Rule2024-15930
Fisheries of the Exclusive Economic Zone off Alaska; Essential Fish Habitat Amendments
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Published
July 19, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS announces the approval of amendment 127 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI), amendment 115 to the FMP for Groundfish of the Gulf of Alaska (GOA), amendment 56 to the FMP for BSAI King and Tanner Crabs, amendment 17 to the FMP for the Salmon Fisheries in the exclusive economic zone (EEZ) off Alaska, and amendment 3 to the FMP for Fish Resources of the Arctic Management Area (amendments). These amendments revise the FMPs by updating the description and identification of essential fish habitat (EFH) and updating information on adverse effects on EFH from fishing and non-fishing activities based on the best scientific information available. These amendments are intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMPs, and other applicable laws.
Full Text
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<title>Federal Register, Volume 89 Issue 139 (Friday, July 19, 2024)</title>
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[Federal Register Volume 89, Number 139 (Friday, July 19, 2024)]
[Rules and Regulations]
[Pages 58632-58635]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15930]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[RTID 0648-XD632]
Fisheries of the Exclusive Economic Zone off Alaska; Essential
Fish Habitat Amendments
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of agency decision.
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SUMMARY: NMFS announces the approval of amendment 127 to the Fishery
Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian
Islands Management Area (BSAI), amendment 115 to the FMP for Groundfish
of the Gulf of Alaska (GOA), amendment 56 to the FMP for BSAI King and
Tanner Crabs, amendment 17 to the FMP for the Salmon Fisheries in the
exclusive economic zone (EEZ) off Alaska, and amendment 3 to the FMP
for Fish Resources of the Arctic Management Area (amendments). These
amendments revise the FMPs by updating the description and
identification of essential fish habitat (EFH) and updating information
on adverse effects on EFH from fishing and non-fishing activities based
on the best scientific information available. These amendments are
intended to promote the goals and objectives of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), the
FMPs, and other applicable laws.
DATES: The amendments were approved on July 15, 2024.
ADDRESSES: Electronic copies of the amendments, maps of the EFH areas,
and the Environmental Assessment (the analysis) prepared for this
action may be obtained from <a href="https://www.regulations.gov">https://www.regulations.gov</a> under the
docket number NOAA-NMFS-2023-0160.
FOR FURTHER INFORMATION CONTACT: Molly Zaleski, 907-586-7228.
SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Act requires that each
regional fishery management council submit any FMP amendment it
prepares to NMFS for review and approval, disapproval, or partial
approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens
Act also requires that NMFS, upon receiving an FMP amendment,
immediately publish a notice in the Federal Register announcing that
the amendment is available for public review and comment. The North
Pacific Fishery Management Council (NPFMC or Council) submitted these
amendments to the Secretary for review. The notice of availability
(NOA) for the amendments was published in the Federal Register on April
23, 2024 (89 FR 30318) with a 60-day comment period that ended on June
24, 2024. NMFS received five comment letters during the public comment
period on the NOA. NMFS summarized and responded to these comments
under Comments and Responses, below.
This notice of decision announces NMFS's approval of amendment 127
to the FMP for Groundfish of the BSAI (BSAI Groundfish FMP); amendment
115 to the FMP for Groundfish of the GOA (GOA Groundfish FMP);
amendment 56 to the FMP for BSAI King and Tanner Crabs (Crab FMP);
amendment 17 to the FMP for the Salmon Fisheries in the EEZ Off Alaska
(Salmon FMP); and amendment 3 to the FMP for Fish Resources of the
Arctic Management Area (Arctic FMP).
The Council prepared the FMPs under the authority of the Magnuson-
Stevens
[[Page 58633]]
Act. Regulations governing U.S. fisheries and implementing the FMPs
appear at 50 CFR parts 600, 679, and 680. Section 303(a)(7) of the
Magnuson-Stevens Act requires that each FMP describe and identify EFH,
minimize to the extent practicable the adverse effects of fishing on
EFH, and identify other measures to encourage the conservation and
enhancement of EFH. Section 3(10) of the Magnuson-Stevens Act defines
EFH as ``those waters and substrate necessary to fish for spawning,
breeding, feeding, or growth to maturity.'' Implementing regulations at
50 CFR 600.815 list the EFH contents required in each FMP and direct
councils to conduct a complete review of all EFH information at least
once every 5 years (referred to here as ``the 5-year Review'').
