41080 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

Issued on: August 10, 2009. 

Ronald L. Medford, 

Senior Associate Administrator for Vehicle 

Safety. 

[FR Doc. E9–19497 Filed 8–13–09; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0808011016–91210–04] 

RIN 0648–AX14 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands (Amendment 92) and 

Gulf of Alaska License (Amendment 

82) Limitation Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations to 

implement Amendment 92 to the 

Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area and 

Amendment 82 to the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska. This action removes 

trawl gear endorsements on licenses 

issued under the license limitation 

program in specific management areas if 

those licenses have not been used on 

vessels that met minimum recent 

landing requirements using trawl gear. 

This action provides exemptions to this 

requirement for licenses that are used in 

trawl fisheries subject to certain limited 

access privilege programs. This action 

issues new area endorsements for trawl 

catcher vessel licenses in the Aleutian 

Islands if minimum recent landing 

requirements in the Aleutian Islands 

were met. This action is intended to 

promote the goals and objectives of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, the 

Fishery Management Plans, and other 

applicable law. 

DATES: Effective September 14, 2009. 

ADDRESSES: Amendments 92 and 82, the 

Environmental Assessment (EA), 

Regulatory Impact Review (RIR), and the 

Final Regulatory Flexibility Analysis 

(FRFA) for this action are available from 

the NMFS Alaska Region website at 

http://www.alaskafisheries.noaa.gov. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted to NMFS Alaska 

Region and by e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Glenn Merrill, 907–586–7228. 

SUPPLEMENTARY INFORMATION: 

Background on the License Limitation 

Program 

NMFS manages the groundfish 

fisheries in the exclusive economic zone 

(EEZ) of the Bering Sea and Aleutian 

Islands Management Area (BSAI) and 

the Gulf of Alaska (GOA) under the 

fishery management plans (FMPs) for 

groundfish in the respective areas. The 

North Pacific Fishery Management 

Council (Council) prepared, and NMFS 

approved, the FMPs under the authority 

of the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act; 16 U.S.C. 1801 

et seq.). Regulations implementing the 

FMPs appear at 50 CFR part 679. 

General regulations governing U.S. 

fisheries also appear at 50 CFR part 600. 

The Council and NMFS have long 

sought to control the amount of fishing 

in the North Pacific Ocean to ensure 

that fisheries are conservatively 

managed and do not exceed established 

biological thresholds. One of the 

measures used by the Council and 

NMFS is the license limitation program 

(LLP) which limits access to the 

groundfish, crab, and scallop fisheries 

in the BSAI and GOA. The LLP is 

intended to limit entry into federally 

managed fisheries. For groundfish, the 

LLP requires that persons hold and 

assign a license to each vessel that is 

used to fish in federally managed 

fisheries, with some limited 

exemptions. The Council initially 

envisioned the LLP as an early step in 

a long-term plan to establish a 

comprehensive rationalization program 

for groundfish in the North Pacific that 

would ultimately assign tradable quotas 

to fishery participants that would 

provide them an exclusive access 

privilege to groundfish resources. These 

exclusive access programs are more 

commonly known as limited access 

privilege programs (LAPPs). 

The LLP for groundfish fisheries was 

recommended by the Council as 

Amendments 39 and 41 to the BSAI and 

GOA groundfish FMPs, respectively. 

The Council adopted the LLP for 

groundfish in June 1995, and NMFS 

approved Amendments 39 and 41 on 

September 12, 1997. NMFS published a 

final rule to implement the LLP on 

October 1, 1998 (63 FR 52642); and LLP 

licenses were required for federal 

groundfish fisheries beginning on 

January 1, 2000. The preamble to the 

final rule implementing the groundfish 

LLP and the EA/RIR/FRFA prepared for 

this rule describe the rationale and 

specific provisions of the LLP in greater 

detail (see ADDRESSES) and are not 

repeated here. The key components of 

the LLP are briefly summarized below. 

The LLP for groundfish established 

specific criteria that must be met to 

allow a person to use a vessel to 

directed fish in most federally managed 

groundfish fisheries. An LLP license 

must be assigned to each vessel that is 

used to participate in directed fishing 

for most federally managed groundfish 

species. The term directed fishing and 

the specific groundfish species for 

which an LLP license is required are 

defined in regulations at § 679.2. An 

exception to the requirement that an 

LLP license must be assigned to a vessel 

applies if the vessel is: less than 26 feet 

length overall (LOA) and fishing in the 

GOA; less than 32 feet LOA and fishing 

in the BSAI; using jig gear in the BSAI 

if the vessel is less than 60 feet LOA and 

deploys no more than five jigging 

machines; or specifically constructed for 

and used exclusively in Community 

Development Quota fisheries, and 

designed and equipped to meet specific 

needs that are described in regulations 

at § 679.4(k). 

Under the LLP, NMFS issued licenses 

that (1) endorse fishing activities in 

specific regulatory areas in the BSAI 

and GOA; (2) restrict the length of the 

vessel on which the LLP license may be 

used; (3) designate the fishing gear that 

may be used on the vessel (i.e., trawl or 

non-trawl gear designations); (4) 

designate the type of vessel operation 

permitted (i.e., LLP licenses designate 

whether the vessel to which the LLP is 

assigned may operate as a catcher vessel 

or as a catcher/processor); and (5) are 

issued so that the endorsements for 

specific regulatory areas, gear 

designations, or vessel operational types 

are non-severable from the LLP license 

(i.e., once an LLP license is issued, the 

components of the LLP license cannot 

be transferred independently). By 

creating LLP licenses with these 

characteristics, the Council and NMFS 

limited the ability of a person to assign 

an LLP license that was derived from 

the historic landing activity of a vessel 

in one area, using a specific fishing gear 

or operational type to be used in other 

areas, with different gears or operational 

types, in a manner that could expand 

fishing capacity. The preamble to the 

final rule implementing the groundfish 

LLP provides a more detailed 

explanation of the rationale for specific 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 41081 

provisions in the LLP (October 1, 1998; 

63 FR 52642). 

The regulatory areas for which LLP 

licenses were issued included the 

Bering Sea subarea (BS), Aleutian 

Islands subarea (AI), Southeast Outside 

District (SEO), Central Gulf of Alaska 

(CG), which includes the West Yakutat 

District, and Western Gulf of Alaska 

(WG). The documented harvest 

requirements necessary to receive an 

LLP license endorsed for a specific area 

differed depending on the size and the 

operational type of the vessel. For 

example, for a vessel owner to receive 

an endorsement for trawl gear in the CG 

with a catcher/processor designation, a 

vessel must have met the minimum 

documented harvest requirements in the 

CG using trawl gear and must have 

caught and processed those documented 

harvests onboard the vessel. NMFS did 

not issue any LLP licenses with a trawl 

endorsement in SEO because trawl gear 

is prohibited in SEO. Therefore, this 

action does not apply to the SEO 

management area. 

In 1999, NMFS issued groundfish LLP 

licenses with the appropriate regulatory 

area endorsements, gear, vessel length, 

and vessel operational type designations 

based on the documented harvests of 

vessels. LLP licenses were required for 

vessels participating in directed fishing 

for LLP groundfish species as of January 

1, 2000. NMFS issued over 300 LLP 

licenses endorsed for trawl gear for use 

in the BSAI and GOA. In many cases, 

trawl LLP licenses were endorsed for 

multiple regulatory areas (e.g., WG, CG, 

and BS) if a vessel met the minimum 

number of documented harvests in more 

than one area. Additionally, a number of 

trawl LLP licenses were designated for 

both trawl and non-trawl gear (i.e., 

hook-and-line, pot, or jig gear) if the 

vessel met the documented harvest 

requirements using both trawl and nontrawl gear. 

After LLP licenses were initially 

issued, NMFS became aware from 

public testimony and a review of 

landings data that a substantial number 

of trawl-endorsed LLP licenses were not 

being used for fishing in some, or all, of 

the regulatory areas for which they were 

endorsed. Changes in the economic 

viability of some fishing operations, 

changes in fishery management 

regulations, or consolidation of fishery 

operations were likely factors that 

affected the number of LLP licenses 

actively used by vessels. LLP licenses 

that are valid but are not currently being 

used on a vessel are commonly known 

as ‘‘latent’’ LLP licenses. 

In early 2007, the Council began 

reviewing the use of trawl-endorsed LLP 

licenses. This review was initiated 

primarily at the request of active trawl 

fishery participants who were 

concerned that latent trawl-endorsed 

LLP licenses could become active in the 

future and adversely affect their fishing 

operations. If the total allowable catch 

(TAC) or exvessel value of a fishery 

resource increased these factors could 

attract additional effort by trawl vessels. 

This increased effort could result in 

overcapacity in the fishery and make it 

more difficult for NMFS to close 

fisheries in a timely manner, potentially 

resulting in the TAC being exceeded for 

a fishery. During the process of this 

review, the Council also received input 

from the public requesting modification 

to the LLP to meet unique conditions in 

the AI area that limit the ability of 

catcher vessels to harvest, and specific 

AI area communities to process, 

federally managed groundfish. In April 

2008, after more than a year of review 

and extensive public comment, the 

Council recommended modifications to 

the LLP to revise eligibility criteria for 

trawl endorsements on LLP licenses. 

Notice of Availability and Proposed 

Rule 

NMFS published the notice of 

availability for Amendments 92 and 82 

on December 12, 2008 (73 FR 75659), 

with a public comment period that 

closed on February 10, 2009. NMFS 

published the proposed rule for this 

action on December 30, 2008 (73 FR 

79773), with a public comment period 

that closed on February 13, 2009. 

Amendments 92 and 82 were approved 

by NMFS on March 16, 2009. NMFS 

received eight public comments from 

three unique persons on Amendments 

92 and 82 and the proposed rule; these 

are summarized and responded to 

below. 

Changes to the LLP Program 

This rule implements two different 

actions. First, this rule removes certain 

latent trawl regulatory area 

endorsements on LLP licenses. With 

two exceptions, a trawl endorsement for 

a specific regulatory area is removed 

from an LLP license that has been 

assigned to a vessel that has not made 

a minimum of two landings using trawl 

gear in a specific regulatory area during 

the period 2000 through 2006. 

One exemption allows a person to 

retain a trawl endorsement on an LLP 

license for both the CG and the WG if 

the LLP license had been used on a 

vessel that made at least 20 landings 

using trawl gear in either the CG or WG 

from 2005 through 2007. The second 

exemption allows a person to retain a 

trawl endorsement in a specific 

regulatory area if that area endorsement 

is required for continued participation 

in one of three limited access privilege 

programs (LAPPs): the American 

Fisheries Act (AFA); the Amendment 80 

Program; or the CG Rockfish Program. 

