50 CFR § 600.905-600.930 - Magnuson-Stevens Act Provisions - EFH Coordination, Consultation, and Recommendations

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 The review of information should include, but not be limited to, evaluating published sci entific literature and unpublished sci entific reports; soliciting information from interested parties; and searching for previously unavailable or inacces sible data.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 135 Fishery Conservation and Management § 600.920 to respond in writing to such com ments. The following procedures for co ordination, consultation, and rec ommendations allow all parties in volved to understand and implement the requirements of the Magnuson-Ste vens Act. (c) Cooperation between Councils and NMFS. The Councils and NMFS should cooperate closely to identify actions that may adversely affect EFH, to de velop comments and EFH Conservation Recommendations to Federal and state agencies, and to provide EFH informa tion to Federal and state agencies. NMFS will work with each Council to share information and to coordinate Council and NMFS comments and rec ommendations on actions that may ad versely affect EFH. However, NMFS and the Councils also have the author ity to act independently. § 600.910 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. Anadromous fishery resource under Council authority means an anadromous species managed under an FMP. Federal action means any action au thorized, funded, or undertaken, or pro posed to be authorized, funded, or un dertaken by a Federal agency. Habitat areas of particular concern means those areas of EFH identified pursuant to § 600.815(a)(8). State action means any action author ized, funded, or undertaken, or pro posed to be authorized, funded, or un dertaken by a state agency. (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). § 600.915 Coordination for the con servation and enhancement of EFH. To further the conservation and en hancement 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, and the general public, information on the locations of EFH, including maps and/or narrative de scriptions. NMFS will also provide in formation on ways to improve ongoing Federal operations to promote the con servation and enhancement of EFH. Federal and state agencies empowered to authorize, fund, or undertake ac tions that may adversely affect EFH are encouraged to contact NMFS and the Councils to become familiar with areas designated as EFH, potential threats to EFH, and opportunities to promote the conservation and enhance ment of EFH. § 600.920 Federal agency consultation with the Secretary. (a) Consultation generally—(1) Actions requiring consultation. Pursuant to sec tion 305(b)(2) of the Magnuson-Stevens Act, Federal agencies must consult with NMFS regarding any of their ac tions authorized, funded, or under taken, or proposed to be authorized, funded, or undertaken that may ad versely affect EFH. EFH consultation is not required for actions that were completed prior to the approval of EFH designations by the Secretary, e.g., issued permits. Consultation is re quired for renewals, reviews, or sub stantial revisions of actions if the re newal, review, or revision may ad versely affect EFH. Consultation on Federal programs delegated to non Federal entities is required at the time of delegation, review, and renewal of the delegation. EFH consultation is re quired for any Federal funding of ac tions that may adversely affect EFH. NMFS and Federal agencies respon sible for funding actions that may ad versely affect EFH should consult on a programmatic level under paragraph (j) 136 50 CFR Ch. VI (10–1–22 Edition) § 600.920 of this section, if appropriate, with re spect to these actions. Consultation is required for emergency Federal actions that may adversely affect EFH, such as hazardous material clean-up, response to natural disasters, or actions to pro tect public safety. Federal agencies should contact NMFS early in emer gency response planning, but may con sult after-the-fact if consultation on an expedited basis is not practicable be fore taking the action. (2) Approaches for conducting consulta tion. Federal agencies may use one of the five approaches described in para graphs (f) through (j) of this section to fulfill the EFH consultation require ments. The selection of a particular ap proach for handling EFH consultation depends on the nature and scope of the actions that may adversely affect EFH. Federal agencies should use the most efficient approach for EFH consulta tion that is appropriate for a given ac tion or actions. The five approaches are: use of existing environmental re view procedures, General Concurrence, abbreviated consultation, expanded consultation, and programmatic con sultation. (3) Early notification and coordination. The Federal agency should notify NMFS in writing as early as prac ticable regarding actions that may ad versely affect EFH. Notification will facilitate discussion of measures to conserve EFH. Such early coordination should occur during pre-application planning for projects subject to a Fed eral permit or license and during pre liminary planning for projects to be funded or undertaken directly by a Federal agency. (b) Designation of lead agency. If more than one Federal agency is responsible for a Federal action, the consultation requirements of sections 305(b)(2) through (4) of the Magnuson-Stevens Act may be fulfilled through a lead