The Council developed the amendments as a result of new scientific
information made available through the 5-year Review that began in 2019
(2023 5-year Review) and adopted the amendments in December 2023. The
2023 5-year Review is the Council's fourth review of EFH in the FMPs.
Prior 5-year Reviews were completed in 2005, 2012, and 2018. The
Council recommended amendments to the description of, information
about, and identification of EFH in the FMPs based on the new
information and improved mapping as described in the draft EFH 5-year
Summary Report for the 2023 5-year Review. The Council recommended
updates to EFH for all FMPs except for the Scallop FMP because no new
information is available to update EFH descriptions for scallops.
The amendments make the following changes to the FMPs:
<bullet> BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and
Arctic FMP: update EFH descriptions and maps, including up to EFH Level
3 information on habitat-related vital rates (see 50 CFR
600.815(a)(1)(iii)(A)). Add or revise the EFH text descriptions and add
or replace the maps for--
[cir] 41 species or complexes in the BSAI Groundfish FMP;
[cir] 46 species or complexes in the GOA Groundfish FMP;
[cir] all five species in the Crab FMP; and
[cir] all three species in the Arctic FMP.
<bullet> Salmon FMP: replace the distribution maps for all five
species with the EFH maps.
<bullet> BSAI Groundfish FMP, GOA Groundfish FMP, and Crab FMP:
update information for fishing effects (FE) to reflect updates to the
FE model, analysis, and evaluation.
<bullet> BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and
Arctic FMP: revise the EFH appendices where conservation
recommendations for non-fishing activities are described.
<bullet> BSAI Groundfish FMP, GOA Groundfish FMP, and Crab FMP:
revise prey species descriptions for two species of BSAI sharks, BSAI
pollock, GOA Pacific cod, and BSAI red king crab.
<bullet> BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and
Arctic FMP: revise EFH appendices with updated research and information
needs.
Comments and Responses
During the public comment period for the NOA for the amendments,
NMFS received five comment letters from three individuals, one industry
group, and one environmental nongovernmental organization with eight
unique comments. NMFS' responses to these comments are presented below.
Comment 1: One commenter expressed general support for this action.
Response: NMFS acknowledges support for this action.
Comment 2: One commenter expressed concerns over salmon bycatch in
Federal fisheries and FE to salmon EFH during their marine life history
stage.
Response: Comments concerning salmon bycatch are outside the scope
of this action. Amendments to the Salmon FMP were corrections to
replace the salmon distribution maps with the EFH maps, both
originating from the 2017 EFH 5-year Review. NMFS notes that the
Council's 2023 EFH 5-year Review Roadmap did not include updates to the
FE analysis for Pacific salmon EFH during their marine life history
stage because no new information was available.
Comment 3: There was a general concern of FE on benthic habitat.
Response: The 5-year Review evaluated the impacts of all fishing
gears on benthic habitat. None of the stock assessment authors
concluded that habitat disturbance within the core EFH area for their
species was affecting their stocks in ways that were more than minimal
or not temporary. None of the authors recommended any change in
management with regards to fishing within EFH at this time.
Comment 4: One commenter expressed concerns over pelagic trawl gear
contacting benthic habitats in the Bering Sea.
Response: The FE evaluation is a comprehensive evaluation of all
gear types on species' core EFH areas. The FE model uses bottom contact
adjustments when estimating the impacts of different gear types on
benthic habitat. The list of gear types and adjustments is in appendix
2 of the 2022 Evaluation of Fishing Effects on Essential Fish Habitat
discussion paper (available on the NPFMC eAgenda for the February 2023
meeting). Pelagic trawl gear was included in the gear types evaluated.
The overall conclusion of the FE evaluation was that the impacts to
species' core EFH areas were not more than minimal or temporary. Gear-
specific impacts are slated for future analyses.
Comment 5: NMFS did not use the best available science when
assessing fishing impacts on EFH: they did not account for uncertainty
and error; the model was not independently reviewed; impacts to
juvenile and subadult EFH; NMFS did not evaluate fishing effects to
habitats for non-FMP species, and NMFS also did not address impacts of
pelagic trawl fishing in conservation areas closed to bottom trawling.
Response: The Council's Scientific and Statistical Committee (SSC)
found that the current EFH fishing FE evaluation methodology is
appropriate for the 2023 5-year Review when they reviewed the FE
evaluations completed by the stock assessment authors in October 2022.
