[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Rules and Regulations]
[Pages 61642-61652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25211]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0911031392-0457-02]
RIN 0648-AY34


Fisheries of the Exclusive Economic Zone Off Alaska; Modified 
Nonpelagic Trawl Gear and Habitat Conservation in the Bering Sea 
Subarea

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

ACTION: Final rule.

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SUMMARY: NMFS hereby issues a final rule that implements Amendment 94 
to the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Management Area (FMP). Amendment 94 requires 
participants using nonpelagic trawl gear in the directed fishery for 
flatfish in the Bering Sea subarea to modify the trawl gear to raise 
portions of the gear off the ocean bottom. Amendment 94 also changes 
the boundaries of the Northern Bering Sea Research Area to establish 
the Modified Gear Trawl Zone (MGTZ) and to expand the Saint Matthew 
Island Habitat Conservation Area. Nonpelagic trawl gear also is 
required to be modified to raise portions of the gear off the ocean 
bottom if used in any directed fishery for groundfish in the MGTZ. This 
action is necessary to reduce potential adverse effects of nonpelagic 
trawl gear on bottom habitat, to protect additional blue king crab 
habitat near St. Matthew Island, and to allow for efficient flatfish 
harvest as the distribution of flatfish in the Bering Sea changes. This 
action is intended to promote the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act, the FMP, and other 
applicable laws.

DATES: Effective January 20, 2011.

ADDRESSES: Electronic copies of Amendment 94, maps of the action area, 
the Environmental Assessment/Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis (EA/RIR/IRFA), and Environmental 
Assessment/Regulatory Impact Review/Final Regulatory Flexibility 
Analysis (EA/RIR/FRFA) prepared for this action may be obtained from 
NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, or from the 
Alaska Region Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228.

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SUPPLEMENTARY INFORMATION: The Bering Sea groundfish fisheries are 
managed under the FMP. In 1981, 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 Council submitted Amendment 94 for review by the Secretary of 
Commerce, and a notice of availability of Amendment 94 was published in 
the Federal Register on June 29, 2010, (75 FR 37371). The proposed rule 
was published in the Federal Register on July 15, 2010 (75 FR 41123). 
Comments on the amendment and the proposed rule were invited through 
August 30, 2010. The amendment to the FMP was approved by the Secretary 
of Commerce on September 17, 2010.

Background

    Amendment 94 requires participants in the directed fishery for 
flatfish in the Bering Sea subarea to use modified nonpelagic trawl 
gear. It also changes the boundaries of the Northern Bering Sea 
Research Area (NBSRA) to establish the MGTZ, and expands the Saint 
Matthew Island Habitat Conservation Area (SMIHCA). Four minor changes 
to the FMP also are made, three of which do not require regulatory 
changes. (Details on these minor changes are in the EA/RIR/FRFA for 
this action (see ADDRESSES), and in the notice of availability for 
Amendment 94 published in the Federal Register on June 29, 2010 (75 FR 
37371)). One minor technical amendment for the NBSRA requires a 
regulatory amendment. The background on the regulatory amendments, 
including details on the development of the modified nonpelagic trawl 
gear and performance standards, is further explained in the proposed 
rule for this action (75 FR 41123, July 15, 2010).

