Text: H.R.3778 — 109th Congress (2005-2006)All Information (Except Text)

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Introduced in House (09/14/2005)


109th CONGRESS
1st Session
H. R. 3778


To establish ocean bottom trawl areas in which trawling is permitted, to protect deep sea corals and sponges, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

September 14, 2005

Mr. Shaw (for himself, Mr. Farr, Mr. Shays, and Mr. Pallone) introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committee on Science, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To establish ocean bottom trawl areas in which trawling is permitted, to protect deep sea corals and sponges, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Bottom Trawl and Deep Sea Coral Habitat Act”.

SEC. 2. Findings.

Congress makes the following findings:

(1) Ocean resources are a vital component of the United States economy, as noted by the United States Commission on Ocean Policy.

(2) A proper balance of use and protection of ocean resources is necessary to ensure the sustainability of such resources.

(3) Deep ocean habitats provide fishery resources and sites for deep sea corals and deep sea sponges.

(4) Many fishermen of the United States derive their livelihoods from fishing in deep ocean areas.

(5) It is important that fishermen continue to be permitted to use areas that have traditionally been fished, as long as conservation considerations allow.

(6) According to the National Research Council, approximately 10 percent of the United States Exclusive Economic Zone, an area of a total of 3,400,000 square nautical miles, is used each year by fishermen who employ bottom trawls and, in the area that is 50 miles or less from shore, this percentage is higher than 75 percent in some regions.

(7) Vessel monitoring systems are increasingly used in the fishing industry. For example, coverage of such systems for bottom trawl vessels in the Pacific and North Pacific is 100 percent.

(8) Deep sea corals and deep sea sponges host biological diversity that, according to the United States Commission on Ocean Policy, “may rival that of coral communities in warmer, shallower waters”. For example, more than 1,300 species live among Lophelia coral reefs in the northeastern Atlantic Ocean.

(9) Complex seafloor habitats created by structure-forming organisms, such as deep sea corals and deep sea sponges, provide spawning habitat, food, and shelter to numerous fishes and other associated species, including commercially and recreationally targeted species.

(10) Deep sea corals and deep sea sponges typically exhibit slow growth, extreme longevity, and highly patchy distribution, predominately along continental margins, seamounts, undersea canyons, and ridges.

(11) Deep sea corals and deep sea sponges have not been fully studied for their benefit to society or for their ecological importance to other associated species.

(12) Deep sea corals, deep sea sponges, and their associated invertebrates are a potential source of compounds with biomedical properties, some of which are currently in clinical trials to study their anti-cancer, anti-tumor, and anti-inflammatory properties.

(13) The United States Commission on Ocean Policy found that deep sea corals, along with their shallow-water counterparts, are declining at a “disturbing pace,” and that certain types of fishing gear damage deep sea coral ecosystems.

(14) The National Research Council, in a 2002 report to Congress on the effects of trawling and dredging on seafloor habitats, found that deep sea corals warrant protection, based on evidence of the destruction of structured habitats caused by bottom trawls and dredges.

(15) The President’s Ocean Action Plan of 2004 “encourages all regional fishery management councils to take action, where appropriate, to protect deep-sea corals when developing and implementing regional fishery management plans” and includes provisions to “research, survey, and protect deep-sea coral communities”.

(16) In 2005, the North Pacific Fishery Management Council proposed measures that will be adopted pending approval by the Secretary of Commerce to confine use of bottom trawls in the Aleutian Islands exclusive economic zone to specified historically productive fishing areas, to disallow use of bottom trawls in historically unfished areas of Aleutian Islands waters where deep sea corals have been undisturbed, to designate as no-trawling zones those areas where coral ecosystems are known to exist, and to develop a comprehensive plan for research and monitoring.

SEC. 3. Purposes.