agency. The lead agency should notify NMFS in writing that it is rep resenting one or more additional agen cies. Alternatively, if one Federal agency has completed an EFH con sultation for an action and another Federal agency acts separately to au thorize, fund, or undertake the same activity (such as issuing a permit for an activity that was funded via a sepa rate Federal action), the completed EFH consultation may suffice for both Federal actions if it adequately ad dresses the adverse effects of the ac tions on EFH. Federal agencies may need to consult with NMFS separately if, for example, only one of the agen cies has the authority to implement measures necessary to minimize ad verse effects on EFH and that agency does not act as the lead agency. (c) Designation of non-Federal rep resentative. A Federal agency may des ignate a non-Federal representative to conduct an EFH consultation by giving written notice of such designation to NMFS. If a non-Federal representative is used, the Federal action agency re mains ultimately responsible for com pliance with sections 305(b)(2) and 305(b)(4)(B) of the Magnuson-Stevens Act. (d) Best available information. The Federal agency and NMFS must use the best scientific information avail able regarding the effects of the action on EFH and the measures that can be taken to avoid, minimize, or offset such effects. Other appropriate sources of information may also be considered. (e) EFH Assessments—(1) Preparation requirement. For any Federal action that may adversely affect EFH, Fed eral agencies must provide NMFS with a written assessment of the effects of that action on EFH. For actions cov ered by a General Concurrence under paragraph (g) of this section, an EFH Assessment should be completed during the development of the General Con currence and is not required for the in dividual actions. For actions addressed by a programmatic consultation under paragraph (j) of this section, an EFH Assessment should be completed during the programmatic consultation and is not required for individual actions im plemented under the program, except in those instances identified by NMFS in the programmatic consultation as requiring separate EFH consultation. Federal agencies are not required to provide NMFS with assessments re garding actions that they have deter mined would not adversely affect EFH. Federal agencies may incorporate an EFH Assessment into documents pre pared for other purposes such as En dangered Species Act (ESA) Biological 137 Fishery Conservation and Management § 600.920 Assessments pursuant to 50 CFR part 402 or National Environmental Policy Act (NEPA) documents and public no tices pursuant to 40 CFR part 1500. If an EFH Assessment is contained in an other document, it must include all of the information required in paragraph (e)(3) of this section and be clearly identified as an EFH Assessment. The procedure for combining an EFH con sultation with other environmental re views is set forth in paragraph (f) of this section. (2) Level of detail. The level of detail in an EFH Assessment should be com mensurate with the complexity and magnitude of the potential adverse ef fects of the action. For example, for relatively simple actions involving minor adverse effects on EFH, the as sessment may be very brief. Actions that may pose a more serious threat to EFH warrant a correspondingly more detailed EFH Assessment. (3) Mandatory contents. The assess ment must contain: (i) A description of the action. (ii) An analysis of the potential ad verse effects of the action on EFH and the managed species. (iii) The Federal agency’s conclu sions regarding the effects of the ac tion on EFH. (iv) Proposed mitigation, if applica ble. (4) Additional information. If appro priate, the assessment should also in clude: (i) The results of an on-site inspec tion to evaluate the habitat and the site-specific effects of the project. (ii) The views of recognized experts on the habitat or species that may be affected. (iii) A review of pertinent literature and related information. (iv) An analysis of alternatives to the action. Such analysis should include alternatives that could avoid or mini mize adverse effects on EFH. (v) Other relevant information. (5) Incorporation by reference. The as sessment may incorporate by reference a completed EFH Assessment prepared for a similar action, supplemented with any relevant new project specific infor mation, provided the proposed action involves similar impacts to EFH in the same geographic area or a similar eco logical setting. It may also incorporate by reference other relevant environ mental assessment documents. These documents must be provided to NMFS with the EFH Assessment. (f) Use of existing environmental review procedures—(1) Purpose and criteria. Consultation and commenting under sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act should be con solidated, where appropriate, with interagency consultation, coordina tion, and environmental review proce dures required by other statutes, such as NEPA, the Fish and Wildlife Coordi nation Act, Clean Water Act, ESA, and Federal Power Act. The requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act, including con sultations that would be considered to be abbreviated or expanded consulta tions under paragraphs (h) and (i) of this section, can be combined with ex isting procedures required by other statutes if such processes meet, or are modified to meet, the following cri teria: (i) The existing process must provide NMFS with timely notification of ac tions that may adversely affect EFH. The Federal agency should notify NMFS according to the same time frames for notification (or for public comment) as in the existing process. Whenever possible, NMFS should have at least 60 days notice prior to a final decision on an action, or at least 90 days if the action would result in sub stantial adverse impacts. NMFS and the action agency may agree to use shorter timeframes provided that they allow sufficient time for NMFS to de velop EFH Conservation Recommenda tions. (ii) Notification must include an as sessment of the impacts of the action on EFH that meets the requirements for EFH Assessments contained in paragraph (e) of this section. If the EFH Assessment is contained in an other document, the Federal agency must identify that section of the docu ment as the EFH Assessment. (iii) NMFS must have made a finding pursuant to paragraph (f)(3) of this sec tion that the existing process can be used to satisfy the requirements of sec tions 305(b)(2) and 305(b)(4) of the Mag nuson-Stevens Act. 138 50 CFR Ch. VI (10–1–22 Edition) § 600.920 (2) NMFS response to Federal agency. If an existing environmental review proc ess is used to fulfill the EFH consulta tion requirements, the comment dead line for that process should apply to the submittal of NMFS EFH Conserva tion Recommendations under section 305(b)(4)(A) of the Magnuson-Stevens Act, unless NMFS and the Federal agency agree to a different deadline. If NMFS EFH Conservation Rec ommendations are combined with other NMFS or NOAA comments on a Federal action, such as NOAA com ments on a draft Environmental Im pact Statement, the EFH Conservation Recommendations will be clearly iden tified as such (e.g., a section in the comment letter entitled ‘‘EFH Con servation Recommendations’’) and a Federal agency response pursuant to section 305(b)(4)(B) of the Magnuson Stevens Act is required for only the identified portion of the comments. (3) NMFS finding. A Federal agency with an existing environmental review process should contact NMFS at the appropriate level (regional offices for regional processes, headquarters office for national processes) to discuss how to combine the EFH consultation re quirements with the existing process, with or without modifications. If, at the conclusion of these discussions, NMFS determines that the existing or modified process meets the criteria of paragraph (f)(1) of this section, NMFS will make a finding that the process can be used to satisfy the EFH con sultation requirements of the Magnu son-Stevens Act. If NMFS does not make such a finding, or if there are no existing consultation processes rel evant to the Federal agency’s actions, the agency and NMFS should follow one of the approaches for consultation discussed in the following sections. (g) General Concurrence—(1) Purpose. A General Concurrence identifies spe cific types of Federal actions that may adversely affect EFH, but for which no further consultation is generally re quired because NMFS has determined, through an analysis of that type of ac tion, that it will likely result in no more than minimal adverse effects in dividually and cumulatively. General Concurrences may be national or re gional in scope. (2) Criteria. (i) For Federal actions to qualify for General Concurrence, NMFS must determine that the actions meet all of the following criteria: (A) The actions must be similar in nature and similar in their impact on EFH. (B) The actions must not cause great er than minimal adverse effects on EFH when implemented individually. (C) The actions must not cause great er than minimal cumulative adverse ef fects on EFH. (ii) Actions qualifying for General Concurrence must be tracked to ensure that their cumulative effects are no more than minimal. In most cases, tracking actions covered by a General Concurrence will be the responsibility of the Federal agency. However, NMFS may agree to track such actions. Tracking should include numbers of ac tions and the amount and type of habi tat adversely affected, and should specify the baseline against which the actions will be tracked. The agency re sponsible for tracking such actions should make the information available to NMFS, the applicable Council(s), and to the public on an annual basis. (iii) Categories of Federal actions may also qualify for General Concur rence if they are modified by appro priate conditions that ensure the ac tions will meet the criteria in para graph (g)(2)(i) of this section. For ex ample, NMFS may provide General Concurrence for additional actions con tingent upon project size limitations, seasonal restrictions, or other condi tions. (iv) If a General Concurrence is pro posed for actions that may adversely affect habitat areas of particular con cern, the General Concurrence should be subject to a higher level of scrutiny than a General Concurrence not involv ing a habitat area of particular con cern. (3) General Concurrence development. A Federal agency may request a General Concurrence for a category of its ac tions by providing NMFS with an EFH Assessment containing a description of the nature and approximate number of the actions, an analysis of the effects of the actions on EFH, including cumu lative effects, and the Federal agency’s conclusions regarding the magnitude of 139 Fishery Conservation and Management § 600.920 such effects. If NMFS agrees that the actions fit the