[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Proposed Rules]
[Pages 57585-57587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23456]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 080721859-81206-01]
RIN 0648-AX01


Fisheries of the Exclusive Economic Zone Off Alaska, Groundfish 
of the Gulf of Alaska

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes 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 action is 
necessary because the risk of damage posed to protected corals in the 
Gulf of Alaska by the dinglebar gear fishery is minor and insufficient 
to justify the costs of VMS. This action is intended to promote the 
goals and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act, the Fishery Management Plan for Groundfish of the Gulf 
of Alaska, and other applicable law.

DATES: Comments must be received no later than November 3, 2008.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-
AX01, by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
    <bullet> Mail: P.O. Box 21668, Juneau, AK 99802.
    <bullet> Fax: 907-586-7557.
    <bullet> Hand delivery to the Federal Building: 709 West 9\th\ 
Street, Room 420A, Juneau, AK.
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this 
action may be obtained from the NMFS Alaska Region at the address above 
or from the Alaska Region website at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Julie Scheurer, 907-586-7356.

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.
    The FMP designates essential fish habitat and habitat areas of 
particular concern (HAPCs) in the Gulf of Alaska. HAPCs are areas 
within essential fish habitat that are of particular ecological 
importance to the long-term sustainability of managed species, are of a 
rare type, or are especially susceptible to degradation or development. 
The Council may designate specific sites as HAPCs and may develop 
management measures to protect habitat features within them. In order 
to protect HAPCs, certain habitat protection areas and habitat 
conservation zones have been designated. A habitat protection area is 
an area of special, rare habitat features where fishing activities that 
may adversely affect the habitat are restricted.
    Two HAPCs are designated in the Fairweather Grounds and one HAPC is 
designated near Cape Ommaney in the Gulf of Alaska. Within these HAPCs, 
five Coral Habitat Protection Areas were identified where high 
concentrations of sensitive corals occur. Fishing is restricted only in 
the Coral Habitat

[[Page 57586]]

