Fisheries of the Exclusive Economic Zone Off Alaska; Amendments for Addressing Essential Fish Habitat (EFH) Requirements

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[I.D. 100698A]

RIN 0648-AL40

Fisheries of the Exclusive Economic Zone Off Alaska; Amendments

for Addressing Essential Fish Habitat (EFH) Requirements

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Notification of approval of fishery management plan amendments.

-----------------------------------------------------------------------

SUMMARY: NMFS announces approval of the following fishery management

plan (FMP) amendments: Amendment 55 to the FMP for the Groundfish

Fishery of the Bering Sea and Aleutian Islands Area; Amendment 55 to

the FMP for Groundfish of the Gulf of Alaska; Amendment 8 to the FMP

for the Commercial King and Tanner Crab Fisheries in the Bering Sea/

Aleutian Islands; Amendment 5 to the FMP for Scallop Fisheries off

Alaska; and Amendment 5 to the FMP for the Salmon Fisheries in the

Exclusive Economic Zone (EEZ) off the Coast of Alaska (Amendments 55/

55/8/5/5). These amendments describe and identify EFH in Alaska, and

risks to that habitat, for groundfish, scallops, salmon, and king and

Tanner crabs.

Under the provisions of the Magnuson-Stevens Fishery Conservation

and Management Act (Magnuson-Stevens Act), Federal agencies must

consult with NMFS, acting for the Secretary of Commerce (Secretary), on

any activity, or proposed activity, authorized, funded, or undertaken,

that may adversely affect EFH. This action is necessary to promote the

protection and conservation of habitat used by FMP species at crucial

stages of their life cycles. It is intended to promote the goals and

objectives of these FMPs.

DATES: The amendments were approved on January 20, 1999.

ADDRESSES: Copies of Amendments 55/55/8/5/5 and the environmental

assessment (EA) prepared for the amendments are available from the

North Pacific Fishery Management Council, 605 West 4th Ave.,

Suite 306, Anchorage, AK 99501-2252; telephone 907-271-2809.

FOR FURTHER INFORMATION CONTACT: Cindy Hartmann, 907-586-7312, or Nina

Mollett, 907-586-7492.

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries

of the Bering Sea and Aleutian Islands Management Area (BSAI) and the

Gulf of Alaska under the FMPs for groundfish in their respective

management areas. With Federal oversight, the State of Alaska (State)

manages the commercial king crab and Tanner crab fisheries in the BSAI,

and the scallop and salmon fisheries off Alaska, under the FMPs for

those fisheries. The North Pacific Fishery Management Council (Council)

prepared these FMPs in accordance with the Magnuson-Stevens Act.

Regulations implementing the FMPs appear at 50 CFR part 679. General

regulations at 50 CFR part 600 also apply.

The following EFH reports, which are referenced in the amendments,

are also available from the Council (see Addresses):

1. Essential Fish Habitat Report for the Groundfish Resources of

the Bering Sea and Aleutian Islands, April 1, 1998.

2. Essential Fish Habitat Report for the Groundfish Resources of

the Gulf of Alaska Region, April 1, 1998.

3. Essential Fish Habitat Report for the King and Tanner Crab

Fisheries in the Bering Sea/Aleutian Islands, March 31, 1998.

4. Essential Fish Habitat Report for the Salmon Fisheries in the

EEZ off the Coast of Alaska, March 31, 1998.

5. Essential Fish Habitat Report for the Scallop Fisheries off the

Coast of Alaska, March 31, 1998.

A Notice of Availability (NOA) of Amendments 55/55/8/5/5, which

described the proposed action and solicited comments from the public

through December 21, 1998, was published in the Federal Register on

October 22, 1998 (63 FR 56601). Eleven letters were received within the

60-day comment period. They are summarized and responded to here.

After review of the amendments and comments received, the

Administrator, Alaska Region, NMFS (Regional Administrator), determined

that Amendments 55/55/8/5/5 are consistent with the Magnuson-Stevens

Act and other applicable laws and approved the amendments on January

20, 1999. These FMP amendments became effective on approval. No

regulatory changes are necessary to implement these FMP amendments.

Background

The Magnuson-Stevens Act mandates increased consideration of fish

habitat in the process of managing and conserving the Nation's

fisheries. Section 303(a)(7) of the Magnuson-Stevens Act requires all

FMPs to describe and identify EFH, which it defines as ``those waters

and substrate necessary to fish for spawning, breeding, feeding or

growth to maturity.'' In addition, FMPs must minimize adverse effects

on EFH caused by fishing and identify other actions to conserve and

enhance EFH.

As required by section 305(b) of the Magnuson-Stevens Act, NMFS

published regulatory guidelines on December 19, 1997 (62 FR 66531,

codified at 50 CFR part 600), to assist regional fishery management

councils in their task of describing and identifying EFH, identifying

adverse impacts on EFH, and identifying actions to conserve and enhance

EFH. In accordance with these procedural guidelines, the Regional

Administrator submitted draft EFH recommendations to the Council on

April 3, 1998, for review and public comment. These draft

recommendations were based on habitat assessment reports drafted by

four technical teams, consisting of Federal and State biologists,

working in cooperation with the Alaska Regional EFH Core Team, whose

members were appointed by the NMFS Deputy Regional Administrator. NMFS

submitted its final recommendations for the EFH amendments at the

Council's June 1998 meeting. The Council adopted the recommended EFH

amendments at that time. The Council submitted the amendments for

Secretarial review on October 5, 1998. NMFS published an NOA for

Amendments 55/55/8/5/5 on October 22, 1998 (63 FR 56601). The contents

of the amendments were provided in the NOA and will not be repeated

here. On January 20, 1999, the

[[Page 20217]]

Regional Administrator approved the five amendments.

EFH Consultation Requirements for Federal Agencies

Section 305(b)(2) of the Magnuson-Stevens Act requires each Federal

agency to consult with the Secretary with respect to any action it has

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

funded, or undertaken, that may adversely affect any EFH identified

under the Magnuson-Stevens Act. On December 19, 1997 (62 FR 66531),

NMFS established procedures under 50 CFR part 600, subpart K, for

implementing the requirements of the Magnuson-Stevens Act for other

agencies to coordinate and consult with NMFS, and to consider NMFS'

recommendations for EFH conservation.

Effective January 20, 1999, Federal agencies must consult with the

Secretary with respect to actions that may adversely affect EFH

identified and described in Amendments 55/55/8/5/5. NMFS must provide

conservation and enhancement recommendations on any action that would

adversely affect EFH, and the Federal action agency must provide a

detailed, written response to NMFS within 30 days of receiving the EFH

recommendations.

Response to Comments

Eleven letters were received on Amendments 55/55/8/5/5 during the

60-day comment period ending December 21, 1998. Six letters were from

non-fishing industry groups, three were from environmental

organizations, one was from the State, and one was from the U.S. Coast

Guard.

Comment 1. The scope of the EFH definition is too broad. Specific

features should be identified for EFH designation. Instead, the

definition in the amendments encompasses nearly all existing and

potential fresh and saltwater habitat within and offshore Alaska. It

includes all Alaska coastal and inland river, stream, and lake systems

in which any of the five salmon species has been documented to occur.

Because the EFH area is so large, NMFS may not be able to

adequately review and provide conservation recommendations on all

Federal and State actions that might adversely affect EFH. The failure

to rank or prioritize ``truly essential'' habitat areas is the logical

equivalent of concluding that no habitat is essential.

According to one comment, the broadness of the definitions could

invite third party lawsuits by ``radical environmentalist groups.''

Response: NMFS recommended a broad definition of EFH to the

Council, and most of the other NMFS regions arrived at similar

definitions. These definitions are consistent with a conservative

approach to managing the fishery. NMFS considered the alternative of

using known concentrations to define EFH for species' life stages for

which Level 2 or higher information is available. At Level 2,

quantitative data are available for the habitats occupied by a species

or life history stage. This alternative was rejected, as explained in

NMFS' Final Recommendations to the Council (May 11, 1998), for the

following reasons:

1. Areas of known concentrations, based on current information, do

not adequately address unpredictable annual differences in spatial

distributions of a life stage, nor changes due to long-term shifts in

oceanic regimes.

