Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Amendment 97, 13253-13256 [2012-5430]
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Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules
Submit your information and
materials to the appropriate U.S. Fish
and Wildlife Office listed under ‘‘VIII.,
Contacts.’’
VII. Public Availability of Information
Submitted
Before including your address, phone
number, electronic mail address, or
other personal identifying information
in your submission, you should be
aware that you entire submission—
including your personal identifying
information—may be made publicly
available at any time. Although you can
request that personal information be
withheld from public review, we cannot
13253
guarantee that we will be able to do so.
Materials received will be available for
public inspection, by appointment,
during normal business hours at the
offices where the information is
submitted.
VIII. Contacts
Species
Contact person, phone, e-mail
Contact address
Maryland darter ..................................................
Andy Moser, (410) 573–4537; e-mail andy_
moser@fws.gov.
Virginia fringed mountain snail ...........................
Michael Drummond, (804) 693–6694; e-mail
mike_drummond@fws.gov.
Virginia big-eared bat .........................................
Barbara Douglas, (304) 636–6586; e-mail barbara_douglas@fws.gov.
Hay’s Spring amphipod ......................................
Andy Moser, (410) 573–4537;
andy_moser@fws.gov.
e-mail
Lee County Cave isopod ....................................
Shane Hanlon, (276) 623–1233;
shane_hanlon@fws.gov.
e-mail
Shenandoah salamander ...................................
Cindy Schulz, (804) 693–6694; e-mail cindy_
schulz@fws.gov.
Knieskern’s beaked-rush ....................................
Annette Scherer, (609) 383–3938; e-mail annette_scherer@fws.gov.
Small whorled pogonia .......................................
Susi von Oettingen, (603) 223–2541; e-mail
susi_vonOettingen@fws.gov.
Virginia sneezeweed ..........................................
Cindy Schulz, (804) 693–6694; e-mail cindy_
schulz@fws.gov.
U.S. Fish and Wildlife Service, Chesapeake
Bay Field Office, 177 Admiral Cochrane
Drive, Annapolis, MD 21401.
U.S. Fish and Wildlife Service, Virginia Field
Office, 6669 Short Lane, Gloucester, VA
23061.
U.S. Fish and Wildlife Service, West Virginia
Field Office, 694 Beverly Pike, Elkins, WV
26241.
U.S. Fish and Wildlife Service, Chesapeake
Bay Field Office, 177 Admiral Cochrane
Drive, Annapolis, MD 21401.
U.S. Fish and Wildlife Service, Southwest Virginia Field Office, 330 Cummings Street,
Abingdon, VA 24210.
U.S. Fish and Wildlife Service, Virginia Field
Office, 6669 Short Lane, Gloucester, VA
23061.
U.S. Fish and Wildlife Service, New Jersey
Field Office, 927 North Main Street, Bldg D,
Pleasantville, NJ 08232.
U.S. Fish and Wildlife Service, New England
Field Office, 70 Commercial Street, Ste.
300, Concord, NH 03301.
U.S. Fish and Wildlife Service, Virginia Field
Office, 6669 Short Lane, Gloucester, VA
23061.
IX. Authority
We publish this document under the
authority of the Endangered Species Act
of 1973, as amended (16 U.S.C. 1531 et
seq.).
Dated: January 25, 2012.
Wendi Weber,
Regional Director, Northeast Region, U.S. Fish
and Wildlife Service.
[FR Doc. 2012–5212 Filed 3–5–12; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
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RIN 0648–BB18
Fisheries of the Exclusive Economic
Zone Off Alaska; Bering Sea and
Aleutian Islands Management Area;
Amendment 97
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
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Notification of availability of
fishery management plan amendment;
request for comments.
ACTION:
The North Pacific Fishery
Management Council submitted
Amendment 97 to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) to NMFS for
review. If approved, Amendment 97
would allow owners of vessels
participating in the Amendment 80
Program, known as Amendment 80
vessels, to replace their vessels for any
reason at any time. Amendment 97
includes provisions that would limit the
length of a replacement vessel, extend
Gulf of Alaska groundfish harvest limits
known as ‘‘sideboards’’ to replacement
vessels, require replacement vessels to
meet certain safety standards
established by the Coast Guard, and
prevent replaced vessels from being
used in Federal groundfish fisheries off
Alaska other than certain Bering Sea
and Aleutian Islands groundfish
fisheries. This action is necessary to
promote safety-at-sea by allowing
Amendment 80 vessels owners to
SUMMARY:
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replace aging vessels with newer, larger,
and safer vessels and by requiring
replacement vessels to meet certain
Coast Guard vessel safety standards, and
is intended to provide Amendment 80
vessel owners with the opportunity to
increase their retention and utilization
of groundfish catch through the ability
to expand their vessel’s range of
processing capabilities. This action is
intended to promote the goals and
objectives of the Magnuson-Stevens
Fishery Conservation and Management
Act, the FMP, and other applicable
laws.