Under this exemption, NMFS will not 

remove trawl endorsements in the BS or 

AI regulatory areas from LLP licenses 

that are assigned for use in the AFA or 

Amendment 80 LAPP, and NMFS will 

not remove trawl endorsements in the 

CG regulatory area from LLP licenses 

assigned for use in the CG Rockfish 

Program LAPP. This exemption would 

apply only to LLP licenses used in 

fisheries managed under these three 

LAPPs, because under NMFS’ 

regulations, fisheries managed under 

other LAPPs in the North Pacific (e.g., 

BSAI crab and BSAI halibut and fixedgear sablefish) cannot be fished by 

vessels using trawl gear. 

The second action under this rule is 

the issuance of new and additional 

trawl AI area endorsements for catcher 

vessel operations for use in the Aleutian 

Islands Subarea. Under this rule, NMFS 

will issue AI trawl endorsements based 

on the harvests of: (1) non-AFA catcher 

vessels less than 60 feet in LOA, if those 

vessels have made at least 500 metric 

tons (mt) of landings of Pacific cod 

harvested from State of Alaska (State) 

waters adjacent to the Aleutian Islands 

Subarea during 2000 through 2006; and 

(2) non-AFA catcher vessels equal to or 

greater than 60 feet LOA if those vessels 

have made at least one landing of fish 

harvested from State waters during the 

Federal groundfish season in the 

Aleutian Islands Subarea and have 

made at least 1,000 mt of Pacific cod 

landings harvested from the BSAI 

during 2000 through 2006. The rationale 

and effects of these two proposed 

actions are described in detail in the 

preamble to the proposed rule and the 

EA/RIR/FRFA supporting this action 

(see ADDRESSES) and are briefly 

summarized here. 

Action 1: Removing Latent Trawl LLP 

Licenses 

Use of Trawl LLP Endorsements 

Latent LLP licenses are inactive, but 

not invalid. Removing latent trawl LLP 

endorsements reduces the risk that in 

the future vessel operators could assign 

latent LLP licenses to trawl vessels, 

effectively reactivating those licenses 

and thereby increasing the amount of 

trawl effort in the groundfish fisheries. 

This additional effort could increase 

harvest rate in the trawl fishery, and 

adversely affect currently active 

participants by increasing competition, 

diluting their potential gross revenues 

and creating incentives for harvesters to 

mstockstill on DSKH9S0YB1PROD with RULES

41082 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

race for fish in a potentially wasteful 

manner. 

The Council considered a range of 

options and alternatives to determine 

the minimum number of landings 

required for a trawl LLP endorsement to 

remain valid. After a review of 

groundfish catch history and public 

testimony, the Council determined that 

two landings during the seven year 

period from 2000 through 2006 

represented a minimal, but sufficient, 

amount of participation in the trawl 

fisheries to indicate some level of 

dependence on trawl fishing. The 

Council recommended that this landing 

requirement apply to each regulatory 

area so that endorsements would be 

removed only for those regulatory areas 

where minimum landing requirements 

were not met. Therefore, LLP licenses 

that were active in more than one 

regulatory area might meet the 

minimum landing requirements in one 

area but not another. 

Determining the Number of Landings 

Assigned to an LLP License 

Beginning in 2002, NMFS required 

that an LLP license designate a specific 

vessel on which it was being used. This 

requirement allowed NMFS to assign 

landings to a specific LLP license 

without having to make any 

assumptions about the specific vessel to 

which the LLP license was assigned. If 

an LLP license is not assigned a 

sufficient number of landings in a 

specific regulatory area, NMFS would 

extinguish the trawl endorsement on 

that LLP license in that regulatory area. 

NMFS can verify use of an LLP license 

on a specific vessel after 2002. When 

combined with landings records, NMFS 

can determine how many landings may 

be assigned to a specific LLP license 

during a specific time frame. 

However, during the first two years of 

the LLP, 2000 and 2001, NMFS did not 

track the use of LLP licenses on specific 

vessels. Although LLP licenses were 

required to be onboard vessels, there is 

no independent data source to verify 

specific LLP licenses used on specific 

vessels during 2000 and 2001. NMFS 

will assume that the vessel that had the 

eligible landings for the original LLP 

license (i.e., the original qualifying 

vessel) used the LLP license during all 

of 2000 and 2001, unless an LLP license 

holder provides NMFS a clear and 

unambiguous contract or other written 

documentation to prove this assumption 

is incorrect. This assumption offers an 

LLP holder the opportunity to challenge 

NMFS’s official record, but a rebuttal of 

this assumption cannot be based merely 

on oral testimony or recollection, which 

NMFS considers to be insufficient 

evidence for purposes of this action. 

If a vessel was designated on more 

than one LLP license, NMFS will assign 

the credit for that landing to any LLP 

licenses assigned to, or ‘‘stacked,’’ on 

that vessel at the time of landing. 

Effectively, NMFS will credit a single 

landing to more than one LLP license. 

This provision ensures that in those 

cases in which more than one LLP 

license with a specific area endorsement 

was assigned to a vessel that made a 

landing, all LLP licenses assigned to 

that vessel at the time of landing would 

be credited with the landing. Because 

NMFS, and in many cases vessel owners 

and operators, did not specify how 

specific landings should be assigned to 

multiple LLP licenses assigned to a 

vessel at the time a landing was made, 

this provision will resolve any disputes 

that may arise about the assignment of 

specific landings by crediting all LLP 

licenses used on that vessel when a 

landing was made. 

Exemptions From the Minimum 

Landing Requirements 

Exemption 1: LLP Licenses Used on 

Vessels Active in the GOA 

This rule will retain a trawl 

endorsement on a catcher vessel LLP 

license in a regulatory area in the GOA 

(i.e., the CG or WG), if the LLP license 

was assigned to a vessel that made more 

than 20 landings in at least one of the 

regulatory areas of the GOA from 2005 

through 2007. This exemption allows 

catcher vessel LLP license holders who 

have demonstrated a substantial and 

recent dependence in the GOA to 

continue to hold an endorsement in 

both the CG and WG. Furthermore, this 

will allow active participants in the CG 

to keep their WG endorsements because 

the TACs for several groundfish species 

in the Western GOA have not been fully 

harvested in recent years. 

Exemption 2: Retaining Trawl 

Endorsements for LLP Licenses Assigned 

to LAPPs 

This rule exempts any LLP license 

that is assigned for use in the AFA, CG 

Rockfish Program, or the Amendment 

80 Program from the specific landing 

requirements in the regulatory areas for 

which that area endorsement is 

required. This exemption applies as 

follows: 

1. Exempt landing requirements for 

BS or AI area endorsements originally 

issued to LLP licenses for vessels 

qualified under the AFA, and any BS or 

AI area endorsement on an LLP license 

assigned to an AFA vessel not having 

any other LLP license assigned to that 

vessel as of the effective date of this 

rule. 

2. Exempt landing requirements for 

BS or AI area endorsements originally 

issued to LLP licenses for vessels that 

may generate quota share (QS) under the 

Amendment 80 Program. 

3. Exempt landing requirements for 

CG area endorsements on LLP licenses 

that are eligible to receive QS under the 

CG Rockfish Program. 

This exemption benefits the 

participants in the three LAPPs that 

have already met stricter requirements 

for these specific management areas to 

participate in these programs. A person 

must hold a valid LLP license with 

endorsements in specific regulatory 

areas to be eligible to participate in 

these LAPPs. The AFA and Amendment 

80 LAPPs require that a person assign 

an LLP license with a valid trawl 

endorsement in the BS or AI to a vessel 

eligible under those LAPPs. Similarly, 

under the CG Rockfish Program, a 

person must have an LLP license with 

a trawl endorsement in the CG to 

participate in that LAPP. Removing LLP 

licenses that do not meet specific 

landing requirements, but that are 

required to continue to receive 

exclusive harvest allocations for these 

LAPPs for which they are otherwise 

qualified, adversely affects LAPP 

participants. This is not the intent of 

this action. The intent of this action is 

to remove latent trawl endorsements. 

The net effect of this exemption is that 

AFA LLP licenses and LLP licenses 

originally issued to Amendment 80 

vessels that are eligible to generate QS 

are subject only to the CG and WG area 

endorsement landing requirements, and 

the CG Rockfish Program LLP licenses 

are subject only to the BS, AI, and WG 

area endorsement landing requirements. 

NMFS will determine which LLP 

licenses are eligible for this exemption 

from the landing requirements for each 

of the three LAPPs as follows: 

1. For the AFA, LLP licenses with a 

trawl gear designation with a BS or AI 

area endorsement that were originally 

issued based on the harvest activities of 

AFA vessels are exempt from the 

landing requirements. In addition, LLP 

licenses with a trawl gear designation 

with BS or AI area endorsements that 

were not originally issued based on the 

harvest activities of AFA vessels, but 

that are assigned to AFA vessels on the 

effective date of this regulation, are 

exempt from the landing requirements 

in the BS or AI. This exemption to the 

landing requirements applies to an LLP 

license only if no LLP licenses 

originally issued based on the harvest 

activities of AFA vessels are assigned to 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 41083 

that AFA vessel on the effective date of 

the rule. 

2. For the Amendment 80 Program, all 

LLP licenses with a trawl gear 

designation and with a BS or AI area 

endorsement that were originally issued 

based on the harvest activities of 

Amendment 80 vessels that may 

generate QS are exempt from the 

landing requirements in the BS or AI. A 

list of the Amendment 80 vessels that 

were used to harvest catch that may 

result in the issuance of QS under the 

Amendment 80 Program is provided in 

Column A of Table 31 to 50 CFR part 

679. The LLP licenses originally issued 

based on the harvest activities of those 

Amendment 80 vessels, and that are 

subject to this exemption are listed in 

Column C of Table 31 to 50 CFR part 

679. 

3. For the CG Rockfish Program, all 

LLP licenses with a trawl gear 

designation and with a CG area 

endorsement to which NMFS has 

assigned Rockfish QS are exempt from 

the landing requirements in the CG. 

This ensures that LLP licenses that were 

issued QS and are necessary to 

participate in the CG Rockfish Program 

can continue to be used in the CG and 

remain valid. 

Action 2: Adding Aleutian Island 

Endorsements to Non-AFA Trawl 

Catcher Vessel LLP Licenses 

Background on Aleutian Island 

Fisheries 

Congress, the Council, and NMFS 

have developed and implemented a 

series of programs in recent years that 

provide harvest opportunities for 

catcher vessels in the Aleutian Islands. 

They attempted to provide economic 

opportunities for harvesters and 

processors in the Aleutian Islands, 

specifically for the community of Adak. 

