3446 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations 

electronic filing system (e.g., ULS) will 

be forfeited (see §§ 1.934 and 1.1111.) 

* * * * * 

■ 7. In newly re-designated § 1.1114, 

add and reserve paragraph (b)(1)(ii). 

■ 8. In newly re-designated § 1.1115, 

revise paragraph (a)(1) to read as 

follows: 

§ 1.1115 Return or refund of charges. 

(a) * * * 

(1) When no fee is required for the 

application or other filing. (see 

§ 1.1111). 

* * * * * 

■ 9. In newly re-designated § 1.1116, 

revise the introductory text to read as 

follows: 

§ 1.1116 General exemptions to charges. 

No fee established in §§ 1.1102 

through 1.1109 of this subpart, unless 

otherwise qualified herein, shall be 

required for: 

* * * * * 

■ 10. In newly re-designated § 1.1117, 

revise paragraph (a) introductory text to 

read as follows: 

§ 1.1117 Adjustments to charges. 

(a) The Schedule of Charges 

established by §§ 1.1102 through 1.1109 

of this subpart shall be reviewed by the 

Commission on October 1, 1999 and 

every two years thereafter, and 

adjustments made, if any, will be 

reflected in the next publication of 

Schedule of Charges. 

* * * * * 

■ 11. In newly re-designated § 1.1118, 

revise paragraph (a) introductory text 

and paragraph (d) to read as follows: 

§ 1.1118 Penalty for late or insufficient 

payments. 

(a) Filings subject to fees and 

accompanied by defective fee 

submissions will be dismissed under 

§ 1.1111 (d) of this subpart where the 

defect is discovered by the 

Commission’s staff within 30 calendar 

days from the receipt of the application 

or filing by the Commission. 

* * * * * 

(d) Failure to submit fees, following 

notice to the applicant of failure to 

submit the required fee, is subject to 

collection of the fee, including interest 

thereon, any associated penalties, and 

the full cost of collection to the Federal 

government pursuant to the provisions 

of the Debt Collection Improvement Act 

of 1996 (DCIA), Public Law 104–134, 

110 Stat. 1321, 1358 (Apr. 26, 1996), 

codified at 31 U.S.C. 3711 et seq. See 47 

CFR 1.1901 through 1.1952. The debt 

collection processes described above 

may proceed concurrently with any 

other sanction in this paragraph. 

■ 12. In newly re-designed § 1.1119, 

revise paragraphs (c) introductory text 

and (e) to read as follows: 

§ 1.1119 Petitions and applications for 

review. 

* * * * * 

(c) Petitions for waivers, deferrals, fee 

determinations, reconsiderations and 

applications for review will be acted 

upon by the Managing Director with the 

concurrence of the General Counsel. All 

such filings within the scope of the fee 

rules shall be filed as a separate 

pleading and clearly marked to the 

attention of the Managing Director. Any 

such request that is not filed as a 

separate pleading will not be considered 

by the Commission. Requests for 

deferral of a fee payment for financial 

hardship must be accompanied by 

supporting documentation. 

* * * * * 

(e) Applicants seeking waivers must 

submit the request for waiver with the 

application or filing, required fee and 

FCC Form 159, or a request for deferral. 

A petition for waiver and/or deferral of 

payment must be submitted to the 

Office of the Managing Director as 

specified in paragraph (c) of this 

section. Waiver requests that do not 

include these materials will be 

dismissed in accordance with § 1.1111 

of this subpart. Submitted fees will be 

returned if a waiver is granted. The 

Commission will not be responsible for 

delays in acting upon these requests. 

* * * * * 

■ 13. In newly re-designated § 1.1120, 

revise paragraph (a) to read as follows: 

§ 1.1120 Error claims. 

(a) Applicants who wish to challenge 

a staff determination of an insufficient 

fee or delinquent debt may do so in 

writing. A challenge to a determination 

that a party is delinquent in paying the 

full application fee must be 

accompanied by suitable proof that the 

fee had been paid or waived (or deferred 

from payment during the period in 

question), or by the required application 

payment and any assessment penalty 

payment (see § 1.1118) of this subpart). 

