# Magnuson-Stevens Act Provisions; Essential Fish Habitat (EFH)

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URL: https://www.frixlaw.com/law-library/documents/fr%3A02-885

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 17, 2002
- **Citation:** 67 FR 2343

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 961030300-1007-05; 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:

Final rule.

SUMMARY:

NMFS issues this final rule to revise the regulations implementing 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), the identification of adverse effects to EFH, and the identification of actions required to conserve and enhance EFH. The regulations also detail procedures the Secretary (acting through NMFS), other Federal agencies, and the Councils will use to coordinate, consult, or provide recommendations on Federal and state actions that may adversely affect EFH. The intended effect of the rule is to promote the protection, conservation, and enhancement of EFH.

If further changes to the EFH regulations are warranted in the future, NMFS will propose changes through an appropriate public process.

DATES:

Effective on February 19, 2002.

ADDRESSES:

Requests for copies of the Environmental Assessment (EA) or related documents should be sent to EFH Coordinator, Office of Habitat Conservation, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3282. The EA and related documents are also available via the internet at:
http://www.nmfs.noaa.gov/habitat
.

FOR FURTHER INFORMATION CONTACT:

Jonathan Kurland, NMFS EFH Coordinator, 301/713-2325; fax 301/713-1043; e-mail jon.kurland@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

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. NMFS published an advance notice of proposed rulemaking (ANPR) in the
Federal Register
on November 8, 1996 (61 FR 57843) to solicit comments to assist NMFS in developing an approach for the proposed regulations. NMFS published a second ANPR on January 9, 1997 (62 FR 1306) to announce the availability of the “Framework for the Description, Identification, Conservation, and Enhancement of Essential Fish Habitat” (Framework) and to solicit additional public comment. The Framework provided a detailed outline for the proposed regulations. NMFS held 15 public meetings, briefings, and workshops across the nation during the public comment period on the Framework and issued a proposed rule on April 23, 1997 (62 FR 19723). NMFS held an additional 6 public meetings and numerous briefings nationwide during the comment period on the proposed rule and issued an interim final rule on December 19, 1997 (62 FR 66531). The interim final rule took effect on January 20, 1998.

NMFS decided to issue the regulations as an interim final rule in 1997 for two reasons. First, NMFS decided to provide an additional comment period to allow another opportunity for affected parties to provide input prior to the development of a final rule. Second, NMFS determined that it would be advantageous to implement the EFH provisions of the Magnuson-Stevens Act for a period of time via interim final regulations, which would afford an opportunity to gain experience adding EFH information to fishery management plans and carrying out consultations and coordination with Federal and state agencies whose actions may adversely affect EFH. NMFS planned to use the additional comments and its experience implementing the interim final rule to make any necessary changes in the final rule.

The comment period on the interim final rule closed on March 19, 1998 (63 FR 8607, February 20, 1998). On November 8, 1999, NMFS reopened the comment period (64 FR 60731) to announce its intention to proceed with development of a final rule and to request additional public comments on four specific issues: how to improve the regulatory guidance on the identification of EFH; how to improve the regulatory guidance on minimizing the effects of fishing on EFH; whether the final rule should provide additional guidance on using existing environmental reviews to satisfy EFH consultation requirements; and whether to revise in the final rule the requirement for Federal agencies to prepare EFH Assessments as part of the EFH consultation process.

In total, NMFS provided five separate public comment periods for this rulemaking totaling 270 days. NMFS also held numerous public meetings and briefings to explain the EFH requirements for interested parties and to solicit their input. Based on the comments received, as well as NMFS' experience implementing the interim final rule, NMFS identified a number of improvements that would clarify and simplify the regulations. NMFS incorporated those changes in the final rule.

Although NMFS is finalizing this rule, NMFS recognizes that there remains a great deal of interest in the EFH regulations from various stakeholders. There is a diversity of opinions on the best way to integrate habitat and ecosystem considerations into fishery management. NMFS is actively evaluating these issues, and will continue to work with stakeholders to use the best available scientific information regarding habitat and ecosystem principles in fishery management decisions. For example, NMFS will hold a workshop in the coming months to examine the concepts underlying ecosystem-based approaches to marine resource management, followed by a second workshop to develop technical guidelines for implementing an ecosystem-based approach to fishery management. NMFS is also developing new environmental impact statements that will reexamine the EFH sections of many FMPs. NMFS will evaluate the efficacy of the EFH final rule in light of these activities and will apply the lessons learned as appropriate. If further changes to the EFH regulations are warranted, NMFS will propose changes through an appropriate public process.

Overview of the EFH Regulations

The final rule retains the same overall structure as the interim final rule, with minor organizational and editorial changes to improve clarity. These clarifications do not constitute substantial changes to the rule. Subpart J of 50 CFR part 600 contains guidelines to assist Councils in developing the EFH components of FMPs. Subpart K of 50 CFR part 600 contains procedures for coordination, consultations, and recommendations for Federal and state agency actions that may adversely affect EFH. NMFS is finalizing both subparts together so that all interested parties will understand the implications of areas being identified as EFH. The final rule contains no major substantive changes from the interim final rule, although the final rule includes numerous clarifications, simplifications, and editorial improvements intended to make the regulations easier to use.

Under subpart J, Councils must identify in FMPs EFH for each life stage of each managed species in the fishery management unit. Councils should organize information on the habitat requirements of managed species using a four-tier approach based on the type of information available. Councils must identify as EFH those habitats that are necessary to the species for spawning, breeding, feeding, or growth to maturity. Councils must describe EFH in text and must provide maps of the geographic locations of EFH or the geographic boundaries within which EFH for each species and life stage is found. Councils should identify EFH that is especially important ecologically or particularly vulnerable to degradation as “habitat areas of particular concern” (HAPC) to help provide additional focus for conservation efforts. Councils must evaluate the potential adverse effects of fishing activities on EFH and must include in FMPs management measures that minimize adverse effects to the extent practicable. Councils must identify other activities that may adversely affect EFH and recommend actions to reduce or eliminate these effects.

Subpart K contains procedures for implementing the EFH coordination, consultation, and recommendation requirements of the Magnuson-Stevens Act. NMFS will make available descriptions and maps of EFH to

promote EFH conservation and enhancement. The regulations encourage Federal agencies to use existing environmental review procedures to fulfill the requirement to consult with NMFS on actions that may adversely affect EFH, and they contain procedures for abbreviated or expanded consultation in cases where no other environmental review process is available. Consultations may be conducted at a programmatic and/or project-specific level. In cases where adverse effects from a type of actions will be minimal, both individually and cumulatively, a General Concurrence procedure further simplifies the consultation requirements. The regulations encourage coordination between NMFS and the Councils in the development of recommendations to Federal or state agencies for actions that would adversely affect EFH. Federal agencies must respond in writing within 30 days of receiving EFH Conservation Recommendations from NMFS. If the action agency's decision is inconsistent with NMFS' EFH Conservation Recommendations, the agency must explain its reasoning and NMFS may request further review of the decision. EFH Conservation Recommendations are non-binding.

Effect on Approved FMP EFH Provisions

The final rule modifies portions of the guidelines to Councils for developing the EFH components of FMPs (Subpart J of the rule). Although the changes do not constitute substantial revisions to the guidelines contained in the interim final rule, some of the clarifications and explanations in the final rule result in minor changes to the Secretary's interpretation of the mandatory contents of FMPs. Existing FMP EFH provisions were approved (or in some cases partially approved) by the Secretary pursuant to the interim final rule. Councils are not required to develop immediate amendments to those FMPs to address any changes in regulatory guidelines pursuant to this final rule. To the extent that changes to approved FMPs are necessary to meet the standards of the final rule, Councils should incorporate those changes during the next regular review and revision of FMP EFH provisions. Section 600.815(a)(9) of the final rule (renumbered from § 600.815(a)(11) of the interim final rule) states that Councils should conduct such reviews as recommended by the Secretary, but at least once every five years.

Related Documents

NMFS prepared a draft internal technical guidance manual for EFH in conjunction with the interim final rule. That guidance will be superseded with guidance for the final rule. The draft technical guidance, the Framework, the EA, and other related documents that led to this final rule are available via the internet or by mail upon request (see
ADDRESSES
).

Comments and Responses

NMFS received approximately 3,300 written comments during the two comment periods on the interim final rule. Commenters included Fishery Management Councils, Federal agencies, state agencies, fishery groups, environmental groups, non-fishing industry groups, other non-governmental organizations, academicians, citizens groups, and numerous individuals. The comments and responses discussed below are arranged by topic to parallel the organizational structure of the interim final rule.

1. Comments Asking for Additional Opportunity to Comment on the Rule or to be Involved in the Designation of EFH

Comment A
: Several commenters requested that the public comment period be extended and development of the final rule be delayed to allow the public to better assess EFH implementation.

Response A
: NMFS disagrees that additional time is needed for public comment. NMFS provided five separate public comment periods on the EFH regulations, for a total of 270 days, which generated more than 3,600 separate written public comments. NMFS published the regulations as an interim final rule for the express purpose of allowing additional comments and gaining experience implementing the EFH provisions of the Magnuson-Stevens Act before issuing a final rule. Since the public comments received during each comment period raised similar issues and concerns with the EFH regulations, NMFS has had ample opportunity to gain understanding of the range of topics and opinions raised by the public and has made many revisions to the EFH regulations to address public comments.

Comment B
: Several commenters criticized NMFS for failing to engage non-fishing stakeholders in the development of the EFH regulations and for failing to develop mechanisms to consider non-fishing interests in the EFH regulations.

Response B
: NMFS disagrees that non-fishing groups were not given the opportunity to be included in this rulemaking. NMFS held numerous public meetings, briefings, and workshops to engage all interested parties in the development of the EFH regulations and held five separate public comment periods. In addition, NMFS met with every stakeholder group that asked to discuss how the regulations might affect them, including many prominent non-fishing organizations. Many of the changes to the regulations, from the proposed rule to the interim final rule and from the interim final rule to the final rule, responded directly to non-fishing stakeholder concerns.

Comment C
: Two commenters requested that NMFS suspend the designation of EFH for Pacific salmon until after final revisions to the EFH regulations are made, since the EFH provisions of the Pacific salmon FMP had not been completed at the time NMFS reopened the comment period on the interim final rule. These commenters also asked NMFS to reopen the comment period on the rule again after the Pacific salmon EFH designations are in effect for a period of time.

Response C
: NMFS approved the designation of EFH for Pacific salmon on September 27, 2000 (65 FR 63047). The Magnuson-Stevens Act prescribes a strict time frame for Secretarial action on an FMP amendment following submission by a Council, including an opportunity for public comment on what action the Secretary should take. NMFS cannot delay Secretarial review, and sees no need for another formal comment period on the EFH regulations to gauge implementation of Pacific salmon EFH. Nevertheless, if problems arise related to Pacific salmon EFH, NMFS will address them as appropriate.

Comment D
: Several non-fishing industry groups commented that NMFS did not make necessary information on the consultation process available to commenters when the comment period for the interim final rule was reopened in November 1999. Some of these commenters referred specifically to their pending Freedom of Information Act (FOIA) request for copies of documents related to the EFH consultation process and every individual consultation that had occurred to date.