2. All habitats occupied by a species contribute to production at

some level. Although contributions from individual locations may be

small, collectively they can account for a significant part of total

production. For example, fisheries for coho and pink salmon depend on

the cumulative production from thousands of streams that are widely

distributed across coastal Alaska.

3. A stock's long-term productivity is based on high and low levels

of abundance. A broad range and diversity must be conserved to provide

for periods of abundance, and to avoid severely reduced production

during poor years. For example, high concentrations of rock sole were

found in only two discrete areas of the southeastern Bering Sea during

the early 1980s, but were found throughout regions with 100-m water

depth during the mid-1990s, a period of much higher abundance.

4. The advice in the NMFS guidelines is to use the best scientific

information available in a risk-averse fashion, employing an ecosystem

approach. This suggests that, unless the information indicates

otherwise, the more inclusive general distribution should be used to

designate EFH. Observed concentrations do not necessarily reflect all

the habitat required to maintain healthy stocks within the ecosystem.

From a scientific perspective, identifying areas outside of a known

concentration as non-essential for maintaining healthy production

levels would require extensive knowledge of habitat-related linkages to

productivity and the ecosystem. Based on such knowledge, making a

determination that portions of habitat encompassed by a general

distribution definition are non-essential might be possible. However,

NMFS does not have the information to make such a determination at this

time.

5. In the case of juvenile and adult life stages of salmon in

marine waters, scientists, through research and observation, have

determined that salmon are distributed over a large expanse of the

Pacific Ocean, Gulf of Alaska, Bering Sea, and Chukchi Sea, from the

shoreline to beyond the limit of the U.S. EEZ. The fish actually

require a much larger area than earlier had been expected. They require

a broad geographical distribution of habitat to obtain the prey species

needed for their growth, and to obtain the diversity necessary so that

they can withstand changing environmental conditions.

NMFS disagrees that it will not be able to afford habitat

protection with this broad definition and that it will not be able to

adequately review and provide conservation recommendations on Federal

and State agency actions. The process of providing such review will be

incorporated into existing processes whenever possible, and will ensure

that concerns are raised when an action is proposed that may have

adverse impacts on EFH.

Comment 2. No basis exists in the Magnuson-Stevens Act for

addressing habitat outside the EEZ regulatory authority of the Council

(extending 3-200 nautical miles from shore), and therefore the EFH

amendments exceed the scope of the Magnuson-Stevens Act.

Response: The Magnuson-Stevens Act requires the regional fishery

management councils to describe and identify EFH based on all life

stages of the species managed in their FMPs, with no limitations placed

on the geographic location of EFH. Since provisions in statutes are not

presumed to apply extraterritorially, NMFS has determined that waters

beyond the U.S. EEZ are not to be identified as EFH. None of the Alaska

EFH FMPs extend EFH seaward of the EEZ.

EFH may be in State and/or Federal waters, depending on a species'

biological requirements. Identifying coastal and inland State waters as

EFH authorizes NMFS to consult on actions that may adversely affect

EFH, and to provide conservation recommendations. The description and

identification of EFH in State waters does not authorize NMFS to

regulate activities in these areas. The Magnuson-Stevens Act requires

NMFS to work closely with other agencies and groups to ensure the

conservation and enhancement of EFH in State and Federal waters.

Comment 3: No basis exists in the Magnuson-Stevens Act for the

regional fishery management councils to address

[[Page 20218]]

non-fishing interests. The 1996 amendments to the Magnuson-Stevens Act

do not authorize the promulgation of standards and regulations that

affect non-fishing entities. The amendments exceed the authority of the

Magnuson-Stevens Act by affecting resource management disciplines for

which Council members do not have the required expertise. The affected

industries have no representation on the Council.

Response: One of the stated purposes of the 1996 amendments to 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 EFH, or have the potential to affect it (16

U.S.C. 1801(b)(7)). The Magnuson-Stevens Act does not limit review of

projects to fishing activities, but also includes non-fishing

activities. Additional evidence of the intent of the Magnuson-Stevens

Act to include non-fishing activities is in 16 U.S.C. 1855(b)(3), which

states that councils may comment on and make recommendations to the

Secretary and to any Federal or state agency concerning any activity

authorized or proposed that may affect the habitat of a fishery

resource under the council's authority.

