Federal Register / Vol. 89, No. 24 / Monday, February 5, 2024 / Rules and Regulations 7633 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 240130–0029] 

RIN 0648–BM51 

Fisheries of the Northeastern United 

States; Framework Adjustments to 

Northeast Multispecies, Atlantic Sea 

Scallop, Monkfish, Northeast Skate 

Complex, and Atlantic Herring 

Fisheries; Southern New England 

Habitat Area of Particular Concern 

Designation 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This action implements the 

New England Fishery Management 

Council’s Framework Adjustment that 

identifies a Habitat Area of Particular 

Concern offshore of Southern New 

England. This rule adjusts the following 

fishery management plans: Northeast 

Multispecies; Atlantic Sea Scallop; 

Monkfish; Northeast Skate Complex; 

and Atlantic Herring. The Habitat Area 

of Particular Concern is within and 

around wind lease areas in Southern 

New England, including Cox Ledge, to 

focus conservation recommendations on 

cod spawning habitats and complex 

benthic habitats that are known to serve 

important habitat functions to Councilmanaged fishery species. 

DATES: Effective March 6, 2024. 

ADDRESSES: Copies of the Southern New 

England Habitat Area of Particular 

Concern Framework and other 

supporting documents for this action are 

available upon request from Dr. Cate 

O’Keefe, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Mill 2, Newburyport, 

MA 01950. The supporting documents 

are also accessible via the internet at: 

https://d23h0vhsm26o6d.

cloudfront.net/230926-SNE-HAPCFramework-FINAL.pdf. 

FOR FURTHER INFORMATION CONTACT: 

Sabrina Pereira, Marine Habitat 

Resource Specialist, email: 

Sabrina.Pereira@noaa.gov; phone: (978) 

675–2178. 

SUPPLEMENTARY INFORMATION: 

Background 

This action identifies a Habitat Area 

of Particular Concern (HAPC) in and 

around offshore wind lease areas in 

Southern New England, including Cox 

Ledge. The New England Fishery 

Management Council recommended the 

HAPC designation due to concerns 

about the potential adverse impact on 

essential fish habitat (EFH) from the 

development of offshore wind energy 

projects. The designation focuses on 

important cod spawning grounds and 

areas of complex habitat that are known 

to serve important habitat functions to 

federally managed species within and 

adjacent to offshore wind development 

areas. Complex benthic habitat provides 

shelter for certain species during their 

early life history, refuge from predators, 

and feeding opportunities. The HAPC 

designation will be applied during EFH 

consultation when data indicate that 

cod spawning and/or complex habitats 

occur within or near the footprint of a 

project located within the border of the 

HAPC area identified in Figure 6 of the 

Framework document. 

HAPCs highlight specific types or 

areas of habitat within EFH that may be 

particularly vulnerable to human 

impacts. HAPC designations should be 

based on one or more of the following 

criteria: (1) The importance of the 

ecological function provided by the 

habitat, including both the historical 

and current ecological function; (2) the 

extent to which the habitat is sensitive 

to human-induced environmental 

degradation; (3) whether, and to what 

extent, development activities are, or 

will be, stressing the habitat type; and 

(4) the rarity of the habitat type (50 CFR 

600.815(a)(8)). As detailed below, the 

HAPC designated by this action has all 

four of these attributes. 

An area’s status as an HAPC is 

intended to lead to special attention 

regarding potential adverse effects on 

habitats within areas of particular 

concern from various activities (e.g., 

fishing, offshore wind energy). An 

HAPC designation does not provide any 

specific habitat management measures, 

such as restrictions on gear types, 

harvest levels, fishing locations, 

offshore wind survey and construction 

activities, or other activities with 

adverse effects on habitat in the area. 

The proposed rule for this action was 

published in the Federal Register on 

September 26, 2023 (88 FR 65944), and 

comments were accepted through 

October 26, 2023. NMFS received 14 

comments from the public, and no 

changes were made to the final rule 

because of those comments (see 

Comments and Responses for additional 

detail). 