Regulatory Amendments

    1. Section 679.2 is revised to add a definition for the MGTZ, and 
to add text to several definitions to support the requirement to use 
modified nonpelagic trawl gear to meet the gear standards at Sec.  
679.24. The definition for ``directed fishing'' is revised by adding a 
subparagraph specific to directed fishing for flatfish in the Bering 
Sea subarea. This revision requires the use of modified nonpelagic 
trawl gear for the directed flatfish fishery in the Bering Sea subarea 
and lists the species that are flatfish for purposes of the modified 
nonpelagic trawl gear requirement. The definition for ``federally 
permitted vessel'' is revised to include the fishery restrictions that 
are established for the MGTZ, and for modified nonpelagic trawl gear 
fishing in the Bering Sea subarea. This revision identifies vessels 
that need to comply with the modified nonpelagic trawl gear 
requirements. The definition for ``fishing trip'' is revised to apply 
to vessels that are directed fishing for flatfish based on a fishing 
trip and the species composition of the catch, as described in the 
definition for directed fishing for flatfish. The fishing trip 
definition also applies to recordkeeping and reporting requirements in 
Sec.  679.5. The heading for the first definition of a fishing trip is 
revised to add ``recordkeeping and reporting requirements under Sec.  
679.5'' to reflect the full scope of this definition in 50 CFR part 
679. A definition for the ``Modified Gear Trawl Zone'' is added to 
define this fishery management area consistent with other fishery 
management area definitions and for use under the revised definition 
for ``federally permitted vessels.''
    2. Subparagraph (5) is added to Sec.  679.7(c) to prohibit directed 
fishing for Bering Sea flatfish without modified nonpelagic trawl gear 
that meets the standards specified at Sec.  679.24(f). This revision is 
needed to require the use of modified nonpelagic trawl gear for 
directed fishing for flatfish in the Bering Sea subarea, for directed 
fishing for groundfish with nonpelagic trawl gear within the MGTZ, and 
to ensure the modified nonpelagic trawl gear meets the standards 
specified at Sec.  679.24(f). Subparagraphs (3) and (4) are added and 
reserved to allow for future rulemaking recommended by the Council for 
Pacific cod fishing in the BSAI parallel fisheries.
    3. Figure 17 to part 679 and Table 43 to part 679 is revised to 
show the boundaries of the NBSRA. Figure 17 to part 679 is revised to 
remove the area that becomes the MGTZ, and to remove the area that 
becomes part of the eastern portion of the SMIHCA. The northern portion 
of Figure 17 to part 679 also is revised to include the area of the 
Bering Sea subarea near the Bering Strait that was open to nonpelagic 
trawling (Figure 2) but that will now be closed. The coordinates in 
Table 43 to part 679 are revised to delineate the new boundaries of the 
NBSRA. These revisions are necessary to implement the Council's 
recommended changes in the boundaries of the NBSRA and the SMIHCA, and 
to remove the portion of the NBSRA that is the MGTZ.
    4. Table 46 to part 679 is revised to delineate the new boundaries 
of the SMIHCA. The coordinates in Table 46 to part 679 are changed to 
reflect the extension of the eastern boundary to the 12-nm Territorial 
Sea. This revision is necessary to establish the new boundaries of the 
SMIHCA.
    5. Table 51 to part 679 is added to delineate the coordinates of 
the MGTZ. Because the MGTZ area is a simple shape and easily 
identified, no figure is added to the regulations. This revision is 
necessary to identify the boundaries of the MGTZ.
    6. Section 679.22 lists the closure areas for the Alaska groundfish 
fisheries. Because the MGTZ is closed to nonpelagic trawling, except 
for directed fishing with modified nonpelagic trawl gear, this section 
is revised to add the MGTZ. This revision is necessary to identify the 
area and the gear type that is required in this area.
    7. Paragraph (f) is added to Sec.  679.24 to establish enforceable 
standards for modified nonpelagic trawl gear. The standards include a 
minimum clearance for the sweeps and a minimum and maximum distance 
between elevating devices. The standards also describe the measuring 
locations to determine compliance with the clearance requirement and 
cross section limitations for the line between elevating devices. This 
revision is necessary to ensure that standards are described in the 
regulations to facilitate construction, maintenance, and inspection of 
modified nonpelagic trawl gear that meet the intent of the Council to 
reduce potential adverse impacts on bottom habitat from nonpelagic 
trawl gear.
    8. Figures 25, 26, and 27 to part 679 are added to describe the 
measuring locations for determining compliance with the clearance 
standards, and to describe the location of the elevating devices that 
is required under Sec.  679.24(f). Section 679.24(f) refers to these 
figures to better describe how the modified nonpelagic trawl gear is to 
be configured and how to comply with the clearance standard for the 
gear. This revision is necessary to facilitate compliance with the gear 
standards for those who may be constructing, maintaining, or inspecting 
the modified nonpelagic trawl gear.

Changes From the Proposed Rule

    A change was made in Sec.  679.24(f)(3)(iii)(B) to clarify the 
spacing to which the elevating device minimum clearance applied. The 
proposed rule stated that paragraph (B) would apply to ``elevating 
devices spaced 66 feet (19.8 m) to 95 feet (29 m) * * *.'' The final 
rule was changed to apply paragraph (B) to elevating devices

[[Page 61644]]

spaced greater than 65 feet (19.8 m) to 95 feet (29 m). This change to 
paragraph (B) in the final rule ensures that elevating devices spaced 
more than 65 feet (19.8 m) but less than 66 feet (20.12 m) are required 
to meet the minimum clearance described in paragraph (B).
    Other minor changes with no substantive effects were made in the 
final rule from the proposed rule. These changes clarified the notes to 
Tables 43, 46, and 51.

