[Federal Register Volume 75, Number 135 (Thursday, July 15, 2010)]
[Proposed Rules]
[Pages 41123-41138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17166]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0911031392-91399-01]
RIN 0648-AY34


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
Subarea

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 a proposed rule that would implement Amendment 94 
to the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Management Area (FMP). Amendment 94, if approved, 
would require 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 
would change 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 
would be required to be modified to raise portions of the gear off the 
ocean bottom if used in any directed fishery for groundfish in the 
proposed 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

[[Page 41124]]

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: Written comments must be received by August 30, 2010.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified for this 
action by 0648-AY34 (PR), by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Fax: (907) 586-7557.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    No comments will be posted for public viewing until after the 
comment period has closed. All comments received are a part of the 
public record and will generally be posted to www.regulations.gov 
without change. All Personal Identifying Information (e.g., name, 
address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Electronic copies of Amendment 94, maps of the action area, and the 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be 
obtained from www.regulations.gov or from the Alaska Region Web site at 
http://alaskafisheries.noaa.gov. The EA for Amendment 89, which 
contains information referenced in this proposed rule, is available 
from the Alaska Region Web site at http://alaskafisheries.noaa.gov.

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

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, with comments on Amendment 94 
invited through August 30, 2010 (75 FR 37371). Comments may address 
Amendment 94 or this proposed rule, but must be received by 1700 hours, 
A.D.T. on August 30, 2010 to be considered in the approval/disapproval 
decision on Amendment 94. All comments received by that time, whether 
specifically directed to Amendment 94, or to this proposed rule, will 
be considered in the approval/disapproval decision on Amendment 94.

Background

    If approved by NMFS, Amendment 94 would require participants in the 
directed fishery for flatfish in the Bering Sea subarea to use modified 
nonpelagic trawl gear. It also would change the boundaries of the 
Northern Bering Sea Research Area (NBSRA) to establish the MGTZ, and 
would expand the Saint Matthew Island Habitat Conservation Area 
(SMIHCA). Four minor technical changes to the FMP also would be made, 
three of which do not result in regulatory changes. Details on these 
minor technical changes are in the EA/RIR/IRFA 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 would require a regulatory amendment 
and is further explained below.
    In October 2009, the Council unanimously adopted Amendment 94. 
Modifying nonpelagic trawl gear was considered with the Council's 
development of Amendment 89 to the FMP (73 FR 43362, July 25, 2008). 
Amendment 89 established the Bering Sea Habitat Conservation Measures, 
closing portions of the Bering Sea subarea to nonpelagic trawling and 
establishing the NBSRA and SMIHCA. The Council adopted Amendment 89 in 
June 2007, but developed the modified nonpelagic trawl gear action 
separately through subsequent coordination with NMFS, the United States 
Coast Guard, and the nonpelagic trawl fishing industry.