An SSC subcommittee provided guidance in 2016 for the stock assessment
authors to evaluate FE model results for their species using three
thresholds (if the stock was below minimum stock size threshold, if the
estimated disturbance within the core EFH area was greater than or
equal to 10 percent, and/or if data limitation concerns would better
suit a qualitative, rather than quantitative, evaluation). The
subcommittee also noted that the 10 percent threshold does not preclude
stock assessment authors from completing the evaluation for levels of
habitat disturbance less than 10 percent, if other data suggest that
impacts may be affecting the population.
Uncertainty and Error: Model updates through this iterative process
were summarized in the 2022 Evaluation of Fishing Effects on Essential
Fish Habitat discussion paper (available on the NPFMC eAgenda for the
February 2023 meeting). A sensitivity analysis was performed by running
multiple iterations of the model to allow for estimation of uncertainty
(section 2.2). The model code correction was explained clearly (section
2.3) and the model code was made available upon request from Alaska
Pacific University (APU).
Independent Review: The model used for FE evaluation was developed
by scientists at APU and went through peer review prior to publishing
in the
[[Page 58634]]
Canadian Journal of Fisheries and Aquatic Sciences (Smeltz et al.,
2019, DOI: 10.1139/cjfas-2018-0243).
Juvenile and Subadult Evaluations: The SSC's guidance focuses the
EFH FE evaluation on the adult life stages of groundfish and all life
stages combined for crabs. The FE model and evaluation process is an
ongoing research priority for future EFH reviews.
Exclusion of Non-FMP Species: EFH is designated for FMP species and
evaluation of FE to the EFH of FMP species is directed by the EFH Final
Rule (50 CFR 600). The Council's EFH Roadmap did not include updates to
the FE analysis for Pacific salmon EFH in the Salmon FMP for this
iteration of the 5-year Review. Halibut and State-managed commercial
species are not targeted FMP species and do not have designated EFH.
Corals, sponges, and other biogenic and long-lived habitat features
also do not have designated EFH, though they are included as habitat
covariates in both the species distribution models developed to map EFH
for the 2023 EFH 5-year Review and in the FE model as biological
features. An update to the FE model for this review included the
incorporation of longer recovery times as supported by more recent peer
reviewed literature (section 2.1.6 of the 2022 Evaluation of Fishing
Effects on Essential Fish Habitat discussion paper).
Pelagic Trawl Impacts: Application of the FE model provided a
comprehensive evaluation of all gear types on species' core EFH areas,
and while an evaluation of consequences for specific management areas
is beyond the scope of this action, NMFS agrees that the Council should
consider whether further action is warranted to address bottom contact
by pelagic trawls in areas closed to non-pelagic trawls.
Comment 6: NMFS failed to address EFH component 6 and identify
actions to conserve and enhance EFH.
Response: NMFS followed the Council's EFH Roadmap and for the 2023
5-year Review, the Council outlined the plan for addressing EFH
component 6 (EFH Conservation and Enhancement Recommendations) with the
following directive:
Review and revise the EFH conservation recommendations for non-
fishing activities in the non-fishing report under EFH component 4.
Review new information from the FE evaluation to understand fishing
effects on EFH. The Council may wish to identify additional
recommendations to minimize effects from fishing based on the FE
evaluation.
NMFS completed the tasks set with updates to the Impacts to
Essential Fish Habitat from Non-Fishing Activities in Alaska report
(Limpinsel et al., 2023, DOI: 10.25923/9z4h-n860) and the 2022
Evaluation of Fishing Effects on Essential Fish Habitat discussion
paper. The Council and NMFS have several management measures in place,
including habitat area closures and Habitat Areas of Particular Concern
(HAPCs), which meet the requirements of EFH component 6. Section 1.3 of
the 2023 EFH 5-year Review Summary Report describes the Council's EFH
Roadmap to the 10 EFH components (available on the NPFMC eAgenda for
the February 2023 meeting).
Comment 7: NMFS must analyze a reasonable range of alternatives to
meet the stated purpose for this action and cannot rely on an outdated
Environmental Impact Statement (EIS). NMFS did not consider any
alternatives besides maintaining the status quo and accepting the
amendments to EFH descriptions when additional reasonable alternatives
that would better protect EFH are available. NMFS must take a hard look
at the impacts of its actions. The Environmental Assessment (EA) failed
to consider important and potentially significant effects, such as
juvenile and subadult EFH, or habitats essential to Gulf of Alaska
crab, Pacific halibut, lingcod, salmon, Pacific herring, or forage
fish, corals, sponges, and sea whips. Further, NMFS improperly tiered
to the 2005 EIS and, rather, should have supplemented the 2005 EIS.
