Fisheries of the Exclusive Economic Zone Off Alaska, Groundfish of the Gulf of Alaska, 3446-3448 [E9-1119]
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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.)
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■ 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).
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■ 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:
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■ 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.
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■ 11. In newly re-designated § 1.1118,
revise paragraph (a) introductory text
and paragraph (d) to read as follows:
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
review.
Petitions and applications for
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(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.
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(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.
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■ 13. In newly re-designated § 1.1120,
revise paragraph (a) to read as follows:
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§ 1.1118 Penalty for late or insufficient
payments.
§ 1.1120
(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.
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(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
(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.
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■ 14. In newly re-designated § 1.1121,
revise paragraph (b) to read as follows:
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§ 1.1121
Billing procedures.
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(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 https://
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
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.
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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
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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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Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations
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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).
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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
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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:
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§ 679.7
Prohibitions.
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(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.
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■ 3. In § 679.28, paragraph (f)(6)(iii) is
revised to read as follows:
§ 679.28 Equipment and operational
requirements.
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(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
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[FR Doc. E9–1119 Filed 1–16–09; 8:45 am]
BILLING CODE 3510–22–S
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]]>Agencies
[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3446-3448]
From the Federal Register Online via the Government Printing 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 https://
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
