[Federal Register Volume 64, Number 117 (Friday, June 18, 1999)]
[Rules and Regulations]
[Pages 32825-32827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15535]
[[Page 32825]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[I.D. 011399A]
Fisheries of the Northeastern United States; Northeast Monkfish
Fishery; Amendment 1 to the Monkfish Fishery Management Plan (FMP) to
Designate Essential Fish Habitat (EFH) for Monkfish
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Approval of Amendment 1 to the Monkfish FMP.
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SUMMARY: NMFS announces that the Secretary of Commerce (Secretary) has
approved Amendment 1 to the Monkfish FMP. This amendment was prepared
jointly by the New England Fishery Management Council (NEFMC) and the
Mid-Atlantic Fishery Management Council (MAFMC). This amendment
implements the requirements of section 303(a)(7) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The amendment describes and identifies EFH for the monkfish fishery,
discusses measures to address the effects of fishing on EFH, and
identifies other actions for the conservation and enhancement of EFH.
DATES: Amendment 1 to the Monkfish FMP was approved on April 22, 1999.
ADDRESSES: Copies of the amendment 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: Peter Colosi, Chief, Habitat
Conservation Division, 978-281-9332 or [email protected].
SUPPLEMENTARY INFORMATION:
Background
Amendment 1 to the Monkfish FMP is part of an omnibus amendment for
EFH, which also includes Amendment 11 to the Northeast Multispecies
FMP, Amendment 9 to the Atlantic Sea Scallop FMP, and Amendment 1 to
the Atlantic Salmon FMP. Because of the additional time required for
coordination with MAFMC, the monkfish FMP amendment was considered for
Secretarial approval in an action separate from these other amendments,
which were approved on March 3, 1999. The omnibus amendment also
includes the EFH components of the Atlantic Herring FMP that is 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. An EA is also included with
the Monkfish Amendment 1.
Monkfish Amendment 1 was prepared by the NEFMC and MAFMC to satisfy
the EFH mandates of the Magnuson-Stevens Act. The amendment designates
EFH in waters of the United States for monkfish. Public comments were
invited on Monkfish Amendment 1 from January 22, 1999 (64 FR 3480),
through March 23, 1999. NMFS has determined that the amendment is
consistent with the Magnuson-Stevens Act and other applicable laws, and
approved it on April 22, 1999. Additional information on this action is
contained in the January 22, 1999, Notice of Availability (64 FR 3480).
Upon initial consideration, it appeared that regulations to
implement the amendment were not required. However, further
consideration identified that implementing regulations are required to
codify the framework specifications for designating EFH and Habitat
Area of Particular Concern for the Monkfish FMP. A rulemaking to
promulgate these regulations will be initiated in the near future.
Comments and Responses
Two letters were received during the comment period.
Comment 1: One commenter provided extensive comments on technical
aspects of the amendment's discussion of potential impacts to EFH from
oil, gas, and mineral extraction, and the recommended conservation and
enhancement measures dealing with these activities.
Response: NMFS appreciates the detailed comments that were
provided, and has forwarded them to the Councils for future reference.
Comment 2: Another commenter considered the amendment to be overly
broad and exceeding the intent of Congress. The commenter specifically
cited the breadth of EFH designation, noting that EFH appeared to be
designated over the range of the species, and in estuarine waters. The
commenter stated that the Councils' methodology for designating EFH
based on the highest relative density of monkfish was arbitrary.
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 must be
sufficiently broad to encompass the biological requirements of the
species. The information that the Councils 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 approach
prescribed by the regulations led to fairly broad EFH designations. The
EFH regulations at 50 CFR 600.10 interpret the statutory 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 Councils' EFH designation is consistent with these requirements.
EFH for monkfish was not designated in estuarine waters.
The specific methodology used by the Councils for designating EFH
was based on the highest relative density of monkfish. This methodology
was developed by scientists at the NMFS Northeast Fisheries Science
Center, and is supported by scientific research and ecological concepts
that show that the distribution and abundance of a species or stock are
determined by physical and biological variables. The abundance of a
species is higher where conditions are more favorable, and this tends
to occur near the center of a species' range. As population abundance
fluctuates, the area occupied changes. At low levels of abundance,
populations are expected to occupy the habitat that maximizes their
survival, growth, and reproduction. As population abundance increases,
individuals move into other available habitats. NMFS and the Council
have developed a management regime designed to increase the population
of monkfish. The broad EFH designation for monkfish is intended to
include habitat essential for the species' long-term well-being.
Comment 3: A commenter stated that the conservation and enhancement
recommendations for non-fishing impacts to EFH that are provided in the
amendment are not based on the best available science, nor sufficiently
supported. The commenter contends that the recommended measures do not
take into consideration current practices, and are likely to be in
conflict with measures being pursued under
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other regulatory programs. The commenter also stated that the Magnuson-
Stevens Act did not empower the Councils to address non-fishing
activities.
Response: NMFS disagrees that the conservation and enhancement
recommendations for non-fishing impacts to EFH are not based on the
best available science. The information presented in this section of
the amendment is well researched and substantiated by the best
available information. Moreover, the commenter did not provide examples
of specific information not considered by the Councils.
