08-707. Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Scallop, and Salmon Fisheries of the Bering Sea and Aleutian Islands Management Area

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule that implements Amendment 88 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. This amendment revises the Aleutian Islands Habitat Conservation Area (AIHCA) boundary to allow nonpelagic trawling in an area historically fished and to prohibit nonpelagic trawling in an area of known coral and sponge occurrence. This action is necessary to ensure the AIHCA protects areas of coral and sponge habitat from the potential effects of nonpelagic trawling and allows nonpelagic trawling in areas historically fished and with unknown occurrence of corals and sponges.

DATES:

Effective March 20, 2008.

ADDRESSES:

Copies of the map of the AIHCA and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and Final Regulatory Flexibility Analysis for this action may be obtained from NMFS Alaska Region, P. O. Box 21668, Juneau, AK 99802 or from the Alaska Region NMFS website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Melanie Brown, 907-586-7228 or email at [e-mail].

SUPPLEMENTARY INFORMATION:

The groundfish fisheries in the Bering Sea and Aleutian Islands Management Area (BSAI) are managed under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (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 parts 679 and 680. General regulations governing U.S. fisheries also appear at 50 CFR part 600. The groundfish fishery restrictions for the AIHCA described in the FMP are implemented by regulations at 50 CFR part 679.

Background

In 2006, NMFS implemented essential fish habitat (EFH) protection measures for the Aleutian Islands subarea and adjacent State of Alaska (State) waters (71 FR 36694, June 28, 2006, and corrected at 72 FR 63500, November 9, 2007). The background on the development of the EFH protection measures is available in the proposed rule for that action (71 FR 14470, March 22, 2006). The revisions to the AIHCA required amendments to the groundfish, crab, scallop, and salmon fishery management plans for the Alaska fisheries. These amendments (88, 23, 12, and 9, respectively) were described in the notice of availability published in the Federal Register (72 FR 63871, November 13, 2007), which provides the details of these amendments. Only Amendment 88 to the groundfish FMP requires regulatory changes, which are implemented by this final rule. The Secretary of Commerce approved all of the fishery management plan amendments for the AIHCA revisions on February 4, 2008.

The EFH protection measures prohibited nonpelagic trawling within the AIHCA. The AIHCA is the Aleutian Islands subarea and adjacent State waters except for specific sites that remain open to nonpelagic trawling. Locations open to nonpelagic trawling in the AIHCA include areas without known occurrences of coral and sponge habitat and where nonpelagic trawling previously occurred. A map of the AIHCA is available from the NMFS Alaska Region website at http://www.fakr.noaa.gov/​habitat/​efh/​aihca.pdf.

In March 2007, the Council recommended two revisions to the boundaries of the AIHCA. These revisions were developed in response to information provided by the nonpelagic trawl industry regarding correct fishing locations and additional information on coral and sponge occurrence in the Aleutian Islands. The two revisions change the AIHCA boundaries near Agattu Island and Buldir Island. A figure showing the revisions is in the proposed rule for this action (72 FR 65539, November 21, 2007) and in the EA/RIR/IRFA (see ADDRESSES). The final rule prohibits nonpelagic trawling in an area west of Buldir Island and permits nonpelagic trawling in an area north of Agattu Island.

The area near Agattu Island is opened to nonpelagic trawling because no known occurrence of coral or sponge habitat exists in this area, and nonpelagic trawling historically has occurred in this location. The area near Buldir Island is closed to nonpelagic trawling because NMFS surveys show corals and sponges occur in this area. Anecdotal information from the fishing industry also indicated that fishermen using nonpelagic trawl gear avoid the Buldir Island closure area to protect fishing gear from damage by bottom structures. Details of the fishing history and biological features of these sites are available in the EA/RIR/IRFA for this action (see ADDRESSES).

The final rule revises the coordinates for the boundaries of the AIHCA near Agattu Island and Buldir Island. Table 24 to 50 CFR part 679 contains coordinates for sites where nonpelagic trawling is permitted in the AIHCA. Table 24 is revised to specify the new coordinates near Agattu and Buldir Islands that are necessary to adjust the boundaries of the AIHCA. These new boundaries will allow for nonpelagic trawling near Agattu Island and prohibit nonpelagic trawling near Buldir Island. The final rule modifies the coordinates for the Buldir and Semichi areas listed on Table 24. The Semichi area includes the waters near Agattu Island opened to nonpelagic trawling. Because the final rule divides the Buldir Island open area into two areas to allow for the closure area, the final rule adds the West Buldir site to Table 24. The final rule also removes the site number for each site because the site number serves no additional purpose in the identification of the site beyond that provided by the site name. The final rule also removes from Table 24 two redundant sets of coordinates for the Buldir site because they are not necessary to accurately describe the boundaries.