For example, section 803 of the 

Consolidated Appropriations Act of 

2004 (Public Law 108–199), allocates 

the Aleutian Islands directed pollock 

fishery to the Aleut Corporation, or its 

authorized agents, for the economic 

development of Adak. NMFS published 

a final rule to implement section 803 on 

March 1, 2005 (70 FR 9856). Also in 

2005, NMFS implemented the Crab 

Rationalization Program, a LAPP for 

BSAI crab fisheries (March 2, 2005, 70 

FR 10174) that allocates 10 percent of 

the TAC for Western Aleutian Islands 

golden king crab (Lithodes aequispinus) 

to a specific entity representing the 

community of Adak. The Crab 

Rationalization Program also places 

geographic delivery requirements on a 

portion of the remaining Western 

Aleutian Islands golden king crab TAC 

that favors processing in Adak and the 

nearby community of Atka. In 2007, 

NMFS implemented the Amendment 80 

Program which specifies that a portion 

of the Aleutian Islands Pacific ocean 

perch and Atka mackerel fisheries 

would be available for harvest by trawl 

catcher vessels. These vessels may 

choose to land their catch in Adak or 

Atka, but are not required to do so 

(September 14, 2007, 72 FR 52668). 

The State of Alaska also has 

established Pacific cod and sablefish 

fisheries in the State waters of the 

Aleutian Islands that are exclusively 

managed by the State and that provide 

harvesting and processing opportunities 

for vessels and processors based in 

Adak and the nearby community of 

Atka. These fisheries are managed based 

on a guideline harvest level (GHL) that 

is determined by the State. These Statemanaged fisheries are tailored to open 

after the close of the federally managed 

seasons. In addition, State fishery 

managers coordinate with NMFS to 

open and close State waters to fishing 

concurrently with openings and 

closings for the Federal seasons to 

harvest the Federal TAC. A Statemanaged fishery that occurs in state 

waters concurrently with a Federal 

fishery is called a ‘‘parallel fishery.’’ 

The coordinated parallel fishery in State 

waters allows harvesters to efficiently 

harvest the Federal TAC regardless of 

whether harvest occurs in State or 

Federal waters. 

Commercial fishing grounds often 

occur within State waters (i.e., within 3 

nautical miles of the coastline) on the 

narrow continental shelf around some of 

the Aleutian Islands because of the 

bathymetry of the region and the life 

histories of the target species; however, 

these fishery resources are also present 

in Federal waters. In recent years, many 

of the catcher vessels actively fishing in 

the Aleutian Islands and delivering their 

catch to Adak, and to a lesser extent, 

Atka, have harvested fish from State 

waters, either under the GHL during the 

State-managed Pacific cod fishery, or 

under the Federal TAC during the 

parallel fishery. Many of these vessels 

are not currently designated on an LLP 

license with an AI area endorsement. 

This action will assign new AI area 

endorsements to provide additional 

harvest opportunities to non-AFA trawl 

catcher vessels that have been active in 

State waters in the Aleutian Islands in 

recent years, but which are not 

designated on an LLP license with an AI 

area endorsement. These new AI area 

endorsements will be added to LLP 

licenses that name non-AFA trawl 

catcher vessels because those vessels 

have been active in the fisheries in the 

Aleutian Islands, and AFA LLP licenses 

that already hold AI area endorsements 

will continue to be eligible to use those 

LLP licenses to fish in the Aleutian 

Islands under the exemption to the 

landing requirements described earlier 

in this preamble. In particular, these 

new AI area endorsements will provide 

additional opportunities for catcher 

vessels to harvest and process Pacific 

cod in the Aleutian Islands. Pacific cod 

is the groundfish species most 

frequently targeted by non-AFA catcher 

vessels in the State GHL and parallel 

fisheries in the Aleutian Islands; 

therefore the Council used those 

landings as the basis for determining 

eligibility to receive an AI area 

endorsement. 

Two different types of AI area 

endorsements will be created. First, 

non-AFA trawl catcher vessels that are 

equal to or greater than 60 feet LOA, 

have made at least one landing in either 

the State GHL or parallel fishery, and 

have made at least 1,000 metric tons 

(mt) of Pacific cod landings harvested 

from the BSAI from 2000 through 2006 

will be eligible to receive an AI area 

endorsement on the LLP licenses that 

name these vessels. Second, non-AFA 

trawl catcher vessels that are less than 

60 feet LOA and that have made at least 

500 mt of Pacific cod landings harvested 

from the parallel fishery, but not the 

Stage GHL fishery, from 2000 through 

2006 would be eligible to receive an AI 

endorsement on the LLP licenses that 

name these vessels. NMFS will assign 

these new AI endorsements to the LLP 

licenses that designate eligible vessels at 

the time of the effective date of this rule. 

The EA/RIR/FRFA estimates that eight 

AI area endorsements will be issued 

based on the catch history of vessels less 

than 60 feet LOA, and four AI area 

endorsements will be issued based on 

the catch history of vessels equal to or 

greater than 60 feet LOA (see 

ADDRESSES). 

As discussed above, different 

qualification criteria apply for catcher 

vessels less than 60 feet LOA and those 

equal to or greater than 60 feet LOA. 

Vessels less than 60 feet LOA are 

typically adapted to fish in multiple 

fisheries using multiple gear types and 

are subject to a different range of 

monitoring, enforcement, 

recordkeeping, and reporting 

requirements under existing regulations 

than are vessels equal to or greater than 

60 feet LOA. In addition, LLP licenses 

initially issued based on the 

documented landings of vessels less 

than 60 feet LOA cannot be used on 

vessels greater than 60 feet LOA. 

Because of the operational and 

regulatory distinctions applicable to 

mstockstill on DSKH9S0YB1PROD with RULES

41084 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

vessels less than and equal to or greater 

than 60 feet LOA, the Council 

recommended different criteria be 

applied to determine whether an AI 

trawl endorsement would be issued to 

vessels based on their size. The 

preamble to the proposed rule contains 

an extensive discussion of the rationale 

for this action, and is not repeated here. 

In addition, the Council 

recommended that the new AI area 

endorsements based on the landings of 

vessels less than 60 feet LOA should be 

severable and transferable from the 

overall LLP license. However, the 

Council clarified that these AI area 

endorsements may be reassigned only to 

a trawl catcher vessel LLP license with 

a maximum length overall (MLOA) of 

less than 60 feet in order to ensure that 

these endorsements would be used on 

small vessels in the Aleutian Islands. 

During deliberations, the Council noted 

that the less than 60–foot catcher vessel 

fleet is more reliant on multi-species 

operations than are vessels greater than 

60 feet; and most of the under 60–foot 

vessel operators also hold LLP licenses 

that are endorsed for trawl fisheries in 

other regulatory areas. These vessel 

operators must balance a variety of 

fishing opportunities in other areas (e.g., 

WG or CG) and may choose not to fish 

in the AI if conditions are not favorable. 

Vessels choosing to not fish in the AI 

could reduce potential economic 

benefits to processors in Adak or in 

other locations in the Aleutian Islands. 

However, if an LLP license holder were 

issued an AI area endorsement that 

could be transferred independently of 

the LLP license to which it was 

originally assigned, and at some point 

the LLP license holder decides to no 

longer fish in the Aleutian Islands, there 

could be increased incentive to sell the 

AI area endorsement, apart from the LLP 

license. Allowing the AI area 

endorsement to be severable from the 

LLP license to which it is originally 

assigned would avoid a situation in 

which AI endorsements would be 

irrevocably tied to LLP licenses that 

were not being used on vessels 

operating in the Aleutian Islands. The 

Council concluded that allowing 

severable AI endorsements would not 

lead to excess effort in the AI regulatory 

area. 

The Council determined that the 

ability to sever endorsements for LLP 

license was not necessary for the AI area 

endorsements derived from vessels that 

are equal to or greater than 60 feet LOA. 

As noted earlier, the Council sought to 

balance the objectives of reducing latent 

fishing capacity in the first action 

included in this rule with the goal of 

providing additional harvesting and 

processing alternatives in the Aleutian 

Islands. 

Assigning an AI Area Endorsement to a 

Specific LLP License 

Because the landing criteria to qualify 

for an AI area endorsement are 

primarily based on landings with fish 

caught within State waters, some 

qualifying landings have been made by 

vessels that did not have LLP licenses 

assigned to them at the time the 

landings were made. Vessels fishing 

exclusively within the jurisdiction of 

the State in State waters are not under 

the jurisdiction of the Council and so 

are not required to be assigned an LLP 

license. Therefore, NMFS will use two 

methods to assign any new AI area 

endorsements to an LLP license to 

ensure that there is a linkage between 

the landings made by a non-AFA 

catcher vessel that fished in State waters 

and a specific LLP license. 

The first method is applicable to nonAFA catcher vessels less than 60 feet 

LOA that meet the requisite minimum 

500 mt landings requirement to receive 

an AI endorsement. NMFS will assign 

an AI endorsement based on the 

landings of a non-AFA trawl catcher 

vessel to an LLP license that 1) 

designates that non-AFA vessel on the 

effective date of this regulation; 2) was 

not derived in whole or in part from the 

qualifying fishing history of an AFA 

vessel; 3) has a trawl gear designation; 

4) does not have a catcher/processor 

vessel designation; 5) does not have an 

MLOA equal to or greater than 60 feet; 

and 6) has at least 500 mt of Pacific cod 

landings using trawl gear harvested 

from the parallel fishery adjacent to the 

Aleutian Islands Subarea during the 

period from January 1, 2000, through 

December 31, 2006. 

The second method is applicable to 

non-AFA catcher vessels equal to or 

greater than 60 feet LOA that meet the 

requisite minimum 1,000–mt-landings 

requirement to receive an AI area 

endorsement. NMFS will assign an AI 

area endorsement based on the landings 

of a non-AFA trawl catcher vessel to an 

LLP license that 1) designates that nonAFA vessel on the effective date of this 

regulation; 2) was not derived in whole 

or in part from the qualifying fishing 

history of an AFA vessel; 3) has a trawl 

gear designation; 4) does not have a 

catcher/processor vessel designation; 

and 5) has at least 1,000 mt of landings 

of Pacific cod using trawl gear harvested 

from the BSAI made under the authority 

of that LLP license during the period 

from January 1, 2000, through December 

31, 2006, according to the official record 

created by NMFS. 

These requirements would ensure that 

the AI area endorsement is assigned to 

an LLP license that can only be used on 

a non-AFA trawl catcher vessel 

consistent with the Council’s intent. 

NMFS will establish a rebuttable 

presumption that an AI area 

endorsement will be assigned to the LLP 

license that designates the non-AFA 

trawl catcher vessel on the effective date 

of this rule. This presumption ensures 

that an AI area endorsement is issued to 

a specific LLP license that is actively 

being used on the vessel that met the 

requisite landing requirements. 

