[Federal Register Volume 62, Number 78 (Wednesday, April 23, 1997)]
[Proposed Rules]
[Pages 19723-19732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10540]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 961030300-7090-03; I.D. 120996A]
RIN 0648-AJ30
Magnuson Act Provisions; Essential Fish Habitat (EFH)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to issue regulations containing guidelines for
the description and identification of essential fish habitat (EFH) in
fishery management plans (FMPs), adverse impacts on EFH, and actions to
conserve and enhance EFH. The regulations would also provide a process
for NMFS to coordinate and consult with Federal and state agencies on
activities that may adversely affect EFH. The guidelines are required
by the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act). The purpose of the rule is to assist Fishery
Management Councils (Councils) in fulfilling the requirements set forth
by the Magnuson-Stevens Act to amend their FMPs to describe and
identify EFH, minimize adverse effects on EFH, and identify other
actions to conserve and enhance EFH. The coordination and consultation
provisions would specify procedures for adequate consultation with NMFS
on activities that may adversely affect EFH.
[[Page 19724]]
DATES: Written comments on the proposed rule must be received on or
before May 23, 1997.
ADDRESSES: Comments should be sent to the Director, Office of Habitat
Conservation, Attention: EFH, NMFS, 1315 East-West Highway, Silver
Spring, MD 20910-3282. Copies of the Technical Assistance Manual,
previous advance notices of proposed rulemaking (ANPR), draft
environmental assessment (EA) and finding of no significant impact
(FONSI), and ``Framework for the Description, Identification,
Conservation, and Enhancement of Essential Fish Habitat'' (Framework)
are available. (see SUPPLEMENTARY INFORMATION).
FOR FURTHER INFORMATION CONTACT: Lee Crockett, NMFS, 301/713-2325.
SUPPLEMENTARY INFORMATION: A copy of the ANPRs, Framework, proposed
regulation, draft EA and FONSI, and Technical Assistance Manual are
available via the NMFS Office of Habitat Conservation Internet website
at: http://kingfish.ssp.nmfs.gov/rschreib/habitat.html or by contacting
one of the following NMFS Offices:
Office of Habitat Conservation, Attention: EFH, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3282; 301/713-2325.
Northeast Regional Office, Attention: Habitat and Protected Resources
Division, One Blackburn Drive, Gloucester, MA 01930; 508/281-9328.
Southeast Regional Office, Attention: Habitat Conservation Division,
9721 Executive Center Drive North, St. Petersburg, FL 33702; 813/570-
5317.
Southwest Regional Office, Attention: Habitat Conservation Division,
501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802; 310/980-4041.
Northwest Regional Office, Attention: Habitat Conservation Branch, 525
N.E. Oregon St., suite 500, Portland, OR 97232; 503/230-5421.
Alaska Regional Office, Attention: Protected Resources Management
Division, 709 West 9th Street, Federal Bldg., room 461, P.O. Box 21668,
Juneau, AK 99802-1668; 907/586-7235.
Related Documents
Concurrent with publication of this proposed rule, NMFS will make
available ``Technical Guidance to Implement the Essential Fish Habitat
Requirements for the Magnuson-Stevens Act.'' This manual provides
supplemental information for developing EFH recommendations and FMP
amendments. The document is intended to be updated regularly as new and
innovative methods are available in habitat identification and mapping.
The Technical Guidance Manual is based on and will contain similar
detail to that included in the Framework. The draft manual is available
for comment and may be obtained from any NMFS office listed in the
SUPPLEMENTARY INFORMATION section.
Background
This rulemaking is required by the Magnuson-Stevens Act (16 U.S.C.
1801 et seq) as reauthorized by the Sustainable Fisheries Act, signed
into law on October 11, 1996. It mandates that the Secretary of
Commerce (Secretary) shall, within 6 months of the date of enactment,
establish guidelines by regulation to assist the Councils to describe
and identify EFH in FMPs (including adverse impacts on such habitat)
and to consider actions to conserve and enhance such habitat. These
proposed regulations would establish a process for Councils to identify
and describe EFH, including adverse impacts to that habitat, per the
requirements of the Magnuson-Stevens Act. The Magnuson-Stevens Act also
requires that the Secretary, in consultation with fishing participants,
provide each Council with recommendations and information regarding
each fishery under that Council's authority to assist it to identify
EFH, the adverse impacts on that habitat, and actions that should be
considered to conserve and enhance that habitat. The proposed
regulation would establish procedures to carry out this mandate.
Councils must submit FMP amendments containing these new provisions by
October 11, 1998.
In addition, the Magnuson-Stevens Act requires that Federal
agencies consult with the Secretary on any activity authorized, funded,
or undertaken, or proposed to be authorized, funded, or undertaken,
that may adversely affect EFH. The Secretary must respond with
recommendations for measures to conserve EFH. The Secretary must
provide recommendations to states as well. The regulation would also
establish procedures to implement these consultative requirements.
This regulation proposes to address ecosystem considerations in
fishery management. Through the 1996 Magnuson-Stevens Act
reauthorization, FMPs are now required to describe and identify EFH
used by managed fishery resources. In addition, FMPs are required to
identify actions to ensure conservation and enhancement of EFH.
In developing this rule, NMFS published two ANPRs. The first,
published in the Federal Register on November 8, 1996 (61 FR 57843),
solicited comments to assist NMFS in developing a framework for the
proposed guidelines. The second ANPR was published on January 9, 1997
(62 FR 1306). That ANPR announced the availability of the Framework.
The Framework was developed to provide a detailed outline for the
regulations and to serve as an instrument to solicit public comments.
The document was made available to the public for comment from January
9, 1997, through February 12, 1997. During that time, NMFS held fifteen
public meetings, briefings, and workshops across the nation. Eighty-
eight comments were received via mail or fax, and numerous comments
were received during the public meetings. NMFS considered those
comments in developing the proposed regulations. In addition to the
regulations, a Technical Guidance Manual is available (see
SUPPLEMENTARY INFORMATION) to provide further details on how the
Councils will identify EFH for managed species and develop amendments
to their FMPs.