criteria in paragraph (g)(2)(i) of this section, NMFS will pro vide the Federal agency with a written statement of General Concurrence that further consultation is not required. If NMFS does not agree that the actions fit the criteria in paragraph (g)(2)(i) of this section, NMFS will notify the Fed eral agency that a General Concur rence will not be issued and that an other type of consultation will be re quired. If NMFS identifies specific types of Federal actions that may meet the requirements for a General Concur rence, NMFS may initiate and com plete a General Concurrence. (4) Further consultation. NMFS may request notification for actions covered under a General Concurrence if NMFS concludes there are circumstances under which such actions could result in more than a minimal impact on EFH, or if it determines that there is no process in place to adequately as sess the cumulative impacts of actions covered under the General Concur rence. NMFS may request further con sultation for these actions on a case by-case basis. Each General Concur rence should establish specific proce dures for further consultation, if appro priate. (5) Notification. After completing a General Concurrence, NMFS will pro vide a copy to the appropriate Coun cil(s) and will make the General Con currence available to the public by posting the document on the internet or through other appropriate means. (6) Revisions. NMFS will periodically review and revise its General Concur rences, as appropriate. (h) Abbreviated consultation proce dures—(1) Purpose and criteria. Abbre viated consultation allows NMFS to determine quickly whether, and to what degree, a Federal action may ad versely affect EFH. Federal actions that may adversely affect EFH should be addressed through the abbreviated consultation procedures when those ac tions do not qualify for a General Con currence, but do not have the potential to cause substantial adverse effects on EFH. For example, the abbreviated consultation procedures should be used when the adverse effect(s) of an action could be alleviated through minor modifications. (2) Notification by agency and submittal of EFH Assessment. Abbreviated con sultation begins when NMFS receives from the Federal agency an EFH As sessment in accordance with paragraph (e) of this section and a written request for consultation. (3) NMFS response to Federal agency. If NMFS determines, contrary to the Federal agency’s assessment, that an action would not adversely affect EFH, or if NMFS determines that no EFH Conservation Recommendations are needed, NMFS will notify the Federal agency either informally or in writing of its determination. If NMFS believes that the action may result in substan tial adverse effects on EFH, or that ad ditional analysis is needed to assess the effects of the action, NMFS will re quest in writing that the Federal agen cy initiate expanded consultation. Such request will explain why NMFS believes expanded consultation is need ed and will specify any new informa tion needed. If expanded consultation is not necessary, NMFS will provide EFH Conservation Recommendations, if appropriate, pursuant to section 305(b)(4)(A) of the Magnuson-Stevens Act. (4) Timing. The Federal agency must submit its EFH Assessment to NMFS as soon as practicable, but at least 60 days prior to a final decision on the ac tion. NMFS must respond in writing within 30 days. NMFS and the Federal agency may agree to use a compressed schedule in cases where regulatory ap provals or emergency situations cannot accommodate 30 days for consultation, or to conduct consultation earlier in the planning cycle for actions with lengthy approval processes. (i) Expanded consultation procedures— (1) Purpose and criteria. Expanded con sultation allows maximum opportunity for NMFS and the Federal agency to work together to review the action’s impacts on EFH and to develop EFH Conservation Recommendations. Ex panded consultation procedures must be used for Federal actions that would result in substantial adverse effects to EFH. Federal agencies are encouraged to contact NMFS at the earliest oppor tunity to discuss whether the adverse 140 50 CFR Ch. VI (10–1–22 Edition) § 600.920 effects of an action make expanded consultation appropriate. (2) Notification by agency and submittal of EFH Assessment. Expanded consulta tion begins when NMFS receives from the Federal agency an EFH Assessment in accordance with paragraph (e) of this section and a written request for expanded consultation. Federal agen cies are encouraged to provide in the EFH Assessment the additional infor mation identified under paragraph (e)(4) of this section to facilitate re view of the effects of the action on EFH. (3) NMFS response to Federal agency. NMFS will: (i) Review the EFH Assessment, any additional information furnished by the Federal agency, and other relevant information. (ii) Conduct a site visit, if appro priate, to assess the quality of the habitat and to clarify the impacts of the Federal agency action. Such a site visit should be coordinated with the Federal agency and appropriate Coun cil(s), if feasible. (iii) Coordinate its review of the ac tion with the appropriate Council(s). (iv) Discuss EFH Conservation Rec ommendations with the Federal agency and provide such recommendations to the Federal agency, pursuant to sec tion 305(b)(4)(A) of the Magnuson-Ste vens Act. (4) Timing. The Federal agency must submit its EFH Assessment to NMFS as soon as practicable, but at