[Federal Register Volume 70, Number 131 (Monday, July 11, 2005)]
[Proposed Rules]
[Pages 39700-39714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13589]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 040517149-5173-03; I.D. 050304C]


Petition for Emergency Rulemaking to Protect Deep-Sea Coral and 
Sponge Habitat from Mobile Bottom-Tending Fishing Gear Under the 
Magnuson-Stevens Fishery Conservation and Management Act Essential Fish 
Habitat Provisions

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

ACTION: Petition for rulemaking; denial of emergency action.

-----------------------------------------------------------------------

SUMMARY: NMFS announces its decision on a petition for rulemaking under 
the Administrative Procedure Act (APA). Oceana, a non-governmental 
organization (NGO), petitioned the U.S. Department of Commerce to 
promulgate immediately a rule to protect deep-sea coral and sponge 
(DSCS) habitat from the impacts of mobile bottom-tending fishing gear. 
NMFS finds that the petitioned emergency rulemaking is not warranted. 
NMFS will work actively with each Regional Fishery Management Council 
(Council) to evaluate, and take action where appropriate to protect 
DSCS and may pursue future rulemakings to protect DSCS in specific 
locations based on analyses for specific fisheries. Additionally, NMFS 
plans to develop a strategy to address research, conservation, and 
management issues regarding DSCS habitat, which eventually may result 
in rulemaking for some fisheries.

ADDRESSES: Copies of NMFS decision on the Oceana petition are available 
from Tom Hourigan, NMFS Coral Reef Coordinator, Office of Habitat 
Conservation, NMFS, 1315 East-West Highway, Silver Spring, MD 20910; 
telephone 301-713-3459 ext. 122. NMFS decision on the Oceana petition 
is available via internet at: http://www.nmfs.noaa.gov/habitat/habitatconservation/DSC_petition.

FOR FURTHER INFORMATION CONTACT: Tom Hourigan, NMFS Coral Reef 
Coordinator; telephone: 301-713-3459 Ext. 122; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS published a notice of receipt of 
petition for rulemaking on June 14, 2004 (69 FR 32991) and invited 
public comments for 60 days ending August 13, 2004. NMFS reopened the 
comment period on August 31, 2004 (69 FR 53043) to allow for more time 
to comment. This comment period ran 45 days, concluding on October 15, 
2004. NMFS received 16 letters from interest groups including 6 
Councils, commercial fishermen, fisheries organizations, a Federal 
agency, environmental groups, and other interested individuals. NMFS 
also received more than 32,000 form letters of similar content and two 
lists of signatures from interested members of the general public. 
Summaries of and responses to comments are provided under the Public 
Comments section below.

The Petition

    The petition filed by Oceana sought rulemaking to protect DSCS 
habitat. This petition states that DSCS habitat comprises long-lived, 
slow-growing organisms that are especially vulnerable to destructive 
fishing practices, such as the use of mobile bottom-tending fishing 
gear and claims that without immediate protection, many of these 
sensitive DSCS habitats will suffer irreparable harm.
    The petition cites specific legal responsibilities of NMFS for EFH 
and HAPCs under the Magnuson-Stevens Act and the EFH regulatory 
guidelines at 50 CFR 600, subparts J and K, and concludes that NMFS 
must: identify and describe DSCS habitat 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 DSCS habitat in regions off 
the mainland United States, including areas known in the North Pacific, 
Pacific, Northeast and Mid-Atlantic, Southeast, and Gulf of Mexico 
fishery management regions. The petition asserts that DSCS habitat 
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 DSCS habitat 
should be identified as HAPCs because it meets the definition of HAPC 
and satisfies 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 the Magnuson-
Stevens Act requires the Secretary and the Councils to develop FMPs

[[Page 39701]]

specifically for the protection of DSCS, if existing FMPs cannot 
provide the means for protecting such habitats.
    The petition specifically requests that NMFS immediately initiate 
rulemaking to protect DSCS habitats in the U.S. Exclusive Economic Zone 
(EEZ) by taking the following measures:
    1. Identify, map, and list all known deep-sea coral and 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 internet at the following NMFS web address: http://www.nmfs.noaa.gov/habitat/habitatconservation/DSC_petition/Oceana/HAPC_Coral_Petition.pdf. Copies of this petition also may be obtained 
by contacting NMFS at the address provided above.

Agency Decision

    After carefully considering the petition and all public comments, 
NMFS has determined that the measures requested by the petition do not 
require specific rulemaking at this time. NMFS has determined that 
certain fishing practices, especially mobile bottom-tending gear 
(defined by Oceana as including dredges, beam and otter trawls, and 
other mobile fishing gear that is dragged along the ocean floor), may 
adversely affect DSCS and the communities that depend upon them and 
that this issue is important to address, but that it does not represent 
an emergency as defined in the Magnuson-Stevens Act 16 U.S.C 
1855(c)(1). Absent Council request, the Secretary has the discretion to 
issue emergency regulations when an ``emergency exists.'' This 
discretion however is limited to only urgent or special circumstances. 
DSCS areas within the existing mobile bottom-tending gear footprint, 
and any areas not impacted or areas threatened by future fishery 
expansion can be addressed through current or future Council rulemaking 
processes. Thus, the DSCS conservation issue outlined by the petition 
is not an immediate and urgent threat to the fishery resource. 
Furthermore, emergency rulemaking by the Secretary substantially limits 
the participation of the public and other interested parties in the 
rulemaking process. In fact, the Magnuson-Stevens Act and the APA make 
it clear that the full scope of public participation and comment must 
generally be permitted. As such, even controversial actions with 
serious economic effects should be conducted through typical notice and 
comment rulemaking. In this instance, the perceived immediate benefits 
from emergency action do not outweigh the value of advance notice, 
public comment and deliberative consideration of the impacts of the 
requested action on the interested parties (62 FR 44421, NMFS Policy 
Guidelines for the Use of Emergency Rules).
    Given the nature of the issues raised by the Oceana and the need 
for additional information, the agency intends to follow the normal 
rulemaking process in the event that rulemaking is warranted thereby 
involving the various stakeholders, providing an open forum for 
scientific review and addressing the potential impacts on the affected 
communities. The previous actions undertaken by NOAA, NMFS and the 
eight Councils have addressed or are in the process of addressing many 
DSCS protection issues that are covered under the Magnuson-Stevens Act. 
However, it is unclear whether DSCS qualifies as EFH for Federally 
managed species in all regions and additional research is needed to 
determine the connection between DSCS and those species. In addition, 
other factors besides mobile bottom-tending fishing gear should be 
evaluated in assessing all impacts on DSCS. DSCS damage may result from 
other types of fishing gear and/or other natural environmental 
stressors. DSCS bycatch information also differs amongst regions, and 
less is known about using bycatch data to indicate the presence of 
important DSCS communities. DSCS research, conservation, and management 
issues vary amongst regions, and are best addressed through a regional 
ecosystem approach to management.
    Instead of emergency rulemaking, NMFS will enhance its pursuit of a 
regional approach working through existing regulatory processes to 
address the conservation and management of these resources. The 
effectiveness of this approach has been demonstrated by recent actions 
of several Councils to protect DSCS resources. In cases where the best 
available science indicates that action should be taken under the 
Magnuson-Stevens Act to conserve and enhance DSCS habitat and reduce 
DSCS bycatch, NMFS will work with the appropriate Council(s) to 
minimize adverse effects from fishing to the extent practicable.
    In addition to the emergency rulemaking aspect of the petition's 
requests, NMFS has considered the petitioner's eight requested measures 
as well as other aspects of the petition and has instead adopted an 
approach to address DSCS issues that will be formalized in a National 
DSCS Conservation and Management Strategy. A description of the 
National strategy, the public comments to the petition, and the 
responses to those comments appear below.

Decision on the Eight Requested Measures

    Measure 1. NOAA will continue (and, within budget constraints, 
expand) research efforts to identify and map the location of areas 
containing high concentrations of structure-forming deep-sea corals 
(also known as cold-water or deep-water corals). Known areas will be 
discussed in the NOAA report, Status of Deep-Coral Communities of the 
United States, which is planned for publication in late 2005 or early 
2006. Current mapping and research efforts are being undertaken through 
partnerships between NOAA and the U.S. Geological Survey (USGS), 
Minerals Management

[[Page 39702]]

Service (MMS), the Councils, and several academic institutions. These 
mapping efforts are ongoing and involve exploration of new areas and 
synthesizing existing data for deep-sea coral maps. Information 
included in these maps, any relevant documents, and the maps 
themselves, may be found on web pages managed by the participating 
agencies and Councils. NOAA deep-sea coral maps will be made available 
to the public. Subsequent mapping activities will expand these efforts 
to include deep-sea sponges, about which less is currently known.
    Measure 2. NOAA will continue to support the Councils by providing 
information on DSCS location and function as potential habitat for 
Federally managed species. NMFS will encourage Councils in each region 
to use all available information to describe and identify such EFH, and 
to identify specific areas as HAPCs where appropriate. In regions where 
DSCS are described and identified as EFH/HAPCs, NMFS will work 
proactively with the appropriate Council(s) to minimize adverse effects 
from fishing to the extent practicable, including consideration of 
additional closures to mobile bottom-tending gear and other bottom-
tending gear as appropriate.
    Measure 3. NMFS will work with each Council, using the best 
available information, to identify areas that have not been subject to 
mobile bottom-tending gear in the past 5 to 10 years, and that may 
therefore include undamaged DSCS communities. NMFS will work with each 
Council to minimize to the extent practicable adverse fishing effects 
on DSCS identified and described as EFH, to minimize DSCS bycatch to 
the extent practicable where bycatch is a concern, and to sustain DSCS 
that are treated as Federally managed species in FMPs. Furthermore, 
NMFS will work with each Council to evaluate and take action, where 
applicable, to prevent or prohibit expansion of mobile bottom-tending 
gear into new areas that may support substantial DSCS, until NMFS has 
determined through necessary discovery, mapping, and research that such 
fishing activities would not be likely to damage major DSCS habitats. 
NMFS believes taking proactive measures to restrict the mobile bottom-
tending gear footprint on a regional basis may be the best way to 
comprehensively protect DSCS EFH and prevent DSCS bycatch while 
minimizing adverse economic impacts on the fishing industry.
    Measure 4. NMFS will work with the Councils through existing 
bycatch monitoring and observer programs to increase monitoring of DSCS 
bycatch. NMFS will recognize DSCS as a specific component of the NMFS 
National Bycatch Strategy and will need to evaluate current 
standardized bycatch reporting methodology for inclusion of DSCS 
bycatch reporting methodologies. NMFS will explore the feasibility of 
using bycatch as a practical indicator of the presence of important 
DSCS communities. NMFS is not convinced that deep-sea coral bycatch 
caps will work to protect deep-sea corals, as fishing would inevitably 
be allowed to impact deep-sea corals until a certain threshold is met. 
Specifying a threshold would be difficult to relate to sustainable 
resource management of deep-sea corals. The bycatch of deep-sea sponges 
has not been well analyzed and the resilience of their communities to 
fishing gear impacts is very poorly understood.
    Measure 5. NMFS will work with the Councils through existing 
bycatch monitoring and observer programs to increase monitoring of DSCS 
bycatch, and encourage Councils to consider whether such information is 
sufficient to identify closure areas to protect EFH/HAPCs and avoid 
bycatch if appropriate.
    Measure 6. NMFS agrees that enhanced monitoring is beneficial to 
the fishing community, the fishery, and the marine environment. NMFS 
will continue to work within budget constraints with other agencies and 
Councils to enforce existing closure areas and any new closure areas 
related to DSCS.
    Measure 7. NMFS Office for Law Enforcement (OLE) is researching and 
testing other viable ways (e.g., joint enforcement agreements with 
state counterparts and satellites) to help enforce fishery compliance 
with all fisheries regulations, including DSCS closure areas. NMFS OLE 
will continue to work with various NOAA and NMFS divisions, the 
Councils, NOAA General Counsel, and the U.S. Attorney's Office to 
determine the appropriate prosecution method and penalties for any 
fishery regulation offense.
    Measure 8. NOAA will continue to survey, research, and protect DSCS 
habitat within budget constraints. NOAA currently makes available to 
the public a detailed description of selected expeditions conducted 
through NOAA's Ocean Exploration Program on DSCS at the following 
website: http://oceanexplorer.noaa.gov/. NOAA also has funded a pilot 
research project to examine the potential for coral restoration in the 
Oculina Research Reserve, one of the shallowest deep-sea coral 
habitats. However, NOAA is not convinced that restoration of most deep-
sea coral and sponge habitats is practical, cost-effective, or 
possible, and has no plans to fund or initiate restoration research 
beyond the existing pilot at this time.

