Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66531

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 600

[Docket No. 961030300–7238–04; I.D.

120996A]

RIN 0648–AJ30

Magnuson-Stevens Act Provisions;

Essential Fish Habitat (EFH)

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Interim final rule; request for

comments.

SUMMARY: NMFS issues this interim

final rule to implement the essential fish

habitat (EFH) provisions of the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act). This rule

establishes guidelines to assist the

Regional Fishery Management Councils

(Councils) and the Secretary of

Commerce (Secretary) in the description

and identification of EFH in fishery

management plans (FMPs), including

identification of adverse impacts from

both fishing and non-fishing activities

on EFH, and identification of actions

required to conserve and enhance EFH.

The regulations also detail procedures

the Secretary (acting through NMFS),

other Federal agencies, state agencies,

and the Councils will use to coordinate,

consult, or provide recommendations on

Federal and state activities that may

adversely affect EFH. The intended

effect of the rule is to promote the

protection, conservation, and

enhancement of EFH.

DATES: Effective on January 20, 1998.

Comments must be received no later

than February 17, 1998.

ADDRESSES: Requests for copies of the

Environmental Assessment (EA) should

be sent to the Director, Office of Habitat

Conservation, Attention: EFH, NMFS,

1315 East-West Highway, Silver Spring,

MD 20910–3282. (see SUPPLEMENTARY

INFORMATION). These documents are also

available via the NMFS Office of Habitat

Conservation Internet website at: http:/

/kingfish.ssp.nmfs.gov/rschreib/

habitat.html or by contacting one of the

regional NMFS Offices:

Northeast Regional Office, Attention:

Habitat and Protected Resources

Division, One Blackburn Drive,

Gloucester, MA 01930–2298; 978/281–

9328.

Southeast Regional Office, Attention:

Habitat Conservation Division, 9721

Executive Center Drive North, St.

Petersburg, FL 33702–2432; 813/570–

5317.

Southwest Regional Office, Attention:

Habitat Conservation Division, 501 West

Ocean Blvd., Suite 4200, Long Beach,

CA 90802–4213; 562/980–4041.

Northwest Regional Office, Attention:

Habitat Conservation Branch, 525 N.E.

Oregon St., Suite 500, Portland, OR

97232–2737; 503/230–5421.

Alaska Regional Office, Attention:

Protected Resources Management

Division, 709 West 9th Street, Federal

Bldg., Room 461, P.O. Box 21668,

Juneau, AK 99802–1668; 907/586–7235.

FOR FURTHER INFORMATION CONTACT: Lee

Crockett, NMFS, 301/713–2325.

SUPPLEMENTARY INFORMATION: This

rulemaking is required by the

Magnuson-Stevens Act (16 U.S.C. 1801

et seq.) as reauthorized by the

Sustainable Fisheries Act, signed into

law on October 11, 1996. Details

concerning the justification for and

development of this interim final rule

were provided in the proposed rule (62

FR 19723, April 23, 1997) and will not

be repeated here. In the proposed rule,

the guidelines to the Councils for

amending FMPs and the regulations

outlining the processes for coordinating

and consulting with, and providing

recommendations to, the appropriate

Federal and state agencies were

combined within one subpart. For

increased clarity and easier access for

agencies involved in coordination or

consultation, the interim final

regulations separate the guidelines from

the coordination, consultation, and

recommendation procedures. The

former is in subpart J and the latter is

in subpart K of 50 CFR part 600. Both

subparts are being issued together

because of the importance for all

affected parties to understand the

implications of an area being identified

as EFH.

Overview of EFH FMP Amendment

Guidelines

The themes of sustainability and riskaverse management are prevalent

throughout the Magnuson-Stevens Act,

both in the management of fishing

practices (e.g., reduction of bycatch and

overfishing and consideration of

ecological factors in determining

optimum yield [OY]) and in the

protection of habitats (i.e., prevention of

direct and indirect losses of habitats,

including EFH). Management of fishing

practices and habitat protection are both

necessary to ensure long-term

productivity of our Nation’s fisheries.

Mitigation of EFH losses and

degradation will supplement the

traditional management of marine

fisheries. Councils and managers will be

able to address a broader range of

impacts that may be contributing to the

reduction of fisheries resources.

Habitats that have been severely altered

or impacted may be unable to support

populations adequately to maintain

sustainable fisheries. Councils should

recognize that fishery resources are

dependent on healthy ecosystems; and

that actions that alter the ecological

structure and/or functions within the

system can disturb the health or

integrity of an ecosystem. Excess

disturbance, including over-harvesting

of key components (e.g., managed

species) can alter ecosystems and

reduce their productive capacity. Even

though traditional fishery management

and FMPs have been mostly based on

yields of single-species or multi-species

stocks, these regulations encourage a

broader, ecosystem approach to meet

the EFH requirements of the MagnusonStevens Act. Councils should strive to

understand the ecological roles (e.g.,

prey, competitors, trophic links within

food webs, nutrient transfer between

ecosystems, etc.) played by managed

species within their ecosystems. They

should protect, conserve, and enhance

adequate quantities of EFH to support a

fish population that is capable of

fulfilling all of those other contributions

that the managed species makes to

maintaining a healthy ecosystem as well

as supporting a sustainable fishery.

Councils must identify in FMPs the

habitats used by all life history stages of

each managed species in their fishery

management units (FMUs). Habitats that

are necessary to the species for

spawning, breeding, feeding, or growth

to maturity will be described and

identified as EFH. These habitats must

be described in narratives (text and

tables) and identified geographically (in

text and maps) in the FMP. Mapping of

EFH maximizes the ease with which the

information can be shared with the

public, affected parties, and Federal and

state agencies to facilitate conservation

and consultation. EFH that is judged to

be particularly important to the longterm productivity of populations of one

or more managed species, or to be

particularly vulnerable to degradation,

should be identified as ‘‘habitat areas of

particular concern’’ (HAPC) to help

provide additional focus for

conservation efforts. After describing

and identifying EFH, Councils must

assess the potential adverse effects of all

fishing-equipment types on EFH and

must include management measures

that minimize adverse effects, to the

extent practicable, in FMPs. Councils
66532 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

are also directed to examine non-fishing

sources of adverse impacts that may

affect the quantity or quality of EFH and

to consider actions to reduce or

eliminate the effects. Councils are

directed to identify proactive means to

further the conservation and

enhancement of EFH.

Overview of Coordination,

Consultation, and Recommendation

Regulations

This regulation establishes procedures

for implementing the coordination,

consultation, and recommendation

requirements of the Magnuson-Stevens

Act. NMFS will coordinate with other

Federal and state action agencies by

providing them with descriptions and

maps of EFH, as well as information on

ways to conserve and enhance EFH. The

regulations allow Federal agencies to

use existing consultation/environmental

review procedures or the procedures

outlined in the regulation to fulfill their

requirement to consult with NMFS on

actions that may adversely affect EFH.

Consultations may be conducted at a

programmatic and/or project-specific

level. In cases where effects from an

action will be minimal, both

individually and cumulatively, a

General Concurrence (GC) procedure

has been developed to simplify the

Federal consultation requirements.

Consultation on Federal actions may be

conducted under Abbreviated or

Expanded Consultation, depending on

the severity of the threat to EFH. NMFS

anticipates that a majority of Federal

actions with the potential for adverse

effects on EFH may be addressed

through the abbreviated consultation

process or the General Concurrence

process. Coordination between NMFS

and the Councils is encouraged in the

identification of threats to EFH and the

development of appropriate EFH

conservation recommendations to

Federal or state agencies. When NMFS

or a Council provides EFH conservation

recommendations to a Federal agency,

that agency must respond in writing

within 30 days. If the action agency’s

decisions differ from NMFS’

conservation recommendations, further

review of the decision may be continued

by the two agencies, as detailed in the

regulations.

Related Documents

Other related documents that led to

this interim final rule were referenced

in the proposed rule. The Technical

Assistance Manual that was released for

public comment concurrent with the

proposed rule received very little public

comment. This was in part due to the

very technical nature of the document.

Therefore, NMFS will maintain this

information as internal technical

guidance, and as such, is not making it

available for public comment again.

Comments and Responses

Six regional public meetings and

numerous briefings were held during

the comment period to explain the

proposed rule and solicit public

comments from all interested parties.

Fishery and non-fishery representatives

attended the public meetings and were

included in briefings. Comments were

received in writing from 6 Regional

Fishery Management Councils, 3

Interstate Marine Fishery Commissions,

8 Federal agencies, 22 state agencies, 13

fishery groups, 49 conservation/

environmental groups, 60 non-fishing

industry groups, 11 other nongovernmental organizations, 11

academicians, 1 local government, and

40 individuals.

1. Comments Asking for Additional

Time to Comment

Comments: Several commenters

requested that, given the complex

nature of the proposed regulations,

additional time should be granted for

public comment.

Response: NMFS agrees that, because

the EFH rule outlines a new program,

additional public comment is desirable.

However, because it is critical that these

guidelines be available to the Councils

and to the Secretary as soon as possible

so that EFH FMP amendments can be

developed and submitted to the

Secretary in time to meet the statutory

deadline of October 11, 1998, NMFS is

issuing this rule as an interim final rule

to provide necessary certainty to

conduct this work. NMFS will also

consider additional comments received

during the comment period on this

interim final rule before issuing the final

rule. NMFS is particularly interested in

receiving comments on those sections of

the interim final rule that have been

changed in response to comments and

any new information not previously

submitted.

2. Comments in Favor of Protection of

Fish Habitats

Comments: Most of the commenters

supported the concept of protecting fish

habitats as a means to support fisheries,

sustain ecosystems, or preserve

aesthetics, some in spite of the fact that

they were wary of the approach outlined

in the proposed rule because of

potential adverse impacts on their

activities. Numerous groups and

individuals expressed concern that the

habitat conservation approach set forth

in the proposed rule was a dilution of

the previously presented ecosystem

approach from the Framework for the

Description and Identification of EFH

(62 FR 1306, January 9, 1997)

(Framework) and feared that it would be

weakened further in the interim final

rule under pressure from non-fishing

interests. Many commenters pointed out

that marine fisheries belong to all

Americans, not just to certain

industries.

Response: NMFS believes that EFH

must be conserved and enhanced to

prevent future depletions of managed

species and to restore many presently

overfished stocks. Measures detailed in

these regulations are necessary to ensure

that adverse impacts from both fishing

and non-fishing will be adequately

addressed in accordance with the

requirements of the Magnuson-Stevens

Act. The regulations were developed by

NMFS to provide the Councils with

guidance that is both feasible and

scientifically defensible. Although the

guidelines vary superficially from the

Framework, they are not fundamentally

different. Additional input from

Councils and the public, and

discussions with other Federal agencies,

were used to make the program

workable. NMFS will continue to work

with all parties to protect both quantity

and quality of these habitats in a

streamlined and efficient manner.

NMFS has worked to insure that an

ecologically sound approach was

developed to protect, conserve, and

enhance EFH to support sustainable

fisheries and the ecosystems that

support them in accordance with the

mandate set by Congress.

3. Comments on the Interpretation of

EFH

Comments: Some industry groups

commented that linking EFH to the

amount of habitat necessary to support

a healthy ecosystem exceeds the

authority granted to NMFS under the

Magnuson-Stevens Act. Additionally,

they criticized this linkage as vague and

overly broad. Some fishing interests

expressed concern that ecosystem

considerations might interfere with the

focus on maintaining fishing

production. Other commenters

supported the linkage to healthy

ecosystems, but asked that a healthy

ecosystem be more clearly defined.

Some commenters suggested that

healthy ecosystems should be defined

by species composition and abundance,

presence of key interactions, and habitat

persistence.

Response: In the proposed rule,

NMFS linked EFH to the amount of

habitat required to support a sustainable

fishery and healthy ecosystem. In the
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66533

interim final rule, NMFS clarified this

linkage to be the habitat required to

support a sustainable fishery and the

managed species’ contribution to a

healthy ecosystem.

The Magnuson-Stevens Act provides

authority for the link between EFH and

the managed species’ contribution to a

healthy ecosystem in a number of

places. Ecosystem themes are common

in the definitions of ‘‘fishery resources,’’

‘‘conservation and management,’’ and

‘‘optimum.’’ These definitions link

protection of the marine environment to

managing fisheries. Specifying that

Councils should address the

degradation and loss of EFH from both

fishing and through conservation and

enhancement measures further reflects

support for more ecologically-based

management of marine fisheries. In

addition to its present emphasis on

ecological components of management,

the Magnuson-Stevens Act, in section

406, calls for the establishment of an

advisory panel to analyze the extent to

which ecosystem principles are being

applied, and to recommend to the

Secretary and Congress ways to expand

the application of ecosystem principles

in fishery conservation and management

in the future.

Although the implementation of

ecosystem management varies among

the agencies and organizations that have

adopted it, there are common elements

among the approaches. Ecosystem

management encourages sustainable

resource use that is achieved through

goal setting and the use of ecological

precepts and understanding to achieve

those goals; recognition that different

processes occur at different temporal

and spatial scales and must be

addressed appropriately; recognition of

the complexity and integration of

ecosystems; recognition of humans as

active components in ecosystems;

recognition of the uncertainties inherent

in management and the need to make

risk-averse decisions; and the need for

adaptive management (Christensen et

al., 1996; Grumbine, 1997; Hancock,

1993). This regulation embraces those

concepts and urges Councils to seek

environmental sustainability in fishery

management of living marine and

anadromous resources, within the

current statutorily-prescribed fishery

management framework (i.e.,

management by FMPs).

Linking EFH to healthy ecosystems

will improve conserving and enhancing

the habitats of all living marine

resources which depend on the same

marine ecosystem. Applying an

ecosystem approach to the conservation

and enhancement of EFH will require

NMFS and the Councils to consider the

inter-relationships between and among

species managed under the MagnusonStevens Act, the Marine Mammal

Protection Act, and the Endangered

Species Act (ESA). Carrying out the

habitat conservation mandates of these

laws independently is inefficient,

because the interrelationships between

species are not considered. Concerns

expressed by fishing interests that

focusing on the ecosystem will divert

attention from promoting sustainable

fisheries are unfounded since

sustainable resource use must be

grounded in a sustained ecosystem.

In response to comments requesting

clarification, this interim final rule

provides additional guidance by listing

the general attributes of a healthy

ecosystem in a definition. The linkage

between a healthy ecosystem and EFH

has been clarified to mean the habitat

required to support a sustainable fishery

and the managed species contribution to

a healthy ecosystem.

Comments: Many comments, mainly

from conservation groups, opposed

linking EFH to fisheries in the definition

and throughout the proposed rule. In

particular, they wanted the quantity of

EFH to be linked to the support of fish

populations rather than to fisheries

production. Conversely, some Councils’

comments suggested that NMFS link

EFH to a quantifiable fishery term such

as maximum sustainable yield (MSY) or

OY. One Council urged NMFS to clarify

that the term sustainable fishery means

the level necessary to maintain at least

the current production. Other

commenters supported the linkage of

EFH to sustainable fisheries, but were

unclear about the meaning of target

production goal as used in the proposed

rule. One asked that the time period

over which sustainable should apply be

better defined. Some non-fishing

commenters criticized the linkage to

sustainable fisheries as vague and too

broad.

Response: The Magnuson-Stevens Act

mandates that EFH requirements be

incorporated into FMPs. It also

explicitly states that one of its purposes

is to provide for the preparation and

implementation of FMPs that will

achieve and maintain on a continuing

basis, the OY from each fishery. The

definition of optimum states that the

yield from a fishery should provide the

greatest national benefit. This benefit

includes food production and

recreational opportunities, and takes

into account protection of marine

ecosystems. This is the basis for longterm sustainable fisheries. Therefore,

NMFS continues to maintain that

linking EFH to sustainable fisheries is

appropriate and based on the

Magnuson-Stevens Act. Because

managed species are integral parts of the

ecosystems that support them,

consideration of ecosystem processes

are equally important, as expressed in

the rule.

In managing a fishery under their

jurisdiction, Councils limit the quantity

of fish that can be harvested by fishers

from a population or stock. These limits

or yields, usually expressed as MSY or

OY, are based on estimates of the total

population (or stock) size and the ability

of the population to sustain itself when

subjected to some level of fishing

pressure. When considering the EFH

requirements of a managed species,

Councils must describe and identify

enough habitat to support the total

population, not just the individual fish

that are removed by fishing (the

fisheries production). ‘‘Target

production goal’’ was intended to

portray this concept in the proposed

rule; but, because commenters confused

biological production with fisheries

production, NMFS has modified this

wording. The interim final rule states

that FMPs should identify enough EFH

to support a population adequate to

maintain a sustainable fishery and the

managed species’ contributions to a

healthy ecosystem. If the current stock

size supports the long-term potential

yield of the fishery then EFH should be

adequate to support that population and

its contribution to a healthy ecosystem.

If the current stock size is lower than

that (i.e., overfished), then EFH may

need to be bigger or annually enlarged

to support a larger spawning stock if

habitat is limiting.

Comments: Some commenters stated

that including ‘‘biological properties’’

and ‘‘biological communities’’ in the

interpretation of ‘‘waters’’ and

‘‘substrate’’ was an inappropriate

expansion of the Magnuson-Stevens

Act. Other commenters criticized NMFS

for including ‘‘chemical properties’’ in

the interpretation of ‘‘waters’’ because

other agencies have greater expertise in,

and jurisdiction over, water quality

issues.

Response: NMFS disagrees with these

comments and did not change the rule.

‘‘Biological properties’’ and ‘‘biological

communities’’ are fundamental aspects

of habitat and have long been

recognized as such by the scientific and

technical communities. The fact that an

area is aquatic or contains a specific

physical structure may not necessarily

make it fish habitat. Fish species require

waters with, among other things,

appropriate biological properties and

chemical properties (e.g., prey, nutrient

sources, salinities, dissolved oxygen

concentrations, and pH) to meet their
66534 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

physiological/habitat requirements.

Substrata also must often have certain

biological communities (typically

sessile organisms) before they function

as fish habitat. For example, it is the

presence of seagrasses (associated

biological community) that provides

appropriate settlement habitat for postlarval queen conch, not just the

underlying coarse grain sand.

NMFS and other NOAA offices have

considerable expertise and state-of-theart scientific facilities to assess and

evaluate water quality issues. The fact

that NMFS does not have statutory

authority for regulation of water quality

makes it no less important in the

research and management of resources

under NMFS’ jurisdiction.

Comments: Some commenters

objected to the inclusion of ‘‘structures

underlying the waters’’ in the

interpretation of ‘‘substrate.’’ Others

supported the inclusion of ‘‘structures,’’

but questioned whether the owners of

structures that are identified as EFH

would be required to maintain them as

EFH. Several commenters, primarily

dive groups, recreational fishers, and oil

industry representatives, applauded the

inclusion of artificial reefs as structures,

and further stressed the importance of

offshore oil platforms as artificial reefs

and potential EFH. One commenter

pointed out that artificial reefs, if

inappropriately established, have the

potential to adversely impact EFH.

Response: NMFS included ‘‘structures

underlying the waters’’ in its

interpretation of substrate to clarify that

structures such as artificial reefs, jetties,

and shipwrecks may be considered EFH

if they provide essential habitat for a

managed species. This should not be

interpreted to mean that all such

structures are EFH. Only those

structures that meet the criteria outlined

in these guidelines and identified as

such in an FMP are EFH. If a structure

is identified as EFH, the Secretary is

required to comment on any state or

Federal action that may have an adverse

impact on such habitat. Activities, such

as routine maintenance, that do not

require a state or Federal permit or

license would not require consultation.

If a state or Federal agency is involved

in creating or modifying an artificial reef

in, or affecting, EFH, NMFS will be

required to comment on ways to

minimize or mitigate any adverse

impacts to the EFH.

Comment: Some commenters were

opposed to interpreting ‘‘spawning,

breeding, feeding, or growth to

maturity’’ to cover a species’ full life

cycle. Other commenters supported it.

Response: The Magnuson-Stevens Act

established this definition for EFH.

NMFS recognizes that some may

interpret spawning, breeding, and

growth to maturity to exclude key life

stages, (e.g., mature adults). However,

all immature life stages grow to maturity

and all mature adults feed, spawn, and/

or breed. Therefore, it is appropriate to

interpret this phrase to cover the entire

life cycle.

Comments: Some commenters

criticized the definition of EFH in the

proposed rule for allowing historic or

degraded habitat to be identified as EFH

‘‘if the loss of that habitat has

contributed to reduced yields for the

species and it is feasible to restore the

lost habitat.’’ Other commenters

criticized NMFS for allowing degraded

or inaccessible habitat to be identified

as EFH. The commenters argued that

these provisions exceed NMFS’

statutory authority. Port authorities in

particular are concerned that facilities

on dry land may be identified as EFH.

Response: These provisions were

included in the proposed rule because

the restoration of historic, degraded, or

inaccessible habitat, where

technologically and economically

feasible, may be necessary to meet the

rule’s stated goal of ensuring the

production necessary for some species

to support a sustainable fishery and

contribute to a healthy ecosystem. This

interim final rule continues to allow the

identification of historic or degraded

habitat as EFH but further clarifies that

‘‘historic habitat’’ must currently be an

aquatic area before it can be identified

as EFH and that restoration must be

technologically and economically

feasible. Therefore, dry land could not

be identified as EFH.