Furthermore, the Magnuson-Stevens Act requires that councils

identify, in their FMPs, potential adverse impacts to EFH and measures

that will encourage the conservation and enhancement of EFH. Amendments

55/55/8/5/5, in compliance with the Magnuson-Stevens Act, identify both

fishing and non-fishing activities that may adversely affect EFH for

those species.

The regulatory relationship of NMFS to non-fishing interests is not

the same as it is to fishing interests. NMFS regulates fishing

activities in the EEZ, whereas EFH recommendations to a Federal agency

on its non-fishing activities are advisory. Amendments 55/55/8/5/5 do

not authorize NMFS or the Council to regulate non-fishing activities.

The amendments identify and describe EFH for FMP-managed species, and

Federal agencies are required to consult with NMFS on activities that

may adversely affect EFH for those species. If the Secretary makes EFH

conservation recommendations concerning an action that has been

determined as likely to cause adverse impacts to EFH, the responsible

Federal agency is required to consider the recommendations and respond

in writing within 30 days of receiving them.

NMFS does not anticipate that approval of Amendments 55/55/8/5/5

will substantively alter NMFS' interactions with other Federal

agencies. NMFS currently provides comments and conservation

recommendations for non-fishing activities under various legislative

mandates, including the Rivers and Harbors Act, the Clean Water Act,

the National Environmental Policy Act (NEPA), the National Fish and

Wildlife Coordination Act, the Federal Power Act, and others.

In response to the comment about Council expertise to handle EFH

requirements under the Magnuson-Stevens Act, councils may comment on

and make recommendations to the Secretary and any Federal or state

agency on any activity that is, or is proposed to be, authorized,

funded, or undertaken that, in the view of the Council, may affect EFH

of a managed species. The Secretary appoints members of regional

councils, including the North Pacific Fishery Management Council, on

the basis of their expertise and knowledge of the fishery resources of

their geographic area. The current structure of the councils is

sufficient to meet the EFH consultation requirements of the Magnuson-

Stevens Act. The Council and its staff have the requisite expertise to

judge whether an action may have adverse impacts on EFH and to make

recommendations regarding those impacts.

Comment 4. The amendments do not go far enough in meeting the EFH

requirements of the Magnuson-Stevens Act in that they fail to

adequately analyze adverse effects from fishing, fail to devise

adequate conservation measures to minimize such effects, and fail to

undertake an adequate cumulative impacts analysis. Additionally,

specific habitat areas of particular concern (HAPCs) should have been

identified. NMFS and the Council stopped too soon by broadly listing

types of HAPCs, but not by identifying specific places where these

types of habitats exist. Because of these failings, the relevant

portions of the amendments should be disapproved.

Response: NMFS has determined that these amendments meet statutory

and regulatory requirements for incorporating information identifying

EFH and potential adverse effects on EFH from fishing activities. NMFS

agrees that impacts from fishing, measures to mitigate adverse impacts

from fishing, and determining cumulative impacts to EFH are all

important components of the amendments. These components will be

expanded in future amendments to incorporate new information as it

becomes available.

NMFS disagrees that parts of the amendments should be disapproved

while further analysis is conducted and further mitigation measures

developed. The amendments meet the EFH requirements, and by adopting

them now, NMFS can address environmental concerns sooner than a partial

approval would allow. NMFS and the Council have collated existing

information, identified data gaps, and laid the groundwork for an

ongoing process of further research. As further research is completed,

the Council and NMFS will amend the FMPs to reflect new information,

and it will be possible to undertake a more complex cumulative impacts

analysis.

NMFS has recommended to the Council that the subject FMP amendments

be considered a starting point, not an endpoint. Research on the

effects of different kinds of fishing gear, mapping to better identify

sensitive habitat, and additional analysis of cumulative impacts should

be continued and strengthened, along with development of measures to

mitigate harmful effects on habitat.

