[Federal Register Volume 74, Number 45 (Tuesday, March 10, 2009)]
[Rules and Regulations]
[Pages 10189-10194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5066]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 071003556-81194-02]
RIN 0648-AW08


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Amendment 15

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 15 to the 
Pacific Coast Groundfish Fishery Management Plan (FMP) which was 
approved by NMFS on June 18, 2008. Amendment 15 revised the FMP to 
include provisions for a vessel license limitation program for the non-
tribal sectors of the Pacific whiting fishery. Amendment 15 is intended 
to serve as an interim measure to limit potential participation in the 
Pacific whiting fishery within the U.S. West Coast Exclusive Economic 
Zone until implementation of a trawl rationalization program under 
Amendment 20 to the Groundfish FMP.

DATES: Effective April 9, 2009.

ADDRESSES: Amendment 15 is available on the Pacific Fishery Management 
Council's (Council's or Pacific Council's) website at: http://www.pcouncil.org/groundfish/gffmp.html.
    Written comments regarding the burden hour estimates or other 
aspects of the collection of information requirements contained in this 
final rule may be submitted to Barry A. Thom, Acting Regional 
Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, 
WA 98115 0070, or by e-mail to [email protected], or by fax to 
(202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Becky Renko, phone: 206-526-6110, fax: 
206-526-6736, or e-mail: [email protected], or for permitting 
information, Kevin Ford, phone: 206-526-6115, fax: 206-526-6736, or e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule is accessible via the Internet at the Office of the 
Federal Register's Web site at http://www.access.gpo.gov/su_docs/aces/aces140.html. Background information and documents are available at the 
NMFS Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm.

Background

    Amendment 15 to the FMP created a vessel license limitation program 
for the three non-tribal sectors of the Pacific whiting fishery off the 
U.S. West Coast. Under current Federal regulations, catcher vessels in 
the Pacific whiting shoreside fishery, catcher vessels in the 
mothership fishery, and catcher/processor vessels, must be registered 
to a groundfish limited entry permit that has a trawl gear endorsement. 
Mothership vessels are not required to be registered to a groundfish 
limited entry permit because the process only and do not harvest. The 
limited entry program has been in place since 1994 and allows 
appropriately registered vessels to participate in groundfish fisheries 
targeting any of the 90+ species managed under the Pacific Coast 
Groundfish FMP. This action implements Amendment 15 to the FMP by 
establishing regulations that require vessels to qualify for a Pacific 
whiting vessel license limitation program to harvest and/or process in 
the non-tribal Pacific whiting fishery. This is in addition to the 
requirement for harvesting vessels to be registered to a groundfish 
limited entry permits. Amendment 15 and the implementing regulations 
are intended to serve as an interim measure that will be discontinued 
when the Pacific Fishery Management Council adopts and the National 
Marine Fisheries Service implements a trawl rationalization program 
under Amendment 20 to the Pacific Groundfish FMP. Amendment 20 is 
currently under development by the Council, which adopted its 
preliminary preferred alternative at the June 2008 Council meeting. The 
Council anticipates taking final action on the trawl rationalization 
program in November 2008. If NMFS approves Amendment 20, implementation 
is scheduled for late 2010, at which time the regulations implementing 
Amendment 15 would be replaced by those implementing Amendment 20. If 
development and implementation of Amendment 20 is delayed beyond that 
point, NMFS intends to request that the Council reconsider the 
provisions of Amendment 15.
    NMFS published a Notice of Availability for Amendment 15 on March 
19, 2008 (73 FR 14765), and requested public comment on it through May 
19, 2008. No public comments were received on the amendment.

[[Page 10190]]

Amendment 15 was approved by NMFS on June 18, 2008. NMFS published a 
proposed rule on July 11, 2008 (73 FR 39930), which requested comments 
through August 11, 2008. During the proposed rule comment period, NMFS 
received 1 letter from another Federal agency in support of the 
rulemaking, and 2 letters from members of the industry. The letters are 
addressed later in the preamble to this final rule. The preamble to the 
proposed rule for this action provides additional background 
information on the fishery and on this final rule. Further detail on 
Amendment 15 also appears in the Environmental Assessment for this 
action, available via the NMFS website provided above under 
``Electronic Access.''

