[Federal Register Volume 73, Number 144 (Friday, July 25, 2008)]
[Rules and Regulations]
[Pages 43362-43373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17144]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 070917520-8831-03]
RIN 0648-AW06
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish
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 89 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP) to establish Bering Sea habitat
conservation measures. Amendment 89 prohibits nonpelagic trawling in
certain waters of the Bering Sea subarea to protect bottom habitat from
the potential adverse effects of nonpelagic trawling. Amendment 89 also
establishes the Northern Bering Sea Research Area for studying the
impacts of nonpelagic trawling on bottom habitat. This rule is
necessary to protect portions of the Bering Sea subarea bottom habitat
from the potential effects of nonpelagic trawling and to provide the
opportunity to further study the effects of nonpelagic trawling on
bottom habitat. This action is intended to promote the goals and
objectives of the Magnuson-Stevens Fishery Conservation and Management
Act, the FMP, and other applicable laws.
DATES: Effective August 25, 2008.
ADDRESSES: Copies of the FMP amendment, maps of the Bering Sea subarea
nonpelagic trawl closure areas and Northern Bering Sea Research Area,
and the Environmental Assessment/Regulatory Impact Review/Final
Regulatory Flexibility Analysis (EA/RIR/FRFA) 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.alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228.
SUPPLEMENTARY INFORMATION: The Bering Sea and Aleutian Islands
Management Area (BSAI) groundfish fisheries are managed under the 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.
Background
In June 2007, the Council recommended closing areas in the Bering
Sea subarea to nonpelagic trawling as a precautionary measure to
prevent the potential adverse effects of nonpelagic trawling on
portions of bottom habitat. These areas are (1) the Bering Sea Habitat
Conservation Area (BSHCA); (2) the St. Lawrence Island Habitat
Conservation Area; (3) the St. Matthew Island Habitat Conservation
Area; (4) the Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat
Conservation Area; and (5) the Northern Bering Sea Research Area
(NBSRA). These closed areas include locations that have not been
previously fished with nonpelagic trawl gear, nearshore bottom habitat
areas that support subsistence marine resources, blue king crab
habitat, and a research area for further study of the potential impacts
of nonpelagic trawling on bottom habitat. The closed areas that extend
into State of Alaska waters apply to federally permitted vessels
operating in State of Alaska waters.
Detailed background information for each of the closed areas is in
the preamble to the proposed rule (73 FR 12357, March 7, 2008). The
Council submitted Amendment 89 for review by the Secretary of Commerce,
and a notice of availability of the amendment was published in the
Federal Register on February 27, 2008 (73 FR 10415), with comments on
the amendment invited through April 28, 2008. The comments on the
proposed rule were invited through April 21, 2008. The FMP was approved
by the Secretary of Commerce on May 19, 2008.
Regulatory Amendments
This final rule adds definitions to Sec. 679.2 and new coordinate
tables and figures for the areas closed to nonpelagic trawling and the
research area. The definitions for the BSHCA; NBSRA; and Nunivak
Island, Etolin Strait, and Kuskokwim Bay Habitat Conservation Area
refer to Tables 42, 43, and 44, and Figures 16, 17, and 21 to part 679,
respectively, because of the complexity of the area boundaries. The
definitions for the St. Lawrence Island Habitat Conservation Area and
St. Matthew Island Habitat Conservation Area refer to Tables 45 and 46
to part 679 for the area boundaries; no figures are necessary due to
the simple shapes of these closures.
This final rule also adds Sec. 679.22(a)(16) through (20) to close
the BSHCA; St. Matthew Island Habitat Conservation Area; St. Lawrence
Island Habitat Conservation Area; Nunivak Island, Etolin Strait, and
Kuskokwim Bay Habitat Conservation Area; and NBSRA to nonpelagic
trawling.
Comments and Responses
NMFS received eight comments from individuals, the Council, and
groups on the notice of availability for Amendment 89 (73 FR 10415,
February 27, 2008). NMFS received 6,266
[[Page 43363]]
comments from individuals, the Council, and organizations on the
proposed rule (73 FR 12357, March 7, 2008). The majority of comments on
the proposed rule were form letters in support of the action. A large
number of those comments came from individuals located outside the
United States. No changes were made in the final rule from the proposed
rule. The following summarizes and responds to the 19 unique comments
received on the notice of availability for the FMP amendment and the
proposed rule.
Comment 1: Fishing quotas are too high and allow marine life to
starve and to be decimated. People in the higher economic classes
should reduce their consumption of fish to allow the seas to restock,
and their bounty to rebound.
Any fishing activity that competes for prey with sensitive,
endangered, or threatened species, or adversely modifies habitat that
supports these species should be prohibited. All trawling should be
prohibited because it decimates the sea floor for 50 years, is
environmentally destructive, and is an unsustainable practice for short
term profits. All nonpelagic trawling in the Bering Sea should be
prohibited because not doing so inadequately protects unique benthic
species and habitats and the sensitive, threatened, and endangered
species that depend on such habitat and that are increasingly imperiled
in the Bering Sea ecosystem. The proposed rule is grandfathering
nonpelagic trawling in all areas where such activity has already
occurred. The impacts in the current fishing locations should be
considered the baseline for protection of the Bering Sea, not the
ceiling. There are other fishing methods less invasive than nonpelagic
trawling that achieve higher productivity and protect our oceans,
making sure we will not overfish our resources. No one needs trawling.