least 90 days prior to a final decision on the ac tion. NMFS must respond within 60 days of submittal of a complete EFH Assessment unless consultation is ex tended by agreement between NMFS and the Federal agency. NMFS and Federal agencies may agree to use a compressed schedule in cases where regulatory approvals or emergency sit uations cannot accommodate 60 days for consultation, or to conduct con sultation earlier in the planning cycle for actions with lengthy approval proc esses. (5) Extension of consultation. If NMFS determines that additional data or analysis would provide better informa tion for development of EFH Conserva tion Recommendations, NMFS may re quest additional time for expanded consultation. If NMFS and the Federal agency agree to an extension, the Fed eral agency should provide the addi tional information to NMFS, to the ex tent practicable. If NMFS and the Fed eral agency do not agree to extend con sultation, NMFS must provide EFH Conservation Recommendations to the Federal agency using the best sci entific information available to NMFS. (j) Programmatic consultation—(1) Pur pose. Programmatic consultation pro vides a means for NMFS and a Federal agency to consult regarding a poten tially large number of individual ac tions that may adversely affect EFH. Programmatic consultation will gen erally be the most appropriate option to address funding programs, large scale planning efforts, and other in stances where sufficient information is available to address all reasonably foreseeable adverse effects on EFH of an entire program, parts of a program, or a number of similar individual ac tions occurring within a given geo graphic area. (2) Process. A Federal agency may re quest programmatic consultation by providing NMFS with an EFH Assess ment in accordance with paragraph (e) of this section. The description of the proposed action in the EFH Assessment should describe the program and the nature and approximate number (annu ally or by some other appropriate time frame) of the actions. NMFS may also initiate programmatic consultation by requesting pertinent information from a Federal agency. (3) NMFS response to Federal agency. NMFS will respond to the Federal agency with programmatic EFH Con servation Recommendations and, if ap plicable, will identify any potential ad verse effects that could not be ad dressed programmatically and require project-specific consultation. NMFS may also determine that programmatic consultation is not appropriate, in which case all EFH Conservation Rec ommendations will be deferred to project-specific consultations. If appro priate, NMFS’ response may include a General Concurrence for activities that qualify under paragraph (g) of this sec tion. (k) Responsibilities of Federal agency following receipt of EFH Conservation 141 Fishery Conservation and Management § 600.925 Recommendations—(1) Federal agency re sponse. As required by section 305(b)(4)(B) of the Magnuson-Stevens Act, the Federal agency must provide a detailed response in writing to NMFS and to any Council commenting on the action under section 305(b)(3) of the Magnuson-Stevens Act within 30 days after receiving an EFH Conservation Recommendation from NMFS. Such a response must be provided at least 10 days prior to final approval of the ac tion if the response is inconsistent with any of NMFS’ EFH Conservation Recommendations, unless NMFS and the Federal agency have agreed to use alternative time frames for the Federal agency response. The response must in clude a description of measures pro posed by the agency for avoiding, miti gating, or offsetting the impact of the activity on EFH. In the case of a re sponse that is inconsistent with NMFS Conservation Recommendations, the Federal agency must explain its rea sons for not following the recommenda tions, including the scientific justifica tion for any disagreements with NMFS over the anticipated effects of the ac tion and the measures needed to avoid, minimize, mitigate, or offset such ef fects. (2) Further review of decisions incon sistent with NMFS or Council rec ommendations. If a Federal agency deci sion is inconsistent with a NMFS EFH Conservation Recommendation, the As sistant Administrator for Fisheries may request a meeting with the head of the Federal agency, as well as with any other agencies involved, to discuss the action and opportunities for resolv ing any disagreements. If a Federal agency decision is also inconsistent with a Council recommendation made pursuant to section 305(b)(3) of the Magnuson-Stevens Act, the Council may request that the Assistant Admin istrator initiate further review of the Federal agency’s decision and involve the Council in any interagency discus sion to resolve disagreements with the Federal agency. The Assistant Admin istrator will make every effort to ac commodate such a request. NMFS may develop written procedures to further define such review processes. (l) Supplemental consultation. A Fed eral agency must reinitiate consulta tion with NMFS if the agency substan tially revises its plans for an action in a manner that may adversely affect EFH or if new information becomes available that affects the basis for NMFS EFH Conservation Rec ommendations. § 600.925 NMFS EFH Conservation Recommendations to Federal and state agencies. (a) General. Under section 305(b)(4)(A) of the Magnuson-Stevens Act, NMFS is required to provide EFH Conservation Recommendations to Federal and state agencies for actions that