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Proposed Rule

Fisheries of the Exclusive Economic Zone Off Alaska; Gulf of Alaska License Limitation Program

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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 86 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. This proposed action would add a Pacific cod endorsement on licenses issued under the License Limitation Program (LLP) in specific management areas if those licenses have been used on vessels that met minimum recent landing requirements using non-trawl gear, commonly known as fixed gear. This proposed action would exempt vessels that use jig gear from the requirement to hold an LLP license, modify the maximum length designation on a specific set of fixed gear licenses, and allow entities representing specific communities to receive a limited number of fixed-gear licenses with Pacific cod endorsements. This proposed action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Fishery Management Plan, and other applicable law.

DATES:

Comments must be received no later than September 7, 2010.

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-AY42”, by any one of the following methods:

  • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal Web site 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 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, e-mailed to David_Rostker@omb.eop.gov, or faxed to 202-395-7285.

Copies of Amendment 86, the Environmental Assessment (EA), Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) for this action are available from the Alaska Region Web site at http://www.alaskafisheries.noaa.gov.

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FOR FURTHER INFORMATION CONTACT:

Glenn Merrill, 907-586-7228.

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SUPPLEMENTARY INFORMATION:

Background on the License Limitation Program

National Marine Fisheries Service (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 Start Printed Page 43119Fishery Management Plans (FMPs) for groundfish in the respective areas. The North Pacific Fishery Management Council (Council) recommended, and NMFS approved, the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The Council and NMFS have long sought to control the amount of fishing in the North Pacific Ocean to ensure that fisheries are conservatively managed and do not exceed established biological thresholds. One of the measures used by the Council and NMFS is the license limitation program (LLP), which limits access to the groundfish, crab, and scallop fisheries in the BSAI and GOA. The LLP is intended to limit entry into Federally managed fisheries. For groundfish, the LLP requires that persons hold and assign a license for each vessel that is used to fish in Federally managed fisheries, with some limited exemptions. The Council initially envisioned the LLP as an early step in a long-term plan to establish a comprehensive rationalization program for groundfish in the North Pacific. Rationalization programs 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 establishes specific criteria that must be met to allow a person to deploy a vessel to directed fish in most federally managed groundfish fisheries. An LLP license must be assigned to each vessel that is used to participate in directed fishing for most groundfish species. The term directed fishing and the specific groundfish species for which an LLP license is required are defined in regulations at § 679.2. Exceptions to the LLP license requirement apply if the vessel is less than 26 feet in length overall (LOA) and fishing in the GOA; less than 32 feet LOA and fishing in the BSAI; or less than 60 feet LOA, using jig gear in the BSAI, and deploying no more than five jigging machines (See § 679.4(k)(2)).

Under the LLP, NMFS issues licenses that: (1) Endorse fishing activities in specific regulatory areas in the BSAI and GOA; (2) restrict the length of the vessel on which the LLP license may be used, known as the maximum length overall (MLOA); (3) designate the fishing gear that may be used on the vessel (i.e., trawl or non-trawl gear designations); and (4) designate the type of vessel operation permitted (i.e., LLP licenses designate whether the vessel to which the LLP is assigned may operate as a catcher vessel or as a catcher/processor). The endorsements for specific regulatory areas, gear designations, 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 with other operational types in a manner that could expand fishing capacity. The preamble to the final rule implementing the groundfish LLP provides a more detailed explanation of the rationale for specific provisions in the LLP (October 1, 1998, 63 FR 52642).

When the Council initially recommended the LLP, the Council intended that NMFS determine whether a vessel met a minimum number of landings to qualify the owner of that vessel to receive an LLP license with a specific gear, area, and operational type endorsement. However, the regulations that implemented the LLP used the phrase “documented harvest” instead of “landing.” NMFS asserted that the phrase documented harvest was synonymous with the phrase landing, and that the phrase documented harvest provided additional clarity to the public that the phrase landing did not. NMFS' assertion that these two phrases were synonymous was subsequently challenged in court (Trojan Partnership v. Gutierrez, 425 F. 3d 620 (9th Cir. 2005)). The Court held that these phrases were not synonymous. In order to be consistent with Council intent when originally implementing the LLP, as well as the specific criteria recommended by the Council for this proposed action, this action proposes to use landings, and not documented harvests, as the basis for determining whether an LLP license holder will meet the proposed regulatory requirements for Amendment 86.

The regulatory areas for which LLP licenses were issued include: The Bering Sea (BS), Aleutian Islands (AI); Southeast Outside District (SEO); Central Gulf of Alaska (CG), which includes the West Yakutat District adjacent to the SEO; and Western Gulf of Alaska (WG). The documented harvest requirements 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. For example, for a vessel owner to receive an endorsement for non-trawl gear in the CG with a catcher/processor designation, a vessel must have met the minimum documented harvest requirements in the CG using non-trawl gear and the documented harvests must have been caught and processed onboard the vessel.

In 2000, NMFS issued groundfish LLP licenses with the appropriate regulatory area endorsements, gear, vessel length, and vessel operational type designations based on the documented harvests of vessels. NMFS issued more than 300 LLP licenses endorsed for trawl gear, and more than 1,000 licenses for non-trawl gear for use in the BSAI and GOA. Non-trawl gear is commonly known as fixed gear and includes hook-and-line, pot, and jig gear. In many cases trawl and fixed gear LLP licenses were endorsed for multiple regulatory areas (e.g., WG, CG, and BS) if a vessel met the minimum number of documented harvests in more than one area. Additionally, a number of LLP licenses were also designated for both trawl and fixed gear in cases where the vessel met the documented harvests requirements using both trawl and fixed gear.

After LLP licenses were initially issued in 2000, NMFS became aware, through public testimony from fishing industry representatives and an independent review of landings data, that a substantial number of trawl and/or fixed gear endorsed LLP licenses were not being used for fishing in some, or all, of the regulatory areas for which they were endorsed. A variety of factors may result in the lack of use of an LLP license, including poor economic conditions in groundfish fisheries, Start Printed Page 43120choices by LLP license holders to focus on fisheries such as salmon or halibut that do not require the use of an LLP license, or other reasons specific to a license holder. LLP licenses that are valid but are not currently being used on a vessel are commonly known as “latent” LLP licenses.

In early 2007, the Council began reviewing the use of trawl-endorsed LLP licenses in the GOA and BSAI. In April 2008, after more than a year of review, development of an analysis, and extensive public comment, the Council adopted Amendment 92 to the BSAI FMP and Amendment 82 to the GOA FMP, both of which modified the LLP regarding eligibility criteria for trawl endorsements on LLP licenses. Amendments 92 and 82 removed trawl endorsements from LLP licenses that did not meet specific landing requirements during 2000 through 2006. NMFS published a notice of availability for Amendments 92 and 82 on December 12, 2008 (73 FR 75659). A proposed rule was published on December 30, 2008 (73 FR 79773). NMFS approved Amendments 92 and 82 on March 16, 2009, and published a final rule implementing them on August 14, 2009 (74 FR 41080).

In late 2007, the Council began a similar process of reviewing the use of LLP licenses endorsed for fixed gear in the GOA. This review was initiated primarily at the request of active GOA fixed gear fishery participants who were concerned that holders of latent fixed-gear endorsed LLP licenses could resume fishing under the licenses in the future and thereby adversely affect active GOA fixed gear LLP licenses holders' fishing operations as well as the biological health of the fishery. Specifically, fixed-gear participants were concerned about the potential effects of additional effort in the GOA Pacific cod fishery that could increase competition and overcapacity in the fishery. Pacific cod is the primary fishery targeted by vessels using fixed gear in the GOA. In both the CG and WG regulatory areas, approximately one-fourth of the eligible LLP licenses were actively being used. The potential overcapacity from the remaining latent LLP licenses could have adverse effects on management of the fisheries. Increased fishery effort could make it more difficult for NMFS to close fisheries in a timely manner, thereby exceeding the total allowable catch (TAC) for a fishery.

During the development of this proposed action, the Council also received input from the public requesting modification to the LLP to establish minimum landing requirements that must be met to allow a vessel to continue to participate in the Pacific cod fixed-gear fisheries in the GOA consistent with the approach adopted by the Council in 2002, under Amendment 67 to the FMP for groundfish of the BSAI (April 15, 2002, 67 FR 18129). Amendment 67 established a Pacific cod endorsement on LLP licenses that is required for vessels using hook-and-line and pot gear to participate in the directed fishery for Pacific cod in the BSAI. The term “directed fishing” is defined in regulation at § 679.2 and includes retained catch of Pacific cod that exceeds a minimum proportion of the total retained catch onboard a vessel. In April 2009, after more than a year of review and extensive public comment, the Council recommended modifications to the LLP to revise eligibility criteria for fixed gear endorsements on LLP licenses. The Council amended its final action in December 2009 to incorporate a change in the specific method used to allocate Pacific cod endorsed LLP licenses for specific persons (see the description under Action 4 of this preamble for additional detail).

Proposed Action

This proposed rule would implement four different actions, all of which were components of the Council's final action.

  • Action 1: Establish a GOA Pacific cod endorsement for fixed gear LLP licenses.
  • Action 2: Exempt certain vessels using jig gear in the GOA from the requirement to carry an LLP license.
  • Action 3: Modify the MLOA of certain LLP licenses.
  • Action 4: Allow specific GOA community entities to request and receive LLP licenses with a Pacific cod endorsement.

The rationale and effects of these four proposed actions are described in detail in the following sections.

Action 1: Establish a Pacific Cod Endorsement for Fixed Gear LLP Licenses

Background

Since the issuance of LLP licenses in 2000, substantially fewer LLP licenses endorsed for fixed-gear fisheries have been used onboard vessels than were originally issued. Approximately one-fourth of the eligible fixed gear LLP licenses have been actively used in recent years. The EA/RIR/IRFA prepared for this proposed action (see ADDRESSES) describes in detail the number of latent LLP licenses and potential reasons that a substantial proportion of fixed gear endorsed LLP licenses have been latent in the Pacific cod fishery (e.g., vessels to which the LLP licenses have been assigned have not made any landings of Pacific cod) since their issuance. Factors leading to reduced participation in the fixed-gear Pacific cod fishery in the GOA since 2000 include lower TAC and regulations implemented to protect Steller sea lions (Eumetopias jubatus) that establish area and seasonal restrictions on the directed fishery for Pacific cod.