Comments and Responses

    NMFS received 2 letters of comment from members of the fishing 
industry on the proposed rule to implement Amendment 15. These comments 
are addressed here:
    Comment 1: Both commentors recommended implementation of the 
preferred alternative. One commentor believes that implementation of 
Amendment 15 is necessary to reduce the conservation risks to 
overfished stocks and ESA-listed species.
    Response: NMFS agrees with the commentors.
    Comment 2: One commentor requested clarification that the $650 
licensing application fee is a one-time expense and that there will be 
no annual renewal fee.
    Response: The fee to process a Pacific Whiting Vessel License will 
be approximately $650 and is a one-time fee. The regulation has been 
modified to reflect this. The owner of a vessel registered to a Pacific 
Whiting Vessel License will not be required to renew it on an annual 
basis.
    Comment 3: One commentor identified an error in the regulatory text 
at 660.336 (a)(1) that would have required mothership processors to 
hold limited entry permits.
    Response: Owners of harvesting vessels are currently required to 
hold a limited entry permit, registered for use with that vessel, with 
a trawl gear endorsement. Mothership vessels process, but do not 
harvest and are currently not required to hold a limited entry permit. 
This action does not change the existing requirements for groundfish 
limited entry permits, but does implement new requirements for a 
Pacific whiting vessel license for all vessels. The error has been 
corrected.
    Comment 4: One commentor requested that clarification be provided 
for the 2008 fishery qualifying criteria defined in regulation at 
660.336 (a)(2)(i).
    Response: At this time, qualifying criteria specified for the 2008 
fishery is being removed from the regulatory text because the 2008 
Pacific whiting fishery is expected to be completed or near completion 
when this final rule becomes effective. The application deadline 
announced in the final rule is April 9, 2009.
    Comment 5: One commentor requested that NMFS make the following two 
updates to the environmental assessment that supports this action: (1) 
revise the Pacific whiting biomass projections using the results of the 
2008 stock assessment to more accurately state the status of the stock 
biomass; and, (2) revise the deadline dates specified for submission of 
the Pacific whiting vessel license application to match the proposed 
rulemaking.
    Response: In approving this rule, NMFS has considered the recent 
stock assessment information, but did not revise the EA which was 
finalized on June 18, 2008, following a 60 day period in which the EA 
was available to the public for comment. The stock assessment 
information considered is consistent with the Finding of No Significant 
Action prepared in June. The Pacific whiting vessel license application 
deadline that applies to fishery participants will be established in 
regulation by this action. Given delays in the effective date of this 
final rule the application deadline is being further revised to April 
9, 2009.
    Comment 6: One commentor did not believe that the EA fully 
expressed the benefits to the Pacific whiting stock and communities 
from the implementation of a limited access program in the Pacific 
Whiting fishery.
    Response: The EA for this action was finalized on June 18, 2008, 
following a 60 day period in which the EA was available to the public 
for comment. No comments were received on the EA during the comment 
period. NMFS believes that the EA adequately expressed effects of the 
alternative actions on the biological and socio-economic environments 
and that the recommended revisions would not change the proposed action 
or the Finding of No Significant Action.
    Comment 7: One commentor believes it is premature to remove 
existing regulatory text at Sec.  660.373 (h) that constrains vessel 
mobility between the catcher/processor and mothership fisheries in the 
same year. Mobility between sectors is currently under consideration 
with Amendment 20 for a trawl rationalization program.
    Response: NMFS agrees with this comment. Because the issue of 
mobility is being considered under Amendment 20 and was not 
specifically addressed by the Council with Amendment 15, NMFS has 
modified the proposed language and is not removing regulatory text at 
Sec.  660.373 (h) at this time.

Changes From the Proposed Rule

    This final rule includes the following changes from the proposed 
rule:
    1. In Sec.  660.336, (a)(1) has been revised to require mothership 
processors to hold only a Pacific whiting vessel license and not a 
limited entry permit.
    2. In Sec.  660.336 (a)(2)(i), vessel qualifying criteria for the 
2008 fishery has been removed.
    3. In Sec.  660.306 (f), Sec.  660.333 (a) and Sec.  660.336(a), 
dates pertaining to application for Pacific whiting vessel licenses and 
effective dates for the license have been changed.
    4. In Sec.  660.339 paragraph (b) was added to clarify that there 
will be a one-time fee for the issuance of the original Pacific whiting 
vessel license.
    5. In Sec.  660.336 paragraph (a)(2)(i), NMFS has determined that 
the term ``decommissioned'' is too vague. The term has been replaced 
with the following: scrapped, or is rebuilt such that a new U.S.C.G. 
documentation number would be required.

