50 CFR § 600.805-600.815 - Magnuson-Stevens Act Provisions - Essential Fish Habitat (EFH)

128 50 CFR Ch. VI (10–1–22 Edition) § 600.757 by the Council or NMFS for consider ation and shall attempt to reach a con sensus concerning a report to assist in the development of a conservation and management measure with respect to such matter and any other matter the FNP determines is relevant to the de velopment of a conservation and man agement measure. An FNP may adopt procedures for the operation of the FNP. (b) Roles and duties of representative of the council or NMFS. The person or per sons representing the Council or NMFS on an FNP shall participate in the de liberations and activities of the FNP with the same rights and responsibil ities as other members of the FNP, and shall be authorized to fully represent the Council or NMFS in the discussions and negotiations of the FNP. § 600.757 Operational protocols. (a) Services of conveners and facilitators. A Council or NMFS may employ or enter into contracts for the services of an individual or organiza tion to serve as a convener or facilitator for an FNP established under § 600.755, or may use the services of a government employee to act as a convener or a facilitator for such an FNP. (b) Councils. For an FNP proposed and established by one or more Coun cils approved expenses shall be paid out of the Council’s operating budget. (c) Expenses of FNP members. Members of an FNP shall be responsible for their own expenses of participation in such an FNP, except that NMFS or the Council may, in accordance with sec tion 7(d) of FACA, pay for a member’s reasonable travel and per diem ex penses, and a reasonable rate of com pensation, if: (1) Such member certifies a lack of adequate financial resources to partici pate in the FNP. (2) The Council or NMFS determines that such member’s participation in the FNP is necessary to assure an ade quate representation of the member’s interest. (d) Administrative support. The Coun cil or NMFS shall provide appropriate administrative support to an FNP in cluding technical assistance. § 600.758 Preparation of report. (a) At the conclusion of the negotia tions, an FNP may submit a report. Such report shall specify: (1) All the areas where consensus was reached by the FNP, including, if ap propriate, proposed conservation and management measures. (2) Any other information submitted by members of the FNP. (b) Upon receipt of the report, the Council or NMFS shall publish such re port in the FEDERAL REGISTER for pub lic comment. § 600.759 Use of report. A Council or NMFS may, at its dis cretion, use all or a part of a report prepared in accordance with § 600.758 in the development of conservation and management measures. Neither a Council nor NMFS, whichever is appro priate, is required to use such report. § 600.760 Fishery Negotiation Panel lifetime. (a) An FNP shall terminate upon ei ther: (1) Submission of a report prepared in accordance with § 600.758; or (2) Submission of a written state ment from the FNP to the Council or NMFS that no consensus can be reached. (b) In no event shall an FNP exist for longer than 1 year from the date of es tablishment unless granted an exten sion. Upon written request by the FNP to the Council or NMFS, and written authorization from the Council or NMFS (whichever is appropriate), the Secretary may authorize an extension for a period not to exceed 6 months. No more than one extension may be grant ed per FNP. Subpart J—Essential Fish Habitat (EFH) SOURCE: 67 FR 2376, Jan. 17, 2002, unless otherwise noted. § 600.805 Purpose and scope. (a) Purpose. This subpart provides guidelines for Councils and the Sec retary to use in adding the required 129 Fishery Conservation and Management § 600.815 EFH provisions to an FMP, i.e., de scription and identification of EFH, ad verse effects on EFH (including mini mizing, to the extent practicable, ad verse effects from fishing), and actions to conserve and enhance EFH. (b) Scope—(1) Species covered. An EFH provision in an FMP must include all fish species in the fishery management unit (FMU). An FMP may describe, identify, and protect the habitat of spe cies 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-Stevens Act. (2) Geographic. EFH may be described and identified in waters of the United States, as defined in 33 CFR 328.3, and in the exclusive economic zone, as de fined in § 600.10. Councils may describe, identify, and protect habitats of man aged species beyond the exclusive eco nomic zone; however, such habitat may not be considered EFH for the purposes of sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act. Activities that may adversely affect such habitat can be addressed through any process con ducted in accordance with inter national agreements between the United States and the foreign nation(s) undertaking or authorizing the action. § 600.810 Definitions and word usage. (a) Definitions. In addition to the defi nitions in the Magnuson-Stevens Act and § 600.10, the terms in this subpart have the following meanings: Adverse effect means any impact that reduces quality and/or quantity of EFH. Adverse effects may include di rect or indirect physical, chemical, or biological alterations of the waters or substrate and loss of, or injury to, benthic organisms, prey species and their habitat, and other ecosystem components, if such modifications re duce the quality and/or quantity of EFH. Adverse effects to EFH may re sult from actions occurring within EFH or outside of EFH and may in clude site-specific or habitat-wide im pacts, including individual, cumu lative, or synergistic consequences of actions. Council includes the Secretary, as ap plicable, when preparing FMPs or amendments under sections 304(c) and (g) of the