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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 961030300-7238-04; I.D. 120996A]

RIN 0648-AJ30

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

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues this interim final rule to implement the essential

fish habitat (EFH) provisions of the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act). This rule

establishes guidelines to assist the Regional Fishery Management

Councils (Councils) and the Secretary of Commerce (Secretary) in the

description and identification of EFH in fishery management plans

(FMPs), including identification of adverse impacts from both fishing

and non-fishing activities on EFH, and identification of actions

required to conserve and enhance EFH. The regulations also detail

procedures the Secretary (acting through NMFS), other Federal agencies,

state agencies, and the Councils will use to coordinate, consult, or

provide recommendations on Federal and state activities that may

adversely affect EFH. The intended effect of the rule is to promote the

protection, conservation, and enhancement of EFH.

DATES: Effective on January 20, 1998. Comments must be received no

later than February 17, 1998.

ADDRESSES: Requests for copies of the Environmental Assessment (EA)

should be sent to the Director, Office of Habitat Conservation,

Attention: EFH, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-

3282. (see SUPPLEMENTARY INFORMATION). These documents are also

available via the NMFS Office of Habitat Conservation Internet website

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

one of the regional NMFS Offices:

Northeast Regional Office, Attention: Habitat and Protected

Resources Division, One Blackburn Drive, Gloucester, MA 01930-2298;

978/281-9328.

Southeast Regional Office, Attention: Habitat Conservation

Division, 9721 Executive Center Drive North, St. Petersburg, FL 33702-

2432; 813/570-5317.

Southwest Regional Office, Attention: Habitat Conservation

Division, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213;

562/980-4041.

Northwest Regional Office, Attention: Habitat Conservation Branch,

525 N.E. Oregon St., Suite 500, Portland, OR 97232-2737; 503/230-5421.

Alaska Regional Office, Attention: Protected Resources Management

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

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

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

SUPPLEMENTARY INFORMATION: This rulemaking is required by the Magnuson-

Stevens Act (16 U.S.C. 1801 et seq.) as reauthorized by the Sustainable

Fisheries Act, signed into law on October 11, 1996. Details concerning

the justification for and development of this interim final rule were

provided in the proposed rule (62 FR 19723, April 23, 1997) and will

not be repeated here. In the proposed rule, the guidelines to the

Councils for amending FMPs and the regulations outlining the processes

for coordinating and consulting with, and providing recommendations to,

the appropriate Federal and state agencies were combined within one

subpart. For increased clarity and easier access for agencies involved

in coordination or consultation, the interim final regulations separate

the guidelines from the coordination, consultation, and recommendation

procedures. The former is in subpart J and the latter is in subpart K

of 50 CFR part 600. Both subparts are being issued together because of

the importance for all affected parties to understand the implications

of an area being identified as EFH.

Overview of EFH FMP Amendment Guidelines

The themes of sustainability and risk-averse management are

prevalent throughout the Magnuson-Stevens Act, both in the management

of fishing practices (e.g., reduction of bycatch and overfishing and

consideration of ecological factors in determining optimum yield [OY])

and in the protection of habitats (i.e., prevention of direct and

indirect losses of habitats, including EFH). Management of fishing

practices and habitat protection are both necessary to ensure long-term

productivity of our Nation's fisheries. Mitigation of EFH losses and

degradation will supplement the traditional management of marine

fisheries. Councils and managers will be able to address a broader

range of impacts that may be contributing to the reduction of fisheries

resources. Habitats that have been severely altered or impacted may be

unable to support populations adequately to maintain sustainable

fisheries. Councils should recognize that fishery resources are

dependent on healthy ecosystems; and that actions that alter the

ecological structure and/or functions within the system can disturb the

health or integrity of an ecosystem. Excess disturbance, including

over-harvesting of key components (e.g., managed species) can alter

ecosystems and reduce their productive capacity. Even though

traditional fishery management and FMPs have been mostly based on

yields of single-species or multi-species stocks, these regulations

encourage a broader, ecosystem approach to meet the EFH requirements of

the Magnuson-Stevens Act. Councils should strive to understand the

ecological roles (e.g., prey, competitors, trophic links within food

webs, nutrient transfer between ecosystems, etc.) played by managed

species within their ecosystems. They should protect, conserve, and

enhance adequate quantities of EFH to support a fish population that is

capable of fulfilling all of those other contributions that the managed

species makes to maintaining a healthy ecosystem as well as supporting

a sustainable fishery.

Councils must identify in FMPs the habitats used by all life

history stages of each managed species in their fishery management

units (FMUs). Habitats that are necessary to the species for spawning,

breeding, feeding, or growth to maturity will be described and

identified as EFH. These habitats must be described in narratives (text

and tables) and identified geographically (in text and maps) in the

FMP. Mapping of EFH maximizes the ease with which the information can

be shared with the public, affected parties, and Federal and state

agencies to facilitate conservation and consultation. EFH that is

judged to be particularly important to the long-term productivity of

populations of one or more managed species, or to be particularly

vulnerable to degradation, should be identified as ``habitat areas of

particular concern'' (HAPC) to help provide additional focus for

conservation efforts. After describing and identifying EFH, Councils

must assess the potential adverse effects of all fishing-equipment

types on EFH and must include management measures that minimize adverse

effects, to the extent practicable, in FMPs. Councils

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are also directed to examine non-fishing sources of adverse impacts

that may affect the quantity or quality of EFH and to consider actions

to reduce or eliminate the effects. Councils are directed to identify

proactive means to further the conservation and enhancement of EFH.

Overview of Coordination, Consultation, and Recommendation Regulations

This regulation establishes procedures for implementing the

coordination, consultation, and recommendation requirements of the

Magnuson-Stevens Act. NMFS will coordinate with other Federal and state

action agencies by providing them with descriptions and maps of EFH, as

well as information on ways to conserve and enhance EFH. The

regulations allow Federal agencies to use existing consultation/

environmental review procedures or the procedures outlined in the

regulation to fulfill their requirement to consult with NMFS on actions

that may adversely affect EFH. Consultations may be conducted at a

programmatic and/or project-specific level. In cases where effects from

an action will be minimal, both individually and cumulatively, a

General Concurrence (GC) procedure has been developed to simplify the

Federal consultation requirements. Consultation on Federal actions may

be conducted under Abbreviated or Expanded Consultation, depending on

the severity of the threat to EFH. NMFS anticipates that a majority of

Federal actions with the potential for adverse effects on EFH may be

addressed through the abbreviated consultation process or the General

Concurrence process. Coordination between NMFS and the Councils is

encouraged in the identification of threats to EFH and the development

of appropriate EFH conservation recommendations to Federal or state

agencies. When NMFS or a Council provides EFH conservation

recommendations to a Federal agency, that agency must respond in

writing within 30 days. If the action agency's decisions differ from

NMFS' conservation recommendations, further review of the decision may

be continued by the two agencies, as detailed in the regulations.

Related Documents

Other related documents that led to this interim final rule were

referenced in the proposed rule. The Technical Assistance Manual that

was released for public comment concurrent with the proposed rule

received very little public comment. This was in part due to the very

technical nature of the document. Therefore, NMFS will maintain this

information as internal technical guidance, and as such, is not making

it available for public comment again.

Comments and Responses

Six regional public meetings and numerous briefings were held

during the comment period to explain the proposed rule and solicit

public comments from all interested parties. Fishery and non-fishery

representatives attended the public meetings and were included in

briefings. Comments were received in writing from 6 Regional Fishery

Management Councils, 3 Interstate Marine Fishery Commissions, 8 Federal

agencies, 22 state agencies, 13 fishery groups, 49 conservation/

environmental groups, 60 non-fishing industry groups, 11 other non-

governmental organizations, 11 academicians, 1 local government, and 40

individuals.

1. Comments Asking for Additional Time to Comment

Comments: Several commenters requested that, given the complex

nature of the proposed regulations, additional time should be granted

for public comment.

Response: NMFS agrees that, because the EFH rule outlines a new

program, additional public comment is desirable. However, because it is

critical that these guidelines be available to the Councils and to the

Secretary as soon as possible so that EFH FMP amendments can be

developed and submitted to the Secretary in time to meet the statutory

deadline of October 11, 1998, NMFS is issuing this rule as an interim

final rule to provide necessary certainty to conduct this work. NMFS

will also consider additional comments received during the comment

period on this interim final rule before issuing the final rule. NMFS

is particularly interested in receiving comments on those sections of

the interim final rule that have been changed in response to comments

and any new information not previously submitted.

2. Comments in Favor of Protection of Fish Habitats

Comments: Most of the commenters supported the concept of

protecting fish habitats as a means to support fisheries, sustain

ecosystems, or preserve aesthetics, some in spite of the fact that they

were wary of the approach outlined in the proposed rule because of

potential adverse impacts on their activities. Numerous groups and

individuals expressed concern that the habitat conservation approach

set forth in the proposed rule was a dilution of the previously

presented ecosystem approach from the Framework for the Description and

Identification of EFH (62 FR 1306, January 9, 1997) (Framework) and

feared that it would be weakened further in the interim final rule

under pressure from non-fishing interests. Many commenters pointed out

that marine fisheries belong to all Americans, not just to certain

industries.

Response: NMFS believes that EFH must be conserved and enhanced to

prevent future depletions of managed species and to restore many

presently overfished stocks. Measures detailed in these regulations are

necessary to ensure that adverse impacts from both fishing and non-

fishing will be adequately addressed in accordance with the

requirements of the Magnuson-Stevens Act. The regulations were

developed by NMFS to provide the Councils with guidance that is both

feasible and scientifically defensible. Although the guidelines vary

superficially from the Framework, they are not fundamentally different.

Additional input from Councils and the public, and discussions with

other Federal agencies, were used to make the program workable. NMFS

will continue to work with all parties to protect both quantity and

quality of these habitats in a streamlined and efficient manner. NMFS

has worked to insure that an ecologically sound approach was developed

to protect, conserve, and enhance EFH to support sustainable fisheries

and the ecosystems that support them in accordance with the mandate set

by Congress.

3. Comments on the Interpretation of EFH

Comments: Some industry groups commented that linking EFH to the

amount of habitat necessary to support a healthy ecosystem exceeds the

authority granted to NMFS under the Magnuson-Stevens Act. Additionally,

they criticized this linkage as vague and overly broad. Some fishing

interests expressed concern that ecosystem considerations might

interfere with the focus on maintaining fishing production. Other

commenters supported the linkage to healthy ecosystems, but asked that

a healthy ecosystem be more clearly defined. Some commenters suggested

that healthy ecosystems should be defined by species composition and

abundance, presence of key interactions, and habitat persistence.

Response: In the proposed rule, NMFS linked EFH to the amount of

habitat required to support a sustainable fishery and healthy

ecosystem. In the

[[Page 66533]]

interim final rule, NMFS clarified this linkage to be the habitat

required to support a sustainable fishery and the managed species'

contribution to a healthy ecosystem.

The Magnuson-Stevens Act provides authority for the link between

EFH and the managed species' contribution to a healthy ecosystem in a

number of places. Ecosystem themes are common in the definitions of

``fishery resources,'' ``conservation and management,'' and

``optimum.'' These definitions link protection of the marine

environment to managing fisheries. Specifying that Councils should

address the degradation and loss of EFH from both fishing and through

conservation and enhancement measures further reflects support for more

ecologically-based management of marine fisheries. In addition to its

present emphasis on ecological components of management, the Magnuson-

Stevens Act, in section 406, calls for the establishment of an advisory

panel to analyze the extent to which ecosystem principles are being

applied, and to recommend to the Secretary and Congress ways to expand

the application of ecosystem principles in fishery conservation and

management in the future.

Although the implementation of ecosystem management varies among

the agencies and organizations that have adopted it, there are common

elements among the approaches. Ecosystem management encourages

sustainable resource use that is achieved through goal setting and the

use of ecological precepts and understanding to achieve those goals;

recognition that different processes occur at different temporal and

spatial scales and must be addressed appropriately; recognition of the

complexity and integration of ecosystems; recognition of humans as

active components in ecosystems; recognition of the uncertainties

inherent in management and the need to make risk-averse decisions; and

the need for adaptive management (Christensen et al., 1996; Grumbine,

1997; Hancock, 1993). This regulation embraces those concepts and urges

Councils to seek environmental sustainability in fishery management of

living marine and anadromous resources, within the current statutorily-

prescribed fishery management framework (i.e., management by FMPs).

Linking EFH to healthy ecosystems will improve conserving and

enhancing the habitats of all living marine resources which depend on

the same marine ecosystem. Applying an ecosystem approach to the

conservation and enhancement of EFH will require NMFS and the Councils

to consider the inter-relationships between and among species managed

under the Magnuson-Stevens Act, the Marine Mammal Protection Act, and

the Endangered Species Act (ESA). Carrying out the habitat conservation

mandates of these laws independently is inefficient, because the

interrelationships between species are not considered. Concerns

expressed by fishing interests that focusing on the ecosystem will

divert attention from promoting sustainable fisheries are unfounded

since sustainable resource use must be grounded in a sustained

ecosystem.

In response to comments requesting clarification, this interim

final rule provides additional guidance by listing the general

attributes of a healthy ecosystem in a definition. The linkage between

a healthy ecosystem and EFH has been clarified to mean the habitat

required to support a sustainable fishery and the managed species

contribution to a healthy ecosystem.

Comments: Many comments, mainly from conservation groups, opposed

linking EFH to fisheries in the definition and throughout the proposed

rule. In particular, they wanted the quantity of EFH to be linked to

the support of fish populations rather than to fisheries production.

Conversely, some Councils' comments suggested that NMFS link EFH to a

quantifiable fishery term such as maximum sustainable yield (MSY) or

OY. One Council urged NMFS to clarify that the term sustainable fishery

means the level necessary to maintain at least the current production.

Other commenters supported the linkage of EFH to sustainable fisheries,

but were unclear about the meaning of target production goal as used in

the proposed rule. One asked that the time period over which

sustainable should apply be better defined. Some non-fishing commenters

criticized the linkage to sustainable fisheries as vague and too broad.

Response: The Magnuson-Stevens Act mandates that EFH requirements

be incorporated into FMPs. It also explicitly states that one of its

purposes is to provide for the preparation and implementation of FMPs

that will achieve and maintain on a continuing basis, the OY from each

fishery. The definition of optimum states that the yield from a fishery

should provide the greatest national benefit. This benefit includes

food production and recreational opportunities, and takes into account

protection of marine ecosystems. This is the basis for long-term

sustainable fisheries. Therefore, NMFS continues to maintain that

linking EFH to sustainable fisheries is appropriate and based on the

Magnuson-Stevens Act. Because managed species are integral parts of the

ecosystems that support them, consideration of ecosystem processes are

equally important, as expressed in the rule.

In managing a fishery under their jurisdiction, Councils limit the

quantity of fish that can be harvested by fishers from a population or

stock. These limits or yields, usually expressed as MSY or OY, are

based on estimates of the total population (or stock) size and the

ability of the population to sustain itself when subjected to some

level of fishing pressure. When considering the EFH requirements of a

managed species, Councils must describe and identify enough habitat to

support the total population, not just the individual fish that are

removed by fishing (the fisheries production). ``Target production

goal'' was intended to portray this concept in the proposed rule; but,

because commenters confused biological production with fisheries

production, NMFS has modified this wording. The interim final rule

states that FMPs should identify enough EFH to support a population

adequate to maintain a sustainable fishery and the managed species'

contributions to a healthy ecosystem. If the current stock size

supports the long-term potential yield of the fishery then EFH should

be adequate to support that population and its contribution to a

healthy ecosystem. If the current stock size is lower than that (i.e.,

overfished), then EFH may need to be bigger or annually enlarged to

support a larger spawning stock if habitat is limiting.

