[Federal Register Volume 69, Number 168 (Tuesday, August 31, 2004)]
[Notices]
[Pages 53043-53044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19774]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040517149-4242-02; I.D. 050304C]


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the United States; Essential Fish Habitat; Re-
opening Comment Period

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

ACTION: Notice to re-open comment period; receipt of rulemaking 
petition to protect deep-sea coral and sponge habitat; request for 
comments.

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SUMMARY: The NMFS announced in the Federal Register on June 14, 2004, 
the receipt of a petition for rulemaking under the Administrative 
Procedure Act. Oceana, a non-governmental organization, petitioned the 
U.S. Department of Commerce to promulgate a rule to protect deep-sea 
coral and sponge habitats in the U.S. Exclusive Economic Zone (EEZ). 
The public comment period for that notice closed August 13, 2004. By 
this notice, NMFS announces the re-opening of the public comment period 
on the rulemaking petition to protect deep-sea coral and sponge habitat 
and to ensure thorough public comment.

DATES: Written comments will be accepted through October 15, 2004.
    Comments that were received between August 13, 2004, and August 31, 
2004 will also be deemed timely received.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include in the subject line of 
the e-mail comment the following identifier: DSC Petition.
     Mail: 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: On June 14, 2004 (69 FR 32991), NMFS 
announced the receipt of a rulemaking petition to protect deep-sea 
coral and sponge habitat and requested comments until August 13, 2004. 
NMFS received a request to extend the public comment period to allow 
more time to review of existing science and to address the petition's 
requests. NMFS decided to re-open the comment period from August 31, 
2004 to October 15, 2004 to allow Fishery Management Councils, Federal 
agencies, science organizations, and the general public more time to 
consider the petition's recommendations to ensure thorough public 
comment. Comments that were received between August 13, 2004, and 
August 31, 2004 will also be deemed timely received.
    The petition filed by Oceana states that deep-sea coral and sponge 
habitat 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 
essential fish habitat (EFH) and Habitat Areas of Particular Concern 
(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; 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-

[[Page 53044]]

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 concentrations 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 the 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 (see 
ADDRESSES).
    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: August 24, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 04-19774 Filed 8-30-04; 8:45 am]
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