Comments on the amendment
must be received on or before May 7,
2012.
DATES:
Send comments to Glenn
Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. You may submit
comments, identified by NOAA–NMFS–
2011–0147, by any one of the following
methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal at https://
ADDRESSES:
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www.regulations.gov. To submit
comments via the e-Rulemaking Portal,
first click the ‘‘submit a comment’’ icon,
then enter NOAA–NMFS–2011–0147 in
the keyword search. Locate the
document you wish to comment on
from the resulting list and click on the
‘‘Submit a Comment’’ icon on that line.
• Fax: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Fax comments to (907)
586–7557.
• Mail: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Mail comments to P.O.
Box 21668, Juneau, AK 99802.
• Hand delivery to the Federal
Building: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Deliver comments to
709 West 9th Street, Room 420A,
Juneau, AK.
Instructions: Comments must be
submitted by one of the above methods
to ensure that the comments are
received, documented, and considered
by NMFS. Comments sent by any other
method, to any other address or
individual, or received after the end of
the comment period, may not be
considered. All comments received are
a part of the public record and will
generally be posted for public viewing
on www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address) voluntarily
submitted by the commenter will be
publicly accessible. Do not submit
Confidential Business Information or
otherwise sensitive or protected
information.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Electronic copies of the
Environmental Assessment/Regulatory
Impact Review/Initial Regulatory
Flexibility Analysis (EA/RIR/IRFA)
prepared for this action may be obtained
from https://www.regulations.gov or from
the Alaska Region Web site at https://
alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Seanbob Kelly, 907–586–7228.
The
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) requires that
SUPPLEMENTARY INFORMATION:
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each regional fishery management
council submit any fishery management
plan amendment it prepares to NMFS
for review and approval, disapproval, or
partial approval by the Secretary of
Commerce (Secretary). The MagnusonStevens Act also requires that NMFS,
upon receiving a fishery management
plan amendment, immediately publish a
notice in the Federal Register
announcing that the amendment is
available for public review and
comment. This notice announces that
proposed Amendment 97 to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) is available for
public review and comment.
The groundfish fisheries in the
exclusive economic zone (EEZ) of the
BSAI are managed under the FMP. The
FMP was prepared by the North Pacific
Fishery Management Council (Council)
under the Magnuson-Stevens Act. The
EA/RIR/IRFA prepared for this action
contains a complete description of the
alternatives and a comparative analysis
of the potential impacts of the
alternatives (see ADDRESSES for
availability). All of the directly
regulated entities would be expected to
benefit from this action relative to the
status quo because the proposed
amendment would enable vessel owners
to replace aging vessels with newer,
larger, safer, and more efficient vessels.
Amendment 97 would amend FMP
provisions related to vessel replacement
in the Amendment 80 Program. In June
2006, the Council adopted Amendment
80 to the FMP, which was implemented
with a final rule published in 2007 and
was fully effective starting with the
2008 fishing year (72 FR 52668,
September 14, 2007). Among other
measures, Amendment 80 authorized
the allocation of specified groundfish
species to harvesting cooperatives and
established a catch share program for
trawl catcher/processors that are not
authorized to conduct directed fishing
for pollock under the American
Fisheries Act of 1998 (AFA) (Pub. L.
105–227, Title II of Division C), or nonAFA trawl catcher/processors. Non-AFA
trawl catcher/processors are also
referred to as Amendment 80 vessels or
the Amendment 80 sector. Amendment
80 was intended to meet a number of
policy objectives that included
improving retention and utilization of
fishery resources by the Amendment 80
sector, reducing potential bycatch
reduction costs, encouraging fishing
practices with lower discard rates, and
promoting opportunities for the sector
to increase the value of harvested
species.
