[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Proposed Rules]
[Pages 20339-20352]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7867]



[[Page 20339]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 110620343-2149-01]
RIN 0648-BB18


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Management Area; Amendment 97

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule that would implement Amendment 97 
to the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Management Area (FMP). If approved, Amendment 97 would 
allow the owners of trawl catcher/processor vessels authorized to 
participate in the Amendment 80 catch share program to replace these 
vessels with vessels that meet certain requirements. This proposed 
action includes management measures that would establish the 
requirements for replacement vessels, such as a limit on the overall 
length of replacement vessels, measures to prevent replaced vessels 
from participating in Federal groundfish fisheries off Alaska that are 
not Amendment 80 fisheries, and specific catch limits known as 
Amendment 80 sideboards for replacement vessels. This action is 
necessary to promote safety-at-sea, by allowing Amendment 80 vessel 
owners to replace their vessels for any reason at any time and by 
requiring replacement vessels to meet certain U.S. Coast Guard vessel 
safety standards, and is intended to facilitate an increase in the 
processing capabilities of the fleet to improve the retention and 
utilization of groundfish catch by these vessels. 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: Written comments must be received no later than 5 p.m. Alaska 
local time (A.l.t.) May 4, 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://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 http://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. Written comments regarding the burden-hour 
estimates or other aspects of the collection-of-information 
requirements contained in this rule may be submitted to NMFS at the 
above address; emailed to OIRA_Submission@omb.eop.gov or faxed to 202-
395-7285.

FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
of the BSAI in the Exclusive Economic Zone (EEZ) under the FMP. The 
North Pacific Fishery Management Council (Council) prepared the FMP 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and other applicable laws. Regulations 
implementing the FMP appear at 50 CFR part 679. General regulations 
that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

Background on the Amendment 80 Program

    The proposed action would amend Federal regulations related to 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 (C/
Ps) 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). These non-AFA trawl C/Ps also are referred to as 
Amendment 80 vessels, or the Amendment 80 sector. Amendment 80 was 
intended to meet a number of policy objectives that included 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.
    Several aspects of the Amendment 80 program as originally 
implemented would be modified by this proposed rule. The following 
provides some background on these aspects in order to provide the 
context for the modifications being proposed. Other aspects of the 
Amendment 80 program not affected by this proposed rule are described 
in detail in the final rule for the Amendment 80 program (72 FR 52668, 
September 14, 2007).
    The Amendment 80 Program is a limited access privilege program 
(LAPP) that allocates a quota share (QS) permit to a person, based on a 
vessel's catch history of six Amendment 80 species (Atka mackerel, 
Aleutian Islands Pacific ocean perch, flathead sole, Pacific cod,

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rock sole, and yellowfin sole) in the BSAI, from 1998 through 2004. 
This criteria is consistent with criteria for participation in the non-
AFA trawl C/P subsector set forth in section 219(a)(7) of the BSAI 
Catcher Processor Capacity Reduction Program (CRP), which is contained 
within the Department of Commerce and Related Agencies Appropriations 
Act, 2005 (Public Law No. 108-447). Based on these criteria, NMFS 
determined that 28 non-AFA trawl C/Ps originally qualified for the 
Amendment 80 Program.
    In order to participate in the Amendment 80 program, the 
regulations require a person who owns the catch history of an original 
qualifying non-AFA trawl C/P to apply to NMFS for an Amendment 80 QS 
permit. Each of the 28 originally qualifying vessels may be assigned an 
Amendment 80 QS permit, if that vessel owner applies to receive an 
Amendment 80 QS permit. 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 the 28 listed vessels were qualified to fish in 
the Amendment 80 sector and replacement vessels were not permitted 
unless the replacement vessel was one of the qualifying vessels listed 
in Table 31 to part 679.
    To ensure that no more than the 28 originally qualifying vessels 
participate in the Amendment 80 fisheries, NMFS implemented 
regulations, at Sec.  679.4(o)(v), requiring that Amendment 80 QS units 
assigned to an Amendment 80 QS permit are non-severable from that 
Amendment 80 QS permit and if transferred, then the Amendment 80 QS 
permit must be transferred in its entirety to another person. Moreover, 
regulations prevent the subdivision of an Amendment 80 QS permit and QS 
allocations of specific Amendment 80 species may not be transferred or 
otherwise reassigned. Of the 28 originally qualifying vessels, several 
vessels are no longer active in the Amendment 80 fleet due to an actual 
or constructive total loss (i.e., F/V Alaska Ranger, F/V Arctic Sole, 
F/V Prosperity), or because those vessels have been reflagged under 
foreign ownership and are no longer eligible to re-enter U.S. fisheries 
under the provisions of 46 U.S.C. 12113 (i.e., F/V Bering Enterprise).
    In cases where an original qualifying vessel has suffered a total 
or constructive loss, or is no longer eligible to receive a fishery 
endorsement (i.e., the vessel has been removed through a vessel buyback 
program, or has been reflagged as a foreign vessel), the regulations 
currently require that an Amendment 80 QS permit must be permanently 
assigned to the License Limitation Program (LLP) license, described in 
detail below, initially assigned to that original qualifying vessel, 
thus creating an Amendment 80 LLP/QS license. Three Amendment 80 QS 
permits are permanently assigned to LLP licenses.
    Once issued, Amendment 80 QS permits, and the Amendment 80 vessels 
or LLP licenses associated with those Amendment 80 QS permits, may be 
assigned annually to either an Amendment 80 cooperative or to the 
Amendment 80 limited access fishery. Amendment 80 QS permit holders 
assigning their permit to an Amendment 80 cooperative are eligible to 
receive an exclusive harvest privilege for a portion of the total 
allowable catch (TAC) for the six defined Amendment 80 species, as well 
as a portion of the BSAI halibut, Bristol Bay red king crab, snow crab, 
and Tanner crab prohibited species catch (PSC) assigned to the 
Amendment 80 sector. Those Amendment 80 QS permit holders who assign 
their permits to the Amendment 80 limited access fishery do not receive 
an exclusive harvest privilege. NMFS apportions a specific percentage 
of the Amendment 80 species and PSC allowances among Amendment 80 
cooperatives and the Amendment 80 limited access fishery based on the 
aggregate Amendment 80 QS held by all of the QS permits assigned to 
Amendment 80 cooperatives or the Amendment 80 limited access fishery.
    NMFS also requires participants in Amendment 80 fisheries to meet 
the requirements of the LLP program. The Council recommended and NMFS 
implemented the LLP as part of a comprehensive and rational management 
program for the fisheries in and off Alaska (63 FR 52642, October 1, 
1998). The LLP program limited the number, size, and specific operation 
type of vessels that may be used in fisheries for groundfish other than 
demersal shelf rockfish east of 140[deg] W .long. and sablefish managed 
under the individual fishing quota program for Pacific halibut and 
sablefish in the EEZ off Alaska. The LLP program was intended to place 
an upper limit on the amount of capitalization that could occur in 
specific fisheries and prevent overcapitalization in those fisheries.
    LLP licenses were issued based on fishing activity during specific 
qualification periods. Once issued, transferable LLP licenses authorize 
holders to conduct directed fishing for LLP groundfish species in the 
management areas endorsed on each LLP license. All licenses for 
groundfish species were designated for use by either CV or C/P 
operational type designation. This designation prescribed the 
authorized behavior of the LLP license holder on the vessel on which 
the license would be used. LLP licenses were issued with a specific 
vessel length category based on the size of the eligible vessel at the 
time of qualification for the LLP. LLP licenses specify the maximum 
length overall (MLOA) of the vessel to which that LLP license may be 
assigned. The average MLOA of an Amendment 80 LLP license is 170 feet 
(51.8 m) MLOA with 19 of the 28 Amendment 80 LLP licenses having a MLOA 
less than 200 feet (61 m), including one license with an MLOA of less 
than 100 feet (30.5 m). The longest MLOA on an Amendment 80 LLP license 
is 295 foot (89.9 m) MLOA. Additional detail on the MLOAs of Amendment 
80 LLP licenses is provided in Table 1 in Section 2.3.5 of the analysis 
for this proposed action. Participants in Amendment 80 fisheries, and 
other LLP groundfish fisheries, are prohibited from using a vessel to 
fish for LLP groundfish that has a length overall (LOA) that is greater 
than the MLOA specified on the LLP license (see Sec.  679.7(i)(6)).
    As with other North Pacific LAPPs, the Council and NMFS have 
attempted to mitigate potentially adverse effects of the Amendment 80 
program on non-LAPP fisheries that could be caused by the increased 
economic and operational efficiencies that LAPPs can provide 
participants. Specifically, once a harvest privilege is allocated, 
Amendment 80 QS permit holders may consolidate their operations through 
cooperative management and use Amendment 80 vessels in other fisheries. 
This could increase competition and the race for fish in non-Amendment 
80 fisheries. To prevent this, the Amendment 80 program established a 
suite of measures, commonly called sideboard limits, to protect 
participants in other federally managed fisheries from increased 
participation by Amendment 80 vessel owners.
    The Council identified Gulf of Alaska (GOA) groundfish fisheries as 
the fisheries most likely to be at risk of increased harvest pressures 
with the implementation of the Amendment 80 program. The Council 
determined that without sideboards limiting Amendment 80 vessel 
harvests, GOA groundfish fisheries could be subject to increased 
fishing pressure from Amendment 80 vessels because of (1) the harvest 
patterns of the Amendment 80 sector, (2) the lack of other fisheries in 
the BSAI that can be targeted by