If the official record shows that, on 

the effective date of this rule, the owner 

of a vessel that meets the AI 

endorsement landing criteria does not 

hold an LLP license to which an AI area 

endorsement may be assigned, the 

vessel owner will have the opportunity 

to provide additional information and 

challenge NMFS’s presumption to 

designate an otherwise eligible LLP 

license. Similarly, if the vessel owner 

disagrees with NMFS’s designation of 

the LLP license to which the AI area 

endorsement is assigned, the vessel 

owner will have the opportunity to 

provide additional information and 

challenge NMFS’s designation and have 

the AI area endorsement assigned to an 

otherwise eligible LLP license. Should 

the owner of a vessel meeting the AI 

endorsement requirements subsequently 

receive an LLP license (i.e., purchase an 

LLP license) that is otherwise eligible to 

be assigned an AI endorsement (i.e., it 

is a non-AFA, trawl catcher vessel 

endorsed LLP license with the 

appropriate MLOA), the vessel owner 

can request that NMFS assign the AI 

endorsement to that LLP license. 

Otherwise, NMFS will assign the AI 

endorsement to the LLP license 

specified in the amended official record. 

Transfers of AI Endorsements 

Only LLP AI area endorsements for 

vessels less than 60 feet LOA are 

transferrable separate from the LLP. To 

facilitate the transfers, NMFS modified 

LLP license transfer regulations at 

§ 679.4(k)(7) to clarify the process for 

transferring an AI area endorsement 

independent of the LLP license. NMFS 

specified that a new AI area 

endorsement may be transferred from 

the LLP license to which it was 

originally issued to another LLP license 

that (1) was not derived in whole or in 

part from the qualifying fishing history 

of an AFA vessel; (2) has a catcher 

vessel designation; (3) has a trawl gear 

designation; (4) has an MLOA of less 

than 60 feet LOA; and (5) has an MLOA 

that is not longer than the MLOA 

designated on the LLP license to which 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 41085 

that AI endorsement was originally 

issued. These limitations would meet 

the Council’s intent to provide 

opportunities for LLP licenses used on 

smaller non-AFA catcher vessels. 

The voluntary transfer process for an 

AI area endorsement is similar to the 

procedures currently in place for 

transferring an LLP license. First, a 

person seeking to transfer an AI area 

endorsement must submit a complete 

transfer application for an LLP license 

to the Regional Administrator as 

described under § 679.4(k)(7). As part of 

that application process, the person 

must specify the specific LLP license to 

which the transferred AI area 

endorsement will be assigned. NMFS 

will not approve the transfer unless the 

AI area endorsement was assigned for 

transfer to an LLP license that met the 

five requirements specified above. 

This rule also will modify LLP license 

transfer regulations at § 679.4(k)(7)(v) to 

clarify that the Regional Administrator 

will transfer an AI area endorsement 

based on a court order, operation of law, 

or a security agreement if the Regional 

Administrator determines that the 

transfer application is complete and the 

transfer will not otherwise violate any of 

the provisions relating to LLP license 

transfers. This change is necessary to 

ensure that AI endorsements are treated 

in the same manner that applies to LLP 

licenses in general. 

NMFS will apply the same limitations 

on the number of transfers of AI area 

endorsements that currently exist for 

LLP licenses. This limitation ensures 

that AI endorsements are not traded in 

a manner that could substantially 

increase the potential number of vessels 

actively fishing in the AI area, and 

would subject AI endorsements to the 

same transfer restrictions applicable to 

LLP licenses. Specifically, an AI area 

endorsement can be voluntarily 

transferred only once in any calendar 

year. A voluntary transfer is a transfer 

other than one pursuant to a court order, 

operation of law, or a security 

agreement. NMFS will not approve an 

application for transfer that will cause a 

person to exceed the transfer limit of 

this provision. NMFS will consider any 

transfer of an AI endorsement from one 

LLP license to another LLP license, or 

the transfer of an LLP license to which 

an AI endorsement is affixed, as a 

voluntary transfer of an AI endorsement. 

This provision is consistent with the 

Council’s intent to limit the transfer of 

AI area endorsements in the same 

manner as those applicable to LLP 

licenses. 

Process for Removing Latent Trawl 

Endorsements and Assigning New AI 

area Endorsements 

NMFS will create an official record 

with all relevant information necessary 

to assign landings to specific LLP 

licenses. As explained earlier in this 

preamble, NMFS did not track the use 

of specific LLP licenses onboard specific 

vessels during 2000 and 2001. Because 

NMFS cannot assign landings made 

aboard specific vessels to specific LLP 

licenses during this time period, NMFS 

will assume that any landings made by 

a vessel during 2000 and 2001 will be 

assigned to the LLP license derived from 

that vessel. Prior to modifying any LLP 

licenses, NMFS will notify all trawl LLP 

license holders of the status of their LLP 

license endorsements (i.e., whether they 

will retain or lose their endorsements 

for specific regulatory areas, or will be 

eligible to receive an AI area 

endorsement). Should an LLP license 

holder disagree with NMFS’s official 

record, NMFS will provide an 

opportunity for any person to submit 

information to rebut the assumptions 

made by NMFS. 

The official record created by NMFS 

will contain vessel landings data and 

the LLP licenses to which those 

landings would be attributed. Evidence 

of the number and amount of landings 

would be based only on legally 

submitted NMFS weekly production 

reports for catcher/processors and State 

fish tickets for catcher vessels. 

Historically, NMFS has only used these 

two data sources to determine the 

specific amount and location of 

landings, and NMFS will continue to do 

so under this action. The official record 

will also include the records of the 

specific LLP licenses assigned to vessels 

and other relevant information 

necessary to attribute landings to 

specific LLP licenses. NMFS will 

presume the official record is correct, 

and a person wishing to challenge the 

presumptions in the official record will 

bear the burden of proof through an 

evidentiary and appeals process. 

NMFS will mail a notification to each 

trawl LLP license holder to the address 

on record at the time the notification is 

sent about the status of each regulatory 

area endorsement for that LLP license. 

NMFS will provide a single 30–day 

evidentiary period from the date that 

notification is sent for an LLP holder to 

submit any supporting information, or 

evidence, to verify that the information 

contained in the official record is 

inconsistent with his or her records. 

An LLP license holder who submits 

claims that are inconsistent with 

information in the official record will 

have the burden of proving that the 

submitted claims are correct. NMFS will 

not accept inconsistent claims unless 

verified by clear written documentation. 

NMFS will evaluate the additional 

information or evidence to support an 

LLP license holder’s inconsistent claims 

submitted from the effective date of this 

regulation and within the 30–day 

evidentiary period. If NMFS determines 

that the additional information or 

evidence proves that the LLP license 

holder’s inconsistent claims were 

indeed correct, NMFS will act in 

accordance with that information or 

evidence. However, if after the 30–day 

evidentiary period, NMFS determines 

that the additional information or 

evidence did not prove that the LLP 

license holder’s inconsistent claims 

were correct, NMFS will deny the claim. 

NMFS will notify the applicant that the 

additional information or evidence did 

not meet the burden of proof to 

overcome the official record through an 

initial administrative determination 

(IAD). An applicant can appeal an IAD. 

The appeals process is described under 

§ 679.43. A person who appeals an IAD 

will be eligible to use the disputed LLP 

license with the endorsements listed on 

the LLP license until final action by 

NMFS on the appeal. NMFS will reissue 

any LLP licenses pending final action by 

NMFS as interim LLP licenses. NMFS 

will prohibit the transfer of an interim 

LLP license until the appeal is resolved. 

If a person does not dispute the 

notification of changes in their LLP 

license endorsements, or upon the 

resolution of any inconsistent claims, a 

revised LLP license with the appropriate 

endorsements will be reissued to the 

LLP license holder. In cases where all 

endorsements on a LLP license with 

only a trawl endorsement are 

extinguished, NMFS will not reissue the 

LLP license because it would no longer 

be valid for use with trawl gear in any 

management area. 

Housekeeping Revisions to LLP Transfer 

Application and Permit Regulations 

This rule modifies regulations at 

§ 679.4(k)(7)(iii) to consolidate and 

clarify the regulations describing the 

contents of the LLP transfer application. 

In addition, this rule modifies the 

regulations at § 679.7(i)(2) through (5), 

and § 679.7(i)(8)(i) to replace the 

requirement that a person must have the 

original LLP license onboard to conduct 

directed fishing for license limitation 

groundfish, fish for LLP crab or scallops, 

or process those species with a 

requirement that a legible copy of the 

license will suffice. 

mstockstill on DSKH9S0YB1PROD with RULES

41086 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

Response to Comments 

Comment 1: NMFS should consider a 

wider range of documentary evidence to 

establish that a vessel made the 

requisite qualifying landings. The 

commenter notes NMFS will consider 

only legal landings that are documented 

on State of Alaska (State) fish tickets or 

NMFS weekly production reports as the 

basis for establishing whether a specific 

LLP license meets the requirements to 

retain its trawl endorsements. Because a 

legal landing had to be properly 

recorded on a State fish ticket or weekly 

production report, the ability of a 

person to use other documentation to 

challenge NMFS’s official record for 

determining whether an LLP license 

meets the qualification is meaningless. 

Although legal landings must be 

recorded on a State fish ticket or weekly 

production report, other documentary 

evidence establishing that landings were 

recorded but not in NMFS’s official 

record should be accepted. State of 

Alaska law limits the ability of a vessel 

owner to review State fish ticket records 

without the consent of the vessel 

skipper, thereby limiting the ability of a 

person to challenge NMFS’s official 

record based on those records. 

Therefore, a person’s right to challenge 

NMFS’s official record is meaningless 

and a violation of due process 

privileges. 

Response: NMFS has used State fish 

tickets and NMFS weekly production 

reports as the most reliable and accurate 

information to establish landings in a 

variety of programs (e.g., Amendment 

80 Program, and Central GOA Rockfish 

Program). The commenter does not 

propose that NMFS should use other 

sources for establishing a legal landing, 

but that NMFS should accept other 

information that a landing occurred but 

that landing was not, for whatever 

reason, properly submitted to NMFS or 

is not otherwise available in NMFS’s 

official record. If NMFS and the 

commenter agree that only State fish 

tickets or NMFS weekly production 

reports should be used to certify a 

landing, then it is not clear how any 

other information could be considered 

as evidence of a landing. 

NMFS will provide an LLP holder 

with the opportunity to submit 

information, including other 

documentary evidence, to challenge 

NMFS’s official record. Even though 

other documentary evidence is not proof 

of a legal landing, this information can 

result in NMFS modifying the official 

record. For example, a person could 

submit landing settlements or other 

records that lead NMFS or the State to 

investigate the official record. This 

investigation could determine that a 

State fish ticket or NMFS weekly 

production report was misfiled by the 

State or NMFS, applied to the wrong 

vessel, or subject to some other error 

that could result in NMFS modifying 

the official record. An LLP license 

holder has a meaningful opportunity to 

present information to NMFS that could 

result in changes to the official record. 

