[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Notices]
[Pages 28018-28025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13866]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-AV00


Atlantic Highly Migratory Species; Essential Fish Habitat

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

ACTION: Notice of availability of a final integrated environmental 
impact statement and fishery management plan amendment.

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SUMMARY: NMFS announces the availability of a final integrated 
environmental impact statement (EIS) and fishery management plan (FMP) 
amendment pursuant to the National Environmental Policy Act (NEPA) that 
revises existing Highly Migratory Species (HMS) Essential Fish Habitat 
(EFH); establishes a new Habitat Area of

[[Page 28019]]

Particular Concern (HAPC) for bluefin tuna (BFT) in the Gulf of Mexico; 
and includes conservation recommendations for fishing and non-fishing 
impacts on EFH consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and other 
relevant Federal laws. Approval of the amendment will be concurrent 
with approval of the Record of Decision and will occur following the 
30-day waiting period on the FEIS.

DATES: Please refer to an upcoming U.S. Environmental Protection Agency 
(EPA) Federal Register notice regarding this action, EPA's notice is 
expected to publish in the Federal Register within the next week.

ADDRESSES: Copies of the integrated EIS/FMP amendment are available 
from the Highly Migratory Species Management Division, NMFS/SF1, 1315 
East-West Highway, Silver Spring, MD 20910, or by contacting Chris 
Rilling at (301) 713-2347 or by emailing <a href="/cdn-cgi/l/email-protection#35565d475c461b475c59595c5b52755b5a54541b525a43"><span class="__cf_email__" data-cfemail="afccc7ddc6dc81ddc6c3c3c6c1c8efc1c0cece81c8c0d9">[email protected]</span></a>. 
Electronic copies are also available on the HMS website under Breaking 
News at http://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Chris Rilling or Sari Kiraly by phone 
at (301) 713-2347 or by fax at (301) 713-1917.

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Act (16 U.S.C. 1801 et seq.) as amended by the 
Sustainable Fisheries Act (Public Law 104-297) requires the 
identification and description of EFH in FMPs and the consideration of 
actions to ensure the conservation and enhancement of such habitat. The 
EFH regulatory guidelines (50 CFR 600.815) state that NMFS should 
periodically review and revise EFH, as warranted, based on available 
information.
    EFH, including HAPCs, for HMS was first identified and described in 
the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks, and in the 1999 
Amendment 1 to the Atlantic Billfish FMP. EFH for five shark species 
was updated in the 2003 Amendment 1 to the 1999 FMP for Atlantic Tunas, 
Swordfish, and Sharks. NMFS reviewed all new and existing EFH data in 
the 2006 Consolidated HMS FMP and determined that revisions to existing 
EFH for some Atlantic HMS may be warranted. This final amendment to the 
2006 Consolidated HMS FMP (hereafter Final Amendment 1) amends the 
existing EFH identifications and descriptions, and designates a new 
HAPC for BFT in the Gulf of Mexico.
    On November 7, 2006 (71 FR 65088), NMFS published a Notice of 
Intent to prepare an EIS to examine alternatives for updating existing 
HMS EFH, consider additional HAPCs, analyze fishing gear impacts, and 
if necessary, identify ways to avoid or minimize, to the extent 
practicable, adverse fishing impacts on EFH consistent with the 
Magnuson-Stevens Act and other relevant Federal laws. On the same day, 
NMFS also made available a Pre-Draft of Amendment 1 that included a 
general description of the approaches being considered to update EFH, 
considered new HAPCs, and where applicable, recommendations to minimize 
fishing impacts. The Pre-Draft also served to obtain additional 
information and input from the public and Atlantic HMS Consulting 
Parties on potential options or alternatives to consider prior to 
development of the Draft EIS for Amendment 1 of the Consolidated HMS 
FMP. Two scoping meetings were held in conjunction with the HMS 
Advisory Panel (AP) meetings in March 2007 (72 FR 7860; February 21, 
2007) and October 2007 (72 FR 49264; August 28, 2007).
    Based in part on the comments received during scoping and from the 
HMS AP, on September 19, 2008, NMFS released Draft Amendment 1 to the 
Consolidated HMS FMP and the associated Notice of Availability (73 FR 
54384). The public comment period was originally scheduled to end on 
November 18, 2008, however it was subsequently extended (73 FR 66844, 
November 12, 2008) and reopened until December 12, 2008, to provide the 
Regional Fishery Management Councils, the Interstate Marine Fisheries 
Commissions, and the public additional opportunity to submit comments.
    Draft Amendment 1 proposed to update HMS EFH boundaries using new 
data and a new approach for mapping EFH, and proposed to designate a 
new HAPC for BFT in the Gulf of Mexico. Draft Amendment 1 also included 
an analysis of fishing and non-fishing impacts on EFH as required by 
the Magnuson-Stevens Act and the EFH regulations. NMFS consulted with 
the HMS AP; the New England, Mid-Atlantic, South Atlantic, Caribbean, 
and Gulf of Mexico Fishery Management Councils; and the Gulf and 
Atlantic States Marine Fisheries Commissions. Since NMFS was not 
proposing new regulations with respect to EFH, NMFS did not prepare a 
proposed rule in conjunction with the DEIS. The summary of the comments 
received and NMFS' responses are provided below. Based on these public 
comments, NMFS made some changes to the EFH and HAPC boundaries as 
outlined in Final Amendment 1.