National Deep-Sea Coral and Sponge Conservation and Management Strategy

    NOAA has determined that an agency strategy is needed to 
effectively and efficiently address DSCS habitat issues. The primary 
goal of this strategy would be to improve research, conservation, and 
management of DSCS communities, while balancing long-term uses of the 
marine ecosystem with maintenance of biodiversity.
    NOAA will continue research and mapping of DSCS and work 
proactively with the Councils and through the NOAA National Ocean 
Service (NOS) National Marine Sanctuary Program (NMSP) to take near-
term steps to meet this goal while developing the broader strategy. 
Conservation and management actions should at least address the 
following two objectives: (1) enhance the long-term sustainability of 
economic use in areas already impacted by fishing gear or other 
stressors, and (2) conserve DSCS in habitat areas relatively 
undisturbed by mobile bottom-tending gear until it is determined that 
such fishing gear activity will not damage DSCS in those areas.
    The NOAA strategy will:
    1. Develop measurable objectives to meet the national DSCS 
conservation goal stated above and assess progress toward meeting the 
goal.
    2. Develop regional implementation plans for mapping, monitoring, 
research, and management initiatives.
    3. Encourage education and outreach efforts among fishery managers, 
scientists, fishermen, and other stakeholders.
    4. Use existing partnerships and develop new international 
approaches to protect DSCS communities.
    5. Identify funding needs to implement short-, mid-, and long-term 
deliverables in support of a NOAA National Strategy.
    Managing bycatch and habitat impacts of existing fisheries: The 
first component of the NOAA DSCS conservation and management strategy 
will involve the preparation of a DSCS conservation and management 
report in consultation with the Councils. This report will use the peer 
reviewed scientific report, Status Report of Deep-Coral Communities of 
the United States, as well as other appropriate information sources, 
and include the following information: (1) definitions of DSCS to

[[Page 39703]]

encourage consistent use of terminology for management purposes; (2) 
identification of known DSCS areas/communities of concern within the 
U.S. EEZ; (3) maps of known DSCS areas, fishing effort, and DSCS 
bycatch; and (4) characterization of bycatch of DSCS and inclusion of 
DSCS as a specific component of NMFS National Bycatch Strategy. NOAA 
will invite public comment on the report. Based on information from 
this conservation and management report and other appropriate 
information sources, NMFS will work with each Council to evaluate and 
take appropriate protective action, if new fishery management actions 
appear to be warranted under the Magnuson-Stevens Act to address 
fishing impacts. NOAA will also incorporate information regarding the 
presence of DSCS areas into its management of the National Marine 
Sanctuaries. The NMSP will, as appropriate, direct necessary management 
actions to the increased protection of these areas, including where 
warranted, issuing additional regulations to enhance that protection.
    Managing potential expansion of fisheries using mobile bottom-
tending gear beyond current areas: The second component of the NOAA 
DSCS conservation and management strategy will be to identify areas in 
each Council region that have not been subject to mobile bottom-tending 
gear in the past 5 to 10 years and that may be reasonably expected to 
contain DSCS resources that are vulnerable to impacts by this fishing 
gear. These areas will be identified in the DSCS conservation and 
management report if sufficient information is available. Based on this 
information, NMFS will work with each Council to evaluate and take 
action, where appropriate, to prevent or prohibit expansion of mobile 
bottom-tending gear into new areas that may support substantial DSCS, 
until NOAA has determined through necessary discovery, mapping, and 
research that such fishing activities would not be likely to damage 
DSCS habitats in these areas.
    Research, monitoring, and additional management activities: The 
third component of the NOAA DSCS conservation and management strategy 
will be to identify DSCS research and management gaps and for NOAA and 
the Councils to develop regional implementation plans for mapping, 
monitoring, research, and additional management actions, where 
applicable. Plans will also include recommendations for expanding 
education and outreach activities. These plans will be integrated as 
appropriate with current efforts to map, monitor, conduct research, and 
conserve other NOAA trust living marine resources and their habitats. 
These plans should carry out the objectives and strategies identified 
in the above report for addressing the NOAA DSCS conservation and 
management goal. The timing of the actual implementation of these plans 
will vary, depending on rulemaking schedules as well as resources.
    Additional components of the strategy may address needs and 
opportunities to expand international conservation partnerships and 
identify funding needs to implement short-, mid-, and long-term 
deliverables in support of the strategy.

Accomplishments and Ongoing Activities

    Activities currently undertaken by NOS NMSP, NMFS regional offices 
and science centers, NOAA Oceanic and Atmospheric Research (OAR) Office 
of Ocean Exploration (OE) and National Undersea Research Program 
(NURP), and the Councils have addressed or are in the process of 
addressing many of the petition's requested measures outlined above. 
These activities promote deep-sea coral conservation, scientific 
research, technical reports, establishment of marine protect areas, 
sanctuaries, closed areas, HAPC designations, and prohibitions on gear 
types used near DSCS.

1. NOAA Activities

Scientific Research
    NOAA continues to conduct DSCS research nationally, spanning all 
coastal regions of the United States (Southeast, Northeast, Southwest, 
Northwest, Alaska, and Pacific Islands). NOAA recently completed an 
internal document, Profiles of NOAA Deep-Sea Coral Activities, that 
contains an inventory of recent and upcoming DSCS projects from each 
program. The NOAA offices and partners involved in the DSCS research 
effort to date include NMSP, NURP, OE, and the NMFS Science Centers. 
Most of these programs have completed projects/cruises that include 
mapping, monitoring and ecological studies of DSCS during FY 2003-2004 
and have detailed long-term research plans for the future. These 
programs have also collaborated with other Federal agencies, state and 
local territories, private organizations, contractors, institutions, 
universities, and foreign government agencies to improve coordination 
of DSCS research efforts. The NOAA profiles document on deep-sea coral 
research is an evolving document with periodic updates and will be made 
public at a later date.
International Planning
    Scientifically, the United States supports and participates in 
international efforts to assess and, where appropriate, help conserve 
vulnerable cold-water ecosystems and habitat. NOAA has worked with 
Canada, Norway, Sweden, Germany, Belgium, the United Kingdom, and 
Ireland to convene scientific workshops and conduct DSCS research. 
These relationships have identified critical research and management 
needs for DSCS in the Atlantic, led to development of objectives for 
conducting at-sea investigations, and fostered agreement on objectives 
for processing and sharing the data collected to meet shared needs. In 
addition, the workshops provided a platform to begin development of an 
International, Trans-Atlantic Expedition to explore and research DSCS 
communities of the Gulf Stream, from the Gulf of Mexico to Northern 
Europe. OAR OE and NURP currently are conducting several cruises off 
the U.S. East Coast that involve European partners, primarily in terms 
of acquiring and sharing data and information to help meet critical 
deep-sea coral community research objectives outlined during the 
international workshop in Galway. OE is currently funding several 
expeditions in international waters that include international partners 
in the Pacific and Atlantic Oceans. NOAA is also a co-sponsor of the 
upcoming Third International Symposium on Deep-Sea Corals. NOAA will 
continue to support these research efforts within budget constraints.
NMFS Observer Program
    The NMFS Observer Program currently records most DSCS bycatch 
landed by U.S. fishing vessels having observer coverage in the EEZ. The 
degree of DSCS bycatch species identification varies by region, but the 
weight of DSCS bycatch in sampled tows is recorded in every region 
where DSCS are caught. In the Alaska region, observers separate coral 
species in the genus Primnoa from the rest of the coral bycatch (a 
category in the observer database that includes soft and hard corals as 
well as bryozoans, which are not corals). Primnoa species and the 
remaining coral bycatch are weighed separately and recorded. Deep-sea 
sponge bycatch is categorized as invertebrate or sponge and weighed. In 
the Northwest regions, observers identify deep-sea coral species to the

[[Page 39704]]

lowest practical taxonomic level, calculate the total weight of deep-
sea coral bycatch, and collect specimens for later identification in 
the laboratory. Deep-sea sponge bycatch is categorized and weighed. 
DSCS bycatch data is not collected in the U.S. Pacific Islands region 
because trawls, dredges, and bottom-set longlines and gillnets are not 
allowed. The Southwest Region does not collect DSCS bycatch because the 
pelagic fisheries with observer coverage do not use fishing methods 
that impact bottom habitat. In most observer programs in the Southeast 
region and all observer programs in the Northeast region, deep-sea 
coral bycatch is weighed and recorded. Deep-sea sponge bycatch is 
categorized and the weight is estimated or an actual amount in the 
Northeast. Deep-sea sponge bycatch in the Southeast is listed as 
invertebrate when monitoring bycatch reduction devices, and listed as 
sponge and weighed during bycatch characterization trips.
    In summary, the NMFS Observer Program is collecting information on 
both the presence and weight of most deep-sea coral and some deep-sea 
sponge bycatch caught by U.S. fishing vessels having observer coverage, 
but there are regional differences in the level of observer coverage 
and the level of DSCS species identification conducted by observers. 
NOAA is evaluating methods to increase the efficiency and effectiveness 
of DSCS bycatch reporting methodologies.