4. Comments Requesting Definition of

Other Terms in the Interim Final Rule

Comment: Several commenters

suggested that the interim final rule

contain a definition of ‘‘adverse

impact.’’

Response: NMFS agrees and has

included a definition in the rule.

Comment: Several commenters

suggested that a definition for critical

habitat’’ is necessary.

Response: NMFS disagrees that a

definition is necessary but has modified

the rule to clarify that ‘‘critical habitat’’

relates to species that are listed as

threatened or endangered under the

ESA.

Comment: Some commenters

suggested that the acronym ‘‘FMU’’

needs to be defined.

Response: The acronym FMU is

already defined in 50 CFR 600.10,

which contains the definitions for all of

part 600. The EFH provisions contained

in this interim final rule will become

subparts of part 600 and as such are

subject to those definitions.

Comment: Several commenters

suggested that the terms ‘‘high value

habitat’’ and ‘‘ecosystem scale’’ need to

be defined in the interim final rule.

Response: NMFS disagrees that these

terms need to be defined in the rule

since they may be interpreted from the

contexts in which they are used in the

rule.

5. Comments on the Purpose and Scope

of the Rule

Comments: Several commenters

criticized NMFS for not requiring

Councils to describe and identify EFH

for all fish species inhabiting the

geographic jurisdiction of a Council,

and suggested that such a limitation is

not supported by the Magnuson-Stevens

Act. Other commenters suggested that

EFH be described and identified for all

major fisheries, even those not in an

FMP. They stated that Councils should

be able to describe and identify EFH of

non-managed species in order to protect

habitats that are affected by fishing for

a managed species. Others suggested

that as soon as EFH is identified in a

proposed FMP, management measures

and consultations should begin without

waiting for final approval of the FMP.

Response: NMFS continues to

maintain that the Magnuson-Stevens

Act requires Councils to describe and

identify EFH for only those species

managed under an FMP. According to

section 303(a)(7) of the MagnusonStevens Act, EFH provisions are

required components of an FMP.

Therefore, it is appropriate to describe

and identify EFH only for those species

managed in the FMP. However, the

Magnuson-Stevens Act does not

preclude Councils from identifying

habitat of a fishery resource under its

authority. Section 305(b)(3) describes

the Councils’ commenting

responsibilities for activities that may

affect such habitat. In the rule, NMFS

points out that Councils have the option

to describe and identify habitats (not

EFH) and institute management

measures to protect species (and their

habitats) that are not managed under

FMPs. This is currently done by some

Councils. However, the habitats of

species not managed under a Federal

FMP would not be considered EFH for

the purposes of consultation.

EFH consultation and management

measures can not be implemented until

FMPs include an EFH provision.

Consultation and management measures

would have no statutory basis without

the EFH provisions in an FMP.

Comments: Several commenters

questioned whether EFH would be
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66535

identified in state waters. Many

commenters urged NMFS to do so;

others opposed it. Commenters urged

NMFS to clearly state that management

actions regarding fishing impacts only

apply to species managed by Councils

in Federal waters. While some

commenters pointed out that NMFS

cannot regulate fishing in state waters,

others asked that fishing be regulated in

state waters as well as Federal waters.

Three commenters suggested that the

Submerged Lands Act, in combination

with the Magnuson-Stevens Act, would

allow NMFS to assert jurisdiction over

state waters, and that the rule should

explain how states’ authority over their

waters and submerged lands will be

affected by this rule. Some suggested

that fishing regulations be closely

coordinated with state management

agencies to ensure consistency in

habitat protection. The commenters who

stated that EFH should not be identified

in state waters, further asserted that

NMFS should not provide comments on

Federal and state activities that take

place in state waters.

Response: The Magnuson-Stevens Act

requires Councils to describe and

identify EFH based on all life stages of

the managed species, with no

limitations placed on the geographic

location of EFH. Therefore, EFH may be

in state or Federal waters depending on

the biological requirements of the

species. Regarding actions that occur in

state waters that may adversely affect

EFH, the Magnuson-Stevens Act

provides authority for NMFS to provide

EFH conservation recommendations,

not regulate.

With few exceptions, direct NMFS

regulatory authority applies only to

Federal waters, the exclusive economic

zone (EEZ). Generally, without

appropriate preemptive procedures,

NMFS can not implement management

measures for state waters. However,

many species targeted in Federal

fisheries spend part of their life cycle in

state waters and may be impacted by

fishing activities that are managed by a

state. Effective management of marine

resources that cross jurisdictional

boundaries requires coordination

between management entities, and

NMFS has added additional language to

the interim final rule to emphasize such

arrangements. Adverse impacts to EFH

that result from state-managed fisheries

will be addressed through conservation

recommendations to the appropriate

state agency. Failure to consult or

comment on activities adversely

affecting all habitats would be a failure

to carry out the legislative mandate to

protect EFH for all life history stages.

Comments: Several commenters

recommended that the EFH mandate

should be applied beyond U.S.

territorial waters. They argue that many

of the species managed under the

Magnuson-Stevens Act range beyond

U.S. territorial waters, e.g., New

England groundfish and Alaska salmon

are found in Canadian waters and the

high seas. The highly migratory species

that are managed under Secretarial

FMPs range into international waters

and the waters of other nations. The

basic question raised in the comments is

whether NMFS and the Councils can

identify EFH for those species in the

territorial waters of another country or

in international waters.

Response: The EFH provisions under

the Magnuson-Stevens Act do not direct

the Councils to include waters beyond

the jurisdiction of the U.S. Since

provisions in statutes are not presumed

to apply extraterritorially, NMFS has

determined that waters beyond the

United States’ EEZ are not to be

identified as EFH. Therefore, NMFS will

not regulate fishing beyond the EEZ,

and Federal consultation will not be

required. However, Councils may

describe, identify, and promote

protection of habitats for managed

species in waters beyond the EEZ. The

Secretary will use such information in

discussions with Federal agencies

involved in international actions,

including negotiations with foreign

nations.

Comment: One Federal agency

commented that the Great Lakes should

be added to the EFH program. Other

commenters suggested that

interjurisdictional fisheries be added to

the program.

Response: In order for an area, like the

Great Lakes, to be identified as EFH, it

must provide essential habitat for a

species managed under the MagnusonStevens Act. Similarly, an

interjurisdictional fishery must be at

least partially managed under the

Magnuson-Stevens Act for the EFH

mandate to apply.

Comment: Commenters asked

whether EFH would be described and

identified in waters under the

jurisdiction of tribes or native

corporations.

Response: NMFS intends that tribal

and native corporation waters be treated

the same as state waters for the purposes

of describing and identifying EFH (i.e.,

EFH may be identified in those waters

if the habitat is essential for a managed

species). However, tribes and native

corporations are not required to consult

with NMFS on actions that do not

require Federal or state authorization or

action. Tribal and native corporation

actions, including activities carried out

through Federal financial assistance and

under permits or licenses issued by

Federal or state governments, will

require the appropriate procedures for

consultation and/or recommendations

as set forth in subpart K.

Comment: Commenters voiced

concern that this regulation would affect

the rights of private landowners to

manage their own property.

Response: Private landowners have no

new responsibilities to consult with

NMFS on private land activities as a

result of the Magnuson-Stevens Act or

this interim final rule. No consultation

is required unless an activity may have

an adverse impact on EFH and it

requires a Federal or state action, such

as permitting or licensing. Those

Federal or state actions will trigger the

consultation and/or recommendation

requirements of section 305(b)(2–4) of

the Magnuson-Stevens Act. EFH

coordination, consultation, and

recommendation procedures are

detailed in this interim final rule and

will be added to part 600 as new

subpart, K. Use of existing consultation

procedures to minimize adverse impacts

to EFH is strongly advocated in the rule.

Comment: One organization suggested

that EFH should be expanded beyond

aquatic areas to include riparian areas

and hydrological basins.

Response: The statutory definition of

EFH limits it to ‘‘waters’’; therefore,

terrestrial areas may not be identified as

EFH. However, there is not a similar

legal limit on Federal or state activities

that may adversely impact EFH. The

only criteria is that the activity may

have an adverse impact on EFH, with no

limits on where the activity is located.

An adverse effect on EFH should be

reasonably foreseeable for the action to

require consultation. Therefore, NMFS

may comment on Federal or state

actions which take place within riparian

areas or hydrological basins if they may

have a reasonably foreseeable adverse

impact on EFH. In this rule, NMFS has

confined EFH to include only aquatic

habitat because the Magnuson-Stevens

Act definition of EFH limits it to

‘‘waters.’’ However, NMFS believes that

areas important to a sustainable fishery

necessarily include riparian and upland

areas, as well as aquatic areas,

particularly in the case of anadromous

species. Areas that NMFS considers

important are illustrated in the critical

habitat designation for Snake River

chinook.

Comment: One commenter expressed

concern that those areas not identified

as EFH will be subject to greater threat

of disturbance because they will be

thought of as expendable.
66536 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

Response: The Fish and Wildlife

Coordination Act (FWCA) provides a

directive to Federal agencies to consult

with NMFS when waters of the United

States may be modified by activities

requiring a Federal permit or license.

The FWCA will continue to allow the

Secretary to comment on Federal

activities that may adversely affect

living marine resources and their

habitat, even if such habitat is not

identified as EFH.

6. Comments on Mandatory Contents of

Fishery Management Plans

Comments: Some non-fishing

industry commenters argued that NMFS

has exceeded the authority granted by

the Magnuson-Stevens Act by including

mandatory provisions in the EFH

guidelines. They argue that Congress

intended the guidelines to be voluntary.

Other commenters argued that

proposing discretionary components

that ‘‘should’’ be included in an FMP

will expose the Councils and NMFS to

third-party suits. They stated that the

guidelines need to be far less

prescriptive to guard against such suits.

Conversely, other commenters argued

that NMFS should change many of the

discretionary components of FMPs in

the proposed rule to mandatory

components in the interim final rule.

Response: The Magnuson-Stevens Act

directs the Secretary to ‘‘establish by

regulation guidelines to assist Councils’’

in carrying out the EFH mandate. The

mandatory components specified in the

rule reflect requirements of the

Magnuson-Stevens Act, or are logical

extensions of it. Since receiving these

comments, NMFS has reviewed the use

of each term (i.e., must, should, may,

etc.) to ensure that the requirements of

the Magnuson-Stevens Act are reflected

in the interim final rule. NMFS will

continue to maintain a mixture of

voluntary (may), strongly suggested

(should), and mandatory (must)

components to inform Councils of the

elements needed in an EFH amendment

to receive Secretarial approval.

7. Comments on Description and

Identification of EFH in Fishery

Management Plans

Comment: A commenter criticized

NMFS for not providing tighter, less

vague standards for the description and

identification of EFH.

Response: The guidelines contained

in this rule apply to all regions of the

United States, including the Caribbean

and western Pacific territories, and will

be used to amend 39 different FMPs

covering over 400 species. Because of

this diversity of regional needs, the

guidelines need to be flexible, while

providing consistent guidance to ensure

that amendments meet equivalent

standards.

Comments: Many commenters

suggested other types of information

that should be included in describing

and identifying EFH. These include: (1)

Sensitive life stages; (2) reproductive

and dispersal patterns; (3) information

generated from spatial, temporal, and

fishing gear experiments; (4) historical

information for each data level; (5)

carrying capacity, habitat availability,

quality, and utilization; and (6)

spawning structures and structural

complexity.

Response: NMFS concurs that this

information may be useful. The lists of

information types were intended to be

instructive, not exhaustive. The interim

final rule has been modified to provide

more flexibility with regard to the data

used.

8. Comments on the Sources and

Quality of Information Used

Comment: Several comments,

particularly from state agencies, stressed

the need to involve states and use state

agency data in satisfying the EFH

requirements of the Magnuson-Stevens

Act. Several commenters urged NMFS

to cooperate with states in gathering

information, developing FMP

amendments, and funding restoration.

Response: NMFS agrees, and is

already collaborating with the states in

many activities. For example, NMFS is

coordinating with the state fisheries

agencies and the three interstate

fisheries commissions to gather the best

available information for use in the EFH

amendments. NMFS is also working

with state coastal zone programs to

coordinate EFH efforts with approved

coastal management plans. These

interactions with states are facilitated by

the fact that Council members represent

each state under the Council’s

jurisdiction, and many resource agency

experts also serve on various Council

committees and panels, including

habitat committees and advisory panels.

All Council activities are open to the

public, which affords further

opportunities for cooperation. Subpart J

of the interim final rule has been further

modified to emphasize coordination

between states, interstate commissions,

and Councils in the development of

EFH FMP provisions.

Comment: Several commenters

suggested that ‘‘best available

information’’ might preclude NMFS and

the Councils from using local

knowledge and log books as sources of

information to describe and identify

EFH.

Response: Section 305(b)(1)(B) of the

Magnuson-Stevens Act requires NMFS

to consult with participants in the

fishery before submitting its

recommendations and information to

the Councils to assist in the description

and identification of EFH. This

indicates Congress’ intent to use

information from fishers. NMFS intends

for Councils to use the best available

information, including local knowledge

and log books, to describe and identify

EFH. However, all information should

be evaluated with regard to the

reliability of the information and its

source.

9. Comments on the Four-Level

Approach for Gathering and Organizing

EFH Data

Comments: Many commenters

expressed concern about the four-level

approach to gathering and organizing

data for the description and

identification of EFH. Some expressed

concern that there is no incentive for

Councils to move beyond level 1

information (i.e., presence/absence

information) and that Councils would

identify all habitats occupied by

managed species as EFH to ensure the

greatest amount of protection. Other

commenters suggested that there should

be a rebuttable presumption that all

habitat is EFH if data from levels 2

through 4 are used to refine the

identification of EFH. Finally, some

commenters criticized NMFS for

allowing the identification of EFH to be

based on production rates by habitat

type, because it restricts the goal of the

Magnuson-Stevens Act to promote the

protection of EFH.

Response: The four-level approach

provides a logical method to gather and

organize data for the identification of

EFH. There is a natural incentive to

gather and use information from

progressively higher levels, because this

will enable NMFS and the Councils to

target their habitat conservation efforts

to ensure that the most productive

habitats receive greater attention. The

rule has been modified to reinforce this

intention. Councils are required to

demonstrate that the best scientific

information available was used in the

identification of EFH. NMFS also

disagrees with the comment that linking

EFH to production will not promote the

protection of EFH. Clearly linking EFH

to biological production, and advocating

research to quantify these relationships,

will increase awareness of the

importance of habitat to sustainable

fisheries and will likely lead to greater

emphasis on protecting EFH. NMFS did

not create a rebuttable presumption that

all habitat identified by levels 2 through
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66537

4 information is EFH because it could

lead to an overly broad area being

identified as EFH without adequate

scientific justification. NMFS’ use of the

four levels of information is a means of

organizing the available data for the

identification of EFH. This data will be

considered in determining the extent of

EFH.

Comment: One commenter suggested

that NMFS require Councils to submit a

schedule detailing when higher levels of

information will be developed.

Response: Periodic updates are

required for EFH amendments.

Amendments should include an

assessment of the information needed to

improve the description and

identification of EFH. The research

needs identified in an FMP should

include a schedule for meeting those

needs.

10. Comments on Criteria for EFH

Determinations

Comments: Several commenters

questioned the role of Council judgment

when there is only level 1 information

available. Others asked for additional

guidance on how to interpret level 1

information.

Response: The role of Councils is to

evaluate information and use the EFH

determination criteria in the interim

final rule to identify EFH and the

measures required to conserve it.

Councils will need to evaluate all

available information, according to its

merit, and use best scientific judgement

in arriving at their decisions.

Demonstration that this identification is

based on the best scientific information

available will be necessary to attain

Secretarial approval of an EFH

amendment. Additional clarification on

how to interpret level 1 information to

identify EFH has been added to the

interim final rule.

Comments: Comments from

conservation groups, many fishing

groups, and most individual

commenters fully supported a

‘‘precautionary approach’’ and

encouraged expansion of these

provisions. A few commenters urged

that all habitats be designated EFH and

that those people who impact the

habitat should be responsible for

proving that their activities are not

decreasing the habitat’s capacity to

support fish populations. Many

comments, primarily from non-fishing

industry interests, criticized NMFS for

establishing a ‘‘risk-averse’’ process for

identifying EFH that they claim will

result in most aquatic areas being

identified as EFH. Of particular concern

is the guidance in the proposed rule that

if only species distribution information

is available, EFH should be everywhere

a species is found. Also of concern is a

provision which states that, if a species

is overfished, all habitats used by the

species, plus certain historic habitats,

should be considered EFH. The

commenters believed that these

provisions will result in most, if not all,

habitats being identified as EFH and

that this is not the intent of the

Magnuson-Stevens Act.

Response: The ‘‘risk-averse’’ approach

to describing and identifying EFH was

advocated in the proposed regulation

because of the uncertainty inherent in

much of our knowledge of habitatproductivity relationships. Care should

be exercised in the face of inadequate

information or overfished stocks to

guard against habitat losses or

alterations that may prove significant to

the long-term productivity of the

species. The rule continues to endorse

these risk-averse approaches, but

clarifies that Councils should use

information from all available levels to

make best scientific judgments on how

to describe and identify EFH. Presence/

absence data should be used to

delineate the geographic range of the

species. Habitat-specific information on

density, reproduction, and growth

should be used to identify EFH within

that range. If only presence/absence

information are available on a managed

species, these data should be evaluated

to identify those areas most commonly

used by the species as EFH. The rule

also clarifies that, for overfished species,

all habitats currently used, and certain

historic habitats, should be identified as

EFH only if habitat loss or degradation

may be contributing to the species’

being identified as overfished.

11. Comments on the Relationship

Between EFH and Critical Habitat

Comments: Some commenters

criticized the proposed rule for stating

that EFH will always be greater than or

equal to ‘‘critical habitat.’’ One

commenter noted that some critical

habitat can include upland habitats and

therefore this linkage is not consistent

with the statutory definition of EFH.

Others stated that EFH should not be

described and identified for species

listed under the ESA. One commenter

questioned why NMFS is allowing

fishing on endangered species. Some

commenters supported EFH being equal

to or greater than critical habitat because

it will promote the recovery of

endangered species.

Response: NMFS maintains that it is

appropriate to state that EFH will

always be greater than or equal to

critical habitat, as defined under ESA.

The interim final rule includes a minor

modification to the language that helps

distinguish between critical habitat and

EFH and to reiterate that EFH is aquatic

only. EFH includes habitats for all life

history stages of a species, while for

some anadromous salmonids listed

under ESA, adult marine habitats have

not been identified as critical habitat.

NMFS does recognize that critical

habitat may contain terrestrial areas and

has modified the interim final rule to

clarify that those areas may not be

considered EFH.

NMFS and the Councils do not allow

directed fishing on listed species but

EFH requirements are still necessary if

the species are covered by an FMP.

Certain stocks of west coast salmon are

currently part of the management unit of

an FMP. Specific runs of those stocks

are listed as threatened or endangered

under the ESA. Even though certain

runs of a larger stock are listed under

the ESA, the Magnuson-Stevens Act still

requires Councils to describe, identify,

and consider actions to conserve and

enhance EFH for the species. This does

not mean that directed fishing will be

allowed on the listed runs.

12. Comments on Inclusion of

Mariculture and Indirect Fishing Effects

Comments: NMFS received comments

suggesting that fishing activities should

include all components of the activity

(e.g., anchoring, refueling). Some

commenters requested that mariculture

be considered a fishing activity.

Response: As fishing is defined in

section 3(4) of the Magnuson-Stevens

Act it includes ‘‘harvesting of fish.’’

Commercial fishing, in the same section,

means ‘‘fishing in which the fish

harvested, either in whole or in part, are

intended to enter commerce or enter

commerce through sale, barter or trade.’’

NMFS agrees that mariculture is

included within these definitions

because the fish harvested enter

commerce. The interim final rule was

not changed, because mariculture was

already considered to be part of

commercial fishing. Under these

regulations Councils would be required

to assess the impacts of mariculture

activities and minimize any adverse

effects that impact EFH within their

jurisdiction. The indirect effects of

fishing activities should also be

considered, when evaluating adverse

impacts from fishing, as well as when

analyzing cumulative impacts on EFH.

In the rule, NMFS has used the term

‘‘fishing equipment’’ to replace the term

‘‘fishing gear,’’ that was used in the

proposed rule. Fishing equipment is

used to portray the intention to more

broadly consider impacts from fishingrelated activities when assessing
66538 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

adverse impacts on EFH. Councils

should assess impacts of different

fishing gears, fishing techniques,

equipment, and practices used in

mariculture, and other factors, as

appropriate.

13. Comments on Fishing Gear

(Equipment) Assessment

Comments: In addition to completing

an assessment of fishing gear,

commenters requested that Councils

rank gear based on the severity of

impacts to specific habitats. Some

argued that recreational fishing impacts

should be excluded from such

assessment.

Response: The effects of fishing

practices or gear types is habitatdependent. NMFS has modified the rule

to direct that during the assessment of

fishing equipment (gear) impacts, the

relative effect of different equipment

types or techniques on different habitat

types should be assessed. This will help

the Councils focus research and

management efforts on those habitats

that require the most attention.

