Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska, Essential Fish Habitat Rule Correction, 63500-63502 [E7-22050]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 217 (Friday, November 9, 2007)]
[Rules and Regulations]
[Pages 63500-63502]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-22050]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0612242862-7534-03; I.D. 013006I]
RIN 0648-AU93


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, 
Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian 
Islands Management Area and Gulf of Alaska, Essential Fish Habitat Rule 
Correction

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to correct regulations implementing 
essential fish habitat (EFH) provisions for Alaska fisheries. This 
final rule clarifies that portions of EFH management areas in the 
vicinity of the Aleutian Islands are located in State of Alaska (State) 
waters. This rule also applies EFH vessel monitoring system (VMS) and 
closure requirements to federally permitted vessels operating in State 
waters adjacent to the Gulf of Alaska (GOA) and Aleutian Islands 
subarea. This action is necessary to ensure that federally permitted 
vessels operating in State waters comply with EFH protection measures.

DATES: Effective on December 10, 2007.

ADDRESSES: Copies of the maps of EFH and habitat areas of particular 
concern (HAPC) management areas, the Environmental Impact Statement for 
EFH Identification and Conservation (EFH EIS), the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) for HAPCs, the draft EA/RIR/IRFA for Bering Sea 
Habitat Conservation, and the Final Regulatory Flexibility Analysis 
(FRFA) for this action may be obtained from Alaska Region NMFS, P.O. 
Box 21668, Juneau, AK 99802, or from the Alaska Region NMFS website at 
https://www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the NMFS Alaska Region and by e-mail to 
David--Rostker@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or e-mail 
at melanie.brown@noaa.gov.

SUPPLEMENTARY INFORMATION: The groundfish, crab, scallop, and salmon 
fisheries in the exclusive economic zone (EEZ) off Alaska are managed 
under their respective fishery management plans (FMPs). The North 
Pacific Fishery Management Council (Council) prepared the FMPs under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. 
Regulations implementing the FMPs appear at 50 CFR parts 679 and 680. 
General regulations governing U.S. fisheries also appear at 50 CFR part 
600.
    The final rule for the EFH protection measures (71 FR 36694, June 
28, 2006) excluded State of Alaska waters under the EFH protection 
measures by not fully describing the areas where the EFH protection 
measures apply. This final rule corrects this error by fully describing 
waters where EFH protection measures apply.

Background

    Background on the EFH provisions of the FMPs and regulatory 
amendments is in the proposed rule for this action (72 FR 33732, June 
19, 2007). Several corrections to the EFH protection measures are 
necessary to ensure EFH protection measures in State waters apply to 
federally permitted vessels operating in these waters. These 
corrections are detailed below.

Protection Area Definitions

    Current regulations at Sec.  679.2 contain definitions for the 
Aleutian Islands Habitat Conservation Area (AIHCA) and the Aleutian 
Islands Coral Habitat Protection Areas (AICHPA), which are described by 
coordinates listed in Tables 23 and 24 to 50 CFR part 679. Each table 
includes coordinates for locations within State waters, as intended by 
the Council and described in the EFH FMP amendments. The current 
regulatory definitions for these management areas conflict with the FMP 
amendments and Tables 23 and 24 by describing the areas as part of the 
Aleutian Islands subarea. The Aleutian Islands subarea is limited to 
waters of the EEZ, which do not include State waters (Sec.  679.2).
    To ensure that the definitions are consistent with the Council's 
intent, the FMP amendments, and Tables 23 and 24, Sec.  679.2 is 
revised to define the AIHCA and AICHPA as located in reporting areas of 
the Aleutian Islands, including adjacent State waters. This revision 
ensures that the AIHCA and AICHPA management measures apply to 
federally permitted vessels operating in the EEZ and in State waters.