Conservation and enhancement recommendations for non-fishing
industries were included to satisfy the requirements of section
303(a)(7) of the Magnuson-Stevens Act to ``identify other actions to
encourage the conservation and enhancement of [EFH].'' This information
is provided to assist non-fishing industries in avoiding impacts to
EFH. The recommendations are neither posed as, nor meant to be, binding
in nature. It is up to the discretion of the non-fishing industries and
relevant regulatory agencies whether these recommendations are
implemented.
Additionally, under section 305(b) of the Magnuson-Stevens Act,
NMFS is required and the Councils are authorized to make conservation
recommendations to any Federal or state agency regarding any activity
that would adversely affect EFH. Moreover, Federal agencies are
required to respond to these recommendations in writing.
Comment 4: A commenter stated that the amendment contains no
meaningful threshold of significance or likelihood of adverse effect on
habitat for non-fishing impacts. The commenter suggested that the
consultation and conservation recommendation provisions of the
Magnuson-Stevens Act will be burdensome and unworkable. The commenter
also contended that the consultation procedures will be redundant with
the National Environmental Policy Act (NEPA), costly, and time
consuming.
Response: The Magnuson-Stevens Act requires Federal action agencies
to consult with NMFS on activities that may adversely affect EFH.
Adverse effects, as defined at 50 CFR 600.810(a), means any impact that
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 that have a reasonably foreseeable adverse effect require
consultation.
Consultations are not likely to be redundant or inefficient. The
EFH 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. 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.
Comment 5: A commenter stated that the amendment generally failed
to address the potential for significant adverse impacts of this
amendment on non-fishing entities, specifically citing the requirements
of NEPA and the Regulatory Flexibility Act (RFA).
Response: The conservation and enhancement recommendations outlined
in the amendment include a review of suggested measures for municipal,
state, and Federal agencies and other organizations for the
conservation and enhancement of EFH. As stated earlier, these
recommendations are non-binding. Any regulatory action that may reflect
these recommendations will be subject to the analysis and public review
required by state or Federal law, which will be the appropriate vehicle
for consideration of impacts to both fishing and non-fishing entities.
In the EA included with the amendment, the Council found, and NMFS
concurs, that there will be no significant impacts on the human
environment as a result of this amendment. The EFH regulations and NOAA
policy require that NMFS coordinate EFH consultations with other
consultation and commenting requirements under environmental review
procedures currently in place. This will eliminate duplication and
ensure a workable review process. 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
another statute. The requirements of the RFA do not apply to the
approval of this amendment, since a proposed rule has not been
developed.
Comment 6: A commenter charged that the amendment does not address
Magnuson-Stevens Act national standards 1 (overfishing), 2 (best
available scientific information), and 7 (unnecessary duplication).
Response: As a part of the Council's omnibus EFH amendment,
Monkfish Amendment 1 was intended to address only habitat issues,
including the EFH mandate of the Magnuson-Stevens Act. The recently
approved (March 3, 1999) Monkfish FMP includes the necessary provisions
to satisfy national standard 1. Since Amendment 1 does not detract from
nor negate the overfishing discussion and measures implemented in the
Monkfish FMP, it is consistent with national standard 1.
The amendment was developed with significant input from scientists
of the NMFS Northeast Fisheries Science Center and is based upon the
best scientific information available. In the strategic plan portion of
the amendment, the Councils have clearly stated their commitment to
updating the amendment as new information becomes available. NMFS finds
the amendment consistent with national standard 2.
The commenter does not elaborate upon its assertion that the
amendment violates national standard 7, so NMFS assumes, for the
purpose of responding to this comment, that the commenter is alleging
that the EFH consultation process is duplicative of other federally
required consultation processes. NMFS has determined that the EFH
amendment is consistent with the Magnuson-Stevens Act, including
national standard 7. Inter-agency consultations on Federal activities
that may adversely affect EFH are required by the Magnuson-Stevens Act;
they are not optional. 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 statutes 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.
As explained above, EFH consultations will be conducted to the greatest
extent possible under existing review processes and within existing
process time frames. NMFS is committed to a consultation process that
will be effective, efficient, and non-duplicative. The EFH regulations
at 50 CFR Part 600.920 suggest that NMFS be consulted as early as
possible in project planning so that appropriate
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conservation measures can minimize the potential for adverse effects to
EFH. The amendment contains conservation recommendations that are
appropriate for many Federal actions, and they can also serve as
guidelines that should be considered during project planning.
Comment 7: A commenter stated that the amendment avoided discussion
of fishing impacts to EFH.
Response: The Councils 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 Councils also evaluated fisheries management measures
currently in place and assessed their impact on EFH. Finally, the
Councils 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. Although the commenter may disagree with
the manner in which the information was presented, NMFS concludes that
the Councils satisfied the requirements of the Magnuson-Stevens Act and
the EFH regulations (50 CFR 600.815(a)(3)) regarding the assessment of
fishing gear impacts.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 11, 1999.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-15535 Filed 6-17-99; 8:45 am]
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