Daily Rules, Proposed Rules, and Notices of the Federal Government
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted by mail to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; or by email to
NMFS manages the U.S. groundfish fisheries of the Bering Sea and Aleutian Islands Management Area (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.
This final rule implements Amendment 97 to the FMP. Under this final rule, the owner of a trawl catcher/processor vessel authorized to participate in the Amendment 80 catch share program is allowed to replace that vessel with a vessel that meets certain requirements. NMFS published the Notice of Availability for Amendment 97 in the
A detailed review of the provisions of Amendment 97 and its implementing regulations is provided in the preamble to the proposed rule (77 FR 20339, April 4, 2012) and is not repeated here. The proposed rule is available from the NMFS Alaska Region Web site (see
This final rule establishes regulations that permit the owner of an Amendment 80 vessel to replace that vessel with up to one other vessel for any reason and at any time. The vessel replacement process established by this final rule provides Amendment 80 vessel owners with the flexibility to incorporate a broad range of processing opportunities that are not currently available on all vessels. Regulations implemented by this final rule are intended to facilitate improved retention and utilization of catch by the Amendment 80 sector through vessel upgrades and new vessel construction. This final rule also is intended to address the regulatory deficiencies that were identified by the court in
The regulations implemented by this final rule, at § 679.4(o)(1)(v) and (vii), allow an owner of an Amendment 80 vessel to replace the vessel for any reason and at any time up to a one-for-one vessel replacement. The Council determined, and NMFS agrees, that a vessel owner is best-suited to determine the appropriate time to replace a vessel, and that the vessel owner should be afforded broad discretion as to the reasons supporting vessel replacement. This final rule enables a vessel owner to initiate new construction of a replacement vessel while the vessel to be replaced is still active (
Although the owner of an Amendment 80 vessel can apply to use an existing Amendment 80 vessel as an Amendment 80 replacement vessel, or other vessels that otherwise meet the requirements of this final rule, the
Although an Amendment 80 vessel owner is authorized to replace the vessel at any time for any reason, the final rule limits the number of replacement vessels an owner may have, requiring that each Amendment 80 vessel may 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 and therefore were eligible to participate in the Amendment 80 sector. Under this final rule, in no case could more than 28 vessels participate in the Amendment 80 fisheries at any given time.
This final rule includes a provision that prohibits the use of AFA vessels as Amendment 80 replacement vessels. The following paragraphs provide the background for and an explanation of this provision.
Regulations implementing Amendment 80 limited participation in the Amendment 80 sector to non-AFA trawl catcher/processors that qualified under the definition of the non-AFA trawl catcher/processor subsector in section 219(a)(7) of the BSAI Catcher Processor Capacity Reduction Program (CRP), included in the Department of Commerce and Related Agencies Appropriations Act, 2005 (Pub. L. 108-447). Section 219(g)(1)(A) of the CRP provides that only a member of a catcher/processor subsector may participate in the catcher/processor sector of the BSAI non-pollock groundfish fishery. Four catcher processor subsectors are defined by the CRP, including the AFA trawl catcher processor subsector at section 219(a)(1) and the non-AFA trawl catcher processor subsector at section 219(a)(7). Section 219(a)(7) of the CRP defines the “non-AFA trawl catcher processor subsector” as “the owner of each trawl catcher processor—(A) that is not an AFA trawl catcher processor; (B) to whom a valid LLP license that is endorsed for Bering Sea or Aleutian Islands trawl catcher processor fishing activity has been issued; and (C) that the Secretary determines has harvested with trawl gear and processed not less than a total of 150 metric tons of non-pollock groundfish during the period January 1, 1997 through December 31, 2002.” NMFS determined that 28 vessels met the criteria specified in section 219(a)(7) of the CRP. NMFS listed these vessels in the final rule implementing Amendment 80 (September 14, 2007; 72 FR 52668). NMFS concluded that because the CRP set forth the criteria for vessels eligible to participate in the non-AFA trawl catcher/processor, or Amendment 80, sector, only the 28 listed vessels could be used in the Amendment 80 sector and only a listed qualifying vessel could be used to replace an originally qualifying vessel.
Arctic Sole Seafoods challenged the final rule, arguing that section 219(a)(7) permitted the replacement of qualifying vessels with non-qualifying vessels and that the prohibition on such replacement was contrary to the language of the CRP. On May 19, 2008, the U.S. District Court for the Western District of Washington issued a decision invalidating those Amendment 80 regulatory provisions that limited the vessels used in the Amendment 80 sector to only those vessels that meet the qualification criteria in section 219(a)(7) of the CRP. In
After receiving the court's decision, NMFS immediately developed and issued interim guidance for vessel replacement consistent with the court's decision. In October 2008, NMFS asked the Council to amend the FMP 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 initiated development of Amendment 97. The Council initially received an analysis for Amendment 97 at its February 2010 meeting. This analysis included a summary of the interim guidance NMFS prepared for vessel replacement, including a revised version of the
In February 2012, before the start of Secretarial review of Amendment 97, NMFS received a letter from a member of the public asserting that the CRP and the court's decision in
In the proposed rule preamble, the agency advised that following receipt of the letter, it re-examined the CRP and decision in
During the public comment periods for Amendment 97 and the proposed rule, NMFS received extensive public comment on the question of whether the CRP prohibits the use of AFA vessels as Amendment 80 replacement vessels, the lack of Council consideration or analysis of this issue, and the potential economic impacts that could result from the use of AFA vessels as Amendment 80 replacement vessels. As summarized in Comments 4 and 7 in the Comments and Responses section of this final rule, some commenters wrote in support of the view that the CRP does not prohibit the use of AFA vessels as Amendment 80 replacement vessels and suggested that the sideboards applicable to AFA vessels should not be imposed on AFA vessels that are used as Amendment 80 replacement vessels. However, as summarized in Comments 5 and 6, some commenters disagreed with the view that the CRP does not prohibit use of AFA vessels as Amendment 80 replacement vessels. These commenters expressed concerns about the use of AFA vessels and asserted that the Council did not intend for AFA vessels to be eligible to replace Amendment 80 vessels. Additionally, these commenters noted that the analysis prepared for the action and available to the Council at the time of final action did not describe the potential impacts that could result from the use of AFA vessels as Amendment 80 replacement vessels. These commenters suggested that a regulation that would allow AFA vessels to participate in the Amendment 80 sector would represent a significant change in the policy that formed the basis of the Council's recommendation at final action and that the policy change would destabilize status quo management of groundfish fisheries in the North Pacific.
After consideration of all comments received during the public comment periods for Amendment 97 and the proposed rule, NMFS determined that notwithstanding its view that the CRP does not prohibit the use of AFA vessels as Amendment 80 replacement vessels, a regulatory provision prohibiting the use of AFA vessels as Amendment 80 replacement vessels is necessary to carry out Amendment 97 as recommended by the Council and approved by NMFS. The prohibition is further necessary to allow NMFS to conclude that Amendment 97 as implemented is consistent with the FMP as required by section 304 of the Magnuson-Stevens Act in light of the issues raised by the commenters concerning adverse impacts to the groundfish fisheries and fishery participants that could occur if AFA vessels are used, and the current lack of record support demonstrating that no impacts other than those described in the analysis for Amendment 97 would occur if AFA vessels are used. Therefore, NMFS has included in this final rule a provision at § 679.4(o)(4)(i)(D) that prohibits the use of AFA vessels as Amendment 80 replacement vessels.
