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, 39700-39714 [05-13589]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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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.

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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: https://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: 
Tom.Hourigan@noaa.gov.

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: https://
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: https://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