Response: Fishing quotas are based on the best available science to
allow for sustainable harvest of target species and in consideration of
potential impacts on the marine ecosystem. For the Alaska groundfish
fisheries, no information indicates that any target species are being
overfished or that marine life is starved or decimated due to
groundfish fishing activities.
Trawling can have various effects on bottom habitat depending on
the type of trawl gear and the bottom features where fishing occurs.
Trawl gear can be either pelagic, which is used primarily in the water
column or nonpelagic, which is used on the bottom. Recovery times for a
trawled area can vary depending on the type of bottom habitat and
organisms impacted. More information about the impacts of trawling on
bottom habitat is available in the EA/RIR/FRFA for this action (see
ADDRESSES) and in the Environmental Impact Statement for Essential Fish
Habitat Identification and Conservation in Alaska, available from the
NMFS Alaska Region website at http://www.fakr.noaa.gov/habitat/seis/efheis.htm.
Nonpelagic trawling is the most effective method for harvesting
certain groundfish species in the Bering Sea. These species include
flatfish and other species which occur on or near the ocean bottom. A
complete ban on the use of trawl gear throughout the Bering Sea is not
supported by the best scientific information available. Selective
restrictions on the use of nonpelagic trawl gear where impacts are most
likely to be a concern are more appropriate. The Council and NMFS have
implemented restrictions on nonpelagic trawling to reduce the potential
impact of nonpelagic trawl gear on certain bottom habitat in the
Aleutian Islands subarea and in the Gulf of Alaska (71 FR 36694, June
28, 2006) and numerous nonpelagic trawl closures are already in effect
for the Bering Sea, which are further described in the EA/RIR/FRFA (see
ADDRESSES). This final rule implements restrictions on nonpelagic trawl
gear to protect certain bottom habitats in the Bering Sea subarea,
taking into consideration protection of habitat that supports
sensitive, endangered, and threatened species.
Comment 2: We support protecting the northern Bering Sea bottom
habitat from the destructive effects of nonpelagic trawling. The Bering
Sea habitat conservation measures would allow for the management of the
fisheries in a sustainable manner, provide for research on the
potential effects of nonpelagic trawling on bottom habitat, account for
the socioeconomic effects on fishery participants, and include
consideration of subsistence resource users. Religious and cultural
heritage combine to compel our protection of our natural resources. The
world depends on healthy oceans which are necessary for our life and
well-being. The Bering Sea bottom habitat is part of the marine
ecosystem that supports marine mammals, seabirds, and invertebrates,
which include important subsistence and commercial resources. It is
important to prevent bottom trawling from expanding into areas that
have not been previously bottom trawled, especially in consideration of
potential changes from global warming.
The changing global climate and increasing world population make it
important to address environmental threats that can be controlled, such
as habitat destruction. Bottom trawling is the most destructive form of
fishing on bottom habitat. Preservation of delicate bottom habitat
ecosystems is vital for the long-term survival of the fishing industry
and for species dependent on the marine resources supported by bottom
habitat. Grey whales, spectacled eiders, Pacific walruses, snow crabs,
and other species depend on the bottom habitat protected by this
action. Protection of the highly productive Bering Sea habitat may
provide a buffer for other high latitude marine environments that are
under stress. This action is a significant investment in a more stable
and hopeful future for our children and grandchildren of the world. It
sets a good example for our children to care for the planet and sends a
message that adults care about preserving the marine environment for
our children. This action is precautionary and the right thing to do.
Response: NMFS notes the commenter's support.
Comment 3: The Council submitted comments and recommends that the
preamble to the final rule describe the Council's intent regarding
future actions for nonpelagic trawl management in the Bering Sea. The
Council intends future adjustment to the NBSRA boundary with the
implementation of a modified gear requirement for the flatfish trawl
fishery that would minimize potential impacts on bottom habitat. This
potential future adjustment would open a portion of the NBSRA to
nonpelagic trawling. The adjustment to the NBSRA boundary to open this
area is shown in Figure 1.
BILLING CODE 3510-22-S
[[Page 43364]]
[GRAPHIC] [TIFF OMITTED] TR25JY08.008
Because the area to be opened with flatfish trawl gear modification
requirements may contain high concentrations of yellowfin sole and low
concentrations of other bycatch species, the flatfish industry has
identified this area as important to its fishery. In June 2008, the
Council received a report on the progress of developing modified gear
for flatfish fishing that will reduce the potential impacts on bottom
habitat. Analysis supporting the gear modification requirement and
adjustment to the NBSRA will supplement the existing EA/RIR/FRFA for
the Bering Sea Habitat conservation measures (see ADDRESSES).
Response: Any potential changes in the gear requirements for the
flatfish fishery would require analysis of the potential environmental
and socioeconomic impacts of the action. NMFS will work with the
Council to ensure the appropriate information is available to inform
the Council's final recommendation on gear modification. If the Council
recommends a modified gear requirement for the flatfish fishery and the
adjustment to the NBSRA shown in Figure 1, NMFS will include these
recommendations in future proposed rulemaking for this action. The
supporting analysis for this potential future action would include
information from the EA/RIR/FRFA for this final rule and any relevant
new information to inform the decision making.
