[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Proposed Rules]
[Pages 79773-79788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31018]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0808011016-81595-02]
RIN 0648-AX14


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands and Gulf of Alaska License Limitation Program

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes 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 proposed action would remove 
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 proposed action would provide exemptions to this 
requirement for licenses that are used in trawl fisheries subject to 
certain limited access privilege programs. This proposed action would 
issue new area endorsements for trawl catcher vessel licenses in the 
Aleutian Islands if minimum recent landing requirements in the Aleutian 
Islands were met. This proposed 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: Comments must be received no later than February 13, 2009.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``0648-
AX14'', by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
     Mail: P. O. Box 21668, Juneau, AK 99802.
     Fax: 907-586-7557.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter N/A in required fields 
if you wish to remain anonymous). Attachments to electronic comments

[[Page 79774]]

will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe 
portable document file (pdf) formats only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS at the above address, and by email to 
[email protected] or fax to 202-395-7285.
    Copies of Amendments 92 and 82, the Environmental Assessment (EA), 
Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility 
Analysis (IRFA) for this action are available from the NMFS Alaska 
Region at the address above or from the Alaska Region website at http://www.alaskafisheries.noaa.gov.

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 Plan 
(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 (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/IRFA prepared for this proposed action 
describe the rationale and specific provisions of the LLP in greater 
detail (see ADDRESSES) and are not repeated here. The key components of 
the LLP are briefly summarized below.
    The LLP for groundfish 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 atSec.  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) in the GOA; less than 32 
feet LOA and fishing in the BSAI; or using jig gear in the BSAI if the 
vessel is less than 60 feet LOA and deploys no more than five jigging 
machines.
    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 other gears, or for other operational types 
in a manner that could expand fishing capacity. The preamble to the 
final rule implementing the groundfish LLP provides a more detailed 
explanation of the rationale for specific provisions in the LLP 
(October 1, 1998; 63 FR 52642).
    When the Council initially recommended the LLP, the Council 
intended that NMFS determine whether a vessel met a minimum number of 
landings to qualify the owner of that vessel to receive an LLP license 
with a specific gear, area, and operational type endorsement. However, 
the regulations that implemented the LLP used the phrase ``documented 
harvest'' instead of ``landing.'' NMFS asserted that the phrase 
documented harvest was synonymous with the phrase landing, and that the 
phrase documented harvest provided additional clarity to the public 
that the phrase landing did not. NMFS' assertion that these two phrases 
were synonymous was subsequently challenged in court (Trojan 
Partnership v. Gutierrez, 425 F. 3d 620 (9th Cir. 2005). The Court held 
that these phrases were not synonymous.
    To be consistent with Council intent when originally implementing 
the LLP, as well as the specific criteria recommended by the Council 
for this proposed action, this action proposes to use landings, and not 
documented harvest as the basis for determining whether an LLP license 
holder will meet the proposed regulatory requirements.
    The regulatory areas for which LLP licenses were issued included 
the Bering Sea (BS), Aleutian Islands (AI), Southeast Outside District 
(SEO), Central Gulf of Alaska (CG), or 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 of the 
vessel and the operational type of the vessel. As an 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 proposed 
action would not apply to the SEO management area. In 2000, NMFS issued 
groundfish LLP licenses with the appropriate regulatory area 
endorsements, gear, vessel length, and

[[Page 79775]]

vessel operational type designations based on the documented harvests 
of vessels. 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 also designated 
for both trawl and non-trawl gear (i.e., hook-and-line, pot, or jig 
gear) in cases where the vessel met the documented harvests 
requirements using both trawl and non-trawl gear.
    After LLP licenses were initially issued in 2000, 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 are likely factors affecting the number of LLP licenses that 
were 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.
    Beginning 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. Additional effort by 
trawl vessels could increase competition, result in overcapacity in the 
fishery, and potentially make management of the fisheries more 
difficult if effort in the fishery made it more difficult for NMFS to 
close fisheries in a timely manner, thereby exceeding the TAC 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.

Proposed Action

    This proposed rule would implement two different actions. First, 
this proposed rule would remove certain trawl regulatory area 
endorsements on latent LLP licenses. With two exceptions, a trawl 
endorsement for a specific regulatory area would be 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 would allow a person to maintain a trawl endorsement 
on an LLP license for both the CG and the WG provided that 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 would allow retention of a trawl endorsement in a specific 
regulatory area if that area endorsement is required for continued 
participation in one of three LAPPs: the American Fisheries Act (AFA); 
the Amendment 80 Program; or the CG Rockfish. Under this exemption, 
NMFS would 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 would not remove trawl endorsements in the 
CG regulatory area from LLP licenses assigned for use in the CG 
Rockfish Program LAPP.
    Only LLP licenses used in fisheries managed under these three LAPPs 
would be affected by this exemption, because fisheries managed under 
other LAPPs in the North Pacific (e.g., BSAI crab and BSAI halibut and 
sablefish) may not be fished by vessels using trawl gear; therefore 
this action would not affect those fisheries.
    The second action under this proposed rule would issue new trawl AI 
area endorsements for catcher vessel operations for use in the Aleutian 
Islands Subarea. Under this proposed action, NMFS would issue AI trawl 
endorsements to (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 in 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 in State waters during the Federal groundfish 
season in the Aleutian Islands Subarea and have made at least 1,000 mt 
of Pacific cod landings in the BSAI during 2000 through 2006. The 
rationale and effects of these two proposed actions are described in 
detail in the following sections.

Action 1: Removing Latent Trawl LLP Licenses

Use of Trawl LLP Endorsements
    Latent LLP licenses are inactive, but not invalid. Since the 
issuance of LLP licenses in 2000, substantially fewer LLP licenses 
endorsed for trawl fisheries have been used onboard vessels than were 
originally issued. The EA/RIR/IRFA prepared for this proposed action 
describes in detail the reasons that a substantial proportion of trawl 
endorsed LLP licenses have been latent since their issuance (see 
ADDRESSES). Factors leading to more limited participation in trawl 
fisheries, and latent LLP licenses, include the changes in fishery 
management programs over the past decade that established several 
LAPPs, changes in fishing capacity relative to the total allowable 
catch, and regulations implemented to protect Steller sea lions 
(Eumetopias jubatus). Possible incentives for latent LLP license 
holders to re-enter the fisheries include shorter fishing seasons and 
diminished opportunities in other fisheries. As reflected in Section 
2.2.2.1 of the EA/RIR/IRFA, Pacific cod fishery seasons have been 
shortening over the last several years. Diminished season lengths 
restrict fishing opportunities for those permit holders who depend on 
the fishery. The Council was concerned that as other management 
measures are implemented, latent LLP holders could gravitate toward 
open fisheries such as the BSAI Pacific cod trawl fishery. The result 
could be the economic dislocation for those trawl LLP holders dependent 
on the fishery. Potentially, an increase in effort in groundfish 
fisheries that are currently fully utilized, such as Pacific cod, could 
increase the risk of harvesters exceeding TAC before NMFS could close 
the fisheries. Additionally, it is possible that harvesters reentering 
trawl fisheries may not have as much familiarity with specific fishery 
techniques or areas as current participants. These newer participants 
could fish in ways that would increase overall bycatch relative to the 
current and more experienced trawl vessel operators.
    One of the factors contributing to latent trawl LLP licenses is 
NMFS' implementation of three LAPPs in the past decade that assign 
transferrable exclusive harvest privileges to participants in trawl 
fisheries. LLP licenses with specific gear and area endorsements are 
required to continue to participate in each of these three LAPPs.
    The AFA was passed by Congress in 1998 and defined specific vessels 
eligible to participate in the directed

[[Page 79776]]

pollock fisheries in the BSAI using catcher/processors and catcher 
vessels. AFA catcher/processors have received an allocation of pollock 
for harvest and have established a private contractual relationship to 
manage this allocation under a cooperative. Under the AFA, catcher 
vessels are allowed to form cooperatives in conjunction with the 
processor associated with that vessel and that cooperative may receive 
a permit from NMFS for an exclusive harvest privilege. The cooperative 
manages these exclusive harvest privileges on behalf of its members 
according to private contractual arrangements established by its 
members. Regulations that implement the AFA require that any AFA vessel 
that is directed fishing for pollock must be designated on an LLP 
license that was originally derived from the harvest activities of an 
AFA vessel (see regulations at 50 CFR 679.4(k)(10)), and any AFA vessel 
that is a member of a catcher vessel cooperative must have an LLP 
license with a BS or AI regulatory area trawl endorsement in order to 
continue to receive the benefit of the cooperative, even if that vessel 
is not actively fishing (see regulations at 50 CFR 679.4(l)(6)(ii)(D)). 
If the BS or AI endorsement on an LLP license assigned to an AFA vessel 
were removed, an AFA vessel would be effectively precluded from 
continuing to participate in the AFA.
    In 2006, NMFS implemented the CG Rockfish Program that assigns a 
specific amount of quota share (QS) to LLP licenses. The LLP licenses 
were derived from trawl catcher vessel and trawl catcher/processor 
vessels active in the CG directed rockfish fisheries from 1996 through 
2002 (November 20, 2006; 71 FR 67210). Only persons holding QS and the 
associated CG endorsed trawl LLP license are eligible to fish in 
specific CG rockfish fisheries (see regulations at 50 CFR 
679.4(k)(11)). If the CG endorsement on an LLP license were removed, 
that QS holder would be effectively precluded from continuing to 
participate in the CG Rockfish Program.
    Finally, in 2007, NMFS implemented Amendment 80 to the BSAI 
groundfish FMP (September 14, 2007; 72 FR 52668). Amendment 80 assigns 
a portion of the TAC for harvest by eligible non-AFA trawl catcher/
processor vessels (Amendment 80 vessels) for many of the non-pollock 
groundfish fisheries in the BSAI. Under the Amendment 80 Program, an 
eligible Amendment 80 vessel may choose to join a cooperative and that 
cooperative will receive a permit from NMFS for an exclusive harvest 
privilege for a portion of the non-pollock groundfish TAC in the BSAI, 
and an exclusive limit on bycatch of halibut and crab prohibited 
species catch (PSC) associated with those fisheries. Alternatively, 
eligible Amendment 80 vessels can forego participation in a cooperative 
and continue fishing with other non-cooperative vessels in a limited 
access fishery. Regardless, eligible Amendment 80 vessels must be 
designated on an LLP license endorsed for the BS or AI in order to 
participate in the limited access fishery or in a cooperative, even if 
that vessel is not actively fishing (see regulations at 50 CFR 
679.7(o)(2)). As with the AFA, if the BS or AI endorsement on an LLP 
license assigned to an Amendment 80 vessel were removed, that vessel 
would be effectively precluded from continuing to participate in the 
Amendment 80 Program.
    Because LAPPs assign fishery participants exclusive harvest 
privileges and provide them with the ability to coordinate with other 
fishery participants in a cooperative, vessel operators are no longer 
forced to ``race for fish'' in an effort to harvest fish faster than 
their competitors. Under these conditions, vessel operators that used 
specific vessels may find that it is no longer economically efficient 
to race for fish when fishery resources may be rationally apportioned 
among harvesters. Harvesters may choose to consolidate fishing 
operations and tie up vessels, reassign them to other fisheries, or use 
them for fishery support services such as tenders or supply vessels. In 
turn, this consolidation of fishery operations means that fewer vessels 
are active in the fisheries, and fewer LLP licenses are assigned to 
these active vessels. The EA/RIR/IRFA prepared for this action notes 
that a substantial number of the LLP licenses that have been assigned 
to AFA vessels have not been used on AFA vessels during the period from 
2000 through 2006 in the BSAI or GOA due to the consolidation of 
fishing operations encouraged by the AFA.
    A second possible reason that LLP licenses are latent may be due to 
changes in trawl fishing capacity relative to the total allowable catch 
(TAC) in various BSAI and GOA groundfish fisheries. The increase in 
fishing capacity relative to the TAC is described in the EA/RIR/IRFA 
prepared for this action (see ADDRESSES). During the development of 
this proposed action, public testimony to the Council indicated that 
some harvesters who were not primarily active in the groundfish trawl 
fishery have chosen not to continue participating in trawl fisheries 
due to the high costs of participation and the highly competitive 
nature of the trawl fisheries. Public testimony also indicated that if 
the TAC or exvessel value of species commonly taken by trawl gear 
increased relative to current levels, harvesters that have not been 
active recently in trawl fisheries, could assign their LLP licenses to 
vessels and begin trawling. Any such increases in harvesting capacity 
could cause economic dislocation and hardship for those LLP license 
holders currently participating in, and depending upon, the trawl 
groundfish fisheries.
    The third primary reason for more limited use of trawl LLP licenses 
is due to changes in fishery management to mitigate the potential 
effects of trawl fisheries on the western stock of Steller sea lions, 
which is listed as endangered under the Endangered Species Act. Since 
2000, NMFS has implemented various management measures that limit 
trawling in specific areas near Steller sea lion rookeries and 
haulouts, and modified the seasonal apportionments of the TACs for 
pollock, Pacific cod, and Atka mackerel. The changes in fishery 
management to address Steller sea lion concerns is addressed in greater 
detail in the EA/RIR/IRFA prepared for this action (see ADDRESSES). 
These changes have limited opportunities for trawling in some areas and 
for some species, reducing the incentive for some participants to 
continue fishing using trawl gear.

Rationale for Removing Latent Trawl LLP Endorsements

    The Council recommended removing latent trawl LLP endorsements to 
reduce 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 race for fish in a potentially 
wasteful manner. This action would effectively remove the potential for 
new effort in the fishery beyond currently active participants as 
defined by this proposed action, and provide some assurance to current 
participants that their fishing operations would not be disrupted.
    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. The Council considered alternatives that 
would have required

[[Page 79777]]

one or two landings during 2000 through 2006, and options to apply this 
landing requirement to specific regulatory areas, or to apply the 
landing requirements to the GOA and BSAI. The range of years was 
selected by the Council based on the first year that the LLP was 
effective (2000), and the year that represented the most recent 
participation in the trawl fisheries, 2006. The Council considered but 
chose not to extend the landing requirements to 2007 based on concerns 
that choosing 2007 could have encouraged some participants to use their 
trawl LLP licenses to fish in 2007 with the sole intent of meeting 
qualification requirements, which would adversely affect current 
fishery participants and frustrate the intent of the action to reduce 
the number of latent LLP licenses. The Council believed including 2007 
would risk including persons whose fishing was primarily speculative. 
The Council balanced more recent participation, including 2007 fishery 
participation, against considerations of economic dependence and 
historical fishing practices and decided to not include 2007 as an 
eligible year.
    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 be applicable 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. The Council recommended this 
action to best accomplish the goals of removing latent LLP licenses 
because the greatest number of LLP licenses would be removed under this 
action. Table 1 summarizes data presented in the EA/RIR/IRFA prepared 
for this action (see ADDRESSES) which describes the percentage of LLP 
licenses that have been used in the specific regulatory areas for which 
they are endorsed.

Table 1. Number of LLP Licenses with Trawl Endorsements with Landings in
                  a Regulatory Area (2000 through 2006)
------------------------------------------------------------------------
                                                             Estimated
                                           Number of LLP   number of LLP
                                             licenses      licenses with
                                            endorsed in    at least two
Regulatory area      Operational type          each         landings in
                                            regulatory    the regulatory
                                               area       area from 2000
                                                           through 2006
------------------------------------------------------------------------
AI                      Catcher Vessel          48              23
                     Catcher/Processor          54              17
BS                      Catcher Vessel         148             111
                     Catcher/Processor          62              43
CG                      Catcher Vessel         176              80
                     Catcher/Processor          27              14
WG                      Catcher Vessel         160              65
                     Catcher/Processor          26              19
------------------------------------------------------------------------

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, then that trawl endorsement on 
that LLP license in that regulatory area would be extinguished. NMFS 
can verify use of an LLP license on a specific vessel. When combined 
with landings records, NMFS can determine how many landings may be 
assigned to a specific LLP license during a specific 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. 
NMFS therefore proposes to 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 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' 
official record, but limits the ability to rebut this assumption based 
merely on oral testimony or recollection. NMFS has used this assumption 
in other management programs to assign landings to specific LLP 
licenses, most recently in the CG Rockfish Program.
    If a vessel was designated on more than one LLP license, NMFS would 
assign the credit for that landing to any LLP licenses assigned to, or 
``stacked,'' on that vessel at that time. Effectively, NMFS could 
credit a single landing to more than one LLP license. This provision 
would ensure 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 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 would 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. A review of the landings data 
indicates that during the 2000 through 2006 a total of 38 LLP licenses 
were stacked on 19 vessels (i.e., each of the 19 vessels was assigned 
two LLP licenses). Section 2.7.3 of the EA/RIR/IRFA prepared to support 
this action indicates that crediting each of these LLP licenses with 
landings would not be expected to increase the number of LLP licenses 
that met the landings

[[Page 79778]]

requirements (see ADDRESSES) if those LLP licenses were not credited 
with the landings. In addition, apportioning a landing between two LLP 
licenses would require developing detailed rules governing that 
apportionment that could unnecessarily complicate implementation and 
require a decision making process that would be subject to appeal.

Exemptions from the Minimum Landing Requirements

Exemption 1: LLP Licenses used on Vessels Active in the GOA.

    As noted earlier, the Council recommended retaining 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 were 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. The Council intended this proposed 
exemption to provide catcher vessel LLP license holders who have 
demonstrated a substantial and recent dependence in the GOA to be able 
to continue to hold an endorsement in both the CG and WG. Furthermore, 
the option was proposed in part to allow active participants in the CG 
to keep their WG endorsements because several of the TACs for several 
groundfish species in the Western GOA have not been fully harvested in 
recent years. The Council reviewed a range of alternative minimum 
landing requirements including 40, 30 and 20 landings before 
recommending a minimum of 20 landings to qualify for this exemption. 
The Council's recommendation was based on several factors. First, 
public testimony by trawl participants in the GOA overwhelmingly 
supported allowing a limited number of participants who have been 
active in trawl fisheries in the GOA to continue to retain their trawl 
endorsements in the CG and WG even if the LLP license holders did not 
meet the landings requirements in one of those regulatory areas. 
Second, the Council reviewed the number of potentially qualifying LLP 
licenses and determined that requiring a minimum of 20 landings would 
allow LLP licenses held by participants who are active in GOA trawl 
fisheries in the GOA to qualify for this exemption.
    NMFS data show that under a 40 landings requirement, no LLP 
licenses would have qualified for the exemption in the CG and only 
three LLP licenses would qualify in the WG, which would be inconsistent 
with the intent of the action to allow certain additional LLP licenses 
holders to retain their trawl endorsements. Under the 30 landings 
requirement two LLP licenses would have qualified for the exemption in 
the CG and nine LLP licenses in the WG. Trawl fishery participants 
testified to the Council that requiring a minimum of 30 landings would 
adversely affect a number of participants with extensive fishing 
activity in the GOA more than a 20 landings requirement. GOA trawl 
participants presented data to the Council, subsequently verified by 
NMFS, that a number of LLP license holders who had a clear dependence 
on a variety of GOA groundfish fisheries and who had been active in the 
WG or CG would be excluded under a minimum of 30 landing requirements, 
but would not be excluded under a minimum of 20 landings. Additional 
detail on alternatives considered and the number of potential LLP 
licenses that would be exempted under the various alternatives is 
provided in sections 2.7.2 and 2.8 of the EA/RIR/IRFA prepared to 
support this action (see ADDRESSES).
    The Council chose to adopt this exemption based on a review of data 
and public testimony that indicated that several catcher vessel LLP 
license holders who used to fish in the CG and WG have not had the same 
opportunities in both areas since the Steller sea lion mitigation 
measures became effective. As a result, many harvesters have limited 
their participation to only one of these regulatory areas. Without this 
exemption, trawl fishery participants who likely would have continued 
to participate in both the CG and WG without the Steller sea lion 
mitigation measures would have their trawl endorsements in either the 
CG or QG revoked and would be unable to use them in the future should 
Steller sea lion mitigation measures be modified in ways that would be 
favorable to them. The Council determined that an exemption to the 
landing requirement is warranted for these areas in the GOA in order to 
qualify license holders who have established records of recent 
participation in GOA trawl fisheries to be able to fish both the WG and 
the CG regulatory areas. This exemption would apply only to LLP 
licenses that are designated for catcher vessels. This limited 
exemption would minimize the latent capacity that potentially could 
reenter the fishery because catcher vessels typically have lower 
harvesting capacity than catcher processor vessels. The EA/RIR/IRFA 
prepared for this action estimates that 11 CG and 12 WG trawl catcher 
vessel area endorsements that would have been extinguished would be 
retained under this proposed exemption. Under this proposed action, WG 
fisheries, where the TAC has not been fully harvested in recent years, 
would remain accessible to those LLP holders who otherwise would be 
considered latent LLP holders. The Council, in response to information 
and testimony, determined that latent catcher vessel LLP holders should 
have the opportunity to enter fisheries where the TAC has not been 
fully harvested in recent years.

Exemption 2: Retaining Trawl Endorsements for LLP Licenses Assigned to 
LAPPs.

    This proposed action would also exempt 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 would apply 
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 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.
    The Council recommended these exemptions primarily because the 
participants in the three LAPPs have already met stricter requirements 
for these specific management areas to participate in these programs. 
As noted earlier, 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, would adversely affect LAPP participants. This 
is not the intent of this action. The intent of this action is

[[Page 79779]]

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 would be subject 
only to the CG and WG area endorsement landing requirements proposed in 
this action, and the CG Rockfish Program LLP licenses would be subject 
only to the BS, AI, and WG area endorsement landing requirements 
proposed in this action.
    The rule proposes that NMFS would determine which LLP licenses 
would be specifically eligible for this exemption from the landing 
requirements for each of the three LAPPs as follows:
    1. For the AFA, any 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 would be exempt from the landing 
requirements. In addition, any 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, would 
be exempt from the landing requirements in the BS or AI. This exemption 
to the landing requirements would apply to an LLP license only if no 
LLP licenses originally issued based on the harvest activities of AFA 
vessels are assigned to that AFA vessel on the effective date of the 
rule.
    NMFS proposes this implementation mechanism to exempt LLP licenses 
that are necessary for AFA vessels to participate in the BSAI, but 
would reduce the risk that a person could confound the intent of this 
exemption by assigning LLP licenses not originally issued to AFA 
vessels to an AFA vessel at any point in the future, even if that LLP 
license would not otherwise meet the proposed BS or AI landing 
requirements. NMFS would exempt LLP licenses originally derived from 
AFA vessels, or that are assigned to AFA vessels on the effective date 
of a final 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 would be 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 part 679. The LLP licenses 
originally issued based on the harvest activities of those Amendment 80 
vessels, and that could be subject to this proposed exemption are 
listed in Column C of Table 31 to part 679. This provision would ensure 
that LLP licenses that were originally issued to the Amendment 80 
vessels that are eligible to receive QS would continue to remain valid 
in the BSAI. NMFS is not proposing to exempt LLP licenses assigned to 
Amendment 80 vessels other than those listed in Table 31 to part 679. 
Under the Amendment 80 Program, only those LLP licenses that were 
originally issued to Amendment 80 vessels would require an exemption to 
ensure that an Amendment 80 vessel could continue to operate in the 
Amendment 80 Program.
    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 would be exempt from the landing requirements in the CG. 
The intent of this proposed provision would be to ensure that LLP 
licenses that were issued QS and are necessary to participate in the CG 
Rockfish Program could continue to be used in the CG, and would remain 
valid.

Action 2: Adding Aleutian Island Endorsements to Non-AFA Trawl Catcher 
Vessel LLP Licenses

Background on Aleutian Island Fisheries
    The opportunity for catcher vessels to fish in the Aleutian Islands 
has been somewhat limited until processing and fishery support 
facilities developed in Adak, Alaska, the closest port to many of the 
fishing grounds in the Aleutian Islands. Adak was an operation and 
supply location for the U.S. military in the 1940s, and was turned into 
a Naval Air Station after World War II. In the 1990s, the Aleut 
Corporation, the Alaska Native Regional Corporation representing native 
shareholders from the Aleutian Islands, acquired Adak's facilities in a 
land transfer agreement with the Federal government. Since the closure 
of the naval facilities in 1997, the Aleut Corporation has sought to 
transform Adak into a fishery and processing center for the Aleutian 
Islands. Currently, Adak Fisheries, LLC, operates a processing plant in 
Adak, which processes crab, groundfish, halibut, and sablefish. The 
Aleut Corporation has also formed a wholly owned subsidiary, the Aleut 
Enterprise Corporation, with the express purpose of developing economic 
activities in Adak, including fisheries operations.
    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 that may choose 
to land their catch in Adak or Atka (September 14, 2007, 72 FR 52668).
    The State of Alaska also has established Pacific cod and sablefish 
fisheries in the State waters of the Aleutian Islands that are 
exclusively managed by the State and that provide harvesting and 
processing opportunities for vessels and processors based in Adak and 
the nearby community of Atka. These fisheries are managed based on a 
guideline harvest level (GHL) that is determined by the State. These 
State-managed fisheries are tailored to open after the close of the 
federally managed seasons. In addition, State fishery managers 
coordinate with NMFS to open and close State waters to fishing 
concurrently with openings and closings for the Federal seasons to 
harvest the Federal TAC. A State-managed fishery that occurs in state 
waters concurrently with a Federal fishery is called a ``parallel 
fishery.'' The coordinated parallel fishery in State waters allows 
harvesters to efficiently harvest the Federal TAC whether it 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

[[Page 79780]]

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 
endorsement.
Rationale for Issuing New AI Area Trawl Endorsements
    This proposed action would 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 endorsements would provide additional 
harvesting opportunities in the Aleutian Islands to those participants 
who have demonstrated dependence on Aleutian Islands groundfish 
resources. These endorsements are also likely to facilitate shore-based 
processing operations in Adak and Atka by providing greater harvesting 
opportunities to the catcher vessel fleet currently delivering to Adak 
and Atka. These new AI area endorsements would be assigned to LLP 
licenses that are assigned to 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 
would continue to be eligible to use those LLP licenses to fish in the 
Aleutian Islands under the proposed exemption to the landing 
requirements described earlier in this preamble. In particular, 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 and therefore the Council used those landings as 
the basis for determining eligibility to receive an AI area 
endorsement.
    This proposed action would recognize the recent participation by 
catcher vessels in the Aleutian Islands by allowing those vessels to 
extend their fishing operations to Federal waters using trawl endorsed 
LLP licenses. This proposed rule would remove a number of existing, but 
latent, trawl endorsements currently endorsed for the AI regulatory 
area, and issue new AI trawl endorsements for those currently active in 
the fishery. The net effect of this proposed rule is to provide harvest 
opportunities in Federal waters to those currently active in the 
Aleutian Islands but who are not able to access Federal waters because 
they lack an AI trawl endorsement. Even though a number of latent AI 
endorsements are currently available, many of those AI endorsements are 
latent and are assigned to LLP licenses that are held by persons who 
are not active participants in the Aleutian Islands groundfish 
fisheries. In order to ensure that Aleutian Island resources can be 
effectively harvested in both State and Federal waters by currently 
active participants, the Council recommended and NMFS proposes to 
remove latent AI trawl endorsements from LLP licenses not being used in 
the Aleutian Islands and issue new AI trawl endorsements to best 
accomplish that goal.
    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. 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 EA/RIR/IRFA prepared to support this action provides a more 
complete description of the effect of the proposed action (see 
ADDRESSES). NMFS estimates that 12 new AI area endorsements, mostly for 
smaller sized vessels, are estimated to be created, as described in the 
EA/RIR/IRFA prepared for this action.
    Two different types of AI area endorsements would be created. 
First, non-AFA trawl catcher vessels that are equal to or greater than 
60 feet LOA and that 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 in the BSAI from 2000 through 2006 would be 
eligible to receive an AI area endorsement. 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 in the parallel fishery from 2000 
through 2006 would be eligible to receive an AI endorsement. NMFS would 
assign these new AI endorsement to the LLP licenses that designate 
eligible vessels at the time of the effective date of this rule. The 
EA/RIR/IRFA prepared for this action was based on the best available 
data and estimates that eight AI area endorsements would be issued 
based on the catch history of vessels less than 60 feet LOA, and four 
AI area endorsements would be issued based on the catch history of 
vessels equal to or greater than 60 feet LOA (see ADDRESSES).
    The Council recommended different criteria 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 and enforcement and recordkeeping and reporting 
requirements under existing regulations than 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 vessels less than 
and 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.
    Data in section 2.7.5 of the EA/RIR/IRFA prepared to support this 
proposed action indicate that only one LLP license with an AI 
endorsement issued to a non-AFA catcher vessel has been used since 2000 
and the available information indicates that this LLP license is not 
likely to have been used on a vessel less than 60 feet LOA (see 
ADDRESSES). The Council recognized that because at most one active LLP 
license is available for non-AFA trawl catcher vessels, operators of 
vessels less than 60 feet LOA that are active in Pacific cod fisheries 
in State waters in the Aleutian Islands do not have the ability to 
purchase an LLP license and fish in Federal waters.
    The Council recommended that landings in both the State GHL and 
parallel Pacific cod fishery for vessels equal to or greater than 60 
feet LOA were appropriate criteria to determine the most recent 
participants that should

[[Page 79781]]

qualify to receive an AI trawl endorsement, whereas only landings in 
the parallel fishery would be appropriate criteria to determine the 
most recent participants that should qualify to receive an AI trawl 
endorsement for vessels less than 60 feet LOA. The Council chose to 
recommend that only Pacific cod landings be used to determine if a 
vessel met the minimum landing requirements for a new AI trawl 
endorsement because data in section 2.7.5.4 of the EA/RIR/IRFA prepared 
for this proposed action indicates that non-AFA trawl catcher vessels 
almost exclusively harvest Pacific cod in the Aleutian Islands and 
catch of other species (e.g., Atka mackerel and Pacific ocean perch) is 
primarily incidentally caught during Pacific cod directed fishing. 
Although the qualification criteria for catcher vessels less than 60 
feet LOA are more restrictive (i.e., limited to landings in the 
parallel (Federal) fishery and not including landings in the State GHL 
Pacific cod fishery) NMFS data indicate that no additional vessels less 
than 60 feet LOA would have met the 500 mt landing threshold (the 
Council's preferred alternative) and qualified for an AI area 
endorsement if both State GHL and parallel fishery landings were 
included. Therefore, the Council determined that including State GHL 
Pacific cod fishery participation for vessels less than 60 feet LOA 
would not affect the number of qualifying licenses receiving an AI area 
endorsement under the proposed action.
    The Council analyzed a range of minimum landings requirements of 
Pacific cod from 50 mt to 500 mt for non-AFA trawl catcher vessels less 
than 60 feet LOA and from 500 to 1,000 mt for non-AFA trawl catcher 
vessels equal to or greater than 60 feet LOA to qualify for an AI 
endorsement. For vessels greater than 60 feet LOA, the Council chose to 
recommend that a minimum of 1,000 mt of Pacific cod landings in the 
BSAI during the 2000 through 2006 time frame based would be required to 
qualify for a new AI endorsement. The Council chose the same time frame 
(i.e., 2000 through 2006) as the proposed action to remove latent trawl 
LLP licenses based on the first year that the LLP was effective (2000), 
and 2006 which represented recent participation in the trawl fisheries. 
The Council chose not to extend the landing requirements to 2007 based 
on concerns that choosing 2007 could have encouraged some participants 
to expand their efforts in the Aleutian Islands Pacific cod fishery 
with the sole intent of meeting qualification requirements, which would 
adversely affect current fishery participants. Including 2007 would 
increase the risk of including persons who had engaged in purely 
speculative fishing for purposes of qualifying for a trawl endorsement. 
The Council also considered granting AI trawl endorsements for vessels 
with a minimum of 500 mt of Pacific cod landings. The Council chose to 
recommend a more stringent landing requirement (i.e., 1,000 mt) to 
ensure that only participants who had been consistent and had extensive 
participation in the Aleutian Islands Pacific cod fishery would 
qualify. The Council determined that the 500 mt threshold would not 
achieve this objective as well as the higher threshold of 1,000 mt. To 
support this decision, the Council reviewed public testimony and 
information presented in the EA/RIR/IRFA that indicated that vessels 
with the greatest economic dependence on Aleutian Islands Pacific cod 
resources had a minimum of 1,000 mt of landings. Allowing additional 
vessels to qualify with a lower landing threshold would not achieve the 
dual goals of providing opportunities to vessel operators who were 
historically active in the AI Pacific cod fisheries while minimizing 
the potential for additional adverse effects on other fishery 
participants that could result from the issuance of additional AI area 
trawl endorsements. Furthermore, lowering the threshold would increase 
the pool of participants and dilute the revenues of those participants 
dependent on the fishery. The Council, in the EA/RIR/IRFA, reviewed 
gross revenue figures for the fishery and ascertained what revenue 
levels would need to be realized by those who appeared to economically 
depend on the fishery.
    The Council used a similar process to determine the appropriate 
landings criteria for vessels less than or equal to 60 feet LOA. The 
Council chose the same time frame (i.e., 2000 through 2006) as the 
proposed action to remove latent trawl endorsements. The range or years 
was selected by the Council based on the first year that the LLP was 
effective (2000), and 2006 which represented recent participation in 
the trawl fisheries. The Council chose not to extend the landing 
requirements to 2007 based on concerns that choosing 2007 could have 
encouraged some participants to use their trawl LLP licenses to fish in 
2007 with the sole intent of meeting qualification requirements, which 
would adversely affect current fishery participants and frustrate the 
intent of the action to reduce the number of latent LLP licenses. The 
Council considered a range of lower landing thresholds in recognition 
of the lower catch capacity of smaller vessels ranging from 50 mt to 
500 mt. Landings data indicate that 10 AI endorsements would have been 
assigned under the 50 mt landing threshold, and 10 under both 250 and 
500 mt. landing threshold. These data indicate that participation by 
smaller vessels was relatively consistent at a landings threshold over 
500 mt, and therefore best represented consistent historic 
participation. In its recommendation, the Council was guided by public 
testimony and a review of historic landings data and sought to achieve 
the goals of providing additional harvest opportunities and minimize 
potentially adverse effects on current Federal fishery participants. 
Additional detail is provided in section 2.7.5 and 2.8 of the EA/RIR/
IRFA prepared for this proposed action (see ADDRESSES).
    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. No 
other area endorsement in the existing LLP is allowed to be transferred 
separately from the LLP license to which it is attached. The proposed 
action would create a new type of independently transferrable area 
endorsement. 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 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 feet 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

[[Page 79782]]

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 this severability provision was not 
necessary for the AI area endorsements to be issued based on 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 proposed action included in this rule with the 
goal of providing additional harvesting and processing alternatives in 
the Aleutian Islands. The Council assessed these goals and expressed 
concern that allowing a transferable AI area endorsement for a vessel 
less than 60 feet LOA could increase potential fishing effort in 
Federal waters and adversely affect the currently active participants. 
In addition, three of the four vessel operators the Council believes 
may qualify for this provision indicated in public testimony that they 
intended to move their operations to Adak and use the AI area 
endorsement themselves. Given these factors, the Council decided not to 
make these AI area endorsements severable and transferable.
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 within State waters, some qualifying 
landings could 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 proposes 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 in 
State waters and a specific LLP license.
    The first method is applicable to non-AFA catcher vessels less than 
60 feet LOA that meet the requisite minimum 500 mt landings requirement 
to receive an AI endorsement. NMFS would 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; and 5) does not 
have an MLOA equal to or greater than 60 feet.
    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 would 
assign an AI area endorsement based on the landings of a non-AFA trawl 
catcher vessel to an LLP license that 1) designates that non-AFA vessel 
on the effective date of this regulation; 2) was not derived in whole 
or in part from the qualifying fishing history of an AFA vessel; 3) has 
a trawl gear designation; 4) does not have a catcher/processor vessel 
designation; and 5) has at least 1,000 mt of landings of Pacific cod 
using trawl gear in 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 proposes to 
establish a rebuttable presumption that an AI area endorsement would be 
assigned to the LLP license that designates the non-AFA trawl catcher 
vessel on the effective date of this rule. This presumption would 
ensure 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 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 on the effective date of 
this rule, or if the vessel owner disagrees with the presumption that 
NMFS would make establishing the LLP license to which NMFS would assign 
the AI area endorsement according to the official record, the vessel 
owner would have the opportunity to provide additional information and 
challenge NMFS' presumption to designate an otherwise eligible LLP 
license. Should the owner of a vessel meeting the AI endorsement 
requirements subsequently receive an LLP license (i.e., purchase) 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 could request that NMFS assign the AI 
endorsement to that LLP license. Otherwise, NMFS would assign the AI 
endorsement to the LLP license specified in the amended official 
record.
Transfers of AI Endorsements
    Only LLP AI area endorsements for less than 60 LOA would be 
transferrable separate from the LLP. To facilitate the transfers, NMFS 
proposes to modify LLP license transfer regulations at 50 CFR 
679.4(k)(7) to clarify the process for transferring an AI area 
endorsement independent of the LLP license. NMFS would specify 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 a vessel length designation of less than 60 feet 
LOA; and (5) is not longer than the MLOA designated on the LLP license 
to which 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 transfer process for an AI area endorsement would be similar to 
the procedures currently in place for transferring an LLP license. 
First, a person seeking to transfer an AI area endorsement would need 
to submit a complete transfer application for an LLP license to the 
Regional Administrator as described under 50 CFR 679.4(k)(7). As part 
of that application process, the person would need to specify the 
specific LLP license to which the transferred AI area endorsement would 
be assigned. NMFS would not approve the transfer unless the AI area 
endorsement was assigned for transfer to an LLP license that met the 
five requirements specified above.
    NMFS also proposes to modify LLP license transfer regulations at 50 
CFR 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 would be necessary to ensure that AI 
endorsements are treated in the

[[Page 79783]]

same manner that applies to LLP licenses in general.
    NMFS proposes to apply the same limitations on the number of 
transfers of AI area endorsements that currently exist for LLP 
licenses. This limitation would ensure 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 could 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 would not approve an application for 
transfer that would cause a person to exceed the transfer limit of this 
provision. NMFS would 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. The Council recommended applying 
the same transfer provisions to AI endorsements as LLP licenses to 
ensure that NMFS would not have two inconsistent, unduly complex, and 
more costly management systems to accomplish the same goal. Additional 
information on LLP transfers is provided in section 2.7.5 and 2.8[t14] 
of the EA/RIR/IRFA prepared for this action (see ADDRESSES).
    Net Number of Trawl LLP Endorsements Remaining by Regulatory Area 
The EA/RIR/IRFA prepared for this action includes an estimate of the 
net effects of the two proposed actions on the number of trawl 
endorsements by regulatory area. Tables 2 and 3 show the number of 
trawl CV and trawl CP LLP license area endorsements estimated to remain 
and estimated to be removed under the proposed actions. Because this 
action would create up to 12 new AI area endorsements on non-AFA trawl 
CV licenses, the total number and percent of AI area endorsed catcher 
vessel LLP licenses increases compared to the status quo.

  Table 2. Number of Trawl CV LLP Endorsements Remaining by Regulatory
                                  Area
------------------------------------------------------------------------
                                              Total number  Total number
                                  Number of    and percent   and percent
Area  Current  Number   Number     new AI          of            of
       number  exempt  removed  endorsements  endorsements  endorsements
                                                remaining     remaining
------------------------------------------------------------------------
AI       48       42       5         12             55          115%
BS      148      101      33        n/a            115           78%
CG      176       46      80        n/a             96           55%
WG      160        0      83        n/a             77           48%
------------------------------------------------------------------------


  Table 3. Number of Trawl CP LLP Endorsements Remaining by Regulatory
                                  Area
------------------------------------------------------------------------
                                              Total number  Total number
                                               and percent   and percent
  Area      Current      Number     Number     of endorsed   of endorsed
             number      exempt     removed     licenses      licenses
                                                remaining     remaining
------------------------------------------------------------------------
AI              54          46           6           48           89%
BS              62          55           4           58           94%
CG              27          17           7           20           74%
WG              26           0           7           19           73%
------------------------------------------------------------------------

Process for Removing Latent Trawl Endorsements and Assigning New AI 
area Endorsements
    NMFS would 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 would assume that any landings 
made onboard a vessel during 2000 and 2001 would be assigned to the LLP 
license derived from that vessel. Prior to modifying any LLP licenses, 
NMFS would notify all trawl LLP license holders of the status of their 
LLP license endorsements (i.e., whether they would retain or lose their 
endorsements for specific regulatory areas, or would be eligible to 
receive an AI area endorsement). Should an LLP license holder disagree 
with NMFS' official record, NMFS would provide an opportunity for any 
person to submit information to rebut the assumptions made by NMFS.
    The official record created by NMFS would 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 proposes to continue to do so under this 
action. The official record would 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 would presume the official record is correct, and a person wishing 
to challenge the presumptions in the official record would bear the 
burden of proof through an evidentiary and appeals process.
    In the official record, NMFS would assume that landings made in 
2000 and 2001 would be assigned to the LLP license originally issued 
based on that vessel. This assumption could be rebutted by an LLP 
license holder. An LLP license holder would need to provide NMFS with 
written documentation that clearly indicates that an LLP license was 
used on a vessel other than the originally qualifying vessel in order 
to rebut this assumption. NMFS would reassign landings from a vessel 
other than the original qualifying vessel only if these claims were 
accepted.
    If the proposed rule is approved and implemented, NMFS will mail a 
notification to each trawl LLP license

[[Page 79784]]

holders based on the address on record at the time the notification is 
sent about the status of each regulatory area endorsement for that LLP 
license or whether a new AI area endorsement would be assigned to an 
LLP license.. NMFS would provide information concerning the proposed 
effects of any changes to any trawl area endorsements on an LLP license 
to the LLP license holder and 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 would have the burden of proving 
that the submitted claims are correct. NMFS would not accept 
inconsistent claims, unless verified by clear written documentation. 
NMFS would evaluate additional information or evidence to support an 
LLP license holder's inconsistent claims submitted prior to or 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 would act in accordance 
with that information or evidence. However, if after the 30-day 
evidentiary period, NMFS were to determine that the additional 
information or evidence did not prove that the LLP license holder's 
inconsistent claims were correct, NMFS would deny the claim. NMFS would 
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).
    NMFS' IAD would indicate the deficiencies and discrepancies in the 
information or the evidence submitted in support of the claim. NMFS' 
IAD would indicate which claims could not be approved based on the 
available information or evidence, and provide information on how an 
applicant could appeal an IAD. The appeals process is described under 
50 CFR 679.43. A person who appeals an IAD would 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 would reissue any LLP 
licenses pending final action by NMFS as interim LLP licenses. Once 
final action has been taken, NMFS would reissue the LLP license as a 
non-interim LLP license. NMFS would prohibit the transfer of an interim 
LLP license until the appeal is resolved. Transfer restrictions would 
be imposed on interim LLP licenses to ensure that a person would not 
receive an LLP license by transfer and have the endorsement removed 
through an appeal process that was initiated and conducted by the 
previous LLP license holders process that a transferee could not 
control, and which could substantially affect the value and utility of 
that LLP license.
    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 would 
be reissued to the LLP license holder. In cases where all endorsements 
on a LLP license with only a trawl endorsement are extinguished, NMFS 
would 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
    NMFS proposes to modify regulations at 50 CFR 679.4(k)(7)(iii) to 
consolidate and clarify the regulations describing the contents of the 
LLP transfer application. These proposed changes would replace the 
current list of specific information required on an LLP transfer 
application in regulation with a more general reference to the actual 
LLP application form. NMFS proposes these changes to remove references 
to specific regulatory requirements that are already specified on the 
LLP application form that has been approved by OMB. Removing the list 
of required elements on an LLP transfer application from the 
regulations minimizes the risk that the regulations and OMB approved 
collection of information forms would not mismatch. In addition, these 
changes would provide NMFS with the flexibility to modify the LLP 
transfer application in the future simply by receiving approval from 
OMB to modify the collection of information without having to change 
the regulations as well. This proposed housekeeping measure would not 
remove or otherwise modify the information currently required in the 
existing LLP application, with one exception: this general reference 
would encompass the requirement that an applicant must specify the LLP 
license onto which an AI area endorsement would be transferred. 
However, because the application currently requires that the LLP 
license be identified, this change does not modify the burden or cost 
of the PRA collection but rather provides an additional option from 
which to choose on the application.
    In addition, NMFS proposes modifying the regulations at 50 CFR 
679.7(i)(2) through (5), and 50 CFR 679.7(i)(8)(i) to remove the 
requirement that a person must have the original LLP license onboard to 
directed fishing for license limitation groundfish, fish for LLP crab, 
or scallops, or process those species. NMFS proposes to change these 
regulations to allow a person to have a legible copy of the original 
LLP license onboard. The current regulatory requirement can result in 
expensive delays to vessel operations if the vessel operator must wait 
for an original LLP license to arrive via mail after an LLP license has 
been transferred, or to replace a lost or damaged original. NMFS has 
adequate means to track the designation of LLP licenses on specific 
vessels without requiring the original LLP license to be onboard.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this proposed rule is consistent with Amendments 92 and 82, the 
Magnuson-Stevens Act, and other applicable laws, subject to further 
consideration after public comment.

Regulatory Impact Review (RIR)

    An RIR was prepared for this action that assesses all costs and 
benefits of available regulatory alternatives. The RIR describes the 
potential size, distribution, and magnitude of the economic impacts 
that this action may be expected to have. The RIR considers all 
quantitative and qualitative measures. The alternative proposed in this 
rule was chosen based on those measures that maximize net benefits to 
the affected participants in the trawl fisheries. Copies of the RIR 
prepared for this proposed rule are available from NMFS (see 
ADDRESSES). Specific aspects of the RIR are discussed in the next 
section.

Initial Regulatory Flexibility Analysis (IRFA)

    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). Copies of the IRFA prepared for this proposed 
rule are available from NMFS (see ADDRESSES). The IRFA describes the 
economic impact this proposed rule, if adopted, would have on small 
entities. A description of the action, the reasons why it is being 
considered, and a statement of the objectives of, and the legal basis 
for, this action are contained in the SUMMARY section of the preamble 
and are not repeated here. The IRFA for this proposed action describes 
in detail the reasons why this action is being proposed; describes the 
objectives and legal basis for the proposed rule;

[[Page 79785]]

describes and estimates the number of small entities to which the 
proposed rule would apply; describes any projected reporting, 
recordkeeping, or other compliance requirements of the proposed rule; 
identifies any overlapping, duplicative, or conflicting Federal rules; 
and describes any significant alternatives to the proposed rule that 
accomplish the stated objectives of the MSA and any other applicable 
statutes, and that would minimize any significant adverse economic 
impact of the proposed rule on small entities. A summary of that 
analysis follows.

Rationale, Objectives, and Legal Basis of the Proposed Rule

    The IRFA describes in detail the reasons why this action is being 
proposed, describes the objectives and legal basis for the proposed 
rule, and discusses both small and other regulated entities to 
adequately characterize the fishery participants. The MSA is the legal 
basis for the proposed rule. The objectives of the proposed rule are to 
reduce the number of latent trawl endorsements on LLP licenses and to 
provide additional AI trawl endorsements based on the catch history of 
specific non-AFA trawl catcher vessels. NMFS expects the proposed 
action to reduce uncertainty for active participants and provide 
additional harvest opportunities for specific participants in the 
Federal waters of the Aleutian Islands.

Number of Small Entities to Which the Proposed Rule Would Apply

    The directly regulated entities under this proposed rule are 
holders of LLP licenses endorsed for trawl activity. For purposes of an 
IRFA, 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. NMFS is reviewing its small entity size 
classification for all catcher/processors in the United States. 
However, until new guidance is adopted, NMFS will continue to use the 
annual receipts standard for catcher/processors. Even if additional 
catcher/processors would have been identified as small entities under a 
revised small entity size classification, NMFS would have analyzed the 
effect on small entities using the same methods that were used in the 
IRFA prepared for the proposed rule. NMFS considered the effects of the 
proposed rule and attempted to reduce costs to all directly regulated 
entities regardless of the number of small entities.
    The IRFA estimates that a maximum of 181 entities hold LLP licenses 
with trawl endorsements, of these an estimated 174 small entities would 
be directly regulated by this action. The IRFA notes that estimates of 
the number of small entities directly regulated by this proposed action 
are complicated by limited LLP license holder ownership information, 
and are based on available records of employment and information on 
participation in other fisheries. The estimate of the number of small 
entities is conservative. Other supporting businesses may also be 
indirectly affected by this action if it leads to fewer vessels 
participating in the fishery. These impacts are analyzed in the RIR 
prepared for this action (see ADDRESSES).

Impacts on Directly Regulated Small Entities

    The proposed action is to prevent future economic dislocation to 
trawl LLP license holders who have demonstrated consistent and recent 
participation in the trawl fisheries and provide additional harvest and 
processing opportunities in the Aleutian Islands, and the overall 
impact to small entities is expected to be positive. Impacts from the 
proposed rule would accrue differentially (i.e., some entities could be 
negatively affected and others positively affected). The Council 
considered an extensive range of alternatives and options as it 
designed and evaluated the potential for changes to groundfish 
management in the BSAI and GOA including the ''no action'' alternative.
    Three alternative approaches for the management of trawl LLP 
licenses in the BSAI and GOA groundfish fisheries are presented in the 
EA/RIR/IRFA: Alternative 1-Status Quo/No Action; Alternative 2-remove 
trawl endorsements in either the BSAI or GOA from LLP licenses if 
minimum landing requirements were not met; and Alternative 3, the 
preferred alternative, to remove trawl endorsements in the BS, AI, WG, 
or CG areas from LLP licenses if minimum landing requirements were not 
met. Alternative 2 and Alternative 3 would include a provision to add a 
new AI area endorsement for use on non-AFA trawl catcher vessel 
endorsed LLP licenses if minimum landing requirements were met. In 
addition, each of these alternatives examined options for a varying 
range of landing criteria and mechanisms for adding AI area 
endorsements. These alternatives and the options examined in the 
context of these alternatives constitute the suite of ''significant 
alternatives'' for the proposed action for the purposes of the RFA.
    Compared with the status quo, the proposed action selected by the 
Council would be the alternative that would minimize adverse economic 
impacts on the directly regulated small entities. Although the 
alternatives under consideration in this proposed action would be 
expected to provide greater economic stability for trawl LLP license 
holders with recent participation in the trawl fisheries by reducing 
the potential for substantial increases in fishing effort from latent 
LLP license holders, and would provide additional harvesting and 
processing opportunities in the AI for directly regulated small 
entities, in no case are these combined impacts expected to be 
substantial. Both Alternative 2 and Alternative 3 would extinguish 
trawl endorsements on LLP licenses that have had little or no 
participation in trawl fisheries since 2000, therefore the effect of 
this action on those directly regulated entities is expected to be 
minimal. In addition, the addition of new AI endorsements may provide 
additional harvest opportunities for some non-AFA trawl catcher vessels 
in Federal waters, many of which are currently active in State waters 
and are catching fish assigned to the Federal TAC under the parallel 
fishery. It is not clear that these new AI area endorsements would 
substantially increase fishing effort. Although none of the 
alternatives is expected to have any significant economic or 
socioeconomic impacts, the preferred Alternative 3 minimizes the 
potential negative impacts that could arise under Alternative 1, the 
status quo alternative.

[[Page 79786]]

Projected Reporting, Recordkeeping and Other Compliance Requirements

    The proposed rule would require additional reporting, 
recordkeeping, and other compliance requirements. Specifically, NMFS 
would require that a person who is transferring an AI endorsement that 
is issued based on the landings of a non-AFA trawl catcher vessel less 
than 60 feet LOA would need to specify the LLP license to which that AI 
area endorsement is being transferred. This additional requirement 
would require a change in the application for transfer of an LLP 
license.

Duplicate, Overlapping, or Conflicting Federal Rules

    No federal rules that might duplicate, overlap, or conflict with 
this proposed action have been identified.

Collection-of-Information

    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by OMB under Control Number 0648-0334. Public reporting burden 
is estimated to average two hours for the Application to Transfer an 
LLP license and four hours for an appeal of an initial administrative 
determination per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSEES) and by e-
mail to [email protected], or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: December 22, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

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

    1. The authority citation for 50 CFR part 679 is amended to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1540; 1801 et seq.; 3631 et 
seq.; Pub. L. 105-277; Pub. L. 106-31; Pub. L. 106-554; Pub. L. 108-
447; Pub. L. 109-479.
    2. In Sec.  679.4,
    A. Paragraphs (k)(4)(vi) through (k)(4)(x) are added; and
    B. Paragraphs (k)(7)(i), (k)(7)(ii) introductory text, (k)(7)(iii), 
(k)(7)(v), (k)(7)(vi), and (k)(7)(viii)(A) are revised. The additions 
and revisions read as follows:


Sec.  679.4  Permits.

* * * * *
    (k) * * *
    (4) * * *
    (vi) Trawl gear designation recent participation requirements. (A) 
NMFS will revoke any trawl gear designation on a groundfish license 
with an Aleutian Island, Bering Sea, Central Gulf, or Western Gulf 
regulatory area unless one of the following conditions apply:
    (1) A person made at least two legal landings using trawl gear 
under the authority of that groundfish license in that regulatory area 
during the period from January 1, 2000, through December 31, 2006; or
    (2) That trawl gear designation endorsed in that area is exempt 
from the requirements of this paragraph (k)(4)(vi)(A) as described 
under paragraphs (k)(4)(vii) or (k)(4)(viii) of this section.
    (B) NMFS shall assign a legal landing to a groundfish license in 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 [THE 
EFFECTIVE DATE OF THIS REGULATION]; and
    (3) No other groundfish license with a Bering Sea or Aleutian 
Island area endorsement is assigned to that AFA vessel on [THE 
EFFECTIVE DATE OF THIS REGULATION.
    (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;

[[Page 79787]]

    (3) It does not have a catcher/processor vessel designation; and
    (4) That groundfish license has a 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, 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 by the vessel owner beginning [AT THE TIME OF THE 
EFFECTIVE DATE OF THIS RULE] based on the official record.
    (D) If the vessel owner does not hold a groundfish license to which 
an AI endorsement may be assigned on [THE EFFECTIVE DATE OF THIS RULE] 
, or if the vessel owner disagrees with the groundfish license to which 
NMFS assigns the AI endorsement according to the official record, the 
vessel owner will have the opportunity to challenge the official record 
as described in paragraph (k)(4)(x) of this section to amend the 
official record to designate an otherwise eligible groundfish license. 
If the official record is subsequently amended, NMFS will assign the AI 
endorsement to the groundfish license specified in the amended official 
record.
    (x) Trawl gear recent participation official record. (A) The 
official record will contain all information used by the Regional 
Administrator to determine the following:
    (1) The number of legal landings assigned to a groundfish license 
for purposes of the trawl gear designation participation requirements 
described in paragraph (k)(4)(vi) of this section;
    (2) The amount of legal landings assigned to a groundfish license 
for purposes of the AI endorsements described in paragraph (k)(4)(ix) 
of this section;
    (3) The owner of a vessel that has made legal landings that may 
generate an AI endorsement as described in paragraph (k)(4)(ix) of this 
section; and
    (4) All other relevant information necessary to administer the 
requirements described in paragraphs (k)(4)(vi) through (k)(4)(ix) of 
this section.
    (B) The official record is presumed to be correct. A groundfish 
license holder has the burden to prove otherwise. For the purposes of 
creating the official record, the Regional Administrator will presume 
the following:
    (1) A groundfish license is presumed to have been used onboard the 
same vessel from which that groundfish license was derived, the 
original qualifying vessel, during the calendar years 2000 and 2001, 
unless clear and unambiguous written documentation is provided that 
establishes otherwise;
    (2) If more than one person is claiming the same legal landing, 
then each groundfish license for which the legal landing is being 
claimed will be credited with the legal landing;
    (3) The groundfish license to which an AI endorsement described in 
paragraph (k)(4)(ix) of this section will be initially assigned.
    (C) Only legal landings as defined in Sec.  679.2 and documented on 
State of Alaska fish tickets or NMFS weekly production reports will be 
used to assign legal landings to a groundfish license.
    (D) The Regional Administrator will specify by letter a 30-day 
evidentiary period during which an applicant may provide additional 
information or evidence to amend or challenge the information in the 
official record. A person will be limited to one 30-day evidentiary 
period. Additional information or evidence received after the 30-day 
evidentiary period specified in the letter has expired will not be 
considered for purposes of the initial administrative determination.
    (E) The Regional Administrator will prepare and send an IAD to the 
applicant following the expiration of the 30-day evidentiary period if 
the Regional Administrator determines that the information or evidence 
provided by the person fails to support a person's claims and is 
insufficient to rebut the presumption that the official record is 
correct, or if the additional information, evidence, or revised 
application is not provided within the time period specified in the 
letter that notifies the applicant of his or her 30-day evidentiary 
period. The IAD will indicate the deficiencies with the information, or 
the evidence submitted in support of the information. The IAD will also 
indicate which claims cannot be approved based on the available 
information or evidence. A person who receives an IAD may appeal 
pursuant to Sec.  679.43. A person who avails himself or herself of the 
opportunity to appeal an IAD will receive a non-transferable license 
pending the final resolution of that appeal, notwithstanding the 
eligibility of that applicant for some claims based on consistent 
information in the official record.
* * * * *
    (7) * * *
    (i) General. The Regional Administrator will transfer a groundfish 
license, Aleutian Island area endorsement as described under paragraph 
(k)(7)(viii)(A) of this section, or a crab species license if a 
complete transfer application is submitted to Restricted Access 
Management, Alaska Region, NMFS, and if the transfer meets the 
eligibility criteria as specified in paragraph (k)(7)(ii) of this 
section. A transfer application form may be requested from the Regional 
Administrator.
    (ii) Eligibility criteria for transfers. A groundfish license, 
Aleutian Island area endorsement as described under paragraph 
(k)(7)(viii)(A) of this section, or crab species license can be 
transferred if the following conditions are met:
* * * * *
    (iii) Contents of application. To be complete, an application for a 
groundfish license, Aleutian Island area endorsement as described under 
paragraph (k)(7)(viii)(A) of this section transfer, or a crab species 
license transfer must be legible, have notarized and dated signatures 
of the applicants, and the applicants must attest that, to the best of 
the applicant's knowledge, all statements in the application are true. 
An application to transfer will be provided by NMFS, or is available on 
the NMFS Alaska Region website at http://www.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

[[Page 79788]]

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 
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 a 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 Sec.  679.7, paragraphs (i)(2) through (i)(5), and paragraph 
(i)(8)(i) are revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (i) * * *
    (2) Conduct directed fishing for license limitation groundfish 
without a copy of a valid groundfish license, except as provided in 
Sec.  679.4(k)(2);
    (3) Conduct directed fishing for LLP crab species without a copy of 
a valid crab license, except as provided in Sec.  679.4(k)(2);
    (4) Process license limitation groundfish on board a vessel without 
a copy of a valid groundfish license with a catcher/processor 
designation;
    (5) Process LLP crab species on board a vessel without a 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. E8-31018 Filed 12-29-08; 8:45 am]
BILLING CODE 3510-22-S