Relation to Other Laws
The Magnuson-Stevens Act establishes expanded requirements for
habitat sections of FMPs and requires consultation between the
Secretary and Federal and state agencies on activities that may
adversely impact EFH for those species managed under the Act. It also
requires the Federal action agency to respond to comments and
recommendations made by the Secretary and Councils. For the purpose of
consultation on activities that may adversely affect EFH, the
description of EFH included in the FMP would be determinative of the
limits of EFH. Mapping of EFH would be required in the proposed
regulations to assist the public and affected parties to learn where
EFH is generally located. However, due to anticipated data gaps and the
dynamic nature of physical and biological habitat characteristics, maps
would be used as supplementary information during the consultation
process.
The Fish and Wildlife Coordination Act (FWCA) provides a mechanism
for the Secretary to comment to other Federal agencies on activities
affecting any living marine resources. Under the FWCA, Federal agencies
are required to consult with the Secretary on habitat impacts from
water development projects. The Secretary is not, however, required to
consult with Federal agencies on all activities that may adversely
affect habitat of managed species, nor are agencies required to
[[Page 19725]]
respond to Secretarial comments under the FWCA. The FWCA will continue
to allow the Secretary to comment and make recommendations on Federal
activities that may adversely affect living marine resources and their
habitat, even if such habitat is not identified as EFH.
The Endangered Species Act (ESA) definition of ``critical habitat''
to describe habitats under its authority includes areas occupied by the
species at the time of listing, as well as those unoccupied areas that
are deemed ``essential for the conservation of a species.'' The EFH
regulations would specify that, for species listed under ESA, EFH will
always include critical habitat. EFH may be broader than critical
habitat if restoration of historic habitat areas is feasible, and more
habitat is necessary to support a sustainable fishery. Because the
statutory definition of EFH includes the full life cycle of species,
including growth to maturity, EFH will also be broader than critical
habitat where marine habitats have not been included in the
identification of critical habitat (e.g., for anadromous salmonids
listed under the ESA).
Coordination with Interested Parties
NMFS would closely coordinate the development of EFH
recommendations with the appropriate Councils, fishing participants,
interstate fisheries commissions, Federal agencies, state agencies, and
other interested parties.
Relation Between EFH and State-Managed Waters
Many species managed under the Magnuson-Stevens Act spend some part
of their life cycle in state waters (in most states 0-3 miles offshore)
as well as Federal waters (generally 3-200 miles offshore). Because the
statutory definition of EFH covers the entire life cycle of a species,
EFH may be identified within both Federal and state waters. Therefore,
the consultation provisions for activities that may adversely affect
EFH may require the Secretary to consult on activities in both Federal
and state waters. Councils may also comment on activities in both
Federal and state waters. The requirement for Councils to institute
management measures to minimize adverse effects of fishing, however,
would only address those fishing activities that occur in Federal
waters.
Summary of Principal Comments
The public comments focused on eight issues. A summary of these
issues and the NMFS response follows.
Issue 1: Species of fish for which the Councils must describe and
identify EFH. NMFS received comments suggesting that EFH should be
described and identified for only those species managed by a Council in
a FMP. Other interpretations suggested that ``fish'' includes all
species inhabiting the geographic jurisdiction of a Council. The latter
interpretation could include species not currently managed, but
considered important by the Council. NMFS concludes that Councils
should describe and identify EFH for only those species managed under
an FMP. According to the Magnuson-Stevens Act, EFH can only be
designated through an amendment to an FMP. The Council would not be
precluded from identifying the habitat required by other species not
covered in an FMP and taking steps to protect it. To the extent that
such habitat requirements enhance the ecosystem approach to FMPs, the
Councils would be encouraged to identify such habitat. However, those
habitats of currently non-managed species would not be considered EFH.
Issue 2: Timing of the development of EFH recommendations by NMFS.
Some commentors suggested that EFH for all species within a fishery
management unit must be completed simultaneously. Other commentors
suggested that EFH be described for only those species whose catch is a
significant component of the fishery. NMFS has concluded that the law
requires the Councils to identify EFH for all managed species within
its jurisdiction within the Act's EFH amendment period. The Technical
Guidance Manual suggests several ways that Councils may perform this
task more efficiently.
Issue 3: Identification of EFH for prey species. Some comments
suggested that EFH be identified for all prey species, as opposed to
just the predominant prey species. Other comments suggested that
identification of EFH for prey species was unnecessary because their
habitat requirements are covered by the range of EFH for the managed
species. NMFS has concluded that the habitat of prey species would not
be included as EFH for managed species. Rather, Councils would identify
the major prey species for the species managed under the FMP, and would
describe the habitat of significant prey species to help in determining
if there are activities that would adversely affect their habitat. This
analysis would be included in the ``adverse effects'' section of the
EFH FMP amendment, rather than the description and identification of
EFH section. The Councils should consider loss of prey habitat as an
adverse effect on a managed species.
Issue 4: Interpretation of what habitat is ``necessary'' for
spawning, breeding, feeding, and growth to maturity. In the Framework,
NMFS interpreted ``necessary'' to mean the amount of habitat needed to
support a target production level which included, at a minimum, maximum
sustainable yield of the fishery plus other ecological benefits such as
being prey for other living marine resources. Many commentors were
concerned that this connection was too narrow and suggested that either
it not be included in the guidelines, thereby coupling EFH only to
feeding, breeding, and growth to maturity, or expanding the definition.
NMFS has concluded that the goal of linking ``necessary'' to production
is appropriate, however, this objective has now been defined as the
production necessary to support a sustainable fishery and a healthy
ecosystem.
Issue 5: Intent of the EFH amendments in relation to fishing. NMFS
received comments that clarification is needed regarding fishing in
areas identified as EFH. NMFS has now clarified that the intent is not
to preclude fishing in areas identified as EFH. Rather, the intent is
to refine the Council's and NMFS' abilities to manage fishing
activities by taking into account the increasing knowledge and
understanding of the importance of habitat, and taking actions to
minimize adverse impacts from fishing, to the extent practicable.
Many comments requested guidance on how the Councils would
determine when a fishing activity has an adverse impact requiring
action. NMFS has provided additional guidance on this concern by
proposing to require an assessment of the impacts of all gear types
used in the EFH. The assessment would consider closure areas for
research to evaluate impacts. The Councils would act to prevent,
mitigate, or minimize any adverse impacts from fishing, to the extent
practicable, if there is evidence that a fishing practice is having a
substantial adverse impact on EFH based on the assessment.
