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Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska
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[Federal Register: June 28, 2006 (Volume 71, Number 124)] [Rules and Regulations] [Page 36694-36714] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr28jn06-13] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 060223050-6162-02; I.D. 013006I] RIN 0648-AT09 Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: NMFS issues a final rule implementing Amendments 78 and 65 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI), Amendments 73 and 65 to the FMP for Groundfish of the Gulf of Alaska (GOA), Amendments 16 and 12 to the FMP for Bering Sea/Aleutian Islands King and Tanner Crabs, Amendments 7 and 9 to the FMP for the Scallop Fishery off Alaska, and Amendments 7 and 8 to the FMP for Salmon Fisheries in the Exclusive Economic Zone off the Coast of Alaska. These amendments revise the FMPs by identifying and describing essential fish habitat (EFH), designating habitat areas of particular concern (HAPC), and include measures to minimize to the extent practicable adverse effects on EFH. This action is necessary to protect important habitat features to sustain managed fish stocks. DATES: Effective on July 28, 2006. ADDRESSES: Copies of the maps of EFH and HAPC management areas, the Environmental Impact Statement (EIS) for EFH Identification and Conservation, the Environmental Assessment/Regulatory Impact Review/ Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for HAPC and the Final Regulatory Flexibility Analysis (FRFA) for this action may be obtained from NMFS, Alaska Region, Attn: Ellen Walsh, Records Officer, P.O. Box 21668, Juneau, AK 99802, or from the Alaska Region NMFS Web site at http://www.fakr.noaa.gov.Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS, Alaska Region, and by e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285. FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or e-mail at melanie.brown@noaa.gov. SUPPLEMENTARY INFORMATION: The groundfish, crab, scallop, and salmon fisheries in the exclusive economic zone (EEZ) off Alaska are managed under their respective FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson- Stevens Act), 16 U.S.C. 1801, et seq. Regulations implementing the FMPs appear at 50 CFR parts 679 and 680. General regulations governing U.S. fisheries also appear at 50 CFR part 600. The Secretary of Commerce approved the FMP amendments for EFH and HAPC identification and conservation on May 3, 2006. Background Detailed information on the history of EFH requirements in the Magnuson-Stevens Act, litigation regarding EFH, gear effects on bottom habitat, Council actions, and summary of the EFH and HAPC amendments to Alaska fisheries FMPs implemented by this final rule are in the preamble to the proposed rule (71 FR 14470, March 22, 2006). Regulatory Amendments A description of the regulatory amendments to implement provisions for EFH and HAPC management follows. Section 679.2 Definitions The final rule revises the definition of ``authorized fishing gear'' to add dredge gear. This definition is necessary to establish restrictions on this gear type in habitat protection areas (HPAs) and habitat conservation zones (HCZs). To ensure consistency between the Federal and State of Alaska (State) regulations for the management of the scallop fishery, the final rule adds a definition for dredge that is the same as the State's definition at 5 Alaska Administrative Code 39.105(16). To identify groups of gear for the purposes of EFH and HAPC management measures, the categories of bottom contact gear and mobile bottom contact gear are added to the authorized fishing gear definition. The definition for bottom contact gear lists dredge, hook- and-line, nonpelagic trawl, dinglebar, and pot gears. The definition for mobile bottom contact gear lists dredge, nonpelagic trawl, and dinglebar gears. The final rule defines each management area established to protect EFH and HAPC. The definitions for the habitat conservation areas (HCAs), HPAs, and HCZs provide the names of the management areas and refer to tables in 50 CFR part 679 for the coordinates of each area to ensure accurate descriptions. The final rule adds a definition for ``federally permitted vessel'' for purposes of the fishing restrictions in the HCAs, HPAs, and HCZs and for vessel monitoring systems (VMS). Federally permitted vessels are those vessels named on either a groundfish Federal fishing permit (FFP) or a Federal crab vessel permit (FCVP). These types of permits were identified for this purpose because they are required for anyone fishing for groundfish or crab species in the EEZ, are easily obtained compared to other types of Federal fishing permits that require catch history, and can be easily relinquished and reissued. The ability to easily relinquish and reissue the groundfish FFPs and FCVPs provides the fisher the flexibility to choose whether to participate in activities that require