Federal Register, Volume 75 Issue 193 (Wednesday, October 6, 2010)

[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Rules and Regulations]
[Pages 61642-61652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25211]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0911031392-0457-02]
RIN 0648-AY34

Fisheries of the Exclusive Economic Zone Off Alaska; Modified
Nonpelagic Trawl Gear and Habitat Conservation in the Bering Sea
Subarea

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

ACTION: Final rule.

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SUMMARY: NMFS hereby issues a final rule that implements Amendment 94
to the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area (FMP). Amendment 94 requires
participants using nonpelagic trawl gear in the directed fishery for
flatfish in the Bering Sea subarea to modify the trawl gear to raise
portions of the gear off the ocean bottom. Amendment 94 also changes
the boundaries of the Northern Bering Sea Research Area to establish
the Modified Gear Trawl Zone (MGTZ) and to expand the Saint Matthew
Island Habitat Conservation Area. Nonpelagic trawl gear also is
required to be modified to raise portions of the gear off the ocean
bottom if used in any directed fishery for groundfish in the MGTZ. This
action is necessary to reduce potential adverse effects of nonpelagic
trawl gear on bottom habitat, to protect additional blue king crab
habitat near St. Matthew Island, and to allow for efficient flatfish
harvest as the distribution of flatfish in the Bering Sea changes. 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 January 20, 2011.

ADDRESSES: Electronic copies of Amendment 94, maps of the action area,
the Environmental Assessment/Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (EA/RIR/IRFA), and Environmental
Assessment/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (EA/RIR/FRFA) prepared for this action may be obtained from
NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, or from the
Alaska Region Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228.

[[Page 61643]]

SUPPLEMENTARY INFORMATION: The Bering Sea groundfish fisheries are
managed under the FMP. In 1981, 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 Council submitted Amendment 94 for review by the Secretary of
Commerce, and a notice of availability of Amendment 94 was published in
the Federal Register on June 29, 2010, (75 FR 37371). The proposed rule
was published in the Federal Register on July 15, 2010 (75 FR 41123).
Comments on the amendment and the proposed rule were invited through
August 30, 2010. The amendment to the FMP was approved by the Secretary
of Commerce on September 17, 2010.

Background

Amendment 94 requires participants in the directed fishery for
flatfish in the Bering Sea subarea to use modified nonpelagic trawl
gear. It also changes the boundaries of the Northern Bering Sea
Research Area (NBSRA) to establish the MGTZ, and expands the Saint
Matthew Island Habitat Conservation Area (SMIHCA). Four minor changes
to the FMP also are made, three of which do not require regulatory
changes. (Details on these minor changes are in the EA/RIR/FRFA for
this action (see ADDRESSES), and in the notice of availability for
Amendment 94 published in the Federal Register on June 29, 2010 (75 FR
37371)). One minor technical amendment for the NBSRA requires a
regulatory amendment. The background on the regulatory amendments,
including details on the development of the modified nonpelagic trawl
gear and performance standards, is further explained in the proposed
rule for this action (75 FR 41123, July 15, 2010).