Habitat Area of Particular Concern 

Designation 

This action implements Alternative 5, 

the Council’s preferred alternative for 

the Southern New England HAPC 

designation, which identifies as an 

HAPC certain habitats in the area 

overlapping offshore wind lease sites in 

southern New England. The spatial 

extent of the HAPC is based on the 

footprint of the lease areas, buffered by 

approximately 10 km on all sides, 

combined with the footprint of the Cox 

Ledge spawning ground, which is based 

on recent evidence of cod spawning 

activity. Figure 6 on page 29 of the 

Framework document (online at https:// 

d23h0vhsm26o6d.cloudfront.net/ 

230926-SNE-HAPC-FrameworkFINAL.pdf) contains a map of the HAPC 

designation area. As noted in the 

Framework document (at 27), when 

projects are proposed within this area, 

‘‘The HAPC designation will be applied 

during EFH consultation when data 

indicate that cod spawning and/or 

complex habitats occur within or near 

the project footprint.’’ 

The HAPC area is located within 

designated EFH for the following 

species that occupy complex habitats 

within the footprint: Atlantic cod egg, 

larvae, juveniles, and adults; Atlantic 

herring eggs; Atlantic sea scallop eggs, 

juveniles, and adults; little skate 

juveniles and adults; monkfish juveniles 

and adults; ocean pout eggs, juveniles, 

and adults; red hake juveniles and 

adults; winter flounder eggs, juveniles, 

and adults; and winter skate juveniles 

and adults. 

Complex habitats are defined as hard 

bottom substrates, defined by the 

Coastal and Marine Ecological 

Classification Standard (CMECS) as 

Substrate Class Rock Substrate, and by 

the four Substrate Groups: Gravels; 

gravel mixes; gravelly; and shell. This 

CMECS modifier was developed by 

NMFS for habitat mapping 

recommendations, including both largegrained and small-grained hard habitats. 

Hard bottom substrates with epifauna or 

macroalgae cover are also defined as 

complex habitat. 

Evidence of cod spawning activity at 

a site could be based on: Capture of ripe, 

running, or spent cod during fishery 

independent surveys; detections of 

acoustically tagged fish between 

November and April; detections of cod 

grunts in acoustic surveys; capture of 

cod larvae in ichthyoplankton surveys; 

and/or evidence of eggs in 

ichthyoplankton surveys (not species 

specific but indicative of spawning 

success). 

Designation of this HAPC places a 

focus on areas that are experiencing 

current development stresses. The 

designated area overlaps areas leased for 

renewable energy development. Some 

projects are already permitted, others 


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7634 Federal Register / Vol. 89, No. 24 / Monday, February 5, 2024 / Rules and Regulations 

are currently undergoing environmental 

review, and others are still within the 

site assessment phase. The HAPC’s 

spatial footprint closely aligns with the 

wind lease areas because these areas 

face differential levels of foreseeable ongoing development-related threats 

compared to surrounding areas. The 

HAPC boundary includes a buffer of 

approximately 10 km beyond the leased 

areas, recognizing that some types of 

development activities can generate 

impacts at scales of tens of kilometers 

beyond the site of construction and 

operations. For example, acoustic 

impacts may extend kilometers from a 

pile driving site. Greater scrutiny would 

be given to activities within the HAPC 

designated area when data indicate that 

cod spawning and/or complex habitats 

occur within or near a project or activity 

footprint. An HAPC focused on these 

conservation objectives is consistent 

with the Council’s Offshore Wind 

Energy Policy, as well as prior offshore 

wind project specific comments 

provided by the Council in recent years. 