NMFS determined that the prohibition is an integral part of Amendment 97 as adopted and recommended by the Council. Although the Council did not specifically articulate the prohibition in its motion for Amendment 97, the Council implicitly incorporated the prohibition into its decision on Amendment 97. The Council based its motion for Amendment 97 on the analysis and public comments presented to it. As explained earlier, the analysis stated that AFA vessels could not be used as Amendment 80 replacement vessels. That conclusion was not challenged while the Council was considering Amendment 97. Given the lack of any analysis, alternative or Council discussion on this issue, it is difficult to conclude that the Council intended to permit the use of AFA vessels as Amendment 80 replacement vessels. NMFS also determined that a regulation implementing the Council's implicit prohibition is necessary because the omission of such a prohibition from the final rule implementing Amendment 97 could undermine the intent of Amendment 97 as adopted by the Council. This final rule establishes an application process by which NMFS approves Amendment 80 replacement vessels. Without a regulatory provision prohibiting the use of AFA vessels as Amendment 80 replacement vessels, NMFS would have no basis upon which to deny an application requesting that NMFS approve an AFA vessel as an Amendment 80 replacement vessel, if the AFA vessel met all the regulatory criteria for Amendment 80 vessel replacement. Therefore, a regulation implementing the Council's implicit prohibition on the use of AFA vessels as Amendment 80 replacement vessels in Amendment 97 is needed. NMFS is authorized to include this prohibition under section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)), which states that NMFS has general responsibility to carry out any fishery management plan or plan amendment approved by NMFS and that NMFS may
NMFS also determined that a regulatory prohibition on the use of AFA vessels as Amendment 80 replacement vessels is reasonable and that the protections the prohibition affords the Amendment 80 sector are justified given the lack of analysis on the impacts that could occur if AFA vessels are permitted to be used as Amendment 80 replacement vessels and the concerns that exist at this time on adverse effects on the fisheries and participants that could occur without a prohibition. The analysis for Amendment 97 fully describes the anticipated impacts of authorizing vessel replacement in the Amendment 80 sector with vessels that are not AFA vessels, with an exception for the F/V
Additionally, as summarized in Comments 5 and 6, some participants in the Amendment 80 sector asserted that the use of AFA vessels would have an adverse impact on their fishing operations. Although NMFS does not yet have adequate information to determine the degree of these impacts, the concerns expressed over the potential for AFA vessels to be more competitive than other Amendment 80 vessels create unanticipated and undesirable consolidation within the sectors, and cause adverse disruption of fishing operations appear to have some merit at this time. NMFS has determined that consolidation of the Amendment 80 sector in excess of what the analysis prepared for Amendment 97 anticipates could occur if AFA vessels are permitted to be used as Amendment 80 replacement vessels. This unanticipated consolidation has the potential to impact communities, crew, the conservation and sustainability of fishery resources, the timing of the fishery, and the value of the fishery in ways that ultimately may not be consistent with the goals and objectives of the FMP. NMFS recognizes that this final rule may indirectly impact vessel owners by limiting the potential amount of consolidation and efficiency that may have been possible through fleet consolidation in the absence of a prohibition. However, given the agency's concerns and the information available at this time, NMFS cannot conclude that the impacts resulting from the use of AFA vessels as Amendment 80 replacement vessels would be consistent with Amendment 97 and the FMP, as required by section 304 of the Magnuson-Stevens Act.
NMFS also determined that the prohibition will not adversely affect existing operations of AFA vessel owners. As noted in the analysis prepared for this rule, no AFA vessels (other than the F/V
NMFS determined that including the prohibition on using AFA vessels as Amendment 80 replacement vessels will not prevent either the Amendment 80 or the AFA sectors from achieving the conservation and management goals and objectives set forth in the FMP for these sectors. The prohibition will not prevent the Amendment 80 sector from replacing lost or aging vessels with safer, more efficient vessels. Although an Amendment 80 vessel owner will not be able to use an AFA vessel as a replacement vessel, this final rule allows the owner to use other non-AFA vessels if the Amendment 80 vessel owner chooses not to invest in a newly constructed vessel. AFA vessel owners will be able to prosecute the fisheries in which they have been participating without change. As mentioned earlier in this preamble, the inclusion of the prohibition does not remove a harvest opportunity that the AFA sector was benefitting from prior to this final rule. With an exception for the F/V
NMFS has determined that the prohibition in this final rule is a logical outgrowth of the proposed rule and is consistent with other applicable laws. The preamble to the proposed rule for Amendment 97 explained that the proposed rule did not include a prohibition on the use of AFA vessels as Amendment 80 replacement vessels, described NMFS's view of the CRP, and invited the public to comment. The comments received by NMFS on Amendment 97 and the proposed rule directly focus on whether the final rule should or should not include a prohibition on the use of AFA vessels as Amendment 80 replacement vessels and clearly demonstrate that the affected public understood the effects of the agency's proposed action. The affected public clearly understood that in the proposed rule NMFS was asking for comments on whether AFA vessels should be allowed or prohibited from being used as Amendment 80 replacement vessels and the public provided the agency with pertinent information leading to the agency's decision to include a prohibition on their use in the final rule.