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Regulations implementing
Amendment 80 limit participation in
the Amendment 80 sector to non-AFA
trawl catcher/processors that qualified
under the definition of the non-AFA
trawl catcher processor subsector as
defined by section 219(a)(7) of the BSAI
Catcher Processor Capacity Reduction
Program (CRP), contained within the
Department of Commerce and Related
Agencies Appropriations Act, 2005
(Pub. L. 108–447). The regulations list
the 28 non-AFA trawl catcher/
processors that meet the criteria laid out
in section 219(a)(7) of the CRP. In
developing the regulations for
Amendment 80, NMFS determined that
the language of the CRP prohibited
vessels that did not meet the criteria
from participating in the Amendment 80
sector. Therefore, only listed vessels
were permitted to fish in the
Amendment 80 sector and nonqualifying vessels could not be used as
replacement vessels. Arctic Sole
Seafoods, Inc., the owner of an original
qualifying Amendment 80 vessel that
was lost, submitted comments on the
proposed rule specifically addressing
the restriction of participation in the
Amendment 80 sector to the listed
vessels and the lack of a replacement
vessel provision in the regulations.
NMFS maintained that Congress had
established the eligibility requirements
for participation in the Amendment 80
sector through the CRP and the nonAFA trawl catcher/processor subsector,
and that section 219(a)(7) limited
participation to the vessels that met the
qualifying criteria. NMFS further
explained that it could not provide
replacement language in the regulations
because Congress did not authorize such
action. After publication of the final
rule, Arctic Sole Seafoods, Inc.
challenged NMFS’s statutory
interpretation of section 219(a)(7),
contending that the lack of replacement
vessel language was arbitrary and
capricious.
On May 19, 2008, the U.S. District
Court for the Western District of
Washington (Court) issued a decision
invalidating those regulatory provisions
that limit the vessels used in the
Amendment 80 Program to only those
vessels meeting the qualification criteria
in section 219(a)(7) of the CRP. In Arctic
Sole Seafoods, Inc. v. Gutierrez, 622
F.Supp.2d 1050 (W.D. Wash. 2008), the
Court found the statutory language of
the CRP ambiguous as to whether
replacement of qualifying vessels with
non-qualifying vessels was permissible,
and found the agency’s interpretation of
the statute to be arbitrary and
capricious. The Court concluded that
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the inability to replace qualifying
vessels with non-qualifying vessels
would ultimately result in the
elimination of the sector through vessel
attrition, and that Congress had not
intended such an outcome in the CRP.
The Court ordered that ‘‘[t]o the extent
that [regulations] restrict access to the
BSAI non-pollock groundfish fishery to
qualifying vessels without allowing a
qualified owner to replace a lost
qualifying vessel with a single substitute
vessel, the regulations must be set aside.
* * *’’
After receiving the Court’s decision,
NMFS developed an interim policy for
vessel replacement in the Amendment
80 sector consistent with the Court’s
decision. In October 2008, NMFS
provided the Council with an overview
of the Court Order, the necessary
amendments to the FMP to implement
the Court Order, possible alternatives
the Council could consider with regard
to vessel replacement, and a discussion
of other aspects of the Amendment 80
Program that may be affected by vessel
replacement, such as the application of
Gulf of Alaska (GOA) sideboards to
replacement vessels and the assignment
of quota share (QS) permits to
replacement vessels.
The Council and NMFS recognized
the need to clarify the conditions under
which an Amendment 80 vessel may be
replaced and that any vessel
replacement provisions must be
consistent with the Court Order, the
Capacity Reduction Program, and the
Magnuson-Stevens Act. Over the course
of several meetings, the Council
considered an analysis prepared for the
action and public comments regarding
the action. At its June 2010 meeting, the
Council selected its preferred alternative
for vessel replacement and
recommended that it be submitted for
Secretarial review as Amendment 97 to
the FMP.
If approved, Amendment 97 would
allow the owner of an Amendment 80
vessel to replace that vessel for any
reason and at any time. The Council
determined that Amendment 97 is
necessary to provide for the replacement
of Amendment 80 vessels in a manner
that promotes the objectives of
Amendment 80, the CRP, and the
Magnuson-Stevens Act, to promote
safety-at-sea by providing Amendment
80 vessel owners the opportunity to
replace aging vessels with newer, larger,
more efficient vessels and requiring
replacement vessels to meet certain
Coast Guard safety standards, and to
facilitate the sector’s ability to increase
its processing capabilities to improve
the sector’s retention and utilization of
groundfish catch.