Issue 6: Interpretation of ``to the extent practicable''. No
guidance was provided in the Framework on the exact meaning of the
phrase. Some commentors expressed concern that a lack of guidance
risked no additional actions being taken by Councils. Others expressed
the opinion that the impacts of fishing were already known, and
suggested closure areas to protect sensitive habitats. Cost-benefit
analysis was also suggested. NMFS has provided additional guidance
within the proposed rule. The regulation states that in determining
whether minimizing an
[[Page 19726]]
adverse impact from fishing is practicable, Councils should consider:
(1) Whether, and to what extent, the fishing activity is adversely
impacting the marine ecosystem, including the managed species; (2) the
nature and extent of the adverse effect on EFH; and (3) whether the
cost to the fishery is reasonable.
Issue 7: NMFS' interpretation of ``substrate.'' Commentors
suggested it be modified to include artificial reefs and shipwrecks as
EFH. NMFS agrees with this modification and clarifies that artificial
reefs and shipwrecks could be identified as EFH.
Issue 8: Notification of projects under general concurrence.
Several comments were received on general concurrences, suggesting that
if no notification is required for projects that fall within a general
concurrence category, NMFS would be unable to track the cumulative
effects of these categories of activities. NMFS continues to state in
the regulation that no notice of those actions covered by a general
concurrence would be required, but only if a process is in place by the
action agency to adequately assess cumulative impacts.
Comments were also received concerning opportunities for public
review of general concurrences prior to final approval and
implementation. Commentors were concerned that general concurrences
could be established that would exempt specific activities from the
consultation process without an opportunity for public review. NMFS has
provided in the regulations that it would use public Council meetings,
or other means, to provide opportunities for public comment on general
concurrences prior to formalization. If Council review is not
available, NMFS would provide other reasonable means for public review.
Compliance Requirements
While the Magnuson-Stevens Act requires Federal agencies to consult
with NMFS on activities that may adversely affect EFH and respond to
NMFS' recommendations, the Act did not place direct requirements for
compliance with conservation and enhancement recommendations provided
by NMFS. The procedures identified in the regulations however, outline
a method for cooperation and coordination between agencies, and options
for dispute resolution should this become necessary.
Classification
NMFS has prepared a draft environmental assessment that discusses
the impact on the environment as a result of this rule. A copy of the
environmental assessment is available from NMFS (see SUPPLEMENTARY
INFORMATION).
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The proposed rule would establish guidelines for
Councils to identify and describe EFH, including adverse impacts, and
conservation and enhancement measures. The proposed regulation requires
that the Councils conduct assessments of the effects of fishing on EFH
within their jurisdiction. Should Councils establish regulations on
fishing as a result of the guidelines and assessments of fishing gear,
that action may affect small entities and could be subject to the
requirement to prepare a regulatory flexibility analysis at that time.
Finally, the consultation procedures establish a process for NMFS to
provide conservation recommendations to Federal and state action
agencies. However, because compliance with NMFS' recommendations are
not mandatory, any effects on small businesses would be speculative. As
a result, a regulatory flexibility analysis for this proposed rule was
not prepared. This proposed rule has been determined to be not
significant for the purposes of E.O. 12866.
For purposes of Executive Order 12612, the Assistant Administrator
for Fisheries has determined that this proposed rule does not include
policies that have federalism implications sufficient to warrant
preparation of a Federalism Assessment. This proposed rule establishes
circumstances and procedures for consultations between the states and
NMFS or the Councils in situations where state action may adversely
impact EFH in state waters. The proposed rule states that, in such
circumstances, NMFS or the Councils would furnish the state with EFH
conservation recommendations. NMFS' recommendations are not mandatory,
and the states are not required to expend funds in a way not of their
own choosing.
List of Subjects in 50 CFR Part 600
Fisheries, Fishing.
Dated: April 17, 1997.
Charles Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
U.S. Department of Commerce.
For the reasons stated in the preamble, 50 CFR part 600 is proposed
to be amended as follows:
PART 600--MAGNUSON ACT PROVISIONS
1. The authority citation for part 600 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 600.10 is amended by adding the definition for
``Essential fish habitat'', in alphabetical order, to read as follows:
Sec. 600.10 Definitions.
* * * * *
Essential fish habitat means those waters and substrate necessary
to fish for spawning, breeding, feeding, or growth to maturity. For the
purpose of interpreting the definition of essential fish habitat:
``waters'' includes aquatic areas and their associated physical,
chemical, and biological properties that are used by fish, and may
include areas historically used by fish where appropriate;
``substrate'' includes sediment, hard bottom, structures underlying the
waters, and associated biological communities; ``necessary'' means the
habitat required to support a sustainable fishery and a healthy
ecosystem; and ``spawning, breeding, feeding, or growth to maturity''
covers a species' full life cycle.
* * * * *
3. A new subpart is added to part 600 to read as follows:
Subpart I--Essential Fish Habitat (EFH)
Sec.
600.805 Purpose and scope.
600.810 Contents of Fishery Management Plans.
600.815 Coordination and consultation on actions that may adversely
affect EFH.
Sec. 600.805 Purpose and scope.
(a) Purpose. This subpart provides guidelines for the description,
identification, conservation, and enhancement of, and adverse impacts
to, EFH. These guidelines provide the basis for Councils and the
Secretary to use in adding the required provision on EFH to an FMP,
i.e., description and identification of EFH, adverse impacts on EFH
(including minimizing, to the extent practicable, adverse impacts from
fishing), and other actions to conserve and enhance EFH. This subpart
also
[[Page 19727]]
includes procedures to implement the consultation requirements for all
Federal and state actions that may adversely affect EFH.
(b) Scope. An EFH provision in an FMP must include all fish species
in the FMU. An FMP may describe, identify, and protect the habitat of
species not in an FMU; however, such habitat may not be considered EFH
for the purposes of sections 303(a)(7) and 305(b) of the Magnuson Act.
Sec. 600.810 Contents of Fishery Management Plans.
(a) Mandatory contents--(1) Habitat requirements by life history
stage. FMPs must describe EFH in text and with tables that provide
information on the biological requirements for each life history stage
of the species. These tables should summarize all available information
on environmental and habitat variables that control or limit
distribution, abundance, reproduction, growth, survival, and
productivity of the managed species. Information in the tables should
be supported with citations.