Protection Areas, not the entire HAPC. The Coral Habitat Protection 
Areas cover a total area of 13.5 square nautical miles and were 
established to protect sensitive and slow-growing corals (Primnoa 
species) that provide a rare and important habitat type for rockfish 
and other species.
    Management measures restrict fishing activity within the five GOA 
Coral Habitat Protection Areas. Anchoring and the use of bottom contact 
gear by any federally permitted fishing vessel in these five areas are 
prohibited. Anchoring and fishing with bottom contact gear adversely 
affect coral habitat by breaking and injuring the coral and disturbing 
the substrates to which corals attach. Colonies of Primnoa species are 
easily damaged or dislodged from the seafloor if contacted by fishing 
gear and recovery after disturbance is likely to take decades. NOAA 
Fisheries Office for Law Enforcement uses vessel monitoring systems 
(VMS) to enforce the anchoring and fishing with bottom contact gear 
prohibitions in the Coral Habitat Protection Areas.
    Bottom contact fishing gear includes nonpelagic trawl, dredge, 
dinglebar, pot, and hook-and-line gear. Nonpelagic trawl, dredge, and 
dinglebar gear are considered mobile bottom contact fishing gear. 
Dinglebar gear is similar to salmon troll gear with the addition of a 
heavy metal bar that keeps the hooks close to the seafloor. Of the 
types of mobile bottom contact fishing gear, only dinglebar gear is 
used off the coast of Southeast Alaska in the State of Alaska-managed 
fishery for lingcod.
    Although lingcod is not managed under the FMP, if a vessel catches 
and retains any groundfish managed under the FMP in the exclusive 
economic zone off Alaska (EEZ), it also is considered to be fishing for 
groundfish, and therefore must carry a Federal Fishing Permit. Certain 
species of rockfish are required to be retained (demersal shelf 
rockfish and dark rockfish) under the FMP. Rockfish are common bycatch 
in the state-managed dinglebar fishery for lingcod, and therefore these 
vessels are subject to the requirements of the FMP and must carry a 
Federal Fishing Permit. All federally permitted vessels with mobile 
bottom contact gear onboard are subject to VMS requirements (50 CFR 
679.7(a)(22)). Consequently, vessels fishing for lingcod with dinglebar 
gear also must carry a transmitting VMS onboard.
    Vessel monitoring systems allow NMFS to enforce regulations over a 
large area. VMS requirements went into effect June 28, 2006 (71 FR 
36694), for all vessels fishing in the GOA and using mobile bottom 
contact fishing gear. Vessels participating in the dinglebar fishery 
for lingcod in federal waters of Southeast Alaska first used VMS units 
in 2007.
    Information about the GOA dinglebar fishery for lingcod is 
available from two sources: VMS data from 2007, and logbook data 
submitted to the Alaska Department of Fish and Game (ADFG). Logbook 
data are self-reported by fishermen and estimate the area, average 
depth, and other characteristics of the fishing operation. These 
reports are subjective and are not routinely cross-checked with VMS or 
other data.
    Logbook data indicate that fishing depths may have limited overlap 
with the depths where sensitive corals occur. In general, Primnoa 
species in the HAPCs are found deeper than 70 fathoms. Most of the area 
within the Coral Habitat Protection Areas is deeper than 80 fathoms 
(86.1 to 100 percent across the five areas). Ninety-six percent of the 
logbook reports from 1998-2002 indicate fishing at average depths of 
less than 80 fathoms, and 80 percent at depths less than 50 fathoms, 
whereas only four percent reported fishing at an average depth deeper 
than 80 fathoms. Between 2003 and 2007, all fishing was reported at 
depths averaging less than 80 fathoms, and only two percent of the 
observations fished between 70 and 80 fathoms. During this same period, 
93 percent of the logbook reports indicated fishing at depths shallower 
than 50 fathoms. These data suggest that fishing in recent years has 
occurred at shallower depths. On the assumption that the reported 
depths are averages, some fishing took place at depths greater than 
these reported values. Precise fishing depth data are unavailable.
    VMS units were required for the first time in this fishery in 2007. 
Landings records and VMS data indicate that only eight vessels 
participated in the dinglebar fishery for lingcod in federal waters off 
Southeast Alaska in 2007 and participation in the fishery has been 
declining over the past 10 years. All these vessels carried VMS units 
as a requirement for participation in the fishery. The VMS data show 
that in 2007 fishery participants did not fish in the GOA Coral Habitat 
Protection Areas and very little fishing activity occurred at all in 
the Cape Ommaney area. The VMS requirement was likely a deterrent to 
fishing in protected areas.
    NMFS also correlated VMS data with information about bottom 
substrates in the HAPCs. This analysis revealed that the dinglebar 
fishery for lingcod targets a different substrate type (folded 
sandstone) than the substrates that typically support Primnoa species 
corals (bedrock and boulders). Small pinnacles in the areas of high 
coral concentrations are also a likely deterrent to fishing in those 
areas with dinglebar gear.
    In June 2008, the Council adopted its preferred alternative to 
exempt fishermen using dinglebar gear from the VMS requirement. After 
reviewing the analysis, the Council concluded that any risk of illegal 
fishing and damage to corals in the restricted areas of the Cape 
Ommaney and Fairweather Grounds HAPCs were insufficient to justify 
monitoring by VMS, given the cost imposed on lingcod fishermen, the 
small scale of the fishery (in terms of number of participants, 
duration, size of vessels, and revenues generated), and the limited 
spatial overlap of the fishery with restricted areas of the HAPCs.
    The total cost for acquisition and installation of a VMS unit is 
estimated at $2,068 per vessel. The Pacific States Marine Fish 
Commission reimburses a portion of the initial cost to the vessel 
owner, but this still represents a cost to society. Annual maintenance 
and operation costs are estimated at $630. A full discussion of the 
costs of VMS is provided in the RIR for this proposed action (see 
ADDRESSES). The Council reiterated its previous decision that the need 
for VMS monitoring should be evaluated on a case-by-case basis for 
individual fisheries. Consequently, the VMS exemption proposed in this 
action applies specifically to dinglebar gear with respect to the five 
Coral Habitat Protection Areas currently identified in the GOA. Should 
the Council identify new GOA HAPCs in the future, the need for VMS 
monitoring for all gear types will be examined with respect to those 
areas. This proposed action would not exempt vessels using dinglebar 
gear for other fisheries from VMS requirements. Likewise, the proposed 
action would not exempt vessels fishing for lingcod with other gear 
types from the VMS requirement.
    This action proposes to exempt vessels that use dinglebar gear from 
the VMS requirements at Sec. Sec.  679.7(a)(22) and 679.28(f)(6)(iii) 
by revising the text in these paragraphs to specify that the VMS 
requirement only applies to two types of mobile bottom contact gear, 
non-pelagic trawl gear and dredge gear, not dinglebar gear. This change 
would not remove dinglebar gear from the definition of mobile bottom 
contact gear.