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Amendment 97 would make several
modifications to the FMP applicable to
replacement vessels and replaced
vessels. For replacement vessels,
Amendment 97 would authorize
Amendment 80 vessel owners to replace
an Amendment 80 vessel for any reason
and at any time. Amendment 97 would
require that up to one replacement
vessel be used at any given time and
would restrict the length of Amendment
80 replacement vessels to no longer than
295 ft (89.0 m) length overall. The
Council considered several length
limits, including no length limit, before
recommending that NMFS implement a
295 ft (89.9 m) maximum length overall
(MLOA) limit for all Amendment 80
replacement vessels. The Council
recognized that larger vessels can
include facilities able to store large
quantities of fish and are able to make
value added products like surimi, fillets,
and fishmeal in onboard fishmeal
plants. The Council also determined
that the proposed 295 ft (89.9 m) MLOA
would provide equal advantages to each
participant in the Amendment 80 sector
while improving the ability of the
Council and NMFS to analyze and
predict the maximum fishery impacts of
the Amendment 80 fleet in future
actions. If approved, Amendment 97 is
intended to demonstrate to the United
States Maritime Administration
(MARAD) that the Council
recommended and NMFS approved
conservation and management measures
allowing vessels that exceed the limits
set forth in 46 U.S.C. 12113 to
participate in certain North Pacific
fisheries under the Council’s
jurisdiction and therefore are eligible to
receive a certificate of documentation
consistent with 46 U.S.C. 12113 and
MARAD regulations at 46 CFR 356.47.
Under Amendment 97, vessel owners
that choose to remove an Amendment
80 vessel would have the option of
either assigning their Amendment 80
QS permit to a replacement vessel or
permanently assigning their
Amendment 80 QS permit to the
License Limitation Program (LLP)
license derived from the originally
qualifying Amendment 80 vessel. Under
this second option, the holder of an
Amendment 80 LLP/QS license could
then assign the license to a vessel
authorized to participate in the
Amendment 80 sector. Amendment 97
would prohibit the use of a replacement
vessel in an Amendment 80 fishery
unless an Amendment 80 QS permit or
an Amendment 80 LLP/QS license has
been assigned to that vessel.
Additionally, Amendment 97 would
permit a person holding an Amendment
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13255
80 QS permit associated with a vessel
that is permanently ineligible to re-enter
United States fisheries to replace the
vessel associated with the QS permit.
With an exception for the F/V
GOLDEN FLEECE, Amendment 97
would extend to a replacement vessel
all Gulf of Alaska (GOA) sideboard
measures that are applicable to the
originally qualifying Amendment 80
vessel being replaced. Additionally,
Amendment 97 would extend to a
replacement vessel authorization to
conduct directed fishing for GOA
flatfish species if the originally
qualifying Amendment 80 vessel being
replaced was authorized to conduct
directed fishing for GOA flatfish
species. This action would ensure that
any vessel that replaces an Amendment
80 vessel eligible to conduct directed
fishing for flatfish in the GOA will
continue to be allowed to conduct
directed fishing in the GOA flatfish
fishery. The Council did not
recommend any measures to address the
potential expansion of the harvest by
Amendment 80 replacement vessels in
GOA flatfish fisheries because the
Council determined that halibut
prohibited species catch limits
applicable to Amendment 80
replacement vessels adequately
constrain harvest and because the
annual harvest limits for many GOA
flatfish species have not been fully
harvested. Depending on the length
overall of any replacement vessel for the
F/V GOLDEN FLEECE, Amendment 97
would either extend the current
sideboard measures applicable to the
F/V GOLDEN FLEECE or would impose
the sideboard measures applicable to
other Amendment 80 vessels. These
provisions would continue to recognize
the special standing that this vessel has
received under Amendment 80 and its
implementing regulations.
Amendment 97 would require all
Amendment 80 replacement vessels to
meet contemporary vessel construction
standards in order to improve safety-atsea for these vessels. Under Amendment
97, vessel owners applying to NMFS to
replace their vessel would have to
submit documentation demonstrating
that their replacement vessel meets U.S.
Coast Guard requirements applicable to
catcher/processor vessels operating in
the Amendment 80 sector or, if unable
to meet these requirements, is enrolled
in the U.S. Coast Guard Alternative
Compliance and Safety Agreement
(ACSA) program. Amendment 97 would
allow Amendment 80 vessels currently
participating in the Amendment 80
program to replace other Amendment 80
vessels. However, in order to be used as
an Amendment 80 replacement vessel,
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the currently participating Amendment
80 vessel would have to demonstrate
compliance with the U.S. Coast Guard
requirements or participate in the ACSA
program.
