Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 57585 

Peer Review 

The Office of Management and Budget 

issued its Final Information Quality 

Bulletin for Peer Review on December 

16, 2004. The Bulletin went into effect 

June 16, 2005, and generally requires 

that all ‘‘influential scientific 

information’’ and ‘‘highly influential 

scientific information’’ disseminated on 

or after that date be peer reviewed. 

Because the information used to 

evaluate this petition may be considered 

‘‘influential scientific information,’’ we 

solicit the names of recognized experts 

in the field that could serve as peer 

reviewers of such information we may 

disseminate as we evaluate this petition. 

Independent peer reviewers will be 

selected from the academic and 

scientific community, applicable tribal 

and other Native American groups, 

Federal and state agencies, the private 

sector, and public interest groups. 

References Cited 

Baker, J.D. 2006. The Hawaiian Monk 

Seal: Abundance Estimation, Patterns in 

Survival, and Habitat Issues. 

Unpublished Ph. D. Thesis. University 

of Aberdeen, UK. 182 p. 

Baker, J.D., and T.C. Johanos. 2004. 

Abundance of the Hawaiian Monk Seal 

in the Main Hawaiian Islands. 

Biological Conservation 116: 103–110. 

Baker, J.D., C.L. Littnan, and D.W. 

Johnston. 2006. Potential Effects of Sea 

Level Rise on the Terrestrial Habitats of 

Endangered and Endemic Megafauna in 

the Northwestern Hawaiian Islands. 

Endangered Species Research 2:21–30. 

Baker, J.D., J.J. Polovina, and E.A. 

Howell. 2007. Effect of Variable Oceanic 

Productivity on the Survival of an 

Upper Trophic Predator, the Hawaiian 

Monk Seal Monachus schauinslandi. 

Marine Ecology Progress Series 346: 

277–283. 

Center for Biological Diversity, Kahea, 

and Ocean Conservancy. 2008. Petition 

to Revise Critical Habitat for the 

Hawaiian Monk Seal (Monachus 

schauinslandi) Under the Endangered 

Species Act. 41 pp. http:// 

www.biologicaldiversity.org/species/ 

mammals/Hawaiianlmonklseal/pdfs/ 

Petition-Monk-Seal-CH–07–02–08.pdf 

National Marine Fisheries Service 

(‘‘NMFS’’). 2007. Recovery Plan for the 

Hawaiian Monk Seal (Monachus 

schauinslandi). Second Revision. 

National Marine Fisheries Service, 

Silver Spring, MD. 165 pp. 

Parrish, F.A. and C.L. Littnan. 2007. 

Changing Perspectives in Hawaiian 

Monk Seal Research Using AnimalBorne Imaging. Marine Technology 

Society Journal 41:30–34. 

Authority: 16 U.S.C. 1531 et seq. 

Dated: September 29, 2008. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E8–23467 Filed 10–2–08; 8:45 am] 

BILLING CODE 3510–22–S 

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. 

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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal website at 

http://www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: 907–586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th 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 


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57586 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

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 §§ 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 


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Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 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 § 679.7, paragraph (a)(22) is 

revised to read as follows: 

§ 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 § 679.28. 

* * * * * 

3. In § 679.28, paragraph (f)(6)(iii) is 

revised to read as follows: 

§ 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 


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