[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.
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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 http://
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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 http://www.regulations.gov or from
the Alaska Region Web site at http://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,
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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 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]
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