Magnuson-Stevens Act. Ecosystem means communities of or ganisms interacting with one another and with the chemical and physical factors making up their environment. Habitat areas of particular concern means those areas of EFH identified pursuant to § 600.815(a)(8). Healthy ecosystem means an eco system where ecological productive ca pacity is maintained, diversity of the flora and fauna is preserved, and the ecosystem retains the ability to regu late itself. Such an ecosystem should be similar to comparable, undisturbed ecosystems with regard to standing crop, productivity, nutrient dynamics, trophic structure, species richness, sta bility, resilience, contamination levels, and the frequency of diseased orga nisms. Overfished means any stock or stock complex, the status of which is re ported as overfished by the Secretary pursuant to section 304(e)(1) of the Magnuson-Stevens Act. (b) Word usage. The terms ‘‘must’’, ‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’, ‘‘will’’, ‘‘could’’, and ‘‘can’’ are used in the same manner as in § 600.305(c). § 600.815 Contents of Fishery Manage ment Plans. (a) Mandatory contents—(1) Description and identification of EFH—(i) Overview. FMPs must describe and identify EFH in text that clearly states the habitats or habitat types determined to be EFH for each life stage of the managed spe cies. FMPs should explain the physical, biological, and chemical characteris tics of EFH and, if known, how these characteristics influence the use of EFH by the species/life stage. FMPs must identify the specific geographic location or extent of habitats described as EFH. FMPs must include maps of the geographic locations of EFH or the geographic boundaries within which EFH for each species and life stage is found. (ii) Habitat information by life stage. (A) Councils need basic information to understand the usage of various habi tats by each managed species. Perti nent information includes the geo graphic range and habitat require ments by life stage, the distribution and characteristics of those habitats, and current and historic stock size as 130 50 CFR Ch. VI (10–1–22 Edition) § 600.815 it affects occurrence in available habi tats. FMPs should summarize the life history information necessary to un derstand each species’ relationship to, or dependence on, its various habitats, using text, tables, and figures, as ap propriate. FMPs should document pat terns of temporal and spatial variation in the distribution of each major life stage (defined by developmental and functional shifts) to aid in under standing habitat needs. FMPs should summarize (e.g., in tables) all available information on environmental and habitat variables that control or limit distribution, abundance, reproduction, growth, survival, and productivity of the managed species. The information should be supported with citations. (B) Councils should obtain informa tion to describe and identify EFH from the best available sources, including peer-reviewed literature, unpublished scientific reports, data files of govern ment resource agencies, fisheries land ing reports, and other sources of infor mation. Councils should consider dif ferent types of information according to its scientific rigor. FMPs should identify species-specific habitat data gaps and deficits in data quality (in cluding considerations of scale and res olution; relevance; and potential biases in collection and interpretation). FMPs must demonstrate that the best sci entific information available was used in the description and identification of EFH, consistent with national stand ard 2. (iii) Analysis of habitat information. (A) The following approach should be used to organize the information nec essary to describe and identify EFH. (1) Level 1: Distribution data are avail able for some or all portions of the geo graphic range of the species. At this level, only distribution data are avail able to describe the geographic range of a species (or life stage). Distribution data may be derived from systematic presence/absence sampling and/or may include information on species and life stages collected opportunistically. In the event that distribution data are available only for portions of the geo graphic area occupied by a particular life stage of a species, habitat use 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. Habitat use may also be inferred, if ap propriate, based on information on a similar species or another life stage. (2) Level 2: Habitat-related densities of the species are available. At this level, quantitative data (i.e., density or rel ative abundance) are available for the habitats occupied by a species or life stage. Because the efficiency of sam pling methods is often affected by habi tat characteristics, strict quality as surance criteria should be used to en sure that density estimates are com parable among methods and habitats. Density data should reflect habitat uti lization, and the degree that a habitat is utilized is assumed to be indicative of habitat value. When assessing habi tat 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 avail able. At this level, data are available on habitat-related growth, reproduc tion, and/or survival by life stage. The habitats contributing the most to pro ductivity should be those that support the highest growth, reproduction, and survival of the species (or life stage). (4) Level 4: Production rates by habitat are available. At this level, data are available that directly relate the pro duction rates of a species or life stage to habitat type, quantity, quality, and location. Essential habitats are those necessary to maintain fish production consistent with a sustainable fishery and the managed species’ contribution to a healthy ecosystem. (B) Councils