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

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

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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