15826 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current. Therefore, this regulation: (1) Is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866; (2) is not 

a ‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified this rule, when promulgated, 

will not have a significant economic 

impact on a substantial number of small 

entities under the criteria of the 

Regulatory Flexibility Act. The FAA’s 

authority to issue rules regarding 

aviation safety is found in Title 49 of the 

U.S. Code. Subtitle 1, Section 106 

discusses the authority of the FAA 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. This 

rulemaking is promulgated under the 

authority described in Subtitle VII, Part 

A, Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it establishes 

additional controlled airspace at Pueblo 

Memorial Airport, Pueblo, CO. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

Part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR Part 71.1 of the Federal Aviation 

Administration Order 7400.9U, 

Airspace Designations and Reporting 

Points, dated August 18, 2010, and 

effective September 15, 2010 is 

amended as follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

ANM CO E5 Pueblo, CO [Modified] 

Pueblo Memorial Airport, CO 

(Lat. 38°17′21′′ N., long. 104°29′47′′ W.) 

That airspace extending upward from 700 

feet above the surface within 21.8-mile radius 

of the Pueblo Memorial Airport, and within 

the 28.8-mile radius of Pueblo Memorial 

Airport clockwise between the 070° and 133° 

bearing from the airport; that airspace 

extending upward from 1,200 feet above the 

surface bounded on the north by lat. 

38°30′00′′ N., on the east by V–169, on the 

south by V–210, on the west by a line from 

lat. 37°37′26′′ N., long. 105°00′02′′ W.; to lat. 

38°09′25′′ N., long. 105°08′06′′ W.; to lat. 

38°05′51′′ N., long. 105°30′49′′ W.; to lat. 

38°10′00′′ N., long. 105°33′02′′ W.; to lat. 

38°30′00′′ N., long. 105°33′02′′ W.; that 

airspace extending upward from 13,700 feet 

MSL bounded by a line beginning at lat. 

38°09′25′′ N., long. 105°08′06′′ W.; to lat. 

37°37′26′′ N., long. 105°00′02′′ W.; to lat. 

37°33′30′′ N., long. 105°11′44′′ W.; to lat. 

38°05′51′′ N., long. 105°30′49′′ W.; thence to 

point of beginning. 

Issued in Seattle, Washington, on March 2, 

2001. 

Christine Mellon, 

Acting Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. 2011–6627 Filed 3–21–11; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 902 

50 CFR Part 679 

[Docket No. 0912021424–1182–03] 

RIN 0648–AY42 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Gulf of Alaska 

License Limitation Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations to 

implement Amendment 86 to the 

Fishery Management Plan for 

Groundfish of the Gulf of Alaska. This 

action adds a Pacific cod endorsement 

on licenses issued under the License 

Limitation Program (LLP) in specific 

management areas if those licenses have 

been used on vessels that met minimum 

recent landing requirements using nontrawl gear, commonly known as fixed 

gear. This action exempts vessels that 

use jig gear from the requirement to 

hold an LLP license, modifies the 

maximum length designation on a 

specific set of fixed gear licenses, and 

allows entities representing specific 

communities to receive a limited 

number of fixed-gear licenses with 

Pacific cod endorsements. This action is 

intended to promote the goals and 

objectives of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, the Fishery Management Plan, and 

other applicable law. 

DATES: Effective April 21, 2011. 

ADDRESSES: Electronic copies of 

Amendment 86, the Environmental 

Assessment (EA), Regulatory Impact 

Review (RIR), and the Final Regulatory 

Flexibility Analysis (FRFA) for this 

action are available from http:// 

www.regulations.gov or from the Alaska 

Region Web site at http:// 

alaskafisheries.noaa.gov. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted 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; and by e-mail 

to OIRA_Submission@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 

The National Marine Fisheries Service 

(NMFS) manages the groundfish 

fisheries in the exclusive economic zone 

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) recommended, and 

NMFS approved, the FMPs under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

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 


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 15827 

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 for 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. 

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 action 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 establishes 

specific criteria that must be met to 

allow a person to deploy 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 groundfish species. The term 

directed fishing and the specific 

groundfish species for which an LLP 

license is required are defined in 

regulations at § 679.2. Exceptions to the 

LLP license requirement apply 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; or 

less than 60 feet LOA, using jig gear in 

the BSAI, and deploying no more than 

five jigging machines (See § 679.4(k)(2)). 

Under the LLP, NMFS issues 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, known as the maximum length 

overall (MLOA); (3) designate the 

fishing gear that may be used on the 

vessel (i.e., trawl or non-trawl gear 

designations); and (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). The endorsements for 

specific regulatory areas, gear 

designations, and 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 

other gears, or with other 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 

provisions in the LLP (October 1, 1998; 

63 FR 52642). 

When the Council initially 

recommended the LLP, the Council 

intended that NMFS determine whether 

a vessel met a minimum number of 

landings to qualify the owner of that 

vessel to receive an LLP license with a 

specific gear, area, and operational type 

endorsement. However, the regulations 

that implemented the LLP used the 

phrase ‘‘documented harvest’’ instead of 

‘‘landing.’’ NMFS asserted that the 

phrase documented harvest was 

synonymous with the phrase landing, 

and that the phrase documented harvest 

provided additional clarity to the public 

that the phrase landing did not. NMFS’ 

assertion that these two phrases were 

synonymous was subsequently 

challenged in court (Trojan Partnership 

v. Gutierrez, 425 F. 3d 620 (9th Cir. 

2005)). The Court held that these 

phrases were not synonymous. In order 

to be consistent with Council intent 

when originally implementing the LLP, 

as well as the specific criteria 

recommended by the Council for this 

action, this action uses landings, and 

not documented harvests, as the basis 

for determining whether an LLP license 

holder will meet the regulatory 

requirements for Amendment 86. 

The regulatory areas for which LLP 

licenses were issued include the Bering 

Sea (BS), Aleutian Islands (AI); 

Southeast Outside District (SEO); 

Central Gulf of Alaska (CG), which 

includes the West Yakutat District 

adjacent to the SEO; and Western Gulf 

of Alaska (WG). The documented 

harvest requirements established in the 

final rule implementing the LLP, for a 

specific area differed depending on the 

size of the vessel and the operational 

type of the vessel. The phrase 

‘‘documented harvest’’ is used in this 

description of the qualifying criteria for 

the LLP as originally implemented to be 

consistent with the terminology used in 

that final rule (October 1, 1998; 63 FR 

52642). For example, for a vessel owner 

to receive an endorsement for non-trawl 

gear in the CG with a catcher/processor 

designation, a vessel must have met the 

minimum documented harvest 

requirements in the CG using non-trawl 

gear and the documented harvests must 

have been caught and processed 

onboard the vessel. 

In 2000, 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. NMFS issued more than 300 

LLP licenses endorsed for trawl gear, 

and more than 1,000 licenses for nontrawl gear for use in the BSAI and GOA. 

Non-trawl gear is commonly known as 

fixed gear and includes hook-and-line, 

pot, and jig gear. In many cases trawl 

and fixed gear 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 LLP licenses 

were also designated for both trawl and 

fixed gear in cases where the vessel met 

the documented harvests requirements 

using both trawl and fixed gear. 

After LLP licenses were initially 

issued in 2000, NMFS became aware, 

through public testimony from fishing 

industry representatives and an 

independent review of landings data, 

that a substantial number of trawl and/ 

or fixed gear endorsed LLP licenses 

were not being used for fishing in some, 

or all, of the regulatory areas for which 

they were endorsed. A variety of factors 

could result in the lack of use of an LLP 

license, including poor economic 

conditions in groundfish fisheries, 

choices by LLP license holders to focus 

on fisheries such as salmon or halibut 

that do not require the use of an LLP 

license, or other reasons specific to a 

license holder. 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 in the GOA and BSAI. In April 

2008, after more than a year of review, 

development of an analysis, and 

extensive public comment, the Council 

adopted Amendment 92 to the BSAI 

FMP and Amendment 82 to the GOA 

FMP, both of which modified the LLP 

regarding eligibility criteria for trawl 

endorsements on LLP licenses. 

Amendments 92 and 82 removed trawl 

endorsements from LLP licenses that 

did not meet specific landing 

requirements during 2000 through 2006. 


Emcdonald on DSK2BSOYB1PROD with RULES
15828 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 

NMFS published a notice of availability 

for Amendments 92 and 82 on 

December 12, 2008 (73 FR 75659). A 

proposed rule was published on 

December 30, 2008 (73 FR 79773). 

NMFS approved Amendments 92 and 

82 on March 16, 2009, and published a 

final rule implementing them on August 

14, 2009 (74 FR 41080). 

In late 2007, the Council began a 

similar process of reviewing the use of 

LLP licenses endorsed for fixed gear in 

the GOA. This review was initiated 

primarily at the request of active GOA 

fixed gear fishery participants who were 

concerned that holders of latent fixedgear endorsed LLP licenses could 

resume fishing under the licenses in the 

future and thereby adversely affect 

active GOA fixed gear LLP licenses 

holders’ fishing operations as well as 

the biological health of the fishery. 

Specifically, fixed-gear participants 

were concerned about the potential 

effects of additional effort in the GOA 

Pacific cod fishery that could increase 

competition and overcapacity in the 

fishery. Pacific cod is the primary 

fishery targeted by vessels using fixed 

gear in the GOA. In both the CG and WG 

regulatory areas, approximately onefourth of the eligible LLP licenses were 

actively being used. The potential 

overcapacity from the remaining latent 

LLP licenses could have adverse effects 

on management of the fisheries. 

Increased fishery effort could make it 

more difficult for NMFS to close 

fisheries in a timely manner, thereby 

exceeding the total allowable catch 

(TAC) for a fishery. 

During the development of this 

action, the Council also received input 

from the public requesting modification 

to the LLP to establish minimum 

landing requirements that must be met 

to allow a vessel to continue to 

participate in the Pacific cod fixed-gear 

fisheries in the GOA consistent with the 

approach adopted by the Council in 

2002, under Amendment 67 to the FMP 

for groundfish of the BSAI (April 15, 

2002; 67 FR 18129). Amendment 67 

established a Pacific cod endorsement 

on LLP licenses that is required for 

vessels using hook-and-line and pot gear 

to participate in the directed fishery for 

Pacific cod in the BSAI. The term 

‘‘directed fishing’’ is defined in 

regulation at § 679.2 and includes 

retained catch of Pacific cod that 

exceeds a minimum proportion of the 

total retained catch onboard a vessel. In 

April 2009, after more than a year of 

review and extensive public comment, 

the Council recommended 

modifications to the LLP to revise 

eligibility criteria for fixed gear 

endorsements on LLP licenses. The 

Council amended its final action in 

December 2009 to incorporate a change 

in the specific method used to allocate 

Pacific cod endorsed LLP licenses for 

specific persons (see the description 

under Action 4 of this preamble for 

additional detail). 

Notice of Availability and Proposed 

Rule 

NMFS published the notice of 

availability for Amendment 86 on July 

2, 2010 (75 FR 38452), with a public 

comment period that closed on August 

31, 2010. NMFS published the proposed 

rule for this action on July 23, 2010 (75 

FR 43118), with a public comment 

period that closed on September 7, 

2010. Amendment 86 was approved by 

NMFS on September 29, 2010. NMFS 

received two public comments from two 

unique persons on Amendment 86 and 

the proposed rule; these are summarized 

and responded to below. These 

comments did not result in any 

modification to the proposed rule. 

