Fisheries of the Northeastern United States; Northeast Multispecies Fishery, Atlantic Sea Scallop Fishery, and Atlantic Salmon Fishery; Fishery Management Plan (FMP) Amendments to Designate Essential Fish Habitat (EFH), Atlantic Salmon Overfishing Definition, and Aquaculture Framework Specification Process

DEPARTMENT OF COMMERCE

50 CFR Part 648

National Oceanic and Atmospheric Administration

[I.D. 111998B]

Fisheries of the Northeastern United States; Northeast

Multispecies Fishery, Atlantic Sea Scallop Fishery, and Atlantic Salmon

Fishery; Fishery Management Plan (FMP) Amendments to Designate

Essential Fish Habitat (EFH), Atlantic Salmon Overfishing Definition,

and Aquaculture Framework Specification Process

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Approval of amendments to FMPs.

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SUMMARY: NMFS announces that the Secretary of Commerce (Secretary) has

approved Amendment 11 to the Northeast Multispecies FMP, Amendment 9 to

the Atlantic Sea Scallop FMP, and Amendment 1 to the Atlantic Salmon

FMP. These amendments were prepared by the New England Fishery

Management Council (NEFMC) to implement the requirements of section

303(a)(7) of the Magnuson-Stevens Fishery Conservation and Management

Act (Magnuson-Stevens Act). The amendments describe and identify EFH

for the specified fisheries, discuss measures to address the effects of

fishing on EFH, and identify other actions for the conservation and

enhancement of EFH. Atlantic Salmon Amendment 1 also discusses a

definition for overfishing and establishes an aquaculture framework

adjustment process for Atlantic salmon.

The amendments are included in an omnibus amendment that also

includes Amendment 1 to the Monkfish FMP prepared jointly by NEFMC and

the Mid-Atlantic Fishery Management Council (MAFMC). Because of

additional time required for coordination with MAFMC, the monkfish FMP

amendment is being considered for Secretarial approval in a separate

action. Finally, the omnibus amendment includes the EFH components of

the Atlantic Herring FMP that are being developed by the NEFMC. The EFH

information for Atlantic Herring will be incorporated by reference into

the Atlantic Herring FMP when that FMP is submitted for Secretarial

approval.

DATES: The amendments were approved on March 3, 1999.

ADDRESSES: Copies of the amendments and the Environmental Assessment

(EA) are available from the Executive Director, New England Fishery

Management Council, 5 Broadway, Saugus, MA 01906-1036.

FOR FURTHER INFORMATION CONTACT: Jonathan M. Kurland, Assistant Habitat

Program Coordinator, 978-281-9204 or [email protected]

SUPPLEMENTARY INFORMATION:

Background

The omnibus EFH amendment was prepared by NEFMC to satisfy the EFH

mandates of the Magnuson-Stevens Act. The omnibus amendment includes an

Environmental Assessment (EA), which describes the background, purpose

and need for the action, the management action alternatives, and the

environmental, social and economic impacts of the alternatives. A copy

of the EA can be obtained from the NEFMC (see ADDRESSES).

A notice of availability (NOA) for Amendment 11 to the Northeast

Multispecies FMP, Amendment 9 to the Atlantic Sea Scallop FMP, and

Amendment 1 to the Atlantic Salmon FMP was published on December 1,

1998 (63 FR 66110). The comment period ended on February 1, 1999. An

amendment to the NOA was issued on December 7, 1998 (63 FR 67450) to

clarify that Atlantic Salmon Amendment 1 also discusses an overfishing

definition and establishes a framework process to add or adjust

Atlantic salmon aquaculture management measures, if necessary, to meet

the goals and objectives of the Atlantic Salmon FMP. A second amendment

to the NOA, issued January 6, 1999 (64 FR 823), clarified that there

would be implementing regulations to allow for Atlantic salmon

aquaculture through a framework adjustment process. The proposed rule

for these regulations was published on February 5, 1999 (64 FR 5754).