Amendment 97 would restrict the use
of replaced vessels that are not used as
Amendment 80 replacement vessels. For
replaced vessels that are not assigned to
an Amendment 80 fishery, e.g., that are
not used as Amendment 80 replacement
vessels, Amendment 97 would establish
a catch limit of zero metric tons for all
BSAI and GOA groundfish fisheries. A
catch limit of zero metric tons for all
BSAI and GOA groundfish fisheries
would effectively prohibit the vessel
from being used to fish in any BSAI or
GOA groundfish fishery. This provision
would prevent the use of replaced
vessels that have substantial fishing
capacity from entering into other BSAI
or GOA fisheries. The Council was
concerned about the highly
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destabilizing effect of increased fishing
capacity and the resulting rapid pace of
harvest if replaced vessels entered other
BSAI and GOA fisheries.
Finally, Amendment 97 would amend
the FMP to provide a brief summary of
Amendment 93 to the FMP. This
summary was inadvertently omitted
from Amendment 93. To correct this
omission, Amendment 97 would insert
a brief summary of Amendment 93 in
Appendix A to the FMP.
Public comments are being solicited
on proposed Amendment 97 to the FMP
through the end of the comment period
(see DATES). NMFS intends to publish in
the Federal Register and seek public
comment on a proposed rule that would
implement Amendment 97, following
NMFS’ evaluation of the proposed rule
under the Magnuson-Stevens Act.
Public comments on the proposed rule
must be received by the end of the
comment period on Amendment 97 to
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be considered in the approval/
disapproval decision on Amendment
97. All comments received by the end
of the comment period on Amendment
97, whether specifically directed to the
FMP amendment or the proposed rule,
will be considered in the FMP
amendment approval/disapproval
decision.
Comments received after that date
will not be considered in the approval/
disapproval decision on the
amendment. To be considered,
comments must be received, not just
postmarked or otherwise transmitted, by
the last day of the comment period.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 1, 2012.
Steven Thur,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2012–5430 Filed 3–5–12; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Proposed Rules]
[Pages 13253-13256]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5430]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
RIN 0648-BB18
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Management Area; Amendment 97
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notification of availability of fishery management plan
amendment; request for comments.
-----------------------------------------------------------------------
SUMMARY: The North Pacific Fishery Management Council submitted
Amendment 97 to the Fishery Management Plan for Groundfish of the
Bering Sea and Aleutian Islands Management Area (FMP) to NMFS for
review. If approved, Amendment 97 would allow owners of vessels
participating in the Amendment 80 Program, known as Amendment 80
vessels, to replace their vessels for any reason at any time. Amendment
97 includes provisions that would limit the length of a replacement
vessel, extend Gulf of Alaska groundfish harvest limits known as
``sideboards'' to replacement vessels, require replacement vessels to
meet certain safety standards established by the Coast Guard, and
prevent replaced vessels from being used in Federal groundfish
fisheries off Alaska other than certain Bering Sea and Aleutian Islands
groundfish fisheries. This action is necessary to promote safety-at-sea
by allowing Amendment 80 vessels owners to replace aging vessels with
newer, larger, and safer vessels and by requiring replacement vessels
to meet certain Coast Guard vessel safety standards, and is intended to
provide Amendment 80 vessel owners with the opportunity to increase
their retention and utilization of groundfish catch through the ability
to expand their vessel's range of processing capabilities. This action
is intended to promote the goals and objectives of the Magnuson-Stevens
Fishery Conservation and Management Act, the FMP, and other applicable
laws.
DATES: Comments on the amendment must be received on or before May 7,
2012.
ADDRESSES: Send comments to Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian. You may submit comments, identified by NOAA-
NMFS-2011-0147, by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal at https://
[[Page 13254]]
www.regulations.gov. To submit comments via the e-Rulemaking Portal,
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2011-
0147 in the keyword search. Locate the document you wish to comment on
from the resulting list and click on the ``Submit a Comment'' icon on
that line.
Fax: Address written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Ellen Sebastian. Fax comments to (907) 586-7557.
Mail: Address written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau,
AK 99802.