Regulatory Amendments

1. Section 679.2 is revised to add a definition for the MGTZ, and
to add text to several definitions to support the requirement to use
modified nonpelagic trawl gear to meet the gear standards at Sec.
679.24. The definition for ``directed fishing'' is revised by adding a
subparagraph specific to directed fishing for flatfish in the Bering
Sea subarea. This revision requires the use of modified nonpelagic
trawl gear for the directed flatfish fishery in the Bering Sea subarea
and lists the species that are flatfish for purposes of the modified
nonpelagic trawl gear requirement. The definition for ``federally
permitted vessel'' is revised to include the fishery restrictions that
are established for the MGTZ, and for modified nonpelagic trawl gear
fishing in the Bering Sea subarea. This revision identifies vessels
that need to comply with the modified nonpelagic trawl gear
requirements. The definition for ``fishing trip'' is revised to apply
to vessels that are directed fishing for flatfish based on a fishing
trip and the species composition of the catch, as described in the
definition for directed fishing for flatfish. The fishing trip
definition also applies to recordkeeping and reporting requirements in
Sec. 679.5. The heading for the first definition of a fishing trip is
revised to add ``recordkeeping and reporting requirements under Sec.
679.5'' to reflect the full scope of this definition in 50 CFR part
679. A definition for the ``Modified Gear Trawl Zone'' is added to
define this fishery management area consistent with other fishery
management area definitions and for use under the revised definition
for ``federally permitted vessels.''
2. Subparagraph (5) is added to Sec. 679.7(c) to prohibit directed
fishing for Bering Sea flatfish without modified nonpelagic trawl gear
that meets the standards specified at Sec. 679.24(f). This revision is
needed to require the use of modified nonpelagic trawl gear for
directed fishing for flatfish in the Bering Sea subarea, for directed
fishing for groundfish with nonpelagic trawl gear within the MGTZ, and
to ensure the modified nonpelagic trawl gear meets the standards
specified at Sec. 679.24(f). Subparagraphs (3) and (4) are added and
reserved to allow for future rulemaking recommended by the Council for
Pacific cod fishing in the BSAI parallel fisheries.
3. Figure 17 to part 679 and Table 43 to part 679 is revised to
show the boundaries of the NBSRA. Figure 17 to part 679 is revised to
remove the area that becomes the MGTZ, and to remove the area that
becomes part of the eastern portion of the SMIHCA. The northern portion
of Figure 17 to part 679 also is revised to include the area of the
Bering Sea subarea near the Bering Strait that was open to nonpelagic
trawling (Figure 2) but that will now be closed. The coordinates in
Table 43 to part 679 are revised to delineate the new boundaries of the
NBSRA. These revisions are necessary to implement the Council's
recommended changes in the boundaries of the NBSRA and the SMIHCA, and
to remove the portion of the NBSRA that is the MGTZ.
4. Table 46 to part 679 is revised to delineate the new boundaries
of the SMIHCA. The coordinates in Table 46 to part 679 are changed to
reflect the extension of the eastern boundary to the 12-nm Territorial
Sea. This revision is necessary to establish the new boundaries of the
SMIHCA.
5. Table 51 to part 679 is added to delineate the coordinates of
the MGTZ. Because the MGTZ area is a simple shape and easily
identified, no figure is added to the regulations. This revision is
necessary to identify the boundaries of the MGTZ.
6. Section 679.22 lists the closure areas for the Alaska groundfish
fisheries. Because the MGTZ is closed to nonpelagic trawling, except
for directed fishing with modified nonpelagic trawl gear, this section
is revised to add the MGTZ. This revision is necessary to identify the
area and the gear type that is required in this area.
7. Paragraph (f) is added to Sec. 679.24 to establish enforceable
standards for modified nonpelagic trawl gear. The standards include a
minimum clearance for the sweeps and a minimum and maximum distance
between elevating devices. The standards also describe the measuring
locations to determine compliance with the clearance requirement and
cross section limitations for the line between elevating devices. This
revision is necessary to ensure that standards are described in the
regulations to facilitate construction, maintenance, and inspection of
modified nonpelagic trawl gear that meet the intent of the Council to
reduce potential adverse impacts on bottom habitat from nonpelagic
trawl gear.
8. Figures 25, 26, and 27 to part 679 are added to describe the
measuring locations for determining compliance with the clearance
standards, and to describe the location of the elevating devices that
is required under Sec. 679.24(f). Section 679.24(f) refers to these
figures to better describe how the modified nonpelagic trawl gear is to
be configured and how to comply with the clearance standard for the
gear. This revision is necessary to facilitate compliance with the gear
standards for those who may be constructing, maintaining, or inspecting
the modified nonpelagic trawl gear.

Changes From the Proposed Rule

A change was made in Sec. 679.24(f)(3)(iii)(B) to clarify the
spacing to which the elevating device minimum clearance applied. The
proposed rule stated that paragraph (B) would apply to ``elevating
devices spaced 66 feet (19.8 m) to 95 feet (29 m) * * *.'' The final
rule was changed to apply paragraph (B) to elevating devices

[[Page 61644]]

spaced greater than 65 feet (19.8 m) to 95 feet (29 m). This change to
paragraph (B) in the final rule ensures that elevating devices spaced
more than 65 feet (19.8 m) but less than 66 feet (20.12 m) are required
to meet the minimum clearance described in paragraph (B).
Other minor changes with no substantive effects were made in the
final rule from the proposed rule. These changes clarified the notes to
Tables 43, 46, and 51.

Comments and Responses

NMFS received 4 letters of comments on the notice of availability
for Amendment 94 (75 FR 37371, June 29, 2010) and on the proposed rule
(75 FR 41123, July 15, 2010). Comments were received from an
organization that provides services to Bering Sea tribes, a private
individual, and the fishing industry. No changes were made in the final
rule from the proposed rule in response to public comment. The
following summarizes and responds to the 10 unique comments received on
this action.
Comment 1: Ban all nonpelagic trawling, establish habitat
conservation zones, and go back to individual fishing.
Response: 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. Banning nonpelagic trawling would not meet NMFS's
responsibility to sustainably manage fisheries, given the best
scientific information available regarding impacts on the marine
environment and impacts on the fish stocks. Selective restrictions on
the use of nonpelagic trawl gear where impacts are most likely to be a
concern are more appropriate. This action prohibits nonpelagic trawling
in the expanded SMIHCA, as described in the preamble.
The Council and NMFS implemented Amendment 89, which established
several habitat conservation areas in the Bering Sea to protect bottom
habitat from the potential effects of bottom trawling (73 FR 43362,
July 25, 2008). Prohibiting all bottom trawling and limiting fishing to
individuals is not consistent with the national standards 1 and 5 of
the Magnuson-Stevens Act, which require the prevention of overfishing
while achieving optimum yield from each fishery and consideration of
efficiency in the use of fish resources.
Comment 2: We support requiring modified nonpelagic trawl sweeps
for all vessels fishing for flatfish in the Bering Sea subarea, and
reopening the MGTZ to nonpelagic trawling with modified gear. Even
though the modified gear will have an economic impact on the flatfish
vessel fleet, the industry's participation in the modified gear
development process shows the industry's commitment to responsible
fishing practices. The research indicated that modified nonpelagic
trawl gear had reduced effects on bottom habitat compared to
conventional nonpelagic trawl gear.
The MGTZ is an historically important fishing area for Bering
flounder, flathead sole, and rock sole harvest because of the high
concentration of these species and low concentration of Pacific halibut
that may be incidentally taken during the flatfish fisheries.
Establishing the MGTZ meets the Council's goals and the Magnuson-
Stevens Act national standards 1 and 9 to achieve optimum yield and to
reduce bycatch.
The western boundary of the MGTZ addresses potential blue king crab
bycatch in the flatfish fishery by protecting blue king crab habitat
within the SMIHCA. Tribal subsistence concerns are also addressed by
the eastern boundary of the MGTZ by providing a buffer between the MGTZ
and the Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat
Conservation Area. This action by the Council was based solely on
public testimony, and no analysis of this change was available for the
Council to consider in this decision.
The research indicates that nonpelagic trawling in sand and mud
substrate of the Bering Sea produces an indiscernible effect to
essential fish habitat. The modified nonpelagic trawl gear required to
be used in the MGTZ would have insignificant effects on the bottom
habitat. The habitat substrate in the MGTZ is similar to bottom habitat
to the south of this area that is currently open to nonpelagic
trawling. The modified nonpelagic gear requirement will ensure less
impact on the bottom habitat than nonpelagic trawl impacts that have
occurred in the past.
Response: Support noted. Regarding the eastern boundary of the
MGTZ, the Council had sufficient information in the EA/RIR/IRFA (see
ADDRESSES) to understand the potential effects of recommending the
location of this boundary based on public testimony. The EA/RIR/IRFA
was further revised based on the Council's recommended action to
provide the public and the Secretary of Commerce an analysis of the
likely impacts of the preferred alternative.
Comment 3: We support the eastern expansion of the SMIHCA and the
northern expansion of the NBSRA to include Little Diomede. These
changes to the boundaries of these areas would protect subsistence
resources from the potential impacts of nonpelagic trawling.
Response: Your support of this action is noted.
Comment 4: We are opposed to the MGTZ and are concerned that the
Council offered commercial bottom trawling in the NBSRA as an incentive
for the development of the modified nonpelagic trawl gear. Many Alaska
Natives in the Bering Strait region have voiced their opposition to any
nonpelagic trawling in the northern Bering Sea, including research
trawling that may support future commercial nonpelagic trawling. NMFS
has failed to adequately respond to multiple tribal consultation
requests regarding nonpelagic trawling in the Bering Sea.
Response: NMFS acknowledges the commentor's concerns regarding any
nonpelagic trawling in the northern Bering Sea and the process used for
developing the MGTZ. The process used to develop this action is
described Section 2 and Appendices C and D in the EA/RIR/FRFA for this
action (see ADDRESSES).
The tribal consultations regarding Amendment 94 are described in
the Classifications section of this rule. NMFS discussed Amendment 94
during a tribal consultation with tribal representatives from Bering
Sea communities in Unalakleet on February 16, 2010. NMFS also received
requests for tribal consultation on research that was conducted in the
summer of 2010 in the northern Bering Sea with vessels using nonpelagic
trawl gear that meet research standards. Each tribal consultation
request received by NMFS was responded to in writing with an offer of
further discussion. Commercial and research nonpelagic trawling in the
northern Bering Sea was discussed during meetings with NMFS and tribal
representatives in Anchorage in February 2010. NMFS also held a
teleconference on July 7, 2010, open to all tribes who had requested
consultation on the research trawling and to other parties interested
in the issue. NMFS followed up the research teleconference with daily
reports to all meeting participants while the research activities were
conducted. Additional information on NMFS tribal outreach activities
are on the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/tc/.
Comment 5: The purpose of the NBSRA is to provide a location where
studies of the effects of nonpelagic trawling could be conducted. The
NMFS summer trawl survey in the