The comment period closed on March 22, 1999.

The omnibus EFH amendment designates EFH in waters of the United

States for 14 species of groundfish, as

[[Page 19504]]

well as Atlantic sea scallops and Atlantic salmon. The omnibus

amendment designates Habitat Areas of Particular Concern (HAPC) for

Atlantic salmon and juvenile Atlantic cod in accordance with 50 CFR

600.815(a)(9). Although no new management measures are proposed for

these HAPC, the Atlantic cod HAPC would be protected from potential

adverse effects from fishing by maintaining the existing restrictions

on fishing for the region known as Closed Area II on Georges Bank,

pursuant to 50 CFR 648.81(b). In addition to the original rationale for

implementing Closed Area II in 1994 (reducing overfishing of severely

depleted groundfish stocks, as noted in the preamble to the emergency

interim rule published in the Federal Register 59 FR 63926, December

12, 1994), under the omnibus amendment these management measures would

be retained for habitat protection reasons.

In addition to the amendments for the Northeast Multispecies,

Atlantic Sea Scallops, and Atlantic Salmon FMPs, the omnibus amendment

also includes Amendment 1 to the Monkfish FMP and the EFH components of

the Atlantic Herring FMP that is being developed by NEFMC. Monkfish

Amendment 1 was submitted for Secretarial review under separate action

on January 22, 1999 (64 FR 3480), and the comment period closed on

March 23, 1999. The EFH information for herring will be incorporated by

reference into the Atlantic Herring FMP when that FMP is submitted for

Secretarial review, and an NOA will be published in the Federal

Register.

Amendment 1 to the Atlantic Salmon FMP also includes an aquaculture

framework process and information on an overfishing definition for

Atlantic salmon. The overfishing definition is based on the assumption

that the number of spawning salmon corresponding to maximum sustainable

yield is 54,000 (a proxy for Bmsy) and that fishing

mortality on the current stock of 200 fish should be zero. No biomass

threshold is given that describes when fishing mortality can be greater

than zero. However, overfishing is not occurring in this fishery since

fishing mortality in the exclusive economic zone has been reduced to

zero and is expected to stay at zero for the foreseeable future. NMFS

informed the Council that should the status of the resource change, it

would need to revisit the overfishing definition to clarify what level

of fishing mortality is appropriate to rebuild the resource to a

sustainable level. In the interim, the omnibus amendment is providing

maximum protection to conserve Atlantic salmon habitat and may offer

solutions to enhance Atlantic salmon spawning habitat.

Amendment 1 to the Atlantic Salmon FMP also contains an aquaculture

framework process to allow the Council to initiate action to implement,

add or adjust Atlantic salmon management measures, provided that such

an action is consistent with the goals and objectives of the Atlantic

Salmon FMP. The proposed rule to implement the aquaculture framework

process was published on February 5, 1999 (64 FR 5754). NMFS

anticipates that a final rule will be published within the next few

weeks.

NMFS determined that Amendment 11 to the Northeast Multispecies

FMP, Amendment 9 to the Atlantic Sea Scallop FMP, and Amendment 1 to

the Atlantic Salmon FMP are consistent with the Magnuson-Stevens Act

and other applicable laws, and approved these amendments on March 3,

1999. Additional information on this action is contained in the NOA

published on December 1, 1998 (63 FR 66110).

Upon initial consideration, it appeared that regulations to

implement the EFH provisions of the amendments were not required.

However, NMFS subsequently determined that implementing regulations are

required to add the framework specification process for designating EFH

and HAPC to existing regulations for the Northeast Multispecies FMP,

the Atlantic Sea Scallop FMP, and the Atlantic Salmon FMP. NMFS will

initiate these rulemaking actions in the near future.

