023 EFH 5-year Review Summary Report 
discussed the approach to each of the 10 EFH components in detail. 
Providing more accurate EFH information is beneficial to species as EFH 
is considered in the management of those species. A change in the 
designation of EFH has no direct impact, as there are no management 
measures or regulations associated with the designation of EFH, nor are 
such conservation measures required. While there were changes in 
environmental conditions, not every change in conditions requires a 
supplemental EIS; only those changes that cause significantly different 
effects from those already studied in the initial EIS require 
supplementary consideration. The Supreme Court directs that ``an agency 
need not supplement an EIS every time new information comes to light 
after the EIS is finalized. To require otherwise would render agency 
decision-making intractable'' (Marsh v. Oregon Nat. Res. Council, 490 
U.S. 360, 373 (1989)). On the other hand, if a major Federal action 
remains to occur, and if new information indicates that the remaining 
action will affect the quality of the human environment in a 
significant manner or to a significant extent not already considered, a 
supplemental EIS must be prepared.
    Ultimately, an agency is required ``to take a `hard look' at the 
new information to assess whether supplementation might be necessary'' 
(Norton v. S. Utah Wilderness All., 542 U.S. 55, 72-73 (2004)). 
National Environmental Policy Act (NEPA) implementing regulations at 40 
CFR 1502.9(d)(4) stipulate that an agency may find that new 
circumstances or information relevant to environmental concerns are not 
significant and therefore do not require a supplement to an EIS. In 
doing this, an agency should apply a ``rule of reason.'' ``Application 
of the `rule of reason' turns on the value of the new information to 
the decision making process. If there remains `major Federal actio[n]' 
to occur, and if the new information is sufficient to show that the 
remaining action will `affec[t] the quality of the human environment' 
in a significant manner or to a significant extent not already 
considered, a supplemental EIS must be prepared'' (Marsh, 490 U.S. 372-
74 (1989)).
    Here, as described above, new information and the EFH amendments do 
not constitute a ``significant change'' that was not already considered 
in the previous EIS. Further, a full EIS was not required, since the 
Council and NMFS thoroughly reviewed and considered all the relevant 
factors as part of the Magnuson-Stevens Act-mandated periodic review of 
the EFH provisions of the FMPs and revised or amended the EFH 
provisions as warranted based on available information. NMFS's 
consideration of alternatives was appropriate here. The stated goal of 
a project dictates the range of `reasonable' alternatives and NEPA 
requires consideration of those which are

[[Page 58635]]

feasible. NEPA does not require an agency to explicitly consider every 
possible alternative to a proposed action. Alternatives need not be 
included . . . if they present ``unique problems and would not 
accomplish the [agency's] goal'' (Communities, Inc. v. Busey, 956 F.2d 
619, 627 (6th Cir. 1992)). NMFS is not ``required to explore 
alternatives that, if adopted, would not have fulfilled the project 
goals'' (Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 
520, 546 (8th Cir. 2003)).
    Here, NMFS followed the Council's EFH Roadmap and for the 2023 5-
year Review and created alternatives to accomplish the Council's and 
the agency's goals in updating the description and identification of 
EFH, as required by section 305(b) of the Magnuson-Stevens Act. The EA 
analyzes the effects of each alternative and the effects of past, 
present, and reasonably foreseeable future actions (RFFA). There are no 
RFFAs that are identified as likely to have an impact on habitat based 
on updating the EFH information for FMP species as a result of the 2023 
EFH 5-year Review.
    Comment 8: One commenter expressed concerns over the impacts of 
offshore wind energy development on Endangered Species Act-designated 
critical habitats.
    Response: Comments concerning offshore wind are outside of the 
scope of this action.

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

    Dated: July 15, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2024-15930 Filed 7-18-24; 8:45 am]
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