Comments and Responses

    NMFS received 4 letters of comments on the notice of availability 
for Amendment 94 (75 FR 37371, June 29, 2010) and on the proposed rule 
(75 FR 41123, July 15, 2010). Comments were received from an 
organization that provides services to Bering Sea tribes, a private 
individual, and the fishing industry. No changes were made in the final 
rule from the proposed rule in response to public comment. The 
following summarizes and responds to the 10 unique comments received on 
this action.
    Comment 1: Ban all nonpelagic trawling, establish habitat 
conservation zones, and go back to individual fishing.
    Response: Nonpelagic trawling is the most effective method for 
harvesting certain groundfish species in the Bering Sea. These species 
include flatfish and other species which occur on or near the ocean 
bottom. Banning nonpelagic trawling would not meet NMFS's 
responsibility to sustainably manage fisheries, given the best 
scientific information available regarding impacts on the marine 
environment and impacts on the fish stocks. Selective restrictions on 
the use of nonpelagic trawl gear where impacts are most likely to be a 
concern are more appropriate. This action prohibits nonpelagic trawling 
in the expanded SMIHCA, as described in the preamble.
    The Council and NMFS implemented Amendment 89, which established 
several habitat conservation areas in the Bering Sea to protect bottom 
habitat from the potential effects of bottom trawling (73 FR 43362, 
July 25, 2008). Prohibiting all bottom trawling and limiting fishing to 
individuals is not consistent with the national standards 1 and 5 of 
the Magnuson-Stevens Act, which require the prevention of overfishing 
while achieving optimum yield from each fishery and consideration of 
efficiency in the use of fish resources.
    Comment 2: We support requiring modified nonpelagic trawl sweeps 
for all vessels fishing for flatfish in the Bering Sea subarea, and 
reopening the MGTZ to nonpelagic trawling with modified gear. Even 
though the modified gear will have an economic impact on the flatfish 
vessel fleet, the industry's participation in the modified gear 
development process shows the industry's commitment to responsible 
fishing practices. The research indicated that modified nonpelagic 
trawl gear had reduced effects on bottom habitat compared to 
conventional nonpelagic trawl gear.
    The MGTZ is an historically important fishing area for Bering 
flounder, flathead sole, and rock sole harvest because of the high 
concentration of these species and low concentration of Pacific halibut 
that may be incidentally taken during the flatfish fisheries. 
Establishing the MGTZ meets the Council's goals and the Magnuson-
Stevens Act national standards 1 and 9 to achieve optimum yield and to 
reduce bycatch.
    The western boundary of the MGTZ addresses potential blue king crab 
bycatch in the flatfish fishery by protecting blue king crab habitat 
within the SMIHCA. Tribal subsistence concerns are also addressed by 
the eastern boundary of the MGTZ by providing a buffer between the MGTZ 
and the Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat 
Conservation Area. This action by the Council was based solely on 
public testimony, and no analysis of this change was available for the 
Council to consider in this decision.
    The research indicates that nonpelagic trawling in sand and mud 
substrate of the Bering Sea produces an indiscernible effect to 
essential fish habitat. The modified nonpelagic trawl gear required to 
be used in the MGTZ would have insignificant effects on the bottom 
habitat. The habitat substrate in the MGTZ is similar to bottom habitat 
to the south of this area that is currently open to nonpelagic 
trawling. The modified nonpelagic gear requirement will ensure less 
impact on the bottom habitat than nonpelagic trawl impacts that have 
occurred in the past.
    Response: Support noted. Regarding the eastern boundary of the 
MGTZ, the Council had sufficient information in the EA/RIR/IRFA (see 
ADDRESSES) to understand the potential effects of recommending the 
location of this boundary based on public testimony. The EA/RIR/IRFA 
was further revised based on the Council's recommended action to 
provide the public and the Secretary of Commerce an analysis of the 
likely impacts of the preferred alternative.
    Comment 3: We support the eastern expansion of the SMIHCA and the 
northern expansion of the NBSRA to include Little Diomede. These 
changes to the boundaries of these areas would protect subsistence 
resources from the potential impacts of nonpelagic trawling.
    Response: Your support of this action is noted.
    Comment 4: We are opposed to the MGTZ and are concerned that the 
Council offered commercial bottom trawling in the NBSRA as an incentive 
for the development of the modified nonpelagic trawl gear. Many Alaska 
Natives in the Bering Strait region have voiced their opposition to any 
nonpelagic trawling in the northern Bering Sea, including research 
trawling that may support future commercial nonpelagic trawling. NMFS 
has failed to adequately respond to multiple tribal consultation 
requests regarding nonpelagic trawling in the Bering Sea.
    Response: NMFS acknowledges the commentor's concerns regarding any 
nonpelagic trawling in the northern Bering Sea and the process used for 
developing the MGTZ. The process used to develop this action is 
described Section 2 and Appendices C and D in the EA/RIR/FRFA for this 
action (see ADDRESSES).
    The tribal consultations regarding Amendment 94 are described in 
the Classifications section of this rule. NMFS discussed Amendment 94 
during a tribal consultation with tribal representatives from Bering 
Sea communities in Unalakleet on February 16, 2010. NMFS also received 
requests for tribal consultation on research that was conducted in the 
summer of 2010 in the northern Bering Sea with vessels using nonpelagic 
trawl gear that meet research standards. Each tribal consultation 
request received by NMFS was responded to in writing with an offer of 
further discussion. Commercial and research nonpelagic trawling in the 
northern Bering Sea was discussed during meetings with NMFS and tribal 
representatives in Anchorage in February 2010. NMFS also held a 
teleconference on July 7, 2010, open to all tribes who had requested 
consultation on the research trawling and to other parties interested 
in the issue. NMFS followed up the research teleconference with daily 
reports to all meeting participants while the research activities were 
conducted. Additional information on NMFS tribal outreach activities 
are on the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/tc/.
    Comment 5: The purpose of the NBSRA is to provide a location where 
studies of the effects of nonpelagic trawling could be conducted. The 
NMFS summer trawl survey in the