2. Regional Fishery Management Council Activities

New England Council
    On April 28, 2005, (70 FR 21927) NMFS approved the New England and 
Mid-Atlantic Council actions to close Lydonia and Oceanographer Canyon 
areas off Georges Bank to monkfish days-at-sea vessels. This action was 
taken to minimize to the extent practicable adverse effects on EFH from 
monkfish fishing. These protective canyon closures prohibit monkfish 
bottom trawl and gillnet gear from impacting hard-bottom, deep-water 
habitat found in the canyons, which is important to many fish species 
and also home to vulnerable deep-sea corals. The actions, which were 
effective immediately, also limit monkfish roller trawl gear to 6 
inches in the Southern Fishery Management Area to ensure that fishing 
vessels avoid complex habitat, particularly in other offshore canyons 
that contain important deep-water habitats.
    The New England Council published a Notice of Intent on February 
24, 2004, (69 FR 8367) to prepare a programmatic environmental impact 
statement (EIS) and Omnibus EFH Amendment that will apply to all 
Council-managed FMPs. The amendment will identify and implement 
mechanisms to protect, conserve, and enhance the EFH and define metrics 
for achieving the requirements to minimize adverse impacts to the 
extent practicable. The Council is reviewing proposals for HAPC and 
Dedicated Habitat Research Area designations (70 FR 15841). This 
amendment will holistically address the protection of vulnerable EFH 
across all New England Council FMPs. The New England Council may 
evaluate whether protective measures in addition to Monkfish FMP deep-
sea coral protection measures are necessary as part of this 
comprehensive approach.
Mid-Atlantic Council
    The Mid-Atlantic Council shares management responsibility for the 
Monkfish FMP with the New England Council. The gear modification 
mentioned above ensures that Mid-Atlantic fishing vessels avoid complex 
habitat, such as offshore canyons that may contain DSCS. These deep 
areas of the continental shelf and submarine canyons contain DSCS. In 
addition, the Mid-Atlantic Council has just begun the development of 
Tilefish Amendment 2. As part of this process, the Council will review 
any new information related to tilefish EFH and HAPC as well as habitat 
protection measures.
South Atlantic Council
    The South Atlantic Council established a 315-km\2\ area, the 
Oculina Habitat of Area of Particular Concern (HAPC), in 1984, and 
prohibited trawling, bottom longlines, dredges, and fish traps. Further 
management measures prohibiting anchoring or use of grapples in the 
Oculina HAPC were approved later. A subset of the Oculina HAPC was 
established as a Research Reserve in 1994, known as the Oculina 
Experimental Closed Area (OECA). The OECA was one of the first deep-sea 
coral banks in the world to receive protection. All restrictions within 
the larger HAPC apply within the OECA. The area was closed in order to 
evaluate the effectiveness of the reserve for the management and 
conservation of reef fish, namely the recovery of their populations and 
grouper spawning aggregations. The Council designated the Oculina HAPC 
under the Magnuson-Stevens Act EFH provisions in 1999. In 2000 the 
South Atlantic Council expanded the Oculina HAPC to 1029 km\2\. In 
2003, vessel monitoring systems (VMS) were required for all rock shrimp 
fishing vessels in the South Atlantic region, to enhance surveillance 
and enforcement of the Oculina HAPC (68 FR 2188).
    The South Atlantic Council is developing a regional coral and 
benthic habitat geographic information system (GIS) of shallow and 
deep-water areas. This information will support a proposed South 
Atlantic Council fisheries ecosystem plan (FEP). The South Atlantic FEP 
may represent a future vehicle for achieving additional protections for 
DSCS habitat; however, FEP development will take several years. The 
Council recently proposed 10 deep-water coral HAPC areas, some of which 
contain deep-water sponges, to be considered in the development of its 
FEP (69 FR 60363). Action to establish the HAPC designation will be 
taken through the Comprehensive Fishery Ecosystem Plan Amendment.
Gulf of Mexico Council
    The Gulf Council published a record of decision (ROD) on July 29, 
2004, (69 FR 45307) to describe and identify coral as EFH for Gulf 
fisheries; to identify several HAPCs that contain coral; and to 
identify measures to minimize, to the extent practicable, the adverse 
effects of fishing on coral EFH. However, the coral areas identified in 
the EIS mentioned by the ROD do not distinguish DSCS from other coral 
and sponge habitats.
Caribbean Council
    The Caribbean Council published a ROD on May 25, 2004, (69 FR 
29693) to describe and identify coral as EFH for Caribbean fisheries; 
to identify HAPCs that contain coral; and to identify measures to 
minimize, to the extent practicable, the adverse effects of fishing on 
coral EFH. However, the coral areas identified in the EIS mentioned by 
the ROD do not distinguish deep-sea coral and sponge from other coral 
and sponge habitats.
Pacific Council
    Significant research is underway to improve information on the 
location and abundance of DSCS in the Pacific EEZ and the function of 
coral in the ecosystem. Several actions being taken or considered by 
the Council and NOAA may have the benefit of protecting DSCS; however, 
the extent of the protection is unknown.
    The Council has described and identified EFH as biological 
communities living on substrates along the rocky shelf, non-rocky 
shelf, and canyon areas between certain depths. Although DSCS are not 
directly identified as EFH, they can be inferred

[[Page 39705]]

to be a representative biological community.
    Cow Cod Conservation Areas were implemented in January 2000 off 
Southern California. Commercial fishing is prohibited within these 
areas. Recreational fishing was prohibited shoreward of 20 fathoms. 
Also beginning in 2000, the Pacific Council prohibited large footrope 
trawls in most of the EEZ. The effect of the prohibition is that many 
complex, rocky habitats expected to include DSCS are inaccessible to 
trawlers. The Council also created the Rockfish Conservation Areas in 
2003; commercial fishing effort has been significantly curtailed within 
these areas, which comprise most of the continental shelf.
    The Channel Island Marine Reserves were implemented on April 9, 
2003. The Pacific Council is discussing expansion of the reserve into 
Federal waters. In fall 2003, the Monterey Bay, Gulf of the Farallones, 
and Cordell Bank National Marine Sanctuaries began development of a 
revised (draft) management plan that may involve marine reserves in 
state and/or Federal waters. These marine reserves contain DSCS.
    The Pacific Council published a notice of availability for the 
groundfish EFH DEIS on February 11, 2005, (70 FR 7257) to identify and 
describe EFH, designate HAPCs, and minimize adverse effects of fishing 
on EFH to the extent practicable. The DEIS contains several 
alternatives that would identify and describe HAPC areas containing 
ecologically important habitat such as DSCS, and suggests several 
alternatives that would prevent fishing in areas containing DSCS. Based 
on the DEIS information, the Council voted in June 2005 to choose 
preferred alternatives that would protect about 200,000 square nautical 
miles of marine habitat on the West Coast between the Canadian and 
Mexican borders, amounting to over 75% of the ocean within United 
States jurisdiction off the coast of Washington, Oregon, and 
California. The Pacific Groundfish EFH Final EIS (FEIS) will be 
published by December 9, 2005, and the record of decision on this 
action will be published by February 28, 2006.
Western Pacific Council
    The Western Pacific Council developed a Precious Corals FMP in 
September 1983. The FMP coral beds include deep-sea coral species. The 
FMP and amendments adopted through 2002 prohibit nonselective gear in 
the entire Western Pacific region; establish quotas and size limits for 
pink, black, gold, and bamboo coral; and list other harvest 
restrictions. No other Council FMPs allow the use of mobile bottom-
tending gear within the EEZ around the Hawaiian Islands or other U.S. 
Pacific islands.
North Pacific Council
    The North Pacific Council prohibited trawling in southeast Alaska 
within a 52,600-square nautical mile area in 1998 as part of a license-
limitation program under Gulf of Alaska Groundfish Amendment 41. This 
measure originally was proposed in 1991 under the rationale to (1) 
protect deep-sea coral from long-term damage by trawl gear due to 
conservation concerns for rockfish, and (2) alleviate social disruption 
to the local fishing industry. Amendment 59 established the 3.1-square 
nautical mile Sitka Pinnacles Marine Reserve in the Gulf of Alaska in 
2000 and prohibited all bottom-fish gear types (except pelagic troll 
gear for salmon) in the reserve. These pinnacles contain high relief 
habitat with aggregates of lingcod and several rockfish species. The 
purpose of the restriction was to protect lingcod concentrations from 
overfishing. Numerous hydrocorals (Stylasterids) and the occasional 
Primnoa colony of deep-sea corals inhabit the pinnacles. The Council 
also worked in 2002 with the State of Alaska to prohibit the retention 
of corals and sponges within the State's 3-mile limit.
    The North Pacific Council published a notice of availability for 
the EFH FEIS on May 6, 2005, (70 FR 24038). The FEIS contains an 
analysis of the effects of fishing on EFH as a whole and does not 
analyze individual habitat types (such as DSCS) separately. The 
analysis indicates that fishing has long-term effects on certain 
habitat features, and acknowledges there is considerable scientific 
uncertainty about the consequences of such habitat changes for the 
sustained productivity of managed species. Nevertheless, the analysis 
concludes that the effects on EFH are minimal, because there is no 
indication that continuing current fishing activities would alter the 
capacity of EFH to support healthy populations of managed species over 
the long term. Due to the uncertainty behind the analysis of the 
impacts on EFH, the North Pacific Council selected alternative 5(c) to 
minimize adverse effects of fishing on EFH and within HAPCs. The 
proposed actions include a 279,114-square nautical mile closure in the 
Aleutian Islands to protect relatively undisturbed habitats; six DSCS 
garden closures within the current bottom-trawl foot print measuring 
110-square nautical miles; 15 seamount closures measuring 5,329-square 
nautical miles; 10 Gulf of Alaska slope bottom trawl closures to 
protect hard-bottom habitats over a 2,086-square nautical mile area; 
four Gulf of Alaska closures to all bottom-tending fishing gear to 
protect DSCS totaling 13.5-square nautical miles; and a closure to 
mobile bottom-tending fishing gear on Bowers Ridge totaling 5,286-
square nautical miles. NMFS will complete its record of decision for 
the EFH EIS by August 13, 2005.

3. National Marine Sanctuary Program Activities

    The NOS NMSP has recognized the importance of protecting deep-sea 
corals in sanctuaries, and is moving toward establishing protection for 
them under the management authority of the National Marine Sanctuaries 
Act (NMSA). System-wide, little information is available on the extent 
and location of significant aggregations of these deep-sea coral 
communities. Contingent on available funds, the NMSP is incorporating 
the need to inventory and characterize deep-sea coral assemblages as 
one of the drivers for prioritizing seabed mapping needs in the 
sanctuaries. As management plans are reviewed and updated for each 
site, the issue of deep-sea corals is being integrated. One example of 
this is the review of Davidson Seamount for possible inclusion in the 
Monterey Bay NMS, where deep-sea corals are known to occur. Inclusion 
of the seamount into the sanctuary would provide legal authority, under 
the NMSA, to protect coral aggregations in this area. Survey work has 
been conducted for the area of the seamount and coral resources have 
been identified.
    Deep-sea corals are known to exist in a number of other sanctuaries 
in the NMS System, and NOAA is actively conducting survey and inventory 
work in these sanctuaries. At the Olympic Coast Sanctuary, several 
research cruises have been directed at deep-sea coral inventory 
activities, and last year a species of Lophelia generally associated 
with the Atlantic was discovered there. Surveys are also being 
conducted in deep-water areas of the Gulf of Mexico by the Flower 
Garden Banks staff, and similar work is being conducted off the Florida 
Keys. Contingent on available funding, the NMSP intends to initiate 
deep-sea coral surveys at all the national marine sanctuaries, and 
where appropriate, seek to protect these fragile sanctuary resources 
through regulation, education, research, monitoring, and enforcement.