Modified Nonpelagic Trawl Gear

    Nonpelagic trawl gear uses a pair of long lines called sweeps to 
herd fish into the net. These lines drag across the bottom and may 
adversely impact benthic organisms (e.g., crab species, sea whips, 
sponges, and basket stars). Approximately 90 percent of the bottom 
contact of nonpelagic trawl gear used to target flatfish is from the 
sweeps, which can be more than 1,000 feet (304.8 m) in length. Based on 
research by the Alaska Fisheries Science Center (AFSC), NMFS and 
described in the EA/RIR/IRFA (see ADDRESSES), nonpelagic trawl gear can 
be modified to raise the sweeps off the bottom to reduce potential 
adverse effects on bottom habitat while maintaining effective catch 
rates for flatfish target species in sand and mud bottom habitat. AFSC 
studies comparing nonpelagic trawl gear to modified nonpelagic trawl 
gear show that the modified nonpelagic trawl gear reduces mortality and 
disturbance of sea whips, basket stars, sponges, and crab species. The 
studies further show that modified nonpelagic trawl gear does not 
significantly reduce catch rates of flatfish species. In 2008 and 2009, 
the AFSC and NOAA Office for Law Enforcement worked with the fishing 
industry to test the modified nonpelagic trawl gear under normal 
fishing conditions and determined that this gear can be safely used and 
efficiently inspected. Details of the development of the modified 
nonpelagic trawl gear are in the EA/RIR/IRFA for this action (see 
ADDRESSES).
    The Council recommended that nonpelagic trawl gear used in the 
Bering Sea flatfish fishery or in the MGTZ be modified by adding 
elevating devices to a portion of the trawl gear that contacts the 
bottom, including sweeps and portions of the net bridles. Some gear 
configurations may have long net bridles that make up a substantial 
portion of the gear's bottom contact. The elevating devices are any 
kind of a device that raises the sweeps or net bridles off the bottom 
(e.g., bobbins, discs). The modified nonpelagic trawl gear would have 
to be constructed and maintained to meet three gear standards for 
elevating devices: location, clearance, and spacing. These standards 
are intended to allow flexibility in the construction of the modified 
gear, while ensuring the gear functions in a manner that would reduce 
the potential adverse impacts of the nonpelagic trawl gear on benthic 
organisms, as demonstrated in the AFSC studies described above.
    The first proposed standard would apply to the location of the 
elevating devices on the gear. Proposed Figure 26

[[Page 41125]]