Actions Implemented by Rule 

This rule implements four different 

actions, all of which were components 

of the Council’s final action. 

• Action 1: Establishes a GOA Pacific 

cod endorsement for fixed gear LLP 

licenses. 

• Action 2: Exempts certain vessels 

using jig gear in the GOA from the 

requirement to carry an LLP license. 

• Action 3: Modifies the MLOA of 

certain LLP licenses. 

• Action 4: Allows specific GOA 

community entities to request and 

receive LLP licenses with a Pacific cod 

endorsement. 

The rationale and effects of these four 

actions are described in detail in the 

preamble to the proposed rule (July 23, 

2010; 75 FR 43118), and are briefly 

summarized here. For additional detail, 

please see the proposed rule preamble 

(See ADDRESSES). 

Action 1: Establishes a Pacific Cod 

Endorsement for Fixed Gear LLP 

Licenses 

This rule assigns Pacific cod 

endorsements to LLP licenses that have 

met minimum landing requirements 

from January 1, 2002, through December 

8, 2008, or that meet a specific 

exemption described below. This action 

preemptively reduces the potential 

adverse effects of overharvesting the 

GOA Pacific cod resource if latent LLP 

license holders became active in the 

fishery. 

Criteria for Assigning a Pacific Cod 

Endorsement 

This rule assigns a Pacific cod fishery 

endorsement to an LLP license based on 

landings in the directed Pacific cod 

fishery in the GOA from January 1, 

2002, through December 8, 2008, made 

by vessels operating under the authority 

of that LLP license. NMFS will assign 

Pacific cod endorsements that are 

designated for (1) hook-and-line, pot, or 

jig gear; (2) specific GOA regulatory 

areas (i.e., CG and WG); and (3) specific 

operational types (i.e., catcher vessels or 

catcher/processors). LLP licenses with 

an MLOA of less than 60 feet have 

different landing requirements 

compared to LLP licenses with an 

MLOA equal to or greater than 60 feet. 

Table 1 summarizes the landing 

requirement criteria that must be met for 

each gear type, regulatory area, 

operational type, and MLOA of the LLP 

license. 

TABLE 1—SUMMARY OF LANDING REQUIREMENTS FOR A FIXED GEAR PACIFIC COD ENDORSEMENT

Regulatory area Gear type Operational type of 

Pacific cod endorsement 

MLOA of 

LLP 

license 

Landing requirement 

in the Pacific cod 

directed fishery from 

January 1, 2002, 

through December 8, 

2008 

CG ................................... Hook-and-line .................. Catcher vessel ................................................ < 60 feet ...........

≥ 60 feet ...........

10 metric tons (mt). 

50 mt. 

Catcher/Processor .......................................... All ..................... 50 mt. 

Jig* .................................. Catcher vessel ................................................

Catcher/Processor ..........................................

All .....................

All .....................

1 landing. 

Pot ................................... Catcher vessel ................................................ < 60 feet ...........

≥ 60 feet ...........

10 mt 

50 mt. 


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 15829 

TABLE 1—SUMMARY OF LANDING REQUIREMENTS FOR A FIXED GEAR PACIFIC COD ENDORSEMENT—Continued 

Regulatory area Gear type Operational type of 

Pacific cod endorsement 

MLOA of 

LLP 

license 

Landing requirement 

in the Pacific cod 

directed fishery from 

January 1, 2002, 

through December 8, 

2008 

Catcher/Processor .......................................... All ..................... 50 mt. 

WG .................................. Hook-and-line .................. Catcher vessel ................................................ < 60 feet ...........

≥ 60 feet ...........

10 mt. 

50 mt. 

Catcher/Processor .......................................... All ..................... 50 mt. 

Jig* .................................. Catcher vessel ................................................

Catcher/Processor ..........................................

All .....................

All .....................

1 landing. 

Pot ................................... Catcher vessel ................................................ < 60 feet ...........

≥ 60 feet ...........

10 mt. 

50 mt. 

Catcher/Processor .......................................... All ..................... 50 mt. 

* LLP licenses and Pacific cod endorsements will be required only if a vessel uses more than five jigging machines, five lines, and more than 

30 hooks per line. 

A fixed gear LLP endorsement for 

Pacific cod reduces the risk that vessel 

operators could assign latent LLP 

licenses to other vessels, effectively 

reactivating those licenses and thereby 

increasing the amount of fixed gear 

effort in the Pacific cod fisheries. This 

additional effort could increase the 

harvest rate in the fixed-gear Pacific cod 

fishery as well as adversely affect 

currently active participants by 

increasing competition, diluting their 

potential gross revenues, and creating 

incentives for harvesters to race for fish 

in a potentially wasteful manner. This 

action effectively removes the potential 

for new effort in the fishery beyond 

currently active participants, as defined 

by this rule. This action provides 

additional control on fishing effort in 

the GOA Pacific cod fishery that is not 

provided under the current structure of 

the LLP. 

This action does not include 

modifications to SEO-endorsed licenses 

because fishing effort in this regulatory 

area is currently low. The risk of 

additional effort in the fishery from 

latent fixed gear LLP license holders 

was deemed to be unlikely by the 

Council given the relatively small 

number of eligible LLP licenses and the 

TAC for Pacific cod in the SEO. This 

action does not include the BS or AI 

regulatory areas because a Pacific cod 

endorsement requirement has already 

been established for LLP licenses using 

fixed gear in these areas under 

Amendment 67 to the BSAI FMP (April 

15, 2002; 67 FR 18129). 

Rationale for Landing Requirements 

The Council considered a range of 

options and alternatives to determine 

the minimum number of landings 

required to receive a Pacific cod 

endorsement. The range of years was 

selected by the Council based on the 

first year that NMFS could definitively 

assign landings data to a specific LLP 

license (2002), and a period year that 

represented the last year for which 

NMFS had data available on recent 

participation in the Pacific cod fisheries 

(December 8, 2008). The specific date of 

December 8, 2008, corresponds to the 

date that the Council selected as a 

control date after which landings would 

not be considered for purposes of 

qualifying for a Pacific cod 

endorsement. The Council 

recommended a control date to ensure 

that fishery participants did not engage 

in fishing practices for the sole purpose 

of qualifying for a Pacific cod 

endorsement, and to ensure that fishery 

landings represent sustained 

participation in the directed Pacific cod 

fishery. The Council balanced more 

recent participation against 

considerations of economic dependence 

and historical fishing practices when 

selecting the nearly 7-year time frame 

from January 1, 2002, through December 

8, 2008. Groundfish harvested 

incidentally by vessels participating in 

any other fishery are excluded for the 

purpose of determining recent 

participation for this action because it is 

not considered directed fishing for 

Pacific cod. 

The Council recommended that only 

catch from vessels fishing under the 

Federal TAC in either the Federal or 

parallel fishery would be included. The 

Federal TAC may be harvested in 

Federal waters, or in State of Alaska 

waters under a ‘‘parallel fishery.’’ A 

parallel fishery occurs when the State of 

Alaska opens state waters concurrent 

with the Federal fishing season to allow 

vessels to access the Federal TAC in 

both state and Federal waters. The 

Council recommended including this 

catch because both of these fisheries 

have participants that are subject to 

Federal regulation, and vessels transit 

between state and Federal waters when 

harvesting Pacific cod that is assigned to 

the TAC. Catch from vessels fishing in 

the State of Alaska’s Guideline Harvest 

Limit GHL Pacific cod fishery would not 

be included as qualifying catch to meet 

the requirements for a Pacific cod 

endorsement because this catch is not 

federally managed, is not subject to the 

TAC, and is managed exclusively by the 

State of Alaska. 

After a review of groundfish catch 

history, the Council determined that 

different landing criteria should apply 

to different gear types, vessel operation 

types, and LLP MLOAs during the 7- 

year period from January 1, 2002, 

through December 8, 2008. The landing 

criteria recommended by the Council 

represent a minimal, but sufficient, 

amount of participation in the Pacific 

cod fishery to indicate some level of 

dependence on the fishery. The Council 

recommended that landing 

requirements apply to each regulatory 

area so that authority to fish Pacific cod 

could 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. The Council recommended this 

action to accomplish the goal of 

reducing the effects of potentially 

hundreds of new entrants into the 

Pacific cod fishery. 

The preamble to the proposed rule, 

and sections 2 and 3 of the EA/RIR/ 

FRFA prepared to support this rule 

contain a detailed description of the 

alternative landing requirements 

considered, and the rationale for the 

specific landing requirements chosen 

for each of the fixed gear types (see 


Emcdonald on DSK2BSOYB1PROD with RULES
15830 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 

ADDRESSES). That discussion is not 

repeated here. 

Under this rule, a Pacific cod 

endorsement is required on all LLP 

licenses assigned to vessels using fixed 

gear to directed fish for Pacific cod in 

the WGOA and CGOA. Catcher vessels 

that use jig gear and meet specific vessel 

size and gear requirements will be 

exempt from the requirement to use an 

LLP license with a Pacific cod 

endorsement. This exemption is 

described in detail under Action 2. 

Other than the exemption described 

under Action 2, all vessels using fixed 

gear that are required to have an LLP 

license when fishing under the Federal 

TAC in either Federal or state waters are 

required to have a Pacific cod 

endorsement on the LLP license when 

directed fishing for Pacific cod. 

However, this requirement does not 

apply to vessels fishing in the Pacific 

cod GHL fishery, which is managed 

exclusively by the State of Alaska. 

If a vessel, or vessels, to which an LLP 

license has been assigned meets 

minimum landings requirements 

applicable to a type of fixed gear and 

LLP license MLOA in a specific 

regulatory area during the period 

January 1, 2002, through December 8, 

2008, then the LLP license used on that 

vessel, or vessels, will be assigned a 

Pacific cod fixed gear endorsement for 

those specific gear type(s) or specific 

regulatory area(s). An LLP license 

qualifies for more than one endorsement 

(i.e., pot, hook-and-line, and/or jig) if it 

has qualified landings using more than 

one gear type. 

In addition to issuing fixed gear 

endorsements based on directed 

harvests of Pacific cod during the 

January 1, 2002, through December 8, 

2008, period, NMFS will issue Pacific 

cod endorsements to a limited number 

of LLP licenses that meet specific 

conditions even if those LLP licenses 

did not meet the minimum landing 

requirements. Specifically, NMFS will 

assign Pacific cod endorsements to LLP 

licenses that currently (1) have a 

catcher/processor endorsement; (2) were 

assigned to vessels that did not meet 

minimum landing requirements to 

qualify for a Pacific cod endorsement for 

catcher/processors using hook-and-line 

gear in either regulatory area where 

those LLP licenses are endorsed; and (3) 

were assigned to vessels that 

participated in industry efforts to reduce 

halibut prohibited species catch in the 

directed Pacific cod fishery in the GOA 

during 2006, 2007, or 2008. 

This provision is intended to ensure 

that LLP license holders who decided 

not to use their vessels in the GOA 

during 2006, 2007, or 2008 will receive 

a Pacific cod endorsement. Specifically, 

this provision applies to LLP licenses 

that did not fish in the GOA in order to 

minimize halibut prohibited species 

catch. Hook-and-line catcher/processors 

minimize bycatch through voluntary 

private contractual arrangements. NMFS 

has a record of all LLP licenses that 

were used on catcher/processor vessels 

participating in the voluntary private 

contractual arrangements from 2006 

through 2008. A list of LLP licenses, 

based on the best available catch data, 

eligible for this exemption (and thus 

able to receive an endorsement) appears 

at table 2 of this preamble. 