[[Page 39706]]

4. Endangered Species Act Activities

    No DSCS species are listed under the Endangered Species Act (ESA). 
Therefore, the direct protections and prohibitions for ESA-listed 
species do not apply to DSCS. However, through the ESA consultation 
process, the ESA may provide a degree of protection to non-listed 
species that co-occur with listed species.
    For example, Hawaiian monk seals have been observed diving on deep-
sea coral in the Northwestern Hawaiian Islands. Because the Hawaiian 
monk seal is listed as an endangered species under the ESA, any Federal 
action that may affect Hawaiian monk seals would trigger an ESA 
consultation to ensure the action would not jeopardize the species. 
Through the consultation process, a proposed action may be modified to 
reduce the threat to listed species. If the proposed action would 
adversely affect both monk seals and deep-sea coral beds, modifications 
to the action may protect both the seals and corals.
    In 1998 NMFS designated critical habitat for the Hawaiian monk seal 
in 10 areas of the Northwestern Hawaiian Islands, including some areas 
near known deep-sea coral beds. However, it is unlikely that monk seal 
critical habitat provides significant protection for these beds. By 
definition critical habitat is limited to shallow waters less than 20 
fathoms (120 feet). The shallowest of deep-sea coral species in the 
Northwestern Hawaiian Islands is the black coral, with a depth range 
that begins at 40 m (130 feet). Therefore, critical habitat for the 
Hawaiian monk seal does not overlap with the distribution of deep-sea 
corals.

Public Comments on the Need for the Petitioned Regulations, Its 
Objectives, and Alternative Approaches

    More than 32,000 form-letter comments and two lists of signatures 
were received in favor of the eight measures proposed in the rulemaking 
petition. These commenters urged NMFS to immediately implement the 
measures because DSCS habitats are too vulnerable and valuable for 
ocean health, and potentially for human pharmaceuticals, to allow 
bottom-trawling fishing vessels to destroy them. They felt that the 
proposed rulemaking would provide the most reasonable protection from 
damage to living DSCS while having the least harmful impact on the 
economic well-being of existing fisheries and fishing communities. Many 
commenters expressed concern about the effects of bottom trawling on 
DSCS communities in relation to the entire marine ecosystem, which 
could affect the sustainability and recovery of the nation's fisheries.
    Of the remaining 16 letters, 11 commenters urged that the petition 
be rejected or denied, one provided mixed comments, and four commenters 
supported the petition to protect DSCS communities from bottom 
trawling. Many of the commenters opposed to the petition expressed the 
belief that the effects of bottom trawling on DSCS communities are 
minimal, and that Oceana's proposed measures are already being 
addressed through Council FMPs, HAPC designations, and other regulatory 
efforts. Those opposed expressed the opinion that there is no 
``emergency,'' and Oceana's actions were an attempt to circumvent the 
public process mandated by the Magnuson-Stevens Act and National 
Environmental Policy Act (NEPA) that allows for public participation, 
involvement of stakeholders, and an open forum for scientific review. 
They stated that this public process is already underway with regard to 
the preparation of EISs for EFH that satisfies a 2000 court order in 
AOC v. Daley, in which Oceana was a plaintiff. Furthermore, many who 
were opposed to the petition stated that it is uncertain whether DSCS 
communities serve as EFH for Federally managed species, and additional 
research must be done to determine the degree of connectivity between 
DSCS and managed species.
    One commenter provided mixed comments in response to the petition, 
and agreed that DSCS are valuable habitats that promote biodiversity, 
record climate change, and are potential sources of future medicines. 
However, the commenter pointed out that bottom-trawling is not the only 
damaging factor in deep-sea coral environments and that an evaluation 
on natural and anthropogenic stressors must be undertaken before 
concentrating on trawling as the only major issue.
    Those in favor of the petition urged NMFS to protect DSCS 
communities from bottom trawling because they provide fish habitat 
essential for breeding, feeding, resting, and growth until maturity 
(regardless of status as a Federally-managed species or a commercial 
species). Many stated that even though DSCS communities can be 
protected under the EFH/HAPC, bycatch, and the discretionary provisions 
of Magnuson-Stevens Act, the Coral Reef Protection Executive Order 
13089, and NEPA, few Councils have acted to protect these habitats from 
bottom trawling. These commenters stated in general terms that economic 
gains from protecting these resources far outweigh allowing bottom 
trawling to continue, and that immediate protection should be bestowed 
upon DSCS habitat.
    Responses to the specific points of the 16 letters are provided 
below, organized under the headings corresponding to the proposed 
measures outlined in the petition.

Emergency Rulemaking Comments

    Comment 1: A group of commenters indicated that the petition is a 
statutorily mandated part of the agency decision-making process that 
should result in a rulemaking carried out consistent with the 
requirements of Magnuson-Stevens Act EFH, bycatch, and discretionary 
provisions, the Coral Reef Protection Executive Order 13089, NEPA, APA, 
and any other controlling law.
    Response: Rulemaking petitions are part of the agency decision-
making process under 5 USC 553(e). Agencies have discretion to 
determine whether rulemaking is necessary, as part of the petition 
process. If the agency finds that rulemaking is warranted, any measures 
implemented must be consistent with applicable laws.
    Comment 2: Many commenters stated that DOC has responsibility and 
opportunity to take action immediately to save DSCS.
    Response: NMFS, with delegated authority from DOC, has determined 
that the fishing threat to DSCS is an important issue to address but 
does not represent an emergency as defined in 16 USC 1855(c)(1). DSCS 
areas within the existing mobile bottom-tending gear footprint, and any 
areas not impacted or areas threatened by future fishery expansion can 
be addressed through current or future Council rulemaking processes.
    Comment 3: Another commenter disagreed with Oceana's assertion that 
the Secretary does not have any discretion or choice but to implement 
its proposal. NMFS has extensive discretion in making regulatory 
decisions, and the courts have only overturned decisions if they are 
ruled arbitrary and capricious.
    Response: NMFS agrees that agency does have discretion in making 
regulatory decisions, and that the courts have only overturned 
decisions if they are ruled arbitrary and capricious or fail to follow 
procedural requirements under the Regulatory Flexibility Act or 
Regulatory Impact Review or other laws as applicable.
    Comment 4: One commenter stated that DSCS are not adequately 
protected under existing FMPs or pending rulemakings, and current 
efforts proceed too slowly to offer immediate

[[Page 39707]]

protection. This petition would provide needed consistency, research 
priorities, and protection to DSCS.
    Response: DSCS themselves may not be adequately protected under 
existing FMPs. However, potential future rulemakings are appropriate 
for addressing the threat to DSCS under the Magnuson-Stevens Act, which 
is not immediate.
    Comment 5: One commenter indicated that the North Pacific Draft EIS 
failed to adequately address impacts on coral and sponge habitat and 
that the current preferred alternative will result in continued 
destruction of these habitats. The commenter was also concerned with 
the Pacific EFH EIS process that has not incorporated all available 
data into all management alternatives to minimize the adverse effects 
of fishing on EFH.
    Response: The North Pacific EFH DEIS used the best scientific 
information available to evaluate potential adverse effects on DSCS. 
NMFS revised and expanded upon that analysis for the EFH FEIS. In 
addition, the North Pacific Council selected a final preferred 
alternative 5(c) that includes extensive precautionary management 
measures to minimize potential adverse effects of fishing on EFH, 
including large areas that support DSCS. The Pacific Groundfish EFH EIS 
process has thoroughly examined most facets of information regarding 
the identification and description of EFH, the designation of HAPCs, 
and the minimization of adverse fishing impacts. The Pacific Groundfish 
EFH EIS will contain future environmental analysis of this information 
related to a reasonable range of management alternatives.
    Comment 6: One commenter felt that DSCS closures need to be 
integrated under one common decision-maker, because implementation of 
requests without regional consideration of FMPs can lead to harm of 
managed stocks of fish by displacement and concentration of fishing 
effort.
    Response: DSCS research, conservation, and management issues vary 
amongst regions, and are best addressed at the regional level. NMFS 
believes that DSCS management measures need to be examined in the 
context of existing FMP management measures under each Council's 
jurisdiction to avoid harm to managed fish stocks, protected species, 
and other complex habitat by displacement and concentration of fishing 
effort.
    Comment 7: Several commenters felt that DSCS protection best occurs 
through the existing management framework (Council-led EFH NEPA 
process), which would address potential social and economic impacts to 
communities, consider a range of alternatives for EFH designations, 
allow public participation, involve stakeholders, and provide an open 
forum for scientific review.
    Response: NMFS agrees that DSCS protection best occurs through 
existing Council Processes to manage through FMPS, consistent with the 
Magnuson-Stevens Act National Standards. The Magnuson-Stevens Act, 
NEPA, and other procedures provide for analysis of actions and public 
participation. NMFS notes, however, that public comment on this 
rulemaking petition allowed for public participation in the rulemaking 
petition decision process, and recognizes the value of emergency 
rulemaking under appropriate circumstances.
    Comment 8: One commenter felt that the petition uses inadequate 
information, assumptions, and a loose interpretation of Magnuson-
Stevens Act and regulations to support demand for immediate action, 
which limits such action to extremely urgent and special circumstances 
where substantial harm will be caused during the time required to 
conduct normal rulemaking. The petition did not address whether and how 
the Magnuson-Stevens Act national standards are met, which are clear 
requirements for emergency action.
    Response: The DSCS rulemaking petition makes a case for the 
protection of DSCS as EFH and HAPCs, and through bycatch and 
discretional provisions of Magnuson-Stevens Act. NMFS believes in 
taking a regional approach to evaluate and take action where 
appropriate to protect DSCS and may pursue future rulemakings to 
protect DSCS in specific locations based on analyses for specific 
fisheries. However, NMFS does not find the information in the petition 
compelling for nationwide emergency action. In addition, NMFS 
acknowledges that any action taken under Magnuson-Stevens Act 
provisions to protect DSCS would need to address National Standards, 
and other applicable law.
    Comment 9: A group of commenters indicated that marine scientists 
and their research assert DSCS support entire ecosystems of fish and 
invertebrates, and high biodiversity.
    Response: NMFS recognizes the importance of DSCS as living marine 
resources, and in many cases forming complex structured habitat for 
fish and invertebrates. NMFS also recognizes the current research 
indicating the contribution DSCS communities make to high biodiversity 
in the deep ocean. Currently, Magnuson-Stevens Act requires a link 
between DSCS and a Federally managed fish species to provide protection 
to DSCS as EFH. At this time, not all regions have scientific evidence 
providing a link between managed fish species and DSCS to warrant DSCS 
description as EFH and HAPCs.
    Comment 10: A group of commenters felt there is broad citizen 
support in place to protect DSCS, as evidenced by the political 
interest of Senators McCain, Hollings, Biden, and Leahy, and the urging 
of former Secretary of State Powell to seek a UN resolution prohibiting 
bottom trawling on the high seas until measures to protect deep-sea 
ecosystems are in place.
    Response: NMFS agrees there is citizen interest in DSCS protection, 
as indicated by the 32,000-plus comments received in favor of the 
petition. NMFS also recognizes increased interest from the Councils and 
several fishery groups regarding DSCS and habitat protection through 
the Council process. NMFS believes that DSCS should be addressed at a 
regional level and will work with the Councils to implement measures to 
protect these habitats, as appropriate.
    Comment 11: One commenter stated that overfished species may not be 
able to recover without their preferred habitats if those habitats are 
DSCS. Another commenter felt that certain DSCS species are highly 
vulnerable to physical impacts, including fishing gear, due to long-
lived and slow-growing life history.
    Response: The Magnuson-Stevens Act 16 U.S.C. 1801(9) states that, 
``One of the greatest long-term threats to the viability of commercial 
and recreational fisheries is the continuing loss of marine, estuarine, 
and other aquatic habitats.'' DSCS that are EFH for managed species can 
be important for overfished species recovery. DSCS vulnerability to 
fishing impacts is evident through research on fishing impacts on deep-
sea coral in the Oculina HAPC in the Southeast Region and through DSCS 
bycatch records in the Pacific and North Pacific. Research has aged 
deep-sea coral reefs up to 8,000 years, and the corals that form them 
grow at a mere 4 to 25 millimeters per year (whereas shallow tropical 
corals can grow up to 150-millimeters per year). Therefore, data 
supports the assertion that DSCS are long-lived and slow-growing.
    Comment 12: Several commenters stated that long-term damage to the 
ecosystem for short-term gain puts unknown stress on an ecosystem that 
could provide continued income and livelihood for fishing communities 
if exploited sustainably. Protection of

