Rule2024-02239
Fisheries of the Northeastern United States; Framework Adjustments to Northeast Multispecies, Atlantic Sea Scallop, Monkfish, Northeast Skate Complex, and Atlantic Herring Fisheries; Southern New England Habitat Area of Particular Concern Designation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 5, 2024
Effective
March 6, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This action implements the New England Fishery Management Council's Framework Adjustment that identifies a Habitat Area of Particular Concern offshore of Southern New England. This rule adjusts the following fishery management plans: Northeast Multispecies; Atlantic Sea Scallop; Monkfish; Northeast Skate Complex; and Atlantic Herring. The Habitat Area of Particular Concern is within and around wind lease areas in Southern New England, including Cox Ledge, to focus conservation recommendations on cod spawning habitats and complex benthic habitats that are known to serve important habitat functions to Council-managed fishery species.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 24 (Monday, February 5, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 24 (Monday, February 5, 2024)]
[Rules and Regulations]
[Pages 7633-7635]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02239]
[[Page 7633]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 240130-0029]
RIN 0648-BM51
Fisheries of the Northeastern United States; Framework
Adjustments to Northeast Multispecies, Atlantic Sea Scallop, Monkfish,
Northeast Skate Complex, and Atlantic Herring Fisheries; Southern New
England Habitat Area of Particular Concern Designation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action implements the New England Fishery Management
Council's Framework Adjustment that identifies a Habitat Area of
Particular Concern offshore of Southern New England. This rule adjusts
the following fishery management plans: Northeast Multispecies;
Atlantic Sea Scallop; Monkfish; Northeast Skate Complex; and Atlantic
Herring. The Habitat Area of Particular Concern is within and around
wind lease areas in Southern New England, including Cox Ledge, to focus
conservation recommendations on cod spawning habitats and complex
benthic habitats that are known to serve important habitat functions to
Council-managed fishery species.
DATES: Effective March 6, 2024.
ADDRESSES: Copies of the Southern New England Habitat Area of
Particular Concern Framework and other supporting documents for this
action are available upon request from Dr. Cate O'Keefe, Executive
Director, New England Fishery Management Council, 50 Water Street, Mill
2, Newburyport, MA 01950. The supporting documents are also accessible
via the internet at: <a href="https://d23h0vhsm26o6d.cloudfront.net/230926-SNE-HAPC-Framework-FINAL.pdf">https://d23h0vhsm26o6d.cloudfront.net/230926-SNE-HAPC-Framework-FINAL.pdf</a>.
FOR FURTHER INFORMATION CONTACT: Sabrina Pereira, Marine Habitat
Resource Specialist, email: <a href="/cdn-cgi/l/email-protection#33605251415a5d521d635641565a4152735d5c52521d545c45"><span class="__cf_email__" data-cfemail="e4b78586968d8a85cab48196818d9685a48a8b8585ca838b92">[email protected]</span></a>; phone: (978) 675-
2178.
SUPPLEMENTARY INFORMATION:
Background
This action identifies a Habitat Area of Particular Concern (HAPC)
in and around offshore wind lease areas in Southern New England,
including Cox Ledge. The New England Fishery Management Council
recommended the HAPC designation due to concerns about the potential
adverse impact on essential fish habitat (EFH) from the development of
offshore wind energy projects. The designation focuses on important cod
spawning grounds and areas of complex habitat that are known to serve
important habitat functions to federally managed species within and
adjacent to offshore wind development areas. Complex benthic habitat
provides shelter for certain species during their early life history,
refuge from predators, and feeding opportunities. The HAPC designation
will be applied during EFH consultation when data indicate that cod
spawning and/or complex habitats occur within or near the footprint of
a project located within the border of the HAPC area identified in
Figure 6 of the Framework document.