(a) In general.—The purposes of this Act are—

(1) to permit fishermen to use bottom trawls in areas that, traditionally, have been fished using bottom trawls and that do not contain deep sea coral and sponge ecosystems;

(2) to provide long-term protection for deep sea coral and sponge ecosystems, particularly in areas that have not traditionally been fished with bottom trawls; and

(3) to identify, map, and assess deep sea coral and sponge ecosystems to create a balanced policy for maintenance of fishing and protection of deep sea ecosystems.

(b) Process.—The Secretary shall use a process that achieves an outcome similar to the outcome achieved by the North Pacific Regional Fishery Management Council—

(1) to protect the habitat of deep sea corals or deep sea sponges to carry out the purposes of this Act; and

(2) to identify areas that are open to the use of bottom trawls and areas closed to such use where deep sea coral and sponge ecosystems are present and protected.

SEC. 4. Definitions.

In this Act:

(1) BOTTOM TRAWL.—The term “bottom trawl” means any trawl or dredge fishing gear that contacts the seafloor while in use, including pelagic trawls that contact the seafloor while in use, otter trawls, and scallop dredges.

(2) BOTTOM TRAWL ZONE.—The term “Bottom Trawl Zone” means any area designated under section 7 or section 10 as a Bottom Trawl Zone.

(3) CORAL HABITAT CONSERVATION ZONE.—The term “Coral Habitat Conservation Zone” means any area designated under section 8 or section 11 as a Coral Habitat Conservation Zone.

(4) COUNCIL.—The term “Council” means any Regional Fishery Management Council established by section 302 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852).

(5) DEEP SEA CORAL AND SPONGE ECOSYSTEM.—The term “deep sea coral and sponge ecosystem” means an ecosystem that meets the criteria established by the Secretary pursuant to section 5(d) of this Act composed of living deep sea corals or deep sea sponges, the benthic and demersal species associated with them, and the biological, physical, chemical, and geologic components that constitute habitat for corals or sponges.

(6) DEEP SEA CORALS.—The term “deep sea corals” means the species that—

(A) occur at a depth of greater than 50 meters;

(B) do not contain symbiotic algae; and

(C) are in the phylum Cnidaria, in the order—

(i) Antipatharia (black corals);

(ii) Scleractinia (stony corals);

(iii) Gorgonacea (horny corals);

(iv) Alcyonacea (soft corals);

(v) Pennatulacea (sea pens), in the class Anthozoa; or

(vi) Hydrocorallina (hydrocorals), in the class Hydrozoa.

(7) DEEP SEA SPONGES.—The term “deep sea sponges” means species of the phylum Porifera that occur at a depth of greater than 50 meters.

(8) EXCLUSIVE ECONOMIC ZONE.—The term “exclusive economic zone” has the meaning given that term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802).

(9) SECRETARY.—The term “Secretary” means the Secretary of Commerce or the Secretary's designee.

(10) VESSEL MONITORING SYSTEM.—The term “Vessel Monitoring System” means a type of mobile transceiver unit that—

(A) is approved by the Office of Law Enforcement of the National Marine Fisheries Service; and

(B) automatically determines the vessel's position and transmits that information to a communications service provider that is approved by such Office for transmission and relay to such Office.

SEC. 5. Mapping and research.

(a) Requirement for mapping and research.—The Secretary shall direct the Under Secretary for Oceans and Atmosphere to prepare and carry out a comprehensive program to explore, identify, research, and map the locations of deep sea corals and deep sea sponges.

(b) Description of mapping and research.—The program described in subsection (a) shall include—

(1) creating maps of the locations of deep sea coral and sponge ecosystems; and

(2) conducting research related to deep sea corals and deep sea sponges, including research related to—

(A) the natural history of such species;

(B) the taxonomic classification of such species;

(C) the ecological roles of such species;

(D) the growth rates of such species;

(E) the anthropogenic, ecological, and other benefits of such species and the habitats of such species; and

(F) the correlation of deep sea corals and deep sea sponges with various types of geologic formations, physical features, and other predictors of presence.

(c) Cooperative research program.—The Secretary, in consultation with the Councils, shall develop a cooperative research program to identify—

(1) the ideal areas for the use of bottom trawls; and

(2) the locations of deep sea corals and deep sea sponges.