However, diminished opportunities in other fisheries could provide an incentive for latent LLP license holders to re-enter the Pacific cod fisheries. For example, reduced fishing opportunities in pollock or other groundfish fisheries could encourage vessel owners to shift effort to the Pacific cod fishery. The Council was concerned that as management measures are implemented for other fisheries that limit access to those fisheries, such as limited access privilege programs that allocate specific exclusive harvest privileges, latent LLP holders could enter fisheries such as the GOA Pacific cod fixed gear fishery. The Council sought to ensure the continued participation of active participants in the fishery and reduce potential adverse effects on fishery stocks that may occur if catch limits are exceeded. Potentially, an increase in effort in fully utilized fisheries, 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 the fixed-gear Pacific cod fishery 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 of non-Pacific cod species (e.g., halibut) relative to the current and more experienced fixed-gear vessel operators. As noted in Section 2.2.3 of the EA/RIR/IRFA, Pacific cod fishery seasons have shortened over the last several years. Shorter season lengths restrict fishing opportunities for those permit holders who depend on the fishery. The EA/RIR/IRFA notes that it is difficult to predict how fishery effort may shift in the future, but a large number of latent LLP licenses do exist, and their entry in the Pacific cod fishery would destabilize current fishery participants.

Therefore, NMFS proposes this rule to assign Pacific cod endorsements to LLP licenses that have met minimum landing requirements during 2002 through December 8, 2008, or that meet a specific exemption described below. This action would preemptively reduce Start Printed Page 43121the potential adverse affects of overharvesting the GOA Pacific cod resource if latent LLP license holders became active in the fishery.

Criteria for Assigning a Pacific Cod Endorsement

The primary action of this proposed rule would be to assign a Pacific cod fishery endorsement to a LLP license based on landings in the directed Pacific cod fishery in the GOA from 2002 through December 8, 2008 made by vessels operating under the authority of that LLP license. NMFS would assign Pacific cod endorsements that are designated for (1) hook-and-line, pot, or jig gear; (2) specific GOA regulatory areas (i.e., CG and WG); and (3) specific operational types (i.e., catcher vessels or catcher/processors). LLP licenses with an MLOA less than 60 feet would have different landing requirements compared to LLP licenses with an MLOA equal to or greater than 60 feet. Table 1 summarizes the landing requirement criteria that would need to be met for each gear type, regulatory area, operational type, and MLOA of the LLP license.

Table 1—Summary of Landing Requirements for a Fixed Gear Pacific Cod Endorsement

Regulatory areaGear typeOperational typeMLOA of LLP licenseLanding requirement in the Pacific cod directed fishery from 2002 through December 8, 2008
CGHook-and-lineCatcher vessel< 60 feet ≥ 60 feet10 metric tons (mt). 50 mt.
Catcher/ProcessorAll50 mt.
Jig*Catcher vesselAll1 landing.
Catcher/ProcessorAll
PotCatcher vessel< 60 feet10 mt.
≥ 60 feet50 mt.
Catcher/ProcessorAll50 mt.
WGHook-and-lineCatcher vessel< 60 feet10 mt.
≥ 60 feet50 mt.
Catcher/ProcessorAll50 mt.
Jig*Catcher vesselAll1 landing.
Catcher/ProcessorAll
PotCatcher vessel< 60 feet10 mt.
≥ 60 feet50 mt.
Catcher/ProcessorAll50 mt.
* LLP licenses and Pacific cod endorsements would be required only if a vessel uses more than five jigging machines, five lines, and more than 30 hooks per line.

The Council recommended establishing a fixed gear LLP endorsement for Pacific cod to reduce the risk that vessel operators could assign latent LLP licenses to other vessels, effectively reactivating those licenses and thereby increasing the amount of fixed gear effort in the Pacific cod fisheries. This additional effort could increase the harvest rate in the fixed-gear Pacific cod fishery as well as adversely affect currently active participants by increasing competition, diluting their potential gross revenues, and creating incentives for harvesters to race for fish in a potentially wasteful manner. This proposed action would effectively remove the potential for new effort in the fishery beyond currently active participants, as defined by this proposed action. This proposed action would provide additional control on fishing effort in the GOA Pacific cod fishery that is not provided under the current structure of the LLP.

This proposed action does not include modifications to SEO-endorsed licenses because fishing effort in this regulatory area is currently low. The risk of additional effort in the fishery from latent fixed gear LLP license holders was deemed to be unlikely by the Council given the relatively small number of eligible LLP licenses and the TAC for Pacific cod in the SEO. This action does not include the BS or AI regulatory areas. A Pacific cod endorsement requirement has already been established for LLP licenses using fixed gear in these areas under Amendment 67 to the BSAI FMP (April 15, 2002, 67 FR 18129).

Rationale for Landing Requirements

The Council considered a range of options and alternatives to determine the minimum number of landings required to receive a Pacific cod endorsement. The Council considered alternatives that would have required a minimum number of landings or minimum amounts of landings during 2000, the first year that LLP licenses were issued, through December 8, 2008. The Council also considered applying the minimum landing requirement to specific regulatory areas, or the landing requirements to the GOA more generally. The range of years was selected by the Council based on the first year that NMFS could definitively assign landings data to a specific LLP license (2002), and a period year that represented the last year for which NMFS had data available on recent participation in the Pacific cod fisheries (December 8, 2008). The specific date of December 8, 2008, corresponds to the date that the Council selected as a control date after which landings would not be considered for purposes of qualifying for a Pacific cod endorsement. The Council recommended a control date to ensure that fishery participants did not engage in fishing practices for the sole purpose of qualifying for a Pacific cod endorsement, and to ensure that fishery landings represent sustained participation in the directed Pacific cod fishery. The Council balanced more recent participation against considerations of economic dependence and historical fishing practices when selecting the nearly seven-year time frame from 2002 through December 8, 2008. Groundfish harvested incidentally by vessels participating in the halibut and sablefish individual fishing quota fisheries is excluded for the purpose of determining recent participation for this action because it is not considered directed fishing for Pacific cod.

The Council recommended that only catch from vessels fishing under the Federal TAC in either the Federal or parallel fishery would be included. The Federal TAC may be harvested in Federal waters, or in State of Alaska waters under a “parallel fishery.” A parallel fishery occurs when the State opens State waters concurrent with the Start Printed Page 43122Federal fishing season to allow vessels to access the Federal TAC in both State and Federal waters. The Council recommended including this catch because both of these fisheries have participants that are subject to Federal regulation, and vessels transit between State and Federal waters when harvesting Pacific cod assigned to the TAC. Catch from vessels fishing in the State of Alaska's GHL Pacific cod fishery would not be included as qualifying catch to meet the requirements for a Pacific cod endorsement because this catch is not Federally managed, is not subject to the TAC, and is managed exclusively by the State of Alaska.

After a review of groundfish catch history, the Council determined that different landing criteria should apply to different gear types, vessel operation types, and LLP MLOAs during the seven-year period from 2002 through December 8, 2008. The landing criteria recommended by the Council represent a minimal, but sufficient, amount of participation in the Pacific cod fishery to indicate some level of dependence on the fishery. The Council recommended that landing requirements apply to each regulatory area so that endorsements could be removed only for those regulatory areas where minimum landing requirements were not met. Therefore, LLP licenses that were active in more than one regulatory area might meet the minimum landing requirements in one area but not another. The Council recommended this action to accomplish the goals of reducing the effects of potentially hundreds of new entrants into the Pacific cod fishery.

For pot and hook-and-line catcher vessel endorsed LLP licenses with an MLOA of less than 60 feet, at least 10 metric tons (mt) of landings in the directed Pacific cod fishery in total between the fishing years 2002 through December 8, 2008 must have been made under the authority of that LLP license in a regulatory area to allow that LLP license to qualify for a Pacific cod endorsement. The Council considered alternatives that would have required a minimum of one landing and a maximum of 100 mt. The choice of 10 mt was based on extensive public testimony indicating that less restrictive criteria (e.g., one landing, three landings, five landings, or five mt) would provide endorsements to LLP licenses that had only sporadic and limited participation in the Pacific cod fishery between 2002 and December 8, 2008. A review of participation patterns in the fishery (see Section 3.2.2 of the EA/RIR/IRFA) indicated that at higher catch thresholds (i.e., 25 mt and 100 mt), substantially fewer LLP licenses with a less than 60-foot MLOA would receive a Pacific cod endorsement (see Section 3.3.2 of the EA/RIR/IRFA). The Council sought to balance the goal of recognizing past participation and some degree of dependence on the Pacific cod fishery with the goal of not excluding LLP licenses used on relatively smaller vessels that were active in the fishery but that may not have had extensive catch due to the loss of the vessel, changes in fishery conditions, or other factors.

For hook-and-line and pot catcher vessel-endorsed LLP licenses with an MLOA equal to or greater than 60 feet, and for all catcher/processor-endorsed LLP licenses regardless of the MLOA on the license, the Council selected a threshold of 50-mt total landings over the applicable period to qualify for the endorsement. The Council selected this higher landing threshold because vessels using LLP licenses with a catcher/processor endorsement or an MLOA equal to or greater than 60 feet typically have larger harvests than vessels less than 60 feet LOA. The Council sought to balance the goals of recognizing current participants in the Pacific cod fishery and granting Pacific cod endorsements only to participants who were consistently active in the fishery. The Council relied upon public testimony and a review of NMFS data showing participation patterns in the fishery (see Section 2.5 of the EA/RIR/IRFA) indicating that lower landing criteria (e.g., one, three, or five landings and 5, 10 and 25 mt) could qualify a number of LLP licenses that had been used less consistently in the fishery compared to a fewer number of LLP licenses at higher catch thresholds. The Council, however, did not select the most restrictive landing threshold reviewed (i.e., 100 mt) because substantially fewer LLP licenses for hook-and line and pot catcher vessels would receive a Pacific cod endorsement than under less restrictive criteria (see Section 2.5 of the EA/RIR/IRFA). The Council's recommendations balanced the goals of reducing latent capacity in the Pacific cod fishery while providing continuing opportunities for participants with a history of participation in the fishery.

For vessels using jig gear, regardless of size, the Council selected the least restrictive landing threshold analyzed (one landing) as a basis for assigning a jig Pacific cod endorsement. The one landing threshold was chosen based on a review of landings data that indicated that very few LLP licenses would receive Pacific cod endorsements under more restrictive landings criteria (see Section 3.3.2 of the EA/RIR/IRFA). Overall, the analysis prepared for this action estimates that very few jig gear endorsements for catcher vessels would be issued for jig gear under the one landing threshold (19 Pacific cod endorsements in the CG and 11 in the WG). No jig gear endorsements would be issued to LLP licenses with a catcher/processor endorsement because no vessel used a catcher/processor endorsed LLP licenses to fish for Pacific cod with jig gear during the qualifying period. The Council considered more restrictive landing criteria as unnecessary given the limited number of endorsements that would be issued and the relatively limited harvest capacity of jig gear relative to pot or hook-and-line gear.

A Pacific cod endorsement would be required on all LLP licenses assigned to vessels using fixed gear to directed fish for Pacific cod in the GOA. Catcher vessels that use jig gear and meet specific vessel size and gear requirements would be exempt from the requirement to use an LLP license with a Pacific cod endorsement. This exemption is described in detail under Action 2. Other than the exemption described under Action 2, all vessels using fixed gear that are required to have an LLP license when fishing under the Federal TAC in either Federal or State waters would be required to have a Pacific cod endorsement on the LLP license when directed fishing for Pacific cod. However, this requirement would not apply to vessels fishing in the Pacific cod GHL fishery, which is managed exclusively by the State.