[[Page 61645]]

NBSRA did not collect data that could be used for studies on the
effects of nonpelagic trawling. None of the research and testing for
the development of the modified nonpelagic trawl gear was conducted in
the NBSRA. The Council is only interested in expanding commercial
bottom trawl fisheries.
Response: The purpose of the NMFS summer trawl survey in the
northern Bering Sea was to provide information for the Loss of Sea Ice
study to understand the potential effects of climate change on the
Bering Sea ecosystem. Information collected can be used in the
development of the NBSRA research plan including that portion of the
research plan that will define the design of studies on the impacts of
nonpelagic trawl gear on bottom habitat. The Council and NMFS sponsored
a subsistence and community workshop in February 2010, to discuss the
development of the NBSRA research plan. The results of this workshop
are available at the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/tc/bs/2010_workshop_minutes.pdf.
Comment 6: No action should be taken by NMFS before careful and
complete analysis of the impacts on subsistence users has been
undertaken, in collaboration with subsistence users.
Response: NMFS uses the best available scientific information to
inform fishery management decisions. The EA/RIR/IRFA describes the
potential impacts of the action on environmental components of the
northern Bering Sea, including marine mammals and bottom habitat that
support subsistence marine resources. Even though adverse effects may
occur in the MGTZ from modified nonpelagic trawling compared to
prohibiting nonpelagic trawling, these impacts are not expected to
cause substantial impacts on subsistence resources. NMFS's outreach
activity with subsistence users in relation to this action are further
described in the section on tribal consultation in the Classification
section and in response to Comment 4.
Comment 7: The EA/RIR socio-economic analysis ignores the impacts
on fishing communities immediately adjacent to the NBSRA, but examines
communities that are dependent on the commercial fisheries that may be
conducted in the northern Bering Sea. Fishing communities are defined
by the Magnuson-Stevens Act as ``a community which is substantially
dependent on or substantially engaged in the harvest or processing of
fishery resources to meet social and economic needs * * *'' Communities
in the northern Bering Sea are dependent on marine resources for
subsistence, traditional Alaska Native culture, and commercial uses.
NMFS has ignored the importance of the northern Bering Sea fishery
resources for Bering Sea communities. The failure of NMFS to include
any of the subsistence-based communities in the Bering Strait region in
the analysis for this proposed action while focusing almost exclusively
on commercial fisheries is in direct conflict with national standards 6
and 8 of the Magnuson-Stevens Act. NMFS must consider the impacts to
all types of activities potentially affected by this action in their
analysis, including subsistence activities. NMFS must also include all
subsistence activities in the socio-economic analysis, and not exclude
the value of subsistence and related cultural activities.
Response: National standard 6 requires that conservation and
management take into account and allow for variations among, and
contingencies in, fisheries, fishery resources, and catches. Among
other things, national standard 8 requires conservation and management
measures to take into account the importance of fishery resources to
fishing communities, to provide sustained participation of such
communities, and to the extent practicable, minimize adverse economic
impacts. The EA/RIR includes an analysis of impacts on subsistence
resources. No substantial impacts on subsistence resources for each of
the environmental components were found, and therefore, no further
discussion of effects on communities dependent on subsistence resources
was developed. If potential impacts to subsistence resources had been
identified, additional analysis on subsistence-based communities would
have been included in the EA/RIR/IRFA. If substantial impacts on
subsistence resources had been identified that would have affected
subsistence practices, these would have been addressed in the socio-
economic section of the document.
Comment 8: Any development of commercial nonpelagic trawl fisheries
in the northern Bering Sea is irresponsible because of the lack of
understanding and research about the natural and human activity changes
and potential impacts in the northern Bering Sea and on the marine
resources.
Response: Enough information is available regarding the northern
Bering Sea environment to analyze the potential impacts of this action
and to make a decision on commercial fisheries management in this area.
NMFS agrees that more research would improve the understanding of
natural and human activity impacts on the marine environment in the
northern Bering Sea.
Comment 9: NMFS does not have enough supportive data to allow
commercial nonpelagic trawling in the MGTZ. Half of the MGTZ is not
part of the NMFS bottom trawl survey. The EA/RIR shows the lack of
research and poorly understood ecosystem processes in the northern
Bering Sea, but then arbitrarily states that impacts are likely to be
insignificant based on almost no data. The amount of data that NMFS is
using to justify this action is inappropriate to the scope and
implications of the action.
Response: Sufficient data is available to provide for the
sustainable management of the Bering Sea flatfish fishery, including
allowing fishing inside the MGTZ. The EA/RIR/IRFA describes the bottom
habitat inside the MGTZ, historical catch, NMFS trawl surveys, and
fishing activities inside and outside the MGTZ. This information can be
used to manage fishing activities within and outside the MGTZ. NMFS
agrees that additional information regarding the northern Bering Sea
ecosystem would be desirable but this additional information is not
required to implement this action.
Comment 10: The EA/RIR states that continuing fishing activity and
continued subsistence harvest are potentially the most important
sources of additional annual adverse impacts on marine mammals.
Expanding commercial bottom trawling northward into the northern Bering
Sea may result in unknown effects on marine mammals. Harvest activities
analyzed are not determined to be a threat to marine mammal
populations. The value of subsistence harvests outweighs the short term
gain from commercial fish harvest. The EA/RIR fails to put a value on
the potential loss of subsistence or culture as a result of expansion
of nonpelagic trawling into the northern Bering Sea and its impacts.
The EA/RIR also does not recognize climate changes and other
developmental impacts as additional annual adverse impacts on marine
mammals.
Response: In section 5.4 of the EA/RIR/IRFA, the analysis of marine
mammals examines three types of potential impacts of the fisheries:
incidental takes, prey availability, and disturbance. The impacts of
incidental takes are examined in the context of other types of human
caused mortality on marine mammals. For marine mammals harvested for
subsistence, the amount of subsistence harvests is much greater than
the amount of incidental

