Federal Register, Volume 77 Issue 65 (Wednesday, April 4, 2012)

[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]

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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

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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

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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