Under this amendment, if a vessel, or vessels, to which an LLP license has been assigned meets minimum landings requirements applicable to a type of fixed gear and LLP license MLOA in a specific regulatory area during the period 2002 through December 8, 2008, then the LLP license used on that vessel, or vessels, would be assigned a Pacific cod fixed gear endorsement for those specific gear type(s) or specific regulatory area(s). .An LLP license could qualify for more than one endorsement (i.e., pot, hook-and-line, and/or jig) if it has qualified landings using more than one gear type.

In addition to issuing fixed gear endorsements based on directed harvests of Pacific cod during the 2002 through December 8, 2008 period, NMFS would issue Pacific cod endorsements to a limited number of LLP licenses that meet specific conditions even if those LLP licenses did not meet the minimum landing requirements. Specifically, NMFS Start Printed Page 43123would assign Pacific cod endorsements to LLP licenses that currently: (1) Have a catcher/processor endorsement; (2) were assigned to vessels that did not meet minimum landing requirements to qualify for a Pacific cod endorsement for catcher/processors using hook-and-line gear in either regulatory area where those LLP licenses are endorsed; and (3) were assigned to vessels that participated in industry efforts to reduce halibut prohibited species catch (PSC) in the directed Pacific cod fishery in the GOA during 2006, 2007, or 2008.

This provision is intended to ensure that LLP license holders who decided not to use their vessels in the GOA during 2006, 2007, or 2008, in order to minimize halibut PSC through voluntary private contractual arrangements among hook-and-line catcher/processors would receive a Pacific cod endorsement. NMFS has a record of all LLP licenses that were used on catcher/processor vessels participating in the voluntary private contractual arrangements from 2006 through 2008. NMFS would publish a table in the regulation that lists all LLP licenses that would receive a Pacific cod endorsement under this exemption to facilitate the administration of this provision, and notify the public about the specific LLP licenses that would receive a Pacific cod endorsement. A preliminary list of LLP licenses, based on the best available catch data, eligible for this exemption (and thus able to receive an endorsement) appears at table 2 of this preamble.

In some cases, an LLP license may be eligible to receive an endorsement if it meets the landing requirement in either the CG or WG, and it may qualify for the exemption in the other regulatory area if it did not otherwise meet the landing requirement in that area. Table 2 notes whether an LLP license qualifies for the exemption in an area, qualifies under the landing requirements in an area, or does not meet eligibility requirements under either the exemption or the landing requirements. An LLP license would not be eligible for an endorsement exemption to a regulatory area if that LLP license had not been assigned an endorsement for that area prior to this proposed action.

Table 2—LLP Licenses Qualifying for Hook-and-Line Catcher/Processor Endorsement Exemption

LLP License No.Eligible for CG endorsement exemptionEligible for WG endorsement exemption
LLG 1400YesNo (Qualifies under landing requirements).
LLG 1713YesNo (Not eligible for an endorsement).
LLG 1785YesNo (Qualifies under landing requirements).
LLG 1916YesNo (Qualifies under landing requirements).
LLG 2112YesYes.
LLG 2783YesNo (Not eligible for an endorsement).
LLG 2892YesNo (Qualifies under landing requirements).
LLG 2958YesNo (Not eligible for an endorsement).
LLG 3616YesNo (Not eligible for an endorsement).
LLG 3617YesNo (Qualifies under landing requirements).
LLG 3676YesNo (Qualifies under landing requirements).
LLG 4823YesNo (Qualifies under landing requirements).
LLG 2081No (Qualifies under landing requirements)Yes.
LLG 3090No (Not eligible for an endorsement)Yes.

Table 2 indicates that under this proposed exemption, NMFS would issue 12 CG and three WG endorsements. An LLP license that receives a Pacific cod hook-and-line catcher/processor endorsement under this proposed exemption could only be assigned to a vessel participating in the Pacific cod offshore sector that is fishing in the regulatory area of the GOA for which the endorsement is received. Regulations at § 679.2 define the inshore and offshore sector for Pacific cod. Current regulations assign the offshore sector of the GOA Pacific cod fishery 10 percent of the TAC in the CG and WG. The remaining 90 percent of the TAC will be is assigned for vessels in the inshore sector. Vessels are required to participate in the offshore sector if they are equal to or greater than 125 feet LOA, or are used to process more than 126 mt of pollock and Pacific cod in the aggregate during any seven-day period. Vessels not meeting these criteria must select annually whether they will participate in either the inshore or the offshore Pacific cod fishery in the GOA. NMFS is aware that in December 2009, the Council recommended modifications to allocate Pacific cod among various gear types and vessel size classes and operational types. The modification would remove the distinct inshore and offshore sectors in the Central and Western GOA. This action is commonly known as the GOA Pacific cod sector split. Forthcoming proposed regulations that would implement the Council's changes to Pacific cod management under the GOA Pacific cod sector split would address any potential impact on Pacific cod endorsements issued under this proposed rule.

In this rule, NMFS would implement the Council's recommendation that LLP licenses receiving an endorsement under this provision “only be allowed to participate in the offshore fishery” by requiring that vessels fishing in a regulatory area for which they receive an endorsement under this exemption register and fish only in the offshore sector in that area. For example, under this proposed rule, license LLG 4823 (see Table 2 above) would receive a Pacific cod endorsement in the CG under the exemption, and it would also qualify to receive an endorsement under the landings requirements described under Table 1. Thus, under this rule, if LLG 4823 is assigned to a vessel fishing in the CG, that vessel could only participate in the offshore sector in the CG.

The proposed rule would retain the requirement that vessel owners elect annually on their Federal Fisheries Permit (FFP) application whether to participate in the inshore or the offshore sector of the GOA. Therefore, a vessel operator who is assigned an LLP license with a Pacific cod endorsement exemption could not participate in the inshore sector in one regulatory area and the offshore sector in another regulatory area in the GOA during the same calendar year. For example, if a vessel operator wished to participate in the CG and WG with a vessel assigned LLG 4823, the vessel operator could only participate in the offshore sector.

The Council recommended limiting LLP holders receiving a Pacific cod endorsement under this exemption to the offshore sector to ensure that LLP license holders benefitting from this Start Printed Page 43124exemption could not use the Pacific cod endorsement to also expand effort in the inshore Pacific cod fishery. The proposed rule would modify regulations at § 679.7 to clarify that once an LLP holder elects to operate in either the inshore or the offshore sector in the GOA, any vessel to which that LLP license is assigned cannot participate in the sector not selected for the remainder of the calendar year. This clarification would implement the Council's recommendation to ensure LLP license holders could not alternate activities between the inshore and offshore sector, and potentially disadvantage other fishery participants who are only able to, or only choose to, annually participate in one sector.

Table 3 summarizes data presented in the EA/RIR/IRFA prepared for this action (see ADDRESSES) and describes the number of LLP licenses by each operational type, regulatory area, and within each MLOA category that would receive a Pacific cod endorsement relative to the number of currently endorsed LLP licenses based on the landings criteria described in Table 1.

Table 3—Estimated Number of Fixed Gear Pacific Cod Endorsements To Be Issued

Regulatory areaOperational typeMLOA of LLP licenseCurrent number of endorsementsEstimated number of qualifying endorsements
CGCatcher vessel< 60 feet702193
≥ 60 feet18134
Catcher/ProcessorAll4927
WGCatcher vessel< 60 feet15477
≥ 60 feet11024
Catcher/ProcessorAll3121

Determining Landings Assigned to an LLP License

Since 2002, NMFS has required that an LLP license designate a specific vessel on which it was being used. This requirement has provided NMFS the information necessary to assign landings to a specific LLP, and allows NMFS to verify the use of an LLP license on a specific vessel. When information about the use of an LLP license on a specific vessel is combined with vessel landings records, NMFS can determine how many landings may be assigned to a specific LLP license during the 2002 through December 8, 2008, proposed qualifying period. If an LLP license were not assigned a sufficient amount or number of landings in a specific regulatory area by vessel operation type and gear type for that MLOA, then under the proposed rule NMFS would not issue a Pacific cod endorsement for that LLP license, unless that LLP license were eligible for an exemption from landing requirements as previously described for specific hook-and-line catcher/processor endorsed LLP licenses.

If a vessel were designated on more than one LLP license, NMFS would assign the credit for any of the vessel's landings to all LLP licenses assigned to, or “stacked,” on that vessel at that time. Therefore, NMFS could credit a single landing to more than one LLP license. This provision would ensure that when more than one LLP license with a specific combination of gear/area endorsements was assigned to a vessel that made a landing, all LLP licenses assigned to that vessel would be credited with the landing. Because NMFS' catch accounting system does not indicate how specific landings should be assigned to multiple LLP licenses assigned to a vessel at the time a landing was made, this provision would resolve any potential disputes that could arise about the assignment of specific landings.

Section 2.5.12 of the EA/RIR/IRFA prepared to support this action (see ADDRESSES) indicates that NMFS expects that crediting each of these stacked LLP licenses with landings would not substantially increase the number of LLP licenses that met the landings requirements under the Council's preferred alternative. In addition, apportioning a landing between two LLP licenses rather than crediting each license with the full amount of each landing would require that NMFS develop detailed rules governing that apportionment, which could require a decision making process that would be subject to administrative appeal, and unnecessarily complicate implementation. The administrative appeal process is described in greater detail below.

Thus, under this proposed rule, in order to receive a Pacific cod endorsement for either the CG or WG, a vessel with a valid LLP license would have to either demonstrate that it had sufficient cumulative landings of Pacific cod between fishing years 2002-2008, or that it landed a sufficient total amount of fish during that period, or that the LLP license holder qualifies for such an endorsement pursuant to the exception listed above.

Action 2: Exempt Certain Vessels Using Jig Gear From the Requirement To Carry an LLP License

The second action under this proposed rule would exempt vessels using jig gear in the GOA from the requirement to be assigned an LLP license, provided those vessels do not use more than five jigging machines, more than one line per machine, and more than 30 hooks on any one line. This exemption from the requirements of the LLP for jig gear vessels is intended to provide a limited opportunity for entry level vessel operators to participate in the Federal Pacific cod fishery without the obligations and costs that they may incur if a Pacific cod endorsement were required.

The proposed exemption is similar to an exemption that currently applies to jig gear vessels operating in the BSAI. Regulations at § 679.4 exempt vessels less than 60 ft LOA using a maximum of five jig machines, no more than one line per jig machine, and no more than 15 hooks per line, from the requirements of the LLP in the BSAI. The Council recommended that the exemption in the GOA be similar to those in the BSAI to allow vessel operators to operate in both the BSAI and GOA with jig gear. The proposed restrictions on jig gear are consistent with the gear allowed in the GOA State waters Pacific cod jig fisheries. State regulations allow the use of up to 150 hooks for vessels participating in the State GHL fishery. The proposed regulation would allow a maximum of 150 hooks as well (i.e., up to 5 lines with 30 hooks each). The purpose of the Start Printed Page 43125jig exemption is to ensure that there are opportunities for vessels to use jig gear in the GOA Pacific cod fisheries.