In some cases, an LLP license is 

eligible to receive an endorsement if it 

met the landing requirement in either 

the CG or WG, and it qualifies for the 

exemption in the other regulatory area 

if it did not otherwise meet the landing 

requirement in that area. Table 2 notes 

whether an LLP license qualifies for the 

exemption in an area, or qualifies under 

the landing requirements in an area. An 

LLP license is not eligible for an 

endorsement exemption to a regulatory 

area if that LLP license had not been 

assigned an endorsement for that area 

prior to this action. 

TABLE 2—LLP LICENSES QUALIFYING FOR HOOK-AND-LINE CATCHER/PROCESSOR ENDORSEMENT EXEMPTION

LLP License No. Eligible for CG endorsement exemption Eligible for WG endorsement exemption 

LLG 1400 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 1713 .......................................................... Yes ................................................................... No (Not eligible for an endorsement). 

LLG 1785 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 1916 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 2112 .......................................................... Yes ................................................................... Yes. 

LLG 2783 .......................................................... Yes ................................................................... No (Not eligible for an endorsement). 

LLG 2892 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 2958 .......................................................... Yes ................................................................... No (Not eligible for an endorsement). 

LLG 3616 .......................................................... Yes ................................................................... No (Not eligible for an endorsement). 

LLG 3617 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 3676 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 4823 .......................................................... Yes ................................................................... No (Qualifies under landing requirements). 

LLG 2081 .......................................................... No (Qualifies under landing requirements) ...... Yes. 

LLG 3090 .......................................................... No (Not eligible for an endorsement) ............... Yes. 

Table 2 indicates that under this 

exemption, NMFS will issue 12 CG and 

three WG endorsements. An LLP license 

that receives a Pacific cod hook-and-line 

catcher/processor endorsement under 

this exemption can only be assigned to 

a vessel participating in the Pacific cod 

offshore sector that is fishing in the 

regulatory area of the GOA for which 

the endorsement is received. 

Regulations at § 679.2 define the inshore 

and offshore sector for Pacific cod. 

Current regulations assign the offshore 

sector of the GOA Pacific cod fishery 10 

percent of the TAC in the CG and WG. 

The remaining 90 percent of the TAC 

will be assigned for vessels in the 

inshore sector. 

In this rule, NMFS implements the 

Council’s recommendation that LLP 

licenses receiving an endorsement 

under this provision ‘‘only be allowed to 

participate in the offshore fishery’’ by 

requiring that vessels fishing in a 

regulatory area for which they receive 

an endorsement under this exemption 

register and fish only in the offshore 

sector in that area. 

The rule retains the requirement that 

vessel owners elect annually on their 

Federal Fisheries Permit application 

whether to participate in the inshore or 

the offshore sector of the GOA. 

Therefore, a vessel operator who is 

assigned an LLP license with a Pacific 

cod endorsement exemption cannot 

participate in the inshore sector in one 

regulatory area and the offshore sector 

in another regulatory area in the GOA 

during the same calendar year. 

This rule modifies regulations at 

§ 679.7 to clarify that once an LLP 

holder operates in either the inshore or 

the offshore sector in the GOA, any 

vessel to which that LLP license is 


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assigned cannot participate in the sector 

not selected for the remainder of the 

calendar year. This modification 

ensures that LLP license holders cannot 

alternate activities between the inshore 

and offshore sector, and potentially 

disadvantage other fishery participants 

who are only able to, or only choose to, 

annually participate in one sector. 

Additional detail on the inshore and 

offshore sector management is provided 

in the preamble to the proposed rule 

(see ADDRESSES). That discussion is not 

repeated here. 

Determining Landings Assigned to an 

LLP License 

Starting in 2002, NMFS has required 

that an LLP license designate a specific 

vessel on which it was being used. This 

requirement provides NMFS the 

information necessary to assign landings 

to a specific LLP, and allows NMFS to 

verify the use of an LLP license on a 

specific vessel. When information about 

the use of an LLP license on a specific 

vessel is combined with vessel landings 

records, NMFS can determine how 

many landings may be assigned to a 

specific LLP license during the January 

1, 2002, through December 8, 2008, 

qualifying period. If an LLP license is 

not assigned a sufficient amount or 

number of landings in a specific 

regulatory area by vessel operation type 

and gear type for that MLOA, then 

under this rule NMFS will not issue a 

Pacific cod endorsement for that LLP 

license, unless that LLP license is 

eligible for an exemption from landing 

requirements as previously described 

for specific hook-and-line catcher/ 

processor endorsed LLP licenses. 

If a vessel was designated on more 

than one LLP license at the time of a 

creditable landing, NMFS will assign 

the credit for any of the vessel’s 

landings to all LLP licenses assigned to, 

or ‘‘stacked,’’ on that vessel at that time. 

Therefore, NMFS may credit a single 

landing to more than one LLP license. 

Because NMFS’ catch accounting 

system does not indicate how specific 

landings should be assigned to multiple 

LLP licenses assigned to a vessel at the 

time a landing was made, this provision 

should resolve any potential disputes 

that could arise about the assignment of 

specific landings. 

In order to receive a Pacific cod 

endorsement for either the CG or WG, 

an LLP holder with a valid LLP license 

will have to either demonstrate that it 

had sufficient cumulative landings of 

Pacific cod for fishing years 2002 

through 2008, or that it landed a 

sufficient total amount of fish during 

that period, or that the LLP license 

holder qualifies for such an 

endorsement pursuant to the exception 

listed above. 

Action 2: Exempt Certain Vessels Using 

Jig Gear From the Requirement to Carry 

an LLP License 

The second action under this rule 

exempts vessels using jig gear in the 

GOA from the requirement to be 

assigned an LLP license, provided those 

vessels do not use more than five jigging 

machines, more than one line per 

machine, and more than 30 hooks on 

any one line. 

This exemption is similar to an 

exemption that currently applies to jig 

gear vessels operating in the BSAI. 

Regulations at § 679.4 exempt vessels 

less than 60 ft LOA using a maximum 

of five jig machines, no more than one 

line per jig machine, and no more than 

15 hooks per line, from the 

requirements of the LLP in the BSAI. 

The restrictions on jig gear are 

consistent with the gear allowed in the 

GOA state waters Pacific cod jig 

fisheries. State regulations allow the use 

of up to 150 hooks for vessels 

participating in the state GHL fishery. 

Jig gear operators who meet the 

landing threshold described under 

Action 1 will receive a Pacific cod 

endorsement for jig gear that allows a 

vessel using an LLP license with this 

endorsement to use more than five 

jigging machines, more than five lines, 

and more than 30 hooks per line. 

Additional detail on the rationale for 

the jig gear exemption is provided in the 

preamble to the proposed rule (see 

ADDRESSES). That discussion is not 

repeated here. 

Action 3: Modifies the MLOA of Certain 

LLP Licenses 

The third action under this rule 

modifies the MLOA specified on certain 

LLP licenses that are eligible to receive 

a Pacific cod endorsement under two 

different scenarios. 

The first modification applies if (1) an 

LLP license has a specified MLOA 

greater than or equal to 60 feet; (2) that 

LLP license was consistently assigned to 

a single vessel under 60 feet LOA from 

January 1, 2002, through December 8, 

2008; and (3) the vessel to which the 

LLP license was assigned met the 

landing thresholds applicable to LLP 

licenses with a specified MLOA under 

60 feet. If these criteria are met, NMFS 

will issue a Pacific cod endorsement for 

the applicable gear type to the LLP 

license but modify the MLOA of the LLP 

license to match the LOA of the vessel 

to which the LLP license was assigned. 

In no case can the resulting MLOA 

specified on the LLP license be greater 

than 60 feet. This modification ensures 

that vessel owners can continue to use 

the vessel and LLP licenses in the 

fisheries as they had during the January 

1, 2002, through December 8, 2008, time 

period and the LLP licenses receive a 

Pacific cod endorsement applicable to 

the length of the vessel to which the 

LLP license was assigned. This 

modification reduces the overall MLOA 

specified on those LLP licenses that 

meet these criteria. 

To determine the MLOA that will be 

specified on the LLP license, NMFS will 

use the LOA of the vessel to which the 

LLP license is assigned on the effective 

date of this rule. If the LLP holder 

disagrees with the LOA on file with 

NMFS and wishes to provide data to 

NMFS to establish a different LOA for 

the vessel, this rule requires that the 

LLP license holder provide a survey 

conducted by a naval architect or 

marine surveyor independent from the 

vessel owner or LLP license holder to 

verify the LOA of the vessel. A vessel 

owner has 90 days from the effective 

date of this rule to provide the survey 

to NMFS. NMFS will not assign a 

Pacific cod endorsement to an LLP 

license holder with a greater vessel LOA 

than that shown in NMFS’ record unless 

a timely independent survey was 

submitted and received by NMFS. If no 

survey is provided within the 90-day 

time frame, NMFS will reissue the LLP 

license with the MLOA equal to the 

LOA of the vessel to which the LLP 

license was assigned based on the LOA 

on file with NMFS. No LLP license that 

receives a Pacific cod endorsement 

under this provision can have an MLOA 

greater than 60 feet under any 

circumstance to ensure that the intent of 

the Council’s recommendation is met. 

This procedure provides an opportunity 

for an LLP license holder to amend 

NMFS’ official record consistent with 

the appeals process described below in 

this preamble. 

This exemption applies only if an LLP 

license had been continuously assigned 

to a vessel under 60 feet LOA during 

that period. The redesignation of the 

MLOA on an LLP license that qualifies 

under this provision effectively 

prohibits the use of that LLP license on 

larger vessels that may have greater 

harvest capacity, but allows smaller 

vessels that had been assigned that LLP 

license to continue to operate in the 

Pacific cod fishery. 

The second modification of an LLP 

MLOA applies if an LLP license (1) is 

eligible to receive a pot catcher vessel 

Pacific cod endorsement, and (2) has a 

specified MLOA of less than 50 feet. If 

these criteria are met, NMFS will 

redesignate the MLOA of those LLP 

licenses to be 50 feet. This modification 


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ensures that a limited number of vessel 

owners who had recently purchased 

vessels that are longer than the MLOA 

of the LLP license that is eligible to 

receive the Pacific cod endorsement can 

continue to use those LLP licenses on 

their longer vessels. This 

recommendation is consistent with the 

Council’s goals of providing continuing 

opportunities for recent fishery 

participants and minimizing the 

potential for active participants to 

expand effort in the GOA Pacific cod 

fishery. 

Additional detail on the rationale for 

both MLOA modifications is provided 

in the preamble to the proposed rule 

(see ADDRESSES). That discussion is not 

repeated here. 

Action 4: Allows Specific Community 

Entities To Request and Receive LLP 

Licenses With a Pacific Cod 

Endorsement 

The fourth action under this rule 

allows entities representing specific 

communities in the WG and CG to 

request a limited number of nontransferrable Pacific cod endorsed LLP 

licenses. NMFS will issue licenses that 

are endorsed for hook-and-line or pot 

gear with an MLOA of 60 feet. Once the 

community entity receives the LLP 

license, the community entity can 

assign that LLP license for use on a 

vessel designated by the entity. Prior to 

receiving the LLP license, the 

community entity eligible to receive the 

LLP license must submit a detailed plan 

describing how it will assign the LLP 

license to a specific vessel. 

