Fisheries of the Exclusive Economic Zone off Alaska; Essential Fish Habitat Amendments, 58632-58635 [2024-15930]
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58632
Federal Register / Vol. 89, No. 139 / Friday, July 19, 2024 / Rules and Regulations
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seeking an additional referral to, or
expecting an additional recommended
decision from, the Joint Board to extend
the separations rules freeze. At the same
time, the Commission finds it
appropriate to renew the Commission’s
prior reform referrals to the Joint Board
in this Order, which accompanies the
Further Notice of Proposed Rulemaking.
In previously extending the freeze, the
Commission has found such extensions
to fall within the scope of the Joint
Board’s recommended decision granting
the first freeze. In the 2001 Separations
Freeze Order (66 FR 33202; June 21,
2001) following the Joint Board
recommendation, in adopting the first
separations freeze, the Commission
recognized that it might need to extend
the freeze if comprehensive reform was
not completed before the freeze expired.
Since then, the Commission has
extended the freeze eight times without
an additional referral of the freeze to the
Joint Board. The Commission
nevertheless values the Joint Board’s
input, and commits to engage in
consultations with the Joint Board
regarding the Commission’s proposed
extension and any interim separations
reform measures that may be needed
during the freeze.
2. In this document, the Commission
renews the existing referrals to the
Federal-State Joint Board on
Separations, including both the 1997
and 2009 comprehensive reform
referrals and the 2018 interim reform
measures referral. The Commission
renews these referrals in light of the
substantial changes that have unfolded
within the telecommunications market
alongside extensive changes in federal
and state regulatory frameworks since
these referrals were first made.
II. Procedural Matters
3. Final Regulatory Flexibility
Analysis. Although in previous orders
that included comprehensive and
interim reform referrals to the Joint
Board, the Commission incorporated a
Final Regulatory Flexibility Analysis
(FRFA), such analysis is not required
here because the renewed referral is not
a rule adopted through notice and
comment rulemaking under 5 U.S.C.
553(b).
4. Paperwork Reduction Act. This
document does not contain proposed
information collection requirements
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13. In addition,
therefore, it does not contain any new
or modified information collection
burden for small business concerns with
fewer than 25 employees pursuant to
the Small Business Paperwork Relief
Act of 2002, Public Law 107–198.
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III. Ordering Clauses
5. Accordingly, it is ordered, pursuant
to sections 1, 4(i) and (j), 205, 220,
221(c), 254, 303(r), 403, and 410 of the
Communication Act of 1934, as
amended, 47 U.S.C. 151, 154(i) and (j),
205, 220, 221(c), 254, 303(r), 403, 410,
and section 706 of the
Telecommunications Act of 1996, as
amended, 47 U.S.C. 1302, that this
Order is adopted.
6. It is further ordered that, pursuant
to section 410(c) of the Communications
Act of 1934, as amended, 47 U.S.C.
410(c), this Order renews the prior
referrals to the Federal-State Joint Board
on Separations for preparation of a
recommended decision.
7. It is further ordered, pursuant to
section 220(i) of the Communications
Act, 47 U.S.C. 220(i), that notice be
given to each state commission of the
above rulemaking proceeding, and that
the Secretary shall serve a copy of this
Order on each state commission.
8. It is further ordered that the
Commission’s Office of the Secretary
shall send a copy of this Order to the
Chief Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison, Office of the
Secretary.
[FR Doc. 2024–15563 Filed 7–18–24; 8:45 am]
BILLING CODE 6712–01–P
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of agency decision.
AGENCY:
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
SUMMARY:
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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 https://
www.regulations.gov 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
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Federal Register / Vol. 89, No. 139 / Friday, July 19, 2024 / Rules and Regulations
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 MagnusonStevens 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 5year 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:
• 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—
Æ 41 species or complexes in the
BSAI Groundfish FMP;
Æ 46 species or complexes in the
GOA Groundfish FMP;
Æ all five species in the Crab FMP;
and
Æ all three species in the Arctic FMP.
• Salmon FMP: replace the
distribution maps for all five species
with the EFH maps.
• 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.
• BSAI Groundfish FMP, GOA
Groundfish FMP, Crab FMP, and Arctic
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FMP: revise the EFH appendices where
conservation recommendations for nonfishing activities are described.
• 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.
• 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
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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
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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 Statemanaged 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
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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 5year 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
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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
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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
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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
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58635
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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Agencies
[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 [www.gpo.gov]
[FR Doc No: 2024-15930]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://www.regulations.gov 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:
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.
Salmon FMP: replace the distribution maps for all five
species with the EFH maps.
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.
BSAI Groundfish FMP, GOA Groundfish FMP, Crab FMP, and
Arctic FMP: revise the EFH appendices where conservation
recommendations for non-fishing activities are described.
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.
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]
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