NMFS provides adequate opportunity 

for a person to challenge an agency 

decision. As noted in the preamble, 

NMFS will provide each LLP license 

holder with a single 30–day evidentiary 

period to submit any information to 

challenge the official record (79 FR 

79785). If NMFS does not accept the 

information submitted and does not 

modify the official record, NMFS will 

issue an Initial Agency Determination 

(IAD) rejecting a claim. After an IAD is 

issued, an LLP license holder can 

pursue a challenge to the official record 

through the use of an appeals process 

established in regulation at § 679.43. 

NMFS will not revoke or extinguish an 

LLP license endorsement until the 

appeal process has concluded. 

The commenter’s concern about State 

confidentiality requirements for the 

release of State fish tickets is outside the 

scope of this action. NMFS does not 

have the authority to modify State 

statutes. 

Comment 2: NMFS should clarify that 

those persons eligible to receive an AI 

trawl endorsement must designate the 

qualifying vessel on an eligible LLP 

license as of the effective date of the 

proposed regulations to receive the 

endorsement. To do otherwise, or to 

hold AI endorsements in regulatory 

limbo until the potential recipient 

obtains a qualifying LLP license to 

couple with that endorsement, will 

create too much uncertainty and limit 

the ability of NMFS to manage the 

fishery because of the potential increase 

in harvesting capacity associated with 

the AI trawl endorsements. 

Response: In cases where a person 

does not hold an LLP license, but is 

otherwise eligible to receive an AI 

endorsement, NMFS will withhold 

issuing that AI endorsement until such 

time as that person holds an LLP license 

with the requisite endorsements and 

MLOA appropriate for that 

endorsement. Extinguishing an AI 

endorsement if a person does not hold 

an LLP license within some time frame 

after the implementation of this 

regulation was not specifically 

addressed by the Council during the 

development of this provision; 

establishing such a provision now 

would require new rulemaking and 

would prohibit otherwise eligible 

persons from receiving an AI 

endorsement. Choosing to withhold the 

issuance of an AI trawl endorsement 

until the potential recipient obtains the 

appropriate LLP license does not 

undermine the ability of NMFS to carry 

out its fishery management 

responsibilities. If an AI endorsement is 

issued to an LLP license at some point 

in the future, NMFS is able to track the 

specific LLP license to which the 

endorsement is assigned, the vessel to 

which an LLP license is assigned, and 

the fisheries that a vessel operator is 

actively fishing by communicating with 

the operator or by monitoring the vessel 

electronically through the vessel 

monitoring system. NMFS can monitor 

that vessel’s landings through 

mandatory catch reports. NMFS can use 

this information to adjust management 

actions to account for the harvest 

activity of a vessel to which an AI 

endorsement is assigned by closing 

fisheries earlier to accommodate any 

increased effort due to additional AI 

endorsements. 

In response to this comment, NMFS 

has modified the regulations at ’ 

679.4(k)(4)(ix)(C) and (D) to state that a 

person may designate the LLP license to 

which the AI endorsement is assigned 

when an endorsement is issued by 

NMFS. If a person otherwise eligible to 

receive an AI endorsement does not 

hold an LLP license to which an AI 

endorsement may be assigned at the 

time this rule takes effect, an otherwise 

eligible LLP license may be designated 

by that person in the future, such as 

when the person has purchased an 

eligible LLP license. Furthermore, 

NMFS concluded that the proposed 

regulatory text did not clearly state that 

a person could select a specific eligible 

LLP license if more than one was held 

by the person eligible for the AI 

endorsement. This change ensures that 

a person can amend the official record 

once that person holds an eligible LLP 

to be assigned an AI endorsement. This 

change clarifies that this amendment 

does not require a challenge to the 

official record. Although these changes 

modify the proposed process for 

assigning AI endorsements to LLP 

licenses, they do not change the intent 

of this provision. 

Comment 3: NMFS should reissue 

trawl licenses for which all area 

endorsements are extinguished to 

facilitate the use of the AI trawl 

endorsements. Extinguishing a trawl 

endorsed LLP license if all of the area 

endorsements assigned to that license 

are no longer valid would be 

appropriate in most cases. However, 

allowing an LLP license holder to be 

able to transfer an AI endorsement onto 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 41087 

an LLP license that would otherwise be 

extinguished would provide some 

minimal value to some of the licenses 

that would otherwise be extinguished 

under this amendment package. 

Response: Adopting the commenter’s 

suggestion would have the effect of 

requiring that NMFS maintain latent 

trawl LLP licenses so that an AI 

endorsement could be transferred onto 

any LLP license at some indeterminate 

point in the future. This would frustrate 

the overall goal of this action, which is 

to remove area endorsements, and 

potentially LLP licenses, that have not 

met the minimum landing requirements. 

The action recommended by the 

Council did not include a provision to 

reissue LLP licenses that are 

extinguished under this action. 

Including such a provision now would 

be contrary to the purpose and need for 

this action and the clear intent of the 

Council. In an action that amended 

eligibility to hold crab LLP licenses 

(September 24, 2001; 66 FR 48813), 

NMFS extinguished those LLP licenses 

that no longer had any eligible 

endorsements, and a consistent 

approach would be used for this action. 

Comment 4: Permitting LLP license 

holder to maintain a legible copy of an 

LLP license on their vessel while fishing 

or processing, as opposed to the original 

LLP license, will greatly benefit 

participants in the fisheries. 

Maintaining an original LLP license 

onboard a vessel can impose significant 

costs on the industry during fishing due 

to expedited delivery costs and 

incidental costs incurred while waiting 

for an original LLP license to arrive. 

This change is long overdue. 

Response: NMFS agrees and notes the 

support. 

Comment 5: Remove latent trawl LLP 

licenses as described in the proposed 

rule. The proposed rule provides active 

participants with stability and insures 

some amount of protection of their 

investments in, and dependency on, the 

North Pacific fisheries. The threshold 

landing requirement does not harm LLP 

holders who are active in the fisheries 

and who show a dependency in such 

fisheries. Maintain the exemption to 

allow WG or CG endorsements to 

remain valid if at least 20 landings were 

made during the qualifying period, and 

the exemption for LLP licenses required 

for specific LAPPs. 

Response: NMFS notes the support for 

this action. NMFS notes that this action 

removes trawl endorsements. NMFS 

will be extinguishing, or removing, LLP 

licenses only in cases where all 

endorsements on an LLP license are 

extinguished (see response to Comment 

3 for additional detail). 

Comment 6: The commenter opposes 

the creation of new LLP endorsements 

for catcher vessels in the Aleutian 

Islands. This action is contrary to one of 

the central goals of the LLP Program as 

originally implemented. The action 

would not meet the goals stated in the 

preamble to the proposed rule. The 

rationale for this action is: the economic 

development of Adak, Alaska; the 

development of an under 60 foot vessel 

fleet to harvest the AI pollock quota 

given to the Aleut Corporation; and the 

development of a resident fleet for 

Adak. 

This action will not contribute to the 

economic development for Adak. 

Because most participants in the AI 

fishery, including those that would 

receive new endorsements, have chosen 

not to deliver to Adak, increasing 

participation by issuing new federal 

endorsements could negatively impact 

Adak by attaining catch quotas and 

closing the fishery earlier without 

increasing deliveries to Adak fisheries. 

No new under–60–foot endorsements 

are needed to harvest AI pollock 

allocated to the Aleut Corporation 

because an AI endorsement is not 

required for those vessels. The creation 

of 12 new AI area endorsements will not 

develop a resident fleet of vessels for 

Adak. None of the vessel owners slated 

to receive the new endorsements are 

residents of Adak. The owners of the 

vessels that participated in the State 

Water Al Pacific cod fishery either live 

in Washington or Gulf of Alaska 

communities. More importantly, all 

have LLP licenses in other regions and 

are more dependent on fisheries in other 

regions. 

Increased participation in the AI 

subarea would increase fishing pressure 

in relation to the regional distribution of 

BSAI Pacific cod biomass. The most 

harm would be caused by issuance of 

new area endorsements that are 

severable and transferable, an action 

that even one of the recipients of such 

a new transferable LLP area 

endorsement testified to the Council 

that he did not want. This is contrary 

not only to the original purpose of this 

action, it contradicts the purpose of the 

LLP which prohibits the severability 

and transfer of endorsements because it 

will increase rather than limit 

participation. In creating these new 

endorsements, Adak would be hurt 

because the influx of new participants 

would likely cause the trawl catcher 

vessel Pacific cod fishery to be 

shortened. 

Response: As noted in the preamble to 

the proposed rule, this action would 

provide additional harvest opportunities 

to a specific group of LLP holders based 

on the catch history of vessels that have 

been active in AI parallel water fisheries 

in recent years. This action is intended 

to modify the LLP Program as originally 

implemented by NMFS, and the Council 

adopted a separate purpose and need 

statement to support this action. The 

Council is not restricted from modifying 

the LLP provided it is consistent with 

applicable law. The preamble to the 

proposed rule notes that this action is 

primarily intended to provide 

additional flexibility to vessels that are 

active in the Aleutian Islands and could 

provide additional opportunities for 

shorebased processors, but such 

opportunities were not guaranteed. 

Specifically, the preamble to the 

proposed rule (73 FR 79780) stated: 

LLP license holders who are issued new AI 

trawl endorsements would be provided with 

additional harvest opportunities in Federal 

waters that could be more economic to 

harvest. Processing facilities in the Aleutians, 

specifically those located in the communities 

of Adak and Atka, could benefit from access 

to Federal resources that could be more 

economically processed than fishery 

resources available only in State waters. 

The commenter’s assertion that this 

action would not result in additional 

deliveries to Adak cannot be verified by 

NMFS because there is no way to 

predict choices that vessel operators 

will make in the future about their 

fishery deliveries. As noted in the 

preamble to the proposed rule, this 

action is not intended to ensure that 

additional deliveries will occur at a 

specific port, but that the catcher vessel 

fleet will have additional harvesting 

opportunities in Federal waters that did 

not previously exist. Those additional 

harvest opportunities could provide 

additional processing for shorebased 

facilities in Adak and Atka. This action 

does not guarantee that additional 

deliveries will occur at these ports, or 

any other specific port. 

Contrary to the commenter’s 

assertion, the Council did not 

recommend this action to provide 

opportunities for the harvest of Aleutian 

Islands pollock. As noted in the 

preamble to the proposed rule, ‘‘these 

new AI area endorsements would 

provide additional opportunities for 

catcher vessels to harvest and process 

Pacific cod in the Aleutian Islands. 

Pacific cod is the groundfish species 

most frequently targeted by non-AFA 

catcher vessels in the State GHL and 

parallel fisheries in the Aleutian 

Islands; therefore the Council used 

those landings as the basis for 

determining eligibility to receive an AI 

area endorsement (73 FR 79780). The 

analysis used to support this action also 

notes that the primary benefits of this 

mstockstill on DSKH9S0YB1PROD with RULES

41088 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

action would be for those active in the 

Atka mackerel, Pacific ocean perch, and 

Pacific cod fisheries (see section 2.8.2). 