Previously, the Council 

recommended, and the Secretary 

approved, Amendment 66 to the GOA 

FMP, which implemented management 

measures to provide harvest 

opportunities to specific communities 

in the GOA (April 30, 2004; 69 FR 

23681). Under Amendment 66, the 

Council defined a specific suite of 

smaller GOA communities that have 

historically participated in GOA 

fisheries but may lack some of the 

infrastructure and population base that 

could facilitate participation by 

residents of those communities in GOA 

fisheries, as compared to larger 

communities. Under Amendment 66, a 

community quota entity (CQE) was 

authorized to purchase halibut and 

sablefish quota share on behalf of the 

community it represents, and assign the 

resulting annual individual fishing 

quota (IFQ) to specific members of the 

community that meet minimum 

residency standards and other 

requirements. The CQE is intended to 

serve the interests of the community as 

a whole by providing access to fishery 

resources for residents of the 

community. 

Communities eligible under 

Amendment 66 (1) have a population of 

less than 1,500 and at least 20 persons 

based on the 2000 United States Census; 

(2) are located on the GOA coast of the 

North Pacific Ocean; (3) have direct 

saltwater access; (4) lack direct road 

access to communities with a 

population greater than 1,500 persons; 

(5) have historic participation in the 

halibut and sablefish fisheries; and (6) 

are listed in Table 21 to part 679. 

Seventeen communities that meet these 

criteria are located in the CG, and four 

communities are located in the WG. 

The Council chose to rely on the six 

criteria listed above under Amendment 

66 to determine coastal communities 

that may benefit from the ability to 

retain or expand participation 

opportunities in the GOA Pacific cod 

fishery for their residents. This rule 

provides the CQEs that represent these 

communities the opportunity to 

enhance their access to fishery resources 

by providing CQEs with a limited 

number of Pacific cod endorsed fixedgear LLP licenses. 

The Council recommended that if an 

eligible community in the CG or WG 

forms a CQE under existing regulations 

at § 679.41(l)(3), that CQE could apply 

to receive a specified number of Pacific 

cod endorsed fixed-gear LLP licenses. If 

a CQE submitted a complete application 

for LLP licenses, NMFS will issue the 

CQE new LLP licenses with the 

applicable gear and area endorsements. 

CQEs that have already formed and been 

approved by NMFS are eligible to apply 

to receive LLP licenses. 

If new CQE communities are 

identified that meet the criteria 

established under Amendment 66, the 

Council could choose to recommend 

that those communities be included as 

eligible to receive a Pacific cod 

endorsed LLP license if those CQEs 

represented a community in the CG or 

WG. Adding new CQE communities and 

specifying the number of Pacific cod 

endorsed LLP licenses that a community 

could receive would need to be 

undertaken in future rulemaking. In 

December 2010, the Council 

recommended that three additional 

communities be allowed to form CQE’s 

based on the fact that they meet the 

criteria established under Amendment 

66. Those communities would need to 

be added to the CQE eligibility list in 

Table 21 to part 679 under separate 

rulemaking. Only one of the three 

communities, Cold Bay, is located in the 

WG and would be eligible to receive a 

non-transferable Pacific cod endorsed 

LLP license. Cold Bay would not be 

eligible to receive an additional license 

until subsequent rule making is 

completed. 

The Council clarified that a CQE can 

request a Pacific cod endorsed LLP 

license only for the area in which that 

community is located. CQE 

communities in the WG could receive 

only WG endorsed LLP licenses, and 

CQE communities in the CG could 

receive only CG endorsed LLP licenses. 

In order to receive LLP licenses, the 

CQE must meet several requirements. 

Prior to requesting LLP licenses, the 

CQE must provide NMFS with a plan 

for soliciting and determining recipients 

of the LLP licenses issued to the CQE. 

Specifically, CQEs need to provide 

NMFS with (1) a statement describing 

the procedures that will be used to 

determine the distribution of LLP 

licenses to residents of the community 

represented by that CQE; (2) procedures 

used to solicit requests from residents to 

be assigned an LLP license; and (3) 

criteria used to determine the 

distribution of the use of LLP licenses 

among qualified community residents 

and the relative weighting of those 

criteria. 

Second, once the CQE has submitted 

the application to NMFS and the CQE 

has selected a potential recipient to use 

the LLP license, NMFS requires that the 

CQE provide a letter of authorization to 

the vessel operator listing the specific 

person(s) and the specific vessel eligible 

to use an LLP license held by the CQE 

during a calendar year. An LLP license 

issued to a CQE cannot designate more 

than one vessel per calendar year. The 

CQE can amend the authorization letter 

to add additional persons authorized to 

use the LLP license on a vessel. The 

person designated to use the LLP license 

issued to the CQE is required to be 

onboard the vessel while the vessel is 

used to directed fish for Pacific cod or 

any other species authorized by that 

license. A copy of the authorization 

letter and any amendments to the 

authorization letter must be provided to 

NMFS, and a copy of that authorization 

letter and any amendments must be 

maintained onboard the vessel assigned 

the CQE’s LLP license. Likewise, NMFS 

requires that the authorization letter be 

provided on or before the date that the 

LLP license is used on a vessel during 

a calendar year. Any amendments to the 

authorization to designate new 

authorized persons must be provided to 

NMFS prior to those persons using the 

CQE’s Pacific cod LLP. 

As part of this authorization letter, 

NMFS requires that the CQE attest that 

the persons authorized to use the LLP 

license meet residency requirements. 

Specifically, the CQE must attest that 


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the authorized person (1) is a citizen of 

the United States; and (2) has 

maintained a domicile in a CQE 

community in the CG or WG eligible to 

receive an LLP license endorsed for 

Pacific cod for the 12 consecutive 

months immediately preceding the time 

when the assertion of residence is made; 

and (3) is not claiming residency in 

another community, state, territory, or 

country, with an exception made for 

residents of the Village of Seldovia. 

Consistent with the definition of a 

resident under Amendment 66, 

residents of the Village of Seldovia shall 

be considered to be eligible community 

residents of the City of Seldovia for the 

purposes of eligibility to serve as an 

authorized vessel operator. 

These requirements ensure that 

residents of communities receive the 

benefits of the LLP licenses issued to 

CQEs. Only one vessel can use a specific 

LLP license issued to a CQE per year to 

eliminate the potential that an LLP 

license could be used on multiple 

vessels. A CQE may not designate more 

than one vessel in cases of vessel loss. 

Because a CQE can designate a new 

vessel each year prior to the start of the 

fishing season, the effect of restricting 

the use of an LLP to only one vessel per 

year would not be expected to be a longterm constraint on fishing operations. 

The CQE must provide an 

authorization letter assigning a specific 

vessel and designating the person(s) 

authorized use of the LLP license. The 

authorization letter requires that the 

CQE attest to individuals’ residency, but 

does not require individuals to submit 

proof of residency to NMFS in order to 

use the LLP license issued to the CQE. 

The Council identified the specific 

communities that would be eligible to 

receive LLP licenses if they formed a 

CQE. Those communities are listed in 

this final rule in Table 50 to part 679. 

Several limitations apply to any LLP 

license that a CQE would receive. These 

include (1) all LLP licenses issued are 

non-transferable; (2) a limited number of 

LLP licenses can be issued to each CQE; 

(3) the LLP licenses have an MLOA of 

60 feet; and (4) the LLP licenses have 

specific gear endorsements. 

The number of LLP licenses that each 

CQE can request on behalf of a 

community is based on information 

indicating the number of LLP licenses 

held by residents of each eligible 

community and the estimated number 

of LLP licenses that will be extinguished 

under the other provisions of this 

action. 

The number of LLP licenses that each 

CQE community can request is based on 

the Council’s December 2009 action, 

and that number is listed in this final 

rule at Table 50 to part 679. 

This rule modifies regulations at 

§ 679.7(i)(1)(i), which limit to 10 the 

maximum number of LLP licenses that 

a person may hold, to fully implement 

the Council’s intent to allow CQEs to 

provide harvest opportunities for local 

residents. This rule amends regulations 

at § 679.7(i) to prohibit the CQE 

representing the City of Sand Point from 

holding more than 14 groundfish LLP 

licenses, rather than prohibiting the 

CQE representing Sand Point from 

holding more than 10 groundfish LLP 

licenses. The limit on the number of 

LLP licenses that a CQE may hold 

includes all LLP licenses that a CQE 

may receive under the provisions of this 

rule, and any LLP licenses a CQE may 

receive by transfer under the provisions 

at § 679. The provision at 679.7(i)(1)(i) 

is specific to Sand Point and not for all 

CQE’s. 

The LLP licenses issued will have a 

specified MLOA of 60 feet. The gear 

endorsements on LLP licenses that can 

be requested by a CQE generally 

represent the overall harvest patterns by 

vessels using hook-and-line and pot gear 

within each regulatory area. NMFS will 

issue LLP licenses endorsed only for pot 

gear to CQEs representing communities 

in the WG. CQEs representing 

communities in the CG, including 

Yakutat, have the option of selecting 

what proportion of their LLP licenses 

would have a pot endorsement or a 

hook-and-line endorsement, provided 

the CQE notified NMFS within six 

months of the effective date of this rule 

of their choice. Selection of gear type is 

a one-time permanent choice. If a CQE 

does not notify NMFS within this time 

frame, then NMFS will issue any LLP 

licenses that are requested by a CQE so 

that half the LLP licenses issued to the 

CQE are endorsed for pot gear and half 

are endorsed for hook-and-line gear. In 

cases where the total number of 

groundfish licenses issued on behalf of 

a community listed in Table 50 to part 

679 is not even, NMFS will issue one 

more groundfish license with a pot gear 

Pacific cod endorsement than the 

number of groundfish licenses with a 

hook-and-line gear Pacific cod 

endorsement. 

CQEs must submit annual reports 

consistent with the annual report 

requirements established under 

Amendment 66. CQE annual reports 

must be submitted to NMFS and the 

governing body of the community that 

the CQE represents. The Council 

requested that the CQE provide 

information in the annual reports 

describing the use of LLP licenses 

during a calendar year. The annual 

report includes (1) the number of 

community residents requesting an LLP 

license from the CQE; (2) a description 

of the distribution of LLP licenses 

among community residents; (3) vessels 

assigned to use the LLP licenses; (4) the 

number and residency of crew 

employed on a vessel using the LLP 

license; and (5) the amount of payments 

made to CQEs for use of the LLP 

licenses, if any. These annual reports 

are due by January 31 for the prior 

fishing year for each community 

represented by the CQE for which those 

LLP licenses were granted. 

NMFS did not establish an appeal 

process for CQEs to receive LLP 

licenses. NMFS is not removing or 

otherwise restricting existing harvest 

opportunities available to CQEs, so no 

appeal process is required. This rule 

allows CQEs to request LLP licenses 

provided the specific requirements 

detailed here are met. If those 

conditions are not met, NMFS will not 

issue LLP licenses to the CQEs. A 

potential CQE does have an opportunity 

to challenge and appeal the decision to 

certify its designation for a specific 

community. That provision is described 

in regulation at § 679.41(l)(3). 

Additional detail on the issuance of 

Pacific cod endorsed LLP licenses to 

CQEs is provided in the preamble to the 

proposed rule (see ADDRESSES). That 

discussion is not repeated here. 

Process for Assigning New Pacific Cod 

Endorsements 

NMFS will create an official record 

with all relevant information necessary 

to assign landings to specific LLP 

licenses. Prior to modifying any LLP 

licenses, NMFS will notify all fixed gear 

LLP license holders of the status of their 

LLP license endorsements (i.e., the 

endorsements for specific fixed gear, 

operational types, and regulatory areas). 