Comment 4: To protect local communities' resources, we support
permanent closure of the area considered for opening in connection with
the implementation of modified gear for the flatfish fishery (Figure
1).
Response: This final rule implements the closure of the NBSRA which
includes the area considered for opening with the potential future
implementation of modified gear for the flatfish fishery (Figure 1).
The Council has expressed its intent to open this area to commercial
fishing with implementation of a modified gear requirement (Comment 3).
Any concerns about opening this area should be expressed to the
Council while the modified gear requirement recommendation is being
developed. The Council received a report on modified gear research at
its June 2008 meeting (73 FR 26964, May 12, 2008).
[[Page 43365]]
The Council recommended that staff develop an analysis of a gear
modification requirement, including consideration of opening the area
identified in Figure 1. The gear modification requirement and any
proposed adjustments to the NBSRA boundary will require analysis and
rulemaking to implement, including the public process provided by the
Council in developing its recommendations to NMFS.
Comment 5: The NBSRA is to be closed to commercial nonpelagic
trawling only during the development and implementation of the research
plan to study the nonpelagic trawling effects on bottom habitat. The
intent is to develop an adaptively managed commercial nonpelagic trawl
fishery in the area based on information from the nonpelagic trawling
effects research.
Response: This final rule closes the NBSRA to nonpelagic trawl
fishing unless conducted under an exempted fishing permit (EFP). Before
issuance, an EFP application for nonpelagic trawling in the NBSRA must
meet the requirements of the research plan adopted by the Council. When
the Council has received enough information from the research and EFP
data, it may develop an adaptive management plan and propose regulatory
amendments that would allow commercial nonpelagic trawling in the
NBSRA. Any changes to the fishing restrictions in the NBSRA would
require proposed and final rulemaking, and supporting analysis.
Comment 6: In June 2007, The Council recommended review schedules
for a boundary closure and research plan. The Council recommended that
in four years after the Council's Bering Sea Habitat conservation
measures recommendation (June 2007), the southern boundary of the NBSRA
be reviewed by the Council for possible adjustments based on a report
by the fishing industry and Alaska Village Council Presidents
workgroup. The Council also recommended at that time that the research
plan identifying effects of nonpelagic trawl gear on bottom habitat be
completed. The Council would review the plan within 24 months of
implementation of this final rule. Based on public comments received in
April 2008, the Council recommends changing the schedules for the
Council's review of the NBSRA boundary and the research plan to June
2011.
Response: NMFS supports the Council's recommended changes to the
review schedules for the NBSRA boundary and the research plan.
Comment 7: The development of the research plan for the NBSRA
should include tribal and other stakeholder input to address protection
of species and subsistence resources that depend on bottom habitat. Any
research in the NBSRA conducted with bottom trawl gear would be only
for the testing of protections for bottom habitat. These tests would be
conducted in a manner that would minimize damage to bottom habitat.
Response: NMFS agrees that input from all stakeholders is important
in the development of the NBSRA research plan. The development of the
plan will proceed through the Council decision process. That process
provides advance public notice and opportunity to provide testimony
before decisions are made. The research plan will be developed by the
Alaska Fisheries Science Center through the Council process. The actual
process for developing the plan is yet to be determined, but public
involvement will be an important component.
The Council recommended that the plan investigate the effects of
nonpelagic trawling on bottom habitat and consider and identify
protection measures for bottom habitat. Research data can inform the
further development and testing of protection measures. Some habitat
damage would be necessary to understand effects, but damage would be
limited to the extent needed for scientifically valid results.
Comment 8: Areas closed to nonpelagic trawl gear should not be
opened under exempted fishing permits (EFP) because many studies of
fishing impacts on bottom habitat already exist.
Response: Fishing impacts on bottom habitat research are specific
to the locations and the gear types tested. While research on the
effects of fishing on bottom habitat has been conducted worldwide, more
needs to be known about the habitat in the NBSRA before the results of
research elsewhere can be applied to the conditions occurring in the
NBSRA. By establishing the NBSRA, information gathered under EFPs would
be directly applicable to nonpelagic trawl fisheries management in the
Bering Sea in areas with similar features as the NBSRA. Because the
first contact of a nonpelagic trawl is likely to cause the largest
impact on bottom habitat, it is important to conduct bottom habitat
effects research in an area where nonpelagic trawling has not occurred.
The closure of the NBSRA and the research fishing planned in this area
should provide the information necessary to effectively manage
nonpelagic trawling in similar habitats of the Bering Sea.
Comment 9: Nonpelagic trawl closures also should include waters of
Bristol Bay to protect spawning habitat for yellowfin sole and to
protect subsistence resources. The potential effects of trawlers on
spawning habitat should be studied.