NMFS cannot confirm the 

commenter’s assertion that the 

recipients of the AI endorsement will 

choose not to deliver catch to a specific 

port. Again, this action does not 

mandate delivery to specific ports and 

the Council did not intend that specific 

ports would receive a specific portion of 

the catch, nor did the Council guarantee 

such a result. As noted in section 2.7.5.4 

of the analysis prepared for this rule 

‘‘there is no guarantee that these AI 

endorsements would be used to fish 

groundfish in the AI, or be used by 

vessels that would choose to 

‘‘homeport’’, or deliver to a shoreside 

processing plant, in Adak. The creation 

of the endorsements, and their potential 

severability and transferability, 

however, may provide an opportunity to 

facilitate economic development in 

Adak, compared to the status quo.≥ 

The Council and NMFS were aware 

that this action could have 

distributional effects on the specific 

participants who are active in Aleutian 

Islands groundfish fisheries. 

Specifically, the preamble to the 

proposed rule (73 FR 79773) notes that: 

In recommending this action, the Council 

balanced the potential benefits against the 

potential negative effect on existing fishery 

participants in the Aleutian Islands. This 

proposed action would not increase the total 

amount of the TAC harvested in the BSAI. 

The TAC would continue to limit total 

harvests. This proposed action could shift the 

proportion of groundfish harvested by trawl 

vessels relative to other vessels in the 

Aleutian Islands thereby affecting the 

associated ex-vessel revenues for existing 

fishery participants. 

The commenter’s assertion that this 

action will result in increased fishing 

pressure on the regional distribution of 

the BSAI Pacific cod biomass is based 

on assumptions about the potential 

distribution of the Pacific cod biomass 

that have not been reviewed by the 

Council or NMFS. The Pacific cod 

fishery is constrained by the Pacific cod 

TAC specified annually for the BSAI. 

Based on data from a variety of sources, 

the Council is reviewing the potential 

implications of apportioning the Pacific 

cod TAC between the Bering Sea and 

Aleutian Islands. As that analysis is 

developed, the Council and NMFS will 

consider fishing practices in the Bering 

Sea and Aleutian Islands, and may 

recommend changes to fishery 

management program that may be 

necessary to accommodate a TAC 

apportionment. However, based on the 

best available information at this time, 

issuing a limited number of additional 

AI endorsements that are likely to be 

used on vessels that are already active 

in harvesting BSAI Pacific cod in the 

Aleutian Islands parallel water fishery 

would not be likely to cause the BSAI 

Pacific cod fishery to close earlier than 

it does currently. The Council did 

review and consider the potential effects 

of this action on current Aleutian 

Islands harvesters and processors during 

its deliberative process and in section 

2.7.5 of the analysis prepared for this 

action. 

Comment 7: The commenter supports 

designating LLP licenses as nontransferable while any appeals on the 

status of an LLP license endorsement 

are resolved. However, past experience 

suggests that the appeal process can be 

very lengthy, particularly for resolving 

LLP license appeals. While an LLP is 

under appeal it is still valid and may be 

used until the appeals process is 

completed. If the appeals process is 

lengthy, the net effect is that a 

regulation intended to reduce latent 

capacity does not fully accomplish its 

goal. The Alaska Region Office of 

Administrative Appeals should resolve 

any appeals quickly. In the Pacific 

groundfish fishery, regulations are in 

place that requires appeals to be 

resolved within 30 or 45 days. A similar 

timeline for resolution of appeals for 

this action would seem to be 

appropriate. 

Response: NMFS notes the support for 

designating LLP licenses as nontransferable while under appeal. NMFS 

intends to move expeditiously to resolve 

all appeals in a timely manner, but a 

specific timeline for resolving appeals is 

difficult to predict given the wide range 

of issues that may be addressed under 

appeal. The Council considered and 

rejected a fixed timeline similar to the 

one used in the Pacific groundfish 

fishery to resolve appeals given the 

potential that complexities may arise 

during a specific appeal that could 

require more than the 30 or 45 days. 

Comment 8: Although the proposed 

rule suggests that removing latent trawl 

LLP licenses became a consideration in 

early 2007, this issue came before the 

Council much earlier. In 2005, the 

Council considered provisions to 

remove latent catcher vessel LLP 

licenses under Amendment 80 and 

Amendment 85 to the FMP for BSAI 

groundfish. Additionally, GOA 

rationalization was under consideration 

as early as 2003; if adopted, this LAPP 

would have mooted the issue of latent 

trawl LLP licenses. 

Response: NMFS agrees that the 

Council has considered modifying the 

LLP Program prior to this action. 

However, this action, which specifically 

addresses removing latent area 

endorsements from trawl LLP licenses, 

was first developed as a separate and 

distinct action beginning in 2007. 

Changes From the Proposed to Final 

Rule 

Based on public comment, NMFS 

clarified the regulations at ’ 679.4 

(k)(4)(ix)(C) and (D) for assigning AI 

endorsements. 

NMFS made several minor changes in 

the final rule to clarify specific 

regulatory text. In § 679.7, NMFS 

clarified that the copy of the LLP license 

that may be on a vessel must be a legible 

copy. This change is consistent with 

other regulatory requirements that 

NMFS uses to ensure that copies can be 

verified by enforcement personnel who 

may be onboard the vessel. 

NMFS made several minor corrections 

to the regulatory text for grammatical 

consistency that does not affect the 

intent of these provisions. 

Classification 

The Assistant Administrator for 

Fisheries, NOAA, has determined that 

Amendments 92 and 82 are necessary 

for the conservation and management of 

BSAI and GOA groundfish and are 

consistent with the MSA and other 

applicable law. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Final Regulatory Flexibility Analysis 

(FRFA) 

A FRFA was prepared for this rule, as 

required by section 604 of the 

Regulatory Flexibility Act (RFA). Copies 

of the FRFA prepared for this final rule 

are available from NMFS (see 

ADDRESSES). The FRFA incorporates the 

IRFA, a summary of the significant 

issues raised by the public comments in 

response to the IRFA, NMFS’s responses 

to those comments, and a summary of 

the analyses completed to support the 

action. A summary of the FRFA follows. 

Why Action by the Agency is Being 

Considered and Objectives of, and Legal 

Basis for, the Rule 

The FRFA describes in detail the 

reasons why this action is being 

proposed, describes the objectives and 

legal basis for the rule, and discusses 

both small and non-small regulated 

entities to adequately characterize the 

fishery participants. The MSA provides 

the legal basis for the rule, as discussed 

in this preamble. The objectives of the 

rule are to remove trawl gear 

endorsements on LLP licenses in 

specific management areas if those LLP 

licenses have not been used on vessels 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 41089 

that met minimum recent landing 

requirements using trawl gear. This 

action provides exemptions to this 

requirement for licenses that are used in 

trawl fisheries subject to certain limited 

access privilege programs. This action 

issues new area endorsements for trawl 

catcher vessel LLP licenses in the 

Aleutian Islands if minimum recent 

landing requirements in the Aleutian 

Islands were met. 

Number of Small Entities to Which the 

Final Rule Would Apply 

The directly regulated entities under 

this proposed rule are holders of LLP 

licenses endorsed for trawl activity. For 

purposes of a FRFA, the Small Business 

Administration (SBA) has established 

that a business involved in fish 

harvesting is a small business if it is 

independently owned and operated, not 

dominant in its field of operation 

(including its affiliates), and if it has 

combined annual gross receipts not in 

excess of $4.0 million for all its 

affiliated operations worldwide. A 

seafood processor is a small business if 

it is independently owned and operated, 

not dominant in its field of operation, 

and employs 500 or fewer persons on a 

full-time, part-time, temporary, or other 

basis, at all its affiliated operations 

worldwide. 

Because the SBA does not have a size 

criterion for businesses that are 

involved in both the harvesting and 

processing of seafood products, NMFS 

has in the past applied and continues to 

apply SBA’s fish harvesting criterion for 

these businesses because catcher/ 

processors are first and foremost fish 

harvesting businesses. Therefore, a 

business involved in both the harvesting 

and processing of seafood products is a 

small business if it meets the $4.0 

million criterion for fish harvesting 

operations. 

Information concerning ownership of 

vessels and processors, which would be 

used to estimate the number of small 

entities that are directly regulated by 

this action, is somewhat limited. NMFS 

estimated the number of small versus 

large entities based on earnings from all 

Alaskan fisheries for 2006, the most 

recent year of complete data, from 

vessels designated on LLP licenses used 

in the BSAI or GOA groundfish for that 

year. 

Of the trawl catcher vessel licenses 

with AI, BS, CG, or WG endorsements, 

102 are AFA licenses. These are 

categorized as large entities for the 

purpose of the RFA under the principles 

of affiliation, due to their being part of 

the AFA pollock harvest cooperatives. 

Of the remaining 130 trawl catcher 

vessel licenses that are not AFA 

licenses, 96 had groundfish landings in 

2006, and all are identified as small 

entities for the purposes of the RFA. 

This likely overstates the true number of 

small entities because ownership of 

multiple vessels, co-ownership among 

vessels, and other economic and 

operational affiliations are 

commonplace in commercial fisheries 

off Alaska. 

Of the trawl catcher/processor LLP 

licenses with AI, BS, CG, or WG 

endorsements, 27 are AFA licenses, and 

thus categorized as large entities, due to 

their AFA cooperative affiliation. Of the 

remaining 37 non-AFA trawl catcher/ 

processor LLP licenses, 33 had 

groundfish landings in 2006. These 33 

licenses are estimated to be held by 28 

entities, and 24 of those had gross 

earnings from all fisheries in Alaska 

over $4 million, categorizing them as 

large entities. The remaining 4 are 

identified as small entities for the 

purposes of the RFA. Thus, this analysis 

estimates a total of 100 (96 + 4) small 

entities will be directly regulated by the 

action. 

Public Comments Received on the IRFA 

NMFS received no public comments 

on the IRFA. A general comment on the 

economic impacts of the rule is 

addressed in the Response to Comment 

section of this preamble (see response to 

Comment 6). 

Projected Reporting, Recordkeeping, 

and Other Compliance Requirements 

This rule modifies existing reporting, 

recordkeeping, and other compliance 

requirements. This rule modifies the 

Application to Transfer an LLP license 

to include provisions to track the 

transfer of AI trawl endorsements issued 

under this rule. It will cost the directly 

regulated industry an estimated $56 to 

complete each application to transfer an 

AI endorsement. 

