[Federal Register Volume 63, Number 190 (Thursday, October 1, 1998)]
[Rules and Regulations]
[Pages 52642-52657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26186]
[[Page 52642]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 970703166-8209-04; I.D. 060997A3]
RIN 0648-AH65
Fisheries of the Exclusive Economic Zone Off Alaska; License
Limitation Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule implementing part of Amendment 39 to
the Fishery Management Plan (FMP) for the Groundfish Fishery of the
Bering Sea and Aleutian Islands Management Area (BSAI), Amendment 41 to
the FMP for Groundfish of the Gulf of Alaska (GOA), and Amendment 5 to
the FMP for the Commercial King and Tanner Crab Fisheries in the BSAI.
These amendments, submitted by the North Pacific Fishery Management
Council (Council), establish the License Limitation Program (LLP). The
LLP limits the number, size, and specific operation of vessels that may
be deployed in the groundfish fisheries in the exclusive economic zone
(EEZ) off Alaska, except for demersal shelf rockfish east of 140 deg.
W. long. and sablefish managed under the Individual Fishing Quota (IFQ)
Program. The LLP also limits the number, size, and specific operation
of vessels that may be deployed in the crab fisheries managed pursuant
to the FMP for the Commercial King and Tanner Crab Fisheries in the
BSAI.
DATES: Effective January 1, 2000, except for definitions added to
Sec. 679.2 and paragraphs (i)(3), (i)(4), (i)(5), (i)(6), (i)(8)(iii),
and (i)(8)(iv) added to Sec. 679.4, which are effective January 1,
1999.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review (EA/RIR) for this action may be obtained from the Division of
Sustainable Fisheries, Alaska Region, NMFS, 709 West 9th Street, Room
453, Juneau, AK 99801, or P.O. Box 21668, Juneau, AK 99802, Attention:
Lori J. Gravel.
FOR FURTHER INFORMATION CONTACT: John Lepore, 907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries
of the GOA and the BSAI in the EEZ pursuant to the FMPs for groundfish
in the respective management areas. With Federal oversight, the State
of Alaska manages the commercial king crab and Tanner crab fisheries in
the BSAI pursuant to the FMPs for those fisheries, which the Council
developed pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq..
Regulations implementing the FMPs appear at 50 CFR part 679. General
regulations at 50 CFR part 600 also apply.
License Limitation Program--Background Information
The LLP is the first stage in fulfilling the Council's commitment
to develop a comprehensive and rational management program for the
fisheries in and off Alaska. The Council first considered the
comprehensive rationalization plan (CRP) at its meeting in November
1992. Experts on limited-entry programs were invited to testify at that
meeting, and the Council reviewed initial CRP proposals from the
fishing industry. In December 1992, the Council approved a problem
statement describing the need for and purpose of the CRP.
The problem statement articulated the Council's concern that the
domestic harvesting fleet had expanded beyond the size necessary to
harvest efficiently the optimum yield (OY) of the fisheries within the
EEZ off Alaska. Further, it confirmed the Council's commitment to the
long-term health and productivity of the fisheries and other living
marine resources in the North Pacific and Bering Sea ecosystems. To
fulfill that commitment, the Council intended to design a program that
would efficiently manage the resources under its authority, reduce
bycatch, minimize waste, and improve utilization so that the maximum
benefit of these resources would be provided to present and future
generations of fishermen, associated fishing industry sectors, fishing
communities, consumers, and the Nation as a whole. The Council also
committed itself to support the stability, economic well-being, and
diversity of the seafood industry and to provide for the economic and
social needs of communities dependent on that industry.
At its meeting in January 1993, the Council began evaluating the
effectiveness of different alternatives to determine which ones would
best meet the objectives of the CRP. The Council evaluated 11 different
alternatives, each of which had qualities that would have helped
achieve some of the objectives of the CRP. After comparing the
strengths and weaknesses of all the alternatives, the Council
identified license limitation and transferable IFQ as the most viable
alternatives.
Although transferable IFQ was identified as the alternative with
the greatest potential for solving the most issues in the problem
statement for the CRP, several problems prevented the Council from
choosing this alternative as the first step in the CRP process. Also,
the IFQ program for halibut and sablefish had not yet been implemented;
therefore, any information or experience that would have been gained
from the operation of that program was not then available. For these
reasons, the Council, at its September 1993 meeting, raised LLP to a
level of equal consideration with transferable IFQ as a management
regime designed to meet the objectives of the CRP.
In January 1994, the Council adopted its Advisory Panel's
recommendations to expedite the LLP alternative. This decision was
based in part on the facts that the industry lacked a consensus on what
specific form of a transferable IFQ alternative would be most
appropriate, and because of concerns regarding the amount of time that
would be necessary to produce an analysis and implement a transferable
IFQ program. The transferable IFQ alternative was not dropped
completely; rather, the Council considered it to be a potential second
step in the overall CRP process. Advocates for the LLP argued that the
LLP was a necessary first step in the CRP process because it could be
implemented more expeditiously and because it would provide stability
in the fishing industry while a transferable IFQ system was analyzed
and implemented.
At its meeting in April 1994, the Council received an LLP/IFQ
proposal from its State of Alaska representative. This proposal
contained an integrated, step-wise approach consisting of an LLP
followed by an IFQ program. This proposal became the basis for
subsequent Council actions that culminated in June 1995 with the
Council's adoption of the LLP. The Council transmitted Amendments 39,
41, and 5, which are the basis of the LLP, to NMFS on June 9, 1997.
NMFS published a notice of availability (NOA) for Amendments 39, 41,
and 5 on June 16, 1997 (62 FR 32579) and a proposed rule to implement
Amendments 39, 41, and 5 on August 15, 1997 (62 FR 43865). Public
comments on the amendments were accepted through August 15, 1997, and
on the proposed rule through September 29, 1997. NMFS received 263
comments on the amendments and 67 comments on the proposed rule. The
public comments concerning the LLP portion of the amendments and
[[Page 52643]]
proposed rule were consolidated into 21 specific issues to which NMFS
provided responses (see Response to Comments on the LLP Portion of
Amendments 39, 41, and 5). Amendments 39, 41, and 5 were approved by
NMFS on September 12, 1997.
By providing stability in the fishing industry and by identifying
the field of participants in the groundfish and crab fisheries, the LLP
will act as an interim step toward a more comprehensive solution to the
conservation and management problems of an open access fishery.
Although the LLP is an interim step, it addresses some of the important
issues in the problem statement developed for the CRP. By limiting the
number of vessels that are eligible to participate in the affected
fisheries, the LLP places an upper limit on the amount of
capitalization that may occur in those fisheries. This upper limit will
prevent future overcapitalization in those fisheries at levels that
could occur if such a constraint was not present. The LLP will replace
the current Vessel Moratorium, a program approved by NMFS in 1995 and
implemented in 1996 (60 FR 40763, August 10, 1995).
License Limitation Program--Operational Aspects
1. General
The LLP limits access to the commercial groundfish fisheries in the
EEZ off Alaska, except for demersal shelf rockfish east of 140 deg. W.
long. and sablefish managed under the IFQ program (license limitation
groundfish). The demersal shelf rockfish fishery east of 140 deg. W.
long. is excluded from the LLP because general management of this
fishery is deferred to the State of Alaska. The State of Alaska is
currently considering an alternative management program for this
fishery. The fixed gear fishery for sablefish is excluded because that
fishery is managed under the IFQ Program. The LLP also limits access to
the commercial crab fisheries in the BSAI, managed pursuant to the FMP
for the Commercial King and Tanner Crab Fisheries in the BSAI.
2. Nature of Licenses and Qualification Periods
A license for license limitation groundfish will be issued to an
eligible applicant based on fishing that occurred from an eligible
applicant's qualifying vessel in management areas (i.e., BSAI, GOA, or
BSAI/GOA, or state waters shoreward of those management areas) during
the general qualification period (GQP), and in endorsement areas
defined by these regulations (i.e., Aleutian Islands, Bering Sea,
Western Gulf, Central Gulf, and Southeast Outside, or state waters
shoreward of those endorsement areas) during the endorsement
qualification period (EQP). A license will authorize a license holder
to deploy a vessel from which directed fishing for license limitation
groundfish species can be conducted in the endorsement areas designated
on that license. This license also will be transferable. The GQP for
license limitation groundfish is January 1, 1988, through June 27,
1992, except for a vessel under 60 ft (18.3 m) from which a documented
harvest of license limitation groundfish was made with pot or jig gear
prior to January 1, 1995. For those vessels, the GQP is extended
through December 31, 1994. The Council recommended this extension so
that a vessel could be used for qualification, although that vessel was
deployed in the groundfish fisheries after June 27, 1992, because the
gear that was used from that vessel minimized bycatch loss and waste
due to discard mortality. Qualification under this extension will be
limited to one endorsement area to limit the extent to which capacity
might be increased. Minimizing bycatch loss and waste due to discard
mortality is an important objective of the CRP. Additionally, an
eligible applicant, whose qualifying vessel ``crossed-over'' to
groundfish from crab under the provisions of the current Vessel
Moratorium by June 17, 1995, also will qualify under the GQP for
license limitation groundfish.
The EQP for license limitation groundfish is January 1, 1992,
through June 17, 1995. The area endorsement(s) designated on a
groundfish license will authorize a license holder to deploy a vessel
from which directed fishing can be conducted in the following areas:
(1) Bering Sea Subarea; (2) Aleutian Islands Subarea; (3) Western Area
of the Gulf of Alaska; (4) Central Area of the Gulf of Alaska and the
West Yakutat District; and (5) Southeast Outside District.
The dual qualification periods (i.e., the GQP and the EQP) are
designed to account for past and recent participation in the affected
fisheries. The GQP, which includes the qualification period for the
current Vessel Moratorium, accounts for past fishing participation, and
the EQP accounts for the recent fishing participation that occurred up
to the Council's final action on the LLP (June 17, 1995). NMFS concurs
with the Council's recommendation that a vessel must have a fishing
history in both periods in order for the vessel owner to qualify for a
license. The requirement that vessels have fishing histories during
both periods is intended to ensure that only those vessel owners with
both past dependence and recent participation in the fishery qualify.
The dual qualification periods for crab species licenses serve the same
purpose.
Licenses for crab species will be issued to eligible applicants
based on fishing that occurred from the qualifying vessel in the BSAI
during the GQP, and for a specific species in an endorsement area
(i.e., Aleutian Islands brown king, Aleutian Islands red king, Bristol
Bay red king, Norton Sound red king and Norton Sound blue king,
Pribilof red king and Pribilof blue king, St. Matthew blue king, and
Chionoecetes opilio and C. bairdi (Tanner crab)) during the EQP. A
license will authorize the license holder to deploy a vessel from which
directed fishing for specific crab species can be conducted in Federal
waters of the specific areas designated on each license. This license
also will be transferable. The GQP for crab species is January 1, 1988,
through June 27, 1992. Vessels that participated in the Norton Sound
king crab fisheries and the Pribilof king crab fisheries are exempt
from the harvesting requirements of the GQP because (1) the Norton
Sound king crab fisheries began to be managed by the State of Alaska
under a system of super-exclusive registration in 1993 and (2) the
Pribilof king crab fisheries were closed from 1988 through 1992.
Eligibility for those fisheries will be based exclusively on
participation during a separate EQP as discussed below. Additionally,
an eligible applicant, whose qualifying vessel ``crossed-over'' to crab
from groundfish under the provisions of the current Vessel Moratorium
by December 31, 1994, will also qualify under the GQP for crab species.
The EQP for crab species varies among seven area/species
endorsements. The EQP for (1) Pribilof red and Pribilof blue king and
(2) Norton Sound red and Norton Sound blue king is January 1, 1993,
through December 31, 1994. The EQP for (3) C. opilio and C. bairdi
(Tanner crab), (4) St. Matthew blue king, (5) Aleutian Islands brown
king, and (6) Aleutian Islands red king is January 1, 1992, through
December 31, 1994. The EQP for (7) Bristol Bay red king is January 1,
1991, through December 31, 1994. The Council designed these varying
endorsement periods to accommodate the different patterns of season
openings and closures for specific crab species. For example, the
Bristol Bay red king crab fishery was not open in 1994; therefore, a 3-
year participation window is provided by using a January 1, 1991, start
date. The variations in the EQP for the Norton Sound king crab
fisheries and the Pribilof king crab fisheries are
[[Page 52644]]
explained in the preceding GQP discussion.
