[Federal Register Volume 72, Number 117 (Tuesday, June 19, 2007)]
[Proposed Rules]
[Pages 33732-33734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11633]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070601115-7115-01]
RIN 0648-AU93


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, 
Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian 
Islands Management Area and Gulf of Alaska, Essential Fish Habitat Rule 
Correction

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

ACTION: Proposed rule; request for comments.

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

DATES: Written comments must be received by July 19, 2007.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Records Officer. Comments may be submitted by:
     Mail: P.O. Box 21668, Juneau, AK 99802;
     Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK;
     Fax: 907-586-7557;
     E-mail: [email protected]. Include in the subject 
line the following document identifier: ``VMS PR.'' E-mail comments, 
with or without attachments, are limited to 5 megabytes; or
     Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Copies of the maps of EFH and habitat areas of particular concern 
(HAPC) management areas, the Environmental Impact Statement (EIS) for 
EFH Identification and Conservation, the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) for HAPCs and the RIR/IRFA for this action may be obtained 
from the mailing or street address stated above or from the Alaska 
Region NMFS website at http://www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the NMFS Alaska Region and by e-mail 
to [email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or e-mail 
at [email protected].

SUPPLEMENTARY INFORMATION: The groundfish, crab, scallop, and salmon 
fisheries in the exclusive economic zone (EEZ) off Alaska are managed 
under their respective fishery management plans (FMPs). The North 
Pacific Fishery Management Council (Council) prepared the FMPs under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. 
Regulations implementing the FMPs appear at 50 CFR parts 679 and 680. 
General regulations governing U.S. fisheries also appear at 50 CFR part 
600.

Background

    Section 303(a)(7) of the Magnuson-Stevens Act requires that each 
FMP describe and identify EFH, minimize to the extent practicable the 
adverse effects of fishing on EFH, and identify other measures to 
promote the conservation and enhancement of EFH. The Secretary of 
Commerce, acting through NMFS, approved the most recent EFH amendments 
to the FMPs on May 3, 2006. These were Amendments 78 and 65 to the FMP 
for Groundfish of the Bering Sea and Aleutian Islands Management Area 
(BSAI), Amendments 73 and 65 to the FMP for Groundfish of the Gulf of 
Alaska (GOA), Amendments 16 and 12 to the FMP for Bering Sea/Aleutian 
Islands King and Tanner Crabs, Amendments 7 and 9 to the FMP for the 
Scallop Fishery off Alaska, and Amendments 7 and 8 to the FMP for 
Salmon Fisheries in the Exclusive Economic Zone off the Coast of 
Alaska. These amendments revised the FMPs by identifying and describing 
EFH and designating HAPC, and included measures to minimize to the 
extent practicable potential adverse effects of fishing on EFH.
    On June 28, 2006, NMFS issued a final rule implementing the EFH 
amendments (71 FR 36694). Additional background information regarding 
the EFH FMP and regulatory amendments is in the March 22, 2006, 
proposed rule (71 FR 14470) and in the EIS and EA/RIR/IRFA for HAPCs 
(see ADDRESSES).

Protection Area Definitions

    The June 28, 2006, EFH rule contains definitions for the Aleutian 
Islands Habitat Conservation Area (AIHCA) and the Aleutian Islands 
Coral Habitat Protection Areas (AICHPA) and are described by 
coordinates listed in Tables 23 and 24 to 50 CFR part 679. Each table 
includes coordinates for locations within State of Alaska (State) 
waters, as intended by the Council and described in the EFH FMP 
amendments. The current regulatory definitions for these protection 
areas conflict with the FMP amendments and Tables 23 and 24 by 
describing the protection areas as part of the Aleutian Islands 
subarea. The Aleutian Islands subarea is limited to waters of the EEZ, 
which does not include State waters (Sec.  679.2).
    To ensure that the definitions are consistent with the Council's 
intent, the FMP amendments, and Tables 23 and 24, Sec.  679.2 would be 
revised to define the protection areas as located in reporting areas of 
the Aleutian Islands, including adjacent State of Alaska waters. This 
revision would ensure that the AIHCA and AICHPA apply to federally 
permitted vessels operating in the EEZ and in State waters.