The cod spawning habitats within the 

HAPC meet all four of the HAPC criteria 

identified above, and the complex 

bottom habitats meet all criteria except 

for ‘‘rarity.’’ The HAPC area is important 

for current ecological function because 

it includes spawning sites, juvenile 

settlement areas, and feeding areas for 

species with EFH in the area, including 

various cod stocks. Georges Bank 

Atlantic cod, which is in poor stock 

condition (i.e., overfished and 

experiencing overfishing), spawns in the 

area, and Southern New England cod 

represents a genetically distinct 

subpopulation. The subpopulation also 

contributes to the Georges Bank cod 

stock; thus, any impacts to Southern 

New England cod could also 

detrimentally impact the Georges Bank 

stock. With regard to sensitivity to 

anthropogenic stresses, cod spawning 

activities are particularly sensitive to 

adverse impacts from fishing and nonfishing activities, namely from offshore 

wind development (construction, 

operations, and maintenance), and 

complex habitats are susceptible to 

conversion and sedimentation. The 

HAPC meets the ‘‘extent of current or 

future development stresses’’ criterion 

because this area is facing an existing 

on-going development-related threat 

from offshore wind. Finally, regarding 

‘‘rarity,’’ cod spawning habitats (based 

on acoustic environment, seafloor and 

water column setting) are rare with only 

one known grouping of active sites in 

Southern New England. On the other 

hand, complex habitat features alone are 

not considered rare (i.e., spatially or 

temporally very limited). 

The HAPC identified herein is a nonregulatory designation. HAPC 

designations are intended to provide for 

increased attention when habitat 

protection measures are considered. 

HAPCs that are vulnerable to the 

potential impacts from anthropogenic 

activities warrant special attention 

when determining appropriate 

management measures to minimize, 

compensate, or mitigate those impacts. 

Comments and Responses 

The public comment period for the 

proposed rule ended on October 26, 

2023, and NMFS received 14 comments 

from the public. No changes were made 

to the final rule as a result of these 

comments. Eight comments expressed 

concern over offshore wind 

development and its impacts on marine 

life, but they did not address this 

specific action; therefore, no response is 

warranted at this time. 

Comment 1: Two comments 

expressed general support for the HAPC 

designation. 

Response: NMFS agrees and is 

implementing this rule in a timely 

manner. 

Comment 2: Three comments were in 

support of the HAPC designation and 

also urged additional habitat protections 

and considerations for Cox Ledge, 

sensitive habitats, and protected 

species. 

Response: This action does not add 

any restrictions on offshore 

development or fisheries management 

restrictions related to the HAPC. The 

Council’s problem statement and 

objectives described in section 3.3 of the 

framework document (see ADDRESSES) 

focused on the potential for enhancing 

the EFH consultation process and 

conservation recommendations; 

developing new restrictions on fishing 

were outside the scope for the 

framework. Neither NMFS nor the 

Council has the ability to directly 

restrict offshore development, including 

offshore wind. 

Comment 3: A comment from the 

American Clean Power Association 

expressed opposition to the HAPC and 

support for Alternative 2 identified in 

the Council’s framework document 

because it includes only those areas for 

which scientific research has 

demonstrated the presence of cod 

spawning. The comment also urged the 

Council to rely on ‘‘the best available 

sources’’ when identifying EFH ‘‘. . . 

and not the presence of an offshore 

wind lease,’’ noted that the ‘‘lack of data 

on cod spawning in southern New 

England waters does not equate to 

actual scientific evidence of rarity,’’ and 

contended that ‘‘wind development has 

not been directly linked to impacts on 

cod spawning habitat.’’ 

Response: The Council’s preferred 

alternative, Alternative 5, was chosen in 

part because it identifies a broader area 

of Southern New England within which 

the HAPC designation would be applied 

if additional cod spawning activity is 

documented by future data/studies and/ 

or complex habitat is identified. 

Alternative 5 provides NMFS with the 

opportunity at the time of a project 

review to use available data that are 

related to the suitability for cod 

spawning, or the presence or absence of 

cod spawning activity, and/or complex 

habitat in order to determine whether to 

consult on a project area as an HAPC, 

without the need for a new designation 

from the Council. Alternative 2, 

supported by the commenter, focuses on 

Atlantic cod habitat, but this 

designation addresses multiple species 

and threats to those species. In addition, 

the preferred alternative designates 

areas of complex habitat within a broad 

Southern New England footprint as 

HAPC for certain life stages of Atlantic 

cod, Atlantic herring, Atlantic sea 

scallop, little skate, monkfish, ocean 

pout, red hake, winter flounder, and 

winter skate that use these habitats. 