(2) Description and identification of EFH--(i) Information
requirements. (A) An initial inventory of available environmental and
fisheries data sources relevant to the managed species should be useful
in describing and identifying EFH. This inventory should also help to
identify major species-specific habitat data gaps. Deficits in data
availability (i.e., accessibility and application of the data) and in
data quality (including considerations of scale and resolution;
relevance; and potential biases in collection and interpretation)
should be identified.
(B) To identify EFH, basic information is needed on current and
historic stock size and on the geographic range of the managed species.
Information is also required on the temporal and spatial distribution
of each major life history stages (defined by developmental and
functional shifts). Since EFH should be identified for each major life
history stage, data should be collected on the distribution, density,
growth, mortality, and production of each stage within all habitats
occupied by the species. These data should be obtained from the best
available information, including peer-reviewed literature, data reports
and ``gray'' literature, data files of government resource agencies,
and any other sources of quality information.
(C) The following approach should be used to gather and organize
the data necessary for identifying EFH. Information from all levels
will be useful in identifying EFH, and the goal of this procedure
should be to include as many levels of analysis as possible within the
constraints of the available data. Councils should strive to obtain
data sufficient to describe habitat at the highest level of detail
(i.e., Level 4).
(1) Level 1: Presence/absence distribution data are available for
some or all portions of the geographic range of the species. At this
level, only presence/absence data are available to describe the
distribution of a species (or life history stage) in relation to
existing and potential habitats. Care should be taken to ensure that
all habitats have been sampled adequately. In the event that
distribution data are available for only portions of the geographic
area occupied by a particular life history stage of a species, EFH can
be inferred on the basis of distributions among habitats where the
species has been found and on information about its habitat
requirements and behavior.
(2) Level 2: Habitat-related densities of the species are
available. At this level, quantitative data (i.e., relative densities)
are available for the habitats occupied by a species or life history
stage. Because the efficiency of sampling gear is often affected by
habitat characteristics, strict quality assurance criteria are required
to ensure that density estimates are comparable among habitats. Density
data should reflect habitat utilization, and the degree that a habitat
is utilized is assumed to be indicative of habitat value. When
assessing habitat value on the basis of fish densities in this manner,
temporal changes in habitat availability and utilization should be
considered.
(3) Level 3: Growth, reproduction, or survival rates within
habitats are available. At this level, data are available on habitat-
related growth, reproduction, and/or survival by life history stage.
The habitats contributing the most to productivity should be those that
support the highest growth, reproduction, and survival of the species
(or life history stage).
(4) Level 4: Production rates by habitat are available. At this
level, data are available that directly relate the production rates of
a species or life history stage to habitat type, quantity, quality, and
location. Essential habitats are those necessary to maintain fish
production consistent with a sustainable fishery and a healthy
ecosystem.
(ii) EFH determination. (A) The information obtained through the
analysis in paragraph (a)(2)(i) of this section will allow Councils to
assess the relative value of habitats. Councils should apply this
information in a risk-averse fashion, erring on the side of
inclusiveness to ensure adequate protection for EFH of managed species.
If only Level 1 information is available, EFH is everywhere a species
is found. If Levels 2 through 4 information is available, habitats
valued most highly through this analysis should be considered essential
for the species. However, habitats of intermediate and low value may
also be essential, depending on the health of the fish population and
the ecosystem.
(B) If a species is overfished or recovering from a population
decline, all habitats used by the species should be considered
essential in addition to certain historic habitats that are necessary
to support the recovery of the population and for which restoration is
feasible.
(C) EFH will always be greater than or equal to the ``critical
habitat'' for any managed species listed as threatened or endangered
under the Endangered Species Act.
(D) Where a stock of a species is considered to be healthy and
sufficient information exists to determine the necessary habitat to
support the target production goal, then EFH for a species should be a
subset of all existing habitat for the species.
(E) Ecological relationships among species, and between the species
and their habitat, require, where possible, that an ecosystem approach
be used in determining the EFH of a managed species or species
assemblage. The extent of the EFH should be based on the judgment of
the Secretary and the appropriate Council(s) regarding the quantity and
quality of habitat that is necessary to maintain a managed species or
species assemblage at a target production goal that supports a
sustainable fishery and a healthy ecosystem. Councils must establish
target production goals for the fish species in the FMU of an FMP as a
goal of the FMP. In determining a target production goal that supports
a sustainable fishery and a healthy ecosystem, the Secretary and the
appropriate Council(s) should consider: the prey requirements of the
managed species; the extent to which the managed species is prey for
other managed species or marine mammals; the production necessary to
support a sustainable fishery; and other ecological functions provided
by the managed species. If degraded or inaccessible habitat has
contributed to the reduced yields of a species or assemblage, and in
the judgment of the Secretary and the appropriate Council(s), the
degraded conditions can be reversed through such actions as improved
fish passage techniques (for fish blockages), improved water quality or
quantity measures (removal of contaminants or
[[Page 19728]]
increasing flows), and similar measures that are feasible, then EFH
should include those habitats that would be essential to the species to
obtain increased yields.
(iii) EFH Mapping Requirements. The general distribution and
geographic limits of EFH for each life history stage should be
presented in FMPs in the form of maps. Ultimately, these data should be
incorporated into a geographic information system (GIS) to facilitate
analysis and presentation. These maps may be presented as fixed in time
and space but they should encompass all appropriate temporal and
spatial variability in the distribution of EFH. If the geographic
boundaries of EFH change seasonally, annually, or decadally, these
changing distributions should be represented in the maps. Different
types of EFH should be identified on maps along with areas used by
different life history stages of the species. The type of information
used to identify EFH should be included in map legends, and more
detailed and informative maps should be produced as more complete
information about population responses (e.g., growth, survival, or
reproductive rates) to habitat characteristics becomes available. Where
the present distribution or stock size of a species or life history
stage is different from the historical distribution or stock size, then
maps of historical habitat boundaries should be included in the FMP, if
known. The EFH maps are a means to visually present the EFH described
in the FMP. If the maps and information in the description of EFH
varies, the description is ultimately determinative of the limits of
EFH.
(3) Non-fishing related activities that may adversely affect EFH--
(i) Identification of adverse effects. FMPs must identify activities
that have potential adverse effects on EFH quantity and quality. Broad
categories of activities may include, but are not limited to: dredging,
fill, excavation, mining, impoundment, discharge, water diversions,
thermal additions, runoff, placement of contaminated material,
introduction of exotic species, and the conversion of aquatic habitat
that may eliminate, diminish, or disrupt the functions of EFH. If
known, an FMP should describe the EFH most likely to be affected by
these activities. For each activity, the FMP should describe the known
or potential impacts to EFH. These descriptions should explain the
mechanisms or processes that cause expected deleterious effects and
explain the known or potential impacts on the habitat function.