HAPCs highlight specific types or areas of habitat within EFH that
may be particularly vulnerable to human impacts. HAPC designations
should be based on one or more of the following criteria: (1) The
importance of the ecological function provided by the habitat,
including both the historical and current ecological function; (2) the
extent to which the habitat is sensitive to human-induced environmental
degradation; (3) whether, and to what extent, development activities
are, or will be, stressing the habitat type; and (4) the rarity of the
habitat type (50 CFR 600.815(a)(8)). As detailed below, the HAPC
designated by this action has all four of these attributes.
An area's status as an HAPC is intended to lead to special
attention regarding potential adverse effects on habitats within areas
of particular concern from various activities (e.g., fishing, offshore
wind energy). An HAPC designation does not provide any specific habitat
management measures, such as restrictions on gear types, harvest
levels, fishing locations, offshore wind survey and construction
activities, or other activities with adverse effects on habitat in the
area.
The proposed rule for this action was published in the Federal
Register on September 26, 2023 (88 FR 65944), and comments were
accepted through October 26, 2023. NMFS received 14 comments from the
public, and no changes were made to the final rule because of those
comments (see Comments and Responses for additional detail).
Habitat Area of Particular Concern Designation
This action implements Alternative 5, the Council's preferred
alternative for the Southern New England HAPC designation, which
identifies as an HAPC certain habitats in the area overlapping offshore
wind lease sites in southern New England. The spatial extent of the
HAPC is based on the footprint of the lease areas, buffered by
approximately 10 km on all sides, combined with the footprint of the
Cox Ledge spawning ground, which is based on recent evidence of cod
spawning activity. Figure 6 on page 29 of the Framework document
(online at <a href="https://d23h0vhsm26o6d.cloudfront.net/230926-SNE-HAPC-Framework-FINAL.pdf">https://d23h0vhsm26o6d.cloudfront.net/230926-SNE-HAPC-Framework-FINAL.pdf</a>) contains a map of the HAPC designation area. As
noted in the Framework document (at 27), when projects are proposed
within this area, ``The HAPC designation will be applied during EFH
consultation when data indicate that cod spawning and/or complex
habitats occur within or near the project footprint.''
The HAPC area is located within designated EFH for the following
species that occupy complex habitats within the footprint: Atlantic cod
egg, larvae, juveniles, and adults; Atlantic herring eggs; Atlantic sea
scallop eggs, juveniles, and adults; little skate juveniles and adults;
monkfish juveniles and adults; ocean pout eggs, juveniles, and adults;
red hake juveniles and adults; winter flounder eggs, juveniles, and
adults; and winter skate juveniles and adults.
Complex habitats are defined as hard bottom substrates, defined by
the Coastal and Marine Ecological Classification Standard (CMECS) as
Substrate Class Rock Substrate, and by the four Substrate Groups:
Gravels; gravel mixes; gravelly; and shell. This CMECS modifier was
developed by NMFS for habitat mapping recommendations, including both
large-grained and small-grained hard habitats. Hard bottom substrates
with epifauna or macroalgae cover are also defined as complex habitat.
Evidence of cod spawning activity at a site could be based on:
Capture of ripe, running, or spent cod during fishery independent
surveys; detections of acoustically tagged fish between November and
April; detections of cod grunts in acoustic surveys; capture of cod
larvae in ichthyoplankton surveys; and/or evidence of eggs in
ichthyoplankton surveys (not species specific but indicative of
spawning success).
Designation of this HAPC places a focus on areas that are
experiencing current development stresses. The designated area overlaps
areas leased for renewable energy development. Some projects are
already permitted, others
[[Page 7634]]
are currently undergoing environmental review, and others are still
within the site assessment phase. The HAPC's spatial footprint closely
aligns with the wind lease areas because these areas face differential
levels of foreseeable on-going development-related threats compared to
surrounding areas. The HAPC boundary includes a buffer of approximately
10 km beyond the leased areas, recognizing that some types of
development activities can generate impacts at scales of tens of
kilometers beyond the site of construction and operations. For example,
acoustic impacts may extend kilometers from a pile driving site.