Assessments and subsequent research

should be conducted on all types of

fishing impacts, including recreational

and commercial fishing equipment or

practices, however relative impacts

should be prioritized and management

and research should address needs

accordingly.

NMFS also emphasizes in the rule

that the fishing equipment assessment

should be conducted periodically with

subsequent review or revision. As new

equipment is developed, techniques are

changed, or additional research is

conducted, new information on effects

on EFH will be developed. Language has

been added to the rule to clarify that

Councils should assess all new

information regarding EFH, including

new assessments of fishing equipment

impacts, to determine when an

amendment needs to be updated. EFH

amendments are to be reviewed and

revised as appropriate, but at least once

every 5 years. New information

regarding equipment effects on EFH

should be incorporated as available into

any updates of EFH amendments.

Comments: Commenters suggested

that technology, such as the use of

remotely operated vehicles, should be

an acceptable alternative to research

closure areas in assessing the effects of

gear. One Council asked that it be able

to base assessments on operational

characteristics of gear in their specific

area rather than inference from studies

in other areas.

Response: The rule recommends

‘‘consideration of the establishment of

research closure areas and other

measures’’ to assess the effects of fishing

equipment on EFH. It does not restrict

Councils from considering any options.

Councils should use the most

appropriate measures to assess impacts.

Councils, however, should not discount

some methods or tools because they

may be time-consuming or require

management action, if they are the most

appropriate method to use. All relevant

research should be considered when

assessing impacts of fishing gear on

EFH, including research that has been

conducted in other, biogeographically

similar areas.

Comment: Several commenters

expressed concern that there is no

requirement to conduct a cumulative

impacts assessment of fishing impacts,

as there is for non-fishing impacts.

Response: NMFS assumed that all

forms of adverse impacts, including

those from fishing, were included as

cumulative impacts on EFH. However,

NMFS has modified the rule to further

clarify this intent. Impacts of fishing

and non-fishing activities should be

considered when a cumulative impacts

analysis is conducted. This may be

particularly important where fishing

gear of one fishery impacts the habitat

of another fishery. Furthermore,

cumulative impacts analysis should

consider synergistic effects of both

fishing and non-fishing impacts on

habitat, and should give additional

consideration to cumulative impacts

affecting HAPC.

Comment: Commenters stated that

adverse impacts from fishing should be

demonstrated scientifically.

Response: National standard 2

requires that conservation and

management measures be based upon

the best scientific information available.

Councils should, however, take into

consideration information available

through other valid sources. If scientific

information is limited, the best available

information should be considered for

assessing adverse impacts of fishing

equipment on habitats. This information

should be weighed, based on the quality

of information, and considered

appropriately in the development of

EFH conservation and management

decisions.

14. Comments on the Threshold That

Requires Councils To Regulate Fishing

Activities That Adversely Impact EFH

Comments: The proposed rule

required Councils to act to mitigate or

minimize any adverse effect from

fishing, to the extent practicable, if there

is evidence that a fishing practice is

having ‘‘substantial’’ adverse effect on

EFH. Many comments from

environmental and fishing groups

criticized the proposed rule for using

‘‘substantial’’ to characterize adverse

impacts that would require a Council to

regulate damaging fishing practices.

They claimed this was a higher

threshold than intended in the

Magnuson-Stevens Act. Under the

Magnuson-Stevens Act, Councils are

required to ‘‘minimize to the extent

practicable adverse effects on such

habitat caused by fishing.’’ Many of the

commenters maintain that this ‘‘higher

threshold,’’ is so high that Councils will

never act to control a damaging fishing

practice, nor will research be conducted

to assess less understood impacts from

fishing. Commenters, additionally,

suggested that the burden to prove they

are in fact causing no impact should be

placed on those wishing to exploit the

public resource.

Response: The language of the

proposed rule was not meant to raise the

threshold of damage from fishing

impacts higher than that intended in the

statute. The language was intended to

provide guidance to assist Councils in

determining when they are required to

take action on a fishing impact. NMFS

believes that the intent of the

Magnuson-Stevens Act is to regulate

fishing gears or techniques that reduce

an essential habitat’s capacity to support

marine resources, not practices that

produce inconsequential changes in the

habitat. Therefore, NMFS continues to

support this concept but has deleted the

word ‘‘substantial’’ from the rule and

added new language to clarify this

concept. Impacts from fishing practices

that justify the implementation of

management actions should be

‘‘identifiable’’ (i.e., both more than

minimal and not temporary in nature).

Comments: Commenters stated that

the inclusion of a formal cost-benefit

analysis to determine whether it is

practicable to impose management

restrictions on a damaging fishing

activity goes beyond the statute. Costs to

industry and costs to the environment

cannot be directly compared because

they are measured differently.

Commenters pointed out that the

legislative history indicates that while

the term ‘‘to the extent practicable’’ was

intended to allow for the consideration

of costs; it was not a requirement that

the benefits justify the costs.

Commenters suggested that the longterm costs to the ecosystem and longterm benefits to the fishery and all

potential users (since this is a public

resource) must be weighed and that

short-term cost to the fishers is only one

of many factors that must be considered.

Response: NMFS agrees that the

Magnuson-Stevens Act does not require

a formal cost/benefit analysis or a
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66539

demonstration that the benefits of

minimizing adverse impacts justifies the

costs to fishers. In considering

management measures, Councils should

evaluate the long-term benefits to the

habitat and the managed species

(including long-term benefits to the

fishery), as well as short-term economic

consequences to the fishery. This

provision is intended to simply focus

Council attention on costs and benefits

consistent with national standard 7,

which requires consideration of costs

and benefits in the development of

conservation and management

measures. Further, Executive Order

(E.O.) 12866 requires NMFS to regulate

in the most cost effective manner to

achieve the regulatory objective. The

rule has additional clarifying language

to avoid the interpretation that a formal

cost/benefit analysis must be completed

before taking action.

Comment: Several commenters urged

that immediate management measures

should be taken as precautionary

measures against further EFH

degradation, rather than waiting for

Councils to identify and describe EFH,

and assess gear impacts on EFH. Many

commenters identified specific gear

types that should be immediately

banned or restricted.

Response: Councils must know what

types and locations of habitats

constitute EFH before they will be able

to act to prevent, minimize, or mitigate

adverse impacts from either fishing or

non-fishing activities on EFH. Banning

a gear type to protect EFH before it is

identified, in an FMP and without

assessment of adverse impacts, is

contrary to the Magnuson-Stevens Act.

The interim final rule presents a logical

progression for description and

identification of EFH, identification of

adverse impacts to EFH, and

development of management,

conservation, or enhancement measures,

as appropriate.

15. Comments Objecting to Listing of

Specific Fishing Gears/Diving as Fishing

Impacts

Comment: Commenters opposed the

listing of diving or specific fishing gears

as potentially causing adverse impacts

that would require fishing restrictions.

Dive groups commented that

commercial diving should be

distinguished from recreational diving,

or that diving should not be listed at all.

Commenters suggested that anchoring

on artificial reefs was as damaging as

the other examples listed and that it

should also be included in the list of

potential restrictions.

Response: The intent of this language

was to provide the Councils with some

examples of typical activities that have

the potential to adversely affect diverse

types of EFH (e.g., careless divers and

snorkelers have been widely

documented to cause adverse effects on

coral reef habitats). However, NMFS

agrees that it is more appropriate to

address these considerations in a

broader manner. As a result, the

language in the interim final rule was

modified to present general options that

Councils should consider in

determining appropriate management

measures. These general options are

illustrative only, many activities may

result in habitat-specific impacts.

Councils should examine all practices

that may contribute to EFH degradation

and act to minimize the impacts as

appropriate.

16. Comments on Marine Fishery

Reserves as Options for Managing

Adverse Effects From Fishing

Comment: Many commenters,

primarily individuals, fishing groups,

and conservation groups, requested that

language be added to the interim final

rule to clarify that Councils are not

restricted from considering closed areas

(Marine Protected Areas, Marine Fishery

Reserves, No-Take Zones, or Research

Closure Areas) as management tools for

protection of habitats and habitat

functions and for enhancing recovery of

overfished species, as well as for

conducting research. Commenters felt

that a statement in the preamble of the

proposed rule which stated, ‘‘NMFS has

clarified that the intent [of the

regulation] is not to preclude fishing in

areas identified as EFH,’’ could be

interpreted to mean that fishing or

specific fishing gears would never be

restricted in any area. Commenters

indicated that establishment of such

zones is supportive of a precautionary

approach to habitat conservation where

there is uncertainty on the extent and

degree of impacts that occur from

fishing. They suggested that early

establishment of such zones could

protect areas and stocks from further

impacts while additional information is

gathered. Additional commenters

suggested that NOAA’s National Marine

Sanctuaries and National Estuarine

Research Reserves and the

Environmental Protection Agency’s

National Estuary Program provide sites

that should be utilized for research

areas. These areas are the focus of

current research efforts and many have

extensive databases on habitat types and

usage within the reserve areas.

Response: The interim final rule

continues to advocate research closures

areas and other measures, as

appropriate, to evaluate the impact of

fishing equipment and techniques on

EFH. The regulations continue to

encourage Councils to consider time/

area closures as management tools for

minimizing impacts of fishing gears on

EFH. The language in the preamble of

the proposed rule, ‘‘* * * that the

intent [of the regulation] is not to

preclude fishing in areas identified as

EFH,’’ was intended to confirm that

identification of an area as EFH did not

automatically bring restrictions on

fishing in the area. NMFS altered the

language in the interim final rule to

clarify that Councils are encouraged to

consider marine protected areas as

management tools for habitat

conservation as well as management of

fishing practices. Currently established

Federal and state research areas (e.g.,

National Marine Sanctuaries or

Estuarine Research Reserves) should be

evaluated as logical locations for

additional studies.

17. Comments on the Statutory

Authority To Address Adverse Impacts

on EFH From Non-Fishing Activities

Comments: Many commenters,

primarily non-fishing industry groups,

did not agree that the MagnusonStevens Act provided NMFS or the

Councils the statutory authority to

comment and make recommendations

on non-fishing activities. They proposed

that the sections regarding identification

of adverse impacts from non-fishing

activities and consultation be deleted in

their entirety.

Response: NMFS disagrees for a

number of reasons. First, one of the

stated purposes of the MagnusonStevens Act is to promote the protection

of EFH through the review of projects

conducted under Federal permits,

licenses, or other authorities that affect,

or have the potential to affect, such

habitat. These projects would include

non-fishing activities. Second, the

Magnuson-Stevens Act, in section

303(a)(7), requires that FMPs identify

conservation and enhancement

measures for EFH. These measures are

not limited by statute to addressing only

fishing activities. A necessary first step

to identifying conservation and

enhancement measures is to identify

adverse impacts that will require

conservation and enhancement

measures to adequately promote the

protection of EFH. Therefore, a logical

extension of the Magnuson-Stevens Act

requirement to identify conservation

and enhancement measures is the

consideration of adverse impacts from

non-fishing activities that would

necessitate the use of such measures.

Third, the requirements for

coordination, consultation, and
66540 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

recommendations relate directly to nonfishing actions. The Magnuson-Stevens

Act requires that other Federal agencies

consult with the Secretary and then

consider and respond in writing to the

Secretary’s EFH conservation

recommendations regarding actions that

may adversely impact EFH. These

actions will be non-fishing actions.

Therefore, the EFH amendments must

include consideration of adverse

impacts from non-fishing activities to

aid NMFS and the Councils when they

are consulting/commenting on actions

that may adversely impact EFH.

18. Comments on Different Levels of

Scrutiny of Non-Fishing Impacts

Comment: Many non-fishing interests

commented that their impacts on EFH

were being held to a higher standard

than adverse impacts from fishing,

because NMFS does not have to

determine whether it is practicable to

minimize or mitigate the adverse impact

before providing a recommendation.

The commenters were also concerned

that too much emphasis is placed on

non-fishing adverse impacts on EFH.

Response: Non-fishing and fishing

impacts are held to two different levels

of scrutiny because of legal differences

in how the impacts are addressed.

Fishing impacts, as required by the

Magnuson-Stevens Act, must be

minimized to the extent practicable by

implementing conservation and

management measures. For non-fishing

activities, NMFS is required to provide

EFH conservation recommendations to

action agencies for all actions that may

have an adverse impact on EFH. NMFS

and the Councils control fishing

activities through regulation, whereas

recommendations by NMFS and the

Councils on non-fishing activities are

advisory. The action agency then

considers NMFS’ recommendations

according to its statutory requirements.

The emphasis placed on non-fishing in

the coordination, consultation, and

recommendation process will depend

on the level of impact from each.

19. Comments on the Identification of

Specific Industries With Potential

Adverse Effects on EFH

Comments: Many commenters

objected to their particular industries or

activities being highlighted in the

proposed rule as having potential

adverse effects on EFH. Many pointed

out that non-fishing activities do not

always adversely impact fish habitat.

Some forest industry groups pointed out

that they are involved in restoration of

anadromous fish habitats. Oil and gas

industry commenters pointed out that

oil platforms have been documented as

artificial reefs that support fish

populations and therefore produce

positive effects on fisheries, not adverse

effects.

Response: NMFS acknowledges that

many industries take certain actions

specifically to improve fish habitat even

if other activities conducted by the

industry may adversely affect fish

habitat. Therefore, NMFS agrees that the

language of the rule should be more

generic and that the types of activities

that have been demonstrated to have

potentially adverse effects on EFH

should be highlighted for the Councils

in the interim final rule rather than

identifying the industries that may

engage in these activities. NMFS revised

this section to clarify that its intent is to

avoid, minimize, or compensate for

adverse impacts on EFH. The rule

avoids singling out specific industries

just because they have the potential to

adversely impact EFH.

20. Comments on Cumulative Impacts

Analysis

Comments: Several commenters were

concerned that the relationship between

the required analysis of cumulative

impacts and EFH was not clearly

specified. Many cited an ecological risk

assessment as a lengthy, expensive

procedure that would tell little about

EFH. Some commenters asked NMFS to

provide criteria for conducting an

ecological risk assessment.

Response: NMFS has clarified the

cumulative impacts analysis

requirements in the rule. Cumulative

impacts analysis is intended to monitor

the effect on EFH of the incremental

impacts, occurring within a watershed

or marine ecosystem context, that may

result from individually minor but

collectively significant actions. The

assessment of ecological risks is

intended in a generic sense to examine

actions occurring within the watershed

or marine ecosystem that adversely

affect the ecological structure or

function of EFH. The assessment should

specifically consider the habitat

variables, previously noted while

describing and identifying EFH, that

control or limit a managed species’ use

of a habitat. It should consider the

effects of all impacts that affect either

the quantity or quality of EFH. The term

‘‘ecological risk assessment’’ was not

meant to be interpreted in the stricter

toxicological sense. NMFS will continue

to develop further criteria for

conducting an ecological risk

assessment.

21. Comments on Mapping of

Cumulative Impacts Analysis

Comments: Some commenters

thought the requirement to map adverse

impacts should be discretionary. Others

thought it should be deleted altogether.

Response: NMFS disagrees and

considers mapping of the impacts to be

one of the most important ways to

analyze the data and to easily share the

information with other resource

management agencies and the public. It

is also an efficient way to track

cumulative effects over time and detect

when effects are reaching threshold

limits. The rule has been revised to

clarify that the mapping requirements

are strongly encouraged.

22. Comments on the Options for

Conservation and Enhancement of EFH

Comments: Several commenters were

concerned about the broad examples

given in this section. They

recommended that FMPs address sitespecific activities because an activity

might adversely impact EFH under

certain conditions and not under others.

Other commenters expressed concern

that statements suggesting that certain

activities (such as diversion of fresh

water) always produce adverse effects

did not reflect their regional

perspective. There were many

comments about the examples used and

questions over whether these were the

best or even proper examples. There

were many suggestions of different

examples to include in the rule. Several

commenters were concerned that NMFS

was mandating best management

practices for non-fishing activities.

Response: NMFS recognizes that this

section did not provide the clarity that

it intended, and that the listing of

examples, while not meant to be

exhaustive, needs modification. The

section has been revised in the interim

final rule to clarify that the intent of the

section is to provide examples of

proactive and reactive measures to

conserve and enhance EFH. The

revisions focus on avoiding,

minimizing, or compensating for

impacts on EFH derived from activities

both inside and outside of EFH and the

need for Councils to provide

recommendations to address those

impacts. The management measures

listed in this section are intended to be

optional. Certain actions may have

positive or negative impacts on EFH

depending on the location and the

purpose of the action. The effect of

actions should be judged within the

context of watershed planning and/or by

ecosystem considerations.
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66541

Comment: One commenter expressed

concern that habitat creation was listed

as an option to conserve and enhance

EFH.

Response: The Magnuson-Stevens Act

requires NMFS and the Councils to

conserve and enhance EFH. NMFS

believes that, under certain

circumstances, habitat creation is a

viable means to enhance EFH on a

watershed basis.

Comment: One commenter criticized

NMFS for not encouraging proactive

measures to conserve and enhance EFH.

Response: NMFS modified the rule to

include language stating that the

Councils and NMFS will provide

information on ways to improve

ongoing Federal operations.

23. Comments on the Treatment of Prey

Species Under the Proposed Rule

Comments: Several commenters asked

that the proposed rule be modified to

require that EFH be described and

identified for all prey species.

Numerous commenters stated that

habitat for forage species should be

included in an ecosystem approach, and

mapped as well. Other commenters,

against the inclusion of prey, stated that

loss of prey should not categorically be

considered an adverse impact because

the fishery decline could be due to other

factors such as overfishing, rather than

loss of prey. Inclusion of threats to prey,

they commented, exceeds the scope of

the statute. Commenters concerned with

anadromous species stated that

predators should be considered if prey

are included. They stated that this

reflects more of an ecosystem approach

and could take into consideration the

effects of pinniped predation on the

fishery. One Council asked NMFS to

clarify that Councils may not place

harvest limits on prey species unless the

prey species is managed under an FMP.

Response: NMFS continues to

maintain that describing and identifying

separate EFH for prey species not

included in an FMU is beyond the scope

of the Magnuson-Stevens Act. However,

NMFS recognizes the importance of

prey to the managed species. The

statutory definition of EFH includes

‘‘feeding’’ as an ecological function of

EFH necessary to a species. Therefore,

presence of adequate prey is one of the

biological properties that can make a

habitat essential. It is appropriate to

consider loss of prey as an adverse

impact to a managed species’ EFH

because the species would not be able

to use the habitat for feeding. Therefore,

the rule requires Councils to identify

prey species for managed species in the

FMU and the habitats of major prey

species. Councils must address threats

to the prey species and its habitat if

there is evidence that such adverse

effects may lead to a decline in the prey

species population and by extension

reduce the quality of a managed species’

EFH. These threats should be covered

under the adverse effects section of the

EFH amendment.

A requirement to describe and

identify EFH for predators is not

authorized by statute, and therefore, not

included in the rule. In identifying EFH

through an ecosystem approach,

however, NMFS does suggest that

Councils consider the extent to which

the managed species is prey for other

managed and non-managed species or

marine mammals in determining the

habitat necessary to support a

sustainable fishery and the managed

species’ contribution to a healthy

ecosystem. Predators of managed

species need to be considered a source

of natural mortality inherent in the

ecosystem. The MMPA does include

provisions which address the

interactions between marine mammals

and other species. NMFS is able to

address these interactions through that

statute.

24. Comments on Vulnerable Habitats

(Habitat Areas of Particular Concern)

Comment: Some commenters asked

for a definition of ‘‘vulnerable habitat’’

and wanted to know how broad this

category may be. Other commenters

supported the identification of

vulnerable habitats or prioritizing

actions in ‘‘areas of special concern’’

and suggested that important habitats be

ranked. Some commenters asked for

guidance in determining whether a

habitat type is vulnerable. They asked

that impacts analyses consider both

fishing and non-fishing impacts as

human-induced degradation in

vulnerable habitats. Some commenters

thought that an additional level of

habitat delineation, as envisioned with

the identification of vulnerable habitats

would add confusion, and thought that

this was beyond the scope of the statute.

Response: Comments on the

Framework indicated a need for

prioritizing the habitats and

determining which should be given

greatest attention in the coordination

and consultation process when little is

known about a species’ distribution.

The vulnerable habitat provision was

added to the proposed rule to address

these concerns. After consideration of

comments on the proposed rule, NMFS

has refined this concept to include

ecological function of the habitat along

with considerations of vulnerability. In

the rule, NMFS renamed vulnerable

habitats as ‘‘habitat areas of particular

concern’’ (HAPC). In determining

HAPCs, Councils should consider

ecological value of a type or area of

EFH, its susceptibility to perturbation

from both anthropogenic (humancaused) sources and natural stressors,

and whether it is currently stressed or

rare. HAPC criteria are outlined in the

interim final rule. NMFS will elaborate

on these criteria in internal technical

guidance.

These HAPCs can be used to focus the

conservation, enhancement,

management, and research efforts of

NMFS and the Councils, as well as the

consultation requirements of the Federal

action agencies and EFH conservation

recommendations. These areas should

be a primary focus to provide insight

into relationships between key habitat

characteristics and ecological

productivity or sustainability and the

ways in which human activity adversely

affects such habitat and its contribution

to population productivity.