Failure to comply with these procedures 

will result in dismissal of the challenge. 

These claims should be addressed to the 

Federal Communications Commission, 

Attention: Financial Operations, 445 

12th St., SW., Washington, DC 20554 or 

e-mailed to ARINQUIRIES@fcc.gov. 

* * * * * 

■ 14. In newly re-designated § 1.1121, 

revise paragraph (b) to read as follows: 

§ 1.1121 Billing procedures. 

* * * * * 

(b) In these cases, the appropriate fee 

will be determined by the Commission 

and the filer will be billed for that fee. 

The bill will set forth the amount to be 

paid, the date on which payment is due, 

and the address to which the payment 

should be submitted. See also § 1.1113 

of this subpart. 

[FR Doc. E9–1137 Filed 1–16–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080721859–81514–02] 

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: Final rule. 

SUMMARY: NMFS issues 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: Effective February 20, 2009. 

ADDRESSES: Copies of the 

Environmental Assessment/Regulatory 

Impact Review/Final Regulatory 

Flexibility Analysis (EA/RIR/FRFA) and 

the Initial Regulatory Flexibility 

Analysis (IRFA) prepared for this action 

may be obtained from the Alaska Region 

website at http:// 

alaskafisheries.noaa.gov. Printed copies 

can be obtained from the Alaska Region 

NMFS, P.O. Box 21668, Juneau, AK 

99802, Attn: Ellen Sebastian. 

FOR FURTHER INFORMATION CONTACT: Ben 

Muse, 907–586–7234. 

SUPPLEMENTARY INFORMATION: 

Groundfish fisheries in the Gulf of 


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Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations 3447 

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 

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, 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 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. 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 

in the Cape Ommaney area. 

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. Although this offsets a large part 

of the vessel owner’s costs, the 

reimbursement is still a social cost. 

Annual maintenance and operation 

costs are estimated at $630. A full 


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3448 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations 

discussion of the costs of VMS is 

provided in the RIR for this 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 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 action will not exempt 

vessels using dinglebar gear for other 

fisheries from VMS requirements. 

Likewise, this action will not exempt 

vessels fishing for lingcod with other 

gear types from the VMS requirement. 

This action exempts 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. 

A proposed rule for this action was 

published October 3, 2008 (73 FR 

57585), and the comment period ended 

November 3, 2008. No comments were 

received. No changes were made to the 

final rule from the proposed rule. 

Classification 

Pursuant to sections 304(b)(1)(A) and 

305(d) of the Magnuson–Stevens Act, 

the NMFS Assistant Administrator has 

determined that this final rule is 

consistent with the FMP, other 

provisions of the Magnuson–Stevens 

Act, and other applicable law. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

NMFS prepared a FRFA as required 

by section 604 of the Regulatory 

Flexibility Act. The FRFA describes the 

economic impact this final 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 summary of the 

analysis follows. 

NMFS prepared an Initial Regulatory 

Flexibility Analysis (IRFA) to 

accompany the proposed rule. The 

proposed rule described the IRFA. 

Copies of the IRFA and the FRFA are 

available from NMFS (see ADDRESSES). 

No comments were received on the 

IRFA or the economic effects of the 

proposed rule. 

The objective of this 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 exclusive 

economic zone off Alaska. 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 rule. 

No federal rules that duplicate, overlap, 

or conflict with the action were 

identified in the analysis. 

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. 

The preamble to this final rule serves 

as the small entity compliance guide. 

This action does not require any 

additional compliance from small 

entities that is not described in the 

preamble. Copies of this final rule are 

available from NMFS (see ADDRESSES). 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries. 

Dated: January 13, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set out in the 

preamble, NMFS amends 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. E9–1119 Filed 1–16–09; 8:45 am] 

BILLING CODE 3510–22–S 


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