compliance with the EFH and HAPC restrictions and VMS requirements. This new definition ensures the EFH and HAPC provisions do not apply to vessels named only on other types of federal fishing permits. The final rule adds a definition of ``operate a vessel'' for the purpose of describing when a VMS is required to be transmitting. A vessel is operating any time it is offloading or processing fish; is in transit to, from, or between the fishing areas; or is fishing or conducting operations in support of fishing. Section 679.4 Permits Currently, license limitation permits (LLPs) are issued for fishing groundfish in the GOA with a trawl, non-trawl, or both trawl and non- trawl gear endorsements. The Council recommended that vessels named on an LLP with a trawl endorsement be allowed to use non-trawl gear to fish for slope rockfish within the Gulf of Alaska Slope Habitat Conservation Areas (GOASHCAs). The final rule revises paragraph (k)(3)(iv)(A) to allow vessels named on an LLP with a trawl endorsement to use non-trawl gear to fish for slope rockfish within the GOASHCAs. This revision provides some accommodation to vessels named on an LLP endorsed only for trawl gear, if the operator is willing to use non- trawl gear to fish for slope rockfish within the GOASHCA. [[Page 36695]] Section 679.7 Prohibitions The current pelagic trawl performance standard does not apply to the Community Development Quota (CDQ) pollock fishery. To ensure all directed fishing for pollock follows the performance standard at Sec. 679.7(a)(14), the final rule revises the prohibition to make it applicable to all pollock directed fisheries. Background on the CDQ pollock fishery and the trawl performance standard is detailed in the proposed rule (71 FR 14470, March 22, 2006). To ensure all directed fishing for pollock is conducted using pelagic trawl gear that meets the performance standard at Sec. 679.7(a)(14), the final rule revises this prohibition to delete the word ``non-CDQ,'' thereby making the prohibition applicable to all pollock directed fisheries. This revision ensures that all directed fishing for pollock in the BSAI is conducted with pelagic trawl gear in a manner that has less potential impact on bottom habitat. A new paragraph (a)(20) is added to prohibit the anchoring of any federally permitted fishing vessel in an HPA. This prohibition applies to any vessel named on an FFP or FCVP. Anchoring may disturb bottom habitat during deployment and retrieval of the anchor and is included in those activities that are prohibited in these fragile and sensitive bottom habitat areas. The final rule also adds two new paragraphs (a)(21) and (22) to address the VMS requirements for EFH and HAPC management. Paragraph (a)(21) prohibits all vessels named on an FFP or FCVP from operating in the Aleutian Islands subarea without an operable VMS and without complying with the requirements at Sec. 679.28. Paragraph (a)(22) prohibits all vessels named on an FFP or FCVP from operating in the GOA with mobile bottom contact gear on board without an operable VMS and without complying with the requirements at Sec. 679.28. Section 679.22 Closures The final rule adds fishing closures in the BSAI and GOA. Paragraph (a)(12) is revised, and paragraphs (a)(13), (a)(14), and (a)(15) are added to the closures listed for the BSAI to include the Aleutian Islands Coral Habitat Protection Areas (AICHPAs), Aleutian Islands Habitat Conservation Area (AIHCA), Bowers Ridge Habitat Conservation Zone (BRHCZ), and Alaska Seamount Habitat Protection Areas (ASHPAs), respectively. The final rule adds new paragraphs (b)(8), (b)(9), and (b)(10) to the closures listed for the GOA to include the Gulf of Alaska Coral Habitat Protection Areas (GOACHPAs), GOASHCAs, and ASHPAs, respectively. Portions of the ASHPAs occur in both the BSAI and GOA. Therefore, the closures for these HPAs are addressed under both management areas. Each new paragraph refers to the respective new table in 50 CFR part 679 that contains the coordinates for that management area. The final rule prohibits fishing with bottom contact gear by federally permitted vessels in the HPAs. It also prohibits fishing with nonpelagic trawl gear in the HCAs and fishing in the HCZ with mobile bottom contact gear. Section 679.24 Gear Limitations Existing gear limitations prohibit the use of nonpelagic trawl gear for the directed fishing of non-CDQ pollock in the BSAI. Directed fishing for CDQ pollock was not included in this prohibition for the same reasons stated in the proposed rule (71 FR 14470, March 22, 2006) for the trawl performance standard pursuant to Sec. 679.7(a)(14)(i). To ensure all directed fishing for pollock is conducted with pelagic trawl gear that meets the trawl performance standard, the final rule revises paragraph (b)(4) to remove the term ``non-CDQ.'' This revision prevents potential opportunistic use of nonpelagic trawl gear for pollock harvest in any CDQ trawl fishery, ensuring that all directed fishing for pollock is conducted with pelagic trawl gear that must meet the trawl performance standard and that is less likely to impact bottom habitat. Section 679.28 Equipment and Operational Requirements The final rule revises paragraph (f)(3)(iv) to clarify when a vessel operator must stop fishing because of VMS transmission problems. The paragraph currently specifies that fishing must stop if the vessel operator is informed by NMFS that the VMS is not transmitting properly. The final rule further requires that fishing must stop if the vessel operator determines that the VMS is not transmitting properly. This revision ensures that fishing is stopped as soon as possible after either NMFS or the vessel operator determines that the VMS is not functioning properly. The final rule also revises paragraph (f)(6) to clarify when a VMS must be transmitting for all vessels that are required to have a VMS. For purposes of EFH and HAPC management, the final rule requires VMS transmission while a vessel is operating in the Aleutian Islands subarea or while a vessel is operating in the GOA with mobile bottom contact gear on board. Tables to 50 CFR Part 679 The final rule adds six new tables to 50 CFR part 679 to identify and describe the EFH and HAPC management areas that are defined in Sec. 679.2 and closed to certain gear types in Sec. 679.22 or anchoring under Sec. 679.7. Each table lists the individual sites by name and number within each management area and provides the coordinates needed to locate the boundaries of each site. These tables are necessary to ensure that the fishery participants and State and Federal enforcement staff are able to identify those areas that are restricted to fishing activities. Comments and Responses NMFS received 11 comment letters on the proposed rule that contained 19 separate comments. The following summarizes and responds to these comments. Comment 1: The Federal Register notice of the FMP amendments is hard to understand and should be rewritten and published. The agency is attempting to mislead the public. Response: The FMP amendments are large and complex changes to five FMPs. NMFS provided a concise summary of each of the changes to the FMPs in the Federal Register notice (71 FR 6031, February 6, 2006). In that notice, the public was provided the name, phone number and e-mail address of a contact person and a Web site where additional information is available if a proposed action is not explained to a reader's satisfaction. The Federal Register notice of availability of the FMP amendments provided sufficient information to the public and additional sources of information for more details. The notice will not be republished. Comment 2: NMFS has conflicts of interest by financing fishing vessels and receiving profits from fishing activities. The public loses when NMFS lets the commercial fishing industry run rampant over the nation's resources. Response: The Magnuson-Stevens Act does provide for a Fisheries Finance Program that makes long-term fisheries loans for vessels and shoreside facilities. NMFS receives no financial support from fishing activities, except to recover the costs of administration for certain programs such as the individual fishing quota program for halibut, sablefish, and crab. NMFS disagrees that these programs create a conflict of interest. The FMP amendments for EFH and HAPC will result in restrictions on fishing activities to preserve our nation's marine resources. Comment 3: In general, we support the Council's recommendations and the [[Page 36696]] Secretary of Commerce's approval of the FMP amendments and their implementing regulations. Response: Support is noted. Comment 4: The EFH EIS supports status quo for the GOA and the Bering Sea. The Aleutian Islands subarea has high coral density, highly repetitive fishing patterns, and extensive areas that have not been trawled, unlike the GOA and Bering Sea. We agree with the Council's recommended protection measures for the Aleutian Islands subarea. Response: Support is noted. Even though the EFH EIS determined that the impacts of fishing on EFH in these management areas are no more than minimal, the Council and NMFS have the authority to implement measures necessary for the conservation and management of fishery resources, including precautionary measures to protect EFH. The Council recommended new conservation measures for EFH in the Aleutian Islands and GOA, but deferred any new conservation measures for the Bering Sea pending additional analysis. Comment 5: The State of Alaska recently took emergency action to protect the AICHPAs. We encourage the Council and NMFS to continue to work with the State of Alaska to implement other EFH and HAPC protection measures in the proposed rule. Response: Once the EFH and HAPC regulations are finalized, NMFS and the Council will work with the State of Alaska to develop parallel closures in State waters and fisheries. This issue is scheduled for review by the State of Alaska Board of Fisheries in October 2006. Comment 6: In the preamble to the proposed rule, the comparison of