Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act Sideboards, 52668-52743 [07-4358]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 178 (Friday, September 14, 2007)]
[Rules and Regulations]
[Pages 52668-52743]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-4358]



[[Page 52667]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 902

50 CFR Part 679



Fisheries of the Exclusive Economic Zone off Alaska; Allocating Bering 
Sea/Aleutian Islands Fishery Resources; American Fisheries Act 
Sideboards; Final Rule

Federal Register / Vol. 72, No. 178 / Friday, September 14, 2007 / 
Rules and Regulations

[[Page 52668]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 0612242886-7464-03; I.D. 041307D]
RIN 0648-AU68


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act 
Sideboards

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 to implement Amendment 80 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (FMP). Amendment 80 (hereinafter the 
``Program'') primarily allocates several Bering Sea and Aleutian 
Islands (BSAI) non-pollock trawl groundfish fisheries among fishing 
sectors, and facilitates the formation of harvesting cooperatives in 
the non-American Fisheries Act (AFA) trawl catcher/processor sector. 
The Program establishes a limited access privilege program (LAPP) for 
the non-AFA trawl catcher/processor sector. This action is necessary to 
increase resource conservation and improve economic efficiency for 
harvesters who participate in the BSAI groundfish fisheries. This 
action is intended to promote the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA), the FMP, and 
other applicable law.

DATES: Effective on October 15, 2007, except amendments to Sec.  679.2, 
the definition of ``non-AFA trawl catcher/processor,'' Sec.  
679.20(a)(7)(ii)(A)(8), Sec.  679.20(a)(7)(iii)(B), Sec.  
679.64(a)(1)(i)(A), Sec.  679.64(a)(1)(iii), Sec.  679.64(a)(1)(v), 
Sec.  679.64(a)(1)(vi), Sec.  679.64(a)(2), and Sec.  679.64(a)(3) that 
are effective on January 1, 2008; and amendments to Sec.  679.7(m), 
Sec.  679.27(j), and Sec.  679.50(c)(6) that are effective on January 
20, 2008.

ADDRESSES: Copies of Amendment 80, the final Environmental Assessment 
(EA), Regulatory Impact Review (RIR), Initial Regulatory Flexibility 
Analysis (IRFA), and Final Regulatory Flexibility Analysis (FRFA) for 
this action may be obtained from NMFS Alaska Region, P.O. Box 21668, 
Juneau, AK 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region 
Web site at https://www.fakr.noaa.gov. The proposed rule to implement 
Amendment 80 also may be accessed at this Web site.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS at the above address, and by e-mail to 
David--Rostker@omb.eop.gov or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or 
glenn.merrill@noaa.gov.

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the BSAI are 
managed under the FMP. The North Pacific Fishery Management Council 
(Council) prepared the FMP under the authority of the MSA, 16 U.S.C. 
1801 et seq. Regulations implementing the FMP appear at 50 CFR part 
679. General regulations governing U.S. fisheries also appear at 50 CFR 
part 600.
    The Council took final action to recommend Amendment 80 on June 9, 
2006. The Council submitted Amendment 80 for review by the Secretary of 
Commerce (Secretary) in April 2007, and a notice of availability of the 
FMP amendment was published in the Federal Register on April 30, 2007 
(72 FR 21198), with comments on the FMP amendment invited through June 
29, 2007. NMFS received one comment specific to Amendment 80. That 
comment has been addressed in the Response to Comments section below. 
On May 30, 2007, NMFS published a proposed rule to implement the 
Program (72 FR 30052). The public comment period on the proposed rule 
ended on July 29, 2006. NMFS received 25 letters commenting on the 
proposed rule, including the letter submitted during the Amendment 80 
comment period. These letters contained a total of 82 unique comments. 
These comments are addressed in the Response to Comments section of 
this rule below. The Secretary approved Amendment 80 on July 26, 2007.
    The Program allocates several BSAI non-pollock trawl groundfish 
species among trawl fishery sectors and facilitates the formation of 
harvesting cooperatives in the non-AFA trawl catcher/processor sector. 
The Program meets the broad goals of (1) improving retention and 
utilization of fishery resources by the non-AFA trawl catcher/processor 
fleet by extending the groundfish retention standard (GRS) to all non-
AFA trawl catcher/processor vessels; (2) allocating fishery resources 
among BSAI trawl harvesters in consideration of historic and present 
harvest patterns and future harvest needs; (3) establishing a LAPP for 
the non-AFA trawl catcher/processors and authorizing the allocation of 
groundfish species to harvesting cooperatives to encourage fishing 
practices with lower discard rates and to improve the opportunity for 
increasing the value of harvested species while lowering costs; and (4) 
limiting the ability of non-AFA trawl catcher/processors to expand 
their harvesting capacity into other fisheries not managed under a 
LAPP.

I. Development of the Program

A. History of Bycatch and Discard Reduction Efforts in the BSAI

    The Council has long recognized the need to reduce bycatch, 
minimize waste, and improve utilization of fish resources to the extent 
practicable in order to provide the maximum benefit to present and 
future generations of fishermen, associated fishing industry sectors, 
communities, and the Nation as a whole. The Council has recommended and 
NMFS has approved and implemented numerous measures to reduce discards 
and bycatch of groundfish species over the past several years.
    The Council recommended and NMFS approved and implemented 
management measures to establish retention and utilization standards 
for pollock and Pacific cod under Amendment 49 to the FMP (62 FR 63880; 
January 3, 1998). More recently, in June 2003, the Council recommended 
Amendment 79 to the FMP to improve retention of groundfish species by 
implementing the GRS. The Secretary approved Amendment 79 on August 31, 
2005, and NMFS published regulations to implement the GRS on April 6, 
2006 (71 FR 17362). The GRS will be effective on January 20, 2008.
    Amendment 79 authorizes the GRS as a tool for further increasing 
the retention and utilization of groundfish and responding to bycatch 
reduction goals described in the MSA National Standards (16 U.S.C. 
1851(a)). The GRS balanced the requirements for conservation and 
management of the groundfish fisheries under the MSA with the 
requirements to minimize bycatch under National Standard 9 and minimize 
economic burdens under National Standard 7 to the extent practicable 
(minimize costs and avoid unnecessary duplication). The GRS currently 
applies to catcher/processor vessels using trawl gear that are greater 
than or equal to 125 ft (38.1 m) length