to part 679 shows a diagram of the modified nonpelagic trawl gear, 
including identification of the parts of the gear. The portion of the 
gear where elevating devices would be required is identified as the 
elevated section shown in the proposed Figure 26. The elevated section 
is identified in proposed Figure 26 both for gear using, and for gear 
not using, headline extensions from the net to provide flexibility in 
the construction of the modified gear. A vessel would be required to 
place elevating devices on the sweeps beginning no more than 180 feet 
(54.9 m) from the door bridles and ending at the connection of the net 
bridles to the sweeps, if the net bridles are 180 feet (54.9 m) or less 
in length. If the net bridles are longer than 180 feet (54.9 m), then 
the elevating devices would be required on the bottom net bridle ending 
180 feet (54.9 m) before the net attachment to the net bridles. 
Elevating devices would not be required on the 180-foot (54.9 m) 
portion of the bottom lines adjacent to the door bridle and the portion 
of the net bridle less than 180 feet (54.9 m), because these locations 
either do not contact the bottom, or the elevating devices in these 
locations may interfere with the handling of the gear. This 180-foot 
(54.9 m) elevating device allowance for the net bridles provides some 
flexibility in the construction of the gear as net bridles are 
typically between 90 feet (27.4 m) and 200 feet (61 m). Some vessels 
may use pelagic doors, which are likely to lift up to 180 feet (54.9 m) 
of the sweep off the bottom; therefore the 180-foot (54.9 m) elevating 
device allowance at the door end of the gear would ensure elevating 
devices are not required where the gear is not likely to contact the 
bottom. These 180-foot (54.9 m) allowances would result in 
approximately two to four fewer elevating devices being used on part of 
this portion of gear that may contact the bottom. The locations of the 
elevating devices were recommended to the Council by the AFSC in 
consultation with the fishing industry. The Council determined that the 
recommended locations were appropriate to raise the sweeps and any 
bottom lines beyond the 180-foot (54.9 m) allowances, while not 
requiring more elevating devices than would be necessary to achieve 
results similar to the AFSC-modified nonpelagic trawl gear studies.
    The second proposed gear standard would require that elevating 
devices provide a minimum clearance of 2.5 inches (6.4 cm). Clearance 
is the separation that a device creates between the sweep or net bridle 
and a parallel hard surface, measured adjacent to the elevating device. 
The size of the elevating devices would likely depend on the type of 
equipment used to retrieve and deploy the gear, the size of elevating 
devices available, and the cost of the gear.
    Proposed Figure 25 to part 679 shows locations for measuring the 
clearance of a variety of elevating devices and methods used to attach 
the elevating devices to the sweeps and net bridles. Proposed Figure 25 
to part 679 should be used as a reference to ensure identification of 
the correct location for measuring compliance with the clearance 
standard, regardless of the methods and materials used to construct and 
maintain the gear.
    The proposed regulations also would prohibit the cross section of 
the line between elevating devices from being greater than the cross 
section of the material at the nearest measurement location. This would 
prevent the use of line material of a larger cross section than the 
material at the measurement location, which would likely result in not 
achieving the clearance intended with the gear standards as shown in 
proposed Figures 25 and 27 to part 679. Portions of the line between 
elevating devices that are doubled for section terminations, or used 
for line-joining devices, would not be required to be a smaller cross 
section than the measuring location. This would allow some flexibility 
for the construction and maintenance of the gear while ensuring that 
most, if not all, of the line between elevating devices provides the 
intended clearance. To ensure sufficient strength in the joining of 
line sections, supporting material used for the elevating devices may 
need to be a greater cross section than the cross section of the line 
material between elevating devices. To ensure this larger cross section 
of the supporting material is accounted for in measuring the clearance, 
the proposed regulations would include equations to reduce the required 
minimum clearance at the measuring points in proposed Figure 25 to part 
679 by one half the portion of the supporting material cross section 
that is greater than the cross section of the line material between 
elevating devices. Using these equations would ensure that the 
additional elevation provided by supporting material with a cross 
section larger than the line material would be credited towards meeting 
the minimum clearance required as measured per proposed Figure 25 to 
part 679. Figure 27 would be added to 50 CFR part 679 to show the 
measurement locations to determine the cross sections of the line 
material, and of the supporting material for the elevating devices. 
Cross section measurements made as directed in proposed Figure 27 to 
part 679 would provide information to determine the minimum clearance 
needed when the supporting material for the elevating device has a 
larger cross section than the cross section of the line between 
elevating devices.
    While the proposed clearance standard does not directly measure the 
distance between the seafloor and the sweep during fishing--such 
distance may be affected by the devices pressing into the substrate and 
the sag of the sweeps between devices--the clearance standard would 
provide an objective measurement that could be compared to the 
elevation gained by devices used during AFSC studies. The AFSC-modified 
nonpelagic trawl gear studies show that 3 inches (7.6 cm) of clearance 
for elevating devices spaced 60 feet (18.3 m) apart, and 4 inches (10.2 
cm) of clearance for elevating devices spaced 90 feet (27.4 m) apart, 
reduced effects on benthic organisms. To allow for a minor amount of 
wear of the elevating devices but to ensure clearances similar to those 
used in the AFSC studies, the proposed clearance standard would be 
based on 2.5 inches (6.4 cm) and 3.5 inches (8.9 cm).
    The third proposed gear standard would require spacing the 
elevating devices at a minimum of 30 feet (9.1 m) and a maximum of 95 
feet (29 m), depending on the clearance provided by the elevating 
devices. The minimum distance between elevating devices is necessary to 
ensure no more contact of the elevating devices occurs than is 
necessary to provide clearance from the bottom. Elevating devices that 
provide more clearance allow for greater distance between the elevating 
devices.
    The AFSC studies determined that spacing the devices at 60 feet 
(18.3 m), with a clearance of less than 3.5 inches (8.9 cm) produced 
similar reductions in impacts to benthic organisms as spacing the 
elevating devices at 90 feet (27.4 m) with more than 3.5 inches (8.9 
cm) of clearance. The spacing standard would require that if the 
elevating devices provide more than 3.5 inches (8.9 cm) of clearance, 
the devices must be spaced at least 30 feet (9.1 m) and no more than 95 
feet (29 m) apart. If the elevating devices provide between 2.5 inches 
(6.4 cm) and 3.5 inches (8.9 cm) of clearance, the devices must be 
spaced at least 30 feet (9.1 m) and no more than 65 feet (19.8 m) 
apart. The additional 5 feet (1.5 m) in the spacing standard compared 
to the spacing used in the AFSC studies would allow for minor movement 
of the elevating devices during use, as well as for minor amounts of 
extra spacing that may occur