Section 2.5.7 of the EA/RIR/IRFA prepared for this action notes that the majority of vessels using jig gear during 2000 through 2007 are less than 58 feet LOA. Relatively few vessels actively participate in the jig fishery on an annual basis (an average of 18 in the CG and 11 in the WG). Pacific cod catch by jig gear vessels represents a small portion of the overall TAC. Few of the vessels using jig gear fish in Federal waters. Most vessels that use jig gear and hold LLP licenses participate exclusively in the parallel fishery or the State-managed GHL Pacific cod fisheries. The proposed action would not limit the size of vessels exempted from an LLP license requirement, provided the maximum number of jig machines and hooks per line are not exceeded. The Council did not deem a vessel length limit necessary after reviewing the size of vessels active in the Pacific cod fishery and the constraints imposed on vessels by the line and hook limits under this provision. This action would not be expected to increase harvest of other groundfish species assuming the recent fishing patterns of vessels using jig gear in the GOA continue. This recommendation is consistent with the Council's goals of providing continuing opportunities for entry-level fishermen using jig gear and minimizing the potential impact of new entrants on active participants in the GOA Pacific cod fishery.

Jig gear operators who meet the landing threshold described under Action 1 would receive a Pacific cod endorsement for jig gear that would allow a vessel using an LLP license with this endorsement to use more than five jigging machines, more than five lines, and more than 30 hooks per line.

Action 3: Modify the MLOA of Certain LLP Licenses

The third action under this proposed rule would modify the MLOA specified on certain LLP licenses that are eligible to receive a Pacific cod endorsement under two different scenarios. Overall, this proposed action would modify the MLOA specified on certain LLP licenses to allow holders of those licenses to continue to participate in the fixed gear Pacific cod fishery as they do currently without increasing the number of active participant in the Pacific cod fishery.

The first modification would apply if: (1) An LLP license has a specified MLOA greater than or equal to 60 feet; (2) that LLP license was consistently assigned to a single vessel under 60 feet LOA from January 1, 2002 through December 8, 2008; and (3) the vessel to which the LLP license was assigned met the landing thresholds applicable to LLP licenses with a specified MLOA under 60 feet. If these criteria were met, NMFS would issue a Pacific cod endorsement for the applicable gear type to the LLP license, but modify the MLOA of the LLP license to match the LOA of the vessel to which the LLP license was assigned. In no case could the MLOA specified on the LLP license be increased beyond 60 feet. This modification would ensure that vessel owners could continue to use the vessel and LLP licenses in the fisheries as they had during the January 1, 2002 through December 8, 2008, time period and the LLP licenses would receive a Pacific cod endorsement applicable to the length of the vessel to which the LLP license was assigned. This modification would reduce the overall MLOA specified on those LLP licenses that meet these criteria.

To determine the MLOA that would be specified on the LLP license, NMFS would use the LOA of the vessel to which the LLP license is assigned at the time of the effective date of this rule, if approved. NMFS maintains records of vessel LOA based on data reported by vessel owners. Regulations at § 679.4 require vessel owners to report accurate LOA in order to receive and hold an FFP. NMFS would use the reported FFP data to determine the LOA of a vessel. If the LLP holder disagreed with the LOA on file with NMFS and wished to provide data to NMFS to establish a different LOA for the vessel, NMFS would require that the LLP license holder provide a survey conducted by a naval architect or marine surveyor independent from the vessel owner or LLP license holder to verify the LOA of the vessel. NMFS would provide a vessel owner 90 days from the effective date of this rule to provide the survey to NMFS. The 90-day time period should provide the LLP license holder with sufficient time necessary to have a vessel surveyed and to provide that information to NMFS. NMFS would not assign a Pacific cod endorsement to an LLP license holder with a greater vessel LOA than that shown in NMFS' record unless a timely independent survey was submitted and received by NMFS. If no survey is provided within the 90-day time frame, NMFS would reissue the LLP license with the MLOA equal to the LOA of the vessel to which the LLP license was assigned based on the LOA on file with NMFS. No LLP license that would receive a Pacific cod endorsement under this provision could have an MLOA equal to or greater than 60 feet under any circumstance to ensure that the intent of the Council's recommendation is met. The procedure proposed here would provide an opportunity for an LLP license holder to amend NMFS' official record consistent with the appeals process described below in this preamble.

Section 2.5.3 of the EA/RIR/IRFA prepared for this action estimates that the MLOA specified on fewer than six LLP licenses would be adjusted by this exemption. A more precise estimate is not available given some uncertainty about the LOA of the vessels to which some of these LLP licenses were assigned during January 1, 2002, through December 8, 2008. Overall, this modification would be expected to have a limited effect on the total harvest of Pacific cod. This exemption would only apply if an LLP license had been continuously assigned to a vessel under 60 feet LOA during that period. The redesignation of the MLOA on an LLP license that qualifies under this provision would effectively prohibit the use of that LLP license on larger vessels that may have greater harvest capacity, but would allow smaller vessels that had been assigned that LLP license to continue to operate in the Pacific cod fishery.

The second modification of an LLP MLOA would apply if an LLP license (1) would be eligible to receive a pot catcher vessel Pacific cod endorsement, and (2) has a specified MLOA of less than 50 feet. If these criteria were met, NMFS would redesignate the MLOA of those LLP licenses to be 50 feet. This modification would ensure that a limited number of vessel owners who had recently purchased vessels that are longer than the MLOA of the LLP license that is eligible to receive the Pacific cod endorsement could continue to use those LLP licenses on their longer vessels. This recommendation is consistent with the Council's goals of providing continuing opportunities for recent fishery participants and minimizing the potential for active participants to expand effort in the GOA Pacific cod fishery.

Section 2.6.11 of the analysis prepared for this action notes that the Council supported this provision because a number of vessel operators using pot gear had recently purchased vessels not greater than 50 feet in LOA, but larger than the MLOA specified on their LLP licenses that would be eligible to receive a Pacific cod endorsement. These vessel owners also hold LLP licenses with the appropriate MLOA; however, these LLP licenses would not meet the minimum landing Start Printed Page 43126requirements to qualify for a Pacific cod endorsement under this proposed action. These vessel operators testified (and available data on LLP licenses shows) that the number of LLP licenses likely to receive a Pacific cod endorsement that could be used on these vessels was limited and costly relative to the harvest capacity of their 50-foot, or shorter, LOA vessels. Very few LLP licenses with an MLOA of 50 feet would receive a Pacific cod endorsement for pot gear under the Council's proposed action. The Council recommended increasing the MLOA of a limited number of LLP licenses to 50 feet to accommodate these vessel owners. This modification would reduce the potential costs for these smaller vessel operators, but would not be expected to increase the overall harvest capacity of the fleet measurably. The analysis estimates that this provision would modify the MLOA of four LLP licenses. The analysis indicated that these vessels used only pot gear during the qualifying period; therefore, this proposed action would modify LLP licenses endorsed for pot gear.

Action 4: Allow Specific Community Entities To Request and Receive LLP Licenses With a Pacific Cod Endorsement

The fourth action under this proposed rule would allow entities representing specific communities in the WG and CG to request a limited number of non-transferrable Pacific cod endorsed LLP licenses. Under this rule, NMFS would issue licenses that are endorsed for hook-and-line or pot gear with an MLOA of 60 feet. Once the community entity received the LLP license, the community entity could assign that LLP license for use on a vessel designated by the entity. Prior to receiving the LLP license, the community entity eligible to receive the LLP license would need to submit a detailed plan describing how it would assign the LLP license to a specific vessel.

Previously, the Council recommended, and the Secretary approved, Amendment 66 to the GOA FMP, which implemented management measures to provide harvest opportunities to specific communities in the GOA (April 30, 2004, 69 FR 23681). Under Amendment 66, the Council defined a specific suite of smaller GOA communities that have historically participated in GOA fisheries but may lack some of the infrastructure and population base that could facilitate participation by residents of those communities in GOA fisheries, as compared to larger communities. Under Amendment 66, a community quota entity (CQE) was authorized to purchase halibut and sablefish quota share (QS) on behalf of the community it represents, and assign the resulting annual individual fishing quota (IFQ) to specific members of the community that meet minimum residency standards and other requirements. The CQE is intended to serve the interests of the community as a whole by providing access to fishery resources for residents of the community.

Communities eligible under Amendment 66: (1) Have a population of less than 1,500 and at least 20 persons based on the 2000 United States Census; (2) are located on the GOA coast of the North Pacific Ocean; (3) have direct saltwater access; (4) lack direct road access to communities with a population greater than 1,500 persons; (5) have historic participation in the halibut and sablefish fisheries; and (6) are specifically listed in Table 21 to part 679. Seventeen communities that meet these criteria are located in the CG, and four communities are located in the WG.

For this proposed action, the Council reviewed a range of potential options for defining coastal communities in the GOA based on their location on the GOA coast of the North Pacific Ocean, and past harvest patterns by community residents in the GOA Pacific cod fishery. Ultimately, the Council chose to rely on the six criteria listed above under Amendment 66 to determine coastal communities that may benefit from the ability to retain or expand participation opportunities in the GOA Pacific cod fishery for their residents. The Council relied on the criteria established under Amendment 66 to define communities eligible to receive an LLP license with a Pacific cod endorsements because these criteria incorporate communities that are active in GOA fisheries generally, do not include larger communities that do not have the same reliance on GOA fishery resources relative to their population, and would provide opportunities communities that lack access to financial opportunities that may exist in larger communities. NMFS would provide the CQEs that represent these communities the opportunity to enhance their access to fishery resources by providing CQEs with a limited number of Pacific cod endorsed fixed-gear LLP licenses.

The Council recommended that if an eligible community in the CG or WG forms a CQE under existing regulations at § 679.41(l)(3), that CQE could apply to receive a specified number of Pacific cod endorsed fixed-gear LLP licenses. If a CQE submitted a complete application for LLP licenses, NMFS would issue the CQE new LLP licenses with the applicable gear and area endorsements. CQEs that have already formed and been approved by NMFS would be also eligible to apply to receive LLP licenses.

The Council clarified that a CQE could request a Pacific cod endorsed LLP license only for the area in which that community is located. CQE communities in the WG could receive only WG endorsed LLP licenses, and CQE communities in the CG could receive only CG endorsed LLP licenses. The Council made this recommendation to provide community residents the opportunity to access Pacific cod resources adjacent to their community, and to prevent community residents from using LLP licenses granted through this provision to expand fishing efforts into regions outside the community. The Council clarified that the goal of this provision is to ensure access to Pacific cod resources near each community and not to encourage fishing operations that would expand into other regions.