[[Page 52669]]

overall (LOA) and not specifically defined as catcher/processors listed 
as eligible to participate in the directed pollock fishery under 
section 208(e) of the AFA. These catcher/processors are commonly 
referred to as non-AFA trawl catcher/processors or head and gut 
catcher/processors.
    The Council's analysis of groundfish retention rates in the BSAI 
groundfish fishery revealed that vessels in the non-AFA trawl catcher/
processor sector had the lowest retained catch rates of any groundfish 
trawl fishery in the BSAI. This analysis also noted that non-AFA trawl 
catcher/processors equal to or greater than 125 ft (38.1 m) LOA 
contributed the majority of the harvest and discarded catch by the non-
AFA trawl catcher/processor fleet. Given the smaller, but still 
considerable, proportion of overall bycatch and discard of groundfish 
by non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA to 
the overall bycatch and discard of groundfish by all non-AFA trawl 
catcher/processors, and recognizing that compliance costs associated 
with observers and scale monitoring requirements would be relatively 
higher for vessels less than 125 ft (38.1 m) LOA, non-AFA trawl 
catcher/processor vessels that are less than 125 ft (38.1 m) LOA were 
excluded from the GRS. The GRS requires each non-AFA trawl catcher/
processor greater than or equal to 125 ft (38.1 m) LOA to retain 
specific groundfish species at a specified annual minimum rate. The 
annual minimum retention rate is lowest in 2008, the first year the GRS 
is effective, and is gradually increased to a maximum retention rate 
for 2011 and in all years thereafter. This graduated approach to 
increasing the minimum GRS rate was designed to facilitate industry 
compliance with the GRS by providing vessel operators several years to 
modify and adapt fishing operations.
    Amendment 80 and the implementing regulations continue initiatives 
by the Council and NMFS to reduce bycatch and discard of fish species 
in the BSAI non-pollock trawl groundfish fisheries. The Program (1) 
extends the application of the GRS to non-AFA trawl catcher/processor 
vessels of all sizes by including catcher/processor vessels less than 
125 ft (38.1 m) LOA; and (2) reduces the amount of halibut and crab 
bycatch, known as prohibited species catch (PSC), that may be taken 
while non-AFA trawl catcher/processors are groundfish fishing in the 
BSAI. These measures improve the utilization of fishery resources, 
minimize costs, and further minimize bycatch to the extent practicable, 
thereby meeting the objectives of the MSA National Standards 5, 7, and 
9.
    The Program facilitates this improved retention and utilization of 
groundfish resources through specific economic incentives provided by a 
LAPP. It is anticipated that the LAPP will improve retention and 
utilization of fishery resources by allocating specific amounts of 
certain non-pollock groundfish species, halibut PSC, and crab PSC to 
non-AFA trawl catcher/processors; and facilitates the formation of 
cooperatives that will receive exclusive harvest privileges for a 
portion of these fishery resources. The ways in which the use of 
exclusive harvest privileges will improve the retention and utilization 
of fishery resources by non-AFA trawl catcher/processors are described 
in Parts C and D of this section.

B. Legislation Affecting the Program

    Congress granted NMFS additional specific statutory authority to 
manage BSAI groundfish fisheries under the FMP. Eligibility to 
participate in the Program and allocation of groundfish resources under 
the Program are affected by several pieces of recent legislation.
     Section 219 of the Consolidated Appropriations Act of 2005 
(Pub. L. 108-447; December 8, 2004), referred to in this rule as the 
Capacity Reduction Program (CRP), which defined the non-AFA trawl 
catcher/processor sector [Amendment 80 sector] and implemented a 
capacity reduction program for several catcher/processor sectors;
     Section 416 of the Coast Guard and Maritime Transportation 
Act of 2006 (Pub. L. 109-241; July 11, 2006), referred to in this rule 
as the Coast Guard Act, which amended provisions of the Community 
Development Quota (CDQ) Program in the MSA; and
     The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (Pub. L. 109-479, January 12, 2007), referred to in 
this rule as the MSRA, which modified provisions related to the CDQ 
Program and instituted other measures applicable to LAPPs.
    These pieces of legislation directly dictate specific elements of 
the Program. The preamble of the proposed rule details the effects of 
the CRP, Coast Guard Act, and MSRA on the development of the Program 
and this rule; therefore, that discussion is not repeated here (see 72 
FR 30052; May 30, 2007).

C. The Non-Pollock Trawl Groundfish Fisheries

    One of the primary reasons for the relatively high discard rates of 
groundfish by non-AFA trawl catcher/processors is the nature of the 
fisheries in which those vessels participate. The non-AFA trawl 
catcher/processor sector primarily participates in non-pollock 
groundfish fisheries. The non-pollock groundfish fisheries are 
primarily comprised of groups of species that share similar habitat 
(e.g., flatfish fisheries such as rock sole, flathead sole, and 
yellowfin sole). Because these species occur together, they are 
typically harvested together. When a non-AFA trawl catcher/processor 
retrieves its net, very often multiple species of fish are present. If 
a vessel operator is targeting only one species of fish, and other 
species are retrieved along with the desired catch, the vessel operator 
may have an incentive to discard the less valuable species and retain 
only the higher value species. The multi-species nature of these 
fisheries makes it difficult for vessel operators to target only one 
species, and an economic incentive is created to discard less valuable 
fish.
    NMFS establishes a total allowable catch (TAC) for each of the non-
pollock groundfish fisheries based on the species' annual biomass with 
the goal of providing a conservatively managed sustainable yield. 
Harvesters compete for the TAC, resulting in a ``race for fish,'' 
wherein vessels attempt to maximize their harvest in as little time as 
possible, in order to claim as large a share as possible of the 
available TAC. This race for fish increases the economic incentive to 
discard less valuable species in a multi-species harvest, and 
accelerates the harvest rate for the more valuable species.
    Because vessel operators are competing with each other for harvest 
of a common TAC, a vessel operator has little economic incentive to 
undertake actions to reduce unwanted incidental catch, such as 
searching for fishing grounds with lower bycatch rates, or using gear 
modifications that may reduce bycatch but have lower harvest rates, if 
those actions would limit the ability of that vessel to effectively 
compete with other vessels. Additionally, a vessel operator has little 
incentive to process and store less valuable species if by doing so, he 
loses an opportunity to use that processing or storage capacity for 
more valuable catch. Therefore, an individual vessel operator has 
strong incentives to harvest fish as quickly as possible, and discard 
less valuable species before the TAC limit is

[[Page 52670]]

reached because all vessel operators are competing for a limited TAC.
    Additionally, non-pollock groundfish fisheries are constrained by 
catch limits for non-target species, such as halibut, red king crab, 
Tanner crab (Chionoecetes bairdi), and snow crab (C. opilio). Halibut 
and crab are harvested in other fisheries and cannot be retained by 
vessels using trawl gear. NMFS establishes PSC limits for halibut in 
the entire BSAI, and red king crab, C. opilio crab, and C. bairdi crab 
in specific areas of the BSAI to limit the adverse impact of harvesting 
operations on the long-term productivity of those species. NMFS 
monitors these PSC limits, and may close or otherwise restrict trawl 
harvests if PSC limits are projected to be reached. Fishery closures 
due to reaching PSC limits can limit harvest of the groundfish TAC and 
reduce overall revenue to vessel operators and crew. As vessel 
operators seek to maximize harvest of TAC, they may accelerate fishing 
operations to maximize harvest before a crab or halibut PSC limit is 
reached. A ``race for PSC'' further exacerbates competition and the 
incentives to harvest rapidly, resulting in greater potential waste and 
higher discard rates of less valuable groundfish species.
    The multi-species nature of non-pollock groundfish fisheries 
further limits the ability of a fisherman to specifically target 
valuable groundfish species as they race with their competitors. Vessel 
operators may discard considerable portions of their catch to maximize 
harvests of more valuable species even though the discarded species may 
still have considerable market value.

