[Federal Register: August 14, 2009 (Volume 74, Number 156)]
[Rules and Regulations]
[Page 41080-41092]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au09-17]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 0808011016-91210-04]
RIN 0648-AX14
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands (Amendment 92) and Gulf of Alaska License
(Amendment 82) Limitation Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues regulations to implement Amendment 92 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area and Amendment 82 to the Fishery Management Plan
for Groundfish of the Gulf of Alaska. This action removes trawl gear
endorsements on licenses issued under the license limitation program in
specific management areas if those licenses have not been used on
vessels that met minimum recent landing requirements using trawl gear.
This action provides exemptions to this requirement for licenses that
are used in trawl fisheries subject to certain limited access privilege
programs. This action issues new area endorsements for trawl catcher
vessel licenses in the Aleutian Islands if minimum recent landing
requirements in the Aleutian Islands were met. This action is intended
to promote the goals and objectives of the Magnuson-Stevens Fishery
Conservation and Management Act, the Fishery Management Plans, and
other applicable law.
DATES: Effective September 14, 2009.
ADDRESSES: Amendments 92 and 82, the Environmental Assessment (EA),
Regulatory Impact Review (RIR), and the Final Regulatory Flexibility
Analysis (FRFA) for this action are available from the NMFS Alaska
Region website at http://www.alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS Alaska Region and by e-mail to
David_Rostker@omb.eop.gov, or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background on the License Limitation Program
NMFS manages the groundfish fisheries in the exclusive economic
zone (EEZ) of the Bering Sea and Aleutian Islands Management Area
(BSAI) and the Gulf of Alaska (GOA) under the fishery management plans
(FMPs) for groundfish in the respective areas. The North Pacific
Fishery Management Council (Council) prepared, and NMFS approved, the
FMPs under the authority of the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.).
Regulations implementing the FMPs appear at 50 CFR part 679. General
regulations governing U.S. fisheries also appear at 50 CFR part 600.
The Council and NMFS have long sought to control the amount of
fishing in the North Pacific Ocean to ensure that fisheries are
conservatively managed and do not exceed established biological
thresholds. One of the measures used by the Council and NMFS is the
license limitation program (LLP) which limits access to the groundfish,
crab, and scallop fisheries in the BSAI and GOA. The LLP is intended to
limit entry into federally managed fisheries. For groundfish, the LLP
requires that persons hold and assign a license to each vessel that is
used to fish in federally managed fisheries, with some limited
exemptions. The Council initially envisioned the LLP as an early step
in a long-term plan to establish a comprehensive rationalization
program for groundfish in the North Pacific that would ultimately
assign tradable quotas to fishery participants that would provide them
an exclusive access privilege to groundfish resources. These exclusive
access programs are more commonly known as limited access privilege
programs (LAPPs).
The LLP for groundfish fisheries was recommended by the Council as
Amendments 39 and 41 to the BSAI and GOA groundfish FMPs, respectively.
The Council adopted the LLP for groundfish in June 1995, and NMFS
approved Amendments 39 and 41 on September 12, 1997. NMFS published a
final rule to implement the LLP on October 1, 1998 (63 FR 52642); and
LLP licenses were required for federal groundfish fisheries beginning
on January 1, 2000. The preamble to the final rule implementing the
groundfish LLP and the EA/RIR/FRFA prepared for this rule describe the
rationale and specific provisions of the LLP in greater detail (see
ADDRESSES) and are not repeated here. The key components of the LLP are
briefly summarized below.
The LLP for groundfish established specific criteria that must be
met to allow a person to use a vessel to directed fish in most
federally managed groundfish fisheries. An LLP license must be assigned
to each vessel that is used to participate in directed fishing for most
federally managed groundfish species. The term directed fishing and the
specific groundfish species for which an LLP license is required are
defined in regulations at Sec. 679.2. An exception to the requirement
that an LLP license must be assigned to a vessel applies if the vessel
is: less than 26 feet length overall (LOA) and fishing in the GOA; less
than 32 feet LOA and fishing in the BSAI; using jig gear in the BSAI if
the vessel is less than 60 feet LOA and deploys no more than five
jigging machines; or specifically constructed for and used exclusively
in Community Development Quota fisheries, and designed and equipped to
meet specific needs that are described in regulations at Sec.
679.4(k).
Under the LLP, NMFS issued licenses that (1) endorse fishing
activities in specific regulatory areas in the BSAI and GOA; (2)
restrict the length of the vessel on which the LLP license may be used;
(3) designate the fishing gear that may be used on the vessel (i.e.,
trawl or non-trawl gear designations); (4) designate the type of vessel
operation permitted (i.e., LLP licenses designate whether the vessel to
which the LLP is assigned may operate as a catcher vessel or as a
catcher/processor); and (5) are issued so that the endorsements for
specific regulatory areas, gear designations, or vessel operational
types are non-severable from the LLP license (i.e., once an LLP license
is issued, the components of the LLP license cannot be transferred
independently). By creating LLP licenses with these characteristics,
the Council and NMFS limited the ability of a person to assign an LLP
license that was derived from the historic landing activity of a vessel
in one area, using a specific fishing gear or operational type to be
used in other areas, with different gears or operational types, in a
manner that could expand fishing capacity. The preamble to the final
rule implementing the groundfish LLP provides a more detailed
explanation of the rationale for specific
[[Page 41081]]
provisions in the LLP (October 1, 1998; 63 FR 52642).
The regulatory areas for which LLP licenses were issued included
the Bering Sea subarea (BS), Aleutian Islands subarea (AI), Southeast
Outside District (SEO), Central Gulf of Alaska (CG), which includes the
West Yakutat District, and Western Gulf of Alaska (WG). The documented
harvest requirements necessary to receive an LLP license endorsed for a
specific area differed depending on the size and the operational type
of the vessel. For example, for a vessel owner to receive an
endorsement for trawl gear in the CG with a catcher/processor
designation, a vessel must have met the minimum documented harvest
requirements in the CG using trawl gear and must have caught and
processed those documented harvests onboard the vessel. NMFS did not
issue any LLP licenses with a trawl endorsement in SEO because trawl
gear is prohibited in SEO. Therefore, this action does not apply to the
SEO management area.
In 1999, NMFS issued groundfish LLP licenses with the appropriate
regulatory area endorsements, gear, vessel length, and vessel
operational type designations based on the documented harvests of
vessels. LLP licenses were required for vessels participating in
directed fishing for LLP groundfish species as of January 1, 2000. NMFS
issued over 300 LLP licenses endorsed for trawl gear for use in the
BSAI and GOA. In many cases, trawl LLP licenses were endorsed for
multiple regulatory areas (e.g., WG, CG, and BS) if a vessel met the
minimum number of documented harvests in more than one area.
Additionally, a number of trawl LLP licenses were designated for both
trawl and non-trawl gear (i.e., hook-and-line, pot, or jig gear) if the
vessel met the documented harvest requirements using both trawl and
non-trawl gear.
After LLP licenses were initially issued, NMFS became aware from
public testimony and a review of landings data that a substantial
number of trawl-endorsed LLP licenses were not being used for fishing
in some, or all, of the regulatory areas for which they were endorsed.
Changes in the economic viability of some fishing operations, changes
in fishery management regulations, or consolidation of fishery
operations were likely factors that affected the number of LLP licenses
actively used by vessels. LLP licenses that are valid but are not
currently being used on a vessel are commonly known as ``latent'' LLP
licenses.
In early 2007, the Council began reviewing the use of trawl-
endorsed LLP licenses. This review was initiated primarily at the
request of active trawl fishery participants who were concerned that
latent trawl-endorsed LLP licenses could become active in the future
and adversely affect their fishing operations. If the total allowable
catch (TAC) or exvessel value of a fishery resource increased these
factors could attract additional effort by trawl vessels. This
increased effort could result in overcapacity in the fishery and make
it more difficult for NMFS to close fisheries in a timely manner,
potentially resulting in the TAC being exceeded for a fishery. During
the process of this review, the Council also received input from the
public requesting modification to the LLP to meet unique conditions in
the AI area that limit the ability of catcher vessels to harvest, and
specific AI area communities to process, federally managed groundfish.
In April 2008, after more than a year of review and extensive public
comment, the Council recommended modifications to the LLP to revise
eligibility criteria for trawl endorsements on LLP licenses.
Notice of Availability and Proposed Rule
NMFS published the notice of availability for Amendments 92 and 82
on December 12, 2008 (73 FR 75659), with a public comment period that
closed on February 10, 2009. NMFS published the proposed rule for this
action on December 30, 2008 (73 FR 79773), with a public comment period
that closed on February 13, 2009. Amendments 92 and 82 were approved by
NMFS on March 16, 2009. NMFS received eight public comments from three
unique persons on Amendments 92 and 82 and the proposed rule; these are
summarized and responded to below.
Changes to the LLP Program
This rule implements two different actions. First, this rule
removes certain latent trawl regulatory area endorsements on LLP
licenses. With two exceptions, a trawl endorsement for a specific
regulatory area is removed from an LLP license that has been assigned
to a vessel that has not made a minimum of two landings using trawl
gear in a specific regulatory area during the period 2000 through 2006.