In order to receive LLP licenses, the CQE would need to meet several requirements. Prior to requesting LLP licenses, the CQE must provide NMFS with a plan for soliciting and determining recipients of the LLP licenses issued to the CQE. The Council specified that this plan should contain requirements similar to the plan requirements that apply to a CQE when distributing annual IFQ from halibut or sablefish QS held by the CQE. Regulations at § 679.41(l)(3) contain the requirements that CQEs must meet to form and solicit potential recipients of halibut and sablefish IFQ. NMFS proposes to model regulations for this action on the existing regulations at § 679.41(l)(3). Specifically, CQEs would need to provide NMFS with: (1) A statement describing the procedures that will be used to determine the distribution of LLP licenses to residents of the community represented by that CQE; (2) procedures used to solicit requests from residents to be assigned an LLP license; and (3) criteria used to determine the distribution of the use of LLP licenses among qualified community residents and the relative weighting of those criteria. These requirements would inform the Council and NMFS about the process used by CQEs to provide fishery opportunities to its residents without requiring a detailed suite of regulatory measures to define how such fishing opportunities would be assigned throughout all of the geographically and culturally diverse communities.Start Printed Page 43127

Second, once the CQE has submitted the application to NMFS and the CQE has selected a potential recipient to use the LLP license, NMFS would require that the CQE provide a letter of authorization to the vessel operator listing the specific person(s) and the specific vessel eligible to use an LLP license held by the CQE during a calendar year. An LLP license issued to a CQE could not designate more than one vessel per calendar year. The CQE could amend the authorization letter to add additional persons authorized to use the LLP license on a vessel. The person authorized to use the LLP license issued to the CQE would not be required to be the vessel operator. For example, a crew member could be authorized to use the CQE's LLP license. The person designated to use the LLP license issued to the CQE would be required to be onboard the vessel while the vessel is used to directed fish for Pacific cod under the authority of that license. NMFS would require that a copy of the authorization letter and any amendments to the authorization letter be provided to NMFS, and a copy of that authorization letter and any amendments would need to be maintained onboard the vessel assigned the CQE's LLP license. Likewise, NMFS would require that the authorization letter be provided on or before the date that the LLP license is used on a vessel during a calendar year. NMFS would also require that any amendments to the authorization to designate new authorized persons be provided to NMFS prior to those persons using the CQE's Pacific cod LLP.

As part of this authorization letter, NMFS would require that the CQE attest that the persons authorized to use the LLP license meet residency requirements similar to those required for recipients of IFQ derived from halibut and sablefish QS held by a CQE. Specifically, the CQE would need to attest that the authorized person (1) Is a citizen of the United States; and (2) has maintained a domicile in a CQE community in the CG or WG eligible to receive an LLP license endorsed for Pacific cod for the 12 consecutive months immediately preceding the time when the assertion of residence is made; and (3) is not claiming residency in another community, state, territory, or country, with an exception made for residents of the Village of Seldovia. Consistent with the definition of a resident under Amendment 66, residents of the Village of Seldovia shall be considered to be eligible community residents of the City of Seldovia for the purposes of eligibility to serve as an authorized vessel operator. The rationale for the residency exemption that applies to the City of Seldovia is described in detail in the preamble to the final rule for Amendment 66 and is not repeated here (April 30, 2004, 69 FR 23681). Maintaining this exemption for the residents of the Village of Seldovia is consistent with the Council's goal of providing access to community residents consistent with Amendment 66.

The Council recommended these requirements to ensure that residents of communities receive the benefits of the LLP licenses issued to CQEs. The Council recommended that only one vessel be allowed to use a specific LLP license issued to a CQE per year to reduce the potential that an LLP license could be used on multiple vessels. Allowing multiple vessels to use an LLP license in a given year could increase competition for Pacific cod resources in waters surrounding these communities. The Council did not recommend allowing a CQE to designate more than one vessel in cases of vessel loss. This restriction would not be expected to prevent the ability of community residents to access Pacific cod resources through a CQE LLP license because a minimum of two LLP licenses can be issued to any one CQE. Because a CQE can designate a new vessel each year prior to the start of the fishing season, the effect of restricting the use of an LLP to only one vessel per year would not be expected to be a long-term constraint on fishing operations.

The Council recommended that the CQE provide an authorization letter assigning a specific vessel and designating the person(s) authorized use of the LLP license. Providing the authorization letter to NMFS and requiring that a copy of that letter be maintained onboard the vessel would help to ensure that only those persons and vessels that have been vetted through the CQE are able to use the LLP license. The requirement that the person(s) authorized to use the CQE's LLP license be onboard the vessel when directed fishing for Pacific cod under the authority of that license meets the Council's intent to ensure that a resident of a CQE community be actively engaged in fishing when that LLP license is being used. In the absence of this provision, the CQE could authorize a person who is a member of a CQE community to “use” the LLP license without being actively engaged in fishing for Pacific cod.

The residency requirements for the person using a CQE license would ensure that residents of a specific community actively participate in the Pacific cod fishery consistent with the overall goal the Council established for CQE LLP licenses described earlier. This authorization letter would require that the CQE attest to individuals' residency, but would not require individuals to submit proof of residency to NMFS in order to use the LLP license issued to the CQE. This approach would reduce potential administrative burdens on NMFS that could be required to determine the residency of a specific person. In many cases, particularly in smaller communities, the representatives of CQEs are likely to have specific local knowledge that can be used to assess a person's claim of residency.

The specific requirement that a person using an LLP license issued to a CQE must be a U.S. Citizen with residency in a specific community mirrors requirements currently established under Amendment 66 to allow a person to receive IFQ from QS held by a CQE. One requirement necessary for a person to receive IFQ from a CQE, that a person be considered an “IFQ crew member,” would not apply to the operator of a vessel using an LLP license issued to a CQE. The definition of a halibut and sablefish IFQ crew member is not directly applicable to a person operating a vessel in the Pacific cod fishery.

The Council identified the specific communities that would be eligible to receive LLP licenses if they formed a CQE. Those communities are listed in this proposed rule in Table 50 to part 679. The eligible communities are located in the CG and WG, with one exception for the City of Yakutat. Although Yakutat is located in the Eastern Gulf of Alaska, it is located close to the eastern boundary of the CG. Historically, fishing vessels operating out of Yakutat have participated in CG fisheries. For these reasons, the Council recommended that Yakutat be included in this proposed provision.

Several limitations apply to any LLP license that a CQE would receive. These include: (1) All LLP licenses issued would be non-transferable; (2) a limited number of LLP licenses could be issued to each CQE; (3) the LLP licenses would have an MLOA of 60 feet; and (4) the LLP licenses would have specific gear endorsements.

The Council recommended, and the proposed rule provides, that LLP licenses issued to CQEs would be non-transferrable to reduce the risk that CQEs would receive LLP licenses and transfer those LLP licenses to persons who may not have vessels, crew, or delivery patterns associated with the community, thereby frustrating the Start Printed Page 43128primary goal of these LLP licenses to provide additional opportunities for community residents. This is consistent with the CQE provisions in the halibut and sablefish IFQ Program designed to promote a long-term asset for the community.

The Council recommended, and this action proposes, a limit on the specific number of LLP licenses that each eligible CQE could request on behalf of that community. This limit would reduce the potential adverse effects of an unlimited number of Pacific cod endorsed LLP licenses on other LLP license holders. The number of LLP licenses that each CQE could request on behalf of a community is based on information (incorporated in Section 2.5.14 of the analysis prepared for this action) indicating the number of LLP licenses held by residents of each eligible community and the estimated number of LLP licenses that would be extinguished under the other provisions of the proposed action.

The Council's April 2009 motion would have allowed a CQE to request a maximum number of LLP licenses on behalf of a community. The number of LLP licenses that may be requested is based upon information regarding the number of licenses held by community residents that the analysis estimated did not qualify for a Pacific cod endorsement under a one landing threshold from 2002 through December 8, 2008, or two LLP licenses, whichever is greater. However, the Council recommended assigning Pacific cod endorsements to non-CQE LLP licenses based on a minimum tonnage requirement, not a minimum number of landings. After the Council took final action in April 2009, CQE representatives noted that it was likely that residents of CQE communities would qualify to receive fewer non-CQE Pacific cod endorsements on their LLP licenses under the minimum tonnage rather than the minimum landings requirement. The Council requested additional information on the number of LLP licenses held by community residents that were estimated not to qualify for a Pacific cod endorsement under the minimum landing threshold from 2002 through December 8, 2008. This additional information was presented to the Council in December 2009. These data show that 11 fewer CQE community residents would receive Pacific cod endorsements in the CG and seven fewer in the WG under the minimum tonnage threshold than under the minimum landing threshold.

The Council's intent of proposed Action 4 was to provide CQE communities with the opportunity to request either: (1) The estimated number of licenses held by residents that did not qualify for a Pacific cod endorsement; or (2) a minimum of two licenses. If the minimum tonnage threshold had been used in April 2009, to determine how many licenses each CQE may request, more licenses (in the aggregate) would have been made available to CQEs. Therefore, in December 2009, the Council amended its April 2009 action to clarify that CQEs could request, in the aggregate, an additional eleven (11) CG LLP licenses and seven (7) WG LLP licenses with Pacific cod endorsements. This amendment was intended to ensure that the number of LLP licenses made available to CQEs better matched the Council's intent for this action.

The Council clearly indicated that it would establish the maximum number of LLP licenses that each CQE community could request and set the number of licenses in regulation. The proposed number of LLP licenses that each CQE community could request is based on the Council's December 2009, action and that number is listed in the proposed rule at Table 50 to part 679. The Council recommended that NMFS establish a specific list of eligible communities and the maximum number of LLP licenses that could be issued for a community in regulation to ensure that each community would know exactly how many LLP licenses it would be eligible to receive, and could plan its harvesting efforts accordingly.

The Council recommended that in those CQE communities where no residents were identified as potential recipients of Pacific cod endorsements, the CQE could request a maximum of two LLP licenses. The Council recommended this limit to provide residents of these communities an opportunity to access the Pacific cod fishery. In many cases, the communities that would be eligible to request up to two Pacific cod endorsed LLP licenses have relatively small populations. Granting two LLP licenses would provide opportunities for more than one vessel in a community, but would limit the ability for additional vessels to increase their effort in Pacific cod fisheries substantially beyond the number of vessels in the communities that have historically participated in the Pacific cod fishery.

The net effect of the Council's action does not seem to increase the total number of LLP licenses that could be used to fish in the Pacific cod fishery relative to the number of LLP licenses that could be used to fish Pacific cod if this proposed action were not approved by the Secretary. Based on information in Section 2.5.14 of the EA/RIR/IRFA prepared for this proposed action, residents of the CQE communities eligible for this provision held 74 CG endorsed fixed-gear LLP licenses, and 54 WG endorsed LLP licenses as of December 2009. Under this proposed action, only 9 CG Pacific cod endorsements would be granted, and only 29 WG Pacific cod endorsements would be granted to CQE residents who met the minimum landing requirements during the 2002 through December 8, 2008, qualifying period. If all eligible communities formed a CQE and applied to receive a Pacific cod endorsed LLP license, a maximum of 57 CG and 32 WG Pacific cod endorsements could be issued to residents of the CQE communities. These numbers assume that the residency of potential Pacific cod endorsement recipients does not change during the period between the Council's recommendation and the publication of the proposed rule and the effective date of the final rule.