3. License Designations and Vessel Length Categories
All licenses for license limitation groundfish and crab species
will have a designation prescribing the activities the license holder
is authorized to conduct on a deployed vessel. A catcher vessel
designation on a groundfish license will authorize a license holder to
deploy a vessel from which directed fishing for license limitation
groundfish species can be conducted. A catcher vessel designation on a
crab species license will authorize a license holder to deploy a vessel
from which directed fishing for crab species can be conducted. The
catcher vessel designation on a groundfish license will not authorize
the processing of license limitation groundfish or crab species on
board the vessel. A catcher/processor vessel designation on a
groundfish license will authorize a license holder to deploy a vessel
from which directed fishing for license limitation groundfish can be
conducted and on which license limitation groundfish may be processed.
Similarly, a catcher/processor designation on a crab species license
will authorize a license holder to deploy a vessel from which directed
fishing for crab species can be conducted and on which crab species may
be processed. A license with a catcher/processor designation will also
authorize a license holder to deploy a vessel for the purpose of
directed fishing only for license limitation groundfish or crab species
(i.e., processing that catch is not required).
Also, a license holder can change the vessel designation on a
license from a catcher/processor vessel designation to a catcher vessel
designation. This change in designation would be permanent. Once a
vessel designation on a license is changed from a catcher/processor
vessel designation to a catcher vessel designation, the license holder
would no longer be able to process license limitation groundfish or
crab species on that vessel.
The length overall (LOA) of a vessel is defined at 50 CFR
Sec. 679.2 as the horizontal distance between the foremost part of the
stem and the aftermost part of the stern, excluding bowsprits, rudders,
outboard motor brackets, and similar fittings or attachments, measured
in linear feet and rounded to the nearest foot. The size categories
were selected to be consistent with the size categories in other
programs; in addition, some observer requirements vary with vessel
size, and these categories are consistent with those observer
requirements. The following convention will be used when rounding the
LOA to the nearest foot:
(1) When the amount exceeding a whole foot measurement is less than
6 inches (15.2 cm), the LOA is equal to that whole foot measurement.
For example, if the horizontal distance of a vessel is 124 ft, 5 3/4
inches (37.9 m), the LOA of the vessel is 124 ft (37.8 m).
(2) When the amount exceeding a whole foot measurement is greater
than 6 inches (15.2 cm), the LOA is equal to the next whole foot
measurement. For example, if the horizontal distance of a vessel is 124
ft, 6 1/8 inches (38.0 m), the LOA of the vessel is 125 ft (38.1 m).
(3) When the amount exceeding a whole foot measurement is exactly 6
inches (15.2 cm), the LOA is equal to that whole foot measurement if
the number is even; however, if the number is odd, the LOA is equal to
the next whole foot measurement. For example, if the horizontal
distance of a vessel is 124 ft, 6 inches (37.9 m), the LOA of the
vessel is 124 ft (37.8 m), but, if the horizontal distance of the
vessel is 59 ft, 6 inches (18.1 m), the LOA of the vessel is 60 ft
(18.3 m).
Eligibility for a license will be based on a determination that the
minimum number of documented harvests of license limitation groundfish
and crab species for a specific vessel length category were made from a
qualifying vessel. These categories are as follows: (1) Category ``A'',
which comprises vessels with an LOA of 125 ft (37.8 m) or greater; (2)
category ``B'', which comprises vessels with an LOA from 60 ft (18.3 m)
to 124 ft (37.5 m); and (3) category ``C'', which are vessels with an
LOA of 59 ft (18 m) or less. A vessel's length category will be
determined based on the vessel's LOA on June 17, 1995, or, if the
vessel was under reconstruction on that date, on the vessel's LOA on
the date that reconstruction was completed.
A vessel that is participating under the current Vessel Moratorium
may be lengthened to the maximum length overall (MLOA) specified on the
vessel's Moratorium Qualification. The MLOA is determined by the
following: For a vessel that was less than 125 ft (37.8 m) on June 24,
1992, its MLOA is 1.2 times the LOA of the vessel on June 24, 1992, or
125 ft (37.8 m), whichever is less. For a vessel that was 125 ft (37.8
m) or greater on June 24, 1992, its MLOA is the LOA of the vessel on
June 24, 1992. Finally, for a vessel that was being reconstructed on
June 24, 1992, its MLOA is determined as above but using the vessel's
LOA on the date that reconstruction was completed, rather than its LOA
on June 24, 1992.
The vessel lengthening provisions of the current Vessel Moratorium
explained here provide some flexibility to lengthen a vessel under the
LLP. Under the LLP, a vessel may be lengthened to its MLOA as
determined by the rules under the current Vessel Moratorium, provided
the vessel was lengthened before June 17, 1995, or, if not, provided
the lengthening does not cause the vessel to exceed the maximum length
allowed by the vessel's length category determined under the LLP. For
example, a vessel that was 58 ft (17.7 m) on June 24, 1992, could be
lengthened to 70 ft (21.4 m) under the provisions of the current Vessel
Moratorium. If the reconstruction that resulted in the lengthening of
the vessel to 70 ft (21.4 m) began before June 17, 1995, then the
vessel will be classified in the ``B'' vessel length category, which
applies to a vessel with an LOA equal to or greater than 60 ft (18.3 m)
but less than 125 ft (38.1 m). However, if the reconstruction that
resulted in the lengthening of the vessel began after June 17, 1995,
the vessel will be classified in the ``C'' vessel length category
(based on its LOA on June 17, 1995), which applies to a vessel with an
LOA of 59 ft (18 m) or less. Therefore, although a vessel may be
lengthened under the provisions of the current Vessel Moratorium, a
vessel that is reconstructed after June 17, 1995, may not be lengthened
beyond the maximum length of its vessel length category based on that
vessel's LOA on June 17, 1995 (or the vessel's LOA on the date
reconstruction was completed if the vessel was under reconstruction on
June 17, 1995), and still be eligible to be deployed for LLP fishing by
the license holder based on a license resulting from the documented
harvests that occurred from that vessel. For a vessel that was
lengthened before June 17, 1995, or that was under reconstruction on
June 17, 1995, NMFS will require evidence of the date the vessel was
lengthened, and the LOA of the vessel before and after that date. In
addition, NMFS will require evidence of the vessel's LOA on June 17,
1995. In such circumstances, evidence bearing upon the vessel's LOA on
the relevant dates could consist of a past marine survey, an original
builder's certificate, any admeasurement documents submitted to the
U.S. Coast Guard National Vessel Documentation Center, a certificate of
registration that states the vessel's length, or other credible
evidence. For the convenience of initial issuees and future
transferees, an LLP license will be designated with an MLOA, which will
limit the maximum
[[Page 52645]]
length of a vessel that can be deployed by the license holder.
4. Harvest Requirements--Groundfish
The number of documented harvests that must have been made by a
vessel for an eligible applicant to qualify for a particular area
endorsement for a groundfish license vary according to vessel length
category, the area, and vessel designation. These different
requirements are designed to account for differences in the operational
characteristics of the fisheries, differences in the geographical areas
in which the fisheries are prosecuted, and differences in the social
and economic conditions that affect participants in the fisheries from
various coastal areas. For instance, the dependence of fishing
communities around the GOA on small vessel fleets is accounted for by
requiring only a single harvest during the appropriate time periods for
a vessel less than 60 ft (18.3 m) LOA to qualify for an endorsement.
The single harvest requirement is extended to the Western Gulf for a
vessel that qualifies for a catcher vessel designation and is less than
125 ft (37.8 m) LOA because public testimony during Council
consideration of the LLP indicated that local fleets did not
participate in that area during the earlier portion of the EQP.
Consequently, excluding those fleets from adjacent fishing grounds
through more stringent harvesting requirements would have significantly
harmed local communities currently dependent on those fisheries. A
vessel in the Western Gulf that qualifies for a catcher/processor
vessel designation and that is from 60 ft (18.3 m) to less than 125 ft
(37.8 m) LOA has the same documented harvesting requirements as do all
vessels of similar length in the Central Gulf area and Southeast
Outside district because of its fishing capacity. Also, NMFS determined
that requiring a single documented harvest would best reflect the
operational characteristics of the fisheries in those areas. This
determination was based on information in the EA/RIR indicating that
requiring more than one documented harvest in the Bering Sea subarea
and Aleutian Islands subarea would unduly burden small vessels but
would not affect larger vessels. The larger vessels contributed to the
largest portion of capacity for the fishing fleet in those areas.
Finally, public testimony during consideration of the LLP indicated
that some vessels that qualified under the current Vessel Moratorium
entered into the fishery during the latter portion of the EQP. Also,
based on the Council's recommendation, NMFS added a provision to the
EQP requirements that, in certain areas, four documented harvests made
from a vessel between January 1, 1995, and June 17, 1995, are
sufficient for an area endorsement. NMFS believes that four documented
harvests will be sufficient to show that a person intended to remain in
the fishery and that his or her participation was not merely
speculative and opportunistic. Based on these considerations, NMFS
establishes the following harvesting requirements:
For a vessel classified in any of the three vessel length
categories (``A,'' ``B,'' or ``C''), at least one documented harvest of
a license limitation groundfish species made from that vessel in the
appropriate area during the EQP is necessary to qualify an eligible
applicant for an Aleutian Islands area endorsement or for a Bering Sea
area endorsement.
For a vessel classified in vessel length category ``C,'' at least
one documented harvest of license limitation groundfish species made
from that vessel in the appropriate area during the EQP is necessary to
qualify an eligible applicant for a Western Gulf area endorsement, a
Central Gulf area endorsement, and a Southeast Outside area
endorsement.
For a vessel classified in vessel length category ``B'' and
eligible for a catcher vessel designation, at least one documented
harvest of license limitation groundfish species made by that vessel in
the appropriate area during the EQP is necessary to qualify an eligible
applicant for a Western Gulf area endorsement.
For a vessel classified in vessel length category ``B,'' at least
one documented harvest of license limitation groundfish species made by
that vessel in the appropriate area in each of any 2 calendar years
from January 1, 1992, through June 17, 1995, or four documented
harvests of license limitation groundfish species made from that vessel
in the appropriate area between January 1, 1995, through June 17, 1995,
is necessary to qualify an eligible applicant for a Central Gulf area
endorsement or a Southeast Outside area endorsement. This documented
harvest requirement also will apply to a Western Gulf area endorsement
for a vessel eligible for a catcher/processor vessel designation and
classified in vessel length category ``B.''
For a vessel classified in vessel length category ``A,'' at least
one documented harvest of license limitation groundfish species made
from that vessel in the appropriate area in each of any 2 calendar
years from January 1, 1992, through June 17, 1995, is necessary to
qualify an eligible applicant for a Central Gulf area endorsement, a
Southeast Outside area endorsement, or a Western Gulf area endorsement.
5. Harvest Requirements--Crab Species
The number of documented harvests made from a vessel that an
eligible applicant must demonstrate to qualify for a particular area/
species endorsement for a crab species license varies according to the
crab species. The Council recommended different requirements so that
incidental catches would not qualify a person for a license (e.g.,
incidentally caught Tanner crab with red or blue king), but, in
fisheries where a single harvest may have indicated that a person
intended to remain in a fishery (e.g., the Pribilof red and blue king
crab fishery that was closed from 1988 through 1992), minimal
participation would be recognized. The following requirements were
recommended by the Council and approved by NMFS: (1) For a red and blue
king crab license, at least one documented harvest of the appropriate
crab species made from a vessel in the appropriate fishery during the
EQP; and (2) for a brown king and Tanner crab license, at least three
documented harvests of the appropriate crab species made from a vessel
in the appropriate fishery during the EQP.
The appropriate fishery is the area, as defined in the regulations,
that corresponds to the area/species endorsement for which the eligible
applicant is seeking qualification. Only documented harvests will
qualify the applicant. As defined in the regulations, a documented
harvest means a lawful harvest that was recorded in compliance with
Federal and state commercial fishing regulations in effect at the time
of harvest.