One exemption allows a person to retain a trawl endorsement on an
LLP license for both the CG and the WG if the LLP license had been used
on a vessel that made at least 20 landings using trawl gear in either
the CG or WG from 2005 through 2007. The second exemption allows a
person to retain a trawl endorsement in a specific regulatory area if
that area endorsement is required for continued participation in one of
three limited access privilege programs (LAPPs): the American Fisheries
Act (AFA); the Amendment 80 Program; or the CG Rockfish Program. Under
this exemption, NMFS will not remove trawl endorsements in the BS or AI
regulatory areas from LLP licenses that are assigned for use in the AFA
or Amendment 80 LAPP, and NMFS will not remove trawl endorsements in
the CG regulatory area from LLP licenses assigned for use in the CG
Rockfish Program LAPP. This exemption would apply only to LLP licenses
used in fisheries managed under these three LAPPs, because under NMFS'
regulations, fisheries managed under other LAPPs in the North Pacific
(e.g., BSAI crab and BSAI halibut and fixed-gear sablefish) cannot be
fished by vessels using trawl gear.
The second action under this rule is the issuance of new and
additional trawl AI area endorsements for catcher vessel operations for
use in the Aleutian Islands Subarea. Under this rule, NMFS will issue
AI trawl endorsements based on the harvests of: (1) non-AFA catcher
vessels less than 60 feet in LOA, if those vessels have made at least
500 metric tons (mt) of landings of Pacific cod harvested from State of
Alaska (State) waters adjacent to the Aleutian Islands Subarea during
2000 through 2006; and (2) non-AFA catcher vessels equal to or greater
than 60 feet LOA if those vessels have made at least one landing of
fish harvested from State waters during the Federal groundfish season
in the Aleutian Islands Subarea and have made at least 1,000 mt of
Pacific cod landings harvested from the BSAI during 2000 through 2006.
The rationale and effects of these two proposed actions are described
in detail in the preamble to the proposed rule and the EA/RIR/FRFA
supporting this action (see ADDRESSES) and are briefly summarized here.
Action 1: Removing Latent Trawl LLP Licenses
Use of Trawl LLP Endorsements
Latent LLP licenses are inactive, but not invalid. Removing latent
trawl LLP endorsements reduces the risk that in the future vessel
operators could assign latent LLP licenses to trawl vessels,
effectively reactivating those licenses and thereby increasing the
amount of trawl effort in the groundfish fisheries. This additional
effort could increase harvest rate in the trawl fishery, and adversely
affect currently active participants by increasing competition,
diluting their potential gross revenues and creating incentives for
harvesters to
[[Page 41082]]
race for fish in a potentially wasteful manner.
The Council considered a range of options and alternatives to
determine the minimum number of landings required for a trawl LLP
endorsement to remain valid. After a review of groundfish catch history
and public testimony, the Council determined that two landings during
the seven year period from 2000 through 2006 represented a minimal, but
sufficient, amount of participation in the trawl fisheries to indicate
some level of dependence on trawl fishing. The Council recommended that
this landing requirement apply to each regulatory area so that
endorsements would be removed only for those regulatory areas where
minimum landing requirements were not met. Therefore, LLP licenses that
were active in more than one regulatory area might meet the minimum
landing requirements in one area but not another.
Determining the Number of Landings Assigned to an LLP License
Beginning in 2002, NMFS required that an LLP license designate a
specific vessel on which it was being used. This requirement allowed
NMFS to assign landings to a specific LLP license without having to
make any assumptions about the specific vessel to which the LLP license
was assigned. If an LLP license is not assigned a sufficient number of
landings in a specific regulatory area, NMFS would extinguish the trawl
endorsement on that LLP license in that regulatory area. NMFS can
verify use of an LLP license on a specific vessel after 2002. When
combined with landings records, NMFS can determine how many landings
may be assigned to a specific LLP license during a specific time frame.
However, during the first two years of the LLP, 2000 and 2001, NMFS
did not track the use of LLP licenses on specific vessels. Although LLP
licenses were required to be onboard vessels, there is no independent
data source to verify specific LLP licenses used on specific vessels
during 2000 and 2001. NMFS will assume that the vessel that had the
eligible landings for the original LLP license (i.e., the original
qualifying vessel) used the LLP license during all of 2000 and 2001,
unless an LLP license holder provides NMFS a clear and unambiguous
contract or other written documentation to prove this assumption is
incorrect. This assumption offers an LLP holder the opportunity to
challenge NMFS's official record, but a rebuttal of this assumption
cannot be based merely on oral testimony or recollection, which NMFS
considers to be insufficient evidence for purposes of this action.
If a vessel was designated on more than one LLP license, NMFS will
assign the credit for that landing to any LLP licenses assigned to, or
``stacked,'' on that vessel at the time of landing. Effectively, NMFS
will credit a single landing to more than one LLP license. This
provision ensures that in those cases in which more than one LLP
license with a specific area endorsement was assigned to a vessel that
made a landing, all LLP licenses assigned to that vessel at the time of
landing would be credited with the landing. Because NMFS, and in many
cases vessel owners and operators, did not specify how specific
landings should be assigned to multiple LLP licenses assigned to a
vessel at the time a landing was made, this provision will resolve any
disputes that may arise about the assignment of specific landings by
crediting all LLP licenses used on that vessel when a landing was made.
Exemptions From the Minimum Landing Requirements
Exemption 1: LLP Licenses Used on Vessels Active in the GOA
This rule will retain a trawl endorsement on a catcher vessel LLP
license in a regulatory area in the GOA (i.e., the CG or WG), if the
LLP license was assigned to a vessel that made more than 20 landings in
at least one of the regulatory areas of the GOA from 2005 through 2007.
This exemption allows catcher vessel LLP license holders who have
demonstrated a substantial and recent dependence in the GOA to continue
to hold an endorsement in both the CG and WG. Furthermore, this will
allow active participants in the CG to keep their WG endorsements
because the TACs for several groundfish species in the Western GOA have
not been fully harvested in recent years.
Exemption 2: Retaining Trawl Endorsements for LLP Licenses Assigned to
LAPPs
This rule exempts any LLP license that is assigned for use in the
AFA, CG Rockfish Program, or the Amendment 80 Program from the specific
landing requirements in the regulatory areas for which that area
endorsement is required. This exemption applies as follows:
1. Exempt landing requirements for BS or AI area endorsements
originally issued to LLP licenses for vessels qualified under the AFA,
and any BS or AI area endorsement on an LLP license assigned to an AFA
vessel not having any other LLP license assigned to that vessel as of
the effective date of this rule.
2. Exempt landing requirements for BS or AI area endorsements
originally issued to LLP licenses for vessels that may generate quota
share (QS) under the Amendment 80 Program.
3. Exempt landing requirements for CG area endorsements on LLP
licenses that are eligible to receive QS under the CG Rockfish Program.
This exemption benefits the participants in the three LAPPs that
have already met stricter requirements for these specific management
areas to participate in these programs. A person must hold a valid LLP
license with endorsements in specific regulatory areas to be eligible
to participate in these LAPPs. The AFA and Amendment 80 LAPPs require
that a person assign an LLP license with a valid trawl endorsement in
the BS or AI to a vessel eligible under those LAPPs. Similarly, under
the CG Rockfish Program, a person must have an LLP license with a trawl
endorsement in the CG to participate in that LAPP. Removing LLP
licenses that do not meet specific landing requirements, but that are
required to continue to receive exclusive harvest allocations for these
LAPPs for which they are otherwise qualified, adversely affects LAPP
participants. This is not the intent of this action. The intent of this
action is to remove latent trawl endorsements. The net effect of this
exemption is that AFA LLP licenses and LLP licenses originally issued
to Amendment 80 vessels that are eligible to generate QS are subject
only to the CG and WG area endorsement landing requirements, and the CG
Rockfish Program LLP licenses are subject only to the BS, AI, and WG
area endorsement landing requirements.
NMFS will determine which LLP licenses are eligible for this
exemption from the landing requirements for each of the three LAPPs as
follows:
1. For the AFA, LLP licenses with a trawl gear designation with a
BS or AI area endorsement that were originally issued based on the
harvest activities of AFA vessels are exempt from the landing
requirements. In addition, LLP licenses with a trawl gear designation
with BS or AI area endorsements that were not originally issued based
on the harvest activities of AFA vessels, but that are assigned to AFA
vessels on the effective date of this regulation, are exempt from the
landing requirements in the BS or AI. This exemption to the landing
requirements applies to an LLP license only if no LLP licenses
originally issued based on the harvest activities of AFA vessels are
assigned to
[[Page 41083]]
that AFA vessel on the effective date of the rule.
2. For the Amendment 80 Program, all LLP licenses with a trawl gear
designation and with a BS or AI area endorsement that were originally
issued based on the harvest activities of Amendment 80 vessels that may
generate QS are exempt from the landing requirements in the BS or AI. A
list of the Amendment 80 vessels that were used to harvest catch that
may result in the issuance of QS under the Amendment 80 Program is
provided in Column A of Table 31 to 50 CFR part 679. The LLP licenses
originally issued based on the harvest activities of those Amendment 80
vessels, and that are subject to this exemption are listed in Column C
of Table 31 to 50 CFR part 679.
