[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Rules and Regulations]
[Pages 9035-9052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-707]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070711313-8014-02]
RIN 0648-AV62


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, 
Crab, Scallop, and Salmon Fisheries of the Bering Sea and Aleutian 
Islands Management Area

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule that implements Amendment 88 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area. This amendment revises the Aleutian Islands 
Habitat Conservation Area (AIHCA) boundary to allow nonpelagic trawling 
in an area historically fished and to prohibit nonpelagic trawling in 
an area of known coral and sponge occurrence. This action is necessary 
to ensure the AIHCA protects areas of coral and sponge habitat from the 
potential effects of nonpelagic trawling and allows nonpelagic trawling 
in areas historically fished and with unknown occurrence of corals and 
sponges.

DATES: Effective March 20, 2008.

ADDRESSES: Copies of the map of the AIHCA and the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) and Final Regulatory Flexibility Analysis for 
this action may be obtained from NMFS Alaska Region, P. O. Box 21668, 
Juneau, AK 99802 or from the Alaska Region NMFS website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or email 
at <a href="/cdn-cgi/l/email-protection#d4b9b1b8b5babdb1fab6a6bba3ba94babbb5b5fab3bba2"><span class="__cf_email__" data-cfemail="e68b838a87888f83c88494899188a688898787c8818990">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the Bering Sea 
and Aleutian Islands Management Area (BSAI) are managed under the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (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 parts 679 and 680. 
General regulations governing U.S. fisheries also appear at 50 CFR part 
600. The groundfish fishery restrictions for the AIHCA described in the 
FMP are implemented by regulations at 50 CFR part 679.

Background

    In 2006, NMFS implemented essential fish habitat (EFH) protection 
measures for the Aleutian Islands subarea and adjacent State of Alaska 
(State) waters (71 FR 36694, June 28, 2006, and corrected at 72 FR 
63500, November 9, 2007). The background on the development of the EFH 
protection measures is available in the proposed rule for that action 
(71 FR 14470, March 22, 2006). The revisions to the AIHCA required 
amendments to the groundfish, crab, scallop, and salmon fishery 
management plans for the Alaska fisheries. These amendments (88, 23, 
12, and 9, respectively) were described in the notice of availability 
published in the Federal Register (72 FR 63871, November 13, 2007), 
which provides the details of these amendments. Only Amendment 88 to 
the groundfish FMP requires regulatory changes, which are implemented 
by this final rule. The Secretary of Commerce approved all of the 
fishery management plan amendments for the AIHCA revisions on February 
4, 2008.
    The EFH protection measures prohibited nonpelagic trawling within 
the AIHCA. The AIHCA is the Aleutian Islands subarea and adjacent State 
waters except for specific sites that remain open to nonpelagic 
trawling. Locations open to nonpelagic trawling in the AIHCA include 
areas without known occurrences of coral and sponge habitat and where 
nonpelagic trawling previously occurred. A map of the AIHCA is 
available from the NMFS Alaska Region website at http://www.fakr.noaa.gov/habitat/efh/aihca.pdf.
    In March 2007, the Council recommended two revisions to the 
boundaries of the AIHCA. These revisions were developed in response to 
information provided by the nonpelagic trawl industry regarding correct 
fishing locations and additional information on coral and sponge 
occurrence in the Aleutian Islands. The two revisions change the AIHCA 
boundaries near Agattu Island and Buldir Island. A figure showing the 
revisions is in the proposed rule for this action (72 FR 65539, 
November 21, 2007) and in the EA/RIR/IRFA (see ADDRESSES). The final 
rule prohibits nonpelagic trawling in an area west of Buldir Island and 
permits nonpelagic trawling in an area north of Agattu Island.
    The area near Agattu Island is opened to nonpelagic trawling 
because no known occurrence of coral or sponge habitat exists in this 
area, and nonpelagic trawling historically has occurred in this 
location. The area near Buldir Island is closed to nonpelagic trawling 
because NMFS surveys show corals and sponges occur in this area. 
Anecdotal information from the fishing industry also indicated that 
fishermen using nonpelagic trawl gear avoid the Buldir Island closure 
area to protect fishing gear from damage by bottom structures. Details 
of the fishing history and biological features of these sites are 
available in the EA/RIR/IRFA for this action (see ADDRESSES).
    The final rule revises the coordinates for the boundaries of the 
AIHCA near Agattu Island and Buldir Island. Table 24 to 50 CFR part 679 
contains coordinates for sites where nonpelagic trawling is permitted 
in the AIHCA. Table 24 is revised to specify the new coordinates near 
Agattu and Buldir Islands that are necessary to adjust the boundaries 
of the AIHCA. These new boundaries will allow for nonpelagic trawling 
near Agattu Island and prohibit nonpelagic trawling near Buldir Island. 
The final rule modifies the coordinates for the Buldir and Semichi 
areas listed on Table 24. The Semichi area includes the waters near 
Agattu Island opened to nonpelagic trawling. Because the final rule 
divides the Buldir Island open area into two areas to allow for the 
closure area, the final rule adds the West Buldir site to Table 24. The 
final rule also removes the site number for each site because the site 
number serves no additional purpose in the identification

[[Page 9036]]

of the site beyond that provided by the site name. The final rule also 
removes from Table 24 two redundant sets of coordinates for the Buldir 
site because they are not necessary to accurately describe the 
boundaries.