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Amendment 80 vessels (i.e., pollock is managed under the AFA, crab is 
managed under the BSAI Crab Rationalization Program, and Pacific cod is 
allocated to the Amendment 80 sector), and (3) the lack of specific 
gear or sector allocations for many species in the GOA. Therefore, the 
Amendment 80 program includes sideboard limit protections for certain 
GOA groundfish fisheries that the Council and NMFS determined were at 
risk from increased participation by Amendment 80 vessels owners. The 
Amendment 80 program established three types of GOA sideboard limits 
for Amendment 80 vessels other than the F/V Golden Fleece. The 
Amendment 80 Program also established specific management measures 
applicable to the F/V Golden Fleece.
    First, Amendment 80 limits catch of specific GOA groundfish species 
by Amendment 80 vessels other than the F/V Golden Fleece to an amount 
not greater than the sideboard limits shown in Table 37 to part 679. 
Once a sideboard limit for one of these groundfish species is reached, 
or projected to be reached, NMFS prohibits directed fishing for that 
species by Amendment 80 vessels. Amendment 80 vessels can retain 
incidental catch of that sideboard species subject to existing maximum 
retainable amount regulations while targeting other GOA groundfish 
species that are not closed to directed fishing. If the rate of 
incidental catch of a GOA groundfish sideboard species is expected to 
be high relative to the sideboard limit, NMFS prohibits directed 
fishing for that species by Amendment 80 vessels to accommodate this 
incidental catch.
    The GOA groundfish sideboard limits restrict the maximum amount of 
pollock, Pacific cod, and rockfish that Amendment 80 vessels can 
harvest. The GOA groundfish sideboard limits restrict the catch of 
Amendment 80 vessels to their average aggregate catch from 1998 through 
2004. Catch of a GOA sideboard species during a directed fishery, as 
well as incidental catch of a GOA sideboarded species, such as Pacific 
cod caught during a rex sole fishery, accrues against the GOA sideboard 
limit for that species. In addition, any catch of a GOA sideboard 
species within State waters during the State parallel fishery accrues 
against the sideboard limit. State parallel fisheries occur in State 
waters, are opened at the same time as Federal fisheries in Federal 
waters, and catch accrues against the Federal TAC. Accounting for catch 
in the State parallel fishery ensures that all catch is debited against 
a sideboard limit whether that harvest occurs in State or Federal 
waters.
    Second, Amendment 80 limits catch of GOA halibut PSC by Amendment 
80 vessels, other than the F/V Golden Fleece. The GOA halibut PSC 
sideboard limits implemented under Amendment 80 are based on the 
historic use of halibut PSC of Amendment 80 vessels, in each season, 
and by fishery complex. The GOA halibut PSC sideboard limits restrict 
the maximum amount of halibut caught by Amendment 80 vessels. NMFS 
apportions the Amendment 80 halibut PSC sideboard limits through the 
annual specification process.
    The GOA halibut PSC sideboard limits established under Amendment 80 
are slightly lower than historic catch of halibut PSC by Amendment 80 
vessels in the GOA, during the period from 1998 through 2004, to 
accommodate two factors: an exemption from the Amendment 80 GOA halibut 
PSC sideboard limits for the F/V Golden Fleece, and the allocation of 
halibut PSC Cooperative Quota under the Rockfish Program. Both 
exceptions to the Amendment 80 GOA halibut PSC sideboard limits are 
described in more detail in Section 2.3 of the EA/RIR/IRFA prepared for 
this proposed action and summarized below in this preamble.
    NMFS subdivides the GOA halibut PSC sideboard limit by the number 
of seasons, and into two species complexes: the shallow-water and the 
deep-water fishery species complexes. A shallow-water halibut PSC 
sideboard limit restricts the catch of halibut PSC in the shallow-water 
fishery complex, which includes pollock, Pacific cod, shallow-water 
flatfish, flathead sole, Atka mackerel, and ``other species.'' A deep-
water halibut PSC sideboard limit restricts the catch of halibut PSC in 
the deep-water fishery complex, which includes all species not in the 
shallow-water complex: all rockfish species, rex sole, deep-water 
flatfish, sablefish, and arrowtooth flounder. If the shallow-water 
halibut PSC sideboard limit is reached, all directed fishing for all 
species in the shallow-water complex is closed in the GOA for that 
season. Similarly, if the deep-water halibut PSC sideboard limit is 
reached, all directed fishing for all species in the deep-water complex 
is closed in the GOA for that season. NMFS can reopen a fishery complex 
in the following season with the halibut PSC sideboard limit applicable 
for that season.
    Third, regulations implementing Amendment 80 restrict the number of 
Amendment 80 vessels and Amendment 80 LLP licenses that can be used to 
conduct directed fishing for flatfish in the GOA. The Council and NMFS 
reviewed historic harvest patterns during the 1998 through 2004 
qualifying years and recognized a specific group of Amendment 80 
vessels that were substantially more dependent on the GOA flatfish 
fisheries than other Amendment 80 vessels with more sporadic 
participation. NMFS authorized a subset of Amendment 80 vessels to be 
used to conduct directed fishing for flatfish in the GOA. Each 
qualifying Amendment 80 vessel conducted more than 10 weeks of directed 
fishing for GOA flatfish fisheries during 1998 through 2004 and are 
designated on an Amendment 80 LLP license that was originally assigned 
to one of the Amendment 80 vessels meeting that 10-week minimum 
requirement.
    Table 39 to part 679 identifies the eleven Amendment 80 vessels and 
eleven Amendment 80 LLP licenses eligible for use in the GOA flatfish 
fishery. If an Amendment 80 vessel listed in Table 39 to part 679 is 
not designated on an Amendment 80 LLP license also listed in Table 39 
to part 679, the regulations prohibit that vessel from conducting 
directed fishing in GOA flatfish fisheries. Similarly, if an Amendment 
80 vessel not listed in Table 39 to part 679 is designated on an 
Amendment 80 LLP license also listed in Table 39 to part 679, the 
regulations prohibit that vessel from directed fishing in GOA flatfish 
fisheries.
    The Amendment 80 program established GOA sideboard limits 
specifically for the F/V Golden Fleece. As part of Amendment 80, the 
Council recognized that any Amendment 80 vessel that fished in GOA 
flatfish fisheries for at least 80 percent of all weeks during the 2000 
through 2003 time period was an Amendment 80 vessel primarily dependent 
on GOA flatfish fisheries. NMFS identified one Amendment 80 vessel, the 
F/V Golden Fleece, with this distinctive harvest pattern in the GOA 
flatfish fisheries. The Council recommended, and NMFS implemented, an 
exemption from the GOA halibut PSC sideboard limits for the F/V Golden 
Fleece to reduce the potential adverse effects that the Amendment 80 
GOA halibut PSC sideboard limits could have on the F/V Golden Fleece.
    The Council recommended, and NMFS implemented, regulations that 
further recognized the unique catch history of the F/V Golden Fleece. 
The F/V Golden Fleece is not subject to certain monitoring and 
enforcement (M&E) requirements applicable to other Amendment 80 vessels 
while fishing in the GOA. Many of the M&E requirements established for

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Amendment 80 vessels are necessary to properly track GOA groundfish 
catch and halibut PSC. Because the F/V Golden Fleece is exempt from the 
GOA halibut PSC sideboard limits and is prohibited from conducting 
directed fishing for Pacific cod, pollock, or in any rockfish fishery 
in the GOA, the Council determined, and NMFS concurred, that the same 
degree of precision for monitoring catch was not required for the F/V 
Golden Fleece as with other Amendment 80 vessels. The regulations 
implementing Amendment 80 established sideboard restrictions 
specifically applicable to the F/V Golden Fleece at Sec.  679.92(d).
    Shortly after NMFS published the final rule implementing Amendment 
80, Arctic Sole Seafoods, the owner of an original qualifying Amendment 
80 vessel that was lost, challenged NMFS's statutory interpretation of 
section 219(a)(7) of the CRP and contended that the lack of replacement 
vessel language in the Amendment 80 Program 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 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 immediately developed an 
interim policy for vessel replacement consistent with the Court's 
decision. In October 2008, NMFS asked the Council to clarify the 
conditions under which an Amendment 80 vessel may be replaced 
consistent with the Court's decision, the CRP, and the Magnuson-Stevens 
Act. In response, the Council developed Amendment 97.

Proposed Action

    This proposed rule would allow the owner of an Amendment 80 vessel 
to replace that vessel with up to one other vessel for any reason and 
at any time. Regulations proposed by this action are intended to 
facilitate improved retention and utilization of catch by the Amendment 
80 sector through vessel upgrades that would provide Amendment 80 
vessel owners with the flexibility to incorporate a broad range of 
processing opportunities that are not currently available on all 
vessels. This proposed action also is intended to address the 
regulatory deficiencies that were identified by, and addressed by, the 
court order resulting from Arctic Sole Seafoods, Inc. v. Gutierrez. As 
part of the proposed action, the Council considered a range of 
alternatives and options. After reviewing the analysis prepared for 
Amendment 97 and receiving public testimony on the action, the Council 
recommended: (1) Allowing Amendment 80 vessels to be replaced for any 
reason at any time, up to a one-for-one vessel replacement; (2) 
establishing maximum vessel length limits for Amendment 80 replacement 
vessels; (3) modifying the MLOA on LLP licenses assigned to Amendment 
80 replacement vessels; (4) clarifying the methods for assigning an 
Amendment 80 QS permit to either an Amendment 80 replacement vessel or 
an Amendment 80 LLP license; (5) imposing sideboard limitations on 
replaced vessels; (6) applying GOA sideboard measures that apply to all 
qualifying Amendment 80 vessels, except the F/V Golden Fleece, to 
continue to apply to their replacement vessels; (7) allowing vessels 
that subsequently replace Amendment 80 vessels authorized to fish in 
GOA flatfish fisheries to be eligible to conduct directed fishing for 
GOA flatfish; (8) establishing specific regulatory restrictions and 
requirements that would apply to any vessel that replaces the F/V 
Golden Fleece; (9) requiring owners of replacement vessels to 
demonstrate to NMFS the vessel's compliance with U.S. Coast Guard 
safety requirements; and (10) establishing the process by which vessel 
owners would apply to NMFS for approval to use an Amendment 80 
replacement vessel in the Amendment 80 sector. Finally, if approved, 
this action is intended to demonstrate to the U.S. Maritime 
Administration (MARAD) that the Council recommended, and NMFS approved, 
conservation and management measures allowing vessels that exceed 
specific limits set forth in the AFA 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.