Hand delivery to the Federal Building: Address written
comments to Glenn Merrill, Assistant Regional Administrator,
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau,
AK.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All Personal Identifying
Information (for example, name, address) voluntarily submitted by the
commenter will be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only.
Electronic copies of the Environmental Assessment/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared
for this action may be obtained from https://www.regulations.gov or from
the Alaska Region Web site at https://alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907-586-7228.
SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act) requires that each regional
fishery management council submit any fishery management plan amendment
it prepares to NMFS for review and approval, disapproval, or partial
approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens
Act also requires that NMFS, upon receiving a fishery management plan
amendment, immediately publish a notice in the Federal Register
announcing that the amendment is available for public review and
comment. This notice announces that proposed Amendment 97 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP) is available for public review and
comment.
The groundfish fisheries in the exclusive economic zone (EEZ) of
the BSAI are managed under the FMP. The FMP was prepared by the North
Pacific Fishery Management Council (Council) under the Magnuson-Stevens
Act. The EA/RIR/IRFA prepared for this action contains a complete
description of the alternatives and a comparative analysis of the
potential impacts of the alternatives (see ADDRESSES for availability).
All of the directly regulated entities would be expected to benefit
from this action relative to the status quo because the proposed
amendment would enable vessel owners to replace aging vessels with
newer, larger, safer, and more efficient vessels.
Amendment 97 would amend FMP provisions related to vessel
replacement in the Amendment 80 Program. In June 2006, the Council
adopted Amendment 80 to the FMP, which was implemented with a final
rule published in 2007 and was fully effective starting with the 2008
fishing year (72 FR 52668, September 14, 2007). Among other measures,
Amendment 80 authorized the allocation of specified groundfish species
to harvesting cooperatives and established a catch share program for
trawl catcher/processors that are not authorized to conduct directed
fishing for pollock under the American Fisheries Act of 1998 (AFA)
(Pub. L. 105-227, Title II of Division C), or non-AFA trawl catcher/
processors. Non-AFA trawl catcher/processors are also referred to as
Amendment 80 vessels or the Amendment 80 sector. Amendment 80 was
intended to meet a number of policy objectives that included improving
retention and utilization of fishery resources by the Amendment 80
sector, reducing potential bycatch reduction costs, encouraging fishing
practices with lower discard rates, and promoting opportunities for the
sector to increase the value of harvested species.
Regulations implementing Amendment 80 limit participation in the
Amendment 80 sector to non-AFA trawl catcher/processors that qualified
under the definition of the non-AFA trawl catcher processor subsector
as defined by section 219(a)(7) of the BSAI Catcher Processor Capacity
Reduction Program (CRP), contained within the Department of Commerce
and Related Agencies Appropriations Act, 2005 (Pub. L. 108-447). The
regulations list the 28 non-AFA trawl catcher/processors that meet the
criteria laid out in section 219(a)(7) of the CRP. In developing the
regulations for Amendment 80, NMFS determined that the language of the
CRP prohibited vessels that did not meet the criteria from
participating in the Amendment 80 sector. Therefore, only listed
vessels were permitted to fish in the Amendment 80 sector and non-
qualifying vessels could not be used as replacement vessels. Arctic
Sole Seafoods, Inc., the owner of an original qualifying Amendment 80
vessel that was lost, submitted comments on the proposed rule
specifically addressing the restriction of participation in the
Amendment 80 sector to the listed vessels and the lack of a replacement
vessel provision in the regulations. NMFS maintained that Congress had
established the eligibility requirements for participation in the
Amendment 80 sector through the CRP and the non-AFA trawl catcher/
processor subsector, and that section 219(a)(7) limited participation
to the vessels that met the qualifying criteria. NMFS further explained
that it could not provide replacement language in the regulations
because Congress did not authorize such action. After publication of
the final rule, Arctic Sole Seafoods, Inc. challenged NMFS's statutory
interpretation of section 219(a)(7), contending that the lack of
replacement vessel language was arbitrary and capricious.
On May 19, 2008, the U.S. District Court for the Western District
of Washington (Court) issued a decision invalidating those regulatory
provisions that limit the vessels used in the Amendment 80 Program to
only those vessels meeting the qualification criteria in section
219(a)(7) of the CRP. In Arctic Sole Seafoods, Inc. v. Gutierrez, 622
F.Supp.2d 1050 (W.D. Wash. 2008), the Court found the statutory
language of the CRP ambiguous as to whether replacement of qualifying
vessels with non-qualifying vessels was permissible, and found the
agency's interpretation of the statute to be arbitrary and capricious.
