Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17113 

most recent, relevant data only became 

available as of March 19, 2009. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

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

Dated: April 8, 2009. 

Alan D. Risenhoover, 

Director, Office of Sustainable Fisheries, 

National Marine Fisheries Service. 

[FR Doc. E9–8513 Filed 4–13–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080721859–9592–03] 

RIN 0648–AX01 

Fisheries of the Exclusive Economic 

Zone Off Alaska, Groundfish of the 

Gulf of Alaska; Correction 

AGENCY: National Marine Fisheries 

Service (NMFS). National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; correction. 

SUMMARY: NMFS is correcting the 

preamble to a final rule published in the 

Federal Register on January 21, 2009 

(74 FR 3446). The final rule 

implemented a regulatory amendment 

to exempt fishermen using dinglebar 

fishing gear in federal waters of the Gulf 

of Alaska from the requirement to carry 

a vessel monitoring system (VMS). This 

correction is necessary to summarize 

and respond to public comments 

received on the proposed rule. No 

changes to the requirements of the final 

rule result from this correction. 

DATES: Effective April 14, 2009. 

FOR FURTHER INFORMATION CONTACT: Ben 

Muse, 907–586–7228. 

SUPPLEMENTARY INFORMATION: 

Groundfish fisheries in the Gulf of 

Alaska (GOA) are managed under the 

Fishery Management Plan for 

Groundfish of the Gulf of Alaska (FMP). 

The North Pacific Fishery Management 

Council (Council) prepared the FMP 

under the authority of the Magnuson– 

Stevens Fishery Conservation and 

Management Act (Magnuson–Stevens 

Act). Regulations implementing the 

FMP appear at 50 CFR part 679. General 

regulations governing U.S. fisheries also 

appear at 50 CFR part 600. 

On January 21, 2009, NMFS 

published a final rule that exempts 

vessels in the Gulf of Alaska with 

dinglebar gear onboard from vessel 

monitoring system (VMS) requirements 

(74 FR 3446). Previously, dinglebar 

fishermen participating in the State of 

Alaska–managed fishery for in the Gulf 

of Alaska were required to carry VMS to 

facilitate enforcement of regulations that 

prohibit fishing in habitat areas of 

particular concern (HAPC), specifically 

Coral Habitat Protection Areas in the 

Fairweather Grounds and near Cape 

Ommaney in the Gulf of Alaska. VMS 

data from the eight vessels that 

participated in the fishery in 2007 show 

that fishery participants did not fish in 

the Gulf of Alaska Coral Habitat 

Protection Areas; fishing occurred at 

shallower depths than where the 

sensitive corals occur; and the bottom 

types preferred by sensitive coral 

species are avoided by dinglebar 

fishermen. NMFS has determined that 

the risk of damage posed by dinglebar 

vessels to sensitive corals protected 

within habitat areas of particular 

concern is minor, and insufficient to 

justify the costs of VMS. 

The preamble to the final rule 

incorrectly stated that no comments 

were received on the proposed rule for 

this action, which was published on 

October 3, 2008 (73 FR 57585). In fact, 

5 letters of comment were received by 

NMFS during the comment period that 

ended November 3, 2008. Three of the 

letters endorsed the exemption, two 

opposed it, and one (of those that 

opposed) addressed an opinion of the 

federal government that was not 

relevant to the proposed action and is 

not responded to below. After 

consideration of these comments, NMFS 

has made no change to the final rule 

published January 21, 2009 (74 FR 

3446). Information on the purpose and 

justification for the VMS exemption is 

presented in the proposed and final 

rules. 

Correction 

In the final rule for this action (74 FR 

3446), published on January 21, 2009, 

make the following correction. On page 

3448, in the first column, correct the 

third paragraph to read: 

‘‘Response to comments 

A proposed rule for this action was 

published October 3, 2008 (73 FR 

57585), and the comment period ended 

November 3, 2008. Five letters of 

comment were received by NMFS 

during the comment period. Three of 

the letters endorsed the exemption, two 

opposed it, and one (of the ones that 

opposed) addressed an opinion of the 

federal government that was not 

relevant to the proposed action and is 

not responded to below. After 

consideration of these comments, NMFS 

has made no changes to the final rule. 