(ii) Cumulative impacts analysis. To the extent practicable, FMPs
should identify and describe those activities that can influence
habitat function on an ecosystem or watershed scale. This analysis
should include a description of the ecosystem or watershed, the role of
the managed species in the ecosystem or watershed, and the impact on
the ecosystem or watershed of removal of the managed species. An
assessment of the cumulative and synergistic effects of multiple
threats, including natural adverse effects (such as storm damage or
climate-based environmental shifts), and an ecological risk assessment
of the managed species' habitat should also be included. For the
purposes of this analysis, cumulative impacts are impacts on the
environment that result from the incremental impact of an action when
added to other past, present, and reasonably foreseeable future
actions, regardless of who undertakes such actions. Cumulative impacts
can result from individually minor, but collectively significant
actions taking place over a period of time.
(iii) Mapping adverse impacts. The use of a GIS or other mapping
system to analyze and present these data in an FMP is suggested for
documenting impacts identified under paragraph (a)(3)(i) of this
section and required when the analysis in paragraph (a)(3)(ii) of this
section is conducted.
(iv) Conservation and enhancement. FMPs should include options to
minimize the adverse effects identified pursuant to paragraphs
(a)(3)(i) and (ii) of this section and identify conservation and
enhancement measures. Generally, non-water dependent actions should not
be located in EFH. Actions not in EFH but that may result in
significant adverse affects on EFH should be avoided if less
environmentally harmful alternatives are available. If there is no
alternative, these actions should be minimized. If avoidance and
minimization will not adequately protect EFH, mitigation to conserve
and enhance EFH will be recommended. These recommendations may include,
but are not limited to:
(A) Avoidance and minimization of adverse impacts on EFH.
Environmentally sound engineering and management practices (e.g.,
seasonal restrictions, dredging methods, and disposal options) should
be employed for all dredging and construction projects. Disposal of
contaminated dredged material, sewage sludge, industrial waste or other
materials in EFH should be avoided. Oil and gas exploration,
production, transportation, and refining activities in EFH should be
avoided, where possible, and minimized and mitigated if unavoidable.
(B) Restoration of riparian and shallow coastal areas. Restoration
measures may include: Restoration of functions of riparian vegetation
by reestablishing endemic trees or other appropriate native vegetation;
restoration of natural bottom characteristics; removal of unsuitable
material from areas affected by human activities; and replacement of
suitable gravel or substrate to stream areas for spawning.
(C) Upland habitat restoration. This may include measures to
control erosion, stabilize roads, upgrade culverts or remove dikes or
levees to allow for fish passage, and the management of watersheds.
(D) Water quality. This includes use of best land management
practices for ensuring compliance with water quality standards at state
and Federal levels, improved treatment of sewage, and proper disposal
of waste materials .
(E) Watershed analysis and subsequent watershed planning. This
should be encouraged at the local and state levels. This effort should
minimize depletion/diversion of freshwater flows into rivers and
estuaries, destruction/degradation of wetlands, and restoration of
native species, and should consider climate changes.
(F) Habitat creation. Under appropriate conditions, habitat
creation may be considered as a means of replacing lost EFH. However,
habitat creation at the expense of other naturally functioning systems
must be justified (e.g., marsh creation with dredge material placed in
shallow water habitat).
(4) Fishing activities that may adversely affect EFH.--(i) Adverse
effects from fishing may include physical disturbance of the substrate,
and loss of and injury to, benthic organisms, prey species and their
habitat, and other components of the ecosystem.
(ii) FMPs must include management measures that minimize adverse
effects on EFH from fishing, to the extent practicable, and identify
conservation and enhancement measures. The FMP must contain an
assessment of the potential adverse effects of all fishing gear types
used in waters described as EFH. Included in this assessment should be
consideration of the establishment of research closure areas and other
measures to evaluate the impact of any fishing activity that physically
alters EFH.
(iii) Councils must act to prevent, mitigate, or minimize any
adverse effects from fishing, to the extent
[[Page 19729]]
practicable, if there is evidence that a fishing practice is having a
substantial adverse effect on EFH, based on the assessment conducted
pursuant to paragraph (a)(4)(ii).
(iv) In determining whether it is practicable to minimize an
adverse effect from fishing, Councils should consider whether, and to
what extent, the fishing activity is adversely impacting the marine
ecosystem, including the fishery; the nature and extent of the adverse
effect on EFH; and whether the benefit to the EFH achieved by
minimizing the adverse effect justifies the cost to the fishery.
(5) Options for managing adverse effects from fishing. Fishing
management options may include, but are not limited to:
(i) Fishing gear restrictions. These options may include, but are
not limited to: limit seasonal and areal uses of trawl gear and bottom
longlines; restrict net mesh sizes, traps, and entanglement gear to
allow escapement of juveniles and non-target species; reduce fish and
shellfish traps set near coral reefs and other hard bottoms; limit
seasonal and areal uses of dredge gear in sensitive habitats; prohibit
use of explosives and chemicals; restrict diving activities that have
potential adverse effects; prohibit anchoring of fishing vessels in
coral reef areas and other sensitive areas; and prohibit fishing
activities that cause significant physical damage in EFH.
(ii) Time/area closures. These actions may include, but are not
limited to: closing areas to all fishing or specific gear types during
spawning, migration, foraging and nursery activities; and designating
zones to limit effects of fishing practices on certain vulnerable or
rare areas/species/life history stages.
(iii) Harvest limits. These actions may include, but are not
limited to, limits on the take of species that provide structural
habitat for other species assemblages or communities and limits on the
take of prey species.
(6) Prey species. Loss of prey is an adverse effect on a managed
species and its EFH; therefore, FMPs should identify the major prey
species for the species in the FMU and generally describe the location
of prey species' habitat and the threats to that habitat. Adverse
effects on prey species may result from fishing and non-fishing
activities.
(7) Identification of vulnerable habitat. FMPs should identify
vulnerable EFH. In determining whether a type of EFH is vulnerable,
Councils should consider:
(i) The extent to which the habitat is sensitive to human-induced
environmental degradation.