Comments and Responses

Eight letters were received during the comment period, including

four from environmental organizations (two from the American Oceans

Campaign and one each from Marine Fish Conservation Network and

Conservation Law Foundation), two from the fishing industry (Cape Cod

Commercial Hook Fisherman's Association and Fisheries Survival Fund),

one from the U.S. Department of State, and a joint letter from Maine

Pulp and Paper Association and Maine Forest Products Council.

Comments on Identification and Description of EFH

Comment: One commenter stated that the EFH designations were overly

broad and exceeded the intent of Congress. The commenter cited specific

concerns about the designation for Atlantic salmon extending into state

waters, including inland rivers upstream of manmade barriers, which

will affect non-fishing interests and activities in adjacent upland

areas. Other commenters noted that the Council had done a good job at

using the precautionary approach to EFH identification.

Response: The Magnuson-Stevens Act defines EFH as those waters and

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

to maturity. Therefore, the geographic scope of EFH may be sufficiently

broad to encompass the biological requirements of the species. The

information that the Council used for EFH designation was primarily

species distribution and relative abundance data, which would be

classified as ``level 2'' information under the EFH regulations (50 CFR

600.815). Since the information available was not more specific (e.g.,

did not show species production by habitat type), the precautionary

approach prescribed by the regulations led to fairly broad EFH

designations. The EFH regulations at 50 CFR 600.10 interpret the

definition of EFH to include aquatic areas that are used by fish,

including historically used areas, where appropriate, to support a

sustainable fishery and the managed species' contribution to a healthy

ecosystem, provided that restoration is technologically and

economically feasible. The Council's EFH designation for Atlantic

salmon is consistent with these requirements.

Comment: An environmental organization commented that biological

attributes such as epiflora and epifauna should have been included in

the EFH text descriptions.

Response: The information that was available for EFH designation by

the Council consisted primarily of regional species abundance and

distribution. Although some species- specific information exists that

indicates species associations with more complex habitat such as that

including epiflora and/or epifauna, it is unclear whether or to what

degree these habitat attributes are actually essential.

Comment: One environmental organization commended the Council's

designating the HAPC for juvenile cod and its adding protection of EFH

as a reason for the basis of the current closure to fishing in the

area. Another environmental organization stated that HAPCs should be

designated for all species under management.

Response: The EFH regulations (50 CFR 600.815(a)(9)) suggest the

designation of HAPCs, which are defined as areas that are ecologically

important, sensitive to human-induced degradation, impacted by

development activities, or rare. It is conceivable that many areas of

Council-designated EFH could satisfy these criteria. The Council

[[Page 19505]]

has designated HAPCs for both juvenile cod and Atlantic salmon based on

readily available information and has committed in its strategic plan

to continue to evaluate further HAPC designations.

Comments on Impacts to EFH from Fishing Gear

The majority of comments from the environmental organizations and

one fishing industry association addressed the section of the

amendments that evaluated the impacts of fishing gears on EFH, and

measures to minimize any such impacts.

Comment: Two commenters stated that the amendments did not

adequately evaluate the impacts of fishing gear on EFH. The commenters

found that the evaluation of impacts in the amendments was cursory and

did not specifically evaluate the impacts of each fishing gear on each

type of EFH. One of the commenters pointed out that the Council did not

follow the recommendations of the NMFS EFH technical guidance in

addressing this topic and stated that a lack of sufficient detail in

the discussion of fishing gear impacts was an impediment to public

involvement, since it was difficult for the public to ascertain the

reasoning behind the conclusions. The commenter also identified that

cumulative impacts from fishing gears were not assessed.