NMFS also determined that the regulatory prohibition on the use of AFA vessels as Amendment 80 replacement vessels in this final rule is consistent with the CRP. NMFS stated in the proposed rule its view that the
During the June 2012 Council meeting, NMFS consulted with the Council, as required by section 304(b) of the Magnuson-Steven Act, regarding the agency's intent to add a regulation to the final rule implementing Amendment 97 that would prohibit AFA vessels from participating as Amendment 80 replacement vessels. NMFS also urged the Council to consider the issue of AFA vessels as Amendment 80 replacement vessels and develop a policy recommendation on the issue. After receiving the agency's report, the Council received comment from the public on the proposal to add a regulation to the final rule prohibiting use of AFA vessels. Following receipt of public comment, the Council discussed NMFS' approach and did not object to the inclusion of the prohibition in the Amendment 97 final rule. Some Council members stated that a prohibition was not included at the time of Council final action on Amendment 97 because at that time the Council understood the CRP precluded the use of AFA vessels as Amendment 80 replacement vessels. In light of NMFS' request, the Council recommended the development of a discussion paper that examines the potential impacts of the use of AFA vessels as Amendment 80 replacement vessels. Specifically, the Council asked NMFS to provide (1) rationale for the interpretation that the CRP does not prohibit an AFA vessel from replacing an Amendment 80 vessel, (2) a general discussion of policy considerations for allowing or not allowing replacement of Amendment 80 vessels with AFA vessels and AFA vessels with Amendment 80 vessels, (3) a discussion of compliance with the CRP should an AFA vessel replace an Amendment 80 vessel, (4) a description of the statutory requirements for replacement of an AFA vessel and whether an Amendment 80 vessel could replace an AFA vessel, and (5) a description of the purpose of sideboards in the AFA and if or how they would apply to an AFA vessel that replaced an Amendment 80 vessel. This discussion paper, currently scheduled to be presented to the Council at its October 2012 meeting, could provide additional information for the Council to recommend that the prohibition on the use of AFA vessels as Amendment 80 replacement vessels as established in this final rule be maintained, modified, or removed. Although NMFS has concluded that the best available information currently supports a regulation that prohibits AFA vessels from participating as Amendment 80 replacement vessels, the Council could choose to act in the future to modify this policy based on new information analyzed and reviewed by the Council at that time.
This final rule limits the length overall (LOA) of Amendment 80 replacement vessels to 295 feet (89.9 m). As described in Section 2.4.5 of the analysis for this action, the average LOA on an Amendment 80 LLP license is 168 feet (51.2 m). Under this action, the LOA of all Amendment 80 vessels could increase up to 295 feet (89.9 m). The Council determined that a vessel length limit of 295 feet (89.9 m) 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 (see Comments 4 through 7). The maximum vessel length is intended to provide equal opportunity for each vessel owner to increase or maintain vessel length, to improve the range of processed products, and to increase hold capacity onboard the vessel. The Council and NMFS recognize 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 and thereby increase groundfish retention.
This final rule limits the length of replacement vessels 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 2.5.5 of the analysis for this action, the length restriction of 295 feet (89.9 m) for replacement vessels is intended to limit overall harvesting capacity of the fleet by providing an upper boundary on total fleet capacity and encourage general improvements in harvesting capacity that any replacement vessel may provide over the vessel being replaced. Similarly, replacement vessel length restrictions are intended to reduce the potential for a race for fish among Amendment 80 participants in the Amendment 80 limited access fishery in concert with cooperative quota and sideboard restrictions. As noted in Section 184.108.40.206 of the EA/RIR/IRFA for this action, Amendment 80 vessels are constrained by quotas in most fisheries in the BSAI and by sideboards limits in the GOA. These restrictions will remain in place and will continue to constrain the fleet in most fisheries.