(ii) Whether, and to what extent, development activities are, or
will be, stressing the habitat type.
(iii) The rarity of the habitat type.
(8) Research and information needs. Each FMP should contain
recommendations, preferably in priority order, for research efforts
that the Councils and NMFS view as necessary for carrying out their EFH
management mandate. The need for additional research is to make
available sufficient information to support a higher level of
description and identification of EFH under paragraph (a)(2)(i) of this
section. Additional research may also be necessary to identify and
evaluate actual and potential adverse effects on EFH, including, but
not limited to direct physical alteration; impaired habitat quality/
functions; or indirect adverse effects such as sea level rise, global
warming and climate shifts; and non-gear fishery impacts. The Magnuson-
Stevens Act specifically identifies the effects of fishing as a
concern. The need for additional research on the effects of fishing
gear on EFH should be included in this section of the FMP. If an
adverse effect is identified and determined to be an impediment to
reaching target long-term production levels, then the research needed
to quantify and mitigate that effect should be identified in this
section.
(9) Review and revision of EFH components of FMPs. Each Council and
NMFS are expected to periodically review the EFH components of FMPs.
Each EFH FMP amendment should include a provision requiring review and
update of EFH information and preparation of a revised FMP amendment if
new information becomes available. The schedule for this review should
be based on an assessment of both the existing data and expectations
when new data will become available. Such a review of information
should be conducted as recommended by the Secretary, but at least once
every five years.
(b) Optional components. An FMP may include a description and
identification of, and contain management measures to protect, the
habitat of species under the authority of the Council, but not
contained in the FMU. However, such habitat may not be considered EFH.
(c) Development of EFH recommendations. After reviewing the best
available scientific information, and in cooperation with the Councils,
participants in the fishery, interstate commissions, Federal agencies,
state agencies, and other interested parties, NMFS will develop written
recommendations for the identification of EFH for each FMP. Prior to
submitting a written EFH identification recommendation to a Council for
an FMP, the draft recommendation will be made available for public
review and at least one public meeting will be held. NMFS will work
with the affected Council(s) to conduct this review in association with
scheduled public Council meetings whenever possible. The review may be
conducted at a meeting of the Council committee responsible for habitat
issues or as a part of a full Council meeting. After receiving public
comment, NMFS will revise its draft recommendations, as appropriate,
and forward written recommendation and comments to the Council(s).
Sec. 600.815 Coordination and consultation on actions that may
adversely affect EFH.
(a) General--(1) Scope. One of the greatest long-term threats to
the viability of the Nation's fisheries is the decline in the quantity
and quality of marine, estuarine, and other riparian habitats. These
procedures address the coordination and consultation requirements of
sections 305(b)(1)(D) and 305(b)(2-4) of the Magnuson-Stevens Act. The
consultation requirements of the Magnuson-Stevens Act provide that:
Federal agencies must consult with the Secretary on all actions, or
proposed actions, authorized, funded, or undertaken by the agency, that
may adversely affect EFH; and the Secretary and the Councils provide
recommendations to conserve EFH to Federal or state agencies. EFH
conservation recommendations are measures recommended by the Councils
or NMFS to a Federal or state agency to conserve EFH. Such
recommendations may include measures to avoid, minimize, mitigate, or
otherwise offset adverse effects on EFH resulting from actions or
proposed actions authorized, funded, or undertaken by that agency. The
coordination section requires the Secretary to coordinate with, and
provide information to, other Federal agencies regarding EFH. These
procedures for coordination and consultation allow all parties involved
to understand and implement the consultation requirements of the
Magnuson-Stevens Act.
(2) Coordination with other environmental reviews. Consultation and
coordination under sections 305(b)(2) and 305(b)(4) of the Magnuson-
Stevens Act may be consolidated, where appropriate, with interagency
coordination procedures required by other statutes, such as the
National Environmental Policy Act, the Fish and Wildlife Coordination
Act, the
[[Page 19730]]
Clean Water Act, Endangered Species Act, and the Federal Power Act, to
reduce duplication and improve efficiency. For example, a Federal
agency preparing an environmental impact statement (EIS) need not
duplicate sections of that document in a separate EFH assessment,
provided the EIS specifically and fully evaluates the effects of the
proposed action on EFH, notes that it is intended to function as an EFH
assessment, is provided to NMFS for review, and meets the other
requirements for an EFH assessment contained in this section. NMFS
comments on these documents will also function as its response required
under section 305(b)(4) of the Magnuson-Stevens Act.
(3) Designation of Lead Agency. If more than one Federal or state
agency is involved in an action (e.g., authorization is needed from
more than one agency), the consultation requirements of sections
305(b)(2-4) of the Magnuson-Stevens Act may be fulfilled through a lead
agency. The lead agency must notify NMFS in writing that it is
representing one or more additional agencies.
(4) Conservation and enhancement of EFH. To further the
conservation and enhancement of EFH, in accordance with section
305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will compile and make
available to other Federal and state agencies information on the
locations of EFH, including maps and/or narrative descriptions. Federal
and state agencies empowered to authorize, fund, or undertake actions
that could adversely affect EFH should contact NMFS and the Councils to
become familiar with the designated EFH, and potential threats to EFH,
as well as opportunities to promote the conservation and enhancement of
such habitat.
(b) Council comments and recommendations to Federal and state
agencies--(1) Establishment of procedures. Each Council should
establish procedures for reviewing activities, or proposed activities,
authorized, funded, or undertaken by state or Federal agencies that may
affect the habitat, including EFH, of a species under its authority.
Each Council may identify activities of concern by: directing Council
staff to track proposed actions; recommending that the Council's
habitat committee identify activities of concern; entering into an
agreement with NMFS to have the appropriate Regional Director notify
the Council of activities that may adversely impact EFH; or by similar
procedures. Federal and state actions often follow specific timetables
which may not coincide with Council meetings. Councils should consider
establishing abbreviated procedures for the development of Council
recommendations.
(2) Early involvement. Councils should provide comments and
recommendations on proposed state and Federal activities of interest as
early as practicable in project planning to ensure thorough
consideration of Council concerns by the action agency.
(3) Coordination with NMFS. The Secretary will develop agreements
with each Council to facilitate sharing information on actions that may
adversely affect EFH and in coordinating Council and NMFS responses to
those actions.
