Magnuson Act Provisions; Essential Fish Habitat (EFH)

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 961030300-7090-03; I.D. 120996A]

RIN 0648-AJ30

Magnuson Act Provisions; Essential Fish Habitat (EFH)

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to issue regulations containing guidelines for

the description and identification of essential fish habitat (EFH) in

fishery management plans (FMPs), adverse impacts on EFH, and actions to

conserve and enhance EFH. The regulations would also provide a process

for NMFS to coordinate and consult with Federal and state agencies on

activities that may adversely affect EFH. The guidelines are required

by the Magnuson-Stevens Fishery Conservation and Management Act

(Magnuson-Stevens Act). The purpose of the rule is to assist Fishery

Management Councils (Councils) in fulfilling the requirements set forth

by the Magnuson-Stevens Act to amend their FMPs to describe and

identify EFH, minimize adverse effects on EFH, and identify other

actions to conserve and enhance EFH. The coordination and consultation

provisions would specify procedures for adequate consultation with NMFS

on activities that may adversely affect EFH.

[[Page 19724]]

DATES: Written comments on the proposed rule must be received on or

before May 23, 1997.

ADDRESSES: Comments should be sent to the Director, Office of Habitat

Conservation, Attention: EFH, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910-3282. Copies of the Technical Assistance Manual,

previous advance notices of proposed rulemaking (ANPR), draft

environmental assessment (EA) and finding of no significant impact

(FONSI), and ``Framework for the Description, Identification,

Conservation, and Enhancement of Essential Fish Habitat'' (Framework)

are available. (see SUPPLEMENTARY INFORMATION).

FOR FURTHER INFORMATION CONTACT: Lee Crockett, NMFS, 301/713-2325.

SUPPLEMENTARY INFORMATION: A copy of the ANPRs, Framework, proposed

regulation, draft EA and FONSI, and Technical Assistance Manual are

available via the NMFS Office of Habitat Conservation Internet website

at: http://kingfish.ssp.nmfs.gov/rschreib/habitat.html or by contacting

one of the following NMFS Offices:

Office of Habitat Conservation, Attention: EFH, National Marine

Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-

3282; 301/713-2325.

Northeast Regional Office, Attention: Habitat and Protected Resources

Division, One Blackburn Drive, Gloucester, MA 01930; 508/281-9328.

Southeast Regional Office, Attention: Habitat Conservation Division,

9721 Executive Center Drive North, St. Petersburg, FL 33702; 813/570-

5317.

Southwest Regional Office, Attention: Habitat Conservation Division,

501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802; 310/980-4041.

Northwest Regional Office, Attention: Habitat Conservation Branch, 525

N.E. Oregon St., suite 500, Portland, OR 97232; 503/230-5421.

Alaska Regional Office, Attention: Protected Resources Management

Division, 709 West 9th Street, Federal Bldg., room 461, P.O. Box 21668,

Juneau, AK 99802-1668; 907/586-7235.

Related Documents

Concurrent with publication of this proposed rule, NMFS will make

available ``Technical Guidance to Implement the Essential Fish Habitat

Requirements for the Magnuson-Stevens Act.'' This manual provides

supplemental information for developing EFH recommendations and FMP

amendments. The document is intended to be updated regularly as new and

innovative methods are available in habitat identification and mapping.

The Technical Guidance Manual is based on and will contain similar

detail to that included in the Framework. The draft manual is available

for comment and may be obtained from any NMFS office listed in the

SUPPLEMENTARY INFORMATION section.

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. It mandates that the Secretary of

Commerce (Secretary) shall, within 6 months of the date of enactment,

establish guidelines by regulation to assist the Councils to describe

and identify EFH in FMPs (including adverse impacts on such habitat)

and to consider actions to conserve and enhance such habitat. These

proposed regulations would establish a process for Councils to identify

and describe EFH, including adverse impacts to that habitat, per the

requirements of the Magnuson-Stevens Act. The Magnuson-Stevens Act also

requires that the Secretary, in consultation with fishing participants,

provide each Council with recommendations and information regarding

each fishery under that Council's authority to assist it to identify

EFH, the adverse impacts on that habitat, and actions that should be

considered to conserve and enhance that habitat. The proposed

regulation would establish procedures to carry out this mandate.

Councils must submit FMP amendments containing these new provisions by

October 11, 1998.

In addition, the Magnuson-Stevens Act requires that Federal

agencies consult with the Secretary on any activity authorized, funded,

or undertaken, or proposed to be authorized, funded, or undertaken,

that may adversely affect EFH. The Secretary must respond with

recommendations for measures to conserve EFH. The Secretary must

provide recommendations to states as well. The regulation would also

establish procedures to implement these consultative requirements.

This regulation proposes to address ecosystem considerations in

fishery management. Through the 1996 Magnuson-Stevens Act

reauthorization, FMPs are now required to describe and identify EFH

used by managed fishery resources. In addition, FMPs are required to

identify actions to ensure conservation and enhancement of EFH.

In developing this rule, NMFS published two ANPRs. The first,

published in the Federal Register on November 8, 1996 (61 FR 57843),

solicited comments to assist NMFS in developing a framework for the

proposed guidelines. The second ANPR was published on January 9, 1997

(62 FR 1306). That ANPR announced the availability of the Framework.

The Framework was developed to provide a detailed outline for the

regulations and to serve as an instrument to solicit public comments.

The document was made available to the public for comment from January

9, 1997, through February 12, 1997. During that time, NMFS held fifteen

public meetings, briefings, and workshops across the nation. Eighty-

eight comments were received via mail or fax, and numerous comments

were received during the public meetings. NMFS considered those

comments in developing the proposed regulations. In addition to the

regulations, a Technical Guidance Manual is available (see

SUPPLEMENTARY INFORMATION) to provide further details on how the

Councils will identify EFH for managed species and develop amendments

to their FMPs.

Relation to Other Laws

The Magnuson-Stevens Act establishes expanded requirements for

habitat sections of FMPs and requires consultation between the

Secretary and Federal and state agencies on activities that may

adversely impact EFH for those species managed under the Act. It also

requires the Federal action agency to respond to comments and

recommendations made by the Secretary and Councils. For the purpose of

consultation on activities that may adversely affect EFH, the

description of EFH included in the FMP would be determinative of the

limits of EFH. Mapping of EFH would be required in the proposed

regulations to assist the public and affected parties to learn where

EFH is generally located. However, due to anticipated data gaps and the

dynamic nature of physical and biological habitat characteristics, maps

would be used as supplementary information during the consultation

process.