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NBSRA did not collect data that could be used for studies on the 
effects of nonpelagic trawling. None of the research and testing for 
the development of the modified nonpelagic trawl gear was conducted in 
the NBSRA. The Council is only interested in expanding commercial 
bottom trawl fisheries.
    Response: The purpose of the NMFS summer trawl survey in the 
northern Bering Sea was to provide information for the Loss of Sea Ice 
study to understand the potential effects of climate change on the 
Bering Sea ecosystem. Information collected can be used in the 
development of the NBSRA research plan including that portion of the 
research plan that will define the design of studies on the impacts of 
nonpelagic trawl gear on bottom habitat. The Council and NMFS sponsored 
a subsistence and community workshop in February 2010, to discuss the 
development of the NBSRA research plan. The results of this workshop 
are available at the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/tc/bs/2010_workshop_minutes.pdf.
    Comment 6: No action should be taken by NMFS before careful and 
complete analysis of the impacts on subsistence users has been 
undertaken, in collaboration with subsistence users.
    Response: NMFS uses the best available scientific information to 
inform fishery management decisions. The EA/RIR/IRFA describes the 
potential impacts of the action on environmental components of the 
northern Bering Sea, including marine mammals and bottom habitat that 
support subsistence marine resources. Even though adverse effects may 
occur in the MGTZ from modified nonpelagic trawling compared to 
prohibiting nonpelagic trawling, these impacts are not expected to 
cause substantial impacts on subsistence resources. NMFS's outreach 
activity with subsistence users in relation to this action are further 
described in the section on tribal consultation in the Classification 
section and in response to Comment 4.
    Comment 7: The EA/RIR socio-economic analysis ignores the impacts 
on fishing communities immediately adjacent to the NBSRA, but examines 
communities that are dependent on the commercial fisheries that may be 
conducted in the northern Bering Sea. Fishing communities are defined 
by the Magnuson-Stevens Act as ``a community which is substantially 
dependent on or substantially engaged in the harvest or processing of 
fishery resources to meet social and economic needs * * *'' Communities 
in the northern Bering Sea are dependent on marine resources for 
subsistence, traditional Alaska Native culture, and commercial uses. 
NMFS has ignored the importance of the northern Bering Sea fishery 
resources for Bering Sea communities. The failure of NMFS to include 
any of the subsistence-based communities in the Bering Strait region in 
the analysis for this proposed action while focusing almost exclusively 
on commercial fisheries is in direct conflict with national standards 6 
and 8 of the Magnuson-Stevens Act. NMFS must consider the impacts to 
all types of activities potentially affected by this action in their 
analysis, including subsistence activities. NMFS must also include all 
subsistence activities in the socio-economic analysis, and not exclude 
the value of subsistence and related cultural activities.
    Response: National standard 6 requires that conservation and 
management take into account and allow for variations among, and 
contingencies in, fisheries, fishery resources, and catches. Among 
other things, national standard 8 requires conservation and management 
measures to take into account the importance of fishery resources to 
fishing communities, to provide sustained participation of such 
communities, and to the extent practicable, minimize adverse economic 
impacts. The EA/RIR includes an analysis of impacts on subsistence 
resources. No substantial impacts on subsistence resources for each of 
the environmental components were found, and therefore, no further 
discussion of effects on communities dependent on subsistence resources 
was developed. If potential impacts to subsistence resources had been 
identified, additional analysis on subsistence-based communities would 
have been included in the EA/RIR/IRFA. If substantial impacts on 
subsistence resources had been identified that would have affected 
subsistence practices, these would have been addressed in the socio-
economic section of the document.
    Comment 8: Any development of commercial nonpelagic trawl fisheries 
in the northern Bering Sea is irresponsible because of the lack of 
understanding and research about the natural and human activity changes 
and potential impacts in the northern Bering Sea and on the marine 
resources.
    Response: Enough information is available regarding the northern 
Bering Sea environment to analyze the potential impacts of this action 
and to make a decision on commercial fisheries management in this area. 
NMFS agrees that more research would improve the understanding of 
natural and human activity impacts on the marine environment in the 
northern Bering Sea.
    Comment 9: NMFS does not have enough supportive data to allow 
commercial nonpelagic trawling in the MGTZ. Half of the MGTZ is not 
part of the NMFS bottom trawl survey. The EA/RIR shows the lack of 
research and poorly understood ecosystem processes in the northern 
Bering Sea, but then arbitrarily states that impacts are likely to be 
insignificant based on almost no data. The amount of data that NMFS is 
using to justify this action is inappropriate to the scope and 
implications of the action.
    Response: Sufficient data is available to provide for the 
sustainable management of the Bering Sea flatfish fishery, including 
allowing fishing inside the MGTZ. The EA/RIR/IRFA describes the bottom 
habitat inside the MGTZ, historical catch, NMFS trawl surveys, and 
fishing activities inside and outside the MGTZ. This information can be 
used to manage fishing activities within and outside the MGTZ. NMFS 
agrees that additional information regarding the northern Bering Sea 
ecosystem would be desirable but this additional information is not 
required to implement this action.
    Comment 10: The EA/RIR states that continuing fishing activity and 
continued subsistence harvest are potentially the most important 
sources of additional annual adverse impacts on marine mammals. 
Expanding commercial bottom trawling northward into the northern Bering 
Sea may result in unknown effects on marine mammals. Harvest activities 
analyzed are not determined to be a threat to marine mammal 
populations. The value of subsistence harvests outweighs the short term 
gain from commercial fish harvest. The EA/RIR fails to put a value on 
the potential loss of subsistence or culture as a result of expansion 
of nonpelagic trawling into the northern Bering Sea and its impacts. 
The EA/RIR also does not recognize climate changes and other 
developmental impacts as additional annual adverse impacts on marine 
mammals.
    Response: In section 5.4 of the EA/RIR/IRFA, the analysis of marine 
mammals examines three types of potential impacts of the fisheries: 
incidental takes, prey availability, and disturbance. The impacts of 
incidental takes are examined in the context of other types of human 
caused mortality on marine mammals. For marine mammals harvested for 
subsistence, the amount of subsistence harvests is much greater than 
the amount of incidental