[[Page 39708]]

highly vulnerable habitats should be at the forefront of management 
until better understood, or legislation to fund research will be for 
naught if DSCS are destroyed before we know where they are.
    Response: NMFS and Councils seek to manage fisheries sustainably 
and to minimize adverse impacts on EFH that are at least more than 
minimal and not temporary. NMFS encourages Councils to take protective 
action where DSCS are identified as EFH due to the uncertainty 
regarding the degree of impacts to DSCS and their effects on managed 
species and the marine ecosystem. NMFS also encourages Councils to take 
actions that address impacts to the marine ecosystem that minimize 
bycatch of DSCS, where bycatch is a concern, or through the development 
of DSCS FMPs, where applicable, even when information does not warrant 
identifying DSCS as EFH.
    Comment 13: One commenter pointed out that allowing bottom trawling 
to expand into new areas without identifying DSCS is a missed chance to 
protect DSCS and the species that depend on them. The petition urges 
action to freeze the current trawling footprint to prevent trawling 
from destroying areas that have not yet been explored and protects a 
few known coral and sponge areas which are either already closed to 
bottom trawling or into which large-scale trawling has not yet 
expanded.
    Response: NMFS agrees that allowing bottom trawling to expand into 
new areas without identifying DSCS could result in adverse effects to 
DSCS. Consistent with NMFS regional approach, some Councils have taken 
action to prevent trawling activity to extend into new areas. For 
example, NMFS acknowledges the North Pacific Council's action to 
restrict the bottom-trawl fishery footprint in the Aleutian Islands and 
the Pacific Council's efforts to examine the possibility of similar 
action.
    Comment 14: One commenter stated that although impacts of low-
intensity fishing can overwhelm DSCS species recovery, it is doubtful 
that such declines have significant effects on many managed species. 
Any established trawling ground will already have been degraded and 
will not recover within meaningful human time scales.
    Response: NMFS believes that more research is needed on DSCS links 
to managed species populations. Established trawling grounds are most 
likely degraded in many areas; however, certain areas contain DSCS that 
could be important for protection.
    Comment 15: One commenter stated that fish species only become 
fisheries resources if they are abundant, and fish species cannot have 
this abundance by being dependent on rare habitat types. Therefore, 
DSCS rarity in most regions makes conservation a minor issue for 
resource production and for fisheries.
    Response: DSCS are not necessarily rare in each region or for each 
managed species. DSCS conservation is still a concern for DSCS 
themselves, and for unknown importance to resource and fish production.
    Comment 16: Three commenters felt other gears and stressors 
(besides bottom trawling) should be considered in minimizing fishing 
impacts to DSCS. Only future expansions of intensive bottom-fishing 
gear in areas of ``high concentrations'' of DSCS habitat pose an 
immediate and urgent threat, but these expansions do not justify 
immediate national actions.
    Response: NMFS agrees that other gears and stressors should be 
examined on a region-by-region basis to address all impacts to DSCS. 
The term ``high concentration'' of DSCS is difficult to define due to 
lack of research on the extent of DSCS distribution and importance for 
managed species production. NMFS encourages Councils to take proactive 
actions to protect DSCS EFH until ``high concentrations'' of DSCS can 
be identified.
    Comment 17: One commenter stated that the petition will drain away 
valuable NMFS staff time and resources, necessary to meet court-ordered 
timelines for addressing DSCS issues.
    Response: The petition, public comment period, and analysis of 
petition measures will not drain NMFS staff time and resources. NMFS 
supports a regional approach to address DSCS conservation and 
management issues. NMFS staff time and resources will be balanced in 
addressing various mandated needs in addition to analysis of DSCS 
issues.
    Comment 18: A commenter felt that the petition does not consider 
the practicability of proposed regulations or economic impacts on 
fishermen, processors, and communities. Another commenter indicated 
that the requested petition actions are not the only or best actions to 
achieve EFH/HAPC goals.
    Response: Practicability is mentioned in the petition, but not to 
the degree of a formal rulemaking process. The requested petition 
actions would not achieve all EFH/HAPC goals, but they would achieve 
certain goals related to DSCS protection. NMFS recognizes the 
importance of practicability in minimizing adverse fishing effects on 
DSCS through the regional Council process.
    Comment 19: One commenter stated that practicability is not defined 
by all that is possible, but rather allowing for the application of 
agency expertise and discretion in determining how best to manage 
fishery resources. To be practicable, EFH protection measures must have 
proof of benefit to fishery production that is greater than the costs 
of the measure.
    Response: NMFS disagrees that to be practicable EFH protection 
measures must have proof of benefit to fishery production that is 
greater than the costs of the measure. Regulatory guidelines on 
determining practicability state that Councils should consider the 
nature and extent of the adverse effect on EFH and the long and short-
term costs and benefits of potential management measures to EFH, 
associated fisheries, and the nation, consistent with national standard 
7. In determining whether management measures are practicable, Councils 
are not required to perform a formal cost-benefit analysis (50 CFR 
600.815(a)(2)(iii)).
    Comment 20: A commenter indicated that the North Pacific EFH EIS 
alternatives consider many of the petition's measures: mapping, bottom 
trawl prohibition, bycatch limits, research and monitoring, and 
observer coverage. They also indicated that the North Pacific HAPC 
Environmental Assessment (EA) will consider prohibiting bottom trawling 
in certain areas.
    Response: NMFS agrees this is a good example of pending regulatory 
action that will address many of the petition's requested measures 
within the context of all fishery management issues in a region. This 
approach may not be appropriate in other regions. Accordingly, NMFS 
will work with the Councils to evaluate and take action, where 
applicable, to address DSCS protection issues related to specific 
fisheries.
    Comment 21: A commenter felt petition measures would prevent DSCS 
destruction without hurting fishers, and allow fishers to continue to 
receive income from areas already damaged or destroyed. They also felt 
that overall economic gain from DSCS protection far outweighs the costs 
of DSCS destruction.
    Response: A formal cost-benefit analysis has not been conducted 
regarding the benefits of DSCS conservation for all NMFS regions. 
Measures that restrict fishing activities may have socioeconomic 
impacts to fishing communities, and NMFS would analyze such potential 
effects for any

[[Page 39709]]

proposed measures under Executive Order 12866, the Regulatory 
Flexibility Act, and other applicable law.

Comments on Specific Measures

Measure 1
    Identify, map, and list all known deep-sea coral and sponge areas 
containing high concentrations of deep-sea coral and sponge habitat.
    Comment 22: One commenter felt that the petition did not adequately 
define DSCS species requiring protection, and therefore a clearer 
definition of DSCS is needed before the term is introduced to the 
management regime.
    Response: NMFS agrees that the petitioner did not fully define all 
the DSCS species requiring protection. However, different DSCS species 
are components of known habitat types found in all NMFS regions, and 
management measures could be developed for DSCS communities rather than 
specific DSCS species.
    Comment 23: Many commenters cited examples of efforts currently 
underway to identify and map DSCS areas and disseminate this 
information.
    Response: NMFS agrees that several efforts are currently underway 
in a number of relevant agencies to identify and map DSCS habitats 
throughout the U.S. EEZ. Many of these efforts are being undertaken 
through partnerships between NOAA, USGS, MMS, the Councils, and 
academic institutions. Exploration, characterization and mapping of 
deep-sea coral habitats are ongoing in areas such as the Gulf of 
Mexico, pinnacles adjacent to the Oculina HAPC and the deeper Lophelia 
beds offshore the Southeast U.S., and extensive coral communities in 
the Aleutian Islands. Mapping and characterization of these areas 
supports the identification and description of EFH. The information 
included in these maps, any relevant documents, and the maps themselves 
may be found on web pages managed by the participating agencies and the 
Councils.
    Comment 24: One commenter stated that high concentration reef areas 
discovered during mapping could be designated as no-trawling HAPCs, and 
another stated that any EFH and HAPC designations and regulations must 
be accompanied by an initial baseline analysis and an on-going 
monitoring program.
    Response: A no-trawling HAPC cannot be designated solely on the 
basis of exploratory mapping, unless (1) a Federally managed fish 
species occurs in that area, (2) EFH has been described for that 
species, (3) the area identified with coral or sponge from these 
mapping efforts occurs within the area defined as EFH, and (4) 
rationale exists to determine that adverse fishing effects must be 
minimized to the extent practicable. The Magnuson-Stevens Act requires 
regional Councils to describe and identify EFH for each fish stock 
managed under an FMP, to minimize to the extent practicable adverse 
effects on such habitat caused by fishing, and to identify other 
actions to encourage habitat conservation and enhancement.
    HAPCs are a specific subset of a much larger area identified as EFH 
that play a particularly important ecological role in the fish life 
cycle or are especially sensitive, rare, or vulnerable. Whereas EFH is 
identified for each species and life stage in an FMP, HAPCs are 
identified on the basis of one or more of the following considerations: 
(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, and (4) the 
rarity of the habitat type. Designated HAPCs are not afforded any 
additional regulatory protection than EFH, but actions with potential 
adverse impacts to HAPCs should be more carefully scrutinized. 
Depending on the conservation needs, an HAPC may have appropriate 
fishery management measures associated with the HAPC. Designation of 
HAPCs would require initial baseline information (existing or 
developing knowledge) of species-habitat associations, the 
characteristics of a particular habitat type, the threats to sensitive 
habitats, or the importance of an area to multiple species. Although 
on-going biological monitoring programs provide useful information for 
management, EFH regulatory guidelines do not require an on going 
monitoring program.
Measure 2
    Designate all known areas containing high concentrations of deep-
sea coral and sponge habitat both as EFH and ``habitat areas of 
particular concern'' (HAPC) and close these HAPCs to bottom trawling.
    Comment 25: Several commenters stated that the South Atlantic 
Council, North Pacific Council, Pacific Council, and Western Pacific 
Council have taken measures to protect DSCS directly or indirectly by 
identifying them as EFH, and the South Atlantic Council has designated 
a few DSCS as HAPCs. Another commentator stated that DSCS are not 
described as EFH in New England, therefore DSCS HAPCs cannot be 
designated.
    Response: As indicated by the summary of Council activities, the 
South Atlantic, North Pacific, Pacific, Western Pacific, New England, 
and Mid-Atlantic Councils have taken measures that directly protect 
DSCS or that indirectly provide DSCS protection. The Gulf of Mexico and 
Caribbean Councils have taken measures to protect hard and soft corals, 
but have not directly specified actions to protect DSCS. DSCS are not 
described as EFH in New England or the Mid-Atlantic, but are indicative 
of hard bottom, which is described as EFH for several managed species 
in New England and the Mid-Atlantic. New information on DSCS locations 
and their roles as EFH will support NMFS and Council efforts to examine 
future actions to protect important DSCS communities from fishing 
impacts.
    Comment 26: A few commenters stated there are significant 
information gaps in determining the dependence of Federally managed 
species on marine habitat, and there is little evidence available to 
support the petition's claim that managed species use DSCS as EFH 
(besides redfish in New England).
    Response: Using the best available scientific information, DSCS 
were described and identified as EFH for Federally managed species by 
the North Pacific and Pacific Councils in existing FMPs. The North 
Pacific Council recently reviewed this information in its EFH FEIS, and 
the Pacific Council is currently reviewing this information. The South 
Atlantic Council has identified deep-sea corals as EFH for Federally 
managed species. Current scientific information regarding DSCS as EFH 
in the New England, Mid-Atlantic, Gulf, and Caribbean Councils is not 
as conclusive, thus limiting the use of EFH authority to directly 
protect DSCS. However, New England established the Lydonia and 
Oceanographer submarine canyon closures to monkfish days-at-sea 
fishermen to protect hard-bottom, which is indicative of deep-sea 
corals, as indicated by current scientific research in that area.
    Comment 27: Two commenters stated that small DSCS ``hot spots'' may 
exist but there was no evidence that these areas represent a large or 
important portion of the overall abundance of DSCS habitat. Another 
commenter stated the petition does not provide a basis to demonstrate 
how impacts to DSCS habitat may alter ecosystems and/or affect 
populations of associated species.
    Response: The extent of areas surveyed for DSCS location is 
limited. On occasion, research has identified areas where more DSCS 
occur compared