Under the final rule, NMFS will modify the maximum LOA (MLOA) on Amendment 80 LLP licenses to reflect the regulatory limit of 295 feet (89.9 m) LOA for Amendment 80 vessels when an Amendment 80 LLP license is transferred to a NMFS-approved Amendment 80 replacement vessel. 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. Section 2.4.5 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. This final rule removes a prohibition on using an Amendment 80 LLP license on a vessel that does not
This final rule makes three modifications to existing regulations concerning the assignment of Amendment 80 QS permits. First, regulations at § 679.90(e)(3) are revised to 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. Second, regulations at § 679.7(o)(3)(iv) are revised to 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, regulations at § 679.4(o)(4) are added to allow all persons holding an Amendment 80 QS permit to replace the vessel associated with the Amendment 80 QS permit, including those Amendment 80 QS permits associated with Amendment 80 vessels that are permanently ineligible to re-enter U.S. fisheries. Each of these modifications is discussed in detail in the preamble to the proposed rule (see
This final rule provides 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. Under existing regulations, the holder of an Amendment 80 QS permit that has been assigned to an LLP license cannot uncouple the permit and license at a later date. This final rule maintains the existing practice of permanently affixing the Amendment 80 QS permit to the LLP license.
Regulations implemented by this final rule allow multiple Amendment 80 QS permits or Amendment 80 LLP/QS licenses to be used on an Amendment 80 replacement vessel. Therefore, one replacement vessel could have several Amendment 80 QS permits assigned to that vessel in any fishing year. A single vessel with greater hold capacity could reduce travel times and operational costs associated with operating two or more vessels.
The final rule addresses two situations where the owner of an originally qualifying Amendment 80 vessel and the person holding the Amendment 80 QS permit derived from that vessel differ. First, § 679.7(o)(3)(iv) prohibits 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 that 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. Second, the final rule contains regulatory provisions that 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. Without such regulation, a person holding title to an originally qualifying Amendment 80 vessel, but not holding QS, could replace that vessel and become active in the fishery, thereby increasing 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, it would likely pose a risk of increased competition for participants in the Amendment 80 limited access fishery.
Finally, this final rule establishes regulations that 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 QS permit. This provision is consistent with the CRP because the maximum number of vessels participating in the Amendment 80 sector will not increase given that the replaced vessel cannot re-enter U.S. fisheries. Under this final rule, the person holding the Amendment 80 QS permit for such a vessel is responsible for supplying NMFS with a U.S. Coast Guard or MARAD determination of permanent ineligibility when applying to replace the ineligible vessel.
This action is intended to limit effort in non-Amendment 80 fisheries by Amendment 80 vessels not assigned to an Amendment 80 QS permit or an Amendment 80 LLP/QS license, also referred to as replaced Amendment 80 vessels. Therefore, this final rule establishes restrictions on the ability of replaced Amendment 80 vessels to participate in Federal groundfish fisheries within the BSAI and GOA. NMFS will allocate a catch limit of zero metric tons in all BSAI and GOA groundfish fisheries to any replaced Amendment 80 vessel. Catch limits of zero metric tons will effectively prohibit these vessels from conducting directed fishing for groundfish in the BSAI and GOA. The Council and NMFS determined that assigning a catch limit of zero metric tons to replaced Amendment 80 vessels was the most direct way to limit participation by replaced vessels. These regulations are intended to prevent replaced Amendment 80 vessels from increasing fishing effort in non-catch share fisheries. Additionally, the Council and NMFS determined that the potential for consolidation of capital among longtime participants in groundfish fisheries might disadvantage or have negative impacts on other participants in those fisheries. This type of restriction on replaced Amendment 80 vessels is consistent with measures contained in other limited access privilege programs in the BSAI and GOA, such as the AFA (see the final rule implementing the AFA at 67 FR 79692, December 30, 2002), the BSAI Crab Rationalization Program (see the final rule implementing the BSAI Crab Rationalization Program at 70 FR 10174, March 2, 2005), and the Central GOA Rockfish Program (see the final rule implementing the Central GOA Rockfish Program at 76 FR 81248, December 27, 2011). NMFS notes that Amendment 97 and this final rule will 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
Existing regulatory prohibitions and requirements for monitoring, enforcement, permitting, and recordkeeping and reporting that apply to all original Amendment 80 vessels will continue to apply to all replacement vessels under this final rule. With an exception for the F/V
Regulations implementing Amendment 97 continue to recognize the special standing that the F/V
Under this final rule, any replacement vessel for the F/V
Under this final rule, any vessel that replaces an Amendment 80 vessel that is eligible to conduct directed fishing for flatfish in the GOA will be allowed to conduct directed fishing in the GOA flatfish fisheries. There are eleven Amendment 80 vessels currently authorized to conduct directed fishing in the GOA flatfish fisheries. The Council and NMFS determined that there is no conservation or management issue for GOA flatfish fisheries at this time; therefore, eligible Amendment 80 vessel owners should not have to choose between vessel safety improvements and the ability to continue to harvest GOA flatfish. The Council and NMFS recognize the potential for fishing effort to move from the Amendment 80 fisheries to the GOA flatfish fisheries. However, NMFS and the Council do not anticipate a rapid increase in fishing effort in these fisheries due to the impact of replacement vessels and could address the issue at a later date should a conservation or management problem be predicted.