Comments: Some commenters stated that including ``biological

properties'' and ``biological communities'' in the interpretation of

``waters'' and ``substrate'' was an inappropriate expansion of the

Magnuson-Stevens Act. Other commenters criticized NMFS for including

``chemical properties'' in the interpretation of ``waters'' because

other agencies have greater expertise in, and jurisdiction over, water

quality issues.

Response: NMFS disagrees with these comments and did not change the

rule. ``Biological properties'' and ``biological communities'' are

fundamental aspects of habitat and have long been recognized as such by

the scientific and technical communities. The fact that an area is

aquatic or contains a specific physical structure may not necessarily

make it fish habitat. Fish species require waters with, among other

things, appropriate biological properties and chemical properties

(e.g., prey, nutrient sources, salinities, dissolved oxygen

concentrations, and pH) to meet their

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physiological/habitat requirements. Substrata also must often have

certain biological communities (typically sessile organisms) before

they function as fish habitat. For example, it is the presence of

seagrasses (associated biological community) that provides appropriate

settlement habitat for post-larval queen conch, not just the underlying

coarse grain sand.

NMFS and other NOAA offices have considerable expertise and state-

of-the-art scientific facilities to assess and evaluate water quality

issues. The fact that NMFS does not have statutory authority for

regulation of water quality makes it no less important in the research

and management of resources under NMFS' jurisdiction.

Comments: Some commenters objected to the inclusion of ``structures

underlying the waters'' in the interpretation of ``substrate.'' Others

supported the inclusion of ``structures,'' but questioned whether the

owners of structures that are identified as EFH would be required to

maintain them as EFH. Several commenters, primarily dive groups,

recreational fishers, and oil industry representatives, applauded the

inclusion of artificial reefs as structures, and further stressed the

importance of offshore oil platforms as artificial reefs and potential

EFH. One commenter pointed out that artificial reefs, if

inappropriately established, have the potential to adversely impact

EFH.

Response: NMFS included ``structures underlying the waters'' in its

interpretation of substrate to clarify that structures such as

artificial reefs, jetties, and shipwrecks may be considered EFH if they

provide essential habitat for a managed species. This should not be

interpreted to mean that all such structures are EFH. Only those

structures that meet the criteria outlined in these guidelines and

identified as such in an FMP are EFH. If a structure is identified as

EFH, the Secretary is required to comment on any state or Federal

action that may have an adverse impact on such habitat. Activities,

such as routine maintenance, that do not require a state or Federal

permit or license would not require consultation. If a state or Federal

agency is involved in creating or modifying an artificial reef in, or

affecting, EFH, NMFS will be required to comment on ways to minimize or

mitigate any adverse impacts to the EFH.

Comment: Some commenters were opposed to interpreting ``spawning,

breeding, feeding, or growth to maturity'' to cover a species' full

life cycle. Other commenters supported it.

Response: The Magnuson-Stevens Act established this definition for

EFH. NMFS recognizes that some may interpret spawning, breeding, and

growth to maturity to exclude key life stages, (e.g., mature adults).

However, all immature life stages grow to maturity and all mature

adults feed, spawn, and/or breed. Therefore, it is appropriate to

interpret this phrase to cover the entire life cycle.

Comments: Some commenters criticized the definition of EFH in the

proposed rule for allowing historic or degraded habitat to be

identified as EFH ``if the loss of that habitat has contributed to

reduced yields for the species and it is feasible to restore the lost

habitat.'' Other commenters criticized NMFS for allowing degraded or

inaccessible habitat to be identified as EFH. The commenters argued

that these provisions exceed NMFS' statutory authority. Port

authorities in particular are concerned that facilities on dry land may

be identified as EFH.

Response: These provisions were included in the proposed rule

because the restoration of historic, degraded, or inaccessible habitat,

where technologically and economically feasible, may be necessary to

meet the rule's stated goal of ensuring the production necessary for

some species to support a sustainable fishery and contribute to a

healthy ecosystem. This interim final rule continues to allow the

identification of historic or degraded habitat as EFH but further

clarifies that ``historic habitat'' must currently be an aquatic area

before it can be identified as EFH and that restoration must be

technologically and economically feasible. Therefore, dry land could

not be identified as EFH.

4. Comments Requesting Definition of Other Terms in the Interim Final

Rule

Comment: Several commenters suggested that the interim final rule

contain a definition of ``adverse impact.''

Response: NMFS agrees and has included a definition in the rule.

Comment: Several commenters suggested that a definition for

critical habitat'' is necessary.

Response: NMFS disagrees that a definition is necessary but has

modified the rule to clarify that ``critical habitat'' relates to

species that are listed as threatened or endangered under the ESA.

Comment: Some commenters suggested that the acronym ``FMU'' needs

to be defined.

Response: The acronym FMU is already defined in 50 CFR 600.10,

which contains the definitions for all of part 600. The EFH provisions

contained in this interim final rule will become subparts of part 600

and as such are subject to those definitions.

Comment: Several commenters suggested that the terms ``high value

habitat'' and ``ecosystem scale'' need to be defined in the interim

final rule.

Response: NMFS disagrees that these terms need to be defined in the

rule since they may be interpreted from the contexts in which they are

used in the rule.

5. Comments on the Purpose and Scope of the Rule

Comments: Several commenters criticized NMFS for not requiring

Councils to describe and identify EFH for all fish species inhabiting

the geographic jurisdiction of a Council, and suggested that such a

limitation is not supported by the Magnuson-Stevens Act. Other

commenters suggested that EFH be described and identified for all major

fisheries, even those not in an FMP. They stated that Councils should

be able to describe and identify EFH of non-managed species in order to

protect habitats that are affected by fishing for a managed species.

Others suggested that as soon as EFH is identified in a proposed FMP,

management measures and consultations should begin without waiting for

final approval of the FMP.

Response: NMFS continues to maintain that the Magnuson-Stevens Act

requires Councils to describe and identify EFH for only those species

managed under an FMP. According to section 303(a)(7) of the Magnuson-

Stevens Act, EFH provisions are required components of an FMP.

Therefore, it is appropriate to describe and identify EFH only for

those species managed in the FMP. However, the Magnuson-Stevens Act

does not preclude Councils from identifying habitat of a fishery

resource under its authority. Section 305(b)(3) describes the Councils'

commenting responsibilities for activities that may affect such

habitat. In the rule, NMFS points out that Councils have the option to

describe and identify habitats (not EFH) and institute management

measures to protect species (and their habitats) that are not managed

under FMPs. This is currently done by some Councils. However, the

habitats of species not managed under a Federal FMP would not be

considered EFH for the purposes of consultation.

EFH consultation and management measures can not be implemented

until FMPs include an EFH provision. Consultation and management

measures would have no statutory basis without the EFH provisions in an

FMP.

Comments: Several commenters questioned whether EFH would be

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identified in state waters. Many commenters urged NMFS to do so; others

opposed it. Commenters urged NMFS to clearly state that management

actions regarding fishing impacts only apply to species managed by

Councils in Federal waters. While some commenters pointed out that NMFS

cannot regulate fishing in state waters, others asked that fishing be

regulated in state waters as well as Federal waters. Three commenters

suggested that the Submerged Lands Act, in combination with the

Magnuson-Stevens Act, would allow NMFS to assert jurisdiction over

state waters, and that the rule should explain how states' authority

over their waters and submerged lands will be affected by this rule.

Some suggested that fishing regulations be closely coordinated with

state management agencies to ensure consistency in habitat protection.

The commenters who stated that EFH should not be identified in state

waters, further asserted that NMFS should not provide comments on

Federal and state activities that take place in state waters.

Response: The Magnuson-Stevens Act requires Councils to describe

and identify EFH based on all life stages of the managed species, with

no limitations placed on the geographic location of EFH. Therefore, EFH

may be in state or Federal waters depending on the biological

requirements of the species. Regarding actions that occur in state

waters that may adversely affect EFH, the Magnuson-Stevens Act provides

authority for NMFS to provide EFH conservation recommendations, not

regulate.

With few exceptions, direct NMFS regulatory authority applies only

to Federal waters, the exclusive economic zone (EEZ). Generally,

without appropriate preemptive procedures, NMFS can not implement

management measures for state waters. However, many species targeted in

Federal fisheries spend part of their life cycle in state waters and

may be impacted by fishing activities that are managed by a state.

Effective management of marine resources that cross jurisdictional

boundaries requires coordination between management entities, and NMFS

has added additional language to the interim final rule to emphasize

such arrangements. Adverse impacts to EFH that result from state-

managed fisheries will be addressed through conservation

recommendations to the appropriate state agency. Failure to consult or

comment on activities adversely affecting all habitats would be a

failure to carry out the legislative mandate to protect EFH for all

life history stages.

Comments: Several commenters recommended that the EFH mandate

should be applied beyond U.S. territorial waters. They argue that many

of the species managed under the Magnuson-Stevens Act range beyond U.S.

territorial waters, e.g., New England groundfish and Alaska salmon are

found in Canadian waters and the high seas. The highly migratory

species that are managed under Secretarial FMPs range into

international waters and the waters of other nations. The basic

question raised in the comments is whether NMFS and the Councils can

identify EFH for those species in the territorial waters of another

country or in international waters.

Response: The EFH provisions under the Magnuson-Stevens Act do not

direct the Councils to include waters beyond the jurisdiction of the

U.S. Since provisions in statutes are not presumed to apply

extraterritorially, NMFS has determined that waters beyond the United

States' EEZ are not to be identified as EFH. Therefore, NMFS will not

regulate fishing beyond the EEZ, and Federal consultation will not be

required. However, Councils may describe, identify, and promote

protection of habitats for managed species in waters beyond the EEZ.

The Secretary will use such information in discussions with Federal

agencies involved in international actions, including negotiations with

foreign nations.

Comment: One Federal agency commented that the Great Lakes should

be added to the EFH program. Other commenters suggested that

interjurisdictional fisheries be added to the program.

Response: In order for an area, like the Great Lakes, to be

identified as EFH, it must provide essential habitat for a species

managed under the Magnuson-Stevens Act. Similarly, an

interjurisdictional fishery must be at least partially managed under

the Magnuson-Stevens Act for the EFH mandate to apply.

Comment: Commenters asked whether EFH would be described and

identified in waters under the jurisdiction of tribes or native

corporations.

Response: NMFS intends that tribal and native corporation waters be

treated the same as state waters for the purposes of describing and

identifying EFH (i.e., EFH may be identified in those waters if the

habitat is essential for a managed species). However, tribes and native

corporations are not required to consult with NMFS on actions that do

not require Federal or state authorization or action. Tribal and native

corporation actions, including activities carried out through Federal

financial assistance and under permits or licenses issued by Federal or

state governments, will require the appropriate procedures for

consultation and/or recommendations as set forth in subpart K.

Comment: Commenters voiced concern that this regulation would

affect the rights of private landowners to manage their own property.

Response: Private landowners have no new responsibilities to

consult with NMFS on private land activities as a result of the

Magnuson-Stevens Act or this interim final rule. No consultation is

required unless an activity may have an adverse impact on EFH and it

requires a Federal or state action, such as permitting or licensing.

Those Federal or state actions will trigger the consultation and/or

recommendation requirements of section 305(b)(2-4) of the Magnuson-

Stevens Act. EFH coordination, consultation, and recommendation

procedures are detailed in this interim final rule and will be added to

part 600 as new subpart, K. Use of existing consultation procedures to

minimize adverse impacts to EFH is strongly advocated in the rule.

Comment: One organization suggested that EFH should be expanded

beyond aquatic areas to include riparian areas and hydrological basins.

Response: The statutory definition of EFH limits it to ``waters'';

therefore, terrestrial areas may not be identified as EFH. However,

there is not a similar legal limit on Federal or state activities that

may adversely impact EFH. The only criteria is that the activity may

have an adverse impact on EFH, with no limits on where the activity is

located. An adverse effect on EFH should be reasonably foreseeable for

the action to require consultation. Therefore, NMFS may comment on

Federal or state actions which take place within riparian areas or

hydrological basins if they may have a reasonably foreseeable adverse

impact on EFH. In this rule, NMFS has confined EFH to include only

aquatic habitat because the Magnuson-Stevens Act definition of EFH

limits it to ``waters.'' However, NMFS believes that areas important to

a sustainable fishery necessarily include riparian and upland areas, as

well as aquatic areas, particularly in the case of anadromous species.

Areas that NMFS considers important are illustrated in the critical

habitat designation for Snake River chinook.

Comment: One commenter expressed concern that those areas not

identified as EFH will be subject to greater threat of disturbance

because they will be thought of as expendable.

[[Page 66536]]

Response: The Fish and Wildlife Coordination Act (FWCA) provides a

directive to Federal agencies to consult with NMFS when waters of the

United States may be modified by activities requiring a Federal permit

or license. The FWCA will continue to allow the Secretary to comment on

Federal activities that may adversely affect living marine resources

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

6. Comments on Mandatory Contents of Fishery Management Plans

Comments: Some non-fishing industry commenters argued that NMFS has

exceeded the authority granted by the Magnuson-Stevens Act by including

mandatory provisions in the EFH guidelines. They argue that Congress

intended the guidelines to be voluntary. Other commenters argued that

proposing discretionary components that ``should'' be included in an

FMP will expose the Councils and NMFS to third-party suits. They stated

that the guidelines need to be far less prescriptive to guard against

such suits. Conversely, other commenters argued that NMFS should change

many of the discretionary components of FMPs in the proposed rule to

mandatory components in the interim final rule.

Response: The Magnuson-Stevens Act directs the Secretary to

``establish by regulation guidelines to assist Councils'' in carrying

out the EFH mandate. The mandatory components specified in the rule

reflect requirements of the Magnuson-Stevens Act, or are logical

extensions of it. Since receiving these comments, NMFS has reviewed the

use of each term (i.e., must, should, may, etc.) to ensure that the

requirements of the Magnuson-Stevens Act are reflected in the interim

final rule. NMFS will continue to maintain a mixture of voluntary

(may), strongly suggested (should), and mandatory (must) components to

inform Councils of the elements needed in an EFH amendment to receive

Secretarial approval.

7. Comments on Description and Identification of EFH in Fishery

Management Plans

Comment: A commenter criticized NMFS for not providing tighter,

less vague standards for the description and identification of EFH.

Response: The guidelines contained in this rule apply to all

regions of the United States, including the Caribbean and western

Pacific territories, and will be used to amend 39 different FMPs

covering over 400 species. Because of this diversity of regional needs,

the guidelines need to be flexible, while providing consistent guidance

to ensure that amendments meet equivalent standards.

Comments: Many commenters suggested other types of information that

should be included in describing and identifying EFH. These include:

(1) Sensitive life stages; (2) reproductive and dispersal patterns; (3)

information generated from spatial, temporal, and fishing gear

experiments; (4) historical information for each data level; (5)

carrying capacity, habitat availability, quality, and utilization; and

(6) spawning structures and structural complexity.

Response: NMFS concurs that this information may be useful. The

lists of information types were intended to be instructive, not

exhaustive. The interim final rule has been modified to provide more

flexibility with regard to the data used.