The Court concluded that
[[Page 13255]]
the inability to replace qualifying vessels with non-qualifying vessels
would ultimately result in the elimination of the sector through vessel
attrition, and that Congress had not intended such an outcome in the
CRP. The Court ordered that ``[t]o the extent that [regulations]
restrict access to the BSAI non-pollock groundfish fishery to
qualifying vessels without allowing a qualified owner to replace a lost
qualifying vessel with a single substitute vessel, the regulations must
be set aside. * * *''
After receiving the Court's decision, NMFS developed an interim
policy for vessel replacement in the Amendment 80 sector consistent
with the Court's decision. In October 2008, NMFS provided the Council
with an overview of the Court Order, the necessary amendments to the
FMP to implement the Court Order, possible alternatives the Council
could consider with regard to vessel replacement, and a discussion of
other aspects of the Amendment 80 Program that may be affected by
vessel replacement, such as the application of Gulf of Alaska (GOA)
sideboards to replacement vessels and the assignment of quota share
(QS) permits to replacement vessels.
The Council and NMFS recognized the need to clarify the conditions
under which an Amendment 80 vessel may be replaced and that any vessel
replacement provisions must be consistent with the Court Order, the
Capacity Reduction Program, and the Magnuson-Stevens Act. Over the
course of several meetings, the Council considered an analysis prepared
for the action and public comments regarding the action. At its June
2010 meeting, the Council selected its preferred alternative for vessel
replacement and recommended that it be submitted for Secretarial review
as Amendment 97 to the FMP.
If approved, Amendment 97 would allow the owner of an Amendment 80
vessel to replace that vessel for any reason and at any time. The
Council determined that Amendment 97 is necessary to provide for the
replacement of Amendment 80 vessels in a manner that promotes the
objectives of Amendment 80, the CRP, and the Magnuson-Stevens Act, to
promote safety-at-sea by providing Amendment 80 vessel owners the
opportunity to replace aging vessels with newer, larger, more efficient
vessels and requiring replacement vessels to meet certain Coast Guard
safety standards, and to facilitate the sector's ability to increase
its processing capabilities to improve the sector's retention and
utilization of groundfish catch.
Amendment 97 would make several modifications to the FMP applicable
to replacement vessels and replaced vessels. For replacement vessels,
Amendment 97 would authorize Amendment 80 vessel owners to replace an
Amendment 80 vessel for any reason and at any time. Amendment 97 would
require that up to one replacement vessel be used at any given time and
would restrict the length of Amendment 80 replacement vessels to no
longer than 295 ft (89.0 m) length overall. The Council considered
several length limits, including no length limit, before recommending
that NMFS implement a 295 ft (89.9 m) maximum length overall (MLOA)
limit for all Amendment 80 replacement vessels. The Council recognized
that larger vessels can include facilities able to store large
quantities of fish and are able to make value added products like
surimi, fillets, and fishmeal in onboard fishmeal plants. The Council
also determined that the proposed 295 ft (89.9 m) MLOA would provide
equal advantages to each participant in the Amendment 80 sector while
improving the ability of the Council and NMFS to analyze and predict
the maximum fishery impacts of the Amendment 80 fleet in future
actions. If approved, Amendment 97 is intended to demonstrate to the
United States Maritime Administration (MARAD) that the Council
recommended and NMFS approved conservation and management measures
allowing vessels that exceed the limits set forth in 46 U.S.C. 12113 to
participate in certain North Pacific fisheries under the Council's
jurisdiction and therefore are eligible to receive a certificate of
documentation consistent with 46 U.S.C. 12113 and MARAD regulations at
46 CFR 356.47.
Under Amendment 97, vessel owners that choose to remove an
Amendment 80 vessel would have the option of either assigning their
Amendment 80 QS permit to a replacement vessel or permanently assigning
their Amendment 80 QS permit to the License Limitation Program (LLP)
license derived from the originally qualifying Amendment 80 vessel.
Under this second option, the holder of an Amendment 80 LLP/QS license
could then assign the license to a vessel authorized to participate in
the Amendment 80 sector. Amendment 97 would prohibit the use of a
replacement vessel in an Amendment 80 fishery unless an Amendment 80 QS
permit or an Amendment 80 LLP/QS license has been assigned to that
vessel. Additionally, Amendment 97 would permit a person holding an
Amendment 80 QS permit associated with a vessel that is permanently
ineligible to re-enter United States fisheries to replace the vessel
associated with the QS permit.
