[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Proposed Rules]
[Pages 13253-13256]
From the Federal Register Online via the Government Publishing 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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

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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-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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