(d) Thresholds of deep sea coral and sponge presence.—

(1) IN GENERAL.—The Secretary, in consultation with the Councils and expert scientists, shall determine the thresholds above which the abundances of various deep sea corals or deep sea sponges shall be considered to constitute an ecosystem. In determining such thresholds, the Secretary shall consider the life histories and growth rates of deep sea corals and deep sea sponges and the criteria set out in paragraph (2).

(2) CRITERIA.—In determining the thresholds under paragraph (1), the Secretary shall consider the following criteria:

(A) Bycatch per unit effort of deep sea corals or deep sea sponges in fishery trawls.

(B) Presence of deep sea corals or deep sea sponges in research surveys.

(C) Predictions of the presence of deep sea corals or deep sea sponges based on correlations with geologic or physical features.

(D) Other methods indicating ecologically meaningful presence of these species in an area.

SEC. 6. Use of best available data.

(a) Requirement.—The Secretary shall use the best available data to determine if an area shall be designated as a Bottom Trawl Zone or as a Coral Habitat Conservation Zone.

(b) Considerations.—In delineating the boundary and determining the size of an area to be designated as a Bottom Trawl Zone or a Coral Habitat Conservation Zone, the relevant council and the Secretary shall consider—

(1) the precision and accuracy of the available trawl location data considered in making such determination;

(2) the precision and accuracy of deep sea coral and deep sea sponge presence data considered in making such determination;

(3) the economic cost of such designation to industry and the ecological costs and benefits of such designation to deep sea corals and deep sea sponges in the area; and

(4) the ease of enforcement of such designation.

(c) Coral Habitat Conservation Zones.—Notwithstanding the considerations in subsection (b), in delineating the boundary and determining the size of an area to be designated as a Coral Habitat Conservation Zone, the relevant Council and the Secretary—

(1) shall ensure that each area that is determined to contain a deep sea coral and sponge ecosystem is designated as a Coral Habitat Conservation Zone; and

(2) may include a buffer area around deep sea corals or deep sea sponges present in such Zone to ensure the complete protection of potential deep sea corals or deep sea sponges in the area or to facilitate the enforcement of any appropriate prohibitions, rules, or regulations within such Zone.

SEC. 7. Initial designation of bottom trawl zones.

(a) Recommendation by a council.—Not later than 24 months after the date of enactment of this Act, each Council, after notice and an opportunity for public comment, shall submit to the Secretary and the Secretary shall publish in the Federal Register—

(1) a list of all areas for which the Council has responsibilities that were fished using bottom trawls during the 7-year period ending on December 31, 2004; and

(2) recommendations on which portions of the areas identified in paragraph (1) should be designated as Bottom Trawl Zones.

(b) Standards for initial designation.—An area may not be designated as a Bottom Trawl Zone if there is evidence that a deep sea coral and sponge ecosystem is present in such area.

(c) Designation process.—

(1) PROPOSED RULE.—Not later than 9 months after the date of the publication of a Council’s recommendations in the Federal Register pursuant to subsection (a)(2), the Secretary shall publish in the Federal Register a proposed rule to designate each area or the portion of such area that does not contain a deep sea coral and sponge ecosystem as a Bottom Trawl Zone.

(2) FAILURE TO RECOMMEND.—If a Council fails to submit recommendations to the Secretary under subsection (a), not later than 33 months after the date of enactment of this Act, the Secretary shall publish in the Federal Register a list of areas located in the area for which such Council has responsibility that the Secretary proposes to designate as Bottom Trawl Zones.

(3) COMMENT PERIOD.—The Secretary shall accept comments on a proposal published under paragraph (1) or (2) for 60 days after the date of such publication.

(4) FINAL DETERMINATION.—

(A) IN GENERAL.—Not later than 30 days after the date of the end of the comment period described in paragraph (3), the Secretary shall designate an area included in a proposal published under paragraph (1) or (2) as a Bottom Trawl Zone if such area meets the standards for such designation set out in subsection (b).

