E7-11633. 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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues this proposed rule to correct certain provisions of a June 28, 2006, essential fish habitat (EFH) rule for Alaska fisheries. This proposed rule would clarify that portions of EFH management areas in the vicinity of the Aleutian Islands are located in State of Alaska waters. This proposed action also would apply EFH vessel monitoring system (VMS) and closure requirements to federally permitted vessels operating in State of Alaska waters adjacent to the Gulf of Alaska (GOA) and Aleutian Islands subarea. This action is necessary to ensure federally permitted vessels operating in State of Alaska waters comply with EFH protection measures.

DATES:

Written comments must be received by July 19, 2007.

ADDRESSES:

Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Records Officer. Comments may be submitted by:

• Mail: P.O. Box 21668, Juneau, AK 99802;
• Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK;
• Fax: [phone];
• E-mail: [e-mail]. Include in the subject line the following document identifier: “VMS PR.” E-mail comments, with or without attachments, are limited to 5 megabytes; or
• Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for submitting comments.

Copies of the maps of EFH and habitat areas of particular concern (HAPC) management areas, the Environmental Impact Statement (EIS) for EFH Identification and Conservation, the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for HAPCs and the RIR/IRFA for this action may be obtained from the mailing or street address stated above or from the Alaska Region NMFS website at http://www.fakr.noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the NMFS Alaska Region and by e-mail to [e-mail], or fax to [phone].

FOR FURTHER INFORMATION CONTACT:

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

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.

Background

Section 303(a)(7) of the Magnuson-Stevens Act requires that each FMP describe and identify EFH, minimize to the extent practicable the adverse effects of fishing on EFH, and identify other measures to promote the conservation and enhancement of EFH. The Secretary of Commerce, acting through NMFS, approved the most recent EFH amendments to the FMPs on May 3, 2006. These were Amendments 78 and 65 to the FMP for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI), Amendments 73 and 65 to the FMP for Groundfish of the Gulf of Alaska (GOA), Amendments 16 and 12 to the FMP for Bering Sea/Aleutian Islands King and Tanner Crabs, Amendments 7 and 9 to the FMP for the Scallop Fishery off Alaska, and Amendments 7 and 8 to the FMP for Salmon Fisheries in the Exclusive Economic Zone off the Coast of Alaska. These amendments revised the FMPs by identifying and describing EFH and designating HAPC, and included measures to minimize to the extent practicable potential adverse effects of fishing on EFH.

On June 28, 2006, NMFS issued a final rule implementing the EFH amendments (71 FR 36694). Additional background information regarding the EFH FMP and regulatory amendments is in the March 22, 2006, proposed rule (71 FR 14470) and in the EIS and EA/RIR/IRFA for HAPCs (see ADDRESSES).

Protection Area Definitions

The June 28, 2006, EFH rule contains definitions for the Aleutian Islands Habitat Conservation Area (AIHCA) and the Aleutian Islands Coral Habitat Protection Areas (AICHPA) and are described by coordinates listed in Tables 23 and 24 to 50 CFR part 679. Each table includes coordinates for locations within State of Alaska (State) waters, as intended by the Council and described in the EFH FMP amendments. The current regulatory definitions for these protection areas conflict with the FMP amendments and Tables 23 and 24 by describing the protection areas as part of the Aleutian Islands subarea. The Aleutian Islands subarea is limited to waters of the EEZ, which does not include State waters (§ 679.2).

To ensure that the definitions are consistent with the Council's intent, the FMP amendments, and Tables 23 and 24, § 679.2 would be revised to define the protection areas as located in reporting areas of the Aleutian Islands, including adjacent State of Alaska waters. This revision would ensure that the AIHCA and AICHPA apply to federally permitted vessels operating in the EEZ and in State waters.

VMS Requirements

The June 28, 2006, EFH rule requires 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 (§ 679.28(f)(6)). For the EFH rule, the Council intended that the VMS requirements 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 activities in or near the EFH protection 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 and the Council's intent was to build on existing VMS requirements, the EFH protection measures' VMS requirements also should apply in State waters.

Section 679.28(f)(6)(ii) and (iii) identify the applicable areas for VMS as the Aleutian Islands subarea and the GOA. Under § 679.2, this description does not include State waters. This proposed rule would revise these paragraphs by requiring VMS operation in reporting areas of the Aleutian Islands subarea and the GOA, including adjacent State waters. This correction would ensure VMS operation for federally permitted vessels operating in State or Federal waters of the Aleutian Islands subarea for all gear types and in the GOA or adjacent State waters when mobile bottom contact gear is onboard. This correction would facilitate monitoring of vessel activities near EFH protection areas.

Classification

Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for the purposes of Executive Order (E. O.)12866.

This proposed rule contains no federalism implications under 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.

NMFS prepared an IRFA for this action, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed 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. A copy of this analysis is available from NMFS (see ADDRESSES).

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 mobile bottom contact vessels 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. The cost of this is estimated to be $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 subject to the requirement. Moreover, they would be required to notify NOAA Office of Law Enforcement (OLE) that their VMS unit was active before it was used for fishing activity. They would be required to notify NOAA OLE 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 the proposed action.

An IRFA must describe any significant alternatives to the proposed rule that accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize any significant economic impact of the proposed 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 2.6 of the IRFA for this action, 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 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. There are no other identifiable alternatives that would accomplish this objective; and no other alternatives were identified, considered, and rejected.

This proposed 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 this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to [e-mail], or fax to [phone].

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: June 11, 2007.

Samuel D. Rauch III,

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

For reasons set out in the preamble, NMFS proposes to amend 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.; and Pub. L. 108 199, 118 Stat. 110.

2. In § 679.2, revise the definitions for “Aleutian Islands Coral Habitat Protection Areas” and “Aleutian Islands Habitat Conservation Area,” to read as follows:

§ 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.

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

§ 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

* * * * *