[Federal Register Volume 66, Number 228 (Tuesday, November 27, 2001)]
[Proposed Rules]
[Pages 59225-59228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29496]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[I.D. 111401B]
RIN 0648-AN55


Fisheries of the Exclusive Economic Zone Off Alaska; Amendments 
61/61/13/8 to Implement Major Provisions of the American Fisheries Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of availability; request for comments.

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SUMMARY: The North Pacific Fishery Management Council (Council) has 
submitted Amendment 61 to the Fishery Management Plan for the 
Groundfish Fishery of the Bering Sea and Aleutian Islands Area, 
Amendment 61 to the Fishery Management Plan for Groundfish of the Gulf 
of Alaska, Amendment 13 to the Fishery Management Plan for Bering Sea 
and Aleutian Islands King and Tanner Crab, and Amendment 8 to the 
Fishery Management Plan for the Scallop Fishery off Alaska (FMPs). 
These amendments incorporate the provisions of the American Fisheries 
Act (AFA) into the FMPs and their implementing regulations. These 
amendments are necessary to implement the requirements of the AFA and 
are intended to do so in a manner consistent with the environmental and 
socioeconomic objectives of AFA, the Magnuson-Stevens Fishery 
Management and Conservation Act (Magnuson-Stevens Act), the FMPs, and 
other applicable laws. NMFS is requesting comments from the public on 
Amendments 61/61/13/8, copies of which may be obtained from NMFS (see 
ADDRESSES).

DATES: Comments on Amendments 61/61/13/8 must be submitted by January 
28, 2002.

ADDRESSES: Comments on proposed Amendments 61/61/13/8 should be 
submitted to Sue Salveson, Assistant Regional Administrator for 
Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 
99802, Attn:

[[Page 59226]]

 Lori Gravel, or delivered to room 401 of the Federal Building, 709 
West 9th Street, Juneau, AK. Comments will not be accepted if submitted 
via e-mail or Internet. Copies of Amendments 61/61/13/8 and the 
Environmental Impact Statement/Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis prepared for Amendments 61/61/13/8 are 
available from the NMFS at the above address.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228 or email at 
[email protected].

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Act requires that each 
Regional Fishery Management Council submit any fishery management plan 
or plan amendment it prepares to NMFS for review and approval, 
disapproval, or partial approval. The Magnuson-Stevens Act also 
requires that NMFS, after receiving a fishery management plan or plan 
amendment, immediately publish a notice in the Federal Register that 
the fishery management plan or plan amendment is available for public 
review and comment. This action constitutes such notice for Amendments 
61/61/13/8. NMFS will consider the public comments received during the 
comment period in determining whether to approve Amendments 61/61/13/8.