Response D
: NMFS' intent in reopening the public comment period on the interim final rule in November 1999 was to solicit comments from interested parties on four specific issues: the scope of EFH designations, documentation of measures to minimize adverse fishing impacts to EFH, the use of existing environmental review

procedures for EFH consultations, and the preparation of EFH Assessments (64 FR 60731). NMFS asked commenters to answer based on their individual experience under the interim final rule. NMFS did not request that commenters conduct a program review of the EFH consultation process, nor did NMFS ask for comments on the totality of experience gained through all of the consultations completed thus far. The information requested by the commenters under FOIA was not necessary to enable the commenters to provide answers to NMFS' questions regarding their experience under the interim final rule, and analysis of that information was not a prerequisite to providing informed comments.

Comment E
: One commenter noted that the absence of lists of species managed under FMPs and prey species in the proposed and interim final rules made it more difficult to provide meaningful comment on the EFH regulations.

Response E
: NMFS determined that providing lists of managed and prey species in the EFH regulations was unnecessary. NMFS' intent in soliciting public comment on the regulations was to seek input on the process of identifying EFH and implementing the other EFH provisions of the Magnuson-Stevens Act, and not on how to identify EFH for specific managed species. Furthermore, the list of managed species changes whenever Councils develop management plans for new species. Nonetheless, the EA that accompanied publication of the interim final rule contained a list of managed species, and this list has been updated in the revised EA. Since the list will continue to change over time, interested parties should contact the Councils to obtain the most updated information on managed species. EFH cannot be designated for non-managed prey species, so a list of such species is not directly relevant to the rule.

Comment F
: Several non-fishing groups commented that Fishery Management Councils should include representation of non-fishing interests.

Response F
: The Secretary appoints members of each Council from lists of individuals recommended by the Governors of applicable states. Section 302(b)(2)(A) of the Magnuson-Stevens Act states that the appointed members of each Council “must be individuals who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned.” There is ample flexibility in this requirement to allow for a broad range of representation on Councils. For example, a rancher from Idaho formerly served as a member of the Pacific Fishery Management Council.

Comment G
: One commenter noted that the rule contains no provisions to ensure that non-fishing interests receive timely notification of Council meetings.

Response G
: There are ample mechanisms through which interested parties can obtain information regarding Council meetings, and it is unnecessary to ensure such notification in the EFH regulations. Section 302(i) of the Magnuson-Stevens Act requires timely public notice of Council meetings in local newspapers and the
Federal Register
. All Councils have internet sites, most of which post the schedule and agendas for upcoming meetings. Additionally, interested parties can call Councils directly to receive information on upcoming meetings, and many Councils maintain mailing lists and send agendas to interested parties. NMFS encourages all interested parties to participate in the Council process.

Comment H
: Both fishing and non-fishing groups commented that NMFS should engage local stakeholders in the process of EFH identification.

Response H
: NMFS agrees and continues to encourage public involvement in EFH identification via the Council process. Section 305(b)(1)(B) of the Magnuson-Stevens Act requires NMFS, in consultation with participants in the fishery, to provide recommendations and information to assist Councils in EFH identification. NMFS typically solicits this input from the public via the Council process. Each Council holds numerous meetings throughout the year that focus on habitat and other issues related to fishery management. These meetings include public scoping meetings and public hearings and are specifically designed to engage interested parties in fishery management decisions, including decisions related to EFH identification. Furthermore, many Councils have habitat advisory panels. NMFS encourages interested parties to seek membership on Council advisory panels.

2. General Concerns with the Rule

Comment A
: Several non-fishing groups commented that the EFH regulations are too complex, ambiguous, and burdensome.

Response A
: NMFS has attempted to improve the clarity of the EFH regulations by eliminating wordiness, increasing specificity of the language, improving the efficiency of certain procedures, and reorganizing several sections. These changes should make the regulations easier to use and should promote better understanding of how to implement the EFH provisions of the Magnuson-Stevens Act. Councils, Federal agencies, and other interested parties should benefit from the modifications that were made to the EFH regulations.

Comment B
: Two non-fishing industry groups expressed concern that their comments on the proposed rule were not addressed and asked NMFS to revisit their initial concerns. The comments questioned NMFS' authority to address non-fishing activities and said that the EFH coordination, consultation, and recommendation requirements of the regulations are burdensome and duplicative.

Response B
: NMFS considered all comments received on the proposed rule, but did not accept all of the recommendations for changes to the rule. NMFS responded to the cited comments in the preamble to the interim final rule at 62 FR 66539-66540 and 66543. NMFS revisited these concerns while developing the final rule and concluded that, with the exception of changes described herein to clarify and streamline portions of the rule, no additional changes are warranted.

Comment C
: One commenter questioned NMFS' approach to implementing the EFH provisions in light of the commenter's concerns about the U.S. Fish and Wildlife Service's efforts to protect bull trout under the Endangered Species Act.

Response C
: Bull trout are not managed under the Magnuson-Stevens Act and the commenter's concerns are unrelated to the EFH regulations.

3. Comments in Favor of Implementing the Rule Without Substantial Changes

Comment A
: Numerous commenters, primarily from conservation groups, expressed concern about the extended comment period and delay in promulgating the final rule, and questioned NMFS' commitment to implementing the EFH regulations. Many commenters urged NMFS to finalize the EFH regulations immediately without weakening them.

Response A
: NMFS has been implementing the EFH regulations since January 1998, 30 days following publication of the interim final rule. The final rule benefitted from public comments on ways to improve the EFH regulations, and it incorporates many of the suggestions NMFS received.

Comment B
: Several commenters supported the rule but expressed

concern that the EFH regulations impose an additional burden on the already heavy workload of NMFS personnel without offering new budgetary or staff resources. These commenters were concerned that resources may be diverted from other priorities to EFH, or that insufficient NMFS staff levels may slow the EFH consultation process.

Response B
: NMFS agrees that the EFH mandate will impose additional work on NMFS staff and has taken this into consideration in crafting the final rule to minimize duplication and maximize efficiency. For example, NMFS encourages agencies to use existing environmental review procedures to complete EFH consultations. Additionally, NMFS has created options such as the General Concurrence and programmatic consultations that will help streamline the EFH consultation process. NMFS has redirected staff from other tasks as necessary to fulfill the new requirements of the Magnuson-Stevens Act.

Comment C
: Several individuals and organizations from Alaska remarked that the future of fishing in Alaska depends on marine habitat, and thus the rule is important for Alaska fisheries.

Response C
: NMFS agrees. The final rule is intended to benefit marine, estuarine, and riverine habitats of federally managed species and help promote sustainable fisheries in Alaska and nationwide.

4. Comments Regarding Definition of Terms in the Rule

Comment A
: Several commenters questioned NMFS' interpretation of the statutory definition of EFH, wherein NMFS interpreted the meaning of several key terms: “waters,” “substrate,” necessary,” and “spawning, breeding, feeding, and growth to maturity.” Some commenters asked whether, for purposes of identifying EFH, the term “waters” may include wetlands or riparian areas in proximity to waters occupied by a managed species. Other commenters suggested that NMFS remove the interpretation that “waters” and “substrate” can include biological properties, stating that the references to biological features inappropriately expand the definition of EFH. Two commenters thought that the interpretation of “substrate” should explicitly include historically important substrate areas that may have been modified by human activity. One commenter said that the word “structures,” which is part of the interim final rule interpretation of the word “substrate,” should not refer to human-made structures such as oil platforms, but only to natural structures that support fish. Several commenters took the opposite view and wanted the rule to encourage identifying artificial reefs, jetties, and shipwrecks as EFH. Other commenters objected to the narrowed interpretation of “necessary” in the interim final rule and recommended that NMFS return to the approach in the proposed rule where “necessary” meant the habitat required to support a sustainable fishery and a health ecosystem.

Response A
: NMFS is not modifying its interpretation of the statutory definition of EFH in the final rule. The final rule retains the language in § 600.805(b)(2) of the interim final rule stating that EFH may be identified in waters of the United States, as defined in 33 CFR 328.3, which includes wetlands. EFH is limited to aquatic areas, so it may not include riparian habitats. As explained in the preamble to the interim final rule at 62 FR 66533, NMFS disagrees that interpreting “waters” and “substrate” to include “biological properties” and “biological communities” respectively is an impermissible expansion of the statutory definition of EFH. Certain biological properties of water and substrate are fundamental components of habitat and are necessary to maintain the function of habitat for fish. NMFS is not modifying the interpretation of “substrate” to discuss historically important substrate areas because the potential identification of historic habitats as EFH is addressed adequately in § 600.815(a) of the rule. NMFS is not modifying the interpretation of “substrate” to exclude human-made structures, because in some cases such structures can provide valuable habitat for managed species. As discussed in the preamble to the interim final rule at 62 FR 66534, structures such as artificial reefs, jetties, and shipwrecks may be identified as EFH in an FMP if they meet the criteria for EFH identification in the rule. The interpretation of “necessary” in the final rule continues to include the clarifying phrase “and the managed species' contribution to” a healthy ecosystem because it would be inappropriate for the rule to suggest that EFH must include habitats for species other than managed fish.

Comment B
: Many commenters objected to or asked for clarification of the definition of “adverse effect” in §§ 600.810(a) and 600.910(a). Most of these commenters said the definition is vague and can be interpreted too broadly to include even effects that are of no consequence or significance to EFH. One commenter asked to what extent an activity must reduce the quality and/or quantity of EFH to trigger action. Some commenters thought that the example of a loss of prey being an adverse effect to EFH exceeds the proper interpretation of what constitutes EFH. These commenters felt that prey is not part of EFH so should not be referenced in a definition of “adverse effect.” One commenter recommended that the definition of “adverse effect” in the rule address only statistically significant adverse effects and provide for documentation of probabilities of error when predicting adverse effects. Another commenter focused on the statutory requirement for Federal agencies to consult with NMFS regarding actions that may adversely affect EFH and said NMFS' definition of “adverse effect” illegally negates the statutory duty of other agencies to decide what effects are adverse.

Response B
: NMFS is modifying the definition of “adverse effect” in response to comments. The revised definition retains the original standard that an adverse effect is any impact that reduces the quality and/or quantity of EFH. The definition clarifies the types of alterations that may be included and explains that such modifications to habitat are only considered adverse effects if they reduce the quality and/or quantity of EFH. The definition also clarifies that adverse effects to EFH may result from actions occurring within EFH or outside of EFH. NMFS disagrees with the comments that loss of prey is beyond the appropriate scope of adverse effects to EFH. The revised definition specifically mentions the loss of or injury to prey species and their habitats as potential adverse effects to EFH because, as mentioned above, prey can be a vital component of habitat for managed species. NMFS disagrees that only statistically significant adverse effects should be considered because the Magnuson-Stevens Act contains no such limitations. A much more inclusive definition of “adverse effect” is necessary in the regulations to clarify what kinds of potential effects should be addressed in FMPs and in the coordination, consultation, and recommendation process for Federal and state agency actions. Federal agencies retain the discretion to make their own determinations as to what actions may fall within NMFS' definition of “adverse effect.”

Comment C
: One commenter said that the definition of “healthy ecosystem” should not say that such areas should be similar to undisturbed ecosystems, because hardly any ecosystem could be characterized as pristine or entirely undisturbed. Another commenter asked

for an explanation of the terms “species richness” and “resilience” within the definition of “healthy ecosystem.”

