[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Notices]
[Pages 32991-32992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13204]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040517149-4149-01; I.D. 050304C]


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.

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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: [email protected] 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: (301) 427-2572
    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

[[Page 32992]]

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.
[FR Doc. 04-13204 Filed 6-10-04; 8:45 am]
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