should strive to describe habitat based on the highest level of detail (i.e., Level 4). If there is no infor mation on a given species or life stage, and habitat usage cannot be inferred from other means, such as information on a similar species or another life stage, EFH should not be designated. (iv) EFH determination. (A) Councils should analyze available ecological, en vironmental, and fisheries information and data relevant to the managed spe cies, the habitat requirements by life stage, and the species’ distribution and habitat usage to describe and identify EFH. The information described in 131 Fishery Conservation and Management § 600.815 paragraphs (a)(1)(ii) and (iii) of this section will allow Councils to assess the relative value of habitats. Councils should interpret this information in a risk-averse fashion to ensure adequate areas are identified as EFH for man aged species. Level 1 information, if available, should be used to identify the geographic range of the species at each life stage. If only Level 1 informa tion is available, distribution data should be evaluated (e.g., using a fre quency of occurrence or other appro priate analysis) to identify EFH as those habitat areas most commonly used by the species. Level 2 through 4 information, if available, should be used to identify EFH as the habitats supporting the highest relative abun dance; growth, reproduction, or sur vival rates; and/or production rates within the geographic range of a spe cies. FMPs should explain the analyses conducted to distinguish EFH from all habitats potentially used by a species. (B) FMPs must describe EFH in text, including reference to the geographic location or extent of EFH using bound aries such as longitude and latitude, isotherms, isobaths, political bound aries, and major landmarks. If there are differences between the descrip tions of EFH in text, maps, and tables, the textual description is ultimately determinative of the limits of EFH. Text and tables should explain perti nent physical, chemical, and biological characteristics of EFH for the managed species and explain any variability in habitat usage patterns, but the bound aries of EFH should be static. (C) If a species is overfished and habi tat loss or degradation may be contrib uting to the species being identified as overfished, all habitats currently used by the species may be considered essen tial in addition to certain historic habitats that are necessary to support rebuilding the fishery and for which restoration is technologically and eco nomically feasible. Once the fishery is no longer considered overfished, the EFH identification should be reviewed and amended, if appropriate. (D) Areas described as EFH will nor mally be greater than or equal to aquatic areas that have been identified as ‘‘critical habitat’’ for any managed species listed as threatened or endan gered under the Endangered Species Act. (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 spe cies. EFH must be designated for each managed species, but, where appro priate, may be designated for assem blages of species or life stages that have similar habitat needs and require ments. If grouping species or using spe cies assemblages for the purpose of des ignating EFH, FMPs must include a justification and scientific rationale. 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 are necessary to maintain a sus tainable fishery and the managed spe cies’ contribution to a healthy eco system. (F) If degraded or inaccessible aquat ic habitat has contributed to reduced yields of a species or assemblage and if, in the judgment of the Secretary and the appropriate Council(s), the de graded conditions can be reversed through such actions as improved fish passage techniques (for stream or river blockages), improved water quality measures (removal of contaminants or increasing flows), and similar measures that are technologically and economi cally feasible, EFH should include those habitats that would be necessary to the species to obtain increased yields. (v) EFH mapping requirements. (A) FMPs must include maps that display, within the constraints of available in formation, the geographic locations of EFH or the geographic boundaries within which EFH for each species and life stage is found. Maps should iden tify the different types of habitat des ignated as EFH to the extent possible. Maps should explicitly distinguish EFH from non-EFH areas. Councils should confer with NMFS regarding mapping standards to ensure that maps from different Councils can be combined and shared efficiently and effectively. Ulti mately, data used for mapping should be incorporated into a geographic in formation system (GIS) to facilitate analysis and presentation. 132 50 CFR Ch. VI (10–1–22 Edition) § 600.815 (B) Where the present distribution or stock size of a species or life stage is different from the historical distribu tion or stock size, then maps of histor ical habitat boundaries should be in cluded in the FMP, if known. (C) FMPs should include maps of any habitat areas of particular concern identified under paragraph (a)(8) of this section. (2) Fishing activities that may adversely affect EFH—(i) Evaluation. Each FMP must contain an evaluation of the po tential adverse effects of fishing on EFH designated under the FMP, in cluding effects of each fishing activity regulated under the FMP or other Fed eral FMPs. This evaluation should con sider the effects of each fishing activ ity on each type of habitat found with in EFH. FMPs must describe each fish ing activity, review and discuss all available relevant information (such as information regarding the intensity, extent, and frequency of any adverse effect on EFH; the type of habitat within EFH that may be affected