3. For the CG Rockfish Program, all LLP licenses with a trawl gear
designation and with a CG area endorsement to which NMFS has assigned
Rockfish QS are exempt from the landing requirements in the CG. This
ensures that LLP licenses that were issued QS and are necessary to
participate in the CG Rockfish Program can continue to be used in the
CG and remain valid.
Action 2: Adding Aleutian Island Endorsements to Non-AFA Trawl Catcher
Vessel LLP Licenses
Background on Aleutian Island Fisheries
Congress, the Council, and NMFS have developed and implemented a
series of programs in recent years that provide harvest opportunities
for catcher vessels in the Aleutian Islands. They attempted to provide
economic opportunities for harvesters and processors in the Aleutian
Islands, specifically for the community of Adak. For example, section
803 of the Consolidated Appropriations Act of 2004 (Public Law 108-
199), allocates the Aleutian Islands directed pollock fishery to the
Aleut Corporation, or its authorized agents, for the economic
development of Adak. NMFS published a final rule to implement section
803 on March 1, 2005 (70 FR 9856). Also in 2005, NMFS implemented the
Crab Rationalization Program, a LAPP for BSAI crab fisheries (March 2,
2005, 70 FR 10174) that allocates 10 percent of the TAC for Western
Aleutian Islands golden king crab (Lithodes aequispinus) to a specific
entity representing the community of Adak. The Crab Rationalization
Program also places geographic delivery requirements on a portion of
the remaining Western Aleutian Islands golden king crab TAC that favors
processing in Adak and the nearby community of Atka. In 2007, NMFS
implemented the Amendment 80 Program which specifies that a portion of
the Aleutian Islands Pacific ocean perch and Atka mackerel fisheries
would be available for harvest by trawl catcher vessels. These vessels
may choose to land their catch in Adak or Atka, but are not required to
do so (September 14, 2007, 72 FR 52668).
The State of Alaska also has established Pacific cod and sablefish
fisheries in the State waters of the Aleutian Islands that are
exclusively managed by the State and that provide harvesting and
processing opportunities for vessels and processors based in Adak and
the nearby community of Atka. These fisheries are managed based on a
guideline harvest level (GHL) that is determined by the State. These
State-managed fisheries are tailored to open after the close of the
federally managed seasons. In addition, State fishery managers
coordinate with NMFS to open and close State waters to fishing
concurrently with openings and closings for the Federal seasons to
harvest the Federal TAC. A State-managed fishery that occurs in state
waters concurrently with a Federal fishery is called a ``parallel
fishery.'' The coordinated parallel fishery in State waters allows
harvesters to efficiently harvest the Federal TAC regardless of whether
harvest occurs in State or Federal waters.
Commercial fishing grounds often occur within State waters (i.e.,
within 3 nautical miles of the coastline) on the narrow continental
shelf around some of the Aleutian Islands because of the bathymetry of
the region and the life histories of the target species; however, these
fishery resources are also present in Federal waters. In recent years,
many of the catcher vessels actively fishing in the Aleutian Islands
and delivering their catch to Adak, and to a lesser extent, Atka, have
harvested fish from State waters, either under the GHL during the
State-managed Pacific cod fishery, or under the Federal TAC during the
parallel fishery. Many of these vessels are not currently designated on
an LLP license with an AI area endorsement.
This action will assign new AI area endorsements to provide
additional harvest opportunities to non-AFA trawl catcher vessels that
have been active in State waters in the Aleutian Islands in recent
years, but which are not designated on an LLP license with an AI area
endorsement. These new AI area endorsements will be added to LLP
licenses that name non-AFA trawl catcher vessels because those vessels
have been active in the fisheries in the Aleutian Islands, and AFA LLP
licenses that already hold AI area endorsements will continue to be
eligible to use those LLP licenses to fish in the Aleutian Islands
under the exemption to the landing requirements described earlier in
this preamble. In particular, these new AI area endorsements will
provide additional opportunities for catcher vessels to harvest and
process Pacific cod in the Aleutian Islands. Pacific cod is the
groundfish species most frequently targeted by non-AFA catcher vessels
in the State GHL and parallel fisheries in the Aleutian Islands;
therefore the Council used those landings as the basis for determining
eligibility to receive an AI area endorsement.
Two different types of AI area endorsements will be created. First,
non-AFA trawl catcher vessels that are equal to or greater than 60 feet
LOA, have made at least one landing in either the State GHL or parallel
fishery, and have made at least 1,000 metric tons (mt) of Pacific cod
landings harvested from the BSAI from 2000 through 2006 will be
eligible to receive an AI area endorsement on the LLP licenses that
name these vessels. Second, non-AFA trawl catcher vessels that are less
than 60 feet LOA and that have made at least 500 mt of Pacific cod
landings harvested from the parallel fishery, but not the Stage GHL
fishery, from 2000 through 2006 would be eligible to receive an AI
endorsement on the LLP licenses that name these vessels. NMFS will
assign these new AI endorsements to the LLP licenses that designate
eligible vessels at the time of the effective date of this rule. The
EA/RIR/FRFA estimates that eight AI area endorsements will be issued
based on the catch history of vessels less than 60 feet LOA, and four
AI area endorsements will be issued based on the catch history of
vessels equal to or greater than 60 feet LOA (see ADDRESSES).
As discussed above, different qualification criteria apply for
catcher vessels less than 60 feet LOA and those equal to or greater
than 60 feet LOA. Vessels less than 60 feet LOA are typically adapted
to fish in multiple fisheries using multiple gear types and are subject
to a different range of monitoring, enforcement, recordkeeping, and
reporting requirements under existing regulations than are vessels
equal to or greater than 60 feet LOA. In addition, LLP licenses
initially issued based on the documented landings of vessels less than
60 feet LOA cannot be used on vessels greater than 60 feet LOA. Because
of the operational and regulatory distinctions applicable to
[[Page 41084]]
vessels less than and equal to or greater than 60 feet LOA, the Council
recommended different criteria be applied to determine whether an AI
trawl endorsement would be issued to vessels based on their size. The
preamble to the proposed rule contains an extensive discussion of the
rationale for this action, and is not repeated here.
In addition, the Council recommended that the new AI area
endorsements based on the landings of vessels less than 60 feet LOA
should be severable and transferable from the overall LLP license.
However, the Council clarified that these AI area endorsements may be
reassigned only to a trawl catcher vessel LLP license with a maximum
length overall (MLOA) of less than 60 feet in order to ensure that
these endorsements would be used on small vessels in the Aleutian
Islands. During deliberations, the Council noted that the less than 60-
foot catcher vessel fleet is more reliant on multi-species operations
than are vessels greater than 60 feet; and most of the under 60-foot
vessel operators also hold LLP licenses that are endorsed for trawl
fisheries in other regulatory areas. These vessel operators must
balance a variety of fishing opportunities in other areas (e.g., WG or
CG) and may choose not to fish in the AI if conditions are not
favorable. Vessels choosing to not fish in the AI could reduce
potential economic benefits to processors in Adak or in other locations
in the Aleutian Islands. However, if an LLP license holder were issued
an AI area endorsement that could be transferred independently of the
LLP license to which it was originally assigned, and at some point the
LLP license holder decides to no longer fish in the Aleutian Islands,
there could be increased incentive to sell the AI area endorsement,
apart from the LLP license. Allowing the AI area endorsement to be
severable from the LLP license to which it is originally assigned would
avoid a situation in which AI endorsements would be irrevocably tied to
LLP licenses that were not being used on vessels operating in the
Aleutian Islands. The Council concluded that allowing severable AI
endorsements would not lead to excess effort in the AI regulatory area.
The Council determined that the ability to sever endorsements for
LLP license was not necessary for the AI area endorsements derived from
vessels that are equal to or greater than 60 feet LOA. As noted
earlier, the Council sought to balance the objectives of reducing
latent fishing capacity in the first action included in this rule with
the goal of providing additional harvesting and processing alternatives
in the Aleutian Islands.
Assigning an AI Area Endorsement to a Specific LLP License
Because the landing criteria to qualify for an AI area endorsement
are primarily based on landings with fish caught within State waters,
some qualifying landings have been made by vessels that did not have
LLP licenses assigned to them at the time the landings were made.
Vessels fishing exclusively within the jurisdiction of the State in
State waters are not under the jurisdiction of the Council and so are
not required to be assigned an LLP license. Therefore, NMFS will use
two methods to assign any new AI area endorsements to an LLP license to
ensure that there is a linkage between the landings made by a non-AFA
catcher vessel that fished in State waters and a specific LLP license.
The first method is applicable to non-AFA catcher vessels less than
60 feet LOA that meet the requisite minimum 500 mt landings requirement
to receive an AI endorsement. NMFS will assign an AI endorsement based
on the landings of a non-AFA trawl catcher vessel to an LLP license
that 1) designates that non-AFA vessel on the effective date of this
regulation; 2) was not derived in whole or in part from the qualifying
fishing history of an AFA vessel; 3) has a trawl gear designation; 4)
does not have a catcher/processor vessel designation; 5) does not have
an MLOA equal to or greater than 60 feet; and 6) has at least 500 mt of
Pacific cod landings using trawl gear harvested from the parallel
fishery adjacent to the Aleutian Islands Subarea during the period from
January 1, 2000, through December 31, 2006.