6. License Recipients
A license will be issued only to an eligible applicant. An eligible
applicant must have been eligible on June 17, 1995 (the date of final
Council action on the LLP), to document a fishing vessel under Chapter
121 of Title 46, U.S.C. As defined by these regulations, an eligible
applicant is (1) the owner, on June 17, 1995, of a qualified vessel or
(2) the person to whom the qualified vessel's fishing history was
transferred or retained by written contract provided that the express
terms of that contract clearly and unambiguously indicate that the
qualified vessel's fishing history was transferred or retained. NMFS
will recognize written contracts to the extent practicable; however, in
the event of a dispute concerning the disposition of the fishing
history by written contract, NMFS will not issue a license until the
[[Page 52646]]
dispute is resolved by the parties involved. The following presumptions
will be used to determine the qualification for a license in the
absence of a written contract provision addressing the vessel's fishing
history: First, if a vessel was sold on or before June 17, 1995, it
will be presumed that the vessel's fishing history and license
qualification were transferred with the vessel. Second, if a vessel was
sold after June 17, 1995, it will be presumed that the vessel's fishing
history and license qualification remained with the seller.
Furthermore, only one license will be issued based on the fishing
history of any qualified vessel. For instance, a vessel's fishing
history cannot be divided so that multiple licenses would be issued.
Also, if there were multiple owners of a qualified vessel on June 17,
1995, then one license will be issued in the names of the multiple
owners or of the appropriate successors in interest. A qualified vessel
is one from which documented harvests were made during the appropriate
qualifying periods listed in 50 CFR Sec. 679.4(i)(4) and (5) of this
rule.
Also, an otherwise qualified individual who can demonstrate
eligibility pursuant to the provisions of the Rehabilitation Act of
1973 would be considered an eligible applicant.
7. Application and Transfer Processes for the LLP
NMFS is currently developing a notice of proposed rule making to
explain and formalize the process for applying for a license and
transferring a license under the LLP. Consequently, issues related to
the application and transfer processes will be addressed in that notice
of proposed rulemaking.
8. License Severability and Ownership Caps
A vessel designation, an MLOA, and area endorsements (groundfish)
or area/species endorsements (crab species) are constituent parts of,
and not severable from, a license. For example, a license holder who
has a groundfish license with two endorsements (e.g., a Southeast
Outside area endorsement and a Central Gulf area endorsement) cannot
request that the single license with two endorsements be split into two
licenses with one endorsement each thus making it possible to retain
one license (with one endorsement) and transfer the other (with the
other endorsement). All endorsements must be transferred with the
license because endorsements are not severable from the license.
Also, for at least 3 years after the effective date of the LLP, a
groundfish license and crab species license initially issued to a
person are not severable if those licenses resulted from documented
harvests made from the same qualifying vessel. The Council intends to
review the issue of severability 3 years after implementation of the
LLP. The Council may remove the prohibition on severing initially
issued groundfish and crab species licenses if, after its review, the
Council decides that the reason for non-severability (i.e., excess
effort in the fisheries) has been ameliorated.
A person is limited to a maximum of 10 groundfish licenses and a
maximum of five crab species licenses, unless that person is initially
issued more than those numbers of licenses, in which case the person
can hold more licenses than the specified maximum. However, a person
who has more groundfish licenses than the specified maximum for
groundfish licenses cannot receive a groundfish license by transfer
until that person's number of groundfish licenses which that person has
is less than the specified maximum. The same is true for crab species
licenses. After obtaining transfer eligibility by dropping below the
specified maximum, a person cannot exceed that specified maximum,
notwithstanding the earlier status of being allowed to exceed the
specified maximum on initial issuance. These limits prevent any person
from obtaining an excessive share of harvest privileges in the affected
fisheries as required by national standard 4 of the Magnuson-Stevens
Act.
9. Other Provisions
Several other provisions are included in the LLP. First, persons
who target species not included in the groundfish portion of the LLP
and who were allowed to land incidentally taken license limitation
groundfish species prior to the implementation of the LLP are
authorized, under the LLP, to continue landing bycatch amounts of
license limitation groundfish species without a groundfish license.
This provision will reduce the waste that occurs when bycatch is
required to be discarded and is consistent with the objectives of
national standard 9 of the Magnuson-Stevens Act. This is especially
true for programs like the IFQ program for sablefish and halibut, where
the targeted species and license limitation groundfish species may be
found in the same habitat area.
Second, an eligible applicant who qualifies for a license based on
the documented harvests of a vessel that was lost or destroyed before
the application process will be eligible for the license and
accompanying endorsements. This license could not be used for
harvesting applicable species unless the vessel on which the license is
used conforms with all the requirements of the license, including MLOA
and vessel designation.
Third, an ``unavoidable circumstances'' provision is included in
the LLP. Through this provision, an applicant may be found eligible to
receive a license, even though the vessel fishing history on which that
eligibility is based does not meet the standard eligibility criteria
for a license. To be issued a license under the unavoidable
circumstances provision, an applicant's eligibility must be based on a
vessel which can document a harvest of license limitation groundfish
species or of crab species, if applicable, between January 1, 1988, and
February 9, 1992. The applicant must also provide evidence that the
vessel was subsequently lost, damaged, or unable to qualify the
applicant for a license under the criteria in 50 CFR Sec. 679.4(i)(4)
or (5) due to factors beyond the control of the owner (or owners, if
applicable) of the vessel at time the vessel was lost, damaged, or
otherwise unable to meet the qualifying criteria. Furthermore, the
applicant must demonstrate that:
(1) The owner(s) of the vessel at time the vessel was lost,
damaged, or otherwise unable to meet the qualifying criteria held a
specific intent to conduct directed fishing for license limitation
groundfish (or for crab species, if applicable) with that vessel during
a specific time period in a specific area.
(2) The specific intent to conduct directed fishing for license
limitation groundfish (crab species) with that vessel was thwarted by a
circumstance that was-
(a) Unavoidable;
(b) Unique to the owner(s) of that vessel or unique to that vessel;
or
(c) Unforeseen and reasonably unforeseeable to the owner(s) of the
vessel.
(3) The circumstance that prevented the owner(s) from conducting
directed fishing for license limitation groundfish (crab species)
actually occurred.
(4) Under the circumstances, the owner(s) of the vessel took all
reasonable steps to overcome the circumstance that prevented the owner
from conducting directed fishing for license limitation groundfish
(crab species).
(5) A documented harvest of license limitation groundfish (crab
species) was made from the vessel, or its replacement, in the specific
area that corresponds to the area endorsement (or area/species
endorsement, if applicable) for which the claimant is applying after
[[Page 52647]]
the vessel was prevented from participating by the unavoidable
circumstance but before June 17, 1995.
If all these criteria are met to the satisfaction of NMFS, a
license may be issued for the relevant fishery and endorsement area.
This provision is not designed to be a ``loop hole'' through which an
eligible applicant that does not meet the qualification requirements
can be issued a license. If an eligible applicant fails to demonstrate
that an unavoidable circumstance prevented the vessel from meeting the
qualifications in Sec. 679.4(i)(4) or (5), NMFS will not issue a
license.
Fourth, a license will be issued to an eligible applicant whose
eligibility for a license is based on a vessel which can document a
harvest of license limitation groundfish during the GQP in one
management area and the required minimum number of documented harvests
of license limitation groundfish were made during the EQP in an
endorsement area in the other management area. For example, suppose an
eligible applicant is basing his or her eligibility on a vessel in
length category ``C'' from which only two documented harvests of
license limitation groundfish species were made. The first documented
harvest was of license limitation groundfish species that occurred in
the BSAI on December 31, 1991, and the second documented harvest was of
license limitation groundfish species that occurred in the Central Gulf
endorsement area on June 16, 1995. Although the eligible applicant
would not qualify for a license under the standard eligibility criteria
(i.e., by basing eligibility on documented harvests of license
limitation groundfish species made from a vessel during the GQP and the
EQP in the same management area), this eligible applicant would qualify
for a license under this alternative method of eligibility. Section
679.4(i)(4)(iv) and (v) provides that if a documented harvest of
license limitation groundfish is made from a vessel during the GQP (and
not the EQP) in one management area and a documented harvest of license
limitation groundfish is made from that same vessel during the EQP (and
not the GQP) in the other management area, then the eligible applicant
who is basing his or her eligibility on that vessel would qualify for a
license for the management area in which the documented harvests were
made during the EQP. The eligible applicant in the example above would
receive a license for the Gulf of Alaska with a Central Gulf area
endorsement.
Consistency With Section 303(b)(6) of the Magnuson-Stevens Act
Any FMP or FMP amendment that establishes a system of limited
access to achieve OY must meet the guidelines established in Section
303(b)(6) of the Magnuson-Stevens Act. These guidelines state that the
preparers must take into account (1) present participation in the
fishery; (2) historical fishing practices in, and dependence on, the
fishery; (3) the economics of the fishery; (4) the capability of
fishing vessels in the fishery to engage in other fisheries; (5) the
cultural and social framework relevant to the fishery; and (6) any
other relevant considerations.
The administrative record for the LLP is replete with examples of
the Council considering the issues enumerated in the Section 303(b)(6)
guidelines of the Magnuson-Stevens Act. The two-part qualification
period (i.e., the GQP and the EQP) is an example of the Council
balancing present participation in the fishery (EQP) and historical
practices in, and dependence on, the fishery (GQP). The economics of
the fishery was a primary consideration in the development of the LLP.
Some of the factors considered included overcapitalization in the
industry, too many vessels chasing too few fish (overcapacity), and the
gradual shifting from an artisanal fleet to an industrial fleet. This
final factor was a major concern because it had the potential of
adversely affecting small coastal communities dependent on an artisanal
fleet.
The current state of overcapitalization in most U.S. fisheries
makes the fourth guideline seem like an anomaly. The concern for the
capability of a vessel displaced from one fishery to enter another
fishery, however, is for the individual owner of that displaced vessel
and not for the fishery as a whole. Most vessels in the affected
fisheries are not so unique as to make these modifications prohibitive.
In fact, certain provisions of the LLP are specifically included
because of the flexibility of fishing vessels used in waters off Alaska
(e.g., 32-foot or 9.7 meter vessel exemption in the BSAI).
The Council carefully evaluated the cultural and social framework
relevant to the fishery. For instance, the Council commissioned the
development of community profiles for over 130 communities in Alaska
and in the Pacific Northwest, a sector description and preliminary
social impact assessment, and a final social impact assessment for its
evaluation. Several aspects of the LLP are a direct result of the
cultural and social framework of the fisheries. For example, the
Multispecies Community Development Quota (CDQ) Program was developed by
the Council and approved by NMFS concurrent with the LLP. Also, the no-
trawl zone east of 140 deg. W. long, which was designed to preserve
artisanal fishermen and the small coastal communities in SE. Alaska
that depend on them, is a prime example of the Council considering the
cultural and social framework of the affected fisheries.
Fisheries Impact Statement
Section 303(a)(9) of the Magnuson-Stevens Act requires that
Councils in every FMP or FMP amendment they submit to the NMFS for
approval include a fishery impact statement (FIS) that assesses,
specifies, and describes the likely effects of the proposed
conservation and management measures on participants in the affected
fisheries and participants in fisheries in adjacent areas. The
following is a summary of the FIS found in the EA/RIR for this action:
The LLP will place limitations on current participants in the
affected fisheries. First, current participants will be limited to
deploying a vessel in areas for which they hold a license and an area
endorsement. Second, vessel replacements and upgrades will be limited
by length and designation specified on the license. Third, current
participants will have to meet the specific eligibility criteria of the
LLP to receive a license authorizing participation in the affected
fisheries.
Although the LLP will exclude some current participants who did not
fish during the GQP, these excluded persons can gain access to the
affected fisheries by obtaining a license through transfer. Also, the
total allowable catches (TAC) for the affected fisheries are not
expected to change based on implementation of the LLP. Nor will the
implementation of the LLP affect fishery product flow, total revenues
derived from the affected fisheries, or regional distribution of vessel
ownership. The LLP will ameliorate, but not totally eliminate,
overcapacity, overcapitalization, and vessel safety concerns
perpetuated under status quo management.