The Comparison of Alternatives 

A FRFA requires a description of the 

steps the agency has taken to minimize 

the significant economic impact on 

small entities consistent with the stated 

objectives of applicable statutes, 

including a statement of the factual, 

policy, and legal reasons for selecting 

the alternative adopted in the final rule 

and why each one of the other 

significant alternatives to the rule which 

affect the impact on small entities was 

rejected by the agency. 

The Council identified three 

alternatives for this action. Alternative 1 

is the status quo, which would result in 

no change to the existing area 

endorsements for trawl groundfish LLPs 

for the BSAI or GOA. Alternative 2 and 

Alternative 3 (Council preferred 

alternative) result in the application of 

landings criteria (the range includes one 

or two landings during 2000 through 

2005 or 2000 through 2006) in order to 

retain the area endorsement (BS, AI, CG, 

or WG) on a license. 

Under either action alternative, 

including the preferred alternative, the 

area endorsements on licenses not 

meeting the threshold would be 

extinguished. In effect, if the LLP 

license at issue has one or more area 

endorsement only for trawl gear and it 

does not meet the landing threshold for 

any area selected, the entire license is 

extinguished. If the LLP license at issue 

has multiple area endorsements and it 

does not meet the landing threshold for 

a specific area, the license would be 

reissued with only the area 

endorsements for which it qualifies. The 

area endorsement for which the license 

does not qualify would be removed. 

Note that this action does not affect a 

license’s non-trawl area endorsements. 

The primary intent of the amendment 

is to prevent future economic 

dislocation among license holders who 

have a demonstrated history of recent 

participation in the trawl groundfish 

fisheries in the BSAI and GOA. As 

previously noted, the great majority of 

the directly regulated entities under this 

action are considered ‘‘small’’ as 

defined under the RFA. Within the 

universe of small entities that are the 

subject of this FRFA, impacts may 

accrue differently (i.e., some small 

entities would be negatively affected 

and others positively affected.) Thus, 

the action represents tradeoffs in terms 

of impacts on small entities. However, 

the Council deliberately sought to 

provide options for the smallest of the 

small entities under this amendment 

through Component 4, Options 1 and 3. 

Component 4, Option 1, awards an 

estimated eight new AI endorsements to 

non-AFA trawl catcher vessel LLP 

licenses with less than 60 foot MLOA 

that meet a specified landing threshold 

(greater than 500 mt) in the AI parallel 

Pacific cod fishery from 2000 through 

2006. Component 4, Option 3 allows 

those new AI endorsements to be 

severable and transferable from the 

license on which they were earned, thus 

allowing new participation by non-AFA 

trawl catcher vessels less than 60 feet 

LOA. It is reasonable to assume that the 

same proportion of licenses assigned to 

vessels less than 60 feet LOA would be 

small entities. 

Overall, it is unlikely that this action 

will result in extinguishing the licenses 

of vessels for which LLP license holders 

had a high degree of economic 

dependence upon the trawl groundfish 

mstockstill on DSKH9S0YB1PROD with RULES

41090 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

fisheries, as one would have to have had 

little to no participation in the fisheries 

since 2000 in order to forfeit an area 

endorsement under this action. Based 

upon the best available scientific data 

and information, and consideration of 

the objectives of this action, it appears 

that there are no alternatives to the 

action which have the potential to 

accomplish the stated objectives of the 

Magnuson-Stevens Act and any other 

applicable statutes and that have the 

potential to minimize any significant 

adverse economic impact of the 

proposed rule on directly regulated 

small entities. 

Collection-of-Information 

This rule contains collection-ofinformation requirements subject to the 

Paperwork Reduction Act (PRA) and 

which have been approved by OMB 

under Control Number 0648–0334. 

Public reporting burden is estimated to 

average two hours for the Application to 

Transfer an LLP license and four hours 

for an appeal of an initial administrative 

determination per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall any person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

Paperwork Reduction Act unless that 

collection displays a currently valid 

OMB Control Number. 

Small Entity Compliance Guide 

NMFS has posted a small entity 

compliance guide on its website at 

http://www.alaskafisheries.gov to satisfy 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

requirement for a plain language guide 

to assist small entities in complying 

with this rule. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Recordkeeping and 

reporting requirements. 

Dated: August 10, 2009. 

John Oliver, 

Deputy Assistant Administrator For 

Operations, National Marine Fisheries 

Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 679 is amended 

as follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

■ 1. The authority citation for 50 CFR 

part 679 continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1540; 

1801 et seq.; 3631 et seq.; Pub. L. 108–447. 

■ 2. In § 679.4, 

A. Paragraphs (k)(4)(vi) through 

(k)(4)(x) are added; and 

B. Paragraphs (k)(7)(i), (k)(7)(ii) 

introductory text, (k)(7)(iii), (k)(7)(v), 

(k)(7)(vi), and (k)(7)(viii)(A) are revised. 

The additions and revisions read as 

follows: 

§ 679.4 Permits. 

* * * * * 

(k) * * * 

(4) * * * 

(vi) Trawl gear designation recent 

participation requirements. (A) NMFS 

will revoke any trawl gear designation 

on a groundfish license with an 

Aleutian Island, Bering Sea, Central 

Gulf, or Western Gulf regulatory area 

unless one of the following conditions 

apply: 

(1) A person made at least two legal 

landings using trawl gear under the 

authority of that groundfish license in 

that regulatory area during the period 

from January 1, 2000, through December 

31, 2006; or 

(2) That trawl gear designation 

endorsed in that area is exempt from the 

requirements of this paragraph 

(k)(4)(vi)(A) as described under 

paragraphs (k)(4)(vii) or (k)(4)(viii) of 

this section. 

(B) NMFS shall assign a legal landing 

to a groundfish license for an area based 

only on information contained in the 

official record described in paragraph 

(k)(4)(x) of this section. 

(vii) Exemption to trawl gear recent 

participation requirements for the AFA, 

Amendment 80 Program, and Rockfish 

Program. (A) Trawl gear designations 

with Bering Sea or Aleutian Islands area 

endorsements on a groundfish license 

that was derived in whole or in part 

from the qualifying fishing history of an 

AFA vessel are exempt from the landing 

requirements in paragraph (k)(4)(vi) of 

this section. 

(B) Trawl gear designations with 

Bering Sea or Aleutian Islands area 

endorsements on a groundfish license 

are exempt from the landing 

requirements in paragraph (k)(4)(vi) of 

this section provided that all of the 

following conditions apply: 

(1) The groundfish license was not 

derived in whole or in part from the 

qualifying fishing history of an AFA 

vessel; 

(2) The groundfish license is assigned 

to an AFA vessel on August 14, 2009; 

and 

(3) No other groundfish license with 

a Bering Sea or Aleutian Island area 

endorsement is assigned to that AFA 

vessel on August 14, 2009. 

(C) Trawl gear designations with 

Bering Sea or Aleutian Islands area 

endorsements on a groundfish license 

that is listed in Column C of Table 31 

to this part are exempt from the landing 

requirements in paragraph (k)(4)(vi) of 

this section. 

(D) A trawl gear designation with 

Central Gulf area endorsement on a 

groundfish license that is assigned 

Rockfish QS is exempt from the landing 

requirements in paragraph (k)(4)(vi) of 

this section. 

(viii) Exemption to trawl gear recent 

participation requirements for 

groundfish licenses with a Central Gulf 

or Western Gulf area endorsement. A 

trawl gear designation with a Central 

Gulf or Western Gulf area endorsement 

on a groundfish license is exempt from 

the landing requirements in paragraph 

(k)(4)(vi) of this section provided that a 

person made at least 20 legal landings 

under the authority of that groundfish 

license in either the Central Gulf or 

Western Gulf area using trawl gear 

during the period from January 1, 2005, 

through December 31, 2007. 

(ix) Aleutian Island area 

endorsements for non-AFA trawl 

catcher vessels. (A) If a non-AFA 

catcher vessel that is less than 60 feet 

LOA was used to make at least 500 mt 

of legal landings of Pacific cod using 

trawl gear from the waters that were 

open by the State of Alaska for which 

it adopts a Federal fishing season 

adjacent to the Aleutian Islands Subarea 

during the period from January 1, 2000, 

through December 31, 2006, according 

to the official record, NMFS shall issue 

an Aleutian Island area endorsement 

with a trawl gear designation to a 

groundfish license assigned to the vessel 

owner according to the official record, 

provided that the groundfish license 

assigned to that non-AFA catcher vessel 

meets all of the following requirements: 

(1) It was not derived in whole or in 

part from the qualifying fishing history 

of an AFA vessel; 

(2) It has a trawl gear designation; 

(3) It does not have a catcher/ 

processor vessel designation; and 

(4) That groundfish license has an 

MLOA of less than 60 feet. 

(B) If a non-AFA catcher vessel that is 

equal to or greater than 60 feet LOA was 

used to make at least one legal landing 

in State of Alaska waters adjacent to the 

Aleutian Islands Subarea using trawl 

gear during the period from January 1, 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 41091 

2000, through December 31, 2006, or 

one landing of Pacific cod from the State 

of Alaska Pacific cod fishery during the 

period from January 1, 2000, through 

December 31, 2006, according to the 

official record, NMFS shall issue an 

Aleutian Island area endorsement with 

a trawl gear designation to a groundfish 

license assigned to the vessel owner 

according to the official record, 

provided that the groundfish license 

assigned to that non-AFA catcher vessel 

meets the following criteria: 

(1) It was not derived in whole or in 

part from the qualifying fishing history 

of an AFA vessel; 

(2) It has a trawl gear designation; 

(3) It does not have a catcher/ 

processor vessel designation; and 

(4) At least 1,000 mt of legal landings 

of Pacific cod using trawl gear in the 

BSAI were made under the authority of 

that groundfish license during the 

period from January 1, 2000, through 

December 31, 2006, according to the 

official record. 

(C) NMFS will assign the AI 

endorsement to an eligible groundfish 

license held and designated by the 

vessel owner beginning on August 14, 

2009. 

(D) If the vessel owner does not hold 

a groundfish license to which an AI 

endorsement may be assigned on 

August 14, 2009 according to the official 

record, the vessel owner will have the 

opportunity to amend the official record 

as described in paragraph (k)(4)(x) of 

this section to designate an otherwise 

eligible groundfish license. If the official 

record is subsequently amended, NMFS 

will assign the AI endorsement to the 

groundfish license specified in the 

amended official record. 

(x) Trawl gear recent participation 

official record. (A) The official record 

will contain all information used by the 

Regional Administrator to determine the 

following: 

(1) The number of legal landings 

assigned to a groundfish license for 

purposes of the trawl gear designation 

participation requirements described in 

paragraph (k)(4)(vi) of this section; 

(2) The amount of legal landings 

assigned to a groundfish license for 

purposes of the AI endorsements 

described in paragraph (k)(4)(ix) of this 

section; 

(3) The owner of a vessel that has 

made legal landings that may generate 

an AI endorsement as described in 

paragraph (k)(4)(ix) of this section; and 

(4) All other relevant information 

necessary to administer the 

requirements described in paragraphs 

(k)(4)(vi) through (k)(4)(ix) of this 

section. 