The second method is applicable to non-AFA catcher vessels equal to
or greater than 60 feet LOA that meet the requisite minimum 1,000-mt-
landings requirement to receive an AI area endorsement. NMFS will
assign an AI area endorsement based on the landings of a non-AFA trawl
catcher vessel to an LLP license that 1) designates that non-AFA vessel
on the effective date of this regulation; 2) was not derived in whole
or in part from the qualifying fishing history of an AFA vessel; 3) has
a trawl gear designation; 4) does not have a catcher/processor vessel
designation; and 5) has at least 1,000 mt of landings of Pacific cod
using trawl gear harvested from the BSAI made under the authority of
that LLP license during the period from January 1, 2000, through
December 31, 2006, according to the official record created by NMFS.
These requirements would ensure that the AI area endorsement is
assigned to an LLP license that can only be used on a non-AFA trawl
catcher vessel consistent with the Council's intent. NMFS will
establish a rebuttable presumption that an AI area endorsement will be
assigned to the LLP license that designates the non-AFA trawl catcher
vessel on the effective date of this rule. This presumption ensures
that an AI area endorsement is issued to a specific LLP license that is
actively being used on the vessel that met the requisite landing
requirements.
If the official record shows that, on the effective date of this
rule, the owner of a vessel that meets the AI endorsement landing
criteria does not hold an LLP license to which an AI area endorsement
may be assigned, the vessel owner will have the opportunity to provide
additional information and challenge NMFS's presumption to designate an
otherwise eligible LLP license. Similarly, if the vessel owner
disagrees with NMFS's designation of the LLP license to which the AI
area endorsement is assigned, the vessel owner will have the
opportunity to provide additional information and challenge NMFS's
designation and have the AI area endorsement assigned to an otherwise
eligible LLP license. Should the owner of a vessel meeting the AI
endorsement requirements subsequently receive an LLP license (i.e.,
purchase an LLP license) that is otherwise eligible to be assigned an
AI endorsement (i.e., it is a non-AFA, trawl catcher vessel endorsed
LLP license with the appropriate MLOA), the vessel owner can request
that NMFS assign the AI endorsement to that LLP license. Otherwise,
NMFS will assign the AI endorsement to the LLP license specified in the
amended official record.
Transfers of AI Endorsements
Only LLP AI area endorsements for vessels less than 60 feet LOA are
transferrable separate from the LLP. To facilitate the transfers, NMFS
modified LLP license transfer regulations at Sec. 679.4(k)(7) to
clarify the process for transferring an AI area endorsement independent
of the LLP license. NMFS specified that a new AI area endorsement may
be transferred from the LLP license to which it was originally issued
to another LLP license that (1) was not derived in whole or in part
from the qualifying fishing history of an AFA vessel; (2) has a catcher
vessel designation; (3) has a trawl gear designation; (4) has an MLOA
of less than 60 feet LOA; and (5) has an MLOA that is not longer than
the MLOA designated on the LLP license to which
[[Page 41085]]
that AI endorsement was originally issued. These limitations would meet
the Council's intent to provide opportunities for LLP licenses used on
smaller non-AFA catcher vessels.
The voluntary transfer process for an AI area endorsement is
similar to the procedures currently in place for transferring an LLP
license. First, a person seeking to transfer an AI area endorsement
must submit a complete transfer application for an LLP license to the
Regional Administrator as described under Sec. 679.4(k)(7). As part of
that application process, the person must specify the specific LLP
license to which the transferred AI area endorsement will be assigned.
NMFS will not approve the transfer unless the AI area endorsement was
assigned for transfer to an LLP license that met the five requirements
specified above.
This rule also will modify LLP license transfer regulations at
Sec. 679.4(k)(7)(v) to clarify that the Regional Administrator will
transfer an AI area endorsement based on a court order, operation of
law, or a security agreement if the Regional Administrator determines
that the transfer application is complete and the transfer will not
otherwise violate any of the provisions relating to LLP license
transfers. This change is necessary to ensure that AI endorsements are
treated in the same manner that applies to LLP licenses in general.
NMFS will apply the same limitations on the number of transfers of
AI area endorsements that currently exist for LLP licenses. This
limitation ensures that AI endorsements are not traded in a manner that
could substantially increase the potential number of vessels actively
fishing in the AI area, and would subject AI endorsements to the same
transfer restrictions applicable to LLP licenses. Specifically, an AI
area endorsement can be voluntarily transferred only once in any
calendar year. A voluntary transfer is a transfer other than one
pursuant to a court order, operation of law, or a security agreement.
NMFS will not approve an application for transfer that will cause a
person to exceed the transfer limit of this provision. NMFS will
consider any transfer of an AI endorsement from one LLP license to
another LLP license, or the transfer of an LLP license to which an AI
endorsement is affixed, as a voluntary transfer of an AI endorsement.
This provision is consistent with the Council's intent to limit the
transfer of AI area endorsements in the same manner as those applicable
to LLP licenses.
Process for Removing Latent Trawl Endorsements and Assigning New AI
area Endorsements
NMFS will create an official record with all relevant information
necessary to assign landings to specific LLP licenses. As explained
earlier in this preamble, NMFS did not track the use of specific LLP
licenses onboard specific vessels during 2000 and 2001. Because NMFS
cannot assign landings made aboard specific vessels to specific LLP
licenses during this time period, NMFS will assume that any landings
made by a vessel during 2000 and 2001 will be assigned to the LLP
license derived from that vessel. Prior to modifying any LLP licenses,
NMFS will notify all trawl LLP license holders of the status of their
LLP license endorsements (i.e., whether they will retain or lose their
endorsements for specific regulatory areas, or will be eligible to
receive an AI area endorsement). Should an LLP license holder disagree
with NMFS's official record, NMFS will provide an opportunity for any
person to submit information to rebut the assumptions made by NMFS.
The official record created by NMFS will contain vessel landings
data and the LLP licenses to which those landings would be attributed.
Evidence of the number and amount of landings would be based only on
legally submitted NMFS weekly production reports for catcher/processors
and State fish tickets for catcher vessels. Historically, NMFS has only
used these two data sources to determine the specific amount and
location of landings, and NMFS will continue to do so under this
action. The official record will also include the records of the
specific LLP licenses assigned to vessels and other relevant
information necessary to attribute landings to specific LLP licenses.
NMFS will presume the official record is correct, and a person wishing
to challenge the presumptions in the official record will bear the
burden of proof through an evidentiary and appeals process.
NMFS will mail a notification to each trawl LLP license holder to
the address on record at the time the notification is sent about the
status of each regulatory area endorsement for that LLP license. NMFS
will provide a single 30-day evidentiary period from the date that
notification is sent for an LLP holder to submit any supporting
information, or evidence, to verify that the information contained in
the official record is inconsistent with his or her records.
An LLP license holder who submits claims that are inconsistent with
information in the official record will have the burden of proving that
the submitted claims are correct. NMFS will not accept inconsistent
claims unless verified by clear written documentation. NMFS will
evaluate the additional information or evidence to support an LLP
license holder's inconsistent claims submitted from the effective date
of this regulation and within the 30-day evidentiary period. If NMFS
determines that the additional information or evidence proves that the
LLP license holder's inconsistent claims were indeed correct, NMFS will
act in accordance with that information or evidence. However, if after
the 30-day evidentiary period, NMFS determines that the additional
information or evidence did not prove that the LLP license holder's
inconsistent claims were correct, NMFS will deny the claim. NMFS will
notify the applicant that the additional information or evidence did
not meet the burden of proof to overcome the official record through an
initial administrative determination (IAD). An applicant can appeal an
IAD. The appeals process is described under Sec. 679.43. A person who
appeals an IAD will be eligible to use the disputed LLP license with
the endorsements listed on the LLP license until final action by NMFS
on the appeal. NMFS will reissue any LLP licenses pending final action
by NMFS as interim LLP licenses. NMFS will prohibit the transfer of an
interim LLP license until the appeal is resolved.
If a person does not dispute the notification of changes in their
LLP license endorsements, or upon the resolution of any inconsistent
claims, a revised LLP license with the appropriate endorsements will be
reissued to the LLP license holder. In cases where all endorsements on
a LLP license with only a trawl endorsement are extinguished, NMFS will
not reissue the LLP license because it would no longer be valid for use
with trawl gear in any management area.
Housekeeping Revisions to LLP Transfer Application and Permit
Regulations
This rule modifies regulations at Sec. 679.4(k)(7)(iii) to
consolidate and clarify the regulations describing the contents of the
LLP transfer application. In addition, this rule modifies the
regulations at Sec. 679.7(i)(2) through (5), and Sec. 679.7(i)(8)(i)
to replace the requirement that a person must have the original LLP
license onboard to conduct directed fishing for license limitation
groundfish, fish for LLP crab or scallops, or process those species
with a requirement that a legible copy of the license will suffice.
[[Page 41086]]
Response to Comments
Comment 1: NMFS should consider a wider range of documentary
evidence to establish that a vessel made the requisite qualifying
landings. The commenter notes NMFS will consider only legal landings
that are documented on State of Alaska (State) fish tickets or NMFS
weekly production reports as the basis for establishing whether a
specific LLP license meets the requirements to retain its trawl
endorsements. Because a legal landing had to be properly recorded on a
State fish ticket or weekly production report, the ability of a person
to use other documentation to challenge NMFS's official record for
determining whether an LLP license meets the qualification is
meaningless. Although legal landings must be recorded on a State fish
ticket or weekly production report, other documentary evidence
establishing that landings were recorded but not in NMFS's official
record should be accepted. State of Alaska law limits the ability of a
vessel owner to review State fish ticket records without the consent of
the vessel skipper, thereby limiting the ability of a person to
challenge NMFS's official record based on those records. Therefore, a
person's right to challenge NMFS's official record is meaningless and a
violation of due process privileges.
Response: NMFS has used State fish tickets and NMFS weekly
production reports as the most reliable and accurate information to
establish landings in a variety of programs (e.g., Amendment 80
Program, and Central GOA Rockfish Program). The commenter does not
propose that NMFS should use other sources for establishing a legal
landing, but that NMFS should accept other information that a landing
occurred but that landing was not, for whatever reason, properly
submitted to NMFS or is not otherwise available in NMFS's official
record. If NMFS and the commenter agree that only State fish tickets or
NMFS weekly production reports should be used to certify a landing,
then it is not clear how any other information could be considered as
evidence of a landing.
NMFS will provide an LLP holder with the opportunity to submit
information, including other documentary evidence, to challenge NMFS's
official record. Even though other documentary evidence is not proof of
a legal landing, this information can result in NMFS modifying the
official record. For example, a person could submit landing settlements
or other records that lead NMFS or the State to investigate the
official record. This investigation could determine that a State fish
ticket or NMFS weekly production report was misfiled by the State or
NMFS, applied to the wrong vessel, or subject to some other error that
could result in NMFS modifying the official record. An LLP license
holder has a meaningful opportunity to present information to NMFS that
could result in changes to the official record.
NMFS provides adequate opportunity for a person to challenge an
agency decision. As noted in the preamble, NMFS will provide each LLP
license holder with a single 30-day evidentiary period to submit any
information to challenge the official record (79 FR 79785). If NMFS
does not accept the information submitted and does not modify the
official record, NMFS will issue an Initial Agency Determination (IAD)
rejecting a claim. After an IAD is issued, an LLP license holder can
pursue a challenge to the official record through the use of an appeals
process established in regulation at Sec. 679.43. NMFS will not revoke
or extinguish an LLP license endorsement until the appeal process has
concluded.
The commenter's concern about State confidentiality requirements
for the release of State fish tickets is outside the scope of this
action. NMFS does not have the authority to modify State statutes.
Comment 2: NMFS should clarify that those persons eligible to
receive an AI trawl endorsement must designate the qualifying vessel on
an eligible LLP license as of the effective date of the proposed
regulations to receive the endorsement. To do otherwise, or to hold AI
endorsements in regulatory limbo until the potential recipient obtains
a qualifying LLP license to couple with that endorsement, will create
too much uncertainty and limit the ability of NMFS to manage the
fishery because of the potential increase in harvesting capacity
associated with the AI trawl endorsements.
Response: In cases where a person does not hold an LLP license, but
is otherwise eligible to receive an AI endorsement, NMFS will withhold
issuing that AI endorsement until such time as that person holds an LLP
license with the requisite endorsements and MLOA appropriate for that
endorsement. Extinguishing an AI endorsement if a person does not hold
an LLP license within some time frame after the implementation of this
regulation was not specifically addressed by the Council during the
development of this provision; establishing such a provision now would
require new rulemaking and would prohibit otherwise eligible persons
from receiving an AI endorsement. Choosing to withhold the issuance of
an AI trawl endorsement until the potential recipient obtains the
appropriate LLP license does not undermine the ability of NMFS to carry
out its fishery management responsibilities. If an AI endorsement is
issued to an LLP license at some point in the future, NMFS is able to
track the specific LLP license to which the endorsement is assigned,
the vessel to which an LLP license is assigned, and the fisheries that
a vessel operator is actively fishing by communicating with the
operator or by monitoring the vessel electronically through the vessel
monitoring system. NMFS can monitor that vessel's landings through
mandatory catch reports. NMFS can use this information to adjust
management actions to account for the harvest activity of a vessel to
which an AI endorsement is assigned by closing fisheries earlier to
accommodate any increased effort due to additional AI endorsements.
In response to this comment, NMFS has modified the regulations at '
679.4(k)(4)(ix)(C) and (D) to state that a person may designate the LLP
license to which the AI endorsement is assigned when an endorsement is
issued by NMFS. If a person otherwise eligible to receive an AI
endorsement does not hold an LLP license to which an AI endorsement may
be assigned at the time this rule takes effect, an otherwise eligible
LLP license may be designated by that person in the future, such as
when the person has purchased an eligible LLP license. Furthermore,
NMFS concluded that the proposed regulatory text did not clearly state
that a person could select a specific eligible LLP license if more than
one was held by the person eligible for the AI endorsement. This change
ensures that a person can amend the official record once that person
holds an eligible LLP to be assigned an AI endorsement. This change
clarifies that this amendment does not require a challenge to the
official record. Although these changes modify the proposed process for
assigning AI endorsements to LLP licenses, they do not change the
intent of this provision.
Comment 3: NMFS should reissue trawl licenses for which all area
endorsements are extinguished to facilitate the use of the AI trawl
endorsements. Extinguishing a trawl endorsed LLP license if all of the
area endorsements assigned to that license are no longer valid would be
appropriate in most cases. However, allowing an LLP license holder to
be able to transfer an AI endorsement onto
[[Page 41087]]
an LLP license that would otherwise be extinguished would provide some
minimal value to some of the licenses that would otherwise be
extinguished under this amendment package.
Response: Adopting the commenter's suggestion would have the effect
of requiring that NMFS maintain latent trawl LLP licenses so that an AI
endorsement could be transferred onto any LLP license at some
indeterminate point in the future. This would frustrate the overall
goal of this action, which is to remove area endorsements, and
potentially LLP licenses, that have not met the minimum landing
requirements. The action recommended by the Council did not include a
provision to reissue LLP licenses that are extinguished under this
action. Including such a provision now would be contrary to the purpose
and need for this action and the clear intent of the Council. In an
action that amended eligibility to hold crab LLP licenses (September
24, 2001; 66 FR 48813), NMFS extinguished those LLP licenses that no
longer had any eligible endorsements, and a consistent approach would
be used for this action.
Comment 4: Permitting LLP license holder to maintain a legible copy
of an LLP license on their vessel while fishing or processing, as
opposed to the original LLP license, will greatly benefit participants
in the fisheries. Maintaining an original LLP license onboard a vessel
can impose significant costs on the industry during fishing due to
expedited delivery costs and incidental costs incurred while waiting
for an original LLP license to arrive. This change is long overdue.
Response: NMFS agrees and notes the support.
Comment 5: Remove latent trawl LLP licenses as described in the
proposed rule. The proposed rule provides active participants with
stability and insures some amount of protection of their investments
in, and dependency on, the North Pacific fisheries. The threshold
landing requirement does not harm LLP holders who are active in the
fisheries and who show a dependency in such fisheries. Maintain the
exemption to allow WG or CG endorsements to remain valid if at least 20
landings were made during the qualifying period, and the exemption for
LLP licenses required for specific LAPPs.
Response: NMFS notes the support for this action. NMFS notes that
this action removes trawl endorsements. NMFS will be extinguishing, or
removing, LLP licenses only in cases where all endorsements on an LLP
license are extinguished (see response to Comment 3 for additional
detail).
Comment 6: The commenter opposes the creation of new LLP
endorsements for catcher vessels in the Aleutian Islands. This action
is contrary to one of the central goals of the LLP Program as
originally implemented. The action would not meet the goals stated in
the preamble to the proposed rule. The rationale for this action is:
the economic development of Adak, Alaska; the development of an under
60 foot vessel fleet to harvest the AI pollock quota given to the Aleut
Corporation; and the development of a resident fleet for Adak.
This action will not contribute to the economic development for
Adak. Because most participants in the AI fishery, including those that
would receive new endorsements, have chosen not to deliver to Adak,
increasing participation by issuing new federal endorsements could
negatively impact Adak by attaining catch quotas and closing the
fishery earlier without increasing deliveries to Adak fisheries. No new
under-60-foot endorsements are needed to harvest AI pollock allocated
to the Aleut Corporation because an AI endorsement is not required for
those vessels. The creation of 12 new AI area endorsements will not
develop a resident fleet of vessels for Adak. None of the vessel owners
slated to receive the new endorsements are residents of Adak. The
owners of the vessels that participated in the State Water Al Pacific
cod fishery either live in Washington or Gulf of Alaska communities.
More importantly, all have LLP licenses in other regions and are more
dependent on fisheries in other regions.
Increased participation in the AI subarea would increase fishing
pressure in relation to the regional distribution of BSAI Pacific cod
biomass. The most harm would be caused by issuance of new area
endorsements that are severable and transferable, an action that even
one of the recipients of such a new transferable LLP area endorsement
testified to the Council that he did not want. This is contrary not
only to the original purpose of this action, it contradicts the purpose
of the LLP which prohibits the severability and transfer of
endorsements because it will increase rather than limit participation.
In creating these new endorsements, Adak would be hurt because the
influx of new participants would likely cause the trawl catcher vessel
Pacific cod fishery to be shortened.
Response: As noted in the preamble to the proposed rule, this
action would provide additional harvest opportunities to a specific
group of LLP holders based on the catch history of vessels that have
been active in AI parallel water fisheries in recent years. This action
is intended to modify the LLP Program as originally implemented by
NMFS, and the Council adopted a separate purpose and need statement to
support this action. The Council is not restricted from modifying the
LLP provided it is consistent with applicable law. The preamble to the
proposed rule notes that this action is primarily intended to provide
additional flexibility to vessels that are active in the Aleutian
Islands and could provide additional opportunities for shorebased
processors, but such opportunities were not guaranteed. Specifically,
the preamble to the proposed rule (73 FR 79780) stated:
LLP license holders who are issued new AI trawl endorsements
would be provided with additional harvest opportunities in Federal
waters that could be more economic to harvest. Processing facilities
in the Aleutians, specifically those located in the communities of
Adak and Atka, could benefit from access to Federal resources that
could be more economically processed than fishery resources
available only in State waters.
The commenter's assertion that this action would not result in
additional deliveries to Adak cannot be verified by NMFS because there
is no way to predict choices that vessel operators will make in the
future about their fishery deliveries. As noted in the preamble to the
proposed rule, this action is not intended to ensure that additional
deliveries will occur at a specific port, but that the catcher vessel
fleet will have additional harvesting opportunities in Federal waters
that did not previously exist. Those additional harvest opportunities
could provide additional processing for shorebased facilities in Adak
and Atka. This action does not guarantee that additional deliveries
will occur at these ports, or any other specific port.
Contrary to the commenter's assertion, the Council did not
recommend this action to provide opportunities for the harvest of
Aleutian Islands pollock. As noted in the preamble to the proposed
rule, ``these new AI area endorsements would provide additional
opportunities for catcher vessels to harvest and process Pacific cod in
the Aleutian Islands. Pacific cod is the groundfish species most
frequently targeted by non-AFA catcher vessels in the State GHL and
parallel fisheries in the Aleutian Islands; therefore the Council used
those landings as the basis for determining eligibility to receive an
AI area endorsement (73 FR 79780). The analysis used to support this
action also notes that the primary benefits of this
[[Page 41088]]
action would be for those active in the Atka mackerel, Pacific ocean
perch, and Pacific cod fisheries (see section 2.8.2).
NMFS cannot confirm the commenter's assertion that the recipients
of the AI endorsement will choose not to deliver catch to a specific
port. Again, this action does not mandate delivery to specific ports
and the Council did not intend that specific ports would receive a
specific portion of the catch, nor did the Council guarantee such a
result. As noted in section 2.7.5.4 of the analysis prepared for this
rule ``there is no guarantee that these AI endorsements would be used
to fish groundfish in the AI, or be used by vessels that would choose
to ``homeport'', or deliver to a shoreside processing plant, in Adak.
The creation of the endorsements, and their potential severability and
transferability, however, may provide an opportunity to facilitate
economic development in Adak, compared to the status quo.
The Council and NMFS were aware that this action could have
distributional effects on the specific participants who are active in
Aleutian Islands groundfish fisheries. Specifically, the preamble to
the proposed rule (73 FR 79773) notes that:
In recommending this action, the Council balanced the potential
benefits against the potential negative effect on existing fishery
participants in the Aleutian Islands. This proposed action would not
increase the total amount of the TAC harvested in the BSAI. The TAC
would continue to limit total harvests. This proposed action could
shift the proportion of groundfish harvested by trawl vessels
relative to other vessels in the Aleutian Islands thereby affecting
the associated ex-vessel revenues for existing fishery participants.
The commenter's assertion that this action will result in increased
fishing pressure on the regional distribution of the BSAI Pacific cod
biomass is based on assumptions about the potential distribution of the
Pacific cod biomass that have not been reviewed by the Council or NMFS.
The Pacific cod fishery is constrained by the Pacific cod TAC specified
annually for the BSAI. Based on data from a variety of sources, the
Council is reviewing the potential implications of apportioning the
Pacific cod TAC between the Bering Sea and Aleutian Islands. As that
analysis is developed, the Council and NMFS will consider fishing
practices in the Bering Sea and Aleutian Islands, and may recommend
changes to fishery management program that may be necessary to
accommodate a TAC apportionment. However, based on the best available
information at this time, issuing a limited number of additional AI
endorsements that are likely to be used on vessels that are already
active in harvesting BSAI Pacific cod in the Aleutian Islands parallel
water fishery would not be likely to cause the BSAI Pacific cod fishery
to close earlier than it does currently. The Council did review and
consider the potential effects of this action on current Aleutian
Islands harvesters and processors during its deliberative process and
in section 2.7.5 of the analysis prepared for this action.
Comment 7: The commenter supports designating LLP licenses as non-
transferable while any appeals on the status of an LLP license
endorsement are resolved. However, past experience suggests that the
appeal process can be very lengthy, particularly for resolving LLP
license appeals. While an LLP is under appeal it is still valid and may
be used until the appeals process is completed. If the appeals process
is lengthy, the net effect is that a regulation intended to reduce
latent capacity does not fully accomplish its goal. The Alaska Region
Office of Administrative Appeals should resolve any appeals quickly. In
the Pacific groundfish fishery, regulations are in place that requires
appeals to be resolved within 30 or 45 days. A similar timeline for
resolution of appeals for this action would seem to be appropriate.
Response: NMFS notes the support for designating LLP licenses as
non-transferable while under appeal. NMFS intends to move expeditiously
to resolve all appeals in a timely manner, but a specific timeline for
resolving appeals is difficult to predict given the wide range of
issues that may be addressed under appeal. The Council considered and
rejected a fixed timeline similar to the one used in the Pacific
groundfish fishery to resolve appeals given the potential that
complexities may arise during a specific appeal that could require more
than the 30 or 45 days.
Comment 8: Although the proposed rule suggests that removing latent
trawl LLP licenses became a consideration in early 2007, this issue
came before the Council much earlier. In 2005, the Council considered
provisions to remove latent catcher vessel LLP licenses under Amendment
80 and Amendment 85 to the FMP for BSAI groundfish. Additionally, GOA
rationalization was under consideration as early as 2003; if adopted,
this LAPP would have mooted the issue of latent trawl LLP licenses.
Response: NMFS agrees that the Council has considered modifying the
LLP Program prior to this action. However, this action, which
specifically addresses removing latent area endorsements from trawl LLP
licenses, was first developed as a separate and distinct action
beginning in 2007.
Changes From the Proposed to Final Rule
Based on public comment, NMFS clarified the regulations at ' 679.4
(k)(4)(ix)(C) and (D) for assigning AI endorsements.
NMFS made several minor changes in the final rule to clarify
specific regulatory text. In Sec. 679.7, NMFS clarified that the copy
of the LLP license that may be on a vessel must be a legible copy. This
change is consistent with other regulatory requirements that NMFS uses
to ensure that copies can be verified by enforcement personnel who may
be onboard the vessel.
NMFS made several minor corrections to the regulatory text for
grammatical consistency that does not affect the intent of these
provisions.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that Amendments 92 and 82 are necessary for the conservation and
management of BSAI and GOA groundfish and are consistent with the MSA
and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Final Regulatory Flexibility Analysis (FRFA)
A FRFA was prepared for this rule, as required by section 604 of
the Regulatory Flexibility Act (RFA). Copies of the FRFA prepared for
this final rule are available from NMFS (see ADDRESSES). The FRFA
incorporates the IRFA, a summary of the significant issues raised by
the public comments in response to the IRFA, NMFS's responses to those
comments, and a summary of the analyses completed to support the
action. A summary of the FRFA follows.
Why Action by the Agency is Being Considered and Objectives of, and
Legal Basis for, the Rule
The FRFA describes in detail the reasons why this action is being
proposed, describes the objectives and legal basis for the rule, and
discusses both small and non-small regulated entities to adequately
characterize the fishery participants. The MSA provides the legal basis
for the rule, as discussed in this preamble. The objectives of the rule
are to remove trawl gear endorsements on LLP licenses in specific
management areas if those LLP licenses have not been used on vessels
[[Page 41089]]
that met minimum recent landing requirements using trawl gear. This
action provides exemptions to this requirement for licenses that are
used in trawl fisheries subject to certain limited access privilege
programs. This action issues new area endorsements for trawl catcher
vessel LLP licenses in the Aleutian Islands if minimum recent landing
requirements in the Aleutian Islands were met.
Number of Small Entities to Which the Final Rule Would Apply
The directly regulated entities under this proposed rule are
holders of LLP licenses endorsed for trawl activity. For purposes of a
FRFA, the Small Business Administration (SBA) has established that a
business involved in fish harvesting is a small business if it is
independently owned and operated, not dominant in its field of
operation (including its affiliates), and if it has combined annual
gross receipts not in excess of $4.0 million for all its affiliated
operations worldwide. A seafood processor is a small business if it is
independently owned and operated, not dominant in its field of
operation, and employs 500 or fewer persons on a full-time, part-time,
temporary, or other basis, at all its affiliated operations worldwide.
Because the SBA does not have a size criterion for businesses that
are involved in both the harvesting and processing of seafood products,
NMFS has in the past applied and continues to apply SBA's fish
harvesting criterion for these businesses because catcher/processors
are first and foremost fish harvesting businesses. Therefore, a
business involved in both the harvesting and processing of seafood
products is a small business if it meets the $4.0 million criterion for
fish harvesting operations.
Information concerning ownership of vessels and processors, which
would be used to estimate the number of small entities that are
directly regulated by this action, is somewhat limited. NMFS estimated
the number of small versus large entities based on earnings from all
Alaskan fisheries for 2006, the most recent year of complete data, from
vessels designated on LLP licenses used in the BSAI or GOA groundfish
for that year.
Of the trawl catcher vessel licenses with AI, BS, CG, or WG
endorsements, 102 are AFA licenses. These are categorized as large
entities for the purpose of the RFA under the principles of
affiliation, due to their being part of the AFA pollock harvest
cooperatives. Of the remaining 130 trawl catcher vessel licenses that
are not AFA licenses, 96 had groundfish landings in 2006, and all are
identified as small entities for the purposes of the RFA. This likely
overstates the true number of small entities because ownership of
multiple vessels, co-ownership among vessels, and other economic and
operational affiliations are commonplace in commercial fisheries off
Alaska.
Of the trawl catcher/processor LLP licenses with AI, BS, CG, or WG
endorsements, 27 are AFA licenses, and thus categorized as large
entities, due to their AFA cooperative affiliation. Of the remaining 37
non-AFA trawl catcher/processor LLP licenses, 33 had groundfish
landings in 2006. These 33 licenses are estimated to be held by 28
entities, and 24 of those had gross earnings from all fisheries in
Alaska over $4 million, categorizing them as large entities. The
remaining 4 are identified as small entities for the purposes of the
RFA. Thus, this analysis estimates a total of 100 (96 + 4) small
entities will be directly regulated by the action.
Public Comments Received on the IRFA
NMFS received no public comments on the IRFA. A general comment on
the economic impacts of the rule is addressed in the Response to
Comment section of this preamble (see response to Comment 6).
Projected Reporting, Recordkeeping, and Other Compliance Requirements
This rule modifies existing reporting, recordkeeping, and other
compliance requirements. This rule modifies the Application to Transfer
an LLP license to include provisions to track the transfer of AI trawl
endorsements issued under this rule. It will cost the directly
regulated industry an estimated $56 to complete each application to
transfer an AI endorsement.
The Comparison of Alternatives
A FRFA requires a description of the steps the agency has taken to
minimize the significant economic impact on small entities consistent
with the stated objectives of applicable statutes, including a
statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule which affect the impact on small
entities was rejected by the agency.
The Council identified three alternatives for this action.
Alternative 1 is the status quo, which would result in no change to the
existing area endorsements for trawl groundfish LLPs for the BSAI or
GOA. Alternative 2 and Alternative 3 (Council preferred alternative)
result in the application of landings criteria (the range includes one
or two landings during 2000 through 2005 or 2000 through 2006) in order
to retain the area endorsement (BS, AI, CG, or WG) on a license.
Under either action alternative, including the preferred
alternative, the area endorsements on licenses not meeting the
threshold would be extinguished. In effect, if the LLP license at issue
has one or more area endorsement only for trawl gear and it does not
meet the landing threshold for any area selected, the entire license is
extinguished. If the LLP license at issue has multiple area
endorsements and it does not meet the landing threshold for a specific
area, the license would be reissued with only the area endorsements for
which it qualifies. The area endorsement for which the license does not
qualify would be removed. Note that this action does not affect a
license's non-trawl area endorsements.
The primary intent of the amendment is to prevent future economic
dislocation among license holders who have a demonstrated history of
recent participation in the trawl groundfish fisheries in the BSAI and
GOA. As previously noted, the great majority of the directly regulated
entities under this action are considered ``small'' as defined under
the RFA. Within the universe of small entities that are the subject of
this FRFA, impacts may accrue differently (i.e., some small entities
would be negatively affected and others positively affected.) Thus, the
action represents tradeoffs in terms of impacts on small entities.
However, the Council deliberately sought to provide options for the
smallest of the small entities under this amendment through Component
4, Options 1 and 3.
Component 4, Option 1, awards an estimated eight new AI
endorsements to non-AFA trawl catcher vessel LLP licenses with less
than 60 foot MLOA that meet a specified landing threshold (greater than
500 mt) in the AI parallel Pacific cod fishery from 2000 through 2006.
Component 4, Option 3 allows those new AI endorsements to be severable
and transferable from the license on which they were earned, thus
allowing new participation by non-AFA trawl catcher vessels less than
60 feet LOA. It is reasonable to assume that the same proportion of
licenses assigned to vessels less than 60 feet LOA would be small
entities.
Overall, it is unlikely that this action will result in
extinguishing the licenses of vessels for which LLP license holders had
a high degree of economic dependence upon the trawl groundfish
[[Page 41090]]
fisheries, as one would have to have had little to no participation in
the fisheries since 2000 in order to forfeit an area endorsement under
this action. Based upon the best available scientific data and
information, and consideration of the objectives of this action, it
appears that there are no alternatives to the action which have the
potential to accomplish the stated objectives of the Magnuson-Stevens
Act and any other applicable statutes and that have the potential to
minimize any significant adverse economic impact of the proposed rule
on directly regulated small entities.
Collection-of-Information
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) and which have been approved by
OMB under Control Number 0648-0334. Public reporting burden is
estimated to average two hours for the Application to Transfer an LLP
license and four hours for an appeal of an initial administrative
determination per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Notwithstanding any other provision of 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 Paperwork
Reduction Act unless that collection displays a currently valid OMB
Control Number.
Small Entity Compliance Guide
NMFS has posted a small entity compliance guide on its website at
http://www.alaskafisheries.gov to satisfy the Small Business Regulatory
Enforcement Fairness Act of 1996 requirement for a plain language guide
to assist small entities in complying with this rule.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: August 10, 2009.
John Oliver,
Deputy Assistant Administrator For Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 679 is amended as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 1540; 1801 et seq.; 3631 et
seq.; Pub. L. 108-447.
0
2. In Sec. 679.4,
A. Paragraphs (k)(4)(vi) through (k)(4)(x) are added; and
B. Paragraphs (k)(7)(i), (k)(7)(ii) introductory text, (k)(7)(iii),
(k)(7)(v), (k)(7)(vi), and (k)(7)(viii)(A) are revised.
The additions and revisions read as follows:
Sec. 679.4 Permits.
* * * * *
(k) * * *
(4) * * *
(vi) Trawl gear designation recent participation requirements. (A)
NMFS will revoke any trawl gear designation on a groundfish license
with an Aleutian Island, Bering Sea, Central Gulf, or Western Gulf
regulatory area unless one of the following conditions apply:
(1) A person made at least two legal landings using trawl gear
under the authority of that groundfish license in that regulatory area
during the period from January 1, 2000, through December 31, 2006; or
(2) That trawl gear designation endorsed in that area is exempt
from the requirements of this paragraph (k)(4)(vi)(A) as described
under paragraphs (k)(4)(vii) or (k)(4)(viii) of this section.
(B) NMFS shall assign a legal landing to a groundfish license for
an area based only on information contained in the official record
described in paragraph (k)(4)(x) of this section.
(vii) Exemption to trawl gear recent participation requirements for
the AFA, Amendment 80 Program, and Rockfish Program. (A) Trawl gear
designations with Bering Sea or Aleutian Islands area endorsements on a
groundfish license that was derived in whole or in part from the
qualifying fishing history of an AFA vessel are exempt from the landing
requirements in paragraph (k)(4)(vi) of this section.
(B) Trawl gear designations with Bering Sea or Aleutian Islands
area endorsements on a groundfish license are exempt from the landing
requirements in paragraph (k)(4)(vi) of this section provided that all
of the following conditions apply:
(1) The groundfish license was not derived in whole or in part from
the qualifying fishing history of an AFA vessel;
(2) The groundfish license is assigned to an AFA vessel on August
14, 2009; and
(3) No other groundfish license with a Bering Sea or Aleutian
Island area endorsement is assigned to that AFA vessel on August 14,
2009.
(C) Trawl gear designations with Bering Sea or Aleutian Islands
area endorsements on a groundfish license that is listed in Column C of
Table 31 to this part are exempt from the landing requirements in
paragraph (k)(4)(vi) of this section.
(D) A trawl gear designation with Central Gulf area endorsement on
a groundfish license that is assigned Rockfish QS is exempt from the
landing requirements in paragraph (k)(4)(vi) of this section.
