[Federal Register Volume 68, Number 82 (Tuesday, April 29, 2003)]
[Proposed Rules]
[Pages 22667-22670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10556]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030417090-3090-01; I.D. 032403C]
RIN 0648-AQ73


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: Proposed rule.

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SUMMARY: NMFS issues a proposed rule to amend eligibility criteria for 
Bering Sea and Aleutian Islands (BSAI) crab species licenses issued 
under the License Limitation Program (LLP)and required for 
participation in the BSAI crab fisheries. This action is necessary to 
allow participation in the BSAI crab fisheries in a manner intended by 
the North Pacific Fishery Management Council (Council). The intended 
effect of this action is to allow vessels with recent participation in 
the BSAI crab fisheries to qualify for an LLP crab species license as 
the Council intended and to conserve and manage the crab resources in 
the BSAI in accordance with the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act).

[[Page 22668]]


DATES: Comments must be received by May 14, 2003.

ADDRESSES: Comments may be mailed to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel. Hand delivery 
or courier delivery of comments may be sent to the NMFS, 709 West 9th 
Street, Room 420, Juneau, AK 99801. Comments also may be sent via 
facsimile to 907-586-7557. Comments will not be accepted if submitted 
by email or the Internet. Copies of the Environmental Assessment 
prepared for Amendment 10 to the Fishery Management Plan for Bering Sea 
and Aleutian Islands King and Tanner Crabs and the regulatory impact 
review/initial regulatory flexibility analysis (RIR/IRFA)prepared for 
this proposed rule are available from this same address.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228

SUPPLEMENTARY INFORMATION:

Background

    The Council recommended and NMFS approved Amendment 10 to the 
Fishery Management Plan (FMP) for Bering Sea/Aleutian Islands (BSAI) 
King and Tanner Crabs on April 18, 2001. NMFS published a final rule to 
implement Amendment 10 on September 24, 2001 (66 FR 48813). Amendment 
10 established recent participation requirements for vessel owners to 
receive LLP crab species licenses. Since publication of the final rule, 
NMFS has determined that portions of these regulations are inconsistent 
with Amendment 10. This action proposes to correct this inconsistency.
    The LLP was designed to address concerns of excess capital and 
fishing capacity in the crab fisheries off Alaska. More information on 
the LLP can be found in the preamble to the final rule implementing the 
LLP (63 FR 52642, October 1, 1998). Fishing under the LLP began on 
January 1, 2000.
    The LLP established specific criteria for eligibility to 
participate in the BSAI crab fisheries. Under the LLP eligibility 
requirements to receive a crab species license, a person must 
demonstrate that documented harvests were made from a qualifying vessel 
during two periods, the general qualification period (GQP) and the 
endorsement qualification period (EQP), specified at 50 CFR 
679.4(k)(5).
    The Council designed the LLP to allow the fishing history of a 
vessel to be transferred prior to issuance of a license. A fishing 
history would not qualify the holder for a license unless it was an LLP 
qualifying fishing history, meaning the fishing history meets the GQP 
and EQP requirements for LLP eligibility. Although the LLP provides for 
these transfers, eligibility for a license under the LLP cannot occur 
by piecing together the fishing histories from two or more vessels to 
qualify for the GQP and EQP (50 CFR 679.4(k)(5)).
    In October 1998, the Council recommended Amendment 10 to add a 
recent participation period (RPP) from January 1, 1996, through 
February 7, 1998, to the eligibility requirements for a crab species 
license. Under Amendment 10, and in addition to the GQP and EQP 
requirements, a person must demonstrate that at least one documented 
harvest of crab was made from a vessel during the RPP to qualify for a 
crab species license.
    The additional RPP eligibility requirement is a means of reducing 
the number of crab species licenses that might otherwise be issued to 
persons who have been inactive in the crab fishery since 1995. Licenses 
given to such inactive fishermen could be transferred to persons who 
would become active in the fishery. This result would be contrary to 
the purpose of the LLP because it would likely increase fishing effort 
above the current levels in the crab fisheries.
    The Council recommended specific exceptions to the RPP requirements 
based on public testimony and in consideration of the impacts the RPP 
would have on small fishing operations. The Council recommended 
excepting from the RPP requirements: (1) a person who qualifies only 
for a Norton Sound red king crab endorsement, (2) a person whose 
qualifying vessel is less than 60 ft length overall, or, (3) a person 
whose qualifying vessel was lost or destroyed during the RPP period, 
but who made a documented harvest of crab species on another vessel 
after the first vessel was lost or destroyed through January 1, 2000. 
NMFS added a hardship exemption (unavoidable circumstances) to the RPP 
in the final rule to be consistent with the original provisions of the 
LLP.
    The Council recommended one additional exception to allow persons 
that participated in a BSAI crab fishery in the RPP during the period 
of January 1, 1998, through February 7, 1998, without a LLP qualifying 
fishing history, to acquire an LLP qualifying fishing history by 8:36 
a.m. on October 10, 1998. This exception provided the opportunity for 
recent participants in the crab fisheries, that did not hold the LLP 
qualifying fishing history during their documented harvests in the RPP, 
to obtain historical participation in order to qualify for an LLP 
license.
    Amendment 10 allows a vessel owner who, having acquired LLP 
qualifying fishing history, used a vessel to fish during the RPP to 
combine his acquired fishing history with his RPP fishing history in 
meeting the RPP requirement for an LLP crab species license. Combining 
an LLP qualifying fishing history with an RPP fishing history is 
allowed to provide recent participants the opportunity to purchase 
historical participation, with some restrictions. Without this ability 
to combine histories, only vessel owners who participated in the crab 
fisheries prior to 1995 would receive a license and vessel owners with 
recent dependence on the fishery would be denied licences, except for 
recent participants who qualify for the exception.