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takes in the fisheries, but these combined amounts are a small enough 
percentage of the population not to pose a biological threat to the 
stock. For these marine mammals, the continued subsistence harvest and 
fisheries incidental takes compose the majority of the human caused 
injury and mortality and are therefore the most important factors to 
consider when analyzing incidental takes of marine mammals. NMFS agrees 
that the continued subsistence harvest of marine mammals at the current 
levels does not pose a threat to the marine mammal populations.
    Enough information is available to determine the potential effects 
of opening the MGTZ to nonpelagic trawling with modified gear. 
Information on the sediment types, fish stocks, impacts of the gear on 
bottom habitat, and the potential dependence of marine mammals on the 
location provide enough information in the EA/RIR/IRFA to determine the 
potential effects of the action.
    The EA/RIR/IRFA did not find that this action would cause a loss in 
the potential use of subsistence resources due to the opening of the 
MGTZ. The MGTZ eastern boundary was adjusted to accommodate a buffer 
between this zone and the Nunivak Island, Etolin Strait, and Kuskokwim 
Bay Habitat Conservation Area where subsistence activities occur. No 
information was available that indicates that activity in the MGTZ 
directly or indirectly impacts important subsistence resources.
    Section 5.7 of the EA/RIR/IRFA contains a cumulative effects 
discussion including the impacts of climate change and other 
developmental impacts on all of the environmental components analyzed, 
including marine mammals. This section describes the potential effects 
of climate change on the Bering Sea environment, including marine 
mammals and diving seabirds. The cumulative effects were considered 
with the direct and indirect effects on each environmental component to 
determine the significance of effects of the action.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendment 
94 is necessary for the conservation and management of the groundfish 
fisheries and that it is 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.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, NMFS responses to those 
comments, and a summary of the analyses completed to support the 
action. 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 copy of 
the FRFA is available from NMFS (see ADDRESSES).
    A summary of the IRFA was provided in the classification section to 
the proposed rule (75 FR 41123, July 15, 2010), and the public was 
notified of how to obtain a copy of the IRFA. The public comment period 
ended on August 30, 2010. No comments were received on the IRFA. A 
summary of the FRFA follows.
    In 2007, all of the catcher/processors (CPs) targeting flatfish in 
the Bering Sea subarea (46 vessels) exceeded the $4.0 million threshold 
that the Small Business Administration (SBA) uses to define small 
fishing entities. Due to their combined groundfish revenues, the CPs 
would be considered large entities for purposes of the Regulatory 
Flexibility Act (RFA). However, based on their combined groundfish 
revenues, none of the four catcher vessels that participated in 2007 
exceeded the SBA's small entity threshold, and these vessels are 
considered small entities for purposes of the RFA. It is likely that 
some of these vessels also are linked by company affiliation, which may 
then categorize them as large entities, but there is no available 
information regarding the ownership status of these vessels at an 
entity level. Therefore, the FRFA may overestimate the number of small 
entities directly regulated by this action.
    This regulation does not impose new recordkeeping and reporting 
requirements on the regulated small entities.
    The Council considered three alternatives, an option, and a set of 
minor changes for this action. Alternative 1 is the status quo, which 
does not meet the Council's recommendations to further protect Bering 
Sea bottom habitat. Both Alternatives 2 and 3 would require modified 
nonpelagic trawl gear for vessels directly fishing for flatfish in the 
Bering Sea subarea. Additionally, under Alternative 3, which is the 
preferred alternative, an area that is currently closed to nonpelagic 
trawling would be opened to vessels using modified nonpelagic trawl 
gear. Alternative 2 does not provide fishing opportunity within the 
MGTZ, and therefore does not minimize the potential economic impact on 
small entities in the same manner as provided by Alternative 3. The 
SMIHCA option has no economic effect on small entities as this area is 
currently closed to nonpelagic trawling as part of the NBSRA. The minor 
changes ensure the FMP is easier to read and understand, and that the 
FMP accurately reflects the Council's intent and the provisions of the 
Magnuson-Stevens Act.
    The modified nonpelagic trawl gear component of Alternatives 2 and 
3 contains explicit provisions regarding mitigating potential adverse 
economic effects on directly regulated entities, the vast majority of 
which are large entities. Performance standards (rather than design 
standards) would be required for the modified nonpelagic trawl gear. 
Use of performance standards simplifies compliance requirements for 
directly regulated entities, including small entities, while still 
maintaining the ability of NMFS to enforce the regulation.
    Additionally, the Council has recommended that NMFS implement the 
amendment on a timeline that takes into account the resources available 
to directly regulated entities. NMFS has determined that implementation 
will not occur sooner than the beginning of the 2011 fishing year. Such 
a timetable is important to allow sufficient time for any vessels that 
require re-engineering to accommodate the modified nonpelagic trawl 
gear to schedule shipyard time without having to forego participation 
in the fishery. The preferred alternative (Alternative 3) and option 
reflect the least burdensome of available management structures in 
terms of directly regulated small entities, while fully achieving the 
conservation and management purposes articulated by the Council and 
consistency with applicable statutes.