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takes in the fisheries, but these combined amounts are a small enough
percentage of the population not to pose a biological threat to the
stock. For these marine mammals, the continued subsistence harvest and
fisheries incidental takes compose the majority of the human caused
injury and mortality and are therefore the most important factors to
consider when analyzing incidental takes of marine mammals. NMFS agrees
that the continued subsistence harvest of marine mammals at the current
levels does not pose a threat to the marine mammal populations.
Enough information is available to determine the potential effects
of opening the MGTZ to nonpelagic trawling with modified gear.
Information on the sediment types, fish stocks, impacts of the gear on
bottom habitat, and the potential dependence of marine mammals on the
location provide enough information in the EA/RIR/IRFA to determine the
potential effects of the action.
The EA/RIR/IRFA did not find that this action would cause a loss in
the potential use of subsistence resources due to the opening of the
MGTZ. The MGTZ eastern boundary was adjusted to accommodate a buffer
between this zone and the Nunivak Island, Etolin Strait, and Kuskokwim
Bay Habitat Conservation Area where subsistence activities occur. No
information was available that indicates that activity in the MGTZ
directly or indirectly impacts important subsistence resources.
Section 5.7 of the EA/RIR/IRFA contains a cumulative effects
discussion including the impacts of climate change and other
developmental impacts on all of the environmental components analyzed,
including marine mammals. This section describes the potential effects
of climate change on the Bering Sea environment, including marine
mammals and diving seabirds. The cumulative effects were considered
with the direct and indirect effects on each environmental component to
determine the significance of effects of the action.

Classification

The Administrator, Alaska Region, NMFS, determined that Amendment
94 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 for
this rule. 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 (75 FR 41123, July 15, 2010), and the public was
notified of how to obtain a copy of the IRFA. The public comment period
ended on August 30, 2010. No comments were received on the IRFA. A
summary of the FRFA follows.
In 2007, all of the catcher/processors (CPs) targeting flatfish in
the Bering Sea subarea (46 vessels) exceeded the $4.0 million threshold
that the Small Business Administration (SBA) uses to define small
fishing entities. Due to their combined groundfish revenues, the CPs
would be considered large entities for purposes of the Regulatory
Flexibility Act (RFA). However, based on their combined groundfish
revenues, none of the four catcher vessels that participated in 2007
exceeded the SBA's small entity threshold, and these vessels are
considered small entities for purposes of the RFA. It is likely that
some of these vessels also are linked by company affiliation, which may
then categorize them as large entities, but there is no available
information regarding the ownership status of these vessels at an
entity level. Therefore, the FRFA may overestimate the number of small
entities directly regulated by this action.
This regulation does not impose new recordkeeping and reporting
requirements on the regulated small entities.
The Council considered three alternatives, an option, and a set of
minor changes for this action. Alternative 1 is the status quo, which
does not meet the Council's recommendations to further protect Bering
Sea bottom habitat. Both Alternatives 2 and 3 would require modified
nonpelagic trawl gear for vessels directly fishing for flatfish in the
Bering Sea subarea. Additionally, under Alternative 3, which is the
preferred alternative, an area that is currently closed to nonpelagic
trawling would be opened to vessels using modified nonpelagic trawl
gear. Alternative 2 does not provide fishing opportunity within the
MGTZ, and therefore does not minimize the potential economic impact on
small entities in the same manner as provided by Alternative 3. The
SMIHCA option has no economic effect on small entities as this area is
currently closed to nonpelagic trawling as part of the NBSRA. The minor
changes ensure the FMP is easier to read and understand, and that the
FMP accurately reflects the Council's intent and the provisions of the
Magnuson-Stevens Act.
The modified nonpelagic trawl gear component of Alternatives 2 and
3 contains explicit provisions regarding mitigating potential adverse
economic effects on directly regulated entities, the vast majority of
which are large entities. Performance standards (rather than design
standards) would be required for the modified nonpelagic trawl gear.
Use of performance standards simplifies compliance requirements for
directly regulated entities, including small entities, while still
maintaining the ability of NMFS to enforce the regulation.
Additionally, the Council has recommended that NMFS implement the
amendment on a timeline that takes into account the resources available
to directly regulated entities. NMFS has determined that implementation
will not occur sooner than the beginning of the 2011 fishing year. Such
a timetable is important to allow sufficient time for any vessels that
require re-engineering to accommodate the modified nonpelagic trawl
gear to schedule shipyard time without having to forego participation
in the fishery. The preferred alternative (Alternative 3) and option
reflect the least burdensome of available management structures in
terms of directly regulated small entities, while fully achieving the
conservation and management purposes articulated by the Council and
consistency with applicable statutes.