8. Comments on the Sources and Quality of Information Used

Comment: Several comments, particularly from state agencies,

stressed the need to involve states and use state agency data in

satisfying the EFH requirements of the Magnuson-Stevens Act. Several

commenters urged NMFS to cooperate with states in gathering

information, developing FMP amendments, and funding restoration.

Response: NMFS agrees, and is already collaborating with the states

in many activities. For example, NMFS is coordinating with the state

fisheries agencies and the three interstate fisheries commissions to

gather the best available information for use in the EFH amendments.

NMFS is also working with state coastal zone programs to coordinate EFH

efforts with approved coastal management plans. These interactions with

states are facilitated by the fact that Council members represent each

state under the Council's jurisdiction, and many resource agency

experts also serve on various Council committees and panels, including

habitat committees and advisory panels. All Council activities are open

to the public, which affords further opportunities for cooperation.

Subpart J of the interim final rule has been further modified to

emphasize coordination between states, interstate commissions, and

Councils in the development of EFH FMP provisions.

Comment: Several commenters suggested that ``best available

information'' might preclude NMFS and the Councils from using local

knowledge and log books as sources of information to describe and

identify EFH.

Response: Section 305(b)(1)(B) of the Magnuson-Stevens Act requires

NMFS to consult with participants in the fishery before submitting its

recommendations and information to the Councils to assist in the

description and identification of EFH. This indicates Congress' intent

to use information from fishers. NMFS intends for Councils to use the

best available information, including local knowledge and log books, to

describe and identify EFH. However, all information should be evaluated

with regard to the reliability of the information and its source.

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

Data

Comments: Many commenters expressed concern about the four-level

approach to gathering and organizing data for the description and

identification of EFH. Some expressed concern that there is no

incentive for Councils to move beyond level 1 information (i.e.,

presence/absence information) and that Councils would identify all

habitats occupied by managed species as EFH to ensure the greatest

amount of protection. Other commenters suggested that there should be a

rebuttable presumption that all habitat is EFH if data from levels 2

through 4 are used to refine the identification of EFH. Finally, some

commenters criticized NMFS for allowing the identification of EFH to be

based on production rates by habitat type, because it restricts the

goal of the Magnuson-Stevens Act to promote the protection of EFH.

Response: The four-level approach provides a logical method to

gather and organize data for the identification of EFH. There is a

natural incentive to gather and use information from progressively

higher levels, because this will enable NMFS and the Councils to target

their habitat conservation efforts to ensure that the most productive

habitats receive greater attention. The rule has been modified to

reinforce this intention. Councils are required to demonstrate that the

best scientific information available was used in the identification of

EFH. NMFS also disagrees with the comment that linking EFH to

production will not promote the protection of EFH. Clearly linking EFH

to biological production, and advocating research to quantify these

relationships, will increase awareness of the importance of habitat to

sustainable fisheries and will likely lead to greater emphasis on

protecting EFH. NMFS did not create a rebuttable presumption that all

habitat identified by levels 2 through

[[Page 66537]]

4 information is EFH because it could lead to an overly broad area

being identified as EFH without adequate scientific justification.

NMFS' use of the four levels of information is a means of organizing

the available data for the identification of EFH. This data will be

considered in determining the extent of EFH.

Comment: One commenter suggested that NMFS require Councils to

submit a schedule detailing when higher levels of information will be

developed.

Response: Periodic updates are required for EFH amendments.

Amendments should include an assessment of the information needed to

improve the description and identification of EFH. The research needs

identified in an FMP should include a schedule for meeting those needs.

10. Comments on Criteria for EFH Determinations

Comments: Several commenters questioned the role of Council

judgment when there is only level 1 information available. Others asked

for additional guidance on how to interpret level 1 information.

Response: The role of Councils is to evaluate information and use

the EFH determination criteria in the interim final rule to identify

EFH and the measures required to conserve it. Councils will need to

evaluate all available information, according to its merit, and use

best scientific judgement in arriving at their decisions. Demonstration

that this identification is based on the best scientific information

available will be necessary to attain Secretarial approval of an EFH

amendment. Additional clarification on how to interpret level 1

information to identify EFH has been added to the interim final rule.

Comments: Comments from conservation groups, many fishing groups,

and most individual commenters fully supported a ``precautionary

approach'' and encouraged expansion of these provisions. A few

commenters urged that all habitats be designated EFH and that those

people who impact the habitat should be responsible for proving that

their activities are not decreasing the habitat's capacity to support

fish populations. Many comments, primarily from non-fishing industry

interests, criticized NMFS for establishing a ``risk-averse'' process

for identifying EFH that they claim will result in most aquatic areas

being identified as EFH. Of particular concern is the guidance in the

proposed rule that if only species distribution information is

available, EFH should be everywhere a species is found. Also of concern

is a provision which states that, if a species is overfished, all

habitats used by the species, plus certain historic habitats, should be

considered EFH. The commenters believed that these provisions will

result in most, if not all, habitats being identified as EFH and that

this is not the intent of the Magnuson-Stevens Act.

Response: The ``risk-averse'' approach to describing and

identifying EFH was advocated in the proposed regulation because of the

uncertainty inherent in much of our knowledge of habitat-productivity

relationships. Care should be exercised in the face of inadequate

information or overfished stocks to guard against habitat losses or

alterations that may prove significant to the long-term productivity of

the species. The rule continues to endorse these risk-averse

approaches, but clarifies that Councils should use information from all

available levels to make best scientific judgments on how to describe

and identify EFH. Presence/absence data should be used to delineate the

geographic range of the species. Habitat-specific information on

density, reproduction, and growth should be used to identify EFH within

that range. If only presence/absence information are available on a

managed species, these data should be evaluated to identify those areas

most commonly used by the species as EFH. The rule also clarifies that,

for overfished species, all habitats currently used, and certain

historic habitats, should be identified as EFH only if habitat loss or

degradation may be contributing to the species' being identified as

overfished.

11. Comments on the Relationship Between EFH and Critical Habitat

Comments: Some commenters criticized the proposed rule for stating

that EFH will always be greater than or equal to ``critical habitat.''

One commenter noted that some critical habitat can include upland

habitats and therefore this linkage is not consistent with the

statutory definition of EFH. Others stated that EFH should not be

described and identified for species listed under the ESA. One

commenter questioned why NMFS is allowing fishing on endangered

species. Some commenters supported EFH being equal to or greater than

critical habitat because it will promote the recovery of endangered

species.

Response: NMFS maintains that it is appropriate to state that EFH

will always be greater than or equal to critical habitat, as defined

under ESA. The interim final rule includes a minor modification to the

language that helps distinguish between critical habitat and EFH and to

reiterate that EFH is aquatic only. EFH includes habitats for all life

history stages of a species, while for some anadromous salmonids listed

under ESA, adult marine habitats have not been identified as critical

habitat. NMFS does recognize that critical habitat may contain

terrestrial areas and has modified the interim final rule to clarify

that those areas may not be considered EFH.

NMFS and the Councils do not allow directed fishing on listed

species but EFH requirements are still necessary if the species are

covered by an FMP. Certain stocks of west coast salmon are currently

part of the management unit of an FMP. Specific runs of those stocks

are listed as threatened or endangered under the ESA. Even though

certain runs of a larger stock are listed under the ESA, the Magnuson-

Stevens Act still requires Councils to describe, identify, and consider

actions to conserve and enhance EFH for the species. This does not mean

that directed fishing will be allowed on the listed runs.

12. Comments on Inclusion of Mariculture and Indirect Fishing Effects

Comments: NMFS received comments suggesting that fishing activities

should include all components of the activity (e.g., anchoring,

refueling). Some commenters requested that mariculture be considered a

fishing activity.

Response: As fishing is defined in section 3(4) of the Magnuson-

Stevens Act it includes ``harvesting of fish.'' Commercial fishing, in

the same section, means ``fishing in which the fish harvested, either

in whole or in part, are intended to enter commerce or enter commerce

through sale, barter or trade.'' NMFS agrees that mariculture is

included within these definitions because the fish harvested enter

commerce. The interim final rule was not changed, because mariculture

was already considered to be part of commercial fishing. Under these

regulations Councils would be required to assess the impacts of

mariculture activities and minimize any adverse effects that impact EFH

within their jurisdiction. The indirect effects of fishing activities

should also be considered, when evaluating adverse impacts from

fishing, as well as when analyzing cumulative impacts on EFH.

In the rule, NMFS has used the term ``fishing equipment'' to

replace the term ``fishing gear,'' that was used in the proposed rule.

Fishing equipment is used to portray the intention to more broadly

consider impacts from fishing-related activities when assessing

[[Page 66538]]

adverse impacts on EFH. Councils should assess impacts of different

fishing gears, fishing techniques, equipment, and practices used in

mariculture, and other factors, as appropriate.

13. Comments on Fishing Gear (Equipment) Assessment

Comments: In addition to completing an assessment of fishing gear,

commenters requested that Councils rank gear based on the severity of

impacts to specific habitats. Some argued that recreational fishing

impacts should be excluded from such assessment.

Response: The effects of fishing practices or gear types is

habitat-dependent. NMFS has modified the rule to direct that during the

assessment of fishing equipment (gear) impacts, the relative effect of

different equipment types or techniques on different habitat types

should be assessed. This will help the Councils focus research and

management efforts on those habitats that require the most attention.

Assessments and subsequent research should be conducted on all types of

fishing impacts, including recreational and commercial fishing

equipment or practices, however relative impacts should be prioritized

and management and research should address needs accordingly.

NMFS also emphasizes in the rule that the fishing equipment

assessment should be conducted periodically with subsequent review or

revision. As new equipment is developed, techniques are changed, or

additional research is conducted, new information on effects on EFH

will be developed. Language has been added to the rule to clarify that

Councils should assess all new information regarding EFH, including new

assessments of fishing equipment impacts, to determine when an

amendment needs to be updated. EFH amendments are to be reviewed and

revised as appropriate, but at least once every 5 years. New

information regarding equipment effects on EFH should be incorporated

as available into any updates of EFH amendments.

Comments: Commenters suggested that technology, such as the use of

remotely operated vehicles, should be an acceptable alternative to

research closure areas in assessing the effects of gear. One Council

asked that it be able to base assessments on operational

characteristics of gear in their specific area rather than inference

from studies in other areas.

Response: The rule recommends ``consideration of the establishment

of research closure areas and other measures'' to assess the effects of

fishing equipment on EFH. It does not restrict Councils from

considering any options. Councils should use the most appropriate

measures to assess impacts. Councils, however, should not discount some

methods or tools because they may be time-consuming or require

management action, if they are the most appropriate method to use. All

relevant research should be considered when assessing impacts of

fishing gear on EFH, including research that has been conducted in

other, biogeographically similar areas.

Comment: Several commenters expressed concern that there is no

requirement to conduct a cumulative impacts assessment of fishing

impacts, as there is for non-fishing impacts.

Response: NMFS assumed that all forms of adverse impacts, including

those from fishing, were included as cumulative impacts on EFH.

However, NMFS has modified the rule to further clarify this intent.

Impacts of fishing and non-fishing activities should be considered when

a cumulative impacts analysis is conducted. This may be particularly

important where fishing gear of one fishery impacts the habitat of

another fishery. Furthermore, cumulative impacts analysis should

consider synergistic effects of both fishing and non-fishing impacts on

habitat, and should give additional consideration to cumulative impacts

affecting HAPC.

Comment: Commenters stated that adverse impacts from fishing should

be demonstrated scientifically.

Response: National standard 2 requires that conservation and

management measures be based upon the best scientific information

available. Councils should, however, take into consideration

information available through other valid sources. If scientific

information is limited, the best available information should be

considered for assessing adverse impacts of fishing equipment on

habitats. This information should be weighed, based on the quality of

information, and considered appropriately in the development of EFH

conservation and management decisions.

14. Comments on the Threshold That Requires Councils To Regulate

Fishing Activities That Adversely Impact EFH

Comments: The proposed rule required Councils to act to mitigate or

minimize any adverse effect from fishing, to the extent practicable, if

there is evidence that a fishing practice is having ``substantial''

adverse effect on EFH. Many comments from environmental and fishing

groups criticized the proposed rule for using ``substantial'' to

characterize adverse impacts that would require a Council to regulate

damaging fishing practices. They claimed this was a higher threshold

than intended in the Magnuson-Stevens Act. Under the Magnuson-Stevens

Act, Councils are required to ``minimize to the extent practicable

adverse effects on such habitat caused by fishing.'' Many of the

commenters maintain that this ``higher threshold,'' is so high that

Councils will never act to control a damaging fishing practice, nor

will research be conducted to assess less understood impacts from

fishing. Commenters, additionally, suggested that the burden to prove

they are in fact causing no impact should be placed on those wishing to

exploit the public resource.

Response: The language of the proposed rule was not meant to raise

the threshold of damage from fishing impacts higher than that intended

in the statute. The language was intended to provide guidance to assist

Councils in determining when they are required to take action on a

fishing impact. NMFS believes that the intent of the Magnuson-Stevens

Act is to regulate fishing gears or techniques that reduce an essential

habitat's capacity to support marine resources, not practices that

produce inconsequential changes in the habitat. Therefore, NMFS

continues to support this concept but has deleted the word

``substantial'' from the rule and added new language to clarify this

concept. Impacts from fishing practices that justify the implementation

of management actions should be ``identifiable'' (i.e., both more than

minimal and not temporary in nature).

Comments: Commenters stated that the inclusion of a formal cost-

benefit analysis to determine whether it is practicable to impose

management restrictions on a damaging fishing activity goes beyond the

statute. Costs to industry and costs to the environment cannot be

directly compared because they are measured differently. Commenters

pointed out that the legislative history indicates that while the term

``to the extent practicable'' was intended to allow for the

consideration of costs; it was not a requirement that the benefits

justify the costs. Commenters suggested that the long-term costs to the

ecosystem and long-term benefits to the fishery and all potential users

(since this is a public resource) must be weighed and that short-term

cost to the fishers is only one of many factors that must be

considered.

Response: NMFS agrees that the Magnuson-Stevens Act does not

require a formal cost/benefit analysis or a

[[Page 66539]]

demonstration that the benefits of minimizing adverse impacts justifies

the costs to fishers. In considering management measures, Councils

should evaluate the long-term benefits to the habitat and the managed

species (including long-term benefits to the fishery), as well as

short-term economic consequences to the fishery. This provision is

intended to simply focus Council attention on costs and benefits

consistent with national standard 7, which requires consideration of

costs and benefits in the development of conservation and management

measures. Further, Executive Order (E.O.) 12866 requires NMFS to

regulate in the most cost effective manner to achieve the regulatory

objective. The rule has additional clarifying language to avoid the

interpretation that a formal cost/benefit analysis must be completed

before taking action.

Comment: Several commenters urged that immediate management

measures should be taken as precautionary measures against further EFH

degradation, rather than waiting for Councils to identify and describe

EFH, and assess gear impacts on EFH. Many commenters identified

specific gear types that should be immediately banned or restricted.

Response: Councils must know what types and locations of habitats

constitute EFH before they will be able to act to prevent, minimize, or

mitigate adverse impacts from either fishing or non-fishing activities

on EFH. Banning a gear type to protect EFH before it is identified, in

an FMP and without assessment of adverse impacts, is contrary to the

Magnuson-Stevens Act. The interim final rule presents a logical

progression for description and identification of EFH, identification

of adverse impacts to EFH, and development of management, conservation,

or enhancement measures, as appropriate.