D. Limited Access Privilege Programs (LAPPs)

    The primary method to offset the economic incentives that lead to a 
race for fish and relatively high discard rates is to reduce the impact 
of those incentives through a LAPP. LAPPs have been used extensively in 
the North Pacific as a means to encourage economic efficiency and less 
wasteful harvest methods, and to resolve allocation disputes among 
harvesters by providing a group of harvesters with exclusive harvest 
privileges that can be traded. North Pacific LAPPs include (1) the 
Halibut and Sablefish individual fishing quota (IFQ) Program (58 FR 
59375; November 9, 1993); (2) the AFA (67 FR 69692; December 30, 2002); 
(3) the BSAI Crab Rationalization Program (70 FR 10174; March 2, 2005); 
and (4) the Central Gulf of Alaska (GOA) Rockfish Program (71 FR 67210; 
November 20, 2006). An extensive discussion of LAPPs can be found in 
the EA/RIR/FRFA prepared for this action and in the National Research 
Council's publication Sharing the Fish, which was consulted and 
considered during the development of the Program.
    A LAPP allows vessel operators to make operational choices to 
reduce discards of fish because the strong incentives to maximize catch 
in the minimum amount of time have been reduced. If a vessel operator 
receives an exclusive portion of the TAC for non-pollock groundfish 
species and the associated halibut and crab PSC, he knows that he need 
not compete with other harvesters. That vessel operator can then choose 
to fish in a slower and less wasteful fashion, use modified gear with a 
lower harvest rate but which reduces bycatch, coordinate with other 
vessel operators to avoid areas of high bycatch, process fish in ways 
that yield increased value but which are possible only by slowing the 
processing rate, or otherwise operate in ways that limit bycatch. The 
examples cited in this paragraph have been used by vessel operators in 
other LAPPs in the North Pacific, and NMFS anticipates non-AFA trawl 
catcher/processors would use similar techniques to reduce bycatch and 
improve the value of their product.
    LAPPs can improve the profitability of fishing operators holding 
the exclusive harvest privilege. In most cases, LAPPs provide 
harvesters greater flexibility in tailoring their fishing operations to 
specific fisheries which can reduce operational costs. Additionally, 
vessel operators may reduce costs by avoiding costly improvements in 
vessel size or fishing power designed to outcompete other harvesters. 
Slower fishing rates can improve product handling and quality and 
increase the exvessel price of product. Vessel operators can also 
choose to consolidate less profitable fishing operations onto one 
vessel. Other potential advantages to the holders of exclusive harvest 
privileges have been analyzed during the development of past LAPPs.
    LAPPs can increase the costs of entering the fishery substantially 
because the permits acquire value and must be purchased prior to entry. 
Consolidation can limit employment opportunities as well. Compliance 
costs can also increase to ensure that NMFS can monitor the harvesting 
and processing of fish. Administration of LAPPs typically requires 
greater effort and cost than non-LAPP fisheries due to the greater 
precision in catch accounting required to track the harvest of fish and 
to ensure proper debiting of accounts. Participants in LAPPs may also 
use their excess fishing capacity to expand operations into other 
fisheries that are not managed by LAPPs and increase the race for fish 
in those fisheries unless they are constrained. These effects and 
others have been addressed in the design of previous LAPPs by limiting 
the amount of consolidation in the LAPP fishery and by limiting the 
harvest of species in non-LAPP fisheries. Entry costs for any LAPP are 
likely to be higher than in other non-LAPP fisheries, and those costs 
limit the ability of those operators lacking the financial wherewithal 
to participate in these fisheries. A loan program for entry level 
participants has been authorized and established in the Halibut and 
Sablefish IFQ Program to assist entry into that LAPP, but fishery 
participants in other LAPPs must rely on other sources of financing. A 
loan program has not been authorized for the Program.
    Based on extensive experience with past LAPPs, and after weighing 
potential advantages and disadvantages, the Council adopted the Program 
to create economic incentives that provide additional opportunities to 
reduce bycatch while increasing the potential for greater economic 
returns to those holding the harvest privileges. The Program provides 
an incentive for non-AFA trawl catcher/processors to harvest certain 
species of non-pollock groundfish in a less wasteful manner by granting 
an exclusive harvest privilege to a limited number of harvesters. The 
Program encourages participants to harvest more efficiently and less 
wastefully by allowing them to join other harvesters to form harvesting 
cooperatives that will receive an exclusive annual harvest privilege of 
specific groundfish species. Those participants that do not join a 
harvesting cooperative may fish in a limited access fishery. The 
principal benefits from the Program would be realized by harvesters 
that choose to join a cooperative.

E. LAPPs, GRS, and Reduced PSC

    The Council also recognized that some of the compliance costs 
associated with the GRS, particularly for non-AFA trawl catcher/
processors less than 125 ft (38.1 m) LOA could be reduced under LAPP 
management. The Council recognized that if harvesters could apply the 
GRS to a cooperative by aggregating the retention rate of all vessels 
assigned to a cooperative, owners of non-AFA trawl catcher/processors 
less than 125 ft (38.1 m) LOA could choose to join a cooperative, 
assign their harvest privilege to the cooperative, and allow other 
larger vessels to harvest the cooperative's exclusive allocation of 
fish without

[[Page 52671]]

incurring the compliance costs associated with monitoring the GRS. Non-
AFA trawl catcher/processor vessels less than 125 ft (38.1 m) LOA would 
still receive economic benefits from the cooperative's harvests but 
would not need to refit their vessels to meet the additional monitoring 
and enforcement (M&E) requirements and pay the additional costs to fish 
in the BSAI. Those vessels could continue to participate in other 
fisheries in the GOA. Furthermore, the catch associated with smaller 
non-AFA trawl catcher/processor vessels that are used to fish in the 
BSAI would be subject to the GRS, thereby further improving retention 
of groundfish and reducing discards of fish.
    Additionally, for those non-AFA trawl catcher/processor vessels 
that do fish under a cooperative's exclusive harvest privilege, the 
costs associated with retaining less valuable fish under the GRS may be 
offset by increased profitability from those vessels because they are 
no longer operating in a race for fish. The Council considered these 
factors in recommending that the GRS be extended to all non-AFA trawl 
catcher/processors under the Program.
    The Council also recognized that LAPP management under a 
cooperative allocation can encourage lower bycatch as described in Part 
D of this section. Because vessel operators in cooperatives are better 
able to target catch and can engage in voluntary agreements to avoid 
areas with higher PSC, the Council recommended an overall reduction in 
the amount of halibut and crab PSC that may be used by the non-AFA 
trawl catcher/processor sector. The Program incorporates this 
recommendation, furthering the Council's goals of reducing bycatch and 
discards of fishery species.