Due to the geographical location of the affected fisheries, there
are no adjacent areas under the authority of other Regional Fishery
Management Councils. However, participants in fisheries in other areas
could face increased pressures from new entrants excluded from the
affected fisheries. This increased pressure is expected to be nominal,
in any case, because of the increasingly small number of open
[[Page 52648]]
access fisheries available in the EEZ off the west coast of the United
States. In fact, the LLP is intended to prevent just the opposite
effect (i.e., a surge of new entrants to the fisheries in the EEZ off
Alaska from among those persons that have been excluded from newly
limited fisheries in the EEZ off the west coast of the contiguous
United States).
Changes to the Final Rule
The following addresses all substantive changes to the final rule.
Editorial changes are not discussed.
A definition for the term ``documented harvest'' is added to the
final rule. The term ``documented harvest'' replaces ``legal landing''
throughout the final rule. The new term more accurately describes the
activity necessary for eligibility. Included in the proposed definition
of legal landing was the activity of off-loading. Off-loading is not
necessary for eligibility. Further, the area endorsement(s) a person is
issued should reflect the area in which fishing occurred, not the area
in which the fish was delivered.
Any references to designating a specific vessel on a license is
eliminated in the final rule. A license can be used on any vessel that
complies with the MLOA designated on the license and that meets other
regulatory requirements. Designating a specific vessel on a license
would mean that a license holder would need to request a transfer
before that license could be used on a vessel different from the one
designated on the license. Making a transfer necessary for such
behavior would constrain the flexibility of the license holder and
increase the administrative costs to NMFS. Therefore, this requirement
is eliminated.
The definition of ``eligible applicant'' is revised to add a
paragraph to accommodate individuals that can demonstrate eligibility
for the LLP pursuant to the provisions of the Rehabilitation Act of
1973 at 29 U.S.C. 794(a). This addition clarifies that otherwise
qualified individuals may avail themselves of the appropriate
provisions of the Rehabilitation Act of 1973 when applying for licenses
under the LLP.
The rule is revised to require that the ``maximum length overall
(MLOA)'' be designated on the license. NMFS determined that the MLOA,
and not the vessel length category, is the constraining factor on what
size vessel can be used based on the license; therefore, designating
the vessel length category is unnecessary and can be confusing because
general vessel lengths, under the vessel length categories, can exceed
a specific vessel's MLOA. Despite these changes, vessel length
categories are still in the final rule because they are used to
determine the minimum documented harvest requirements for area
endorsements.
The crab species designations of Adak red king, Adak brown king,
and Dutch Harbor brown king crab are eliminated from the final rule.
These designations are eliminated because the Alaska Department of Fish
and Game has combined the crab management areas of Adak and Dutch
Harbor into a new Aleutian Islands Area (State of Alaska Registration
Area O). Those persons who would have qualified for an Adak red king
area/species endorsement, under the provisions of the proposed rule,
will be issued an Aleutian Islands red king area/species endorsement,
and those persons who would have qualified for an Adak brown king area/
species endorsement or a Dutch Harbor brown king area/species
endorsement, under the provisions of the proposed rule, will be issued
an Aleutian Islands brown king area/species endorsement. Also, the
area/species endorsement definitions for Adak red king crab, Adak brown
king crab, and Dutch Harbor brown king have been eliminated from the
final rule, and new area/species endorsement definitions for Aleutian
Islands red king and Aleutian Islands brown king have been added to the
final rule to reflect this combination.
In Sec. 679.4(i)(2)(iv), the term ``CDQ'' is removed and replaced
with the term ``CDP.'' This correction is consistent with the original
intent of the proposed rule. The publication in the proposed rule of
CDQ, rather than CDP, was a typographical error.
In Sec. 679.4(i)(3)(ii), paragraph (i)(3) is added to describe the
forms of evidence that can be used to verify the processing activity of
a vessel for purposes of establishing eligibility for a catcher/
processor designation.
In Sec. 679.4(i)(4), text is added to describe the forms of
evidence that can be used to verify a documented harvest for purposes
of establishing eligibility for a groundfish license.
In Sec. 679.4, paragraphs (i)(4)(iv) and (v) are changed to
increase the reader's understanding of the criteria necessary for
receiving a license based on participating in different fishery
management areas during the GQP and the EQP. The changes are stylistic
and not substantive; therefore, none of the criteria has changed from
the proposed rule.
The regulatory text in Sec. 679.4(i)(6) Application for a
groundfish license or a crab species license and in Sec. 679.4(i)(7)
Transfers is removed, and these paragraphs are reserved. NMFS is
currently developing a notice of proposed rulemaking regarding the
application and transfer processes. When the rulemaking for the
application and transfer processes is completed, regulatory text will
be added to these reserved paragraphs.
In Sec. 679.7(j)(2), (3), (4), and (5), the terms ``original'' and
``valid'' are added in front of the terms ``groundfish license'' and
``crab species license,'' respectively. This change was made to clarify
that nothing other than an original valid license will be accepted as
proof of authority to deploy a vessel in the affected fisheries.
Response to Comments on the LLP Portion of Amendments 39, 41, and 5
Comment 1: The LLP fails to address the overcapitalization problem
in the Federal fisheries off Alaska.
Response: The LLP is intended to be part of a step-wise approach
toward eliminating excess capital investment in the Federal fisheries
off Alaska. Although the LLP does not totally solve the
overcapitalization problem, as was clearly indicated in the analysis
for the LLP, the LLP does define and limit the field of participants in
these Federal fisheries. This step is critical to the further
development of management programs that will more fully address the
overcapitalization issues. Also, the LLP will limit license holders to
discrete management areas for which the license is authorized based on
past participation, unlike the current Vessel Moratorium, which allowed
permit holders unrestricted movement throughout the EEZ off Alaska.
The LLP is designed to be a framework program to which other
programs (e.g., vessel and license buyback, individual bycatch
accountability, and individual fishing quotas) could be added to reduce
capitalization in the future. The LLP will be available as a future
basis for further addressing overcapitalization. Substantial interest
in establishing an industry-sponsored buyback for the crab portion of
the LLP has already been expressed by industry participants and the
Council. As stated earlier, by identifying the field of participants in
the groundfish and crab fisheries and, thereby, providing stability in
the fishing industry, the LLP is an interim step toward a more
comprehensive solution to the conservation and management problems
inherent in an overcapitalized fishery. Although the LLP is an interim
step, it addresses some of the important issues in the problem
statement developed for the CRP. The LLP, through the limits it
[[Page 52649]]
places on the number of vessels that can be deployed in the affected
fisheries, places an upper limit on the amount of capitalization that
could occur in those fisheries. This upper limit will prevent
overcapitalization in those fisheries at levels that could occur in the
future if such a constraint was not present.
Comment 2: The Council did not consider all reasonable alternatives
when choosing the LLP option.
Response: At its meeting in January 1993, the Council began
evaluating the effectiveness of different alternatives to determine
which ones would best meet the objectives of the an CRP developed for
the Federal groundfish and crab fisheries off Alaska. These
alternatives included (1) exclusive area registration, (2) seasonal
allocations, (3) license limitation, (4) gear allocations, (5) inshore/
offshore allocations, (6) CDQ allocations, (7) trip limits, (8) IFQ for
prohibited species catch, (9) non-transferable IFQ, (10) transferable
IFQ, and (11) harvest privilege auctions. All the alternatives had
qualities that would have helped achieve some of the objectives of the
CRP; however, after comparing the strengths and weaknesses of the
alternatives, the Council identified license limitation and
transferable IFQ as the most viable alternatives.
Although transferable IFQ was identified as the alternative with
the greatest potential for solving the most issues in the problem
statement for the CRP, several problems prevented the Council from
choosing this alternative as the first step in the CRP process. For
example, determinations about who should be found eligible to receive
an initial allocation of quota or how much initial quota should be
issued to each eligible applicant would have been exceedingly
difficult. Also, since the IFQ program for halibut and sablefish had
not yet been implemented, any information or experience that would have
been gained from the operation of that program was not then available.
For these reasons, the Council, at its meeting in September 1993,
raised LLP to a level of equal consideration with transferable IFQ as a
management regime designed to meet the objectives of the CRP.
In January 1994, the Council adopted its Advisory Panel's
recommendations to expedite the LLP alternative. This decision was made
because the industry lacked a consensus on the specific form of a
transferable IFQ alternative and a concern about the amount of time
that would be necessary to produce an analysis and implement a
transferable IFQ program. The transferable IFQ alternative was not
dropped completely; rather, it was considered by the Council as a
potential future step in the overall CRP process. Advocates for the LLP
argued that the LLP was a necessary first step in the CRP process
because it could be implemented more quickly than a transferable IFQ
system, and because it would provide stability in the fishing industry
while a transferable IFQ system was analyzed and implemented. The above
discussion demonstrates that the Council did review and consider
reasonable alternatives before deciding that the LLP was the best
choice for the next step in the CRP process.
Comment 3: Amendments 39, 41, and 5 are not fair and equitable by
providing different criteria for license qualification by management
area and vessel class.
Response: National standard 4 of the Magnuson-Stevens Act in
pertinent part requires that, if it becomes necessary to allocate or
assign fishing privileges among various U.S. fishermen, such allocation
shall be fair and equitable to all such fishermen and reasonably
calculated to promote conservation.
The different criteria for license qualification accounts for
differences in the operational characteristics of the fisheries,
differences in the geographical areas in which the fisheries are
prosecuted, and differences in the social and economic conditions that
affect participants in the fisheries from various coastal areas. For
instance, the dependence of many fishing communities around the Gulf of
Alaska on small vessel fleets is accounted for by requiring that only
one documented harvest be made from a vessel less than 60 ft (18.3 m)
LOA during the appropriate time periods to qualify for an endorsement.
The single documented harvest requirement is extended to catcher
vessels less than 125 ft (37.8 m) LOA in the Western Gulf because
public testimony during Council consideration of the LLP indicated that
local fleets did not participate in that area during the earlier
portion of the EQP. Consequently, the Council concluded that excluding
those fleets from adjacent fishing grounds through more stringent
harvesting requirements would cause significant harm to local
communities dependent on those fisheries. Catcher/processor vessels in
the Western Gulf area that are from 60 ft (18.3 m) to less than 125 ft
(37.8 m) LOA also have the same documented harvest requirements like
vessels of similar length in the Central Gulf area and Southeast
Outside district because of their fishing capacity. Further, based on
information in the LLP analysis indicating that multiple harvest
requirements in the Bering Sea subarea and Aleutian Islands subarea
would unduly burden small vessels but would not affect larger vessels,
which contributed to the largest portion of capacity in the fishing
fleet in those areas, NMFS has concluded that a single documented
harvest requirement best reflects the operational characteristics of
the fisheries in those areas. Finally, the Council received public
testimony during consideration of the LLP that some vessels that
qualified under the current Vessel Moratorium entered into the fishery
during the latter portion of the EQP. Based on that testimony, the
Council recommended, and NMFS approved, a four documented harvest
provision to the EQP harvest requirements in certain areas to account
for participation from these vessels. NMFS believes that requiring
four-documented harvests is sufficient to show that a person intended
to remain in the fishery and that his or her participation was not
merely speculative and opportunistic. The LLP complies with national
standard 4.
Comment 4: The license caps are arbitrary and capricious and will
not prevent any particular individual, corporation, or other entity
from acquiring an excessive share of privileges under the LLP.
Response: National standard 4 of the Magnuson-Stevens Act in
pertinent part requires that, if it becomes necessary to allocate or
assign fishing privileges among various U.S. fishermen, such allocation
shall be carried out in such a manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges. NMFS analyzed the number of participants that would be
licensed in each endorsement area if maximum consolidation occurred
(i.e., if all participants in a specific area held the maximum number
of licenses allowed under the proposed license cap--10 licenses for
groundfish and 5 licenses for crab), and concluded that those numbers
did not result in any particular individual, corporation, or other
entity acquiring an excessive share of privileges under the LLP.
Comment 5: Although it was purported to be an interim step, no
sunset date was included in the LLP.
Response: The Council did not have an established timetable for the
next step in the CRP process. The Magnuson-Steven Act mandated a
studies of quota-based systems, which are being conducted by the
National Research Council. Until those studies are concluded, the
Council would be unable to properly analyze the next step toward CRP,
especially if that step ends up being a quota-based management program.
A sunset date for a portion of a step-wise comprehensive program is
[[Page 52650]]
potentially dangerous if the succeeding step for that program is not
under development and may lead to the premature recission of a
necessary management measure. Furthermore, the absence of a sunset date
does not preclude the Council from recommending a substitute for the
LLP at any time in the future.