Changes from the Draft Amendment 1

    1. Draft Amendment 1 considered several alternatives for updating 
HMS EFH. The preferred alternative to identify EFH based on the 95 
percent probability boundary was not changed in Final Amendment 1. This 
approach was selected as the preferred alternative because it is based 
on the actual data points and provides a standardized, transparent, and 
reproducible method for delineating EFH. However, in some cases, the 95 
percent probability boundaries were modified following additional 
analysis of the data and consultation with NMFS scientists familiar 
with the biology, life history, and habitat requirements of the 
species. These changes may have incorporated new areas known by species 
experts to be EFH, or conversely, may have removed areas that were not 
considered EFH for some species. The final boundaries are available as 
maps in the Final Amendment 1 and on the interactive webpage at http://sharpfin.nmfs.noaa.gov/website/EFH_Mapper/HMS/map.aspx.
    2. To further the conservation and enhancement of EFH, the EFH 
guidelines encourage the identification of HAPCs. HAPCs are areas 
within EFH that should be identified based on one or more of the 
following considerations: 1) the importance of the ecological function 
provided by the habitat; 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. HAPCs can be used 
to focus conservation efforts on specific habitat types or areas that 
are especially important ecologically or particularly vulnerable to 
degradation. HAPCs are not required to have any specific management 
measures and a HAPC designation does not automatically result in 
closures or other fishing restrictions. Rather, the areas are intended 
to focus conservation efforts and bring heightened awareness to the 
importance of the habitat being considered as a HAPC.
    Draft Amendment 1 considered several alternatives for designating 
HAPCs for BFT spawning areas in the Gulf of Mexico. Data used to 
delineate the HAPC boundary included NMFS observer program data, NMFS 
larval surveys, pop-up archival tag (PAT) data, pop-up satellite 
archival tag (PSAT) data, and peer-reviewed publications that include 
information highlighting the importance of the central Gulf of

[[Page 28020]]

Mexico as a BFT spawning area. Although there are no direct 
environmental effects of designating the BFT HAPC, the designation 
could help identify additional conservation efforts to minimize the 
impacts on BFT spawning habitat. Based on public comment, additional 
analysis of the data, and consultation with NMFS scientists familiar 
with the biology, life history, and habitat requirements of the 
species, NMFS modified the BFT HAPC boundary west of 86 degrees West 
longitude to follow the 100 meter isobath in the Gulf of Mexico and 
extending to the Exclusive Economic Zone (EEZ) boundary. The final HAPC 
boundary is available as a map in the Final Amendment 1 and on the 
interactive webpage at http://sharpfin.nmfs.noaa.gov/website/EFH_Mapper/HMS/map.aspx.

Fishing and Non-Fishing Activities

    In addition to considering revisions to existing EFH and 
designating new HAPCs, the EFH guidelines require that FMPs identify 
fishing and non-fishing activities that may adversely affect EFH. Each 
FMP must include an evaluation of the potential adverse impacts of 
fishing on EFH designated under the FMP, effects of each fishing 
activity regulated under the FMP, as well as the effects of other 
Federal FMPs and non-federally managed fishing activities (i.e., state 
fisheries) on EFH. The FMPs must describe each fishing activity and 
review and discuss all available relevant information such as the 
intensity, extent, and frequency of any adverse effects on EFH; the 
type of habitat within EFH that may be adversely affected; and the 
habitat functions that may be disturbed (50 CFR 600.815(a)(2)). If 
adverse effects of fishing activities are identified, then the 
Magnuson-Stevens Act requires the effects of such fishing activities on 
EFH to be minimized to the extent practicable (Magnuson-Stevens Act 
section 303(a)(7)).
    NMFS completed the original analysis of fishing and non-fishing 
impacts in the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks, and 
included a comprehensive review of all fishing gears and non-fishing 
activities that could potentially impact EFH in the 2006 Consolidated 
HMS FMP. In that FMP, NMFS preliminarily concluded that no HMS gear, 
other than bottom longline, was likely to have an effect on HMS or 
other managed species' EFH since most HMS gears such as rod and reel, 
handline, and pelagic longline, are fished in the water column where 
they are unlikely to affect either the water column or benthic habitat 
that define EFH for managed species. Bottom longline gear is used 
predominantly in the Atlantic commercial shark fishery to target large 
and small coastal sharks. The 2006 Consolidated HMS FMP also indicated 
that additional analyses would be initiated to determine the extent to 
which bottom longline gear might be impacting specific habitats such as 
coral reefs, which are generally considered the habitat type most 
likely to be adversely affected by bottom longline gear.
    The Draft Amendment 1 included an assessment of whether HMS bottom 
longline gear is used in EFH; an analysis of the intensity, extent, and 
frequency of such impacts; and a determination as to whether those 
impacts are more than minimal and not temporary. The ``more than 
minimal and not temporary'' threshold was established by NMFS as the 
necessary threshold for taking additional action to minimize such 
impacts. Based on the analysis, NMFS has determined that while BLL gear 
in general may have an effect on EFH, shark BLL gear as currently used 
in the shark fishery was not having more than a minimal and temporary 
effect on EFH. As a result, NMFS did not propose or finalize any 
measures to regulate shark BLL fishing in association with EFH. The 
findings are based on shark bottom longline observer program data which 
indicate that only a small fraction of bottom longline sets occur 
within coral reef habitat in addition to other recent measures 
implemented in Amendment 2 to the 2006 Consolidated HMS FMP for the 
Atlantic shark fishery, which greatly reduced fishing effort in the 
Atlantic shark fishery (73 FR 35778; June 24, 2008, and corrected at 73 
FR 40658; July 15, 2008). NMFS will continue to work with the Regional 
Fishery Management Councils to identify areas where bottom longline 
gear used in the reef fish fishery or snapper grouper fishery may be 
having an adverse effect on habitat, and where the Councils may 
consider measures to reduce impacts. In those cases, NMFS may consider 
complementary regulations to prohibit shark bottom longline gear as was 
done in the Caribbean (72 FR 5633, February 7, 2007) and most recently 
in the South Atlantic Marine Protected Areas (73 FR 40658, July 15, 
2008).
    The Gulf of Mexico Fishery Management Council is currently 
developing a final programmatic environmental impact statement (FPEIS)/
FMP for offshore aquaculture in the Gulf of Mexico. Based on public 
comments concerning the impacts of aquaculture projects on EFH and the 
BFT HAPC in particular, NMFS included a section in Chapter 6 of the 
FEIS describing the Aquaculture FPEIS, the potential impacts of 
offshore aquaculture, and recommended conservation measures.