The Fish and Wildlife Coordination Act (FWCA) provides a mechanism

for the Secretary to comment to other Federal agencies on activities

affecting any living marine resources. Under the FWCA, Federal agencies

are required to consult with the Secretary on habitat impacts from

water development projects. The Secretary is not, however, required to

consult with Federal agencies on all activities that may adversely

affect habitat of managed species, nor are agencies required to

[[Page 19725]]

respond to Secretarial comments under the FWCA. The FWCA will continue

to allow the Secretary to comment and make recommendations on Federal

activities that may adversely affect living marine resources and their

habitat, even if such habitat is not identified as EFH.

The Endangered Species Act (ESA) definition of ``critical habitat''

to describe habitats under its authority includes areas occupied by the

species at the time of listing, as well as those unoccupied areas that

are deemed ``essential for the conservation of a species.'' The EFH

regulations would specify that, for species listed under ESA, EFH will

always include critical habitat. EFH may be broader than critical

habitat if restoration of historic habitat areas is feasible, and more

habitat is necessary to support a sustainable fishery. Because the

statutory definition of EFH includes the full life cycle of species,

including growth to maturity, EFH will also be broader than critical

habitat where marine habitats have not been included in the

identification of critical habitat (e.g., for anadromous salmonids

listed under the ESA).

Coordination with Interested Parties

NMFS would closely coordinate the development of EFH

recommendations with the appropriate Councils, fishing participants,

interstate fisheries commissions, Federal agencies, state agencies, and

other interested parties.

Relation Between EFH and State-Managed Waters

Many species managed under the Magnuson-Stevens Act spend some part

of their life cycle in state waters (in most states 0-3 miles offshore)

as well as Federal waters (generally 3-200 miles offshore). Because the

statutory definition of EFH covers the entire life cycle of a species,

EFH may be identified within both Federal and state waters. Therefore,

the consultation provisions for activities that may adversely affect

EFH may require the Secretary to consult on activities in both Federal

and state waters. Councils may also comment on activities in both

Federal and state waters. The requirement for Councils to institute

management measures to minimize adverse effects of fishing, however,

would only address those fishing activities that occur in Federal

waters.

Summary of Principal Comments

The public comments focused on eight issues. A summary of these

issues and the NMFS response follows.

Issue 1: Species of fish for which the Councils must describe and

identify EFH. NMFS received comments suggesting that EFH should be

described and identified for only those species managed by a Council in

a FMP. Other interpretations suggested that ``fish'' includes all

species inhabiting the geographic jurisdiction of a Council. The latter

interpretation could include species not currently managed, but

considered important by the Council. NMFS concludes that Councils

should describe and identify EFH for only those species managed under

an FMP. According to the Magnuson-Stevens Act, EFH can only be

designated through an amendment to an FMP. The Council would not be

precluded from identifying the habitat required by other species not

covered in an FMP and taking steps to protect it. To the extent that

such habitat requirements enhance the ecosystem approach to FMPs, the

Councils would be encouraged to identify such habitat. However, those

habitats of currently non-managed species would not be considered EFH.

Issue 2: Timing of the development of EFH recommendations by NMFS.

Some commentors suggested that EFH for all species within a fishery

management unit must be completed simultaneously. Other commentors

suggested that EFH be described for only those species whose catch is a

significant component of the fishery. NMFS has concluded that the law

requires the Councils to identify EFH for all managed species within

its jurisdiction within the Act's EFH amendment period. The Technical

Guidance Manual suggests several ways that Councils may perform this

task more efficiently.

Issue 3: Identification of EFH for prey species. Some comments

suggested that EFH be identified for all prey species, as opposed to

just the predominant prey species. Other comments suggested that

identification of EFH for prey species was unnecessary because their

habitat requirements are covered by the range of EFH for the managed

species. NMFS has concluded that the habitat of prey species would not

be included as EFH for managed species. Rather, Councils would identify

the major prey species for the species managed under the FMP, and would

describe the habitat of significant prey species to help in determining

if there are activities that would adversely affect their habitat. This

analysis would be included in the ``adverse effects'' section of the

EFH FMP amendment, rather than the description and identification of

EFH section. The Councils should consider loss of prey habitat as an

adverse effect on a managed species.

Issue 4: Interpretation of what habitat is ``necessary'' for

spawning, breeding, feeding, and growth to maturity. In the Framework,

NMFS interpreted ``necessary'' to mean the amount of habitat needed to

support a target production level which included, at a minimum, maximum

sustainable yield of the fishery plus other ecological benefits such as

being prey for other living marine resources. Many commentors were

concerned that this connection was too narrow and suggested that either

it not be included in the guidelines, thereby coupling EFH only to

feeding, breeding, and growth to maturity, or expanding the definition.

NMFS has concluded that the goal of linking ``necessary'' to production

is appropriate, however, this objective has now been defined as the

production necessary to support a sustainable fishery and a healthy

ecosystem.

Issue 5: Intent of the EFH amendments in relation to fishing. NMFS

received comments that clarification is needed regarding fishing in

areas identified as EFH. NMFS has now clarified that the intent is not

to preclude fishing in areas identified as EFH. Rather, the intent is

to refine the Council's and NMFS' abilities to manage fishing

activities by taking into account the increasing knowledge and

understanding of the importance of habitat, and taking actions to

minimize adverse impacts from fishing, to the extent practicable.

Many comments requested guidance on how the Councils would

determine when a fishing activity has an adverse impact requiring

action. NMFS has provided additional guidance on this concern by

proposing to require an assessment of the impacts of all gear types

used in the EFH. The assessment would consider closure areas for

research to evaluate impacts. The Councils would act to prevent,

mitigate, or minimize any adverse impacts from fishing, to the extent

practicable, if there is evidence that a fishing practice is having a

substantial adverse impact on EFH based on the assessment.

Issue 6: Interpretation of ``to the extent practicable''. No

guidance was provided in the Framework on the exact meaning of the

phrase. Some commentors expressed concern that a lack of guidance

risked no additional actions being taken by Councils. Others expressed

the opinion that the impacts of fishing were already known, and

suggested closure areas to protect sensitive habitats. Cost-benefit

analysis was also suggested. NMFS has provided additional guidance

within the proposed rule. The regulation states that in determining

whether minimizing an

[[Page 19726]]

adverse impact from fishing is practicable, Councils should consider:

(1) Whether, and to what extent, the fishing activity is adversely

impacting the marine ecosystem, including the managed species; (2) the

nature and extent of the adverse effect on EFH; and (3) whether the

cost to the fishery is reasonable.

Issue 7: NMFS' interpretation of ``substrate.'' Commentors

suggested it be modified to include artificial reefs and shipwrecks as

EFH. NMFS agrees with this modification and clarifies that artificial

reefs and shipwrecks could be identified as EFH.

Issue 8: Notification of projects under general concurrence.

Several comments were received on general concurrences, suggesting that

if no notification is required for projects that fall within a general

concurrence category, NMFS would be unable to track the cumulative

effects of these categories of activities. NMFS continues to state in

the regulation that no notice of those actions covered by a general

concurrence would be required, but only if a process is in place by the

action agency to adequately assess cumulative impacts.

Comments were also received concerning opportunities for public

review of general concurrences prior to final approval and

implementation. Commentors were concerned that general concurrences

could be established that would exempt specific activities from the

consultation process without an opportunity for public review. NMFS has

provided in the regulations that it would use public Council meetings,

or other means, to provide opportunities for public comment on general

concurrences prior to formalization. If Council review is not

available, NMFS would provide other reasonable means for public review.

Compliance Requirements

While the Magnuson-Stevens Act requires Federal agencies to consult

with NMFS on activities that may adversely affect EFH and respond to

NMFS' recommendations, the Act did not place direct requirements for

compliance with conservation and enhancement recommendations provided

by NMFS. The procedures identified in the regulations however, outline

a method for cooperation and coordination between agencies, and options

for dispute resolution should this become necessary.

Classification

NMFS has prepared a draft environmental assessment that discusses

the impact on the environment as a result of this rule. A copy of the

environmental assessment is available from NMFS (see SUPPLEMENTARY

INFORMATION).

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. The proposed rule would establish guidelines for

Councils to identify and describe EFH, including adverse impacts, and

conservation and enhancement measures. The proposed regulation requires

that the Councils conduct assessments of the effects of fishing on EFH

within their jurisdiction. Should Councils establish regulations on

fishing as a result of the guidelines and assessments of fishing gear,

that action may affect small entities and could be subject to the

requirement to prepare a regulatory flexibility analysis at that time.

Finally, the consultation procedures establish a process for NMFS to

provide conservation recommendations to Federal and state action

agencies. However, because compliance with NMFS' recommendations are

not mandatory, any effects on small businesses would be speculative. As

a result, a regulatory flexibility analysis for this proposed rule was

not prepared. This proposed rule has been determined to be not

significant for the purposes of E.O. 12866.

For purposes of Executive Order 12612, the Assistant Administrator

for Fisheries has determined that this proposed rule does not include

policies that have federalism implications sufficient to warrant

preparation of a Federalism Assessment. This proposed rule establishes

circumstances and procedures for consultations between the states and

NMFS or the Councils in situations where state action may adversely

impact EFH in state waters. The proposed rule states that, in such

circumstances, NMFS or the Councils would furnish the state with EFH

conservation recommendations. NMFS' recommendations are not mandatory,

and the states are not required to expend funds in a way not of their

own choosing.

List of Subjects in 50 CFR Part 600

Fisheries, Fishing.

Dated: April 17, 1997.

Charles Karnella,

Acting Deputy Assistant Administrator for Fisheries, National Marine

Fisheries Service, National Oceanic and Atmospheric Administration,

U.S. Department of Commerce.

For the reasons stated in the preamble, 50 CFR part 600 is proposed

to be amended as follows:

PART 600--MAGNUSON ACT PROVISIONS

1. The authority citation for part 600 continues to read as

follows:

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

2. Section 600.10 is amended by adding the definition for

``Essential fish habitat'', in alphabetical order, to read as follows:

Sec. 600.10 Definitions.

* * * * *

Essential fish habitat means those waters and substrate necessary

to fish for spawning, breeding, feeding, or growth to maturity. For the

purpose of interpreting the definition of essential fish habitat:

``waters'' includes aquatic areas and their associated physical,

chemical, and biological properties that are used by fish, and may

include areas historically used by fish where appropriate;

``substrate'' includes sediment, hard bottom, structures underlying the

waters, and associated biological communities; ``necessary'' means the

habitat required to support a sustainable fishery and a healthy

ecosystem; and ``spawning, breeding, feeding, or growth to maturity''

covers a species' full life cycle.

* * * * *

3. A new subpart is added to part 600 to read as follows:

Subpart I--Essential Fish Habitat (EFH)

Sec.

600.805 Purpose and scope.

600.810 Contents of Fishery Management Plans.

600.815 Coordination and consultation on actions that may adversely

affect EFH.

Sec. 600.805 Purpose and scope.

(a) Purpose. This subpart provides guidelines for the description,

identification, conservation, and enhancement of, and adverse impacts

to, EFH. These guidelines provide the basis for Councils and the

Secretary to use in adding the required provision on EFH to an FMP,

i.e., description and identification of EFH, adverse impacts on EFH

(including minimizing, to the extent practicable, adverse impacts from

fishing), and other actions to conserve and enhance EFH. This subpart

also

[[Page 19727]]

includes procedures to implement the consultation requirements for all

Federal and state actions that may adversely affect EFH.

(b) Scope. An EFH provision in an FMP must include all fish species

in the FMU. An FMP may describe, identify, and protect the habitat of

species not in an FMU; however, such habitat may not be considered EFH

for the purposes of sections 303(a)(7) and 305(b) of the Magnuson Act.

Sec. 600.810 Contents of Fishery Management Plans.

(a) Mandatory contents--(1) Habitat requirements by life history

stage. FMPs must describe EFH in text and with tables that provide

information on the biological requirements for each life history stage

of the species. These tables should summarize all available information

on environmental and habitat variables that control or limit

distribution, abundance, reproduction, growth, survival, and

productivity of the managed species. Information in the tables should

be supported with citations.