15. Comments Objecting to Listing of Specific Fishing Gears/Diving as

Fishing Impacts

Comment: Commenters opposed the listing of diving or specific

fishing gears as potentially causing adverse impacts that would require

fishing restrictions. Dive groups commented that commercial diving

should be distinguished from recreational diving, or that diving should

not be listed at all. Commenters suggested that anchoring on artificial

reefs was as damaging as the other examples listed and that it should

also be included in the list of potential restrictions.

Response: The intent of this language was to provide the Councils

with some examples of typical activities that have the potential to

adversely affect diverse types of EFH (e.g., careless divers and

snorkelers have been widely documented to cause adverse effects on

coral reef habitats). However, NMFS agrees that it is more appropriate

to address these considerations in a broader manner. As a result, the

language in the interim final rule was modified to present general

options that Councils should consider in determining appropriate

management measures. These general options are illustrative only, many

activities may result in habitat-specific impacts. Councils should

examine all practices that may contribute to EFH degradation and act to

minimize the impacts as appropriate.

16. Comments on Marine Fishery Reserves as Options for Managing Adverse

Effects From Fishing

Comment: Many commenters, primarily individuals, fishing groups,

and conservation groups, requested that language be added to the

interim final rule to clarify that Councils are not restricted from

considering closed areas (Marine Protected Areas, Marine Fishery

Reserves, No-Take Zones, or Research Closure Areas) as management tools

for protection of habitats and habitat functions and for enhancing

recovery of overfished species, as well as for conducting research.

Commenters felt that a statement in the preamble of the proposed rule

which stated, ``NMFS has clarified that the intent [of the regulation]

is not to preclude fishing in areas identified as EFH,'' could be

interpreted to mean that fishing or specific fishing gears would never

be restricted in any area. Commenters indicated that establishment of

such zones is supportive of a precautionary approach to habitat

conservation where there is uncertainty on the extent and degree of

impacts that occur from fishing. They suggested that early

establishment of such zones could protect areas and stocks from further

impacts while additional information is gathered. Additional commenters

suggested that NOAA's National Marine Sanctuaries and National

Estuarine Research Reserves and the Environmental Protection Agency's

National Estuary Program provide sites that should be utilized for

research areas. These areas are the focus of current research efforts

and many have extensive databases on habitat types and usage within the

reserve areas.

Response: The interim final rule continues to advocate research

closures areas and other measures, as appropriate, to evaluate the

impact of fishing equipment and techniques on EFH. The regulations

continue to encourage Councils to consider time/area closures as

management tools for minimizing impacts of fishing gears on EFH. The

language in the preamble of the proposed rule, ``* * * that the intent

[of the regulation] is not to preclude fishing in areas identified as

EFH,'' was intended to confirm that identification of an area as EFH

did not automatically bring restrictions on fishing in the area. NMFS

altered the language in the interim final rule to clarify that Councils

are encouraged to consider marine protected areas as management tools

for habitat conservation as well as management of fishing practices.

Currently established Federal and state research areas (e.g., National

Marine Sanctuaries or Estuarine Research Reserves) should be evaluated

as logical locations for additional studies.

17. Comments on the Statutory Authority To Address Adverse Impacts on

EFH From Non-Fishing Activities

Comments: Many commenters, primarily non-fishing industry groups,

did not agree that the Magnuson-Stevens Act provided NMFS or the

Councils the statutory authority to comment and make recommendations on

non-fishing activities. They proposed that the sections regarding

identification of adverse impacts from non-fishing activities and

consultation be deleted in their entirety.

Response: NMFS disagrees for a number of reasons. First, one of the

stated purposes of the 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 would include

non-fishing activities. Second, the Magnuson-Stevens Act, in section

303(a)(7), requires that FMPs identify conservation and enhancement

measures for EFH. These measures are not limited by statute to

addressing only fishing activities. A necessary first step to

identifying conservation and enhancement measures is to identify

adverse impacts that will require conservation and enhancement measures

to adequately promote the protection of EFH. Therefore, a logical

extension of the Magnuson-Stevens Act requirement to identify

conservation and enhancement measures is the consideration of adverse

impacts from non-fishing activities that would necessitate the use of

such measures. Third, the requirements for coordination, consultation,

and

[[Page 66540]]

recommendations relate directly to non-fishing actions. The Magnuson-

Stevens Act requires that other Federal agencies consult with the

Secretary and then consider and respond in writing to the Secretary's

EFH conservation recommendations regarding actions that may adversely

impact EFH. These actions will be non-fishing actions. Therefore, the

EFH amendments must include consideration of adverse impacts from non-

fishing activities to aid NMFS and the Councils when they are

consulting/commenting on actions that may adversely impact EFH.

18. Comments on Different Levels of Scrutiny of Non-Fishing Impacts

Comment: Many non-fishing interests commented that their impacts on

EFH were being held to a higher standard than adverse impacts from

fishing, because NMFS does not have to determine whether it is

practicable to minimize or mitigate the adverse impact before providing

a recommendation. The commenters were also concerned that too much

emphasis is placed on non-fishing adverse impacts on EFH.

Response: Non-fishing and fishing impacts are held to two different

levels of scrutiny because of legal differences in how the impacts are

addressed. Fishing impacts, as required by the Magnuson-Stevens Act,

must be minimized to the extent practicable by implementing

conservation and management measures. For non-fishing activities, NMFS

is required to provide EFH conservation recommendations to action

agencies for all actions that may have an adverse impact on EFH. NMFS

and the Councils control fishing activities through regulation, whereas

recommendations by NMFS and the Councils on non-fishing activities are

advisory. The action agency then considers NMFS' recommendations

according to its statutory requirements. The emphasis placed on non-

fishing in the coordination, consultation, and recommendation process

will depend on the level of impact from each.

19. Comments on the Identification of Specific Industries With

Potential Adverse Effects on EFH

Comments: Many commenters objected to their particular industries

or activities being highlighted in the proposed rule as having

potential adverse effects on EFH. Many pointed out that non-fishing

activities do not always adversely impact fish habitat. Some forest

industry groups pointed out that they are involved in restoration of

anadromous fish habitats. Oil and gas industry commenters pointed out

that oil platforms have been documented as artificial reefs that

support fish populations and therefore produce positive effects on

fisheries, not adverse effects.

Response: NMFS acknowledges that many industries take certain

actions specifically to improve fish habitat even if other activities

conducted by the industry may adversely affect fish habitat. Therefore,

NMFS agrees that the language of the rule should be more generic and

that the types of activities that have been demonstrated to have

potentially adverse effects on EFH should be highlighted for the

Councils in the interim final rule rather than identifying the

industries that may engage in these activities. NMFS revised this

section to clarify that its intent is to avoid, minimize, or compensate

for adverse impacts on EFH. The rule avoids singling out specific

industries just because they have the potential to adversely impact

EFH.

20. Comments on Cumulative Impacts Analysis

Comments: Several commenters were concerned that the relationship

between the required analysis of cumulative impacts and EFH was not

clearly specified. Many cited an ecological risk assessment as a

lengthy, expensive procedure that would tell little about EFH. Some

commenters asked NMFS to provide criteria for conducting an ecological

risk assessment.

Response: NMFS has clarified the cumulative impacts analysis

requirements in the rule. Cumulative impacts analysis is intended to

monitor the effect on EFH of the incremental impacts, occurring within

a watershed or marine ecosystem context, that may result from

individually minor but collectively significant actions. The assessment

of ecological risks is intended in a generic sense to examine actions

occurring within the watershed or marine ecosystem that adversely

affect the ecological structure or function of EFH. The assessment

should specifically consider the habitat variables, previously noted

while describing and identifying EFH, that control or limit a managed

species' use of a habitat. It should consider the effects of all

impacts that affect either the quantity or quality of EFH. The term

``ecological risk assessment'' was not meant to be interpreted in the

stricter toxicological sense. NMFS will continue to develop further

criteria for conducting an ecological risk assessment.

21. Comments on Mapping of Cumulative Impacts Analysis

Comments: Some commenters thought the requirement to map adverse

impacts should be discretionary. Others thought it should be deleted

altogether.

Response: NMFS disagrees and considers mapping of the impacts to be

one of the most important ways to analyze the data and to easily share

the information with other resource management agencies and the public.

It is also an efficient way to track cumulative effects over time and

detect when effects are reaching threshold limits. The rule has been

revised to clarify that the mapping requirements are strongly

encouraged.

22. Comments on the Options for Conservation and Enhancement of EFH

Comments: Several commenters were concerned about the broad

examples given in this section. They recommended that FMPs address

site-specific activities because an activity might adversely impact EFH

under certain conditions and not under others. Other commenters

expressed concern that statements suggesting that certain activities

(such as diversion of fresh water) always produce adverse effects did

not reflect their regional perspective. There were many comments about

the examples used and questions over whether these were the best or

even proper examples. There were many suggestions of different examples

to include in the rule. Several commenters were concerned that NMFS was

mandating best management practices for non-fishing activities.

Response: NMFS recognizes that this section did not provide the

clarity that it intended, and that the listing of examples, while not

meant to be exhaustive, needs modification. The section has been

revised in the interim final rule to clarify that the intent of the

section is to provide examples of proactive and reactive measures to

conserve and enhance EFH. The revisions focus on avoiding, minimizing,

or compensating for impacts on EFH derived from activities both inside

and outside of EFH and the need for Councils to provide recommendations

to address those impacts. The management measures listed in this

section are intended to be optional. Certain actions may have positive

or negative impacts on EFH depending on the location and the purpose of

the action. The effect of actions should be judged within the context

of watershed planning and/or by ecosystem considerations.

[[Page 66541]]

Comment: One commenter expressed concern that habitat creation was

listed as an option to conserve and enhance EFH.

Response: The Magnuson-Stevens Act requires NMFS and the Councils

to conserve and enhance EFH. NMFS believes that, under certain

circumstances, habitat creation is a viable means to enhance EFH on a

watershed basis.

Comment: One commenter criticized NMFS for not encouraging

proactive measures to conserve and enhance EFH.

Response: NMFS modified the rule to include language stating that

the Councils and NMFS will provide information on ways to improve

ongoing Federal operations.

23. Comments on the Treatment of Prey Species Under the Proposed Rule

Comments: Several commenters asked that the proposed rule be

modified to require that EFH be described and identified for all prey

species. Numerous commenters stated that habitat for forage species

should be included in an ecosystem approach, and mapped as well. Other

commenters, against the inclusion of prey, stated that loss of prey

should not categorically be considered an adverse impact because the

fishery decline could be due to other factors such as overfishing,

rather than loss of prey. Inclusion of threats to prey, they commented,

exceeds the scope of the statute. Commenters concerned with anadromous

species stated that predators should be considered if prey are

included. They stated that this reflects more of an ecosystem approach

and could take into consideration the effects of pinniped predation on

the fishery. One Council asked NMFS to clarify that Councils may not

place harvest limits on prey species unless the prey species is managed

under an FMP.

Response: NMFS continues to maintain that describing and

identifying separate EFH for prey species not included in an FMU is

beyond the scope of the Magnuson-Stevens Act. However, NMFS recognizes

the importance of prey to the managed species. The statutory definition

of EFH includes ``feeding'' as an ecological function of EFH necessary

to a species. Therefore, presence of adequate prey is one of the

biological properties that can make a habitat essential. It is

appropriate to consider loss of prey as an adverse impact to a managed

species' EFH because the species would not be able to use the habitat

for feeding. Therefore, the rule requires Councils to identify prey

species for managed species in the FMU and the habitats of major prey

species. Councils must address threats to the prey species and its

habitat if there is evidence that such adverse effects may lead to a

decline in the prey species population and by extension reduce the

quality of a managed species' EFH. These threats should be covered

under the adverse effects section of the EFH amendment.

A requirement to describe and identify EFH for predators is not

authorized by statute, and therefore, not included in the rule. In

identifying EFH through an ecosystem approach, however, NMFS does

suggest that Councils consider the extent to which the managed species

is prey for other managed and non-managed species or marine mammals in

determining the habitat necessary to support a sustainable fishery and

the managed species' contribution to a healthy ecosystem. Predators of

managed species need to be considered a source of natural mortality

inherent in the ecosystem. The MMPA does include provisions which

address the interactions between marine mammals and other species. NMFS

is able to address these interactions through that statute.

24. Comments on Vulnerable Habitats (Habitat Areas of Particular

Concern)

Comment: Some commenters asked for a definition of ``vulnerable

habitat'' and wanted to know how broad this category may be. Other

commenters supported the identification of vulnerable habitats or

prioritizing actions in ``areas of special concern'' and suggested that

important habitats be ranked. Some commenters asked for guidance in

determining whether a habitat type is vulnerable. They asked that

impacts analyses consider both fishing and non-fishing impacts as

human-induced degradation in vulnerable habitats. Some commenters

thought that an additional level of habitat delineation, as envisioned

with the identification of vulnerable habitats would add confusion, and

thought that this was beyond the scope of the statute.

Response: Comments on the Framework indicated a need for

prioritizing the habitats and determining which should be given

greatest attention in the coordination and consultation process when

little is known about a species' distribution. The vulnerable habitat

provision was added to the proposed rule to address these concerns.

After consideration of comments on the proposed rule, NMFS has refined

this concept to include ecological function of the habitat along with

considerations of vulnerability. In the rule, NMFS renamed vulnerable

habitats as ``habitat areas of particular concern'' (HAPC). In

determining HAPCs, Councils should consider ecological value of a type

or area of EFH, its susceptibility to perturbation from both

anthropogenic (human-caused) sources and natural stressors, and whether

it is currently stressed or rare. HAPC criteria are outlined in the

interim final rule. NMFS will elaborate on these criteria in internal

technical guidance.

These HAPCs can be used to focus the conservation, enhancement,

management, and research efforts of NMFS and the Councils, as well as

the consultation requirements of the Federal action agencies and EFH

conservation recommendations. These areas should be a primary focus to

provide insight into relationships between key habitat characteristics

and ecological productivity or sustainability and the ways in which

human activity adversely affects such habitat and its contribution to

population productivity.

25. Comments on Research Needs and FMP Amendments and Updates

Comment: Commenters suggested annual reviews of research needs and

assessments of progress towards meeting those needs. Other commenters

were concerned that reviewing EFH sections of FMPs at least once every

5 years is too long.

Response: The proposed rule states that reviews of EFH sections of

FMPs must be completed as recommended by the Secretary, at least once

every 5 years. NMFS considers this amount of time appropriate and has

maintained it in the rule. Councils are strongly encouraged to include

interim reviews of EFH information needs during annual reviews of Stock

Assessment and Fishery Evaluation (SAFE) reports. NMFS will work to

develop an appropriate format for future SAFE reports to address the

requirements under the Magnuson-Stevens Act EFH mandate.

Comment: One Council commented that Councils should have the option

of including a framework adjustment mechanism in the EFH amendment to

allow for more timely changes in management measures.

Response: NMFS agrees that framework amendments may be an

appropriate way to institute management measures to conserve and

enhance EFH.

Comments: Commenters called for incentives to encourage research to

address gear effects and management measures to minimize adverse

impacts. They suggested that a schedule be established under which the

Councils or industry will be obliged to conduct the

[[Page 66542]]

necessary research that will indicate the extent, if any, of impacts

caused by fishing sectors. As written, there is no incentive to conduct

further research. They feel there is a disincentive, because findings

of impacts could be used to restrict a fishery.