Comment 6: The LLP allows the qualification of groundfish vessels
that participated only in state waters.
Response: Most FMP groundfish species in and off Alaska are
considered a single stock with total allowable catches that are based
on data from fisheries in the federally managed EEZ (3-200 miles or
2.6-261 nautical miles) and in the territorial waters of the State of
Alaska (0-3 miles or 0-2.6 nautical miles). Therefore, any catch made
by fishermen exclusively in territorial waters was already included in
the annual specifications for FMP groundfish fisheries. Furthermore,
vessels qualified under the Vessel Moratorium, the current limited
access program, with harvests exclusively in state waters. Allowing
state water harvests to qualify a vessel under the LLP takes into
account current and past participation and is consistent with the
Vessel Moratorium.
Comment 7: Amendments 39, 41, and 5 are not fair and equitable by
allowing a quota system for certain Western Alaska communities and not
allowing a quota system for groundfish fishermen.
Response: The use of a quota-based system for Western Alaska
communities was already in existence for certain species (i.e.,
pollock, sablefish, and halibut) when the Council proposed a 7.5-
percent allocation of other species to the CDQ program as part of the
LLP. An allocation was specifically required by the Magnuson-Stevens
Act, whereas using individual quota-based management for other
fisheries was specifically banned by the Magnuson-Stevens Act until
further study. Approving the LLP does not preclude the use of quota-
based management in the future if Congress decides that its current ban
on using quota-based management systems for fisheries should be
removed.
Comment 8: NMFS should ban the use of all factory trawlers in
Federal waters off Alaska.
Response: Banning all factory trawlers in Federal waters off Alaska
was not an alternative analyzed during the development of the LLP. Any
vessel for which sufficient participation in, and dependence, on the
basis for the affected fisheries can be demonstrated can be eligible
for a license under the LLP.
Comment 9: NMFS should reduce bycatch and waste resulting from
bycatch.
Response: National standard 9 of the Magnuson-Stevens Act requires
conservation and management measures, to the extent practicable, to
minimize bycatch and, to the extent bycatch cannot be avoided, to
minimize the mortality of such bycatch. In compliance with this
requirement, the LLP includes a provision that specifically provides
that a person who does not hold an LLP license may keep up to the
maximum retainable bycatch amount of a license limitation groundfish
species caught while participating in another fishery not covered by
the LLP. This provision was included in the LLP to minimize discard
mortality of these species through utilization.
Also, through a separate rulemaking, NMFS has implemented an
Improved Retention/Improved Utilization Program for certain groundfish
species in the GOA and the BSAI (62 FR 65379, December 12, 1997). The
IR/IU Program is designed to reduce discard mortality by requiring
fishermen to retain and utilized a specified percentage of fish product
that was previously discarded. NMFS anticipates that combined efforts
of the LLP and the IR/IU program will assist in reducing bycatch.
Comment 10: NMFS should protect critical habitat.
Response: Protection and preservation of critical habitat is a top
priority for NMFS. However, none of the alternatives analyzed for the
LLP pertained to critical habitat, nor does the LLP.
Comment 11: The LLP does not contain a provision to allow for a
small amount of processing on a vessel that is deployed based on a
license with a catcher vessel designation.
Response: One of the motions considered by the Council when it
adopted the LLP was to allow a vessel deployed based on a license with
a catcher vessel designation to process limited amounts of LLP
groundfish. This motion included daily processing limits of up to 18 mt
per vessel. After Council discussion, the motion was disapproved
primarily because of enforcement concerns about monitoring the
processing limits. Also, the Council concluded that a person who
desires to process fish at sea but who has a license with a catcher
vessel designation could obtain through transfer a license with a
catcher/processor designation.
Comment 12: Licenses issued under the LLP program are not gear
specific (i.e., a vessel deployed based on a license can use any legal
gear, despite the type of gear used to qualify for the license). This
lack of gear specificity may contribute to overcapacity in the affected
fisheries.
Response: During the development of the LLP, the Council considered
a motion to make licenses gear specific. The motion was withdrawn after
Council staff informed the Council that gear specificity was not an
alternative that had been thoroughly analyzed. The concept of gear
specificity raises issues about making gear specificity apply by area,
as opposed to the overall license, criteria for determining what gear
to assign, and the number of potential gear changes. These issues
should be analyzed and evaluated before a specific gear provision is
added to the LLP.
The LLP is designed to ameliorate, but not totally eliminate,
overcapacity and overcapitalization, as perpetuated under status quo
management. While developing the LLP, the Council contemplated that
further steps would need to be taken in the future to meet the goals of
the CRP. At its February 1998 meeting, the Council directed staff to
consider adding a specific gear provision to the LLP. If adopted, a
specific gear provision may be one of the steps used to further
rationalize the groundfish fisheries in the EEZ off Alaska.
Comment 13: The LLP contains an exemption for vessels that, after
November 18, 1992, were specifically constructed for and used
exclusively in accordance with a Community Development Plan (CDP)
approved by NMFS. Accordingly, these vessels do not exceed 125 ft (38.1
m), and are designed and equipped to meet specific needs that are
described in the approved CDP. This exemption may contribute to
overcapacity in the affected fisheries.
Response: This exemption, which was also included in the current
Vessel Moratorium, is intended to assist Community Development Quota
(CDQ) groups in recovering the costs for vessels built specifically for
prosecuting CDQ fisheries. NMFS does not anticipate that a significant
number of vessels will be built to use this exemption. In fact, no
vessel used the similar exemption provided in the current Vessel
Moratorium. Also, vessels no longer connected with a CDQ group (i.e.,
no longer used in accordance with a CDP) would not be exempt from the
requirements of the LLP.
Comment 14: The suggestion by NMFS of using documented length,
rather than actual length, for LOA is not feasible. Documented length
has no consistency among vessels of the same actual length. Also,
vessel owners who availed themselves of the ``20 percent
[[Page 52651]]
rule'' under the current Vessel Moratorium could be disqualified from
participation under the LLP if LOA is based on documented length.
Response: NMFS concurs. In the notice of proposed rule- making,
NMFS requested comments about the possibility of using documented
length rather than actual length because of difficulties that had been
reported with at-sea monitoring for compliance with existing vessel
length categories, thereby, impairing at-sea enforcement of fishery
regulations. However, all the comments received on this issue supported
the current method of determining LOA by actual length. Based on these
comments, NMFS has decided to not change the current definition of LOA
at Sec. 679.2 and to enforce LOA rules on shore or in port.
Comment 15: A license issued on the basis of past participation to
an eligible applicant who is not currently participating in a fishery
is a ``latent license.'' Latent licenses will be issued under the LLP
because the time periods used to determine eligibility for a license
and the time period between the development and the implementation of
the LLP will mean that a person can receive a license even if that
person has not deployed a vessel in 1996 and 1997. The issuance of
latent licenses will contribute to overcapacity in the affected
fisheries.
Response: The time periods established to determine eligibility
(i.e., the GQP and the EQP, as well as the June 17, 1995, eligibility
date) are fixed in the FMP language approved by NMFS and, therefore,
cannot be changed through the regulatory process. When the time periods
and the eligibility date were selected, they were contemporaneous with
the date of final action by the Council. A provision to require
participation in 1996 or 1997 as a prerequisite for a license would
require FMP amendments to change the current language in the relevant
FMPs. At its February 1998 meeting, the Council directed staff to
analyze adding more recent participation (e.g., documented harvests in
1995, 1996, and/or 1997) as a prerequisite to eligibility for a crab
species license. If adopted, a more recent participation requirement
may ameliorate the impacts of latent licenses on the affected
fisheries.
Comment 16: Overcapacity and overcapitalization can be reduced by
instituting a license buyback program for the LLP.
Response: The Council discussed the merits of a license buyback
program during the development of the LLP; however, a buyback program
was not included in the LLP because the funding method analyzed was
determined to be beyond the authority of the Council (i.e., requiring
all license recipients to pay a fee) without a referendum by the
recipients authorizing such action.
Since that determination, the Magnuson-Stevens Act has been amended
to include a Fishing Capacity Reduction Program, that specifically
authorizes the development of a license buyback program. A buyback
program for crab licenses currently is being developed by a crab
industry organization for consideration by the Council.
Comment 17: Limiting the use of the unavoidable circumstances
provision to a person whose eligibility is based on a vessel, or its
replacement, whose documented harvest before June 15, 1995. was
unavailable after that vessel was lost, damaged, or otherwise unable to
participate in a qualifying fishery, is unfair to a person who could
have used the provision except that he or she did not have a documented
harvest before prior to June 17, 1995.
Response: Based on the approved recommendation of the Council, NMFS
narrowly crafted the unavoidable-circumstances provision to grant
eligibility only when the minimum requirements for eligibility under
the EQP would have been met except that circumstances beyond the
control of the owner of the vessel at that time prevented that vessel
from meeting those requirements. However, the unavoidable-circumstances
provision was never intended to extend the EQP. Unless a person can
demonstrate his or her intent to remain an active participant in the
groundfish fisheries through a documented harvest made from a vessel,
or its replacement, and submitted after that vessel was lost, damaged,
or unable to participate but before June 17, 1995, that person cannot
use the unavoidable-circumstances provision. A harvest before June 17,
1995, indicated a participant's good faith effort to remain in the
groundfish fisheries. This requirement is not unfair because any
participation after June 17, 1995, the date of final Council action, is
not considered a qualifying harvest under the LLP.
Comment 18: The Council indicated that a person who would not
qualify because he or she deployed a vessel from which documented
harvests were made during the GQP and the EQP in different management
areas would receive a license with an area endorsement for the area in
which that person had met the minimum requirements during the EQP.
However, a provision to allow this method of eligibility was not in the
FMP language. How will this issue be addressed?
Response: The record shows that the Council did indicate that this
method of eligibility would be allowed. Section 679.4(i)(4)(iv) and (v)
provides for this method of eligibility. These provisions implement the
Council's FMP amendments on this issue.
Comment 19: NMFS should consider reducing the amount of pollock
available for harvest in the North Pacific.
Response: Harvest reduction is beyond the scope of the LLP
analysis; however, this comment would be appropriate for the
specifications process, a process during which the allowable biological
catch and the TAC for each species is determined.
Comment 20: The LLP does not solve the race for fish. The race for
fish contributes to safety hazards of fishing; therefore, the LLP does
not meet the requirements of national standard 10.
Response: National standard 10 requires conservation and management
measures, to the extent practicable, to promote the safety of human
life at sea. The U.S. Coast Guard reviewed the LLP and determined that
all safety concerns had been adequately addressed. No management
program can totally eliminate the inherent risks of fishing. Fishing
vessel operators, as they have been throughout history, will be faced
with the many inherent risks of earning a living at sea. The LLP will
not increase that peril.
Comment 21: Is a person that owns a vessel that was
``grandfathered'' under the provisions of Chapter 121, Title 46,
U.S.C., included in the definition of ``qualified person?''
Response: Research of the record, Council transcripts, and the EA/
RIR, indicate that the Council intended to include a person that owned
a vessel that was ``grandfathered'' under the provisions of Chapter
121, Title 46, U.S.C., in the definition of ``qualified person.'' Such
a person would need to demonstrate that his or her vessel was eligible
to be documented as a fishing vessel under the ``grandfather''
provision of Chapter 121, Title 46, U.S.C., to be found eligible for a
license under the LLP.
Classification
The Administrator, Alaska Region, NMFS, (Regional Administrator)
determined that the FMP Amendments 39, 41, and 5 are necessary for the
conservation and management of the groundfish fisheries of the EEZ off
Alaska and the crab fisheries of the BSAI. The Regional Administrator
also determined that these amendments are
[[Page 52652]]
consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule would not have a
significant economic impact on a substantial number of small entities.
NMFS received four comments concerning that certification; however,
these comments were directed at the CDQ portion of the proposed rule
and are summarized and responded to in the separate final rule action
(63 FR 8356, February 19,
1998). These comments did not cause NMFS to change its
determination regarding the certification. As a result, a regulatory
flexibility analysis was not prepared.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection-of-information subject to the
requirements of the PRA, unless that collection-of-information displays
a currently valid OMB control number.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act. The collection of this information has
been approved by the Office of Management and Budget, OMB control
number 0648-0334. The public reporting burden for these requirements is
estimated to be two hours for a permit application and one hour for a
permit transfer application. These estimates include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates or any other aspect of the data requirements, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the
Office of Information and Regulatory Affairs, OMB, Washington, DC
20503, Attention: NOAA Desk Officer.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: September 24, 1998.