[[Page 41126]]

from gear construction and maintenance. This would allow some 
flexibility in the construction and maintenance of the gear, while 
reducing impacts to a similar degree as seen in the AFSC-modified 
nonpelagic trawl gear studies. Manufacturers of the modified nonpelagic 
trawl gear likely would place the elevating devices at 60 feet (18.3 m) 
and 90 feet (27.4 m) spacing as the devices would likely be mounted 
where sections of line are joined, and the line is available in 90 feet 
(27.4 m) lengths. By working with the nonpelagic trawl fishing 
industry, the AFSC determined that locating the elevating devices on 
the gear in this manner would elevate the majority of the gear similar 
to the elevation used in the AFSC research and allow for operational 
and maintenance efficiencies for the vessel operators.

Boundary Changes of Specific Areas

    Proposed Amendment 94 would include boundary changes to areas with 
nonpelagic trawl gear restrictions in the Bering Sea subarea. Amendment 
94 and this proposed rule would reduce the NBSRA to establish the MGTZ 
and to increase the SMIHCA (Figure 1). The NBSRA and the SMIHCA are 
currently closed to fishing with nonpelagic trawl gear. The NBSRA was 
established under Amendment 89 (73 FR 43362, July 25, 2008) to provide 
a location with little to no nonpelagic trawling for the purpose of 
studying the effects of nonpelagic trawling on bottom habitat. The 
SMIHCA also was established under Amendment 89 to protect blue king 
crab habitat from the potential impacts of nonpelagic trawl gear. 
Figure 1 shows the current southern boundary of the NBSRA, and how this 
boundary would change with the proposed revision to the SMIHCA eastern 
border and with the proposed MGTZ.
BILLING CODE 3510-22-P

[[Page 41127]]

[GRAPHIC] [TIFF OMITTED] TP15JY10.000

BILLING CODE 3510-22-C

[[Page 41128]]