Response: To address this concern the interim final rule specifies

that, as part of a Council's assessment of impacts caused by fishing, a

schedule should be developed detailing the Council's plan to collect

any missing information. Regular reporting of progress toward meeting

these research goals will provide added incentive for Councils to

conduct added research. A standardized schedule for all FMPs would not

be useful since existing data and research needs regarding each

fishery's impacts to different habitats vary greatly both within and

among regions.

Comments: Some commenters asked that research needs be categorized

and that cost estimates be included in FMPs. Many commenters stressed

that gear effects research is needed.

Response: In developing research recommendations in FMPs, the

interim final rule encourages Councils to prioritize research needs.

The interim final rule does not require cost estimates; however,

Councils may include budget information if they choose. Fishing gear-

effects research should be considered, along with research on habitat

utilization, habitat availability, and adverse impacts from non-fishing

activities. Research should be conducted on all types of fishing

impacts, including recreational and commercial fishing equipment or

practices, however relative impacts should be prioritized and research

should address needs accordingly.

26. Comments on Development and Review of NMFS EFH Recommendations to

Councils

Comments: Many commenters stated that a public process must be

available for participation in the development and review of EFH

recommendations. They sought participation outside of the Council

process. They want all stakeholders to be involved in the development

of recommendations. Some state resource agencies commented that, prior

to approval of recommendations, public meetings should be held in each

state. Some commenters suggested that conservation groups should be

specifically listed as interested parties, and some commenters

suggested that any potentially impacted party should be contacted so

that they could review the recommendations.

Response: The proposed rule stated that the NMFS draft

recommendation will be made available for public review. The interim

final rule continues to suggest that the public review process be

coordinated with Council meetings in order to accommodate those user

groups most closely associated with the regulation. Stakeholders that

have not previously been involved in the Council process are not

precluded from participating. Where appropriate, additional meetings

outside the Council process may be held. Individual meetings in every

state may not be practicable, but where feasible, should be considered,

as is standard practice with many Council proceedings. Contacting

individual stakeholders to extend the review process is not

practicable. It is incumbent upon stakeholders to take the initiative

and become involved in the EFH process.

Comment: One commenter criticized NMFS for establishing a standard

of ``best available scientific information'' for NMFS EFH conservation

recommendations to Councils. The commenter pointed out that this

standard is stricter than that established in Sec. 600.815(a)(2)(i).

Response: NMFS agrees and has modified the rule to allow other

appropriate information to be used. However, NMFS will evaluate the

quality of information in determining if it is appropriate to use.

27. Comments on Authority To Issue the Coordination, Consultation, and

Recommendation Section

Comment: Many non-fishing industry representatives doubted the

Agency's legal authority to issue regulations for the consultation

process, including the requirements that Federal action agencies

prepare EFH Assessments or participate in a dispute resolution process.

Response: First, NMFS does have authority to issue the

coordination, consultation, and recommendation regulations. Section

305(d) of the Magnuson-Stevens Act gives the Secretary the authority to

issue regulations to carry out any provision of the Act. This

rulemaking authority applies directly to the EFH coordination,

consultation, and recommendation provisions of the Magnuson-Stevens

Act.

The provision calling for dispute resolution has been retitled

``further review'' in the interim final rule to clarify that a formal

dispute resolution is not envisioned. Further review is not required

each time agencies disagree. It is an option available to reach

agreement only if both agencies so choose. Information in an EFH

Assessment is needed to allow NMFS to fulfill its requirement to

provide EFH conservation recommendations to a Federal or state action

agency. Thus, the requirements calling for EFH Assessments and further

review are mechanisms to improve the efficiency of the consultative

process.

28. Comments on the Inclusion of Coordination, Consultation, and

Recommendation Procedures

Comments: Many comments from non-fishing industries suggested that

NMFS develop the consultation regulations at a later time. Some

suggested that the EFH guidelines to Councils and the regulations

detailing the coordination, consultation, and recommendation procedures

should be published separately.

Response: Within section 305(b), the Magnuson-Stevens Act requires

Councils to amend FMPs in order to describe, identify, conserve, and

enhance EFH, and requires Federal action agencies to consult with NMFS

if their actions may adversely affect EFH identified in FMPs.

Developing the consultation regulations at a later date would be

neither efficient for implementing the Magnuson-Stevens Act, nor clear

to the public. Including the consultation provisions in this rulemaking

allows the public and affected parties to fully understand the

significance and effect of an area being identified as EFH in an FMP.

Description and identification of EFH does not automatically require

increased management measures (for fishing) or consultation (for non-

fishing) except when Federal or state actions may adversely impact the

quality or quantity of EFH. In those cases, it is important for the

Councils and the action agency to understand completely the procedures

involved. Therefore, NMFS considers it necessary for the development of

the two sections to proceed in parallel. Moreover, between completion

of this interim final rule and before the first required consultations,

NMFS and the Councils will need to develop memoranda or other

agreements with Federal and state agencies on how to work within or

modify existing consultation procedures and in developing general

concurrences, consistent with the rule. The Councils and NMFS will also

need to establish procedures to coordinate sharing of information,

tracking of projects, and development of conservation recommendations.

NMFS does acknowledge that the coordination, consultation, and

recommendation provisions for action agencies and

[[Page 66543]]

guidelines to the Councils may be clearer and better presented by

assigning them to separate subparts (J and K) of 50 CFR part 600.

29. Comments on Use of Existing Consultation/Environmental Review

Procedures

Comments: Many non-fishing groups and one government agency

commented that the proposed consultation process was burdensome and

duplicative because it did not recognize existing procedures that may

fulfill the Magnuson-Stevens Act mandate that Federal action agencies

must consult with NMFS on actions that may adversely impact EFH.

Response: The coordination, consultation, and recommendation

procedures in the proposed and interim final rules reflect the

Magnuson-Stevens Act's mandate. The proposed rule included a provision

that EFH consultation may be consolidated with other existing

consultation and environmental review processes. To clarify that it is

NMFS' intention to use existing processes whenever appropriate, the

interim final rule contains language strongly encouraging the use of

existing consultation and environmental review processes to fulfill the

EFH consultation requirements. The procedures will not be duplicative

because only one review process will be used.

Existing Federal statutes such as the FWCA, ESA, and National

Environmental Policy Act (NEPA) already require consultation or

coordination between NMFS and other Federal agencies. Therefore, the

need for Federal agencies to evaluate the effects of their actions on

fish and fish habitat is not a new requirement imposed by the Magnuson-

Stevens Act. As required by section 305(b)(1)(D) of the Magnuson-

Stevens Act, NMFS will coordinate with, and provide information to,

other Federal agencies on conservation and enhancement of EFH. This

will include distribution of maps, tables and narrative descriptions of

EFH. The EFH FMP amendments, which will be widely available at all NMFS

Regional offices (see ADDRESSES), the NMFS Office of Habitat

Conservation, Council offices, and other locations such as the World

Wide Web, will provide additional information to assist Federal

agencies in the assessment of their actions. FMPs will describe EFH and

identify those characteristics of EFH that control or limit the

habitat's use by a managed species. Action agencies can use this

information to determine if, and how, an action will affect EFH. Thus,

EFH consultation should not be burdensome, since it will use readily

available information that may be incorporated into the same processes

that are currently invoked to satisfy existing review requirements.

Comments: Several industry groups commented that the EFH

coordination, consultation, and recommendation process will mean

additional restrictions on non-fishing industry activities and will not

result in any benefit to EFH.

Response: The coordination, consultation, and recommendation

process itself will not automatically impose additional restrictions,

because NMFS' and the Councils' EFH conservation recommendations are

non-binding. However, one of the purposes of the Magnuson-Stevens Act

is to promote the protection of EFH in the review of projects that

require Federal or state action. Accordingly, Federal and state action

agencies must give NMFS' and the Councils' comments and EFH

conservation recommendations due weight in their decision-making

process. After consideration, Federal or state action agencies may

recommend modifications of any actions with adverse effects on EFH, in

order to conserve EFH. Benefits to EFH will depend on the extent to

which these recommendations are followed.

Comments: Many environmental groups commented that NMFS'

recommendations should be mandatory and that NMFS should be able to

either stop a project based on adverse effects on EFH or postpone it

pending completion of consultation.

Response: The Magnuson-Stevens Act does not provide such authority.

Therefore, NMFS' EFH conservation recommendations are not mandatory,

and NMFS has no authority to stop a project based on adverse effects on

EFH.

Comment: One environmental group suggested that NMFS EFH

conservation recommendations contain performance criteria.

Response: Where appropriate, NMFS EFH conservation recommendations

will contain performance criteria.

Comments: Several agencies and many industry representatives

commented that actions covered by other consultation procedures should

be exempt from EFH consultation or covered by a General Concurrence.

Many industry groups or resource management programs requested a

blanket exemption for their activities.

Response: A purpose of the Magnuson-Stevens Act is ``to promote the

protection of essential fish habitat in the review of projects

conducted under Federal permits, licenses, or other authorities that

affect or have the potential to affect such habitat.'' The Magnuson-

Stevens Act does not provide exemptions from its consultation

requirements in section 305(b)(2). Therefore, NMFS has no authority to

exempt any actions from the consultation requirement. Existing

environmental consultation procedures do not necessarily ``promote''

the protection of EFH. The rule is sufficiently flexible to consolidate

EFH requirements with those environmental review procedures that do

promote EFH, or that are modified to conform to the EFH consultation

requirements. To address programs or groups of actions that have

minimal adverse effects on EFH, the interim final rule allows NMFS to

issue a General Concurrence rather than review each of these actions

separately.

Comment: One Council commented that the Coastal Zone Management Act

(CZMA) consistency process be cited as an existing environmental review

that may be used to evaluate adverse impacts from Federal activities.

Response: The CZMA consistency process is a state-run program which

would not be appropriate for NMFS to use to evaluate Federal actions.

However, NMFS recognizes that state CZM programs may be helpful in

learning of, and providing recommendations on, state actions that may

adversely impact EFH, and has included this in the rule. Moreover,

through joint permitting processes used by many Federal agencies, NMFS

attends monthly permit review meetings along with state CZM

representatives. NMFS encourages exchanges of this type.

Comment: Four commenters would prefer that the consultation

procedures focus on only those activities with the potential for the

most significant impacts.

Response: NMFS agrees that effective coordination, consultation,

and recommendation will require prioritization of efforts. The three-

tiered consultation process (GCs, abbreviated consultation, and

expanded consultation) is intended to focus effort on those activities

with the greatest potential to adversely affect EFH. If HAPCs are

identified in an FMP, NMFS and the appropriate Council may use these as

areas to further focus the consultation procedures.

Comments: Several environmental groups commented that states should

be subject to the same consultation requirement as Federal agencies.

Those commenters also asked for more details on state roles in the

consultation process.

[[Page 66544]]

Response: The Magnuson-Stevens Act does not require that states

consult with the Secretary. NMFS and the Councils are required to

provide EFH conservation recommendations to states on activities that

may adversely affect EFH. This is why the rule suggests establishing

formal agreements with states to inform NMFS and the Councils of such

activities. The Secretary and the state may also enter into agreements

to promote the protection of EFH.

Comment: One Council commented that NMFS should keep a record of

Federal and state actions for which it provides recommendations.

Response: NMFS agrees and plans to establish a system to track the

disposition of its recommendations.

Comment: One commenter asked whether it was NMFS' responsibility to

develop agreements with states to facilitate providing recommendations

on state actions that may adversely impact EFH.

Response: It is NMFS' responsibility to develop such agreements.

Comment: One commenter stated that NMFS should separate the

consultation functions from the recommendation functions.

Response: The requirement in the Magnuson-Stevens Act for Federal

agencies to consult with NMFS is immediately followed by the provisions

that Councils and NMFS provide recommendations to Federal action

agencies. The two are also linked because consultation is the main way

NMFS receives information about actions that may adversely affect EFH.

NMFS must provide EFH conservation recommendations for these actions.

Congress clearly intended that these activities be linked; therefore,

NMFS continues to link the requirements in the rule.

30. Comments Regarding Federal Actions Requiring Consultation

Comment: Many state and Federal agencies and several non-fishing

industries questioned when EFH consultations would begin, whether

ongoing or delegated Federal actions require consultation, and to what

extent Federal funding may trigger consultation.

Response: No consultation is required until the Secretary has

approved an FMP amendment identifying EFH. The Councils are required to

submit these amendments to the Secretary by October 11, 1998. Once EFH

is identified, completed actions such as issued permits do not require

consultation. Permit renewals, modifications, or reviews are a Federal

action that could result in further consultation. Delegated programs

will require consultation at the time of delegation or renewal of

delegation. All Federal funding for programs that may have an adverse

effect on EFH will trigger consultation. NMFS encourages agencies

funding programs that may adversely affect EFH to initiate programmatic

consultation to evaluate their programs. Once funds are dispersed to a

non-Federal entity, they are no longer considered Federal funds.

Therefore, non-Federal entities receiving Federal funds for certain

actions are not required to consult on these actions.

Comments: Several commenters expressed concern about requiring EFH

consultation for actions not actually occurring in EFH.

Response: The Magnuson-Stevens Act requires consultation for all

actions that may adversely affect EFH, and it does not distinguish

between actions in EFH and actions outside EFH. Any reasonable attempt

to encourage the conservation of EFH must take into account actions

that occur outside of EFH when those actions may have an adverse effect

on EFH. Therefore, EFH consultation is required on any Federal action

that may adversely affect EFH, regardless of its location. An adverse

effect on EFH must be reasonably foreseeable before consultation is

required.

31. Comments Regarding Participation in the Consultation Process

Comments: Several individuals and non-fishing interests expressed

concern that the rule allowed no clear role for applicants, private

landowners, or the conservation community in the consultation process.

Those commenters urged more opportunities for public participation.

Response: NMFS' coordination, consultation, and recommendation

procedures include opportunities for public involvement, and all

Council meetings are open to the public. Most existing environmental

review processes, which can be used to satisfy the EFH consultation

requirements, already include opportunities for applicants and the

public to participate, (e.g., permit reviews under the Clean Water Act

section 404 program). Additionally, Sec. 600.905(c)(2) of the rule

allows a designated non-Federal representative of a Federal action

agency to participate in consultation or preparation of an EFH

Assessment. This non-Federal representative could be an applicant or

landowner.

Comment: A few commenters requested that the rule clarify the role

of Councils in the EFH coordination, consultation, and recommendation

process.

Response: The Magnuson-Stevens Act does not require Federal action

agencies to consult with Councils on actions that may adversely affect

EFH. However, the Act authorizes Councils to provide comments and

recommendations on Federal or state activities that may affect fish

habitat, including EFH, and requires Councils to comment and provide

recommendations if the activity may affect anadromous fish habitat.

NMFS included a specific section on coordination between the Councils

and NMFS in the interim final rule. The Councils are viewed as integral

partners in the entire EFH process. Councils will have a significant

role in describing and identifying EFH, in considering threats to EFH,

and in selecting conservation measures to enhance EFH. The rule

encourages the establishment of agreements between the Secretary and

appropriate Council(s) to facilitate provision of Council EFH

conservation recommendations to Federal and state agencies.

Comment: Several non-fishing industry groups were concerned that

the Councils might institute their own, completely different

consultation process. Those commenters urged that NMFS should be the

only point of contact.