NMFS proposes a modification to regulations at § 679.7(i)(1)(i), which limit the maximum number of LLP licenses that a person may hold, to fully implement the Council's intent to allow CQEs to provide harvest opportunities for local residents. Regulations at § 679.7(i)(1)(i) currently limit a person, which includes CQEs, from holding more than 10 groundfish LLP licenses. The proposed new Table 50 to part 679 notes that the CQE representing the City of Sand Point could hold up to 14 LLP licenses. This proposed rule would amend regulations at § 679.7(i) to prohibit the CQE representing the City of Sand Point from holding more than 14 groundfish LLP licenses, rather than prohibiting the CQE representing Sand Point from holding more than 10 groundfish LLP licenses. This proposed change would not affect any other person, but would allow the CQE representing Sand Point to hold the maximum number of LLP licenses that could be received under this proposed action consistent with Council intent.

The Council recommended that the LLP licenses that would be issued have a specified MLOA of 60 feet. This MLOA would limit the potential that CQE communities could assign LLP licenses to large vessels with potentially greater harvest capacity than the vessels traditionally used by residents of these communities. Typically, many of the vessels used to fish Pacific cod with fixed-gear in the CQE communities are “combination vessels” that were originally designed to participate in the State salmon seine fisheries but now participate in salmon, groundfish, and the halibut IFQ fisheries. Because many of these combination vessels are subject Start Printed Page 43129to length limits established by the State for participation in the salmon seine fishery, most combination vessels are no greater than 58 feet LOA. Based on a review of length data of vessels in CQE communities provided in Section 2.5.14 of the EA/RIR/IRFA prepared for this action, NMFS anticipates that most of the vessels likely to be used by CQE community residents would be less than 58 feet in length, and none would be expected to exceed 60 feet in length. Consistent with the information in the analysis, the Council recommended, and NMFS proposes, limiting the MLOA on LLP licenses issued to CQEs to 60 feet LOA to accommodate existing fishing patterns and vessel usage in the eligible communities.

The Council recommended that the gear endorsements on LLP licenses that could be requested by a CQE generally represent the overall harvest patterns by vessels using hook-and-line and pot gear within each regulatory area. Vessels using jig gear would be exempt from the LLP license requirement and, therefore, harvest patterns by vessels using that gear type would not be considered when assigning LLP licenses to CQEs. Section 2.5.3 of the EA/RIR/IRFA prepared for this proposed action indicates that over 90 percent of the LLP licenses with an MLOA of less than 60 feet would receive a fixed-gear Pacific cod endorsement in the WG for pot gear. Very few LLP licenses would qualify for a hook-and-line or a jig endorsement with a less than 60-foot MLOA because those gear types have not historically been used in the WG. By contrast, roughly half of the LLP licenses with an MLOA of less than 60 feet in the CG would receive a fixed gear endorsement for pot gear, and the other half would be endorsed for hook-and-line gear. Therefore, NMFS would issue LLP licenses endorsed only for pot gear to CQEs representing communities in the WG. CQEs representing communities in the CG, including Yakutat, would have the option of selecting what proportion of their LLP licenses would have a pot endorsement or a hook-and-line endorsement, provided the CQE notified NMFS within six months of the effective date of a final rule, if implemented, of their choice. Selection of gear type would be a one-time permanent choice. If a CQE did not notify NMFS within this time frame, then NMFS would issue any LLP licenses that are requested by a CQE so that half the LLP licenses issued to the CQE would be endorsed for pot gear and half would be endorsed for hook-and-line gear. In cases where the total number of groundfish licenses issued on behalf of a community listed in Table 50 to part 679 is not even, NMFS will issue one more groundfish license with a pot gear Pacific cod endorsement than the number of groundfish licenses with a hook-and-line gear Pacific cod endorsement. This process for issuing LLP licenses would provide CQEs the opportunity to select the gear types that are appropriate for use by community residents at the time of implementation, while preserving the overall goal of maintaining the current harvest patterns within the CG.

The Council recommended, and NMFS proposes, that CQEs submit annual reports consistent with the annual report requirements established under Amendment 66. CQE annual reports would be required to be submitted to NMFS and the governing body of the community that the CQE represents. These annual reports would serve as a means of tracking the progress of the CQEs that have received LLP licenses under this proposed rule and to assess whether the issuance of LLP licenses was meeting the overall goal of providing its residents access to the Pacific cod resource. The Council requested that the CQE provide information in the annual reports describing the use of LLP licenses during a calendar year. The annual report would need to include: (1) The number of community residents requesting an LLP license from the CQE; (2) a description of the distribution of LLP licenses among community residents; (3) vessels assigned to use the LLP licenses; (4) the number and residency of crew employed on a vessel using the LLP license; and (5) the amount of payments made to CQEs for use of the LLP licenses, if any. Consistent with the timeline required for submission of the CQE annual report under Amendment 66, these annual reports would be due by January 31 for the prior fishing year for each community represented by the CQE for which those LLP licenses were granted.

NMFS would not establish an appeal process for CQEs to receive LLP licenses. The proposed action would allow CQEs to request LLP licenses provided the specific requirements detailed here were met. If those conditions were not met, NMFS would not issue LLP licenses to the CQEs. Because NMFS is not proposing to remove or otherwise restrict existing harvest opportunities available to CQEs, no appeal process is required. A potential CQE does have an opportunity to challenge and appeal the decision to certify its designation for a specific community. That provision is described in regulation at § 679.41(l)(3).

Process for Assigning New Pacific Cod Endorsements

NMFS would create an official record with all relevant information necessary to assign landings to specific LLP licenses. Prior to modifying any LLP licenses, NMFS would notify all fixed gear LLP license holders of the status of their LLP license endorsements (i.e., the endorsements for specific fixed gear, operational types, and regulatory areas). Should an LLP license holder disagree with NMFS' official record, NMFS would provide an opportunity for a person to submit information to rebut the presumptions 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 landing in the Pacific cod fishery 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. In order to ensure that landings in the directed Pacific cod fishery are properly attributed to an LLP license, NMFS would assign any delivery of Pacific cod up to seven days after the closure of the Pacific cod season to an LLP license. The seven-day period would reasonably accommodate any final deliveries, and is consistent with the approach NMFS has used in other management programs to assign catch to an LLP license (e.g., CG Rockfish Program). The official record also would 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.

If this proposed rule is approved and implemented, NMFS would mail a notification to each fixed-gear LLP license holder based on the address on record at the time the notification is sent about the status of any endorsements for that LLP license. NMFS would provide information concerning the proposed effects of any changes to any LLP license to the LLP license holder, and would provide a single 30-day evidentiary period from the date that notification is sent for an LLP holder to submit any information or evidence to demonstrate that the information Start Printed Page 43130contained in the official record is inconsistent with his or her records.

Under this proposed rule, 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 claims that are inconsistent with the official record, unless they are supported 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 claims are correct, NMFS would act in accordance with that information or evidence. However, if, after the 30-day evidentiary period, NMFS determines that the additional information or evidence does not prove that the LLP license holder's 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 § 679.43. A person who appeals an IAD would be eligible to participate in the GOA Pacific cod fishery using the disputed LLP license with the claimed endorsements listed on the LLP license until final action by NMFS on the appeal. NMFS would reissue as interim LLP licenses any LLP licenses pending final action by NMFS. Once final action has been taken, NMFS would reissue the LLP license as a final 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 modified through an appeal process that was initiated and conducted by the previous LLP license holder—a 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 fixed gear endorsement are extinguished, NMFS would not reissue the LLP license because it would no longer be valid for use with fixed-gear in any management area.

Classification

The Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with Amendment 86, the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and other applicable laws, subject to further consideration after public comment.

Executive Order 12866

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

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 the reasons why this action is being proposed; the objectives and legal basis for the proposed rule; the type and estimated number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and 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 limit the number of potential participants in Federal fixed-gear Pacific cod fisheries in the GOA by assigning and requiring Pacific cod endorsements on LLP licenses, and to provide additional fixed gear licenses that may be used on behalf of specific GOA communities. NMFS expects the proposed action will reduce uncertainty for active participants and provide additional harvest opportunities for residents of specific communities in the Western and Central GOA and the community of Yakutat whose residents have historically participated in Central GOA fisheries.

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 fixed-gear activity who conducted directed fishing for Pacific cod in the GOA. 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 Start Printed Page 43131proposed 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 956 entities hold LLP licenses with fixed-gear endorsements designated for catcher vessel or catcher/processor operations; of these, an estimated 908 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 purpose of the proposed action is to prevent future economic dislocation to fixed gear LLP license holders who have demonstrated consistent and recent participation in the fixed gear Pacific cod fisheries, and to provide additional harvest opportunities for residents of specific communities located adjacent to the Western and Central GOA, including the West Yakutat District. The overall impact to small entities is expected to be positive. Active fishery participants would face a reduced risk that the fishing effort would increase from currently inactive participants. Impacts from the proposed rule would accrue differentially (i.e., some entities could be negatively affected and others positively affected). As an example, active participants in the Pacific cod fishery would be expected to face less potential uncertainty about future fishery effort. The potential effects would vary depending on the gear type, regulatory area, and operational type assigned to the LLP license holder. Residents of communities eligible to receive a Pacific cod endorsed LLP license would have additional access to Pacific cod resources The Council considered an extensive range of alternatives and options as it designed and evaluated the potential for changes to groundfish management in the GOA including the “no action”alternative.

Two alternative approaches for the management of Pacific cod fishing by non-trawl LLP licenses in the CG and WG are presented in the EA/RIR/IRFA: Alternative 1—Status Quo/No Action; Alternative 2—Add a Pacific cod endorsement on the CG and WG GOA LLP licenses if minimum landing requirements are met. Alternative 2 would include a provision to issue new Pacific cod endorsed fixed gear LLP licenses to non-profit CQEs, representing specific communities in the CG and WG. These two alternatives examined ranges of options for a varying range of landing criteria and mechanisms for assigning Pacific cod endorsements. These alternative landing criteria and mechanisms and the options examined in the context of these alternatives constitute the suite of “significant alternatives” for the proposed action for the purposes of the RFA. During the development of this proposed action, the Council considered and rejected alternatives that would have allocated quota to specific fishery participants, or allocated a portion of the TAC to specific fishery sectors and gear types. These alternatives were considered to be overly broad to address the goal of limiting the potential entry of latent effort into the Pacific cod directed fishery.