Greater scrutiny would be given to activities within the HAPC
designated area when data indicate that cod spawning and/or complex
habitats occur within or near a project or activity footprint. An HAPC
focused on these conservation objectives is consistent with the
Council's Offshore Wind Energy Policy, as well as prior offshore wind
project specific comments provided by the Council in recent years.
The cod spawning habitats within the HAPC meet all four of the HAPC
criteria identified above, and the complex bottom habitats meet all
criteria except for ``rarity.'' The HAPC area is important for current
ecological function because it includes spawning sites, juvenile
settlement areas, and feeding areas for species with EFH in the area,
including various cod stocks. Georges Bank Atlantic cod, which is in
poor stock condition (i.e., overfished and experiencing overfishing),
spawns in the area, and Southern New England cod represents a
genetically distinct subpopulation. The subpopulation also contributes
to the Georges Bank cod stock; thus, any impacts to Southern New
England cod could also detrimentally impact the Georges Bank stock.
With regard to sensitivity to anthropogenic stresses, cod spawning
activities are particularly sensitive to adverse impacts from fishing
and non-fishing activities, namely from offshore wind development
(construction, operations, and maintenance), and complex habitats are
susceptible to conversion and sedimentation. The HAPC meets the
``extent of current or future development stresses'' criterion because
this area is facing an existing on-going development-related threat
from offshore wind. Finally, regarding ``rarity,'' cod spawning
habitats (based on acoustic environment, seafloor and water column
setting) are rare with only one known grouping of active sites in
Southern New England. On the other hand, complex habitat features alone
are not considered rare (i.e., spatially or temporally very limited).
The HAPC identified herein is a non-regulatory designation. HAPC
designations are intended to provide for increased attention when
habitat protection measures are considered. HAPCs that are vulnerable
to the potential impacts from anthropogenic activities warrant special
attention when determining appropriate management measures to minimize,
compensate, or mitigate those impacts.
Comments and Responses
The public comment period for the proposed rule ended on October
26, 2023, and NMFS received 14 comments from the public. No changes
were made to the final rule as a result of these comments. Eight
comments expressed concern over offshore wind development and its
impacts on marine life, but they did not address this specific action;
therefore, no response is warranted at this time.
Comment 1: Two comments expressed general support for the HAPC
designation.
Response: NMFS agrees and is implementing this rule in a timely
manner.
Comment 2: Three comments were in support of the HAPC designation
and also urged additional habitat protections and considerations for
Cox Ledge, sensitive habitats, and protected species.
Response: This action does not add any restrictions on offshore
development or fisheries management restrictions related to the HAPC.
The Council's problem statement and objectives described in section 3.3
of the framework document (see ADDRESSES) focused on the potential for
enhancing the EFH consultation process and conservation
recommendations; developing new restrictions on fishing were outside
the scope for the framework. Neither NMFS nor the Council has the
ability to directly restrict offshore development, including offshore
wind.
Comment 3: A comment from the American Clean Power Association
expressed opposition to the HAPC and support for Alternative 2
identified in the Council's framework document because it includes only
those areas for which scientific research has demonstrated the presence
of cod spawning. The comment also urged the Council to rely on ``the
best available sources'' when identifying EFH ``. . . and not the
presence of an offshore wind lease,'' noted that the ``lack of data on
cod spawning in southern New England waters does not equate to actual
scientific evidence of rarity,'' and contended that ``wind development
has not been directly linked to impacts on cod spawning habitat.''