Replacement for Any Reason and at Any Time, Up to One-for-One Vessel 
Replacement

    The proposed regulations would allow owners of Amendment 80 vessels 
to replace their vessels for any reason and at any time up to a one-
for-one vessel replacement. The Council determined, and NMFS agrees, 
that vessel owners are best-suited to determine the appropriate time to 
replace a vessel, and that vessel owners should be afforded broad 
discretion as to the reasons supporting vessel replacement. The 
Council's recommendation under Amendment 97 is intended to ensure that 
vessel owners would be able to initiate rebuilding or new construction 
of a vessel while the vessel to be replaced is still active (i.e., 
before it is lost), providing an opportunity for a potentially seamless 
replacement process and thereby reducing potential costs associated 
with foregone harvests. After reviewing the analysis for this action 
and receiving public testimony, the Council determined that this 
provision would provide vessel owners with opportunities for financial 
preparation for the investment, a more considered review of alternative 
design and construction options, and the optimization of delivery 
schedules.
    Although Amendment 80 vessel owners would be able to replace their 
vessels at any time for any reason, the proposed rule would limit the 
number of replacement vessels an owner may have, requiring that each 
Amendment 80 vessel be replaced by no more than one vessel at any given 
time. Under the Amendment 80 Program, NMFS determined that 28 vessels 
met the criteria for participation in the non-AFA trawl catcher/
processor sector established under the CRP and therefore were eligible 
to participate in the Amendment 80 Program. In considering vessel 
replacement, the Council determined that limiting the number of vessels 
eligible to participate in the Amendment 80 program at any given time 
to 28 vessels was consistent with the CRP and the Court's decision. The 
CRP is legislation aimed at facilitating a reduction in fishing 
capacity through a buyback program. The Court interpreted the CRP as 
authorizing vessel replacement to prevent the eventual elimination of 
the sector, but recognized that vessel replacement provisions that 
would increase the capacity in the

[[Page 20343]]

sector were not authorized, stating that any ``regulation that allowed 
an otherwise qualified owner to replace his or her Amendment 80 vessel 
with multiple vessels would also be impermissible.'' Although 
regulations proposed by this action maintain the upper limit on the 
number of vessels eligible to participate in the Amendment 80 
fisheries, this action also would allow for a reduction in the number 
of vessels participating in the Amendment 80 fisheries. As described 
later, a vessel owner would have the option of foregoing replacement of 
the owner's Amendment 80 vessel and instead assigning the owner's 
Amendment 80 QS permit to another Amendment 80 vessel, provided that 
the non-severable Amendment 80 QS permit is transferred in its 
entirety. Under this proposed rule, in no case could more than 28 
vessels participate in the Amendment 80 fisheries at any given time.
    As an alternative to new vessel construction, the Council 
recommended, and NMFS proposes, regulations that would allow some 
vessels currently participating in the Amendment 80 program to replace 
other Amendment 80 vessels. As proposed, this action would enable the 
owners of Amendment 80 vessels to replace aging or underperforming 
vessels with other vessels currently prosecuting Amendment 80 
fisheries, without requiring new construction. NMFS would require that 
all replacement vessels, including replacement vessels that are 
currently participating in an Amendment 80 fishery, meet contemporary 
vessel construction standards that are intended to improve safety-at-
sea. A detailed review of the Amendment 80 fleet safety regulations 
proposed by this action can be found in Section 2.3.9.1 of the analysis 
for this action and below in this preamble.

Maximum Replacement Vessel Length Limits

    The proposed rule would limit the length overall (LOA) of Amendment 
80 replacement vessels to 295 feet (89.9 m) LOA. The Council considered 
several size limits, including no size limit, and various variable rate 
and fixed length increases to vessel size prior to recommending a 295 
feet (89.9 m) vessel length limit. As described in Section 2.4.5.12 of 
the analysis for this action, the Council determined that a 295 feet 
(89.9 m) vessel length limit would allow each vessel in the fleet to 
reach the same LOA. The Council noted that the LOA of the longest 
Amendment 80 vessel is 295 feet (89.9 m). Thus this action would 
promote an equal standard for all vessels while allowing the largest 
vessel in the fleet to be replaced with one of equal size.
    The Council also considered the operational parameters of the AFA 
catcher/processor fleet in recommending the 295 feet (89.9 m) LOA limit 
for the Amendment 80 fleet. Operations from the AFA catcher/processor 
fleet provided the Council with some perspective on the relative size 
of vessels that undertake fillet and fish meal operations in the BSAI. 
Although the AFA catcher/processor fleet primarily targets pollock, 
they do target and process yellowfin sole and Pacific cod with trawl 
gear in the same regions as many of the Amendment 80 vessels. The 
Council noted that vessels measuring 295 feet (89.9 m) participating in 
the AFA pollock fleet are large enough to incorporate additional 
processing infrastructure, such as onboard fish meal plants that can 
substantially improve the ability of vessel operators to produce 
valuable products from their harvest. AFA vessels that are at least 295 
feet have met U.S. Coast Guard vessel class and load line safety 
requirements, and NMFS anticipates that Amendment 80 vessels of a 
similar size would likewise be able to meet these requirements. The 
Council determined that the 295 feet (89.9 m) vessel length limit was 
not likely to constrain the type of fishing operations possible on an 
Amendment 80 replacement vessel, or the economic viability of a 
replacement vessel.
    The Council's primary rationale for establishing a limit on the 
size of replacement vessels is to address the potentially adverse 
competitive effects of new fishing capacity entering the fishery 
relative to the existing fleet. As described in detail in Section 2.4.5 
of the analysis for this action, the proposed restriction of 295 feet 
(89.9 m) on the length of replacement vessels is intended to limit 
overall harvesting capacity of the fleet, reduce the potential for a 
race for fish, and encourage general improvements in harvesting 
capacity that any newly constructed vessel would provide over the 
vessel being replaced, while providing an upper boundary on total fleet 
capacity.
    As described in the analysis for this action, the Council has 
frequently recommended limits on vessel length as a proxy for 
controlling fishery effort. Although length is only one measure of a 
vessel's fishing capacity, it is a metric that is commonly used, 
considered to be a reasonable indicator of total harvest capacity, and 
is relatively easily measured and enforced compared to other vessel 
measurements (e.g., vessel hold capacity). As proposed, the 295 feet 
(89.9 m) LOA limit for Amendment 80 replacement vessels would improve 
the Council's and NMFS' ability to analyze and predict the maximum 
fishery impacts of the Amendment 80 fleet in future actions.
    The proposed vessel length restrictions in concert with cooperative 
quota and sideboard restrictions are intended to reduce the potential 
for a race for fish in the Amendment 80 limited access fishery. As 
noted in the section 2.4.5.2 of the EA/RIR/IRFA for this action, 
Amendment 80 vessels are constrained by quotas in most fisheries in the 
BSAI and sideboards limits in the GOA. These quotas and sideboard 
limits reduce the incentive for vessel operators to expand their vessel 
length in order to be more competitive in a race for fish. 
Specifically, vessels participating in an Amendment 80 cooperative are 
not competing in a race for fish and would not have an incentive to 
lengthen a replacement vessel in order to increase harvests of 
Amendment 80 species sideboard limits. These restrictions will remain 
in place and will continue to constrain the fleet in most fisheries.
    However, vessels participating in the Amendment 80 limited access 
fishery continue to compete in a race for Amendment 80 species catch so 
vessel size could provide a competitive advantage to larger replacement 
vessels. Under Amendment 97, a vessel owner could choose to enter the 
Amendment 80 limited access fishery with a larger vessel and out-
compete other participants. It is not possible to predict the 
likelihood that a vessel owner would choose to enter a longer vessel in 
the Amendment 80 limited access fishery for this purpose, but the 
incentives would increase as the difference becomes greater between 
potential harvests in the Amendment 80 limited access fishery and the 
amount of catch that the vessel may receive if participating in a 
cooperative.
    The proposed maximum vessel length is intended to provide the 
opportunity for a vessel owner to increase the length of the vessel to 
improve the range of processed products and hold capacity onboard the 
vessel while establishing a maximum capacity for the fleet. The Council 
recognized that in many cases vessel length is less important for 
increasing harvest rates than for providing a large enough vessel to 
provide adequate hold capacity. Depending on the nature of an Amendment 
80 fishery, a vessel may be constrained primarily by the rate of 
throughput and vessel hold capacity. The sizes of vessels that can 
incorporate

[[Page 20344]]

these features will vary, depending on the specifics of vessel 
construction.
    Although the owner of an Amendment 80 vessel can apply to use an 
existing Amendment 80 vessel as an Amendment 80 replacement vessel, as 
described in more detail below, the Council and NMFS anticipate that 
most replacement vessels would be newly constructed. Many of the 
existing vessels in the Amendment 80 fleet were originally constructed 
for purposes other than fishing; therefore, these vessels are less 
well-designed for fishing than a new, purposefully constructed fishing 
vessel would be. A vessel built to contemporary standards would likely 
have improved hold capacity, fuel efficiency, and harvest capacity 
relative to existing similarly sized vessels in the Amendment 80 fleet. 
Larger vessels can incorporate improved hold design, processing plant 
construction, engines, and other advancements in marine design that 
improve a vessel's efficiency. Such modifications can enable vessel 
operators to store large quantities of fish and create or make value 
added products like surimi, fillets, and fishmeal in onboard fishmeal 
plants. Smaller vessels lack the capacity to incorporate such 
facilities. Thus smaller vessels require more trips to travel to and 
from fishing grounds to offload product. As noted earlier in this 
preamble, the average MLOA on an Amendment 80 LLP license is currently 
170 feet (51.8 m). Under this action, the average LOA of all Amendment 
80 vessels could increase up to 295 feet (89.9 m) LOA. Replacing a 
smaller vessel with a larger vessel could allow participants to fish 
for longer periods of time and reduce the number of trips required to 
offload products. Fewer trips would reduce fuel consumption and would 
allow vessel owners to minimize the time required to harvest their 
quota.

