[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Rules and Regulations]
[Pages 17113-17114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8517]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 080721859-9592-03]
RIN 0648-AX01


Fisheries of the Exclusive Economic Zone Off Alaska, Groundfish 
of the Gulf of Alaska; Correction

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

ACTION: Final rule; correction.

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SUMMARY: NMFS is correcting the preamble to a final rule published in 
the Federal Register on January 21, 2009 (74 FR 3446). The final rule 
implemented a regulatory amendment to exempt fishermen using dinglebar 
fishing gear in federal waters of the Gulf of Alaska from the 
requirement to carry a vessel monitoring system (VMS). This correction 
is necessary to summarize and respond to public comments received on 
the proposed rule. No changes to the requirements of the final rule 
result from this correction.

DATES: Effective April 14, 2009.

FOR FURTHER INFORMATION CONTACT: Ben Muse, 907-586-7228.

SUPPLEMENTARY INFORMATION: Groundfish fisheries in the Gulf of Alaska 
(GOA) are managed under the Fishery Management Plan for Groundfish of 
the Gulf of Alaska (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 part 679. General 
regulations governing U.S. fisheries also appear at 50 CFR part 600.
    On January 21, 2009, NMFS published a final rule that exempts 
vessels in the Gulf of Alaska with dinglebar gear onboard from vessel 
monitoring system (VMS) requirements (74 FR 3446). Previously, 
dinglebar fishermen participating in the State of Alaska-managed 
fishery for in the Gulf of Alaska were required to carry VMS to 
facilitate enforcement of regulations that prohibit fishing in habitat 
areas of particular concern (HAPC), specifically Coral Habitat 
Protection Areas in the Fairweather Grounds and near Cape Ommaney in 
the Gulf of Alaska. VMS data from the eight vessels that participated 
in the fishery in 2007 show that fishery participants did not fish in 
the Gulf of Alaska Coral Habitat Protection Areas; fishing occurred at 
shallower depths than where the sensitive corals occur; and the bottom 
types preferred by sensitive coral species are avoided by dinglebar 
fishermen. NMFS has determined that the risk of damage posed by 
dinglebar vessels to sensitive corals protected within habitat areas of 
particular concern is minor, and insufficient to justify the costs of 
VMS.
    The preamble to the final rule incorrectly stated that no comments 
were received on the proposed rule for this action, which was published 
on October 3, 2008 (73 FR 57585). In fact, 5 letters of comment were 
received by NMFS during the comment period that ended November 3, 2008. 
Three of the letters endorsed the exemption, two opposed it, and one 
(of those that opposed) addressed an opinion of the federal government 
that was not relevant to the proposed action and is not responded to 
below. After consideration of these comments, NMFS has made no change 
to the final rule published January 21, 2009 (74 FR 3446). Information 
on the purpose and justification for the VMS exemption is presented in 
the proposed and final rules.

Correction

    In the final rule for this action (74 FR 3446), published on 
January 21, 2009, make the following correction. On page 3448, in the 
first column, correct the third paragraph to read:

``Response to comments

    A proposed rule for this action was published October 3, 2008 (73 
FR 57585), and the comment period ended November 3, 2008. Five letters 
of comment were received by NMFS during the comment period. Three of 
the letters endorsed the exemption, two opposed it, and one (of the 
ones that opposed) addressed an opinion of the federal government that 
was not relevant to the proposed action and is not responded to below. 
After consideration of these comments, NMFS has made no changes to the 
final rule. The following is a summary of the comments received and 
NMFS's response.
    Comment 1: The risk of damage posed to protected corals in the Gulf 
of Alaska by the dinglebar fishery is minor and insufficient to justify 
the costs of VMS. We don't believe that granting this exemption will 
harm or provide less protection for the HAPC areas. The analysis also 
revealed that the dinglebar fishery for targets a different substrate 
type (folded sandstone) than the substrates that typically support 
Primnoa species corals (bedrock and boulders). It is appropriate to 
exempt dinglebar fishermen targeting from VMS requirements, as VMS 
represents an unnecessary burden to a small fleet.
    Response: NMFS agrees that the risk of damage to Primnoa corals 
does not justify the cost imposed on the small scale operations in this 
fishery. NMFS' reasoning is discussed in the response to Comment 2, 
below. The analysis supporting the final rule did not make specific 
statements about the types of substrate supporting Primnoa corals, but 
did point out that the fishing grounds dinglebar fishermen chose to 
fish have a different type of substrate than that found in the 
protected areas.
    Comment 2: The potential for damage to the Primnoa corals is too 
great to justify relaxing the VMS requirement for vessels using 
dinglebar gear. Dinglebar gear is by definition bottom contact gear and 
is very capable of damaging the corals in the GOA Coral Habitat 
protection Areas. While 2007 VMS data shows fishermen operating close 
to and not within the GOA Coral Habitat Protection Areas, the obvious 
reason for this is that VMS is doing its job of keeping bottom contact 
fishermen out of the areas. However, are common in the areas. A marine 
biologist providing testimony to the Council indicated this. This 
creates an incentive for dinglebar operations to enter these areas. 
Minor damage is too much damage.
    Response: NMFS does not believe this action creates a significant 
risk of damage to Primnoa corals in the protected areas. The decision 
was not only based on the observation that vessels didn't enter these 
areas in 2007; the analysis supporting the final rule acknowledged that 
the VMS could be creating a deterrent. Agency approval of

[[Page 17114]]

the VMS exemption was based on a cumulative consideration of several 
factors. The analysis indicated that there appeared to be limited 
overlap between the depths at which dinglebar fishing took place, and 
the depths present in the protected areas; the analysis indicated that, 
on the basis of VMS data in 2007, dinglebar fishermen tended to target 
different bottom habitats than those present in the protected areas; 
and the analysis indicated that there had historically been very little 
dinglebar activity in the Alaska Department of Fish and Game 
statistical area containing the Cape Ommaney protected area.
    Comment 3: The analysis supporting this action fails to address the 
question of the presence of in the designated areas. are common in 
those areas, as a marine biologist has attested. Do not approve this 
exemption until the analysis has first been revised to include this 
critical data and the Council has been given the opportunity to 
reconsider its decision based on the revised analysis.
    Response: For the reasons discussed in the response to Comment 2, 
NMFS does not believe that the presence of lingcod would present a 
significant risk of damage to the corals in this area.
    Comment 4: Any program that expands VMS requirements must include 
reimbursement to the individual fisherman for the cost of the VMS unit 
including installation and operating costs.
    Response: This final rule does not expand VMS requirements.
    Comment 5: The commenter was unable to use the website to submit 
comments, and had to submit a comment by email instead. A website that 
does not work is no use.
    Response: NMFS does not know the reason why the commenter was 
unable to use the website. The web site, ``Regulations.gov'' is a 
Federal government web site serving many agencies. Currently the 
website is operating successfully, and NMFS has received thousands of 
letters of comment through it. A person experiencing problems with 
Regulations.gov should contact Regulations.gov directly. NMFS notes 
that the commenter was able to submit a comment via email.''

    Dated: April 8, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E9-8517 Filed 4-13-09; 8:45 am]
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