Response: The Council approached the evaluation of impacts from

fishing gears methodically. It identified the major gears used in the

region based on landings; described the major gears; identified that

otter trawls and scallop dredges were the most likely to have adverse

impacts on habitat; appended a summary of the literature on fishing

gear impacts to habitat; and described other impacts from fishing

activities such as the impacts of fishing-related marine debris and

lost gear, impacts of aquaculture, and impacts of at-sea fish

processing. The Council also evaluated fisheries management measures

currently in place, and determined their impact on EFH. Finally, the

Council identified a number of areas that required further research in

order to provide a better basis for determining fishing gear impacts,

such as the spatial distribution and extent of fishing effort for gear

types; the effects of specific gear types along a gradient of effort on

specific habitat types; and recovery rates of various habitat types

following fishing activity. The information in the document could have

been presented in a more convenient manner (e.g., rather than the

fishing impacts summary being appended it could have been synthesized

into the document). This would have addressed the comment regarding the

need for a thorough discussion of the Council's deliberations on

fishing gear impacts, which is duly noted. However, based on the

information available, the Council satisfied the requirements of the

EFH regulations (50 CFR 600.815(a)(3)) regarding the assessment of

fishing gear impacts.

The Council was not required to implement the recommendations of

the draft NMFS EFH Technical Guidance (NMFS 1998); nor was it required

to address cumulative impacts, absent adequate information.

Comment: The majority of environmental organizations and one

fishing industry association stated that the amendments did not satisfy

the Magnuson-Stevens Act requirements to minimize impacts from fishing

gears to EFH, to the extent practicable, and the commenters thought

that the amendments should be disapproved, or section 4 of the document

should be disapproved. One commenter requested that the amendments be

disapproved, and/or that the Secretary prepare a separate EFH

amendment, or promulgate emergency regulations, or pursue negotiated

conservation and management measures. One of the commenters suggested

that the legal basis for existing management measures should be changed

to include protection of EFH, since the Council relied on these

measures to provide such protection. One commenter stated that the

Council did not request public input on this issue.

Response: The EFH regulations at 50 CFR 600.815(a)(3)(iv) require

that the Council consider a number of factors when evaluating whether

it is practicable to minimize an adverse effect from fishing. These

factors include (1) whether and to what extent the fishing activity is

adversely impacting EFH including the fishery; (2) the nature and

extent of the adverse effect on EFH; (3) whether management measures

are practicable, taking into consideration the long and short-term

costs and benefits to the fishery and its EFH; and (4) any other

appropriate factors.

In the amendments, the Council concludes and NMFS concurs that no

additional fishing restrictions to protect EFH are practicable at this

time. It bases this conclusion on a number of findings relative to the

factors outlined in the EFH regulations. The Council has determined

that otter trawls and scallop dredges are the New England fishery gear

types most likely to have an impact on EFH. The amendments cite an

appended document by Auster and Langton (1998), which describes the

impacts of such bottom tending mobile fishing gears on different

habitat types in general. Auster and Langton state that the direction

and type of impact of these gears can be determined; however,

information that is required for a complete analysis of impacts is

currently unavailable. The impact rate in relationship to the effort

for each gear type is required in order to evaluate the effects of

fishing on different habitat types. In order to determine these

relationships, effort- specific rates of impacts for different gear

types would need to be determined experimentally. Auster and Langton

also found that information on distribution of fishing effort is

lacking. Additionally, a detailed review of the habitat types and their

locations is necessary. These information needs are identified in the

amendments under the section of research needs. Without this

information, the Council is unable to perform a complete analysis of

fishing gear impacts.

In considering whether further management measures were practicable

based on impacts to the fishery and its EFH, the Council, first,

reviewed current and proposed fishery management measures that could

protect EFH and had already been established as ``practicable'' under

the Magnuson-Stevens Act. The Council found that many potential adverse

effects to EFH from fishing are already minimized because of some of

the current fishery management measures under the FMPs for the Atlantic

Sea Scallop Fishery and the Northeast Multispecies Fishery. Such

measures include Closed Areas I and II on Georges Bank (4,150 sq.

nautical miles), which prohibits all gear capable of taking groundfish

(including groundfish bottom trawls and scallop dredge gear), and the

Hudson Canyon South and Virginia Beach closed areas (2,300 sq. nautical

miles), which prohibit the use of scallop dredges. The Council also

found that other effort reduction measures, such as days-at-sea

allocations and vessel size/power limits, limit impacts to EFH as well.