[[Page 39710]]

to other areas surveyed. This information does not indicate whether 
these areas represent a large or important portion of the overall 
abundance of DSCS habitats. The petition does not directly state how 
impacts to DSCS habitat may alter ecosystems and/or affect managed 
species populations. However, the petition does present the case that 
DSCS represent complex three-dimensional habitat for multiple marine 
species and are highly vulnerable to bottom-tending mobile gear, thus 
indicating an impact to the marine ecosystem, but not the degree of 
impact.
    Comment 28: Several commenters noted that deep-sea corals may have 
a significant presence in selected areas and may play a habitat role 
that is meaningful for certain species (e.g., rockfish and redfish). 
Therefore, corals cannot be ruled out as possible important EFH and 
should be protected to avoid permanent destruction.
    Response: Several managed species are known to associate with DSCS, 
and the best available scientific information has warranted their 
description and identification as EFH in several FMPs. Deep-sea corals 
have been identified as EFH for South Atlantic managed species, and 
deep-sea corals are managed species in the Western Pacific Council 
areas. In other regions, the scientific connection between managed fish 
species and DSCS as important habitat has not been clear enough to 
warrant DSCS identification as EFH, and subsequent protection under 
Magnuson-Stevens Act, section 303(a)(7).
    Comment 29: One commenter stated that to protect DSCS as EFH, these 
habitats must meet the legal definition of ``waters and substrate 
necessary to support managed species.''
    Response: DSCS must be described and identified as EFH for 
Federally managed fish species by Councils and NMFS to protect DSCS 
using Magnuson-Stevens Act EFH provisions at 16 U.S.C. 1853(a)(7). EFH 
is defined to mean those waters and substrate necessary for fish to 
spawn, to breed, to feed, or grow to maturity. For the purpose of 
interpreting the definition of EFH: ``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 (50 CFR 600.10). DSCS described as 
EFH in the Pacific and North Pacific, and deep-sea corals described as 
EFH in the South Atlantic and Western Pacific, are considered living 
substrates important for either egg, juvenile, and/or adult life stages 
of certain managed fish species. The New England Council is evaluating 
whether new science suggests this connection between managed species 
and DSCS, as well as many other habitats.
    Comment 30: Another commenter noted that the EFH Final Rule and 
Magnuson-Stevens Act do not preclude Councils from identifying habitat 
(other than EFH) of a fishery resource under its authority even if the 
species is not managed under an FMP. However, Council action to protect 
habitats of managed or non-managed species is limited to protecting 
habitats from fishing activities.
    Response: The preamble to the EFH Final Rule at 67 FR 2348 notes 
that the Magnuson-Stevens Act does not preclude Councils from 
identifying habitat (other than EFH) of a fishery resource under its 
authority even if the species is not managed under an FMP. Council 
action to protect the habitats of managed or non-managed species is 
limited to protecting habits from fishing activities. Councils have no 
authority to protect habitats from other activities, although they may 
comment to state and Federal agencies on non-fishing activities under 
section 305(b)(3) of the Magnuson-Stevens Act.
    Comment 31: Two commenters stated that HAPCs are not required by 
the Magnuson-Stevens Act, and are not automatically afforded any 
additional regulatory protection under the act.
    Response: HAPCs are not required by the Magnuson-Stevens Act, but 
are recommended under EFH regulatory guidelines 50 CFR 600.815(a)(8). 
HAPCs are useful for helping focus EFH management on habitat areas that 
provide important ecological functions, are sensitive to human-induced 
environmental degradation, are stressed by development activities, and/
or constitute rare habitat types. However, HAPC designations do not 
afford any additional regulatory protection under the EFH regulatory 
guidelines.
    Comment 32: One commenter stated that Federal regulations require 
the Councils to base their recommendations for EFH designation on the 
``best scientific information available'' and to interpret available 
ecological, environmental, and fisheries information ``in a risk-averse 
fashion to ensure that adequate areas are identified'' and protected. 
Another commenter indicated that if the best scientific information 
available does not show DSCS are utilized as EFH, then action needs to 
wait until congressionally authorized. The petition appears to call for 
actions that exceed the mandate provided by the Magnuson-Stevens Act 
legislation.
    Response: Magnuson-Stevens Act EFH provisions at 16 U.S.C. 
1853(a)(7) require Councils to minimize to the extent practicable 
adverse effects of fishing on EFH. The EFH regulatory guidelines state 
that FMPs should minimize those impacts that are more than minimal and 
not temporary (MMNT) (50 CFR 600.815(a)(2)(ii)). DSCS must first be 
described and identified as EFH using the best scientific information 
available, and have adverse affects from fishing that meet the MMNT 
threshold, before Councils must take action to protect DSCS. Councils 
can manage fishing activity for habitats that are not EFH but that 
represent a conservation and management concern for the fishery, for 
example, where DSCS bycatch is a concern or if DSCS themselves are 
Federally managed species. The DSCS protection measures requested by 
the petition are supported by current mandates if the administrative 
record supports the actions (see response to comment 24 on no trawling 
HAPCs, and responses to comments 25 and 29 on the description and 
identification of DSCS as EFH). However, the administrative record does 
not support taking emergency rulemaking under the Magnuson-Stevens Act.
    Comment 33: One commenter indicated that closures to trawling 
targeting one type of fish and not others does not provide 
comprehensive protection for DSCS areas and the ecosystems that depend 
on them.
    Response: NMFS agrees that DSCS closures targeting one type of fish 
and not others do not provide comprehensive protection for DSCS areas. 
DSCS closures should be implemented based on an evaluation of the need 
for DSCS closures to all fishing gears that will adversely affect DSCS 
and an evaluation of any new DSCS closures in connection with existing 
closure areas in each region.
    Comment 34: The term ``high concentrations'' is inherently 
subjective and needs to be defined and made clear.
    Response: NMFS agrees that the term ``high concentrations' of DSCS 
are difficult to determine without quantitative information on DSCS 
counts. High concentrations should be evaluated in each region on a 
case-by-case basis to determine what constitutes

[[Page 39711]]