Response: Under Sec. 679.22(a)(9), all trawling for groundfish is
prohibited in most of the Bristol Bay area, including nearshore waters
that may include yellowfin sole spawning habitat. Directed fishing for
groundfish by vessels using trawl gear in Bristol Bay, as described in
the current edition of NOAA chart 16006, is closed at all times in the
area east of 162[deg]00' W. long. The only exception is a portion of
the Nearshore Bristol Bay Trawl Area that is open to trawling from 1200
hours A.l.t., April 1 to 1200 hours A.l.t., June 15 of each year
(Figure 2).
[[Page 43366]]
[GRAPHIC] [TIFF OMITTED] TR25JY08.009
According to the 2007 Stock Assessment and Fishery Evaluation
Report for Bering Sea and Aleutian Islands yellowfin sole, commercial
bottom trawlers have commonly found high concentrations of yellowfin
sole in areas such as near Togiak Bay (Low and Narita, 1990) and in
more recent years from Kuskokwim Bay to just south of Nunivak Island
(NPFMC 2007). Yellowfin sole spawning likely occurs in the area open to
trawling between April 1 and June 15. The impacts of trawling in this
area on yellowfin sole were considered in the Environmental Impact
Statement (EIS) for Essential Fish Habitat Identification and
Conservation and were thought to be minimal. The EIS is available from
the NMFS Alaska Region website at http://www.fakr.noaa.gov/habitat/seis/efheis.htm. The trawl closures currently in place in Bristol Bay
protect areas that are known to support yellowfin sole spawning
locations; and therefore, no additional closures with this action are
necessary to protect yellowfin sole in Bristol Bay. With nearly the
entire bay closed to trawling, no additional closures are needed to
protect bottom habitat in Bristol Bay that may support subsistence
resources.
The NBSRA will provide the opportunity to study the effects of
nonpelagic trawling on bottom habitat and may include research on the
potential effect of nonpelagic trawling specifically on yellowfin sole,
if yellowfin sole spawning occurs in the NBSRA.
Comment 10: We recommend the protection areas around St. Lawrence,
St. Matthew, and Nunivak Islands, and Kuskokwim Bay be enlarged, and
protection areas around Little Diomede,
[[Page 43367]]
King Island, and Sledge Island be considered with this action.
Response: This action implements the Council recommendations, which
were developed by working with the fishing industry and subsistence
resource users. The Council is scheduled to revisit the boundaries of
the closure areas in this final rule in 2011. Any changes to the Bering
Sea habitat conservation measures, including the expansion of existing
closures and closure area additions could be proposed and analyzed for
consideration by the Council between now and 2011. NMFS recommends
suggested changes for consideration in 2011 be provided to the Council
at the earliest opportunity. This will facilitate careful development
and analysis of any proposed changes to the Bering Sea habitat
conservation measures implemented by this final rule.
Comment 11: The decision that locates the BSHCA border along the
shelf break is based on preserving the nonpelagic trawl fleet's
development of the arrowtooth flounder fishery, rather than a projected
movement of arrowtooth flounder due to global warming effects. NMFS
Bering Sea surveys show a large amount of arrowtooth flounder near the
shelf break and slope of the Bering Sea. The location of this eastern
border allows access to the arrowtooth flounder found in this area,
permitting the arrowtooth flounder fishery to further develop.
Response: NMFS agrees.
Comment 12: NMFS and the Council did not conduct appropriate tribal
consultation prior to the development of this actions conservation area
boundaries. A workgroup of some subsistence users should not be
considered ``tribal consultation.''
Response: Executive Order 13175 on consultation and coordination
with Indian tribal governments establishes the requirement for regular
and meaningful consultation and collaboration with Indian tribal
governments in the development of federal regulatory practices that
significantly or uniquely affect their communities; to reduce the
imposition on unfunded mandates on Indian tribal governments; and to
streamline the application process for and increase the availability of
waivers to Indian tribal governments. This Executive Order requires
federal agencies to have an effective process to involve and consult
with representatives of Indian tribal governments in developing
regulatory policies and prohibits regulations that impose substantial,
direct compliance costs on Indian tribal communities.
NMFS agrees that a subsistence users workgroup does not substitute
for tribal consultation. To facilitate tribal consultation, NMFS wrote
to all tribal governments and Alaska native corporations notifying them
of the proposed action and invited requests for tribal consultation
under Executive Order 13175. NMFS also included a copy of the proposed
rule in the correspondence. NMFS did not receive any requests for
tribal consultation on this action. NMFS also agrees that commencing
tribal consultation early in fisheries management actions is preferred.
NMFS encourages tribal entities to enter into the Council process. Also
see response to Comment 13.
Comment 13: The Council and NMFS should begin tribal consultation
before the decision making process begins. NMFS and the Council should
create suitable and binding tribal consultation protocols, immediately.
Response: NMFS agrees that Alaska Native, community, and
stakeholder involvement should occur early in the process of developing
fishery management action. The Council is in the process of developing
tribal outreach protocols. In 2004, the Council revised its Alaska
groundfish management policy including the following management
objectives focused on increasing Alaska Native participation in
fisheries management:
Continue to incorporate local and traditional knowledge in
fishery management;
Consider ways to enhance collection of local and
traditional knowledge from communities, and incorporate such knowledge
in fishery management where appropriate; and
Increase Alaska Native participation and consultation in
fishery management.