American Fisheries Act Vessels and Amendment 80 Vessel Replacement

    The Council's motion for Amendment 97 does not recommend that NMFS 
prohibit or otherwise establish regulations to limit the use of AFA 
vessels as Amendment 80 replacement vessels. Additionally, as explained 
in the court's decision, the CRP does not prevent non-qualifying 
vessels from being used as replacement vessels in the Amendment 80 
sector. Therefore, this proposed rule does not prohibit the use of an 
AFA vessel as an Amendment 80 replacement vessel. However, the 
Council's recommendation for Amendment 97 does not address potential 
statutory or regulatory conflicts that may limit the ability of an AFA 
vessel from actively participating in both AFA and Amendment 80 
fisheries. NMFS notes that should a listed AFA vessel be approved by 
NMFS for use as an Amendment 80 replacement vessel, then that vessel 
would not be released from the monitoring and enforcement requirements, 
sideboard restrictions, and the PSC limits that may be applicable to 
that AFA vessel. Any vessel eligible to participate in both fisheries 
would be required to meet the statutory and regulatory requirements for 
both fisheries, possibly impacting that vessel's ability to participate 
in either fishery. For example, a listed AFA C/P that replaces an 
Amendment 80 vessel would be subject to existing directed fishing and 
halibut PSC sideboard limits applicable to listed AFA C/Ps. Under 
section 213(c) of the AFA, the Council and NMFS may supersede the 
sideboard provisions established by the AFA to mitigate adverse effects 
in fisheries caused by the AFA. AFA C/P vessel owners may ask the 
Council and NMFS to examine changes to existing sideboard limits for 
AFA C/Ps that would accommodate the use of an AFA C/P as an Amendment 
80 replacement vessel.
    NMFS notes that replaced AFA vessels are prohibited by statute from 
participation in fisheries other than AFA fisheries. Under section 602 
of the Coast Guard Authorization Act of 2010 (Pub. L. 111-281, Title 
VI, Sec. 602), replaced AFA vessels are not eligible for a fishery 
endorsement in any fishery other than an AFA fishery and are prohibited 
from fishing other Federal fisheries, including Amendment 80 fisheries. 
As described in more detail in the Council's ``AFA Vessel Replacement 
on GOA Sideboard'' discussion paper (February 2012; see ADDRESSES), the 
U.S. Coast Guard Authorization Act stipulates that, once replaced, a 
vessel loses not only its AFA fishing privileges but also any fishery 
privileges in other fisheries, including sideboard fisheries.

Maximum Length Overall on License Limitation Program Licenses

    The proposed rule would modify the MLOA on Amendment 80 LLP 
licenses to reflect the 295 feet (89.9 m) proposed limit on the length 
overall (LOA) for Amendment 80 vessels. Under regulations at Sec. Sec.  
679.4(o) and 679.7(i)(2), an Amendment 80 vessel is required to use an 
Amendment 80 LLP while fishing in the BSAI or GOA. The number of 
Amendment 80 LLP licenses is limited to those 28 LLP licenses 
originally issued for an Amendment 80 vessel as shown in Table 31 to 
part 679, and the seven non-AFA trawl C/P LLP licenses with a Bering 
Sea or Aleutian Islands endorsement that are eligible to be assigned to 
the Amendment 80 sector but have not yet been assigned to an Amendment 
80 vessel (see Table 25 of Section 2.4.5.8 of the analysis for this 
action). Section 2.3.5 of the analysis for this action identifies the 
28 LLP licenses that are currently assigned, or may be eligible to be 
assigned, to Amendment 80 vessels. Currently, each LLP license 
designated as an Amendment 80 LLP cannot be used on any vessel other 
than an Amendment 80 vessel. Under the LLP program, each LLP license 
(including those derived from a qualifying Amendment 80 vessel) upon 
initial issuance was assigned a MLOA based on the length of the 
qualifying vessel on a specific date. Additional detail on the methods 
for assigning MLOAs to specific LLP licenses is addressed in the final 
rule for the LLP program (63 FR 52642 October 1, 1998) and is not 
repeated here.
    This proposed rule would remove the prohibition on using an 
Amendment 80 LLP license on a non-qualifying vessel and allow Amendment 
80 LLP licenses to be used on approved Amendment 80 replacement 
vessels. In most cases, the MLOA on an Amendment 80 LLP license is 
below 295 feet (89.9 m); therefore, NMFS must increase the MLOA on 
Amendment 80 LLP licenses to ensure that replacement vessels are not 
constrained by the MLOA on an Amendment 80 LLP license. To ensure that 
the maximum size limit recommended by the Council can be implemented, 
NMFS proposes to establish a 295 feet (89.9 m) MLOA for all Amendment 
80 LLP licenses that are assigned to an Amendment 80 replacement 
vessel. This provision would ensure that Amendment 80 LLP licenses 
accurately reflect the MLOA of the replacement vessel. NMFS would not 
adjust the MLOA of an Amendment 80 LLP license until it is transferred 
to a replacement vessel. For those LLP licenses eligible to be assigned 
but not yet assigned to an Amendment 80 vessel, NMFS would adjust the 
MLOA of those LLP licenses if one of these licenses is assigned to an 
Amendment 80 replacement vessel. Furthermore, NMFS would not approve 
any Amendment 80 replacement vessel that was greater than 295 feet 
(89.9 m) LOA.

Assignment of Amendment 80 Quota Share Permits

    This proposed rule would make three modifications to existing 
regulations concerning the assignment of Amendment 80 QS permits. 
First, the proposed regulations would provide an Amendment 80 vessel 
owner with the choice of either assigning the

[[Page 20345]]

Amendment 80 QS permit to an Amendment 80 replacement vessel or 
permanently assigning the Amendment 80 QS permit to the LLP license 
derived from the originally qualifying vessel. Second, the proposed 
regulations would prohibit replaced or replacement vessels from 
participating in an Amendment 80 fishery unless an Amendment 80 QS 
permit is assigned to that vessel or to the LLP license naming that 
vessel. Third, the proposed regulations would allow a person holding an 
Amendment 80 QS permit associated with an Amendment 80 vessel that is 
permanently ineligible to re-enter U.S. fisheries to replace the vessel 
associated with its Amendment 80 QS permit. Each of these proposed 
modifications is discussed in detail below.
    The proposed regulations would provide an Amendment 80 vessel owner 
with the choice of either assigning the Amendment 80 QS permit to an 
Amendment 80 replacement vessel or permanently assigning the Amendment 
80 QS permit to the LLP license derived from the originally qualifying 
vessel. Existing regulations at Sec.  679.90(f) require the permanent 
coupling of an Amendment 80 QS permit and an LLP license for Amendment 
80 vessels that are lost or permanently ineligible to participate in 
the Amendment 80 fisheries. This action would no longer require this 
permanent coupling if a vessel is lost or permanently ineligible to 
participate in the Amendment 80 fisheries. Instead, the proposed rule 
would provide Amendment 80 vessel owners with a choice of either 
assigning the Amendment 80 QS permit to an Amendment 80 replacement 
vessel or permanently affixing the Amendment 80 QS permit to the LLP 
license derived from the originally qualifying Amendment 80 vessel, as 
specified in Table 31 to part 679. 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. Existing 
regulations prohibit Amendment 80 QS permits that have been assigned to 
an LLP license (e.g. Amendment 80 LLP/QS license) from being uncoupled 
at a later date. Under this proposed rule, NMFS would maintain the 
existing practice of permanently affixing the Amendment 80 QS permit to 
the LLP license.
    The proposed regulations would not require that a replacement 
vessel be limited to only one Amendment 80 QS permit or an Amendment 80 
LLP/QS license. As proposed, one replacement vessel could have several 
Amendment 80 QS permits assigned to that vessel in any fishing year. In 
making this recommendation, the Council considered that smaller vessel 
owners may wish to replace one, or more, of their smaller vessels with 
a single, longer vessel that can be used to fish the entire allocation 
assigned to the replaced vessels. A larger vessel with greater hold 
capacity could reduce travel times and operational costs associated 
with operating two or more vessels instead of one.
    Amendment 97 would address two situations where the owner of an 
original qualifying Amendment 80 vessel and the person holding the 
Amendment 80 QS permit derived from that vessel differ. First, the 
proposed regulations prohibit replaced or replacement vessels from 
participating in an Amendment 80 fishery unless an Amendment 80 QS 
permit is assigned to that vessel or to the LLP license naming that 
vessel. This provision is intended to eliminate the risk that a person, 
who is not linked to the Amendment 80 fishery other than through 
holding title to a lost Amendment 80 vessel, could replace that vessel 
and enter the replacement vessel into the Amendment 80 limited access 
fishery. In making this recommendation, the Council recognized vessel 
owners could have an incentive to enter a replacement vessel into the 
Amendment 80 sector without having any underlying Amendment 80 QS 
permits being assigned to that vessel.
    One example of this situation exists with the Amendment 80 QS 
permit derived from the F/V Prosperity. The F/V Prosperity is an 
originally qualifying vessel but the vessel was lost prior to the 
implementation of Amendment 80. The Amendment 80 QS permit derived from 
the F/V Prosperity is held by U.S. Seafoods, Inc., but U.S. Coast Guard 
documentation indicates that the owner of the F/V Prosperity is 
undetermined at this time. The Council and NMFS recognized that a 
person other than U.S. Seafoods, Inc. could become the documented owner 
of the F/V Prosperity and choose to replace it in order to participate 
in the Amendment 80 sector. In that case, a vessel without associated 
QS could become active in the fishery. Without a regulation that 
requires assignment of an Amendment 80 QS permit to the participating 
vessel or the Amendment 80 LLP license, a replacement vessel for the F/
V Prosperity could become active in the fishery and increase the number 
of vessels qualified to participate in the Amendment 80 sector. Not 
only would such a situation be inconsistent with the CRP and the 
Court's decision, this would also likely pose a risk of increased 
competition for participants in the Amendment 80 limited access fishery 
because a cooperative would establish contractual obligations that 
would limit the ability of a vessel to fish more than the amount 
specified in the cooperative contract--typically, the amount derived 
from the QS held by the vessel owner. A vessel owner may have an 
incentive to enter that replacement vessel into the Amendment 80 
limited access fishery, if it is perceived that such a vessel would be 
able to out-compete other participants in the limited access fishery. 
Therefore, in order to be consistent with the CRP and to prevent 
unintended negative incentives, NMFS is proposing regulatory provisions 
that would require a vessel participating in the Amendment 80 sector to 
have an Amendment 80 QS permit assigned to that vessel or permanently 
assigned to the LLP license derived from the original qualifying 
vessel.
    Second, this proposed rule would permit a person holding an 
Amendment 80 QS permit associated with an Amendment 80 vessel that is 
permanently ineligible to re-enter U.S. fisheries to replace the vessel 
associated with its QS permit. In making this recommendation, the 
Council determined that an Amendment 80 QS permit holder who does not 
hold documentation to a vessel should be eligible to replace a vessel 
because it would provide these QS holders with the same opportunities 
as other QS holders who own vessels; that is, the ability to actively 
participate in the Amendment 80 fisheries with a replacement vessel. 
This provision is consistent with the CRP because the maximum number of 
vessels participating in the Amendment 80 sector would not increase 
given that the replaced vessel cannot re-enter U.S. fisheries. As an 
example, the holder of the F/V Bering Enterprise Amendment 80 QS permit 
does not hold documentation of title to the F/V Bering Enterprise. The 
F/V Bering Enterprise is in service overseas and is permanently 
ineligible to receive documentation as a U.S. fishing vessel. 
Therefore, without a change to the regulations, the F/V Bering 
Enterprise Amendment 80 QS holder could never replace the vessel 
associated with its QS history. Based on this concern, the Council 
recommended that NMFS allow persons holding an Amendment 80 QS permit 
associated with a vessel that is permanently ineligible to re-enter 
U.S. fisheries to replace the vessel associated with its QS permit.
    To implement the Council's recommendations for this provision, NMFS 
would verify which vessels are

[[Page 20346]]

permanently ineligible to re-enter U.S. fisheries. NMFS would make this 
determination based on the best available information provided by the 
U.S. Coast Guard or MARAD, as applicable, at the time the final rule 
implementing Amendment 97 becomes effective. NMFS would permit the 
holder of the original Amendment 80 QS permit to enter an approved 
Amendment 80 replacement vessel into the Amendment 80 fisheries. If a 
vessel subsequently becomes ineligible to receive documentation, then 
the person holding the Amendment 80 QS permit derived from that vessel 
would become eligible to replace that vessel, once ineligibility is 
established through a determination by the U.S. Coast Guard or MARAD. 
The person holding the Amendment 80 QS permit would be responsible for 
supplying NMFS with that determination when applying to replace the 
ineligible vessel.