Response: The Magnuson-Stevens Act does not require Federal

agencies to consult with the Councils, although Federal agencies are

required to respond to Council comments and recommendations. NMFS and

the Councils will be developing agreements to minimize duplication when

dealing with action agencies, but Councils will have the ability to act

on their own.

32. Comments on the Determination of Adverse Impact

Comments: Several commenters asked that the rule clarify who

determines adverse effects.

Response: The action agency is responsible for making an initial

determination of whether its activity is going to have an adverse

effect on EFH. If NMFS becomes aware of an action that appears to have

an adverse effect, and the action agency has not initiated

consultation, NMFS may advise the action agency of its concerns and

request the initiation of consultation. If the action agency does not

initiate consultation, NMFS still has the responsibility to provide EFH

conservation recommendations to which the action agency must respond

within 30 days of receipt. The rule contains additional language to

clarify this process.

[[Page 66545]]

33. Comments on the Use or Development of General Concurrences (GCs)

Comments: Several commenters felt the criteria for GCs were

ambiguous.

Response: The wide range of actions that may affect EFH makes it

impossible to implement more specific criteria for GCs. GCs,

established for actions that cause no greater than minimal adverse

impact on EFH, will be developed on a case-by-case basis in response to

specific programs, activities, habitats, species, and areas. GCs

developed for actions that affect HAPCs should be subject to a higher

level of scrutiny. GCs will be developed through a public process to

allow participation by all interested parties.

Comment: Several Councils believe that GCs should not restrict them

from commenting on activities.

Response: GCs are agreements between Federal action agencies and

NMFS. Each GC will be developed in coordination with the Councils to

improve agreement on which activities have minimal impacts both

individually and cumulatively. The informal Council role in developing

each GC is separate from the Councils' authority to provide comments

and recommendations to Federal and state action agencies and will not

restrict Councils from commenting on any action that may affect EFH.

Comments: Several commenters suggested that NMFS should track all

activities covered by GCs.

Response: NMFS will ask each Federal action agency to track

activities they authorize that are covered by a GC. Tracking and

providing information to NMFS may be a GC requirement. NMFS may

maintain its own tracking system for specific issues that warrant

special attention based on geography, habitat types, species, or other

factors.

Comment: An interstate commission commented that the rule should

require that GCs be reviewed every 5 years. The commission also

suggested that NMFS clarify that GCs it initiates will be subject to

public review before issuance.

Response: The rule states that NMFS will periodically review and

revise its findings of general concurrence, as appropriate. It is NMFS'

intent to conduct this review at least once every 5 years. The rule

also requires that GC tracking information be made available to the

public annually. Such information will allow the public to review GCs

prior to NMFS' review and revision. Additionally, the rule states that

NMFS will provide an opportunity for public review prior to the

issuance of a GC, even those initiated by NMFS.

34. Comments on the Use of Appropriate Level of Consultation

Comment: Several Federal agencies requested clarification on what

triggers the expanded consultation. They sought guidance on whether the

action agency or NMFS can initiate expanded consultation.

Response: The rule has been clarified to address this comment.

Expanded consultation is appropriate when a proposed action may have

substantial adverse impacts on EFH. The action agency determines the

appropriate level of consultation. However, if NMFS feels that a

proposed action will have substantial effects on EFH and its concerns

are not receiving proper consideration, NMFS may request expanded

consultation.

35. Comments on EFH Assessments

Comments: Some commenters supported the standard of ``best

scientific information'' that is mandated in the Federal consultation

and EFH Assessment section of the rule. They felt that all portions of

the EFH rule should specify the same standard.

Response: NMFS applies the best scientific information standard

throughout the rule. When describing and identifying EFH, Councils

should seek the broadest possible information base, since the data are

widely scattered among various state and Federal agencies, university

or private researchers, and diverse fishery participants. Best

professional judgment will be required to properly weigh all data

collected regarding habitat usage for the various life history stages

of the managed species. With respect to assessing the effects of both

fishing and non-fishing activities on EFH, the rule states that the

best scientific information available should be used, but that other

appropriate sources of information may also be considered. This

standard is appropriate and consistent with national standard 2 that

requires all FMP conservation and management measures to be based on

the best scientific information available. EFH Assessments during

Federal consultation should also be based on best scientific

information available. An action agency's conclusions regarding the

potential adverse impact of an action on EFH should be well supported

by relevant research, when available. Conclusions that are contrary to

the readily available information will not be considered adequate

assessment of adverse effects.

Comment: One commenter was concerned that an EFH Assessment would

be required for actions with any adverse impact on EFH and suggested

that NMFS establish a threshold level of adverse impact, preferably the

NEPA significance threshold, for when such an assessment would be

required.

Response: The Magnuson-Stevens Act requires Federal action agencies

to consult with NMFS on any action that may adversely affect EFH. The

requirement for an EFH Assessment is a mechanism to improve the

efficiency of the consultation process. The level of detail in the EFH

Assessment should be commensurate with the potential impact. If the

action's impacts will be minimal, then it may qualify for a GC and no

EFH Assessment would be required.

Comment: One commenter criticized NMFS for allowing the use of a

completed EFH Assessment for other similar actions because of temporal

and spatial differences in adverse impacts on EFH.

Response: The rule states that completed EFH Assessments may be

used for other actions only if the proposed action involves similar

impacts to EFH in the same geographic area or a similar ecological

setting.

36. Comments on the Establishment of Timelines in the Consultation,

Recommendation, and Response Processes

Comment: Several commenters sought clarification on timelines for

NMFS action in consultation process. Some commenters were concerned

that the consultation process would slow projects. Others expressed

concern that NMFS would delay projects while preparing their

recommendations.

Response: The timelines presented in the proposed rule have been

clarified in this rule. If an existing process is used to meet the EFH

consultation requirement, NMFS will work within that procedure's

specified timelines, assuming that NMFS receives timely notification of

the action. NMFS has clearly established timelines for preparation and

submission of its recommendations during consultation. For example, the

interim final rule requires NMFS to respond to Federal action agencies

within 30 days during abbreviated consultation and within 60 days

during expanded consultation. Those timelines may be adjusted based on

mutual agreement between the action agency and NMFS (e.g., a compressed

schedule for special situations).

Comment: Several commenters suggested that NMFS should not extend

the time for the consultation process without concurrence from the

Federal action agency.

[[Page 66546]]

Response: That has always been NMFS's intent and the rule has been

modified to clarify that intent.

Comment: One commenter suggested that NMFS extend the time required

for a Federal action agency to respond to a NMFS recommendation from 30

to 90 days.

Response: The deadline for Federal agency response is established

in the Magnuson-Stevens Act and can not be extended by regulation.

Comment: One commenter stated that the rule should clarify that if

NMFS does not respond to a Federal action agency's request for

consultation, the action agency may proceed with the action.

Response: The rule states that Federal action agencies will have

fulfilled their consultation requirement after submittal of a complete

EFH Assessment to NMFS. The Magnuson-Stevens Act requires Federal

agencies to consult with NMFS and NMFS is required to provide

recommendations as part of that consultation. Federal agencies and NMFS

will follow the requirements of the statute and the rule.

37. Comments on Supplemental Consultation

Comment: Three commenters want supplemental consultation deleted

from the interim final rule.

Response: NMFS reconsidered the entire consultation process during

its analysis of comments received on the proposed rule. The Agency

concluded that supplemental consultation is an important element of the

EFH rule. A Federal action agency must reinitiate consultation with

NMFS if the agency substantially revises its plans for an action in a

manner that may adversely affect EFH or if new information becomes

available that affects the basis for NMFS' EFH conservation

recommendations. This rule clarifies the language on supplemental

consultation.

38. Comments on NMFS' EFH Conservation and Enhancement Recommendations

Comments: Comments from several industry interests and one Federal

agency urged NMFS not to recommend measures that are impracticable, too

costly, or beyond the action agency's authority.

Response: NMFS will use scientific assessments of impacts on EFH as

the basis for conservation recommendations. NMFS agrees that its

recommendations should be practical and cost-effective, but it is not

NMFS' statutory responsibility to conduct a benefit/cost analysis or to

do a public interest test. NMFS expects that action agencies will make

their own decisions about the practicality and economic aspects of the

EFH conservation recommendations as part of their review of proposed

actions. NMFS will not make recommendations that are beyond the action

agency's authority.

39. Comment on Federal Action Agency Response to NMFS EFH

Recommendations

Comment: One commenter stated that NMFS has no statutory authority

to require Federal action agencies to provide the scientific

justification for disagreeing with a NMFS EFH conservation

recommendation.

Response: As stated previously, section 305(d) of the Magnuson-

Stevens Act gives the Secretary authority to issue regulations to carry

out any provision of this Act. Therefore, NMFS has the authority to

issue regulations detailing how Federal action agencies should respond

to NMFS' EFH recommendations. The requirement to provide scientific

justification applies to disagreements over the anticipated adverse

effects of the proposed action and elaborates on the requirements of

section 305(b)(4)(B) of the Magnuson-Stevens Act that a Federal agency

explain its reasons for disagreeing with the NMFS EFH conservation

recommendation. Federal action agencies may also include discussions of

non-scientific issues (e.g., lack of legal authority to carry out the

recommendation or economic in feasibility) in their response.

40. Comments Regarding the Interpretation of Anadromous

Comments: Several commenters were confused by the use of the term

``anadromous fishery resource'' in the rule and how such species and

their habitat are covered by the EFH mandate.

Response: NMFS included this section in the rule to clarify the

meaning of the term ``anadromous fishery resource under a Council's

authority,'' as it applies to a Council's commenting responsibilities

under section 305(b)(3)(B) of the Magnuson-Stevens Act. Anadromous fish

are treated differently from other fishery resources in the Magnuson-

Stevens Act. Section 3 of the Magnuson-Stevens Act defines ``anadromous

species'' as ``fish which spawn in fresh or estuarine waters of the

United States and which migrate to ocean waters.'' It further defines

``fishery resources'' as ``any fishery, any stock of fish, any species

of fish, and any habitat of fish.'' In Sec. 600.930(c)(4) of this

interim final rule, ``an anadromous fishery resource under a Council's

authority'' is described as an anadromous species that inhabits waters

under the Council's authority at some time during its life. Although

EFH is identified only for species managed under an FMP, the Magnuson-

Stevens Act requires Councils to comment on any activity that is likely

to substantially affect the habitat of an anadromous fishery resource

under its authority.

41. Comments on Extending the Deadline for Councils To Submit FMP

Amendments to the Secretary

Comments: Several commenters asked NMFS to extend the deadline for

Councils to submit EFH FMP amendments to the Secretary one year beyond

the October 11, 1998 deadline.

Response: The Sustainable Fisheries Act, Pub. L. 104-297, requires

that each Council submit to the Secretary amendments to each of their

FMPs to comply with the amendments of the Act by October 11, 1998. The

Secretary does not have the authority to extend this statutory deadline

through regulation.

42. Comment on How the NMFS National Habitat Plan Relates to

Implementation of the EFH Mandate

Comment: One Council commented that the rule should discuss the

relationship between the NMFS National Habitat Plan (NHP) and the EFH

mandate of the Magnuson-Stevens Act.

Response: The major themes of the NHP: better integrate habitat and

fishery management; promote habitat restoration as a routine part of

fisheries and habitat management; expand habitat conservation to assess

and manage habitat degradation on a watershed scale; expand

understanding of the interrelationships between habitat quality and

quantity and the healthy of fisheries, are woven throughout the rule.

43. Comments on Consistency With Coastal Zone Management Plans

Comments: Several state agencies commented concerning consistency

with their states' federally approved Coastal Zone Management Programs

(CZMP). There was general agreement that the intent of the rule was

consistent with CZMPs. Several of the state agencies cautioned that the

FMP amendments and their site-specific actions that result from

compliance with these regulations would require further review for

consistency.

Response: NMFS agrees with this analysis. These regulations guide

the Councils in amending FMPs, and detail procedures for NMFS, the

Councils, and Federal and state action agencies to use in meeting the

EFH requirements of the

[[Page 66547]]

Magnuson-Stevens Act. Analysis of the effects of specific EFH

amendments to FMPs at this time would be purely speculative; they are

not reasonably foreseeable. EFH amendments to FMPs will be submitted to

state coastal zone agencies. CZMP consistency will be determined for

each FMP EFH section, as is required for all Federal FMPs.

44. Comments on the EA Prepared for the Rulemaking

Comments: Some non-fishing industry commenters questioned the

preparation of an EA, rather than an Environmental Impact Statement

(EIS), and the finding of no significant impact.

Response: In compliance with NEPA, NMFS prepared an EA for the

regulations implementing EFH requirements of the Magnuson-Stevens Act.

The environmental review process led to the conclusion that this action

will not have a significant effect on the human environment. The rule

provides guidelines to the Councils to assist them in developing EFH

sections in FMPs. The rule itself does not establish any new regulatory

jurisdiction for NMFS or the Councils over these habitats, but it does

provide procedures for NMFS, the Councils, and Federal and state action

agencies to use in coordinating, consulting, and providing

recommendations on actions that may adversely affect EFH. NEPA

documentation will be undertaken for each EFH FMP amendment, as is

currently done, to fully address FMP-specific effects of EFH

implementation. Therefore, an EIS is not required by section 102(2)(C)

of NEPA or its implementing regulations.

45. Comments on NMFS' Determination of Significance for the Purposes of

E.O. 12866

Comments: One commenter disagreed with NMFS's determination that

the rule is not significant for purposes of E.O. 12866 because NMFS did

not consider whether the proposed rule was duplicative or inconsistent

with existing regulations, and interfered with actions by other

agencies. Another commenter did not give the basis for its

disagreement.

Response: NMFS continues to believe that the rule does not meet any

of the criteria for a significant regulatory action established in E.O.

12866, including those mentioned in the comment. This rule establishes

procedures for coordination, consultation, and recommendations to other

agencies on actions that may adversely affect EFH. The consultations

will be fit into existing procedures whenever possible, and when this

is not possible, will be fit into the other agency's time frame for

decision-making. The EFH conservation recommendations are not

mandatory, but will be part of the action agency's decision-making

process. Therefore, the rule does not meet E.O. 12866's requirements

for significance.

46. Comments on NMFS' Regulatory Flexibility Act Determination

Comments: One commenter agreed with NMFS that no regulatory

flexibility analysis needs to be prepared now, but that regulations

affecting EFH will be subject to the analysis. Other commenters

disagreed with NMFS' conclusion that the rule would not have a

significant economic impact on a substantial number of small entities

engaged in non-fishing activities and requested that NMFS prepare a

regulatory flexibility analysis.

Response: NMFS does not have mandatory authority over non-fishing

interests. NMFS provides EFH conservation recommendations to a Federal

or state action agency if their action may adversely affect EFH. The

action agency considers the recommendation in its decision-making

process and decides for itself whether it will impose any requirements

on the entity seeking a permit or license and assess any economic

impact on small entities. Additionally, the consultation process itself

should not impose any additional burdens on small businesses engaged in

non-fishing activities because the Federal action agency will most

likely use existing consultation/environmental review procedures. If

there are no existing consultation procedures, then the procedures in

the rule must be used by the Federal agency. The information requested

in the rule is material that the action agency already will need to

make its decision on issuing a permit or license. Therefore, there will

be no additional burden on small businesses engaged in non-fishing

activities.