The Council reviewed a discussion paper on meeting these objectives
at its June 2008 meeting. The discussion paper includes proposed
protocols for formal and informal consultation with Alaska Natives,
communities, and stakeholders on fisheries management actions and the
early identification of potentially affected communities to ensure
consultation in the early stages of fishery management action
development. Early involvement during the development of Council
recommendations is an effective way to ensure Alaska Native, community,
and stakeholder issues are considered. More information on this
activity is available from the Council's website at http://www.fakr.noaa.gov/npfmc/default.htm.
Also see response to Comment 12.
Comment 14: Village organizations should be given the opportunity
to review information relevant to the decision making process. NMFS and
the Council should provide them specific lists of species that may be
impacted by the action and their population, migration patterns,
biology, and species' use of the Bering Sea habitat.
Response: This information is available in the EA supporting this
action (see ADDRESSES). Chapter 3 provides the status including biology
of all species that may be impacted by the action. Chapter 4 analyzes
the action's impact on these species and their habitats. Since March
2007, the EA has been available to the public through the Council's
website or at Council meetings.
Comment 15: NMFS should immediately start a process to protect the
recently documented deep sea coral and sponge habitats of the Pribilof
and Zhemchug Canyons of the Bering Sea from adverse fishing effects. In
2007, Greenpeace and a NMFS researcher used a submersible vessel to
examine the Zhemchug and Pribilof Canyons, identifying coral and sponge
habitats located in these canyons.
Response: The Council recommends habitat protection measures to
NMFS for those locations where the Council has determined protections
from the potential effects of fishing are appropriate based on the
information available. The Council is scheduled to review its essential
fish habitat (EFH) management in 2011, when information regarding new
locations that may need additional protection could be submitted for
consideration.
Comment 16: NMFS should consider all the people impacted by this
action including those in the fishing and tourism industries. Everyone
in Alaska would benefit if there was more tourism and less fishing.
Response: Along with impacts on the fisheries, NMFS considered the
impacts on the passive use of the Bering Sea resources in the
Regulatory Impact Review for this action (see ADDRESSES). Tourism in
the Bering Sea region is not precluded by this action. Tourism may
benefit through enhanced bottom habitat protection that may support
wildlife populations of interest to tourists. Many Alaskans depend on
either fishing, tourism, or both; and the reduction of either type of
activity would impact those who depend on these industries.
Comment 17: It is important for NMFS to prevent nonpelagic trawling
from expanding into the Arctic Ocean.
Response: This action is limited to the Bering Sea subarea, but the
Council is
[[Page 43368]]
developing a fishery management plan for the Arctic Ocean. The Council
recognizes that little is known about the fish stocks in the Arctic
Ocean, and more information is needed for sustainable management of
commercial fishing in the Beaufort and Chukchi Seas of the Arctic
Ocean. Therefore, the Council is considering prohibiting all or nearly
all commercial fishing in the Arctic Ocean until information indicates
that sustainable fishery management is possible. See the Council's
website at http://www.fakr.noaa.gov/npfmc/current_issues/Arctic/arctic.htm for more information.
Comment 18: This action is overly restrictive. The proposed action
is unnecessary because no current activities occur that warrant
protection measures. The action may prevent sustainable fishery options
in the future. Any protection action should be specific to highly
sensitive habitats and address actual problems.
The Bering Sea offers high energy mud and sand bottoms that can be
safely trawled and continue to be productive. The current warmer water
temperatures supporting finfish may change and result in fisheries that
must target other species like shrimp that are effectively harvested by
trawl gear. The proposed action would prevent development of a future
shrimp trawl fishery that could have low bycatch and could be
sustainable.
Response: The nonpelagic trawling closures in this action affect
only the groundfish fisheries and are a precautionary approach to
protecting Bering Sea bottom habitat. This final rule does not apply to
shrimp fishing by any method in the Bering Sea. This action meets the
Council's management objectives for the Alaska groundfish fisheries
stated in the FMP.
The effects of nonpelagic trawling for groundfish on bottom habitat
are relative to the sediments contacted by trawl gear. Effects are
further discussed in the EA/RIR/FRFA for this action (see ADDRESSES).
Little is known about the characteristics of the bottom sediments in
most areas being closed to nonpelagic trawling. Consequently,
protection measures reduce the potential for adverse effects by
nonpelagic trawl gear. Because the first pass of a nonpelagic trawl is
most likely to damage bottom habitat, it is prudent to protect those
areas that are not already actively trawled. Results from the research
in the NBSRA may provide bottom habitat effects information that can
inform the management of nonpelagic trawling for groundfish in the
Bering Sea subarea and may support future adjustments to the closure
areas to allow for further development of groundfish fisheries.
Comment 19: NMFS is urged to continue efforts to define habitat in
the Bering Sea.
Response: This action establishes protection areas for bottom
habitat in the Bering Sea and does not define EFH. In 2006, the FMPs
for the Alaska fisheries were updated with new descriptions of
essential fish habitat for all of the managed species. NMFS continues
to gather information regarding bottom habitat and will work with the
Council to continue managing the fisheries based on the best available
scientific information. The Council is scheduled to review EFH in 2011.