Classification

    The Administrator, Northwest Region, NMFS, determined that 
Amendment 15 to the FMP is necessary for the conservation and 
management of the Pacific whiting fishery and that it is consistent 
with the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) and other applicable laws.
    This rule has been determined to be significant for purposes of 
Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA, a summary of the significant issues raised 
by the public comments in response to the IRFA, NMFS responses to those 
comments, and a summary of the analyses completed to support the 
action. A copy of this analysis is available from NMFS (see ADDRESSES) 
and a summary follows here: Section 604 (a) of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) states that when an agency 
promulgates a final rule under section 553 of this title, after being 
required by that section or any other law to publish a general notice 
of proposed rulemaking, or promulgates a final interpretative rule 
involving the internal revenue laws of the United States as

[[Page 10191]]

described in section 603(a), the agency shall prepare an FRFA. Each 
FRFA shall contain: (1) a succinct statement of the need for, and 
objectives of, the rule; (2) a summary of the significant issues raised 
by the public comments in response to the IRFA, a summary of the 
assessment of the agency of such issues, and a statement of any changes 
made in the proposed rule as a result of such comments; (3) a 
description of and an estimate of the number of small entities to which 
the rule will apply or an explanation of why no such estimate is 
available; (4) a description of the projected reporting, recordkeeping 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities which will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record; and (5) a description of the steps the agency has 
taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes, including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected. Section 212 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 states that, 
for each rule or group of related rules for which an agency is required 
to prepare a FRFA, the agency shall publish one or more guides to 
assist small entities in complying with the rule, and shall designate 
such publications as ``small entity compliance guides.'' The agency 
shall explain the actions a small entity is required to take to comply 
with a rule or group of rules.
    This action is necessary to satisfy the requirements of the 1996 
Sustainable Fisheries Act amendments to the Magnuson-Stevens Act. In 
addition, this action will benefit fisheries conservation and 
management by reducing the race for fish by restricting entry into all 
sectors of the Pacific Whiting fishery.
    Amendment 15 to the Pacific Coast Groundfish FMP is an interim step 
prior to the adoption of Amendment 20-Trawl rationalization for Pacific 
Groundfish which includes Pacific whiting which is scheduled to be 
completed in 2011 or as soon as possible thereafter. The objective of 
this rule is to prevent new entrants from entering the whiting fishery 
in order to provide conservation benefits. Current market conditions 
and the changing nature of Alaska fisheries are likely to bring new 
entrants to the fishery. Increased vessel participation in the whiting 
fishery will likely accelerate the race for fish, reduce the per vessel 
revenues of existing participants, may have undesirable consequences on 
overfished and protected species, and could result in a fishery that is 
more costly and difficult to manage in an effective manner.
    NMFS received no comments on the IRFA. Other comments were received 
and are addressed above, including Comment 2, which clarifies the 
economic impacts of the rule. Specifically, the regulations would limit 
participation in the non-tribal Pacific Whiting fishery to those 
vessels that meet the qualification criteria discussed elsewhere in 
this rule. These vessels include catcher/processors, mothership 
processors, catcher vessels in the Pacific whiting shoreside fishery, 
and catcher vessels in the mothership fishery. The Small Business 
Administration (SBA) guidelines for fishing firms use a $4,000,000 
gross revenue threshold to separate small from large operations. In the 
application to any one firm, the $4,000,000 threshold considers income 
to all affiliated operations. NMFS records suggest the gross annual 
revenue for each of the catcher/processor and mothership operations 
operating in the WOC exceeds $4,000,000 and they are therefore not 
considered small businesses. NMFS records also show that 10-43 catcher 
vessels have taken part in the mothership fishery yearly since 1994. 
These companies are all assumed to be small businesses (although some 
of these vessels may be affiliated to larger processing companies). 
Since 1994, 26-31 catcher vessels participated in the shoreside fishery 
annually. These companies are all assumed to be small businesses 
(although some of these vessels may be affiliated to larger processing 
companies). This rulemaking is expected to have minimal impacts on the 
mothership and shoreside catcher vessels. It is also expected to have 
minimal impact on vessels in the catcher/processor and mothership 
processors. If anything, this rule maintains the economics of the 
existing small businesses participating in the fishery as it prevents 
new vessels, potentially the larger vessels from Alaska, from entering 
the fishery. To qualify for a license, entities need only provide a 
logbook report, an observer report, or a fish ticket or a mothership 
receipt that demonstrates that qualification criteria have been met. 
These documents should be fairly easy to submit as they should be 
within existing business files or be readily obtained by directly 
contacting NMFS or the appropriate state agencies. Given the ease of 
documentation, separate requirements based on size of business were not 
developed. As part of this rulemaking process, a small entity 
compliance guide (the guide) has been prepared. The guide and final 
rule will be sent to the address of record for all the known potential 
entities that are directly affected by this final rule.
    This final rule contains a collection of information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0583. The public reporting 
burden for preparing and submitting a Pacific whiting vessel license 
application is a one-time estimate expected to average 60 minutes per 
response. In subsequent years, approximately six respondents are 
expected to average 30 minutes per response to submit information on 
changes to the license records maintained by NMFS. The estimated time 
includes 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 these 
burden estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) 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, and no person shall be subject to 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.
    NMFS issued Biological Opinions under the ESA on August 10, 1990, 
November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, 
and December 15, 1999, pertaining to the effects of the Pacific Coast 
groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River 
spring/summer, Snake River fall, upper Columbia River spring, lower 
Columbia River, upper Willamette River, Sacramento River winter, 
Central Valley spring, California coastal), coho salmon (Central 
California coastal, southern Oregon/northern California coastal, and 
Oregon coastal), chum salmon (Hood Canal summer, Columbia River), 
sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle 
and lower Columbia River, Snake River Basin, upper Willamette River, 
central California coast, California Central

[[Page 10192]]

Valley, south/central California, southern California).
    NMFS reinitiated a formal section 7 consultation under the ESA in 
2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999, Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000-fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to do a more complete 
analysis of salmon take in the bottom trawl fishery.
    NMFS completed its reinitiation consultation and prepared a 
Supplemental Biological Opinion dated March 11, 2006. In its 2006 
Supplemental Biological Opinion, NMFS concluded that catch rates of 
salmon in the 2005 Pacific whiting fishery were consistent with 
expectations considered during prior consultations. Chinook bycatch has 
averaged about 7,300 over the last 15 years and has only occasionally 
exceeded the reinitiation trigger of 11,000. Since 1999, annual Chinook 
bycatch has averaged about 8,450. The Chinook ESUs most likely affected 
by the Pacific whiting fishery have generally improved in status since 
the 1999 section 7 consultation. Although these species remain at risk, 
as indicated by their ESA listing, NMFS concluded that the higher 
observed bycatch in 2005 does not require a reconsideration of its 
prior ``no jeopardy'' conclusion with respect to the fishery. For the 
groundfish bottom trawl fishery, NMFS concluded that incidental take in 
the groundfish fisheries is within the overall limits articulated in 
the Incidental Take Statement of the 1999 Biological Opinion. The 
groundfish bottom trawl limit from that opinion was 9,000 fish 
annually. NMFS will continue to monitor and collect data to analyze 
take levels. NMFS also reaffirmed its prior determination that 
implementation of the Groundfish FMP is not likely to jeopardize the 
continued existence of any of the affected ESUs.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) were 
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) 
were recently relisted as threatened under the ESA. The 1999 biological 
opinion concluded that the bycatch of salmonids in the Pacific whiting 
fishery were almost entirely Chinook salmon, with little or no bycatch 
of coho, chum, sockeye, and steelhead. The Southern Distinct Population 
Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) were also 
recently listed as threatened under the ESA. As a consequence, NMFS has 
reinitiated its Section 7 consultation on the Councl's Groundfish FMP.
    After reviewing the available information, NMFS concluded that, in 
keeping with Sections 7(a)(2) and 7(d) of the ESA, the proposed action 
would not result in any irreversible or irretrievable commitment of 
resources that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the 
voting members of the Council must be a representative of an Indian 
tribe with federally recognized fishing rights from the area of the 
Council's jurisdiction. Pursuant to Executive Order 13175, this action 
was developed through the Council process with meaningful collaboration 
with tribal officials from the area covered by the FMP. The tribal 
representative on the Council did not make a motion on this action for 
tribal fisheries.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: February 27, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

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


0
2. In Sec.  660.306, paragraphs (f)(1) through (f)(6) are redesignated 
as paragraphs (f)(2)through (f)(7), respectively, and a new paragraph 
(f)(1) is added to read as follows:


Sec.  660.306  Prohibitions.

* * * * *
    (f) * * *
    (1) Fish in any of the sectors of the whiting fishery described at 
Sec.  660.373(a) after April 9, 2009 using a vessel that is not 
registered for use with a sector-appropriate Pacific whiting vessel 
license under Sec.  660.336. April 9, 2009, vessels are prohibited from 
fishing, landing, or processing primary season Pacific whiting with a 
catcher/processor, mothership or mothership catcher vessel that has no 
history of participation within that specific sector of the whiting 
fishery during the period from January 1, 1997, through January 1, 
2007, or with a shoreside catcher vessels that has no history of 
participation within the shore-based sector of the whiting fishery 
during the period from January 1, 1994 through January 1, 2007, as 
specified in Sec.  660.373(j). For the purpose of this paragraph, 
``historic participation'' for a specific sector is the same as the 
qualifying criteria listed in Sec.  660.336 (a)(2).
    (i) If a Pacific whiting vessel license is registered for use with 
a vessel, fail to carry that license onboard the vessel registered for 
use with the license at any time the vessel is licensed. A photocopy of 
the license may not substitute for the license itself.
    (ii) [Reserved]
* * * * *

0
3. In Sec.  660.333, paragraph (f) is removed and paragraph (a) is 
revised to read as follows:


Sec.  660.333  Limited entry fishery eligibility and registration.

    (a) General. A limited entry permit confers a conditional privilege 
of participating in the Pacific coast groundfish limited entry fishery, 
in accordance with Federal regulations in 50 CFR part 660. In order for 
a vessel to participate in the limited entry fishery, the vessel owner 
must hold a limited entry permit and, through SFD, must register that 
vessel for use with a limited entry permit. When participating in the 
limited entry fishery, a vessel is authorized to fish with the gear 
type endorsed on the limited entry permit registered for use with that 
vessel. There are three types of gear endorsements: trawl, longline, 
and pot (or trap). All limited entry permits have size endorsements and 
a vessel registered for use with a limited entry permit must comply 
with the vessel size requirements of this subpart. A sablefish 
endorsement is also required for a vessel to participate in the primary 
season for the limited entry fixed gear sablefish fishery, north of 
36[deg] N. lat. After April 9, 2009, a catcher vessel participating in 
either the whiting shore-based or mothership sector must, in addition 
to being registered for use with a limited entry permit, be registered 
for use with a sector-appropriate Pacific whiting vessel license under 
Sec.  660.336. After April 9, 2009, a vessel participating in the 
whiting catcher/processor sector must, in addition to being registered 
for use with a limited entry permit, be registered for use with a 
sector-appropriate Pacific whiting vessel

[[Page 10193]]

license under Sec.  660.336. After April 9, 2009, although a mothership 
vessel participating in the whiting mothership sector is not required 
to be registered for use with a limited entry permit, such vessel must 
be registered for use with a sector-appropriate Pacific whiting vessel 
license under Sec.  660.336.
* * * * *

0
4. In Sec.  660.335, paragraph (f)(3) is removed and paragraph (a)(2) 
is revised to read as follows:


Sec.  660.335  Limited entry permits renewal, combination, stacking, 
change of permit ownership or permit holdership, and transfer.

    (a) * * *
    (2) Notification to renew limited entry permits will be issued by 
SFD prior to September 15 each year to the most recent address of the 
permit owner. The permit owner shall provide SFD with notice of any 
address change within 15 days of the change.
* * * * *

0
5. A new Sec.  660.336 is added to read as follows:


Sec.  660.336  Pacific whiting vessel licenses.

    (a) Pacific whiting vessel license--(1) General. After April 9, 
2009, participation in the non-tribal primary whiting season described 
in Sec.  660.373(b) requires:
    (i) An owner of any vessel that catches Pacific whiting must hold a 
limited entry permit, registered for use with that vessel, with a trawl 
gear endorsement; and, a Pacific whiting vessel license registered for 
use with that vessel and appropriate to the sector or sectors in which 
the vessel intends to participate;
    (ii) An owner of any mothership vessel that processes Pacific 
whiting to hold a Pacific whiting vessel license registered for use 
with that vessel and appropriate to the sector or sectors in which the 
vessel intends to participate.
    (iii) Pacific whiting vessel licenses are separate from limited 
entry permits and do not license a vessel to harvest whiting in the 
primary whiting season unless that vessel is also registered for use 
with a limited entry permit with a trawl gear endorsement.
    (2) Pacific whiting vessel license qualifying criteria.
    (i) Qualifying criteria. Vessel catch and/or processing history 
will be used to determine whether that vessel meets the qualifying 
criteria for a Pacific whiting vessel license and to determine the 
sectors for which that vessel may qualify. Vessel catch and/or 
processing history includes only the catch and/or processed product of 
that particular vessel, as identified in association with the vessel's 
USCG number. Only whiting regulated by this subpart that was taken with 
midwater (or pelagic) trawl gear will be considered for the Pacific 
whiting vessel license. Whiting harvested or processed by a vessel that 
has since been totally lost, scrapped, or is rebuilt such that a new 
U.S.C.G. documentation number would be required will not be considered 
for this license. Whiting harvested or processed illegally or landed 
illegally will not be considered for this license. Catch and/or 
processing history associated with a vessel whose permit was purchased 
by the Federal Government through the Pacific Coast groundfish fishing 
capacity reduction program, as identified at 68 FR 62435 (November 4, 
2003), does not qualify a vessel for a Pacific whiting vessel license 
and no vessel owner may apply for or receive a Pacific whiting vessel 
license based on catch and/or processing history from one of those 
buyback vessels. The following sector-specific license qualification 
criteria apply:
    (A) For catcher/processor vessels, the qualifying criteria for a 
Pacific whiting vessel license is evidence of having caught and 
processed any amount of whiting during a primary catcher/processor 
season during the period January 1, 1997 through January 1, 2007.
    (B) For mothership at-sea processing vessels, the qualifying 
criteria for a Pacific whiting vessel license is documentation of 
having received and processed any amount of whiting during a primary 
mothership season during the period January 1, 1997 through January 1, 
2007.
    (C) For catcher vessels delivering whiting to at-sea mothership 
processing vessels, the qualifying criteria for a Pacific whiting 
vessel license is documentation of having delivered any amount of 
whiting to a mothership processor during a primary mothership season 
during the period January 1, 1997, through January 1, 2007.
    (D) For catcher vessels delivering whiting to Pacific whiting first 
receiver, the qualifying criteria for a Pacific whiting vessel license 
is documentation of having made at least one landing of whiting taken 
with mid-water trawl gear during a primary shore-based season during 
the period January 1, 1994, through January 1, 2007, and where the 
weight of whiting exceeded 50 percent of the total weight of the 
landing.
    (ii) Documentation and burden of proof. A vessel owner applying for 
a Pacific whiting vessel license has the burden to submit documentation 
that qualification requirements are met. An application that does not 
include documentation of meeting the qualification requirements during 
the qualifying years will be considered incomplete and will not be 
reviewed. The following standards apply:
    (A) A certified copy of the current vessel document (USCG or State) 
is the best documentation of vessel ownership and LOA.
    (B) A certified copy of a State fish receiving ticket is the best 
documentation of a landing at a Pacific whiting shoreside first 
receiver, and of the type of gear used.
    (C) For participants in the at-sea whiting fisheries, documentation 
of participation could include, but is not limited to: a final observer 
report documenting a particular catcher vessel, mothership, or catcher/
processor's participation in the whiting fishery in an applicable year 
and during the applicable primary season, a bill of lading for whiting 
from an applicable year and during the applicable primary season, a 
catcher vessel receipt from a particular mothership known to have 
participated in the whiting fishery during an applicable year, a signed 
copy of a Daily Receipt of Fish and Cumulative Production Logbook 
(mothership sector) or Daily Fishing and Cumulative Production Logbook 
(catcher/processor sector) from an applicable year during the 
applicable primary season.
    (E) Such other relevant, credible documentation as the applicant 
may submit, or the SFD or the Regional Administrator request or 
acquire, may also be considered.
    (3) Issuance process for Pacific whiting vessel licenses.
    (i) SFD will mail, to the most recent address provided to the SFD 
permits office, a Pacific whiting vessel license application to all 
current and prior owners of vessels that have been registered for use 
with limited entry permits with trawl endorsements, excluding owners of 
those vessels whose permits were purchased through the Pacific Coast 
groundfish fishing capacity reduction program. NMFS will also make 
license applications available online at: http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Permits/index.cfm. A vessel owner who 
believes that his/her vessel may qualify for the Pacific whiting vessel 
license will have until April 9, 2009, to submit an application with 
documentation showing how his/her vessel has met the qualifying 
criteria described in this section. NMFS will not accept applications 
for Pacific whiting vessel licenses received after April 9, 2009.
    (ii) After receipt of a complete application, NMFS will notify 
applicants by letter of its determination