    The Council recommended moving the eastern boundary of the SMIHCA, 
parallel to the current boundary, to the eastern edge of the 12-
nautical mile (nm) Territorial Sea surrounding Saint Matthew Island. 
NMFS' annual trawl surveys from 2007 through 2009 have found blue king 
crab in the area east of the SMIHCA out to the edge of the 12-nm 
Territorial Sea. Based on this information, the Council's Crab Plan 
Team recommended moving the eastern boundary of the SMIHCA to the 
eastern extent of the 12-nm Territorial Sea. Expanding the SMIHCA based 
on the best available information would ensure the SMIHCA meets the 
Council's intent to protect blue king crab habitat east of Saint 
Matthew Island. The Council also recommended that the eastern border of 
the SMIHCA meet the western border of the proposed MGTZ, so that no 
portion of the NBSRA would lie between these areas, thus simplifying 
management. This common boundary also would lie along a division in 
habitat types, with the habitat in the western side of the proposed 
MGTZ more favorable to flatfish species and the habitat in the eastern 
side of the proposed revised SMIHCA more favorable to crab species. 
Detailed information regarding NMFS' resource surveys and bottom 
habitats of the SMIHCA and the proposed MGTZ are in the EA/RIR/IRFA for 
this proposed action (see ADDRESSES).
    The proposed boundaries of the MGTZ are based on management goals, 
local area resources, and stock survey information. The geographic 
coordinates designating the northern boundary of the MGTZ follow the 
whole number latitude to facilitate mapping and management in the area, 
and includes the area identified by the fishing industry as an 
important location for flatfish resources. Based on public testimony in 
October 2009, the Council recommended the proposed eastern boundary of 
the MGTZ, to create a buffer between flatfish fishing and the Nunivak 
Island, Etolin Strait, Kuskokwim Bay Habitat Conservation Area, a 
location important for subsistence activities that was established 
under Amendment 89 (73 FR 43362, July 25, 2008). The southern boundary 
of the MGTZ matches the current boundary of the NBSRA, allowing for 
fishing in the MGTZ in waters adjacent to the portion of the Bering Sea 
subarea currently open to nonpelagic trawl fishing. Nonpelagic trawling 
within the MGTZ would require the use of modified nonpelagic trawl 
gear, regardless of the target species. Because the MGTZ is currently 
closed to nonpelagic trawling, the Council recommended mitigating any 
potential effects from nonpelagic trawling by requiring that all 
nonpelagic trawl fishing gear used in the MGTZ meet the standards 
proposed here for modified nonpelagic trawl gear. The AFSC surveys in 
the western portion of the MGTZ show primarily flatfish species, with 
little Pacific halibut occurrence. This area would provide the 
opportunity to fish for flatfish resources with little potential for 
Pacific halibut bycatch. The opportunity for directed fishing for 
flatfish in the MGTZ is important to the fishing industry because of 
the low abundance of Pacific halibut in this area, and the potential 
movement of the flatfish species distribution farther north under 
changing ocean conditions. The reopening of the MGTZ to fishing with 
modified nonpelagic trawl gear was an incentive to the fishing industry 
to continue the development of modified nonpelagic trawl gear after the 
Council's recommendation of Amendment 89.
    The minor technical change to the FMP that requires a regulatory 
change is the revision to the northern boundary of the NBSRA to match 
the southern boundary of Statistical Area 400 at the Bering Strait. 
Area 514 of the Bering Sea subarea extends north to the southern 
boundary of Area 400 (Figure 2). The coordinates of the current 
northern boundary of the NBSRA are incorrectly described in Table 43 to 
part 679, and leave an area open to nonpelagic trawling near the Bering 
Strait. The Council intended for the entire northern portion of the 
Bering Sea subarea to be part of the NBSRA. This minor technical 
amendment would close this area, which is currently open to nonpelagic 
trawling.

[[Page 41129]]

[GRAPHIC] [TIFF OMITTED] TP15JY10.001

Proposed Regulatory Amendments

    The Council recommended, and the Secretary proposes, the following 
regulatory changes and additions to 50 CFR part 679 to implement 
Amendment 94.
    1. Section 679.2 would be revised to add a definition for the MGTZ, 
and to add text to several definitions to support the requirement to 
use nonpelagic trawl gear that has been modified to meet the gear 
standards that would be specified at Sec.  679.24. The definition for 
``directed fishing'' would be revised by adding a subparagraph specific 
to directed fishing for flatfish in the Bering Sea subarea. This 
revision would require the use of modified nonpelagic trawl gear for 
the directed flatfish fishery in the Bering Sea subarea under proposed 
Sec.  679.7(c)(5), and would list the species that are flatfish for 
purposes of the modified nonpelagic trawl gear requirement. The 
definition for ``federally permitted vessels'' would be revised to 
include the fishery restrictions that would be established for the 
MGTZ, and for modified nonpelagic trawl gear fishing in the Bering Sea 
subarea. This revision would identify vessels that would need to comply 
with the modified nonpelagic trawl gear requirements. The definition 
for ``fishing trip'' would be 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 proposed definition for 
directed fishing for flatfish. The fishing trip definition also applies 
to recordkeeping and reporting requirements in Sec.  679.5. Under this 
proposed rule, the heading for the first definition of a fishing trip 
would be revised to add ``recordkeeping and reporting requirements 
under Sec.  679.5'' to reflect the full scope of the current 
application of this definition in 50 CFR part 679. A definition for the 
``Modified Gear Trawl Zone'' would be added to define this proposed 
fishery