47. Comments on NMFS' determination That a Federalism Assessment is not

Required

Comments: Commenters expressed the opinion that NMFS' determination

is incorrect that this rule does not include policies with federalism

implications requiring preparation of a Federalism Assessment. This

rule does not contain policies that have a substantial direct effect on

the states, on the relationship between the National government and the

states, or on the distribution of power or responsibilities among the

various levels of government. Some commenters stated that while EFH

conservation recommendations are not mandatory, the states will be

pressured to comply with the recommendations. One commenter stated that

the process to guide the agencies is mandatory and therefore raises

federalism issues. Other commenters raised the concern that because EFH

may be identified in state waters, and many adverse impacts may occur

there, a federalism assessment should be prepared.

Response: NMFS disagrees with the commenters and continues to take

the position that the rule does not contain policies that have

federalism implications sufficient to warrant preparation of a

Federalism Assessment. States are not required to consult with NMFS on

their actions that may adversely affect EFH. As stated in the

Classification section of the rule, NMFS EFH conservation

recommendations are not mandatory, and states are not required to

undertake action in any way not of their own choosing.

48. Comments on NMFS Compliance With the Paperwork Reduction Act

Comments: Two commenters expressed their opinion that NMFS has not

complied with the Paperwork Reduction Act (PRA) because the rule

neither displays an Office of Management and Budget (OMB) control

number nor states that the rule is not subject to OMB review. They

stated that the proposed rule is clearly a collection of information

subject to the PRA. They claim that this will be a big burden on many

entities.

Response: Commenters correctly state that the PRA requires OMB

approval before NMFS may require a collection of information. However,

they overlook the regulatory definition of information in 5 CFR

1320.3(h)(4) stating that information does not generally include

``facts or opinions submitted in response to general solicitations of

comments from the public published in the Federal Register * * *

regardless of the form * * *''. The rule clearly fits the regulatory

exemption for information and therefore is not subject to OMB approval.

As such, it does not need either an OMB control number or a statement

that the rule is not a collection of information.

49. Comments on Compliance With the ESA

Comments: Two commenters stated they think that promulgation of the

rule is an action that may affect listed species, requiring

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

Response: NMFS complied with the ESA by requesting the U.S. Fish

and Wildlife Service (FWS) and NMFS'

[[Page 66548]]

office that handles ESA issues to concur with its determination that

the proposed activity is not likely to adversely affect listed species.

Both responded to NMFS stating their concurrence that the EFH rule is

not likely to adversely affect listed species.

Changes From the Proposed Rule

The proposed rule contained guidelines to the Councils and

procedures addressing the requirements to coordinate, consult, and

recommend under the EFH provisions of the Magnuson-Stevens Act. The

guidelines to the Councils will be in part 600 subpart J, but NMFS has

determined that the regulations on coordination, consultation, and

recommendation should be moved to a separate subpart, K. This provides

easier access to the regulations, clarification of purpose, and still

maintains their proximity to subpart J so that the implications of EFH

designation are readily apparent. This is not a substantive change from

the proposed rule.

NMFS reorganized parts of the coordination, consultation, and

recommendation procedures by addressing use of existing procedures

before the regulatory requirements for GCs, and abbreviated and

expanded consultation. The use of existing procedures section includes

more detail. NMFS reordered this section and expanded it in response to

commenter's concerns that consultation could be duplicative with

existing consultation/environmental review procedures.

Changes made are technical or administrative in nature and clarify

intent or otherwise enhance administration of the EFH process. These

changes are listed in the order that they appear in the regulations;

grammatical or other minor changes are not detailed. Unless otherwise

discussed, the rationale for why changes were made from the proposed

rule is contained in the Comments and Response section.

In Sec. 600.10, ``aquatic'' was added to the interpretation of

historically used areas of EFH.

In Sec. 600.10, ``the managed species' contribution to'' was added

to denote that the healthy ecosystem is the local ecosystem in which

the managed species participates.

In Sec. 600.805, references to the consultation procedures required

by the Magnuson-Stevens Act have been removed since these regulations

have been separated into a new subpart as noted above.

In Sec. 600.805, a new paragraph was added to describe the

geographic scope of EFH and clarify the relationship of the regulations

to Federal waters, state waters, and extraterritorial waters.

Section Sec. 600.810 was changed to add ``Definitions and Word

Usage'' for terms specific to this subpart; subsequent sections were

renumbered.

Section 600.815 was renumbered from Sec. 600.810.

In Sec. 600.815, paragraph (a)(2)(i)(B), the phrase ``the habitat

requirements by life stage, and the distribution and characteristics of

those habitats'' was added to be consistent with later sections

regarding information on the habitat; the phase ``but not limited to''

was added to emphasize that this list is intended to be illustrative

not exhaustive; ``or formerly occupied'' was added to correct the

language to agree with the definition of EFH.

In Sec. 600.815, paragraph (a)(2)(i)(C), ``should'' was substituted

for ``will be'' to emphasize that Councils should use information from

all levels that are available.

In Sec. 600.815, paragraph (a)(2)(i)(C)(2), ``relative densities''

was changed to ``density or relative abundance'' as more scientifically

acceptable language; ``gear'' was changed to ``methods'' to include

different techniques using the same gear.

In Sec. 600.815, paragraph (a)(2)(ii)(A), the phrase ``erring on

the side of inclusiveness'' was deleted because it is redundant with

the concept of identifying EFH in a ``risk-averse fashion.'' Wording

has been changed to clarify that Level 1 information ``should be used

to identify the geographic range'' of a species, Levels 2-4 information

should be used to identify EFH within that range. If only Level 1 data

exist, appropriate analyses should be used to identify EFH based on

utilization of habitats. The sentence, ``Councils must demonstrate that

the identification of EFH is based on the best scientific information

available, consistent with national standard 2'' was added to clarify

that Councils must use all available information to focus their

identification of EFH.

In Sec. 600.815, paragraph (a)(2)(ii)(B), references to populations

recovering from ``declines'' were removed in favor of the terms

``overfished'' or ``rebuilding the fishery,'' which are more commonly

used fishery management terms. NMFS added the phase ``and habitat loss

or degradation may be contributing to the species being identified as

overfished'' to clarify that habitat limitations should be considered

when identifying historic habitat as EFH. ``Once the fishery is no

longer considered overfished, the EFH identification should be

reviewed, and the FMP amended, as appropriate'' was added to clarify

the dynamic nature of EFH identification.

In Sec. 600.815, paragraph (a)(2)(ii)(C), ``aquatic areas'' has

been added to clarify that the statutory definition limits EFH to

aquatic portions of ``critical habitat.''

In Sec. 600.815, paragraphs (a)(2)(ii)(D) and (E), the phrase ``a

sustainable fishery and the managed species' contribution to a healthy

ecosystem'' replaced ``target production goal.''

In Sec. 600.815, paragraph (a)(2)(ii)(E), the listing of ecological

roles to be considered in determining EFH has been removed, these

ecological factors are considered broadly in the national standards.

Councils should address these needs on a case-by-case basis.

In Sec. 600.815, paragraph (a)(2)(ii)(F), ``aquatic'' is added to

qualify ``degraded or inaccessible habitat'' to clarify that this is

not intended to be dry land.

In Sec. 600.815, paragraphs (a)(3), (a)(4), and (a)(5), have been

reordered to strengthen the connections between EFH identification and

description and the management of fishing activities that may adversely

affect EFH as suggested by commenters. Non-fishing activities are

addressed under Sec. 600.815(a)(5).

In Sec. 600.815, paragraph (a)(3)(ii), the phrase ``fishing

equipment'' has replaced ``fishing gear'' to encompass all sources of

fishing-related adverse impacts to EFH; the wording clarifies that

``best scientific data'' should be used but that other ``appropriate

information sources'' should be considered. The wording also clarifies

for the Councils that gear assessments should include effects on all

EFH types potentially impacted (especially HAPC) and Councils should

evaluate relative impacts.

In Sec. 600.815, paragraph (a)(3)(iii), ``identifiable'' replaces

``substantial.'' The phrase ``and cumulative impacts analysis''

clarifies that fishing impacts should be included in an analysis of

cumulative impacts on EFH.

In Sec. 600.815, paragraph (a)(3)(iv) clarifies that consideration

should be given to long- and short-term benefits and costs to both EFH

and the fishery when assessing management actions. ``EFH'' is

substituted for ``the marine ecosystem'' to improve consistency with

the Magnuson-Stevens Act.

In Sec. 600.815, paragraph (a)(4)(i) is retitled ``Fishing

equipment restrictions.'' NMFS replaced the list of mixed general and

specific examples of fishing types with more general examples of

potential gear restrictions.

In Sec. 600.815, paragraph (a)(4)(ii), wording was added to clarify

that ``marine protected areas'' can be used for management of adverse

effects on

[[Page 66549]]

EFH, as well as research on fishing equipment impacts; especially in

HAPC.

In Sec. 600.815, paragraph (a)(5) is a consolidation of

Sec. 600.810 (a)(3) paragraphs (i) and (ii) from the proposed rule.

In Sec. 600.815, paragraph (a)(5), illustrative examples of

``activities which can adversely affect EFH'' were made more consistent

so that broad actions, not industries potentially causing those

actions, were highlighted. The phrases, ``actions that contribute to

non-point source pollution and sedimentation'' and ``introduction of

potentially hazardous materials'' were added for clarity in place of

``runoff'' and ``placement of contaminated material.'' The mapping

provisions specific to this section were moved from the Cumulative

Impacts Analysis section of the proposed rule.

Section 600.815, paragraph (a)(6)(i), clarifies that fishing

effects as well as non-fishing impacts on EFH should be subject to

cumulative impacts analysis, separately and in concert. NMFS added the

term ``feasible'' to emphasize that a cumulative impacts analysis may

not be possible because of technological or other limitations. NMFS

replaced the phrase ``natural stresses'' with ``natural adverse

impacts''. NMFS changed the wording to avoid misinterpretation of

``ecological risk assessment'' as a formalized toxicological test.

In Sec. 600.815, paragraph (a)(6)(ii) was split out from the

cumulative impacts section to emphasize cumulative impacts from fishing

and to highlight that HAPCs should be examined for cumulative effects.

In Sec. 600.815, paragraph (a)(6)(iii) splits the mapping of

cumulative impacts into a separate paragraph.

In Sec. 600.815, paragraph (a)(6)(iv) ``Research needs,'' was added

to emphasize that Councils should pursue research efforts geared to

understand ecosystem and watershed effects on fish populations and

incorporate them into their protection of EFH if they are unable to

conduct cumulative impacts analyses.

In Sec. 600.815, paragraph (a)(7) was renumbered from paragraph

(a)(3)(iv) and reordered. NMFS modified the language to emphasize that

the preferred approach to EFH conservation should be to avoid,

minimize, or compensate for adverse effects on EFH from specific

actions to focus EFH conservation efforts. NMFS added ``especially in

habitat areas of particular concern.''

In Sec. 600.815, paragraphs (a)(7)(ii)(A), (B), (C), and (D) have

been renumbered from paragraphs (a)(3)(iv)(A-F) of the proposed rule

reflecting the incorporation of the wording from paragraph

(a)(7)(ii)(A) (proposed rule) into the previous paragraph mentioned,

and titles were generally modified for grammatical consistency.

Language was added to clarify that conservation measures presented in

these paragraphs are illustrative of measures that Councils may

consider to proactively or reactively address past or present adverse

effects to conserve and enhance EFH.

In Sec. 600.815, paragraph (a)(7)(iii)(A) has been retitled

``Enhancement of rivers, streams, and coastal areas.'' Paragraph

(a)(3)(iv)(C) from the proposed rule has been incorporated into this

paragraph. The phrase ``modification of operating procedures for dikes

and levees'' was added to clarify that removal is not always the

preferred option for providing fish passage. The final sentence in the

paragraph was added to emphasize governmental planning in watershed

management.

In Sec. 600.815, paragraph (a)(7)(iii)(B), ``and quantity'' has

been added to the title; and ``providing appropriate in-stream flow''

has been added to reflect general options to apply to all regions.

In Sec. 600.815, paragraph (a)(7)(iii)(C), ``subsequent watershed''

was deleted from the title. Specific examples have been replaced by

more general examples of watershed-scale conservation and enhancement

options.

In Sec. 600.815, paragraph (a)(7)(iii)(D), the example has been

deleted since it may be only regionally applicable; ``(converting non-

EFH to EFH)'' was added for clarity; ``and degraded'' has been added to

clarify that such areas may be appropriate for enhancement through

habitat creation; ``conversion'' was included as a synonym for

``creation;'' ``within an ecosystem context'' has been added for

clarity.

In Sec. 600.815, paragraph (a)(8), ``and their habitat'' has been

added to better explain how prey species should be addressed. Language

was added to explain why adverse impacts to prey and prey habitat may

be adverse impacts to EFH.

In Sec. 600.815, paragraph (a)(9) has been renumbered from

paragraph (a)(7) of the proposed rule and retitled ``Identification of

habitat areas of particular concern;'' language has been included to

denote that HAPC might include not only those areas especially

vulnerable to degradation, but those that provide important ecological

functions for one or more managed species; the paragraphs have been

renumbered after the inclusion of paragraph (i), The importance of the

ecological function provided by the habitat.

In Sec. 600.815, paragraph (a)(10) has been renumbered from

paragraph (a)(8) of the proposed rule; ``cumulative impacts from

fishing,'' ``priority,'' ``and a schedule for obtaining that

information'' have been added; ``equipment'' replaced ``gear;''

``maintaining a sustainable fishery and the managed species'

contribution to a healthy ecosystem'' replaces ``reaching target long-

term production levels.'' All of these changes were made to ensure that

this section is consistent with other parts of the rule.

In Sec. 600.815, paragraph (a)(11) has been renumbered from

paragraph (a)(9) of the proposed rule; ``including an update of the

equipment assessment originally conducted pursuant to paragraph

(a)(3)(ii) of this section'' has been added, as has been ``This

information should be reviewed as part of the annual Stock Assessment

and Fishery Evaluation (SAFE) report prepared pursuant to

Sec. 600.315(e)'' and ``complete.''

In Sec. 600.815, paragraph (c), language has been added to clarify

that NMFS EFH FMP recommendations may include ``other appropriate

information.'' Language was added to acknowledge differences between

Council procedures in preparing FMPs and to assure the flexibility to

work within each process.

In Sec. 600.815, paragraph (d) has been added to encourage

coordination with other fishery management authorities.

The consultation, coordination, and recommendation provisions in

the proposed rule have been separated out into a new subpart K of part

600.

Sections 600.905, 600.915, 600.920, 600.925, and 600.930 have been

reorganized from the proposed rule's Sec. 600.815 to provide better

access and understanding to the provisions. Each of the provisions that

applies to a different part of the Magnuson-Stevens Act has been

separated into a different section to highlight the different

requirements in response to many commenters who failed to recognize the

distinctions between coordination, consultation, and commenting (or

providing recommendations) and the entities involved in each process.

Section 600.905 has been added to clarify the intent of these

provisions in promoting the protection of EFH in the review of Federal

and state actions that may adversely affect EFH.

Section 600.905(c) has been revised adding language to emphasize

cooperation between Councils and NMFS in all phases of EFH

implementation. The clarification that ``NMFS and the Councils also

have the

[[Page 66550]]

authority to act independently.'' has been added.

Section 600.910 has been added for definitions and word usage that

apply to this subpart.

Section 600.915 has been renumbered and expanded to provide the

details of the coordination between NMFS and other action agencies and

to indicate that NMFS will take a proactive approach in promoting the

conservation of EFH.