Should an LLP license holder disagree 

with NMFS’ official record, NMFS will 

provide an opportunity for a person to 

submit information to rebut the 

presumptions made by NMFS. 

The official record created by NMFS 

contains vessel landings data, and the 

LLP licenses to which those landings 

are attributed. Evidence of the number 

and amount of landings in the Pacific 

cod fishery is based only on legally 

submitted NMFS weekly production 

reports for catcher/processors and state 

fish tickets for catcher vessels. In order 

to ensure that landings in the directed 

Pacific cod fishery are properly 

attributed to an LLP license, NMFS will 

assign any delivery of Pacific cod up to 

seven days after the closure of the 

Pacific cod season to an LLP license. 

The seven-day period accommodates 


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any final deliveries. The official record 

includes the records of the specific LLP 

licenses assigned to vessels and other 

relevant information necessary to 

attribute landings to specific LLP 

licenses. NMFS presumes the official 

record is correct, and a person wishing 

to challenge the presumptions in the 

official record bears the burden of proof 

through an evidentiary and appeals 

process. Regulations pertaining to 

appeals are described under § 679.43. A 

description of the official record and the 

appeals process is provided in the 

preamble to the proposed rule (see 

ADDRESSES). That discussion is not 

repeated here. 

Public Comment 

NMFS received two comments during 

the public comment period for 

Amendment 86 and the proposed rule. 

One comment provided a general 

criticism of fishery management, and 

was not relevant to Amendment 86 or 

the proposed rule. A second public 

comment noted that the proposed rule 

is consistent with the principles of 

Amendment 86, the needs, goals, and 

objectives of the GOA Pacific Cod fixed 

gear fishery, the Magnuson-Stevens 

Fishery Conservation and Management 

Act (MSA), and other applicable laws. 

Neither comment raised issues requiring 

a specific response. 

Changes From the Proposed Rule 

NMFS makes two changes in the final 

rule to clarify specific regulatory 

provisions that were addressed in the 

preamble to the proposed rule, but that 

were not adequately described in the 

regulatory text. The first change adds a 

paragraph at § 679.4(k)(10)(vi)(C)(9) to 

note that an LLP license with a Pacific 

cod endorsement issued to a CQE may 

not be assigned to more than one vessel 

per calendar year. This addition is 

consistent with text in the preamble and 

the Council’s motion to the proposed 

rule noting that ‘‘An LLP license issued 

to a CQE could not designate more than 

one vessel per calendar year’’ (July 23, 

2010; 75 FR 43127). The preamble to the 

proposed rule also notes: 

The Council recommended that only one 

vessel be allowed to use a specific LLP 

license issued to a CQE per year to reduce 

the potential that an LLP license could be 

used on multiple vessels. Allowing multiple 

vessels to use an LLP license in a given year 

could increase competition for Pacific cod 

resources in waters surrounding these 

communities. The Council did not 

recommend allowing a CQE to designate 

more than one vessel in cases of vessel loss. 

This restriction would not be expected to 

prevent the ability of community residents to 

access Pacific cod resources through a CQE 

LLP license because a minimum of two LLP 

licenses can be issued to any one CQE. 

Because a CQE can designate a new vessel 

each year prior to the start of the fishing 

season, the effect of restricting the use of an 

LLP to only one vessel per year would not 

be expected to be a long-term constraint on 

fishing operations. 

(July 23, 2010; 75 FR 43127) 

The added regulatory text at 

§ 679.4(k)(10)(vi)(C)(9) gives full effect 

to the clear intent expressed in the 

preamble to the proposed rule. This 

added regulatory text is consistent with, 

and a logical outgrowth of, the proposed 

rule. 

The second change to the regulatory 

text adds text at § 679.4(k)(10)(vi)(D) to 

specify that a CQE’s authorization letter, 

or any subsequent amendments to that 

letter, must be sent to NMFS. The added 

text also specifies the address where 

that letter must be sent. This addition is 

consistent with the text in the preamble 

to the proposed rule that notes: 

NMFS would require that a copy of the 

authorization letter and any amendments to 

the authorization letter be provided to NMFS, 

and a copy of that authorization letter and 

any amendments would need to be 

maintained onboard the vessel assigned the 

CQE’s LLP license. Likewise, NMFS would 

require that the authorization letter be 

provided on or before the date that the LLP 

license is used on a vessel during a calendar 

year. NMFS would also require that any 

amendments to the authorization to designate 

new authorized persons be provided to 

NMFS prior to those persons using the CQE’s 

Pacific cod LLP. 

(July 23; 2010, 75 FR 43127). 

The regulatory text in the proposed 

rule at § 679.4(k)(10)(vi)(D) noted that 

the CQE must provide a copy of the 

authorization letter and any 

amendments to that letter to the vessel 

operator, but failed to specify that 

NMFS must also receive the 

authorization letter and any 

amendments. This final rule clarifies the 

regulatory text at § 679.4(k)(10)(vi)(D) to 

specify that that NMFS must also 

receive the authorization letter and any 

amendments. This clarification is 

consistent with the clear intent 

expressed in the preamble to the 

proposed rule and is consistent with, 

and a logical outgrowth of, the proposed 

rule. 

Classification 

The Assistant Administrator for 

Fisheries, NOAA, has determined that 

this rule is consistent with Amendment 

86 to the Fishery Management Plan for 

Groundfish of the Gulf of Alaska, the 

MSA, and other applicable laws. 

Executive Order 12866 

This rule has been determined to be 

not significant for purposes of Executive 

Order 12866. 

Regulatory Flexibility Act 

A FRFA was prepared as required by 

section 604 of the Regulatory Flexibility 

Act (5 U.S.C. 604). The FRFA describes 

the economic impact this final rule will 

have on small entities. The EA/RIR/ 

FRFA prepared for this final rule is 

available from NMFS (see ADDRESSES). 

The FRFA for this action explains the 

need for, and objectives of, the rule; 

notes that no public comments on the 

initial regulatory flexibility analysis 

were submitted; describes and estimates 

the number of small entities to which 

the rule will apply; describes projected 

reporting, recordkeeping, and other 

compliance requirements of the rule; 

and describes the steps the agency has 

taken to minimize the significant 

economic impact on small entities, 

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 

considered by the agency that affect the 

impact on small entities was rejected. 

The need for and objectives of this 

action; a summary of the comments and 

responses; a description of the action, 

its purpose, and its legal basis; and a 

statement of the factual, policy, and 

legal reasons for selecting the alternative 

implemented by this action are 

described elsewhere in this preamble 

and are not repeated here. 

The proposed rule was published in 

the Federal Register on July 23, 2010 

(75 FR 43118). An Initial Regulatory 

Flexibility Analysis (IRFA) was 

prepared and described in the 

classification section of the preamble to 

the rule. The public comment period 

ended on September 7, 2010. NMFS 

received two comments from two 

individuals. None of the comments 

directly addressed the IRFA. 

The entities directly regulated by this 

action are holders of LLP licenses 

endorsed for fixed-gear activity who 

conducted directed fishing for Pacific 

cod in the GOA. NMFS estimates that 

under this rule a maximum of 956 

entities hold LLP licenses with fixedgear endorsements designated for 

catcher vessel or catcher/processor 

operations may be affected by this rule; 

of these, an estimated 908 small entities 

will be directly regulated by this action. 

The Small Business Administration 

(SBA) has established that a business 

involved in fish harvesting is a small 

business if it is independently owned 


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 15835 

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. NMFS is reviewing its small 

entity size classification for all catcher/ 

processors in the United States. 

However, until new guidance is 

adopted, NMFS will continue to use the 

annual receipts standard for catcher/ 

processors. Even if additional catcher/ 

processors would have been identified 

as small entities under a revised small 

entity size classification, NMFS would 

have analyzed the effect on small 

entities using the same methods that 

were used in the IRFA prepared for the 

proposed rule. NMFS considered the 

effects of the proposed rule and 

attempted to reduce costs to all directly 

regulated entities regardless of the 

number of small entities. 

The EA/RIR/FRFA (see ADDRESSES) 

prepared for this action analyzed 

projected reporting, recordkeeping, and 

other compliance requirements on 

directly regulated entities. Under this 

final rule, NMFS will require additional 

reporting, recordkeeping, and other 

compliance requirements. Specifically, 

CQEs must submit an application to 

receive fixed-gear LLP licenses endorsed 

for Pacific cod, the selection of fixed 

gear type by CQEs in the CG, a 

description of the methods used to 

assign any fixed gear LLP licenses 

received, a letter of authorization for 

persons using LLP licenses assigned to 

a CQE, and an annual report detailing 

the distribution and use of LLP licenses. 

In addition, persons who qualify to 

receive a fixed-gear endorsement for an 

LLP license that was used under 

specific conditions on a vessel that was 

less than 60 feet LOA must submit a 

vessel survey prior to receiving an 

endorsement on that LLP license if they 

disagree with existing LOA data held by 

NMFS. Existing recordkeeping and 

reporting requirements for registering 

vessels in the inshore or offshore sector, 

and the LLP appeals process have not 

been modified. 

The objective of this action is to limit 

the number of potential participants in 

Federal fixed-gear Pacific cod fisheries 

in the GOA by assigning and requiring 

Pacific cod endorsements on LLP 

licenses, and to provide additional fixed 

gear licenses that may be used on behalf 

of specific GOA communities. NMFS 

expects this action will reduce 

uncertainty for active participants and 

provide additional harvest opportunities 

for residents of specific communities in 

the Western and Central GOA and the 

community of Yakutat whose residents 

have historically participated in Central 

GOA fisheries. 

The Council’s preferred alternative for 

this action, as implemented by this final 

rule, will reduce the number of 

potential participants in the directed 

Pacific cod fishery using fixed gear. 

NMFS estimates that a total of 1,227 

fishery endorsements may be affected 

under this action. These fixed gear 

fishery endorsements are assigned to 

LLP licenses held by an estimated 956 

entities. As a result of this action, NMFS 

estimates that 376 fishery endorsements 

for directed fishing for Pacific cod will 

be issued. It is not possible to determine 

the precise number of the 956 entities 

that will continue to hold fishery 

endorsements for directed fishing for 

Pacific cod. 

As noted above, all or most of the 

entities that are directly impacted by 

this regulation are small entities. This 

action likely will not have a significant 

adverse impact on some of these entities 

relative to the status quo alternative. 

The EA/RIR/FRFA (see ADDRESSES) 

prepared for this action notes that this 

action removes latent LLP licenses, but 

would not be expected to adversely 

affect active participants in the fixed 

gear directed Pacific cod fishery. On 

balance, these changes are not likely to 

have a significant economic impact on 

an LLP license holder. 

The Council and NMFS considered 

and analyzed two alternative 

approaches for the management of 

Pacific cod fishing by non-trawl LLP 

licenses in the CG and WG in the EA/ 

RIR/IRFA: Alternative 1, status quo/no 

action; and Alternative 2, the preferred 

alternative, add a Pacific cod 

endorsement on the CG and WG GOA 

LLP licenses if minimum landing 

requirements are met. Alternative 2 

includes a provision to issue new 

Pacific cod endorsed fixed gear LLP 

licenses to non-profit CQEs, 

representing specific communities in 

the CG and WG. These two alternatives 

examined ranges of options for a varying 

range of landing criteria and 

mechanisms for assigning Pacific cod 

endorsements. These alternative landing 

criteria and mechanisms and the 

options examined in the context of these 

alternatives constitute the suite of 

‘‘significant alternatives’’ for this action 

for the purposes of the RFA. 