Response to Comments

    Public comments on Draft Amendment 1 were accepted at the HMS AP 
meeting, Fishery Management Council meetings, and public hearings, as 
well as written comments submitted electronically to <a href="/cdn-cgi/l/email-protection#2f67627c6a69676f41404e4e01484059"><span class="__cf_email__" data-cfemail="e7afaab4a2a1afa789888686c9808891">[email protected]</span></a> or 
mailed during the comment period. A total of 34 comment letters or 
postings were received from Federal and state resource and 
environmental agencies, fishing industry, environmental groups, 
recreational fishing interests, and the public. In addition, NMFS 
received 1,035 form letters expressing support for the BFT HAPC in the 
Gulf of Mexico (an example is provided in Appendix 2 of the FEIS). All 
comments were considered by NMFS in development of this FEIS and are 
included in Appendix 2. For purposes of indicating how comments were 
considered in development of this FEIS and Final Amendment 1, the 
comments are grouped into subject headings of EFH designations, HAPCs, 
and impacts on EFH.

1. Essential Fish Habitat Designations

    Comment 1: NMFS should include information from catches of 
blacktip, sandbar, and dusky sharks that appear to overwinter in 
Mexican waters. The data would indicate that NMFS should consider a 
secondary sandbar shark nursery ground off Brownsville, Texas.
    Response: While NMFS agrees that considering habitat use by HMS and 
other federally managed species outside the U.S. EEZ is important, EFH 
cannot be designated outside the U.S. EEZ and therefore NMFS did not 
seek information on sharks from countries other than the United States. 
In fact, BFT is the only HMS for which NMFS has data from within 
Mexican waters. Blacktip shark is the only shark species referred to be 
the commenter where available U.S. information was sufficient to 
identify EFH for all three life stages. Although there were isolated 
catches of sandbar and dusky sharks off southern Texas, there was 
insufficient information to identify EFH for either species off 
Brownsville, Texas. NMFS would need additional data or information to 
support an EFH designation for sandbar or dusky sharks off Brownsville.
    Comment 2: NMFS should consider separate EFH areas for blacknose 
sharks in the Gulf of Mexico and those in the

[[Page 28021]]