25. Comments on Research Needs and

FMP Amendments and Updates

Comment: Commenters suggested

annual reviews of research needs and

assessments of progress towards

meeting those needs. Other commenters

were concerned that reviewing EFH

sections of FMPs at least once every 5

years is too long.

Response: The proposed rule states

that reviews of EFH sections of FMPs

must be completed as recommended by

the Secretary, at least once every 5

years. NMFS considers this amount of

time appropriate and has maintained it

in the rule. Councils are strongly

encouraged to include interim reviews

of EFH information needs during annual

reviews of Stock Assessment and

Fishery Evaluation (SAFE) reports.

NMFS will work to develop an

appropriate format for future SAFE

reports to address the requirements

under the Magnuson-Stevens Act EFH

mandate.

Comment: One Council commented

that Councils should have the option of

including a framework adjustment

mechanism in the EFH amendment to

allow for more timely changes in

management measures.

Response: NMFS agrees that

framework amendments may be an

appropriate way to institute

management measures to conserve and

enhance EFH.

Comments: Commenters called for

incentives to encourage research to

address gear effects and management

measures to minimize adverse impacts.

They suggested that a schedule be

established under which the Councils or

industry will be obliged to conduct the
66542 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

necessary research that will indicate the

extent, if any, of impacts caused by

fishing sectors. As written, there is no

incentive to conduct further research.

They feel there is a disincentive,

because findings of impacts could be

used to restrict a fishery.

Response: To address this concern the

interim final rule specifies that, as part

of a Council’s assessment of impacts

caused by fishing, a schedule should be

developed detailing the Council’s plan

to collect any missing information.

Regular reporting of progress toward

meeting these research goals will

provide added incentive for Councils to

conduct added research. A standardized

schedule for all FMPs would not be

useful since existing data and research

needs regarding each fishery’s impacts

to different habitats vary greatly both

within and among regions.

Comments: Some commenters asked

that research needs be categorized and

that cost estimates be included in FMPs.

Many commenters stressed that gear

effects research is needed.

Response: In developing research

recommendations in FMPs, the interim

final rule encourages Councils to

prioritize research needs. The interim

final rule does not require cost

estimates; however, Councils may

include budget information if they

choose. Fishing gear-effects research

should be considered, along with

research on habitat utilization, habitat

availability, and adverse impacts from

non-fishing activities. Research should

be conducted on all types of fishing

impacts, including recreational and

commercial fishing equipment or

practices, however relative impacts

should be prioritized and research

should address needs accordingly.

26. Comments on Development and

Review of NMFS EFH Recommendations

to Councils

Comments: Many commenters stated

that a public process must be available

for participation in the development

and review of EFH recommendations.

They sought participation outside of the

Council process. They want all

stakeholders to be involved in the

development of recommendations.

Some state resource agencies

commented that, prior to approval of

recommendations, public meetings

should be held in each state. Some

commenters suggested that conservation

groups should be specifically listed as

interested parties, and some

commenters suggested that any

potentially impacted party should be

contacted so that they could review the

recommendations.

Response: The proposed rule stated

that the NMFS draft recommendation

will be made available for public

review. The interim final rule continues

to suggest that the public review process

be coordinated with Council meetings

in order to accommodate those user

groups most closely associated with the

regulation. Stakeholders that have not

previously been involved in the Council

process are not precluded from

participating. Where appropriate,

additional meetings outside the Council

process may be held. Individual

meetings in every state may not be

practicable, but where feasible, should

be considered, as is standard practice

with many Council proceedings.

Contacting individual stakeholders to

extend the review process is not

practicable. It is incumbent upon

stakeholders to take the initiative and

become involved in the EFH process.

Comment: One commenter criticized

NMFS for establishing a standard of

‘‘best available scientific information’’

for NMFS EFH conservation

recommendations to Councils. The

commenter pointed out that this

standard is stricter than that established

in § 600.815(a)(2)(i).

Response: NMFS agrees and has

modified the rule to allow other

appropriate information to be used.

However, NMFS will evaluate the

quality of information in determining if

it is appropriate to use.

27. Comments on Authority To Issue the

Coordination, Consultation, and

Recommendation Section

Comment: Many non-fishing industry

representatives doubted the Agency’s

legal authority to issue regulations for

the consultation process, including the

requirements that Federal action

agencies prepare EFH Assessments or

participate in a dispute resolution

process.

Response: First, NMFS does have

authority to issue the coordination,

consultation, and recommendation

regulations. Section 305(d) of the

Magnuson-Stevens Act gives the

Secretary the authority to issue

regulations to carry out any provision of

the Act. This rulemaking authority

applies directly to the EFH

coordination, consultation, and

recommendation provisions of the

Magnuson-Stevens Act.

The provision calling for dispute

resolution has been retitled ‘‘further

review’’ in the interim final rule to

clarify that a formal dispute resolution

is not envisioned. Further review is not

required each time agencies disagree. It

is an option available to reach

agreement only if both agencies so

choose. Information in an EFH

Assessment is needed to allow NMFS to

fulfill its requirement to provide EFH

conservation recommendations to a

Federal or state action agency. Thus, the

requirements calling for EFH

Assessments and further review are

mechanisms to improve the efficiency of

the consultative process.

28. Comments on the Inclusion of

Coordination, Consultation, and

Recommendation Procedures

Comments: Many comments from

non-fishing industries suggested that

NMFS develop the consultation

regulations at a later time. Some

suggested that the EFH guidelines to

Councils and the regulations detailing

the coordination, consultation, and

recommendation procedures should be

published separately.

Response: Within section 305(b), the

Magnuson-Stevens Act requires

Councils to amend FMPs in order to

describe, identify, conserve, and

enhance EFH, and requires Federal

action agencies to consult with NMFS if

their actions may adversely affect EFH

identified in FMPs. Developing the

consultation regulations at a later date

would be neither efficient for

implementing the Magnuson-Stevens

Act, nor clear to the public. Including

the consultation provisions in this

rulemaking allows the public and

affected parties to fully understand the

significance and effect of an area being

identified as EFH in an FMP.

Description and identification of EFH

does not automatically require increased

management measures (for fishing) or

consultation (for non-fishing) except

when Federal or state actions may

adversely impact the quality or quantity

of EFH. In those cases, it is important

for the Councils and the action agency

to understand completely the

procedures involved. Therefore, NMFS

considers it necessary for the

development of the two sections to

proceed in parallel. Moreover, between

completion of this interim final rule and

before the first required consultations,

NMFS and the Councils will need to

develop memoranda or other

agreements with Federal and state

agencies on how to work within or

modify existing consultation procedures

and in developing general concurrences,

consistent with the rule. The Councils

and NMFS will also need to establish

procedures to coordinate sharing of

information, tracking of projects, and

development of conservation

recommendations. NMFS does

acknowledge that the coordination,

consultation, and recommendation

provisions for action agencies and
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66543

guidelines to the Councils may be

clearer and better presented by

assigning them to separate subparts (J

and K) of 50 CFR part 600.

29. Comments on Use of Existing

Consultation/Environmental Review

Procedures

Comments: Many non-fishing groups

and one government agency commented

that the proposed consultation process

was burdensome and duplicative

because it did not recognize existing

procedures that may fulfill the

Magnuson-Stevens Act mandate that

Federal action agencies must consult

with NMFS on actions that may

adversely impact EFH.

Response: The coordination,

consultation, and recommendation

procedures in the proposed and interim

final rules reflect the Magnuson-Stevens

Act’s mandate. The proposed rule

included a provision that EFH

consultation may be consolidated with

other existing consultation and

environmental review processes. To

clarify that it is NMFS’ intention to use

existing processes whenever

appropriate, the interim final rule

contains language strongly encouraging

the use of existing consultation and

environmental review processes to

fulfill the EFH consultation

requirements. The procedures will not

be duplicative because only one review

process will be used.

Existing Federal statutes such as the

FWCA, ESA, and National

Environmental Policy Act (NEPA)

already require consultation or

coordination between NMFS and other

Federal agencies. Therefore, the need for

Federal agencies to evaluate the effects

of their actions on fish and fish habitat

is not a new requirement imposed by

the Magnuson-Stevens Act. As required

by section 305(b)(1)(D) of the

Magnuson-Stevens Act, NMFS will

coordinate with, and provide

information to, other Federal agencies

on conservation and enhancement of

EFH. This will include distribution of

maps, tables and narrative descriptions

of EFH. The EFH FMP amendments,

which will be widely available at all

NMFS Regional offices (see ADDRESSES),

the NMFS Office of Habitat

Conservation, Council offices, and other

locations such as the World Wide Web,

will provide additional information to

assist Federal agencies in the

assessment of their actions. FMPs will

describe EFH and identify those

characteristics of EFH that control or

limit the habitat’s use by a managed

species. Action agencies can use this

information to determine if, and how,

an action will affect EFH. Thus, EFH

consultation should not be burdensome,

since it will use readily available

information that may be incorporated

into the same processes that are

currently invoked to satisfy existing

review requirements.

Comments: Several industry groups

commented that the EFH coordination,

consultation, and recommendation

process will mean additional

restrictions on non-fishing industry

activities and will not result in any

benefit to EFH.

Response: The coordination,

consultation, and recommendation

process itself will not automatically

impose additional restrictions, because

NMFS’ and the Councils’ EFH

conservation recommendations are nonbinding. However, one of the purposes

of the Magnuson-Stevens Act is to

promote the protection of EFH in the

review of projects that require Federal

or state action. Accordingly, Federal and

state action agencies must give NMFS’

and the Councils’ comments and EFH

conservation recommendations due

weight in their decision-making process.

After consideration, Federal or state

action agencies may recommend

modifications of any actions with

adverse effects on EFH, in order to

conserve EFH. Benefits to EFH will

depend on the extent to which these

recommendations are followed.

Comments: Many environmental

groups commented that NMFS’

recommendations should be mandatory

and that NMFS should be able to either

stop a project based on adverse effects

on EFH or postpone it pending

completion of consultation.

Response: The Magnuson-Stevens Act

does not provide such authority.

Therefore, NMFS’ EFH conservation

recommendations are not mandatory,

and NMFS has no authority to stop a

project based on adverse effects on EFH.

Comment: One environmental group

suggested that NMFS EFH conservation

recommendations contain performance

criteria.

Response: Where appropriate, NMFS

EFH conservation recommendations

will contain performance criteria.

Comments: Several agencies and

many industry representatives

commented that actions covered by

other consultation procedures should be

exempt from EFH consultation or

covered by a General Concurrence.

Many industry groups or resource

management programs requested a

blanket exemption for their activities.

Response: A purpose of the

Magnuson-Stevens Act is ‘‘to promote

the protection of essential fish habitat in

the review of projects conducted under

Federal permits, licenses, or other

authorities that affect or have the

potential to affect such habitat.’’ The

Magnuson-Stevens Act does not provide

exemptions from its consultation

requirements in section 305(b)(2).

Therefore, NMFS has no authority to

exempt any actions from the

consultation requirement. Existing

environmental consultation procedures

do not necessarily ‘‘promote’’ the

protection of EFH. The rule is

sufficiently flexible to consolidate EFH

requirements with those environmental

review procedures that do promote EFH,

or that are modified to conform to the

EFH consultation requirements. To

address programs or groups of actions

that have minimal adverse effects on

EFH, the interim final rule allows NMFS

to issue a General Concurrence rather

than review each of these actions

separately.

Comment: One Council commented

that the Coastal Zone Management Act

(CZMA) consistency process be cited as

an existing environmental review that

may be used to evaluate adverse impacts

from Federal activities.

Response: The CZMA consistency

process is a state-run program which

would not be appropriate for NMFS to

use to evaluate Federal actions.

However, NMFS recognizes that state

CZM programs may be helpful in

learning of, and providing

recommendations on, state actions that

may adversely impact EFH, and has

included this in the rule. Moreover,

through joint permitting processes used

by many Federal agencies, NMFS

attends monthly permit review meetings

along with state CZM representatives.

NMFS encourages exchanges of this

type.

Comment: Four commenters would

prefer that the consultation procedures

focus on only those activities with the

potential for the most significant

impacts.

Response: NMFS agrees that effective

coordination, consultation, and

recommendation will require

prioritization of efforts. The three-tiered

consultation process (GCs, abbreviated

consultation, and expanded

consultation) is intended to focus effort

on those activities with the greatest

potential to adversely affect EFH. If

HAPCs are identified in an FMP, NMFS

and the appropriate Council may use

these as areas to further focus the

consultation procedures.

Comments: Several environmental

groups commented that states should be

subject to the same consultation

requirement as Federal agencies. Those

commenters also asked for more details

on state roles in the consultation

process.
66544 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

Response: The Magnuson-Stevens Act

does not require that states consult with

the Secretary. NMFS and the Councils

are required to provide EFH

conservation recommendations to states

on activities that may adversely affect

EFH. This is why the rule suggests

establishing formal agreements with

states to inform NMFS and the Councils

of such activities. The Secretary and the

state may also enter into agreements to

promote the protection of EFH.

Comment: One Council commented

that NMFS should keep a record of

Federal and state actions for which it

provides recommendations.

Response: NMFS agrees and plans to

establish a system to track the

disposition of its recommendations.

Comment: One commenter asked

whether it was NMFS’ responsibility to

develop agreements with states to

facilitate providing recommendations

on state actions that may adversely

impact EFH.

Response: It is NMFS’ responsibility

to develop such agreements.

Comment: One commenter stated that

NMFS should separate the consultation

functions from the recommendation

functions.

Response: The requirement in the

Magnuson-Stevens Act for Federal

agencies to consult with NMFS is

immediately followed by the provisions

that Councils and NMFS provide

recommendations to Federal action

agencies. The two are also linked

because consultation is the main way

NMFS receives information about

actions that may adversely affect EFH.

NMFS must provide EFH conservation

recommendations for these actions.

Congress clearly intended that these

activities be linked; therefore, NMFS

continues to link the requirements in

the rule.

30. Comments Regarding Federal

Actions Requiring Consultation

Comment: Many state and Federal

agencies and several non-fishing

industries questioned when EFH

consultations would begin, whether

ongoing or delegated Federal actions

require consultation, and to what extent

Federal funding may trigger

consultation.

Response: No consultation is required

until the Secretary has approved an

FMP amendment identifying EFH. The

Councils are required to submit these

amendments to the Secretary by October

11, 1998. Once EFH is identified,

completed actions such as issued

permits do not require consultation.

Permit renewals, modifications, or

reviews are a Federal action that could

result in further consultation. Delegated

programs will require consultation at

the time of delegation or renewal of

delegation. All Federal funding for

programs that may have an adverse

effect on EFH will trigger consultation.

NMFS encourages agencies funding

programs that may adversely affect EFH

to initiate programmatic consultation to

evaluate their programs. Once funds are

dispersed to a non-Federal entity, they

are no longer considered Federal funds.

Therefore, non-Federal entities

receiving Federal funds for certain

actions are not required to consult on

these actions.

Comments: Several commenters

expressed concern about requiring EFH

consultation for actions not actually

occurring in EFH.

Response: The Magnuson-Stevens Act

requires consultation for all actions that

may adversely affect EFH, and it does

not distinguish between actions in EFH

and actions outside EFH. Any

reasonable attempt to encourage the

conservation of EFH must take into

account actions that occur outside of

EFH when those actions may have an

adverse effect on EFH. Therefore, EFH

consultation is required on any Federal

action that may adversely affect EFH,

regardless of its location. An adverse

effect on EFH must be reasonably

foreseeable before consultation is

required.

31. Comments Regarding Participation

in the Consultation Process

Comments: Several individuals and

non-fishing interests expressed concern

that the rule allowed no clear role for

applicants, private landowners, or the

conservation community in the

consultation process. Those commenters

urged more opportunities for public

participation.

Response: NMFS’ coordination,

consultation, and recommendation

procedures include opportunities for

public involvement, and all Council

meetings are open to the public. Most

existing environmental review

processes, which can be used to satisfy

the EFH consultation requirements,

already include opportunities for

applicants and the public to participate,

(e.g., permit reviews under the Clean

Water Act section 404 program).

Additionally, § 600.905(c)(2) of the rule

allows a designated non-Federal

representative of a Federal action

agency to participate in consultation or

preparation of an EFH Assessment. This

non-Federal representative could be an

applicant or landowner.

Comment: A few commenters

requested that the rule clarify the role of

Councils in the EFH coordination,

consultation, and recommendation

process.

Response: The Magnuson-Stevens Act

does not require Federal action agencies

to consult with Councils on actions that

may adversely affect EFH. However, the

Act authorizes Councils to provide

comments and recommendations on

Federal or state activities that may affect

fish habitat, including EFH, and

requires Councils to comment and

provide recommendations if the activity

may affect anadromous fish habitat.

NMFS included a specific section on

coordination between the Councils and

NMFS in the interim final rule. The

Councils are viewed as integral partners

in the entire EFH process. Councils will

have a significant role in describing and

identifying EFH, in considering threats

to EFH, and in selecting conservation

measures to enhance EFH. The rule

encourages the establishment of

agreements between the Secretary and

appropriate Council(s) to facilitate

provision of Council EFH conservation

recommendations to Federal and state

agencies.

Comment: Several non-fishing

industry groups were concerned that the

Councils might institute their own,

completely different consultation

process. Those commenters urged that

NMFS should be the only point of

contact.

Response: The Magnuson-Stevens Act

does not require Federal agencies to

consult with the Councils, although

Federal agencies are required to respond

to Council comments and

recommendations. NMFS and the

Councils will be developing agreements

to minimize duplication when dealing

with action agencies, but Councils will

have the ability to act on their own.

32. Comments on the Determination of

Adverse Impact

Comments: Several commenters asked

that the rule clarify who determines

adverse effects.

Response: The action agency is

responsible for making an initial

determination of whether its activity is

going to have an adverse effect on EFH.

If NMFS becomes aware of an action

that appears to have an adverse effect,

and the action agency has not initiated

consultation, NMFS may advise the

action agency of its concerns and

request the initiation of consultation. If

the action agency does not initiate

consultation, NMFS still has the

responsibility to provide EFH

conservation recommendations to

which the action agency must respond

within 30 days of receipt. The rule

contains additional language to clarify

this process.
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66545

33. Comments on the Use or

Development of General Concurrences

(GCs)

Comments: Several commenters felt

the criteria for GCs were ambiguous.

Response: The wide range of actions

that may affect EFH makes it impossible

to implement more specific criteria for

GCs. GCs, established for actions that

cause no greater than minimal adverse

impact on EFH, will be developed on a

case-by-case basis in response to

specific programs, activities, habitats,

species, and areas. GCs developed for

actions that affect HAPCs should be

subject to a higher level of scrutiny. GCs

will be developed through a public

process to allow participation by all

interested parties.

Comment: Several Councils believe

that GCs should not restrict them from

commenting on activities.

Response: GCs are agreements

between Federal action agencies and

NMFS. Each GC will be developed in

coordination with the Councils to

improve agreement on which activities

have minimal impacts both individually

and cumulatively. The informal Council

role in developing each GC is separate

from the Councils’ authority to provide

comments and recommendations to

Federal and state action agencies and

will not restrict Councils from

commenting on any action that may

affect EFH.

Comments: Several commenters

suggested that NMFS should track all

activities covered by GCs.

Response: NMFS will ask each

Federal action agency to track activities

they authorize that are covered by a GC.

Tracking and providing information to

NMFS may be a GC requirement. NMFS

may maintain its own tracking system

for specific issues that warrant special

attention based on geography, habitat

types, species, or other factors.

Comment: An interstate commission

commented that the rule should require

that GCs be reviewed every 5 years. The

commission also suggested that NMFS

clarify that GCs it initiates will be

subject to public review before issuance.

Response: The rule states that NMFS

will periodically review and revise its

findings of general concurrence, as

appropriate. It is NMFS’ intent to

conduct this review at least once every

5 years. The rule also requires that GC

tracking information be made available

to the public annually. Such

information will allow the public to

review GCs prior to NMFS’ review and

revision. Additionally, the rule states

that NMFS will provide an opportunity

for public review prior to the issuance

of a GC, even those initiated by NMFS.

34. Comments on the Use of

Appropriate Level of Consultation

Comment: Several Federal agencies

requested clarification on what triggers

the expanded consultation. They sought

guidance on whether the action agency

or NMFS can initiate expanded

consultation.

Response: The rule has been clarified

to address this comment. Expanded

consultation is appropriate when a

proposed action may have substantial

adverse impacts on EFH. The action

agency determines the appropriate level

of consultation. However, if NMFS feels

that a proposed action will have

substantial effects on EFH and its

concerns are not receiving proper

consideration, NMFS may request

expanded consultation.

35. Comments on EFH Assessments

Comments: Some commenters

supported the standard of ‘‘best

scientific information’’ that is mandated

in the Federal consultation and EFH

Assessment section of the rule. They felt

that all portions of the EFH rule should

specify the same standard.