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 Web site 
that provides easy access to details of this final rule, including 
links to the final rule, maps of closure areas, and frequently asked 
questions

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regarding essential fish habitat. The relevant information available on 
the Web site is the Small Entity Compliance Guide. The Web site address 
is http://www.alaskafisheries.noaa.gov/habitat/efh.htm. Copies of this 
final rule are available upon request from the NMFS, Alaska Regional 
Office (see ADDRESSES).

Tribal Summary Impact Statement (E.O. 13175)

    Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the 
Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the 
American Indian and Alaska Native Policy of the U.S. Department of 
Commerce (March 30, 1995) outline the responsibilities of NMFS in 
matters affecting tribal interests. Section 161 of Public Law 108-199 
(188 Stat. 452), as amended by section 518 of Public Law 109-447 (118 
Stat. 3267), extends the consultation requirements of Executive Order 
13175 to Alaska Native corporations.
    Executive Order 13175 requires Federal agencies to establish 
regular and meaningful consultation and collaboration with tribal 
officials in the development of Federal policies that have tribal 
implications.
    Section 5(b)(2)(B) of Executive Order 13175 requires NMFS to 
prepare a tribal summary impact statement as part of the final rule. 
This statement must contain: (1) A description of the extent of the 
agency's prior consultation with tribal officials; (2) a summary of the 
nature of their concerns; (3) a statement of the extent to which the 
concerns of tribal officials have been met; and (4) the agency's 
position supporting the need to issue the regulation.

A Description of the Extent of the Agency's Prior Consultation With 
Tribal Officials

    On October 13, 2009, NMFS received a request from the Native 
Village of Unalakleet for tribal consultation on a number of fishery 
management issues regarding the Bering Sea. On February 16, 2010, NMFS 
met with tribal representatives from the Native Village of Unalakleet, 
Koyuk, Stebbins, Elim, Gambell, Savoonga, Saint Michael, Shaktoolik, 
and King Island in Unalakleet, AK. Among other issues, proposed 
Amendment 94 was discussed. On July 15, 2010, NMFS provided opportunity 
for further discussion on this action by contacting all tribal 
governments and Alaska Native corporations that may be affected by the 
action and providing them with a copy of the proposed rule. No 
additional response from tribal governments or Alaska Native 
corporations was received regarding this action.
    Among the recommendations provided to NMFS from the Unalakleet 
tribal consultation and in March 2010 letters from Shishmaref, King 
Island, Saint Michael, Solomon, Koyuk, Wales, Brevig Mission, and 
Savoonga, the tribal representatives requested that nonpelagic trawling 
not be allowed to expand northward into the northern Bering Sea. This 
limit on expansion would include not establishing the MGTZ. NMFS 
responded to the recommendations from the Unalakleet tribal 
consultation in writing to all participants, and this report is 
available from the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/tc/unalakleet/report0210.pdf.

A Statement of the Extent To Which the Concerns of Tribal Officials 
Have Been Met

    Except for the area used to establish the MGTZ, the NBSRA remains 
closed to commercial nonpelagic trawl fishing. The final rule allows 
for modified nonpelagic trawl gear to be used in the MGTZ. Tribal 
officials have stated that they want no nonpelagic trawling in the 
NBSRA. Allowing any commercial nonpelagic trawling in the NBSRA does 
not meet the concerns of tribal officials. This action reduces the size 
of the NBSRA approximately 5 percent by establishing the MGTZ. NMFS 
understands that the concern of the tribal representatives is primarily 
on the potential adverse impact that nonpelagic trawling may have on 
bottom habitat, and particularly bottom habitat that supports 
subsistence resources. Because the regulations require the use of 
modified nonpelagic trawl gear in the MGTZ, the potential effects on 
bottom habitat in the MGTZ from nonpelagic trawling is reduced. The 
rest of the NBSRA remains closed to commercial nonpelagic trawling.

