04-13204. Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the United States; Essential Fish Habitat

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of receipt of rulemaking petition to protect deep-sea coral and sponge habitat and request for comments.

SUMMARY:

NMFS announces receipt of a petition for rulemaking under the Administrative Procedure Act. Oceana, a non-governmental organization, has petitioned the U.S. Department of Commerce to promulgate a rule to protect deep-sea coral and sponge habitats in the United States' Exclusive Economic Zone (EEZ). The petition asserts that deep-sea coral and sponge communities are not adequately protected under existing fishery management plans (FMPs) or through pending rulemakings and that current efforts to identify and describe essential fish habitat (EFH) proceed too slowly to offer immediate protection to these habitats. The petition seeks a research and regulatory program that includes increased mapping of areas containing deep-sea coral and sponge habitat, and identification and description of such areas as both EFH and habitat areas of particular concern (HAPCs); increased protective measures for these habitats, including implementing additional closed areas, and increased enforcement and penalties; enhanced monitoring infrastructure for deep-sea corals and sponges; and increased funding for further research to identify, protect, and restore damaged deep-sea coral and sponge habitats.

DATES:

Comments will be accepted through August 13, 2004.

ADDRESSES:

You may submit comments by any of the following methods:

• Federal e-Rulemaking Portal http//www.regulations.gov. Follow the instructions for submitting comments.
• Email: [e-mail] Include in the subject line of the e-mail comment the following identifier: DSC Petition
• Mail: Mr. Rolland A. Schmitten, Director, Office of Habitat Conservation, NOAA National Marine Fisheries Service, F/HC, 1315 East-West Highway, Silver Spring, MD 20910
• Fax: [phone]

The complete text of Oceana's petition is available via the internet at the following web address: http://www.nmfs.noaa.gov/​habitat/​habitatconservation/​DSC_​petition/​Oceana. In addition, copies of this petition may be obtained by contacting NMFS at the above address.

FOR FURTHER INFORMATION CONTACT:

Tom Hourigan at 301-713-3459 Ext. 122.

SUPPLEMENTARY INFORMATION:

The petition filed by Oceana states that deep-sea coral and sponge communities are comprised of long-lived, slow-growing organisms that are especially vulnerable to destructive fishing practices, such as the use of bottom-tending mobile fishing gear. The petition cites that without immediate protection, many of these sensitive deep-sea coral and sponge habitats will suffer irreparable harm.

The petition cites specific legal responsibilities of NMFS for EFH and HAPCs under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the EFH guidelines at 50 CFR 600, subparts J and K, and concludes that NMFS must: identify and describe deep-sea coral and sponge habitats as EFH; designate some, if not all, of these habitat types as HAPCs; and take appropriate measures to minimize to the extent practicable adverse fishing effects on this EFH; and protect such habitat from other forms of destructive activity. The petition gives a short overview of known deep-sea coral and sponge habitat in regions off the mainland United States, including areas known in the Alaska, Pacific, Northeast and Mid-Atlantic, Southeast, and Gulf of Mexico fishery management regions. The petition asserts that deep-sea coral and sponge habitats satisfy the definition of EFH in the Magnuson-Stevens Act and concludes that such areas must be identified and described as EFH under the relevant FMPs. In addition, the petition states that deep-sea coral and sponge habitats should be identified as HAPCs because they meet the definition of HAPC and satisfy one or more of the criteria set forth in the EFH guidelines for creating HAPCs. Further, the petition argues that the Magnuson-Stevens Act requires NMFS to protect areas identified as EFH and HAPC and that such protection, as articulated in the petition, is “practicable.” Finally, the petition asserts that deep-sea coral and sponge habitats must be protected for its own sake, meaning if the Secretary does not protect such habitats through existing FMPs, the Magnuson-Stevens Act requires the Secretary and the Regional Fishery Management Councils to develop FMPs specifically for the protection of deep-sea corals and sponges.

The petition specifically requests that NMFS immediately initiate rulemaking to protect deep-sea coral and sponge habitats in the U.S. EEZ by taking the following measures:

“1. Identify, map, and list all known sponge areas containing high concentations of deep-sea coral and sponge habitats;

“2. Designate all known areas containing high concentrations of deep-sea coral and sponge habitat as both EFH and 'habitat areas of particular concern' (HAPC) and close these HAPC to bottom trawling;

“3. Identify all areas not fished within the last three years with bottom-tending mobile fishing gear, and close these areas to bottom trawling;

“4. Monitor bycatch to identify areas of deep-sea coral and sponge habitat that are currently fished, establish appropriate limits or caps on bycatch of deep-sea coral and sponge habitat, and immediately close areas to bottom trawling where these limits or caps are reached, until such time as the areas can be mapped, identified as EFH and HAPC, and permanently protected;

“5. Establish a program to identify new areas containing high concentrations of deep-sea coral and sponge habitat through bycatch monitoring, surveys, and other methods, designate these newly discovered areas as EFH and HAPC, and close them to bottom trawling;

“6. Enhance monitoring infrastructure, including observer coverage, vessel monitoring systems, and electronic logbooks for vessel fishing in areas where they might encounter high concentrations of deep-sea coral and sponge habitat (including encountering HAPC);

“7. Increase enforcement and penalties to prevent deliberate destruction of deep-sea coral and sponge habitat and illegal fishing in already closed areas; and

“8. Fund and initiate research to identify, protect, and restore damaged deep-sea coral and sponge habitat."

The exact and complete assertions of legal responsibilities under Federal law are contained in the text of Oceana's petition, which is available via internet at the following NMFS web address: http://www.nmfs.noaa.gov/​habitat/​habitatconservation/​ DSC_petition/Oceana. Also, anyone may obtain a copy of this petition by contacting NMFS at the above address.

The Assistant Administrator for Fisheries, NOAA has determined that the petition contains enough information to enable NMFS to consider the substance of the petition. NMFS will consider public comments received in determining whether to proceed with the development of the regulations requested by Oceana. Additionally, NMFS, by separate letter, has requested each Regional Fishery Management Council assist in evaluating this petition. Upon determining whether to initiate the requested rulemaking, the Assistant Administrator for Fisheries, NOAA, will publish in the Federal Register a notice of the agency's final disposition of the Oceana petition request.

Authority: 16 U.S.C. 1801 et seq.

Dated: June 4, 2004.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.