VMS Requirements

    Current regulations at Sec.  679.28(f)(6) require all federally 
permitted fishing vessels to operate a VMS when operating in the 
Aleutian Islands subarea or when operating in the GOA with mobile 
bottom contact gear onboard. The Council intended that the VMS 
requirements would apply to all federally permitted vessels operating 
in State or Federal waters. Specifically, the EFH rule should have 
required VMS operation for all federally permitted vessels operating in 
Federal waters of the Aleutian Islands subarea or adjacent State waters 
and operating with mobile bottom contact gear onboard in the GOA or 
adjacent State waters. This would ensure that activities in or near the 
EFH management areas could be easily monitored. As described above, the 
AIHCA and AICHPA include areas in State waters. The EFH protection 
areas in the GOA are not located in State waters, but some are near 
State waters. Because preexisting VMS requirements implemented to 
monitor Steller sea lion protection areas apply to federally permitted 
vessels in State waters (Sec.  679.28), and the Council's intent was to 
build on existing VMS requirements, the EFH protection measures' VMS 
requirements also should apply in State waters.
    Regulations at Sec.  679.28(f)(6)(ii) and (iii) identify the 
applicable areas for VMS as the Aleutian Islands subarea and the GOA. 
Under Sec.  679.2, the Aleutian Islands subarea and GOA definitions do 
not include State waters. This rule revises these paragraphs by 
requiring VMS operation in reporting areas of the Aleutian Islands 
subarea and the GOA, including adjacent State waters. This correction 
ensures that VMS operation is required for federally permitted vessels 
operating in Federal waters of the Aleutian Islands subarea or adjacent 
State waters for all gear types and in Federal waters of the GOA or 
adjacent State waters when mobile bottom contact gear is onboard. This 
correction improves monitoring of vessel activities near EFH management 
areas.

Comments and Responses

    NMFS received one letter on the proposed rule (72 FR 33732, June 
19, 2007) that contained two separate comments. The following 
summarizes and responds to these comments.
    Comment 1: We support the actions taken by NMFS and the Council to 
protect ocean habitat in Alaska and

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support the comprehensive use of VMS to manage ocean resources.
    Response: Support is noted.
    Comment 2: Monitoring of trawl activities within the EFH protection 
areas should extend to pollock trawling because pollock trawls are 
known to contact the sea floor and may negatively affect habitat in 
these areas. VMS should be required for all pollock trawl vessels and 
an annual summary of trawl activities should be produced to monitor the 
health of EFH protected areas and the effectiveness of the EFH 
protection measures.
    Response: The EFH EIS (see ADDRESSES) determined that, given the 
location and use of pelagic trawl gear in the Aleutian Islands subarea 
and GOA, pelagic trawl gear is not likely to affect sea floor habitats 
in the EFH protection areas. The EFH protection areas within the 
Aleutian Islands subarea and GOA are comprised of either very deep 
waters or rocky substrate that is avoided by fishers using pelagic 
trawl gear. The EFH EIS and the draft Bering Sea Habitat Conservation 
EA (see ADDRESSES) determined that pelagic trawl gear is likely to 
contact soft bottom substrate that is prevalent in the Bering Sea, but 
any effects on EFH for FMP managed species is minimal. Thus, the EFH 
protection measures were designed to ensure that pelagic trawl gear 
fisheries will not adversely impact protected habitat areas of the 
Aleutian Islands and GOA in a manner that is more than minimal or 
temporary.
    VMS monitoring is required for all federally permitted vessels 
fishing for pollock in the Bering Sea and Aleutian Islands management 
area and GOA and adjacent State waters (Sec.  679.7(a)(18)). NMFS 
currently has the ability to use VMS data to determine locations of 
pelagic trawling in and near EFH management areas and to provide this 
information to managers and scientists. No changes to the final rule 
from the proposed rule were made in response to this comment.