high concentrations for management. Any evaluation must take into 
account the uncertainties of current DSCS knowledge and the 
applicability of this information in this management context.
    Comment 35: Two commenters believe the pinnacle proposal lacks 
merit and criteria for defining pinnacles in the North Pacific, and 
that the petition's listing of all pinnacles as HAPCs masks the 
importance of some pinnacles. One of the commenters cautioned that the 
petition's list of DSCS proposed closed areas may be incorrect (e.g. 
Mednyy Seamount, which is in Russian waters).
    Response: NMFS agrees that the petition lacks criteria for 
identifying specific pinnacles as HAPCs. The North Pacific Council EFH 
EIS preferred alternative to minimize adverse effects of fishing on EFH 
includes measures that would protect 16 seamounts. NMFS expects to 
complete its record of decision for the EFH EIS by August 13, 2005.
Measure 3
    Identify all areas not fished within the past 3 years with bottom-
tending mobile fishing gear, and close these areas to bottom-trawling.
    Comment 36: Two commenters stated this request goes beyond the 
stated objective of protecting DSCS habitat, and would conflict with 
the agency's mandate to achieve sustainable and optimal yields related 
to scallops, flounder, and haddock in New England, and groundfish 
species in the Pacific.
    Response: NMFS encourages Councils to take a proactive approach to 
address the expansion of trawl or other fisheries using bottom-tending 
gear to areas that have not yet been fished with such gear and that may 
contain DSCS communities. However, NMFS agrees that a number of areas 
may have been closed to mobile bottom-tending gear before the past 
three years for reasons other than impacts to habitat, and permanent 
closures of such areas could conflict with regional Council efforts to 
achieve sustainable and optimal yields. Areas closed to manage fishing 
mortality could be opened when the fishery is rebuilt. Portions of 
these areas represent important fishing grounds that would continue to 
be closed under this proposed Oceana measure until mapped for DSCS, 
even if any DSCS that might have existed there had been destroyed by 
fishing that pre-dated the closures. NMFS believes that the Councils 
should consider proactive DSCS closure measures within the context of 
past, current, and future management objectives and goals for multiple 
living marine resources.
    Comment 37: Two commenters felt the petition was misleading to 
conclude that the Secretary has information on where bottom-trawling 
occurs, because high-precision, accurate information on fishing effort 
location is currently unavailable. Another commenter felt that 3 years 
was too short a time frame to distinguish between fished and unfished 
areas due to the complexity in determining what area was ``fished.'' 
Others felt that fishing effort must be mapped to determine whether 
bottom trawling overlaps with DSCS areas and whether that fishing 
interaction is significant.
    Response: NMFS disagrees with the comments that the Secretary does 
not have information on where bottom trawling is occurring. NMFS has 
some information, primarily based on log-book data, but also including 
some VMS and observer information for certain fisheries; however, 
reporting standards and the precision of the data varies widely among 
fisheries and regions. NMFS has information regarding fishing effort 
and deep-sea coral presence in different states that vary region by 
region. A quantitative analysis of the degree to which mobile bottom-
tending gear overlapped with known deep-sea coral communities may not 
be possible with current information. A single bottom trawl by a 
commercial fishing vessel may extend for many kilometers. Evidence of 
DSCS discovered in a trawl net may have been retrieved from any point 
along the trawl. Thus, with current information, it is not possible to 
determine specific locations where bottom trawling is encountering 
DSCS.
    NMFS agrees with the comment that restricting the analysis to areas 
trawled in the past 3-years does not provide a sufficient time period 
to determine fished and un-fished areas. Each region collects fishery 
dependent data differently. For instance, the NMFS Southeast Region 
collect only landing data from shrimp trawlers, not locations of 
trawls, while the NMFS Alaska and Northwest Regions collect trawl start 
points in 10-square nautical mile grids. Careful analysis of logbook 
data combined with observer and VMS data (where available and 
applicable) using GIS at appropriate scales is needed to accurately 
address the area of the fishing footprint. This analysis combined with 
an analysis of current fishery management closures is very complex. Due 
to this complexity, 3-years may not provide enough data to accurately 
reflect the historical fishing footprint, which the measure seeks not 
to close to avoid economic harm to fishermen.
    Comment 38: A few commenters felt there is no basis for sweeping 
closures, which are more remote from the applicable legal standards 
than the general call to close potential coral areas. HADAJA, Inc. v. 
Evans (2003 WL 21190990 (D.R.I.) Smith) was referenced by another 
commenter stating mitigation measures based on inference, speculation, 
or surmise were in violation of National Standard 2.
    Response: In the event that action is warranted to protect DSCS 
habitat, NMFS would need to build an adequate administrative record to 
support this decision. This administrative record would have to 
demonstrate that the chosen action is in compliance with the Magnuson-
Stevens Act and its regulations, as well as the National Standards, 
including National Standard 2, which calls for the use of the best 
scientific information available.
    Comment 39: Another commenter referenced NRDC v. Evans (F. Supp. 2d 
S.D. N.Y. Berman) to indicate that reliance on the best available 
scientific evidence is sufficient and NMFS had no obligation to impose 
mitigation measures in absence of demonstrated adverse impacts from 
fishing. One commenter felt that an adverse effect determination is 
difficult for fishing impacts on DSCS because the evidence available is 
limited to connections from managed species, to a demonstrated 
dependence on habitat, to physical impacts of fishing on those habitat 
features, and to adverse effects on managed species.
    Response: Physical disturbance to DSCS can be observed, but adverse 
effects to fish populations are more difficult to assess. Nevertheless, 
it is not appropriate to require definitive proof of a link between 
fishing impacts to EFH and reduced stock productivity before Councils 
can take action to minimize adverse fishing impacts to EFH to the 
extent practicable (67 FR 2354). EFH regulatory guidelines 50 CFR 
600.815(a)(2)(ii) encourage Councils to use the best available science 
as well as other appropriate information sources when evaluating the 
impacts of fishing activities on EFH, and to consider different types 
of information according to its scientific rigor. Through exploratory 
submersible dives, video footage, and remotely operated vehicles 
(ROVs), adverse effects on deep-sea coral habitats have been identified 
in some locations, including trawl tracks. Submersible dives by the 
Harbor Branch Oceanographic Institute submersible Clelia found trawl 
tracks in Oculina HAPC off the Florida's East Coast,

[[Page 39712]]

which has been protected since 1984. Approximately 39 percent of the 
total area of the seafloor observed on 25 NMFS video transects in the 
Aleutian Islands was disturbed to some degree by fishing gear, and 8.5% 
of the corals on those transects were damaged or otherwise disturbed. 
Existing scientific information on the slow growth of many deep-sea 
corals indicates that damage recovery times will be extremely long.
    Coral and sponge bycatch is common in trawl fisheries in some areas 
of Alaska. NMFS estimates that 81.5-metric tons of mixed soft and hard 
corals and bryozoans are removed from the sea floor each year as 
commercial bycatch and that 87 percent of this bycatch is captured in 
bottom trawls. Under Magnuson-Stevens Act, NMFS is obligated to reduce 
bycatch associated with Federally managed fisheries. The Magnuson-
Stevens Act at 16 U.S.C. 1851(a)(9) states that NMFS must ``include 
conservation and management measures that, to the extent practicable 
and in the following priority (A) minimize bycatch; and (B) minimize 
the mortality of bycatch which cannot be avoided.''
    Comment 40: One commenter stated that the request to permanently 
close all areas to bottom trawling that were not fished within the past 
3 years by bottom-tending mobile gear is excessive and unnecessary. It 
appears to focus on eliminating one fishing sector without any 
mitigation or alternatives for participants or processing components of 
the industry. A commenter felt that where there is a high degree of 
overlap between bottom trawls and DSCS, NMFS should consider buyout 
programs to recompense fishermen for the loss of their livelihood.
    Response: NMFS supports addressing these issues on a regional case 
by case basis. If NMFS determines that areas not fished by mobile 
bottom-tending gear within a certain amount of time should be closed to 
protect DSCS from fishing, NMFS would evaluate appropriate alternatives 
and mitigation, such as buyout programs for various fishing sectors 
components.
    Comment 41: A few commenters believed that the petition's 
conclusion that closures will have little economic harm is incorrect 
due to (1) lost short-term revenue from scallops that would die from 
starfish predation, disease, and/or old age; (2) costs associated with 
monitoring, enforcing, and complying with transit provisions; and (3) 
lost future revenue from closed areas if economic and resource 
conditions changed and fishermen want to fish these areas in the 
future.
    Response: It is the responsibility of NMFS under the Magnuson-
Stevens Act to ``describe and identify essential fish habitat for the 
fishery based on the guidelines established by the Secretary under 
section 305(b)(1)(A), minimize to the extent practicable adverse 
effects on such habitat caused by fishing, and identify other actions 
to encourage the conservation and enhancement of such habitat.'' If 
DSCS are found to be EFH, NMFS is mandated to minimize adverse fishing 
effects on DSCS EFH. The designating Council and NMFS would address 
short-term losses of revenue in a fishery, through appropriate NEPA 
analysis. NMFS agrees there are costs associated with monitoring and 
enforcing restricted areas. However, if the restriction of that habitat 
is in the best interest of sustaining the fishery, then those costs to 
both NMFS and the industry are offset by the benefits to all resources.
    Comment 42: One commenter felt that the North Pacific Council EFH 
EIS Alternative 5(b) accomplishes the petition's third measure for the 
Aleutian Islands, where fish aggregations are determined by DSCS. 
However, the commenter felt this measure would not be proper for the 
Bering Sea where fish aggregations are determined by water temperature.
    Response: Fish aggregations are determined by a variety of factors, 
including water temperature and substrate type. The best scientific 
information available in the North Pacific indicates that fish 
aggregate around DSCS and pinnacles in the Aleutian Islands, but fish 
in the Bering Sea aggregate based on water temperature. The preferred 
alternative 5(c) in the North Pacific Council EFH EIS addresses the 
commenter's concerns in that it includes new measures to protect DSCS 
in the Aleutian Islands and Gulf of Alaska, but no new measures in the 
Bering Sea.
    Comment 43: Another commenter stated that non-trawled areas in the 
Gulf of Mexico between 120 and 1,000 meters should be identified and 
investigated for coral reef resources. If DSCS exist, amendments to the 
Shrimp FMP could be added to protect them.
    Response: NMFS agrees that further investigations are needed on the 
locations of DSCS in the Gulf of Mexico. NOAA is collaborating with 
USGS and the MMS in surveying deep-sea corals in the Gulf of Mexico. 
However, to justify the protection of these DSCS areas under the Gulf 
Council's Shrimp FMP as EFH, a strong link must be made that these 
areas are necessary habitat for Federally managed species life stages 
in the Gulf of Mexico. Such a link has not yet been identified by the 
Gulf of Mexico Council.
Measure 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.
    Comment 44: A few commenters noted that the South Atlantic and Gulf 
of Mexico Councils have taken measures to protect DSCS, prohibit taking 
of both soft and hard coral species, require fishing vessels to return 
coral bycatch to the sea, and improve bycatch monitoring and reporting.
    Response: NMFS recognizes the efforts by these and other Councils 
to monitor and control bycatch of corals. Less information is available 
on deep-sea sponge bycatch. Council activities relating to DSCS were 
discussed earlier in this notice. The Councils perform an important 
role in recommending fishery management actions for approval and 
regulatory implementation by NMFS.
    Comment 45: A commenter felt it was premature to regulate bycatch 
efforts in the Pacific Coast groundfish fishery because the Pacific 
Council is developing a programmatic bycatch EIS to address West Coast 
bycatch issues.
    Response: In September 2004, NMFS, in cooperation with the Pacific 
Council, completed a Final EIS (FEIS) on the Pacific Coast Groundfish 
Fishery Management Plan Bycatch Mitigation Program. However, that FEIS 
did not specifically address bycatch of corals or sponges in the 
groundfish fishery.
    Comment 46: Another commenter indicated that DSCS bycatch monitored 
by observers does not constitute a basis for DSCS caps. The 
extrapolation of past observer data may result in unrealistic caps, 
especially when combined with a different level of prioritization of 
DSCS monitoring the future.
    Response: Current bycatch of DSCS is neither uniformly collected by 
observers nor recorded in fishery logbooks maintained by fishermen. The 
determination of realistic caps based on extrapolation of past observer 
data or other DSCS data that may exist (e.g., from trawl surveys 
conducted by NMFS as part of stock assessments) would entail 
substantial uncertainties. As part of an overall strategy, NMFS will 
take steps to determine how existing observer information on DSCS 
bycatch can be standardized or enhanced in each region, and assess the 
feasibility of