Comments and Responses

NMFS received one comment from an individual on the proposed rule (72 FR 65539, November 21, 2007) and no comments on the notice of availability for the fishery management plan amendments. No changes were made in the final rule from the proposed rule. The following summarizes and responds to the comment.

Comment: Ban all nonpelagic trawling in both areas. Trawling turns the ocean bottom into desert wasteland, and no recovery is possible for 40 years. No reason exists to allow trawling.

Response: Trawling can have various effects on bottom habitat depending on the type of trawl gear and the bottom features where fishing is occurring. Recovery times for an area can vary depending on the type of bottom habitat impacted. More information about the impacts of trawling on bottom habitat is available in the EA/RIR/IRFA for this action (see ADDRESSES). The decision to open and close areas in the AIHCA is based on the best scientific information available. NMFS has determined that the Buldir Island closure in this final rule is appropriate based on the occurrence of corals and sponges that may be impacted by nonpelagic trawling. The opening of waters near Agattu Island also is appropriate because of no known impact of nonpelagic trawling on corals and sponges. Trawl gear effectively harvests a number of target species in the groundfish fisheries. The Council and NMFS have implemented the EFH protection measures to reduce the potential impact of this gear on bottom habitat in the Aleutian Islands subarea and in the Gulf of Alaska.

In June 2007, the Council also recommended Amendment 89 to the FMP to implement bottom habitat protection measures for the Bering Sea subarea. This amendment is intended to address the potential effects of nonpelagic trawling on bottom habitat in the Bering Sea. More information regarding Amendment 89 is available from the Council's website at http://www.fakr.noaa.gov/​npfmc/​current_​issues/​BSHC/​BSHC.htm. If approved, this amendment is scheduled for implementation in late 2008.

Classification

The Administrator, Alaska Region, NMFS, determined that Amendments 88, 23, 12, and 9 and the implementing final rule for Amendment 88 are necessary for the conservation and management of the groundfish, salmon, scallop, and crab fisheries and that they are consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for the purposes of Executive Order 12866.

NMFS prepared a final regulatory flexibility analysis (FRFA), as required by section 604 of the Regulatory Flexibility Act (RFA). The FRFA describes the economic impact of this final rule on small entities. Descriptions of the action, the reasons it is under consideration, and its objectives and legal basis, are included earlier in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to accompany the proposed rule for this action. This was described in the classification section to the proposed rule and the public was notified how to obtain a copy. The public comment period ended on January 7, 2008. No comments were received on the IRFA or on the economic impacts of the rule.

Vessels were considered small, according to the Small Business Administration (SBA) 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. Ten vessels that qualify as small entities under SBA criteria are directly regulated by this action. Six of these vessels are catcher vessels, and four are catcher/processors. Average gross revenues in 2005 were about $1,400,000 for the catcher vessels and about $2,200,000 for the catcher/processors.

This regulation does not impose new recordkeeping and reporting requirements on the regulated small entities.

The Council considered one alternative (Alternative 1, no action) to the preferred alternative for this action. The boundaries of the opened and closed areas were based on information provided by the fishing industry regarding historical fishing activity and on NMFS survey information regarding coral and sponge location. This is the method of boundary identification used in the original EFH rule for the AIHCA. Because this is a correction to that rule, the identification of boundaries for the opened and closed areas for this action is based on the same method. No other alternatives were identified because the action is an adjustment to the AIHCA boundaries based on corrected information from the fishing industry and NMFS survey information. No other boundaries of the opened or closed areas for the AIHCA were considered because no additional information was available to support other boundary alternatives.

The status quo condition of the fishery should be based on the 2006 fishery because of the recent implementation of the EFH protection measures (71 FR 36694, June 28, 2006), but 2006 data were not yet available for the analysis. Therefore, 2001 through 2005 data were used as a proxy for status quo. Vessel monitoring system (VMS) and NMFS inseason catch data were used to analyze the catches in the Agattu and Buldir Islands opened and closed areas. These types of data allowed for determining the fine scale location of fishing activities in combination with the estimated harvest from the opened and closed areas.

The no action alternative would not meet the objectives of this action. The status quo alternative would allow fishing in an area of known coral and sponge occurrence and would prohibit fishing in an area that had historical fishing activity. This would not meet the intent of the Council for the AIHCA and does not meet the objectives of the action to provide continued fishing where historical fishing activity has occurred and to prohibit fishing where coral and sponges occur. The opening of the area near Agattu provides mitigation for possible impacts associated with the closure of the area near Buldir. The FRFA did not identify adverse impacts to small entities from the action alternative.

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 http://www.fakr.noaa.gov/​habitat/​efh.htm. Copies of this final rule are available upon request from the NMFS, Alaska Regional Office (see ADDRESSES).

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

Dated: February 11, 2008.

Samuel D. Rauch III

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

1. The authority citation for part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447.

2. Revise Table 24 to part 679 to read as follows: