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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues a proposed rule that would implement 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, if approved, would revise the FMPs by identifying and describing essential fish habitat (EFH), designating habitat areas of particular concern (HAPCs), and including measures to minimize to the extent practicable adverse effects on EFH. This action is necessary to update the descriptions of EFH in the FMPs based on the best available scientific information and to protect those areas that have important habitat features for the sustainability of managed fish stocks.

DATES:

Written comments must be received by May 8, 2006.

ADDRESSES:

Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Records Officer. Comments may be submitted by:

• Mail: P.O. Box 21668, Juneau, AK 99802.
• Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK.
• Fax: 907-586-7557.
• E-mail: EFH-HAPC-PR-0648-AT09@noaa.gov. Include in the subject line the following document identifier: EFH-HAPC PR. E-mail comments, with or without attachments, are limited to 5 megabytes.
• Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for submitting comments.

Copies of the maps of EFH and HAPC management areas, the Environmental Impact Statement (EIS) for EFH, and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for HAPCs may be obtained from the addresses stated above 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 proposed rule may be submitted to NMFS, Alaska Region, and to the Office of Management and Budget 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 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 Council has submitted the amendments for EFH and HAPC provisions for review by the Secretary of Commerce, and a Notice of Availability of the amendments was published in the Federal Register on February 6, 2006 (71 FR 6031), with comments on the amendments invited through April 7, 2006. Comments may address the FMP amendments, the proposed rule, or both, but must be received by April 7, 2006, to be considered in the approval/disapproval decision on the FMP amendments. All comments received by that time, whether specifically directed to the FMP amendments or to the proposed rule, will be considered in the approval/disapproval decision on the FMP amendments.

Background

Section 303(a)(7) of the Magnuson-Stevens Act requires that each FMP describe and identify EFH, minimize to the extent practicable the adverse effects of fishing on EFH, and identify other measures to promote the conservation and enhancement of EFH. The Council amended its five FMPs in 1998 to address the EFH requirements of the Magnuson-Stevens Act. The Secretary of Commerce, acting through NMFS, approved the Council's EFH FMP amendments in January 1999. In the spring of 1999, a coalition of seven environmental groups and two fishermen's associations filed suit in the United States District Court for the District of Columbia challenging NMFS’ approval of EFH FMP amendments prepared by the Gulf of Mexico, Caribbean, New England, North Pacific, and Pacific Fishery Management Councils (American Oceans Campaign (AOC) et al. v. Daley et al., Civil Action No. 99-982-GK). The focus of the AOC v. Daley litigation was whether NMFS and the Councils had adequately evaluated the effects of fishing on EFH and taken appropriate measures to mitigate adverse effects. In September 2000, the court upheld NMFS’ approval of the EFH FMP amendments under the Magnuson-Stevens Act, but ruled that the EAs prepared for the amendments violated the National Environmental Policy Act (NEPA). The court ordered NMFS to complete new and thorough NEPA analyses for each EFH FMP amendment in question.

NMFS, Alaska Region, and the Council completed an EIS pursuant to the court order. Under the terms of a joint stipulation and court order, the Record of Decision for the EIS had to be completed by August 13, 2005, and any implementing regulations must be approved by August 13, 2006. The final EFH EIS was filed with the U.S. Environmental Protection Agency on April 25, 2005, and a notice of availability was published on May 6, 2005, (70 FR 24037). The Record of Decision was approved on August 8, 2005. The joint stipulation and court order also require NMFS and the Council to consider the identification of specific HAPCs and associated management measures, with any regulations promulgated by August 13, 2006.

The Council adopted the new EFH and HAPC amendments in February 2005 and provided further recommendations in June 2005. If approved by NMFS, these amendments would revise the FMPs by updating the description and identification of EFH, changing the identification of HAPCs, and authorizing protection measures for EFH and HAPCs. Councils must act to prevent, mitigate, or minimize any adverse effects from fishing, to the extent practicable, if evidence suggests that a fishing activity adversely affects EFH in a manner that is more than minimal and not temporary in nature. The EIS determined that the effects of fishing activities on EFH are minimal, although some effects are persistent rather than temporary. Therefore, protection measures for the fisheries to reduce the adverse effects on EFH are not required by § 600.815. Regardless, the Council recommended precautionary measures to provide protection to EFH and HAPCs from the effects of fishing activities. This action would continue the Council's policy of implementing precautionary conservation measures for the Alaska fisheries, as described in the management policies and objectives added to the groundfish FMPs in 2004 (69 FR 31091, June 2, 2004).

The Council developed alternatives for the EIS analysis using an extensive public process that involved guidance from NMFS, a formal public scoping period, 15 EFH Committee meetings and work sessions, and numerous meetings of the Council and its Advisory Panel and its Scientific and Statistical Committee. HAPCs were identified through a Council process that included members of the Council's FMP Plan Teams, NMFS, fishing industry representatives, State of Alaska, university representatives, and environmental organizations. The proposals were reviewed and ranked by the review teams against criteria established by the Council for the consideration of HAPC proposals. The Council's identification and description of EFH, selection of HAPCs, and adoption of new management measures, as proposed under this action, resulted from this public process, including consideration of the best available science. A detailed description of the process for developing the EFH alternatives is in section 2.2.3 of the EIS (see ADDRESSES). Details of the HAPC selection process are in Appendix B of the EA/RIR/IRFA for HAPC (see ADDRESSES).

Several gear types used in the Alaska fisheries have been identified as likely to disturb bottom habitat (although not at a level that was determined to be more than minimal) and would be restricted by this action to protect EFH and HAPCs. These gear types include pot, hook-and-line, dredge, dinglebar troll, and nonpelagic trawl gears. Detailed descriptions of fishing gear and the impacts on bottom habitat are in the EFH EIS and in the EA/RIR/IRFA for HAPCs (see ADDRESSES).

Dinglebar troll gear is used in the State of Alaska lingcod troll fishery in the GOA. Dinglebar troll gear consists of a single line that is retrieved and set with a power or hand-troll gurdy, with a terminally attached weight (dinglebar), from which one or more leaders with one or more lures or baited hooks are pulled through the water while a vessel is underway. The dinglebar, usually made of a heavy metal such as iron, is used in nearly continuous contact with the bottom, and therefore, is likely to disturb bottom habitat.

Pot gear is used in the crab and groundfish fisheries that occur on the ocean bottom. Pots may be from 6 feet to 8 feet (1.8 m to 2.4 m) square and can weigh several hundred pounds. Hook-and-line gear also is used in the groundfish fisheries for species that occur on the ocean bottom. This gear consists of a groundline employed with gangions spaced several feet apart with hooks and may be up to several miles long. Sets are weighted to minimize movement of the groundline on the sea floor. Sets are anchored at each end with an anchor weighing 30 pounds to 60 pounds (13.6 kilograms to 27.3 kilograms). Gear components that contact the bottom include the anchors, groundlines, intermediate weights, gangions, and hooks. Pot and hook-and-line gear may disturb bottom habitat during deployment and retrieval of the gear.

Dredge gear is used to harvest scallops and consists of a heavy-framed device with an attached holding bag which is towed along the surface of the seabed. When fishing properly, the dredge shoes, ring bag, and club stick maintain contact with the seabed. Nonpelagic trawl gear is used in the groundfish fisheries for species occurring at or near the ocean bottom. This gear is designed to be used in contact with the bottom. Contact with the seafloor may occur by several parts of the trawl, including doors, sweeps, and footropes. Because dredge and nonpelagic trawl are mobile gear used in contact with the bottom, these gear types are most likely to disturb larger areas of bottom habitat compared to other gear types used in Alaska fisheries.

Pelagic trawl gear also has been known to contact the bottom and may have impacts on bottom habitat. This gear type is primarily used for the harvest of pollock and typically does not contact the bottom as aggressively as a bottom trawl. Contact with the seafloor, when it occurs, is typically from the footrope as well as from the weight chains attached to portions of the trawl. The use of pelagic trawl gear for directed fishing for pollock in the GOA and BSAI must meet the trawl performance standard which states that no more than 20 crabs of 1.5 inches (38 mm) or larger may be on the vessel at any time (§ 679.7(a)(14)). This standard was intended to reduce halibut and crab incidental catch in the pollock fishery by ensuring the pelagic trawl gear is operated in a manner that is less likely to contact the bottom (58 FR 17196, April 1, 1993). In the GOA, the footrope of a pelagic trawl may not contact the seabed for more than 10 percent of the period of any tow (§ 679.24(b)(3)). This gear limitation reduces the potential impact of pelagic trawl gear on the seabed in the GOA. Under this proposed rule, pelagic trawl gear used for directed fishing for pollock would be allowed in the EFH and HAPC management areas described below only in an off-bottom mode based on the trawl performance standard and within the gear limitation in the GOA.

Summary of Proposed Management Measures

The amendments specify EFH and HAPC provisions for each FMP. These provisions include management measures that close areas to certain fishing gear activities. The closures would apply to all federally permitted vessels with the specified gear type. Federally permitted vessels are those named on either a Federal fisheries permit (FFP) or a Federal crab vessel permit (FCVP) that operate within the EEZ or State of Alaska waters. NMFS is concerned that vessels licensed by the State of Alaska that are participating in fisheries for non-FMP managed species within the EEZ (e.g., the lingcod fishery managed by the State of Alaska) may impact these closed areas. Under the current proposed rule, vessels licensed by the State of Alaska would not be subject to the closures unless they were also federally permitted vessels. Existing federal regulations for fishing within the EEZ off Alaska do not require vessels to be federally permitted unless such vessels retain FMP managed species. The preferred solution to this concern is for the State of Alaska to adopt similar restrictions to those found in this proposed rule that would apply to vessels licensed by the State of Alaska. In 2006, the Council is scheduled to work with the State of Alaska Board of Fisheries to develop state protection measures for EFH. If the preferred solution does not fully address the concern, NMFS will explore other options with the Council and the State of Alaska.

The following discussion summarizes the amendments for EFH and HAPC provisions of the FMPs and the regulatory amendments that would be needed to implement the FMP amendments. Maps of the proposed EFH and HAPC management areas described below are available from NMFS (see ADDRESSES).

The Council recommended three actions for EFH. The first two actions do not require the promulgation of implementing regulations. Action 1 would revise the description and identification of EFH in the FMPs using new information and improved mapping. This action would ensure that the best scientific information available is used to describe and identify EFH in the FMPs, as required by § 600.815(a)(1)(ii)(B). Action 2 would adopt an approach for identifying HAPCs. The FMP amendments would rescind existing HAPCs and add a procedure for identifying HAPCs based on specific sites within EFH that are necessary to address particular habitat concerns.

Action 3 would require a regulatory amendment to establish several types of management areas to provide protection from the adverse effects of fishing on EFH. These management areas are located in the Aleutian Islands subarea and in the GOA. Many of these areas include State waters. NMFS and the Council intend to coordinate with the State to encourage complementary protection of sensitive habitat in near shore waters.

The Aleutian Islands Habitat Conservation Area (AIHCA) encompasses the entire Aleutian Islands subarea except for specified areas that have supported the highest groundfish catches in the past. This area would encompass 279,454 nm² and would be closed to fishing for all federally permitted vessels using nonpelagic trawl gear. The closures would prevent the expansion of nonpelagic trawling into relatively undisturbed habitats while allowing most major fishing areas to remain open. Areas with historically high catches of target species would be designated as areas open to nonpelagic trawl gear fishing. The shapes of these areas are based on fisheries observer data, fishing industry catch data, the average duration and distance during a single deployment of nonpelagic trawl gear, and the needs for clear boundaries to be delineated using straight lines and oriented to latitude and longitude where possible. Some boundaries include locations between coordinate points at the low mean tide level along the shoreline, which are further explained in a new Table 24 to 50 CFR part 679 in the proposed rule. The proposed coordinates and connecting lines can be applied to NOAA nautical charts to ensure fishermen and enforcement personnel can easily identify restriction areas.

The Council determined that the AIHCA would provide a balance between continued fishing in the Aleutian Islands subarea and protection of sensitive habitats, such as cold water corals. This closure also would include habitat areas that are not identified as EFH at this time. Specifically, the AIHCA includes habitat areas that extend beyond the limits of EFH for groundfish, crabs, and scallops. The Council has identified the water column in all of these areas as EFH for marine salmon, but the bottom habitats have not been well surveyed and therefore are not considered EFH. The Council developed the AIHCA primarily to address potential effects on EFH, but the analysis also indicated a potential for adverse effects to habitats that support managed species in areas outside of EFH. The Council had incomplete information regarding habitat functions in these areas, but based on the best scientific information available, these areas include corals and other sensitive habitat types that may be important to managed species. Such habitats are susceptible to harm from nonpelagic trawl gear and may take a long time to recover following disturbance. The Council therefore decided that the AIHCA should include areas outside of EFH. The Council recommended the AIHCA and the other new closures in this proposed rule as precautionary measures to preclude damage to habitats that may be important for Council managed species.

The EFH amendments also would establish six Aleutian Islands Coral Habitat Protection Areas (AICHPAs) that would be closed to anchoring by all federally permitted vessels and closed to fishing with bottom contact gear by federally permitted vessels. Bottom contact gear includes nonpelagic trawl, hook-and-line, pot, dredge, and dinglebar. The definition for each of these gear types, except dredge, is located in § 679.2 under authorized gear. The AICHPAs are located off Semispochnoi Island, Bobrof Island, Cape Moffet, Great Sitkin Island, Ulak Island, and Adak Canyon, totaling 110 nm². These areas were recommended for this level of protection by NMFS, industry, and environmental organizations during the HAPC identification process. The delineation of each specific area was adopted by the Council to provide protection to discrete coral garden habitat areas. The boundaries are straight lines oriented to latitude and longitude for easy location on NOAA nautical charts and to facilitate compliance, monitoring, and enforcement. Bottom contact gear and anchoring restrictions for these areas are needed because they contain especially diverse and fragile living habitat structures that are particularly sensitive to the impacts of bottom contact gear and anchoring, and have long recovery times once damaged. The Council determined that a higher level of protection is appropriate for these unique habitats.

In the GOA, the EFH amendments would establish ten GOA Slope Habitat Conservation Areas (GOASHCAs) where fishing for groundfish by federally permitted vessels with nonpelagic trawl gear would be prohibited. These areas, encompassing 2,112 nm² on the upper to intermediate slope where depths are from 200 m to 1,000 m, were identified based on the likely occurrence of high relief corals and rockfish in lightly fished areas. The EIS analysis indicated that nonpelagic trawl gear has the largest impact on this habitat. Therefore, nonpelagic trawls would be restricted in these areas. The shapes of the areas were developed in the same manner as described above for AICHPA. The proposed restriction on the use of nonpelagic trawl gear in these areas would provide refuge for rockfish and other managed species and long term protection for corals.

The Council also recommended three actions to identify and manage HAPCs within EFH that require regulatory amendments. Action 1 would identify fifteen Alaska Seamount Habitat Protection Areas (ASHPAs) where anchoring by all federally permitted vessels would be prohibited and fishing with bottom contact gear by a federally permitted vessel would be prohibited. Fourteen of these areas are located in the GOA and one is located in the Aleutian Islands subarea at Bowers Seamount. In total, they encompass 5,329 nm². These areas were identified for this level of protection by NMFS, industry, and environmental organizations during the HAPC identification process. The specific areas delineated would protect the seamount habitat features. The boundaries are straight lines oriented to latitude and longitude to facilitate locating them on NOAA nautical charts. Bottom contact gear and anchoring restrictions for these areas are needed because the areas contain especially diverse and fragile living habitat structures that are particularly sensitive to the impacts of bottom contact gear and anchoring, and have long recovery times once damaged. Seamounts provide unique oceanographic and living habitat features that are important habitat for fish.

HAPC Action 2 would establish the GOA Coral Habitat Protection Areas (GOACHPAs) where all federally permitted vessels would be prohibited from anchoring and from fishing with bottom contact gear. Four of these areas are located on the Fairweather Grounds and one is located off Cape Ommaney, totaling 13.5 nm². Dense thickets of Primnoa sp. coral have been identified in these areas by NMFS and the Alaska Department of Fish and Game during survey work using submersible dives. These living habitat structures grow very slowly, are sensitive to disturbance by any bottom contact gear and anchoring, and have long recovery times. Restricting bottom contact gear and anchoring would ensure the living structures would be protected from fishing activities that may adversely impact the habitat.

Action 3 would designate the Bowers Ridge Habitat Conservation Zone (BRHCZ) as a HAPC located in the BSAI. This zone would contain two areas enclosing Bowers Ridge and Ulm Plateau, totaling 5,286 nm². The BRHCZ would be located primarily in the Aleutian Islands subarea with the northern edge of each area overlapping into the Bering Sea subarea. The boundaries of these areas are based on industry and environmental group proposals for protection of these areas. The areas encompass most of the waters of Bowers Ridge where fishing may occur. The proposed rule would prohibit all federally permitted vessels from fishing with mobile bottom contact gear (nonpelagic trawl, dredge, and dinglebar troll gears) in this area. The Council recommended limiting the fishing prohibition for the BRHCZ to mobile bottom contact gear until more research can be done in this zone to determine if additional restrictions would be appropriate for fixed gear fisheries. The mobile bottom contact gear prohibition would provide precautionary management for Bowers Ridge and the Ulm Plateau based on the limited information available for the zone.

Tracking the location of fishing vessels by vessel monitoring systems (VMSs) would facilitate enforcement of the EFH and HAPC management measures. Many of the proposed fishing restrictions involve relatively small areas dispersed over a large section of the EEZ, making surveillance by enforcement vessels or aviation patrols difficult with existing resources. In February 2005, the Council recommended that all federally permitted fishing vessels operating in the Aleutian Islands subarea be required to operate a VMS. In June 2005, the Council expanded this requirement to all federally permitted vessels operating in the GOA with mobile bottom contact gear on board. The Council further requested NMFS to develop a separate comprehensive analysis on broader application of VMS requirements to all vessels under federal jurisdiction to address safety, management, and enforcement objectives.

NMFS received comments on the final EIS from the Alaska Longline Fishermen's Association (representing approximately 65 members, most of whom fish from vessels less than 60 feet (18.3 m) in length overall (LOA)) strongly opposing a VMS requirement for fixed gear vessels due to the cost and the perceived lack of need for VMS to protect sensitive habitat features. Mobile bottom contact fishing gears have the greatest potential for adverse effects on sensitive sea floor habitat features such as those contained in the GOASHCA, ASHPA, and GOACHPA. Although trawling is currently prohibited in the eastern GOA, including all of the proposed GOACHPA (§ 679.7(b)(1)), trawling is currently allowed in most areas that would be the ASHPA and the GOASHCA. VMS operation would facilitate enforcement for bottom trawl vessels in these proposed areas. In response to the EIS comments and the Council's June 2005 recommendation, the proposed rule would exempt fixed gear vessels from the VMS requirements in the GOA. NMFS agrees with the Council that a separate comprehensive analysis of options for broader application of VMS to meet multiple objectives would be an appropriate means to evaluate associated costs and benefits. Many vessels operating in the Aleutian Islands subarea and the GOA participate in crab, pollock, Pacific cod, or Atka mackerel fisheries that require the use of a VMS pursuant to the Steller sea lion protection measures (68 FR 204, January 2, 2003) and crab fishery regulations (70 FR 10174, March 2, 2005). The provision that would require expanded use of VMS in the GOA and Aleutian Islands subarea would have associated costs. The EIS analysis of this provision does not indicate to NMFS that costs of VMS are prohibitive. However, the placement of a VMS on small vessels does impose costs because of the limited space, the potential need for upgrading the electrical system to allow for the VMS operation, the daily cost of operation, and the total cost of the VMS requirement in relation to the income generated by fishing with a very small vessel.

NMFS specifically seeks public comment on the VMS requirements of this proposed rule. NMFS has analyzed alternatives for VMS requirements in the GOA that would further reduce costs for small vessels, as further explained in the Classification section of this preamble. Public comments are requested on (1) the need for VMSs for all vessels in the Aleutian Islands subarea, and (2) the need for VMSs for all vessels operating with mobile bottom contact gear in the GOA. Public comment could provide additional information to NMFS to decide if less comprehensive VMS coverage in the Aleutian Islands subarea and GOA could maintain management and enforcement capabilities while reducing burdens on fishery participants.

The proposed rule would add a definition of “operate a vessel” for the purposes of the VMS requirement to include any time a vessel 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. This definition would allow the tracking of a vessel by its VMS transmission at those times when the vessel is conducting fishing activities in or near an EFH or HAPC management area, or is capable of conducting such activities in the near future.

Proposed Regulatory Amendments

A description of the proposed regulatory amendments that would be required to implement provisions for EFH and HAPC management follows.

Section 679.2 Definitions

The proposed rule would revise the definition of authorized fishing gear to add dredge gear. This definition would be necessary to establish restrictions on this gear type in HPAs and HCZs. To ensure consistency between the Federal and State of Alaska regulations for the management of the scallop fishery, the proposed rule would add 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 would be added to the authorized fishing gear definition. The definition for bottom contact gear would list dredge, hook-and-line, nonpelagic trawl, dinglebar, and pot gears. The definition for mobile bottom contact gear would list dredge, nonpelagic trawl, and dinglebar gears.

The proposed rule would define each management area established to protect EFH and HAPC. The definitions for the HCAs, HPAs, and the HCZs would provide the name of the management area and refer to tables in 50 CFR part 679 for the coordinates of each area to ensure accurate descriptions.

The proposed rule would add a definition for “federally permitted” for purposes of the fishing restrictions in the HCAs, HPAs, and HCZ and for VMS. Federally permitted vessels would be those vessels named on either a FFP or a 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 FFPs and FCVPs would provide 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 would ensure that the EFH and HAPC provisions would not apply to vessels named only on other types of federal fishing permits.

The proposed rule would add a definition of “operate a vessel” for the purpose of describing when a VMS is required to be transmitting. A vessel would be 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 endorsement. The Council recommended that vessels named on a LLP with a trawl endorsement be allowed to use non-trawl gear to fish for slope rockfish within the GOASHCA. The proposed rule would revise 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 GOASHCA. This revision would provide some accommodation to vessels named on an LLP endorsed only for trawl gear if the operator is willing to use non-trawl gear for slope rockfish fishing within the GOASHCA.

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 § 679.7(a)(14), the proposed rule would revise the prohibition to make it applicable to all pollock directed fisheries. The current difference in the applicability of the pelagic trawl performance standard between the CDQ and non-CDQ pollock sectors stems from changes made to § 679.7(a)(14) during implementation of Amendment 57 to the BSAI FMP. Amendment 57 prohibited the use of nonpelagic trawl gear in the directed fishery for pollock in the BSAI, except for the CDQ pollock fishery and revised the pelagic trawl performance standard for this fishery (65 FR 31105, May 16, 2000). Amendment 57 exempted vessels fishing for pollock CDQ from the nonpelagic trawl gear prohibition for two reasons.

First, the specific allocative structure of the CDQ Program provides an incentive for the CDQ groups to use pelagic trawl gear in the pollock CDQ fishery in order to minimize bycatch. With limited exceptions, groundfish catch in the pollock CDQ fishery is deducted from CDQ groups' applicable quota categories. The use of nonpelagic trawl gear in the pollock CDQ fishery could increase the catch rate of incidental catch species, which in turn could adversely impact the amount of quota available to account for such species in other target CDQ fisheries. Second, NMFS did not have a definition for directed fishing for pollock CDQ at the time Amendment 57 was approved. Such a definition was then under development as part of Amendment 66 to the BSAI FMP. Without a definition for pollock CDQ directed fishing, a prohibition against using nonpelagic trawl gear while directed fishing would have not been enforceable in the CDQ fisheries.

Subsequent to the implementation of the changes to the trawl performance standard under Amendment 57, NMFS implemented comprehensive changes to the management of the BSAI pollock, Pacific cod, and Atka mackerel fisheries to protect Steller sea lions from the potential adverse effects of these Alaska groundfish fisheries (68 FR 204, January 2, 2003). As part of such measures, NMFS revised regulations to define directed fishing in the CDQ fisheries based on the same maximum retainable amount standards that apply to the non-CDQ groundfish fisheries. This revision was necessary to provide a means to ensure that Steller sea lion protection measures that apply to groundfish CDQ harvesting activities could be monitored effectively.

To ensure all directed fishing for pollock is conducted using pelagic trawl gear that meets the performance standard at § 679.7(a)(14), the proposed rule would revise this prohibition to delete the word “non-CDQ,” thereby making the prohibition applicable to all pollock directed fisheries. This revision would ensure that all directed fishing for pollock in the BSAI is conducted with pelagic trawl gear in an off-bottom mode, resulting in less potential impact on bottom habitat.

A new paragraph (a)(20) would be added to prohibit the anchoring of any federally permitted fishing vessel in a HPA. This prohibition would apply to any vessel named on a FFP or FCVP. Anchoring may disturb bottom habitat during deployment and retrieval of the anchor and should be included in those activities that are prohibited in these fragile and sensitive bottom habitat areas.

The proposed rule would add two new subparagraphs to paragraph (a) to address the VMS requirements for EFH and HAPC management. Paragraph (a)(21) would prohibit all vessels named on a FFP or FCVP from operating in the Aleutian Islands subarea without an operable VMS and without complying with the requirements at § 679.28. Paragraph (a)(22) would prohibit all vessels named on a 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 § 679.28.

Section 679.22 Closures

The proposed rule would add fishing closures in the BSAI and GOA. New paragraphs (a)(12), (a)(13), (a)(14), and (a)(15) would be added to the closures listed for the BSAI to include the AICHPA, AIHCA, BRHCZ, and ASHPA, respectively. It would add new paragraphs (b)(8), (b)(9), and (b)(10) to the closures listed for the GOA to include the GOACHPA, GOASHCA, and ASHPA, respectively. Portions of the ASHPA occur in both the BSAI and GOA. Therefore, the closures for this HPA are addressed under both management areas. Each new paragraph would refer to the respective new table in 50 CFR part 679 that contains the coordinates for that management area. The proposed rule would prohibit fishing with bottom contact gear by federally permitted vessels in the HPAs. It also would prohibit 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 above for the trawl performance standard pursuant to § 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 proposed rule would revise paragraph (b)(4) to remove the term “non-CDQ.” This revision would prevent potential opportunistic use of nonpelagic trawl gear for pollock harvest in any CDQ trawl fishery, ensuring that all directed fishing for pollock would be conducted with pelagic trawl gear that must meet the trawl performance standard and that would be less likely to impact bottom habitat.

Section 679.28 Equipment and Operational Requirements

The proposed rule would revise 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 proposed rule would further require that fishing must stop if the vessel operator determines that the VMS is not transmitting properly. This revision would ensure that fishing is stopped as soon as possible after either NMFS or the vessel operator determines that the VMS is not functioning properly.

The proposed rule also would revise 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 proposed rule would require 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 proposed rule would add six new tables to 50 CFR part 679 to identify and describe the EFH and HAPC management areas which are defined in § 679.2 and closed to certain gear types in § 679.22 or anchoring under § 679.7. Each table would list the individual sites by name and number within each management area and provide 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.

Classification

At this time, NMFS has not determined that the FMP amendments that this rule would implement are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making that determination, NMFS will take into account the data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

NMFS prepared a final EIS for this proposed action; a notice of availability was published on May 6, 2005, (70 FR 24037) and the Record of Decision was completed on August 8, 2005. The analysis indicates that there are long-term effects of fishing on benthic habitat features off Alaska and acknowledges that considerable scientific uncertainty remains regarding the consequences of such habitat changes for the sustained productivity of managed species. Nevertheless, based on the best available scientific information, the EIS concludes that the effects on EFH are minimal because the analysis finds no indication that continued fishing activities at the current rate and intensity would alter the capacity of EFH to support healthy populations of managed species over the long term. The analysis concludes that no fishing activities under the Council's jurisdiction have more than minimal and temporary adverse effects on EFH, which is the regulatory standard requiring action to minimize adverse effects under the Magnuson-Stevens Act. A variety of practicable management actions could be taken as precautionary measures to provide additional habitat protection.

NMFS prepared an initial regulatory flexibility analysis (IRFA) for the EFH areas and HAPC proposals, as required by section 603 of the Regulatory Flexibility Act (RFA). NMFS determined that the use of VMS is required for certain classes of vessels for the effective enforcement of both the EFH and HAPC proposals based on the limited USCG and NMFS enforcement resources available. The IRFA prepared for the EFH EIS contains the small entity analysis of the VMS proposals. The IRFAs describe the economic impact this proposed rule would have on small entities, if approved. A description of the actions, why they are being considered, and their legal basis, is provided above. A summary of the analyses follows. Copies of these analyses are available from NMFS (see) ADDRESSES.

The Council considered a suite of alternatives for the eastern Bering Sea management area (EBS) in the draft EFH EIS/RIR/IRFA. Based on that preliminary analysis, the Council decided not to adopt new management measures for EFH protection in the EBS at this time, but to initiate an expanded analysis to consider potential mitigation measures for the EBS. The Council determined that existing information was insufficient to justify immediate action to add new habitat protection measures in the EBS. By delaying implementation of EFH measures in the EBS, pending additional study, the Council effectively relieved potential adverse impacts on directly regulated small (and large) entities in the EBS fisheries.

Aleutian Islands Habitat Conservation Area

This proposed action would designate 279,454 nm² of the Aleutian Islands subarea (AI), or about 96 percent, as the AIHCA and close the area within the AIHCA boundaries to fishing by nonpelagic trawl gear.

Forty-six trawlers used nonpelagic trawl gear in the Aleutian Islands subarea in 2003. Their average gross revenues from all Federal and State of Alaska managed fisheries were $3.6 million. Of these 46 operations, 13 qualify as small entities under Small Business Administration (SBA) criteria. Average gross revenues for these 13 were about $626,000.

The analyses summarized in the IRFAs characterized the revenues derived from catches made in areas to be closed or restricted by these measures as “revenues at risk.” These revenues are at risk, rather than foregone, because it is possible, and in many instances likely, that fishing operations may be able to offset some or all of these potential losses by changing their fishing activity (e.g., change gear or moving to alternative fishing grounds). Operations that change their activities to offset revenue-at-risk losses may incur higher operational costs in doing so. Revenues at risk are a key empirical measure of potential adverse economic impacts and are used as an index of expected gross receipt impacts on directly regulated small entities within the fleet. Other adverse economic and operational impacts that may accrue to small entities as a result of adopting the proposed action, but which are not amenable to empirical quantification, are included in the IRFAs, albeit largely in qualitative terms.

The preferred alternative would have placed $1.23 million of the nonpelagic trawl fleet's gross revenues at risk, if it had been in effect in 2001. This represents about 2.2 percent of the $55.81 million of status quo revenue in the affected fisheries in 2001, for all nonpelagic trawl trawlers, large and small, fishing in the AIHCA. Most, if not all, of the revenue at risk could have been mitigated by redeploying fishing effort into adjacent areas that would remain open to nonpelagic trawl gear. Such changes in fishing behavior, however, may result in increased operational costs.

Alternative 1 is the status quo/no action alternative. Alternatives 2 and 3 would have no implications for the Aleutian Islands subarea nonpelagic trawl fleet. Alternative 4 would prohibit nonpelagic trawl use in four large areas of the Aleutian Islands subarea (near Semisopochnoi Island, Stalemate Bank, Bowers Ridge, and Seguam Pass). The areas that would be closed under this alternative are significantly smaller than under the preferred alternative (Alternative 5C). Alternative 5A would prohibit nonpelagic trawl gear use in five large areas of the Aleutian Islands subarea (Semisopochnoi Island, Seguam Pass, Yunaska Island, Stalemate Bank, and Bowers Ridge). Various combinations of areas would be closed to nonpelagic trawl gear in the Aleutian Islands subarea under each of three different Alternative 5B options (Options 1, 2, and 3). In addition, Options 1 and 2 would require reductions in total allowable catch amounts (TACs) for Pacific cod, Atka mackerel, and rockfish equivalent to the expected catch of each species that would have come from the closed areas. Alternative 5C is the preferred alternative, and potential adverse impacts were described above. Alternative 6 would prohibit the use of all bottom contact fishing gear within about 20 percent of all fishable waters in the Aleutian Islands subarea (i.e., 20 percent of the waters shallower than 1,000 m).

Aleutian Islands Coral Habitat Protection Areas

The preferred alternative would designate six AICHPAs as EFH, and prohibit the use of all bottom contact fishing gear (i.e., onpelagic trawl, hook-and-line, pot, dinglebar, and dredge) within these areas. This action has the potential to adversely impact small entities using bottom contact gear in these six areas. The small entities that would be directly regulated by this action would include those with an FFP or FCVP fishing in the Aleutian Islands subarea. The IRFA estimates that there were 124 such small entities in 2003. Average gross revenues for these small entities, from all fishing sources in Alaska, were about $950,000 based on 2003 fishing records.

This alternative would place relatively small amounts of revenue at risk in the Aleutian Islands subarea groundfish, halibut, and crab fisheries. Given the relatively small, discrete areas encompassed by the designated coral habitat protection areas, it was difficult to ascertain the precise catch and revenue that would be placed at risk by the proposed restrictions in these areas. Using data from 2001, NMFS estimated that about $235,000 or less than 0.5 percent of the status quo groundfish revenue in the Aleutian Islands subarea would be at risk. The International Pacific Halibut Commission (IPHC) estimated using data from 1995 to 2002 that about 4.4 percent of the total IPHC Area 4B harvest over that period would have been at risk (insufficient data were available to derive a catch value for these halibut). Ex-vessel revenue at risk in crab fisheries would have totaled approximately $313,000, or less than 0.1 percent of the status quo revenue of $121.9 million, over the 8-year period. Catch and revenue placed at risk in the Aleutian Islands subarea by prohibiting bottom contact gear in the six coral gardens would likely be mitigated by transferring fishing effort to adjacent areas open to bottom contact gear fishing. Changes in operating behavior may result in increases in operating costs and lower net returns. However, cost data needed to derive these net revenue estimates are not available to NMFS.

Four alternatives for protecting Aleutian Islands subarea corals were considered in the HAPC EA/RIR/IRFA. Alternative 1 was the status quo/no action alternative. Alternative 2 is the AICHPA and the preferred alternative discussed above. Alternative 3 would classify much of Bowers Ridge as HAPC, and prohibit the use of mobile bottom contact gear within it. This action also was adopted as part of the preferred alternative; see the analysis of the BRHCZ below. Alternative 4 would designate four sites within the Aleutian Islands subarea as HAPCs (South Amlia/Atka, Kanaga Volcano, Kanaga Island, and Tanaga Islands), with two options for gear restrictions. Under Alternative 5, all the areas designated under Alternatives 2, 3, and 4 would be adopted.

Bowers Ridge Habitat Conservation Zone

This action would establish a BRHCZ as a HAPC. The action would prohibit mobile bottom contact gear (i.e., nonpelagic trawl, dredge, and dinglebar) within the area designated as HAPC. Small entities that use mobile bottom contact gear within the BRHCZ would be directly regulated, and thus adversely impacted by this action.

The most consistent source of activity on Bowers Ridge, from the categories of gear that would be prohibited there, has been from head-and-gut trawl catcher processors. Head-and-gut trawl catcher processors are almost all large entities, based on SBA criteria; possibly one out of a potential 23 entities may be characterized as a small entity.

The potential adverse economic impacts on small vessels from this action would be attributable to placing at risk the revenues the vessels might have earned from fishing activity on Bowers Ridge. These revenues would be approximately 0.02 percent of gross wholesale groundfish revenue for vessels that have consistently fished in this area since 1995.

CDQ Pollock Vessels

The proposed rule would prohibit CDQ vessels from directly fishing for pollock in such a way that the vessel would have more than 20 crabs of any species, with a carapace width greater than 1.5 inches, on board at any time (§ 697.7(a)(14)(i)). CDQ vessels directly fishing for pollock also would be prohibited from using nonpelagic trawl gear in § 697.24. Because CDQ vessels currently use pelagic trawl gear for directed fishing for pollock, these proposed regulation changes are not likely to affect the revenue from this activity.

Aleutian Islands Subarea VMS Requirements

Under this proposed action, certain federally permitted vessels operating in the Aleutian Islands subarea would be required to carry and operate a VMS. The small entities that would be directly regulated by this action are those with an FFP or FCVP fishing in Federal or State of Alaska waters in the Aleutian Islands subarea. The IRFA estimated that potentially 124 directly regulated small entities would be subject to this action, based on 2003 data. Average gross revenues for these small entities, from all fishing sources in Alaska, were about $950,000 in 2003.

The IRFA estimates of small entities directly regulated by this action are based on the number of vessels that reportedly operated in Federal waters of the Aleutian Islands subarea in 2003. Vessels that operated solely within State of Alaska waters were not included in this count. Vessels fishing exclusively within State waters during a fishing year were assumed to be able to avoid the VMS requirement by surrendering their FFP or FCVP.

Fifty-three of these vessels already carried VMS in 2003 to comply with other regulations. Based on these data, an estimated 71 operations would have to acquire and use VMS. Average VMS acquisition and installation costs for a vessel are $1,550; average annual transmission charges are $451 for vessels initially acquiring VMS, and $994 for vessels that already have VMS. Average annual repair costs are estimated to be $28. Because the VMS requirement would be permanent, all vessels using VMS would be expected to have to replace these units as they fail. This would create additional future costs. However, replacement costs are likely to decrease through time, as competition and technological advances reduce VMS costs.

The analysis for the Aleutian Islands subarea VMS proposed action examined status quo and an alternative that would have exempted vessels less than or equal to 32 feet in length from the requirement. Because status quo had no requirement to add VMS to additional vessels and no additional VMS transmission requirements, no economic impacts were identified from the status quo. The exemption alternative paralleled a similar exemption to VMS requirements considered in the GOA VMS proposal. The exemption alternative was not adopted for the Aleutian Islands subarea because it would only have potentially affected three vessels. Revenue information for these three entities cannot be reported because of confidentiality restrictions. Nonetheless, NMFS determined that the potential for small vessels to employ bottom contact fishing gear in protected EFH and HAPC areas in the Aleutian Islands subarea makes it necessary for all vessels to carry VMS, if the closures are to be enforced effectively. Average installation costs for these three vessels were estimated to be $1,550. Average annual transmission costs were $428. Total installation costs for these three operations were about $5,000. Total annual transmission costs were about $1,000. With annual repair costs averaging about $93, total repair costs for these vessels would be about $300.

GOA Slope Habitat Conservation Areas

Ten areas within the GOA, along the upper and intermediate slope (200 m to 1,000 m in depth), are classified as GOAHCA. The proposed action would prohibit fishing with nonpelagic trawl gear within these areas. The entities potentially directly regulated by this action are those trawlers fishing with nonpelagic trawl gear in the GOA. Ninety-eight vessels used nonpelagic trawl gear in Federal waters in the GOA in 2003. Average gross revenues for these vessels from all Federal and State managed fisheries in Alaska were about $2.0 million. Fifty-eight of these 98 vessels were determined to be “small businesses” under SBA criteria. These 58 vessels had average gross receipts of $494,000 from all sources.

The preferred alternative would place $1.17 million of revenue at risk, or 4.2 percent of the total status quo revenue of $27.69 million in nonpelagic trawl groundfish fisheries in 2001. Within the entire GOA, substantial nonpelagic trawl fishing areas exist adjacent to the 10 designated areas where the revenue at risk might be mitigated by a redeployment of fishing effort. Most, if not all, of the revenue at risk in the GOA would likely be recovered by redeployment of fishing effort to adjacent areas, or by switching to pelagic trawl gear or fixed gear. The proviso that nonpelagic trawl operators may switch gear type and continue to target slope rockfish in these protection areas using nontrawl gear represents a substantial accommodation. If adopted, this would effectively relieve the LLP trawl gear restriction. Thus, vessels named on a LLP with a trawl gear only endorsement could be used to fish for slope rockfish in the GOASHCA with hook-and-line gear. Larger trawlers that either already have pelagic trawl gear available, or have sufficient horsepower to convert to pelagic trawl gear to target slope rockfish, may have an advantage over smaller trawlers that might not have the physical capability or the economic incentive to acquire and use pelagic trawl. Thus, under this alternative there could be a transfer of revenue (and associated catch share) in the fishery from the smaller trawlers to the larger trawlers using pelagic trawl gear. NMFS cannot estimate the magnitude of any transfer without specific knowledge of the strategies that would be followed by different fleet segments. Vessels that shift from their preferred gear type (e.g., from nonpelagic trawl to pelagic trawl or fixed gear) or from their preferred fishing area may incur higher operating costs, even if they were able to earn the same levels of gross revenues, thus reducing any net revenues that might accrue.

The Council considered alternatives to the proposed action (the Council's Alternative 5C). Alternative 1 is the status quo and no action alternative, and no economic impacts were identified with this alternative. Alternative 2 would close 11 areas on the GOA slope (between depths of 200 m and 1,000 m) to directed rockfish fishing conducted with nonpelagic trawl gear. Economic costs of Alternative 2 would have been limited to the nonpelagic trawl slope rockfish fishery in the GOA. The total revenue at risk in this fishery under Alternative 2 would have been $900,000 or 9.6 percent of the 2001 status quo revenue. Alternative 3 would close the entire GOA slope between 200 m and 1,000 m in depth to directed rockfish fishing using nonpelagic trawl gear. Based on 2001 data, Alternative 3 would have placed a total of $2.65 million of gross revenue at risk in the GOA nonpelagic trawl slope rockfish target fisheries, including the value of retained bycatch. This was equal to 28.3 percent of the reported 2001 status quo total revenue. In the GOA, Alternative 4 would duplicate the closures under Alternative 2 and would have the same economic impact. Alternative 5A would close 10 areas on the GOA slope between 200 m and 1,000 m in depth to vessels targeting rockfish with nonpelagic trawl gear. Alternative 5A would have affected a number of nonpelagic trawl fisheries, but primarily fisheries targeting rockfish and Pacific cod. Under Alternative 5A, the total revenue at risk in the nonpelagic trawl rockfish fishery would have been $2.82 million, or 30.1 percent of the 2001 status quo revenue. The total revenue at risk in the GOA nonpelagic trawl Pacific cod fishery would have been $380,000 or 4.9 percent of the 2001 status quo revenue. Alternative 5B would prohibit the use of nonpelagic trawl gear for all groundfish fisheries within designated sites of the GOA slope between 200 m and 1,000 m in depth and would prohibit the use of nonpelagic trawl gear for targeting slope rockfish anywhere on the GOA slope at depths between 200 m and 1,000 m. Alternative 5B would affect a number of nonpelagic trawl fisheries, but primarily fisheries targeting rockfish and Pacific cod. The total revenue at risk in the nonpelagic trawl rockfish fishery under Alternative 5B would have equaled $2.82 million or 30.1 percent of the 2001 status quo revenue. The total revenue at risk in the GOA nonpelagic trawl Pacific cod fishery would have been $380,000, or 4.9 percent of the 2001 status quo revenue. Alternative 5C is the preferred alternative, and has been discussed above. Alternative 6 would close 20 percent of the fishable waters in the Alaska EEZ to fishing with any bottom contact gear. In the GOA, Alternative 6 would have the largest effect on the halibut hook-and-line fishery, with $32.12 million in revenue at risk or 33.9 percent of the 2001 status quo revenue. Sablefish hook-and-line and nonpelagic trawl fisheries would have $6.66 million in revenue at risk or 12.5 percent of the 2001 status quo revenue. Rockfish hook-and-line and nonpelagic trawl fisheries would have had $2.29 million of revenue at risk or 21.5 percent of the 2001 status quo revenue. Based on 2001 data, $2.63 million of revenue would have been placed at risk in the GOA hook-and-line and nonpelagic trawl Pacific cod fisheries or 11.7 percent of the status quo revenue. Alternative 6 also would have placed $940,000 of revenue at risk or 34.3 percent of the 2001 status quo revenue for the scallop dredge fishery. The GOA scallop revenue at risk almost certainly could not have been recovered by redeploying fishing effort to remaining open areas, because the permitting is not transferable between districts.

Alaska Seamount Habitat Protection Areas

The Council designated 15 seamount areas off Alaska as HAPCs, and recommended prohibiting all federally managed bottom contact fishing within these proposed protected areas. Under this action, directly regulated small entities would be those that would have fished on these seamount areas with bottom contact gear in the absence of the proposed closures.

Little groundfish fishing took place within the seamount habitat protection areas during the 1995-2003 period. Fixed gear catcher vessels from 33 feet to 59 feet (10.1 m to 18.1 m) LOA, dominated what little fishing activity was reported on the seamounts. The numbers of these vessels annually ranged from one to seven, from 1995 to 2003. Other vessels fished on the seamounts only sporadically. The fishing activity that did occur generated approximately $20,000 in equivalent gross wholesale revenue annually in 1995, 1996, and 2000, and approximately $10,000 in annual equivalent gross wholesale revenue from 2001-2003.

The potential adverse economic impact of this action on these directly regulated small entities (that is, the revenue placed at risk by forcing them to fish in areas other than they would have voluntarily chosen to fish) appears to be very small. This impact would have accounted for 1/100th of 1 percent of the total groundfish revenue for fixed gear catcher vessels over the period 1995-2003. The revenue at risk for other operations is even smaller.

The Council considered a no action alternative and an alternative that would have prohibited bottom contact fishing within five of the 15 seamount areas included in the preferred alternative.

GOA Coral Habitat Protection Areas

Five GOACHPAs would be established; four of these are located on the Fairweather Grounds, and one is located off of Cape Ommaney. These areas encompass a total of 13.5 nm². Federally permitted vessels would be prohibited from fishing with bottom contact gear in these GOACHPAs.

The directly regulated small entities that may be adversely affected by this rule are vessels with FFPs or FCVPs that would fish with bottom contact gear in these areas in the absence of any gear restrictions.

The number of vessels fishing with bottom contact gear in these areas likely includes nearly all federally permitted vessels, given that the use of pelagic trawl gear in these areas is either limited or prohibited. Between 80 and 103 fixed gear catcher vessels from 33 feet to 59 feet (10.1 m to 18.1 m) fished for groundfish within the greater statistical areas within which the HAPC sites are located, from 1995 to 2003. In total, 274 separate vessels in this category appear to have operated in proximity to these HAPCs during these years. Eleven groundfish vessels of other categories also operated in the areas during these years. The logbook data of fewer than five halibut vessels show any fishing activity in the proposed HAPCs during this period. This number is small compared to the 1,820 halibut vessels that appear to have harvested halibut in the area off of Southeast Alaska (IPHC area 2C) during this period.

Potential groundfish revenue at risk was about $10,000 per year during the 1995-2003 period. In an average year, only 3/100th of 1 percent of the total groundfish revenue for the affected vessels appears to be placed at risk by this alternative, which is probably an overestimate of the true revenues at risk. The small part of the halibut fleet operating in these areas and the availability of alternative halibut fishing areas (due to the small areas closed under these proposals) suggest that the impacts on affected halibut operations would be minimal.

Three alternatives to the preferred alternative were considered. Alternative 1 is the status quo, no action, alternative and no economic impacts were identified for this alternative. Alternative 2 would designate three sites along the continental slope at Sanak Island, Albatross, and Middleton Island as HAPCs, with options to close the sites to either mobile bottom contact gear or nonpelagic trawl gear permanently or for five years. Under Alternative 2, gross wholesale revenues for groundfish catcher vessels in an average year would be expected to decrease by $600,000 or 5/100th of 1 percent. Alternative 3 is the preferred alternative and was discussed above. Alternative 4 would include the measures from both Alternatives 2 and 3. Alternative 4 would have similar economic impacts as Alternatives 2 and 3. Alternative 4 may result in increased operating costs, but based on the low level of revenue at risk, any increase is likely to be small.

GOA VMS Requirements

Under this action, vessels (including any small entity) named on FFPs or FCVPs would be required to operate a VMS unit whenever operating in the GOA with mobile bottom contact gear on board. This action adds a regulatory definition of “operating” that covers vessels not in port, and vessels in port loading or offloading fish, fish product, or fishing gear.

The class of vessels using mobile bottom contact gear includes vessels fishing in the GOA with dredge, dinglebar, and non-pelagic trawl gear. One hundred thirteen vessels were estimated to fall in this category; 93 of these were estimated to already carry VMS, and 20 were estimated to need to acquire it. The average gross revenues for the 113 vessels were $1.8 million. Seventy-three of these fishing entities were small, according to the criteria of the SBA; 53 of the small vessels already had VMS, and 20 would have to acquire it. Average gross revenues for the small entities were $453,000. The small entities were expected to incur average transmission cost increases of about $500 and average repair cost increases of about $16 (because many vessels would not acquire VMS or incur new repair costs because of the rule, and because most of these vessels were over 32 feet (9.8 m) LOA and had relatively lower estimated repair costs). Although installation costs were $1,550 per unit, average installation costs were about $400 per vessel (because so many of these vessels would not have to acquire VMS). Total first year costs of acquisition, repair, and transmission were estimated to be about $71,000 (or about 2/10ths of a percent of average gross revenues). All estimates were prepared using 2003 data.