NMFS' Position Supporting the Need To Issue the Regulation

    This final rule is needed to implement Amendment 94, a 
precautionary management measure to reduce the potential impacts of 
nonpelagic trawling on benthic habitat. NMFS recognizes the tribes' 
concerns regarding the expansion of bottom trawling into the NBSRA with 
the establishment of the MGTZ. NMFS is balancing the recommendation by 
the Council to open this area to ensure efficient flatfish harvest with 
the requirement that nonpelagic trawl gear be modified. The potential 
impacts on the bottom habitat from trawling in this area are mitigated 
by requiring modified nonpelagic trawl gear in the MGTZ.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: October 1, 2010.
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. In Sec.  679.2, revise the definition for ``Federally permitted 
vessel'' and the introductory text of paragraph (1) of the definition 
of ``Fishing trip,'' and add, in alphabetical order, paragraph (5) to 
``Directed fishing,'' and the definition for ``Modified Gear Trawl 
Zone'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Directed fishing * * *
* * * * *
    (5) With respect to the harvest of flatfish in the Bering Sea 
subarea, for purposes of nonpelagic trawl restrictions under Sec.  
679.22(a) and modified nonpelagic trawl gear requirements under 
Sec. Sec.  679.7(c)(5) and 679.24(f), fishing with nonpelagic trawl 
gear during any fishing trip that results in a retained aggregate 
amount of yellowfin sole, rock sole, Greenland turbot, arrowtooth 
flounder, flathead sole, Alaska plaice, and other flatfish that is 
greater than the retained amount of any other fishery category defined 
under Sec.  679.21(e)(3)(iv) or of sablefish.
* * * * *
    Federally permitted vessel means a vessel that is named on either a 
Federal fisheries permit issued pursuant to Sec.  679.4(b) or on a 
Federal crab vessel permit issued pursuant to Sec.  680.4(k) of this 
chapter. Federally permitted vessels must conform to regulatory 
requirements for purposes of fishing restrictions in habitat 
conservation areas, habitat conservation zones, habitat protection 
areas, and the Modified Gear Trawl Zone; for purposes of anchoring 
prohibitions in habitat protection areas; for purposes of requirements 
for the BS nonpelagic trawl fishery pursuant to Sec.  679.7(c)(5)

[[Page 61648]]

and Sec.  679.24(f); and for purposes of VMS requirements.
* * * * *
    Fishing trip * * *
    (1) With respect to retention requirements (MRA, IR/IU, and pollock 
roe stripping), recordkeeping and reporting requirements under Sec.  
679.5, and determination of directed fishing for flatfish.
* * * * *
    Modified Gear Trawl Zone means an area of the Bering Sea subarea 
specified at Table 51 to this part that is closed to directed fishing 
for groundfish with nonpelagic trawl gear, except by vessels using 
modified nonpelagic trawl gear meeting the standards at Sec.  
679.24(f).
* * * * *

0
3. In Sec.  679.7, add and reserve paragraphs (c)(3) and (c)(4), and 
add paragraph (c)(5) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (c) * * *
    (3) [Reserved]
    (4) [Reserved]
    (5) Conduct directed fishing for flatfish as defined in Sec.  679.2 
with a vessel required to be federally permitted in any reporting area 
of the Bering Sea subarea as described in Figure 1 to this part without 
meeting the requirements for modified nonpelagic trawl gear specified 
in Sec.  679.24(f).
* * * * *

0
4. In Sec.  679.22, add paragraph (a)(21) to read as follows:


Sec.  679.22  Closures.

    (a) * * *
    (21) Modified Gear Trawl Zone. No vessel required to be federally 
permitted may fish with nonpelagic trawl gear in the Modified Gear 
Trawl Zone specified at Table 51 to this part, except for federally 
permitted vessels that are directed fishing for groundfish using 
modified nonpelagic trawl gear that meets the standards at Sec.  
679.24(f).
* * * * *

0
5. In Sec.  679.24, add paragraph (f) to read as follows:


Sec.  679.24  Gear limitations.

* * * * *
    (f) Modified nonpelagic trawl gear. Nonpelagic trawl gear modified 
as shown in Figure 26 to this part must be used by any vessel required 
to be federally permitted and that is used to directed fish for 
flatfish, as defined in Sec.  679.2, in any reporting areas of the BS 
or directed fish for groundfish with nonpelagic trawl gear in the 
Modified Gear Trawl Zone specified in Table 51 to this part. Nonpelagic 
trawl gear used by these vessels must meet the following standards.
    (1) Elevated section minimum clearance. Except as provided for in 
paragraph (f)(3)(iii) of this section, elevating devices must be 
installed on the elevated section shown in Figure 26 to this part to 
raise the elevated section at least 2.5 inches (6.4 cm), as measured 
adjacent to the elevating device contacting a hard, flat surface that 
is parallel to the elevated section, regardless of the elevating device 
orientation, and measured between the surface and the widest part of 
the line material. Elevating devices must be installed on each end of 
the elevated section, as shown in Figure 26 to this part. Measuring 
locations to determine compliance with this standard are shown in 
Figure 25 to this part.
    (2) Elevating device spacing. Elevating devices must be secured 
along the entire length of the elevated section shown in Figure 26 to 
this part and spaced no less than 30 feet (9.1 m) apart; and either
    (i) If the elevating devices raise the elevated section shown in 
Figure 26 to this part 3.5 inches (8.9 cm) or less, the space between 
elevating devices must be no more than 65 feet (19.8 m); or
    (ii) If the elevating devices raise the elevated section shown 
Figure 26 to this part more than 3.5 inches (8.9 cm), the space between 
elevating devices must be no more than 95 feet (29 m).
    (3) Clearance measurements and line cross sections. (i) The largest 
cross section of the line of the elevated section shown in Figure 26 to 
this part between elevating devices shall not be greater than the cross 
section of the material at the nearest measurement location, as 
selected based on the examples shown in Figure 25 to this part. The 
material at the measurement location must be--
    (A) The same material as the line between elevating devices, as 
shown in Figures 25a and 25d to this part;
    (B) Different material than the line between elevating devices and 
used to support the elevating device at a connection between line 
sections (e.g., on a metal spindle, on a chain), as shown in Figure 25b 
to this part; or
    (C) Disks of a smaller cross section than the elevating device, 
which are strung continuously on a line between elevating devices, as 
shown in Figure 25c to this part.
    (ii) Portions of the line between elevating devices that are 
braided or doubled for section terminations or used for line joining 
devices are not required to be a smaller cross section than the 
measuring location.
    (iii) Required minimum clearance for supporting material of a 
larger cross section than the cross section of the line material. When 
the material supporting the elevating device has a larger cross section 
than the largest cross section of the line between elevating devices, 
except as provided for in paragraph (f)(3)(ii) of this section, based 
on measurements taken in locations shown in Figure 27 to this part, the 
required minimum clearance shall be as follows:
    (A) For elevating devices spaced 30 feet (9.1 m) to 65 feet (19.8 
m), the required minimum clearance is >= [2.5 inches - ((support 
material cross section - line material cross section)/2)], or
    (B) For elevating devices spaced greater than 65 feet (19.8 m) to 
95 feet (29 m), the required minimum clearance is >= [3.5 inches -
((support material cross section - line material cross section)/2)].