the effect of pelagic and nonpelagic trawl gears on the bottom is not accurate. All components of a nonpelagic trawl are designed to contact the bottom, whereas only the bosom of the footrope of a pelagic trawl is likely to contact the bottom. The comparison should not use the words ``as aggressively'' to describe the type of impact of these two gear types on bottom habitat. Response: NMFS appreciates the commenter's more descriptive comparison of the bottom contact of pelagic and nonpelagic trawl gear. The comparison in the proposed rule was intended to be general and indicate that pelagic trawl gear has less contact and potentially fewer impacts than nonpelagic trawl gear. Comment 7: The use of the term off-bottom mode in describing fishing with pelagic trawl gear is misleading. The trawl performance standards (Sec. 679.7(a)(14)) and the gear limitations in the GOA (Sec. 679.24(b)(4)) are established to ensure pelagic trawl gear is operated in a manner that is less likely to impact the bottom. The performance standard and gear limitation do not preclude the pelagic trawl from contacting the bottom. The public may have assumed that the proposed rule included an off-bottom mode standard for pelagic trawl. Any statement in the final rule regarding fishing for pollock with pelagic gear should not include the phrase off-bottom mode and only should use the pelagic trawl gear performance standard and gear limitation, as specified in the regulations. Response: NMFS agrees with the comments and has incorporated the requested language. Comment 8: The performance standards for pelagic trawl gear are inadequate to prevent seafloor habitat impacts in the AICHPAs, the BRHCZ and the ASHPAs. Although trawling within the performance standard is characterized as off-bottom mode, the standard could allow for significant seafloor impacts. A stronger performance standard is needed to prevent pelagic trawl gear from impacting these sensitive habitats through bottom contact. In the BSAI, the pelagic trawl performance standard based on crabs is not indicative of the lack of habitat impacts and does not provide adequate controls on pelagic trawling in EFH and HAPC management areas. The footrope may be contacting the floor even though crabs may not be observed by being retained in the net. The GOA gear limitation allowing pelagic trawl gear contact of the bottom for no more than 10 percent of the tow could result in large areas being impacted as some tows may extend for several miles. A footrope contacting the bottom may be particularly damaging to animals anchored on or residing in the upper sediments of the seafloor. The Council recommended prohibiting the use of pelagic trawl gear that contacts the bottom in areas where bottom contact gear is prohibited. They also recommended the use of pelagic trawl gear in an off-bottom mode in the AIHCA. A more stringent and enforceable performance standard is needed to ensure pelagic trawl gear is operated in a manner that does not contact the bottom in areas where bottom contact gear is prohibited and to ensure operation without bottom contact in areas where pelagic trawl gear in an off-bottom mode is allowed. Response: See comment 7. NMFS agrees that the current performance standard in the BSAI and gear limitation in the GOA for pelagic trawl gear do not eliminate the possibility that pelagic trawl gear may contact the bottom. However, the EFH EIS determined that given the location and use of pelagic trawl gear in the Aleutian Islands subarea and GOA, no impact on habitat was likely to occur (see ADDRESSES). The Aleutian Islands subarea and GOA areas protected by this final rule are comprised of either very deep waters or rocky substrate that fishers using pelagic trawl gear avoid. Thus, this final rule provides adequate assurance that pelagic trawl gear fisheries would not adversely impact protected habitat areas in the Aleutian Islands subarea and GOA. The EFH EIS determined that pelagic trawl gear is likely to contact soft bottom substrate that is prevalent in the Bering Sea. The Council is reevaluating the potential effects of fishing on Bering Sea habitat. If fishing activities are determined to affect Bering Sea habitat, the Council may recommend protection measures. The development of any protection measures likely would include evaluation of the current pelagic trawl gear performance standard and whether the current standard would meet Council objectives for protection of habitat in the Bering Sea. Comment 9: NMFS' conclusion that the effects of fishing on EFH are no more than minimal and temporary is fundamentally incorrect and based on an unlawful analysis and standard. The conclusion of adverse impact should not be dependent on identifying the decline in productivity of a managed species. The Council's Scientific and Statistical Committee and the Center for Independent Experts told the Council and NMFS that this was too high a standard for which scientific information is missing. The adverse effects of fishing on EFH must be