Classification

    Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens 
Act, the NMFS Assistant Administrator has

[[Page 57587]]

determined that this proposed rule is consistent with the FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A copy of this analysis is available from NMFS 
(see ADDRESSES). A summary of the analysis follows.
    The objective of this proposed action is to prevent damage to 
corals from the use of dinglebar gear while ensuring that regulations 
are applied without imposing undue costs on the fishermen using 
dinglebar gear. Evidence suggests that the dinglebar fishery for 
lingcod does not overlap with areas where sensitive coral species 
occur, so the VMS requirements are an unnecessary burden to a small 
fleet. This action would directly regulate all vessels with Federal 
Fishing Permits carrying dinglebar gear in the EEZ. All such vessels 
are considered ``small entities'' for purposes of the RFA. NMFS has 
identified eight to twelve small entities that would be affected by 
this proposed rule. All of the directly regulated individuals would be 
expected to benefit from this action relative to the status quo 
alternative because they would not be required to purchase and maintain 
VMS units in order to participate in the lingcod fishery.
    NMFS has not identified a significant alternative to the proposed 
action that would meet the objectives of the action and would have a 
smaller adverse impact on directly regulated small entities. The 
objectives of the action were to avoid damage to protected habitat 
without imposing undue burdens on fishermen using dinglebar gear. The 
proposed rule completely relieves the financial burden of the VMS. No 
other significant alternative would have a smaller impact on directly 
regulated small entities. The Council considered an alternative that 
would have had the effect of lifting the restriction on fishing by 
dinglebar vessels within the protected habitat as well as the VMS 
requirement. However, the Council rejected this alternative without 
further analysis because its intent was not to lift restrictions on 
fishing by a specific gear type that might impact bottom habitat, but 
to lift an enforcement measure if that measure imposed costs 
disproportionate to its efficacy.
    There are no new reporting, recordkeeping, or other compliance 
requirements associated with this proposed rule. No federal rules that 
duplicate, overlap, or conflict with the proposed action were 
identified in the analysis.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: September 29, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 679 as follows:

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

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

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; and 3631 et 
seq.; Pub. L. 108-447.
    2. In Sec.  679.7, paragraph (a)(22) is revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (a) * * *
    (22) VMS for non-pelagic trawl and dredge gear vessels in the GOA. 
Operate a federally permitted vessel in the GOA with non-pelagic trawl 
or dredge gear onboard without an operable VMS and without complying 
with the requirements at Sec.  679.28.
* * * * *
    3. In Sec.  679.28, paragraph (f)(6)(iii) is revised to read as 
follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (f) * * *
    (6) * * *
    (iii) You operate a vessel required to be federally permitted with 
non-pelagic trawl or dredge gear onboard in reporting areas located in 
the GOA or operate a federally permitted vessel with non-pelagic trawl 
or dredge gear onboard in adjacent State waters; or
* * * * *
[FR Doc. E8-23456 Filed 10-2-08; 8:45 am]
BILLING CODE 3510-22-S