[[Page 10194]]

whether their vessels qualify for Pacific whiting vessel licenses and 
the sector or sectors to which the licenses apply. Vessels that have 
met the qualification criteria will be issued the appropriate licenses 
at that time. After April 9, 2009, NMFS will publish a list of vessels 
that qualified for Pacific whiting vessel licenses in the Federal 
Register.
    (iii) If a vessel owner files an appeal from the determination 
under paragraph (a)(3)(ii) of this section the appeal must be filed 
with the Regional Administrator within 30 calendar days of the issuance 
of the letter of determination. The appeal must be in writing and must 
allege facts or circumstances, and include credible documentation 
demonstrating why the vessel qualifies for a Pacific whiting vessel 
license. The appeal of a denial of an application for a Pacific whiting 
vessel license will not be referred to the Council for a 
recommendation, nor will any appeals be accepted by NMFS after May 11, 
2009.
    (iv) Absent good cause for further delay, the Regional 
Administrator will issue a written decision on the appeal within 30 
calendar days of receipt of the appeal. The Regional Administrator's 
decision is the final administrative decision of the Department of 
Commerce as of the date of the decision.
    (4) Notification to NMFS of changes to Pacific whiting vessel 
license information. The owner of a vessel registered for use with a 
Pacific whiting vessel license must provide a written request to NMFS 
to change the name or names of vessel owners provided on the vessel 
license, or to change the licensed vessel's name. The request must 
detail the names of all new vessel owners as registered with U.S. Coast 
Guard, a business address for the vessel owner, business phone and fax 
number, tax identification number, date of birth, and/or date of 
incorporation for each individual and/or entity, and a copy of the 
vessel documentation (USCG 1270) to show proof of ownership. NMFS will 
reissue a new vessel license with the names of the new vessel owners 
and/or vessel name information. The Pacific whiting vessel license is 
considered void if the name of the vessel or vessel owner is changed 
from that given on the license. In addition, the vessel owner must 
report to NMFS any change in address for the vessel owner within 15 
days of that change. Although the name of an individual vessel 
registered for use with a Pacific whiting vessel license may be 
changed, the license itself may not be registered to any vessel other 
than the vessel to which it was originally issued, as identified by 
that vessel's United States Coast Guard documentation number.
    (b) [Reserved]

0
6. Section 660.339 is revised to read as follows:


Sec.  660.339  Limited entry permit and Pacific whiting vessel license 
fees.

    (a) The Regional Administrator will charge fees to cover 
administrative expenses related to issuance of limited entry permits 
including initial issuance, renewal, transfer, vessel registration, 
replacement, and appeals. The appropriate fee must accompany each 
application.
    (b) The Regional Administrator will charge a one-time fee for the 
issuance of the original Pacific whiting vessel license.

0
7. In Sec.  660.373, paragraph (a) is revised to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

    (a) Sectors and licensing requirements. The catcher/processor 
sector is composed of catcher/processors, which are vessels that 
harvest and process whiting during a calendar year. The mothership 
sector is composed of motherships vessels that process whiting and 
catcher vessels that harvest whiting for delivery to motherships. 
Motherships are vessels that process, but do not harvest, whiting 
during a calendar year. The shore-based sector is composed of vessels 
that harvest whiting for delivery to Pacific whiting shoreside first 
receivers. In order for a vessel to participate in a particular whiting 
fishery sector, that vessel must be registered for use with a sector-
specific Pacific whiting vessel license under Sec.  660.336.
* * * * *
[FR Doc. E9-5066 Filed 3-9-09; 8:45 am]
BILLING CODE 3510-22-S