(viii) Exemption to trawl gear recent participation requirements
for groundfish licenses with a Central Gulf or Western Gulf area
endorsement. A trawl gear designation with a Central Gulf or Western
Gulf area endorsement on a groundfish license is exempt from the
landing requirements in paragraph (k)(4)(vi) of this section provided
that a person made at least 20 legal landings under the authority of
that groundfish license in either the Central Gulf or Western Gulf area
using trawl gear during the period from January 1, 2005, through
December 31, 2007.
(ix) Aleutian Island area endorsements for non-AFA trawl catcher
vessels. (A) If a non-AFA catcher vessel that is less than 60 feet LOA
was used to make at least 500 mt of legal landings of Pacific cod using
trawl gear from the waters that were open by the State of Alaska for
which it adopts a Federal fishing season adjacent to the Aleutian
Islands Subarea during the period from January 1, 2000, through
December 31, 2006, according to the official record, NMFS shall issue
an Aleutian Island area endorsement with a trawl gear designation to a
groundfish license assigned to the vessel owner according to the
official record, provided that the groundfish license assigned to that
non-AFA catcher vessel meets all of the following requirements:
(1) It was not derived in whole or in part from the qualifying
fishing history of an AFA vessel;
(2) It has a trawl gear designation;
(3) It does not have a catcher/processor vessel designation; and
(4) That groundfish license has an MLOA of less than 60 feet.
(B) If a non-AFA catcher vessel that is equal to or greater than 60
feet LOA was used to make at least one legal landing in State of Alaska
waters adjacent to the Aleutian Islands Subarea using trawl gear during
the period from January 1,
[[Page 41091]]
2000, through December 31, 2006, or one landing of Pacific cod from the
State of Alaska Pacific cod fishery during the period from January 1,
2000, through December 31, 2006, according to the official record, NMFS
shall issue an Aleutian Island area endorsement with a trawl gear
designation to a groundfish license assigned to the vessel owner
according to the official record, provided that the groundfish license
assigned to that non-AFA catcher vessel meets the following criteria:
(1) It was not derived in whole or in part from the qualifying
fishing history of an AFA vessel;
(2) It has a trawl gear designation;
(3) It does not have a catcher/processor vessel designation; and
(4) At least 1,000 mt of legal landings of Pacific cod using trawl
gear in the BSAI were made under the authority of that groundfish
license during the period from January 1, 2000, through December 31,
2006, according to the official record.
(C) NMFS will assign the AI endorsement to an eligible groundfish
license held and designated by the vessel owner beginning on August 14,
2009.
(D) If the vessel owner does not hold a groundfish license to which
an AI endorsement may be assigned on August 14, 2009 according to the
official record, the vessel owner will have the opportunity to amend
the official record as described in paragraph (k)(4)(x) of this section
to designate an otherwise eligible groundfish license. If the official
record is subsequently amended, NMFS will assign the AI endorsement to
the groundfish license specified in the amended official record.
(x) Trawl gear recent participation official record. (A) The
official record will contain all information used by the Regional
Administrator to determine the following:
(1) The number of legal landings assigned to a groundfish license
for purposes of the trawl gear designation participation requirements
described in paragraph (k)(4)(vi) of this section;
(2) The amount of legal landings assigned to a groundfish license
for purposes of the AI endorsements described in paragraph (k)(4)(ix)
of this section;
(3) The owner of a vessel that has made legal landings that may
generate an AI endorsement as described in paragraph (k)(4)(ix) of this
section; and
(4) All other relevant information necessary to administer the
requirements described in paragraphs (k)(4)(vi) through (k)(4)(ix) of
this section.
(B) The official record is presumed to be correct. A groundfish
license holder has the burden to prove otherwise. For the purposes of
creating the official record, the Regional Administrator will presume
the following:
(1) A groundfish license is presumed to have been used onboard the
same vessel from which that groundfish license was derived, the
original qualifying vessel, during the calendar years 2000 and 2001,
unless clear and unambiguous written documentation is provided that
establishes otherwise;
(2) If more than one person is claiming the same legal landing,
then each groundfish license for which the legal landing is being
claimed will be credited with the legal landing;
(3) The groundfish license to which an AI endorsement described in
paragraph (k)(4)(ix) of this section will be initially assigned.
(C) Only legal landings as defined in Sec. 679.2 and documented on
State of Alaska fish tickets or NMFS weekly production reports will be
used to assign legal landings to a groundfish license.
(D) The Regional Administrator will specify by letter a 30-day
evidentiary period during which an applicant may provide additional
information or evidence to amend or challenge the information in the
official record. A person will be limited to one 30-day evidentiary
period. Additional information or evidence received after the 30-day
evidentiary period specified in the letter has expired will not be
considered for purposes of the initial administrative determination.
(E) 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 person fails to support a person's claims and is
insufficient to rebut the presumption that the official record is
correct, 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 with the information, or
the evidence submitted in support of the information. The IAD will also
indicate which claims cannot be approved based on the available
information or evidence. A person who receives an IAD may appeal
pursuant to Sec. 679.43. A person who avails himself or herself of the
opportunity to appeal an IAD will receive a non-transferable license
pending the final resolution of that appeal, notwithstanding the
eligibility of that applicant for some claims based on consistent
information in the official record.
* * * * *
(7) * * *
(i) General. The Regional Administrator will transfer a groundfish
license, Aleutian Island area endorsement as described under paragraph
(k)(7)(viii)(A) of this section, or a crab species license if a
complete transfer application is submitted to Restricted Access
Management, Alaska Region, NMFS, and if the transfer meets the
eligibility criteria as specified in paragraph (k)(7)(ii) of this
section. A transfer application form may be requested from the Regional
Administrator.
(ii) Eligibility criteria for transfers. A groundfish license,
Aleutian Island area endorsement as described under paragraph
(k)(7)(viii)(A) of this section, or crab species license can be
transferred if the following conditions are met:
* * * * *
(iii) Contents of application. To be complete, an application for a
groundfish license, Aleutian Island area endorsement as described under
paragraph (k)(7)(viii)(A) of this section transfer, or a crab species
license transfer must be legible, have notarized and dated signatures
of the applicants, and the applicants must attest that, to the best of
the applicant's knowledge, all statements in the application are true.
An application to transfer will be provided by NMFS, or is available on
the NMFS Alaska Region website at http://alaskafisheries.noaa.gov. The
acceptable submittal methods will be specified on the application form.
* * * * *
(v) Transfer by court order, operation of law, or as part of a
security agreement. The Regional Administrator will transfer a
groundfish license, Aleutian Island area endorsement as described under
paragraph (k)(7)(viii)(A) of this section, or a crab species license
based on a court order, operation of law, or a security agreement if
the Regional Administrator determines that the transfer application is
complete and the transfer will not violate any of the provisions of
this section.
(vi) Voluntary transfer limitation. A groundfish license, Aleutian
Island area endorsement as described under paragraph (k)(7)(viii)(A) of
this section, or a crab species license may be voluntarily transferred
only once in any calendar year. A voluntary transfer is a transfer
other than one pursuant to a court order, operation of law, or a
[[Page 41092]]
security agreement. An application for transfer that would cause a
person to exceed the transfer limit of this provision will not be
approved. A transfer of an Aleutian Island area endorsement as
described under paragraph (k)(7)(viii)(A) of this section to another
LLP license, or the transfer of a groundfish license with an Aleutian
Island area endorsement as described under paragraph (k)(7)(viii)(A) of
this section attached to it will be considered to be a transfer of that
Aleutian Island area endorsement.
* * * * *
(viii) * * *
(A) Area endorsements or area/species endorsements specified on a
license are not severable from the license and must be transferred
together, except that Aleutian Island area endorsements on a groundfish
license with a trawl gear designation issued under the provisions of
paragraph (k)(4)(ix)(A) of this section and that are assigned to a
groundfish license with an MLOA of less than 60 feet LOA may be
transferred separately from the groundfish license to which that
Aleutian Island area endorsement was originally issued to another
groundfish license provided that the groundfish license to which that
Aleutian Island endorsement is transferred:
(1) Was not derived in whole or in part from the qualifying fishing
history of an AFA vessel;
(2) Has a catcher vessel designation;
(3) Has a trawl gear designation;
(4) Has an MLOA of less than 60 feet LOA; and
(5) A complete transfer application is submitted to the Regional
Administrator as described under this paragraph (k)(7), and that
application is approved.
* * * * *
0
3. In Sec. 679.7, paragraphs (i)(2) through (i)(5), and paragraph
(i)(8)(i) are revised to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(i) * * *
(2) Conduct directed fishing for license limitation groundfish
without a legible copy of a valid groundfish license, except as
provided in Sec. 679.4(k)(2);
(3) Conduct directed fishing for LLP crab species without a legible
copy of a valid crab license, except as provided in Sec. 679.4(k)(2);
(4) Process license limitation groundfish on board a vessel without
a legible copy of a valid groundfish license with a catcher/processor
designation;
(5) Process LLP crab species on board a vessel without a legible
copy of a valid crab species LLP license with a catcher/processor
designation;
* * * * *
(8) * * *
(i) Without a copy of a valid scallop license on board;
* * * * *
[FR Doc. E9-19568 Filed 8-13-09; 8:45 am]
BILLING CODE 3510-22-S