Response: NMFS applies the best

scientific information standard

throughout the rule. When describing

and identifying EFH, Councils should

seek the broadest possible information

base, since the data are widely scattered

among various state and Federal

agencies, university or private

researchers, and diverse fishery

participants. Best professional judgment

will be required to properly weigh all

data collected regarding habitat usage

for the various life history stages of the

managed species. With respect to

assessing the effects of both fishing and

non-fishing activities on EFH, the rule

states that the best scientific information

available should be used, but that other

appropriate sources of information may

also be considered. This standard is

appropriate and consistent with

national standard 2 that requires all

FMP conservation and management

measures to be based on the best

scientific information available. EFH

Assessments during Federal

consultation should also be based on

best scientific information available. An

action agency’s conclusions regarding

the potential adverse impact of an

action on EFH should be well supported

by relevant research, when available.

Conclusions that are contrary to the

readily available information will not be

considered adequate assessment of

adverse effects.

Comment: One commenter was

concerned that an EFH Assessment

would be required for actions with any

adverse impact on EFH and suggested

that NMFS establish a threshold level of

adverse impact, preferably the NEPA

significance threshold, for when such an

assessment would be required.

Response: The Magnuson-Stevens Act

requires Federal action agencies to

consult with NMFS on any action that

may adversely affect EFH. The

requirement for an EFH Assessment is a

mechanism to improve the efficiency of

the consultation process. The level of

detail in the EFH Assessment should be

commensurate with the potential

impact. If the action’s impacts will be

minimal, then it may qualify for a GC

and no EFH Assessment would be

required.

Comment: One commenter criticized

NMFS for allowing the use of a

completed EFH Assessment for other

similar actions because of temporal and

spatial differences in adverse impacts

on EFH.

Response: The rule states that

completed EFH Assessments may be

used for other actions only if the

proposed action involves similar

impacts to EFH in the same geographic

area or a similar ecological setting.

36. Comments on the Establishment of

Timelines in the Consultation,

Recommendation, and Response

Processes

Comment: Several commenters sought

clarification on timelines for NMFS

action in consultation process. Some

commenters were concerned that the

consultation process would slow

projects. Others expressed concern that

NMFS would delay projects while

preparing their recommendations.

Response: The timelines presented in

the proposed rule have been clarified in

this rule. If an existing process is used

to meet the EFH consultation

requirement, NMFS will work within

that procedure’s specified timelines,

assuming that NMFS receives timely

notification of the action. NMFS has

clearly established timelines for

preparation and submission of its

recommendations during consultation.

For example, the interim final rule

requires NMFS to respond to Federal

action agencies within 30 days during

abbreviated consultation and within 60

days during expanded consultation.

Those timelines may be adjusted based

on mutual agreement between the action

agency and NMFS (e.g., a compressed

schedule for special situations).

Comment: Several commenters

suggested that NMFS should not extend

the time for the consultation process

without concurrence from the Federal

action agency.
66546 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

Response: That has always been

NMFS’s intent and the rule has been

modified to clarify that intent.

Comment: One commenter suggested

that NMFS extend the time required for

a Federal action agency to respond to a

NMFS recommendation from 30 to 90

days.

Response: The deadline for Federal

agency response is established in the

Magnuson-Stevens Act and can not be

extended by regulation.

Comment: One commenter stated that

the rule should clarify that if NMFS

does not respond to a Federal action

agency’s request for consultation, the

action agency may proceed with the

action.

Response: The rule states that Federal

action agencies will have fulfilled their

consultation requirement after submittal

of a complete EFH Assessment to

NMFS. The Magnuson-Stevens Act

requires Federal agencies to consult

with NMFS and NMFS is required to

provide recommendations as part of that

consultation. Federal agencies and

NMFS will follow the requirements of

the statute and the rule.

37. Comments on Supplemental

Consultation

Comment: Three commenters want

supplemental consultation deleted from

the interim final rule.

Response: NMFS reconsidered the

entire consultation process during its

analysis of comments received on the

proposed rule. The Agency concluded

that supplemental consultation is an

important element of the EFH rule. A

Federal action agency must reinitiate

consultation with NMFS if the agency

substantially revises its plans for an

action in a manner that may adversely

affect EFH or if new information

becomes available that affects the basis

for NMFS’ EFH conservation

recommendations. This rule clarifies the

language on supplemental consultation.

38. Comments on NMFS’ EFH

Conservation and Enhancement

Recommendations

Comments: Comments from several

industry interests and one Federal

agency urged NMFS not to recommend

measures that are impracticable, too

costly, or beyond the action agency’s

authority.

Response: NMFS will use scientific

assessments of impacts on EFH as the

basis for conservation

recommendations. NMFS agrees that its

recommendations should be practical

and cost-effective, but it is not NMFS’

statutory responsibility to conduct a

benefit/cost analysis or to do a public

interest test. NMFS expects that action

agencies will make their own decisions

about the practicality and economic

aspects of the EFH conservation

recommendations as part of their review

of proposed actions. NMFS will not

make recommendations that are beyond

the action agency’s authority.

39. Comment on Federal Action Agency

Response to NMFS EFH

Recommendations

Comment: One commenter stated that

NMFS has no statutory authority to

require Federal action agencies to

provide the scientific justification for

disagreeing with a NMFS EFH

conservation recommendation.

Response: As stated previously,

section 305(d) of the Magnuson-Stevens

Act gives the Secretary authority to

issue regulations to carry out any

provision of this Act. Therefore, NMFS

has the authority to issue regulations

detailing how Federal action agencies

should respond to NMFS’ EFH

recommendations. The requirement to

provide scientific justification applies to

disagreements over the anticipated

adverse effects of the proposed action

and elaborates on the requirements of

section 305(b)(4)(B) of the MagnusonStevens Act that a Federal agency

explain its reasons for disagreeing with

the NMFS EFH conservation

recommendation. Federal action

agencies may also include discussions

of non-scientific issues (e.g., lack of

legal authority to carry out the

recommendation or economic in

feasibility) in their response.

40. Comments Regarding the

Interpretation of Anadromous

Comments: Several commenters were

confused by the use of the term

‘‘anadromous fishery resource’’ in the

rule and how such species and their

habitat are covered by the EFH mandate.

Response: NMFS included this

section in the rule to clarify the meaning

of the term ‘‘anadromous fishery

resource under a Council’s authority,’’

as it applies to a Council’s commenting

responsibilities under section

305(b)(3)(B) of the Magnuson-Stevens

Act. Anadromous fish are treated

differently from other fishery resources

in the Magnuson-Stevens Act. Section 3

of the Magnuson-Stevens Act defines

‘‘anadromous species’’ as ‘‘fish which

spawn in fresh or estuarine waters of the

United States and which migrate to

ocean waters.’’ It further defines

‘‘fishery resources’’ as ‘‘any fishery, any

stock of fish, any species of fish, and

any habitat of fish.’’ In § 600.930(c)(4) of

this interim final rule, ‘‘an anadromous

fishery resource under a Council’s

authority’’ is described as an

anadromous species that inhabits waters

under the Council’s authority at some

time during its life. Although EFH is

identified only for species managed

under an FMP, the Magnuson-Stevens

Act requires Councils to comment on

any activity that is likely to

substantially affect the habitat of an

anadromous fishery resource under its

authority.

41. Comments on Extending the

Deadline for Councils To Submit FMP

Amendments to the Secretary

Comments: Several commenters asked

NMFS to extend the deadline for

Councils to submit EFH FMP

amendments to the Secretary one year

beyond the October 11, 1998 deadline.

Response: The Sustainable Fisheries

Act, Pub. L. 104–297, requires that each

Council submit to the Secretary

amendments to each of their FMPs to

comply with the amendments of the Act

by October 11, 1998. The Secretary does

not have the authority to extend this

statutory deadline through regulation.

42. Comment on How the NMFS

National Habitat Plan Relates to

Implementation of the EFH Mandate

Comment: One Council commented

that the rule should discuss the

relationship between the NMFS

National Habitat Plan (NHP) and the

EFH mandate of the Magnuson-Stevens

Act.

Response: The major themes of the

NHP: better integrate habitat and fishery

management; promote habitat

restoration as a routine part of fisheries

and habitat management; expand habitat

conservation to assess and manage

habitat degradation on a watershed

scale; expand understanding of the

interrelationships between habitat

quality and quantity and the healthy of

fisheries, are woven throughout the rule.

43. Comments on Consistency With

Coastal Zone Management Plans

Comments: Several state agencies

commented concerning consistency

with their states’ federally approved

Coastal Zone Management Programs

(CZMP). There was general agreement

that the intent of the rule was consistent

with CZMPs. Several of the state

agencies cautioned that the FMP

amendments and their site-specific

actions that result from compliance with

these regulations would require further

review for consistency.

Response: NMFS agrees with this

analysis. These regulations guide the

Councils in amending FMPs, and detail

procedures for NMFS, the Councils, and

Federal and state action agencies to use

in meeting the EFH requirements of the
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66547

Magnuson-Stevens Act. Analysis of the

effects of specific EFH amendments to

FMPs at this time would be purely

speculative; they are not reasonably

foreseeable. EFH amendments to FMPs

will be submitted to state coastal zone

agencies. CZMP consistency will be

determined for each FMP EFH section,

as is required for all Federal FMPs.

44. Comments on the EA Prepared for

the Rulemaking

Comments: Some non-fishing

industry commenters questioned the

preparation of an EA, rather than an

Environmental Impact Statement (EIS),

and the finding of no significant impact.

Response: In compliance with NEPA,

NMFS prepared an EA for the

regulations implementing EFH

requirements of the Magnuson-Stevens

Act. The environmental review process

led to the conclusion that this action

will not have a significant effect on the

human environment. The rule provides

guidelines to the Councils to assist them

in developing EFH sections in FMPs.

The rule itself does not establish any

new regulatory jurisdiction for NMFS or

the Councils over these habitats, but it

does provide procedures for NMFS, the

Councils, and Federal and state action

agencies to use in coordinating,

consulting, and providing

recommendations on actions that may

adversely affect EFH. NEPA

documentation will be undertaken for

each EFH FMP amendment, as is

currently done, to fully address FMPspecific effects of EFH implementation.

Therefore, an EIS is not required by

section 102(2)(C) of NEPA or its

implementing regulations.

45. Comments on NMFS’ Determination

of Significance for the Purposes of E.O.

12866

Comments: One commenter disagreed

with NMFS’s determination that the

rule is not significant for purposes of

E.O. 12866 because NMFS did not

consider whether the proposed rule was

duplicative or inconsistent with existing

regulations, and interfered with actions

by other agencies. Another commenter

did not give the basis for its

disagreement.

Response: NMFS continues to believe

that the rule does not meet any of the

criteria for a significant regulatory

action established in E.O. 12866,

including those mentioned in the

comment. This rule establishes

procedures for coordination,

consultation, and recommendations to

other agencies on actions that may

adversely affect EFH. The consultations

will be fit into existing procedures

whenever possible, and when this is not

possible, will be fit into the other

agency’s time frame for decisionmaking. The EFH conservation

recommendations are not mandatory,

but will be part of the action agency’s

decision-making process. Therefore, the

rule does not meet E.O. 12866’s

requirements for significance.

46. Comments on NMFS’ Regulatory

Flexibility Act Determination

Comments: One commenter agreed

with NMFS that no regulatory flexibility

analysis needs to be prepared now, but

that regulations affecting EFH will be

subject to the analysis. Other

commenters disagreed with NMFS’

conclusion that the rule would not have

a significant economic impact on a

substantial number of small entities

engaged in non-fishing activities and

requested that NMFS prepare a

regulatory flexibility analysis.

Response: NMFS does not have

mandatory authority over non-fishing

interests. NMFS provides EFH

conservation recommendations to a

Federal or state action agency if their

action may adversely affect EFH. The

action agency considers the

recommendation in its decision-making

process and decides for itself whether it

will impose any requirements on the

entity seeking a permit or license and

assess any economic impact on small

entities. Additionally, the consultation

process itself should not impose any

additional burdens on small businesses

engaged in non-fishing activities

because the Federal action agency will

most likely use existing consultation/

environmental review procedures. If

there are no existing consultation

procedures, then the procedures in the

rule must be used by the Federal

agency. The information requested in

the rule is material that the action

agency already will need to make its

decision on issuing a permit or license.

Therefore, there will be no additional

burden on small businesses engaged in

non-fishing activities.

47. Comments on NMFS’ determination

That a Federalism Assessment is not

Required

Comments: Commenters expressed

the opinion that NMFS’ determination

is incorrect that this rule does not

include policies with federalism

implications requiring preparation of a

Federalism Assessment. This rule does

not contain policies that have a

substantial direct effect on the states, on

the relationship between the National

government and the states, or on the

distribution of power or responsibilities

among the various levels of government.

Some commenters stated that while EFH

conservation recommendations are not

mandatory, the states will be pressured

to comply with the recommendations.

One commenter stated that the process

to guide the agencies is mandatory and

therefore raises federalism issues. Other

commenters raised the concern that

because EFH may be identified in state

waters, and many adverse impacts may

occur there, a federalism assessment

should be prepared.

Response: NMFS disagrees with the

commenters and continues to take the

position that the rule does not contain

policies that have federalism

implications sufficient to warrant

preparation of a Federalism Assessment.

States are not required to consult with

NMFS on their actions that may

adversely affect EFH. As stated in the

Classification section of the rule, NMFS

EFH conservation recommendations are

not mandatory, and states are not

required to undertake action in any way

not of their own choosing.

48. Comments on NMFS Compliance

With the Paperwork Reduction Act

Comments: Two commenters

expressed their opinion that NMFS has

not complied with the Paperwork

Reduction Act (PRA) because the rule

neither displays an Office of

Management and Budget (OMB) control

number nor states that the rule is not

subject to OMB review. They stated that

the proposed rule is clearly a collection

of information subject to the PRA. They

claim that this will be a big burden on

many entities.

Response: Commenters correctly state

that the PRA requires OMB approval

before NMFS may require a collection of

information. However, they overlook the

regulatory definition of information in 5

CFR 1320.3(h)(4) stating that

information does not generally include

‘‘facts or opinions submitted in response

to general solicitations of comments

from the public published in the

Federal Register * * * regardless of the

form * * *’’. The rule clearly fits the

regulatory exemption for information

and therefore is not subject to OMB

approval. As such, it does not need

either an OMB control number or a

statement that the rule is not a

collection of information.

49. Comments on Compliance With the

ESA

Comments: Two commenters stated

they think that promulgation of the rule

is an action that may affect listed

species, requiring consultation under

section 7(a)(2) of the ESA.

Response: NMFS complied with the

ESA by requesting the U.S. Fish and

Wildlife Service (FWS) and NMFS’
66548 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

office that handles ESA issues to concur

with its determination that the proposed

activity is not likely to adversely affect

listed species. Both responded to NMFS

stating their concurrence that the EFH

rule is not likely to adversely affect

listed species.

Changes From the Proposed Rule

The proposed rule contained

guidelines to the Councils and

procedures addressing the requirements

to coordinate, consult, and recommend

under the EFH provisions of the

Magnuson-Stevens Act. The guidelines

to the Councils will be in part 600

subpart J, but NMFS has determined

that the regulations on coordination,

consultation, and recommendation

should be moved to a separate subpart,

K. This provides easier access to the

regulations, clarification of purpose, and

still maintains their proximity to

subpart J so that the implications of EFH

designation are readily apparent. This is

not a substantive change from the

proposed rule.

NMFS reorganized parts of the

coordination, consultation, and

recommendation procedures by

addressing use of existing procedures

before the regulatory requirements for

GCs, and abbreviated and expanded

consultation. The use of existing

procedures section includes more detail.

NMFS reordered this section and

expanded it in response to commenter’s

concerns that consultation could be

duplicative with existing consultation/

environmental review procedures.

Changes made are technical or

administrative in nature and clarify

intent or otherwise enhance

administration of the EFH process.

These changes are listed in the order

that they appear in the regulations;

grammatical or other minor changes are

not detailed. Unless otherwise

discussed, the rationale for why changes

were made from the proposed rule is

contained in the Comments and

Response section.

In § 600.10, ‘‘aquatic’’ was added to

the interpretation of historically used

areas of EFH.

In § 600.10, ‘‘the managed species’

contribution to’’ was added to denote

that the healthy ecosystem is the local

ecosystem in which the managed

species participates.

In § 600.805, references to the

consultation procedures required by the

Magnuson-Stevens Act have been

removed since these regulations have

been separated into a new subpart as

noted above.

In § 600.805, a new paragraph was

added to describe the geographic scope

of EFH and clarify the relationship of

the regulations to Federal waters, state

waters, and extraterritorial waters.

Section § 600.810 was changed to add

‘‘Definitions and Word Usage’’ for terms

specific to this subpart; subsequent

sections were renumbered.

Section 600.815 was renumbered from

§ 600.810.

In § 600.815, paragraph (a)(2)(i)(B),

the phrase ‘‘the habitat requirements by

life stage, and the distribution and

characteristics of those habitats’’ was

added to be consistent with later

sections regarding information on the

habitat; the phase ‘‘but not limited to’’

was added to emphasize that this list is

intended to be illustrative not

exhaustive; ‘‘or formerly occupied’’ was

added to correct the language to agree

with the definition of EFH.

In § 600.815, paragraph (a)(2)(i)(C),

‘‘should’’ was substituted for ‘‘will be’’

to emphasize that Councils should use

information from all levels that are

available.

In § 600.815, paragraph (a)(2)(i)(C)(2),

‘‘relative densities’’ was changed to

‘‘density or relative abundance’’ as more

scientifically acceptable language;

‘‘gear’’ was changed to ‘‘methods’’ to

include different techniques using the

same gear.

In § 600.815, paragraph (a)(2)(ii)(A),

the phrase ‘‘erring on the side of

inclusiveness’’ was deleted because it is

redundant with the concept of

identifying EFH in a ‘‘risk-averse

fashion.’’ Wording has been changed to

clarify that Level 1 information ‘‘should

be used to identify the geographic

range’’ of a species, Levels 2–4

information should be used to identify

EFH within that range. If only Level 1

data exist, appropriate analyses should

be used to identify EFH based on

utilization of habitats. The sentence,

‘‘Councils must demonstrate that the

identification of EFH is based on the

best scientific information available,

consistent with national standard 2’’

was added to clarify that Councils must

use all available information to focus

their identification of EFH.

In § 600.815, paragraph (a)(2)(ii)(B),

references to populations recovering

from ‘‘declines’’ were removed in favor

of the terms ‘‘overfished’’ or ‘‘rebuilding

the fishery,’’ which are more commonly

used fishery management terms. NMFS

added the phase ‘‘and habitat loss or

degradation may be contributing to the

species being identified as overfished’’

to clarify that habitat limitations should

be considered when identifying historic

habitat as EFH. ‘‘Once the fishery is no

longer considered overfished, the EFH

identification should be reviewed, and

the FMP amended, as appropriate’’ was

added to clarify the dynamic nature of

EFH identification.

In § 600.815, paragraph (a)(2)(ii)(C),

‘‘aquatic areas’’ has been added to

clarify that the statutory definition

limits EFH to aquatic portions of

‘‘critical habitat.’’

In § 600.815, paragraphs (a)(2)(ii)(D)

and (E), the phrase ‘‘a sustainable

fishery and the managed species’

contribution to a healthy ecosystem’’

replaced ‘‘target production goal.’’

In § 600.815, paragraph (a)(2)(ii)(E),

the listing of ecological roles to be

considered in determining EFH has

been removed, these ecological factors

are considered broadly in the national

standards. Councils should address

these needs on a case-by-case basis.

In § 600.815, paragraph (a)(2)(ii)(F),

‘‘aquatic’’ is added to qualify ‘‘degraded

or inaccessible habitat’’ to clarify that

this is not intended to be dry land.

In § 600.815, paragraphs (a)(3), (a)(4),

and (a)(5), have been reordered to

strengthen the connections between

EFH identification and description and

the management of fishing activities that

may adversely affect EFH as suggested

by commenters. Non-fishing activities

are addressed under § 600.815(a)(5).

In § 600.815, paragraph (a)(3)(ii), the

phrase ‘‘fishing equipment’’ has

replaced ‘‘fishing gear’’ to encompass all

sources of fishing-related adverse

impacts to EFH; the wording clarifies

that ‘‘best scientific data’’ should be

used but that other ‘‘appropriate

information sources’’ should be

considered. The wording also clarifies

for the Councils that gear assessments

should include effects on all EFH types

potentially impacted (especially HAPC)

and Councils should evaluate relative

impacts.

In § 600.815, paragraph (a)(3)(iii),

‘‘identifiable’’ replaces ‘‘substantial.’’

The phrase ‘‘and cumulative impacts

analysis’’ clarifies that fishing impacts

should be included in an analysis of

cumulative impacts on EFH.

In § 600.815, paragraph (a)(3)(iv)

clarifies that consideration should be

given to long- and short-term benefits

and costs to both EFH and the fishery

when assessing management actions.

‘‘EFH’’ is substituted for ‘‘the marine

ecosystem’’ to improve consistency with

the Magnuson-Stevens Act.

In § 600.815, paragraph (a)(4)(i) is

retitled ‘‘Fishing equipment

restrictions.’’ NMFS replaced the list of

mixed general and specific examples of

fishing types with more general

examples of potential gear restrictions.

In § 600.815, paragraph (a)(4)(ii),

wording was added to clarify that

‘‘marine protected areas’’ can be used

for management of adverse effects on
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66549

EFH, as well as research on fishing

equipment impacts; especially in HAPC.