F. Program Overview

    As noted earlier, the Council adopted the Program to meet the broad 
goals of (1) improving retention and utilization of fishery resources; 
(2) allocating fishery resources among BSAI trawl harvesters; (3) 
establishing a LAPP for the non-AFA trawl catcher/processors; and (4) 
limiting the ability of non-AFA trawl catcher/processors to expand 
their harvesting capacity into other fisheries not managed under a 
LAPP.
    As with all other LAPPs in the North Pacific, the extensive changes 
to existing management of BSAI non-pollock trawl fisheries implemented 
by the Program affects a wide range of fishing practices and 
regulations. The Program affects management of the non-AFA trawl 
catcher/processors, other BSAI trawl fishery participants, and other 
harvesters in the North Pacific. As such, the Program implements a 
complex suite of measures to ensure the goals of the Program are met 
and to minimize potential adverse impacts on affected fishery 
participants.
    The rationale behind specific aspects of the Program are summarized 
below and described in detail in the preamble to the proposed rule (72 
FR 30052; May 30, 2007).
1. Community Development Quota (CDQ) Program
    The Program incorporates statutory mandates in the MSA as amended 
by Section 416 of the Coast Guard Act and the MSRA. The rule modifies 
the percentage of TAC for directed fisheries that are allocated to the 
CDQ Program, the percentage of halibut, crab, and non-Chinook salmon 
PSC allocated to the CDQ Program as prohibited species quota (PSQ), and 
includes other provisions necessary to bring Amendment 80 and the CDQ 
Program into compliance with applicable law.
2. Amendment 80 Sector and Amendment 80 Vessels
    Eligible Program participants are defined by applicable legislation 
and the Program. Applicable legislation is summarized in Part B of this 
section of this preamble. The Program incorporates statutory mandates 
in section 219 of the CRP which defines who is eligible to harvest fish 
in the non-AFA trawl catcher/processor sector for a defined list of 
non-pollock groundfish species. The Program defines the ``Amendment 80 
sector'' as non-AFA trawl catcher/processor harvesters eligible to fish 
under this statutory mandate. The defined list of non-AFA trawl 
catcher/processor vessels that may be used to fish in the Amendment 80 
sector are ``Amendment 80 vessels.''
3. Amendment 80 Species
    The Program allocates a specific portion of six non-pollock 
groundfish species among trawl fishery sectors. These six species are 
the ``Amendment 80 species'' and include Aleutian Islands (AI) Pacific 
ocean perch (POP), BSAI Atka mackerel, BSAI flathead sole, BSAI Pacific 
cod, BSAI rock sole, and BSAI yellowfin sole. These Amendment 80 
species are allocated between the Amendment 80 sector and all other 
BSAI trawl fishery participants not in the Amendment 80 sector. These 
other trawl fishery participants include AFA catcher/processors, AFA 
catcher vessels, and non-AFA catcher vessels. Collectively, this group 
of trawl fishery participants comprises the ``BSAI trawl limited access 
sector.''
    Amendment 80 species are economically valuable and have 
historically been targeted by non-AFA trawl catcher/processors, but 
fisheries associated with these species have high rates of discard or 
waste relative to other groundfish fisheries. Other species, such as 
Alaska plaice, are occasionally harvested in the BSAI trawl fisheries, 
but these other species are a minor component of the overall biomass 
and value of non-pollock groundfish harvested, less subject to an 
intense race for fish, and are not allocated under the Program.
4. Allocations of TAC and PSC in the BSAI Trawl Fisheries
    Each year, the Program will allocate an amount of Amendment 80 
species available for harvest, called the initial total allowable catch 
(ITAC), and crab and halibut PSC to two defined groups of trawl fishery 
participants: (1) The Amendment 80 sector; and (2) the BSAI trawl 
limited access sector. Allocations made to one sector are not subject 
to harvest by participants in the other fishery sector except under a 
specific condition: fish that are allocated to the BSAI trawl limited 
access sector and projected to be unharvested could be reallocated to 
Amendment 80 cooperatives.
    The ITAC represents the amount of TAC for each Amendment 80 species 
that is available for harvest after allocations to the CDQ Program and 
the incidental catch allowance (ICA) have been subtracted from the TAC. 
The ICA is set aside for the incidental harvest of an Amendment 80 
species while targeting other groundfish species in non-trawl fisheries 
(e.g., yellowfin sole incidental harvests in the hook-and-line Pacific 
cod fishery) and in the BSAI trawl limited access sector fisheries 
(e.g., rock sole incidentally harvested by AFA trawl catcher vessels in 
the Pacific cod fishery).
    The Program will allocate crab and halibut PSC to the Amendment 80 
and BSAI trawl limited access sectors to accommodate PSC use by these 
sectors based on past PSC use with specific consideration given to 
possible future requirements. As explained earlier, the Program further 
addresses the Council's goals of reducing bycatch and discard of 
groundfish species by reducing the total amount of crab and halibut PSC 
assigned to the Amendment 80 sector.
5. BSAI Trawl Limited Access Sector
    The Program provides a specific allocation of Amendment 80 species 
and crab and halibut PSC to this sector. The Program modifies the 
calculation of AFA sideboard limits for Amendment

[[Page 52672]]