Second, the Council determined that some management measures contained

in Amendment 7 to the Atlantic Sea Scallop FMP and Amendment 9 to the

Northeast Multispecies FMP, designed to fulfill requirements of the

Sustainable Fisheries Act, other than EFH, will also reduce adverse

impacts to EFH. These new measures include the prohibition of

streetsweeper gear and, beginning in year 2 of the Atlantic sea scallop

rebuilding plan, a reduction in sea scallop fishing effort by more than

50

[[Page 19506]]

percent. Third, the Council approved the designation of a HAPC for

juvenile Atlantic cod, and stated that the current Closed Area II

restrictions, pursuant to 50 CFR 648.81(b) will be maintained in the

HAPC portion, for habitat protection reasons. All of these current and

proposed measures are consistent with those identified in the EFH

regulations for controlling fishing gear impacts to EFH. The EFH

regulations at 50 CFR 600.815(a)(4) specifically list fishing equipment

restrictions, time/area closures, and harvest limits as methods to

control fishing gear impacts to EFH. In addition, the measures

currently in place and under review for other amendments under

development have been determined to be practicable for New England

fisheries, have addressed socio-economic impacts, including long and

short-term benefits to the fishery, and are consistent with the

national standards. Neither the Magnuson-Stevens Act, nor the EFH

regulations, require that fishing impacts be controlled by newly

proposed management measures.

The Council found that further information is necessary before it

can responsibly determine what additional practicable measures may be

necessary specifically for the protection of EFH from fishing impacts.

For example, information on the net effects of using one particular

gear design over another, as well as the effects of effort displacement

that may be associated with additional closed areas or reductions to

days-at-sea, is needed. To illustrate this point, the Council considers

that reductions to scallop or groundfish days-at-sea programs may have

the unintended effect of forcing fisheries to be concentrated in small

areas near shore, which may also be EFH. The Council points out that

any additional measures that might be imposed would likely be similar

to those measures currently in place to control fishing effort. In FMP

amendments and framework actions to address overfishing in the New

England region, fishing has already been substantially reduced. Any

additional EFH protection measures would impose additional socio-

economic impacts to an already stressed industry. In the amendments,

the Council determines that the uncertainty associated with the actual

benefits predicted from additional management measures designed to

mitigate habitat impacts impedes it from concluding that the additional

short- and long-term costs to the fishing industry associated with

those measures would be justifiable. Based on the fisheries management

measures proposed and in place that will serve to protect habitat, the

economically depressed status of the fisheries, and the Council's

expressed intent to continue to move forward on EFH conservation, the

amendments meet the requirement of the Act to minimize fishing gear

impacts on EFH to the extent practicable.

The Council added habitat protection as one of the reasons for the

current closure to the juvenile cod HAPC in Closed Area II; however,

the reasons for implementation of the other fishery management measures

that the Council found to protect EFH were not modified to include

habitat. Although this issue does not affect approvability of the

amendments, NMFS agrees with the comment that the Council should

identify habitat protection as a reason for any management measures it

has identified as providing for the protection of EFH. Council

acknowledgment of its intent to protect EFH with the fishery management

measures currently in place would clarify that the habitat benefits of

measures originally developed for other purposes should be considered

expressly whenever future management actions are contemplated. It is

noted that, under the Magnuson-Stevens Act, fishery management councils

are required to evaluate the impact of management measures on EFH,

regardless of the management measure's purpose.

The Council provided opportunity for public input on these

amendments as required by the Magnuson-Stevens Act.

Comment: One fishing industry group opposed the permanent closure

of any areas to scallop gear. One environmental organization opposed

access of scallop dredges or otter trawls to currently closed areas.