Background on the AFA

    On October 21, 1998, the President signed into law the AFA (Div. C, 
Title II, Pub. L. No. 105-277, 112 Stat. 2681 (1998)). The AFA is 
divided into two subtitles addressing the requirements for fishery 
endorsements for all U.S. fishing vessels, and providing for the 
reorganization and rationalization of the Bering Sea and Aleutian 
Islands Area (BSAI) pollock fishery, respectively.
    Subtitle I-Fisheries Endorsements established a 25 percent foreign 
ownership and control limit for all U.S. documented fishing vessels 
over 100 ft (30.9 meters (m)) registered length. Subtitle I also limits 
new U.S. documented fishing vessels to no more than 165 ft (59.3 m) 
registered length, no more than 3,000 lbs (1.36 metric tons (mt) shaft 
horsepower, and no more than 750 gross registered tons (680 mt). The 
provisions of this subtitle apply to all U.S. documented fishing 
vessels fishing anywhere in the U.S. EEZ and are being implemented by 
the Maritime Administration (MARAD) and the U.S. Coast Guard.
    Subtitle II-Bering Sea Pollock Fishery mandated sweeping changes to 
the BSAI pollock fishery and to a lesser extent, affected the 
management of the other groundfish, crab, and scallop fisheries off 
Alaska. The purpose of Amendments 61/61/13/8 is to implement the 
management program required by Subtitle II of the AFA.
    Congress identified two primary objectives in passing the AFA. The 
first objective was to complete the process begun in 1976 to give U.S. 
interests a priority in the harvest of U.S. fishery resources. This 
objective was accomplished through the restrictions on foreign 
ownership and control that are set out in Subtitle I of the AFA. The 
second objective addressed by Subtitle II of the AFA was to 
significantly decapitalize the Bering Sea pollock fishery. Under the 
council system established by the Magnuson-Stevens Act, Congressional 
action is generally not needed to address fishery conservation and 
management issues in specific fisheries. However, Congress believed 
that the overcapacity in the BSAI pollock fishery prior to the AFA was 
due, in part, to mistakes in, and misinterpretations of, the 1987 
Commercial Fishery Industry Vessel Anti-Reflagging Act (Anti-Reflagging 
Act). In passing the AFA, Congress noted that the Anti-Reflagging Act 
had allowed a flood of foreign-rebuilt catcher/processors into the BSAI 
pollock fishery and did not limit foreign control of such vessels in 
the manner in which Congress had intended. Without an Act of Congress, 
the Council and NMFS did not have authority to provide funds under the 
Federal Credit Reform Act to buyout and retire vessels from the BSAI 
pollock fishery, to strengthen U.S. controlling interest standards for 
fishing vessels, or to implement the inshore cooperative program 
contained in the AFA.
    Subtitle 2 of the AFA contains numerous provisions that affect the 
management of the groundfish and crab fisheries off Alaska. Key 
provisions include:
    1. The buyout of nine pollock catcher/processors and the subsequent 
scrapping of eight of these vessels through a combination of $20 
million in Federal appropriations and $75 million in direct loan 
obligations;
    2. A new allocation scheme for BSAI pollock that allocates 10 
percent of the BSAI pollock total allowable catch (TAC) to the 
Community Development Quota (CDQ) program, and after allowance for 
incidental catch of pollock in other fisheries, allocates the remaining 
TAC as follows: 50 percent to vessels harvesting pollock for processing 
by inshore processors, 40 percent to vessels harvesting pollock for 
processing by catcher/processors, and 10 percent to vessels harvesting 
pollock for processing by motherships;
    3. A fee of six-tenths (0.6) of 1 cent for each pound round weight 
of pollock harvested by catcher vessels delivering to inshore 
processors for the purpose of repaying the $75 million direct loan 
obligation.
    4. A prohibition on entry of new vessels and processors into the 
BSAI pollock fishery. The AFA lists by name vessels and processors and/
or provides qualifying criteria for those vessels and processors 
eligible to participate in the non-CDQ portion of the BSAI pollock 
fishery;
    5. New observer coverage and scale requirements for AFA catcher/
processors;
    6. New standards and limitations to guide the creation and 
operation of fishery cooperatives in the BSAI pollock fishery;
    7. An individual fishing quota program for inshore catcher vessel 
cooperatives under which NMFS grants individual allocations of the 
inshore BSAI pollock TAC to inshore catcher vessel cooperatives that 
form around a specific inshore processor and agree to deliver at least 
90 percent of their pollock catch to that processor;
    8. The establishment of harvesting and processing limits known as 
``sideboards'' on AFA pollock vessels and processors to protect the 
interests of fishermen and processors in other fisheries from spillover 
effects resulting from the rationalization of the BSAI pollock fishery,
    9. A 17.5-percent excessive share harvesting cap for BSAI pollock 
and a requirement that the Council develop excessive share caps for 
BSAI pollock processing and for the harvesting and processing of other 
groundfish.
    Some of the above provisions of the AFA already have been 
implemented by NMFS and other agencies. The buyout and scrapping of the 
nine ineligible factory trawlers were completed by NMFS in 1999 under 
the schedule mandated by the AFA. This action was accomplished by 
contract with the vessel owners rather than regulation. The inshore 
pollock fee program required by the AFA was implemented by NMFS through 
final regulations published February 3, 2000 (65 FR 5278). MARAD has 
implemented the new U.S. ownership requirements and size restrictions 
for U.S. fishing vessels through final regulations published July 19, 
2000 (65 FR 44860). MARAD's regulations also set out procedures for 
review of compliance with excessive share harvesting limits contained 
in this proposed rule.