80 species and crab and halibut PSC limits necessary to allow the 
efficient operation of AFA vessels. The Program also adjusts the 
maximum limit for red king crab bycatch in the Red King Crab Savings 
Subarea.
6. Amendment 80 Quota Share
    The Program assigns Amendment 80 quota share (QS) for Amendment 80 
species based on catch by Amendment 80 vessels. The Amendment 80 QS 
could be used to yield an exclusive harvest privilege for a portion of 
the Amendment 80 sector ITAC. The Program establishes criteria for 
harvesters in the Amendment 80 sector to apply for and receive QS, 
initially allocate QS, and transfer QS.
    The Program assigns Amendment 80 QS based on historic catch 
patterns of an Amendment 80 vessel during 1998 through 2004 and on the 
relative proportion of an Amendment 80 species harvested by an 
Amendment 80 vessel compared to all other Amendment 80 vessels.
    The Program will assign Amendment 80 QS only to persons who submit 
a timely and complete application for Amendment 80 QS. In most cases, 
the Program will assign the Amendment 80 QS to the Amendment 80 vessel 
owner. In specific cases where an Amendment 80 vessel has been lost or 
is otherwise permanently ineligible to fish in U.S. waters, the Program 
will assign the Amendment 80 QS to the holder of the license limitation 
program (LLP) license originally assigned to that Amendment 80 vessel. 
Once Amendment 80 QS is assigned based on the historic catch patterns 
of an Amendment 80 vessel, it cannot be divided or transferred 
separately from that Amendment 80 vessel. If the Amendment 80 QS is 
assigned to the LLP license originally issued for that Amendment 80 
vessel, it cannot be transferred separately from that LLP license.
7. Amendment 80 Cooperatives
    Persons that receive Amendment 80 QS can join a cooperative to 
receive an exclusive harvest privilege for a portion of the ITAC. 
Amendment 80 QS holders can form a cooperative with other Amendment 80 
QS holders on an annual basis, provided they meet specific criteria. 
Each Amendment 80 cooperative will receive an annual cooperative quota 
(CQ), an amount of Amendment 80 species ITAC that will be for the 
exclusive use by that cooperative for harvest in a given year. The 
Program establishes requirements for forming an Amendment 80 
cooperative with other Amendment 80 QS holders, the allocation of 
annual CQ to a cooperative, and transfers of CQ among cooperatives.
    A cooperative will receive an amount of CQ equivalent to the 
proportion of QS held by all of the members of the cooperative relative 
to the total QS held by all Amendment 80 QS holders. Each Amendment 80 
cooperative will receive an annual CQ with an exclusive limit on the 
amount of crab and halibut PSC the cooperative can use while harvesting 
in the BSAI. This crab and halibut PSC CQ will be assigned to a 
cooperative proportional to the amount of Amendment 80 QS held by the 
members, and will not be based on the amount of crab or halibut PSC 
historically used by the cooperative members. This provision does not 
reward harvesters with high PSC rates with large amounts of PSC CQ. 
Instead, PSC CQ will be issued in proportion to the amount of Amendment 
80 species CQ that are assigned to a cooperative for harvest.
    The Program provides opportunities for Amendment 80 sector 
participants to trade harvest privileges among cooperatives to further 
encourage economically efficient fishing operations. An Amendment 80 
cooperative will not be able to transfer CQ to the Amendment 80 limited 
access fishery or to the BSAI trawl limited access sector.
    A cooperative structure may allow Amendment 80 vessel operators to 
manage PSC rates more efficiently. By reducing PSC through more 
efficient cooperative operations, such as through gear modifications, 
or by coordinating fishing operations to fish in areas with lower PSC 
use rates, Amendment 80 vessel operators also may increase the harvest 
of valuable targeted groundfish species and improve revenues that would 
otherwise be foregone if a fishery were closed due to reaching PSC 
limits.
    The Program allows Amendment 80 cooperatives to receive a rollover 
of an additional amount of CQ, if a portion of the Amendment 80 species 
or crab or halibut PSC allocated to the BSAI trawl limited access 
sector is projected to go unharvested. This rollover to Amendment 80 
cooperatives is at the discretion of NMFS with consideration given to 
projected harvest rates in the BSAI trawl limited access sector and 
other criteria. Each Amendment 80 cooperative will receive an 
additional amount of CQ that is based on the proportion of the 
Amendment 80 QS assigned to that Amendment 80 cooperative as compared 
with the amount of Amendment 80 QS assigned to all other Amendment 80 
cooperatives.
    Fishery participants in a cooperative can consolidate fishing 
operations on a specific Amendment 80 vessel or subset of Amendment 80 
vessels, thereby reducing M&E and other operational costs. This will 
allow cooperative members to harvest fish in a manner more likely to be 
economically efficient and less wasteful.
8. Amendment 80 Limited Access Fishery
    Amendment 80 QS holders that do not join an Amendment 80 
cooperative can participate in the Amendment 80 limited access fishery. 
The Program will assign to the Amendment 80 limited access fishery the 
amount of the Amendment 80 sector's allocation of Amendment 80 species 
ITAC and crab and halibut PSC that remains after allocation to all of 
the Amendment 80 cooperatives. Participants fishing in the Amendment 80 
limited access fishery will continue to compete with each other; will 
not realize the same potential benefits from consolidation and 
coordination; and will not receive an exclusive harvest privilege that 
accrues to members of an Amendment 80 cooperative. NMFS will manage the 
Amendment 80 limited access fishery similar to the way the fisheries 
were managed prior to implementation of the Program.
9. Use Caps
    The Council considered the effect of consolidation resulting from 
the allocation of an excessive share of harvest privileges to Amendment 
80 cooperatives. In response, the Program implements use caps to limit 
the amount of Amendment 80 QS a person can hold, the amount of CQ they 
can use, and the amount of ITAC an Amendment 80 vessel can harvest. 
These use caps moderate some of the potentially adverse effects of 
excessive consolidation of fishing operations on fishery participants, 
such as lost employment opportunities for fishing crew, while 
recognizing the desire to provide economic efficiencies to Amendment 80 
QS holders.
10. GOA Sideboard Limits
    GOA sideboard limits are catch limits that restrict the ability of 
participants eligible for this Program to expand their harvest efforts 
in the GOA. The Program is designed to provide certain economic 
advantages to participants. Program participants could use this 
economic advantage to increase their participation in other fisheries, 
primarily in the GOA fisheries, adversely affecting the participants in 
those fisheries. Therefore, the Program limits the total

[[Page 52673]]

amount of catch in other groundfish fisheries that could be taken by 
Amendment 80 vessels, including harvests made in State of Alaska 
(State) waters that are open during Federal fishing seasons to allow 
the harvest of fish assigned to the Federal TAC--commonly known as the 
``parallel'' groundfish fisheries. GOA groundfish and halibut PSC 
sideboards will limit the catch by Amendment 80 vessels to historic 
levels in the GOA.
    Sideboards limit harvest of Pacific cod, pollock, and rockfish 
fisheries in the GOA, the eligibility of Amendment 80 vessels to 
participate in GOA flatfish fisheries, and the amount of halibut PSC 
that Amendment 80 vessels could catch when harvesting groundfish in the 
GOA. Sideboards apply to all Amendment 80 vessels, with a limited 
exemption for the F/V GOLDEN FLEECE.
11. M&E Provisions
    M&E provisions are necessary for accurate catch accounting and 
compliance with the Program to ensure that Amendment 80 QS holders 
maintain catches within annual CQ and ITAC allocations in the BSAI and 
do not exceed sideboard limits in the GOA. The M&E measures established 
for the Program are similar to those currently required for compliance 
with Amendment 79, and mirror those in place for catcher/processor 
vessels participating in the Central GOA Rockfish Program (see 
regulations in Sec.  679.84 for additional detail).
12. GRS Requirements
    Under the Program, all non-AFA trawl catcher/processor vessels, 
which includes all Amendment 80 vessels regardless of size, are 
required to meet GRS requirements in the BSAI. For Amendment 80 vessels 
harvesting in the BSAI under the authority of an Amendment 80 
cooperative, GRS requirements apply collectively to all vessels 
harvesting under the authority of the cooperative rather than on a 
vessel-specific basis. In other words, an Amendment 80 cooperative is 
required to meet the GRS on an aggregate basis for all vessels in the 
Amendment 80 cooperative. The Program modifies some of the GRS 
provisions scheduled for implementation on January 20, 2008 (71 FR 
17362; April 6, 2006). Specifically, the Program modifies the GRS by 
extending the GRS to all non-AFA trawl catcher/processor vessel sizes 
and calculating the GRS for Amendment 80 vessels assigned to an 
Amendment 80 cooperative on an aggregate basis.
13. Economic Data Report (EDR)
    The Program implements an economic data collection program to 
assess the impacts of Amendment 80 on various components of the 
fishery, including skippers and crew. The Program establishes a process 
for collecting and reviewing economic data generated under Amendment 80 
by requiring the annual submission of an EDR from each Amendment 80 QS 
holder.

II. Summary of Regulation Changes in Response to Public Comments

    This section provides a summary of the major changes made to the 
final rule in response to public comments on the proposed rule. All of 
the specific changes, and the reasons for making them, are described 
under the Response to Comments section below. The changes are described 
by their corresponding regulatory section. Additional changes to the 
proposed regulatory text made by NMFS and not in response to public 
comment are discussed under Section IV of the preamble.

Section 679.2

     NMFS modified the definitions of an ``Amendment 80 LLP 
license'' to remove a reference to a specific list of LLP licenses in 
Column C of Table 31 to Part 679, include LLP licenses that designate 
Amendment 80 vessels at any time after the effective date of the rule, 
and include an LLP license to which an Amendment 80 QS permit has been 
affixed (i.e., an Amendment 80 QS/LLP license).
     NMFS redefined the term ``Amendment 80 LLP license 
originally assigned to an Amendment 80 vessel'' as the term ``LLP 
license originally assigned to an Amendment 80 vessel.''