Response C
: NMFS does not agree that the regulations should omit the reference to undisturbed ecosystems. The definition of “healthy ecosystem” in the rule refers to comparing ecological features of ecosystems. Saying that healthy ecosystems should be similar to comparable undisturbed ecosystems is intended to convey that the basic functions of such ecosystems have not been altered by anthropogenic events, and not that such ecosystems are entirely pristine. The term “species richness” refers to biodiversity. The term “resilience” refers to the ability of a healthy ecosystem to withstand a certain level of environmental stress yet maintain its ecological functions.

Comment D
: One commenter inferred that best professional judgment will be necessary to evaluate available data and identify EFH, and asked for a definition of “best professional judgment” in the final rule. The commenter asked what process NMFS envisions for gathering a range of scientific opinions and how NMFS will overcome the disadvantages of expert panels.

Response D
: NMFS decided not to add a definition of “best professional judgment.” The regulations do not specifically call for using such judgments, so a definition is unnecessary. NMFS recognizes that professional opinion must be factored into EFH-related decisions by Councils, Federal agencies, and NMFS, but NMFS sees no need to define a separate process for considering professional opinions related to EFH as opposed to professional opinions on other matters.

Comment E
: One commenter said that NMFS had overstepped its authority by referring to EFH “protection” when the Magnuson-Stevens Act uses the words “conservation and enhancement” of EFH.

Response E
: NMFS reviewed the EFH regulations carefully to ensure that word usage reflected the intent of the Magnuson-Stevens Act. For instance, language in § 600.815(a)(2)(ii)(A) of the interim final rule was revised in the final rule (now in § 600.815(a)(1)(iv)(A)) to replace “protected” with “identified” as follows: “Councils should interpret this information in a risk-averse fashion, to ensure adequate areas are identified as EFH for managed species.” In other cases, use of the term “protection” was appropriate. For example, § 600.905(a), which reads, “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” is consistent with section (2)(b)(7) of the Magnuson-Stevens Act, which states that one of the Act's purposes is to “promote the protection of EFH in the review of projects conducted under Federal permits, licenses, or other authorities that affect such habitat.”

5. Comments on the Purpose and Scope of the Rule

Comment A
: Numerous commenters endorsed the use of the precautionary principle in identifying EFH. Several said that EFH should be identified for all marine fish species, and not just those managed under an FMP. Other commenters said that EFH designations should consider all relevant ecosystem components, including prey for managed species. A few commenters thought the regulations should call for identifying all areas as EFH until proven otherwise.

Response A
: NMFS addressed similar comments from the proposed rule in the preamble to the interim final rule at 62 FR 66534. The Magnuson-Stevens Act requires that each FMP describe and identify EFH, and it is not appropriate to extend this requirement to species not managed under an FMP. NMFS agrees that EFH designations should account for pertinent features of the ecosystem such as prey, as noted in the interpretation of EFH in § 600.10. However, only the habitat necessary to managed species may be considered EFH. The final rule retains language in § 600.815(a) stating that Councils should interpret habitat information in a risk-averse fashion when identifying EFH. NMFS does not agree that all areas should be identified as EFH until proven otherwise, because EFH designations must be based on available scientific information indicating that the specified habitat is necessary for the managed species.

Comment B
: Some commenters objected to the interim final rule restricting EFH designations to the outer limits of the U.S. Exclusive Economic Zone (EEZ), and thought that Councils should be required to address adverse effects to EFH in waters beyond the EEZ.

Response B
: As explained in the preamble to the interim final rule at 62 FR 66535, areas beyond the EEZ cannot be identified as EFH, and Federal agencies need not consult with NMFS regarding the effects of actions on habitats beyond the EEZ. However, Councils may promote the protection of managed species' habitats outside the EEZ, and NMFS will use that information as appropriate in discussions regarding international actions.

Comment C
: One commenter said that NMFS should delete from § 600.805(b) the language saying that a Council may describe, identify, and protect the habitat of species not in a fishery management unit, but such habitat may not be considered EFH. The commenter said that under the Magnuson-Stevens Act, Councils may only develop FMPs for identified species and may not act to describe, identify, or protect the habitat of other species. The commenter also said that Councils have no authority under the Magnuson-Stevens Act to protect the habitat of any fish.

Response C
: The preamble to the interim final rule at 62 FR 66534 notes that the Magnuson-Stevens Act does not preclude Councils from identifying habitat (other than EFH) of a fishery resource under its authority even if the species is not managed under an FMP. Council action to protect the habitats of managed or non-managed species is limited to protecting habitats from fishing activities. Councils have no authority to protect habitats from other activities, although they may comment to state and Federal agencies on non-fishing activities under section 305(b)(3) of the Act.

Comment D
: One organization commented that the regulations should consider recreationally important species, including the economic value of recreational fisheries, in any actions taken pursuant to the rule.

Response D
: NMFS agrees. EFH must be identified for all species in the fishery management unit of an FMP, including recreationally important species. Actions taken by a Council, NMFS, or a Federal or state action agency to address threats to EFH should account for the recreational as well as commercial value of fishery resources dependent on EFH. However, no specific changes to the rule are necessary to provide for consideration of recreational fisheries.

Comment E
: A few commenters urged regional flexibility in the regulations so Councils can develop their own EFH designations and procedures for tracking actions that may adversely affect EFH.

Response E
: NMFS agrees. The final rule contains national guidelines for Councils but provides sufficient flexibility to account for the variety of managed species and to address regional variations in the availability of scientific information and differences in Council operating procedures nationwide.

6. Comments on Using an Ecosystem or Watershed Approach to Resource Management

Comment A
: A number of commenters representing non-fishing interests stated that the Magnuson-Stevens Act does not authorize a risk-averse or ecosystem approach to EFH. These commenters thought that the focus should be limited to fish species and not ecosystem principles.

Response A
: NMFS provided a detailed response to this comment in the preamble to the interim final rule at 62 FR 66532-66533, and the response remains the same. In summary, 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 concepts are common in the statutory definitions of “fishery resources,” “conservation and management,” and “optimum.” The fact that the Magnuson-Stevens Act directs the Councils to address the degradation and loss of EFH from both fishing and non-fishing activities through conservation and enhancement measures further reflects support for the ecosystem-based management of marine and anadromous fisheries. Ecosystem management encourages sustainable resource use and recognizes the uncertainties inherent in management and the need to make risk-averse decisions. This regulation embraces those concepts and urges Councils to seek environmental sustainability in fishery management, within the current statutorily prescribed fishery management framework (i.e., management by FMPs).

Comment B
: A number of commenters from Louisiana stated that the rule places too much emphasis on species managed under FMPs, to the detriment of activities that are designed to protect and restore the coastal ecosystem. The commenters expressed concern that the focus on habitat for federally managed species would undermine the importance of ecosystem components besides federally managed fish species and potentially hinder Louisiana's extensive efforts to restore coastal wetlands as authorized under the Coastal Wetlands Planning, Protection, and Restoration Act (also known as the Breaux Act).

Response B
: The rule is intended to promote the conservation and enhancement of EFH for federally managed species through means other than traditional harvest management. The EFH provisions are designed to encourage a broader, ecosystem approach to meet the requirements of the Magnuson-Stevens Act. NMFS recognizes the importance of Louisiana's coastal restoration efforts and is an active partner in implementing the Breaux Act. Although the final rule requires Federal agencies to consult with NMFS on any activity “that may adversely affect EFH,” including habitat restoration projects, EFH and ecosystem restoration can be compatible. NMFS works closely with other agencies and the private sector to ensure that restoration projects proceed expeditiously while considering and minimizing any temporary or permanent adverse effects to EFH. The rule recognizes the importance of ecosystem restoration and states that EFH may be designated for certain historic habitats for which restoration is technologically and economically feasible.

Comment C
: Commenters from Louisiana wanted NMFS to examine the state's coastal management program and its relationship to the rule. These commenters asked NMFS to exempt from the final rule Louisiana's state programs and Federal activities in Louisiana with existing review procedures, and/or place an emphasis on programmatic consultations and General Concurrences for these actions.

Response C
: NMFS highlighted its interaction and coordination with the states and state coastal zone management programs in the preamble to the interim final rule at 62 FR 66536. NMFS has no authority to exempt Federal and state actions in Louisiana from the EFH consultation and recommendation requirements of the Magnuson-Stevens Act. As outlined in Subpart K, NMFS encourages Federal action agencies to combine EFH consultations with other environmental review processes and to complete programmatic consultations and General Concurrences where appropriate.

7. Comments on the Guidance for Description and Identification of EFH in Fishery Management Plans

Comment A
: Where the rule states that “EFH can be inferred” based on a species' distribution among habitats and on information about the species' habitat requirements and behavior, one commenter wanted the rule to require that the Councils clearly identify instances when EFH is designated based on these inferences.

Response A
: The rule provides guidance to the Councils to evaluate all available information and use specified criteria to identify EFH. In some cases, Councils may need to use their best scientific judgement. To help explain how Councils identify EFH in FMPs, including cases where EFH is based on inferences, the final rule includes new language advising Councils to explain the analyses conducted to distinguish EFH from all habitats potentially used by a species. Councils must also demonstrate that the identification of EFH is based on the best scientific information available.

Comment B
: Several groups of commenters expressed concern about the guidance in § 600.815(a)(2)(ii)(B) of the interim final rule that states all habitats, including historic habitats, “should be considered essential” if a species is overfished and habitat loss or degradation may be contributing to the species being overfished. One of these commenters stated that this was unreasonable because not all habitat used by an overfished species is essential. Another commenter wanted NMFS to require that the Councils establish a stronger link between the loss of habitat and its contribution to overfishing before it is considered essential. Several commenters wanted this provision deleted from the rule entirely, while others wanted to see all habitat for overfished species identified as EFH. One commenter evaluated the provisions for designating EFH for overfished species in the context of the Endangered Species Act (ESA). This commenter stated that the EFH provisions appear inconsistent with the way in which NMFS evaluates habitat in the ESA. The commenter noted that in NMFS' implementation of the ESA, the agency recognizes that currently available habitat is sufficient for conservation for some species. These commenters stated that identifying EFH in areas historically used by fish may not be the best means to ensure the conservation and enhancement of EFH.

Response B
: NMFS agrees that it might not always be appropriate to identify as EFH all current habitats as well as certain historic habitats. NMFS has changed the guidance related to determining EFH for overfished species, now in § 600.815(a)(1)(iv)(C), to state that all habitats currently used by the species “may be considered essential” (versus “should be considered essential”) if a species is overfished and habitat loss or degradation may be contributing to the species being overfished. Councils should make this determination on a case-by-case basis.

All FMP conservation and management measures, including identifying the limits of EFH for overfished species, must be based on the best scientific information available. As addressed in the preamble to the interim final rule at 62 FR 66537, the rule advocates a risk-averse approach to

identifying EFH because of the uncertainty in our knowledge of habitat and its relation to fisheries production. Councils should take particular care when inadequate information exists on overfished stocks to ensure that habitat losses do not hinder the stock rebuilding.