(4) Anadromous fishery resources. For the purposes of the
consultation requirement of section 305(b)(3)(B) of the Magnuson-
Stevens Act, an anadromous fishery resource under a Council's authority
is an anadromous species where some life stage inhabits waters under
the Council's authority.
(c) Federal agency consultation--(1) Interagency coordination. Both
Federal and state agencies are encouraged to coordinate their actions
with NMFS to facilitate the early identification of potential adverse
effects on EFH. This will allow consideration of measures to conserve
and enhance EFH early in the project design. The consultation
requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-
Stevens Act differ for Federal and state agencies. Only Federal
agencies have a mandatory statutory requirement to consult with NMFS
regarding actions that may adversely affect EFH, pursuant to section
305(b)(2) of the Magnuson-Stevens Act. NMFS is required under section
305(b)(4) to provide EFH recommendations regarding both state and
Federal agency actions that could adversely affect EFH (see
Sec. 600.810(a)(3) for further guidance on actions that could adversely
affect EFH). Both Federal and state agencies are encouraged to develop
agreements (or modify existing agreements) with NMFS to meet the
consultation requirements in a manner to increase efficiency and to
fully meet the requirements of the EFH provisions.
(2) Designation of non-Federal representative. A Federal agency may
designate a non-Federal representative to conduct an abbreviated
consultation or prepare an EFH assessment by giving written notice of
such designation to NMFS. If a non-Federal representative is used, the
Federal action agency remains ultimately responsible for compliance
with sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act.
(3) General Concurrence--(i) Purpose. The General Concurrence
process identifies specific types of Federal actions that may adversely
affect EFH, but for which no further consultation is generally required
because NMFS has determined, through an analysis of that type of
action, that it will likely to result in minimal adverse effects
individually and cumulatively. General Concurrences may be national or
regional in scope.
(ii) Criteria. (A) For Federal actions to qualify for General
Concurrence, NMFS must determine, after consultation with the
appropriate Council(s), that the actions meet all of the following
criteria:
(1) The actions must be similar in nature and similar in their
impact on EFH.
(2) The actions must not cause greater than minimal adverse effects
on EFH when implemented individually.
(3) The actions must not cause greater than minimal cumulative
adverse effects on EFH.
(B) Categories of Federal actions may also qualify for General
Concurrence if they are modified by appropriate conditions that ensure
the actions will meet the criteria in paragraph (c)(3)(ii)(A) of this
section. For example, NMFS may provide General Concurrence for
additional actions contingent upon project size limitations, seasonal
restrictions, or other conditions.
(iii) General Concurrence development. A Federal agency may request
a General Concurrence for a category of its actions by providing NMFS
with a written description of the nature and approximate number of the
proposed actions, an analysis of the effects of the actions on EFH and
associated species and their life history stages, including cumulative
effects, and the Federal agency's conclusions regarding the magnitude
of such effects. If NMFS agrees that the actions fit the criteria in
paragraph (c)(3)(ii) of this section, NMFS, in consultation with the
Council(s), will provide the Federal agency with a written statement of
General Concurrence that further consultation is not required, and that
preparation of EFH assessments for individual actions subject to the
General Concurrence is not necessary. If NMFS determines that
individual actions that fall within the General Concurrence would
adversely affect EFH, NMFS will notify the Federal agency that
abbreviated or expanded consultation is required. If NMFS identifies
specific types of Federal actions that may meet the requirements for a
General Concurrence, NMFS may initiate and complete a General
Concurrence.
[[Page 19731]]
(iv) Notification and further consultation. NMFS may request
notification for activities covered under a General Concurrence if NMFS
concludes there are circumstances under which such activities could
result in more than a minimal impact on EFH, or if it determines that
there is not a process in place to adequately assess the cumulative
impacts of activities covered under the General Concurrence. NMFS may
require further consultation for these activities on an individual
action. Each General Concurrence should establish specific procedures
for further consultation.
(v) Public review. Prior to providing a Federal agency with a
written statement of General Concurrence for a category of Federal
actions, NMFS will provide an opportunity for public review through the
appropriate Council(s), or other reasonable opportunity for public
review.
(vi) Revisions to General Concurrences. NMFS will periodically
review and revise its findings of General Concurrence, as appropriate.
(4) EFH Assessments--(i) Preparation requirement. Federal agencies
(or designated non-Federal representatives) must complete an EFH
assessment for any action that may adversely affect EFH, except for
those activities covered by a General Concurrence. Where appropriate,
Federal agencies may combine requirements for environmental documents
such as Endangered Species Act Biological Assessments pursuant to 50
CFR part 402 or National Environmental Policy Act documents and public
notices pursuant to 40 CFR part 1500, with their EFH Assessment. This
document must include all of the information required in paragraph
(c)(4)(ii) of this section and the requirements for other applicable
environmental documents to be considered a complete assessment.
(ii) Mandatory contents. The assessment must contain:
(A) A description of the proposed action.
(B) An analysis of the effects, including cumulative effects, of
the proposed action on EFH and the managed and associated species,
including their life history stages.
(C) The Federal agency's conclusions regarding the effects of the
action on EFH.
(iii) Additional information. If appropriate, the assessment should
also include:
(A) The results of an on-site inspection to evaluate the habitat
and the site-specific effects of the project.
(B) The views of recognized experts on the habitat or species that
may be affected.
(C) A review of pertinent literature and related information.
(D) An analysis of alternatives to the proposed action, including
alternatives that could avoid or minimize adverse effects on EFH.
(E) Proposed mitigation.
(F) Other relevant information.
(iv) Incorporation by reference. The assessment may incorporate by
reference a completed EFH Assessment prepared for a similar action,
supplemented with any relevant new project specific information,
provided the proposed action involves similar impacts to EFH in the
same geographic area or a similar ecological setting. It may also
incorporate by reference other relevant environmental assessment
documents. These documents must be provided to NMFS.
(5) Abbreviated consultation procedures--(i) Purpose. Abbreviated
consultation allows NMFS to quickly determine whether, and to what
degree, a Federal agency action may adversely affect EFH. The
abbreviated consultation process is appropriate for Federal actions
that would adversely affect EFH when, in NMFS' judgment, the adverse
effect(s) of such actions could be alleviated through minor
modifications to the proposed action.