Section 679.7

     In Sec.  679.7(o)(1), (o)(4), and (o)(5), NMFS made 
several modifications to (1) allow the receipt and processing of 
unsorted catch from the BSAI trawl limited access fishery onboard 
Amendment 80 vessels; (2) allow the use of Amendment 80 vessels to 
catch and process fish allocated to the CDQ Program; (3) prohibit 
Amendment 80 vessels assigned to one Amendment 80 cooperative from 
receiving and processing unsorted catch from Amendment 80 vessels 
assigned to another Amendment 80 cooperative or the Amendment 80 
limited access fishery; and (4) prohibit Amendment 80 vessels assigned 
to the Amendment 80 limited access fishery from receiving and 
processing unsorted catch from Amendment 80 vessels assigned to any 
Amendment 80 cooperative.
     NMFS removed the prohibition at Sec.  679.7(o)(2), added a 
prohibition at paragraph (o)(2)(i) to prohibit a person from 
designating any vessel other than an Amendment 80 vessel on an 
Amendment 80 LLP license, and added a prohibition at paragraph 
(o)(2)(ii) to prohibit a person from failing to designate an Amendment 
80 vessel on an Amendment 80 LLP license endorsed for groundfish in the 
Bering Sea subarea or Aleutian Islands subarea with a catcher/processor 
designation at all times during a calendar year unless that Amendment 
80 vessel has suffered an actual total loss, constructive total loss, 
or is permanently ineligible to receive a fishery endorsement under 46 
U.S.C. 12108.
     In Sec.  679.7(o)(3)(i), NMFS clarified that a person may 
not hold Amendment 80 QS assigned to an Amendment 80 vessel unless that 
person holds an Amendment 80 LLP license endorsed for groundfish in the 
Bering Sea subarea or Aleutian Islands subarea with a catcher/processor 
designation that designates that Amendment 80 vessel.
     In Sec.  679.7(o)(3), NMFS added a new paragraph 
(o)(3)(iii) to clarify that a person may not hold an Amendment 80 QS 
permit assigned to an Amendment 80 vessel if that Amendment 80 vessel 
has suffered an actual total loss, constructive total loss, or is 
permanently ineligible to receive a fishery endorsement under 46 U.S.C. 
12108, after October 15 in the calendar year following the date of that 
vessel's loss or ineligibility.
     In Sec.  679.7(o)(4), (o)(5), and (o)(6), NMFS clarified 
that (1) a valid copy of a CQ or Amendment 80 limited access permit 
must be maintained onboard an Amendment 80 vessel while fishing in the 
BSAI; and (2) M&E provisions established in the Program for Amendment 
80 vessels fishing in the BSAI and GOA do not apply when an Amendment 
80 vessel is used to directed fish for scallops using dredge gear.

Section 679.50

     In Sec.  679.50(a)(8) and (c)(6), NMFS clarified that 
observer coverage requirements apply to any Amendment 80 vessel fishing 
for groundfish in the BSAI. This clarification is necessary to meet the 
clear intent of the Program to apply a specific standard of observer 
coverage to all Amendment 80 vessels when they are fishing for 
groundfish in the BSAI.
     NMFS modified Sec.  679.50(c)(6) to clarify that observer 
coverage in the BSAI and GOA required under the

[[Page 52674]]

Program would not apply to Amendment 80 vessels while they are used to 
directed fish for scallops using dredge gear.

Section 679.91

     In Sec.  679.91(a)(1), NMFS clarified that an Amendment 80 
QS holder must designate each Amendment 80 QS permit, associated 
Amendment 80 vessel, and Amendment 80 LLP license on a timely and 
complete application for CQ. This relieves the requirement that all QS 
permits, LLP licenses, and associated Amendment 80 vessels held by a 
person had to be assigned to either one cooperative or the Amendment 80 
limited access fishery, commonly referred to as the ``all-in'' 
provision.
     In Sec.  679.91(a)(3), NMFS removed the restriction that a 
person could not fish in the Amendment 80 sector if they failed to 
submit a timely application by November 1 of the previous year. NMFS 
also revised this paragraph so that NMFS will assign an Amendment 80 QS 
permit, associated vessel, and LLP license to the Amendment 80 limited 
access fishery if they are not designated on a timely and complete 
application for CQ.
     In Sec.  679.91(f)(2), NMFS revised this paragraph to 
state that NMFS ``may'' rather than ``will'' consider a range of 
factors before reallocating unharvested ITAC or unused PSC from the 
BSAI trawl limited access sector. This modification allows NMFS to 
manage these reallocations using the same flexible standards currently 
used for managing fishery resource allocations during a fishing season.
     In Sec.  679.91(h)(1), NMFS eliminated the requirement 
that an Amendment 80 cooperative must accept any person wishing to join 
it.
     In Sec.  679.91(h)(3)(vii), NMFS rephrased regulations 
that describe the fishing season applicable to cooperatives so that 
they reference existing trawl closure regulations at Sec.  679.23.
     In Sec.  679.91(h)(3)(xi) and (xii), NMFS rephrased 
regulations to make it clear that a person holding multiple QS permits, 
LLP licenses, and associated Amendment 80 vessels is not required to 
assign all of those permits, licenses, or vessels to only one 
cooperative or the Amendment 80 limited access fishery during a 
calendar year. This revision removes the ``all in'' requirement.

Section 679.92

     679.92(b), NMFS clarified that GOA sideboard limits do not 
apply to Amendment 80 vessels while they are directed fishing for 
scallops using dredge gear.
     In Sec.  679.92(c), NMFS removed the requirement that 
Amendment 80 vessels eligible to directed fish for flatfish in the GOA 
must use a specific LLP license designated in Table 39 to part 679 
while fishing in GOA flatfish fisheries.

Section 679.93

     In Sec.  679.93(c), NMFS clarified that M&E requirements 
in the BSAI established under the Program do not apply to Amendment 80 
vessels that are directed fishing for scallops using dredge gear. A 
similar change is made in Sec.  679.93(d) which applies to M&E 
requirements applicable to Amendment 80 vessels in the GOA.
     In Sec.  679.93(e)(1)(i)(ii), (e)(2)(ii) and (e)(2)(iii), 
NMFS clarified that catch of Amendment 80 species or crab or halibut 
PSC in the BSAI would not be debited from a CQ account or the ITAC for 
the Amendment 80 limited access fishery if an Amendment 80 vessel was 
directed fishing for scallops using dredge gear.
     In Sec.  679.93(e)(3) and (4), NMFS clarified that catch 
of groundfish or halibut PSC by Amendment 80 vessels fishing in the GOA 
do not apply to groundfish or halibut PSC sideboard limits in the GOA 
when an Amendment 80 vessel is directed fishing for scallops using 
dredge gear.
Tables
     In Table 31 to part 679, NMFS added a footnote noting the 
LLP license that is originally assigned to the F/V ENTERPRISE.
     In Table 39 to part 679, NMFS changed the title of the 
table and deleted column C to remove references to a list of specific 
LLP licenses that had to be used while directed fishing for flatfish in 
the GOA.

III. Response to Comments

    Comments have been summarized and edited for consistency, clarity, 
and to avoid duplication.