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. The U.S. Coast Guard considers the catcher/processor vessels currently participating in the Amendment 80 sector as high risk primarily due to the age of the vessels, the areas in which they operate, the large number of crew they carry, and their relatively high incidence of marine casualty history.
Under current law, any fish processing vessel that is built or undergoes a major conversion after July 27, 1990, is required by 46 U.S.C. 4503 to meet all survey and classification requirements prescribed by the American Bureau of Shipping or another similarly qualified classification society. A classification society is a non-governmental organization that establishes and maintains technical standards and rules for the construction (hull, machinery, and other vital systems) and operation of ships and offshore structures. The classification society will also validate that construction is completed according to these standards and will carry out regular surveys to ensure continued compliance with the standards. Similarly, all 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.
The vast majority of the vessels currently used in the Amendment 80 sector are 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. The average age of an Amendment 80 vessel is 32 years, and 22 of the 24 Amendment 80 vessels currently used in the Amendment 80 sector cannot meet the requirements of class and load line because of the age of the vessel. Based on this limitation, 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. 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
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 load line; 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
NMFS and the Council note that newly constructed fish processing vessels 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 will be required to be classed and load lined.
This final rule requires an Amendment 80 vessel owner applying to NMFS to replace a vessel with a newly built or recently converted vessel to submit documentation demonstrating that the 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 and the vessel is currently eligible to participate in the Amendment 80 sector, 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. The Council and NMFS recognize that it will likely take decades for all Amendment 80 vessels to receive safety upgrades; however, the management measures in this rule that require safety certifications will promote long-term safety improvements for the Amendment 80 fleet.
The final rule adds regulations at § 679.4(o)(4)(ii) to establish the process for eligible participants to request that a vessel be approved as an Amendment 80 replacement vessel. This final rule requires all eligible participants to submit a completed application before NMFS will 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, identify the replacement vessel, and provide documentation demonstrating that the replacement vessel is classed and load lined or, if incapable of being classed and load lined, that the vessel is enrolled in the ACSA Program.
Section § 679.4(o)(4)(i)(B) of this final rule requires that Amendment 80 replacement vessels be built in the United States, and if ever rebuilt, rebuilt in the United States. The applicant must provide documentation with an application to NMFS demonstrating that the replacement vessel was built, or rebuilt, in the United States. NMFS proposed this regulation for Amendment 80 replacement vessels because it is consistent with current vessel replacement regulations for trawl C/Ps participating in the AFA C/P subsector (see § 679.4(l)(7)(i)(B)). As noted in Section 220.127.116.11 of the EA/RIR/FRFA prepared for this action, the requirement that vessels be built or rebuilt in the United States was applicable law for other trawl catcher/processors (
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. In addition, an applicant holding an Amendment 80 QS permit for a vessel that has been lost at sea or is otherwise permanently ineligible to participate in Amendment 80 fisheries and who applies to replace that vessel must provide evidence to NMFS that ineligibility has been established through a U.S. Coast Guard or MARAD determination. Written documentation must 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.