Atlantic, and consider incorporating shrimp trawl data.
    Response: In the 2007 blacknose shark stock assessment, the 
assessment scientists decided after reviewing the available data, that 
blacknose sharks should be assessed as a single stock. The scientists 
noted that there was conflicting genetic data regarding the existence 
of two separate stocks, and they recognized the potential differences 
in the reproductive cycle for South Atlantic and Gulf of Mexico 
populations. However, given that the stock assessment did not consider 
blacknose to be comprised of two separate stocks, NMFS has decided to 
keep the EFH areas for blacknose sharks as a single EFH designation. It 
should be noted that the EFH boundaries in the Atlantic and Gulf of 
Mexico are similar in size and scope, indicating that both areas play 
an important role in the life history and habitat requirements for 
blacknose sharks.
    Comment 3: The disadvantage of the preferred alternative 
(alternative 3) is that data-poor species result in smaller, 
discontinuous areas of EFH than data-rich species. The species with 
limited habitat data should be clearly listed, as well as an approach 
to try to verify or modify these EFH boundaries to ensure they are 
protective; the DEIS does not provide adequate information to show that 
this is a protective approach for all species covered.
    Response: NMFS agrees that, depending upon the number of data 
points, data poor species tend to result in smaller, discontinuous 
areas of EFH than data rich species. To help address this concern, NMFS 
combined data from all three life stages for some of the data poor 
species. Examples include angel shark, basking shark, and bigeye 
thresher, among others. NMFS has provided a complete list of species 
for which data from two or more life stages were combined in Table 5.3 
of the FEIS. In some cases, the increase in the number of data points 
helped alleviate some of the patchiness in the EFH boundaries. In other 
cases, it may not have helped, and NMFS scientists familiar with the 
habitat requirements for the species may have recommended that, where 
appropriate, and where there was specific knowledge of the habitat 
utilized by certain life stages, that the smaller discontinuous areas 
be manually combined into a single continuous area. Examples where this 
approach was used include smooth hammerhead sharks and common thresher 
shark. There may have been some species for which NMFS was unable to 
make further adjustments due to lack of additional data and smaller, 
discontinuous areas may still be evident.
    Comment 4: A discussion should be provided to discuss the 
monitoring plans, data gaps, and how future EFH related data will be 
obtained and used.
    Response: Chapter 7 of the FEIS provides an update of research and 
information needs for each of the major HMS stocks (tunas, swordfish, 
billfish, and sharks) as well as the information gaps and how best to 
address them.
    Comment 5: How can NMFS illustrate EFH in state waters? Has NMFS 
ground truthed EFH in state waters with the research surveys being done 
by the states?
    Response: Depending upon the species and life stage, NMFS may have 
identified portions of state waters as EFH. This is more likely to be 
the case for sharks, which use coastal bays and estuaries as nursery 
and pupping grounds, than for other HMS such as tunas and billfish 
which tend to be further offshore and occur less frequently in state 
waters. It may also depend upon the extent of the state's seaward 
boundary. Both Florida (west coast) and Texas have 9 nautical mile 
territorial sea boundaries which may encompass EFH for a number of HMS. 
For sharks that occur in state waters, many of the data points used to 
designate EFH were drawn from individual researchers who may have 
contributed to the NMFS Cooperative Atlantic States Shark Pupping and 
Nursery Areas (COASTSPAN) program and the synthesis document ``Shark 
nursery grounds of the Gulf of Mexico and the east coast waters of the 
United States'' (McCandless et al., 2007). Although not every research 
survey done in a state may have been included in the analysis, a 
considerable amount of data was included from surveys or data collected 
by other means in state waters, including fishery independent surveys 
conducted by states.
    Comment 6: What kind of data was used to map EFH in estuaries?
    Response: As described in the previous response and more thoroughly 
in Chapters 2 and 4 of the FEIS, NMFS used observer program data, data 
from individual researchers, scientists participating in the COASTSPAN 
program, tag/recapture data from various tagging programs, and state 
fishery independent monitoring to generate the initial probability 
boundaries. NMFS then consulted with scientists familiar with the 
habitat requirements for the species to determine whether specific bays 
and estuaries should be included as EFH boundaries. NMFS also cross-
checked the resulting probability boundaries with scientific data from 
peer-reviewed publications and collaborated with scientists to ensure 
the correct data were used and that appropriate areas were delineated. 
Finally, NMFS had an extended 90-day comment period for the DEIS during 
which all of the proposed boundaries were available for viewing in hard 
copy and electronic format, and on an interactive internet mapping 
site. NMFS received a number of comments during that period which 
further helped to determine whether specific estuaries should be 
included.
    Comment 7: Does HMS EFH encompass the entire water column?
    Response: Yes, at this point, HMS EFH is considered to encompass 
the entire water column. At some point in the future, NMFS may have the 
necessary data and technology to differentiate between different water 
depths utilized by HMS and further refine the exact habitat within the 
water column that is essential; however, NMFS does not yet have that 
capability. EFH from some species of sharks also includes benthic 
habitat in coastal areas for shark pupping and nursery grounds.
    Comment 8: Do the lead weights used on deep sea trawls have an 
impact on HMS EFH?
    Response: No, lead weights used on deep sea trawls do not have an 
impact on HMS EFH because HMS EFH does not include benthic habitat in 
deep sea areas. HMS EFH is instead defined by the water column and not 
benthic habitat.
    Comment 9: Were the bottom longline vessel locations near the coral 
reefs collected with GPS or some other means? The locations may not be 
accurate depending on how the locations were obtained or recorded.
    Response: Depending on the year, latitude and longitude coordinates 
may have been collected using either a Global Positioning System (GPS) 
or U.S. Coast Guard Long Range Aid to Navigation (LORAN-C). LORAN was 
used widely throughout the 1980s and early 1990s before most vessels 
began to switch to GPS. Since the data are from the mid 1990s it is 
possible that some data were collected by LORAN-C which may be subject 
to error.
    Comment 10: Did NMFS use vessel trip reports or pelagic longline 
logbook data in the analysis?
    Response: NMFS did not use vessel trip reports or pelagic longline 
logbook data because neither data set includes size information which 
is necessary to identify EFH by life stage as required by the EFH 
regulations.
    Comment 11: The EFH mapper is great, loads quickly, and is a good 
way to present the data.