The following is a summary of the 

comments received and NMFS’s 

response. 

Comment 1: The risk of damage posed 

to protected corals in the Gulf of Alaska 

by the dinglebar fishery is minor and 

insufficient to justify the costs of VMS. 

We don’t believe that granting this 

exemption will harm or provide less 

protection for the HAPC areas. The 

analysis also revealed that the dinglebar 

fishery for targets a different substrate 

type (folded sandstone) than the 

substrates that typically support 

Primnoa species corals (bedrock and 

boulders). It is appropriate to exempt 

dinglebar fishermen targeting from VMS 

requirements, as VMS represents an 

unnecessary burden to a small fleet. 

Response: NMFS agrees that the risk 

of damage to Primnoa corals does not 

justify the cost imposed on the small 

scale operations in this fishery. NMFS’ 

reasoning is discussed in the response 

to Comment 2, below. The analysis 

supporting the final rule did not make 

specific statements about the types of 

substrate supporting Primnoa corals, but 

did point out that the fishing grounds 

dinglebar fishermen chose to fish have 

a different type of substrate than that 

found in the protected areas. 

Comment 2: The potential for damage 

to the Primnoa corals is too great to 

justify relaxing the VMS requirement for 

vessels using dinglebar gear. Dinglebar 

gear is by definition bottom contact gear 

and is very capable of damaging the 

corals in the GOA Coral Habitat 

protection Areas. While 2007 VMS data 

shows fishermen operating close to and 

not within the GOA Coral Habitat 

Protection Areas, the obvious reason for 

this is that VMS is doing its job of 

keeping bottom contact fishermen out of 

the areas. However, are common in the 

areas. A marine biologist providing 

testimony to the Council indicated this. 

This creates an incentive for dinglebar 

operations to enter these areas. Minor 

damage is too much damage. 

Response: NMFS does not believe this 

action creates a significant risk of 

damage to Primnoa corals in the 

protected areas. The decision was not 

only based on the observation that 

vessels didn’t enter these areas in 2007; 

the analysis supporting the final rule 

acknowledged that the VMS could be 

creating a deterrent. Agency approval of 

17114 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

the VMS exemption was based on a 

cumulative consideration of several 

factors. The analysis indicated that there 

appeared to be limited overlap between 

the depths at which dinglebar fishing 

took place, and the depths present in 

the protected areas; the analysis 

indicated that, on the basis of VMS data 

in 2007, dinglebar fishermen tended to 

target different bottom habitats than 

those present in the protected areas; and 

the analysis indicated that there had 

historically been very little dinglebar 

activity in the Alaska Department of 

Fish and Game statistical area 

containing the Cape Ommaney 

protected area. 

Comment 3: The analysis supporting 

this action fails to address the question 

of the presence of in the designated 

areas. are common in those areas, as a 

marine biologist has attested. Do not 

approve this exemption until the 

analysis has first been revised to include 

this critical data and the Council has 

been given the opportunity to 

reconsider its decision based on the 

revised analysis. 

Response: For the reasons discussed 

in the response to Comment 2, NMFS 

does not believe that the presence of 

lingcod would present a significant risk 

of damage to the corals in this area. 

Comment 4: Any program that 

expands VMS requirements must 

include reimbursement to the 

individual fisherman for the cost of the 

VMS unit including installation and 

operating costs. 

Response: This final rule does not 

expand VMS requirements. 

Comment 5: The commenter was 

unable to use the website to submit 

comments, and had to submit a 

comment by email instead. A website 

that does not work is no use. 

Response: NMFS does not know the 

reason why the commenter was unable 

to use the website. The web site, 

‘‘Regulations.gov’’ is a Federal 

government web site serving many 

agencies. Currently the website is 

operating successfully, and NMFS has 

received thousands of letters of 

comment through it. A person 

experiencing problems with 

Regulations.gov should contact 

Regulations.gov directly. NMFS notes 

that the commenter was able to submit 

a comment via email.’’ 

Dated: April 8, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. E9–8517 Filed 4–13–09; 8:45 am] 

BILLING CODE 3510–22–S