If NMFS receives a completed application in conformance with regulations at § 679.4(o)(4)(ii), NMFS will process that application as soon as possible. Once a complete application is received by NMFS, the Regional Administrator will approve a vessel that is eligible to participate in Federal fisheries as an Amendment 80 replacement vessel provided that:
• The replacement vessel does not exceed 295 feet (89.9 m) LOA;
• The replacement vessel was built in the United States and, if ever rebuilt, rebuilt in the United States;
• The replacement vessel is not a permitted AFA vessel;
• The replacement vessel is classed and load lined or, if the vessel cannot be classed and load lined, the vessel is enrolled in the U.S. Coast Guard ACSA program;
• Only one replacement vessel is named as a replacement for any one replaced vessel at a given time; and
• The replacement vessel is not otherwise prohibited from participation.
Based on experience with similar actions, NMFS would likely complete the review of an application within 10 calendar days. Applicants should consider the potential time lag between submission of a completed application and the effective date of NMFS' approval of an Amendment 80 replacement vessel. A list of NMFS-approved Amendment 80 vessels, including replacement vessels, will be publicly available at the NMFS Web site at
The evaluation of an application for an Amendment 80 replacement vessel will require a decision-making process subject to administrative appeal. Applications not meeting the requirements will not be approved. If NMFS denies an application, NMFS will issue an initial administrative determination (IAD) that indicates the deficiencies in the information or evidence submitted in support of the
In order to implement Amendment 97, NMFS modifies regulations at § 679.90(d), (e), and (f) regarding the allocation, use, and transfer of Amendment 80 QS permits. Specifically, NMFS adds provisions to the Application to Transfer Amendment 80 QS Permit that allow Amendment 80 QS permit 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 vessel as noted in Table 31 to part 679, or transfer an Amendment 80 QS permit affixed to an Amendment 80 LLP/QS license to an Amendment 80 replacement vessel. In order to transfer an Amendment 80 QS permit to another person, to a vessel approved as an Amendment 80 replacement vessel, or to an Amendment 80 LLP license defined in Table 31 to part 679, a person must submit an application to transfer an Amendment 80 QS permit that is approved by NMFS under the regulatory provisions at § 679.90(f). A person holding an Amendment 80 LLP/QS license will be able to transfer that Amendment 80 LLP/QS license to another person under the provisions of § 679.4(k)(7).
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,
Unless an exemption applies, a vessel is not eligible for a fishery endorsement if it is greater than 165 feet (50.3 m) in registered length; is more than 750 gross registered tons (as measured pursuant to 46 U.S.C. Chapter 145) or 1,900 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 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.
This action permits an Amendment 80 vessel to be longer than 165 feet (50.3 m) registered length and have greater tonnage and horsepower than would otherwise be permitted by 46 U.S.C. 12113(d) and the MARAD regulations. The Secretary approved Amendment 97 on June 6, 2012, and issues this final rule to implement Amendment 97; therefore, the Secretary has approved conservation and management measures that permit an Amendment 80 replacement vessel to exceed the specific length, 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). NMFS will provide MARAD with notification of the publication of this rule to document the Secretary's approval of measures that permit Amendment 80 replacement vessels to exceed these limits.
As noted earlier in the preamble, the final rule has one substantive change to the regulatory text from the proposed rule (April 4, 2012; 77 FR 20339). The final rule adds a regulatory provision at § 679.4(o)(4)(i) that prohibits the use of AFA vessels as Amendment 80 replacement vessels. A complete explanation of the provision and NMFS's rationale for its inclusion is provided earlier in the preamble and also in the responses to comments below.
In addition, NMFS identified four minor errors in the proposed regulatory text that require clarification from proposed to final rule. First, the final rule revises proposed regulatory text for §§ 679.4(o)(4)(ii) and 679.90(f) by replacing the phrase “with all applicable fields accurately completed” with the more precise phrase “with all required fields accurately completed.” Second, the final rule revises proposed regulatory text for § 679.7(o)(3)(iv) by removing the words