minimized to the extent practical. Response: NMFS responded to the commenter's concerns about the analysis of the effects of fishing on EFH in Appendix L to the final EFH EIS. In summary, NMFS appropriately considered the productivity of managed species to assess whether habitat disturbance caused by fishing reduces the capacity of EFH to support those species. In the final EIS, NMFS reevaluated the effects of fishing on EFH and examined whether stock status and trends indicate any potential influence of habitat disturbance due to fishing. The analysis considered whether credible evidence exists to support a conclusion that disturbance to EFH caused by fishing reduces the capacity of EFH to support managed species. The analysis indicated that there are long- [[Page 36697]] term effects of fishing on benthic habitat features, yet the effects on EFH are minimal because NMFS found no indication that continued fishing activities at the current rate and intensity alter the capacity of EFH to support healthy populations of managed species over the long term. Comment 10: We have two concerns regarding the closures in Southeast Alaska to all bottom contact gear: (1) Little information exists documenting negative fixed gear impacts in this area and (2) the proposed regulations contradict the statutory language which recommends closure areas to be in pristine or undisturbed state. Data indicate that extensive and historic fixed gear effort has occurred in Southeast Alaska. Southeast Alaska should be designated for research purposes only because bottom trawling is prohibited in Southeast Alaska and fixed gear has been used in this area for nearly a century without damaging coral or sponge habitat. We appreciate NMFS' efforts to establish closure areas that include only identified sensitive habitat without surrounding productive fishing grounds. Response: The GOACHPAs located in Southeast Alaska were developed based on in situ submersible observations by NOAA scientists who documented the presence of unusually dense thickets of red tree corals. These corals are large, branching, fragile, and very slow growing structures that enhance the complexity of bottom habitats. They are susceptible to physical disturbance from fishing gear that comes in contact with them, including fixed gear. As discussed in the EA/RIR/ IRFA (see ADDRESSES), longline gear can lie slack and meander along the bottom. During retrieval, the gear can snag on rocks and corals, resulting in corals that are broken, tipped over, or dragged along the sea floor. The areas identified for closure are relatively undisturbed, and the purpose of the closures is to prevent potential future disturbance to those habitat features. The closure areas were identified with active participation from the fishing industry, and the size of the closures was reduced in response to that input. The applicable statutory language for addressing the effects of fishing on habitat is in section 303(a)(7) of the Magnuson-Stevens Act, which requires that fishery management plans ``minimize to the extent practicable the adverse effects of fishing on [EFH].'' Such areas do not have to be in a pristine or undisturbed state, as suggested by the commenter. Comment 11: VMS is a necessary tool for enforcement, fisheries management, and to increase fishing opportunities. VMS is useful for large vessels fishing over vast areas but is not appropriate for small vessels operating in densely fished areas like Southeast Alaska. NMFS should investigate ways to ease the cost of VMS, especially for small vessels. Difficulties in implementing VMS should not delay the implementation of the EFH and HAPC regulations. Response: In the GOA, VMS requirements in this rule apply only to vessels with an FFP or FCVP and mobile bottom contact gear on board. NMFS agrees that implementation of the EFH and HAPC regulations should not be delayed by difficulties in implementing VMS and that VMS is a necessary tool for fisheries management and enforcement. VMS is useful for tracking vessel locations for small and large vessels. VMS is important for enforcing EFH protection areas, which are impacted more by the gear type than the vessel size. The FRFA analysis shows that in most instances, the cost of VMS is reasonable for small vessels. Some vessels may have a very small portion of their income derived from fishing activities that require VMS, making the cost of VMS higher relative to the revenue from those fishing activities. It is up to the vessel owner and operator to determine if the income from a fishing activity requiring VMS justifies the expense for the VMS. In the past, NMFS has purchased VMS units for some participants in the groundfish fisheries. For fiscal year 2006, NMFS has a national VMS reimbursement program for vessel owners who are required by regulations promulgated in 2006 to install and operate a VMS unit for the first time. The details of this program will be available in late summer 2006 through the Alaska Region Web site at http://www.fakr.noaa.gov.