(B) PUBLICATION.—The Secretary shall publish in the Federal Register each designation made under subparagraph (A).

(d) Activities within Bottom Trawl Zones.—After the date that is 30 days after the date of the end of the comment period described in subsection (c)(3), bottom trawls may not be used in an area that is not designated as a Bottom Trawl Zone.

SEC. 8. Initial designation of coral habitat conservation zones.

(a) Designation by the Secretary.—

(1) IN GENERAL.—Not later than 60 days after the date of enactment of this Act, the Secretary shall designate as a Coral Habitat Conservation Zone each area—

(A) that a Council, prior to the date of enactment of this Act, has designated as an area in which the use of bottom trawls is prohibited for the protection of seafloor habitat; or

(B) for which a map of the presence of deep sea corals or deep sea sponges has been developed and for which the best available data confirm the presence of deep sea corals or deep sea sponges.

(2) PUBLICATION AND EFFECTIVE DATE.—Not later than 60 days after the date of enactment of this Act, the Secretary shall publish in the Federal Register each area designated as a Coral Habitat Conservation Zone under paragraph (1) and such designation shall become effective on the date of such publication.

(b) Recommendation by a council.—

(1) SUBMISSION TO THE SECRETARY.—Not later than 24 months after the date of enactment of this Act, each Council, after notice and an opportunity for public comment, shall submit to the Secretary a list of all areas known to contain deep sea corals or deep sea sponges.

(2) INCLUDED AREAS.—A list submitted by a Council under paragraph (1) shall include each area that was considered for designation as a Bottom Trawl Zone under section 7(a) if such area that was determined by the Council or the Secretary to contain a deep sea coral and sponge ecosystem.

(3) PUBLICATION.—The Secretary shall publish in the Federal Register a list submitted by a Council under paragraph (1).

(c) Designation process.—

(1) PROPOSED RULE.—Not later than 9 months after the date of the publication of a Council’s recommendations pursuant to subsection (b)(3), the Secretary shall publish in the Federal Register a proposed rule to designate each area identified in such publication as a Coral Habitat Conservation Zone.

(2) FAILURE TO RECOMMEND.—If a Council fails to submit recommendations to the Secretary under subsection (b)(1), not later than 33 months after the date of enactment of this Act, the Secretary shall publish in the Federal Register a list of areas located in the area for which such Council has responsibility that the Secretary proposes to designate as Coral Habitat Conservation Zones.

(3) COMMENT PERIOD.—The Secretary shall accept comments on any proposed rule published under paragraph (1) or (2) for 60 days after the date of such publication.

(4) FINAL DETERMINATION.—

(A) IN GENERAL.—Not later than 30 days after the date of the end of the comment period described in paragraph (3), the Secretary shall—

(i) designate each area, or portion of such area, included in a proposed rule published under paragraph (1) as a Coral Habitat Conservation Zone, if there is rational basis for such designation; or

(ii) if the Secretary fails to make a designation under clause (i) for an area, provide a justification for such failure.

(B) PUBLICATION.—The Secretary shall publish in the Federal Register each designation made under subparagraph (A)(i) or justification required under subparagraph (A)(ii).

(C) INACTION.—If the Secretary does not publish the designation of an area under subparagraph (A)(i) or the justification required under paragraph (A)(ii) for such area within 30 days of the date of the end of the comment period described in paragraph (3), such area shall be deemed to be a Coral Habitat Conservation Zone as if so designated by the Secretary.

SEC. 9. Undesignated areas.

An area not initially designated as a Bottom Trawl Zone under section 7 or as a Coral Habitat Conservation Zone under section 8 shall be available for subsequent designation as a Bottom Trawl Zone under section 10 or as a Coral Habitat Conservation Zone under section 11.

SEC. 10. Subsequent designation of bottom trawl zones.