The analysis examined one alternative that would have a greater impact on small entities than the preferred alternative, but that would provide a higher level of surveillance for protected areas. Under this “comprehensive coverage” requirement, VMS would be required on all vessels operating in the GOA with bottom contact gear. The analysis included several alternatives, in addition to the preferred alternative, that might have a smaller impact on small entities than the comprehensive coverage alternative just described. These included alternatives that would exempt vessels less than or equal to 32 feet (9.8 m) LOA, 30 feet (9.2 m) LOA, or 25 feet (7.7 m) LOA; vessels fishing with dinglebar gear for ling cod; and vessels fishing with dredge gear for scallops.

The IRFA estimates of small entities affected by this action are based on estimates of the number of vessels that fished in Federal waters of the GOA in 2003. Vessels that operated solely within State of Alaska waters were not counted. The analysis assumed that vessels fishing exclusively within State waters, would have chosen to avoid the VMS requirement by surrendering their FFP or FCVP.

The IRFA estimated that if all vessels fishing bottom contact gear had been required to carry VMS, the directly regulated small entities would total approximately 865, based on 2003 data. Average gross revenues for these small entities, from all fishing sources in Alaska, were about $349,000 in 2003.

Two hundred thirty of the 865 small vessels carried VMS in 2003, to comply with other regulations (e.g., Steller sea lion rules). Therefore, perhaps as many as 635 small entities could be required to acquire and operate VMS. Average purchase and installation costs for vessels that would have to install VMS are $1,550, average annual transmission costs are estimated to be $423 for vessels initially acquiring VMS and $671 for vessels that already have VMS. Average annual repair costs are estimated to be approximately $39 for these operators. Because VMS requirements would be permanent, all vessels using VMS would be expected to replace these units as they fail, creating additional longer term costs. However, these are likely to decrease through time as competition and technological advances reduce VMS per unit costs.

Excluding vessels less than or equal to 32 feet (9.8 m) LOA from the comprehensive coverage alternative would exempt 84 vessels from the requirement, based on 2003 vessel counts. (An additional 11 vessels of unknown length might conceivably be exempted under this rule.) These 84 small entities would avoid purchase and installation costs of the VMS unit ($1,550), annual transmission costs ($372), and annual repair costs ($93). These vessels had average gross revenues of $103,000 in 2003.

Excluding vessels less than or equal to 30 feet (9.2 m) LOA would exempt 28 vessels from the comprehensive VMS operating requirement base on 2003 vessel counts. An additional 11 vessels of unknown length might be exempted. These 28 small vessels would avoid purchase and installation costs of the VMS unit ($1,550), annual transmission costs ($252), and annual repair costs ($93). These vessels had average gross revenues of about $17,000 in 2003.

Excluding vessels less than or equal to 25 feet (7.7 m) LOA would exempt 15 vessels from the comprehensive VMS requirement, based on 2003 vessel counts. An additional 11 vessels of unknown length might be exempted. These 15 vessels would avoid purchase and installation costs of the VMS unit ($1,550), annual transmission costs ($203), and annual repair costs ($93). These vessels had average gross revenues of about $5,000 in 2003.

Excluding vessels using dinglebar gear would exempt four vessels from the proposed comprehensive VMS requirement, based on 2003 data. These four vessels would avoid purchase and installation costs of the VMS unit ($1,550), annual transmission costs ($509), and annual repair costs ($59). These vessels had average gross revenues of about $43,000 in 2003.

Excluding vessels using dredge gear would exempt two vessels from the comprehensive requirement based on 2003 data. These two vessels would avoid purchase and installation costs of the VMS unit ($1,550), annual transmission costs ($578), and annual repair costs ($47). Average gross revenue information for these vessels cannot be released because of confidentiality protections.

After consideration of the analyses, and hearing industry testimony, the Council recommended the preferred alternative of only requiring VMS equipment on mobile bottom contact vessels in the GOA. In making this decision, the Council sought to minimize the impact of the action on small entities, while providing protection to key habitat components, by restricting the VMS coverage requirement to this class of vessel. Mobile bottom contact gear had the greatest potential for adverse impact to protected habitat areas, and a restriction of the VMS requirement to the mobile vessels exempted 792 small entities (865 under comprehensive coverage minus 73 under the preferred alternative) from the requirement.

The analyses of the VMS requirement, reported above, are based on the assumption that fishing operations that fish only in State waters would surrender their FFPs to avoid a VMS requirement. Not all vessels may do this. In order to take a more expansive view of the potential application of this rule, cost estimates have been prepared under the assumption that 558 small entities fishing for halibut exclusively in State waters, with no other fishing conducted in Federal waters, would choose to carry VMS equipment and transmissions. Under these circumstances, a total of 1,193 small entities would acquire VMS. Average acquisition and installation costs would be $1,550, average annual transmission costs would be about $400, and average annual repair costs would be $60. Average gross revenue for these operations, based on 2003 data, would be approximately $161,000. As previously reported, 236 small entities covered by the regulation currently carry VMS. They would incur additional transmission costs averaging about $700 per vessel per year. Average gross revenues for these entities were about $563,000 for 2003.

The portion of the regulations that establish the fishing restriction for the AIHCA AICHPAs, BRHCZ, GOASHCAs, ASHPAs, and GOACHPAs do not impose new recordkeeping or reporting requirements on the regulated small entities. The VMS portion of this action would add new reporting requirements for vessels that carry an FFP or FCVP and fish in any fishery in the Aleutian Islands subarea, or those that carry an FFP or FCVP and have mobile bottom contact fishing gear onboard while operating in the GOA. These fishing operations would be required to carry VMS units and to report their locations every half hour while they are participating in fisheries subject to the requirement. Moreover, they would be required to notify NOAA Office of Law Enforcement (OLE) that their VMS units are active, once installed, and before vessel operation. They would be required to notify NOAA OLE in the event of a breakdown in the unit.

The IRFAs did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.

This proposed rule contains a collection-of-information requirement, under OMB No. 0648-0445, subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden per response are estimated to average: 6 seconds for each VMS transmission, 12 minutes for VMS check-in form, 6 hours for VMS installation, and 4 hours for VMS annual maintenance. The response times include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

NMFS seeks public comment regarding whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information would have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection-of-information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection-of-information to NMFS Alaska Region at the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB Control Number.

Informal consultation under the Endangered Species Act was concluded for the EFH and HAPC amendments on April 7, 2005. As a result of the informal consultation, the Regional Administrator determined that fishing activities under this rule are not likely to adversely affect endangered or threatened species or their critical habitat.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended 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.; 1540(f); 1801 et seq.; 1851 note; 3631 et seq.

2. In § 679.2, add in alphabetical order the new definitions for “Alaska Seamount Habitat Protection Areas,” “Aleutian Islands Coral Habitat Protection Areas,” “Aleutian Islands Habitat Conservation Area,” “Bowers Ridge Habitat Conservation Zone,” “Federally permitted,” “Gulf of Alaska Coral Habitat Protection Areas,” “Gulf of Alaska Slope Habitat Conservation Areas,” and “Operate a vessel”; and under “Authorized fishing gear”, redesignate paragraphs (9) through (17) as paragraphs (12) through (20), redesignate paragraphs (2) through (8) as paragraphs (4) through (10), redesignate paragraph (1) as paragraph (2), and add new paragraphs (1), (3), and (11) to read as follows: