[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Rules and Regulations]
[Pages 42178-42183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20208]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0809031176-91213-03]
RIN 0648-AX25


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands (Amendment 90) and Gulf of Alaska Groundfish 
(Amendment 78); Limited Access Privilege Programs

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION:  Final rule.

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SUMMARY: NMFS issues regulations implementing Amendment 90 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area and Amendment 78 to the Fishery Management Plan 
for Groundfish of the Gulf of Alaska. This regulation amends the Bering 
Sea and Aleutian Islands Amendment 80 Program and the Central Gulf of 
Alaska Rockfish Program to allow post-delivery transfers of cooperative 
quota to cover overages. This action is necessary to mitigate potential 
overages, reduce enforcement costs, and provide for more precise total 
allowable catch management. This action is intended to promote the 
goals

[[Page 42179]]

and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act, the Fishery Management Plans, and other applicable law.

DATES: Effective September 21, 2009.

ADDRESSES: Amendment 90 to the Fishery Management Plan for Groundfish 
of the Bering Sea and Aleutian Islands Management Area and Amendment 78 
to the Fishery Management Plan for Groundfish of the Gulf of Alaska, 
the categorical exclusion memoranda, and the Regulatory Impact Review/
Final Regulatory Flexibility Analyses (RIR/FRFA) prepared for this 
action as well as the Programmatic Supplemental Environmental Impact 
Statement prepared for Alaska groundfish fisheries 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 groundfish fisheries in the exclusive 
economic zone off Alaska are managed under the Fishery Management Plan 
for Groundfish of the Bering Sea and Aleutian Islands Management Area 
(BSAI FMP) and the Fishery Management Plan for Groundfish of the Gulf 
of Alaska (GOA FMP). The FMPs were prepared by the North Pacific 
Fishery Management Council (Council) under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Amendment 80 to 
the BSAI FMP implemented the Amendment 80 Program. Amendment 68 to the 
GOA FMP implemented the Central GOA Rockfish Program (Rockfish 
Program). Regulations implementing Amendment 80 were published on 
September 14, 2007 (72 FR 52668), and regulations implementing 
Amendment 68 were published on November 20, 2006 (71 FR 67210). These 
regulations are located at 50 CFR part 679.

Background

    NMFS issued quota share (QS) under the Amendment 80 Program and the 
Rockfish Program. Under the Amendment 80 Program, NMFS issued QS to 
persons based on their qualifying harvest histories using specific 
trawl catcher/processor vessels in six BSAI non-pollock groundfish 
fisheries during 1998 through 2004. Under the Rockfish Program, NMFS 
issued QS to persons based on their qualifying harvest histories using 
trawl catcher vessels and trawl catcher/processors of rockfish species 
and species harvested incidentally in Central Gulf of Alaska rockfish 
fisheries during 1996 through 2002. These two programs are commonly 
known as limited access privilege programs (LAPPs) because the 
participants may receive exclusive access to fishery resources if 
specific conditions are met. Each year, the person issued QS may 
participate in either a fishery cooperative with other QS holders or in 
a limited access fishery with other non-cooperative participants who 
hold QS. The total amount of QS assigned to all members of a 
cooperative yields an amount of cooperative quota (CQ), which is a 
permit that provides an exclusive harvesting privilege for a specific 
amount of groundfish, in specific fisheries, in a given year. 
Additionally, a cooperative also receives a specific amount of CQ that 
may be used for the incidental catch of a specific amount of crab or 
halibut. Incidentally caught crab or halibut, commonly called 
prohibited species catch (PSC), cannot be retained, processed, or sold. 
QS holders participating in the limited access fishery are not assigned 
an exclusive harvest or PSC use privilege, but may compete for the 
allocation of groundfish and PSC remaining after CQ has been assigned 
to all cooperatives.
    After joining a cooperative or the limited access fishery, a person 
may participate in only that cooperative or the limited access fishery 
for that calendar year. A person who joins a cooperative must assign 
the individual fishing quota derived from his or her QS (prior to the 
start of the fishing season for that LAPP) to the cooperative and the 
specific vessels that will be fishing for that cooperative. For 
example, persons wishing to participate in an Amendment 80 cooperative 
must assign their QS and vessels to an Amendment 80 cooperative by 
November 1 of each year to be eligible to fish in a cooperative for the 
following calendar year. Once a person assigns his QS or vessel to a 
cooperative, he may not reassign his QS or vessel to another 
cooperative or the limited access fishery during the calendar year for 
which that QS or vessel is assigned.
    Table 1 shows the specific groundfish species for which NMFS issues 
QS and the PSC species for which CQ may be issued if a person joins a 
cooperative under the Amendment 80 Program and Rockfish Program.

[[Page 42180]]

[GRAPHIC] [TIFF OMITTED] TR21AU09.062

    The mechanisms for joining a cooperative, the process for issuing 
CQ for groundfish or PSC species, and the monitoring and enforcement 
provisions necessary to ensure proper accounting of catch under the 
Amendment 80 and Rockfish Programs are described in detail in the final 
rules implementing those LAPPs and are not repeated here (for the 
Amendment 80 Program see 72 FR 52668, September 14, 2007; for the 
Rockfish Program see 71 FR 67210, November 20, 2006).
    The size of each cooperative's annual CQ allocation is based on the 
amount of QS held by the members relative to the total QS pool for a 
given groundfish fishery. For example, a cooperative in the Amendment 
80 Program composed of members holding QS equaling 40 percent of the QS 
pool in the yellowfin sole fishery would receive CQ to harvest 40 
percent of the annual total allowable catch (TAC) of yellowfin sole 
that is assigned to the Amendment 80 Program. Any catch of groundfish 
or PSC species for which CQ is issued under the specific LAPP (i.e., 
either the Amendment 80 or Rockfish Program) is debited from a 
cooperative's CQ account.
    The Amendment 80 Program and the Rockfish Program allow 
cooperatives to transfer their unused CQ between cooperatives. 
Transfers allow cooperatives to tailor their operations to specific 
harvesting conditions. All transfers must be approved by NMFS before 
they become effective. Once a CQ transfer has been approved by NMFS, 
the CQ account of the transferring cooperative is debited, and the CQ 
account of the receiving cooperative is credited.

CQ Overages Under Current System

    Under existing regulations, a cooperative in either the Amendment 
80 Program or the Rockfish Program is prohibited from catching 
groundfish or PSC on an annual basis that exceeds the amount of CQ that 
is issued to that cooperative (see Sec.  679.7(n)(7)(i) for the 
Rockfish Program and Sec.  679.7(o)(4)(v) for the Amendment 80 
Program). This prohibits a cooperative from having a negative CQ 
balance for a given species and subsequently receiving transferred CQ 
after the landing to rectify the negative CQ balance.
    CQ overages by cooperatives in the Rockfish Program and Amendment 
80 Program are likely to be uncommon. In 2007, the first year under the 
Rockfish Program, no overages of CQ occurred. Results from 2008, the 
second year of the Rockfish Program, and the first year of the 
Amendment 80 Program, are pending.
    The Council recommended Amendments 90 and 78 to the FMPs to improve 
the fleet's flexibility, reduce the potential number of violations for 
overages, reduce enforcement costs, and allow more complete harvest of 
allocations. NMFS published a notice of availability for Amendments 90 
and 78 on December 17, 2008 (73 FR 76605), and a proposed rule on 
January 5, 2009 (74 FR 254). More information on how overages can occur 
and an overview of the catch and accounting system used by NMFS and the 
NOAA Office for Law Enforcement to monitor CQ is described in the 
preamble to the proposed rule.
    The comment period on the proposed rule and the notice of 
availability ended on February 17, 2009. Six comments were received 
from three individuals regarding the proposed rule and FMP amendment. 
Two comments supported the proposed rule, and three comments questioned 
specific technical aspects of the regulation. These comments did not 
raise new issues or concerns that have not been addressed in the RIR/
FRFA prepared to support this action or the preamble to the proposed 
rule. The remaining comment was not directly related to the action and 
did not raise new issues or concerns that have not already been 
addressed in the analysis prepared to support this action or the 
preamble to the proposed rule. After

[[Page 42181]]

consideration of these comments, NMFS approved Amendments 90 and 78 on 
March 16, 2009.

Effects of the Action

    A transfer of CQ after fish have been landed to rectify a negative 
CQ balance is commonly known as a post-delivery transfer. The following 
sections briefly describe the effects of allowing post-delivery 
transfers to cover CQ overages. Additional discussion of the rationale 
and effects of this action is provided in the preamble to the proposed 
rule published on January 5, 2009 (74 FR 254), and is not repeated 
here.
    Allowing post-delivery transfers in the Amendment 80 Program and 
Rockfish Program can mitigate potential overages, reduce enforcement 
costs, and provide for more precise TAC management and more value from 
the harvests for participants. Post-delivery transfers also increase 
fleet flexibility and allow more efficient use of resources. The 
flexibility to complete transfers after delivery reduces the potential 
that some CQ will remain unharvested if a cooperative is not able to 
harvest its CQ allocation without the risk of an overage, and minimizes 
the potential for CQ overages because a CQ account can be balanced 
after delivery through a post-delivery transfer.
    This action allows post-delivery transfers to cover CQ overages. 
There is no limit on the size of a post-delivery transfer or on the 
number of post-delivery transfers a cooperative could undertake, but a 
vessel that is assigned to that cooperative may not begin a new fishing 
trip for that cooperative if the CQ account balance is zero or negative 
for any of the groundfish or PSC species CQ assigned to the 
cooperative. This action prohibits a person from having a negative 
balance in a CQ account for any species after the end of the calendar 
year for which that CQ permit was issued.
    This rule does not modify existing regulations that require that CQ 
issued to a cooperative can be transferred only among other 
cooperatives, and that participants in a limited access fishery in 
either of these two LAPPs may not transfer any unused TAC to 
cooperatives as CQ.
    Under the final rule, no member of a cooperative may use any vessel 
assigned to that cooperative to begin a new fishing trip for any 
groundfish CQ species unless the CQ balance of the cooperative for all 
groundfish or PSC species for which CQ is assigned is positive. The 
final rule defines the term ``fishing trip'' for purposes of this 
requirement to provide a clear standard for fishery participants. A 
fishing trip is defined as the period beginning when a vessel operator 
commences harvesting any groundfish species that is assigned CQ under 
the relevant LAPP and ending when the vessel operator removes any 
processed or unprocessed groundfish CQ species from that vessel. The 
specific groundfish and PSC species for both LAPPs are listed above in 
Table 1. The definition of a fishing trip effectively extends from the 
first harvest of a groundfish species that is issued CQ in the 
applicable LAPP until the beginning of a delivery of groundfish from a 
catcher vessel, or the beginning of offloading processed groundfish 
from a catcher/processor. This definition ensures that no member of a 
cooperative could commence fishing for any groundfish species on the 
cooperative's CQ permit on any vessel until the CQ accounts of all 
groundfish and PSC species assigned to that cooperative are positive. 
This provision is intended to discourage harvesters from continuing to 
debit groundfish or PSC against their cooperative's CQ account for 
numerous fishing trips and run a negative CQ balance without ensuring 
that adequate unused CQ exists that can be transferred from another 
cooperative to cover that negative balance.
    This rule prohibits a cooperative from maintaining a negative 
balance in its CQ accounts for any groundfish or PSC species after the 
end of the calendar year for which that CQ was issued. This prohibition 
effectively requires that all post-delivery CQ transfers must be 
completed by December 31 of each year. Overages that are not covered by 
December 31 of each year are subject to a penalty or other enforcement 
action. This action is expected to reduce the risk of potential 
overages because cooperatives would have time to balance their CQ 
accounts by the end of the calendar year.

Summary of Regulatory Changes

    This action makes the following changes to the existing regulatory 
text at 50 CFR part 679:
    <bullet> Add two new paragraphs to define the term ``fishing trip'' 
at Sec.  679.2;
    <bullet> Modify the existing prohibitions at Sec.  679.7(n)(7)(i) 
for the Rockfish Program and Sec.  679.7(o)(4)(v) for the Amendment 80 
Program to clarify that a person may not begin a fishing trip with a 
vessel assigned to a Rockfish Program cooperative or Amendment 80 
Program cooperative, if that Amendment 80 or Rockfish cooperative does 
not hold unused CQ for all species for which CQ is assigned; and
    <bullet> Add prohibitions at Sec.  679.7(n)(7)(vi) for the Rockfish 
Program and Sec.  679.7(o)(4)(vi) for the Amendment 80 Program to 
prohibit a person from having a negative balance in a CQ account for 
any species after the end of the calendar year for which that CQ permit 
was issued.

Response to Comments

    NMFS received six comments from three individuals regarding 
Amendments 90 and 78 and the proposed rule. Two commenters represent 
organizations of Rockfish Program and Amendment 80 Program participants 
that will be affected by this action. The third commenter did not 
indicate an affiliation.
    Comment 1: The commenter raises general concerns about fisheries 
management asserting that fishery policies have been overly liberal and 
have not been to the benefit of American citizens. The commenter 
asserts that NMFS is biased and should not be allowed to manage 
fisheries.
    Response: The comments are not specifically related to the proposed 
rule and recommend broad changes to fisheries management that are 
outside the scope of this action.
    Comment 2: The commenter represents Rockfish Program participants 
who support this action and believe it will facilitate catch accounting 
in the Rockfish Program to accommodate overages. Given the careful 
oversight of cooperative managers, post-delivery transfers are likely 
to be infrequent and will address minor overages.
    Response: NMFS notes the support for this action.
    Comment 3: The Rockfish Program is a multi-species trawl LAPP. 
Trawl fisheries may catch species other than those intended, which can 
make it more difficult to maximize a cooperative's CQ allocation 
without exceeding that amount. These factors should be cited as 
additional rationale for this action.
    Response: The Council addressed the factors cited by the commenter 
during the development of Amendments 90 and 78. Section 2.3.1 of the 
analysis prepared for Amendment 78 provides a detailed description of 
the multi-species nature of the Rockfish Program. Section 2.4 of the 
analysis describes the complexities harvesters face when trying to 
harvest a specific amount of catch in multi-species trawl fisheries and 
the potential effects of this action to mitigate agency and industry 
enforcement costs resulting from potential overages.
    Comment 4: The definition of ``fishing trip'' could be subject to 
interpretation, and the commenter requests clarification on how this 
definition would apply to the Rockfish Program.

[[Page 42182]]

According to the proposed definition, a Rockfish Program fishing trip 
is defined as the period beginning when a vessel operator commences 
harvesting any Rockfish Program species and ending when the vessel 
operator offloads or transfers any Rockfish Program species, whether 
processed or unprocessed, from the vessel. A vessel is considered 
fishing for Rockfish Program species only when they are checked into 
the rockfish fishery via NMFS inseason management. The commenter 
assumes that this prohibition would not restrict a vessel from 
participating in another fishery where these species could be taken 
incidentally or as a directed target fishery but not a part of the 
Rockfish Program.
    Response: NMFS agrees with the interpretation provided by the 
commenter. The regulations make it clear that the post-delivery 
transfer provisions apply only to the delivery of fish caught under the 
authority of a CQ permit. When a vessel is not fishing under a Rockfish 
Program fishery, fish are not harvested under a CQ permit, and the 
post-delivery requirement provisions do not apply.
    Comment 5: It appears that a cooperative would not be in violation 
of the requirement that a vessel cannot begin a new fishing trip if two 
or more of its vessels are on the grounds simultaneously, and one 
vessel in the cooperative makes a delivery that causes the cooperative 
to exceed its CQ cap while other cooperative vessels are fishing. The 
regulations appear to allow vessels in a cooperative to complete their 
fishing trips, but would not allow them to begin a new fishing trip.
    Response: NMFS agrees with the interpretation provided by the 
commenter. The regulations at 50 CFR 679.7(n)(7)(i) make it clear that 
it is prohibited to ``begin a fishing trip for any Rockfish Program 
species with any vessel assigned to a Rockfish cooperative if the total 
amount of unharvested CQ that is currently held by that Rockfish 
cooperative is zero or less for any species for which CQ is assigned.'' 
The regulations do not prohibit vessels assigned to a cooperative from 
completing a fishing trip if the CQ account for a cooperative has been 
exceeded while those vessels are fishing.
    Comment 6: The commenter represents Amendment 80 Program 
participants who support this action and believe it will facilitate 
catch accounting in the Amendment 80 Program, reduce the potential for 
CQ overages, reduce enforcement costs, and aid the fleet in fully 
harvesting its CQ accounts.
    Response: NMFS notes the support for this action.

Classification

Consistency With the Magnuson-Stevens Act and Other Laws

    The Assistant Administrator for Fisheries, NOAA, has determined 
that Amendments 90 and 78 are necessary for the conservation and 
management of BSAI and GOA groundfish fisheries and that they are 
consistent with the Magnuson-Stevens Act and other applicable laws.
    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 that describes the economic impact that this 
action has on small entities. The RIR/FRFA prepared for this final rule 
is available from NMFS (see ADDRESSES). The FRFA for this action 
describes the action, why this action is being proposed, the objectives 
and legal basis for the final rule, the type and number of small 
entities to which the final rule applies, and projected reporting, 
recordkeeping, and other compliance requirements of the final rule. It 
also identifies no overlapping, duplicative, or conflicting federal 
rules and describes any significant alternatives to the final rule that 
accomplish the stated objectives of the Magnuson-Stevens Act and other 
applicable statutes, and that would minimize any significant adverse 
economic impact of the final rule on small entities. The description of 
the action, its purpose, and its legal basis are described in the 
preamble and are not repeated here.
    An IRFA was prepared and summarized in the classifications section 
of the preamble to the proposed rule, which was published on January 5, 
2009 (74 FR 254). The public comment period ended on February 17, 2009. 
NMFS received three public submissions containing six unique comments 
on Amendments 90 and 78 and the proposed rule. These comments did not 
address the IRFA.
    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 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.
    The SBA does not have a size criterion for businesses that are 
involved in both the harvesting and processing of seafood products, and 
NMFS has applied and continues to apply SBA's fish harvesting criterion 
for those 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.
    The FRFA contains a description and estimate of the number of small 
entities to which this final rule would apply. In the Rockfish Program, 
seven cooperatives formed during the first year (2007). The FRFA 
estimates that five of the seven cooperatives are large entities and 
two cooperatives are small entities. In the first year of the Amendment 
80 Program (2008), participants formed one cooperative. The FRFA 
estimates that the Amendment 80 cooperative is a large entity.
    This action directly regulates CQ holders who might use post-
delivery transfers to cover overages. Estimates of the number of small 
entities holding CQ are based on estimates of gross revenues. Landings 
data from the most recent season for which data are available (2005 for 
Rockfish Program and 2007 for Amendment 80 Program) were used to 
estimate the number of small entities.
    All of the directly regulated entities are expected to benefit from 
this action relative to the status quo alternative because the action 
allows greater flexibility and a period of time in which to reconcile 
overages. However, empirical data available to analysts on affiliations 
in the Rockfish Program and the Amendment 80 Program are currently 
incomplete, and it is not possible to certify this outcome as provided 
under the Regulatory Flexibility Act. Therefore, an IRFA and a FRFA 
were prepared as required.
    Among the three alternatives the Council considered for this 
action, the preferred alternative as described in this rule 
(Alternative 2) would best minimize potential adverse economic impacts 
on the directly regulated entities. Under the status quo (Alternative 
1), no post-delivery transfers would be allowed and small entities 
would continue to be penalized for overages. Alternative 3 would have

[[Page 42183]]

allowed post-delivery transfers, but with more limitations and 
restrictions than Alternative 2, the alternative that provides small 
entities the most flexibility to cover overages.

Recordkeeping and Reporting Requirements

    This final rule does not change existing reporting, recordkeeping, 
or other compliance requirements. Any person wishing to cover an 
overage will be required to engage in a transfer of CQ. The required 
reporting and recordkeeping for a post-delivery transfer is the same as 
for any other CQ transfer. NMFS Restricted Access Management Program 
(RAM) will continue to oversee share accounts and share use. At the 
time of landing, RAM will maintain a record of any overage, but instead 
of reporting overages to NOAA Office of Law Enforcement immediately, 
RAM will defer reporting until the end of the calendar year.

Small Entity Compliance Guide

    NMFS has posted a small entity compliance guide on its website at 
http://alaskafisheries.noaa.gov to satisfy the Small Business 
Regulatory Enforcement Fairness Act of 1996 requirement for a plain 
language guide to assist small entities in complying with this rule.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: August 18, 2009.
John Oliver,
Deputy Assistant Administrator For Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-199; Pub. L. 108-447; and Pub. L. 109-479.

0
2. In Sec.  679.2, paragraphs (4) and (5) are added to the term 
``Fishing trip'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Fishing trip means:
* * * * *
    (4) For purposes of Sec.  679.7(n)(7), the period beginning when a 
vessel operator commences harvesting any Rockfish Program species and 
ending when the vessel operator offloads or transfers any processed or 
unprocessed Rockfish Program species from that vessel.
    (5) For purposes of Sec.  679.7(o)(4), the period beginning when a 
vessel operator commences harvesting any Amendment 80 species and 
ending when the vessel operator offloads or transfers any processed or 
unprocessed Amendment 80 species from that vessel.
* * * * *

0
3. In Sec.  679.7, paragraphs (n)(7)(i) and (o)(4)(v) are revised, and 
paragraphs (n)(7)(vi) and (o)(4)(vi) are added to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (n) * * *
    (7) * * *
    (i) Begin a fishing trip for any Rockfish Program species with any 
vessel assigned to a Rockfish cooperative if the total amount of 
unharvested CQ that is currently held by that Rockfish cooperative is 
zero or less for any species for which CQ is assigned.
* * * * *
    (vi) Have a negative balance in a CQ account for any species for 
which CQ is assigned after the end of the calendar year for which a CQ 
permit was issued.
* * * * *
    (o) * * *
    (4) * * *
    (v) Begin a fishing trip for any Amendment 80 species with any 
vessel assigned to an Amendment 80 cooperative if the total amount of 
unharvested CQ that is currently held by that Amendment 80 cooperative 
is zero or less for any species for which CQ is assigned.
    (vi) Have a negative balance in a CQ account for any species for 
which CQ is assigned after the end of the calendar year for which a CQ 
permit was issued.
* * * * *
[FR Doc. E9-20208 Filed 8-20-09; 8:45 am]
BILLING CODE 3510-22-S