Andrew A. Rosenberg,
Acting Deputy Assistant Administrator for Fisheries, National Marine
Fisheries Service.
For reasons set out in the preamble, 50 CFR part 679 is amended to
read as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.1, paragraph (j) is added to read as follows:
Sec. 679.1 Purpose and scope.
* * * * *
(j) License Limitation Program. (1) Regulations in this part
implement the license limitation program for the commercial groundfish
fisheries in the EEZ off Alaska and for the commercial crab fisheries
in the Bering Sea and Aleutian Islands Area.
(2) Regulations in this part govern the commercial fishing for
license limitation groundfish by vessels of the United States using
authorized gear within the GOA and the BSAI and the commercial fishing
for crab species by vessels of the United States using authorized gear
within the Bering Sea and Aleutian Islands Area.
3. In Sec. 679.2, the definitions for ``Legal Landing'', ``Maximum
LOA'', ``Processing or to process'', and ``Qualified Person'', are
revised; and definitions for ``Area Endorsement'', ``Area/Species
Endorsement'', ``Catcher/Processor Vessel Designation'', ``Catcher
Vessel Designation'', ``Crab Species'', ``Crab Species License'',
paragraph (3) for ``Directed Fishing'', ``Documented Harvest'',
``Eligible Applicant'', ``Groundfish License'', ``License Holder'',
``License Limitation Groundfish'', ``State'', and ``Vessel Length
Category'' are added in alphabetical order to read as follows:
Sec. 679.2 Definitions.
* * * * *
Area endorsement means a designation on a license that authorizes a
license holder to deploy a vessel to conduct directed fishing for
license limitation groundfish in the designated area, subarea, or
district. Area endorsements, which are inclusive of, but not
necessarily the same as, management areas, subareas, or districts
defined in this part, are as follows:
(1) Aleutian Islands area endorsement. Authorizes the license
holder to deploy a vessel to conduct directed fishing for license
limitation groundfish in the Aleutian Islands Subarea;
(2) Bering Sea area endorsement. Authorizes the license holder to
deploy a vessel to conduct directed fishing for license limitation
groundfish in the Bering Sea Subarea;
(3) Central Gulf area endorsement. Authorizes the license holder to
deploy a vessel to conduct directed fishing for license limitation
groundfish in the Central Area of the Gulf of Alaska and the West
Yakutat District;
(4) Southeast Outside area endorsement. Authorizes the license
holder to deploy a vessel to conduct directed fishing for license
limitation groundfish in the Southeast Outside District; and
(5) Western Gulf area endorsement. Authorizes the license holder to
deploy a vessel to conduct directed fishing for license limitation
groundfish in the Western Area of the Gulf of Alaska.
Area/species endorsement means a designation on a license that
authorizes a license holder to deploy a vessel to conduct directed
fishing for the designated crab species in Federal waters in the
designated area. Area/species endorsements for crab species licenses
are as follows:
(1) Aleutian Islands brown king in waters with an eastern boundary
the longitude of Scotch Cap Light (164 deg. 44' W. long.), a western
boundary of the U.S.-Russian Convention Line of 1867, and a northern
boundary of a line from the latitude of Cape Sarichef (54 deg. 36' N.
lat.) westward to 171 deg. W. long., then north to 55 deg. 30' N. lat.,
then west to the U.S.-Russian Convention line of 1867.
(2) Aleutian Islands red king in waters with an eastern boundary
the longitude of Scotch Cap Light (164 deg. 44' W. long.), a western
boundary of the U.S.-Russian Convention Line of 1867, and a northern
boundary of a line from the latitude of Cape Sarichef (54 deg. 36' N.
lat.) westward to 171 deg. W. long., then north to 55 deg. 30' N. lat.,
and then west to the U.S.-Russian Convention line of 1867.
(3) Bristol Bay red king in waters with a northern boundary of
58 deg. 39' N. lat., a southern boundary of 54 deg. 36' N. lat., and a
western boundary of 168 deg. W. long. and including all waters of
Bristol Bay.
(4) Bering Sea and Aleutian Islands Area C. opilio and C. bairdi in
Pacific Ocean and Bering Sea waters east of the U.S.-Russian Convention
Line of 1867, excluding all Pacific Ocean waters east of a boundary
line extending south (180 deg.) from Scotch Cap Light.
(5) Norton Sound red king and Norton Sound blue king in waters with
a western boundary of 168 deg. W. long., a southern boundary of 61 deg.
49' N. lat., and a northern boundary of 65 deg. 36' N. lat.
(6) Pribilof red king and Pribilof blue king in waters with a
northern boundary of 58 deg. 39' N. lat., an eastern boundary of
168 deg. W. long., a southern boundary line from 54 deg. 36' N. lat.,
168 deg. W. long., to 54 deg. 36' N. lat., 171 deg. W. long., to
55 deg. 30' N. lat., 171 deg. W. long., to 55 deg. 30' N.
[[Page 52653]]
lat., 173 deg. 30' E. lat., and then westward to the U.S.-Russian
Convention line of 1867.
(7) St. Matthew blue king in waters with a northern boundary of
61 deg. 49' N. lat., a southern boundary of 58 deg. 39' N. lat., and a
western boundary of the U.S.-Russian Convention line of 1867.
Catcher/processor vessel designation means, for purposes of the
license limitation program, a license designation that authorizes the
license holder:
(1) Designated on a groundfish license to deploy a vessel to
conduct directed fishing for license limitation groundfish and process
license limitation groundfish on that vessel or to conduct only
directed fishing for license limitation groundfish; or
(2) Designated on a crab species license to deploy a vessel to
conduct directed fishing for crab species and process crab species on
that vessel or to conduct only directed fishing for crab species.
Catcher vessel designation means, for purposes of the license
limitation program, a license designation that authorizes the license
holder:
(1) Designated on a groundfish license to deploy a vessel to
conduct directed fishing for, but not process, license limitation
groundfish on that vessel; or
(2) Designated on a crab species license to deploy a vessel to
conduct directed fishing for, but not process, crab species on that
vessel.
* * * * *
Crab species means all crab species covered by the Fishery
Management Plan for the Commercial King and Tanner Crab Fisheries in
the Bering Sea/Aleutian Islands, including, but not limited to, red
king crab (Paralithodes camtschatica), blue king crab (Paralithodes
platypus), brown or golden king crab (Lithodes aequispina), scarlet or
deep sea king crab (Lithodes couesi), Tanner or bairdi crab
(Chionoecetes bairdi), opilio or snow crab (Chionoecetes opilio),
grooved Tanner crab (Chionoecetes tanneri), and triangle Tanner crab
(Chionoecetes angulatus).
Crab species license means a license issued by NMFS that authorizes
the license holder designated on the license to deploy a vessel to
conduct directed fishing for crab species.
* * * * *
Directed fishing means:
* * * * *
(3) With respect to license limitation groundfish species, directed
fishing as defined in paragraph (1) of this definition, or, with
respect to license limitation crab species, the catching and retaining
of any license limitation crab species.
* * * * *
Documented harvest means a lawful harvest that was recorded in
compliance with Federal and state commercial fishing regulations in
effect at the time of harvesting.
* * * * *
Eligible applicant means a qualified person who submitted an
application during the application period announced by NMFS and:
(1) Who owned a vessel on June 17, 1995, from which the minimum
number of documented harvests of license limitation groundfish or crab
species were made in the relevant areas during the qualifying periods
specified in Sec. 679.4(i)(4) and (i)(5), unless the fishing history of
that vessel was transferred in conformance with the provisions in
paragraph (2) of this definition; or
(2) To whom the fishing history of a vessel from which the minimum
number of documented harvests of license limitation groundfish or crab
species were made in the relevant areas during the qualifying periods
specified in Sec. 679.4(i)(4) and (i)(5) has been transferred or
retained by the express terms of a written contract that clearly and
unambiguously provides that the qualifications for a license under the
LLP have been transferred or retained; or
(3) Who was an individual who held a State of Alaska permit for the
Norton Sound king crab summer fishery in 1993 and 1994, and who made at
least one harvest of red or blue king crab in the relevant area during
the period specified in Sec. 679.4(i)(5)(ii)(G), or a corporation that
owned or leased a vessel on June 17, 1995, that made at least one
harvest of red or blue king crab in the relevant area during the period
in Sec. 679.4(i)(5)(ii)(G), and that was operated by an individual who
was an employee or a temporary contractor; or
(4) Who is an individual that can demonstrate eligibility pursuant
to the provisions of the Rehabilitation Act of 1973 at 29 U.S.C.
794(a).
* * * * *
Groundfish license means a license issued by NMFS that authorizes
the license holder designated on the license to deploy a vessel to
conduct directed fishing for license limitation groundfish.
* * * * *
Legal landing means a landing in compliance with Federal and state
commercial fishing regulations in effect at the time of landing.
* * * * *
License holder means the person who is named on a currently valid
groundfish license or crab species license.
License limitation groundfish means target species and the ``other
species'' category, specified annually pursuant to Sec. 679.20(a)(2),
except that demersal shelf rockfish east of 140 deg. W. longitude and
sablefish managed under the IFQ program are not considered license
limitation groundfish.
* * * * *
Maximum LOA (MLOA) means:
(1) Applicable through December 31, 1998, with respect to a
vessel's eligibility for a moratorium permit:
(i) Except for a vessel under reconstruction on June 24, 1992, if
the original qualifying LOA is less than 125 ft (38.1 m) LOA, 1.2 times
the original qualifying LOA or 125 ft (38.1 m), whichever is less.
(ii) Except for a vessel under reconstruction on June 24, 1992, if
the original qualifying LOA is equal to or greater than 125 ft (38.1
m), the original qualifying LOA.
(iii) For an original qualifying vessel under reconstruction on
June 24, 1992, the LOA on the date reconstruction was completed,
provided that maximum LOA is certified under Sec. 679.4(c)(9).
(2) With respect to the license limitation program, the LOA of the
vessel on June 24, 1992, unless the vessel was less than 125 ft (38.1
m) on June 24, 1992, then 1.2 times the LOA of the vessel on June 24,
1992, or 125 ft (38.1 m), whichever is less. However, if the vessel was
under reconstruction on June 24, 1992, then the basis for the MLOA will
be the LOA of the vessel on the date that reconstruction was completed
and not June 24, 1992. The following exceptions apply regardless of how
the MLOA was determined.
(i) If the vessel's LOA on June 17, 1995, was less than 60 ft (18.3
m), or if the vessel was under reconstruction on June 17, 1995, and the
vessel's LOA on the date that reconstruction was completed was less
than 60 ft (18.3 m), then the vessel's MLOA cannot exceed 59 ft (18 m).
(ii) If the vessel's LOA on June 17, 1995, was greater than or
equal to 60 ft (18.3 m) but less than 125 ft (38.1 m), or if the vessel
was under reconstruction on June 17, 1995, and the vessel's LOA on the
date that reconstruction was completed was greater than or equal to 60
ft (18.3 m) but less 125 ft (38.1 m), then the vessel's MLOA cannot
exceed 124 ft (37.8 m).
(iii) If the vessel's LOA on June 17, 1995, was 125 ft (38.1 m) or
greater, then the vessel's MLOA is the vessel's LOA on June 17, 1995,
or if the vessel was under reconstruction on June 17,
[[Page 52654]]
1995, and the vessel's LOA on the date that reconstruction was
completed was 125 ft (38.1 m) or greater, then the vessel's MLOA is the
vessel's LOA on the date reconstruction was completed.
* * * * *
Processing, or to process, means the preparation of, or to prepare,
fish or crab to render it suitable for human consumption, industrial
uses, or long-term storage, including but not limited to cooking,
canning, smoking, salting, drying, freezing, or rendering into meal or
oil, but does not mean icing, bleeding, heading, or gutting.
* * * * *
Qualified Person means:
(1) With respect to the IFQ program, see IFQ Management Measures at
Sec. 679.40(a)(2).