Sideboard Limitations for Replaced Vessels

    Amendment 97 would limit effort in non-Amendment 80 fisheries by 
replaced vessels. Therefore, this proposed rule would establish 
restrictions on the ability of replaced Amendment 80 vessels to 
participate in Federal groundfish fisheries within the BSAI and GOA. 
NMFS would allocate to any replaced vessel (e.g., an Amendment 80 
vessel not assigned to an Amendment 80 fishery) a catch limit of zero 
metric tons in all BSAI or GOA groundfish fisheries. Catch limits of 
zero metric tons would effectively prohibit these vessels from 
conducting directed fishing for groundfish in the BSAI and GOA.
    The Council made this recommendation after considering an option 
that would remove the associated Federal fishing permit (FFP) and the 
associated LLP license from the replaced vessel. The Council and NMFS 
determined that assigning replaced vessels a catch limit of zero metric 
tons was the most direct way to limit participation by replaced 
vessels. The proposed regulations are intended to prevent replaced 
Amendment 80 vessels from increasing fishing effort in non-catch share 
fisheries. Additionally, the Council noted the potential for 
consolidation of capital among longtime participants in groundfish 
fisheries that might disadvantage or have negative impacts on other 
participants in those fisheries. The Council's recommendation is 
consistent with other LAPP provisions for BSAI fisheries recommended by 
the Council and proposed in this action. NMFS notes that Amendment 97 
would not restrict replaced Amendment 80 vessels from participating in 
the BSAI and GOA fisheries as motherships, Community Quota Entity 
floating processors, or stationary floating processors that only 
receive deliveries from other vessels for processing. Similarly, this 
action would not restrict replaced Amendment 80 vessels from operating 
in fisheries managed under the jurisdiction of other regional fishery 
management councils.

Management Applicable to Replacement Vessels

    Monitoring and enforcement, permitting, recordkeeping and 
reporting, prohibitions, and general GOA sideboard measures that apply 
to all original Amendment 80 vessels, except the F/V Golden Fleece, 
would continue to apply to all replacement vessels. As noted elsewhere 
in the preamble, if the MLOA of the vessel replacing the F/V Golden 
Fleece is greater than the MLOA of the license that was originally 
assigned to the F/V Golden Fleece, then that vessel would be subject to 
the sideboard restrictions applicable to the rest of the Amendment 80 
fleet. As noted in the analysis, the Council intended that Amendment 97 
would extend existing management practices and limitations to any 
replacement vessel and would treat any replacement vessel the same as 
any similarly situated original qualifying vessel. The regulations that 
apply to Amendment 80 vessels are best described in the final rule 
implementing Amendment 80 (September 14, 2007; 72 FR 52668).

Directed Fishing in GOA Flatfish Fisheries

    Under Amendment 97, any vessel that replaces an Amendment 80 vessel 
that is eligible to conduct directed fishing for flatfish in the GOA 
would continue to be allowed to conduct directed fishing in the GOA 
flatfish fishery. There are 11 Amendment 80 vessels currently 
authorized to conduct directed fishing in the GOA flatfish fisheries. 
Although the Council considered measures to limit access or to limit 
the size of replacement vessels for these 11 Amendment 80 vessels, the 
Council did not recommend that NMFS prohibit or limit GOA flatfish 
harvest by these replacement vessels. The Council determined, in part, 
that eligible Amendment 80 vessel owners should not have to choose 
between vessel safety improvements and the ability to continue to 
harvest GOA flatfish. Moreover, the harvest of GOA flatfish by these 
vessels is constrained by halibut PSC limits specified for GOA flatfish 
fisheries. Finally, the Council acknowledged that the GOA TACs for some 
species of GOA flatfish are typically not fully harvested, thus 
indicating that increased harvest would not likely affect other 
participants in these fisheries.
    The Council made this recommendation after considering that there 
is no conservation or management issue for those fisheries at this 
time. The Council and NMFS recognize the potential for fishing effort 
to move the Amendment 80 fisheries in the BSAI to other non-AFA 
fisheries, including the GOA flatfish fishery. However, NMFS and the 
Council do not anticipate a rapid increase in fishing effort due to the 
impact of replacement vessels and could address the issue at a later 
date should a conservation or management problem be predicted. As 
described in Section 2.3.8 of the EA/RIR/IRFA for this action, 
construction times can vary substantially for vessels, but new 
construction would probably require a minimum of 2 years from the 
beginning of construction to final delivery based on the vessel 
characteristics desired by vessel owners. Additional time would be 
required to develop blueprints, undertake computer-aided testing, and 
source materials.

Regulatory Requirements Specific to the F/V Golden Fleece

    The proposed regulations implementing Amendment 97 recognize the 
special standing that the F/V Golden Fleece has under the Amendment 80 
program. As noted earlier in this preamble, the Council recognized the 
F/V Golden Fleece as having a unique harvest pattern in the GOA that 
warranted specific GOA sideboard measures. Under current regulations, 
the exemption to the GOA halibut PSC sideboard limit only applies if 
the F/V Golden Fleece uses the LLP license originally issued for the F/
V Golden Fleece (LLP license number LLG 2524). This provision ensures 
that only the F/V Golden Fleece is exempted from the GOA halibut PSC 
sideboard limits. Exempting the F/V Golden Fleece from the GOA halibut 
PSC sideboard has not increased the overall amount of GOA halibut PSC 
taken by Amendment 80 vessels. As described in Section 2.4.7 of EA/RIR/
IRFA for this action, the F/V Golden Fleece has maintained its historic 
fishing patterns, including its halibut PSC rates. By exempting the F/V 
Golden Fleece from the GOA halibut PSC sideboard limits, the Council 
and NMFS maintained the F/V Golden Fleece's ability to continue to 
harvest its traditional amounts of GOA flatfish protected from any 
adverse impacts resulting from other

[[Page 20347]]

Amendment 80 vessels that could choose to fish in the GOA and use 
halibut PSC.
    NMFS is proposing regulations under Amendment 97 that would ensure 
that any replacement vessel for the F/V Golden Fleece that is less than 
or equal to the MLOA of the LLP license that was originally assigned to 
the F/V Golden Fleece (124 feet, 37.8 m) would continue to benefit from 
the F/V Golden Fleece sideboard limits and GOA halibut PSC exemption 
implemented under Amendment 80. However, if the replacement vessel for 
the F/V Golden Fleece is greater than 124 feet (37.8 m) LOA, then that 
replacement vessel will be subject to all sideboards that apply to 
other Amendment 80 vessels. In the latter case, NMFS would recalculate 
the sideboards implemented under Amendment 80 so that they would 
include the catch history of the F/V Golden Fleece from 1998 through 
2004. Under the latter scenario, the replacement vessel would not 
retain the specific F/V Golden Fleece sideboard restrictions and GOA 
halibut PSC use of the F/V Golden Fleece would be added to the existing 
GOA sideboards. Section 2.7.4.3 of the analysis for this action 
describes the methods that NMFS would use to modify GOA sideboard 
limits if the F/V Golden Fleece is replaced with a vessel greater than 
124 feet (37.8 m) LOA. The Council made this recommendation to 
accommodate the historic fishing patterns of this vessel while limiting 
the potential for the vessel to expand its effort into other groundfish 
fisheries in which it has not traditionally participated. NMFS notes 
that the MLOA for any vessel replacing the F/V Golden Fleece would be 
295 feet.