VMS Requirements

    The June 28, 2006, EFH rule requires all federally permitted 
fishing vessels to operate a VMS when operating in the Aleutian Islands 
subarea or when operating in the GOA with mobile bottom contact gear 
onboard (Sec.  679.28(f)(6)). For the EFH rule, the Council intended 
that the VMS requirements apply to all federally permitted vessels 
operating in State or Federal waters. Specifically, the EFH rule should 
have required VMS operation for all federally permitted vessels 
operating in Federal waters of the Aleutian Islands subarea or adjacent 
State waters and operating with mobile bottom contact gear onboard in 
the GOA

[[Page 33733]]

or adjacent State waters. This would ensure activities in or near the 
EFH protection areas could be easily monitored. As described above, the 
AIHCA and AICHPA include areas in State waters. The EFH protection 
areas in the GOA are not located in State waters but some are near 
State waters. Because preexisting VMS requirements implemented to 
monitor Steller sea lion protection areas apply to federally permitted 
vessels in State waters and the Council's intent was to build on 
existing VMS requirements, the EFH protection measures' VMS 
requirements also should apply in State waters.
    Section 679.28(f)(6)(ii) and (iii) identify the applicable areas 
for VMS as the Aleutian Islands subarea and the GOA. Under Sec.  679.2, 
this description does not include State waters. This proposed rule 
would revise these paragraphs by requiring VMS operation in reporting 
areas of the Aleutian Islands subarea and the GOA, including adjacent 
State waters. This correction would ensure VMS operation for federally 
permitted vessels operating in State or Federal waters of the Aleutian 
Islands subarea for all gear types and in the GOA or adjacent State 
waters when mobile bottom contact gear is onboard. This correction 
would facilitate monitoring of vessel activities near EFH protection 
areas.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMPs, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E. O.)12866.
    This proposed rule contains no federalism implications under E. O. 
13132. Even though the requirements of this rule apply to federally 
permitted vessels in State waters, this rule does not supplant any 
State regulatory requirements.
    NMFS prepared an IRFA for this action, as required by section 603 
of the Regulatory Flexibility Act. The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY section of the preamble. A summary of 
the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    The vessels that are directly regulated by the proposed action are 
those that are federally permitted and operate in State waters adjacent 
to the Aleutian Islands subarea or operate with mobile bottom contact 
fishing gear onboard in State waters adjacent to the GOA. Vessels were 
considered small, according to the Small Business Administration 
criteria, if they had estimated 2004 gross revenues less than or equal 
to $4 million, and were not known to be affiliated with other firms 
whose combined receipts exceeded $4 million.
    In the Aleutian Islands reporting areas, an estimated 88 federally 
permitted vessels are believed to have been operated by small entities 
during 2004. Forty-three of these appear to have fished within State 
waters of the Aleutian Islands during at least one month of the year. 
Thus, an estimated 43 vessels would be directly regulated by this 
action in the State waters adjacent to the Aleutian Islands subarea. 
These 43 vessels grossed, on average, about $964,000 from all 
fisheries, and an average of about $114,000 from their fishing within 
State waters, within the Aleutian Islands reporting areas.
    In the GOA, an estimated 60 federally permitted vessels using 
mobile bottom contact gear appear to have been operated by small 
entities during 2004. Twenty-seven of these appear to have fished with 
mobile bottom contact gear within State waters adjacent to the GOA 
during at least one month of the year. Thus, an estimated 27 mobile 
bottom contact vessels would be directly regulated by this action. 
These 27 vessels grossed, on average, about $660,000 from all 
fisheries, and an average of about $36,000 from their fishing with 
mobile bottom contact gear within State waters adjacent to the GOA.
    Based on these cost estimates, the calculated upper bounds for 
annual transmission and maintenance costs are $10,617 per year, or $247 
per small entity. Thus, average annual costs would be 0.03 percent of 
total annual revenues from all sources, and 0.2 percent of revenues 
from fishing within State waters adjacent to the Aleutian Islands 
subarea. In addition, an entity may need to acquire a VMS unit to 
comply with this regulation. The cost of this is estimated to be 
$2,174, although a portion of this cost is reimbursable by the Pacific 
States Marine Fisheries Commission (PSMFC). The analysis estimated that 
about $1,600 of the initial purchase price would be reimbursable.
    These cost estimates may be upper bounds for several reasons. For 
example, some of these vessels may already be subject to VMS 
regulations because of crab requirements imposed since 2004. Moreover, 
as noted above, vessels buying VMS to comply with this regulation are 
eligible for a reimbursement of a portion of the initial purchase price 
from the PSMFC. Some vessels may choose to avoid the VMS requirement by 
surrendering their federal permit during periods when they expect to 
operate only in State waters.
    Based on these statistics, estimates of the upper bound annual 
transmission and maintenance costs are $3,952 per year, or $146 per 
small entity. Thus, average annual costs would be 0.02 percent of total 
annual gross revenues from all sources, and 0.4 percent of gross 
revenues from fishing within State waters adjacent to the GOA. In 
addition, two small entities may be required to acquire VMS units to 
comply with this regulation. The total cost of this is estimated to be 
$4,348, or $2,174 per vessel, although the current reimbursement 
program would offset some of this cost. As discussed in the RIR, there 
are several reasons for believing that these costs are upper bound 
estimates.
    For purposes of the VMS requirement, a federally permitted vessel 
is one required to carry either a Federal fisheries permit or a Federal 
crab vessel permit. This action would add new reporting requirements 
for federally permitted vessels fishing in State waters adjacent to the 
Aleutian Islands subarea, or for federally permitted vessels with 
mobile bottom contact gear onboard while operating in State waters 
adjacent to the GOA. These fishing operations would be required to 
carry VMS units, and to report their locations every half hour while 
they were in fisheries subject to the requirement. Moreover, they would 
be required to notify NOAA Office of Law Enforcement (OLE) that their 
VMS unit was active before it was used for fishing activity. They would 
be required to notify NOAA OLE in the event of a breakdown of the unit. 
Estimated costs are described above.
     There are no Federal rules that duplicate, overlap, or conflict 
with the proposed action.
    An IRFA must describe any significant alternatives to the proposed 
rule that accomplish the stated objectives of the proposed action, 
consistent with applicable statutes, and that would minimize any 
significant economic impact of the proposed rule on small entities. 
This action has only the status quo and the preferred alternative. The 
status quo does not meet the objectives of the action because the 
current regulations do not apply