During the development of this 

action, the Council considered and 

rejected alternatives that would have 

allocated quota to specific fishery 

participants, or allocated a portion of 

the TAC to specific fishery sectors and 

gear types. These alternatives were 

considered to be overly broad to address 

the goal of limiting the potential entry 

of latent effort into the Pacific cod 

directed fishery. 

Compared with the status quo, 

Alternative 2, and the associated suite of 

elements and options comprising 

Alternative 2, minimizes adverse 

economic impacts on the directly 

regulated small entities. The action 

provides greater economic stability for 

fixed-gear LLP license holders with 

recent participation in the CG and WG 

Pacific cod fisheries. Alternative 2 

reduces the potential for substantial 

increases in fishing effort from latent 

LLP license holders, and provides 

additional harvesting opportunities for 

CQEs who hold fixed-gear LLP licenses. 

In no case are these combined impacts 

expected to be substantial. Alternative 2 

does not assign Pacific cod fishery 

endorsements to fixed-gear LLP licenses 

that have had little or no participation 

in Pacific cod fisheries in the CG and 

WG since 2002. Therefore, the effect of 

this action on those directly regulated 

entities is expected to be minimal. The 

effects should be minimal because the 

holders of latent LLP licenses are not 

expected to rely on the Pacific cod 

resource or have substantial revenue 

from this fishery given the lack of 

consistent participation in the fishery 

over a broad range of years. 

Furthermore, the addition of new 

Pacific cod endorsed fixed-gear licenses 

and the removal of LLP requirements for 

most vessels using jig gear may provide 

additional harvest opportunities for 

some catcher vessels in Federal waters. 

Many vessels currently active in state 

waters are catching fish assigned to the 

Federal TAC under the parallel fishery. 

It is not clear that these new Pacific cod 

endorsed fixed-gear licenses would 

substantially increase fishing effort. 

Although none of the alternatives are 

expected to have any significant 

economic or socioeconomic impacts, 

Alternative 2, the preferred alternative, 

minimizes the potential negative 


Emcdonald on DSK2BSOYB1PROD with RULES
15836 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 

impacts, such as less control over 

potential fishing effort in the GOA 

Pacific cod fishery and greater risk that 

the fishery could be subject to 

overharvest that could arise under 

Alternative 1, the status quo alternative. 

NMFS has posted a small entity 

compliance guide on its Web site at 

http://alaskafisheries.noaa.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. 

Collection-of-Information 

This rule contains a collection-ofinformation requirement subject to the 

Paperwork Reduction Act and which 

has been approved by OMB under 

Control Number 0648–0334. Public 

reporting burden per response is 

estimated to average four hours for an 

appeal of an initial administrative 

determination; 20 hours for a CQE to 

apply to receive an LLP license and 

select the applicable gear type of that 

license if that CQE is operating in the 

CG; 40 hours for the CQE annual report; 

1 hour to submit a letter of authorization 

for a vessel and vessel operator from a 

CQE; and 1 hour to submit a vessel 

length survey for LLP license holders 

who qualify for a Pacific cod 

endorsement for vessels less than 60 feet 

LOA under specific conditions. 

Estimates include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding this burden 

estimate, or any other aspect of this data 

collection, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSEES), by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. Notwithstanding any 

other provision of the law, no person is 

required to respond to, nor shall any 

person be subject to a penalty for failure 

to comply with, a collection of 

information subject to the requirements 

of the Paperwork Reduction Act, unless 

that collection of information displays a 

currently valid OMB control number. 

List of Subjects 

15 CFR Part 902 

Reporting and recordkeeping 

requirements. 

50 CFR Part 679 

Alaska, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: March 16, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, NMFS amends 15 CFR 

Chapter IX and 50 CFR Chapter VI as 

follows: 

TITLE 15—COMMERCE AND 

FOREIGN TRADE 

CHAPTER IX—NATIONAL OCEANIC AND 

ATMOSPHERIC ADMINISTRATION, 

DEPARTMENT OF COMMERCE 

PART 902—NOAA INFORMATION 

COLLECTION REQUIREMENTS UNDER 

THE PAPERWORK REDUCTION ACT: 

OMB CONTROL NUMBERS 

■ 1. The authority citation for part 902 

continues to read as follows: 

Authority: 44 U.S.C. 3501 et seq. 

■ 2. In § 902.1, in the table in paragraph 

(b), under the entry ‘‘50 CFR’’, add 

entries in alphanumeric order for 

‘‘679.7(a)(1),’’ ‘‘679.7(a)(7)(vii) through 

(ix), 679.7(n)(1)(iv)’’, ‘‘679.7(a)(12), 

679.7(k)(8)(i)’’, ‘‘679.7(a)(15),’’ 

‘‘679.7(a)(18), 679.7(n)(3)’’, 

‘‘679.7(a)(20),’’ ‘‘679.7(a)(21) and (22),’’ 

‘‘679.7(b)(2),’’ ‘‘679.7(d),’’ ‘‘679.7(f),’’ 

‘‘679.7(f)(8)(ii),’’ ‘‘679.7(i),’’ ‘‘679.7(k),’’ 

‘‘679.7(l),’’ ‘‘679.7(n),’’ ‘‘679.7(n)(4)(ii),’’ 

and ‘‘679.7(o)’’ to read as follows: 

§ 902.1 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act. 

* * * * * 

(b) * * * 

CFR part or section where the information collection requirement is located 

Current OMB control number (all numbers begin with 

0648–) 

*******

50 CFR 

*******

679.7(a)(1) ...................................................................................................................................................................... –0206. 

679.7(a)(7)(vii) through (ix), 679.7(n)(1)(iv) .................................................................................................................... –0334. 

679.7(a)(12), 679.7(k)(8)(i) ............................................................................................................................................. –0316. 

679.7(a)(15) .................................................................................................................................................................... –0206. 

679.7(a)(18), 679.7(n)(3) ................................................................................................................................................ –0445. 

679.7(a)(20) .................................................................................................................................................................... –0206 and –0514. 

679.7(a)(21) and (22) ..................................................................................................................................................... –0206, –0445, and –0514. 

679.7(b)(2) ...................................................................................................................................................................... –0206. 

679.7(d) ........................................................................................................................................................................... –0269. 

679.7(f) ............................................................................................................................................................................ –0269 and –0272. 

679.7(f)(8)(ii) ................................................................................................................................................................... –0272 and –0334. 

679.7(i) ............................................................................................................................................................................ –0334. 

679.7(k) ........................................................................................................................................................................... –0393. 

679.7(l) ............................................................................................................................................................................ –0513. 

679.7(n) ........................................................................................................................................................................... –0545. 

679.7(n)(4)(ii) .................................................................................................................................................................. –0330. 

679.7(o) ........................................................................................................................................................................... –0565. 

*******


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 15837 

TITLE 50—WILDLIFE AND FISHERIES 

CHAPTER VI—FISHERY CONSERVATION 

AND MANAGEMENT, NATIONAL OCEANIC 

AND ATMOSPHERIC ADMINISTRATION, 

DEPARTMENT OF COMMERCE 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

■ 3. The authority citation for 50 CFR 

part 679 continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1801 et 

seq.; 3631 et seq.; Pub. L. 108–447. 

■ 4. In § 679.4, 

■ a. Redesignate paragraphs (k)(2)(iii) 

and (k)(2)(iv) as paragraphs (k)(2)(iv) 

and (k)(2)(v); and paragraphs (k)(10) 

through (k)(12) as paragraphs (k)(11) 

through (k)(13); 

■ b. Revise paragraph (k)(3)(i), and 

paragraph (k)(9) heading; 

■ c. Add paragraphs (k)(2)(iii) and 

(k)(10). 

The additions and revisions read as 

follows: 

§ 679.4 Permits. 

* * * * * 

(k) * * * 

(2) * * * 

(iii) A vessel may use a maximum of 

five jig machines, one line per jig 

machine, and a maximum of 30 hooks 

per line, to conduct directed fishing for 

license limitation groundfish in the 

GOA without a groundfish license; 

* * * * * 

(3) * * * 

(i) Vessel MLOA—(A) General. A 

license may be used only on a vessel 

named on the license, a vessel that 

complies with the vessel designation 

and gear designation specified on the 

license, and a vessel that has an LOA 

less than or equal to the MLOA 

specified on the license; 

(B) Modification of license MLOA for 

groundfish licenses with a Pacific cod 

endorsement in the GOA. (1) A 

groundfish license with a specified 

MLOA less than or equal to 50 feet prior 

to April 21, 2011 that subsequently 

receives a Pacific cod endorsement in 

the GOA with a catcher vessel and pot 

gear designation as specified under 

paragraph (k)(10) of this section will be 

redesignated with an MLOA of 50 feet 

on the date that the Pacific cod 

endorsement is assigned to that 

groundfish license; 

(2) A groundfish license with a 

specified MLOA greater than or equal to 

60 feet: 

(i) That was continuously assigned to 

a single vessel less than 60 feet LOA 

from January 1, 2002, through December 

8, 2008; and 

(ii) That met the landing thresholds 

applicable for a groundfish license with 

a specified MLOA of less than 60 feet 

for the specific gear designation(s) and 

regulatory area(s) applicable to that 

groundfish license as described in 

paragraph (k)(10) of this section, will be 

redesignated with an MLOA equal to the 

LOA of the vessel to which that 

groundfish license was assigned from 

January 1, 2002, through December 8, 

2008, based on the LOA for that vessel 

in NMFS’ non-trawl gear recent 

participation official record on April 21, 

2011, or as specified by a marine survey 

conducted by an independent certified 

marine surveyor or naval architect 

provided that the license holder 

provides NMFS with a marine survey 

conducted by an independent certified 

marine surveyor or naval architect not 

later than 90 days after April 21, 2011 

that specifies the LOA of the vessel to 

which that groundfish license was 

assigned. 

(3) The MLOA specified on a 

groundfish license under paragraph 

(k)(3)(i)(B)(2) of this section may not 

exceed 60 feet. 

* * * * * 

(9) Pacific cod endorsements in the 

BSAI. * * * 

(10) Pacific cod endorsements in the 

Western and Central GOA—(i) General. 

In addition to other requirements of this 

part, and unless specifically exempted 

in paragraph (k)(10)(iv) of this section, 

a license holder must have a Pacific cod 

endorsement on his or her groundfish 

license to conduct directed fishing for 

Pacific cod in the Western Gulf of 

Alaska or Central Gulf of Alaska with 

hook-and-line gear, pot gear, or jig gear 

on a vessel using more than five jig 

machines, more than one line per 

machine, and more than 30 hooks per 

line. A license holder can only use the 

specific non-trawl gear(s) indicated on 

his or her license to conduct directed 

fishing for Pacific cod in the Western 

Gulf of Alaska or Central Gulf of Alaska. 

(ii) Eligibility requirements for a 

Pacific cod endorsement. This table 

provides eligibility requirements for 

Pacific cod endorsements on an LLP 

groundfish license: 

If a license holder’s license has a * * * 

And that license 

has an MLOA 

of * * * 

And the license holder 

harvested Pacific cod 

with * * * 

Then the license holder must 

demonstrate that he or 

she * * * 

From January 

1, 2002, 

through December 8, 

2008, in * * * 

To receive a Pacific cod endorsement that authorizes harvest in the directed Pacific cod 

fishery with * * * 

(A) Catcher vessel designation.< 60 feet ........... hook-and-line 

gear.

legally landed at least 10 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

hook-and-line gear in the Central Gulf of Alaska. 