Safety Requirements

    The Council and NMFS have long sought to improve safety-at-sea and 
have recognized the safety concerns within the Amendment 80 fleet. 
Since 2000, vessel losses and individual fatalities have made the 
Amendment 80 fleet one of the highest-risk Federal fisheries within the 
jurisdiction of the Council. Amendment 80 vessels are considered by the 
U.S. Coast Guard as high risk primarily due to the area in which they 
operate, the large number of crew they carry, and their high-
consequence of marine casualty history. Since 2000, there have been two 
major vessel losses in this fleet. The sinking of the F/V Arctic Rose 
in 2001 resulted in 15 fatalities, the highest number of fishermen 
killed in a single event in Alaska since 1990. The sinking of the F/V 
Alaska Ranger, in which 5 died and 42 were rescued, resulted in one of 
the largest at-sea rescues in Alaskan history.
    Prior to 2006, the Amendment 80 sector had been regulated by the 
U.S. Coast Guard for safety regulations as ``fishing vessels'' that 
conducted head and gut (H&G) operations (46 U.S.C. 2101). This meant 
that vessels in the Amendment 80 fleet only had to meet minimal 
standards for the carriage of primary lifesaving equipment. However, in 
2005, formal U.S. Coast Guard investigations into the loss of the F/V 
Arctic Rose (2001) and F/V Galaxy (2002) found most Amendment 80 
vessels were actually operating (and had been operating for some time) 
as ``fish processing vessels,'' based on the products they produced. As 
fish processing vessels, these Amendment 80 vessels are required by law 
to be classed or load lined.
    Under current law, any fish processing vessel which is built or 
undergoes a major conversion after July 27, 1990, is required by 46 
U.S.C. 4503 to meet all survey and classification requirements 
prescribed by the American Bureau of Shipping or another similarly 
qualified classification society. A classification society is a non-
governmental organization that establishes and maintains technical 
standards and rules for the construction (hull, machinery and other 
vital systems) and operation of ships and offshore structures. The 
classification society will also validate that construction is 
according to these standards and carry out regular surveys in service 
to ensure compliance with the standards. Similarly, all fish processing 
vessels 79 feet or greater that are built or converted for use as a 
fish processing vessel after January 1, 1983, are required by 46 U.S.C. 
5102 to have a load line. A load line establishes the maximum draft of 
the ship and the legal limit to which a ship may be loaded for specific 
water types and temperatures. A load line is intended to ensure that a 
ship has sufficient freeboard so that the vessel has the necessary 
stability to operate safely.
    However, the vast majority of the Amendment 80 sector is not load 
lined or classed. Due to a variety of concerns, classification 
societies have not recently classed or load lined vessels greater than 
20 years old, and do not appear likely to do so in the foreseeable 
future. Based upon this limitation, 22 of 24 Amendment 80 vessels 
cannot meet the requirements of class and loadline. The U.S. Coast 
Guard and owners of Amendment 80 vessels collaborated to develop an 
alternative program to address the safety risks of this fleet. This 
collaborative effort is known as the Alternative Compliance and Safety 
Agreement (ACSA). Program development began in June 2005, and 
implementation was achieved between June 2006 and January 2009. The 
ACSA program is designed to achieve numerous safety, economic, and 
fishery management goals, both directly and indirectly.
    ACSA is both a preventative safety regime, as well as a reactive 
one. Preventative safety components of the ACSA program focus primarily 
on maintaining hull condition and watertight integrity, preventing down 
flooding, ensuring adequate vessel stability, requiring enhanced fire 
detection and suppression, and establishing preventative maintenance 
for machinery and critical piping systems. Reactive safety components 
of ACSA include enhanced emergency training, improved lifesaving 
equipment, and additional firefighting capabilities of the vessel and 
crew. These standards are achieved through mandatory annual inspections 
and regular drydock examinations.
    While the U.S. Coast Guard and Amendment 80 vessel owners have seen 
significant improvements in vessel safety as a result of the ACSA 
program, there are limitations to its long-term effectiveness for the 
Amendment 80 fleet. The Council and NMFS recognize that no Amendment 80 
vessels were constructed to meet the requirements of class and 
loadline; therefore, there are some inherent limitations in achieving a 
total safety equivalency. Moreover, the National Transportation and 
Safety Board's (NTSB) investigation into the sinking of the F/V Alaska 
Ranger found that ``while the NTSB finds that ACSA has improved the 
safety of the vessels enrolled in the program, the effectiveness of 
ACSA is limited because it is a voluntary program.'' Another key 
limitation to the ACSA program is vessel age. The average age of an 
Amendment 80 vessel is 32 years. U.S. Coast Guard marine inspectors in 
charge of implementing the ACSA program continue to express serious 
concern over the material condition of this aging fleet; in part, 
because some studies have shown that an increase in vessel age 
increases the probability of a total loss due to a collision, fire/
explosion, material/equipment failure, capsizing, and sinking.
    If Amendment 80 vessel operators wish to undertake a major 
modification of a vessel to increase its size, address safety concerns, 
or otherwise improve its efficiency, those vessel operators would need 
to recertify that vessel under ACSA, which is an extensive and 
expensive process. It is highly unlikely

[[Page 20348]]

a converted Amendment 80 vessel could be classed, and it may have 
difficulty meeting the requirements of the ACSA program. NMFS and the 
Council note that newly constructed fish processing vessels would have 
to meet the full suite of modern safety standards--including all 
construction, stability, and manning requirements--intended to ensure 
such a vessel is inherently safer. Any newly constructed Amendment 80 
replacement vessel would be required to be classed and load lined.
    If Amendment 97 is implemented, NMFS would require Amendment 80 
vessel owners applying to NMFS to replace their vessel to submit 
documentation demonstrating that their replacement vessel meets U.S. 
Coast Guard requirements applicable to processing vessels operating in 
the Amendment 80 sector or, if unable to meet these requirements, 
demonstrate that the vessel is enrolled in the ACSA program. These 
provisions are intended to improve safety at sea by requiring Amendment 
80 replacement vessels to meet safety requirements established for 
fishing vessels in recent years. NMFS notes that it would likely take 
decades for all vessels to receive safety upgrades; however, the 
proposed management measures requiring minimum safety certifications 
would promote long-term safety improvements for the Amendment 80 fleet.

Amendment 80 Replacement Vessel Applications

    The proposed rule would add regulations at Sec.  679.4(o)(4) to 
establish the process for eligible participants to request that a 
vessel be approved as an Amendment 80 replacement vessel. The proposed 
regulations require all eligible participants to submit a completed 
application before NMFS would approve a replacement vessel for use in 
the Amendment 80 fisheries. For NMFS to consider an application for 
approval, the applicant must identify the Amendment 80 vessel being 
replaced. The applicant would need to specify vessels that have been 
lost at sea or are permanently ineligible to participate, identify the 
replacement vessel, provide documentation demonstrating that the 
replacement vessel is classed and load lined or if incapable of being 
classed and load lined, and that it meets the requirements of ACSA. The 
applicant must sign and date an affidavit affirming that all 
information provided on the application is true, correct, and complete 
to the best of his or her knowledge and belief. Persons holding an 
Amendment 80 QS permit for a vessel that has been deemed ineligible for 
use and are applying to replace that vessel would have to provide 
evidence to NMFS that ineligibility has been established through a U.S. 
Coast Guard or MARAD determination. Written documentation would need to 
be provided to establish that an ineligible vessel cannot reenter the 
fishery and that the replacement vessel should be permitted to replace 
the ineligible vessel.

Approval of Application

    If NMFS receives a completed application submitted under one of the 
approved methods described in the proposed regulations at Sec.  
679.4(o)(4)(ii)(D), then NMFS will process that application as soon as 
possible. Once received by NMFS, a replacement vessel will be approved 
by the Regional Administrator as an Amendment 80 vessel provided that:
     The replacement vessel does not exceed 295 feet LOA;
     The replacement vessel was built in the United States and, 
if ever rebuilt, rebuilt in the United States;
     The replacement vessel is classed and load lined or, if 
the vessel cannot be classed and load lined, the vessel meets the 
requirements of the U.S. Coast Guard ACSA program; and
     Only one replacement vessel is used as a replacement for 
any one replaced vessel at a given time.
    Based on experience with similar actions, NMFS would likely 
complete the review of an application within 10 calendar days. 
Applicants should consider the potential time lag between submission of 
a completed application and the effective date of NMFS' approval of an 
Amendment 80 replacement vessel. A list of NMFS-approved Amendment 80 
vessels, including replacement vessels, would be made publicly 
available at the NMFS Web site at http://alaskafisheries.noaa.gov.
    The evaluation of an application for an Amendment 80 replacement 
vessel would require a decision-making process that would be subject to 
administrative appeal. Applications not meeting the requirements will 
not be approved, and NMFS would issue an initial administrative 
determination (IAD) to indicate the deficiencies and discrepancies in 
the information (or the evidence submitted in support of the 
application) and provide information on how an applicant could appeal 
an IAD. The appeals process is described under Sec.  679.43. However, 
if an application is denied, eligible contract signatories could 
reapply at any time. This program is designed to be flexible and 
includes no deadlines for submission or limit on the number of times 
applications could be submitted to NMFS.

Amendment 80 QS Transfer Application

    In order to implement the Council's recommendations under Amendment 
97, NMFS proposes to modify existing regulations at Sec.  679.90(d), 
(e), and (f) regarding the allocation, use, and transfer of Amendment 
80 QS permits. Specifically, NMFS would add provisions to the 
Application to Transfer Amendment 80 Quota Share (QS) that would allow 
QS holders to transfer an Amendment 80 QS permit to an Amendment 80 
replacement vessel, transfer an Amendment 80 QS permit to a new person, 
transfer an Amendment 80 QS permit to the Amendment 80 LLP license 
assigned to the originally qualifying Amendment 80 LLP license as noted 
in Table 31 to part 679, or transfer an Amendment 80 QS permit affixed 
to an Amendment 80 QS/LLP license to an Amendment 80 replacement 
vessel. In order to transfer an Amendment 80 QS permit to another 
person, or to a vessel approved as an Amendment 80 replacement vessel, 
to an Amendment 80 LLP license defined in Table 31 to part 679, a 
person would have to submit an application to transfer an Amendment 80 
QS permit that is approved by NMFS under the provisions proposed at 
Sec.  679.90(f). A person holding an Amendment 80 LLP/QS license would 
be able to transfer that Amendment 80 LLP/QS license to another person 
under the provisions of Sec.  679.4(k)(7).