[[Page 59227]]

Council Development of Amendments 61/61/13/8

    Since the passage of the AFA in October 1998, NMFS and the Council 
have undertaken an extensive public process to develop the management 
program proposed under Amendments 61/61/13/8. Amendments 61/61/13/8 
were developed and revised during the course of 12 Council meetings 
over the past 2 years and have been the subject of numerous additional 
public meetings held by the Council and NMFS to address specific 
aspects of the AFA. While the permanent management program proposed 
under Amendments 61/61/13/8 was under analysis and development by the 
Council and NMFS, the statutory deadlines in the AFA were met on an 
interim basis through several emergency interim rules, and was extended 
through the end of 2001 by Pub. L. No. 106-554, which mandated that all 
management measures in effect as of July 2000 would be extended through 
the end of 2001. The following time line provides a summary of the 2-
year public process through which NMFS and the Council developed 
Amendments 61/61/13/8.
    November 1998. After the passage of the AFA in October 1998, the 
Council held a special meeting in November 1998, in Anchorage, AK to 
address among other things, the new requirements of the AFA and the 
effect of the AFA on the fisheries under the jurisdiction of the 
Council. The Council made various recommendations to NMFS regarding the 
regulation of cooperatives in the catcher/processor sector and the 
management of sideboards for AFA catcher/processors for the upcoming 
1999 fishery and began the process of identifying issues and 
alternatives for upcoming AFA-related actions.
    December 1998. At its December 1998 meeting in Anchorage, AK the 
Council approved two emergency rules to implement required provisions 
of the AFA for the 1999 fishing year. The first emergency interim rule 
required two observers on all AFA-listed catcher processors and 
motherships, and established procedures for making inseason sideboard 
closures (64 FR 3435, January 22, 1999; extended at 64 FR 33425, June 
23, 1999). The second emergency interim rule made several technical 
changes to the CDQ program regulations to accommodate the new 
requirements of the AFA (64 FR 3887, January 26, 1999; extended at 64 
FR 34743, June 29, 1999). After extensive public testimony and input 
from the Council's Advisory Panel (AP) and Scientific and Statistical 
Committee (SSC), the Council identified a suite of alternatives for the 
management program that subsequently became known as Amendments 61/61/
13/8.
    February 1999. At its February 1999 meeting in Anchorage, AK the 
Council finalized sideboard and AFA management measure alternatives 
with the intent that a draft analysis would be reviewed at the April 
1999 meeting with a final decision scheduled for June 1999 to allow the 
Council to meet the July 1999 deadline imposed by the AFA for 
recommendation of sideboard measures. The Council also began 
preparation of a separate discussion paper to examine the structure of 
the inshore cooperative program. This separate analysis was in response 
to a proposal by a group of independent catcher vessel owners who 
advocated a change in the program to allow the formation of an 
independent vessel cooperative that would not be tied to a particular 
processor. A draft analysis was scheduled for review in June 1999, with 
further discussion in October 1999.
    April 1999. At its April 1999 meeting in Anchorage, AK the Council 
reviewed its draft analysis for Amendments 61/61/13/8, and received 
extensive public testimony regarding alternatives and issues that 
should be considered under Amendments 61/61/13/8. The Council directed 
staff to make various revisions and additions to the analysis with the 
intent that the amendment package would be before the Council for final 
action in June 1999. The Council also reviewed its discussion paper on 
the structure of the inshore cooperative program and the proposed 
independent catcher vessel cooperative and requested that a broader 
analysis be prepared for initial review at the October 1999 meeting. In 
addition, the Council formed an inshore cooperative implementation 
committee to advise NMFS on many of the technical issues related to the 
formation and management of inshore cooperatives.
    May 1999. The Council's inshore cooperative implementation 
committee held a public meeting with NMFS on May 10-13 in Seattle, WA 
to examine alternative management approaches for inshore catcher vessel 
cooperatives. The approach to implementing and managing inshore 
cooperatives developed at this meeting forms the basis of the inshore 
cooperative management program contained in this proposed rule.
    June 1999. At its June 1999 meeting in Kodiak, AK the Council 
reviewed Amendments 61/61/13/8 and after extensive public testimony, 
approved a suite of AFA-related recommendations including restrictions 
on the formation and operation of cooperatives, harvesting sideboards 
for catcher/processors and catcher vessels, and catch weighing and 
monitoring requirements. However, the Council was unable to reach a 
decision on two AFA-related issues: groundfish processing sideboards 
and excessive processing share caps. To address these issues, the 
Council established an industry committee to further examine 
alternatives and work with State of Alaska (State) and Federal managers 
to resolve implementation issues with the intent that the Council would 
review the committee's recommendations in October 1999.
    August 1999. The Council's processing sideboard industry committee 
held a public meeting in Seattle, WA to examine alternatives for 
processing sideboards and excessive processing share caps. The 
committee was unable to reach complete consensus on a recommended 
approach for processing sideboard caps. However, the committee did 
develop some general recommendations for the Council and provided the 
Council with some requests for additional analysis and information.
    October 1999. At its October 1999 meeting in Seattle, WA the 
Council reviewed its analysis on the structure of the inshore 
cooperative program, including the proposal to allow formation of 
independent catcher vessel cooperatives, and received extensive public 
discussion on this issue. However, the Council voted to postpone action 
until February 2000 and requested further analysis on this issue. The 
Council also re-examined its June 1999 catcher vessel sideboard 
exemption recommendations and requested that NMFS delay implementation 
of these measures until the Council had the opportunity to analyze and 
discuss possible revisions to its recommended catcher vessel sideboard 
exemptions. The Council announced that it would be revising its 
sideboard exemption recommendations at its December 1999 meeting. 
Finally, the Council reviewed what had now become a separate analysis 
of groundfish processing sideboards and excessive processing share 
caps. After extensive discussion and public comment on this issue, the 
Council chose to expand and revise its analysis with intent to review 
the issue again in February 2000 with final action scheduled for June 
2000.
    December 1999. At its December 1999 meeting in Anchorage, AK the 
Council approved two emergency interim rules to implement required 
provisions of the AFA for the 2000 fishing year. These

[[Page 59228]]

measures were necessary to meet certain statutory deadlines in the AFA 
while the comprehensive suite of permanent management measures under 
Amendments 61/61/13/8 continued to undergo development, revision, and 
analysis by the Council and NMFS. The first emergency interim rule set 
out permit requirements for AFA vessels, processors, and cooperatives 
(65 FR 380, January 5, 2000; extended at 65 FR 39107, June 23, 2000). 
The second emergency interim rule established sector allocations, 
cooperative regulations, sideboards, and catch monitoring requirements 
for the AFA fleets (65 FR 4520, January 28, 2000; extended at 65 FR 
39107, June 23, 2000).
    February 2000. At its February 2000 meeting in Anchorage, AK the 
Council reviewed its revised analysis of groundfish processing 
sideboards and excessive share processing caps and requested analysis 
of several additional issues with the stated intent that the analysis 
would be reviewed again in June 2000. The Council postponed action on 
proposed changes to the structure of the inshore cooperative program 
and independent catcher vessel proposal until June 2000. Finally, at 
that meeting, the Council and NMFS decided it would be appropriate to 
expand the environmental assessment prepared for Amendments 61/61/13/8 
into an EIS given the magnitude of the proposed management program to 
implement the AFA.
    April 2000. At its April 2000 meeting in Anchorage, AK the Council 
received extensive testimony from industry on several elements of 
Amendments 61/61/13/8. Catcher vessel owners requested that the Council 
consider revising several of its recommendations related to catcher 
vessel sideboards, retirement of vessels, and the formula for 
calculating inshore cooperative allocations. The Council requested 
preparation of a supplemental analysis of these issues for 
consideration in June 2000. The Council also received testimony from 
crab fishermen who opposed the crab processing caps implemented in 2000 
through an emergency interim rule. The Council announced its intent to 
examine alternatives for crab processing caps at its June 2000 meeting 
with final action on any changes scheduled for September 2000. In 
addition, the April Council meeting was used as a scoping meeting to 
solicit input from the public on issues and alternatives that should be 
addressed in the EIS under preparation for Amendments 61/61/13/8.
    June 2000. At its June 2000 meeting in Portland, OR the Council 
reviewed its analysis of proposed structural changes to the inshore 
cooperative program including the independent catcher vessel proposal. 
The Council did not adopt changes promoted by independent catcher 
vessel owners that would have allowed greater flexibility in choosing 
which cooperative a vessel could join. Instead, the Council recommended 
two changes related to retirement of vessels and allocation formulas 
that would supersede the measures set out in the AFA. These changes 
were incorporated as revisions to Amendments 61/61/13/8. The Council 
also examined the issue of groundfish processing sideboards and 
excessive processing share caps and voted to release its analysis for 
public review with intent to take final action on these measures at its 
October 2000 meeting. The Council's original intent was to include 
groundfish processing sideboards and excessive processing share caps in 
Amendments 61/61/13/8. However, due to the extensive additional 
analysis required for these two issues, the Council decided to address 
these issues on a separate timetable with a separate analysis.
    September 2000. At its September 2000 meeting in Anchorage, AK the 
Council examined proposed changes to crab processing sideboard limits 
and recommended that the 1995-1997 formula used to calculate crab 
processing caps under the AFA be revised by adding 1998 processing 
history and giving it double-weight. In other words, 1995-1998 would be 
used to determine crab processing history with the 1998 year counting 
twice. The purpose of this change was to give greater emphasis to 
recent processing history in consideration of changes to the crab 
processing industry that have occurred since 1995.
    October 2000. At its October 2000 meeting in Sitka, AK the Council 
considered the issues of BSAI pollock excessive processing share limits 
and groundfish processing sideboard limits. The Council adopted a 30-
percent excessive processing share limit for BSAI pollock that would be 
applied using the same 10 percent entity rules set out in the AFA to 
define AFA entities for the purpose of the 17.5 percent excessive 
harvesting share limit contained in the AFA. This action represents the 
Council's final revision to Amendments 61/61/13/8 before official 
submission of the Amendments to the Secretary of Commerce for review 
and approval. With respect to non-pollock groundfish processing 
sideboards, the Council took no action. The Council believed that 
placing non-pollock groundfish processing limits on AFA processors 
could have negative effects on markets for both AFA and non-AFA catcher 
vessels. In addition, the Council concluded that its suite of 
harvesting sideboard restrictions on AFA catcher vessels and catcher/
processors also serve to protect non-AFA processors in the BSAI, which 
are primarily non-AFA catcher/processors. Instead of imposing non-
pollock processing limits on AFA processors, the Council indicated its 
intent to explore revisions to its Improved Retention/Improved 
Utilization program set out at 50 CFR 679.27. Testimony from non-AFA 
processors indicated that such changes could be a more effective means 
of providing a more level playing field for non-AFA catcher/processors.
    Public comments are being solicited on Amendments 61/61/13/8 
through the end of the comment period specified in this document. A 
proposed rule that would implement Amendments 61/61/13/8 may be 
published in the Federal Register for public comment following 
evaluation by NMFS under the Magnuson-Stevens Act procedures. All 
comments received by the end of the comment period specified in this 
document, whether specifically directed to Amendments 61/61/13/8 or to 
the proposed rule, will be considered in the decision to approve, 
disapprove, or partially approve Amendments 61/61/13/8.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: November 20, 2001.
Jon Kurland,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 01-29496 Filed 11-26-01; 8:45 am]
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