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 Web site
that provides easy access to details of this final rule, including
links to the final rule, maps of closure areas, and frequently asked
questions

[[Page 61647]]

regarding essential fish habitat. The relevant information available on
the Web site is the Small Entity Compliance Guide. The Web site address
is http://www.alaskafisheries.noaa.gov/habitat/efh.htm. Copies of this
final rule are available upon request from the NMFS, Alaska Regional
Office (see ADDRESSES).

Tribal Summary Impact Statement (E.O. 13175)

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 Executive Order
13175 to Alaska Native corporations.
Executive Order 13175 requires Federal agencies to establish
regular and meaningful consultation and collaboration with tribal
officials in the development of Federal policies that have tribal
implications.
Section 5(b)(2)(B) of Executive Order 13175 requires NMFS to
prepare a tribal summary impact statement as part of the final rule.
This statement must contain: (1) A description of the extent of the
agency's prior consultation with tribal officials; (2) a summary of the
nature of their concerns; (3) a statement of the extent to which the
concerns of tribal officials have been met; and (4) the agency's
position supporting the need to issue the regulation.

A Description of the Extent of the Agency's Prior Consultation With
Tribal Officials

On October 13, 2009, NMFS received a request from the Native
Village of Unalakleet for tribal consultation on a number of fishery
management issues regarding the Bering Sea. On February 16, 2010, NMFS
met with tribal representatives from the Native Village of Unalakleet,
Koyuk, Stebbins, Elim, Gambell, Savoonga, Saint Michael, Shaktoolik,
and King Island in Unalakleet, AK. Among other issues, proposed
Amendment 94 was discussed. On July 15, 2010, NMFS provided opportunity
for further discussion on this action by contacting all tribal
governments and Alaska Native corporations that may be affected by the
action and providing them with a copy of the proposed rule. No
additional response from tribal governments or Alaska Native
corporations was received regarding this action.
Among the recommendations provided to NMFS from the Unalakleet
tribal consultation and in March 2010 letters from Shishmaref, King
Island, Saint Michael, Solomon, Koyuk, Wales, Brevig Mission, and
Savoonga, the tribal representatives requested that nonpelagic trawling
not be allowed to expand northward into the northern Bering Sea. This
limit on expansion would include not establishing the MGTZ. NMFS
responded to the recommendations from the Unalakleet tribal
consultation in writing to all participants, and this report is
available from the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/tc/unalakleet/report0210.pdf.

A Statement of the Extent To Which the Concerns of Tribal Officials
Have Been Met

Except for the area used to establish the MGTZ, the NBSRA remains
closed to commercial nonpelagic trawl fishing. The final rule allows
for modified nonpelagic trawl gear to be used in the MGTZ. Tribal
officials have stated that they want no nonpelagic trawling in the
NBSRA. Allowing any commercial nonpelagic trawling in the NBSRA does
not meet the concerns of tribal officials. This action reduces the size
of the NBSRA approximately 5 percent by establishing the MGTZ. NMFS
understands that the concern of the tribal representatives is primarily
on the potential adverse impact that nonpelagic trawling may have on
bottom habitat, and particularly bottom habitat that supports
subsistence resources. Because the regulations require the use of
modified nonpelagic trawl gear in the MGTZ, the potential effects on
bottom habitat in the MGTZ from nonpelagic trawling is reduced. The
rest of the NBSRA remains closed to commercial nonpelagic trawling.

