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DEFINITIONS

According to the Magnuson-Stevens Fishery Conservation And Management Act (Public Law 94-265) as amended through October 11, 1996 hereafter referred to as the Sustainable Fisheries Act (SFA), the following definitions appear:

(SEC. 3. DEFINITIONS 16 U.S.C. 1802)

Fish:
99-659, 101-627

(12) The term "fish" means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds.

Essential Fish Habitat:
104-297

(10) The term "essential fish habitat" means those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.

This was interpreted by NMFS in the EFH Proposed Rule 50 CFR Part 600 published in the Federal Register: April 23, 1997 (Volume 62, Number 78) [Page 19726]

Sec. 600.10  Definitions.
"For the purpose of interpreting the definition of essential fish habitat: Waters include aquatic areas and their associated physical, chemical, and biological properties that are used by fish and may include aquatic areas historically used by fish where appropriate; substrate includes sediment, hard bottom, structures underlying the waters, and associated biological communities; necessary means the habitat required to support a sustainable fishery and the managed species' contribution to a healthy ecosystem; and "spawning, breeding, feeding, or growth to maturity" covers a species " full life cycle."

Furthermore, it was stated in the Background section of this Proposed Rule (page 19724) that:

"These proposed regulations would establish a process for Councils to identify and describe EFH, including adverse impacts to that habitat, per the requirements of the Magnuson-Stevens Act." In addition, "Councils must submit FMP amendments containing these new provisions by October 11, 1998".

Overfished species
The SFA defines overfished as follows:

104-297
(29) The terms "overfishing" and "overfished" mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.

SEC. 301 of the SFA requires that measures must be taken to prevent overfishing as follows:

98-623
(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

SEC. 303 of the SFA further stipulates the following:

95-354, 99-659, 101-627, 104-297
a) REQUIRED PROVISIONS -- Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall:

(1) contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States, which are:

(A) necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery;

(10) specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished (with an analysis of how the criteria were determined and the relationship of the criteria to the reproductive potential of stocks of fish in that fishery) and, in the case of a fishery which the Council or the Secretary has determined is approaching an overfished condition or is overfished, contain conservation and management measures to prevent overfishing or end overfishing and rebuild the fishery;

The NMFS "Report to Congress on the Status of Fisheries of the United States" (1997) listed the American lobster along with 86 other overfished species.

Overfishing of lobster was addressed in the Strategic Assessment Workshop (SAW 22 - 1996). In this report it was stated that "the American lobster resource is considered recruitment overfished when, throughout its range, the fishing mortality rate (F), given the regulations in place at that time under the suite of regional management measures, results in a reduction in estimated egg production per recruit to 10% or less of a non-fished population." The level of fishing mortality resulting in egg production per recruit of 10% of the maximum ranged from 32% to 44% depending on the area. Currently egg production is estimated by the ASMFC at 1.5-3% and fishing mortality since 1982 has exceeded 50% every year except 1993.

In December 1997, NMFS issued the EFH Interim Final Rule (Federal Register: December 19, 1997 Volume 62, Number 244) Rules and Regulations [Page 66531-66559] which amended the EFH Proposed Rule as follows:

§ 600.810

Definitions and word usage.
(a) Definitions.

In addition to the definitions in the Magnuson-Stevens Act and § 600.10, the terms in this subpart have the following meanings:
Overfished means any stock or stock complex, the status of which is reported as overfished by the Secretary pursuant to § 304(e)(1) of the Magnuson-Stevens Act.

The criteria was defined in a later section of the EFH Interim Final Rule

600.815(a)(ii)(B)

If a species is overfished, and habitat loss or degradation may be contributing to the species being identified as overfished, all habitats currently used by the species should be considered essential in addition to certain historic habitats that are necessary to support rebuilding the fishery and for which restoration is technologically and economically feasible. Once the fishery is no longer considered overfished, the EFH identification should be reviewed, and the FMP amended, if appropriate.