Classification

    The Administrator, Alaska Region, NMFS, determined that this final 
rule is necessary for the conservation and management of the 
groundfish, scallop, crab, and salmon 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 (E. O.) 12866.
    This final rule contains no federalism implications as that term is 
defined in E. O. 13132. Even though the requirements of this rule apply 
to federally permitted vessels in State waters, this rule does not 
supplant any State regulatory requirements.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the 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. A copy of the FRFA is available from NMFS (see ADDRESSES).
    The need for and objectives of this rule are detailed in the 
preamble. No significant issues were raised by the public comments in 
response to the IRFA during the public comment periods (June 19 through 
July 19, 2007 (72 FR 33732, June 19, 2007), and August 2 through 
September 4, 2007 (72 FR 42369, August 2, 2007)). No changes were made 
from the proposed rule to the final rule.
    The vessels that are directly regulated by the proposed action are 
those that are federally permitted and operate in State waters adjacent 
to the Aleutian Islands subarea or operate with mobile bottom contact 
fishing gear onboard in State waters adjacent to the GOA. Vessels were 
considered small, according to the Small Business Administration 
criteria, if they had estimated 2004 gross revenues less than or equal 
to $4 million, and were not known to be affiliated with other firms 
whose combined receipts exceeded $4 million.
    In the Aleutian Islands reporting areas, an estimated 88 federally 
permitted vessels are believed to have been operated by small entities 
during 2004. Forty-three of these appear to have fished within State 
waters of the Aleutian Islands during at least one month of the year. 
Thus, an estimated 43 vessels would be directly regulated by this 
action in the State waters adjacent to the Aleutian Islands subarea. 
These 43 vessels grossed, on average, about $964,000 from all 
fisheries, and an average of about $114,000 from their fishing within 
State waters, within the Aleutian Islands reporting areas.
    In the GOA, an estimated 60 federally permitted vessels using 
mobile bottom contact gear appear to have been operated by small 
entities during 2004. Twenty-seven of these appear to have fished with 
mobile bottom contact gear within State waters adjacent to the GOA 
during at least one month of the year. Thus, an estimated 27 vessels 
operating with mobile bottom contact onboard would be directly 
regulated by this action. These 27 vessels grossed, on average, about 
$660,000 from all fisheries, and an average of about $36,000 from their 
fishing with mobile bottom contact gear within State waters adjacent to 
the GOA.
    Based on these cost estimates, the calculated upper bounds for 
annual transmission and maintenance costs are $10,617 per year, or $247 
per small entity. Thus, average annual costs would be 0.03 percent of 
total annual revenues from all sources, and 0.2 percent of revenues 
from fishing within State waters adjacent to the Aleutian Islands 
subarea. In addition, an entity may need to acquire a VMS unit to 
comply with this regulation. A VMS unit is estimated to cost $2,174, 
although a portion of this cost is reimbursable by the Pacific States 
Marine Fisheries Commission (PSMFC). The analysis estimated that about 
$1,600 of the initial purchase price would be reimbursable.
    These cost estimates may be upper bounds for several reasons. For 
example, some of these vessels may already be subject to VMS 
regulations because of crab requirements imposed since 2004. Moreover, 
as noted above, vessels buying VMS to comply with this regulation are 
eligible for a reimbursement of a portion of the initial purchase price 
from the PSMFC. Some vessels may choose to avoid the VMS requirement by 
surrendering their federal permit during periods when they expect to 
operate only in State waters.
    Based on these statistics, estimates of the upper bound annual 
transmission and maintenance costs are $3,952 per year, or $146 per 
small entity. Thus, average annual costs would be 0.02 percent of total 
annual gross revenues from all sources, and 0.4 percent of gross 
revenues from fishing within State waters adjacent to the GOA. In 
addition, two small entities may be required to acquire VMS units to 
comply with this regulation. The total cost of this is estimated to be 
$4,348, or $2,174 per vessel, although the current reimbursement 
program would offset some of this cost. As discussed in the RIR, there 
are several reasons for believing that these costs are upper bound 
estimates.
    For purposes of the VMS requirement, a federally permitted vessel 
is one required to carry either a Federal fisheries permit or a Federal 
crab vessel permit. This action would add new reporting requirements 
for federally permitted vessels fishing in State waters adjacent to the 
Aleutian Islands subarea, or for federally permitted vessels with 
mobile bottom contact gear onboard while operating in State waters 
adjacent to the GOA. These fishing operations would be required to 
carry VMS units, and to report their locations every half hour while 
they were in fisheries