NMFS' Position Supporting the Need To Issue the Regulation

This final rule is needed to implement Amendment 94, a
precautionary management measure to reduce the potential impacts of
nonpelagic trawling on benthic habitat. NMFS recognizes the tribes'
concerns regarding the expansion of bottom trawling into the NBSRA with
the establishment of the MGTZ. NMFS is balancing the recommendation by
the Council to open this area to ensure efficient flatfish harvest with
the requirement that nonpelagic trawl gear be modified. The potential
impacts on the bottom habitat from trawling in this area are mitigated
by requiring modified nonpelagic trawl gear in the MGTZ.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Recordkeeping and reporting requirements.

Dated: October 1, 2010.
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, revise the definition for ``Federally permitted
vessel'' and the introductory text of paragraph (1) of the definition
of ``Fishing trip,'' and add, in alphabetical order, paragraph (5) to
``Directed fishing,'' and the definition for ``Modified Gear Trawl
Zone'' to read as follows:

Sec. 679.2 Definitions.

* * * * *
Directed fishing * * *
* * * * *
(5) With respect to the harvest of flatfish in the Bering Sea
subarea, for purposes of nonpelagic trawl restrictions under Sec.
679.22(a) and modified nonpelagic trawl gear requirements under
Sec. Sec. 679.7(c)(5) and 679.24(f), fishing with nonpelagic trawl
gear during any fishing trip that results in a retained aggregate
amount of yellowfin sole, rock sole, Greenland turbot, arrowtooth
flounder, flathead sole, Alaska plaice, and other flatfish that is
greater than the retained amount of any other fishery category defined
under Sec. 679.21(e)(3)(iv) or of sablefish.
* * * * *
Federally permitted vessel means a vessel that is named on either a
Federal fisheries permit issued pursuant to Sec. 679.4(b) or on a
Federal crab vessel permit issued pursuant to Sec. 680.4(k) of this
chapter. Federally permitted vessels must conform to regulatory
requirements for purposes of fishing restrictions in habitat
conservation areas, habitat conservation zones, habitat protection
areas, and the Modified Gear Trawl Zone; for purposes of anchoring
prohibitions in habitat protection areas; for purposes of requirements
for the BS nonpelagic trawl fishery pursuant to Sec. 679.7(c)(5)

[[Page 61648]]

and Sec. 679.24(f); and for purposes of VMS requirements.
* * * * *
Fishing trip * * *
(1) With respect to retention requirements (MRA, IR/IU, and pollock
roe stripping), recordkeeping and reporting requirements under Sec.
679.5, and determination of directed fishing for flatfish.
* * * * *
Modified Gear Trawl Zone means an area of the Bering Sea subarea
specified at Table 51 to this part that is closed to directed fishing
for groundfish with nonpelagic trawl gear, except by vessels using
modified nonpelagic trawl gear meeting the standards at Sec.
679.24(f).
* * * * *

0
3. In Sec. 679.7, add and reserve paragraphs (c)(3) and (c)(4), and
add paragraph (c)(5) to read as follows:

Sec. 679.7 Prohibitions.

* * * * *
(c) * * *
(3) [Reserved]
(4) [Reserved]
(5) Conduct directed fishing for flatfish as defined in Sec. 679.2
with a vessel required to be federally permitted in any reporting area
of the Bering Sea subarea as described in Figure 1 to this part without
meeting the requirements for modified nonpelagic trawl gear specified
in Sec. 679.24(f).
* * * * *

0
4. In Sec. 679.22, add paragraph (a)(21) to read as follows:

Sec. 679.22 Closures.

(a) * * *
(21) Modified Gear Trawl Zone. No vessel required to be federally
permitted may fish with nonpelagic trawl gear in the Modified Gear
Trawl Zone specified at Table 51 to this part, except for federally
permitted vessels that are directed fishing for groundfish using
modified nonpelagic trawl gear that meets the standards at Sec.
679.24(f).
* * * * *

0
5. In Sec. 679.24, add paragraph (f) to read as follows:

Sec. 679.24 Gear limitations.