In § 600.815, paragraph (a)(5) is a

consolidation of § 600.810 (a)(3)

paragraphs (i) and (ii) from the proposed

rule.

In § 600.815, paragraph (a)(5),

illustrative examples of ‘‘activities

which can adversely affect EFH’’ were

made more consistent so that broad

actions, not industries potentially

causing those actions, were highlighted.

The phrases, ‘‘actions that contribute to

non-point source pollution and

sedimentation’’ and ‘‘introduction of

potentially hazardous materials’’ were

added for clarity in place of ‘‘runoff’’

and ‘‘placement of contaminated

material.’’ The mapping provisions

specific to this section were moved from

the Cumulative Impacts Analysis

section of the proposed rule.

Section 600.815, paragraph (a)(6)(i),

clarifies that fishing effects as well as

non-fishing impacts on EFH should be

subject to cumulative impacts analysis,

separately and in concert. NMFS added

the term ‘‘feasible’’ to emphasize that a

cumulative impacts analysis may not be

possible because of technological or

other limitations. NMFS replaced the

phrase ‘‘natural stresses’’ with ‘‘natural

adverse impacts’’. NMFS changed the

wording to avoid misinterpretation of

‘‘ecological risk assessment’’ as a

formalized toxicological test.

In § 600.815, paragraph (a)(6)(ii) was

split out from the cumulative impacts

section to emphasize cumulative

impacts from fishing and to highlight

that HAPCs should be examined for

cumulative effects.

In § 600.815, paragraph (a)(6)(iii)

splits the mapping of cumulative

impacts into a separate paragraph.

In § 600.815, paragraph (a)(6)(iv)

‘‘Research needs,’’ was added to

emphasize that Councils should pursue

research efforts geared to understand

ecosystem and watershed effects on fish

populations and incorporate them into

their protection of EFH if they are

unable to conduct cumulative impacts

analyses.

In § 600.815, paragraph (a)(7) was

renumbered from paragraph (a)(3)(iv)

and reordered. NMFS modified the

language to emphasize that the preferred

approach to EFH conservation should be

to avoid, minimize, or compensate for

adverse effects on EFH from specific

actions to focus EFH conservation

efforts. NMFS added ‘‘especially in

habitat areas of particular concern.’’

In § 600.815, paragraphs (a)(7)(ii)(A),

(B), (C), and (D) have been renumbered

from paragraphs (a)(3)(iv)(A–F) of the

proposed rule reflecting the

incorporation of the wording from

paragraph (a)(7)(ii)(A) (proposed rule)

into the previous paragraph mentioned,

and titles were generally modified for

grammatical consistency. Language was

added to clarify that conservation

measures presented in these paragraphs

are illustrative of measures that

Councils may consider to proactively or

reactively address past or present

adverse effects to conserve and enhance

EFH.

In § 600.815, paragraph (a)(7)(iii)(A)

has been retitled ‘‘Enhancement of

rivers, streams, and coastal areas.’’

Paragraph (a)(3)(iv)(C) from the

proposed rule has been incorporated

into this paragraph. The phrase

‘‘modification of operating procedures

for dikes and levees’’ was added to

clarify that removal is not always the

preferred option for providing fish

passage. The final sentence in the

paragraph was added to emphasize

governmental planning in watershed

management.

In § 600.815, paragraph (a)(7)(iii)(B),

‘‘and quantity’’ has been added to the

title; and ‘‘providing appropriate instream flow’’ has been added to reflect

general options to apply to all regions.

In § 600.815, paragraph (a)(7)(iii)(C),

‘‘subsequent watershed’’ was deleted

from the title. Specific examples have

been replaced by more general examples

of watershed-scale conservation and

enhancement options.

In § 600.815, paragraph (a)(7)(iii)(D),

the example has been deleted since it

may be only regionally applicable;

‘‘(converting non-EFH to EFH)’’ was

added for clarity; ‘‘and degraded’’ has

been added to clarify that such areas

may be appropriate for enhancement

through habitat creation; ‘‘conversion’’

was included as a synonym for

‘‘creation;’’ ‘‘within an ecosystem

context’’ has been added for clarity.

In § 600.815, paragraph (a)(8), ‘‘and

their habitat’’ has been added to better

explain how prey species should be

addressed. Language was added to

explain why adverse impacts to prey

and prey habitat may be adverse

impacts to EFH.

In § 600.815, paragraph (a)(9) has been

renumbered from paragraph (a)(7) of the

proposed rule and retitled

‘‘Identification of habitat areas of

particular concern;’’ language has been

included to denote that HAPC might

include not only those areas especially

vulnerable to degradation, but those that

provide important ecological functions

for one or more managed species; the

paragraphs have been renumbered after

the inclusion of paragraph (i), The

importance of the ecological function

provided by the habitat.

In § 600.815, paragraph (a)(10) has

been renumbered from paragraph (a)(8)

of the proposed rule; ‘‘cumulative

impacts from fishing,’’ ‘‘priority,’’ ‘‘and

a schedule for obtaining that

information’’ have been added;

‘‘equipment’’ replaced ‘‘gear;’’

‘‘maintaining a sustainable fishery and

the managed species’ contribution to a

healthy ecosystem’’ replaces ‘‘reaching

target long-term production levels.’’ All

of these changes were made to ensure

that this section is consistent with other

parts of the rule.

In § 600.815, paragraph (a)(11) has

been renumbered from paragraph (a)(9)

of the proposed rule; ‘‘including an

update of the equipment assessment

originally conducted pursuant to

paragraph (a)(3)(ii) of this section’’ has

been added, as has been ‘‘This

information should be reviewed as part

of the annual Stock Assessment and

Fishery Evaluation (SAFE) report

prepared pursuant to § 600.315(e)’’ and

‘‘complete.’’

In § 600.815, paragraph (c), language

has been added to clarify that NMFS

EFH FMP recommendations may

include ‘‘other appropriate

information.’’ Language was added to

acknowledge differences between

Council procedures in preparing FMPs

and to assure the flexibility to work

within each process.

In § 600.815, paragraph (d) has been

added to encourage coordination with

other fishery management authorities.

The consultation, coordination, and

recommendation provisions in the

proposed rule have been separated out

into a new subpart K of part 600.

Sections 600.905, 600.915, 600.920,

600.925, and 600.930 have been

reorganized from the proposed rule’s

§ 600.815 to provide better access and

understanding to the provisions. Each of

the provisions that applies to a different

part of the Magnuson-Stevens Act has

been separated into a different section to

highlight the different requirements in

response to many commenters who

failed to recognize the distinctions

between coordination, consultation, and

commenting (or providing

recommendations) and the entities

involved in each process.

Section 600.905 has been added to

clarify the intent of these provisions in

promoting the protection of EFH in the

review of Federal and state actions that

may adversely affect EFH.

Section 600.905(c) has been revised

adding language to emphasize

cooperation between Councils and

NMFS in all phases of EFH

implementation. The clarification that

‘‘NMFS and the Councils also have the
66550 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

authority to act independently.’’ has

been added.

Section 600.910 has been added for

definitions and word usage that apply to

this subpart.

Section 600.915 has been renumbered

and expanded to provide the details of

the coordination between NMFS and

other action agencies and to indicate

that NMFS will take a proactive

approach in promoting the conservation

of EFH.

Section 600.920 has been revised to

combine all sections of the Federal

agency consultation provisions in a

more organized fashion. The proposed

rule recommended incorporation of EFH

consultations with other existing

environmental reviews, but this was

overlooked by some commenters. These

sections clarify the details of

appropriate consultation and emphasize

that NMFS’ preference is for

consultations to occur within existing

consultation/environmental review

procedures, whenever possible.

Section 600.920, paragraphs (a) (1)

and (2) were added to provide specific

information on which Federal actions

require consultation, and the use of

programmatic consultation.

In § 600.920, paragraph (d), language

has been added to clarify that ‘‘other

appropriate sources of information may

also be considered’’ when evaluating the

effects of a proposed action on EFH.

In § 600.920, paragraph (f)(1),

‘‘minimal’’ has been changed to ‘‘no

more’’ than minimal.

Section 600.920, paragraph (f)(2)(ii)

clarifies the requirements for tracking

actions included in General

Concurrences.

Section 600.920, paragraph (f)(2)(iv)

explains that in HAPC, activities will be

held to a greater level of scrutiny before

being granted a General Concurrence.

In § 600.920, paragraph (f)(4), ‘‘if

appropriate’’ has been added.

Section 600.920, paragraph (g)(1) has

been rewritten to improve clarity.

Section § 600.920, paragraph

(g)(2)(iv), has been moved from the

Additional information section.

In § 600.920, paragraph (g)(3)(iv),

‘‘particularly when an action is nonwater dependent’’ has been added to

emphasize alternatives when an action

is not water dependent.

In § 600.920, paragraph (h)(1) contains

additional criteria to determine when

abbreviated consultation is appropriate.

In § 600.920, paragraph (h)(2), ‘‘must’’

was changed to ‘‘should’’ and language

was added to clarify when notification

should be sent to a Council.

In § 600.920, paragraph (h)(5),

language on combining EFH

Assessments with other environmental

reviews was deleted because the same

concept is included in § 600.920(e)(2).

In § 600.920, paragraph (i)(1) contains

additional explanation of the intent of

expanded consultation and criteria to

determine when expanded consultation

is appropriate.

In § 600.920, paragraph (i)(3) provides

additional clarification regarding NMFS’

response to Federal agencies during

expanded consultation.

In § 600.920, paragraph (i)(4) clarifies

that there is flexibility in the schedules

for consultation; ‘‘or emergency

situation’’ has been added, and the

NMFS deadline has been changed from

90 to 60 days.

In § 600.920, paragraph (i)(5), ‘‘must’’

has been changed to ‘‘should.’’

Section 600.920, paragraph (j)(2) has

been retitled ‘‘Further review of

decisions inconsistent with NMFS or

Council recommendations’’ from

‘‘Dispute resolution;’’ language has been

added to describe actions available in

the case when an action agency’s

decision is inconsistent with NMFS or

the Council’s EFH conservation

recommendations.

Section 600.920, paragraph (j)(1) has

been rewritten to improve clarity.

In § 600.925, paragraph (c), ‘‘use

existing coordination procedures under

statutes such as the Coastal Zone

Management Act or establish new’’ and

other language has been added to

further encourage the use of existing

procedures to coordinate with state

agencies, and to encourage sharing

information with states.

In § 600.925, paragraph (a), language

has been added stating that NMFS will

not make recommendations beyond a

Federal agency’s authority.

In § 600.925, paragraph (b) has been

added to clarify the relationship

between Federal consultation and

providing EFH conservation

recommendation to Federal agencies.

Classification

The Assistant Administrator for

Fisheries (AA), NMFS, has determined

that this interim final rule is consistent

with the Magnuson-Stevens Act and

other applicable laws.

NMFS prepared an EA for this interim

final rule, and the AA concluded that

there will be no significant impact on

the human environment as a result of

this rule. The regulations contain

guidelines to the Councils for amending

FMPs in accordance with the EFH

requirements of the Magnuson-Stevens

Act, and procedures to be used by

NMFS, the Councils, and Federal and

state action agencies to satisfy the

coordination, consultation, and

recommendation requirements of the

Magnuson-Stevens Act. Any specific

effects on the human environment will

be addressed in NEPA documents

prepared for individual FMP provisions

that are prepared pursuant to this rule.

A copy of the EA is available from

NMFS (see ADDRESSES).

This interim final rule has been

determined to be not significant for the

purposes of E.O. 12866. Each EFH

amendment to an existing FMP and all

new FMPs will contain detailed

analyses of the benefits and costs of the

management programs under

consideration, to ensure compliance

with E.O. 12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule would not have a significant

economic impact on a substantial

number of small entities. NMFS

received comments regarding this

certification. As addressed earlier,

NMFS’ consideration of these comments

did not cause it to change its

determination regarding the

certification. This rule establishes

guidelines for Councils to identify and

describe EFH, including adverse

impacts, and conservation and

enhancement measures. The regulations

require that the Councils conduct

assessments of the effects of fishing on

EFH within their jurisdiction. The

Magnuson-Stevens Act requires the

Councils to examine their existing FMPs

and all future FMPs and amend them as

required to comply with the EFH

guidelines in this rule. These guidelines

are intended to provide direction on

compliance with the EFH provisions

and in themselves, do not have the force

of law. Should Councils establish

regulations on fishing as a result of the

guidelines and the assessment of fishing

equipment, that action may affect small

entities and could be subject to the

requirement to prepare a Regulatory

Flexibility analysis at the time they are

proposed. Any future effects on small

entities that may eventually result from

amendments to FMPs to bring them into

compliance with the Magnuson-Stevens

Act would be speculative at this time.

Finally, the consultation procedures

establish a process for NMFS to provide

conservation recommendations to

Federal and state action agencies.

However, because compliance with

NMFS recommendations is not

mandatory, any effects on small

businesses would be speculative. As a

result, a regulatory flexibility analysis

was not prepared.

For the purposes of E.O. 12612, the

AA has determined that this interim
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66551

final rule does not include policies that

have federalism implications sufficient

to warrant preparation of a Federalism

Assessment. This rule establishes

procedures for coordination between the

states and NMFS or the Councils in

situations where state action may

adversely impact EFH. The rule states

that, in such circumstances, NMFS or

the Councils would furnish the state

with EFH recommendations. NMFS EFH

conservation recommendations are not

mandatory, and the states are not

required to expend funds in a way not

of their own choosing.

References

Christensen, N.L., A.M. Bartuska, J.H.

Brown, S. Carpenter, C. D’Antonio, R.

Francis, J.F. Franklin, J.A. MacMahon,

R.F. Noss, D.J. Parsons, C.H. Peterson,

M.G. Turner, and R.G. Woodmansee.

1996. The report of the Ecological

Society of America committee on the

scientific basis for ecosystem

management. Ecological Applications,

6(3): 665–691.

Grumbine, R.E. 1997. Reflections on

‘‘What is Ecosystem Management?’’

Conservation Biology 11(1): 41–47.

Hancock, D.A. (ed.) 1993. Sustainable

Fisheries through Sustaining Fish

Habitat, Australian Society for Fish

Biology Workshop, Victor Harbor, SA,

12–13 August, Bureau of Resource

Sciences Proceedings, AGPS, Canberra.

List of Subjects in 50 CFR Part 600

Administrative practice and

procedures, Confidential business

information, Fisheries, Fishing, Fishing

vessels, Foreign relations,

Intergovernmental relations.

Dated: December 15, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons stated in the

preamble, the National Marine Fisheries

Service amends 50 CFR part 600 as

follows:

PART 600—[AMENDED]

1. The authority citation for part 600

continues to read as follows:

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

2. Section 600.10 is amended by

adding the definition for ‘‘Essential fish

habitat’’, in alphabetical order, to read

as follows:

§ 600.10 Definitions.

* * * * *

Essential fish habitat (EFH) means

those waters and substrate necessary to

fish for spawning, breeding, feeding, or

growth to maturity. For the purpose of

interpreting the definition of essential

fish habitat: Waters include aquatic

areas and their associated physical,

chemical, and biological properties that

are used by fish and may include

aquatic areas historically used by fish

where appropriate; substrate includes

sediment, hard bottom, structures

underlying the waters, and associated

biological communities; necessary

means the habitat required to support a

sustainable fishery and the managed

species’ contribution to a healthy

ecosystem; and ‘‘spawning, breeding,

feeding, or growth to maturity’’ covers a

species’ full life cycle.

* * * * *

3. New subparts J and K are added to

part 600 to read as follows:

* * * * *

Subpart J—Essential Fish Habitat (EFH)

600.805 Purpose and scope.

600.810 Definitions and word usage.

600.815 Contents of Fishery Management

Plans.

Subpart K—EFH Coordination,

Consultation, and Recommendations

600.905 Purpose, scope, and NMFS/Council

cooperation.

600.910 Definitions and word usage.

600.915 Coordination for the conservation

and enhancement of EFH.

600.920 Federal agency consultation with

the Secretary.

600.925 NMFS EFH conservation

recommendations to Federal and state

agencies.

600.930 Council comments and

recommendations to Federal and state

agencies.

Subpart J—Essential Fish Habitat

(EFH)

§ 600.805 Purpose and scope.

(a) Purpose. This subpart provides

guidelines for Councils and the

Secretary to use in adding the required

provision on EFH to an FMP, i.e.,

description and identification of

essential fish habitat (EFH), adverse

impacts on EFH (including minimizing,

to the extent practicable, adverse

impacts from fishing), and actions to

conserve and enhance EFH.

(b) Scope—(1) Species covered. An

EFH provision in an FMP must include

all fish species in the FMU. A Council

may describe, identify, and protect the

habitat of species not in an FMU;

however, such habitat may not be

considered EFH for the purposes of

sections 303(a)(7) and 305(b) of the

Magnuson-Stevens Act.

(2) Geographic. EFH may be described

and identified in waters of the United

States, as defined in 33 CFR 328.3 and

the exclusive economic zone, as defined

in § 600.10. Councils may describe,

identify, and protect habitats of

managed species beyond the exclusive

economic zone; however, such habitat

may not be considered EFH for the

purposes of section 303(a)(7) and 305(b)

of the Magnuson-Stevens Act. Activities

that may adversely impact such habitat

can be addressed through any process

conducted in accordance with

international agreements between the

United States and the foreign nation(s)

undertaking or authorizing the action.

§ 600.810 Definitions and word usage.

(a) Definitions. In addition to the

definitions in the Magnuson-Stevens

Act and § 600.10, the terms in this

subpart have the following meanings:

Adverse effect means any impact

which reduces quality and/or quantity

of EFH. Adverse effects may include

direct (e.g., contamination or physical

disruption), indirect (e.g., loss of prey,

or reduction in species’ fecundity), sitespecific or habitat-wide impacts,

including individual, cumulative, or

synergistic consequences of actions.

Council includes the Secretary, as

applicable, when preparing Secretarial

FMPs or amendments under sections

304(c) and (g) of the Magnuson-Stevens

Act.

Ecosystem means communities of

organisms interacting with one another

and with the chemical and physical

factors making up their environment.

Habitat areas of particular concern

means those areas of EFH identified

pursuant to § 600.815(a)(9).

Healthy ecosystem means an

ecosystem where ecological productive

capacity is maintained, diversity of the

flora and fauna is preserved, and the

ecosystem retains the ability to regulate

itself. Such an ecosystem should be

similar to comparable, undisturbed,

ecosystems with regard to standing

crop, productivity, nutrient dynamics,

trophic structure, species richness,

stability, resilience, contamination

levels, and the frequency of diseased

organisms.

Overfished means any stock or stock

complex, the status of which is reported

as overfished by the Secretary pursuant

to § 304(e)(1) of the Magnuson-Stevens

Act.

(b) Word usage. The terms ‘‘must’’,

‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’,

‘‘will’’, ‘‘could’’, and ‘‘can’’, are used in

the same manner as in § 600.305(c).

§ 600.815 Contents of Fishery

Management Plans.

(a) Mandatory contents—(1) Habitat

requirements by life history stage. FMPs

must describe EFH in text and with

tables that provide information on the

biological requirements for each life
66552 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

history stage of the species. These tables

should summarize all available

information on environmental and

habitat variables that control or limit

distribution, abundance, reproduction,

growth, survival, and productivity of the

managed species. Information in the

tables should be supported with

citations.

(2) Description and identification of

EFH—(i) Information requirements. (A)

An initial inventory of available

environmental and fisheries data

sources relevant to the managed species

should be used in describing and

identifying EFH. This inventory should

also help to identify major speciesspecific habitat data gaps. Deficits in

data availability (i.e., accessibility and

application of the data) and in data

quality (including considerations of

scale and resolution; relevance; and

potential biases in collection and

interpretation) should be identified.

(B) To identify EFH, basic information

is needed on current and historic stock

size, the geographic range of the

managed species, the habitat

requirements by life history stage, and

the distribution and characteristics of

those habitats. Information is also

required on the temporal and spatial

distribution of each major life history

stage (defined by developmental and

functional shifts). Since EFH should be

identified for each major life history

stage, data should be collected on, but

not limited to, the distribution, density,

growth, mortality, and production of

each stage within all habitats occupied,

or formerly occupied, by the species.

These data should be obtained from the

best available information, including

peer-reviewed literature, data reports

and ‘‘gray’’ literature, data files of

government resource agencies, and any

other sources of quality information.

(C) The following approach should be

used to gather and organize the data

necessary for identifying EFH.

Information from all levels should be

used to identify EFH. The goal of this

procedure is to include as many levels

of analysis as possible within the

constraints of the available data.

Councils should strive to obtain data

sufficient to describe habitat at the

highest level of detail (i.e., Level 4).

(1) Level 1: Presence/absence

distribution data are available for some

or all portions of the geographic range

of the species. At this level, only

presence/absence data are available to

describe the distribution of a species (or

life history stage) in relation to potential

habitats. Care should be taken to ensure

that all potential habitats have been

sampled adequately. In the event that

distribution data are available for only

portions of the geographic area occupied

by a particular life history stage of a

species, EFH can be inferred on the

basis of distributions among habitats

where the species has been found and

on information about its habitat

requirements and behavior.