Habitat for these additional species 

should also benefit from conservation 

recommendations based on this HAPC. 

The Council and NMFS have utilized 

the best available data sources to map 

EFH for multiple federally managed fish 

species. The presence of offshore wind 

lease areas is not determinative of what 

areas are mapped EFH. Federal agencies 

are required to consult with the 

Secretary with respect to any action or 

proposed action authorized, funded, or 

undertaken that may adversely affect 

any identified EFH. In establishing 

HAPC designations, which are a subset 

of EFH, the Council and NMFS can 

consider whether, and to what extent, 

development activities are, or will be, 

stressing the habitat type. Offshore wind 

development is a specific stressor 

within the Southern New England lease 

areas, and therefore the spatial extent of 

the HAPC is based on the combined 

footprint of spawning grounds, complex 

habitats, and lease areas. 

With respect to rarity, as noted above, 

NMFS concluded that active cod 

spawning habitats are rare based on 

information regarding critical ecosystem 

features such as the acoustic 

environment, seafloor and water column 

setting, which is the best scientific 

information available. Only one known 

group of active spawning sites exists in 

Southern New England. They are not 


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Federal Register / Vol. 89, No. 24 / Monday, February 5, 2024 / Rules and Regulations 7635 

considered rare due to lack of data. EFH 

for cod spawning that may lead to an 

active cod spawning habitat is identified 

in the HAPC, and any updated data may 

be considered at the time of any action 

or proposed action to determine 

whether consultation is necessary. This 

is consistent with National Standard 2, 

one of the statutory principles that must 

be followed in any FMP as per the 

Magnuson-Stevens Fishery 

Conservation and Management Act, 

which recognizes the dynamic nature of 

the scientific process, the need to 

evaluate new data and uncertainties in 

available information, and to identify 

gaps in available information. Overall, 

cod is a very well-studied species with 

a long fishing history, decades of fishery 

independent surveys, extensive tagging 

work, and, most recently, acoustic 

surveys that have been used to 

document spawning grounds in space 

and time. 

Finally, broad categories of activities 

that may adversely affect EFH include, 

but are not limited to: Dredging; filling; 

excavation; mining; impoundment; 

discharge; water diversions; thermal 

additions; actions that contribute to 

non-point source pollution and 

sedimentation; introduction of 

potentially hazardous materials; 

introduction of exotic species; and the 

conversion of aquatic habitat that may 

eliminate, diminish, or disrupt the 

functions of EFH. 

Changes From the Proposed Rule 

There are no substantive changes from 

the proposed rule. 

Classification 

Pursuant to section 305(d) of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, this 

action is necessary to implement 

adjustments to fishery management 

plans as identified below. In a previous 

action taken pursuant to section 304(b), 

the Council designed the fishery 

management plans (FMP) to specify the 

process for NMFS to take this action 

pursuant to Magnuson-Stevens Act 

section 305(d), and this action puts in 

place administrative designations that 

are not implementing any associated 

management measures. The NMFS 

Assistant Administrator has determined 

that this rule is consistent with the 

Northeast Multispecies FMP; Atlantic 

Sea Scallop FMP; Monkfish FMP; 

Northeast Skate Complex FMP; and 

Atlantic Herring FMP, other provisions 

of the Magnuson-Stevens Act, and other 

applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866, as amended by 

Executive Order 14094. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The basis for the certification 

was published in the proposed rule and 

is not repeated here. No comments were 

received regarding this certification, and 

the initial certification remains 

unchanged. 

This final rule does not duplicate, 

conflict, or overlap with any existing 

Federal rules. 

This final rule contains no new 

information collection requirements 

under the Paperwork Reduction Act of 

1995. 

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

Dated: January 30, 2024. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2024–02239 Filed 2–2–24; 8:45 am] 

BILLING CODE 3510–22–P 


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