With an exception for the F/V GOLDEN FLEECE, Amendment 97 would
extend to a replacement vessel all Gulf of Alaska (GOA) sideboard
measures that are applicable to the originally qualifying Amendment 80
vessel being replaced. Additionally, Amendment 97 would extend to a
replacement vessel authorization to conduct directed fishing for GOA
flatfish species if the originally qualifying Amendment 80 vessel being
replaced was authorized to conduct directed fishing for GOA flatfish
species. This action would ensure that any vessel that replaces an
Amendment 80 vessel eligible to conduct directed fishing for flatfish
in the GOA will continue to be allowed to conduct directed fishing in
the GOA flatfish fishery. The Council did not recommend any measures to
address the potential expansion of the harvest by Amendment 80
replacement vessels in GOA flatfish fisheries because the Council
determined that halibut prohibited species catch limits applicable to
Amendment 80 replacement vessels adequately constrain harvest and
because the annual harvest limits for many GOA flatfish species have
not been fully harvested. Depending on the length overall of any
replacement vessel for the F/V GOLDEN FLEECE, Amendment 97 would either
extend the current sideboard measures applicable to the F/V GOLDEN
FLEECE or would impose the sideboard measures applicable to other
Amendment 80 vessels. These provisions would continue to recognize the
special standing that this vessel has received under Amendment 80 and
its implementing regulations.
Amendment 97 would require all Amendment 80 replacement vessels to
meet contemporary vessel construction standards in order to improve
safety-at-sea for these vessels. Under Amendment 97, vessel owners
applying to NMFS to replace their vessel would have to submit
documentation demonstrating that their replacement vessel meets U.S.
Coast Guard requirements applicable to catcher/processor vessels
operating in the Amendment 80 sector or, if unable to meet these
requirements, is enrolled in the U.S. Coast Guard Alternative
Compliance and Safety Agreement (ACSA) program. Amendment 97 would
allow Amendment 80 vessels currently participating in the Amendment 80
program to replace other Amendment 80 vessels. However, in order to be
used as an Amendment 80 replacement vessel,
[[Page 13256]]
the currently participating Amendment 80 vessel would have to
demonstrate compliance with the U.S. Coast Guard requirements or
participate in the ACSA program.
Amendment 97 would restrict the use of replaced vessels that are
not used as Amendment 80 replacement vessels. For replaced vessels that
are not assigned to an Amendment 80 fishery, e.g., that are not used as
Amendment 80 replacement vessels, Amendment 97 would establish a catch
limit of zero metric tons for all BSAI and GOA groundfish fisheries. A
catch limit of zero metric tons for all BSAI and GOA groundfish
fisheries would effectively prohibit the vessel from being used to fish
in any BSAI or GOA groundfish fishery. This provision would prevent the
use of replaced vessels that have substantial fishing capacity from
entering into other BSAI or GOA fisheries. The Council was concerned
about the highly destabilizing effect of increased fishing capacity and
the resulting rapid pace of harvest if replaced vessels entered other
BSAI and GOA fisheries.
Finally, Amendment 97 would amend the FMP to provide a brief
summary of Amendment 93 to the FMP. This summary was inadvertently
omitted from Amendment 93. To correct this omission, Amendment 97 would
insert a brief summary of Amendment 93 in Appendix A to the FMP.
Public comments are being solicited on proposed Amendment 97 to the
FMP through the end of the comment period (see DATES). NMFS intends to
publish in the Federal Register and seek public comment on a proposed
rule that would implement Amendment 97, following NMFS' evaluation of
the proposed rule under the Magnuson-Stevens Act. Public comments on
the proposed rule must be received by the end of the comment period on
Amendment 97 to be considered in the approval/disapproval decision on
Amendment 97. All comments received by the end of the comment period on
Amendment 97, whether specifically directed to the FMP amendment or the
proposed rule, will be considered in the FMP amendment approval/
disapproval decision.
Comments received after that date will not be considered in the
approval/disapproval decision on the amendment. To be considered,
comments must be received, not just postmarked or otherwise
transmitted, by the last day of the comment period.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 1, 2012.
Steven Thur,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 2012-5430 Filed 3-5-12; 8:45 am]
BILLING CODE 3510-22-P