(2) Description and identification of EFH--(i) Information

requirements. (A) An initial inventory of available environmental and

fisheries data sources relevant to the managed species should be useful

in describing and identifying EFH. This inventory should also help to

identify major species-specific habitat data gaps. Deficits in data

availability (i.e., accessibility and application of the data) and in

data quality (including considerations of scale and resolution;

relevance; and potential biases in collection and interpretation)

should be identified.

(B) To identify EFH, basic information is needed on current and

historic stock size and on the geographic range of the managed species.

Information is also required on the temporal and spatial distribution

of each major life history stages (defined by developmental and

functional shifts). Since EFH should be identified for each major life

history stage, data should be collected on the distribution, density,

growth, mortality, and production of each stage within all habitats

occupied by the species. These data should be obtained from the best

available information, including peer-reviewed literature, data reports

and ``gray'' literature, data files of government resource agencies,

and any other sources of quality information.

(C) The following approach should be used to gather and organize

the data necessary for identifying EFH. Information from all levels

will be useful in identifying EFH, and the goal of this procedure

should be to include as many levels of analysis as possible within the

constraints of the available data. Councils should strive to obtain

data sufficient to describe habitat at the highest level of detail

(i.e., Level 4).

(1) Level 1: Presence/absence distribution data are available for

some or all portions of the geographic range of the species. At this

level, only presence/absence data are available to describe the

distribution of a species (or life history stage) in relation to

existing and potential habitats. Care should be taken to ensure that

all habitats have been sampled adequately. In the event that

distribution data are available for only portions of the geographic

area occupied by a particular life history stage of a species, EFH can

be inferred on the basis of distributions among habitats where the

species has been found and on information about its habitat

requirements and behavior.

(2) Level 2: Habitat-related densities of the species are

available. At this level, quantitative data (i.e., relative densities)

are available for the habitats occupied by a species or life history

stage. Because the efficiency of sampling gear is often affected by

habitat characteristics, strict quality assurance criteria are required

to ensure that density estimates are comparable among habitats. Density

data should reflect habitat utilization, and the degree that a habitat

is utilized is assumed to be indicative of habitat value. When

assessing habitat value on the basis of fish densities in this manner,

temporal changes in habitat availability and utilization should be

considered.

(3) Level 3: Growth, reproduction, or survival rates within

habitats are available. At this level, data are available on habitat-

related growth, reproduction, and/or survival by life history stage.

The habitats contributing the most to productivity should be those that

support the highest growth, reproduction, and survival of the species

(or life history stage).

(4) Level 4: Production rates by habitat are available. At this

level, data are available that directly relate the production rates of

a species or life history stage to habitat type, quantity, quality, and

location. Essential habitats are those necessary to maintain fish

production consistent with a sustainable fishery and a healthy

ecosystem.

(ii) EFH determination. (A) The information obtained through the

analysis in paragraph (a)(2)(i) of this section will allow Councils to

assess the relative value of habitats. Councils should apply this

information in a risk-averse fashion, erring on the side of

inclusiveness to ensure adequate protection for EFH of managed species.

If only Level 1 information is available, EFH is everywhere a species

is found. If Levels 2 through 4 information is available, habitats

valued most highly through this analysis should be considered essential

for the species. However, habitats of intermediate and low value may

also be essential, depending on the health of the fish population and

the ecosystem.

(B) If a species is overfished or recovering from a population

decline, all habitats used by the species should be considered

essential in addition to certain historic habitats that are necessary

to support the recovery of the population and for which restoration is

feasible.

(C) EFH will always be greater than or equal to the ``critical

habitat'' for any managed species listed as threatened or endangered

under the Endangered Species Act.

(D) Where a stock of a species is considered to be healthy and

sufficient information exists to determine the necessary habitat to

support the target production goal, then EFH for a species should be a

subset of all existing habitat for the species.

(E) Ecological relationships among species, and between the species

and their habitat, require, where possible, that an ecosystem approach

be used in determining the EFH of a managed species or species

assemblage. The extent of the EFH should be based on the judgment of

the Secretary and the appropriate Council(s) regarding the quantity and

quality of habitat that is necessary to maintain a managed species or

species assemblage at a target production goal that supports a

sustainable fishery and a healthy ecosystem. Councils must establish

target production goals for the fish species in the FMU of an FMP as a

goal of the FMP. In determining a target production goal that supports

a sustainable fishery and a healthy ecosystem, the Secretary and the

appropriate Council(s) should consider: the prey requirements of the

managed species; the extent to which the managed species is prey for

other managed species or marine mammals; the production necessary to

support a sustainable fishery; and other ecological functions provided

by the managed species. If degraded or inaccessible habitat has

contributed to the reduced yields of a species or assemblage, and in

the judgment of the Secretary and the appropriate Council(s), the

degraded conditions can be reversed through such actions as improved

fish passage techniques (for fish blockages), improved water quality or

quantity measures (removal of contaminants or

[[Page 19728]]

increasing flows), and similar measures that are feasible, then EFH

should include those habitats that would be essential to the species to

obtain increased yields.

(iii) EFH Mapping Requirements. The general distribution and

geographic limits of EFH for each life history stage should be

presented in FMPs in the form of maps. Ultimately, these data should be

incorporated into a geographic information system (GIS) to facilitate

analysis and presentation. These maps may be presented as fixed in time

and space but they should encompass all appropriate temporal and

spatial variability in the distribution of EFH. If the geographic

boundaries of EFH change seasonally, annually, or decadally, these

changing distributions should be represented in the maps. Different

types of EFH should be identified on maps along with areas used by

different life history stages of the species. The type of information

used to identify EFH should be included in map legends, and more

detailed and informative maps should be produced as more complete

information about population responses (e.g., growth, survival, or

reproductive rates) to habitat characteristics becomes available. Where

the present distribution or stock size of a species or life history

stage is different from the historical distribution or stock size, then

maps of historical habitat boundaries should be included in the FMP, if

known. The EFH maps are a means to visually present the EFH described

in the FMP. If the maps and information in the description of EFH

varies, the description is ultimately determinative of the limits of

EFH.

(3) Non-fishing related activities that may adversely affect EFH--

(i) Identification of adverse effects. FMPs must identify activities

that have potential adverse effects on EFH quantity and quality. Broad

categories of activities may include, but are not limited to: dredging,

fill, excavation, mining, impoundment, discharge, water diversions,

thermal additions, runoff, placement of contaminated material,

introduction of exotic species, and the conversion of aquatic habitat

that may eliminate, diminish, or disrupt the functions of EFH. If

known, an FMP should describe the EFH most likely to be affected by

these activities. For each activity, the FMP should describe the known

or potential impacts to EFH. These descriptions should explain the

mechanisms or processes that cause expected deleterious effects and

explain the known or potential impacts on the habitat function.

(ii) Cumulative impacts analysis. To the extent practicable, FMPs

should identify and describe those activities that can influence

habitat function on an ecosystem or watershed scale. This analysis

should include a description of the ecosystem or watershed, the role of

the managed species in the ecosystem or watershed, and the impact on

the ecosystem or watershed of removal of the managed species. An

assessment of the cumulative and synergistic effects of multiple

threats, including natural adverse effects (such as storm damage or

climate-based environmental shifts), and an ecological risk assessment

of the managed species' habitat should also be included. For the

purposes of this analysis, cumulative impacts are impacts on the

environment that result from the incremental impact of an action when

added to other past, present, and reasonably foreseeable future

actions, regardless of who undertakes such actions. Cumulative impacts

can result from individually minor, but collectively significant

actions taking place over a period of time.

(iii) Mapping adverse impacts. The use of a GIS or other mapping

system to analyze and present these data in an FMP is suggested for

documenting impacts identified under paragraph (a)(3)(i) of this

section and required when the analysis in paragraph (a)(3)(ii) of this

section is conducted.

(iv) Conservation and enhancement. FMPs should include options to

minimize the adverse effects identified pursuant to paragraphs

(a)(3)(i) and (ii) of this section and identify conservation and

enhancement measures. Generally, non-water dependent actions should not

be located in EFH. Actions not in EFH but that may result in

significant adverse affects on EFH should be avoided if less

environmentally harmful alternatives are available. If there is no

alternative, these actions should be minimized. If avoidance and

minimization will not adequately protect EFH, mitigation to conserve

and enhance EFH will be recommended. These recommendations may include,

but are not limited to:

(A) Avoidance and minimization of adverse impacts on EFH.

Environmentally sound engineering and management practices (e.g.,

seasonal restrictions, dredging methods, and disposal options) should

be employed for all dredging and construction projects. Disposal of

contaminated dredged material, sewage sludge, industrial waste or other

materials in EFH should be avoided. Oil and gas exploration,

production, transportation, and refining activities in EFH should be

avoided, where possible, and minimized and mitigated if unavoidable.

(B) Restoration of riparian and shallow coastal areas. Restoration

measures may include: Restoration of functions of riparian vegetation

by reestablishing endemic trees or other appropriate native vegetation;

restoration of natural bottom characteristics; removal of unsuitable

material from areas affected by human activities; and replacement of

suitable gravel or substrate to stream areas for spawning.

(C) Upland habitat restoration. This may include measures to

control erosion, stabilize roads, upgrade culverts or remove dikes or

levees to allow for fish passage, and the management of watersheds.

(D) Water quality. This includes use of best land management

practices for ensuring compliance with water quality standards at state

and Federal levels, improved treatment of sewage, and proper disposal

of waste materials .

(E) Watershed analysis and subsequent watershed planning. This

should be encouraged at the local and state levels. This effort should

minimize depletion/diversion of freshwater flows into rivers and

estuaries, destruction/degradation of wetlands, and restoration of

native species, and should consider climate changes.

(F) Habitat creation. Under appropriate conditions, habitat

creation may be considered as a means of replacing lost EFH. However,

habitat creation at the expense of other naturally functioning systems

must be justified (e.g., marsh creation with dredge material placed in

shallow water habitat).

(4) Fishing activities that may adversely affect EFH.--(i) Adverse

effects from fishing may include physical disturbance of the substrate,

and loss of and injury to, benthic organisms, prey species and their

habitat, and other components of the ecosystem.

(ii) FMPs must include management measures that minimize adverse

effects on EFH from fishing, to the extent practicable, and identify

conservation and enhancement measures. The FMP must contain an

assessment of the potential adverse effects of all fishing gear types

used in waters described as EFH. Included in this assessment should be

consideration of the establishment of research closure areas and other

measures to evaluate the impact of any fishing activity that physically

alters EFH.

(iii) Councils must act to prevent, mitigate, or minimize any

adverse effects from fishing, to the extent

[[Page 19729]]

practicable, if there is evidence that a fishing practice is having a

substantial adverse effect on EFH, based on the assessment conducted

pursuant to paragraph (a)(4)(ii).

(iv) In determining whether it is practicable to minimize an

adverse effect from fishing, Councils should consider whether, and to

what extent, the fishing activity is adversely impacting the marine

ecosystem, including the fishery; the nature and extent of the adverse

effect on EFH; and whether the benefit to the EFH achieved by

minimizing the adverse effect justifies the cost to the fishery.

(5) Options for managing adverse effects from fishing. Fishing

management options may include, but are not limited to:

(i) Fishing gear restrictions. These options may include, but are

not limited to: limit seasonal and areal uses of trawl gear and bottom

longlines; restrict net mesh sizes, traps, and entanglement gear to

allow escapement of juveniles and non-target species; reduce fish and

shellfish traps set near coral reefs and other hard bottoms; limit

seasonal and areal uses of dredge gear in sensitive habitats; prohibit

use of explosives and chemicals; restrict diving activities that have

potential adverse effects; prohibit anchoring of fishing vessels in

coral reef areas and other sensitive areas; and prohibit fishing

activities that cause significant physical damage in EFH.

(ii) Time/area closures. These actions may include, but are not

limited to: closing areas to all fishing or specific gear types during

spawning, migration, foraging and nursery activities; and designating

zones to limit effects of fishing practices on certain vulnerable or

rare areas/species/life history stages.

(iii) Harvest limits. These actions may include, but are not

limited to, limits on the take of species that provide structural

habitat for other species assemblages or communities and limits on the

take of prey species.

(6) Prey species. Loss of prey is an adverse effect on a managed

species and its EFH; therefore, FMPs should identify the major prey

species for the species in the FMU and generally describe the location

of prey species' habitat and the threats to that habitat. Adverse

effects on prey species may result from fishing and non-fishing

activities.

(7) Identification of vulnerable habitat. FMPs should identify

vulnerable EFH. In determining whether a type of EFH is vulnerable,

Councils should consider:

(i) The extent to which the habitat is sensitive to human-induced

environmental degradation.

(ii) Whether, and to what extent, development activities are, or

will be, stressing the habitat type.

(iii) The rarity of the habitat type.

(8) Research and information needs. Each FMP should contain

recommendations, preferably in priority order, for research efforts

that the Councils and NMFS view as necessary for carrying out their EFH

management mandate. The need for additional research is to make

available sufficient information to support a higher level of

description and identification of EFH under paragraph (a)(2)(i) of this

section. Additional research may also be necessary to identify and

evaluate actual and potential adverse effects on EFH, including, but

not limited to direct physical alteration; impaired habitat quality/

functions; or indirect adverse effects such as sea level rise, global

warming and climate shifts; and non-gear fishery impacts. The Magnuson-

Stevens Act specifically identifies the effects of fishing as a

concern. The need for additional research on the effects of fishing

gear on EFH should be included in this section of the FMP. If an

adverse effect is identified and determined to be an impediment to

reaching target long-term production levels, then the research needed

to quantify and mitigate that effect should be identified in this

section.

(9) Review and revision of EFH components of FMPs. Each Council and

NMFS are expected to periodically review the EFH components of FMPs.

Each EFH FMP amendment should include a provision requiring review and

update of EFH information and preparation of a revised FMP amendment if

new information becomes available. The schedule for this review should

be based on an assessment of both the existing data and expectations

when new data will become available. Such a review of information

should be conducted as recommended by the Secretary, but at least once

every five years.

(b) Optional components. An FMP may include a description and

identification of, and contain management measures to protect, the

habitat of species under the authority of the Council, but not

contained in the FMU. However, such habitat may not be considered EFH.

(c) Development of EFH recommendations. After reviewing the best

available scientific information, and in cooperation with the Councils,

participants in the fishery, interstate commissions, Federal agencies,

state agencies, and other interested parties, NMFS will develop written

recommendations for the identification of EFH for each FMP. Prior to

submitting a written EFH identification recommendation to a Council for

an FMP, the draft recommendation will be made available for public

review and at least one public meeting will be held. NMFS will work

with the affected Council(s) to conduct this review in association with

scheduled public Council meetings whenever possible. The review may be

conducted at a meeting of the Council committee responsible for habitat

issues or as a part of a full Council meeting. After receiving public

comment, NMFS will revise its draft recommendations, as appropriate,

and forward written recommendation and comments to the Council(s).

Sec. 600.815 Coordination and consultation on actions that may

adversely affect EFH.

(a) General--(1) Scope. One of the greatest long-term threats to

the viability of the Nation's fisheries is the decline in the quantity

and quality of marine, estuarine, and other riparian habitats. These

procedures address the coordination and consultation requirements of

sections 305(b)(1)(D) and 305(b)(2-4) of the Magnuson-Stevens Act. The

consultation requirements of the Magnuson-Stevens Act provide that:

Federal agencies must consult with the Secretary on all actions, or

proposed actions, authorized, funded, or undertaken by the agency, that

may adversely affect EFH; and the Secretary and the Councils provide

recommendations to conserve EFH to Federal or state agencies. EFH

conservation recommendations are measures recommended by the Councils

or NMFS to a Federal or state agency to conserve EFH. Such

recommendations may include measures to avoid, minimize, mitigate, or

otherwise offset adverse effects on EFH resulting from actions or

proposed actions authorized, funded, or undertaken by that agency. The

coordination section requires the Secretary to coordinate with, and

provide information to, other Federal agencies regarding EFH. These

procedures for coordination and consultation allow all parties involved

to understand and implement the consultation requirements of the

Magnuson-Stevens Act.

(2) Coordination with other environmental reviews. Consultation and

coordination under sections 305(b)(2) and 305(b)(4) of the Magnuson-

Stevens Act may be consolidated, where appropriate, with interagency

coordination procedures required by other statutes, such as the

National Environmental Policy Act, the Fish and Wildlife Coordination

Act, the

[[Page 19730]]

Clean Water Act, Endangered Species Act, and the Federal Power Act, to

reduce duplication and improve efficiency. For example, a Federal

agency preparing an environmental impact statement (EIS) need not

duplicate sections of that document in a separate EFH assessment,

provided the EIS specifically and fully evaluates the effects of the

proposed action on EFH, notes that it is intended to function as an EFH

assessment, is provided to NMFS for review, and meets the other

requirements for an EFH assessment contained in this section. NMFS

comments on these documents will also function as its response required

under section 305(b)(4) of the Magnuson-Stevens Act.

(3) Designation of Lead Agency. If more than one Federal or state

agency is involved in an action (e.g., authorization is needed from

more than one agency), the consultation requirements of sections

305(b)(2-4) of the Magnuson-Stevens Act may be fulfilled through a lead

agency. The lead agency must notify NMFS in writing that it is

representing one or more additional agencies.

(4) Conservation and enhancement of EFH. To further the

conservation and enhancement of EFH, in accordance with section

305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will compile and make

available to other Federal and state agencies information on the

locations of EFH, including maps and/or narrative descriptions. Federal

and state agencies empowered to authorize, fund, or undertake actions

that could adversely affect EFH should contact NMFS and the Councils to

become familiar with the designated EFH, and potential threats to EFH,

as well as opportunities to promote the conservation and enhancement of

such habitat.

(b) Council comments and recommendations to Federal and state

agencies--(1) Establishment of procedures. Each Council should

establish procedures for reviewing activities, or proposed activities,

authorized, funded, or undertaken by state or Federal agencies that may

affect the habitat, including EFH, of a species under its authority.

Each Council may identify activities of concern by: directing Council

staff to track proposed actions; recommending that the Council's

habitat committee identify activities of concern; entering into an

agreement with NMFS to have the appropriate Regional Director notify

the Council of activities that may adversely impact EFH; or by similar

procedures. Federal and state actions often follow specific timetables

which may not coincide with Council meetings. Councils should consider

establishing abbreviated procedures for the development of Council

recommendations.

(2) Early involvement. Councils should provide comments and

recommendations on proposed state and Federal activities of interest as

early as practicable in project planning to ensure thorough

consideration of Council concerns by the action agency.

(3) Coordination with NMFS. The Secretary will develop agreements

with each Council to facilitate sharing information on actions that may

adversely affect EFH and in coordinating Council and NMFS responses to

those actions.

(4) Anadromous fishery resources. For the purposes of the

consultation requirement of section 305(b)(3)(B) of the Magnuson-

Stevens Act, an anadromous fishery resource under a Council's authority

is an anadromous species where some life stage inhabits waters under

the Council's authority.

(c) Federal agency consultation--(1) Interagency coordination. Both

Federal and state agencies are encouraged to coordinate their actions

with NMFS to facilitate the early identification of potential adverse

effects on EFH. This will allow consideration of measures to conserve

and enhance EFH early in the project design. The consultation

requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-

Stevens Act differ for Federal and state agencies. Only Federal

agencies have a mandatory statutory requirement to consult with NMFS

regarding actions that may adversely affect EFH, pursuant to section

305(b)(2) of the Magnuson-Stevens Act. NMFS is required under section

305(b)(4) to provide EFH recommendations regarding both state and

Federal agency actions that could adversely affect EFH (see

Sec. 600.810(a)(3) for further guidance on actions that could adversely

affect EFH). Both Federal and state agencies are encouraged to develop

agreements (or modify existing agreements) with NMFS to meet the

consultation requirements in a manner to increase efficiency and to

fully meet the requirements of the EFH provisions.

(2) Designation of non-Federal representative. A Federal agency may

designate a non-Federal representative to conduct an abbreviated

consultation or prepare an EFH assessment by giving written notice of

such designation to NMFS. If a non-Federal representative is used, the

Federal action agency remains ultimately responsible for compliance

with sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act.

(3) General Concurrence--(i) Purpose. The General Concurrence

process identifies specific types of Federal actions that may adversely

affect EFH, but for which no further consultation is generally required

because NMFS has determined, through an analysis of that type of

action, that it will likely to result in minimal adverse effects

individually and cumulatively. General Concurrences may be national or

regional in scope.

(ii) Criteria. (A) For Federal actions to qualify for General

Concurrence, NMFS must determine, after consultation with the

appropriate Council(s), that the actions meet all of the following

criteria:

(1) The actions must be similar in nature and similar in their

impact on EFH.

(2) The actions must not cause greater than minimal adverse effects

on EFH when implemented individually.

(3) The actions must not cause greater than minimal cumulative

adverse effects on EFH.

(B) Categories of Federal actions may also qualify for General

Concurrence if they are modified by appropriate conditions that ensure

the actions will meet the criteria in paragraph (c)(3)(ii)(A) of this

section. For example, NMFS may provide General Concurrence for

additional actions contingent upon project size limitations, seasonal

restrictions, or other conditions.

(iii) General Concurrence development. A Federal agency may request

a General Concurrence for a category of its actions by providing NMFS

with a written description of the nature and approximate number of the

proposed actions, an analysis of the effects of the actions on EFH and

associated species and their life history stages, including cumulative

effects, and the Federal agency's conclusions regarding the magnitude

of such effects. If NMFS agrees that the actions fit the criteria in

paragraph (c)(3)(ii) of this section, NMFS, in consultation with the

Council(s), will provide the Federal agency with a written statement of

General Concurrence that further consultation is not required, and that

preparation of EFH assessments for individual actions subject to the

General Concurrence is not necessary. If NMFS determines that

individual actions that fall within the General Concurrence would

adversely affect EFH, NMFS will notify the Federal agency that

abbreviated or expanded consultation is required. If NMFS identifies

specific types of Federal actions that may meet the requirements for a

General Concurrence, NMFS may initiate and complete a General

Concurrence.

[[Page 19731]]

(iv) Notification and further consultation. NMFS may request

notification for activities covered under a General Concurrence if NMFS

concludes there are circumstances under which such activities could

result in more than a minimal impact on EFH, or if it determines that

there is not a process in place to adequately assess the cumulative

impacts of activities covered under the General Concurrence. NMFS may

require further consultation for these activities on an individual

action. Each General Concurrence should establish specific procedures

for further consultation.

(v) Public review. Prior to providing a Federal agency with a

written statement of General Concurrence for a category of Federal

actions, NMFS will provide an opportunity for public review through the

appropriate Council(s), or other reasonable opportunity for public

review.

(vi) Revisions to General Concurrences. NMFS will periodically

review and revise its findings of General Concurrence, as appropriate.

(4) EFH Assessments--(i) Preparation requirement. Federal agencies

(or designated non-Federal representatives) must complete an EFH

assessment for any action that may adversely affect EFH, except for

those activities covered by a General Concurrence. Where appropriate,

Federal agencies may combine requirements for environmental documents

such as Endangered Species Act Biological Assessments pursuant to 50

CFR part 402 or National Environmental Policy Act documents and public

notices pursuant to 40 CFR part 1500, with their EFH Assessment. This

document must include all of the information required in paragraph

(c)(4)(ii) of this section and the requirements for other applicable

environmental documents to be considered a complete assessment.

(ii) Mandatory contents. The assessment must contain:

(A) A description of the proposed action.

(B) An analysis of the effects, including cumulative effects, of

the proposed action on EFH and the managed and associated species,

including their life history stages.

(C) The Federal agency's conclusions regarding the effects of the

action on EFH.

(iii) Additional information. If appropriate, the assessment should

also include:

(A) The results of an on-site inspection to evaluate the habitat

and the site-specific effects of the project.

(B) The views of recognized experts on the habitat or species that

may be affected.

(C) A review of pertinent literature and related information.

(D) An analysis of alternatives to the proposed action, including

alternatives that could avoid or minimize adverse effects on EFH.

(E) Proposed mitigation.

(F) Other relevant information.

(iv) Incorporation by reference. The assessment may incorporate by

reference a completed EFH Assessment prepared for a similar action,

supplemented with any relevant new project specific information,

provided the proposed action involves similar impacts to EFH in the

same geographic area or a similar ecological setting. It may also

incorporate by reference other relevant environmental assessment

documents. These documents must be provided to NMFS.

(5) Abbreviated consultation procedures--(i) Purpose. Abbreviated

consultation allows NMFS to quickly determine whether, and to what

degree, a Federal agency action may adversely affect EFH. The

abbreviated consultation process is appropriate for Federal actions

that would adversely affect EFH when, in NMFS' judgment, the adverse

effect(s) of such actions could be alleviated through minor

modifications to the proposed action.

(ii) Notification by agency. The Federal agency must notify NMFS

and the appropriate Council in writing as early as practicable

regarding proposed actions that may adversely affect EFH. Notification

will facilitate discussion of measures to conserve the habitat. Such

early consultation must normally occur during pre-application planning

for projects subject to a Federal permit or license, and during

preliminary planning for projects to be funded or undertaken directly

by a Federal agency.

(iii) Submittal of EFH Assessment. The Federal agency must submit a

completed EFH assessment to NMFS for review in accordance with

paragraph (c)(4) of this section. If either the Federal agency or NMFS

believes expanded consultation will be necessary, the Federal agency

must initiate expanded consultation concurrently with submission of the

EFH Assessment. Federal agencies will not have fulfilled their

consultation requirement under paragraph (a)(1) of this section until

timely notification and submittal of a complete EFH Assessment.

(iv) NMFS response. NMFS must respond in writing as to whether it

concurs with the findings of the assessment. NMFS' response shall

indicate whether expanded consultation is required. If additional

consultation is not necessary, NMFS' response must include any

necessary EFH conservation recommendations to be used by the Federal

action agency. NMFS will send a copy of its response to the appropriate

Council.

(v) Timing. The Federal action agency must submit its complete EFH

Assessment to NMFS as soon as practicable, but at least 60 days prior

to a final decision on the action, and NMFS must respond in writing

within 30 days. If notification and the EFH Assessment are combined

with other environmental reviews required by statute, then the

statutory deadline for those reviews apply to the submittal and

response. If NMFS and the Federal action agencies agree, a compressed

schedule will be used in cases where regulatory approvals cannot

accommodate 30 days for consultation, or to conduct consultation

earlier in the planning cycle for proposed actions with lengthy

approval processes.

(6) Expanded consultation procedures--(i) Purpose. Expanded

consultation is appropriate for Federal actions that would result in

substantial adverse effects to EFH and/or require more detailed

analysis to enable NMFS to develop EFH conservation recommendations.

(ii) Initiation. Expanded consultation begins when NMFS receives a

written request from a Federal action agency to initiate expanded

consultation. The Federal action agency's written request must include

a completed EFH Assessment in accordance with paragraph (c)(4) of this

section. Because expanded consultation is required for activities that

may potentially have substantial adverse impacts on EFH, Federal action

agencies are encouraged to provide the additional information

identified under paragraph (c)(4)(iii) of this section. Subject to

NMFS's approval, any request for expanded consultation may encompass a

number of similar individual actions within a given geographic area.

(iii) NMFS response. NMFS will:

(A) Review the EFH Assessment, any additional information furnished

by the Federal agency, and other relevant information.

(B) Conduct a site visit, if appropriate, to assess the quality of

the habitat and to clarify the impacts of the Federal agency action.

(C) Evaluate the effects of the action on EFH, including cumulative

effects.

(D) Coordinate its review of the proposed action with the

appropriate Council.

[[Page 19732]]

(E) Formulate EFH conservation recommendations and provide the

recommendations to the Federal action agency and the appropriate

Council.

(iv) Timing. The Federal action agency must submit its complete EFH

Assessment to NMFS as soon as practicable, but at least 120 days prior

to a final decision on the action, and NMFS must conclude expanded

consultation within 90 days of submittal of a complete Assessment

unless extended by NMFS with notification to the Federal action agency.

If notification and the EFH Assessment are combined with other

statutorily required environmental reviews, then the statutory

deadlines for those reviews apply to the submittal and response. NMFS

and Federal action agencies may agree to use a compressed schedule in

cases where regulatory approvals cannot accommodate a 60 day

consultation period.

(v) Best scientific information. The Federal action agency must

provide NMFS with the best scientific information available, or

reasonably accessible during the consultation, regarding the effects of

the proposed action on EFH.

(vi) Extension of consultation. If NMFS determines that additional

data or analysis would provide better information for development of

EFH conservation recommendations, NMFS may request additional time for

its expanded consultation. If NMFS and the Federal action agency agree

to an extension, the Federal action agency must provide the additional

information to NMFS, to the extent practicable. If NMFS and the Federal

action agency do not agree to extend consultation, NMFS must provide

EFH conservation recommendations to the Federal action agency using the

best scientific data available to NMFS.

(7) Responsibilities of Federal action agency following receipt of

EFH conservation recommendations--(i) Federal action agency response.

Within 30 days after receiving an EFH conservation recommendation (or

at least 10 days prior to final approval of the action, if a decision

by the Federal agency is required in less than 30 days), the Federal

action agency must provide a detailed response in writing to NMFS and

the appropriate Council. The response must include a description of

measures proposed by the agency for avoiding, mitigating, or offsetting

the impact of the activity on EFH. In the case of a response that is

inconsistent with the recommendations of NMFS, the Federal action

agency must explain its reasons for not following the recommendations,

including the scientific justification for any disagreements with NMFS

over the anticipated effects of the proposed action and the measures

needed to avoid, minimize, mitigate, or offset such effects.

(ii) Dispute resolution. After receiving a Federal action agency

response that is inconsistent with the recommendations of NMFS, the

Assistant Administrator may request a meeting with the head of the

Federal action agency, as well as any other agencies involved, to

discuss the proposed action and opportunities for resolving any

disagreements. Memoranda of agreement with Federal action agencies will

be sought to further define such dispute resolution processes.

(8) Supplemental consultation. A Federal action agency must resume

consultation with NMFS following either abbreviated or expanded

consultation if the agency substantially revises its plans for the

action in a manner that may adversely affect EFH or if new information

becomes available that affects the basis for NMFS' EFH conservation

recommendations. Additionally, where Federal oversight, involvement, or

control over the action has been retained or is authorized by law, the

Federal action agency must resume consultation if new EFH is designated

that may be adversely affected by the agency's exercise of its

authority.

(d) NMFS recommendations to state agencies--(1) Establishment of

Procedures. Each Region should establish procedures for identifying

actions or proposed actions authorized, funded, or undertaken by state

agencies that may adversely affect EFH, and for identifying the most

appropriate method for providing EFH conservation recommendations to

the state agency.

(2) Coordination with Federal consultation procedures. When an

activity that may adversely affect EFH requires authorization or

funding by both Federal and state agencies, NMFS will provide the

appropriate state agencies with copies of EFH conservation

recommendations developed as part of the Federal consultation

procedures in paragraph (c) of this section.

[FR Doc. 97-10540 Filed 4-22-97; 8:45 am]

BILLING CODE 3510-22-P