NOAA's National Marine Fisheries Service (NMFS) announced its decision on a petition for rulemaking under the Administrative Procedure Act. Oceana, a non-governmental organization, 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. The Oceana petition asserted that DSCS communities are especially vulnerable to damage and destruction from mobile bottom-tending fishing gear and are not adequately protected under existing fishery management plans (FMPs) or through pending rulemakings. The petition further asserts that ongoing efforts to designate DSCS habitat as Essential Fish Habitat (EFH) under the provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) are proceeding so slowly that without immediate protection many of these sensitive habitats will suffer irreparable harm. The petition sought a research and regulatory program that included: increased mapping of areas containing DSCS habitat and the identification and description of such areas as both EFH and Habitat Areas of Particular Concern; increased protective measures for these habitats, including implementation of additional closed areas and increased enforcement and penalties; enhanced monitoring infrastructure for DSCS; and increased funding for further research to identify, protect, and restore damaged DSCS habitat.

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 also 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. Instead, NMFS believes in a regional approach working through the existing regulatory processes to address the conservation and management of these resources. The effectiveness of this approach has been demonstrated by recent actions of two regional Fishery Management Councils (Councils) to protect deep-sea coral resources announced on April 28, 2005, (70 FR 21927) and on May 6, 2005, (70 FR 24038). These recent decisions plus other pending and future actions should address many DSCS protection issues within the context of regional marine resource management. In cases where science indicates that action should be taken under the Magnuson-Stevens Act to conserve and enhance DSCS, NMFS will work with the appropriate Council(s) to minimize adverse effects from fishing to the extent practicable.

NMFS has decided not to initiate rulemaking immediately but instead NMFS will develop a strategy to address research and management issues regarding DSCS habitat, which eventually may result in rulemaking for some fisheries. The primary goal of this strategy is to improve conservation and management of DSCS communities, while balancing long-term uses of the marine ecosystem and maintaining biodiversity. NOAA will continue research and mapping of DSCS and work proactively with the Councils and through the NOAA National Ocean Service’s National Marine Sanctuary Program 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. NOAA will look for public comment on the DSCS conservation and management strategy at a later date.

This announcement is available in the July 11, 2005, issue of the Federal Register (70 FR 39700). An electronic document version is available in the right column. For further information, contact Tom Hourigan at (301) 713-3459 x122, or Andy LoSchiavo (301)713-4300 x153