0
6. Figure 17 to part 679 is revised to read as follows:
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[[Page 61649]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.048


0
7. Figure 25 to part 679 is added to read as follows:

[[Page 61650]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.049


0
8. Figure 26 to part 679 is added to read as follows:

[[Page 61651]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.050

0
9. Figure 27 to part 679 is added to read as follows:

[[Page 61652]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.051

BILLING CODE 3510-22-C

    Note: The location for measurement of maximum line material 
cross section does not include any devices or braided or doubled 
material used for section termination.


0
10. Table 43 to part 679 is revised to read as follows:

         Table 43 to Part 679--Northern Bering Sea Research Area
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                 Longitude                 Latitude
------------------------------------------------------------------------
168............................     7.41 W  65...............   *37.91 N
165............................     1.54 W  60...............    45.54 N
167............................    59.98 W  60...............    45.55 N
169............................    00.00 W  60...............    35.50 N
169............................    00.00 W  61...............    00.00 N
171............................    45.00 W  61...............    00.00 N
171............................    45.00 W  60...............    54.00 N
174............................     1.24 W  60...............    54.00 N
176............................    13.51 W  62...............     6.56 N
172............................    24.00 W  63...............    57.03 N
172............................    24.00 W  62...............    42.00 N
168............................    24.00 W  62...............    42.00 N
168............................    24.00 W  64...............     0.00 N
172............................    17.42 W  64...............     0.01 N
168............................    58.62 W  65...............    30.00 N
168............................    58.62 W  65...............  **49.81 N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
  listed by straight lines except as noted by * below. The last set of
  coordinates for the area is connected to the first set of coordinates
  for the area by a straight line. The projected coordinate system is
  North American Datum 1983, Albers.
* This boundary extends in a clockwise direction from this set of
  geographic coordinates along the shoreline at mean lower-low tide line
  to the next set of coordinates.
** Intersection of the 1990 United States/Russia maritime boundary line
  and a line from Cape Prince of Wales to Cape Dezhneva (Russia) that
  defines the boundary between the Chukchi and Bering Seas, Area 400 and
  Area 514, respectively.


0
11. Table 46 to part 679 is revised to read as follows:

   Table 46 to Part 679--St. Matthew Island Habitat Conservation Area
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                 Longitude                 Latitude
------------------------------------------------------------------------
171............................    45.00 W  60...............    54.00 N
171............................    45.00 W  60...............     6.15 N
174............................     0.50 W  59...............    42.26 N
174............................    24.98 W  60...............     9.98 N
174............................     1.24 W  60...............    54.00 N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
  listed by straight lines. The last set of coordinates for the area is
  connected to the first set of coordinates for the area by a straight
  line. The projected coordinate system is North American Datum 1983,
  Albers.


0
12. Tables 48 through 50 to part 679 are added and reserved.

0
13. Table 51 to part 679 is added to read as follows:

             Table 51 to Part 679--Modified Gear Trawl Zone
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                 Longitude                 Latitude
------------------------------------------------------------------------
171............................    45.00 W  61...............    00.00 N
169............................    00.00 W  61...............    00.00 N
169............................    00.00 W  60...............    35.48 N
171............................    45.00 W  60...............    06.15 N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
  listed by straight lines. The last set of coordinates for the area is
  connected to the first set of coordinates for the area by a straight
  line. The projected coordinate system is North American Datum 1983,
  Albers.

[FR Doc. 2010-25211 Filed 10-5-10; 8:45 am]
BILLING CODE 3510-22-P