Additional information regarding EFH and bottom habitat research is
available from the NMFS Alaska Region website at http://www.fakr.noaa.gov/habitat/efh.htm.
Classification
The Administrator, Alaska Region, NMFS, determined that the FMP
Amendment 89 is necessary for the conservation and management of the
groundfish 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 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA describes the economic impact of this final rule on small
entities. The FRFA incorporates the initial regulatory flexibility
analysis (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. 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 copy of
the FRFA is available from NMFS (see ADDRESSES).
A summary of the IRFA was provided in the classification section to
the proposed rule (73 FR 12357, March 7, 2008), and the public was
notified of how to obtain a copy of the IRFA. The public comment period
ended on April 21, 2008. No comments were received on the IRFA or on
the economic impacts of the rule.
Fishing vessels, both catcher vessels and catcher/processors (CPs),
are considered small, for RFA purposes, if their gross receipts, from
all their economic activities combined, as well as those of any and all
their affiliates anywhere in the world, (including fishing in
federally-managed non-groundfish fisheries, and in Alaska-managed
fisheries), are less than or equal to $4.0 million annually. Further,
fishing vessels were considered to be large if they were affiliated
with an American Fisheries Act fishing cooperative in 2004. The members
of these cooperatives had combined revenues that exceeded the $4.0
million threshold.
The entities that would be directly regulated by this final rule
are those vessels that fish for groundfish with nonpelagic trawl gear
in the eastern Bering Sea off Alaska. Section 5.6 of the RIR provides a
description of these fisheries and estimates the numbers of unique
vessels that presently participate (see ADDRESSES). Approximately 22 to
24 vessels have participated in the nonpelagic trawl CP fishery off
Alaska in recent years. Based on analysis of total annual gross
revenues, two of the vessels should be classified as small entities.
Six Community Development Quota groups and their associated communities
are considered small entities and are directly regulated by this action
because their allocations of BSAI species harvested by nonpelagic trawl
gear occur within the areas defined by this action.
This regulation does not impose new recordkeeping and reporting
requirements on the regulated small entities.
The FRFA did not reveal any Federal rules that duplicate, overlap,
or conflict with the action.
The Council considered three alternatives and five options to the
alternatives for this action. The suite of alternatives and options
were developed in consultation with members of the nonpelagic trawl CP
fleet to minimize potential adverse economic effects on directly
regulated entities. This action is the preferred alternative and
options, which reflect the least burdensome of management structures
available in terms of directly regulated small entities, while fully
achieving the conservation and management purposes articulated by the
Council.
Alternative 1, the no action alternative, would not meet the
objectives of this action. This alternative would allow nonpelagic
trawling to expand into areas not previously trawled and would not meet
the objective to protect certain bottom habitat in the Bering Sea
subarea. Alternative 3, which would modify flatfish trawl gear to
reduce contact with the bottom, was not recommended by the Council at
this time because the gear is currently under development, and
[[Page 43369]]
gear standards are not yet ready for implementation.
Under Alternative 2 for the BSHCA, the boundaries of the closure
area were established in locations that have not been trawled more than
once and are not likely to be trawled in the future. In addition, the
boundary of the BSHCA was adjusted to allow for potential future
development of the arrowtooth flounder fishery. These features of the
BSHCA mitigate potential adverse economic effects on small entities by
allowing continued fishing where substantial amounts of fishing have
already occurred and to allow for future expansion of the arrowtooth
flounder fishery.
The boundaries for the nonpelagic trawl closures under Options 1,
3, 4, and 5 also were developed in consultation with members of the
nonpelagic trawl CP fleet. Under Options 1 and 5, the waters near St.
Matthew and St. Lawrence Islands were not substantially trawled and are
not likely to be trawled in the future, so the closures in these areas
are not likely to result in an adverse economic effect on small
entities. Option 2 closed waters near Nunivak Island and Etolin Strait
but would not close waters within Kuskokwim Bay to nonpelagic trawling.
Option 3 expanded on the closures under Option 2 by establishing the
Nunivak Island, Etolin Strait, and Kuskokwim Bay closure boundaries.
Option 3 closures were carefully negotiated between members of the
nonpelagic trawl CP fleet and some users of the subsistence marine
resources in the area. Adjustments were made to the boundaries to
ensure the flatfish fleet had access to concentrations of flatfish
while still maintaining overall protection to bottom habitat from the
potential effects of nonpelagic trawling. These boundary adjustments
reduce potential adverse economic effects on small entities
participating in the flatfish trawl fishery.
Under Option 4 for the NBSRA, the southern boundary of the area was
also based on consultation with members of the affected trawl CP fleet
to ensure the closure would not prevent fishing in areas currently
fished and allowed for some northern movement of the fleet if fish
stocks also move north in response to global warming. The southern
boundary of the NBSRA would mitigate any potential adverse economic
impact on small entities by allowing continued fishing in locations
historically fished and permitting some flexibility with any future
movement of fish stocks.
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 essential fish habitat. 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).
Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the
Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the
American Indian and Alaska Native Policy of the U.S. Department of
Commerce (March 30, 1995) outline the responsibilities of NMFS in
matters affecting tribal interests. Section 161 of Public Law 108-199
(188 Stat. 452), as amended by section 518 of Public Law 109-447 (118
Stat. 3267), extends the consultation requirements of the Executive
Order to Alaska Native corporations.