(ii) Notification by agency. The Federal agency must notify NMFS
and the appropriate Council in writing as early as practicable
regarding proposed actions that may adversely affect EFH. Notification
will facilitate discussion of measures to conserve the habitat. Such
early consultation must normally occur during pre-application planning
for projects subject to a Federal permit or license, and during
preliminary planning for projects to be funded or undertaken directly
by a Federal agency.
(iii) Submittal of EFH Assessment. The Federal agency must submit a
completed EFH assessment to NMFS for review in accordance with
paragraph (c)(4) of this section. If either the Federal agency or NMFS
believes expanded consultation will be necessary, the Federal agency
must initiate expanded consultation concurrently with submission of the
EFH Assessment. Federal agencies will not have fulfilled their
consultation requirement under paragraph (a)(1) of this section until
timely notification and submittal of a complete EFH Assessment.
(iv) NMFS response. NMFS must respond in writing as to whether it
concurs with the findings of the assessment. NMFS' response shall
indicate whether expanded consultation is required. If additional
consultation is not necessary, NMFS' response must include any
necessary EFH conservation recommendations to be used by the Federal
action agency. NMFS will send a copy of its response to the appropriate
Council.
(v) Timing. The Federal action agency must submit its complete EFH
Assessment to NMFS as soon as practicable, but at least 60 days prior
to a final decision on the action, and NMFS must respond in writing
within 30 days. If notification and the EFH Assessment are combined
with other environmental reviews required by statute, then the
statutory deadline for those reviews apply to the submittal and
response. If NMFS and the Federal action agencies agree, a compressed
schedule will be used in cases where regulatory approvals cannot
accommodate 30 days for consultation, or to conduct consultation
earlier in the planning cycle for proposed actions with lengthy
approval processes.
(6) Expanded consultation procedures--(i) Purpose. Expanded
consultation is appropriate for Federal actions that would result in
substantial adverse effects to EFH and/or require more detailed
analysis to enable NMFS to develop EFH conservation recommendations.
(ii) Initiation. Expanded consultation begins when NMFS receives a
written request from a Federal action agency to initiate expanded
consultation. The Federal action agency's written request must include
a completed EFH Assessment in accordance with paragraph (c)(4) of this
section. Because expanded consultation is required for activities that
may potentially have substantial adverse impacts on EFH, Federal action
agencies are encouraged to provide the additional information
identified under paragraph (c)(4)(iii) of this section. Subject to
NMFS's approval, any request for expanded consultation may encompass a
number of similar individual actions within a given geographic area.
(iii) NMFS response. NMFS will:
(A) Review the EFH Assessment, any additional information furnished
by the Federal agency, and other relevant information.
(B) Conduct a site visit, if appropriate, to assess the quality of
the habitat and to clarify the impacts of the Federal agency action.
(C) Evaluate the effects of the action on EFH, including cumulative
effects.
(D) Coordinate its review of the proposed action with the
appropriate Council.
[[Page 19732]]
(E) Formulate EFH conservation recommendations and provide the
recommendations to the Federal action agency and the appropriate
Council.
(iv) Timing. The Federal action agency must submit its complete EFH
Assessment to NMFS as soon as practicable, but at least 120 days prior
to a final decision on the action, and NMFS must conclude expanded
consultation within 90 days of submittal of a complete Assessment
unless extended by NMFS with notification to the Federal action agency.
If notification and the EFH Assessment are combined with other
statutorily required environmental reviews, then the statutory
deadlines for those reviews apply to the submittal and response. NMFS
and Federal action agencies may agree to use a compressed schedule in
cases where regulatory approvals cannot accommodate a 60 day
consultation period.
(v) Best scientific information. The Federal action agency must
provide NMFS with the best scientific information available, or
reasonably accessible during the consultation, regarding the effects of
the proposed action on EFH.
(vi) Extension of consultation. If NMFS determines that additional
data or analysis would provide better information for development of
EFH conservation recommendations, NMFS may request additional time for
its expanded consultation. If NMFS and the Federal action agency agree
to an extension, the Federal action agency must provide the additional
information to NMFS, to the extent practicable. If NMFS and the Federal
action agency do not agree to extend consultation, NMFS must provide
EFH conservation recommendations to the Federal action agency using the
best scientific data available to NMFS.
(7) Responsibilities of Federal action agency following receipt of
EFH conservation recommendations--(i) Federal action agency response.
Within 30 days after receiving an EFH conservation recommendation (or
at least 10 days prior to final approval of the action, if a decision
by the Federal agency is required in less than 30 days), the Federal
action agency must provide a detailed response in writing to NMFS and
the appropriate Council. The response must include a description of
measures proposed by the agency for avoiding, mitigating, or offsetting
the impact of the activity on EFH. In the case of a response that is
inconsistent with the recommendations of NMFS, the Federal action
agency must explain its reasons for not following the recommendations,
including the scientific justification for any disagreements with NMFS
over the anticipated effects of the proposed action and the measures
needed to avoid, minimize, mitigate, or offset such effects.
(ii) Dispute resolution. After receiving a Federal action agency
response that is inconsistent with the recommendations of NMFS, the
Assistant Administrator may request a meeting with the head of the
Federal action agency, as well as any other agencies involved, to
discuss the proposed action and opportunities for resolving any
disagreements. Memoranda of agreement with Federal action agencies will
be sought to further define such dispute resolution processes.
(8) Supplemental consultation. A Federal action agency must resume
consultation with NMFS following either abbreviated or expanded
consultation if the agency substantially revises its plans for the
action in a manner that may adversely affect EFH or if new information
becomes available that affects the basis for NMFS' EFH conservation
recommendations. Additionally, where Federal oversight, involvement, or
control over the action has been retained or is authorized by law, the
Federal action agency must resume consultation if new EFH is designated
that may be adversely affected by the agency's exercise of its
authority.
(d) NMFS recommendations to state agencies--(1) Establishment of
Procedures. Each Region should establish procedures for identifying
actions or proposed actions authorized, funded, or undertaken by state
agencies that may adversely affect EFH, and for identifying the most
appropriate method for providing EFH conservation recommendations to
the state agency.
(2) Coordination with Federal consultation procedures. When an
activity that may adversely affect EFH requires authorization or
funding by both Federal and state agencies, NMFS will provide the
appropriate state agencies with copies of EFH conservation
recommendations developed as part of the Federal consultation
procedures in paragraph (c) of this section.
[FR Doc. 97-10540 Filed 4-22-97; 8:45 am]
BILLING CODE 3510-22-P