[[Page 28022]]

    Response: NMFS received many favorable comments about the EFH 
mapping tool. NMFS considers the EFH mapper to be an effective way to 
make HMS EFH boundaries available to the public, state, and federal 
agencies that need to consider whether a proposed project may occur 
within EFH boundaries. The high resolution and detail that is available 
on the EFH mapper is far superior to static, hardcopy maps. By zooming 
in and out on specific coastal areas, it is possible for interested 
parties to determine the exact location of HMS EFH boundaries. This in 
turn will help applicants determine whether consultation may be 
required. In addition, the internet mapping site provides a cost-
effective alternative to the high cost associated with printing color 
maps.
    Comment 12: Will NMFS be able to provide the spatial EFH files to 
the public or interested parties?
    Response: Yes, NMFS plans to continue using the EFH mapping site 
that was used during the DEIS comment period. In addition, maps and 
downloadable spatial EFH files for all federally managed species can be 
found on the NMFS EFH Mapper at http://sharpfin.nmfs.noaa.gov/website/EFH_Mapper/map.aspx. NMFS will continue to provided spatial Geographic 
Information System (GIS) EFH files to interested parties upon request. 
Even prior to development of the internet site, NMFS regularly provided 
spatial Geographic Information System (GIS) EFH files to interested 
parties upon request, and will continue to do so.
    Comment 13: Did NMFS do a statistical analysis of whether there 
were sufficient points or adequate sample size to determine EFH based 
on presence/absence data? If not, at the least, NMFS should include the 
number of data points used for each of the species.
    Response: NMFS did not perform a statistical analysis to determine 
whether there were sufficient data points to determine EFH, but did 
provide the number of data points used by data source for each species 
on the hardcopy maps in the FEIS. NMFS also included the number of data 
points represented by each species and life stage in the electronic PDF 
versions of the maps, but could not include them on the EFH internet 
mapping site.
    Comment 14: Are there any plans to consider HAPCs for any other 
species?
    Response: NMFS is not considering additional HAPCs at this time, 
however this does not preclude future HAPC designations.
    Comment 15: NMFS should consider forage species as EFH.
    Response: According to the Magnuson-Stevens Act, EFH is defined as 
areas necessary for spawning, breeding, feeding, and growth to 
maturity. As part of the analysis in determining EFH, NMFS considered 
areas that were important feeding areas and where prey species play an 
important role. However, NMFS is not required to designate EFH for a 
particular species based purely on the availability, or primary habitat 
of, prey species. Prey species are one component that is taken into 
consideration when determining EFH.

2. Habitat Areas of Particular Concern (HAPCs)

    Comment 1: NMFS received numerous comments in support of the HAPC 
designation for BFT in the Gulf of Mexico including 1,035 letters from 
members of the Monterey Aquarium's Ocean Action Team.
    Response: NMFS recognizes that HAPCs are intended to focus 
conservation efforts and bring heightened awareness to the ecological 
importance of special areas and their vulnerability to degradation 
through fishing and non-fishing activities. Designating the bluefin 
tuna spawning area in the Gulf of Mexico should highlight the 
importance of the area and foster added conservation measures to reduce 
impacts from these activities. By establishing the EFH provisions, the 
Magnuson-Stevens Act clearly recognized and acknowledged the importance 
of habitat in maintaining healthy fish stocks. The EFH provisions 
provide a tool by which NMFS has greater oversight of development 
activities that have the potential to impact EFH. Specifically, section 
305(b)(1)(D) of the Magnuson-Stevens Act 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.
    Comment 2: We support designation of the HAPC for BFT in the Gulf 
of Mexico. Each of the criteria under the EFH HAPC guidelines is 
satisfied. Bluefin tuna spawning habitat in the Gulf of Mexico is 
vulnerable to a number of sources of human-induced degradation, 
including: 1) reduced availability of prey fish for feed should 
offshore aquaculture be developed (EFH guidelines identify actions that 
reduce the availability of major prey species as adverse effects on 
EFH); 2) expanded offshore oil drilling and liquefied natural gas 
development; 3) threats to sargassum habitat, which studies have found 
support larvae of BFT and other pelagic species; 4) and dead zones that 
potentially could pose a long-term threat to spawning success. The area 
designated for HAPC is in need of additional levels of protection from 
such adverse impacts.
    Response: NMFS agrees that there are a number of activities that 
have the potential to impact EFH and HAPCs, not just in the Gulf of 
Mexico, but in all areas. The Gulf of Mexico Fishery Management Council 
(GMFMC) is currently developing an Aquaculture FPEIS. The purpose of 
the plan is to establish a regional permitting process to manage the 
development of an environmentally sound and economically sustainable 
aquaculture industry in federal waters of the Gulf of Mexico. 
Aquaculture projects for council managed species in federal waters of 
the Gulf of Mexico would need to be authorized and receive a permit 
from the GMFMC. Permit applicants would be required to conduct a 
baseline environmental assessment of the proposed site prior to permit 
review by NMFS. If a permit is authorized, permittees would have to 
conduct routine monitoring of a site based on NMFS protocols and 
procedures developed in coordination with other federal agencies. 
Aquaculture operations would also be required to report to NMFS within 
24 hours of the discovery of: major escapement; entanglements or 
interactions with marine mammals, endangered species and migratory 
birds; and findings or suspected findings of pathogens. Other 
activities such as oil and gas development are subject to the 
consultation provisions under the Magnuson-Stevens Act. Section 
305(b)(1)(D) of the Magnuson-Stevens Act 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.
    Comment 3: Designating a HAPC for BFT populations will be a 
critically important step if it is to have any semblance at returning 
to viability. Other actions NMFS should take include: 1) developing an 
EIS for offshore aquaculture in federal waters; 2) reigning in permits 
for offshore aquaculture in federal waters; 3) reducing fishing for 
feedfish; and 4) designating the area identified as preferred 
alternative 2 as a HAPC.
    Response: As discussed in the previous response, the GMFMC prepared 
a FPEIS for offshore aquaculture, which evaluates the potential 
environmental impacts of a range of alternatives and describes 
potential impacts to water quality, wild stocks, and fishing 
communities.

