Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 13253 

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 

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.

U.S. Fish and Wildlife Service, Chesapeake 

Bay Field Office, 177 Admiral Cochrane 

Drive, Annapolis, MD 21401. 

Virginia fringed mountain snail ........................... Michael Drummond, (804) 693–6694; e-mail 

mike_drummond@fws.gov.

U.S. Fish and Wildlife Service, Virginia Field 

Office, 6669 Short Lane, Gloucester, VA 

23061. 

Virginia big-eared bat ......................................... Barbara Douglas, (304) 636–6586; e-mail barbara_douglas@fws.gov.U.S. Fish and Wildlife Service, West Virginia 

Field Office, 694 Beverly Pike, Elkins, WV 

26241. 

Hay’s Spring amphipod ...................................... Andy Moser, (410) 573–4537; e-mail 

andy_moser@fws.gov.

U.S. Fish and Wildlife Service, Chesapeake 

Bay Field Office, 177 Admiral Cochrane 

Drive, Annapolis, MD 21401. 

Lee County Cave isopod .................................... Shane Hanlon, (276) 623–1233; e-mail 

shane_hanlon@fws.gov.

U.S. Fish and Wildlife Service, Southwest Virginia Field Office, 330 Cummings Street, 

Abingdon, VA 24210. 

Shenandoah salamander ................................... Cindy Schulz, (804) 693–6694; e-mail cindy_

schulz@fws.gov.

U.S. Fish and Wildlife Service, Virginia Field 

Office, 6669 Short Lane, Gloucester, VA 

23061. 

Knieskern’s beaked-rush .................................... Annette Scherer, (609) 383–3938; e-mail annette_scherer@fws.gov.U.S. Fish and Wildlife Service, New Jersey 

Field Office, 927 North Main Street, Bldg D, 

Pleasantville, NJ 08232. 

Small whorled pogonia ....................................... Susi von Oettingen, (603) 223–2541; e-mail 

susi_vonOettingen@fws.gov.

U.S. Fish and Wildlife Service, New England 

Field Office, 70 Commercial Street, Ste. 

300, Concord, NH 03301. 

Virginia sneezeweed .......................................... Cindy Schulz, (804) 693–6694; e-mail cindy_

schulz@fws.gov.

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 

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 http:// 


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13254 Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 

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 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. 

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. 

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-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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13256 Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 

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 


srobinson on DSK4SPTVN1PROD with PROPOSALS