Response: Since the Council retains the ability to re-open any

closed area, any future closures could be reconsidered by the Council,

and would not in fact be ``permanent.'' Potential scallop fishery

access to existing closed areas is the subject of proposed Framework

Adjustment 11 to the Atlantic Sea Scallop FMP and Framework Adjustment

29 to the Northeast Multispecies FMP, and will be addressed during the

review of those actions.

Comment: One commenter suggested that all complex cobble-bottom

should be protected.

Response: Further research is needed to identify all areas of this

habitat type. Adoption of additional HAPCs in areas of cobble-bottom

through the framework adjustment provision is a vehicle for identifying

complex cobble-bottoms and/or other habitat types as particularly

important. The Council has identified the designation of additional

HAPCs as one of its objectives in the strategic plan portion of the

amendments.

Comments on Framework Provisions

Comment: A fishing industry organization opposed the framework

provision for designation of EFH, and stated that permanent closures

should be subjected to the process of an amendment.

Response: The framework adjustment process for EFH designation will

allow the Council to respond quickly when additional information

becomes available regarding important habitats that should be

classified as EFH while still allowing the opportunity for public

participation. Nevertheless, the Council could decide to invoke the

full amendment process if circumstances warranted. Moreover, the issue

of area closures as adjustments that may be made under the framework

procedures has already been addressed, and area closures have been

approved under the Multispecies FMP and Sea Scallop FMP as fishery

management measures that may be implemented under the framework

procedures.

Comments on EFH Consultations

Comment: A commenter suggested that the consultation and

conservation recommendation provisions of the Act will be burdensome

and unworkable, citing that every Federal and state action, including

all permitting actions that occur near coastal or inland waters, would

trigger an EFH consultation. The commenter also indicated concern that

the process would add little in the way of environmental benefit to

fish or EFH.

Response: The Magnuson-Stevens Act requires Federal action agencies

to consult with NMFS on activities that may adversely impact EFH. The

EFH consultation requirements will be consolidated with other existing

consultation and environmental review procedures wherever appropriate.

This approach will ensure that EFH consultations do not duplicate other

environmental reviews, yet still fulfill the statutory requirement for

Federal actions to consider potential effects on EFH.

Comments on Atlantic Salmon Amendment 1

Comment: The commenter is concerned with how EFH and HAPC

designations will impact ongoing salmon conservation efforts being

implemented by Maine.

Response: NMFS is committed to ensure that EFH consultations and

EFH

[[Page 19507]]

conservation recommendations in areas designated as EFH for Atlantic

salmon will complement the goals set by the Maine Atlantic Salmon

Conservation Plan. NMFS will be working closely with the State of Maine

and other interested parties on this issue.

Comments on Other Issues

Comment: One fishing industry group commented that continued

closure of HAPC will be a significant impact under the Regulatory

Flexibility Act.

Response: NMFS does not believe that supplementing the basis for

the current closure as a measure to protect juvenile cod HAPC and

continuing this closure as a part of Closed Area II have any bearing on

the Regulatory Flexibility Act because no additional regulatory impacts

occur.

Comment: A commenter suggested that the Council establish and

implement a plan for satisfying information needs with specific time

frames for when objectives will be met and when notice will be provided

to the public.

Response: The Council included a strategic plan in the amendments

that addresses the refinement of EFH designations, designation of

additional HAPCs, and improving understanding of fishing gear impacts,

among other things. Since the Council is not a research body, it cannot

schedule research activities to complement EFH conservation efforts.

However, in its plan, the Council has committed to annual reviews of

its EFH conservation program, which specifically includes

identification and incorporation of ongoing and future studies as the

results become available. Information on these efforts will be

available to the public through the Council process.

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

Dated: April 14, 1999.

Gary C. Matlock,

Director, Office of Sustainable Fisheries, National Marine Fisheries

Service.

[FR Doc. 99-9990 Filed 4-20-99; 8:45 am]

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