Response: NMFS prepared a complete EIS on EFH and any adverse
effects from fishing and non-fishing activities to EFH in 2005.
Subsequently, NMFS has produced multiple EAs for each subsequent EFH 5-
year Review. Under regulation, agencies should tier their EAs when it
would eliminate repetitive discussions of the same issues, focus on the
actual issues ripe for decision, and exclude from consideration issues
already decided or not yet ripe at each level of environmental review
(40 CFR 1501.11(a)). This 5-year Review focused on issues ripe for
decision during this review period, such as evaluating new
environmental and habitat data, improving the models to map EFH,
updating the model to evaluate fishery impacts on EFH, updating the
assessment of non-fishing impacts on EFH, and assessing information
gaps and research needs. The 2023 EFH 5-year Review Summary Report
discussed the approach to each of the 10 EFH components in detail.
Providing more accurate EFH information is beneficial to species as EFH
is considered in the management of those species. A change in the
designation of EFH has no direct impact, as there are no management
measures or regulations associated with the designation of EFH, nor are
such conservation measures required. While there were changes in
environmental conditions, not every change in conditions requires a
supplemental EIS; only those changes that cause significantly different
effects from those already studied in the initial EIS require
supplementary consideration. The Supreme Court directs that ``an agency
need not supplement an EIS every time new information comes to light
after the EIS is finalized. To require otherwise would render agency
decision-making intractable'' (Marsh v. Oregon Nat. Res. Council, 490
U.S. 360, 373 (1989)). On the other hand, if a major Federal action
remains to occur, and if new information indicates that the remaining
action will affect the quality of the human environment in a
significant manner or to a significant extent not already considered, a
supplemental EIS must be prepared.
Ultimately, an agency is required ``to take a `hard look' at the
new information to assess whether supplementation might be necessary''
(Norton v. S. Utah Wilderness All., 542 U.S. 55, 72-73 (2004)).
National Environmental Policy Act (NEPA) implementing regulations at 40
CFR 1502.9(d)(4) stipulate that an agency may find that new
circumstances or information relevant to environmental concerns are not
significant and therefore do not require a supplement to an EIS. In
doing this, an agency should apply a ``rule of reason.'' ``Application
of the `rule of reason' turns on the value of the new information to
the decision making process. If there remains `major Federal actio[n]'
to occur, and if the new information is sufficient to show that the
remaining action will `affec[t] the quality of the human environment'
in a significant manner or to a significant extent not already
considered, a supplemental EIS must be prepared'' (Marsh, 490 U.S. 372-
74 (1989)).
Here, as described above, new information and the EFH amendments do
not constitute a ``significant change'' that was not already considered
in the previous EIS. Further, a full EIS was not required, since the
Council and NMFS thoroughly reviewed and considered all the relevant
factors as part of the Magnuson-Stevens Act-mandated periodic review of
the EFH provisions of the FMPs and revised or amended the EFH
provisions as warranted based on available information. NMFS's
consideration of alternatives was appropriate here. The stated goal of
a project dictates the range of `reasonable' alternatives and NEPA
requires consideration of those which are
[[Page 58635]]
feasible. NEPA does not require an agency to explicitly consider every
possible alternative to a proposed action. Alternatives need not be
included . . . if they present ``unique problems and would not
accomplish the [agency's] goal'' (Communities, Inc. v. Busey, 956 F.2d
619, 627 (6th Cir. 1992)). NMFS is not ``required to explore
alternatives that, if adopted, would not have fulfilled the project
goals'' (Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d
520, 546 (8th Cir. 2003)).
Here, NMFS followed the Council's EFH Roadmap and for the 2023 5-
year Review and created alternatives to accomplish the Council's and
the agency's goals in updating the description and identification of
EFH, as required by section 305(b) of the Magnuson-Stevens Act. The EA
analyzes the effects of each alternative and the effects of past,
present, and reasonably foreseeable future actions (RFFA). There are no
RFFAs that are identified as likely to have an impact on habitat based
on updating the EFH information for FMP species as a result of the 2023
EFH 5-year Review.
Comment 8: One commenter expressed concerns over the impacts of
offshore wind energy development on Endangered Species Act-designated
critical habitats.
Response: Comments concerning offshore wind are outside of the
scope of this action.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 15, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2024-15930 Filed 7-18-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on July 19, 2024.
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