NMFS contacted tribal governments and Alaska Native corporations,
which may be affected by the action, provided them with a copy of the
proposed rule, and offered them an opportunity to further consult. No
tribal governments or Alaska Native corporations requested further
tribal consultation for this action.
References
Low, L. and R.E. Narita. 1990. Condition of groundfish resources in
the Bering Sea-Aleutian Islands region as assessed in 1988. U.S. Dep.
Commer., NOAA Tech. Memo. NMFS-F/NWC-178, 224 p.
North Pacific Fishery Management Council (NPFMC). 2007. Stock
Assessment and Fishery Evaluation Report. November 2007. Available from
http://www.afsc.noaa.gov/REFM/stocks/assessments.htm.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: July 21, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, 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.;
Pub. L. 108-447.
0
2. In Sec. 679.2, add in alphabetical order definitions for ``Bering
Sea Habitat Conservation Area'', ``Northern Bering Sea Research Area'',
``Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat Conservation
Area'', ``St. Lawrence Island Habitat Conservation Area'', and ``St.
Matthew Island Habitat Conservation Area'' to read as follows:
Sec. 679.2 Definitions.
* * * * *
Bering Sea Habitat Conservation Area means a habitat protection
area specified at Table 42 and Figure 16 to this part.
* * * * *
Northern Bering Sea Research Area means a habitat research area
specified at Table 43 and Figure 17 to this part.
Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat
Conservation Area means a habitat protection area specified at Table 44
and Figure 21 to this part.
* * * * *
St. Lawrence Island Habitat Conservation Area means a habitat
protection area specified at Table 45 to this part.
St. Matthew Island Habitat Conservation Area means a habitat
protection area specified at Table 46 to this part.
* * * * *
0
3. In Sec. 679.22, paragraphs (a)(16) through (a)(20) are added to
read as follows:
Sec. 679.22 Closures.
(a) * * *
(16) Bering Sea Habitat Conservation Area. No federally permitted
vessel may fish with nonpelagic trawl gear in the Bering Sea Habitat
Conservation Area specified at Table 42 and Figure 16 to this part.
[[Page 43370]]
(17) Northern Bering Sea Research Area. No federally permitted
vessel may fish with nonpelagic trawl gear in the Northern Bering Sea
Research Area specified at Table 43 and Figure 17 to this part.
(18) Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat
Conservation Area. No federally permitted vessel may fish with
nonpelagic trawl gear in the Nunivak Island, Etolin Strait, and
Kuskokwim Bay Habitat Conservation Area specified at Table 44 and
Figure 21 to this part.
(19) St. Lawrence Island Habitat Conservation Area. No federally
permitted vessel may fish with nonpelagic trawl gear in the St.
Lawrence Island Habitat Conservation Area specified at Table 45 to this
part.
(20) St. Matthew Island Habitat Conservation Area. No federally
permitted vessel may fish with nonpelagic trawl gear in the St. Matthew
Island Habitat Conservation Area specified at Table 46 to this part.
* * * * *
0
4. Tables 42 through 46 are added to part 679 to read as follows:
Table 42 to Part 679--Bering Sea Habitat Conservation Area
------------------------------------------------------------------------
Longitude Latitude
------------------------------------------------------------------------
179 19.95W 59 25.15N
------------------------------------------------------------------------
177 51.76W 58 28.85N
------------------------------------------------------------------------
175 36.52W 58 11.78N
------------------------------------------------------------------------
174 32.36W 58 8.37N
------------------------------------------------------------------------
174 26.33W 57 31.31N
------------------------------------------------------------------------
174 0.82W 56 52.83N
------------------------------------------------------------------------
173 0.71W 56 24.05N
------------------------------------------------------------------------
170 40.32W 56 1.97N
------------------------------------------------------------------------
168 56.63W 55 19.30N
------------------------------------------------------------------------
168 0.08W 54 5.95N
------------------------------------------------------------------------
170 0.00W 53 18.24N
------------------------------------------------------------------------
170 0.00W 55 0.00N
------------------------------------------------------------------------
178 46.69E 55 0.00N
------------------------------------------------------------------------
178 27.25E 55 10.50N
------------------------------------------------------------------------
178 6.48E 55 0.00N
------------------------------------------------------------------------
177 15.00E 55 0.00N
------------------------------------------------------------------------
177 15.00E 55 5.00N
------------------------------------------------------------------------
176 0.00E 55 5.00N
------------------------------------------------------------------------
176 0.00E 55 0.00N
------------------------------------------------------------------------
172 6.35E 55 0.00N
------------------------------------------------------------------------
173 59.70E 56 16.96N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
listed by straight lines. The last set of coordinates for each area is
connected to the first set of coordinates for the area by a straight
line. The projected coordinate system is North American Datum 1983,
Albers.
