Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Proposed Rules 20339 

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. 

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 nonAFA 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 

§ 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° 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 § 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 nonLAPP 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 shallowwater complex: all rockfish species, rex 

sole, deep-water flatfish, sablefish, and 

arrowtooth flounder. If the shallowwater 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 § 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 §§ 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 


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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 § 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 outcompete 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 


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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 noncatch 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 


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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 nongovernmental 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 


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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 § 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 

§ 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 NMFSapproved 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 

§ 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 § 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 § 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 

§ 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 


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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 


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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 § 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: 

§ 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 § 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 § 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 

§ 679.4(k)(7). 

* * * * * 

3. In § 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: 

§ 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 § 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 


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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 § 679.90(b), or 

its replacement under § 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 

§ 679.90(d) or § 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 

§ 679.90(d) or § 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 § 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 § 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 

§ 679.43. 

* * * * * 

5. In § 679.7, add paragraph (o)(3)(iv) 

to read as follows: 

§ 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 § 679.90, revise paragraphs 

(d)(2)(ii), (e)(ii), (e)(3), and (f) to read as 

follows: 

§ 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 

§ 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 


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20352 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Proposed Rules 

§ 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 § 679.92, 

a. Revise paragraph (c); and 

b. Add paragraphs (d)(2) and (e). 

The additions and revisions read as 

follows: 

§ 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, deepwater 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 

§ 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 § 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 


emcdonald on DSK29S0YB1PROD with PROPOSALS