ad versely; and the habitat functions that may be disturbed), and provide conclu sions regarding whether and how each fishing activity adversely affects EFH. The evaluation should also consider the cumulative effects of multiple fish ing activities on EFH. The evaluation should list any past management ac tions that minimize potential adverse effects on EFH and describe the bene fits of those actions to EFH. The eval uation should give special attention to adverse effects on habitat areas of par ticular concern and should identify for possible designation as habitat areas of particular concern any EFH that is particularly vulnerable to fishing ac tivities. Additionally, the evaluation should consider the establishment of research closure areas or other meas ures to evaluate the impacts of fishing activities on EFH. In completing this evaluation, Councils should use the best scientific information available, as well as other appropriate informa tion sources. Councils should consider different types of information accord ing to its scientific rigor. (ii) Minimizing adverse effects. Each FMP must minimize to the extent practicable adverse effects from fishing on EFH, including EFH designated under other Federal FMPs. Councils must act to prevent, mitigate, or mini mize any adverse effects from fishing, to the extent practicable, if there is evidence that a fishing activity ad versely affects EFH in a manner that is more than minimal and not temporary in nature, based on the evaluation con ducted pursuant to paragraph (a)(2)(i) of this section and/or the cumulative impacts analysis conducted pursuant to paragraph (a)(5) of this section. In such cases, FMPs should identify a range of potential new actions that could be taken to address adverse ef fects on EFH, include an analysis of the practicability of potential new ac tions, and adopt any new measures that are necessary and practicable. Amendments to the FMP or to its im plementing regulations must ensure that the FMP continues to minimize to the extent practicable adverse effects on EFH caused by fishing. FMPs must explain the reasons for the Council’s conclusions regarding the past and/or new actions that minimize to the ex tent practicable the adverse effects of fishing on EFH. (iii) Practicability. In determining whether it is practicable to minimize an adverse effect from fishing, Councils should consider the nature and extent of the adverse effect on EFH and the long and short-term costs and benefits of potential management measures to EFH, associated fisheries, and the na tion, consistent with national standard 7. In determining whether management measures are practicable, Councils are not required to perform a formal cost/ benefit analysis. (iv) Options for managing adverse ef fects from fishing. Fishery manage ment options may include, but are not limited to: (A) Fishing equipment restrictions. These options may include, but are not limited to: seasonal and areal restric tions on the use of specified equipment, equipment modifications to allow escapement of particular species or particular life stages (e.g., juveniles), prohibitions on the use of explosives and chemicals, prohibitions on anchor ing or setting equipment in sensitive areas, and prohibitions on fishing ac tivities that cause significant damage to EFH. 133 Fishery Conservation and Management § 600.815 (B) Time/area closures. These actions may include, but are not limited to: closing areas to all fishing or specific equipment types during spawning, mi gration, foraging, and nursery activi ties and designating zones for use as marine protected areas to limit ad verse effects of fishing practices on cer tain vulnerable or rare areas/species/ life stages, such as those areas des ignated as habitat areas of particular concern. (C) Harvest limits. These actions may include, but are not limited to, limits on the take of species that provide structural habitat for other species as semblages or communities and limits on the take of prey species. (3) Non-Magnuson-Stevens Act fishing activities that may adversely affect EFH. FMPs must identify any fishing activi ties that are not managed under the Magnuson-Stevens Act that may ad versely affect EFH. Such activities may include fishing managed by state agencies or other authorities. (4) Non-fishing related activities that may adversely affect EFH. FMPs must identify activities other than fishing that may adversely affect EFH. Broad categories of such activities include, but are not limited to: dredging, fill ing, excavation, mining, impoundment, discharge, water diversions, thermal additions, actions that contribute to non-point source pollution and sedi mentation, introduction of potentially hazardous materials, introduction of exotic species, and the conversion of aquatic habitat that may eliminate, di minish, or disrupt the functions of EFH. For each activity, the FMP should describe known and potential adverse effects to EFH. (5) Cumulative impacts analysis. Cumu lative impacts are impacts on the envi ronment that result from the incre mental impact of an action when added to other past, present, and reasonably foreseeable future actions, regardless of who undertakes such actions. Cumu lative impacts can result from individ ually minor, but collectively signifi cant actions taking place over a period of time. To the extent feasible and practicable, FMPs should analyze how the cumulative impacts of fishing and non-fishing activities influence the function of EFH on an ecosystem or watershed scale. An assessment of the cumulative and synergistic effects of multiple threats, including the effects of natural stresses (such as storm dam age or climate-based environmental shifts) and an assessment of the eco logical