[[Page 41130]]

management area consistent with other fishery management area 
definitions and for use under the proposed revised definition for 
``federally permitted vessels.''
    2. Subparagraph (5) would be 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 proposed 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) would be added and reserved to allow for future rulemaking 
recommended by the Council for Pacific cod fishing in the BSAI parallel 
fisheries. If approved, the Pacific cod parallel fishery rulemaking is 
likely to be effective before rulemaking for Amendment 94. Adding and 
reserving subparagraphs (3) and (4) will provide less confusion as 
these rulemakings progress simultaneously.
    3. Figure 17 to part 679 and Table 43 to part 679 would be revised 
to show the proposed boundaries of the NBSRA. Figure 17 to part 679 
would be revised to remove the area that is proposed to create the 
MGTZ, and to remove the area that would become part of the eastern 
portion of the SMIHCA. The northern portion of Figure 17 to part 679 
also would be revised to include the area of the Bering Sea subarea 
near the Bering Strait that is currently open to nonpelagic trawling 
(Figure 2). The coordinates in Table 43 to part 679 would be revised to 
delineate the proposed 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 would be become the MGTZ.
    4. Table 46 to part 679 would be revised to delineate the proposed 
new boundaries of the SMIHCA. The coordinates in Table 46 to part 679 
would be changed to reflect the extension of the eastern boundary to 
the 12-nm Territorial Sea. This revision is necessary to establish the 
proposed boundaries of the SMIHCA.
    5. Proposed Table 51 to part 679 would be added to delineate the 
coordinates of the MGTZ. Because the proposed 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 proposed MGTZ.
    6. Section 679.22 lists the closure areas for the Alaska groundfish 
fisheries. Because the MGTZ would be closed to nonpelagic trawling, 
except for directed fishing with modified nonpelagic trawl gear, this 
section would be revised to add the MGTZ. This revision is necessary to 
identify the area, and the gear type that would be required in this 
area.
    7. Paragraph (f) would be added to Sec.  679.24 to establish 
enforceable standards for modified nonpelagic trawl gear. The standards 
would include a minimum clearance for the sweeps, and a minimum and 
maximum distance between elevating devices, depending on the clearance 
provided by the elevating devices. The standards also would 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 
would 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 would be added to describe 
the measuring locations for determining compliance with the clearance 
standards, and to describe the location of the elevating devices that 
would be required under proposed Sec.  679.24(f). Section 679.24(f) 
would refer to these figures to facilitate the description of how the 
modified nonpelagic trawl gear is to be configured and how to determine 
compliance 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.

Classification

    Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this 
proposed rule is consistent with and necessary to implement Amendment 
94, and in accordance with 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 12866.
    NMFS prepared an initial regulatory flexibility analysis (IRFA), as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. Descriptions of the action, the reasons 
it is under consideration, and its objectives and legal basis, are 
included 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 proposed action would: Require nonpelagic trawl vessels 
targeting flatfish in the Bering Sea subarea to use elevating devices 
on trawl sweeps to raise them off the seafloor; adjust the southern 
boundary of the NBSRA to exclude the MGTZ; and provide additional 
closure area to the SMIHCA. Any person fishing with nonpelagic trawl 
gear in the MGTZ would be required to use the modified nonpelagic trawl 
gear that meets the gear standards. Amendment 94 would adjust the 
SMIHCA eastern boundary to be consistent with the Council's intent to 
protect blue king crab habitat, based on the best available scientific 
information. This proposed rule also would adjust the northern boundary 
of the NBSRA northwards to meet the northern boundary of the Bering Sea 
subarea to ensure the northern boundary of the NBSRA meets the 
Council's intent for Amendment 89. The effect of the NBSRA boundaries, 
including this northern portion, was analyzed in the EA for Amendment 
89 (see ADDRESSES).
    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. Thus due to their combined groundfish revenues, the 
CPs would be considered large entities for purposes of the 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 all vessels at an entity level. Therefore, the IRFA may 
overestimate the number of small entities directly regulated by the 
proposed action.
    The Council considered three alternatives, an option, and a set of 
minor technical changes for this action. Alternative 1 is the status 
quo, which does not meet the Council's