[[Page 33734]]

EFH closures and VMS requirements to certain federally permitted 
vessels operating in state waters. As noted in Section 2.6 of the IRFA 
for this action, the objectives of this action are to (1) correct 
erroneous language contained in current regulations to better reflect 
the original intent of the Council and to ensure consistency with the 
FMP amendments and Tables 23 and 24 to 50 CFR part 679, and (2) 
facilitate enforcement of EFH closure areas within State waters through 
the use of VMS equipment by federally permitted vessels operating in 
State waters adjacent to the Aleutian Islands subarea, and by federally 
permitted vessels operating with mobile bottom contact gear onboard in 
State waters adjacent to the GOA. In this way, the action provides for 
the protection of EFH areas in State waters adjacent to the Aleutian 
Islands subarea and GOA, as was the Council's purpose in the original 
action.
    The purpose of this action is to correct or clarify regulations to 
make them reflect the original ``preferred alternative'' chosen by the 
Council and the Secretary of Commerce under the previous EFH action. 
There are no other identifiable alternatives that would accomplish this 
objective; and no other alternatives were identified, considered, and 
rejected.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0445. Public reporting burden 
per response are estimated to average: 6 seconds for each VMS 
transmission, 12 minutes for VMS check-in form, 6 hours for VMS 
installation, and 4 hours for VMSannual maintenance. The response times 
include the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to [email protected], or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection-of-information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: June 11, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For RegulatoryPrograms, National Marine 
Fisheries Service.
    For reasons set out in the preamble, NMFS proposes to amend 50 CFR 
part 679 as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
and Pub. L. 108 199, 118 Stat. 110.
    2. In Sec.  679.2, revise the definitions for ``Aleutian Islands 
Coral Habitat Protection Areas'' and ``Aleutian Islands Habitat 
Conservation Area,'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Aleutian Islands Coral Habitat Protection Areas means management 
areas established for the protection of certain coral garden areas in 
reporting areas of the Aleutian Islands subarea and adjacent State 
waters. See Table 23 to this part.
    Aleutian Islands Habitat Conservation Area means a management area 
established for the protection of fish habitat in reporting areas of 
the Aleutian Islands subarea and adjacent State waters. See Table 24 to 
this part.
* * * * *
    3. In Sec.  679.28, paragraphs (f)(6)(ii) and (iii) are revised to 
read as follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (f) * * *
    (6) * * *
    (ii) You operate a vessel required to be federally permitted in 
reporting areas located in the Aleutian Islands subarea or operate a 
federally permitted vessel in adjacent State waters;
    (iii) You operate a vessel required to be federally permitted with 
mobile bottom contact gear onboard in reporting areas located in the 
GOA or operate a federally permitted vessel with mobile bottom contact 
gear onboard in adjacent State waters; or
* * * * *
[FR Doc. E7-11633 Filed 6-18-07; 8:45 am]
BILLING CODE 3510-22-S