risks resulting from the impact of those threats on EFH, also should be included. (6) Conservation and enhancement. FMPs must identify actions to encour age the conservation and enhancement of EFH, including recommended op tions to avoid, minimize, or com pensate for the adverse effects identi fied pursuant to paragraphs (a)(3) through (5) of this section, especially in habitat areas of particular concern. (7) Prey species. Loss of prey may be an adverse effect on EFH and managed species because the presence of prey makes waters and substrate function as feeding habitat, and the definition of EFH includes waters and substrate nec essary to fish for feeding. Therefore, actions that reduce the availability of a major prey species, either through di rect harm or capture, or through ad verse impacts to the prey species’ habi tat that are known to cause a reduc tion in the population of the prey spe cies, may be considered adverse effects on EFH if such actions reduce the qual ity of EFH. FMPs should list the major prey species for the species in the fish ery management unit and discuss the location of prey species’ habitat. Ad verse effects on prey species and their habitats may result from fishing and non-fishing activities. (8) Identification of habitat areas of particular concern. FMPs should iden tify specific types or areas of habitat within EFH as habitat areas of par ticular concern based on one or more of the following considerations: (i) The importance of the ecological function provided by the habitat. (ii) The extent to which the habitat is sensitive to human-induced environ mental degradation. (iii) Whether, and to what extent, de velopment activities are, or will be, stressing the habitat type. (iv) The rarity of the habitat type. (9) Research and information needs. Each FMP should contain rec ommendations, preferably in priority order, for research efforts that the 134 50 CFR Ch. VI (10–1–22 Edition) § 600.905 Councils and NMFS view as necessary to improve upon the description and identification of EFH, the identifica tion of threats to EFH from fishing and other activities, and the development of conservation and enhancement measures for EFH. (10) Review and revision of EFH compo nents of FMPs. Councils and NMFS should periodically review the EFH provisions of FMPs and revise or amend EFH provisions as warranted based on available information. FMPs should outline the procedures the Council will follow to review and up date EFH information. The review of information should include, but not be limited to, evaluating published sci entific literature and unpublished sci entific reports; soliciting information from interested parties; and searching for previously unavailable or inacces sible data. Councils should report on their review of EFH information as part of the annual Stock Assessment and Fishery Evaluation (SAFE) report prepared pursuant to § 600.315(e). A complete review of all EFH informa tion should be conducted as rec ommended by the Secretary, but at least once every 5 years. (b) Development of EFH recommenda tions for Councils. After reviewing the best available scientific information, as well as other appropriate informa tion, and in consultation with the Councils, participants in the fishery, interstate commissions, Federal agen cies, state agencies, and other inter ested parties, NMFS will develop writ ten recommendations to assist each Council in the identification of EFH, adverse impacts to EFH, and actions that should be considered to ensure the conservation and enhancement of EFH for each FMP. NMFS will provide such recommendations for the initial incor poration of EFH information into an FMP and for any subsequent modifica tion of the EFH components of an FMP. The NMFS EFH recommenda tions may be provided either before the Council’s development of a draft EFH document or later as a review of a draft EFH document developed by a Council, as appropriate. (c) Relationship to other fishery man agement authorities. Councils are en couraged to coordinate with state and interstate fishery management agen cies where Federal fisheries affect state and interstate managed fisheries or where state or interstate fishery regulations affect the management of Federal fisheries. Where a state or interstate fishing activity adversely af fects EFH, NMFS will consider that ac tion to be an adverse effect on EFH pursuant to paragraph (a)(3) of this sec tion and will provide EFH Conserva tion Recommendations to the appro priate state or interstate fishery man agement agency on that activity. Subpart K—EFH Coordination, Consultation, and Rec ommendations SOURCE: 67 FR 2376, Jan. 17, 2002, unless otherwise noted. § 600.905 Purpose, scope, and NMFS/ Council cooperation. (a) Purpose. These procedures address the coordination, consultation, and recommendation requirements of sec tions 305(b)(1)(D) and 305(b)(2–4) of the Magnuson-Stevens Act. The purpose of these procedures is to promote the pro tection of EFH in the review of Federal and state actions that may adversely affect EFH. (b) Scope. Section 305(b)(1)(D) of the Magnuson-Stevens Act requires the Secretary to coordinate with, and pro vide information to, other Federal agencies regarding the conservation and enhancement of EFH. Section 305(b)(2) requires all Federal agencies to consult with the Secretary on all ac tions or proposed actions authorized, funded, or undertaken by the agency that may adversely affect EFH. Sec tions 305(b)(3) and (4) direct the Sec retary and the Councils to provide comments and EFH Conservation Rec ommendations to Federal or state agencies on actions that affect 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 under taken by that agency. Section 305(b)(4)(B) requires Federal agencies