(a) Standards for subsequent designation.—After the initial designations of Bottom Trawl Zones made under section 7, the Secretary, in consultation with the relevant Council, shall designate an area as a Bottom Trawl Zone if—

(1) the area has been surveyed for the presence of deep sea corals and deep sea sponges; and

(2) there is no deep sea coral and sponge ecosystem present in the area.

(b) Recommendation by a council.—Upon the recommendation of the appropriate Council, the Secretary may consider any previously undesignated area for designation as a Bottom Trawl Zone. The Secretary may designate such area as a Bottom Trawl Zone under this section only if such area meets the designation standards set out in paragraphs (1) and (2) of subsection (a).

(c) Designation process.—

(1) PROPOSED RULE.—The Secretary shall publish in the Federal Register a proposed rule to designate an area that is not a Bottom Trawl Zone or a Coral Habitat Conservation Zone and that meets the standards set out in paragraphs (1) and (2) of subsection (a) as a Bottom Trawl Zone whether identified by the Secretary or by a Council pursuant to subsection (b).

(2) COMMENT PERIOD.—The Secretary shall accept comments on any proposed rule published under paragraph (1) for 60 days after the date of the publication of such proposed rule.

(3) FINAL DETERMINATION.—

(A) IN GENERAL.—Not later than 30 days after the date of the end of the comment period described in paragraph (2), the Secretary shall designate as a Bottom Trawl Area each area, or part of such area, included in a proposed rule published under paragraph (1) if the area meets the requirements of paragraphs (1) and (2) of subsection (a).

(B) PUBLICATION.—The Secretary shall publish in the Federal Register each designation made under subparagraph (A).

SEC. 11. Subsequent designation of Coral habitat conservation zones.

(a) Standards for subsequent designation.—The Secretary, in consultation with the Councils, shall designate an area as a Coral Habitat Conservation Zone if the best available data indicate the presence of a deep sea coral and sponge ecosystem in such area.

(b) Subsequent designation through bycatch records, research, or mapping.—

(1) REVIEW OF DATA.—The Secretary shall continually collect and review, for the purpose of making a determination on the presence of deep sea coral and sponge ecosystems in an area, the following data:

(A) Bycatch records.

(B) Data and analysis that results from the mapping and research conducted pursuant to section 5.

(C) Any other research, mapping, or survey data that the Secretary determines is appropriate.

(2) DESIGNATIONS BASED ON THE REVIEW OF DATA.—If the Secretary, in consultation with the relevant Council, determines that data reviewed under paragraph (1) indicates the presence of a deep sea coral and sponge ecosystem, the Secretary, in consultation with the Council, shall designate the area as a Coral Habitat Conservation Zone and, if appropriate, terminate the designation of the area as a Bottom Trawl Zone.

(c) Recommendation by a council.—Upon the recommendation of the appropriate Council, the Secretary may consider any area for designation as a Coral Habitat Conservation Zone.

(d) Designation process.—

(1) PROPOSED RULE.—The Secretary shall publish in the Federal Register a proposed rule to designate an area identified by the Secretary, in consultation with the appropriate Councils, under subsection (a) or (b) or by a Council under subsection (c) as a Coral Habitat Conservation Zone if data indicate the presence of a deep sea coral and sponge ecosystem in such area.

(2) COMMENT PERIOD.—The Secretary shall accept comments on any proposed rule published under paragraph (1) for 60 days after the date of the publication of such proposed rule.

(3) FINAL DETERMINATION.—

(A) IN GENERAL.—Not later than 30 days after the date of the end of the comment period described in paragraph (2), the Secretary shall—

(i) designate as a Coral Habitat Conservation Zone each area, or part of such area, included in a proposed rule published under paragraph (1) if data indicate the presence of a deep sea coral and sponge ecosystem in such area; or

(ii) if the Secretary fails to make a designation under clause (i) for an area, provide a justification that explains the reasons that the best available data do not indicate the presence of a deep sea coral and sponge ecosystem in such area.

(B) PUBLICATION.—The Secretary shall publish in the Federal Register each designation made under subparagraph (A)(i) or justification required under subparagraph (A)(ii).