(2) With respect to the license limitation program, a person who
was eligible on June 17, 1995, to document a fishing vessel under
Chapter 121, Title 46, U.S.C.
* * * * *
State means the State of Alaska.
* * * * *
Vessel length category means the length category of a vessel, based
on the assigned MLOA, used to determine eligibility.
* * * * *
4. In Sec. 679.4, paragraphs (a)(6) and (k) are added to read as
follows:
Sec. 679.4 Permits.
(a) * * *
(6) Harvesting privilege. Quota shares, permits, or licenses issued
pursuant to this part are neither a right to the resource nor any
interest that is subject to the ``takings'' provision of the Fifth
Amendment to the U.S. Constitution. Rather, such quota shares, permits,
or licenses represent only a harvesting privilege that may be revoked
or amended subject to the requirements of the Magnuson-Stevens Act and
other applicable law.
* * * * *
(i) Licenses for license limitation groundfish or crab species--(1)
General requirements. (i) In addition to the permit and licensing
requirements prescribed in this part, and except as provided in
paragraph (i)(2) of this section, each vessel within the GOA or the
BSAI must have a groundfish license on board at all times it is engaged
in fishing activities defined in Sec. 679.2 as directed fishing for
license limitation groundfish. This groundfish license, issued by NMFS
to a qualified person, authorizes a license holder to deploy a vessel
to conduct directed fishing for license limitation groundfish only in
the specific area(s) designated on the license and may only be used on
a vessel that complies with the vessel designation and MLOA specified
on the license.
(ii) In addition to the permit and licensing requirements
prescribed in this part, and except as provided in paragraph (i)(2) of
this section, each vessel within the Bering Sea and Aleutian Islands
Area must have a crab species license on board at all times it is
engaged in fishing activities defined in Sec. 679.2 as directed fishing
for crab species. This crab species license, issued by NMFS to a
qualified person, authorizes a license holder to deploy a vessel to
conduct directed fishing for crab species only for the specific species
and in the specific area(s) designated on the license, and may be used
only on a vessel that complies with the vessel designation and MLOA
specified on the license.
(2) Exempt vessels. Notwithstanding the requirements of paragraph
(i)(1) of this section,
(i) A catcher vessel or catcher/processor vessel that does not
exceed 26 ft (7.9 m) LOA may conduct directed fishing for license
limitation groundfish in the GOA without a groundfish license;
(ii) A catcher vessel or catcher/processor vessel that does not
exceed 32 ft (9.8 m) LOA may conduct directed fishing for license
limitation groundfish in the BSAI without a groundfish license and may
conduct directed fishing for crab species in the Bering Sea and
Aleutian Islands Area without a crab species license;
(iii) A catcher vessel or catcher/processor vessel that does not
exceed 60 ft (18.3 m) LOA may use a maximum of 5 jig machines, one line
per jig machine, and a maximum of 15 hooks per line, to conduct
directed fishing for license limitation groundfish in the BSAI without
a groundfish license; or
(iv) A catcher vessel or catcher/processor vessel that does not
exceed 125 ft (38.1 m) LOA, and that was, after November 18, 1992,
specifically constructed for and used exclusively in accordance with a
CDP approved by NMFS under Subpart C of this part, and is designed and
equipped to meet specific needs that are described in the CDP may
conduct directed fishing for license limitation groundfish in the GOA
and in the BSAI area without a groundfish license and for crab species
in the Bering Sea and Aleutian Islands Area without a crab species
license.
(3) Vessel designations and vessel length categories--(i) General.
A license can be used only on a vessel that complies with the vessel
designation specified on the license and that has an LOA less than or
equal to the MLOA specified on the license.
(ii) Vessel designations--(A) Catcher/processor vessel. A license
will be assigned a catcher/processor vessel designation if:
(1) For license limitation groundfish, license limitation
groundfish were processed on the vessel that qualified for the
groundfish license under paragraph (i)(4) of this section during the
period January 1, 1994, through June 17, 1995, or in the most recent
calendar year of participation during the area endorsement qualifying
period specified in paragraph (i)(4)(ii) of this section; or
(2) For crab species, crab species were processed on the vessel
that qualified for the crab species license under paragraph (i)(5) of
this section during the period January 1, 1994, through December 31,
1994, or in the most recent calendar year of participation during the
area endorsement qualifying period specified in paragraph (i)(5)(ii) of
this section.
(3) For purposes of paragraphs (i)(3)(ii)(A)(1) and
(i)(3)(ii)(A)(2) of this section, evidence of processing must be
demonstrated by Weekly Production Reports or other valid documentation
demonstrating that processing occurred on the vessel during the
relevant period.
(B) Catcher vessel. A license will be assigned a catcher vessel
designation if it does not meet the criteria in paragraph
(i)(3)(ii)(A)(1) or (i)(3)(ii)(A)(2) of this section to be assigned a
catcher/processor vessel designation.
(C) Changing a vessel designation. A person who holds a groundfish
license or a crab species license with a catcher/processor vessel
designation may, upon request to the Regional Administrator, have the
license reissued with a catcher vessel designation. The vessel
designation change to a catcher vessel will be permanent, and that
license will be valid for only those activities specified in the
definition of catcher vessel designation at Sec. 679.2.
(iii) Vessel length categories. A vessel's eligibility will be
determined using the following three vessel length categories, which
are based on the vessel's LOA on June 17, 1995, or, if the vessel was
under reconstruction on June 17, 1995, the vessel's length on the date
that reconstruction was completed.
(A) Vessel length category ``A'' if the LOA of the qualifying
vessel on the relevant date was equal to or greater than 125 ft (38.1
m) LOA.
(B) Vessel length category ``B'' if the LOA of the qualifying
vessel on the relevant date was equal to or greater than 60 ft (18.3 m)
but less than 125 ft (38.1 m) LOA.
[[Page 52655]]
(C) Vessel length category ``C'' if the LOA of the qualifying
vessel on the relevant date was less than 60 ft (18.3 m) LOA.
(4) Qualifications for a groundfish license. A groundfish license
will be issued to an eligible applicant that meets the criteria in
paragraphs (i)(4)(i) and (i)(4)(ii) of this section. For purposes of
the license limitation program, evidence of a documented harvest must
be demonstrated by a state catch report, a Federal catch report, or
other valid documentation that indicates the amount of license
limitation groundfish harvested, the groundfish reporting area in which
the license limitation groundfish was harvested, the vessel and gear
type used to harvest the license limitation groundfish, and the date of
harvesting, landing, or reporting. State catch reports are Alaska,
California, Oregon, or Washington fish tickets. Federal catch reports
are Weekly Production Reports required under Sec. 679.5.
(i) General qualification periods (GQP). (A) At least one
documented harvest of any amount of license limitation groundfish
species must have been made from a vessel to qualify for one or more of
the area endorsements in paragraphs (i)(4)(ii)(A) and (i)(4)(ii)(B) of
this section. This documented harvest must have been of license
limitation groundfish species caught and retained in the BSAI or in the
State waters shoreward of the BSAI and must have occurred during the
following periods:
(1) January 1, 1988, through June 27, 1992;
(2) January 1, 1988, through December 31, 1994, provided that the
harvest was of license limitation groundfish using pot or jig gear from
a vessel that was less than 60 ft (18.3 m) LOA; or
(3) January 1, 1988, through June 17, 1995, provided that the
vessel qualified for a gear endorsement under the Vessel Moratorium
based on criteria specified at Sec. 679.4(c)(5)(ii)(B) or
Sec. 679.4(c)(5)(iv)(B).
(B) At least one documented harvest of any amount of license
limitation groundfish species must have been made from a vessel to
qualify for one or more of the area endorsements in paragraphs
(i)(4)(ii)(C) through (i)(4)(ii)(E) of this section. This documented
harvest must have been of fish caught and retained in the GOA or in the
State waters shoreward of the GOA and must have occurred during the
following periods:
(1) January 1, 1988, through June 27, 1992;
(2) January 1, 1988, through December 31, 1994, provided that the
harvest was of license limitation groundfish using pot or jig gear from
a vessel that was less than 60 ft (18.3 m) LOA; or
(3) January 1, 1988, through June 17, 1995, provided that the
vessel qualified for a gear endorsement under the Vessel Moratorium
based on criteria specified at Sec. 679.4(c)(5)(ii)(B) or
Sec. 679.4(c)(5)(iv)(B).
(ii) Endorsement qualification periods (EQP). A groundfish license
will be assigned one or more area endorsements based on the criteria in
paragraphs (i)(4)(ii)(A) through (i)(4)(ii)(E) of this section.
(A) Aleutian Islands area endorsement. For a license to be assigned
an Aleutian Islands endorsement, at least one documented harvest of any
amount of license limitation groundfish must have been made from a
vessel in any vessel length category (vessel categories ``A'' through
``C'') between January 1, 1992, and June 17, 1995, and in the Aleutian
Islands Subarea or in State waters shoreward of that subarea.
(B) Bering Sea area endorsement. For a license to be assigned a
Bering Sea area endorsement, at least one documented harvest of any
amount of license limitation groundfish must have been made from a
vessel in any vessel length category (vessel categories ``A'' through
``C'') between January 1, 1992, and June 17, 1995, and in the Bering
Sea Subarea or in State waters shoreward of that subarea.
(C) Western Gulf area endorsement--(1) Vessel length category
``A''. For a license to be assigned a Western Gulf area endorsement
based on the participation from a vessel in vessel length category
``A'', at least one documented harvest of any amount of license
limitation groundfish must have been made from that vessel from January
1, 1992, through June 17, 1995, in the Western Area of the Gulf of
Alaska or in State waters shoreward of that area.
(2) Vessel length category ``B'' and catcher vessel designation.
For a license to be assigned a Western Gulf area endorsement based on
the participation from a vessel in vessel length category ``B'' and
that would qualify for a catcher vessel designation under this section,
at least one documented harvest of any amount of license limitation
groundfish must have been made from that vessel from January 1, 1992,
through June 17, 1995, in the Western Area of the Gulf of Alaska or in
State waters shoreward of that area.
(3) Vessel length category ``B'' and catcher/processor vessel
designation. For a license to be assigned a Western Gulf area
endorsement based on the participation from a vessel in vessel length
category ``B'' and that would qualify for a catcher/processor vessel
designation under this section, at least one documented harvest of any
amount of license limitation groundfish must have been made from that
vessel in each of any 2 calendar years from January 1, 1992, through
June 17, 1995, in the Western Area of the Gulf of Alaska or in State
waters shoreward of that area, or at least four documented harvests of
any amount of license limitation groundfish harvested from January 1,
1995, through June 17, 1995, in the Western Area of the Gulf of Alaska
or in State waters shoreward of that area.
(4) Vessel length category ``C''. For a license to be assigned a
Western Gulf area endorsement based on the participation from a vessel
in vessel length category ``C'', at least one documented harvest of any
amount of license limitation groundfish must have been made from that
vessel from January 1, 1992, through June 17, 1995. This documented
harvest must have recorded a harvest occurring in the Western Area of
the Gulf of Alaska or in State waters shoreward of that area for a
Western Gulf area endorsement.
(D) Central Gulf area endorsement--(1) Vessel length category
``A''. For a license to be assigned a Central Gulf area endorsement
based on the participation of a vessel in vessel length category ``A'',
at least one documented harvest of any amount of license limitation
groundfish must have been made from that vessel in each of any 2
calendar years from January 1, 1992, through June 17, 1995. These
documented harvests must have recorded harvests occurring in the
Central Area of the Gulf of Alaska or in State waters shoreward of that
area, or in the West Yakutat District or in state waters shoreward of
that district.
(2) Vessel length category ``B''. For a license to be assigned a
Central Gulf area endorsement based on the participation from a vessel
in vessel length category ``B'', at least one documented harvest of any
amount of license limitation groundfish must have been made from that
vessel in each of any 2 calendar years from January 1, 1992, through
June 17, 1995, or at least four documented harvests from January 1,
1995, through June 17, 1995. These documented harvests must have
recorded harvests occurring in the Central Area of the Gulf of Alaska
or in State waters shoreward of that area, or in the West Yakutat
District or in state waters shoreward of that district.