Section 679.2

    Comment 1: Amendment 80 is a vessel-based program. Catch history is 
assigned to Amendment 80 eligible vessels for the purposes of 
determining QS. The LLP license originally assigned to the eligible 
vessel becomes the LLP to which QS is assigned, if the vessel is sunk 
or otherwise becomes permanently ineligible. However, an LLP license 
originally assigned to an Amendment 80 vessel should not become an 
Amendment 80 LLP until vessel owner assigns it to an Amendment 80 
vessel as part of an Amendment 80 QS application or until QS is 
assigned to that LLP license when the vessel is lost. Once QS is 
assigned to an Amendment 80 LLP license it should no longer be used 
outside the Amendment 80 sector. Clarify that, at the time of Amendment 
80 QS application, each Amendment 80 vessel owner chooses the LLP 
license(s) which will be assigned to each Amendment 80 vessel by making 
the following four changes in the regulations:
    1. Revise the definition of ``Amendment 80 LLP license'' under 
Sec.  679.2 to remove the reference to the list of LLP licenses 
provided in Table 31 to part 679.
    2. Revise the definition of ``Amendment 80 LLP license originally 
assigned to an Amendment 80 vessel'' under Sec.  679.2 to ``LLP license 
originally assigned to an Amendment 80 vessel.''
    3. Replace the phrase ``Amendment 80 LLP license originally 
assigned to an Amendment 80 vessel'' with ``LLP license originally 
assigned to an Amendment 80 vessel'' in Sec.  679.4 paragraphs 
(o)(1)(ii), and (iv); and Sec.  679.90 paragraphs (a)(2)(ii)(A), 
(a)(2)(ii)(C), (b)(4)(i)(E), (b)(4)(i)(H), (d)(2)(ii), (e)(4), 
(f)(3)(i)(B)(2), and (f)(3)(i)(E).
    4. Revise the title of Column C in Table 31 to part 679 to read 
``List of Amendment 80 Vessels and LLP Licenses Originally Assigned.''
    The Council's motion, which serves as the basis of Amendment 80 to 
the FMP, clearly identified the Program as ``vessel-based'' and only 
referred to the ``first license assigned to'' an eligible vessel in 
terms of clarifying which LLP license QS could be affixed to in case of 
a total loss or permanent ineligibility of the vessel to participate in 
the fishery. At no time did the Council require any specific LLP be 
declared an Amendment 80 LLP until such time that (1) the owner of an 
Amendment 80 vessel decided to assign a specific LLP to a vessel as 
part of an Amendment 80 application, or (2) the owner of an inoperable 
vessel (e.g., a vessel with a total constructive loss) assigned the QS 
derived from that inoperable vessel assigned to the LLP license 
originally assigned to that vessel and had completed an application for 
Amendment 80 QS.
    This interpretation of Council intent is supported by a review of 
the CRP. The CRP prohibited participation in the non-AFA trawl catcher/
processor subsector (i.e., Amendment 80 sector) by vessels and owners 
that did not meet the requirements of the CRP, but in no way compels 
participation by eligible participants in that fishery or prohibits 
eligible participants from operating in other sectors or fisheries. The 
Council similarly defines the parameters of the

[[Page 52675]]

Amendment 80 sector, but does not compel the use of an LLP license in 
the sector and does not explicitly restrict the use of an LLP license 
that is eligible for use in the Amendment 80 sector outside of that 
sector if that license is not actually used in the Amendment 80 sector.
    At this time, at least one LLP originally assigned to an Amendment 
80 vessel is being used on a non-Amendment 80 vessel. The Amendment 80 
vessel originally issued that LLP license is currently using a 
different LLP license to prosecute its non-AFA catcher/processor 
fisheries. In developing a vessel-based Program, it was not the 
Council's intent to disrupt the use of these (or any other) LLP 
licenses but rather to ensure that when an application for Amendment 80 
QS is submitted, that it is accompanied by at least one LLP that is 
endorsed for use in fishing for groundfish in the Bering Sea and/or 
Aleutian Islands for that Amendment QS permit.
    Response: NMFS agrees in part. NMFS modified the final rule as 
recommended by the commenter in points 1, 3, and 4. The Council motion, 
which serves as the basis of Amendment 80, describes how an LLP license 
can be used in the Program. After reviewing the draft EA/RIR/IRFA 
prepared for the proposed rule (see Section 1.11.6), the final EA/RIR 
(see ADDRESSES), and records of the Council action supporting the 
Program, NMFS concludes the following which support the recommended 
changes in points 1, 3, and 4 above:
     Amendment 80 and the Program clearly define the LLP 
license to which QS should be assigned in the event an Amendment 80 
vessel suffers an actual total loss, constructive total loss, or 
permanent ineligibility to fish.
     In order to participate in the non-pollock groundfish 
fisheries using a trawl catcher/processor, as defined in the CRP, a 
person must own an Amendment 80 vessel and hold an LLP license endorsed 
for trawl gear with a catcher/processor designation in the BS or AI.
     The Council did not recommend that in all cases an LLP 
license originally issued to an Amendment 80 vessel must be defined as 
an Amendment 80 LLP license, or that an LLP license originally issued 
to an Amendment 80 vessel must be used within the Amendment 80 sector.
     Once an Amendment 80 LLP license is assigned for use in 
the Amendment 80 sector, it is not intended to be used to designate a 
non-Amendment 80 vessel and be used outside of the Amendment 80 sector.
     The Council's action supports the commenter's 
recommendation that a person must assign an LLP license endorsed for 
trawl catcher/processor activity to an Amendment 80 vessel.
     The Council did express concern about ``double-dipping,'' 
which is the process of using an LLP license endorsed for trawl 
catcher/processor gear and which originally designates an Amendment 80 
vessel from being used onboard a non-Amendment 80 vessel in other 
groundfish fisheries, specifically those in the GOA. By allowing LLP 
licenses issued to an Amendment 80 vessel to be used outside of the 
Amendment 80 sector, there is the potential that the additional harvest 
opportunities offered by the use of that LLP license could lead to an 
increase in fishing effort in other non-LAPP fisheries.
    In regards to point 2 of the comment, NMFS determined that a 
modification was needed, but not exactly as the commenter suggests. 
NMFS found that defining an LLP license as an ``Amendment 80 LLP 
license'' only if it is noted on an application for Amendment 80 QS 
would not address two situations. First, if an LLP license designates 
an Amendment 80 vessel after the application period for Amendment 80 QS 
has ended, it would not be considered an Amendment 80 LLP license under 
the commenter's proposal. Second, if an Amendment 80 QS permit is 
assigned to an LLP license originally issued to an Amendment 80 vessel, 
then that LLP license becomes an Amendment 80 QS/LLP permit. However, 
unless that Amendment 80 QS/LLP license designates an Amendment 80 
vessel, it would not be considered an Amendment 80 LLP under the 
commenter's proposal. Allowing an LLP license meeting either of these 
criteria not to be defined as an Amendment 80 LLP license contravenes 
the clear intent of the Program. This intent is to ensure that once an 
LLP license is used in the Amendment 80 sector either to support 
fishing onboard an Amendment 80 vessel or has an Amendment 80 QS permit 
affixed to it, then that LLP license becomes an Amendment 80 LLP 
license and cannot be used to designate a non-Amendment 80 vessel.
    Therefore, NMFS modified the definition of an ``Amendment 80 LLP 
license'' to include (1) LLP licenses designated on an application for 
Amendment 80 QS; (2) LLP licenses that designate an Amendment 80 vessel 
at any point after the effective date of this rule; and (3) any 
Amendment 80 QS/LLP permit.
    With these changes in the definition of an Amendment 80 LLP 
license, NMFS is deleting the prohibition at Sec.  679.7(o)(2) which 
limits a person from designating ``an Amendment 80 vessel on any LLP 
license other than an Amendment 80 LLP license.'' With the changes in 
the definition of an Amendment 80 LLP license, any time an LLP license 
designates an Amendment 80 LLP license it is defined as an Amendment 80 
LLP license. This prohibition is no longer necessary with the removal 
of a defined list of Amendment 80 LLP licenses.
    NMFS is adding two new paragraphs at Sec.  679.7(o)(2)(i) and 
(o)(2)(ii) in response to the comment. The new paragraph at Sec.  
679.7(o)(2)(i) clarifies that persons are prohibited from designating 
any vessel other than an Amendment 80 vessel on an Amendment 80 LLP 
license. This change is consistent with the commenter's recommendation, 
the final EA/RIR/FRFA, and Amendment 80.
    The new paragraph at Sec.  679.7(o)(2)(ii) adds a requirement that 
a person who holds Amendment 80 QS and who owns an Amendment 80 vessel 
also must hold an Amendment 80 LLP license endorsed for trawl catcher/
processor activity in the Bering Sea subarea or Aleutian Islands 
subarea that designates that Amendment 80 vessel at all times during a 
calendar year unless that Amendment 80 vessel has suffered an actual 
total loss, constructive total loss, or is permanently ineligible to 
receive a fishery endorsement under 46 U.S.C. 12108. This provision 
ensures that a person holding multiple trawl catcher/processor endorsed 
LLP licenses in the BS or AI maintains one LLP license on each vessel, 
so that each Amendment 80 vessel is designated on an LLP license even 
if that vessel is not fishing. This provision is necessary to meet the 
clear intent of the CRP, which requires that in order to participate in 
the Amendment 80 sector, a person must hold an LLP license that is 
endorsed for groundfish in the Bering Sea subarea or Aleutian Islands 
subarea with a catcher/processor designation. However, this paragraph 
does not require that a person designate an Amendment 80 vessel on an 
Amendment 80 LLP license in the event that vessel has been lost or is 
no longer able to fish. If a vessel is no longer able to be used in the 
fishery, then it is not necessary to assign an LLP license to that 
vessel. Instead, a person who holds an LLP license that designated a 
lost or permanently ineligible vessel could designate that LLP license 
for use on another Amendment 80 vessel.
    With these changes, several key components of the Program will be