EFH and the habitat components of the ESA are authorized under different legislative mandates and have unique objectives. EFH must be designated for all federally managed species. Conservation and enhancement measures for EFH, if implemented by the agencies with relevant jurisdiction, should help prevent the need to list species under the ESA.

Comment C
: One commenter wanted the guidance in § 600.815(a)(2)(ii)(F) of the interim final rule to be deleted from the regulations. This commenter stated that the Magnuson-Stevens Act only authorizes designation of existing habitat as EFH and does not provide the authority to identify EFH for degraded or inaccessible habitat.

Response C
: NMFS responded to similar comments in the preamble to the interim final rule at 62 FR 66534, and upon further consideration takes the same position. The provision of the rule that allows the designation of inaccessible or degraded habitat as EFH is consistent with the EFH provisions of the Magnuson-Stevens Act. Section 2 of the Magnuson-Stevens Act recognizes that habitat losses have resulted in a diminished capacity to support sustainable fisheries and that the protection of habitat is necessary to prevent overfishing and rebuild overfished stocks. The restoration of degraded or inaccessible habitats may therefore be necessary to maintain or rebuild sustainable fisheries.

Comment D
: Several commenters wanted the final rule to restrict EFH designation to the habitat required to maintain commercial fisheries at optimal yield or another quantitative measure of the status of a stock.

Response D
: NMFS provided a detailed response to this comment in the preamble to the interim final rule at 62 FR 66533, and, upon further consideration, still takes the same position. The Magnuson-Stevens Act states that one of its purposes is to provide for the preparation and implementation of FMPs that will achieve and maintain the optimal yield from each fishery. Therefore, NMFS has linked the guidelines for identifying EFH to sustainable fisheries as is appropriate under the Magnuson-Stevens Act. The rule states that FMPs should identify sufficient EFH to support a population adequate to maintain a sustainable fishery and the managed species' contributions to a healthy ecosystem. When considering the EFH requirements of a managed species, the rule advises Councils to describe and identify enough habitat to support the total population, of which optimal yield is a subset, not just the individual fish that are removed by fishing.

Comment E
: Several commenters wanted the final rule to establish incentives for improving the data available for identifying EFH. These commenters thought a research agenda should be developed to collect the information needed to identify EFH with Level 2, 3, and 4 data.

Response E
: NMFS agrees that a prioritized EFH research agenda would be beneficial. The final rule asks the Councils to set priority research needs to improve upon the description and identification of EFH, the identification of threats to EFH from fishing and non-fishing activities, and the development of conservation and enhancement recommendations. The rule also encourages the Councils to strive to describe habitat based on the highest level of detail (i.e., Level 4). Additionally, the final rule says that Councils and NMFS should periodically review and revise the EFH components of FMPs based on available pertinent information. NMFS is working within the constraints of available funding to conduct additional research to improve the designations of EFH.

Comment F
: One port authority stated that the EFH designations should undergo a formal rulemaking process.

Response F
: NMFS disagrees. Councils identify EFH within the existing statutory and regulatory process for FMP development and amendment, which provides numerous opportunities for public involvement. All Council deliberations on fishery management measures are open to the public, and all Council meeting agendas are published in the
Federal Register
. Additionally, NMFS publishes notices of availability and solicits public comments for FMPs and amendments received for Secretarial review. NMFS also publishes a public notice of decision in the
Federal Register.

Comment G
: A member of the recreational fishing community commented that the rule should be revised to require the identification of EFH for species assemblages, not individual species. Another commenter asked that Councils describe EFH separately within each FMP rather than making broad regional designations.

Response G
: The final rule clarifies that every FMP must describe and identify EFH for each life stage of each managed species, but if appropriate, EFH may be designated for assemblages of species or life stages that have similar habitat requirements. If an FMP designates EFH for species assemblages, it must include a justification and scientific rationale.

Comment H
: One Council stated that the specification that tables must be used to describe EFH may constrain the development of useful EFH descriptions. The Council stated that textual EFH descriptions would be more helpful.

Response H
: NMFS agrees, and the final rule does not require that EFH be described in tables. The final rule clarifies that FMPs must describe and identify EFH in text and should use text and tables as appropriate to summarize information on variables that control or limit distribution, abundance, reproduction, growth, survival, and productivity.

Comment I
: Many commenters stated that the final rule should allow the Councils to identify EFH within state and Federal waters. One commenter wanted to see EFH designations based on the biological needs of each species, not geographic or political boundaries.

Response I
: NMFS agrees, and addressed these comments in the preamble to the interim final rule at 62 FR 66535. The Magnuson-Stevens Act requires Councils to describe and identify EFH based on the biological requirements of all life stages of the managed species, with no limitations placed on the geographic location of EFH. EFH may be designated in state or Federal waters, but may not be designated beyond the United States exclusive economic zone.

Comment J
: One commenter from a non-fishing industry group expressed concern that EFH might be designated in upland areas where fish habitat does not exist. One commenter from a conservation group and a commenter from a fishing group recommended that Councils be allowed to designate EFH in riparian corridors and on other dry lands that influence the productivity of aquatic areas.

Response J
: EFH is defined in the Magnuson-Stevens Act as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. The EFH regulations interpret this definition by defining “waters” and “substrate.” “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. EFH can only be designated in aquatic areas. EFH cannot be designated in riparian habitat or on dry land, although actions in these areas that may adversely affect EFH do require consultation with NMFS. The definition of “adverse effect” in the final rule clarifies that adverse effects to EFH may result from actions occurring within EFH or outside of EFH.

Comment K
: Several commenters, including fishing and non-fishing groups and some government agencies, expressed concern that the EFH designations made under the interim final rule are extremely broad. Non-fishing groups commented that NMFS arbitrarily designated all habitat as EFH rather than designating “necessary” or “essential” habitats, as the statute requires. In contrast, one commenter thought that the guidance in § 600.815(a)(2)(ii) of the interim final rule that asks the Councils to identify EFH as the habitats areas “valued most highly” and “most commonly used” was not sufficiently inclusive to capture all the areas that should be identified as EFH.

Response K
: Councils were justified in designating broad areas as EFH based on the guidance in the interim final rule. For many species there is little available scientific information linking the biological requirements of managed species to specific habitats. In such cases the rule encourages Councils to interpret available information in a risk-averse fashion. Moreover, NMFS is undertaking research in several regions to obtain additional scientific information. As further information becomes available, EFH designations will be refined.

NMFS has also taken steps to clarify in the final rule that EFH identification should emphasize necessary habitats for fish, based on available information. To reduce confusion about what habitats generally should be considered essential, the final rule omits language from the interim final rule saying that “habitats of intermediate or low value may also be essential, depending on the health of the fish population” because this concept is covered elsewhere in the rule. The final rule also clarifies that if sufficient information is available, EFH should be identified as the habitats supporting the highest relative abundance; growth, reproduction, or survival rates; and/or production rates within the geographic range of a species. Furthermore, the final rule encourages Councils to identify EFH based on the highest level of information available, and states that EFH should not be designated if there is no information available and if habitat usage cannot be inferred from other means, such as information on a similar species.

Comment L
: Two conservation groups expressed concern about specific elements of Amendment 14 to the Pacific Coast Salmon FMP.

Response L
: These comments were not relevant to the EFH regulations.

8. Comments on the Sources and Quality of Information Used to Identify EFH

Comment A
: Commenters representing fishing and non-fishing interests and environmental groups wanted to see NMFS use all good quality information to identify EFH. Some of these commenters wanted the standard of “best scientific information” to be replaced with a standard of “best available information from all sources,” including fishing interests. Some commenters also wanted this standard of information to extend to NMFS' EFH Conservation Recommendations.

Response A
: Section 600.815(a)(1)(ii)(B) of the final rule reflects that Councils should use information from the best available sources to identify EFH, including peer-reviewed literature, unpublished scientific reports, data files of government resource agencies, fisheries landing reports, and other sources of information. As stated in the preamble to the interim final rule at 62 FR 66536, NMFS intended to have the Councils use the best available information from a variety of sources, and the Magnuson-Stevens Act requires NMFS to consult with participants in the fishery before submitting its recommendations to the Councils to assist in developing the EFH components of FMPs. However, all information should be evaluated with regard to reliability, so the final rule clarifies that Councils should consider different types of information according to its scientific rigor. NMFS intends to continue using the best available sources of information to develop EFH Conservation Recommendations to Federal and state agencies.

Comment B
: One marine conservation group thought the requirement that Councils must demonstrate their use of best available science in the identification of EFH may place an inappropriate burden of proof on the Councils.

Response B
: The final rule maintains the requirement that Councils demonstrate that the best scientific information available was used in the description and identification of EFH, consistent with national standard 2. Section 301(a) of the Magnuson-Stevens Act requires all fishery management plans, and any regulation promulgated to implement such plans, to be consistent with the national standards. National standard 2 requires that fishery conservation and management measures be based on the best scientific information available. Applying this standard to the identification of EFH is appropriate and necessary to comply with the Magnuson-Stevens Act.

Comment C
: A commenter representing non-fishing industry interests wanted the final rule to require the Councils to record, and make available for public review and comment, the scientific basis for all Council decisions. Another commenter wanted to require a list of all judgments for which data were not available and recommended that this list of data gaps be used to set a research agenda.

Response C
: All Council deliberations on fishery management measures are open to the public, and adopted measures must be based on the best scientific information available. The final rule clarifies that FMPs should identify species-specific habitat data gaps. The final rule also clarifies that FMPs should contain recommendations for research needed to improve upon the description and identification of EFH, the identification of threats to EFH from fishing and non-fishing activities, and the development of conservation and enhancement measures for EFH.

9. Comments on the Four-Level Approach for Organizing EFH Data

Comment A
: As discussed separately above, NMFS received numerous general comments in favor of implementing the regulations without substantial changes, many of which mentioned specific support for the approach used in the interim final rule for organizing information used to designate EFH.

Response A
: The final rule retains the four-level approach for organizing information used to designate EFH. However, the final rule clarifies that Level 1 information encompasses a variety of types of distribution data, which may be derived from systematic presence/absence sampling and/or may include information collected opportunistically. Since distribution data are lacking for a number of managed species, especially in Alaska, the final rule clarifies that habitat use for a given species or life stage may be inferred, if appropriate, based on information on a similar species or another life stage. The final rule also clarifies that if there is no information on a given species or life stage, and habitat usage cannot be inferred from

other means, EFH should not be designated.

Comment B
: One commenter recommended that NMFS develop an incentives program or funding mechanism to encourage data collection to support identifying EFH with Level 3 or 4 data, as described in the interim final rule. Another commenter said that EFH should be categorized and prioritized according to its availability, vulnerability, and utilization.

Response B
: For most species managed under the Magnuson-Stevens Act, available information on habitat requirements falls into Levels 1 or 2 (distribution or relative abundance data). NMFS agrees that having Level 3 or 4 data (rates of habitat-related growth, reproduction, or survival, or production rate data) would enable the Councils to refine the designations of EFH. NMFS is pursuing budget initiatives and partnerships with others to encourage the development of this type of information. Regarding the characterization and prioritization of EFH, NMFS agrees that the categories mentioned by the commenter are valid considerations for evaluating habitats. However, NMFS does not agree that the regulations should require EFH to be categorized, because requisite information to categorize EFH in this fashion is not available in many cases. Where Councils have more information on the ecological importance or vulnerability of portions of EFH, they may identify those areas as Habitat Areas of Particular Concern.