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subject to the requirement. They also would be required to notify NOAA 
Office of Law Enforcement (OLE) that their VMS unit was active before 
it was used for fishing activity, and in the event of a breakdown of 
the unit. Estimated costs are described above.
    There are no Federal rules that duplicate, overlap, or conflict 
with this action.
    An FRFA must describe any significant alternatives to the action 
that accomplish the stated objectives of the action, consistent with 
applicable statutes, and that would minimize any significant economic 
impact of the final rule on small entities. This action has only the 
status quo and the preferred alternative. The status quo does not meet 
the objectives of the action because the current regulations do not 
apply EFH closures and VMS requirements to certain federally permitted 
vessels operating in State waters. As noted in Section 3.2 of the FRFA 
for this action (see ADDRESSES), the objectives of this action are to 
(1) correct erroneous language contained in current regulations to 
better reflect the original intent of the Council and to ensure 
consistency with the FMP amendments and Tables 23 and 24 to 50 CFR part 
679, and (2) facilitate enforcement of EFH closure areas within State 
waters through the use of VMS equipment by federally permitted vessels 
operating in State waters adjacent to the Aleutian Islands subarea, and 
by federally permitted vessels operating with mobile bottom contact 
gear onboard in State waters adjacent to the GOA. In this way, the 
action provides for the protection of EFH management areas in State 
waters adjacent to the Aleutian Islands subarea and GOA, as was the 
Council's purpose in the original action.
    The purpose of this action is to correct or clarify regulations to 
make them reflect the original ``preferred alternative'' chosen by the 
Council and the Secretary of Commerce under the previous EFH action. 
The method of describing the application of EFH regulations to vessels 
operating in State waters is limited to the current method used for the 
application of other fishing regulations to vessels operating in State 
waters. No other methods of describing the application of fishing 
regulations to vessels operating in State waters are known, and the 
same method as currently used is preferred to provide consistency in 
the regulations. Therefore, no other identifiable alternatives exist 
that would accomplish this objective; and no other alternatives were 
identified, considered, and rejected.

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 website 
that provides easy access to details of this final rule, including 
links to the final rule, maps of closure areas, and frequently asked 
questions regarding EFH. The relevant information available on the 
website is the Small Entity Compliance Guide. The website address is 
https://www.fakr.noaa.gov/habitat/efh.htm. Copies of this final rule are 
available upon request from the NMFS, Alaska Regional Office (see 
ADDRESSES).
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under Control Number 0648-0445. Public reporting burden 
per response are estimated to average: 6 seconds for each VMS 
transmission, 12 minutes for VMS check-in form, 6 hours for VMS 
installation, and 4 hours for VMS annual maintenance. The response 
times include the time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection-of-information. Send comments regarding 
these burden estimates or any other aspect of this data collection, 
including suggestions for reducing the burden, to NMFS (see ADDRESSES) 
and by e-mail to David--Rostker@omb.eop.gov, or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection-of-information subject to the 
requirements of the PRA, unless that collection-of-information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: November 5, 2007.
William T. Hogarth
Assistant Administrator for Fisheries, 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.; 
and Pub. L. 108 199, 118 Stat. 110.

0
2. In Sec.  679.2, revise the definitions for ``Aleutian Islands Coral 
Habitat Protection Areas'' and ``Aleutian Islands Habitat Conservation 
Area,'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Aleutian Islands Coral Habitat Protection Areas means management 
areas established for the protection of certain coral garden areas in 
reporting areas of the Aleutian Islands subarea and adjacent State 
waters. See Table 23 to this part.
    Aleutian Islands Habitat Conservation Area means a management area 
established for the protection of fish habitat in reporting areas of 
the Aleutian Islands subarea and adjacent State waters. See Table 24 to 
this part.
* * * * *

0
3. In Sec.  679.28, paragraphs (f)(6)(ii) and (iii) are revised to read 
as follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (f) * * *
    (6) * * *
    (ii) You operate a vessel required to be federally permitted in 
reporting areas located in the Aleutian Islands subarea or operate a 
federally permitted vessel in adjacent State waters;
    (iii) You operate a vessel required to be federally permitted with 
mobile bottom contact gear onboard in reporting areas located in the 
GOA or operate a federally permitted vessel with mobile bottom contact 
gear onboard in adjacent State waters; or
* * * * *
[FR Doc. E7-22050 Filed 11-8-07; 8:45 am]
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