The FMPs have already set into motion the process of ensuring that

understanding and protection of EFH will continue. The FMPs now require

that (1) the annual review of existing and new EFH information be

conducted during the annual Stock Assessment and Fishery Evaluation

Report, (2) the Council utilize its annual FMP amendment cycle to

solicit proposals on HAPCs and/or conservation and enhancement measures

to minimize potential impacts from fishing, and (3) a complete review

of all EFH components of each FMP be conducted once every 5 years.

NMFS will continue to work with the Council, as budget and staffing

constraints allow, to identify HAPCs, and to further refine the

criteria for identification of sites (see the EA, section 11.2). In the

summer of 1998, the Council sought public proposals for HAPCs. The

Council received six proposals, and the Council has requested technical

support from NMFS to analyze some of them. The scientific fieldwork

necessary to support HAPC designations cannot be conducted

instantaneously; it will require a period of years. That is why NMFS

developed criteria for identifying HAPCs, rather than attempting at

this time, with insufficient information, to specify them

geographically.

Comment 5: The EA is inconsistent with national standard 2 of the

Magnuson-Stevens Act, which requires that conservation and management

measures be based upon the best

[[Page 20219]]

scientific information available. The EFH amendments do not take into

account the requirements of the Alaska Forest Resources and Practices

Act and other protective laws and measures that must be followed by

developers. The EA does not appear to recognize recent research and

literature documenting the effectiveness of such practices.

In particular, Amendment 5 to the salmon FMP identifies all

resource development projects, large and small, as ``non-fishing

related activities that may adversely affect EFH'' and as ``non-fishing

threats to EFH.'' However, none of the references provided in support

of identification of potential non-fishing threats to salmon EFH is

less than 10 years old.

Regarding Amendments 55 and 55 to the two groundfish FMPs,

commentors assert that current protective management practices are

ignored in reaching conclusions regarding potential adverse effects on

EFH. Such activities as timber harvests and impoundments are identified

as potential threats to EFH for marine species such as groundfish,

which do not use freshwater or estuary habitat. Again, few of the

references listed as support for these generic conclusions are less

than 10 years old.

Response: Scientists from NMFS's Alaska Fisheries Science Center

were included in the development of the EFH amendments, and the

description and identification of EFH is based on their knowledge of

the current available science. Some of these NMFS scientists are noted

for their expertise on logging issues and have been primary authors on

research that led to the adoption of current forest practices

legislation in Alaska. They are aware of current forest practices

statutes and standards, including the Alaska Forest Resources and

Practices Act and the Tongass Timber Reform Act, and they used this

knowledge in identifying non-fishing activities that may affect EFH and

in identifying conservation and enhancement measures.

Potential threats to habitat exist even with current forest

management practices. The absence of some current literature citations

in the EA and the salmon EFH amendment language may have been an

oversight. However, including those citations would not affect the

amendments' identification and description of EFH and the potential

threats to it. The substantive information from that literature was

considered in the development and approval of Amendments 55/55/8/5/5,

and their omission from the list of cited literature is not sufficient

grounds for disapproval of the amendments.

NMFS disagrees with the comment that groundfish do not use

freshwater or estuarine habitat. Marine species such as eulachon,

capelin, herring, sandlance, crab, sablefish, juvenile rockfish,

Pacific cod, and English sole utilize freshwater and/or estuarine

habitat during some part of their life cycles. Upland development

activities may impact EFH for these species, and identifying such

potential threats in the groundfish and crab FMPs is, therefore,

relevant.

NMFS views the identification and description of EFH and the

development of measures to safeguard it as an evolving process, and

will continue to use the best available science to make improvements in

the EFH amendments to the FMPs. To that end, the FMPs will be updated

to include any important citations that may have been inadvertently

omitted. Information on current industry standards and practices, such

as those required by the Alaska Forest Resources and Practices Act,

will be more explicitly incorporated into the non-fishing threats

sections of the FMPs.

Comment 6: The EA is inconsistent with national standard 7 of the

Magnuson-Stevens Act, which requires that conservation and management

measures, where practicable, minimize costs and avoid unnecessary

duplication. The inter-agency consultations required for activities

that might affect EFH add a redundant layer of bureaucracy to the

regulatory process with which non-fishing industries must already

comply. The process will be cumbersome and unworkable, and unnecessary

costs will accrue to a huge range of non-fishing entities. One letter

stated, ``This creates yet another program that, as best we can tell,

adds nothing and duplicates other Federal and State programs all

designated to protect habitat and water quality.''