* * * * *
(f) Modified nonpelagic trawl gear. Nonpelagic trawl gear modified
as shown in Figure 26 to this part must be used by any vessel required
to be federally permitted and that is used to directed fish for
flatfish, as defined in Sec. 679.2, in any reporting areas of the BS
or directed fish for groundfish with nonpelagic trawl gear in the
Modified Gear Trawl Zone specified in Table 51 to this part. Nonpelagic
trawl gear used by these vessels must meet the following standards.
(1) Elevated section minimum clearance. Except as provided for in
paragraph (f)(3)(iii) of this section, elevating devices must be
installed on the elevated section shown in Figure 26 to this part to
raise the elevated section at least 2.5 inches (6.4 cm), as measured
adjacent to the elevating device contacting a hard, flat surface that
is parallel to the elevated section, regardless of the elevating device
orientation, and measured between the surface and the widest part of
the line material. Elevating devices must be installed on each end of
the elevated section, as shown in Figure 26 to this part. Measuring
locations to determine compliance with this standard are shown in
Figure 25 to this part.
(2) Elevating device spacing. Elevating devices must be secured
along the entire length of the elevated section shown in Figure 26 to
this part and spaced no less than 30 feet (9.1 m) apart; and either
(i) If the elevating devices raise the elevated section shown in
Figure 26 to this part 3.5 inches (8.9 cm) or less, the space between
elevating devices must be no more than 65 feet (19.8 m); or
(ii) If the elevating devices raise the elevated section shown
Figure 26 to this part more than 3.5 inches (8.9 cm), the space between
elevating devices must be no more than 95 feet (29 m).
(3) Clearance measurements and line cross sections. (i) The largest
cross section of the line of the elevated section shown in Figure 26 to
this part between elevating devices shall not be greater than the cross
section of the material at the nearest measurement location, as
selected based on the examples shown in Figure 25 to this part. The
material at the measurement location must be--
(A) The same material as the line between elevating devices, as
shown in Figures 25a and 25d to this part;
(B) Different material than the line between elevating devices and
used to support the elevating device at a connection between line
sections (e.g., on a metal spindle, on a chain), as shown in Figure 25b
to this part; or
(C) Disks of a smaller cross section than the elevating device,
which are strung continuously on a line between elevating devices, as
shown in Figure 25c to this part.
(ii) Portions of the line between elevating devices that are
braided or doubled for section terminations or used for line joining
devices are not required to be a smaller cross section than the
measuring location.
(iii) Required minimum clearance for supporting material of a
larger cross section than the cross section of the line material. When
the material supporting the elevating device has a larger cross section
than the largest cross section of the line between elevating devices,
except as provided for in paragraph (f)(3)(ii) of this section, based
on measurements taken in locations shown in Figure 27 to this part, the
required minimum clearance shall be as follows:
(A) For elevating devices spaced 30 feet (9.1 m) to 65 feet (19.8
m), the required minimum clearance is >= [2.5 inches - ((support
material cross section - line material cross section)/2)], or
(B) For elevating devices spaced greater than 65 feet (19.8 m) to
95 feet (29 m), the required minimum clearance is >= [3.5 inches -
((support material cross section - line material cross section)/2)].

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6. Figure 17 to part 679 is revised to read as follows:
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[[Page 61649]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.048

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7. Figure 25 to part 679 is added to read as follows:

[[Page 61650]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.049

0
8. Figure 26 to part 679 is added to read as follows:

[[Page 61651]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.050

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9. Figure 27 to part 679 is added to read as follows:

[[Page 61652]]

[GRAPHIC] [TIFF OMITTED] TR06OC10.051

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Note: The location for measurement of maximum line material
cross section does not include any devices or braided or doubled
material used for section termination.

0
10. Table 43 to part 679 is revised to read as follows:

Table 43 to Part 679--Northern Bering Sea Research Area
------------------------------------------------------------------------

------------------------------------------------------------------------
Longitude Latitude
------------------------------------------------------------------------
168............................ 7.41 W 65............... *37.91 N
165............................ 1.54 W 60............... 45.54 N
167............................ 59.98 W 60............... 45.55 N
169............................ 00.00 W 60............... 35.50 N
169............................ 00.00 W 61............... 00.00 N
171............................ 45.00 W 61............... 00.00 N
171............................ 45.00 W 60............... 54.00 N
174............................ 1.24 W 60............... 54.00 N
176............................ 13.51 W 62............... 6.56 N
172............................ 24.00 W 63............... 57.03 N
172............................ 24.00 W 62............... 42.00 N
168............................ 24.00 W 62............... 42.00 N
168............................ 24.00 W 64............... 0.00 N
172............................ 17.42 W 64............... 0.01 N
168............................ 58.62 W 65............... 30.00 N
168............................ 58.62 W 65............... **49.81 N
------------------------------------------------------------------------
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 the 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.
** Intersection of the 1990 United States/Russia maritime boundary line
and a line from Cape Prince of Wales to Cape Dezhneva (Russia) that
defines the boundary between the Chukchi and Bering Seas, Area 400 and
Area 514, respectively.

0
11. Table 46 to part 679 is revised to read as follows:

Table 46 to Part 679--St. Matthew Island Habitat Conservation Area
------------------------------------------------------------------------

0
12. Tables 48 through 50 to part 679 are added and reserved.

0
13. Table 51 to part 679 is added to read as follows:

Table 51 to Part 679--Modified Gear Trawl Zone
------------------------------------------------------------------------

[FR Doc. 2010-25211 Filed 10-5-10; 8:45 am]
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