Compared with the status quo, the proposed action selected by the Council would minimize adverse economic impacts on the directly regulated small entities. The alternatives under consideration in this proposed action would be expected to provide greater economic stability for fixed-gear LLP license holders with recent participation in the CG and WG Pacific cod fisheries. The alternatives would reduce the potential for substantial increases in fishing effort from latent LLP license holders, and would provide additional harvesting opportunities for CQEs who hold fixed-gear LLP licenses. In no case are these combined impacts expected to be substantial. Alternative 2 would not assign Pacific cod fishery endorsements to fixed-gear LLP licenses that have had little or no participation in Pacific cod fisheries in the CG and WG since 2002. Therefore, the effect of this action on those directly regulated entities is expected to be minimal. The effects would be minimal because the holders of latent LLP licenses would not be expected to rely on the Pacific cod resource or have substantial revenue given the lack of consistent participation in the fishery over a broad range of years. Furthermore, the addition of new Pacific cod endorsed fixed-gear licenses and the removal of LLP requirements for most vessels using jig gear may provide additional harvest opportunities for some catcher vessels in Federal waters. Many vessels currently active in State waters are catching fish assigned to the Federal TAC under the parallel fishery. It is not clear that these new Pacific cod endorsed fixed-gear licenses would substantially increase fishing effort. Although none of the alternatives are expected to have any significant economic or socioeconomic impacts, the preferred Alternative 2 minimizes the potential negative impacts, such as less control over potential fishing effort in the GOA Pacific cod fishery and greater risk that the fishery could be subject to overharvest that could arise under Alternative 1, the status quo alternative.

Projected Reporting, Recordkeeping and Other Compliance Requirements

The proposed rule would require additional reporting, recordkeeping, and other compliance requirements. Specifically, CQEs would need to submit an application to receive fixed-gear LLP licenses endorsed for Pacific cod, the selection of fixed gear type by CQEs in the CG, a description of the methods used to assign any fixed gear LLP licenses received, a letter of authorization for persons using LLP licenses assigned to a CQE, and an annual report detailing the distribution and use of LLP licenses. In addition, persons who qualify to receive a fixed-gear endorsement for an LLP license that was used on a vessel that was less than 60 feet in LOA under specific conditions would be required to submit a vessel survey prior to receiving an endorsement on that LLP license if they disagree with existing LOA data held by NMFS. Existing recordkeeping and reporting requirements for registering vessels in the inshore or offshore sector, and the LLP appeals process would not be modified.

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 the Office of Management and Budget (OMB) under Control Number 0648-0334. Public reporting burden is estimated to average 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 Start Printed Page 43132the collection of information. The following requirements have been submitted to OMB for approval: 20 hours for a CQE to apply to receive an LLP license and select the applicable gear type of that license if that CQE is operating in the CG; 40 hours for the CQE annual report; 1 hour to submit letter of authorization for a vessel and vessel operator from a CQE; and 1 hour to submit a vessel length survey for LLP license holders who qualify for a Pacific cod endorsement for vessels less than 60 feet in LOA under specific conditions.

NMFS seeks public comment regarding whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, 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 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.

Start List of Subjects

List of Subjects in 50 CFR Part 679

End List of Subjects Start Signature

Dated: July 19, 2010.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

End Signature

For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

Start Part

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

Start Authority

Authority: 16 U.S.C. 773 et seq.; 1540; 1801 et seq.; 3631 et seq.; Pub. L. 108-447

End Authority

2. In § 679.4,

a. Redesignate paragraphs (k)(2)(iii) and (k)(2)(iv) as paragraphs (k)(2)(iv) and (k)(2)(v); and paragraphs (k)(10) through (k)(12) as paragraphs (k)(11) through (k)(13);

b. Revise paragraph (k)(3)(i), and the heading of paragraph (k)(9);

c. Add paragraphs (k)(2)(iii) and (k)(10).

The additions and revisions read as follows:

Permits.
* * * * *

(k) * * *

(2) * * *

(iii) A vessel may use a maximum of five jig machines, one line per jig machine, and a maximum of 30 hooks per line, to conduct directed fishing for license limitation groundfish in the GOA without a groundfish license;

* * * * *

(3) * * *

(i) Vessel MLOA—(A) General. A license may be used only on a vessel named on the license, a vessel that complies with the vessel designation and gear designation specified on the license, and a vessel that has an LOA less than or equal to the MLOA specified on the license;

(B) Modification of license MLOA for groundfish licenses with a Pacific cod endorsement in the GOA. (1) A groundfish license with a specified MLOA less than or equal to 50 feet prior to [EFFECTIVE DATE OF THE FINAL RULE] that subsequently receives a Pacific cod endorsement in the GOA with a catcher vessel and pot gear designation as specified under paragraph (k)(10) of this section will be redesignated with an MLOA of 50 feet on the date that the Pacific cod endorsement is assigned to that groundfish license;

(2) A groundfish license with a specified MLOA greater than or equal to 60 feet:

(i) That was continuously assigned to a single vessel less than 60 feet LOA from January 1, 2002, through December 8, 2008; and

(ii) That met the landing thresholds applicable for a groundfish license with a specified MLOA of less than 60 feet for the specific gear designation(s) and regulatory area(s) applicable to that groundfish license as described in paragraph (k)(10), will be redesignated with an MLOA equal to the LOA of the vessel to which that groundfish license was assigned from January 1, 2002, through December 8, 2008, based on the LOA for that vessel in NMFS' non-trawl gear recent participation official record on [EFFECTIVE DATE OF THE FINAL RULE], or as specified by a marine survey conducted by an independent certified marine surveyor or naval architect provided that the license holder provides NMFS with a marine survey conducted by an independent certified marine surveyor or naval architect not later than 90 days after [EFFECTIVE DATE OF THE FINAL RULE] that specifies the LOA of the vessel to which that groundfish license was assigned.

(3) The MLOA specified on a groundfish license under paragraph (k)(3)(i)(B)(2) of this section may not exceed 60 feet.

* * * * *

(9) Pacific cod endorsements in the BSAI.

* * * * *

(10) Pacific cod endorsements in the Western and Central GOA—(i) General. In addition to other requirements of this part, and unless specifically exempted in paragraph (k)(10)(iv) of this section, a license holder must have a Pacific cod endorsement on his or her groundfish license to conduct directed fishing for Pacific cod in the Western Gulf of Alaska or Central Gulf of Alaska with hook-and-line gear, pot gear, or jig gear on a vessel using more than five jig machines, more than one line per machine, and more than 30 hooks per line. A license holder can only use the specific non-trawl gear(s) indicated on his or her license to conduct directed fishing for Pacific cod in the Western Gulf of Alaska or Central Gulf of Alaska.

(ii) Eligibility requirements for a Pacific cod endorsement. This table provides eligibility requirements for Pacific cod endorsements on an LLP groundfish license:Start Printed Page 43133

If a license holder's license has a * * *And that license has an MLOA of * * *And the license holder harvested Pacific cod with * * *Then the license holder must demonstrate that he or she * * *From January 1, 2002, through December 8, 2008, in * * *To receive a Pacific cod endorsement that authorizes harvest in the directed Pacific cod fishery with * * *
(A) Catcher vessel designation< 60 feethook-and-line gearlegally landed at least 10 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskahook-and-line gear in the Central Gulf of Alaska.
(B) Catcher vessel designation≥ 60 feethook-and-line gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskahook-and-line gear in the Central Gulf of Alaska.
(C) Catcher vessel designation< 60 feethook-and-line gearlegally landed at least 10 mt of Pacific cod in the directed Pacific cod fisherythe Western Gulf of Alaskahook-and-line gear in the Western Gulf of Alaska.
(D) Catcher vessel designation≥ 60 feethook-and-line gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Western Gulf of Alaskahook-and-line gear in the Western Gulf of Alaska.
(E) Catcher vessel designation< 60 feetpot gearlegally landed at least 10 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskapot gear in the Central Gulf of Alaska.
(F) Catcher vessel designation≥ 60 feetpot gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskapot gear in the Central Gulf of Alaska.
(G) Catcher vessel designation< 60 feetpot gearlegally landed at least 10 mt of Pacific cod in the directed Pacific cod fisherythe Western Gulf of Alaskapot gear in the Western Gulf of Alaska.
(H) Catcher vessel designation≥ 60 feetpot gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Western Gulf of Alaskapot gear in the Western Gulf of Alaska.
(I) Catcher vessel designationanyjig gearat least one legal landing of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskajig gear in the Central Gulf of Alaska.
(J) Catcher vessel designationanyjig gearat least one legal landing of Pacific cod in the directed Pacific cod fisherythe Western Gulf of Alaskajig gear in the Western Gulf of Alaska.
(K) Catcher/Processor vessel designationanyhook-and-line gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskahook-and-line gear in the Central Gulf of Alaska.
(L) Catcher/Processor vessel designationanyhook-and-line gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Western Gulf of Alaskahook-and-line gear in the Western Gulf of Alaska.
(M) Catcher/Processor vessel designationanypot gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskapot gear in the Central Gulf of Alaska.
(N) Catcher/Processor vessel designationanypot gearlegally landed at least 50 mt of Pacific cod in the directed Pacific cod fisherythe Central Gulf of Alaskapot gear in the Central Gulf of Alaska.
(O) Catcher/Processor vessel designationanyjig gearat least one legal landing in the directed Pacific cod fisherythe Central Gulf of Alaskajig gear in the Central Gulf of Alaska.
(P) Catcher/Processor vessel designationanyjig gearat least one legal landing in the directed Pacific cod fisherythe Western Gulf of Alaskajig gear in the Western Gulf of Alaska.

(iii) Explanations for Pacific cod endorsements. (A) All eligibility amounts in the table at paragraph (k)(10)(ii) of this section will be determined based on round weight equivalents.

(B) NMFS shall assign a legal landing to a groundfish license in an area based only on information contained in the official record described in paragraph (k)(10)(v) of this section.

(C) Notwithstanding the eligibility amount in the table at paragraph (k)(10)(ii) of this section, NMFS shall assign a non-trawl Pacific cod endorsement with a catcher/processor and a hook-and-line gear designation in the regulatory areas specified to those groundfish licenses listed in Table 49 to part 679;

(D) If a groundfish license meets the criteria described in paragraph (k)(3)(i)(B)(2) of this section and NMFS has redesignated the MLOA of that groundfish license based on those criteria, then NMFS may assign a non-trawl Pacific cod endorsement with the specific gear designation(s) and regulatory area(s) applicable to the redesignated MLOA of that groundfish license based on the eligibility criteria established in paragraph (k)(10)(ii) of this section; and

(E) NMFS may issue groundfish licenses with non-trawl Pacific cod endorsements to CQEs as specified in paragraph (k)(10)(vi) of this section.

(iv) Exemptions to Pacific cod endorsements. Any vessel exempted from the License Limitation Program at paragraph (k)(2) of this section.

(v) Non-trawl gear recent participation official record. (A) The official record will contain all information used by the Regional Start Printed Page 43134Administrator to determine the following:

(1) The number of legal landings and amount of legal landings assigned to a groundfish license for purposes of the non-trawl gear designation participation requirements described in paragraph (k)(10)(ii) of this section;

(2) All other relevant information necessary to administer the requirements described in paragraphs (k)(3)(i)(B) and (k)(10) of this section.

(B) The official record is presumed to be correct. A groundfish license holder has the burden to prove otherwise.

(C) Only legal landings as defined in § 679.2 and documented on State of Alaska fish tickets or NMFS weekly production reports will be used to assign legal landings to a groundfish license.

(D) If more than one groundfish license holder is claiming the same legal landing because their groundfish license designated the vessel at the time that the legal landing was made, then each groundfish license for which the legal landing is being claimed will be credited with the legal landing.

(E) The Regional Administrator will specify by letter a 30-day evidentiary period during which an applicant may provide additional information or evidence to amend or challenge the information in the official record. A person will be limited to one 30-day evidentiary period. Additional information or evidence received after the 30-day evidentiary period specified in the letter has expired will not be considered for purposes of the initial administrative determination (IAD).

(F) The Regional Administrator will prepare and send an IAD to the applicant following the expiration of the 30-day evidentiary period if the Regional Administrator determines that the information or evidence provided by the person fails to support the person's claims and is insufficient to rebut the presumption that the official record is correct, or if the additional information, evidence, or revised application is not provided within the time period specified in the letter that notifies the applicant of his or her 30-day evidentiary period. The IAD will indicate the deficiencies with the information, or with the evidence submitted in support of the information. The IAD will also indicate which claims cannot be approved based on the available information or evidence. A person who receives an IAD may appeal pursuant to § 679.43. A person who avails himself or herself of the opportunity to appeal an IAD will receive a non-transferable license pending the final resolution of that appeal, notwithstanding the eligibility of that applicant for some claims based on consistent information in the official record.

(vi) Issuance of non-trawl groundfish licenses to CQEs. (A) Each CQE that has been approved by the Regional Administrator under the requirements of § 679.41(l)(3) to represent a community listed in Table 50 to part 679 may apply to receive groundfish licenses on behalf of the communities listed in Table 50 to part 679 that CQE is designated to represent. In order to receive a groundfish license, a CQE must submit a complete application for a groundfish license to the Regional Administrator, NMFS, P.O. Box 21668, Juneau, AK 99802. A CQE may not apply for, and may not receive, more than the maximum amount of groundfish licenses designated in the regulatory area specified for a community listed in Table 50 to part 679.

(B) The application for a CQE to receive a groundfish license must include:

(1) Name of contact person(s) for the CQE, NMFS person number, permanent business mailing addresses, business phone, business email, and business fax.

(2) A statement describing the procedures that will be used to determine the distribution of LLP licenses to residents of the community represented by that CQE;

(3) Procedures used to solicit requests from residents to be assigned an LLP license;

(4) Criteria used to determine the distribution of the use of LLP licenses among qualified community residents and the relative weighting of those criteria;

(5) The gear designation of groundfish license for which the CQE is applying provided that the community for which the CQE is applying is eligible to receive a groundfish license designated for the Central Gulf of Alaska and the application to receive a groundfish license has been received by NMFS not later than six months after [EFFECTIVE DATE OF THE FINAL RULE].

(C) A groundfish license approved for issuance to a CQE by the Regional Administrator for a community listed in Table 50 to part 679:

(1) May not be transferred to any person from the CQE;

(2) Will have only the regional designation specified for that community as listed in Table 50 to part 679;

(3) Will have an MLOA of 60 feet specified on the license;

(4) Will have only a catcher vessel designation;

(5) Will receive only a non-trawl gear endorsement;

(6) Will be assigned a Pacific cod endorsement with a non-trawl gear designation as specified in paragraph (k)(10)(vi)(D) of this section.

(7) May not be assigned to any vessel other than the vessel specified for that groundfish license in the annual CQE authorization letter; and

(8) May not be assigned for use by any person(s) other than the person(s) specified for that groundfish license in the annual CQE authorization letter, or any subsequent amendment to that authorization letter that is made by the CQE provided that NMFS receives that amendment prior to that person using that groundfish license aboard a vessel.

(D) The CQE must provide a copy of the annual CQE authorization letter, and any subsequent amendment to that authorization letter that is made by the CQE to the vessel operator prior to the person(s) designated in the authorization letter using that groundfish license aboard a vessel. The vessel operator must maintain a copy of the annual CQE authorization letter, and any subsequent amendment to that authorization letter that is made by the CQE onboard the vessel when that vessel is directed fishing for Pacific cod under the authority of that groundfish license.

(E) The CQE must attest in the annual CQE authorization letter, or any subsequent amendment to that authorization letter, that the person(s) using a groundfish license issued to a CQE:

(1) Is a citizen of the United States;

(2) Has maintained a domicile in a CQE community in the Central GOA or Western GOA eligible to receive an LLP license endorsed for Pacific cod for the 12 consecutive months immediately preceding the time when the assertion of residence is made; and

(3) Is not claiming residency in another community, state, territory, or country, except that residents of the Village of Seldovia shall be considered to be eligible community residents of the City of Seldovia for the purposes of eligibility to serve as an authorized person.

(F) Non-trawl Pacific cod gear endorsements on groundfish licenses approved for issuance to CQEs by the Regional Administrator shall have the following gear designations:

(1) NMFS will issue only pot gear Pacific cod endorsements for groundfish licenses with a Western Gulf of Alaska designation to CQEs on behalf of a community listed in Table 50 to part 679.Start Printed Page 43135

(2) NMFS will issue either a pot gear or a hook-and-line gear Pacific cod endorsement for a groundfish license with a Central Gulf of Alaska designation to CQEs on behalf of a community listed in Table 50 to part 679 based on the application for a groundfish license as described in paragraph (k)(10)(vi)(B) of this section provided that application is received by NMFS not later than six months after [EFFECTIVE DATE OF THE FINAL RULE]. If an application to receive a groundfish license with a Central Gulf of Alaska designation on behalf of a community listed in Table 50 to part 679 is received later than six months after [EFFECTIVE DATE OF THE FINAL RULE], NMFS will issue an equal number of pot gear and hook-and-line gear Pacific cod endorsements for a groundfish license issued to the CQE on behalf of a community listed in Table 50 to part 679. In cases where the total number of groundfish licenses issued on behalf of a community listed in Table 50 to part 679 is not even, NMFS will issue one more groundfish license with a pot gear Pacific cod endorsement than the number of groundfish licenses with a hook-and-line gear Pacific cod endorsement.

(G) By January 31, the CQE shall submit a complete annual report on use of groundfish licenses issued to the CQE for the prior fishing year for each community represented by the CQE to the Regional Administrator, NMFS, P.O. Box 21668, Juneau, AK 99802, and to the governing body of each community represented by the CQE as identified in Table 21 to this part, and to the governing body of each community represented by the CQE as identified in Table 21 to this part. A complete annual report contains the following information:

(1) The number of community residents requesting a groundfish license;

(2) A description of the distribution of groundfish licenses among community residents;

(3) Vessels assigned to use the groundfish licenses;

(4) The number and residency of crew employed on a vessel using the LLP license; and

(5) Any payments made to CQEs for use of the LLP licenses. Consistent with the timeline required for submission of the CQE annual report for the use of halibut and sablefish IFQ, these annual reports would be due by January 31 for the prior fishing year for each community represented by the CQE.

* * * * *

3. In § 679.7,

a. Paragraphs (a)(7)(vii) through (a)(7)(ix) are added;

b. Paragraph (i)(1)(i) is revised;

c. Paragraph (i)(1)(v) is added; and

d. Paragraph (i)(10) is added.

The additions and revisions read as follows:

Prohibitions.
* * * * *

(a) * * *

(7) * * *

(vii) Operate a vessel in the “inshore component of the GOA” as defined in § 679.2 during a calendar year if that vessel is used to directed fish for Pacific cod under the authority of a groundfish license with a Pacific cod endorsement in the regulatory area listed in Table 49 to part 679.

(viii) Use a vessel operating under the authority of a groundfish license with a Pacific cod endorsement to directed fish for Pacific cod in the GOA apportioned to the inshore component of the GOA as specified under § 679.20(a)(6) if that vessel has directed fished for Pacific cod in the GOA apportioned to the offshore component of the GOA during that calendar year.

(ix) Use a vessel operating under the authority of a groundfish license with a Pacific cod endorsement to directed fish for Pacific cod in the GOA apportioned to the offshore component of the GOA as specified under § 679.20(a)(6) if that vessel has directed fished for Pacific cod in the GOA apportioned to the inshore component of the GOA during that calendar year.

* * * * *

(i) * * *

(1) * * *

(i) Hold more than 10 groundfish licenses in the name of that person at any time, except as provided in paragraphs (i)(1)(iii) and (i)(1)(v) of this section;

* * * * *

(v) The CQE representing the City of Sand Point may not hold more than 14 groundfish licenses.

* * * * *

(10) Operate a vessel under the authority of an LLP license issued to a CQE to directed fish for Pacific cod in the GOA if the person specified for that groundfish license in the annual CQE authorization letter, or any subsequent amendment to that authorization letter, is not onboard the vessel.

* * * * *

4. Tables 49 and 50 to part 679 are added to read as follows:

Table 49 to Part 679—Groundfish Licenses Qualifying for Hook-and-Line Catcher/Processor Endorsement Exemption

Groundfish licenseShall receive a Pacific cod endorsement with a catcher/processor and a hook-and-line designation in the following regulatory area(s)
LLG 1400Central Gulf of Alaska.
LLG 1713Central Gulf of Alaska.
LLG 1785Central Gulf of Alaska.
LLG 1916Central Gulf of Alaska.
LLG 2112Central Gulf of Alaska and Western Gulf of Alaska.
LLG 2783Central Gulf of Alaska.
LLG 2892Central Gulf of Alaska.
LLG 2958Central Gulf of Alaska.
LLG 3616Central Gulf of Alaska.
LLG 3617Central Gulf of Alaska.
LLG 3676Central Gulf of Alaska.
LLG 4823Central Gulf of Alaska.
LLG 2081Western Gulf of Alaska.
LLG 3090Western Gulf of Alaska.
Start Printed Page 43136

Table 50 to Part 679—Maximum Number of Groundfish Licenses and the Regulatory Area Specification of Groundfish Licenses That May Be Granted to CQEs Representing Specific GOA Communities

Central GOA Pacific cod endorsed non-trawl groundfish licenseWestern GOA Pacific cod endorsed non-trawl groundfish license
CommunityMaximum number of groundfish licenses that may be grantedCommunityMaximum number of groundfish licenses that may be granted
Akhiok2Ivanof Bay2
Chenega Bay2King Cove9
Chignik3Perryville2
Chignik Lagoon4Sand Point14
Chignik Lake2
Halibut Cove2
Karluk2
Larsen Bay2
Nanwalek2
Old Harbor5
Ouzinkie9
Port Graham2
Port Lions6
Seldovia8
Tyonek2
Tatitlek2
Yakutat3
End Part End Supplemental Information

[FR Doc. 2010-18143 Filed 7-22-10; 8:45 am]

BILLING CODE 3510-22-P