HABITAT AREAS OF PARTICYLAR CONCERN (HAPC)

The EFH Proposed Rule issued April 23, 1997 (see above) refers to these habitats as follows:

600.810 (a)(7)
Identification of vulnerable habitat.  FMPs should identify vulnerable EFH.  In determining whether a type of EFH is vulnerable, Councils should consider:

(i) The extent to which the habitat is sensitive to human-induced environmental degradation.
(ii) Whether, and to what extent, development activities are, or will be, stressing the habitat type.
 (iii) The rarity of the habitat type.

In the EFH Interim Final Rule for Dec. 1997 (see above) NMFS responded to public comments in the following manner:

24. Comments on Vulnerable Habitats (Habitat Areas of Particular Concern) Response:

"After consideration of comments on the proposed rule, NMFS has refined this concept to include ecological function of the habitat along with considerations of vulnerability. In the rule, NMFS renamed vulnerable habitats as "habitat areas of particular concern'' (HAPC).  In determining HAPCs, Councils should consider ecological value of a type or area of EFH, its susceptibility to perturbation from both anthropogenic (human-caused) sources and natural stresses, and whether it is currently stressed or rare."

Habitat areas of particular concern means those areas of EFH identified pursuant to § 600.815(a)(9) amended as follows:

Changes
In § 600.815, paragraph (a)(9) has been renumbered from paragraph (a)(7) of the proposed rule and retitled "Identification of habitat areas of particular concern;" language has been included to denote that HAPC might include not only those areas especially vulnerable to degradation, but those that provide important ecological functions for one or more managed species; the paragraphs have been renumbered after the inclusion of paragraph (i), The importance of the ecological function provided by the habitat.

600.815(a)(9) Identification of habitat areas of particular concern. FMPs should identify habitat areas of particular concern within EFH. In determining whether a type, or area of EFH is a habitat area of particular concern, one or more of the following criteria must be met:

    1. The importance of the ecological function provided by the habitat.
    2. The extent to which the habitat is sensitive to human-induced environmental degradation.
    3. Whether, and to what extent, development activities are, or will be, stressing the habitat type.
    4. The rarity of the habitat type.

The following is the NEFMC Interpretation of the EFH Interim Final Rule Provisions provided by the Habitat Committee EFH Technical Team:

600.815(a)(6)(ii) For the purposes of the EFH amendment, "particularly vulnerable" means those habitat types that are most susceptible to long-lasting damage, accounting for the types of gear used in the area and the physical and biological characteristics of the habitat.

600.815 (a)(9)(i) The Technical Team will use its professional judgment as to any limiting factors or ecological "bottlenecks" that can be linked to the availability of suitable habitat. If any specific habitat areas or types can be linked in this way, these may be designated as habitat areas of particular concern.

600.815 (a)(9)(ii) and (iii) Without specific knowledge regarding the ecological function of a particular habitat area (i.e., if only Level 1 or Level 2 data are available), it may be appropriate to designate specific areas sensitive to human-induced environmental degradation or stresses from development activities as habitat areas of particular concern. The Technical Team will make this determination on a case-by-case basis.

600.815 (a)(9)(iv) The Technical Team will use its professional judgment as to the rarity of the habitat type in question and its role in supporting the managed species to determine if an area should be designated as a habitat area of particular concern. If there is little information regarding the function of the habitat type, and this habitat type is rare, then the Technical Team will act conservatively and propose this as a habitat area of particular concern.

The geographic range of the recommended habitat area of particular concern is limited by the extent of the scientific studies, but this should not preclude the future extrapolation of this type of designation to other areas with very similar characteristics. Although most scientific studies of the type described in the HAPC recommendation are by necessity limited in temporal and spatial scale, the conclusions and results are quite often transferable to other areas. This sort of extrapolation will depend, in large part, upon the professional judgment of the EFH Technical Team and the Habitat Advisors.

The NEFMC Technical Team for EFH has begun to apply these definitions and has recommended that a portion of Area Closure 2 be permanently closed to all fishing activities (including lobster pots) for juvenile Atlantic cod.

At the Habitat Committee Meeting on June 4, 1998, the Technical Team recommended that a second portion of Area Closure 2 and a portion of Area Closure 1 be closed to all fishing activities (including lobster pots) due to the presence of "cobble" substrate. They stated that the Western Gulf of Maine closure would be the next to be examined.