(2) Level 2: Habitat-related densities

of the species are available. At this

level, quantitative data (i.e., density or

relative abundance) are available for the

habitats occupied by a species or life

history stage. Because the efficiency of

sampling methods is often affected by

habitat characteristics, strict quality

assurance criteria should be used to

ensure that density estimates are

comparable among methods and

habitats. Density data should reflect

habitat utilization, and the degree that a

habitat is utilized is assumed to be

indicative of habitat value. When

assessing habitat value on the basis of

fish densities in this manner, temporal

changes in habitat availability and

utilization should be considered.

(3) Level 3: Growth, reproduction, or

survival rates within habitats are

available. At this level, data are

available on habitat-related growth,

reproduction, and/or survival by life

history stage. The habitats contributing

the most to productivity should be those

that support the highest growth,

reproduction, and survival of the

species (or life history stage).

(4) Level 4: Production rates by

habitat are available. At this level, data

are available that directly relate the

production rates of a species or life

history stage to habitat type, quantity,

quality, and location. Essential habitats

are those necessary to maintain fish

production consistent with a sustainable

fishery and the managed species’

contribution to a healthy ecosystem.

(ii) EFH determination. (A) The

information obtained through the

analysis in paragraph (a)(2)(i) of this

section will allow Councils to assess the

relative value of habitats. Councils

should interpret this information in a

risk-averse fashion, to ensure adequate

areas are protected as EFH of managed

species. Level 1 information, if

available, should be used to identify the

geographic range of the species. Level 2

through 4 information, if available,

should be used to identify the habitats

valued most highly within the

geographic range of the species. If only

Level 1 information is available,

presence/absence data should be

evaluated (e.g., using a frequency of

occurrence or other appropriate

analysis) to identify those habitat areas

most commonly used by the species.

Areas so identified should be

considered essential for the species.

However, habitats of intermediate and

low value may also be essential,

depending on the health of the fish

population and the ecosystem. Councils

must demonstrate that the best scientific

information available was used in the

identification of EFH, consistent with

national standard 2, but other data may

also be used for the identification.

(B) If a species is overfished, and

habitat loss or degradation may be

contributing to the species being

identified as overfished, all habitats

currently used by the species should be

considered essential in addition to

certain historic habitats that are

necessary to support rebuilding the

fishery and for which restoration is

technologically and economically

feasible. Once the fishery is no longer

considered overfished, the EFH

identification should be reviewed, and

the FMP amended, if appropriate.

(C) EFH will always be greater than or

equal to aquatic areas that have been

identified as ‘‘critical habitat’’ for any

managed species listed as threatened or

endangered under the Endangered

Species Act.

(D) Where a stock of a species is

considered to be healthy, then EFH for

the species should be a subset of all

existing habitat for the species.

(E) Ecological relationships among

species and between the species and

their habitat require, where possible,

that an ecosystem approach be used in

determining the EFH of a managed

species or species assemblage. The

extent of the EFH should be based on

the judgment of the Secretary and the

appropriate Council(s) regarding the

quantity and quality of habitat that is

necessary to maintain a sustainable

fishery and the managed species’

contribution to a healthy ecosystem.

(F) If degraded or inaccessible aquatic

habitat has contributed to the reduced

yields of a species or assemblage, and in

the judgment of the Secretary and the

appropriate Council(s), the degraded

conditions can be reversed through such

actions as improved fish passage

techniques (for fish blockages),

improved water quality or quantity

measures (removal of contaminants or

increasing flows), and similar measures

that are technologically and

economically feasible, then EFH should

include those habitats that would be

essential to the species to obtain

increased yields.

(iii) EFH Mapping Requirements. The

general distribution and geographic

limits of EFH for each life history stage

should be presented in FMPs in the

form of maps. Ultimately, these data

should be incorporated into a

geographic information system (GIS) to
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66553

facilitate analysis and presentation.

These maps may be presented as fixed

in time and space, but they should

encompass all appropriate temporal and

spatial variability in the distribution of

EFH. If the geographic boundaries of

EFH change seasonally, annually, or

decadally, these changing distributions

need to be represented in the maps.

Different types of EFH should be

identified on maps along with areas

used by different life history stages of

the species. The type of information

used to identify EFH should be included

in map legends, and more detailed and

informative maps should be produced

as more complete information about

population responses (e.g., growth,

survival, or reproductive rates) to

habitat characteristics becomes

available. Where the present

distribution or stock size of a species or

life history stage is different from the

historical distribution or stock size, then

maps of historical habitat boundaries

should be included in the FMP, if

known. The EFH maps are a means to

visually present the EFH described in

the FMP. If the maps identifying EFH

and the information in the description

of EFH differ, the description is

ultimately determinative of the limits of

EFH.

(3) Fishing activities that may

adversely affect EFH. (i) Adverse effects

from fishing may include physical,

chemical, or biological alterations of the

substrate, and loss of, or injury to,

benthic organisms, prey species and

their habitat, and other components of

the ecosystem.

(ii) FMPs must include management

measures that minimize adverse effects

on EFH from fishing, to the extent

practicable, and identify conservation

and enhancement measures. The FMP

must contain an assessment of the

potential adverse effects of all fishing

equipment types used in waters

described as EFH. This assessment

should consider the relative impacts of

all fishing equipment types used in EFH

on different types of habitat found

within EFH. Special consideration

should be given to equipment types that

will affect habitat areas of particular

concern. In completing this assessment,

Councils should use the best scientific

information available, as well as other

appropriate information sources, as

available. Included in this assessment

should be consideration of the

establishment of research closure areas

and other measures to evaluate the

impact of any fishing activity that

physically alters EFH.

(iii) Councils must act to prevent,

mitigate, or minimize any adverse

effects from fishing, to the extent

practicable, if there is evidence that a

fishing practice is having an identifiable

adverse effect on EFH, based on the

assessment conducted pursuant to

paragraph (a)(3)(ii) of this section and/

or the cumulative impacts analysis

conducted pursuant to paragraph

(a)(6)(ii) of this section.

(iv) In determining whether it is

practicable to minimize an adverse

effect from fishing, Councils should

consider whether, and to what extent,

the fishing activity is adversely

impacting EFH, including the fishery;

the nature and extent of the adverse

effect on EFH; and whether the

management measures are practicable,

taking into consideration the long and

short-term costs as well as benefits to

the fishery and its EFH, along with other

appropriate factors, consistent with

national standard 7.

(4) Options for managing adverse

effects from fishing. Fishery

management options may include, but

are not limited to:

(i) Fishing equipment restrictions.

These options may include, but are not

limited to: Seasonal and area

restrictions on the use of specified

equipment; equipment modifications to

allow escapement of particular species

or particular life stages (e.g., juveniles);

prohibitions on the use of explosives

and chemicals; prohibitions on

anchoring or setting equipment in

sensitive areas; and prohibitions on

fishing activities that cause significant

physical damage in EFH.

(ii) Time/area closures. These actions

may include, but are not limited to:

Closing areas to all fishing or specific

equipment types during spawning,

migration, foraging, and nursery

activities; and designating zones for use

as marine protected areas to limit

adverse effects of fishing practices on

certain vulnerable or rare areas/species/

life history stages, such as those areas

designated as habitat areas of particular

concern.

(iii) Harvest limits. These actions may

include, but are not limited to, limits on

the take of species that provide

structural habitat for other species

assemblages or communities, and limits

on the take of prey species.

(5) Identification of Non-fishing

related activities that may adversely

affect EFH. FMPs must identify

activities that have the potential to

adversely affect EFH quantity or quality,

or both. Broad categories of activities

which can adversely affect EFH include,

but are not limited to: Dredging, fill,

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. An FMP should

describe the EFH most likely to be

adversely affected by these or other

activities. For each activity, the FMP

should describe known and potential

adverse impacts to EFH. The

descriptions should explain the

mechanisms or processes that may

cause the adverse effects and how these

may affect habitat function. A GIS or

other mapping system should be used to

support analyses of data. Maps

geographically depicting impacts

identified in this paragraph should be

included in an FMP.

(6) Cumulative impacts analysis—(i)

Analysis. To the extent feasible and

practicable, FMPs should analyze how

fishing and non-fishing activities

influence habitat function on an

ecosystem or watershed scale. This

analysis should describe the ecosystem

or watershed, the dependence of the

managed species on the ecosystem or

watershed, especially EFH; and how

fishing and non-fishing activities,

individually or in combination, impact

EFH and the managed species, and how

the loss of EFH may affect the

ecosystem. An assessment of the

cumulative and synergistic effects of

multiple threats, including the effects of

natural stresses (such as storm damage

or climate-based environmental shifts),

and an assessment of the ecological

risks resulting from the impact of those

threats on the managed species’ habitat

should also be included. For the

purposes of this analysis, cumulative

impacts are impacts on the environment

that result from the incremental impact

of an action when added to other past,

present, and reasonably foreseeable

future actions, regardless of who

undertakes such actions. Cumulative

impacts can result from individually

minor, but collectively significant

actions taking place over a period of

time.

(ii) Cumulative impacts from fishing.

In addressing the impacts of fishing on

EFH, Councils should also consider the

cumulative impacts of multiple fishing

practices and non-fishing activities on

EFH, especially, on habitat areas of

particular concern. Habitats that are

particularly vulnerable to specific

fishing equipment types should be

identified for possible designation as

habitat areas of particular concern.

(iii) Mapping cumulative impacts. A

GIS or other mapping system should be

used to support analyses of data. Maps

depicting data documenting cumulative
66554 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

impacts identified in this paragraph

should be included in an FMP.

(iv) Research needs. If completion of

these analyses is not feasible or

practicable for every ecosystem or

watershed within an area identified as

EFH, Councils should, in consultation

with NMFS, identify in the FMP priority

research areas to allow these analyses to

be completed. Councils should include

a schedule for completing such

research. Such schedule of priority

research areas should be combined with

the research needs identified pursuant

to paragraph (a)(10) of this section.

(7) Conservation and enhancement—

(i) Contents of FMPs. FMPs must

describe options to avoid, minimize, or

compensate for the adverse effects

identified pursuant to paragraphs (a) (5)

and (6) of this section and promote the

conservation and enhancement of EFH,

especially in habitat areas of particular

concern.

(ii) General conservation and

enhancement recommendations.

Generally, non-water dependent actions

should not be located in EFH if such

actions may have adverse impacts on

EFH. Activities that may result in

significant adverse affects on EFH,

should be avoided where less

environmentally harmful alternatives

are available. If there are no alternatives,

the impacts of these actions should be

minimized. Environmentally sound

engineering and management practices

should be employed for all actions

which may adversely affect EFH.

Disposal or spillage of any material

(dredge material, sludge, industrial

waste, or other potentially harmful

materials) which would destroy or

degrade EFH should be avoided. If

avoidance or minimization is not

possible, or will not adequately protect

EFH, compensatory mitigation to

conserve and enhance EFH should be

recommended. FMPs may recommend

proactive measures to conserve or

enhance EFH. When developing

proactive measures, Councils may

develop a priority ranking of the

recommendations to assist Federal and

state agencies undertaking such

measures.

(iii) Conservation and enhancement

options. FMPs should provide a variety

of options to conserve or enhance EFH,

which may include, but are not limited

to:

(A) Enhancement of rivers, streams,

and coastal areas. EFH located in, or

influenced by, rivers, streams, and

coastal areas may be enhanced by

reestablishing endemic trees or other

appropriate native vegetation on

adjacent riparian areas; restoring natural

bottom characteristics; removing

unsuitable material from areas affected

by human activities; or adding gravel or

substrate to stream areas to promote

spawning. Adverse effects stemming

from upland areas that influence EFH

may be avoided or minimized by

employing measures such as, but not

limited to, erosion control, road

stabilization, upgrading culverts,

removal or modification of operating

procedures of dikes or levees to allow

for fish passage, structural and

operation measures at dams for fish

passage and habitat protection, or

improvement of watershed

management. Initiation of Federal, state,

or local government planning processes

to restore watersheds associated with

such rivers, streams, or coastal areas

may also be recommended.

(B) Water quality and quantity. This

category of options may include use of

best land management practices for

ensuring compliance with water quality

standards at state and Federal levels,

improved treatment of sewage, proper

disposal of waste materials, and

providing appropriate in-stream flow.

(C) Watershed analysis and planning.

This may include encouraging local and

state efforts to minimize destruction/

degradation of wetlands, restore and

maintain the ecological health of

watersheds, and encourage restoration

of native species. Any analysis of

options should consider natural

variability in weather or climatic

conditions.

(D) Habitat creation. Under

appropriate conditions, habitat creation

(converting non-EFH to EFH) may be

considered as a means of replacing lost

or degraded EFH. However, habitat

conversion at the expense of other

naturally functioning systems must be

justified within an ecosystem context.

(8) Prey species. Loss of prey is an

adverse effect on EFH and a managed

species, because one component of EFH

is that it be necessary for feeding.

Therefore, actions that reduce the

availability of a major prey species,

either through direct harm or capture, or

through adverse impacts to the prey

species’ habitat that are known to cause

a reduction in the population of the

prey species may be considered adverse

effects on a managed species and its

EFH. FMPs should identify the major

prey species for the species in the FMU

and generally describe the location of

prey species’ habitat. Actions that cause

a reduction of the prey species

population, including where there exists

evidence that adverse effects to habitat

of prey species is causing a decline in

the availability of the prey species,

should also be described and identified.

Adverse effects on prey species and

their habitats may result from fishing

and non-fishing activities.

(9) Identification of habitat areas of

particular concern. FMPs should

identify habitat areas of particular

concern within EFH. In determining

whether a type, or area of EFH is a

habitat area of particular concern, one or

more of the following criteria must be

met:

(i) The importance of the ecological

function provided by the habitat.

(ii) The extent to which the habitat is

sensitive to human-induced

environmental degradation.

(iii) Whether, and to what extent,

development activities are, or will be,

stressing the habitat type.

(iv) The rarity of the habitat type.

(10) Research and information needs.

Each FMP should contain

recommendations, preferably in priority

order, for research efforts that the

Councils and NMFS view as necessary

for carrying out their EFH management

mandate. The need for additional

research is to make available sufficient

information to support a higher level of

description and identification of EFH

under paragraph (a)(2)(i) of this section.

Additional research may also be

necessary to identify and evaluate actual

and potential adverse effects on EFH,

including, but not limited to, direct

physical alteration; impaired habitat

quality/functions; cumulative impacts

from fishing; or indirect adverse effects

such as sea level rise, global warming

and climate shifts; and non-equipment

related fishery impacts. The MagnusonStevens Act specifically identifies the

effects of fishing as a concern. The need

for additional research on the effects of

fishing equipment on EFH and a

schedule for obtaining that information

should be included in this section of the

FMP. If an adverse effect on EFH is

identified and determined to be an

impediment to maintaining a

sustainable fishery and the managed

species’ contribution to a healthy

ecosystem, then the research needed to

quantify and mitigate that effect should

be identified in this section.

(11) Review and revision of EFH

components of FMPs. Councils and

NMFS should periodically review the

EFH components of FMPs, including an

update of the equipment assessment

originally conducted pursuant to

paragraph (a)(3)(ii) of this section. Each

EFH FMP amendment should include a

provision requiring review and update

of EFH information and preparation of

a revised FMP amendment if new

information becomes available. The

schedule for this review should be

based on an assessment of both the

existing data and expectations when
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66555

new data will become available. This

information should be reviewed as part

of the annual Stock Assessment and

Fishery Evaluation (SAFE) report

prepared pursuant to § 600.315(e). A

complete review of information should

be conducted as recommended by the

Secretary, but at least once every 5

years.

(b) Optional components. An FMP

may include a description and

identification of the habitat of species

under the authority of the Council, even

if not contained in the FMU. However,

such habitat may not be EFH. This

subpart does not change a Council’s

ability to implement management

measures for a managed species for the

protection of another species.

(c) Development of EFH

recommendations. After reviewing the

best available scientific information, as

well as other appropriate information,

and in consultation with the Councils,

participants in the fishery, interstate

commissions, Federal agencies, state

agencies, and other interested parties,

NMFS will develop written

recommendations for the identification

of EFH for each FMP. In recognition of

the different approaches to FMP

development taken by each Council, the

NMFS EFH recommendations may

constitute a review of a draft EFH

document developed by a Council, or

may include suggestions for a draft EFH

FMP amendment and may precede the

Council’s development of such

documents, as appropriate. In both

cases, prior to submitting a written EFH

identification recommendation to a

Council for an FMP, the draft

recommendation will be made available

for public review and at least one public

meeting will be held. NMFS will work

with the affected Council(s) to conduct

this review in association with

scheduled public Council meetings

whenever possible. The review may be

conducted at a meeting of the Council

committee responsible for habitat issues

or as a part of a full Council meeting.

After receiving public comment, NMFS

will revise its draft recommendations, as

appropriate, and forward a final written

recommendation and comments to the

Council(s).

(d) Relationship to other fishery

management authorities. Councils are

encouraged to coordinate with state and

interstate fishery management agencies

where Federal fisheries affect state and

interstate managed fisheries or where

state or interstate fishery regulations

affect the management of Federal

fisheries. Where a state or interstate

fishing activity adversely impacts EFH,

NMFS will consider that action to be an

adverse effect on EFH pursuant to

paragraph (a)(5) of this section and will

provide EFH conservation

recommendations to the appropriate

state or interstate fishery management

agency on that activity.

Subpart K—EFH Coordination,

Consultation, and Recommendations

§ 600.905 Purpose and scope and NMFS/

Council cooperation.

(a) Purpose. These procedures address

the coordination, consultation, and

recommendation requirements of

sections 305(b)(1)(D) and 305(b)(2–4) of

the Magnuson-Stevens Act. The purpose

of these procedures is to promote the

protection of EFH in the review of

Federal and state actions that may

adversely affect EFH.

(b) Scope. Section 305(b)(1)(D) of the

Magnuson-Stevens Act requires the

Secretary to coordinate with, and

provide information to, other Federal

agencies regarding the conservation and

enhancement of EFH. Section 305(b)(2)

requires all Federal agencies to consult

with the Secretary on all actions, or

proposed actions, authorized, funded, or

undertaken by the agency, that may

adversely affect EFH. Sections 305(b) (3)

and (4) direct the Secretary and the

Councils to provide comments and EFH

conservation recommendations to

Federal or state agencies on actions that

affect EFH. Such recommendations may

include measures to avoid, minimize,

mitigate, or otherwise offset adverse

effects on EFH resulting from actions or

proposed actions authorized, funded, or

undertaken by that agency. Section

305(b)(4)(B) requires Federal agencies to

respond in writing to such comments.

The following procedures for

coordination, consultation, and

recommendations allow all parties

involved to understand and implement

the requirements of the MagnusonStevens Act.

(c) Cooperation between Councils and

NMFS. The Councils and NMFS should

cooperate as closely as possible to

identify actions that may adversely

affect EFH, to develop comments and

EFH conservation recommendations to

Federal and state agencies, and to

provide EFH information to Federal or

state agencies. The Secretary will seek

to develop agreements with each

Council to facilitate sharing information

on actions that may adversely affect

EFH and in coordinating Council and

NMFS comments and recommendations

on those actions. However, NMFS and

the Councils also have the authority to

act independently.

§ 600.910 Definitions and word usage.

(a) Definitions. In addition to the

definitions in the Magnuson-Stevens

Act and § 600.10, the terms in this

subpart have the following meanings:

Adverse effect means any impact

which reduces quality and/or quantity

of EFH. Adverse effects may include

direct (e.g., contamination or physical

disruption), indirect (e.g., loss of prey,

reduction in species’ fecundity), sitespecific or habitatwide impacts,

including individual, cumulative, or

synergistic consequences of actions.

Council includes the Secretary, as

applicable, when preparing FMPs or

amendments under section 304 (c) and

(g) of the Magnuson-Stevens Act; and

when commenting and making

recommendations under the authority of

section 305(b)(3) of the MagnusonStevens Act to any Federal or state

agency on actions that may affect the

habitat of fishery resources managed

under such FMPs.

Federal action means any action

authorized, funded, or undertaken, or

proposed to be authorized, funded, or

undertaken by a Federal agency.

Habitat areas of particular concern

means those areas of EFH identified

pursuant to § 600.815(a)(9).

State action means any action

authorized, funded, or undertaken, or

proposed to be authorized, funded, or

undertaken by a state agency.

(b) Word usage. The terms ‘‘must’’,

‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’,

‘‘will’’, ‘‘could’’, and ‘‘can’’, are used in

the same manner as in § 600.305(c).

§ 600.915 Coordination for the

conservation and enhancement of EFH.

To further the conservation and

enhancement of EFH in accordance with

section 305(b)(1)(D) of the MagnusonStevens Act, NMFS will compile and

make available to other Federal and

state agencies, information on the

locations of EFH, including maps and/

or narrative descriptions. NMFS will

also provide information on ways to

improve ongoing Federal operations to

promote the conservation and

enhancement of EFH. Federal and state

agencies empowered to authorize, fund,

or undertake actions that may adversely

affect EFH are encouraged to contact

NMFS and the Councils to become

familiar with areas designated as EFH,

and potential threats to EFH, as well as

opportunities to promote the

conservation and enhancement of such

habitat.

§ 600.920 Federal agency consultation

with the Secretary.

(a) Consultation generally—(1)

Actions requiring consultation. Pursuant
66556 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

to section 305(b)(2) of the MagnusonStevens Act, Federal agencies must

consult with NMFS regarding any of

their actions authorized, funded, or

undertaken, or proposed to be

authorized, funded, or undertaken that

may adversely affect EFH. EFH

consultation is not required for

completed actions, e.g., issued permits.

Consultation is required for renewals,

reviews, or substantial revisions of

actions. Consultation on Federal

programs delegated to non-Federal

entities is required at the time of

delegation, review, and renewal of the

delegation. EFH consultation is required

for any Federal funding of actions that

may adversely affect EFH. NMFS and

Federal agencies responsible for funding

actions that may adversely affect EFH

should consult on a programmatic level,

if appropriate, with respect to these

actions.

(2) Appropriate level of consultation.

(i) NMFS and other Federal agencies

may conduct consultation at either a

programmatic or project-specific level.

Federal actions may be evaluated at a

programmatic level if sufficient

information is available to develop EFH

conservation recommendations and

address all reasonably foreseeable

adverse effects to EFH. Project-specific

consultations are more appropriate

when critical decisions are made at the

project implementation stage, or when

sufficiently detailed information for the

development of EFH conservation

recommendations does not exist at the

programmatic level.

(ii) If, after a Federal agency requests

programmatic consultation, NMFS

determines that all concerns about

adverse effects on EFH can be addressed

at a programmatic level, NMFS will

develop EFH conservation

recommendations that cover all projects

implemented under that program, and

no further EFH consultation will be

required. Alternatively, NMFS may

determine that project-specific

consultation is needed for part or all of

the program’s activities, in which case

NMFS may develop some EFH

conservation recommendations at a

programmatic level, but will also

recommend that project-specific

consultation will be needed to complete

the EFH consultation requirements.

NMFS may also determine that

programmatic consultation is not

appropriate, in which case all EFH

conservation recommendations will be

deferred to project-specific

consultations.

(b) Designation of lead agency. If more

than one Federal agency is responsible

for a Federal action, the consultation

requirements of sections 305(b)(2–4) of

the Magnuson-Stevens Act may be

fulfilled through a lead agency. The lead

agency must notify NMFS in writing

that it is representing one or more

additional agencies.

(c) Designation of non-Federal

representative. A Federal agency may

designate a non-Federal representative

to conduct an abbreviated consultation

or prepare an EFH Assessment by giving

written notice of such designation to

NMFS. If a non-Federal representative is

used, the Federal action agency remains

ultimately responsible for compliance

with sections 305(b)(2) and 305(b)(4) of

the Magnuson-Stevens Act.

(d) Best available information. The

Federal action agency and NMFS must

use the best scientific information

available regarding the effects of the

proposed action on EFH. Other

appropriate sources of information may

also be considered.

(e) Use of existing consultation/

environmental review procedures—(1)

Criteria. Consultation and commenting

under sections 305(b)(2) and 305(b)(4) of

the Magnuson-Stevens Act should be

consolidated, where appropriate, with

interagency consultation, coordination,

and environmental review procedures

required by other statutes, such as the

National Environmental Policy Act

(NEPA), Fish and Wildlife Coordination

Act, Clean Water Act, Endangered

Species Act (ESA), and Federal Power

Act. The consultation requirements of

section 305(b)(2) of the MagnusonStevens Act can be satisfied using

existing or modified procedures

required by other statutes if such

processes meet the following criteria:

(i) The existing process must provide

NMFS with timely notification of

actions that may adversely affect EFH.

The Federal action agency should notify

NMFS according to the same timeframes

for notification (or for public comment)

as in the existing process. However,

NMFS should have at least 60 days

notice prior to a final decision on an

action, or at least 90 days if the action

would result in substantial adverse

impacts. NMFS and the action agency

may agree to use shorter timeframes if

they allow sufficient time for NMFS to

develop EFH conservation

recommendations.

(ii) Notification must include an

assessment of the impacts of the

proposed action on EFH that meets the

requirements for EFH Assessments

contained in paragraph (g) of this

section. If the EFH Assessment is

contained in another document, that

section of the document must be clearly

identified as the EFH Assessment.

(iii) NMFS must have made a finding

pursuant to paragraph (e)(3) of this

section that the existing process satisfies

the requirements of section 305(b)(2) of

the Magnuson-Stevens Act.

(2) EFH conservation

recommendation requirements. If an

existing consultation process is used to

fulfill the EFH consultation

requirements, then the comment

deadline for that process should apply

to the submittal of NMFS conservation

recommendations under section

305(b)(4)(A) of the Magnuson-Stevens

Act, unless a different deadline is

agreed to by NMFS and the Federal

agency. The Federal agency must

respond to these recommendations

within 30 days pursuant to section

305(b)(4)(B) of the Magnuson-Stevens

Act. NMFS may request the further

review of any Federal agency decision

that is inconsistent with a NMFS EFH

recommendation, in accordance with

paragraph (j)(2) of this section. If NMFS

EFH conservation recommendations are

combined with other NMFS or NOAA

comments on a Federal action, such as

NOAA comments on a draft

Environmental Impact Statement, the

EFH conservation recommendations

shall be clearly identified as such (e.g.,

a section in the comment letter entitled

‘‘EFH conservation recommendations’’)

and a response pursuant to section

305(b)(4)(B) of the Magnuson-Stevens

Act is required for only the identified

portion of the comments.

(3) NMFS finding. A Federal agency

with an existing consultation process

should contact NMFS at the appropriate

level (regional offices for regional

processes, headquarters office for

national processes) to discuss how the

existing process, with or without

modifications, can be used to satisfy the

EFH consultation requirements. If, at the

conclusion of these discussions, NMFS

determines that the existing process

meets the criteria of paragraph (e)(1) of

this section, NMFS will make a finding

that the existing or modified process can

satisfy the EFH consultation

requirements of the Magnuson-Stevens

Act. If NMFS does not make such a

finding, or if there are no existing

consultation processes relevant to the

Federal agency’s actions, the action

agency and NMFS should follow the

consultation process in the following

sections.

(f) General Concurrence—(1) Purpose.

The General Concurrence process

identifies specific types of Federal

actions that may adversely affect EFH,

but for which no further consultation is

generally required because NMFS has

determined, through an analysis of that

type of action, that it will likely result

in no more than minimal adverse effects

individually and cumulatively. General
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66557

Concurrences may be national or

regional in scope.

(2) Criteria. (i) For Federal actions to

qualify for General Concurrence, NMFS

must determine, after consultation with

the appropriate Council(s), that the

actions meet all of the following criteria:

(A) The actions must be similar in

nature and similar in their impact on

EFH.

(B) The actions must not cause greater

than minimal adverse effects on EFH

when implemented individually.

(C) The actions must not cause greater

than minimal cumulative adverse effects

on EFH.

(ii) Actions qualifying for General

Concurrence must be tracked to ensure

that their cumulative effects are no more

than minimal. In most cases, tracking

will be the responsibility of the Federal

action agency, but NMFS also may agree

to track actions for which General

Concurrence has been authorized.

Tracking should include numbers of

actions, amount of habitat adversely

affected, type of habitat adversely

affected, and the baseline against which

the action will be tracked. The agency

responsible for tracking such actions

should make the information available

to NMFS, the Councils, and to the

public on an annual basis.

(iii) Categories of Federal actions may

also qualify for General Concurrence if

they are modified by appropriate

conditions that ensure the actions will

meet the criteria in paragraph (f)(2)(i) of

this section. For example, NMFS may

provide General Concurrence for

additional actions contingent upon

project size limitations, seasonal

restrictions, or other conditions.

(iv) If a General Concurrence is

developed for actions affecting habitat

areas of particular concern, the General

Concurrence should be subject to a

higher level of scrutiny than a General

Concurrence not involving a habitat area

of particular concern.

(3) General Concurrence

development. A Federal agency may

request a General Concurrence for a

category of its actions by providing

NMFS with a written description of the

nature and approximate number of the

proposed actions, an analysis of the

effects of the actions on EFH and

associated species and their life history

stages, including cumulative effects, and

the Federal agency’s conclusions

regarding the magnitude of such effects.

If NMFS agrees that the actions fit the

criteria in paragraph (f)(2) of this

section, NMFS, after consultation with

the appropriate Council(s), will provide

the Federal agency with a written

statement of General Concurrence that

further consultation is not required, and

that preparation of EFH Assessments for

individual actions subject to the General

Concurrence is not necessary. If NMFS

does not agree that the actions fit the

criteria in paragraph (f)(2) of this

section, NMFS will notify the Federal

agency that a General Concurrence will

not be issued and that abbreviated or

expanded consultation will be required.

If NMFS identifies specific types of

Federal actions that may meet the

requirements for a General Concurrence,

NMFS may initiate and complete a

General Concurrence.

(4) Notification and further

consultation. NMFS may request

notification for actions covered under a

General Concurrence if NMFS

concludes there are circumstances

under which such actions could result

in more than a minimal impact on EFH,

or if it determines that there is not a

process in place to adequately assess the

cumulative impacts of actions covered

under the General Concurrence. NMFS

may require further consultation for

these actions on a case-by case basis.

Each General Concurrence should

establish specific procedures for further

consultation, if appropriate.

(5) Public review. Prior to providing

any Federal agency with a written

statement of General Concurrence for a

category of Federal actions, NMFS will

provide an opportunity for public

review through the appropriate

Council(s), or other reasonable

opportunity for public review.

(6) Revisions. NMFS will periodically

review and revise its findings of General

Concurrence, as appropriate.

(g) EFH Assessments—(1) Preparation

requirement. For any Federal action that

may adversely affect EFH, except for

those activities covered by a General

Concurrence, Federal agencies must

provide NMFS with a written

assessment of the effects of that action

on EFH. Federal agencies may

incorporate an EFH Assessment into

documents prepared for other purposes

such as ESA Biological Assessments

pursuant to 50 CFR part 402 or NEPA

documents and public notices pursuant

to 40 CFR part 1500. If an EFH

Assessment is contained in another

document, it must include all of the

information required in paragraph (g)(2)

of this section and be clearly identified

as an EFH Assessment. The procedure

for combining an EFH consultation with

other consultation of environmental

reviews is set forth in paragraph (e) of

this section.

(2) Mandatory contents. The

assessment must contain:

(i) A description of the proposed

action.

(ii) An analysis of the effects,

including cumulative effects, of the

proposed action on EFH, the managed

species, and associated species, such as

major prey species, including affected

life history stages.

(iii) The Federal agency’s views

regarding the effects of the action on

EFH.

(iv) Proposed mitigation, if applicable.

(3) Additional information. If

appropriate, the assessment should also

include:

(i) The results of an on-site inspection

to evaluate the habitat and the sitespecific effects of the project.

(ii) The views of recognized experts

on the habitat or species that may be

affected.

(iii) A review of pertinent literature

and related information.

(iv) An analysis of alternatives to the

proposed action. Such analysis should

include alternatives that could avoid or

minimize adverse effects on EFH,

particularly when an action is nonwater dependent.

(v) Other relevant information.

(4) Incorporation by reference. The

assessment may incorporate by

reference a completed EFH Assessment

prepared for a similar action,

supplemented with any relevant new

project specific information, provided

the proposed action involves similar

impacts to EFH in the same geographic

area or a similar ecological setting. It

may also incorporate by reference other

relevant environmental assessment

documents. These documents must be

provided to NMFS with an EFH

Assessment.

(h) Abbreviated consultation

procedures—(1) Purpose and criteria.

Abbreviated consultation allows NMFS

to quickly determine whether, and to

what degree, a Federal action may

adversely affect EFH. Federal actions

that may adversely affect EFH should be

addressed through the abbreviated

consultation procedures when those

actions do not qualify for a General

Concurrence, but do not have the

potential to cause substantial adverse

effects on EFH. For example, the

abbreviated consultation procedures

should be used when the adverse

effect(s) of an action or proposed action

could be alleviated through minor

modifications.

(2) Notification by agency. The

Federal agency should notify NMFS

and, if NMFS so requests, the

appropriate Council(s), in writing as

early as practicable regarding proposed

actions that may adversely affect EFH.

Notification will facilitate discussion of

measures to conserve the habitat. Such

early consultation should occur during
66558 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

pre-application planning for projects

subject to a Federal permit or license,

and during preliminary planning for

projects to be funded or undertaken

directly by a Federal agency.

(3) Submittal of EFH Assessment. The

Federal agency must submit a

completed EFH Assessment, prepared in

accordance with paragraph (g) of this

section, to NMFS for review. Federal

agencies will have fulfilled their

consultation requirement under

paragraph (a) of this section after

notification and submittal of a complete

EFH Assessment.

(4) NMFS response to Federal agency.

NMFS must respond in writing as to

whether it concurs with the findings of

the EFH Assessment. If NMFS believes

that the proposed action may result in

substantial adverse effects on EFH, or

that additional analysis is needed to

accurately assess the effects of the

proposed action, NMFS will request that

the Federal agency initiate expanded

consultation. Such request will explain

why NMFS believes expanded

consultation is needed and will specify

any new information needed. If

additional consultation is not necessary,

NMFS will respond by commenting and

recommending measures that may be

taken to conserve EFH, pursuant to

section 305(b)(4)(A) of the MagnusonStevens Act. NMFS will send a copy of

its response to the appropriate Council.

(5) Timing. The Federal action agency

must submit its complete EFH

Assessment to NMFS as soon as

practicable, but NMFS must receive it at

least 60 days prior to a final decision on

the action. NMFS must respond in

writing within 30 days. NMFS and the

Federal action agency may agree to use

a compressed schedule in cases where

regulatory approvals or emergency

situations cannot accommodate 30 days

for consultation, or to conduct

consultation earlier in the planning

cycle for proposed actions with lengthy

approval processes.

(i) Expanded consultation

procedures—(1) Purpose and criteria.

Expanded consultation allows

maximum opportunity for NMFS and

the Federal agency to work together in

the review of the action’s impacts on

EFH and the development of EFH

conservation recommendations.

Expanded consultation procedures must

be used for Federal actions that would

result in substantial adverse effects to

EFH. Federal agencies are encouraged to

contact NMFS at the earliest

opportunity to discuss whether the

adverse effect of a proposed action

makes expanded consultation

appropriate.

(2) Initiation. Expanded consultation

begins when NMFS receives from the

Federal agency an EFH Assessment

completed in accordance with

paragraph (g) of this section and a

written request for expanded

consultation. Federal action agencies are

encouraged to provide in the EFH

Assessment the additional information

identified under paragraph (g)(3) of this

section. Subject to NMFS’s approval,

any request for expanded consultation

may encompass a number of similar

individual actions within a given

geographic area.

(3) NMFS response to Federal agency.

NMFS will:

(i) Review the EFH Assessment, any

additional information furnished by the

Federal agency, and other relevant

information.

(ii) Conduct a site visit, if appropriate,

to assess the quality of the habitat and

to clarify the impacts of the Federal

agency action. Such a site visit should

be coordinated with the Federal agency

and appropriate Council(s), if feasible.

(iii) Coordinate its review of the

proposed action with the appropriate

Council(s).

(iv) Discuss EFH conservation

recommendations with the Federal

agency and provide recommendations to

the Federal action agency, pursuant to

section 305(b)(4)(A) of the MagnusonStevens Act. NMFS will also provide a

copy of the recommendations to the

appropriate Council(s).

(4) Timing. The Federal action agency

must submit its complete EFH

Assessment to NMFS as soon as

practicable, but at least 90 days prior to

a final decision on the action. NMFS

must respond within 60 days of

submittal of a complete EFH

Assessment unless consultation is

extended by agreement between NMFS

and the Federal action agency. NMFS

and Federal action agencies may agree

to use a compressed schedule in cases

where regulatory approvals or

emergency situations cannot

accommodate a 60-day consultation

period.

(5) Extension of consultation. If NMFS

determines that additional data or

analysis would provide better

information for development of EFH

conservation recommendations, NMFS

may request additional time for

expanded consultation. If NMFS and the

Federal action agency agree to an

extension, the Federal action agency

should provide the additional

information to NMFS, to the extent

practicable. If NMFS and the Federal

action agency do not agree to extend

consultation, NMFS must provide EFH

conservation recommendations to the

Federal action agency using the best

scientific information available to

NMFS.

(j) Responsibilities of Federal action

agency following receipt of EFH

conservation recommendations—(1)

Federal action agency response. As

required by section 305(b)(4)(B) of the

Magnuson-Stevens Act, the Federal

action agency must provide a detailed

response in writing to NMFS and the

appropriate Council within 30 days after

receiving an EFH conservation

recommendation. Such a response must

be provided at least 10 days prior to

final approval of the action, if a decision

by the Federal agency is required in

fewer than 30 days. The response must

include a description of measures

proposed by the agency for avoiding,

mitigating, or offsetting the impact of

the activity on EFH. In the case of a

response that is inconsistent with NMFS

conservation recommendations, the

Federal action agency must explain its

reasons for not following the

recommendations, including the

scientific justification for any

disagreements with NMFS over the

anticipated effects of the proposed

action and the measures needed to

avoid, minimize, mitigate, or offset such

effects.

(2) Further review of decisions

inconsistent with NMFS or Council

recommendations. If a Federal action

agency decision is inconsistent with a

NMFS EFH conservation

recommendation, the Assistant

Administrator for Fisheries may request

a meeting with the head of the Federal

action agency, as well as any other

agencies involved, to discuss the

proposed action and opportunities for

resolving any disagreements. If a

Federal action agency decision is also

inconsistent with a Council

recommendation made pursuant to

section 305(b)(3) of the MagnusonStevens Act, the Council may request

that the Assistant Administrator initiate

further review of the Federal agency’s

decision and involve the Council in any

interagency discussion to resolve

disagreements with the Federal agency.

The Assistant Administrator will make

every effort to accommodate such a

request. Memoranda of agreement or

other written procedures will be

developed to further define such review

processes with Federal action agencies.

(k) Supplemental consultation. A

Federal action agency must reinitiate

consultation with NMFS if the agency

substantially revises its plans for an

action in a manner that may adversely

affect EFH or if new information

becomes available that affects the basis
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66559

for NMFS’ EFH conservation

recommendations.

§ 600.925 NMFS EFH conservation

recommendations to Federal and state

agencies.

(a) General. Under section 305(b)(4) of

the Magnuson-Stevens Act, NMFS is

required to provide EFH conservation

recommendations to Federal and state

agencies for actions that would

adversely affect EFH. NMFS EFH

conservation recommendations will not

suggest that state or Federal agencies

take actions beyond their statutory

authority.

(b) Recommendations to Federal

agencies. For Federal actions, EFH

conservation recommendations will be

provided to Federal action agencies as

part of EFH consultations conducted

pursuant to § 600.920. These

recommendations fulfill the

requirements of section 305(b)(4)(A) of

the Magnuson-Stevens Act. If NMFS

becomes aware of a Federal action that

would adversely affect EFH, but for

which a Federal agency has not

completed an EFH consultation, NMFS

may request that the Federal agency

initiate EFH consultation or NMFS will

provide EFH conservation

recommendations based on the

information available. NMFS will

provide a copy of such recommendation

to the appropriate Council(s).

(c) Recommendations to state

agencies—(1) Establishment of

procedures. Each NMFS Region should

use existing coordination procedures

under statutes such as the Coastal Zone

Management Act or establish new

procedures to identify state actions that

may adversely affect EFH, and for

determining the most appropriate

method for providing EFH conservation

recommendations to the state agency.

NMFS will provide a copy of such

recommendation to the appropriate

Council(s).

(2) Coordination with states on

recommendations to Federal agencies.

When an action that would adversely

affect EFH requires authorization or

funding by both Federal and state

agencies, NMFS will provide the

appropriate state agencies with copies of

EFH conservation recommendations

developed as part of the Federal

consultation procedures in § 600.920.

NMFS will also seek agreements on

sharing information and copies of

recommendations with Federal or state

agencies conducting similar

consultation and recommendation

processes to ensure coordination of such

efforts.

§ 600.930 Council comments and

recommendations to Federal and state

agencies.

(a) Establishment of procedures. Each

Council should establish procedures for

reviewing Federal or state actions that

may adversely affect the EFH of a

species managed under its authority.

Each Council may receive information

on actions of concern by methods such

as: Directing Council staff to track

proposed actions; recommending that

the Council’s habitat committee identify

actions of concern; or entering into an

agreement with NMFS to have the

appropriate Regional Administrator

notify the Council of actions that may

adversely impact EFH. Federal and state

actions often follow specific timetables

which may not coincide with Council

meetings. Therefore, Councils should

consider establishing abbreviated

procedures for the development of

Council recommendations.

(b) Early involvement. Councils

should provide comments and

recommendations on proposed state and

Federal actions of concern as early as

practicable in project planning to ensure

thorough consideration of Council

concerns by the action agency. Copies of

Council comments and

recommendations should be provided to

NMFS.

(c) Anadromous fishery resources. For

the purposes of the commenting

requirement of section 305(b)(3)(B) of

the Magnuson-Stevens Act, an

‘‘anadromous fishery resource under a

Council’s authority’’ is an anadromous

species that inhabits waters under the

Council’s authority at some time during

its life cycle.

[FR Doc. 97–33133 Filed 12–15–97; 4:58 pm]

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