[[Page 28023]]

Potential impacts resulting from offshore aquaculture may include 
increased nutrient loading, habitat degradation, fish escapement, 
competition with wild stocks, entanglement of endangered or threatened 
species and migratory birds, spread of pathogens, user conflicts, 
economic and social impacts on domestic fisheries, and navigational 
hazards. The preferred alternatives selected by the Gulf Council are 
intended to prevent or mitigate to the extent practicable these 
potential adverse environmental impacts.
    Comment 4: We believe that recent studies by Dr. Barbara Block of 
Stanford University indicate designation of the Atlantic BFT HAPC is 
necessary to prevent further depletion of the western population.
    Response: In addition to Dr. Block's research, a number of other 
publications, studies, and data collected by NMFS as well as other 
state and Federal institutions, have highlighted the importance of the 
Gulf of Mexico for spawning BFT. Combined, all of these sources provide 
support for the designation of a HAPC for BFT in the Gulf of Mexico.
    Comment 5: We support the designation of the BFT HAPC in the Gulf 
of Mexico, but recommend that the area be amended to include all waters 
west of 86 degrees West longitude and off the continental shelf (e.g., 
offshore of the 200 m contour) to the boundary of the U.S. EEZ, which 
is more scientifically accurate and is based on analyses of the 
combined electronic tagging and fishery data sets.
    Response: Based on public comment, and further review of the data, 
NMFS has modified the HAPC boundary that was originally proposed in 
Draft Amendment 1 to follow the 100 meter (m) isobath west of 86 
degrees West longitude in the Gulf of Mexico, and include all waters 
seaward of the 100m isobath to the EEZ boundary. NMFS believes that the 
changes to the boundary reflect the areas that are most important for 
BFT spawning in the Gulf of Mexico.
    Comment 6: Why are there straight lines for the BFT HAPC in the 
Gulf of Mexico? Does NMFS have data to support a BFT HAPC in waters off 
western Louisiana? Spawning areas do not follow straight lines, and the 
northernmost portion should be moved further south. It would be better 
to follow existing contour lines.
    Response: As described in the previous response, NMFS has modified 
the HAPC boundary to follow the 100m isobath in the Gulf of Mexico. 
Although straight lines are sometimes useful for management and 
enforcement purposes, NMFS agrees that in this case, the best 
representation of the HAPC boundary in the Gulf would be to follow 
existing contour lines to better reflect habitat useage by BFT.
    Comment 7: Is using larval data as a proxy for adult BFT spawning 
areas appropriate?
    Response: NMFS used a variety of data sources to establish the HAPC 
boundary for BFT spawning areas in the Gulf of Mexico. As described in 
the FEIS, a number of alternatives were proposed, including a non-
preferred alternative of using the 95 percent probability boundary for 
BFT larval data collections to which the commenter is referring. 
Instead, NMFS preferred alternative 2 which relied on a number of data 
sources, one of which included BFT larval data collections.
    Comment 8: We support NMFS preference of HAPC alternative 2 over 
Alternatives 3 and 4; alternative 3 is biased due to larval sampling 
stations, and alternative 4 does not capture the entire spawning 
ground.
    Response: NMFS agrees that alternative 2 is the best alternative 
for designating a HAPC for BFT spawning areas in the Gulf of Mexico 
because it encompasses the most important areas where BFT spawning is 
occurring rather than the areas where BFT eggs and larvae may be 
dispersed.
    Comment 9: We request that you remove the Teo et al. (2007) overlay 
from the HAPC maps, as it misrepresents the data, the layers are not 
digitized accurately, and including the data overemphasizes the 
location of 28 individuals displaying breeding behavior as compared to 
thousands of points from the observer program, logbooks, and electronic 
tagging.
    Response: NMFS has removed the Teo et al. (2007) overlay from the 
HAPC maps in the FEIS. The original intent of including the area in the 
Draft Amendment was to demonstrate the importance of the western Gulf 
of Mexico as one of the key areas for BFT spawning, and to indicate 
that the HAPC preferred alternative would encompass portions of the 
area within the U.S. EEZ considered primary breeding areas in the Teo 
et al. (2007). publication.
    Comment 10: I support the creation of a HAPC for BFT in the Gulf of 
Mexico; I think NMFS should put the entire area off limits to 
development, fishing, and oil drilling.
    Response: Section 305(b)(1)(D) of the Magnuson-Stevens Act 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 the 
agency or the activities of other agencies such as the Army Corps of 
Engineers or Mineral Management Service for development or offshore 
drilling. Section 305(b)(4)(B) requires federal agencies to respond in 
writing to such comments. Although NMFS has the regulatory authority to 
minimize fishing activities that are demonstrated to have more than a 
minimal and not temporary effect on EFH, NMFS has not proposed, nor 
implemented any measures to minimize fishing impact on EFH in this FEIS 
because NMFS has determined that BFT EFH is in the water column and 
fishing is not having more than a minimal impact on water column 
properties. Further, the Department of Commerce does not have the legal 
authority to regulate oil drilling.
    Comment 11: NMFS received a number of comments regarding the HAPC 
and fishing effort including: (1) I support the HAPC and recommend 
closure of the Gulf of Mexico and Atlantic to longlining of any type; 
(2) this type of fishing is non selective and is destroying the fish 
and other wildlife indiscriminately; (3) BFT spawning grounds in the 
Gulf of Mexico need to be closed to purse seine and longline commercial 
fishing during the breeding season; and 4) NMFS should consider a 
seasonal closure for pelagic longlining in the HAPC during the bluefin 
spawning season.
    Response: The EFH guidelines require NMFS to identify fishing and 
non-fishing activities that may adversely affect EFH. Since most HMS 
EFH is comprised of the water column, of which the characteristics of 
temperature, salinity, and dissolved oxygen are unlikely to be affected 
by fishing gears, NMFS concluded that fishing gears were not having a 
negative effect on most HMS EFH. As a result, NMFS did not propose any 
measures to regulate fishing in association with EFH. NMFS has provided 
a list of conservation recommendations for fishing and non-fishing 
activities that have the potential to impact EFH in the FEIS. Since the 
focus of this amendment is EFH, NMFS did not consider any alternatives 
or regulatory measures to limit fishing effort in order to reduce