[[Page 41131]]

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. The proposed regulations for implementing the 
nonpelagic trawl gear modification were developed in consultation with 
members of the nonpelagic trawl CP fleet to minimize potential adverse 
economic effects on directly regulated entities while still meeting the 
Council's Magnuson-Stevens Act objectives to minimize potential adverse 
effects on bottom habitat caused by nonpelagic trawl gear. Performance 
standards (rather than design standards) would be required for the 
modified nonpelagic trawl gear, which 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 options 
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 
consistent with applicable statutes.
    This regulation does not impose new recordkeeping and reporting 
requirements on the regulated small entities.
    The IRFA did not reveal any Federal rules that duplicate, overlap, 
or conflict with the proposed action.

Tribal Consultation

    Executive Order (E.O.) 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 (Pub. L.) 
108-199 (188 Stat. 452), as amended by section 518 of Public Law 109-
447 (118 Stat. 3267), extends the consultation requirements of E.O. 
13175 to Alaska Native corporations.
    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. Among the recommendations provided to NMFS, 
the tribal representatives requested that no nonpelagic trawling be 
allowed to expand northward into the northern Bering Sea. This would 
include not establishing the MGTZ in this proposed action. In March 
2010, NMFS received letters from the communities of Shishmaref, King 
Island, Saint Michael, Solomon, Koyuk, Wales, Brevig Mission, and 
Savoonga stating concerns regarding commercial nonpelagic trawling in 
the NBSRA. NMFS will provide opportunity for further discussion on this 
proposed action, and will consider information shared during these 
discussions in the review of this proposed action. NMFS will contact 
all tribal governments and Alaska Native corporations that may be 
affected by the proposed action and provide them with a copy of this 
proposed rule.
    Section 5(b)(2)(B) of E.O. 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) the agency's position supporting the need to issue 
the regulation, and (4) a statement of the extent to which the concerns 
of tribal officials have been met. If the Secretary of Commerce 
approves Amendment 94, a tribal impact summary statement that 
summarizes and responds to issues raised on the proposed action--and 
describes the extent to which the concerns of tribal officials have 
been met--will be included in the final rule for Amendment 94.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: July 8, 2010.
Eric C. Schwaab,
Assistant Administrator, For Fisheries, National Marine Fisheries 
Services.

    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.; 
Pub. L. 108-447.

    2. In Sec.  679.2, revise the definitions for ``Federally permitted 
vessels'' and ``Fishing trip,'' add in alphabetical order the 
definition for ``Modified Gear Trawl Zone'' and paragraph (5) to 
``Directed fishing,'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Directed Fishing means:
    * * *
    (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

[[Page 41132]]

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) and Sec.  679.24(f); and for purposes of VMS 
requirements.
* * * * *
    Fishing trip means:
    (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).
* * * * *
    3. In Sec.  679.7, 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).
* * * * *
    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).
* * * * *
    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 
(3)(iii) of this paragraph, 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 (3)(ii), based on measurements 
taken in locations shown in Figure 27 to this part, the required 
minimum clearance shall be as following:
    (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 device spaced 66 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)]. 6. Table 43 to 
part 679 is revised to read as follows:

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

[[Page 41134]]

[GRAPHIC] [TIFF OMITTED] TP15JY10.003

    >8. Table 51 to part 679 is added to read as follows:
    [GRAPHIC] [TIFF OMITTED] TP15JY10.004
    
    9. Figure 17 to part 679 is revised to read as follows:

[[Page 41135]]

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

[[Page 41136]]

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

[[Page 41137]]

[GRAPHIC] [TIFF OMITTED] TP15JY10.007

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

[[Page 41138]]

[GRAPHIC] [TIFF OMITTED] TP15JY10.008

[FR Doc. 2010-17166 Filed 7-14-10; 8:45 am]
BILLING CODE 3510-22-C