[[Page 52676]]

improved. First, LLP licenses that were originally issued to an 
Amendment 80 vessel but are currently used outside of the Amendment 80 
sector would not be defined as Amendment 80 LLP licenses until such 
time as they designate an Amendment 80 vessel, or the QS permit for an 
Amendment 80 vessel is affixed to that LLP license. This would allow 
existing business operations using these LLP licenses to continue 
without being adversely affected by the Program. Second, by requiring 
that each Amendment 80 LLP license designate an Amendment 80 vessel, 
NMFS ensures that the clear requirements for participation in the 
Amendment 80 sector are met, and reduces the potential that LLP 
licenses originally issued to Amendment 80 vessels will be used outside 
of the Amendment 80 sector in a manner that will increase fishing 
effort in other non-Amendment 80 sector fisheries.
    NMFS had proposed listing Amendment 80 LLP licenses as a means of 
addressing two issues. First, it is clear that the Council intended 
that in the event an Amendment 80 vessel is lost or is permanently 
ineligible to fish, the QS assigned to that vessel may be assigned to 
the LLP license originally assigned to that vessel. Second, it is clear 
that in order to participate in the Amendment 80 sector, one must hold 
an LLP license endorsed for trawl catcher/processor activity in the BS 
or AI. In an effort to clarify the list of LLP licenses that would meet 
both of those requirements, NMFS had created a list of LLP licenses. 
However, in doing so, NMFS failed to account for those vessel operators 
that were using LLP licenses originally assigned to an Amendment 80 
vessel on non-Amendment 80 vessels that are ineligible to participate 
in the Amendment 80 sector, or the fact that LLP licenses that were not 
issued to an Amendment 80 vessel are used by Amendment 80 vessels. This 
change corrects that oversight and is consistent with the Council's 
intent.
    Comment 2: Section 679.2 defines the terms ``Amendment 80 
fishery,'' ``Amendment 80 limited access fishery,'' ``Amendment 80 
sector,'' and ``BSAI trawl limited access sector.'' These terms make 
the regulations difficult to understand. Improve the terminology to 
provide the reader a clearer and better understanding of these groups 
and sectors and how each is treated under the rule.
    Response: As noted in the preamble to the proposed rule, NMFS used 
terminology that is consistent with the terms used by the Council in 
the development of this Program to reduce confusion. NMFS also provided 
additional explanation of the terms identified by the commenter in the 
preambles to the proposed and final rules. NMFS determined that 
sufficient explanation of the terms used has been provided and a change 
in terminology at this point would create significant confusion. NMFS 
did not modify the regulations based on this comment.

Section 679.4

    Comment 3: Comment supports the Amendment 80 QS permit application 
requirements in the proposed rule and urges NMFS to retain those 
restrictions in the final regulations.
    Response: NMFS notes the comment and that the proposed requirements 
have been retained in this final rule.
    Comment 4: Sections 679.4(o)(1)(ii) and (iii) state that Amendment 
80 QS permits may be issued to the owner of the Amendment 80 vessel or 
to the holder of an LLP license originally assigned to an Amendment 80 
vessel. Under these provisions, an Amendment 80 vessel owner could 
transfer the LLP license originally issued for an Amendment 80 vessel, 
but retain the Amendment 80 vessel. As such, the owner of an Amendment 
80 vessel would be issued QS.
    Clarify what would happen to the disposition of QS that was 
originally issued to the vessel owner if the Amendment 80 vessel sinks 
and is a total loss. Will the QS automatically be reassigned to the 
holder of the LLP license originally issued for that vessel? This 
scenario is especially troubling if the QS permit derived from a sunken 
vessel is one of the nine QS permits required to form a cooperative. Is 
the cooperative still valid, even if an Amendment 80 vessel sinks and 
the associated QS permit is issued to a new owner outside the 
cooperative?
    Response: NMFS modified the regulations at Sec.  679.7(o)(3) based 
on this comment. The proposed regulations allowed an Amendment 80 QS 
permit to be assigned to the holder of the LLP license originally 
issued for an Amendment 80 vessel during the initial allocation of 
Amendment 80 QS (see Sec.  679.90(d)(2)(ii)), or after the initial 
allocation of QS through a transfer process (see Sec.  679.90(e)(4)) if 
that vessel suffers an actual total loss, constructive total loss, or 
is permanently ineligible to receive a fishery endorsement under 46 
U.S.C. 12108. The proposed regulations also prohibited a person from 
holding Amendment 80 QS assigned to a vessel unless that person is 
``designated as the owner of that Amendment 80 vessel by an abstract of 
title or USCG [United States Coast Guard] documentation (see Sec.  
679.7(o)(3)(ii)).''
    Based on the intent expressed by the Council in developing the 
Program, which is supported in the draft EA/RIR/IRFA prepared for the 
proposed rule and described in the preamble of the proposed rule, NMFS 
added a new prohibition in this final rule at Sec.  679.7(o)(3)(ii) to 
clearly prohibit a person from holding an Amendment 80 QS permit 
assigned to an Amendment 80 vessel if that Amendment 80 vessel has 
suffered an actual total loss, constructive total loss, or is 
permanently ineligible to receive a fishery endorsement under 46 U.S.C. 
12108 after October 15 in the calendar year following the date of th