(B) The official record is presumed to 

be correct. A groundfish license holder 

has the burden to prove otherwise. For 

the purposes of creating the official 

record, the Regional Administrator will 

presume the following: 

(1) A groundfish license is presumed 

to have been used onboard the same 

vessel from which that groundfish 

license was derived, the original 

qualifying vessel, during the calendar 

years 2000 and 2001, unless clear and 

unambiguous written documentation is 

provided that establishes otherwise; 

(2) If more than one person is 

claiming the same legal landing, then 

each groundfish license for which the 

legal landing is being claimed will be 

credited with the legal landing; 

(3) The groundfish license to which 

an AI endorsement described in 

paragraph (k)(4)(ix) of this section will 

be initially assigned. 

(C) Only legal landings as defined in 

§ 679.2 and documented on State of 

Alaska fish tickets or NMFS weekly 

production reports will be used to 

assign legal landings to a groundfish 

license. 

(D) The Regional Administrator will 

specify by letter a 30–day evidentiary 

period during which an applicant may 

provide additional information or 

evidence to amend or challenge the 

information in the official record. A 

person will be limited to one 30–day 

evidentiary period. Additional 

information or evidence received after 

the 30–day evidentiary period specified 

in the letter has expired will not be 

considered for purposes of the initial 

administrative determination. 

(E) The Regional Administrator will 

prepare and send an IAD to the 

applicant following the expiration of the 

30–day evidentiary period if the 

Regional Administrator determines that 

the information or evidence provided by 

the person fails to support a person’s 

claims and is insufficient to rebut the 

presumption that the official record is 

correct, or if the additional information, 

evidence, or revised application is not 

provided within the time period 

specified in the letter that notifies the 

applicant of his or her 30–day 

evidentiary period. The IAD will 

indicate the deficiencies with the 

information, or the evidence submitted 

in support of the information. The IAD 

will also indicate which claims cannot 

be approved based on the available 

information or evidence. A person who 

receives an IAD may appeal pursuant to 

§ 679.43. A person who avails himself or 

herself of the opportunity to appeal an 

IAD will receive a non-transferable 

license pending the final resolution of 

that appeal, notwithstanding the 

eligibility of that applicant for some 

claims based on consistent information 

in the official record. 

* * * * * 

(7) * * * 

(i) General. The Regional 

Administrator will transfer a groundfish 

license, Aleutian Island area 

endorsement as described under 

paragraph (k)(7)(viii)(A) of this section, 

or a crab species license if a complete 

transfer application is submitted to 

Restricted Access Management, Alaska 

Region, NMFS, and if the transfer meets 

the eligibility criteria as specified in 

paragraph (k)(7)(ii) of this section. A 

transfer application form may be 

requested from the Regional 

Administrator. 

(ii) Eligibility criteria for transfers. A 

groundfish license, Aleutian Island area 

endorsement as described under 

paragraph (k)(7)(viii)(A) of this section, 

or crab species license can be 

transferred if the following conditions 

are met: 

* * * * * 

(iii) Contents of application. To be 

complete, an application for a 

groundfish license, Aleutian Island area 

endorsement as described under 

paragraph (k)(7)(viii)(A) of this section 

transfer, or a crab species license 

transfer must be legible, have notarized 

and dated signatures of the applicants, 

and the applicants must attest that, to 

the best of the applicant’s knowledge, 

all statements in the application are 

true. An application to transfer will be 

provided by NMFS, or is available on 

the NMFS Alaska Region website at 

http://alaskafisheries.noaa.gov. The 

acceptable submittal methods will be 

specified on the application form. 

* * * * * 

(v) Transfer by court order, operation 

of law, or as part of a security 

agreement. The Regional Administrator 

will transfer a groundfish license, 

Aleutian Island area endorsement as 

described under paragraph 

(k)(7)(viii)(A) of this section, or a crab 

species license based on a court order, 

operation of law, or a security 

agreement if the Regional Administrator 

determines that the transfer application 

is complete and the transfer will not 

violate any of the provisions of this 

section. 

(vi) Voluntary transfer limitation. A 

groundfish license, Aleutian Island area 

endorsement as described under 

paragraph (k)(7)(viii)(A) of this section, 

or a crab species license may be 

voluntarily transferred only once in any 

calendar year. A voluntary transfer is a 

transfer other than one pursuant to a 

court order, operation of law, or a 

mstockstill on DSKH9S0YB1PROD with RULES

41092 Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations 

security agreement. An application for 

transfer that would cause a person to 

exceed the transfer limit of this 

provision will not be approved. A 

transfer of an Aleutian Island area 

endorsement as described under 

paragraph (k)(7)(viii)(A) of this section 

to another LLP license, or the transfer of 

a groundfish license with an Aleutian 

Island area endorsement as described 

under paragraph (k)(7)(viii)(A) of this 

section attached to it will be considered 

to be a transfer of that Aleutian Island 

area endorsement. 

* * * * * 

(viii) * * * 

(A) Area endorsements or area/species 

endorsements specified on a license are 

not severable from the license and must 

be transferred together, except that 

Aleutian Island area endorsements on a 

groundfish license with a trawl gear 

designation issued under the provisions 

of paragraph (k)(4)(ix)(A) of this section 

and that are assigned to a groundfish 

license with an MLOA of less than 60 

feet LOA may be transferred separately 

from the groundfish license to which 

that Aleutian Island area endorsement 

was originally issued to another 

groundfish license provided that the 

groundfish license to which that 

Aleutian Island endorsement is 

transferred: 

(1) Was not derived in whole or in 

part from the qualifying fishing history 

of an AFA vessel; 

(2) Has a catcher vessel designation; 

(3) Has a trawl gear designation; 

(4) Has an MLOA of less than 60 feet 

LOA; and 

(5) A complete transfer application is 

submitted to the Regional Administrator 

as described under this paragraph (k)(7), 

and that application is approved. 

* * * * * 

■ 3. In § 679.7, paragraphs (i)(2) through 

(i)(5), and paragraph (i)(8)(i) are revised 

to read as follows: 

§ 679.7 Prohibitions. 

* * * * * 

(i) * * * 

(2) Conduct directed fishing for 

license limitation groundfish without a 

legible copy of a valid groundfish 

license, except as provided in 

§ 679.4(k)(2); 

(3) Conduct directed fishing for LLP 

crab species without a legible copy of a 

valid crab license, except as provided in 

§ 679.4(k)(2); 

(4) Process license limitation 

groundfish on board a vessel without a 

legible copy of a valid groundfish 

license with a catcher/processor 

designation; 

(5) Process LLP crab species on board 

a vessel without a legible copy of a valid 

crab species LLP license with a catcher/ 

processor designation; 

* * * * * 

(8) * * * 

(i) Without a copy of a valid scallop 

license on board; 

* * * * * 

[FR Doc. E9–19568 Filed 8–13–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 680 

[Docket No. 080630808–91192–03] 

RIN 0648–AW97 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea/Aleutian 

Islands Crab Rationalization Program; 

Amendment 28 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations 

implementing Amendment 28 to the 

Fishery Management Plan for Bering 

Sea/Aleutian Islands King and Tanner 

Crabs (FMP). These regulations amend 

the Bering Sea/Aleutian Islands Crab 

Rationalization Program to allow postdelivery transfers of all types of 

individual fishing quota and individual 

processing quota to cover overages. This 

action is necessary to improve flexibility 

of the fleet, reduce the number of 

violations for overages, reduce 

enforcement costs, and allow more 

complete harvest of crab allocations. 

This action is intended to promote the 

goals and objectives of the MagnusonStevens Fishery Conservation and 

Management Act, the FMP, and other 

applicable laws. 

DATES: Effective September 14, 2009. 

ADDRESSES: This action was 

categorically excluded from the need to 

prepare an environmental assessment or 

environmental impact statement under 

the National Environmental Policy Act. 

Copies of Amendment 28, the 

categorical exclusion memorandum, and 

the Regulatory Impact Review/Final 

Regulatory Flexibility Analysis (RIR/ 

FRFA) prepared for this action, as well 

as the Environmental Impact Statement 

prepared for the Crab Rationalization 

Program, may be obtained from the 

NMFS Alaska Region website at http:// 

alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Glenn Merrill or Rachel Baker, 907– 

586–7228. 

SUPPLEMENTARY INFORMATION: The king 

and Tanner crab fisheries in the 

exclusive economic zone of the Bering 

Sea and Aleutian Islands (BSAI) are 

managed under the Fishery 

Management Plan for Bering Sea/ 

Aleutian Islands King and Tanner Crabs 

(FMP). The FMP was prepared by the 

North Pacific Fishery Management 

Council under the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). 

Amendments 18 and 19 to the FMP 

implemented the BSAI Crab 

Rationalization Program (CR Program). 

Regulations implementing Amendments 

18 and 19 were published on March 2, 

2005 (70 FR 10174), and are located at 

50 CFR part 680. 

Background 

Under the CR Program, NMFS issued 

quota share (QS) to persons based on 

their qualifying harvest histories in the 

BSAI crab fisheries during a specific 

time period. Each year, the QS issued to 

a person yields an amount of individual 

fishing quota (IFQ), which is a permit 

that provides an exclusive harvesting 

privilege for a specific amount of raw 

crab pounds, in a specific crab fishery, 

in a given season. The size of each 

annual IFQ allocation is based on the 

amount of QS held by a person in 

relation to the total QS pool in a crab 

fishery. For example, a person holding 

QS equaling 1 percent of the QS 

computation pool in a crab fishery 

receives IFQ to harvest 1 percent of the 

annual total allowable catch (TAC) in 

that crab fishery. Catcher/processor 

license holders were allocated catcher/ 

processor vessel owner (CPO) QS for 

their LLP license’s history as catcher/ 

processors; catcher vessel license 

holders were issued catcher vessel 

owner (CVO) QS based on their LLP 

license’s catcher vessel history. 

Under the CR Program, 97 percent of 

the initial allocation of QS was issued 

to LLP license holders as CPO or CVO 

QS. The remaining three percent was 

issued to vessel captains and crew as ‘‘C 

shares’’ based on their harvest histories 

as crew members onboard crab fishing 

vessels. Of the CVO IFQ, 90 percent is 

issued as ‘‘A shares,’’ or ‘‘Class A IFQ,’’ 

which, in most fisheries, is subject to 

regional landing requirements and must 

be delivered to a processor holding 

unused individual processor quota 

(IPQ). This regional landing requirement 

is commonly referred to as 

‘‘regionalization.’’ The remaining 10 

percent of the annual vessel owner IFQ 

mstockstill on DSKH9S0YB1PROD with RULES