Comments and Responses

    NMFS received one comment from an individual on the proposed rule 
(72 FR 65539, November 21, 2007) and no comments on the notice of 
availability for the fishery management plan amendments. No changes 
were made in the final rule from the proposed rule. The following 
summarizes and responds to the comment.
    Comment: Ban all nonpelagic trawling in both areas. Trawling turns 
the ocean bottom into desert wasteland, and no recovery is possible for 
40 years. No reason exists to allow trawling.
    Response: Trawling can have various effects on bottom habitat 
depending on the type of trawl gear and the bottom features where 
fishing is occurring. Recovery times for an area can vary depending on 
the type of bottom habitat impacted. More information about the impacts 
of trawling on bottom habitat is available in the EA/RIR/IRFA for this 
action (see ADDRESSES). The decision to open and close areas in the 
AIHCA is based on the best scientific information available. NMFS has 
determined that the Buldir Island closure in this final rule is 
appropriate based on the occurrence of corals and sponges that may be 
impacted by nonpelagic trawling. The opening of waters near Agattu 
Island also is appropriate because of no known impact of nonpelagic 
trawling on corals and sponges. Trawl gear effectively harvests a 
number of target species in the groundfish fisheries. The Council and 
NMFS have implemented the EFH protection measures to reduce the 
potential impact of this gear on bottom habitat in the Aleutian Islands 
subarea and in the Gulf of Alaska.
    In June 2007, the Council also recommended Amendment 89 to the FMP 
to implement bottom habitat protection measures for the Bering Sea 
subarea. This amendment is intended to address the potential effects of 
nonpelagic trawling on bottom habitat in the Bering Sea. More 
information regarding Amendment 89 is available from the Council's 
website at http://www.fakr.noaa.gov/npfmc/current_issues/BSHC/BSHC.htm. If approved, this amendment is scheduled for implementation 
in late 2008.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendments 
88, 23, 12, and 9 and the implementing final rule for Amendment 88 are 
necessary for the conservation and management of the groundfish, 
salmon, scallop, and crab fisheries and that they are consistent with 
the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA), as 
required by section 604 of the Regulatory Flexibility Act (RFA). The 
FRFA describes the economic impact of this final rule on small 
entities. Descriptions of the action, the reasons it is under 
consideration, and its objectives and legal basis, are included earlier 
in the preamble and in the SUMMARY section of the preamble. A summary 
of the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to 
accompany the proposed rule for this action. This was described in the 
classification section to the proposed rule and the public was notified 
how to obtain a copy. The public comment period ended on January 7, 
2008. No comments were received on the IRFA or on the economic impacts 
of the rule.
    Vessels were considered small, according to the Small Business 
Administration (SBA) criteria, if they had estimated 2004 gross 
revenues less than or equal to $4 million, and were not known to be 
affiliated with other firms whose combined receipts exceeded $4 
million. Ten vessels that qualify as small entities under SBA criteria 
are directly regulated by this action. Six of these vessels are catcher 
vessels, and four are catcher/processors. Average gross revenues in 
2005 were about $1,400,000 for the catcher vessels and about $2,200,000 
for the catcher/processors.
    This regulation does not impose new recordkeeping and reporting 
requirements on the regulated small entities.
    The Council considered one alternative (Alternative 1, no action) 
to the preferred alternative for this action. The boundaries of the 
opened and closed areas were based on information provided by the 
fishing industry regarding historical fishing activity and on NMFS 
survey information regarding coral and sponge location. This is the 
method of boundary identification used in the original EFH rule for the 
AIHCA. Because this is a correction to that rule, the identification of 
boundaries for the opened and closed areas for this action is based on 
the same method. No other alternatives were identified because the 
action is an adjustment to the AIHCA boundaries based on corrected 
information from the fishing industry and NMFS survey information. No 
other boundaries of the opened or closed areas for the AIHCA were 
considered because no additional information was available to support 
other boundary alternatives.
    The status quo condition of the fishery should be based on the 2006 
fishery because of the recent implementation of the EFH protection 
measures (71 FR 36694, June 28, 2006), but 2006 data were not yet 
available for the analysis. Therefore, 2001 through 2005 data were used 
as a proxy for status quo. Vessel monitoring system (VMS) and NMFS 
inseason catch data were used to analyze the catches in the Agattu and 
Buldir Islands opened and closed areas. These types of data allowed for 
determining the fine scale location of fishing activities in 
combination with the estimated harvest from the opened and closed 
areas.
    The no action alternative would not meet the objectives of this 
action. The status quo alternative would allow fishing in an area of 
known coral and sponge occurrence and would prohibit fishing in an area 
that had historical fishing activity. This would not meet the intent of 
the Council for the AIHCA and does not meet the objectives of the 
action to provide continued fishing where historical fishing activity 
has occurred and to prohibit fishing where coral and sponges occur. The 
opening of the area near Agattu provides mitigation for possible 
impacts associated with the closure of the area near Buldir. The FRFA 
did not identify adverse impacts to small entities from the action 
alternative.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS Alaska Region has developed a website 
that provides easy access to details of this final rule, including 
links to the final rule, maps of closure areas, and frequently asked 
questions regarding EFH. The relevant information available on the 
website is the Small Entity

[[Page 9037]]

Compliance Guide. The website address is http://www.fakr.noaa.gov/habitat/efh.htm. Copies of this final rule are available upon request 
from the NMFS, Alaska Regional Office (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: February 11, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for part 679 continues to read as follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447.

0
2. Revise Table 24 to part 679 to read as follows:
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[FR Doc. 08-707 Filed 2-15-08; 8:45 am]
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