(B) Catcher vessel designation.≥ 60 feet ........... hook-and-line 

gear.

legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

hook-and-line gear in the Central Gulf of Alaska. 

(C) Catcher vessel designation.< 60 feet ........... hook-and-line 

gear.

legally landed at least 10 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Western 

Gulf of Alaska.

hook-and-line gear in the 

Western Gulf of Alaska. 

(D) Catcher vessel designation.≥ 60 feet ........... hook-and-line 

gear.

legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Western 

Gulf of Alaska.

hook-and-line gear in the 

Western Gulf of Alaska. 

(E) Catcher vessel designation.< 60 feet ........... pot gear .......... legally landed at least 10 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

pot gear in the Central Gulf of 

Alaska. 

(F) Catcher vessel designation.≥ 60 feet ........... pot gear .......... legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

pot gear in the Central Gulf of 

Alaska. 

(G) Catcher vessel designation.< 60 feet ........... pot gear .......... legally landed at least 10 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Western 

Gulf of Alaska.

pot gear in the Western Gulf 

of Alaska. 


Emcdonald on DSK2BSOYB1PROD with RULES
15838 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 

If a license holder’s license has a * * * 

And that license 

has an MLOA 

of * * * 

And the license holder 

harvested Pacific cod 

with * * * 

Then the license holder must 

demonstrate that he or 

she * * * 

From January 

1, 2002, 

through December 8, 

2008, in * * * 

To receive a Pacific cod endorsement that authorizes harvest in the directed Pacific cod 

fishery with * * * 

(H) Catcher vessel designation.≥ 60 feet ........... pot gear .......... legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Western 

Gulf of Alaska.

pot gear in the Western Gulf 

of Alaska. 

(I) Catcher vessel designation.any .................... jig gear ........... at least one legal landing of 

Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

jig gear in the Central Gulf of 

Alaska. 

(J) Catcher vessel designation.any .................... jig gear ........... at least one legal landing of 

Pacific cod in the directed 

Pacific cod fishery.

the Western 

Gulf of Alaska.

jig gear in the Western Gulf of 

Alaska. 

(K) Catcher/Processor 

vessel designation.

any .................... hook-and-line 

gear.

legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

hook-and-line gear in the Central Gulf of Alaska. 

(L) Catcher/Processor 

vessel designation.

any .................... hook-and-line 

gear.

legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Western 

Gulf of Alaska.

hook-and-line gear in the 

Western Gulf of Alaska. 

(M) Catcher/Processor 

vessel designation.

any .................... pot gear .......... legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

pot gear in the Central Gulf of 

Alaska. 

(N) Catcher/Processor 

vessel designation.

any .................... pot gear .......... legally landed at least 50 mt 

of Pacific cod in the directed 

Pacific cod fishery.

the Central 

Gulf of Alaska.

pot gear in the Central Gulf of 

Alaska. 

(O) Catcher/Processor 

vessel designation.

any .................... jig gear ........... at least one legal landing in 

the directed Pacific cod fishery.

the Central 

Gulf of Alaska.

jig gear in the Central Gulf of 

Alaska. 

(P) Catcher/Processor 

vessel designation.

any .................... jig gear ........... at least one legal landing in 

the directed Pacific cod fishery.

the Western 

Gulf of Alaska.

jig gear in the Western Gulf of 

Alaska. 

(iii) Explanations for Pacific cod 

endorsements. (A) All eligibility 

amounts in the table at paragraph 

(k)(10)(ii) of this section will be 

determined based on round weight 

equivalents. 

(B) NMFS shall assign a legal landing 

to a groundfish license in an area based 

only on information contained in the 

official record described in paragraph 

(k)(10)(v) of this section. 

(C) Notwithstanding the eligibility 

amount in the table at paragraph 

(k)(10)(ii) of this section, NMFS shall 

assign a non-trawl Pacific cod 

endorsement with a catcher/processor 

and a hook-and-line gear designation in 

the regulatory areas specified to those 

groundfish licenses listed in Table 49 to 

part 679; 

(D) If a groundfish license meets the 

criteria described in paragraph 

(k)(3)(i)(B)(2) of this section and NMFS 

has redesignated the MLOA of that 

groundfish license based on those 

criteria, then NMFS may assign a nontrawl Pacific cod endorsement with the 

specific gear designation(s) and 

regulatory area(s) applicable to the 

redesignated MLOA of that groundfish 

license based on the eligibility criteria 

established in paragraph (k)(10)(ii) of 

this section; and 

(E) NMFS may issue groundfish 

licenses with non-trawl Pacific cod 

endorsements to CQEs as specified in 

paragraph (k)(10)(vi) of this section. 

(iv) Exemptions to Pacific cod 

endorsements. Any vessel exempted 

from the License Limitation Program at 

paragraph (k)(2) of this section. 

(v) Non-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 and 

amount of legal landings assigned to a 

groundfish license for purposes of the 

non-trawl gear designation participation 

requirements described in paragraph 

(k)(10)(ii) of this section; 

(2) All other relevant information 

necessary to administer the 

requirements described in paragraphs 

(k)(3)(i)(B) and (k)(10) of this section. 

(B) The official record is presumed to 

be correct. A groundfish license holder 

has the burden to prove otherwise. 

(C) Only legal landings as defined in 

§ 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) If more than one groundfish 

license holder is claiming the same legal 

landing because their groundfish license 

designated the vessel at the time that the 

legal landing was made, then each 

groundfish license for which the legal 

landing is being claimed will be 

credited with the legal landing. 

(E) 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 (IAD). 

(F) 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 the 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 with 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 § 679.43. A person who 


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 15839 

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. 

(vi) Issuance of non-trawl groundfish 

licenses to CQEs. (A) Each CQE that has 

been approved by the Regional 

Administrator under the requirements 

of § 679.41(l)(3) to represent a 

community listed in Table 50 to part 

679 may apply to receive groundfish 

licenses on behalf of the communities 

listed in Table 50 to part 679 that CQE 

is designated to represent. In order to 

receive a groundfish license, a CQE 

must submit a complete application for 

a groundfish license to the Regional 

Administrator, NMFS, P.O. Box 21668, 

Juneau, AK 99802. A CQE may not 

apply for, and may not receive, more 

than the maximum amount of 

groundfish licenses designated in the 

regulatory area specified for a 

community listed in Table 50 to part 

679. 

(B) The application for a CQE to 

receive a groundfish license must 

include: 

(1) Name of contact person(s) for the 

CQE, NMFS person number, permanent 

business mailing addresses, business 

phone, business e-mail, and business 

fax; 

(2) A statement describing the 

procedures that will be used to 

determine the distribution of LLP 

licenses to residents of the community 

represented by that CQE; 

(3) Procedures used to solicit requests 

from residents to be assigned an LLP 

license; 

(4) Criteria used to determine the 

distribution of the use of LLP licenses 

among qualified community residents 

and the relative weighting of those 

criteria; and 

(5) The gear designation of groundfish 

license for which the CQE is applying 

provided that the community for which 

the CQE is applying is eligible to receive 

a groundfish license designated for the 

Central Gulf of Alaska and the 

application to receive a groundfish 

license has been received by NMFS not 

later than six months after April 21, 

2011. 

(C) A groundfish license approved for 

issuance to a CQE by the Regional 

Administrator for a community listed in 

Table 50 to part 679: 

(1) May not be transferred to any 

person from the CQE; 

(2) Will have only the regional 

designation specified for that 

community as listed in Table 50 to part 

679; 

(3) Will have an MLOA of 60 feet 

specified on the license; 

(4) Will have only a catcher vessel 

designation; 

(5) Will receive only a non-trawl gear 

endorsement; 

(6) Will be assigned a Pacific cod 

endorsement with a non-trawl gear 

designation as specified in paragraph 

(k)(10)(vi)(D) of this section. 

(7) May not be assigned to any vessel 

other than the vessel specified for that 

groundfish license in the annual CQE 

authorization letter; 

(8) May not be assigned for use by any 

person(s) other than the person(s) 

specified for that groundfish license in 

the annual CQE authorization letter, or 

any subsequent amendment to that 

authorization letter that is made by the 

CQE provided that NMFS receives that 

amendment prior to that person using 

that groundfish license aboard a vessel; 

and 

(9) May not be assigned to more than 

one vessel per calendar year. 

(D) The CQE must provide a copy of 

the annual CQE authorization letter, and 

any subsequent amendment to that 

authorization letter that is made by the 

CQE to NMFS and the vessel operator 

prior to the person(s) designated in the 

authorization letter using that 

groundfish license aboard a vessel. The 

vessel operator must maintain a copy of 

the annual CQE authorization letter, and 

any subsequent amendment to that 

authorization letter that is made by the 

CQE onboard the vessel when that 

vessel is directed fishing for Pacific cod 

under the authority of that groundfish 

license. The authorization letter, and 

any subsequent amendment to that 

authorization letter must be sent to the 

Regional Administrator, NMFS, P.O. 

Box 21668, Juneau, AK 99802. 

(E) The CQE must attest in the annual 

CQE authorization letter, or any 

subsequent amendment to that 

authorization letter, that the person(s) 

using a groundfish license issued to a 

CQE: 

(1) Is a citizen of the United States; 

(2) Has maintained a domicile in a 

CQE community in the Central GOA or 

Western GOA eligible to receive an LLP 

license endorsed for Pacific cod for the 

12 consecutive months immediately 

preceding the time when the assertion 

of residence is made; and 

(3) Is not claiming residency in 

another community, state, territory, or 

country, except that residents of the 

Village of Seldovia shall be considered 

to be eligible community residents of 

the City of Seldovia for the purposes of 

eligibility to serve as an authorized 

person. 

(F) Non-trawl Pacific cod gear 

endorsements on groundfish licenses 

approved for issuance to CQEs by the 

Regional Administrator shall have the 

following gear designations: 

(1) NMFS will issue only pot gear 

Pacific cod endorsements for groundfish 

licenses with a Western Gulf of Alaska 

designation to CQEs on behalf of a 

community listed in Table 50 to part 

679. 

(2) NMFS will issue either a pot gear 

or a hook-and-line gear Pacific cod 

endorsement for a groundfish license 

with a Central Gulf of Alaska 

designation to CQEs on behalf of a 

community listed in Table 50 to part 

679 based on the application for a 

groundfish license as described in 

paragraph (k)(10)(vi)(B) of this section 

provided that application is received by 

NMFS not later than six months after 

April 21, 2011. If an application to 

receive a groundfish license with a 

Central Gulf of Alaska designation on 

behalf of a community listed in Table 50 

to part 679 is received later than six 

months after April 21, 2011, NMFS will 

issue an equal number of pot gear and 

hook-and-line gear Pacific cod 

endorsements for a groundfish license 

issued to the CQE on behalf of a 

community listed in Table 50 to part 

679. In cases where the total number of 

groundfish licenses issued on behalf of 

a community listed in Table 50 to part 

679 is not even, NMFS will issue one 

more groundfish license with a pot gear 

Pacific cod endorsement than the 

number of groundfish licenses with a 

hook-and-line gear Pacific cod 

endorsement. 

(G) By January 31, the CQE shall 

submit a complete annual report on use 

of groundfish licenses issued to the CQE 

for the prior fishing year for each 

community represented by the CQE to 

the Regional Administrator, NMFS, P.O. 