(3) Vessel length category ``C''. For a license to be assigned a
Central Gulf area endorsement based on the participation from a vessel
in vessel
[[Page 52656]]
length category ``C'', at least one documented harvest of any amount of
license limitation groundfish must have been made from that vessel from
January 1, 1992, through June 17, 1995. This documented harvest must
have recorded a harvest occurring in the Central Area of the Gulf of
Alaska or in State waters shoreward of that area, or in the West
Yakutat District or in state waters shoreward of that district.
(E) Southeast Outside area endorsement--(1) Vessel length category
``A''. For a license to be assigned a Southeast Outside area
endorsement based on the participation from a vessel in vessel length
category ``A'', at least one documented harvest of any amount of
license limitation groundfish must have been made from that vessel in
each of any 2 calendar years from January 1, 1992, through June 17,
1995. These documented harvests must have recorded harvests occurring
in the Southeast Outside District or in State waters shoreward of that
district.
(2) Vessel length category ``B''. For a license to be assigned a
Southeast Outside area endorsement based on the participation from a
vessel in vessel length category ``B'', at least one documented harvest
of any amount of license limitation groundfish must have been made from
that vessel in each of any 2 calendar years from January 1, 1992,
through June 17, 1995, or at least four documented harvests from
January 1, 1995, through June 17, 1995. These documented harvests must
have recorded harvests occurring in the Southeast Outside District or
in State waters shoreward of that district.
(3) Vessel length category ``C''. For a license to be assigned a
Southeast outside area endorsement based on the participation from a
vessel in vessel length category ``C'', at least one documented harvest
of any amount of license limitation groundfish must have been made from
that vessel from January 1, 1992, through June 17, 1995. This
documented harvest must have recorded a harvest occurring in the
Southeast Outside District or in State waters shoreward of that
district.
(iii) An eligible applicant that is issued a groundfish license
based on a vessel's qualifications under paragraph (i)(4)(i)(A)(2) or
(i)(4)(i)(B)(2) of this section must choose only one area endorsement
for that groundfish license even if the vessel qualifies for more than
one area endorsement.
(iv) Notwithstanding the provisions in paragraph (i)(4) of this
section, a license with the appropriate area endorsements will be
issued to an eligible applicant whose vessel meets the requirements of
paragraph (i)(4)(i)(A), and the requirements of paragraph
(i)(4)(ii)(C), (i)(4)(ii)(D), or (i)(4)(ii)(E) of this section, but
(A) From whose vessel no documented harvests were made in the GOA
or state waters shoreward of the GOA between January 1, 1988, and June
27, 1992, and
(B) From whose vessel no documented harvests were made in the BSAI
or state waters shoreward of the BSAI between January 1, 1992, and June
17, 1995.
(v) Notwithstanding the provisions of paragraph(i)(4) of this
section, a license with the appropriate area endorsements will be
issued to an eligible applicant whose vessel meets the requirements of
paragraph (i)(4)(i)(B) of this section, and the requirements of
paragraph (i)(4)(ii)(A) or (i)(4)(ii)(B) of this section, but
(A) From whose vessel no documented harvests were made in the BSAI
or state waters shoreward of the BSAI between January 1, 1988, and June
27, 1992, and
(B) From whose vessel no documented harvests were made in the GOA
or state waters shoreward of the GOA between January 1, 1992, and June
17, 1995.
(5) Qualifications for a crab species license. A crab species
license will be issued to an eligible applicant who owned a vessel that
meets the criteria in paragraphs (i)(5)(i) and (i)(5)(ii) of this
section, except that vessels are exempt from the requirements in
paragraph (i)(5)(i) of this section for the area/species endorsements
in paragraph (i)(5)(ii)(A) and (i)(5)(ii)(G) of this section.
(i) General qualification period (GQP). To qualify for one or more
of the area/species endorsements in paragraph (i)(5)(ii) of this
section:
(A) At least one documented harvest of any amount of crab species
must have been made from a vessel between January 1, 1988, and June 27,
1992; or
(B) At least one documented harvest of any amount of crab species
must have been made from a vessel between January 1, 1988, and December
31, 1994, providing that the vessel from which the documented harvest
was made qualified for a gear endorsement under the Vessel Moratorium
based on criteria specified at Sec. 679.4(c)(5)(i)(B).
(ii) Area/Species Endorsements. A crab species license will be
assigned one or more area/species endorsements specified at Sec. 679.2
based on the criteria in paragraphs (i)(5)(ii)(A) through (G) of this
section.
(A) Pribilof red king and Pribilof blue king. At least one
documented harvest of any amount of red king or blue king crab
harvested in the area described in the definition for the Pribilof red
king and Pribilof blue king area/species endorsement in Sec. 679.2 must
have been made from a vessel between January 1, 1993, and December 31,
1994, to qualify for a Pribilof red king and Pribilof blue king area/
species endorsement.
(B) Bering Sea and Aleutian Islands Area C. opilio and C. bairdi.
At least three documented harvests of any amount of C. opilio or C.
bairdi crab harvested in the area described in the definition for the
Bering Sea and Aleutian Islands Area C. opilio or C. bairdi area/
species endorsement in Sec. 679.2 must have been made from a vessel
between January 1, 1992, and December 31, 1994, to qualify for a C.
opilio and C. bairdi area/species endorsement.
(C) St. Matthew blue king. At least one documented harvest of any
amount of blue king crab harvested in the area described in the
definition for the St. Matthews blue king area/species endorsement in
Sec. 679.2 must have been made from a vessel between January 1, 1992,
and December 31, 1994, to qualify for a St. Matthew blue king area/
species endorsement.
(D) Aleutian Islands brown king. At least three documented harvests
of any amount of brown king crab harvested in the area described in the
definition for the Aleutian Islands brown king area/species endorsement
in Sec. 679.2 must have been made from a vessel between January 1,
1992, and December 31, 1994, to qualify for a Aleutian Islands brown
king area/species endorsement.
(E) Aleutian Islands red king. At least one documented harvest of
any amount of red king crab harvested in the area described in the
definition for the Aleutian Islands red king area/species endorsement
in Sec. 679.2 must have been made from a vessel between January 1,
1992, and December 31, 1994, to qualify for a Aleutian Islands red king
area/species endorsement.
(F) Bristol Bay red king. At least one documented harvest of any
amount of red king crab harvested in the area described in the
definition for the Bristol Bay red king area/species endorsement in
Sec. 679.2 must have been made from a vessel between January 1, 1991,
and December 31, 1994, to qualify for a Bristol Bay red king area/
species endorsement.
(G) Norton Sound red king and Norton Sound blue king. At least one
documented harvest of any amount of red king or blue king crab
harvested in the area described in the definition for the Norton Sound
red king and Norton Sound blue king area/species endorsement in
Sec. 679.2 must have been
[[Page 52657]]
made from a vessel between January 1, 1993, and December 31, 1994, to
qualify for a Norton Sound red king and Norton Sound blue king area/
species endorsement.
(6) Application for a groundfish license or a crab species license.
[Reserved].
(7) Transfers. [Reserved].
(8) Other provisions. (i) Any person committing, or a fishing
vessel used in the commission of, a violation of the Magnuson-Stevens
Fishery Conservation and Management Act or any regulations issued
pursuant thereto, is subject to the civil and criminal penalty
provisions and the civil forfeiture provisions of the Magnuson-Stevens
Fishery Conservation and Management Act, part 621 of this chapter, 15
CFR part 904 (Civil Procedure), and other applicable law. Penalties
include, but are not limited to, permanent or temporary sanctions to
licenses.
(ii) Notwithstanding the provisions of the license limitation
program in this part, vessels fishing for species other than license
limitation groundfish as defined in Sec. 679.2 that were authorized
under Federal regulations to incidentally catch license limitation
groundfish without a Federal fisheries permit described at
Sec. 679.4(b) will continue to be authorized to catch the maximum
retainable bycatch amounts of license limitation groundfish as provided
in this part without a groundfish license.
(iii) An eligible applicant, who qualifies for a groundfish license
or crab species license but whose vessel on which the eligible
applicant's qualification was based was lost or destroyed, will be
issued a license. This license:
(A) Will have the vessel designation of the lost or destroyed
vessel.
(B) Cannot be used to conduct directed fishing for license
limitation groundfish or to conduct directed fishing for crab species
on a vessel that has an LOA greater than the MLOA designated on the
license.
(iv) A qualified person who owned a vessel on June 17, 1995, that
made a documented harvest of license limitation groundfish, or crab
species if applicable, between January 1, 1988, and February 9, 1992,
but whose vessel was unable to meet all the criteria in paragraph
(i)(4) of this section for a groundfish license or paragraph (i)(5) of
this section for a crab species license because of an unavoidable
circumstance (i.e., the vessel was lost, damaged, or otherwise unable
to participate in the license limitation groundfish or crab fisheries)
may receive a license if the qualified person is able to demonstrate
that:
(A) The owner of the vessel at the time of the unavoidable
circumstance held a specific intent to conduct directed fishing for
license limitation groundfish or crab species with that vessel during a
specific time period in a specific area.
(B) The specific intent to conduct directed fishing for license
limitation groundfish or crab species with that vessel was thwarted by
a circumstance that was:
(1) Unavoidable.
(2) Unique to the owner of that vessel, or unique to that vessel.
(3) Unforeseen and reasonably unforeseeable to the owner of the
vessel.
(C) The circumstance that prevented the owner from conducting
directed fishing for license limitation groundfish or crab species
actually occurred.
(D) Under the circumstances, the owner of the vessel took all
reasonable steps to overcome the circumstance that prevented the owner
from conducting directed fishing for license limitation groundfish or
crab species.
(E) Any amount of license limitation groundfish or appropriate crab
species was harvested on the vessel in the specific area that
corresponds to the area endorsement or area/species endorsement for
which the qualified person who owned a vessel on June 17, 1995, is
applying and that the license limitation groundfish or crab species was
harvested after the vessel was prevented from participating by the
unavoidable circumstance but before June 17, 1995.
(v) A groundfish license or a crab species license may be used on a
vessel that complies with the vessel designation on the license and
that does not exceed the MLOA on the license.
5. In Sec. 679.7, paragraph (i) is added to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(j) License Limitation Program--(1) Number of licenses. (i) Hold
more than 10 groundfish licenses in the name of that person at any
time, except as provided in paragraph (j)(1)(iii) of this section;
(ii) Hold more than five crab species licenses in the name of that
person at any time, except as provided in paragraph (j)(1)(iii) of this
section; or
(iii) Hold more licenses than allowed in paragraphs (j)(1)(i) and
(j)(1)(ii) of this section unless those licenses were issued to that
person in the initial distribution of licenses. Any person who receives
in the initial distribution more licenses than allowed in paragraphs
(j)(1)(i) and (j)(1)(ii) of this section shall have no transfer
applications for receipt of additional licenses approved until the
number of licenses in the name of that person is less than the numbers
specified in paragraphs (j)(1)(i) and (j)(1)(ii) of this section;
furthermore, when a person becomes eligible to receive licenses by
transfer through the provisions of this paragraph, that person is
subject to the provisions in paragraphs (j)(1)(i) and (j)(1)(ii) of
this section;
(2) Conduct directed fishing for license limitation groundfish
without an original valid groundfish license, except as provided in
Sec. 679.4(i)(2);
(3) Conduct directed fishing for crab species without an original
valid crab species license, except as provided in Sec. 679.4(i)(2);
(4) Process license limitation groundfish on board a vessel without
an original valid groundfish license with a Catcher/processor
designation;
(5) Process crab species on board a vessel without an original
valid crab species license with a Catcher/processor designation;
(6) Use a license on a vessel that has an LOA that exceeds the MLOA
specified on the license;
(7) Lease a groundfish or crab species license.
6. In Sec. 679.43, a new paragraph (p) is added to read as follows:
Sec. 679.43 Determinations and appeals.
* * * * *
(p) Issuance of a non-transferable license. A non-transferable
license will be issued to a person upon acceptance of his or her appeal
of an initial administrative determination denying an application for a
license for license limitation groundfish or crab species under
Sec. 679.4(i). This non-transferable license authorizes a person to
conduct directed fishing for groundfish or directed fishing for crab
species and will have specific endorsements and designations based on
the person's claims in his or her application for a license. This non-
transferable license expires upon the resolution of the appeal.
[FR Doc. 98-26186 Filed 9-30-98; 8:45 am]
BILLING CODE 3510-22-F