United States Maritime Administration (MARAD) Vessel Documentation

    In order to participate in a U.S. fishery, a vessel must obtain a 
certificate of documentation with a fishery endorsement either from the 
U.S. Coast Guard or MARAD (See, e.g., 46 U.S.C. 12102(a), 12113(b)(1), 
12151(b)). Vessels greater than 100 feet in length must receive this 
documentation through MARAD. Federal law prohibits larger vessels from 
obtaining a fishery endorsement unless specific conditions are met. 
These prohibitions are currently codified at 46 U.S.C. 12113(d).
    Unless an exemption applies, a vessel is not eligible for a fishery 
endorsement if it is greater than 165 feet in registered length; is 
more than 750 gross registered tons (as measured pursuant to 46 U.S.C. 
chapter 145) or 1900 gross registered tons (as measured pursuant to 46 
U.S.C. chapter 143); or possesses a main propulsion engine or engines 
rated to produce a total of more than 3,000 shaft horsepower, excluding 
auxiliary engines for hydraulic power, electrical generation, bow or 
stern thrusters, or

[[Page 20349]]

similar purposes. One exemption states that a vessel that is prohibited 
from receiving a fishery endorsement because it exceeds one or more of 
the three size limits will be eligible for a fishery endorsement if the 
owner of such vessel demonstrates to MARAD that the regional fishery 
management council of jurisdiction established under section 302(a)(1) 
of the Magnuson-Stevens Act has recommended after October 21, 1998, and 
the Secretary has approved, conservation and management measures to 
allow such vessel to be used in fisheries under such council's 
authority.
    As described earlier, the Council determined and NMFS agrees that 
any Amendment 80 replacement vessel should be permitted to be up to 295 
feet (89.9 m) LOA and have the tonnage and horsepower deemed necessary 
by the vessel's owner. Because several of the options considered by the 
Council for length of replacement vessel would permit an Amendment 80 
vessel to be longer than 165 feet registered length and may require 
greater tonnage or horsepower than permitted by the 46 U.S.C. 12113(d) 
for a fishery endorsement, NOAA General Counsel and MARAD General 
Counsel consulted to determine what action on the part of the Council 
and NMFS would satisfy this exemption. NOAA General Counsel and MARAD 
General Counsel determined that the Council would need to recommend, 
and the Secretary would need to approve, conservation and management 
measures that would allow such a vessel to be used in the Amendment 80 
fisheries. The Council recommended Amendment 97 and this proposed rule, 
which contain conservation and management measures that would permit an 
Amendment 80 replacement vessel to exceed the specific length (i.e., 
the 165 foot (59.4 m) limit), tonnage, and horsepower limits specified 
at 46 U.S.C. 12113(d).
    If the Secretary approves Amendment 97 and issues a final rule to 
implement Amendment 97, the Secretary will have approved conservation 
and management measures that would permit an Amendment 80 replacement 
vessel to exceed the specific length (i.e., the 165 foot (59.4 m) 
limit), tonnage, and horsepower limits specified at 46 U.S.C. 12113(d). 
Secretarial approval of Amendment 97 and publication of implementing 
regulations is intended to provide MARAD with a clear indication that 
the Council and NMFS have recommended that Amendment 80 replacement 
vessels meeting or exceeding the specific length, tonnage, or 
horsepower limits set forth at 46 U.S.C. 12133(d)(1) are eligible to 
receive a fishery endorsement consistent with 46 U.S.C. 12113(d)(2)(B) 
and MARAD regulations at 46 CFR 356.47(c). MARAD has stated that it 
would request documentation from NMFS demonstrating the Secretary's 
approval of measures that permit Amendment 80 replacement vessels to 
exceed these limits, prior to issuing a fishery endorsement to an 
Amendment 80 replacement vessel.

Classification

    Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens 
Act, the NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration 
of comments received during the public comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the proposed action, why it is being considered, and the legal basis 
for this proposed action are contained at the beginning of this section 
and in the SUMMARY section of the preamble and are not repeated here. A 
summary of the analysis follows. A copy of the complete analysis is 
available from NMFS (see ADDRESSES).

Number and Description of Small Entities Regulated by the Proposed 
Action

    Information concerning ownership of non-AFA trawl C/Ps and QS 
holdings that would be used to estimate the number of small entities 
that are directly regulated by this action is limited. Information 
about the ownership patterns of non-AFA trawl C/Ps and QS holdings is 
not required by NFMS. To estimate the number of small versus large 
entities, gross earnings from all fisheries of record for 2009 were 
matched with the vessels, the known ownership of those vessels, and the 
known affiliations of those vessels in the BSAI or GOA groundfish 
fisheries for that year. NMFS has specific information on the ownership 
of vessels and the affiliations that exist based on data provided by 
the Amendment 80 sector, as well as a review of ownership data 
independently available to NMFS on FFP and LLP applications. The 
vessels with a common ownership linkage, and therefore affiliation, are 
reported in Table 2 in Section 2 of the analysis. In addition, those 
vessels that are assigned to a cooperative and receive an exclusive 
harvest privilege would be categorized as large entities for the 
purpose of the RFA, under the principles of affiliation, due to their 
participation in a harvesting cooperative.
    NMFS knows that up to 28 non-AFA trawl C/Ps could be active in the 
Amendment 80 fishery. Those persons who apply for and receive Amendment 
80 QS are eligible to fish in the Amendment 80 sector, and those QS 
holders would be directly regulated by the proposed action. Vessels 
that are assigned Amendment 80 QS and that are eligible to fish in the 
Amendment 80 sector are commonly known as Amendment 80 vessels. 
Currently, there are 27 Amendment 80 vessels that would be directly 
regulated based on this action. One vessel owner who could be eligible 
for the Amendment 80 Program and could apply for Amendment 80 QS has 
not done so, and would not be directly regulated by the proposed action 
unless and until the owner is approved to do so. Based on the known 
affiliations and ownership of the Amendment 80 vessels, all but one of 
the Amendment 80 vessel owners would be categorized as large entities 
for the purpose of the RFA. Thus, this analysis estimates that only one 
small entity would be directly regulated by the proposed action. It is 
possible that this one small entity could be linked by company 
affiliation to a large entity, which may then qualify that entity as 
large entity, but complete information is not available to determine 
any such linkages.

Duplicate, Overlapping, or Conflicting Federal Rules

    No duplication, overlap, or conflict between this proposed action 
and existing Federal rules has been identified.

Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities

    The suite of potential actions includes three alternatives. A 
detailed description of these alternatives is provided in Section 2 of 
the analysis. Alternative 1 is the ``no action'' alternative. This 
alternative would not address the Federal Court Order to provide for 
replacement of Amendment 80 vessels and would not be consistent with 
the purpose and need of this action. Alternative 2 would allow an 
Amendment 80 vessel owner to replace a vessel under conditions of loss 
or permanent ineligibility. This alternative would meet the minimum 
requirements of the court order but was not selected

[[Page 20350]]

because it may limit a vessel's ability to add modern safety upgrades. 
It also carried a substantially higher economic cost to achieve the 
same regulatory outcome for the fishing sector, causing it to fail the 
requirement that it minimize the adverse economic impacts on directly 
regulated small entities. Alternative 3, the preferred alternative of 
the Council and NMFS, would allow a vessel owner to replace a vessel 
for any purpose. Based on the best available scientific data and 
information, none of the alternatives to the preferred alternative 
appear to have the potential to accomplish the stated objectives of the 
Magnuson-Stevens Act and other applicable statutes (as reflected in the 
proposed action), while minimizing any significant adverse economic 
impact on small entities beyond those achieved under the proposed 
action. The proposed action would improve the safety and efficiency of 
vessels owned by at least one small entity, and enhance its 
participation in the Amendment 80 fisheries.

Collection-of-Information Requirements

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). These requirements have 
been submitted to OMB for approval. Public reporting burden estimates 
per response for these requirements are listed by OMB control number.

OMB Control No. 0648-0334

    Public reporting burden is estimated to average per response: 1 
hour for Application for Transfer, License Limitation Program 
Groundfish/Crab License.

OMB Control No. 0648-0565

    Public reporting burden is estimated to average per response: 2 
hours for Amendment 80 Quota Share (QS) permit application; 2 hours for 
Amendment 80 QS permit transfer application; and 2 hours for Amendment 
80 Vessel Replacement application.
    Public reporting burden estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection-of-information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS at 
the ADDRESSES above, and by email to OIRA_Submission@omb.eop.gov, or 
fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 28, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority:  16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447.

    2. In Sec.  679.2,
    a. Revise the definition of ``Amendment 80 LLP/QS license'' and 
introductory paragraphs (1) and (2) of the definition for ``Amendment 
80 vessel'', and add paragraph (2)(iv) to the definition of ``Maximum 
LOA (MLOA)''; and
    b. Add a new definition of ``Amendment 80 replacement vessel''.
    The revisions and additions read as follows:


Sec.  679.2  Definitions.

* * * * *
    Amendment 80 LLP/QS license means an LLP license originally 
assigned to an originally qualifying Amendment 80 vessel with an 
Amendment 80 QS permit assigned to that LLP license.
* * * * *
    Amendment 80 replacement vessel means a vessel approved by NMFS in 
accordance with Sec.  679.4(o)(4).
* * * * *
    Amendment 80 vessel means any vessel that:
    (1) Is listed in Column A of Table 31 to this part with the 
corresponding USCG Documentation Number listed in Column B of Table 31 
to this part; or
    (2) Is designated on an Amendment 80 QS permit, Amendment 80 QS/LLP 
license, or Amendment 80 LLP license and is approved by NMFS in 
accordance with Sec.  679.4(o)(4) as an Amendment 80 replacement 
vessel.
* * * * *
    Maximum LOA (MLOA) means:
    (2) * * *
    (iv) The MLOA of an Amendment 80 LLP license or Amendment 80 LLP/QS 
license will be permanently changed to 295 ft (89.9 m) when an 
Amendment 80 replacement vessel is listed on the license following the 
approval of a license transfer application described at Sec.  
679.4(k)(7).
* * * * *
    3. In Sec.  679.4,
    a. Revise paragraphs (k)(7)(vii), (o)(1)(ii), (o)(1)(v); and
    b. Add paragraphs (k)(3)(i)(C), (o)(1)(vii), (o)(4), and (o)(5).
    The revisions and additions read as follows:


Sec.  679.4  Permits.