Box 21668, Juneau, AK 99802, and to 

the governing body of each community 

represented by the CQE as identified in 

Table 21 to this part. A complete annual 

report contains the following 

information: 

(1) The number of community 

residents requesting a groundfish 

license; 

(2) A description of the distribution of 

groundfish licenses among community 

residents; 

(3) Vessels assigned to use the 

groundfish licenses; 

(4) The number and residency of crew 

employed on a vessel using the LLP 

license; and 

(5) Any payments made to CQEs for 

use of the LLP licenses. Consistent with 


Emcdonald on DSK2BSOYB1PROD with RULES
15840 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 

the timeline required for submission of 

the CQE annual report for the use of 

halibut and sablefish IFQ, these annual 

reports are due by January 31 for the 

prior fishing year for each community 

represented by the CQE. 

* * * * * 

■ 5. In § 679.7, 

■ A. Paragraphs (a)(7)(vii) through 

(a)(7)(ix) are added; 

■ B. Paragraph (i)(1)(i) is revised; 

■ C. Paragraph (i)(1)(v) is added; and 

■ D. Paragraph (i)(10) is added 

The additions and revisions read as 

follows: 

§ 679.7 Prohibitions. 

* * * * * 

(a) * * * 

(7) * * * 

(vii) Operate a vessel in the ‘‘inshore 

component of the GOA’’ as defined in 

§ 679.2 during a calendar year if that 

vessel is used to directed fish for Pacific 

cod under the authority of a groundfish 

license with a Pacific cod endorsement 

in the regulatory area listed in Table 49 

to part 679. 

(viii) Use a vessel operating under the 

authority of a groundfish license with a 

Pacific cod endorsement to directed fish 

for Pacific cod in the GOA apportioned 

to the inshore component of the GOA as 

specified under § 679.20(a)(6) if that 

vessel has directed fished for Pacific cod 

in the GOA apportioned to the offshore 

component of the GOA during that 

calendar year. 

(ix) Use a vessel operating under the 

authority of a groundfish license with a 

Pacific cod endorsement to directed fish 

for Pacific cod in the GOA apportioned 

to the offshore component of the GOA 

as specified under § 679.20(a)(6) if that 

vessel has directed fished for Pacific cod 

in the GOA apportioned to the inshore 

component of the GOA during that 

calendar year. 

* * * * * 

(i) * * * 

(1) * * * 

(i) Hold more than 10 groundfish 

licenses in the name of that person at 

any time, except as provided in 

paragraphs (i)(1)(iii) and (i)(1)(v) of this 

section; 

* * * * * 

(v) The CQE representing the City of 

Sand Point may not hold more than 14 

groundfish licenses. 

* * * * * 

(10) Operate a vessel under the 

authority of an LLP license issued to a 

CQE to directed fish for Pacific cod in 

the GOA if the person specified for that 

groundfish license in the annual CQE 

authorization letter, or any subsequent 

amendment to that authorization letter, 

is not onboard the vessel. 

* * * * * 

■ 6. Tables 49 and 50 to Part 679 are 

added to read as follows: 

TABLE 49 TO PART 679—GROUNDFISH

LICENSES QUALIFYING FOR HOOKAND-LINE CATCHER/PROCESSOR ENDORSEMENT EXEMPTION

Groundfish 

license * * * 

Shall receive a Pacific cod 

endorsement with a catcher/ 

processor and a hook-andline designation in the following regulatory area(s) 

* * * 

LLG 1400 ....... Central Gulf of Alaska. 

LLG 1713 ....... Central Gulf of Alaska. 

LLG 1785 ....... Central Gulf of Alaska. 

LLG 1916 ....... Central Gulf of Alaska. 

LLG 2112 ....... Central Gulf of Alaska and 

Western Gulf of Alaska. 

LLG 2783 ....... Central Gulf of Alaska. 

LLG 2892 ....... Central Gulf of Alaska. 

LLG 2958 ....... Central Gulf of Alaska. 

LLG 3616 ....... Central Gulf of Alaska. 

LLG 3617 ....... Central Gulf of Alaska. 

LLG 3676 ....... Central Gulf of Alaska. 

LLG 4823 ....... Central Gulf of Alaska. 

LLG 2081 ....... Western Gulf of Alaska. 

LLG 3090 ....... Western Gulf of Alaska. 

TABLE 50 TO PART 679—MAXIMUM NUMBER OF GROUNDFISH LICENSES AND THE REGULATORY AREA SPECIFICATION OF

GROUNDFISH LICENSES THAT MAY BE GRANTED TO CQES REPRESENTING SPECIFIC GOA COMMUNITIES

Central GOA Pacific cod endorsed non-trawl groundfish license Western GOA Pacific cod endorsed non-trawl groundfish license 

Community 

Maximum 

number of 

groundfish 

licenses 

that may be 

granted 

Community 

Maximum 

number of 

groundfish 

licenses 

that may be 

granted 

Akhiok ........................................................................... 2 Ivanof Bay ..................................................................... 2 

Chenega Bay ................................................................ 2 King Cove ..................................................................... 9 

Chignik .......................................................................... 3 Perryville ....................................................................... 2 

Chignik Lagoon ............................................................. 4 Sand Point .................................................................... 14 

Chignik Lake ................................................................. 2 

Halibut Cove ................................................................. 2 

Karluk ............................................................................ 2 

Larsen Bay ................................................................... 2 

Nanwalek ...................................................................... 2 

Old Harbor .................................................................... 5 

Ouzinkie ........................................................................ 9 

Port Graham ................................................................. 2 

Port Lions ..................................................................... 6 

Seldovia ........................................................................ 8 

Tyonek .......................................................................... 2 

Tatitlek .......................................................................... 2 

Yakutat .......................................................................... 3 

[FR Doc. 2011–6723 Filed 3–21–11; 8:45 am] 

BILLING CODE 3510–22–P 


Emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Rules and Regulations 15841 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Part 230 

General Rules and Regulations, 

Securities Act of 1933 

CFR Correction 

In Title 17 of the Code of Federal 

Regulations, Parts 200 to 239, revised as 

of April 1, 2010, on page 686, in 

§ 230.501, following paragraph (e)(3), 

reinstate the Note to paragraph (e) to 

read as follows: 

§ 230.501 Definitions and terms used in 

Regulation D. 

* * * * * 

(e) * * * 

NOTE: The issuer must satisfy all the 

other provisions of Regulation D for all 

purchasers whether or not they are 

included in calculating the number of 

purchasers. Clients of an investment 

adviser or customers of a broker or 

dealer shall be considered the 

‘‘purchasers’’ under Regulation D 

regardless of the amount of discretion 

given to the investment adviser or 

broker or dealer to act on behalf of the 

client or customer. 

* * * * * 

[FR Doc. 2011–6830 Filed 3–21–11; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF HOMELAND 

SECURITY 

Bureau of Customs and Border 

Protection 

DEPARTMENT OF THE TREASURY 

19 CFR Part 141 

Entry of Merchandise 

CFR Correction 

In Title 19 of the Code of Federal 

Regulations, Parts 141 to 199, revised as 

of April 1, 2010, on page 6, the second 

general authority citation for part 141 is 

removed. 

[FR Doc. 2011–6840 Filed 3–21–11; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 179 

[Docket No. FDA–1999–F–0056; Formerly 

Docket No. 1999F–4372] 

Irradiation in the Production, 

Processing, and Handling of Food; 

Confirmation of Effective Date 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule; denial of requests for 

a stay of effective date and for a hearing; 

response to objections; confirmation of 

effective date. 

SUMMARY: The Food and Drug 

Administration (FDA) is denying 

requests for a hearing on the final rule 

that amended the food additive 

regulations to provide for the safe use of 

ionizing radiation for the control of 

Vibrio species and other foodborne 

pathogens in fresh or frozen molluscan 

shellfish. After reviewing objections to 

the final rule and requests for a hearing, 

FDA has concluded that the objections 

do not justify a hearing or otherwise 

provide a basis for revoking the 

regulation. FDA also is denying the 

request for a stay of the effective date of 

the amendment to the food additive 

regulations. 

DATES: The August 16, 2005, effective 

date for the final rule published at 70 FR 

48057 is confirmed. 

FOR FURTHER INFORMATION CONTACT: 

Lane A. Highbarger, Center for Food 

Safety and Applied Nutrition (HFS– 

255), Food and Drug Administration, 

5100 Paint Branch Pkwy., College Park, 

MD 20740, 301–436–1204. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Objections, Requests for a Hearing, and 

Requests for a Stay 

III. Standards for Granting a Hearing 

IV. Analysis of Objections and Response to 

Hearing Requests 

A. Studies on Animals Fed Clams 

B. Microbiological Safety of Molluscan 

Shellfish 

C. Reasonable Certainty of No Harm 

D. Factors Unique to Molluscan Shellfish 

E. Application of 100-Fold Safety Margin 

for 2-Alkylcyclobutanones 

F. Alleged Rejection of Published Evidence 

G. Alleged Warnings on Potential Risks 

H. Alleged Failure to Follow Critical 

Guidelines for Food Additives 

I. Wholesomeness 

J. FDA Review Memoranda 

K. Chemicals Formed in Irradiated Foods 

V. Summary and Conclusion 

VI. References 

I. Introduction 

FDA published a notice in the Federal 

Register of October 19, 1999 (64 FR 

56351), announcing the filing of a food 

additive petition (FAP 9M4682) by the 

National Fisheries Institute and the 

Louisiana Department of Agriculture 

and Forestry. In the Federal Register of 

August 16, 2005 (70 FR 48057), FDA 

issued a final rule permitting the 

irradiation of fresh or frozen molluscan 

shellfish for the control of Vibrio spp. 

and other food-borne pathogens. FDA 

based its decision on data in the petition 

and in its files. In the preamble to the 

final rule, FDA outlined the basis for its 

decision and responded to questions 

raised in several comments from Public 

Citizen and the Center for Food Safety 

(PC/CFS). The preamble to the final rule 

advised that objections to the final rule 

and requests for a hearing were due 

within 30 days of the publication date 

(i.e., by September 15, 2005). 

II. Objections, Requests for a Hearing, 

and Requests for a Stay 

Section 409(f)(1) of the Federal Food, 

Drug, and Cosmetic Act (the FD&C Act) 

(21 U.S.C. 348(f)(1)) provides that, 

within 30 days after publication of an 

order relating to a food additive 

regulation, any person adversely 

affected by such order may file 

objections, specifying with particularity 

the provisions of the order ‘‘deemed 

objectionable, stating reasonable 

grounds therefore, and requesting a 

public hearing upon such objections.’’ 

Under part 171 (21 CFR part 171) in 

§ 171.110 of the food additive 

regulations, objections and requests for 

a hearing are governed by part 12 (21 

CFR part 12) of FDA’s regulations. 

Under § 12.22(a), each objection must 

meet the following conditions: (1) Must 

be submitted on or before the 30th day 

after the date of publication of the final 

rule; (2) must be separately numbered; 

(3) must specify with particularity the 

provision of the regulation or proposed 

order objected to; (4) must specifically 

state each objection on which a hearing 

is requested; failure to request a hearing 

on an objection constitutes a waiver of 

the right to a hearing on that objection; 

and (5) must include a detailed 

description and analysis of the factual 

information to be presented in support 

of the objection if a hearing is requested; 

failure to include a description and 

analysis for an objection constitutes a 

waiver of the right to a hearing on that 

objection. 

Following publication of the final rule 

permitting the irradiation of fresh or 

frozen molluscan shellfish for the 


Emcdonald on DSK2BSOYB1PROD with RULES