[[Page 28024]]

bycatch. Such an action would need to be considered in a separate 
rulemaking or amendment. The Consolidated HMS FMP did include measures 
to reduce bycatch. NMFS is continuing to monitor bycatch of BFT in the 
Gulf of Mexico, and has implemented 100 percent observer coverage on 
pelagic longline vessels during the spawning season. Although NMFS 
issues permits for tuna purse-seining, targeting of BFT in the Gulf of 
Mexico is prohibited and purse-seining for BFT, or any other HMS, is 
not authorized in the Gulf of Mexico.
    Comment 12: Despite the clearly recognized importance of Gulf 
spawners, NMFS has allowed continued bycatch mortality of mature BFT on 
their spawning ground by the U.S. pelagic longline fleet. We hope that 
by deciding to focus future conservation efforts for BFT on the Gulf of 
Mexico, NMFS will take even more proactive steps towards protecting 
these spawners.
    Response: Targeting BFT is prohibited in the Gulf of Mexico. 
Vessels are currently subject to target catch requirements in order to 
retain any incidentally caught BFT. As indicated in the previous 
response, NMFS has implemented 100 percent observer coverage in the 
Gulf of Mexico during BFT spawning season (April-June) during the 
previous two years and will have 100 percent observer coverage again 
this year. This information will help NMFS to better understand the 
scope of the bycatch, the areas most likely to result in incidental 
catch of BFT, and the temporal variability in bycatch.
    Comment 13: NMFS has incorrectly stated that the HAPCs for sandbar 
sharks in the Chesapeake Bay as being in the State of Maryland. In 
actuality, the HAPCs were identified in waters of Virginia.
    Response: The commenter is correct that the majority of the HAPC 
for sandbar sharks is in Virginia state waters; however a portion of 
the HAPC is also located in Maryland state waters. As a result, NMFS 
has amended the language in the FEIS to say that the HAPC for sandbar 
sharks occurs in both Maryland and Virginia state waters of the 
Chesapeake Bay.