Response: Because the EA is an analytical document prepared under

NEPA, it does not have to be consistent with national standard 7 of the

Magnuson-Stevens Act. NMFS has determined that the EFH amendments are

consistent with the Magnuson-Stevens Act, including national standard

7. Inter-agency consultations on Federal or State activities that may

adversely affect EFH are required by the Magnuson-Stevens Act; they are

not an optional aspect of the EFH amendments for any of the eight

regional fishery management councils. Section 305(b)(2) of the

Magnuson-Stevens Act states: ``Each Federal agency shall consult with

the Secretary with respect to any action authorized, funded, or

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

such agency that may adversely affect any essential fish habitat

identified under this Act.''

Existing Federal statues, such as the Fish and Wildlife

Coordination Act, the Endangered Species Act, and NEPA, already require

consultation or coordination between NMFS and other Federal agencies.

The EFH consultations will not be duplicative, as they will be subsumed

to the greatest extent possible under an existing review process and

within existing process time frames. The regulatory guidelines at 50

CFR part 600 suggest that NMFS be consulted as early as possible in

project planning so that appropriate conservation measures can minimize

the potential for adverse effects to EFH. The EFH amendments contain

conservation recommendations that are appropriate for many Federal

actions, and they can also serve as guidelines that should be

considered during project planning.

NMFS does not agree that the EFH requirements merely add redundancy

to an already overburdened regulatory system. The Sustainable Fisheries

Act of 1996, amending the Magnuson-Stevens Act, was adopted after years

of public criticism that the Federal Government was failing in its

responsibility to adequately protect the Nation's fishery resources

from unacceptable stock decreases due to overfishing and habitat

degradation. The EFH requirements were meant to address the second of

those concerns.

Comment 7: The EFH amendments fail to meet NEPA and Regulatory

Flexibility Act (RFA) requirements. The EA is inadequate as a NEPA

document, as it contains the unsupported conclusion that modification

or relocation of non-fishing activities may result in short-term costs

to users, but will result in long-term benefits to the economy. The

assertion in the EA that the action proposed ``is simply to describe

and identify EFH for FMP species, which in and of itself will have no

economic impact,'' is erroneous. The costly and delay-generating EFH

consultation process will have significant socioeconomic, physical, and

biological effects, which must be addressed in order to comply with

NEPA. The effects on the human environment of the pervasive and

cumbersome EFH program reflected in the proposed amendments are

potentially huge and should be addressed in an Environmental Impact

Statement.

Furthermore, the amendments do not incorporate any analysis of

impacts on small entities and are not in compliance with the RFA and

applicable executive orders.

[[Page 20220]]

Response: The analytical requirements of the RFA apply only to

regulatory actions for which notice and comment rulemaking is required

under the Administrative Procedure Act or other statute. If the action

does not require notice and comment rulemaking, no further analysis is

needed. Because there was no requirement for a proposed rule to

implement Amendments 55/55/8/5/5, the analytical requirements of the

RFA did not apply. During the EFH consultation process, NMFS will

provide EFH conservation recommendations to other Federal or State

agencies. The action agency will consider the recommendations in its

decision making process and then decide whether it will impose any

requirements on the entity seeking a permit or license. That is the

point at which the action agency might be required to prepare an RFA

analysis.

NMFS disagrees with the comment concerning the adequacy of the EA

prepared for the EFH amendments. As stated in the EA, the EFH FMP

amendments describe and identify EFH for all FMP-managed species off

Alaska and include discussions of impacts on EFH from fishing and non-

fishing activities, EFH research and information needs, and review and

revision schedules for EFH components of the FMPs. These discussions,

as approved, will be incorporated into the five Alaska FMPs. The EFH

FMP provisions that were approved have no regulatory effect on fishing

or non-fishing interests. A Finding of No Significant Impact for the

EFH amendments is appropriate.