Comment C
: One commenter said that further mechanisms are necessary to delineate important habitats based on habitat characteristics rather than the distribution of fish species. The commenter recommended adding to the regulations guidance that is complementary to the four-level approach but is based on an assessment of ecological significance and function of habitat.

Response C
: NMFS agrees that where sufficient information is available, EFH designations should specify those habitat features that contribute most to the growth, reproduction, and survival of managed species (Level 3) or, ideally, those habitats with the highest production rates (Level 4) for each species. The final rule clarifies that this type of information, if available, should be used to identify EFH as the habitats supporting the highest growth, reproduction, survival, and/or production rates within the geographic range of a species. Currently, however, in most cases the best available scientific information is fish distribution (Level 1) or relative abundance (Level 2) data. Additional guidance linking EFH to habitat function, beyond the clarification mentioned above, is not necessary at this time because the rule already explains how to use Level 3 and 4 information to identify habitats with the highest ecological function for managed species.

10. Comments on the Guidelines for Determining the Limits of EFH

Comment A
: One commenter representing waterfowl management efforts said that the importance of long-term sustainability of coastal wetlands habitat is overshadowed by the narrow focus of the EFH regulations on achieving optimal yield from a fishery.

Response A
: As explained in the preamble to the interim final rule at 62 FR 66533, the Magnuson-Stevens Act states that FMPs must achieve the optimum yield from each fishery on a continuing basis, and determinations of optimal yield should take into account the protection of marine ecosystems. There is no inherent inconsistency between the overall objectives of promoting the conservation of coastal wetlands for waterfowl and promoting the conservation of EFH that is necessary to support a sustainable fishery and the managed species' contribution to a healthy ecosystem (including avian predators of managed species). However, specific wetlands management activities may not always advance both these objectives, and should be evaluated on a case-by-case basis.

Comment B
: An alliance of Pacific northwest conservation groups commented that habitats that were historically used by salmon but are currently degraded or inaccessible should be included in EFH.

Response B
: NMFS agrees that EFH should include historic habitats in certain circumstances. The final rule retains language in § 600.815(a) allowing the inclusion of such habitats as EFH, provided that the habitats are necessary to support rebuilding the fishery and that restoration is technologically and economically feasible.

Comment C
: One organization commented that the Magnuson-Stevens Act defines EFH in terms of life history characteristics for managed species, whereas the interim final rule interprets EFH in terms of productivity.

Response C
: The guidelines for determining the limits of EFH emphasize the habitat functions that have the most benefits to fish during the life stages contained in the statutory definition of EFH: spawning, breeding, feeding, and growth to maturity. Thus, the guidelines refer to habitats that support the highest productivity of managed species at each life stage. The regulations must make this connection between species and productivity to offer guidance on how to identify EFH based on the habitat needs of managed species at each life stage.

Comment D
: One commenter asked who will determine whether it is economically feasible to restore degraded or inaccessible habitat in connection with the provision of the interim final rule that allows Councils to identify such areas as EFH.

Response D
: The final rule retains language from the interim final rule saying that the Secretary and the appropriate Council(s) determine whether, for purposes of potentially identifying degraded or inaccessible aquatic habitat as EFH, restoration of such habitats is technologically and economically feasible. Through the Magnuson-Stevens Act process for developing FMPs and amendments, there are numerous opportunities for public comment on any proposal to designate degraded or inaccessible habitat as EFH, including the economic feasibility or infeasibility of restoration.

11. Comments on the Relationship Between EFH and Critical Habitat

Comment A
: Several commenters said that EFH should be restricted to waters and substrate only and must always be greater than or equal to “critical habitat” identified for managed species that are listed as threatened or endangered under the ESA. Several other commenters thought it was inappropriate for the interim final rule to state a relationship between EFH and “critical habitat” that will always apply for ESA listed species. These commenters thought that the extent of EFH for listed species should be left to the Councils to decide on a case-by-case basis.

Response A
: In the preamble to the interim final rule at 62 FR 66537, NMFS responded to similar comments that were critical of the corresponding provision in the proposed rule, and noted that the interim final rule contained modifications to help distinguish between EFH and critical habitat. NMFS maintained that it is appropriate for the rule to state that EFH will always be greater than or equal to the aquatic portions of critical habitat because, for example, important adult marine habitats for endangered salmonids have not been identified as critical habitat. Upon further consideration of this issue, NMFS agrees that there could conceivably be some

circumstances where this relationship between EFH and critical habitat might not be appropriate, so the word “always” is not appropriate in this provision of the regulations. The term “will” in the EFH regulations is used descriptively and does not denote an obligation to act, but apparently the use of “will” in combination with “always” implied to some readers a mandatory requirement. Therefore, the final rule states that areas described as EFH “will normally” (rather than “will always”) be greater than or equal to aquatic areas that have been identified as critical habitat. NMFS agrees with the commenters who stated that EFH must be limited to aquatic areas.

Comment B
: One commenter addressed the explanation in the preamble to the interim final rule at 62 FR 66537 stating that directed fishing of listed species is not permitted. This commenter said that rather than focus on non-fishing related threats to managed species that are listed under the ESA, NMFS should control indirect fishing effects on listed runs (which NMFS assumes to mean bycatch).

Response B
: Salmon managed under the Pacific Coast Salmon FMP and the Atlantic Salmon FMP are the only species that currently are both listed under the ESA and managed under the Magnuson-Stevens Act. The 1996 amendments to the Magnuson-Stevens Act included a new requirement that fishery management measures minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of bycatch. Amendment 14 to the Pacific Coast Salmon FMP addresses this requirement by providing guidance for minimizing salmon bycatch and bycatch mortality, and by establishing salmon bycatch reporting specifications. The Atlantic Salmon FMP minimizes bycatch by prohibiting the possession of Atlantic salmon in the EEZ. The Magnuson-Stevens Act also requires evaluation of threats to EFH from non-fishing activities, so NMFS cannot divert all efforts to bycatch reduction at the expense of addressing threats from activities other than fishing.

12. Comments on the Effects of Fishing on EFH

Comment A
: Some commenters expressed concern that the EFH regulations imply that fishing is the major, if not only, cause of habitat degradation.

Response A
: NMFS disagrees with the commenters' perception of the interim final rule. Fishing and non-fishing activities have potential adverse effects on habitat and the regulations address both. The regulations provide guidance to Councils and procedures for Federal agencies on how to address adverse effects from non-fishing activities on EFH. The Magnuson-Stevens Act specifically requires that FMPs minimize to the extent practicable adverse fishing effects on EFH, so the regulations also include sections that focus on habitat impacts from fishing.

Comment B
: One commenter expressed concern that the EFH provisions are being used arbitrarily to prevent the use of certain fishing gears, rather than to protect EFH based on scientific information.

Response B
: NMFS disagrees with the commenter's opinion. The EFH provisions require Councils to minimize to the extent practicable the adverse effects on EFH caused by fishing. The Magnuson-Stevens Act and the EFH regulations address impacts caused by fishing activities in general and do not target specific gear types. Councils must evaluate the effects of all fishing activities (e.g., each gear type) on EFH, and fishery management measures must be based on the best scientific information available.

Comment C
: One commenter from the commercial fishing community remarked that the size and duration of time/area closures, mentioned in the EFH regulations as an option for managing adverse effects from fishing, must be considered carefully since these management measures can impact the socioeconomic status of fishermen and their families.

Response C
: NMFS agrees. By including the language “to the extent practicable” in the requirement to minimize adverse fishing impacts, Congress intended for fishery managers to take both ecological and socioeconomic effects of measures into consideration in determining whether it is appropriate to adopt particular management measures. The final rule clarifies the guidance to Councils for determining whether it is practicable to minimize an adverse effect from fishing, and states that Councils should consider the nature and extent of the adverse effect on EFH and the long and short-term costs and benefits of potential management measures to EFH, associated fisheries, and the nation.

13. Comments on the Evaluation of the Effects of Fishing

Comment A
: One commenter expressed concern about the quality of information that Councils were using to conduct assessments of the effects of fishing on EFH as required by the interim final rule, and recommended that NMFS provide Councils with a standard of review for non-scientific information such as “gray” literature, videos, and anecdotal information. Other commenters suggested that NMFS provide guidance to Councils for how to fulfill their obligation to minimize adverse fishing effects on EFH to the extent practicable when information is lacking.

Response A
: NMFS agrees that further guidance is warranted to explain how Councils should consider available information. The final rule clarifies the requirement for Councils to examine the effects of fishing on EFH, and refers to this analysis as an “evaluation” rather than an “assessment” to avoid confusion with the requirement to perform an EFH Assessment during consultations as described in Subpart K. The final rule retains language from the interim final rule advising Councils to complete the evaluation using the best scientific information available, as well as other appropriate information sources, as available. When information is lacking, or when Councils use non-peer-reviewed or non-scientific information to augment the evaluation, the final rule states that Councils should consider the different types of available information according to its scientific rigor.

Comment B
: Several commenters said that Councils did not adequately evaluate adverse effects from fishing in their EFH FMP amendments and urged NMFS to establish specific requirements, such as requiring Councils to classify the level of impacts according to gear type, to guide Councils in completing fishing impact evaluations.

Response B
: The EFH regulations require Councils to evaluate the potential adverse effects of fishing activities on EFH so that Councils will be informed when making decisions regarding minimization of adverse effects to EFH from fishing. NMFS did not fully approve those EFH FMP amendments that did not meet this requirement.

Based upon experience implementing the interim final rule, NMFS agrees that the regulations should clarify the requirements for conducting fishing impact evaluations, and NMFS has modified the rule accordingly. Specifically, the final rule requires Councils to describe each fishing activity, review and discuss all available relevant information (such as information regarding the intensity, extent, and frequency of any adverse effect on EFH; the type of habitat within EFH that may be affected adversely; and the habitat functions that may be disturbed), and provide conclusions regarding whether and how each fishing

activity adversely affects EFH. The final rule also clarifies that Councils should consider the cumulative impacts of multiple fishing activities on EFH in the fishing impact evaluation.

Comment C
: Two commenters recommended that the EFH regulations be revised to advise Councils to document and assess in FMPs all management actions taken prior to the enactment of the EFH provisions that benefit habitat before recommending new measures to conserve and enhance EFH.

Response C
: NMFS agrees that it is useful for Councils to document and consider any past management actions that provide habitat protection. The final rule recommends that Councils list past management actions that minimize potential adverse effects on EFH and describe the benefits of those actions to EFH in the evaluation of fishing impacts on EFH.

14. Comments on the Threshold That Requires Councils to Minimize Adverse Effects of Fishing on EFH

Comment A
: One commenter questioned use of the words “prevent” and “mitigate” in the portion of the EFH regulations that states, “Councils must act to prevent, mitigate, or minimize any adverse effects from fishing, to the extent practicable...” The commenter indicated that use of these words is inappropriate since the Magnuson-Stevens Act only authorizes Councils to “minimize” adverse fishing effects on EFH.

Response A
: NMFS disagrees. By using the words “prevent” and “mitigate” in this provision of the EFH regulations, NMFS' intent is to give Councils the flexibility to adopt the approach that is most suitable to meet the statutory obligation to minimize adverse fishing effects on EFH. For instance, it might be more effective for Councils to act to prevent particularly damaging adverse effects rather than allowing all types of effects to occur with some degree of minimization.

Comment B
: The interim final rule stated that Councils must minimize to the extent practicable adverse effects on EFH from fishing if there is evidence that a fishing practice is having an identifiable adverse effect on EFH. Some commenters from conservation groups were pleased that NMFS replaced the word “substantial” (from the proposed rule) with “identifiable,” stating that “identifiable” is closer to the intent of the statute in terms of indicating the threshold at which Councils must take action to minimize adverse fishing effects to EFH. Others expressed concern that the word “identifiable” is inappropriate since this language does not appear in the Magnuson-Stevens Act and may still raise the threshold for action above that set by the Act. Commenters also expressed concern that the need to demonstrate an “identifiable” adverse effect might lead the Councils to inaction. Furthermore, commenters questioned the meaning of the descriptors for the term “identifiable,” offered in both the preamble to the interim final rule and the draft technical guidance manual, that “identifiable means both more than minimal and not temporary in nature.” Some commenters recommended that the EFH regulations require Councils to demonstrate adverse impacts scientifically and make the specific connection between adverse impacts and reduced stock productivity before taking action to minimize these impacts.

Response B
: As discussed in the preamble to the interim final rule at 62 FR 66538, NMFS' intent was to provide guidance to Councils for determining when to act to minimize adverse fishing effects to EFH. Such action is warranted to regulate fishing activities that reduce the capacity of EFH to support managed species, not fishing activities that result in inconsequential changes to the habitat. In response to commenters' concern over the word “identifiable” in the interim final rule, NMFS modified this section to read, “Councils must act to prevent, mitigate, or minimize any adverse effects from fishing, to the extent practicable, if there is evidence that a fishing activity adversely affects EFH in a manner that is more than minimal and not temporary in nature” based on the Councils' evaluation of the potential adverse effects of fishing. Temporary impacts are those that are limited in duration and that allow the particular environment to recover without measurable impact. Minimal impacts are those that may result in relatively small changes in the affected environment and insignificant changes in ecological functions.

It is not appropriate to require definitive proof of a link between fishing impacts to EFH and reduced stock productivity before Councils can take action to minimize adverse fishing impacts to EFH to the extent practicable. Such a requirement would raise the threshold for action above that set by the Magnuson-Stevens Act. The final rule encourages Councils to use the best available science as well as other appropriate information sources when evaluating the impacts of fishing activities on EFH, and to consider different types of information according to its scientific rigor.

Comment C
: Several conservation groups criticized Councils for not adopting any new measures to minimize adverse effects from fishing activities and requested that NMFS require in the EFH regulations that new measures be taken to comply with the Magnuson-Stevens Act. Many of the same groups commented that NMFS should develop documentation requirements for Councils to demonstrate compliance with the requirement to minimize adverse fishing impacts to EFH to the extent practicable.

Response C
: The final rule clarifies that Councils should document compliance with the requirement to minimize to the extent practicable adverse effects on EFH caused by fishing. When there is evidence that a fishing activity adversely affects EFH in a manner that is more than minimal and not temporary in nature, Councils should identify in FMPs a range of potential new actions that could be taken to address adverse effects on EFH; include an analysis of the practicability of potential new actions; and adopt any new measures that are necessary and practicable. However, new measures may not be necessary in all cases. The final rule requires that FMPs explain the reasons for Councils' conclusions regarding the past and/or new actions that minimize to the extent practicable the adverse effects of fishing on EFH.

Comment D
: One commenter suggested that NMFS revise the EFH regulations to require Councils to adopt framework measures to address fishing impacts.

Response D
: NMFS disagrees with this suggestion. It is not necessary or appropriate to add a requirement to the EFH regulations that Councils use framework measures as the mechanism to address fishing impacts. Rather, Councils should decide which administrative approach is most appropriate to use to meet the requirements of the EFH provisions.

Comment E
: Several conservation groups recommended that each fishing activity be prohibited until it can be demonstrated that the activity does not adversely affect EFH.

Response E
: NMFS disagrees. The approach suggested by the commenters would not be consistent with the statutory requirement to minimize adverse effects on EFH “to the extent practicable” and would have significant adverse socioeconomic impacts. The EFH provisions of the Magnuson-Stevens Act and the EFH regulations provide adequate mechanisms to evaluate the effects of fishing activities on EFH and ensure the minimization of adverse impacts on such habitat.

Comment F
: Two commenters recommended that NMFS provide clearer guidance on how to interpret the term “practicable” and how Councils should carry out practicability analyses to comply with the statutory requirement to minimize to the extent practicable adverse effects on EFH caused by fishing. Another commenter noted that the phrase “consistent with national standard 7” in the section on conducting practicability analyses is unnecessary since all actions must be consistent with national standard 7 under the Magnuson-Stevens Act.

Response F
: The final rule clarifies the guidance for considering practicability. The revised language eliminates redundancy and advises Councils to consider long- and short-term costs and benefits of potential management measures to EFH, associated fisheries, and the nation. The final rule retains a reference to national standard 7 to provide context for the consideration of the costs and benefits of potential management measures.

Comment G
: One commenter requested that NMFS reinsert the words “the marine ecosystem” in place of “EFH” in the following passage from § 600.815(a)(3)(iv) of the interim final rule: “Councils should consider whether, and to what extent, the fishing activity is adversely impacting EFH...” The commenter stated that the language used in the proposed rule was a more accurate reflection of the spirit of the Magnuson-Stevens Act.

Response G
: NMFS disagrees. The Magnuson-Stevens Act requires Councils to address the effects of fishing on EFH, not on the entire marine ecosystem. The final rule incorporates editorial changes to eliminate redundancy, and therefore omits language cited by the commenter. The cited paragraph appears at § 600.815(a)(2)(iii) of the final rule.

Comment H
: One commenter suggested that the EFH regulations clarify that Councils must address the effects of fishing covered under one FMP on EFH covered under another FMP.

Response H
: NMFS agrees. The final rule clarifies that each FMP must minimize to the extent practicable adverse effects from fishing on EFH, including EFH designated under other Federal FMPs. The final rule also clarifies that each FMP must contain an evaluation of the potential adverse effects of fishing on EFH designated under the FMP, including effects of each fishing activity regulated under the FMP or other Federal FMPs.

Comment I
: Several commenters recommended that NMFS revise the EFH regulations to indicate what constitutes grounds for disapproval of the portion of FMPs pertaining to minimization of fishing impacts.

Response I
: Disapproval is warranted if an FMP or amendment is not consistent with the national standards, other provisions of the Magnuson-Stevens Act, or other applicable law. The EFH regulations provide guidance on meeting the EFH requirements of the Act, and failure to follow the guidance may lead to disapproval or partial approval of an FMP or amendment. It is unnecessary to state the grounds for disapproval in the regulations.

Comment J
: One commenter recommended that NMFS require Councils to coordinate with states and other authorities to provide conservation recommendations when Council-managed fisheries adversely affect EFH outside Federal jurisdiction.

Response J
: The Magnuson-Stevens Act does not authorize NMFS to require Councils to coordinate with or provide recommendations to states or other authorities, although Councils have authority under the Act to provide recommendations to states regarding actions that may affect the habitat of species under Council jurisdiction. When Council-managed fisheries adversely affect EFH in state waters, the Council should coordinate with the affected state(s) when developing management strategies.

15. Comments on the Identification of Specific Industries with Potential Adverse Effects on EFH

Comment A
: Two commenters thought that the final rule should identify specific industries that adversely impact EFH.

Response A
: During the comment period for the proposed rule, many commenters objected to their particular industries or activities being highlighted as having potential adverse effects on EFH. Many pointed out that non-fishing activities do not always adversely impact fish habitat. Some industries pointed out that they are involved in restoration efforts and that some of their activities have been documented as producing positive effects on fisheries, not adverse effects. In the preamble to the interim final rule at 62 FR 66540, NMFS acknowledged 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, the final rule avoids singling out specific industries or activities that have the potential to adversely affect EFH.

Comment B
: One port authority asked NMFS to clarify that “non-water dependent activities,” as used in the interim final rule, excludes port development and maintenance activities. The commenter's request extended to other location-dependent activities such as bridge and utility/cable-line installation and maintenance.

Response B
: Although NMFS has removed from the regulations the reference to specific non-water dependent activities, any Federal action that may adversely affect EFH is subject to consultation regardless of water dependency.

Comment C
: Several non-fishing industry commenters asked NMFS to explain its authority for asking the Councils to identify non-fishing activities, and stated that the Magnuson-Stevens Act appears only to provide authority to identify fishing activities.

Response C
: NMFS addressed this concern in the preamble to the interim final rule at 62 FR 66539-66540 and continues to disagree that its authority is limited to addressing fishing activities. One of the stated purposes of the Magnuson-Stevens 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 include non-fishing activities. Section 303(a)(7) of the Magnuson-Stevens Act requires FMPs to address the effects of fishing on EFH and identify other actions to encourage the conservation and enhancement of EFH. The statute does not limit these measures to pertain only to fishing activities. A necessary first step to identifying conservation and enhancement measures is to identify adverse effects.

Comment D
: One commenter representing non-fishing industry interests wanted the final rule to require that FMPs document actual adverse effects to EFH, rather than potential adverse effects.

Response D
: NMFS disagrees. Documentation of actual adverse effects in most cases depends on site-specific factors, whereas the intent of this portion of the rule is to identify the types of activities that can commonly cause adverse effects. The final rule omits language stating that FMPs must identify activities that “have the potential to adversely affect EFH” and instead says that FMPs must identify activities “that may adversely affect EFH.” This change will make the standard for identifying threats to EFH consistent with the standard for actions

that require consultation under section 305(b)(2)of the Magnuson-Stevens Act.

16. Comments on Cumulative Impacts Analysis

Comment A
: Many commenters, primarily environmental organizations and some individual commenters, wanted the final rule to mandate that the FMPs contain a cumulative impacts analysis of fishing and non-fishing activities on EFH.

Response A
: NMFS agrees that FMPs should provide an analysis of cumulative impacts, but does not agree that such an analysis should be mandatory. The final rule clarifies that, to the extent feasible and practicable, FMPs should analyze how the cumulative impact of fishing and non-fishing activities influence the function of EFH on an ecosystem or watershed scale.

Comment B
: Commenters representing non-fishing interests asked that cumulative impact analysis concentrate on a more clearly defined and focused group of watershed activities. The commenters also wanted to know what time period the cumulative impact analysis should address and why cumulative risk assessments would be conducted at all, since they are likely to be time consuming and expensive.

Response B
: NMFS has clarified the cumulative impacts analysis language in the final rule. A cumulative impacts analysis is intended to evaluate the effect on EFH of impacts occurring within a watershed or marine ecosystem that may result from individually minor but collectively significant actions. It should consider the effects of all actions that affect the quantity and/or quality of EFH spanning a time frame deemed appropriate by the Councils. The resulting analysis will improve NMFS' and the Councils' ability to examine actions within a watershed or marine ecosystem that adversely affect EFH and will highlight the potential for future concerns. The final rule retains language stating that the FMPs should contain such an analysis to the extent feasible and practicable.

Comment C
: One commenter requested that the word “minor” be removed from the description of what can cause cumulative impacts from § 600.815(a)(6) of the interim final rule.

Response C
: NMFS disagrees. The intent of a cumulative impacts analysis is to address potential effects of actions that may appear minor individually, yet have more serious consequences when viewed in the aggregate. Thus, the final rule retains language stating that cumulative impacts can result from individually minor, but collectively significant actions taking place over a period of time.

Comment D
: One commenter stated that the final rule should require the Councils to gather data to analyze cumulative impacts and that the quantity and quality of data should guide the conclusions on cumulative impacts. The commenter also wanted the FMPs to indicate which impacts are supported by data.

Response D
: National standard 2 requires that all conservation and management measures, including those that arise from a cumulative impacts analysis, be based upon the best scientific information available. NMFS agrees that the quantity and quality of available data should guide Councils' conclusions on cumulative impacts, although Councils should also consider that cumulative impacts may not be easily discernable from available data.

17. Comments on the Guidance for Identifying Actions to Encourage the Conservation and Enhancement of EFH

Comment A
: Two commenters addressed the guidance for general conservation and enhancement recommendations found in § 600.815(a)(7)(ii) of the interim final rule. One of the commenters focused on the statement that “Activities that may result in significant adverse effect on EFH should be avoided where less environmentally harmful alternatives are available.” The commenter questioned the use of the term “significant” here as opposed to “identifiable” in § 600.815(a)(3) of the interim final rule and said that NMFS appears to be condoning an increased level of habitat disturbance for non-fishing activities. The commenter also suggested replacing “should be avoided” with “will be avoided” in this sentence. Another commenter, representing non-fishing interests, wanted NMFS to delete the reference to “protecting” EFH in this portion of the regulations.

Response A
: In the final rule NMFS deleted a large portion of the section entitled “Conservation and enhancement” that appeared in the interim final rule at § 600.815(a)(7), including the language referenced by the commenters. The deleted paragraphs contained general recommendations and options for EFH conservation and enhancement to assist Councils in developing the required provision of FMPs discussing measures to conserve and enhance EFH. However, NMFS determined that such general recommendations do not need to be codified in regulations and that including this information in the final rule could lead to confusion since the general recommendation might not apply equally in all areas. The shortened section dealing with conservation and enhancement recommendations appears in the final rule at § 600.815(a)(6).

Comment B
: One commenter wanted NMFS to clarify that habitat creation should be reserved for mitigating habitat losses or restoring native fish populations and should not alter natural habitats.

Response B
: As discussed above, the rule no longer contains any general recommendations for habitat creation or other methods to conserve and enhance EFH. Conservation and enhancement recommendations in FMPs must include options to avoid, minimize, or compensate for adverse effects to EFH. If appropriate, habitat creation may be a means of compensating for lost or degraded habitat. However, converting naturally functioning systems to another type of habitat warrants justification within an ecosystem context.

Comment C
: One state commenter asked for clarification on how the Councils will evaluate the effectiveness of each recommended mitigation measure (i.e., conservation and enhancement option). The commenter asked that the FMPs include feedback mechanisms to assess the effectiveness of, and establish a monitoring program for, recommended mitigation measures.

Response C
: The final rule does not require Councils to evaluate the effectiveness of each recommendation in FMPs for EFH conservation and enhancement. Council recommendations, however, should be based on the best scientific information available. NMFS and Councils may suggest monitoring requirements or other appropriate measures in their recommendations on state and Federal agency actions under sections 305(b)(3) and (4) of the Magnuson-Stevens Act.

Comment D
: One commenter representing non-fishing interests wanted NMFS to delete the requirements of § 600.815(a)(5) of the interim final rule that require Councils to identify non-fishing activities that may adversely affect EFH. Several commenters representing non-fishing interests wanted NMFS to delete the language in § 600.815(a)(7)(i) of the interim final rule that refers to conservation and enhancement measures for non-fishing activities. The commenters thought that the language addressing non-fishing activities exceeded the statutory authority of the Magnuson-Stevens Act and should be limited to fishing activities. The

commenters also stated that since the rule does not require listing conservation and enhancement recommendations for fishing activities, then it cannot do so for non-fishing activities.

Response D
: NMFS disagrees and maintains that it has statutory authority to address non-fishing activities. NMFS has clarified the language in the final rule that discusses the identification of non-fishing activities that may adversely affect EFH in § 600.815(a)(4) and conservation and enhancement recommendations in § 600.815(a)(6), but these modifications did not change the substantive requirements of the rule. One stated purpose of the Magnuson-Stevens 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 include non-fishing activities. Section 303(a)(7) of the Magnuson-Stevens Act requires FMPs to address the effects of fishing on EFH and identify other actions to encourage the conservation and enhancement of EFH. The statute does not limit these measures to fishing activities only. Likewise, section 305(b)(2) of the Magnuson-Stevens Act requires consultation for any federal action that may adversely affect EFH regardless of whether it is a fishing or non-fishing activity.

Comment E
: Several non-fishing interests wanted the final rule to require the Councils to report on current conservation and enhancement practices and use data to identify how further conservation and enhancement of EFH is possible with additional measures. One commenter said that FMPs should document existing conservation measures before recommending new measures.

Response E
: Councils must recommend appropriate measures for conservation and enhancement of EFH. These measures may include new recommendations or existing, routine practices of industry or other organizations that minimize potential harm to fish habitat. All Council recommendations should be based on the best scientific information available.

Comment F
: A port authority asked that the Councils be required to consider the economic impacts to non-fishing maritime interests of making recommendations for minimizing adverse effects to EFH. The commenter pointed out that the rule requires the Councils to consider whether it is practicable to recommend conditions to minimize adverse effects from fishing. Given the economic importance of ports, the commenter thought that the Councils should apply the same standard of practicability to other recommendations for minimizing adverse effects to EFH from port maintenance and development activities.

Response F
: As explained in the preamble to the interim final rule at 62 FR 66540, non-fishing and fishing impacts are held to different standards in the EFH regulations because of differences in the applicable provisions of the Magnuson-Stevens Act. Section 303(a)(7) of the Magnuson-Stevens Act requires that FMPs minimize effects of fishing on EFH to the extent practicable, and NMFS and the Councils manage fishing activities through regulations that must consider costs and benefits of required management measures. The requirement in Section 303(a)(7) of the Magnuson-Stevens Act for Councils to recommend conservation and enhancement measures for non-fishing activities does not mention practicability, and it is the responsibility of the agencies with relevant jurisdiction to determine whether it is practicable to implement Council recommendations. Nevertheless, Council recommendations should be reasonable.

18. Comments on Habitat Areas of Particular Concern

Comment A
: Some commenters requested that NMFS delete all references to Habitat Areas of Particular Concern (HAPCs), saying that in encouraging Councils to designate HAPCs, NMFS is going beyond the scope of the EFH provisions since the Magnuson-Stevens Act does not specifically authorize the development of a subset of habitat within EFH. One commenter asked NMFS to clarify how the designation of HAPCs will be used to protect EFH, and specifically, how it will affect implementation of the consultation process. Other commenters urged NMFS to require Councils to designate HAPCs for all species and to hold HAPCs to a higher standard of protection.

Response A
: NMFS disagrees that development of HAPCs as a subset of EFH goes beyond the scope of the Magnuson-Stevens Act. The statutory definition of EFH is broad, encompassing all habitat necessary for fish to carry out their basic life functions. HAPCs provide a mechanism to acknowledge areas where more is known about the ecological function and/or vulnerability of portions of EFH.

The designation of HAPCs is a valuable way to highlight priority areas within EFH for conservation and management. For example, a General Concurrence that is proposed for actions affecting HAPCs should be subject to a higher level of scrutiny than a General Concurrence not affecting HAPCs. Proposed fishing activities that might threaten HAPCs may likewise receive a higher level of scrutiny. NMFS has no authority to regulate activities other than fishing that may adversely affect EFH or HAPCs, so NMFS cannot impose protective measures for HAPCs through the consultation process. However, NMFS may recommend such measures to the applicable Federal or state action agency.

NMFS cannot require Councils to designate HAPCs. Any higher degree of protection for areas designated as HAPCs would result from having more available information about the function or sensitivity of the habitat, or the human-induced threats to the habitat, which may justify more stringent or precautionary management approaches.

Comment B
: Some commenters recommended that the EFH regulations be revised to direct Councils to use HAPCs as the principal means to meet the requirements of the EFH provisions.

Response B
: While HAPCs help to focus EFH conservation priorities, HAPCs are localized areas that are especially vulnerable or ecologically important. Healthy populations of fish require not only these relatively small habitats, but also other suitable areas that provide necessary habitat functions to support larger numbers of fish. HAPCs can highlight valuable and/or vulnerable habitats, but alone are not intended to comprise the areas necessary to support healthy stocks of fish throughout all of their life stages.

Comment C
: One commenter requested that NMFS add a provision to the EFH regulations to allow stakeholders to petition NMFS to designate HAPCs.

Response C
: It is not appropriate to add an HAPC petitioning provision to the rule, because HAPCs should be proposed through the Council process. NMFS encourages interested parties to participate in the identification of HAPCs through the Council process. Council meetings occur regularly throughout the year and are open to the public.

Comment D
: The interim final rule listed four criteria for identifying HAPCs. One commenter requested that NMFS change the term “criteria” to more accurately reflect that the four items are “considerations.”

Response D
: NMFS agrees and has changed “criteria” to “considerations.”

Comment E
: One commenter requested that NMFS revise the first

consideration for HAPCs to distinguish between current and historical importance of ecological function provided by a particular habitat. The commenter also noted that this consideration should be expanded to include a determination as to whether the area in question serves more than one ecological function.

Response E
: NMFS disagrees that a revision to this portion of the rule is necessary. The HAPC consideration regarding ecological importance may include both currently and historically important areas, provided that restoration of historic habitat functions is technologically and economically feasible. Additionally, Councils have flexibility to identify areas as HAPC that provide one or more important ecological functions.

Comment F
: One commenter requested that NMFS define the word “rarity” in the fourth consideration for HAPC designation.

Response F
: The fourth consideration for HAPC designation is the rarity of the habitat type. NMFS disagrees that a definition of “rarity” in the rule is needed, but suggests that Councils consider as rare those habitats that are less common than other habitats in a particular geographic area.

Comment G
: One commenter recommended that the EFH regulations be revised to require Councils to address all four HAPC considerations to designate an area as an HAPC.

Response G
: NMFS disagrees. Councils may designate HAPCs based on one or more of the four specified considerations, because any one of the considerations may provide sufficient basis for distinguishing a subset of EFH from the remainder of EFH.

Comment H
: One commenter recommended that the EFH regulations be revised to require Councils to use information sources that meet a high scientific standard to designate HAPCs.

Response H
: National standard 2 states that conservation and management measures shall be based upon the best scientific information available. This standard applies to all fishery management actions, including HAPC designation, and the final rule reemphasizes this point. Section 600.815(a)(1)(ii)(B) states, “Councils should obtain information to describe and identify EFH from the best available sources, including peer-reviewed literature, unpublished scientific reports, data files of government resource agencies, fisheries landing reports, and other sources of information.” The final rule further clarifies that Councils should consider different types of information according to its scientific rigor. Since HAPCs are a subset of EFH, the same standard applies to HAPC designation.

Comment I
: One Council requested that NMFS rename HAPCs “EFH-HAPCs” to distinguish them from HAPCs identified by the Council prior to enactment of the EFH provisions of the Magnuson-Stevens Act.

Response I
: The final rule does not change the terminology for HAPCs because doing so would likely result in unnecessary confusion. Councils had the ability to identify particularly important habitat areas prior to the development of the EFH regulations, and may now identify such areas in the context of EFH. If a Council chooses to refer to HAPCs identified under the EFH regulations as “EFH-HAPCs,” it may do so. NMFS encourages the Councils to determine whether their previous identification of important habitats should be designated as HAPCs under the final rule.

Comment J
: One commenter questioned why the draft technical guidance manual would not be reopened for public review and comment given that it elaborates on the considerations on which to base HAPC designations.

Response J
: The rationale for not soliciting additional public comment on the guidance is discussed in the preamble to the interim final rule at 62 FR 66532. The draft technical guidance will be superseded with appropriate guidance for the final rule.

Comment K: One Council stated that all mid-Atlantic estuaries should be considered as HAPCs because they function as spawning grounds and/or nursery areas for many managed species.

Response K
: The rule allows Councils to designate HAPCs in FMPs based on the ecological importance of an area of EFH, its sensitivity to anthropogenic degradation, whether it is or will be subject to stress from development, or its rarity. The commenting Council may designate HAPCs as appropriate using these guidelines.

19. Comments on New FMPs, FMP Amendments, and Updates

Comment
: A Council suggested that the final rule encourage updating the EFH information in FMPs whenever better information becomes available, rather than just once every five years. Several conservation groups commented that the regulations should require that new FMPs and modifications to existing FMPs continue to comply with the EFH requirements of section 303(a)(7) of the Magnuson-Stevens Act. Another commenter asked for clarification of what constitutes new information worthy of updating the EFH portions of an FMP. The same commenter recommended that NMFS amend the regulations regarding Stock Assessment and Fishery Evaluation (SAFE) reports at 50 CFR 600.315(e) to require the inclusion of EFH information, rather than keeping such information optional as in the current regulations.

Response
: NMFS agrees that the EFH components of FMPs should be revised as warranted based on available pertinent information. The final rule clarifies this point and encourages Councils to outline the procedures that will be used to review and update EFH information. The final rule also explains some of the types of information that Councils should review. The final rule does not establish a threshold level of information that should prompt revisions to an FMP because such decisions are best made on a case-by-case basis. Regarding SAFE reports, the regulations describing these reports do not list mandatory contents, but list information that “should” or “may” be included. NMFS does not intend to make EFH information a required part of SAFE reports since Councils should be able to report on their review of EFH information using other means if appropriate.

20. Comments on Development and Review of NMFS EFH Recommendations to Councils

Comment
: One commenter said that in NMFS' recommendations to Councils regarding the EFH components of FMPs, NMFS should include a description of the extent and quality of the best available scientific information.

Response
: NMFS' recommendations to Councils under § 600.815(c) may take one of two forms: suggestions for the EFH components of an FMP that precede a Council's development of a draft EFH document, or a technical and policy review of a draft EFH document prepared by a Council. In cases where NMFS' recommendations precede a Council's development of a draft EFH document, the recommendations typically will include a review of the best available science. In cases where the recommendations constitute a review of a draft Council document, it may not be necessary for the recommendations to describe the available science if that information is summarized adequately in the Council's document. Therefore, the final rule does not contain language specifying that NMFS' recommendations should address the extent and quality of the best available scientific information. Nevertheless, national standard 2

requires fishery management measures to be based upon the best scientific information available.

21. Comments on the Effect of EFH Designations on other Agencies and Other Uses of Aquatic Areas

Comment A
: One commenter requested that NMFS delete reference to the word “state” in the sentence in § 600.905(a) of the EFH regulations that reads, “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.” The commenter said that use of the word “state” is inappropriate since the Magnuson-Stevens Act only applies to the review of Federal actions.

Response A
: NMFS disagrees. References to state actions is appropriate in this case since sections 305(b)(3) and (4) of the Magnuson-Stevens Act include provisions for NMFS and Councils to provide recommendations to state agencies on actions that could harm EFH.

Comment B
: One commenter suggested that NMFS defer to the U.S. Army Corps of Engineers on matters related to dredging and contaminated dredged material.

Response B
: NMFS has coordinated extensively with the Corps of Engineers on matters related to dredging and dredged material disposal and will continue to do so in the future. However, the Corps must consult with NMFS regarding its actions that may adversely affect EFH, and NMFS must provide EFH Conservation Recommendations on actions that would adversely affect EFH. NMFS and the Corps may in some cases disagree about potential impacts to EFH or appropriate measures to avoid, minimize, or offset such impacts.

Comment C
: One commenter requested that NMFS clarify that owners of structures designated as EFH are not required to maintain them for the sole purpose of providing EFH.

Response C
: NMFS does not have the authority to require owners of structures designated as EFH to maintain them as EFH.

Comment D
: One commenter opposed designation of heavily industrialized areas, such as active ports, as EFH, stating that EFH designation would be in direct conflict with the purpose of such areas.

Response D
: The Magnuson-Stevens Act requires Councils to identify as EFH those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity, regardless of whether those habitats occur in an industrialized area. NMFS disagrees that EFH designation is necessarily in conflict with heavily industrialized areas, since many active ports and other industrial areas continue to provide useful habitat for managed species.

Comment E
: Several commenters expressed concern that EFH designations would affect the rights of private landowners.

Response E
: NMFS addressed this concern in the preamble to the interim final rule at 62 FR 66535, and the response remains the same. EFH designation has no effect on the rights of private landowners.

Comment F
: One commenter recommended that the EFH identification process should recognize existing treaties, statutes, compacts, decrees, and other laws and regulations that apply to areas under consideration for EFH designation so that the public is aware that EFH identification does not supersede other existing laws, interests, rights, or jurisdictions.

Response F
: NMFS agrees that the identification of EFH in an area and any applicable regulations do not supersede the regulations, rights, interests, or jurisdictions that pertain to such an area under treaties, compacts, decrees, and other laws.

Comment G
: One commenter requested that NMFS add language to the rule to recognize that non-fishing activities provide important economic and security benefits to the nation. The commenter suggested that NMFS direct the Councils to seek ways to provide for these activities while conserving EFH.

Response G
: NMFS recognizes the value and contributions of non-fishing activities to the general public, but disagrees with the suggestion. NMFS and Councils have authority under the Magnuson-Stevens Act to provide recommendations to Federal and state agencies to minimize the adverse effects of non-fishing activities on EFH. It would be inappropriate to include in the EFH regulations a requirement for Council or NMFS positions on non-fishing activities to balance competing public interest factors. Council and NMFS recommendations on non-fishing activities under the Magnuson-Stevens Act are non-binding and are intended to address effects on EFH and fishery resources. Action agencies must consider the overall public interest, including the public benefits of the proposed action, when deciding whether to adopt these recommendations.

22. Comments on the Authority to Issue Regulations Regarding EFH Coordination, Consultation, and Recommendations

Comment A
: A number of non-fishing industry groups questioned NMFS' authority to establish procedures by regulation for the EFH coordination, consultation, and recommendation process. These commenters questioned the need for such procedures and asserted that the Magnuson-Stevens Act does not authorize NMFS to establish requirements for other agencies as part of the EFH consultation process.

Response A
: NMFS addressed similar comments in the preamble to the interim final rule at 62 FR 66542, and continues to maintain that it has the authority to issue regulations to implement the EFH coordination, consultation, and recommendation requirements of the Magnuson-Stevens Act. Section 305(d) of the Magnuson-Stevens Act confers upon the Secretary the authority to promulgate such regulations as may be necessary to carry out any provision of the Act. Regulations are necessary to implement Sections 305(b)(1)(D) and 305(b)(2)-(4) of the Magnuson-Stevens Act so that all affected parties will understand the Secretary's interpretation of these sections of the Act and the processes and information needs associated with carrying out the specific statutory requirements. Without such regulations, there likely would be considerable confusion, inconsistency, and inefficiency amongst Federal agencies, state agencies, Councils, and NMFS regarding the implementation of these sections of the Act.

Comment B
: Several non-fishing industry groups identified specific provisions of the interim final rule that they believed illustrate that NMFS has exceeded its authority. With regard to the preparation of EFH Assessments, some commenters said that the Magnuson-Stevens Act gives NMFS no authority to require other agencies to provide specific information or otherwise prescribe how they should consult with NMFS regarding EFH. Some commenters felt that EFH consultations can be addressed through existing environmental review processes under other laws (such as the National Environmental Policy Act) with no additional EFH-specific information. Some commenters said that the requirement for a finding by NMFS is not authorized by the Magnuson-Stevens Act and should not be necessary before an existing environmental review process can be used for EFH consultations. Others said

that it is inappropriate for NMFS to suggest time frames that Federal agencies should follow as part of the EFH consultation process. A few commenters said NMFS has no authority to require other agencies to use the best scientific information available regarding potential adverse effects of an action on EFH, suggesting that action agencies may simply notify NMFS of proposed actions and leave the evaluation to NMFS.

Response B
: Subpart K of the regulations details the procedures and information determined by the Secretary to be necessary to carry out the specific requirements of Sections 305(b)(1)(D) and 305(b)(2)-(4) of the Magnuson-Stevens Act in an efficient and effective manner. As noted in the preamble to the interim final rule at 62 FR 66542, information in an EFH Assessment is necessary to enable NMFS to fulfill its statutory requirement to provide EFH Conservation Recommendations to Federal agencies. This cooperative exchange of information and recommendations between NMFS and Federal agencies is vital for effective consultation regarding actions that may adversely affect EFH, and is inherent in the requirement for Federal agencies to consult with NMFS.

The Magnuson-Stevens Act does not provide for an exemption from EFH consultations if another environmental review is required for an action, and other environmental reviews generally do not address specific habitat considerations for managed species of fish and shellfish. However, NMFS encourages Federal agencies to combine EFH consultations with other environmental reviews. When Federal agencies choose this approach to EFH consultation, the regulations require a finding by NMFS that the selected process provides specific EFH-related information in a timely way. A finding is necessary to ensure that consultations are implemented effectively and efficiently. It is appropriate for NMFS to require the EFH Assessment information and a finding because otherwise consultations using different environmental review processes might not fulfill the requirements of Section 305(b)(2) of the Magnuson-Stevens Act.

The final rule continues to provide time frames for abbreviated and expanded consultation, and continues to include language allowing NMFS and a Federal action agency to agree to use a compressed schedule in cases where shorter time frames are appropriate. The inclusion of time frames in the regulations helps to make consultations efficient, and NMFS recognizes the need to be flexible when consultation using those time frames is not practicable for other agencies.

Regarding the requirement for Federal agencies and NMFS to use the best available scientific information, NMFS' intent is to promote an open exchange of information regarding the effects of actions on EFH. Federal agencies may

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-885. Public record. Not legal advice.