[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3446-3448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1119]


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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.

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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

[[Page 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

[[Page 3448]]

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 Sec. Sec.  679.7(a)(22) and 679.28(f)(6)(iii) by 
revising the text in these paragraphs to specify that the VMS 
requirement only applies to two types of mobile bottom contact gear, 
non-pelagic trawl gear and dredge gear, not dinglebar gear. This change 
would not remove dinglebar gear from the definition of mobile bottom 
contact gear.
    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.

0
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

0
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.

0
2. In Sec.  679.7, paragraph (a)(22) is revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (a) * * *
    (22) VMS for non-pelagic trawl and dredge gear vessels in the GOA. 
Operate a federally permitted vessel in the GOA with non-pelagic trawl 
or dredge gear onboard without an operable VMS and without complying 
with the requirements at Sec.  679.28.
* * * * *

0
3. In Sec.  679.28, paragraph (f)(6)(iii) is revised to read as 
follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (f) * * *
    (6) * * *
    (iii) You operate a vessel required to be federally permitted with 
non-pelagic trawl or dredge gear onboard in reporting areas located in 
the GOA or operate a federally permitted vessel with non-pelagic trawl 
or dredge gear onboard in adjacent State waters; or
* * * * *
[FR Doc. E9-1119 Filed 1-16-09; 8:45 am]
BILLING CODE 3510-22-S