(C) INACTION.—If the Secretary does not publish the designation of an area under subparagraph (A)(i) or the justification required under subparagraph (A)(ii) for such area within 30 days of the date of the end of the comment period described in paragraph (2), such area shall be deemed to be a Coral Habitat Conservation Zone as if so designated by the Secretary.

SEC. 12. Stricter regulation permitted and savings clause.

(a) In general.—Nothing in this Act shall restrict the authority provided to the Secretary by any other provision of law to promulgate, with or without the advice of the appropriate Council, fishery or habitat protection measures for any purpose that are more restrictive than the measures set out in this Act.

(b) Savings clause.—All rules and regulations issued by the Secretary under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) pertaining to the conservation, management, or protection of deep sea corals or deep sea sponges shall continue in full force and effect after the date of enactment of this Act until modified or rescinded by the Secretary, in exercise of the authority provided to the Secretary under any provision of law.

SEC. 13. Use of vessel monitoring systems.

Not later than 24 months after the date of enactment of this Act, a vessel that uses a bottom trawl in waters deeper than 50 meters shall use a Vessel Monitoring System capable of accurately detecting and reporting the position of the vessel whenever the vessel leaves port with a bottom trawl on board.

SEC. 14. Penalties and enforcement.

(a) Civil penalties.—Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code, to have violated the prohibition set out in section 7(d) is liable to the United States for a civil penalty under section 308 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858) as if such person had committed an act prohibited by section 307 of such Act (16 U.S.C. 1857).

(b) Criminal offenses.—

(1) OFFENSES.—A person is guilty of an offense if the person commits an act prohibited by subparagraph (D), (E), (F), (H), (I), or (L) of section 307(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857(1)) in an area designated as a Coral Habitat Conservation Zone.

(2) PUNISHMENT.—An offense referred to in paragraph (1) is punishable by the punishments set out in section 309(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1859(b)).

(c) Civil forfeitures.—Any fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used, and fish (or the fair market value thereof) taken or retained, in any manner, in connection with or as a result of the commission of a violation of the prohibition set out in section 7(d) (other than such a violation for which the issuance of a citation is sufficient sanction) shall be subject to the civil forfeiture provisions set out in section 310 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1860).

(d) Enforcement.—The provisions of this Act shall be enforced by the officers responsible for the enforcement of the Magnuson-Stevens Fishery Conservation and Management Act as provided for in subsection (a) of section 311 of such Act (16 U.S.C. 1861). Such officers shall have the powers and authorities to enforce this Act as are provided in such section.

SEC. 15. International protections for deep sea corals and deep sea sponges.

The President is authorized to permit the Secretary, in consultation with the Secretary of State, to work with appropriate international organizations and foreign nations to develop the data necessary to identify areas located in international waters that contain deep sea corals or deep sea sponges and to protect such deep sea corals or deep sea sponges.

SEC. 16. Reports to Congress.

(a) In general.—Not more than 3 years after the date of enactment of this Act, and every 3 years thereafter, the Secretary shall publish and submit to Congress a report on the activities undertaken to carry out the provisions of this Act.

(b) Content.—Each report required by subsection (a) shall include—

(1) a description of the activities carried out to protect and define areas in which the use of bottom trawls has traditionally been permitted;

(2) a description of the activities carried out to protect and monitor deep sea corals or deep sea sponges;

(3) a description of any area designated either as a Bottom Trawl Zone or a Coral Habitat Conservation Zone;

(4) a summary of the research strategy created pursuant to section 5;

(5) a summary of any bycatch or other data that indicates the presence of a deep sea coral and sponge ecosystem in an area; and

(6) a summary of geologic structures that indicate the presence of deep sea coral and sponge ecosystems in an area, as determined by research activities described in section 5.

(c) Publication.—Notice of the availability of each report required by this section shall be published in the Federal Register.

SEC. 17. Authorization of appropriations.

There is authorized to be appropriated $15,000,000 to carry out this Act.