* * * * *
    (k) * * *
    (3) * * *
    (i) * * *
    (C) Modification of the MLOA on an Amendment 80 LLP license or an 
Amendment 80 LLP/QS license. The MLOA designated on an Amendment 80 LLP 
license or an Amendment 80 LLP/QS license will be 295 ft (89.9 m) if an 
Amendment 80 replacement vessel is designated on the license following 
the approval of a license transfer request under paragraph (k)(7) of 
this section.
* * * * *
    (7) * * *
    (vii) Request to change the designated vessel. (A) A request to 
change the vessel designated on an LLP groundfish or crab species 
license must be made on a transfer application. If this request is 
approved and made separately from a license transfer, it will count 
towards the annual limit on voluntary transfers specified in paragraph 
(k)(7)(vi) of this section.
    (B) A request to change the vessel designated on an Amendment 80 
LLP license or an Amendment 80 LLP/QS license must be made on an 
Application for Amendment 80 Replacement Vessel in accordance with 
Sec.  679.4(o)(4)(ii). The MLOA modification specified at paragraph 
(k)(3)(i)(C) of this section will be effective when a complete 
application is submitted to NMFS in accordance with paragraph (k)(7) of 
this

[[Page 20351]]

section, and the application is approved by the Regional Administrator.
* * * * *
    (o) * * *
    (1) * * *
    (ii) An Amendment 80 QS permit is assigned to the owner of an 
Amendment 80 vessel that gave rise to that permit under the provisions 
of Sec.  679.90(b), or its replacement under Sec.  679.4(o)(4), unless 
the Amendment 80 QS permit is assigned to the holder of an LLP license 
originally assigned to an Amendment 80 vessel under the provisions of 
Sec.  679.90(d) or Sec.  679.90(e).
* * * * *
    (v) Amendment 80 QS units assigned to an Amendment 80 QS permit are 
non-severable from that Amendment 80 QS permit and if transferred, the 
Amendment 80 QS permit must be transferred in its entirety to another 
person under the provisions of Sec.  679.90(d) or Sec.  679.90(e).
* * * * *
    (vii) The owner of an Amendment 80 vessel must designate the 
Amendment 80 vessel on an Amendment 80 QS permit and on an Amendment 80 
LLP license, or designate the Amendment 80 vessel on the Amendment 80 
LLP/QS license to use that Amendment 80 vessel in an Amendment 80 
fishery.
* * * * *
    (4) Amendment 80 Replacement Vessel. (i) The owner of an Amendment 
80 vessel may replace such vessel for any purpose. All Federal fishery 
regulations applicable to the replaced vessel apply to the replacement 
vessel, except as described at Sec.  679.92(d)(2)(ii) if applicable. A 
vessel that replaces an Amendment 80 vessel will be approved by the 
Regional Administrator as an Amendment 80 vessel following the 
submission and approval of a completed application for an Amendment 80 
Replacement Vessel, provided that:
    (A) The replacement vessel does not exceed 295 ft (89.9 m) LOA;
    (B) The replacement vessel was built in the United States and, if 
ever rebuilt, rebuilt in the United States; and
    (C) The applicant provides documentation demonstrating that the 
vessel complies with U.S. Coast Guard safety requirements applicable to 
processing vessels operating in the Amendment 80 sector or if unable to 
provide such documentation, the applicant provides documentation that 
the vessel meets the requirements of the U.S. Coast Guard's Alternative 
Compliance and Safety Agreement.
    (ii) Application for Amendment 80 Replacement Vessel. A person who 
wishes to replace an Amendment 80 vessel must submit to NMFS a complete 
Application for Amendment 80 Replacement Vessel. An application must 
contain the information specified on the form, with all applicable 
fields accurately completed and all required documentation attached. 
This application must be submitted to NMFS using the methods described 
on the application.
    (5) Application evaluations and appeals.--(i) Initial evaluation. 
The Regional Administrator will evaluate an application for an 
Amendment 80 replacement vessel submitted in accordance with paragraph 
(o)(4) of this section. If the vessel listed in the application does 
not meet the requirements for an Amendment 80 replacement vessel at 
Sec.  679.4(o)(4), NMFS will not approve the application. An applicant 
who submits claims based on inconsistent information or fails to submit 
the information specified in the application for an Amendment 80 
replacement vessel will be provided a single 30-day evidentiary period 
to submit evidence to establish that the vessel meets the requirements 
to be an Amendment 80 replacement vessel. The burden is on the 
applicant to establish that the vessel meets the criteria to become a 
replacement vessel.
    (ii) Additional information and evidence. The Regional 
Administrator will evaluate the additional information or evidence to 
support an application for Amendment 80 replacement vessel submitted 
within the 30-day evidentiary period. If the Regional Administrator 
determines that the additional information or evidence meets the 
applicant's burden of proving that the vessel meets the requirements to 
become an Amendment 80 Replacement Vessel, the application will be 
approved. However, if the Regional Administrator determines that the 
vessel does not meet the requirements to become an Amendment 80 
Replacement Vessel, the applicant will be notified by an initial 
administrative determination (IAD) that the application for replacement 
vessel is denied.
    (iii) Initial administrative determinations (IAD). The Regional 
Administrator will prepare and send an IAD to the applicant following 
the expiration of the 30-day evidentiary period if the Regional 
Administrator determines that the information or evidence provided by 
the applicant fails to support the applicant's claims and is 
insufficient to establish that the vessel meets the requirements for an 
Amendment 80 replacement vessel or if the additional information, 
evidence, or revised application is not provided within the time period 
specified in the letter that notifies the applicant of his or her 30-
day evidentiary period. The IAD will indicate the deficiencies in the 
application, including any deficiencies with the information, the 
evidence submitted in support of the information, or the revised 
application. An applicant who receives an IAD may appeal under the 
appeals procedures set out at Sec.  679.43.
* * * * *
    5. In Sec.  679.7, add paragraph (o)(3)(iv) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (o) * * *
    (3) * * *
    (iv) A vessel to fish in an Amendment 80 fishery without an 
Amendment 80 QS permit or Amendment 80 QS/LLP license assigned to that 
vessel.
* * * * *
    5. In Sec.  679.90, revise paragraphs (d)(2)(ii), (e)(ii), (e)(3), 
and (f) to read as follows:


Sec.  679.90  Allocation, use, and transfer of Amendment 80 QS permits.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Amendment 80 LLP/QS license. NMFS will issue an Amendment 80 
QS permit as an endorsement on an Amendment 80 LLP license to the 
holder of an LLP license originally assigned to an Amendment 80 vessel 
listed in Column A of Table 31 to this part, under the provisions of 
Sec.  679.4(k)(7), if that person submitted a timely and complete 
Application for Amendment 80 QS that was approved by NMFS under 
paragraph (a)(2)(ii) of this section.
* * * * *
    (e) * * *
    (1) * * *
    (i) * * *
    (ii) If an Amendment 80 QS permit is assigned to an Amendment 80 
LLP license originally assigned to an Amendment 80 vessel, that 
Amendment 80 LLP license is designated as an Amendment 80 LLP/QS 
license. A person may not separate the Amendment 80 QS permit from that 
Amendment 80 LLP/QS license.
* * * * *
    (3) Transfers of Amendment 80 QS permits. (i) A person holding an 
Amendment 80 QS permit assigned to an Amendment 80 vessel may transfer 
that Amendment 80 QS permit to another person, to the LLP license 
originally assigned to an Amendment 80 vessel, or to a vessel approved 
as an Amendment 80 replacement vessel approved by NMFS in accordance 
with

[[Page 20352]]

Sec.  679.4(o)(4) by submitting an application to transfer Amendment 80 
QS permit that is approved by NMFS under the provisions of paragraph 
(f) of this section.
    (ii) A person holding an Amendment 80 LLP license that is 
designated as an Amendment 80 LLP/QS license may designate a vessel 
approved as an Amendment 80 replacement vessel by submitting an 
Application For Transfer License Limitation Program Groundfish/Crab 
License that is approved by NMFS under the provisions of paragraph (f) 
of this section.
* * * * *
    (f) Application to Transfer Amendment 80 QS. A person holding an 
Amendment 80 QS permit who wishes to transfer the Amendment 80 QS 
permit to the LLP license originally assigned to the Amendment 80 
vessel, or transfer the Amendment 80 QS permit to another person, or 
transfer the Amendment 80 QS permit to an Amendment 80 replacement 
vessel must submit to NMFS a complete Application to Transfer an 
Amendment 80 QS permit. The holder of an Amendment 80 LLP/QS license 
may designate the replacement vessel on the LLP license by using the 
Application for Transfer License Limitation Program Groundfish/Crab 
License. An application must contain the information specified on the 
form, with all applicable fields accurately completed and all required 
documentation attached. This application must be submitted to NMFS 
using the methods described on the application.
    6. In Sec.  679.92,
    a. Revise paragraph (c); and
    b. Add paragraphs (d)(2) and (e).
    The additions and revisions read as follows:


Sec.  679.92  Amendment 80 Program use caps and sideboard limits.

* * * * *
    (c) Sideboard restrictions applicable to Amendment 80 vessels 
directed fishing for flatfish in the GOA. (1) Originally Qualifying 
Amendment 80 Vessels. An Amendment 80 vessel listed in column A of 
Table 39 to this part may be used to fish in the directed arrowtooth 
flounder, deep-water flatfish, flathead sole, rex sole, and shallow-
water flatfish fisheries in the GOA and in adjacent waters open by the 
State of Alaska for which it adopts a Federal fishing season.
    (2) Amendment 80 Replacement Vessels. (i) Any vessel that NMFS 
approves to replace an Amendment 80 vessel listed in column A of Table 
39 to this part may be used to fish in the directed arrowtooth 
flounder, deep-water flatfish, flathead sole, rex sole, and shallow-
water flatfish fisheries in the GOA and in adjacent waters open by the 
State of Alaska for which it adopts a Federal fishing season.
    (ii) Any vessel that NMFS subsequently approves to replace an 
Amendment 80 replacement vessel that replaced an Amendment 80 vessel 
listed in column A or Table 39 to this part may be used to fish in the 
directed arrowtooth flounder, deep-water flatfish, flathead sole, rex 
sole, and shallow-water flatfish fisheries in the GOA and in adjacent 
waters open by the State of Alaska for which it adopts a Federal 
fishing season.
    (d) * * *
    (2) Sideboard restrictions applicable to any vessel replacing the 
GOLDEN FLEECE. (i) If the vessel replacing the GOLDEN FLEECE is of an 
LOA less than or equal to 124 ft (38.1 m) (the MLOA of the LLP license 
that was originally assigned to the GOLDEN FLEECE, LLG 2524), then the 
sideboard provisions at Sec.  679.92(c) and (d)(1) apply.
    (ii) If the vessel replacing the GOLDEN FLEECE is greater than 124 
ft (38.1 m) (the MLOA of the LLP license that was originally assigned 
to the GOLDEN FLEECE, LLG 2524), then the sideboard provisions at Sec.  
679.92(b) and (c) apply.
    (e) Sideboard restrictions applicable to Amendment 80 vessel not 
assigned an Amendment 80 QS permit, Amendment 80 LLP license, or 
Amendment 80 QS/LLP license. All Amendment 80 vessels not designated 
on:
    (1) An Amendment 80 QS permit and an Amendment 80 LLP license; or
    (2) An Amendment 80 QS/LLP license will be allocated a catch limit 
of 0 mt of groundfish in the BSAI and GOA.

[FR Doc. 2012-7867 Filed 4-3-12; 8:45 am]
BILLING CODE 3510-22-P