Response: The Council's preferred alternative, Alternative 5, was
chosen in part because it identifies a broader area of Southern New
England within which the HAPC designation would be applied if
additional cod spawning activity is documented by future data/studies
and/or complex habitat is identified. Alternative 5 provides NMFS with
the opportunity at the time of a project review to use available data
that are related to the suitability for cod spawning, or the presence
or absence of cod spawning activity, and/or complex habitat in order to
determine whether to consult on a project area as an HAPC, without the
need for a new designation from the Council. Alternative 2, supported
by the commenter, focuses on Atlantic cod habitat, but this designation
addresses multiple species and threats to those species. In addition,
the preferred alternative designates areas of complex habitat within a
broad Southern New England footprint as HAPC for certain life stages of
Atlantic cod, Atlantic herring, Atlantic sea scallop, little skate,
monkfish, ocean pout, red hake, winter flounder, and winter skate that
use these habitats. Habitat for these additional species should also
benefit from conservation recommendations based on this HAPC.
The Council and NMFS have utilized the best available data sources
to map EFH for multiple federally managed fish species. The presence of
offshore wind lease areas is not determinative of what areas are mapped
EFH. Federal agencies are required to consult with the Secretary with
respect to any action or proposed action authorized, funded, or
undertaken that may adversely affect any identified EFH. In
establishing HAPC designations, which are a subset of EFH, the Council
and NMFS can consider whether, and to what extent, development
activities are, or will be, stressing the habitat type. Offshore wind
development is a specific stressor within the Southern New England
lease areas, and therefore the spatial extent of the HAPC is based on
the combined footprint of spawning grounds, complex habitats, and lease
areas.
With respect to rarity, as noted above, NMFS concluded that active
cod spawning habitats are rare based on information regarding critical
ecosystem features such as the acoustic environment, seafloor and water
column setting, which is the best scientific information available.
Only one known group of active spawning sites exists in Southern New
England. They are not
[[Page 7635]]
considered rare due to lack of data. EFH for cod spawning that may lead
to an active cod spawning habitat is identified in the HAPC, and any
updated data may be considered at the time of any action or proposed
action to determine whether consultation is necessary. This is
consistent with National Standard 2, one of the statutory principles
that must be followed in any FMP as per the Magnuson-Stevens Fishery
Conservation and Management Act, which recognizes the dynamic nature of
the scientific process, the need to evaluate new data and uncertainties
in available information, and to identify gaps in available
information. Overall, cod is a very well-studied species with a long
fishing history, decades of fishery independent surveys, extensive
tagging work, and, most recently, acoustic surveys that have been used
to document spawning grounds in space and time.
Finally, broad categories of activities that may adversely affect
EFH include, but are not limited to: Dredging; filling; excavation;
mining; impoundment; discharge; water diversions; thermal additions;
actions that contribute to non-point source pollution and
sedimentation; introduction of potentially hazardous materials;
introduction of exotic species; and the conversion of aquatic habitat
that may eliminate, diminish, or disrupt the functions of EFH.
Changes From the Proposed Rule
There are no substantive changes from the proposed rule.
Classification
Pursuant to section 305(d) of the Magnuson-Stevens Fishery
Conservation and Management Act, this action is necessary to implement
adjustments to fishery management plans as identified below. In a
previous action taken pursuant to section 304(b), the Council designed
the fishery management plans (FMP) to specify the process for NMFS to
take this action pursuant to Magnuson-Stevens Act section 305(d), and
this action puts in place administrative designations that are not
implementing any associated management measures. The NMFS Assistant
Administrator has determined that this rule is consistent with the
Northeast Multispecies FMP; Atlantic Sea Scallop FMP; Monkfish FMP;
Northeast Skate Complex FMP; and Atlantic Herring FMP, other provisions
of the Magnuson-Stevens Act, and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866, as amended by Executive Order 14094.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The basis for the certification was published in the proposed
rule and is not repeated here. No comments were received regarding this
certification, and the initial certification remains unchanged.
This final rule does not duplicate, conflict, or overlap with any
existing Federal rules.
This final rule contains no new information collection requirements
under the Paperwork Reduction Act of 1995.
Authority: 16 U.S.C. 1801 et seq.
Dated: January 30, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2024-02239 Filed 2-2-24; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 5, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.