would ad versely affect EFH. NMFS will not rec ommend that state or Federal agencies take actions beyond their statutory authority. (b) Recommendations to Federal agen cies. For Federal actions, EFH Con servation Recommendations will be provided to Federal agencies as part of EFH consultations conducted pursuant to § 600.920. If NMFS becomes aware of a Federal action that would adversely affect EFH, but for which a Federal agency has not initiated an EFH con sultation, NMFS may request that the Federal agency initiate EFH consulta tion, or NMFS will provide EFH Con servation Recommendations based on the information available. (c) Recommendations to state agencies— (1) Establishment of procedures. The Magnuson-Stevens Act does not require state agencies to consult with the Sec retary regarding EFH. NMFS will use existing coordination procedures or es tablish new procedures to identify state actions that may adversely affect EFH, and to determine the most appro priate method for providing EFH Con servation Recommendations to state agencies. (2) Coordination with states on rec ommendations to Federal agencies. When an action that would adversely affect EFH is authorized, funded, or under taken by both Federal and state agen cies, NMFS will provide the appro priate state agencies with copies of EFH Conservation Recommendations developed as part of the Federal con sultation procedures in § 600.920. NMFS will also seek agreements on sharing information and copies of recommenda tions with Federal or state agencies 142 50 CFR Ch. VI (10–1–22 Edition) § 600.930 conducting similar consultation and recommendation processes to ensure coordination of such efforts. (d) Coordination with Councils. NMFS will coordinate with each Council to identify the types of actions on which Councils intend to comment pursuant to section 305(b)(3) of the Magnuson Stevens Act. For such actions NMFS will share pertinent information with the Council, including copies of NMFS’ EFH Conservation Recommendations. § 600.930 Council comments and rec ommendations to Federal and state agencies. Under section 305(b)(3) of the Magnu son-Stevens Act, Councils may com ment on and make recommendations to the Secretary and any Federal or state agency concerning any activity or pro posed activity authorized, funded, or undertaken by the agency that, in the view of the Council, may affect the habitat, including EFH, of a fishery re source under its authority. Councils must provide such comments and rec ommendations concerning any activity that, in the view of the Council, is like ly to substantially affect the habitat, including EFH, of an anadromous fish ery resource under Council authority. (a) Establishment of procedures. Each Council should establish procedures for reviewing Federal or state actions that may adversely affect the habitat, in cluding EFH, of a species under its au thority. Each Council may receive in formation on actions of concern by methods such as directing Council staff to track proposed actions, recom mending that the Council’s habitat committee identify actions of concern, or entering into an agreement with NMFS to have the appropriate Re gional Administrator notify the Coun cil of actions of concern that would ad versely affect EFH. Federal and state actions often follow specific timetables which may not coincide with Council meetings. Therefore, Councils should consider establishing abbreviated pro cedures for the development of Council recommendations. (b) Early involvement. Councils should provide comments and recommenda tions on proposed state and Federal ac tions of concern as early as practicable in project planning to ensure thorough consideration of Council concerns by the action agency. Each Council should provide NMFS with copies of its com ments and recommendations to state and Federal agencies. Subpart L—Fishing Capacity Reduction Framework AUTHORITY: 16 U.S.C. 1861a(b)–(e). SOURCE: 65 FR 31443, May 18, 2000, unless otherwise noted. § 600.1000 Definitions. In addition to the definitions in the Magnuson-Stevens Fishery Conserva tion and Management Act (Magnuson Stevens Act) and in § 600.10 of this title, the terms used in this subpart have the following meanings: Address of Record means the business address of a person, partnership, or cor poration. Addresses listed on permits or other NMFS records are presumed to be business addresses, unless clearly in dicated otherwise. Bid means the price a vessel owner or reduction fishery permit holder re quests for reduction of his/her fishing capacity. It is an irrevocable offer in response to the invitation to bid in § 600.1009. Borrower means, individually and col lectively, each post-reduction fishing permit holder and/or fishing vessel owner fishing in the reduction fishery. Business plan means the document containing the information specified in § 600.1003(n) and required to be sub mitted with a request for a financed program. Business week means a 7-day period, Saturday through Friday. Controlling fishery management plan or program (CFMP) means either any fish ery management plan or any state fish ery management plan or program, in cluding amendments to the plan or pro gram, pursuant to which a fishery is managed. Delivery value means: (1) For unprocessed fish, all com pensation that a fish buyer pays to a fish seller in exchange for fee fish; and (2) For processed fish, all compensa tion that a fish buyer would have paid to a fish seller in exchange for fee fish