Section 600.920 has been revised to combine all sections of the

Federal agency consultation provisions in a more organized fashion. The

proposed rule recommended incorporation of EFH consultations with other

existing environmental reviews, but this was overlooked by some

commenters. These sections clarify the details of appropriate

consultation and emphasize that NMFS' preference is for consultations

to occur within existing consultation/environmental review procedures,

whenever possible.

Section 600.920, paragraphs (a) (1) and (2) were added to provide

specific information on which Federal actions require consultation, and

the use of programmatic consultation.

In Sec. 600.920, paragraph (d), language has been added to clarify

that ``other appropriate sources of information may also be

considered'' when evaluating the effects of a proposed action on EFH.

In Sec. 600.920, paragraph (f)(1), ``minimal'' has been changed to

``no more'' than minimal.

Section 600.920, paragraph (f)(2)(ii) clarifies the requirements

for tracking actions included in General Concurrences.

Section 600.920, paragraph (f)(2)(iv) explains that in HAPC,

activities will be held to a greater level of scrutiny before being

granted a General Concurrence.

In Sec. 600.920, paragraph (f)(4), ``if appropriate'' has been

added.

Section 600.920, paragraph (g)(1) has been rewritten to improve

clarity.

Section Sec. 600.920, paragraph (g)(2)(iv), has been moved from the

Additional information section.

In Sec. 600.920, paragraph (g)(3)(iv), ``particularly when an

action is non-water dependent'' has been added to emphasize

alternatives when an action is not water dependent.

In Sec. 600.920, paragraph (h)(1) contains additional criteria to

determine when abbreviated consultation is appropriate.

In Sec. 600.920, paragraph (h)(2), ``must'' was changed to

``should'' and language was added to clarify when notification should

be sent to a Council.

In Sec. 600.920, paragraph (h)(5), language on combining EFH

Assessments with other environmental reviews was deleted because the

same concept is included in Sec. 600.920(e)(2).

In Sec. 600.920, paragraph (i)(1) contains additional explanation

of the intent of expanded consultation and criteria to determine when

expanded consultation is appropriate.

In Sec. 600.920, paragraph (i)(3) provides additional clarification

regarding NMFS' response to Federal agencies during expanded

consultation.

In Sec. 600.920, paragraph (i)(4) clarifies that there is

flexibility in the schedules for consultation; ``or emergency

situation'' has been added, and the NMFS deadline has been changed from

90 to 60 days.

In Sec. 600.920, paragraph (i)(5), ``must'' has been changed to

``should.''

Section 600.920, paragraph (j)(2) has been retitled ``Further

review of decisions inconsistent with NMFS or Council recommendations''

from ``Dispute resolution;'' language has been added to describe

actions available in the case when an action agency's decision is

inconsistent with NMFS or the Council's EFH conservation

recommendations.

Section 600.920, paragraph (j)(1) has been rewritten to improve

clarity.

In Sec. 600.925, paragraph (c), ``use existing coordination

procedures under statutes such as the Coastal Zone Management Act or

establish new'' and other language has been added to further encourage

the use of existing procedures to coordinate with state agencies, and

to encourage sharing information with states.

In Sec. 600.925, paragraph (a), language has been added stating

that NMFS will not make recommendations beyond a Federal agency's

authority.

In Sec. 600.925, paragraph (b) has been added to clarify the

relationship between Federal consultation and providing EFH

conservation recommendation to Federal agencies.

Classification

The Assistant Administrator for Fisheries (AA), NMFS, has

determined that this interim final rule is consistent with the

Magnuson-Stevens Act and other applicable laws.

NMFS prepared an EA for this interim final rule, and the AA

concluded that there will be no significant impact on the human

environment as a result of this rule. The regulations contain

guidelines to the Councils for amending FMPs in accordance with the EFH

requirements of the Magnuson-Stevens Act, and procedures to be used by

NMFS, the Councils, and Federal and state action agencies to satisfy

the coordination, consultation, and recommendation requirements of the

Magnuson-Stevens Act. Any specific effects on the human environment

will be addressed in NEPA documents prepared for individual FMP

provisions that are prepared pursuant to this rule. A copy of the EA is

available from NMFS (see ADDRESSES).

This interim final rule has been determined to be not significant

for the purposes of E.O. 12866. Each EFH amendment to an existing FMP

and all new FMPs will contain detailed analyses of the benefits and

costs of the management programs under consideration, to ensure

compliance with E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule would not have a

significant economic impact on a substantial number of small entities.

NMFS received comments regarding this certification. As addressed

earlier, NMFS' consideration of these comments did not cause it to

change its determination regarding the certification. This rule

establishes guidelines for Councils to identify and describe EFH,

including adverse impacts, and conservation and enhancement measures.

The regulations require that the Councils conduct assessments of the

effects of fishing on EFH within their jurisdiction. The Magnuson-

Stevens Act requires the Councils to examine their existing FMPs and

all future FMPs and amend them as required to comply with the EFH

guidelines in this rule. These guidelines are intended to provide

direction on compliance with the EFH provisions and in themselves, do

not have the force of law. Should Councils establish regulations on

fishing as a result of the guidelines and the assessment of fishing

equipment, that action may affect small entities and could be subject

to the requirement to prepare a Regulatory Flexibility analysis at the

time they are proposed. Any future effects on small entities that may

eventually result from amendments to FMPs to bring them into compliance

with the Magnuson-Stevens Act would be speculative at this time.

Finally, the consultation procedures establish a process for NMFS to

provide conservation recommendations to Federal and state action

agencies. However, because compliance with NMFS recommendations is not

mandatory, any effects on small businesses would be speculative. As a

result, a regulatory flexibility analysis was not prepared.

For the purposes of E.O. 12612, the AA has determined that this

interim

[[Page 66551]]

final rule does not include policies that have federalism implications

sufficient to warrant preparation of a Federalism Assessment. This rule

establishes procedures for coordination between the states and NMFS or

the Councils in situations where state action may adversely impact EFH.

The rule states that, in such circumstances, NMFS or the Councils would

furnish the state with EFH recommendations. NMFS EFH conservation

recommendations are not mandatory, and the states are not required to

expend funds in a way not of their own choosing.

References

Christensen, N.L., A.M. Bartuska, J.H. Brown, S. Carpenter, C.

D'Antonio, R. Francis, J.F. Franklin, J.A. MacMahon, R.F. Noss, D.J.

Parsons, C.H. Peterson, M.G. Turner, and R.G. Woodmansee. 1996. The

report of the Ecological Society of America committee on the scientific

basis for ecosystem management. Ecological Applications, 6(3): 665-691.

Grumbine, R.E. 1997. Reflections on ``What is Ecosystem

Management?'' Conservation Biology 11(1): 41-47.

Hancock, D.A. (ed.) 1993. Sustainable Fisheries through Sustaining

Fish Habitat, Australian Society for Fish Biology Workshop, Victor

Harbor, SA, 12-13 August, Bureau of Resource Sciences Proceedings,

AGPS, Canberra.

List of Subjects in 50 CFR Part 600

Administrative practice and procedures, Confidential business

information, Fisheries, Fishing, Fishing vessels, Foreign relations,

Intergovernmental relations.

Dated: December 15, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons stated in the preamble, the National Marine

Fisheries Service amends 50 CFR part 600 as follows:

PART 600--[AMENDED]

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

follows:

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

2. Section 600.10 is amended by adding the definition for

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

Sec. 600.10 Definitions.

* * * * *

Essential fish habitat (EFH) means those waters and substrate

necessary to fish for spawning, breeding, feeding, or growth to

maturity. For the purpose of interpreting the definition of essential

fish habitat: Waters include aquatic areas and their associated

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

may include aquatic areas historically used by fish where appropriate;

substrate includes sediment, hard bottom, structures underlying the

waters, and associated biological communities; necessary means the

habitat required to support a sustainable fishery and the managed

species' contribution to a healthy ecosystem; and ``spawning, breeding,

feeding, or growth to maturity'' covers a species' full life cycle.

* * * * *

3. New subparts J and K are added to part 600 to read as follows:

* * * * *

Subpart J--Essential Fish Habitat (EFH)

600.805 Purpose and scope.

600.810 Definitions and word usage.

600.815 Contents of Fishery Management Plans.

Subpart K--EFH Coordination, Consultation, and Recommendations

600.905 Purpose, scope, and NMFS/Council cooperation.

600.910 Definitions and word usage.

600.915 Coordination for the conservation and enhancement of EFH.

600.920 Federal agency consultation with the Secretary.

600.925 NMFS EFH conservation recommendations to Federal and state

agencies.

600.930 Council comments and recommendations to Federal and state

agencies.

Subpart J--Essential Fish Habitat (EFH)

Sec. 600.805 Purpose and scope.

(a) Purpose. This subpart provides guidelines for Councils and the

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

i.e., description and identification of essential fish habitat (EFH),

adverse impacts on EFH (including minimizing, to the extent

practicable, adverse impacts from fishing), and actions to conserve and

enhance EFH.

(b) Scope--(1) Species covered. An EFH provision in an FMP must

include all fish species in the FMU. A Council may describe, identify,

and protect the habitat of species not in an FMU; however, such habitat

may not be considered EFH for the purposes of sections 303(a)(7) and

305(b) of the Magnuson-Stevens Act.

(2) Geographic. EFH may be described and identified in waters of

the United States, as defined in 33 CFR 328.3 and the exclusive

economic zone, as defined in Sec. 600.10. Councils may describe,

identify, and protect habitats of managed species beyond the exclusive

economic zone; however, such habitat may not be considered EFH for the

purposes of section 303(a)(7) and 305(b) of the Magnuson-Stevens Act.

Activities that may adversely impact such habitat can be addressed

through any process conducted in accordance with international

agreements between the United States and the foreign nation(s)

undertaking or authorizing the action.

Sec. 600.810 Definitions and word usage.

(a) Definitions. In addition to the definitions in the Magnuson-

Stevens Act and Sec. 600.10, the terms in this subpart have the

following meanings:

Adverse effect means any impact which reduces quality and/or

quantity of EFH. Adverse effects may include direct (e.g.,

contamination or physical disruption), indirect (e.g., loss of prey, or

reduction in species' fecundity), site-specific or habitat-wide

impacts, including individual, cumulative, or synergistic consequences

of actions.

Council includes the Secretary, as applicable, when preparing

Secretarial FMPs or amendments under sections 304(c) and (g) of the

Magnuson-Stevens Act.

Ecosystem means communities of organisms interacting with one

another and with the chemical and physical factors making up their

environment.

Habitat areas of particular concern means those areas of EFH

identified pursuant to Sec. 600.815(a)(9).

Healthy ecosystem means an ecosystem where ecological productive

capacity is maintained, diversity of the flora and fauna is preserved,

and the ecosystem retains the ability to regulate itself. Such an

ecosystem should be similar to comparable, undisturbed, ecosystems with

regard to standing crop, productivity, nutrient dynamics, trophic

structure, species richness, stability, resilience, contamination

levels, and the frequency of diseased organisms.

Overfished means any stock or stock complex, the status of which is

reported as overfished by the Secretary pursuant to Sec. 304(e)(1) of

the Magnuson-Stevens Act.

(b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'',

``may not'', ``will'', ``could'', and ``can'', are used in the same

manner as in Sec. 600.305(c).

Sec. 600.815 Contents of Fishery Management Plans.

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

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

information on the biological requirements for each life

[[Page 66552]]

history stage of the species. These tables should summarize all

available information on environmental and habitat variables that

control or limit distribution, abundance, reproduction, growth,

survival, and productivity of the managed species. Information in the

tables should be supported with citations.

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

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

fisheries data sources relevant to the managed species should be used

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

identify major 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, the geographic range of the managed species, the

habitat requirements by life history stage, and the distribution and

characteristics of those habitats. Information is also required on the

temporal and spatial distribution of each major life history stage

(defined by developmental and functional shifts). Since EFH should be

identified for each major life history stage, data should be collected

on, but not limited to, the distribution, density, growth, mortality,

and production of each stage within all habitats occupied, or formerly

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

available information, including peer-reviewed literature, data reports

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

and any other sources of quality information.

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

the data necessary for identifying EFH. Information from all levels

should be used to identify EFH. The goal of this procedure is to

include as many levels of analysis as possible within the constraints

of the available data. Councils should strive to obtain data sufficient

to describe habitat at the highest level of detail (i.e., Level 4).

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

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

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

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

potential habitats. Care should be taken to ensure that all potential

habitats have been sampled adequately. In the event that distribution

data are available for only portions of the geographic area occupied by

a particular life history stage of a species, EFH can be inferred on

the basis of distributions among habitats where the species has been

found and on information about its habitat requirements and behavior.

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

available. At this level, quantitative data (i.e., density or relative

abundance) are available for the habitats occupied by a species or life

history stage. Because the efficiency of sampling methods is often

affected by habitat characteristics, strict quality assurance criteria

should be used to ensure that density estimates are comparable among

methods and habitats. Density data should reflect habitat utilization,

and the degree that a habitat is utilized is assumed to be indicative

of habitat value. When assessing habitat value on the basis of fish

densities in this manner, temporal changes in habitat availability and

utilization should be considered.

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

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

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

The habitats contributing the most to productivity should be those that

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

(or life history stage).

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

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

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

location. Essential habitats are those necessary to maintain fish

production consistent with a sustainable fishery and the managed

species' contribution to a healthy ecosystem.

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

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

assess the relative value of habitats. Councils should interpret this

information in a risk-averse fashion, to ensure adequate areas are

protected as EFH of managed species. Level 1 information, if available,

should be used to identify the geographic range of the species. Level 2

through 4 information, if available, should be used to identify the

habitats valued most highly within the geographic range of the species.

If only Level 1 information is available, presence/absence data should

be evaluated (e.g., using a frequency of occurrence or other

appropriate analysis) to identify those habitat areas most commonly

used by the species. Areas so identified should be considered essential

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

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

the ecosystem. Councils must demonstrate that the best scientific

information available was used in the identification of EFH, consistent

with national standard 2, but other data may also be used for the

identification.

(B) If a species is overfished, and habitat loss or degradation may

be contributing to the species being identified as overfished, all

habitats currently used by the species should be considered essential

in addition to certain historic habitats that are necessary to support

rebuilding the fishery and for which restoration is technologically and

economically feasible. Once the fishery is no longer considered

overfished, the EFH identification should be reviewed, and the FMP

amended, if appropriate.

(C) EFH will always be greater than or equal to aquatic areas that

have been identified as ``critical habitat'' for any managed species

listed as threatened or endangered under the Endangered Species Act.

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

EFH for the species should be a subset of all existing habitat for the

species.

(E) Ecological relationships among species and between the species

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

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

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

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

quality of habitat that is necessary to maintain a sustainable fishery

and the managed species' contribution to a healthy ecosystem.

(F) If degraded or inaccessible aquatic habitat has contributed to

the reduced yields of a species or assemblage, and in the judgment of

the Secretary and the appropriate Council(s), the degraded conditions

can be reversed through such actions as improved fish passage

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

measures (removal of contaminants or increasing flows), and similar

measures that are technologically and economically feasible, then EFH

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

obtain increased yields.

(iii) EFH Mapping Requirements. The general distribution and

geographic limits of EFH for each life history stage should be

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

incorporated into a geographic information system (GIS) to

[[Page 66553]]

facilitate analysis and presentation. These maps may be presented as

fixed in time

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