NMFS also disagrees with the commenter's predictions of costly

delays. As previously mentioned in the response to Comment 6, EFH

consultations will in most cases be combined with existing

consultations that are required by NEPA and by other laws. NMFS

recognizes that changes to a Federal action agency's proposal as a

result of an EFH recommendation may generate costs or require

additional analyses under such applicable Federal laws as NEPA or the

RFA. However, the coordination, consultation, and recommendation

process itself will not automatically impose additional restrictions,

because NMFS' EFH conservation recommendations are not mandatory, and

because NMFS has no authority to stop a project based on adverse

effects on EFH.

Comment 8: The amendments include no apparent meaningful threshold

of significance or way of gauging the likelihood of adverse effect on

EFH, which would enable the Council, NMFS, and non-fishing entities to

focus on activities with the potential for substantial harm to Council-

managed fisheries. Blanket presumptions subject all types of coastal

and inland developments or land use activities to cumbersome EFH

consultations.

Response: ``Adverse effects,'' as defined at Sec. 600.810 of this

title, means any impact which reduces the quality and/or quantity of

EFH. Adverse effects may include, for example, direct effects through

contamination or physical disruption, indirect effects such as loss of

prey or reduction in species fecundity, and site-specific or habitat-

wide impacts, including individual, cumulative, or synergistic

consequences of actions. Only actions which have a reasonably

foreseeable adverse effect require consultation. Thus, NMFS must

comment on Federal or State actions that take place within riparian

areas or hydrological basins only if they have a reasonably foreseeable

impact on EFH. Furthermore, the regulations provide for streamlined

consultation procedures, such as general concurrences and abbreviated

consultations, that may be used when the activities at issue do not

have the potential to cause substantial adverse effects on EFH.

Comment 9: NMFS should not finalize these amendments until the

interim final rule is finalized. Amending FMPs to incorporate EFH in

advance of that action would require redoing the process later, and

would likely lead only to further disagreement and confusion in the

meantime.

Response: The interim final rule has the effect of a final rule. As

mentioned in the response to Comment 4, Amendments 55/55/8/5/5 all

require periodic reviews of new and existing EFH information. Any

updates necessary after the rule is finalized can be accomplished

through this review process.

Comment 10: The State expressed ``guarded support'' of the

amendments, but was concerned about the lack of information about the

scope and mechanics of EFH coordination and consultations.

Response: NMFS has held meetings with representatives of several

State agencies to work out procedures for coordination on EFH

consultations, and will continue to schedule meetings as needed.

Comment 11: The U.S. Coast Guard commented that it will evaluate

its activities for possible impacts once HAPCs are identified.

Response: NMFS will provide the U.S. Coast Guard with technical

guidance on EFH consultation procedures.

Comment 12: NMFS is to be commended for tackling a difficult task

by compiling and organizing the information contained in the

amendments. The commentors support the goal of conserving and enhancing

essential fish habitat, and were generally complimentary in terms of

the hard work that went into the development of the EFH FMPs despite

reservations covered in preceding comments and responses.

Response: NMFS appreciates constituent support in this important

and challenging endeavor, and looks forward to working with all parties

to make improvements.

Comment 13: The requirement in the NOA that comments be received by

NMFS by the end of the comment period, and not simply postmarked by

then, is unfair.

Response: NMFS understands that the EFH amendments and EA were

lengthy and may have been difficult to review thoroughly within the 60-

day comment period. In accordance with the Magnuson-Stevens Act

requirements at section 304(a), NMFS must affirmatively approve,

disapprove, or partially approve an FMP or FMP amendment within 30 days

of the end of a comment period. NMFS typically needs the full 30 days

to review public comments received and to complete the internal review

and decision making process, particularly when the FMP or FMP amendment

is complex and lengthy, as was the case with Amendments 55/55/8/5/5.

NMFS asks that comments be received by the end of the comment period,

so that they can be reviewed and considered during the decision making

process.

Dated: April 20, 1999.

Gary C. Matlock,

Director, Office of Sustainable Fisheries, National Marine Fisheries

Service.

[FR Doc. 99-10408 Filed 4-23-99; 8:45 am]

BILLING CODE 3510-22-F