[[Page 39713]]

such reporting to inform potential closures. Current regional 
standardized bycatch reporting methodologies will then be evaluated for 
including DSCS bycatch reporting methods.
    Comment 47: Two commenters supported identifying ongoing and future 
cases of DSCS removal and taking swift action to halt such damage where 
and when it occurs. However, they felt that bycatch caps were not 
useful for several reasons: (1) 100 percent observer coverage cannot be 
accurately monitored or enforced; (2) DSCS recovery rates are so low 
that there are no meaningful ``sustainable harvest'' levels; and (3) 
DSCS bycatch caps are redundant compared to other methods for DSCS 
protection, and would include potential large costs compared to minimal 
gain for habitat.
    Response: NMFS believes that DSCS should be managed to preserve 
biodiversity and sustainable use of marine resources. As indicated in 
its response to Comment 46 above, NMFS will study the applicability of 
DSCS bycatch monitoring as a mechanism to inform DSCS management 
action, and believes such studies are necessary before imposition in 
specific fisheries. NMFS agrees that bycatch monitoring, observer 
coverage, and enforcement coverage are not at full capacity and that 
sustainable bycatch levels of DSCS would be difficult to ascertain. 
Bycatch cap measures could be relatively costly, and there are other 
management measures that could be employed to protect DSCS.
    Comment 48: One commenter recommended that NMFS initiate a pilot 
observer program to monitor bycatch in the Gulf Council Royal Red 
Shrimp Fishery to evaluate potential DSCS bycatch.
    Response: NMFS is considering ways to monitor bycatch of DSCS in 
various fisheries and is supportive of cost-effective ways to reduce 
such bycatch or eliminate it altogether where deemed necessary and 
appropriate.
Measure 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.
    Comment 49: Another commenter felt that additional closures based 
on DSCS bycatch would be difficult to identify.
    Response: Because of the lack of data and uniformity problems in 
data collected on DSCS bycatch, area closures based on DSCS bycatch may 
be difficult. As with capping fishing based on DSCS bycatch, NMFS will 
need to evaluate current standardized bycatch reporting methodology to 
include bycatch reporting methodology for DSCS before NMFS can evaluate 
the potential use of monitoring bycatch in individual fisheries for the 
purpose of closing areas to fishing (see response to Comment 47 under 
Measure 4 above).
    Comment 50: One Commenter felt that identifying new areas 
containing high concentrations of DSCS through bycatch monitoring might 
be the most economical approach due to the limited amount of bottom 
trawling occurring in coral areas of the Gulf of Mexico.
    Response: NMFS agrees that bycatch monitoring may be an economical 
method to prioritize a more detailed examination of the benthic 
community in the Gulf of Mexico. However, trawl and other types of 
surveys conducted or contracted by NMFS may also prove economical and 
more expeditious in identifying high concentrations of DSCS for 
possible designation as EFH and HAPC and potentially closing them to 
bottom trawling. NMFS will work with the Councils through existing 
bycatch monitoring and observer programs to increase monitoring of DSCS 
bycatch, and encourage Councils to consider whether such information is 
sufficient to identify closure areas to protect EFH/HAPCs and avoid 
bycatch if appropriate.
    Comment 51: A few commenters stated that DSCS knowledge is limited, 
so establishing a bycatch monitoring research program is reasonable 
within constraints of budget. When areas are discovered, they should go 
through the proper NEPA process before adding protection.
    Response: NMFS agrees.
Measure 6
    Enhance monitoring infrastructure, including observer coverage, 
vessel monitoring systems, and electronic logbooks for vessels fishing 
in areas where they might encounter high concentrations of deep-sea 
coral and sponge habitat (including encountering HAPC).
    Comment 52: Several commenters supported enhanced monitoring 
infrastructure that is more efficient and effective; improves 
understanding of the ecosystem; and is within constraints of practical 
fishing operations, reasonable costs, and budget priorities that also 
include what is necessary for fisheries and endangered species issues.
    Response: NMFS agrees that enhanced monitoring is beneficial to the 
fishing community, the fishery, and DSCS resources. NMFS strives to 
have effective and efficient monitoring systems in place that are 
appropriate to the fishery for which they are employed and for the 
living marine resources NMFS protects. For instance, the rock shrimp 
fishery in the South Atlantic is required to have vessel monitoring 
systems (VMS) on all commercially licensed vessels and all shrimp 
vessels are also required to incorporate turtle excluder devices (TED) 
into their nets to reduce the mortality of sea turtles in shrimp 
trawls. As technology develops and as budgets permit, NMFS incorporates 
technological advances into its monitoring programs.
    Comment 53: Two commenters stated that the South Atlantic and the 
Gulf of Mexico Councils have taken measures to require observers and 
VMS to monitor DSCS.
    Response: The Gulf Council does not require observers on vessels 
that potentially may impact deep-sea corals. Shrimp vessels in the Gulf 
of Mexico take observers on a voluntary basis and coral bycatch is not 
currently recorded specifically as ``coral'' but rather as 
``invertebrate unidentified.'' Any coral bycatch is included along with 
other invertebrate species by weight, which include sponges. The Gulf 
Council has placed VMS on its vessels fishing with fish traps and all 
commercial reef fish vessels. The South Atlantic Council requires VMS 
on its rock shrimp vessels. The rock shrimp fleet fishes close to the 
Oculina HAPC, a known location of deep-sea coral communities. NMFS 
monitors more than 2,100 fishing vessels using VMS. The following is an 
approximation of VMS vessels by region: Northwest (380), Alaska (600), 
Northeast (578), Southeast (260), Pacific Islands (160), and Southwest 
(190). The following is an approximation of NOAA observers serving 
annually by region: Northwest (50), Alaska (270), Northeast (75), 
Southeast (30), Pacific Islands (30), and Southwest (20). NMFS supports 
the use of VMS systems; these systems should be paired with observers 
to accurately monitor trawl gear impacts on DSCS.
    Comment 54: A commenter questioned the accuracy of electronic 
logbooks of DSCS bycatch kept by fishermen. The commenter also 
indicated 100 percent observer coverage of bottom-trawling vessels 
needs to be balanced against the costs for any vessel smaller than a 
large factory trawler to carry the observer.
    Response: NMFS believes electronic logbooks can be kept accurate 
with compliance tools such as observers, VMS, for U.S. Coast Guard 
(USCG) and NMFS enforcement. NMFS encourages the fishing community to 
understand

[[Page 39714]]

the need for accurate log-books to provide the best management for the 
fishery. In most observer programs, observer coverage ranges from 5 to 
20 percent. Currently, in all regions except the Gulf of Mexico, 
vessels receive observers based on a statistically valid and randomized 
process. In the Gulf of Mexico, shrimp vessels volunteer for the NMFS 
observer coverage.
Measure 7
    Increase enforcement and penalties to prevent deliberate 
destruction of deep-sea coral and sponge habitat and illegal fishing in 
already closed areas.
    Comment 55: Three commenters noted that efforts are underway in the 
South Atlantic, New England, and North Pacific Councils to increase 
enforcement and penalties for the destruction of DSCS and illegal 
fishing in DSCS closed areas. Another commenter indicated that the Gulf 
Council is not an enforcement agency, but is developing Shrimp 
Amendment 14 to require VMS to aid enforcement.
    Response: NMFS OLE, USCG, and deputized agents--not the Councils--
are responsible for enforcing marine managed areas. Councils provide 
recommendations to NMFS after extensive consultation with stakeholders. 
Several Councils have recommend measures to require fishing fleets 
under their jurisdiction to carry VMS and observers, which have proved 
to be effective enforcement tools. NMFS OLE works with various NOAA and 
NMFS divisions, the Councils, NOAA General Counsel, and the U.S. 
Attorney's Office to determine the appropriate prosecution method for 
an offense. For civil violations, these include verbal warnings, fix-it 
notices, written warnings, summary settlement fines, as well as 
monetary penalties permit sanctions, permit suspensions, and permit 
revocations from NOAA General Counsel. For criminal violations, 
penalties include monetary penalties, home confinement, and/or 
imprisonment. Criminal investigations and prosecutions are saved for 
the intentional violators who commit a violation many times, conspire 
with others, or intentionally commit a serious offense where a civil 
penalty would not be appropriate or adequate.
    Comment 56: One commenter indicated that illegal trawling does 
occur in the South Atlantic's DSCS Oculina HAPC, and another commenter 
was unsure how deliberate destruction of DSCS could be defined.
    Response: The South Atlantic Council has noted that even though the 
Oculina Closed Area has been off-limits to bottom fishing since 1984, 
there is evidence of subsequent illegal trawling efforts. The South 
Atlantic Council is working closely with NMFS OLE to address these 
issues. Based on evidence of damage from illegal trawling, the Council 
and NMFS have recently mandated VMS on shrimp trawlers to aid 
enforcement. To prosecute illegal trawling, deliberate destruction of 
DSCS will require a showing of ``intent'' to destroy DSCS before a 
violation occurs. NMFS Enforcement encourages anyone who witnesses or 
has knowledge of a violation to report it via the NMFS Enforcement 
hotline number at 1-800-853-1964.
    Comment 57: Many commenters supported increased enforcement efforts 
for all aspects of fisheries management to enforce existing closures, 
and other fishing regulations.
    Response: NMFS agrees that effective fishery management requires 
effective enforcement and cooperation by all parties to obey the 
regulations. NMFS OLE is also researching and testing other viable ways 
(e.g., joint enforcement agreements with state counterparts and 
satellites) to help enforce fishery compliance.
Measure 8
    Fund and initiate research to identify, protect, and restore 
damaged deep-sea coral and sponge habitat.
    Comment 58: Many commenters supported increased funding for 
research, mapping, and monitoring to better manage our nation's oceans, 
within usual budget constraints. One commenter felt Oceana should match 
funds for research.
    Response: NMFS shares the commenters' recognition of the need for 
further research and mapping of these communities. A better 
understanding of where these resources are, how they are impacted by 
humans, and their ecological role in the deep ocean leads to more 
informed management decisions. NOAA is working to address research gaps 
in our understanding of DSCS within current budget constraints (see the 
previous section on scientific research). Although NOAA encourages 
joint research with NGOs, academia, and other agencies, it would be 
both inappropriate and illegal to require an NGO to match federal 
research dollars.
    Comment 59: One commenter felt that establishing a research budget 
is not appropriate for a rulemaking petition.
    Response: NMFS agrees that establishing a research budget through 
any petition is not appropriate.
    Comment 60: A commenter indicated that the South Atlantic Council 
is currently drafting plans for further research to explore DSCS.
    Response: The South Atlantic Council is developing an Oculina 
Research and Monitoring Plan and a Deep Coral Research and Monitoring 
Plan. The goal of the Oculina research plan is to evaluate restoration 
methods for destroyed and damaged Oculina habitat and assess long-term 
survival of restored colonies.
Deep-Sea Coral and Sponge FMP Development
    Comment 61: Several commenters noted that the South Atlantic, 
Western Pacific, and Gulf of Mexico Councils have already developed 
Coral FMPs to protect corals from activities such as trawling, 
anchoring, and placing traps within coral areas.
    Response: The South Atlantic and Western Pacific Councils have 
developed coral FMPs to regulate harvest of species that include deep-
sea corals, and that also provide protection from other fishing 
impacts. The Gulf of Mexico and Caribbean Councils have developed coral 
FMPs to regulate the harvest and protect warm-water corals from fishing 
impacts, but do not identify DSCS species for protection. No Council 
currently has an FMP to manage impacts to deep-sea sponges.
    Comment 62: Another commenter stated that DSCS are not currently 
commercially harvested, managed under FMPs, or identified as EFH in New 
England. However, they stated that the New England Council is at the 
forefront for protecting marine habitats through large closure areas 
for EFH.
    Response: DSCS are not harvested, managed under FMPs, or identified 
as EFH in New England. However, certain areas of DSCS are protected by 
recent monkfish closure areas to protect hard-bottom identified as EFH. 
The New England Council has also closed off large areas to protect 
marine habitats identified as EFH that are vulnerable to fishing. This 
example is one of many positive examples of Council actions to conserve 
marine habitat resources.

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

    Dated: July 5, 2005.
Rebecca Lent
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 05-13589 Filed 7-8-05; 8:45 am]
BILLING CODE 3510-22-S