3. Fishing and Non-Fishing Impacts on Essential Fish Habitat

    Comment 1: NMFS states that if future analyses indicate certain 
fishing gears are having a more than minimal and not temporary effect 
on EFH, NMFS will propose alternatives to avoid or minimize those 
impacts in a subsequent rulemaking; in this regard, we note that 
Atlantic BFT are subject to indirect fishing pressure within the 
spawning grounds during the spawning season, in particular as bycatch 
in pelagic longline fisheries targeting other species.
    Response: NMFS is aware of the incidental catch of BFT in the Gulf 
of Mexico and is continuing to monitor the situation in the Gulf of 
Mexico with 100 percent observer coverage on pelagic longline vessels 
during the spawning season. Since the focus of this amendment is 
habitat, NMFS did not consider any alternatives or regulatory measures 
to limit fishing effort in order to reduce bycatch. Such an action 
would need to be considered in a separate rulemaking or amendment, as 
appropriate.
    Comment 2: We are concerned that NMFS' evaluation of the non-
fishing threats to the proposed BFT HAPC in the Gulf of Mexico is 
incomplete - NMFS has completely failed to address the potential threat 
posed by seismic exploration activities associated with the expansion 
of oil and gas development in the Gulf.
    Response: NMFS agrees that seismic exploration has the potential to 
affect habitat use by a number of species including HMS, and has 
therefore included conservation recommendations in the FEIS for seismic 
exploration activities associated with the expansion of oil and gas 
development in the Gulf of Mexico. During the normal course of 
consultation, habitat experts would review all available data to 
determine whether potentially harmful habitat effects had been 
adequately addressed prior to approval of any applications.
    Comment 3: Additional information should be provided on how 
determinations will be made regarding impacts from fishing gear; 
further assurance should be given as to how any impacts will be 
addressed.
    Response: Determination of impacts from fishing gears would be done 
in a manner similar to the analysis completed in the current Amendment 
for shark bottom longline gear. That is, NMFS would analyze the nature, 
scale, scope, duration, and frequency of impacts of fishing gears on 
specific habitat types and make a determination as to whether the 
impacts are considered more than minimal and not temporary in nature. 
If such an effect is demonstrated, then NMFS would propose measures to 
minimize those impacts. Impacts would be addressed on a case-by-case 
basis based on analysis of existing data.
    Comment 4: The GMFMC is considering offshore aquaculture projects 
that should be considered a fishing impact, and could have an impact on 
BFT EFH.
    Response: NMFS is aware of the Programmatic EIS for offshore 
aquaculture that the GMFMC is finalizing and has included a discussion 
of offshore aquaculture, including conservation recommendations, in the 
Final EIS.
    Comment 5: Did the EFH analysis include fishing effort? If not, 
this could be why there is no EFH identified for adult swordfish off 
the southeast corner of Florida.
    Response: NMFS provided a detailed description of the data and 
approach used to update EFH boundaries in Chapter 4 of the FEIS, 
including inherent limitations in certain data sets and why others were 
not included. To summarize, NMFS did not include fishing effort in the 
EFH analysis for a variety of reasons. Most of the presence/absence 
data available for HMS does not include fishing effort. Some of the 
data sets that do include fishing effort, such as the Pelagic Longline 
Logbook data, do not include the size information required to identify 
EFH by lifestage as required by the EFH regulations. Other data sets 
that include fishing effort, such as the Pelagic Observer Program (POP) 
data, comprise only a small proportion of the overall data available 
for pelagic species. Thus, relying on fishing effort from the POP data 
alone would have precluded the use of other datasets and would have 
reduced the potential range of EFH.
    Comment 6: ``Dead zones'' due to hypoxia could pose a significant 
long-term threat to spawning success for BFT. NMFS should include 
additional information on the dead zone in the Gulf of Mexico and 
potential impacts on BFT EFH and the HAPC.
    Response: NMFS is aware of dead zones due to hypoxia in the Gulf of 
Mexico. Dead zones typically occur in benthic or near-benthic 
environments where they would be unlikely to affect BFT habitat. NMFS 
has examined this issue in more detail and included a discussion on 
hypoxia in the Final EIS.
    Comment 7: What would the process be if there is a proposed 
aquaculture project in the BFT HAPC? Would the project still be allowed 
to happen?
    Response: The GMFMC regulates non-HMS fisheries, including 
aquaculture, in the U.S. Gulf of Mexico EEZ, which extends from state 
waters to 200 nautical miles offshore. Landings or possession of 
species managed under an FMP for purposes of commercial marine 
aquaculture production in the EEZ constitutes ``fishing'' as defined in 
the Magnuson-Stevens Act. Permit applicants would be required to 
conduct

[[Page 28025]]

a baseline environmental assessment of the proposed site prior to 
permit review by NMFS. If a permit is authorized, permittees would have 
to conduct routine monitoring of a site based on NMFS protocols and 
procedures developed in coordination with other federal agencies. 
Aquaculture operations would also be required to report to NMFS within 
24 hours of the discovery of: major escapement; entanglements or 
interactions with marine mammals, endangered species and migratory 
birds; and findings or suspected findings of pathogens.
    Comment 8: Has NMFS considered harmful algal blooms (HABs) in the 
non-fishing impacts section?
    Response: While HABs are a concern for a number of species, in 
general they are less likely to affect habitat for HMS because HABs 
tend to occur closer to shore in areas where HMS are less likely to 
occur. In addition, given their highly mobile nature, HMS are more 
likely to avoid prolonged contact with HABs in affected areas. However, 
NMFS considers this an important issue and has included additional 
information on HABs in the non-fishing impact section of the FEIS.

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

    Dated: June 9, 2009.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-13866 Filed 6-11-09; 8:45 am]
BILLING CODE 3510-22-S


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