[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]


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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.

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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