Table 43 to Part 679--Northern Bering Sea Research Area
------------------------------------------------------------------------
Longitude Latitude
------------------------------------------------------------------------
168 7.48W 65 37.48N*
------------------------------------------------------------------------
165 1.54W 60 45.54N
------------------------------------------------------------------------
167 59.98W 60 45.55N
------------------------------------------------------------------------
171 59.92W 60 3.52N
------------------------------------------------------------------------
172 0.00W 60 54.00N
------------------------------------------------------------------------
174 1.24W 60 54.00N
------------------------------------------------------------------------
176 13.51W 62 6.56N
------------------------------------------------------------------------
172 24.00W 63 57.03N
------------------------------------------------------------------------
172 24.00W 62 42.00N
------------------------------------------------------------------------
168 24.00W 62 42.00N
------------------------------------------------------------------------
168 24.00W 64 0.00N
------------------------------------------------------------------------
172 17.42W 64 0.01N
------------------------------------------------------------------------
168 58.62W 65 30.00N
------------------------------------------------------------------------
168 58.62W 65 37.48N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
listed by straight lines except as noted by * below. The last set of
coordinates for each area is connected to the first set of coordinates
for the area by a straight line. The projected coordinate system is
North American Datum 1983, Albers.
* This boundary extends in a clockwise direction from this set of
geographic coordinates along the shoreline at mean lower-low tide line
to the next set of coordinates.
Table 44 to Part 679--Nunivak Island, Etolin Strait, and Kuskokwim Bay
Habitat Conservation Area
------------------------------------------------------------------------
Longitude Latitude
------------------------------------------------------------------------
165 1.54W 60 45.54N*
------------------------------------------------------------------------
162 7.01W 58 38.27N
------------------------------------------------------------------------
162 10.51W 58 38.35N
------------------------------------------------------------------------
162 34.31W 58 38.36N
------------------------------------------------------------------------
162 34.32W 58 39.16N
------------------------------------------------------------------------
162 34.23W 58 40.48N
------------------------------------------------------------------------
162 34.09W 58 41.79N
------------------------------------------------------------------------
162 33.91W 58 43.08N
------------------------------------------------------------------------
162 33.63W 58 44.41N
------------------------------------------------------------------------
162 33.32W 58 45.62N
------------------------------------------------------------------------
162 32.93W 58 46.80N
------------------------------------------------------------------------
162 32.44W 58 48.11N
------------------------------------------------------------------------
162 31.95W 58 49.22N
------------------------------------------------------------------------
162 31.33W 58 50.43N
------------------------------------------------------------------------
162 30.83W 58 51.42N
------------------------------------------------------------------------
162 30.57W 58 51.97N
------------------------------------------------------------------------
163 17.72W 59 20.16N
------------------------------------------------------------------------
164 11.01W 59 34.15N
------------------------------------------------------------------------
164 42.00W 59 41.80N
------------------------------------------------------------------------
165 0.00W 59 42.60N
------------------------------------------------------------------------
165 1.45W 59 37.39N
------------------------------------------------------------------------
167 40.20W 59 24.47N
------------------------------------------------------------------------
168 0.00W 59 49.13N
------------------------------------------------------------------------
167 59.98W 60 45.55N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
listed by straight lines, except as noted by * below. The last set of
coordinates for each area is connected to the first set of coordinates
for the area by a straight line. The projected coordinate system is
North American Datum 1983, Albers.
* This boundary extends in a clockwise direction from this set of
geographic coordinates along the shoreline at mean lower-low tide line
to the next set of coordinates.
Table 45 to Part 679--St. Lawrence Island Habitat Conservation Area
------------------------------------------------------------------------
Longitude Latitude
------------------------------------------------------------------------
168 24.00W 64 0.00N
------------------------------------------------------------------------
168 24.00W 62 42.00N
------------------------------------------------------------------------
172 24.00W 62 42.00N
------------------------------------------------------------------------
172 24.00W 63 57.03N
------------------------------------------------------------------------
[[Page 43371]]
172 17.42W 64 0.01N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
listed by straight lines. The last set of coordinates for each area is
connected to the first set of coordinates for the area by a straight
line. The projected coordinate system is North American Datum 1983,
Albers.
Table 46 to Part 679--St. Matthew Island Habitat Conservation Area
------------------------------------------------------------------------
Longitude Latitude
------------------------------------------------------------------------
172 0.00W 60 54.00N
------------------------------------------------------------------------
171 59.92W 60 3.52N
------------------------------------------------------------------------
174 0.50W 59 42.26N
------------------------------------------------------------------------
174 24.98W 60 9.98N
------------------------------------------------------------------------
174 1.24W 60 54.00N
------------------------------------------------------------------------
Note: The area is delineated by connecting the coordinates in the order
listed by straight lines. The last set of coordinates for each area is
connected to the first set of coordinates for the area by a straight
line. The projected coordinate system is North American Datum 1983,
Albers.
0
5. Figures 16 and 17 are added to part 679 to read as follows:
[GRAPHIC] [TIFF OMITTED] TR25JY08.010
[[Page 43372]]
[GRAPHIC] [TIFF OMITTED] TR25JY08.011
0
6. Figure 21 is added to part 679 to read as follows:
[[Page 43373]]
[GRAPHIC] [TIFF OMITTED] TR25JY08.012
[FR Doc. E8-17144 Filed 7-24-08; 8:45 am]
BILLING CODE 3510-22-C