Proposed Rule Corrections

    The regulations implementing the RPP requirement (50 CFR 
679.4(k)(5)(iii)) differ in one important aspect from Amendment 10. The 
regulations, as explained in the preamble to the proposed rule (66 FR 
17397, March 30, 2001) and final rule (66 FR 48813, September 24, 
2001), require that a person use one vessel to earn the GQP, EQP, and 
RPP fishing histories to qualify for an LLP license, with exceptions. 
Specifically, the regulations require that a person must have made a 
documented harvest during the RPP from a qualifying vessel, which is 
the same vessel that was used to fish in the GQP and EQP. The exception 
applies to a person who has made a documented harvest of crab from a 
vessel during the period of January 1, 1998, through February 7, 1998, 
and who acquired an LLP qualifying fishing history of another vessel or 
entered into a contract to obtain the LLP qualifying fishing history of 
another vessel, by October 10, 1998.
    The existing regulations result in persons being denied crab LLP 
licenses if they did not use a qualifying vessel to fish in the RPP and 
did not fish in the period from January 1, 1998, through February 7, 
1998. Requiring that documented harvests be made from a qualifying 
vessel prevents a person who fished in the RPP with a vessel that was 
not used to qualify for the GQP and EQP to qualify for an LLP license, 
unless that person met the exception. Amendment 10, however, provides 
that a person who had purchased the LLP qualifying fishing history and 
then fished with his or her vessel in the RPP would qualify for a crab 
license.
    This action proposes to correct this inconsistency so that the 
implementing

[[Page 22669]]

regulations accurately reflect Amendment 10. NMFS recognizes transfers 
that occurred prior to issuing licenses and will grant licenses to 
those vessel owners who obtained a LLP qualifying fishing history and 
who fished during the RPP.

License Issuance

    NMFS's Restricted Access Management Program (RAM) has issued 
interim licenses to those vessel owners who qualify under Amendment 10, 
but not under the existing implementing regulations, and who made a 
timely claim. Once the regulations are corrected, RAM will review the 
applications and issue licenses to persons whose vessels meet the 
corrected qualification requirements.

Classification

    This proposed rule is subject to a categorical exclusion from the 
requirement to prepare an environmental assessment because it falls 
under the purview of the environmental assessment for Amendment 10, 
which was prepared on July 23, 1999. The environmental assessment 
discusses the impact on the environment as a result of this rule. The 
analysis indicates that the individual impacts of this proposed action, 
and the cumulative impacts of all the changes under Amendment 10, would 
have a negligible effect on the quality of the human environment. A 
copy of the environmental assessment is available from NMFS (see 
ADDRESSES).
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared for 
this rule, pursuant to the provisions of the Regulatory Flexibility Act 
(RFA) at 5 USC 603(b). The reasons for this action, the objectives, and 
its legal basis were discussed earlier in the preamble. This rule was 
found to directly regulate three entities that may have acquired LLP 
qualifying fishing history from another vessel before making a 
documented harvest during the RPP. All of these entities were assumed 
to be small on the basis of studies suggesting that crab fishing 
operations in the BSAI were predominately small entities as defined 
under the RFA. The analysis did not identify any new projected 
reporting, record keeping, or other compliance requirements associated 
with this proposed rule. The analysis did not identify any relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    This action would have no adverse economic impacts on the directly 
regulated entities; these entities would qualify for an LLP license for 
which they cannot now qualify. Alternative 1 is the status quo 
alternative. Under this alternative there would be no regulatory 
amendment. A vessel would have to have been used during the (a) general 
qualification period (GQP), the (b) endorsement qualification period 
(EQP) and the (c) recent participation period (RPP) in order to qualify 
for an LLP, unless the person qualified for the exception by fishing 
from January 1, 1998 through February 7, 1998. Transfers of fishing 
history would not be recognized in the LLP allocation process. This 
alternative would prevent the entities from qualifying and thus imposes 
costs on them in comparison with the preferred alternative.
    Under Alternative 2, NMFS would adopt a regulatory amendment 
allowing persons that purchased GQP and EQP fishing history and then 
fished during the RPP to qualify for a license.
    The fishing history of a vessel that can be used as the basis for 
eligibility for a license under the LLP remains with the vessel until 
either (1) June 17, 1995, when it vests with the vessel owner, or (2) 
it is separated by the express terms of a written contract that clearly 
and unambiguously indicates that the fishing history is transferred or 
retained. The Council chose June 17, 1995, as the determining date 
because it coincides with the date the Council recommended the LLP.
    Until June 17, 1995, the fishing history remains with the vessel 
unless separated by a contract. This contract could transfer the 
fishing history to a person other than the vessel owner. Alternatively, 
this contract could retain the fishing history in the person who is 
selling his or her vessel before June 17, 1995. In either case, the 
contract has separated the fishing history from the vessel. This 
fishing history would not qualify the holder for a license unless the 
fishing history meets all the requirements for eligibility.
    On June 17, 1995, the fishing history of the vessel, unless already 
separated by contract, vests in the vessel owner. After June 17, 1995, 
the vessel owner can transfer that fishing history by contract. A 
vessel sold after June 17, 1995, does not have a fishing history to use 
as the basis for license eligibility because its fishing history has 
vested in the owner and would have to be obtained through the express 
terms of a written contract.
    The Council provided that a person who can demonstrate that a 
documented harvest of any crab species was made from his or her vessel 
during the RPP, can join that fishing history with another LLP 
qualifying fishing history from a different vessel, as long as the LLP 
qualifying fishing history was acquired, or a contract to acquire that 
fishing history was entered into, by 8:36 a.m. PST on October 10, 1998.
    Combining of fishing histories is not allowed under the following 
circumstances: piecing together GQP and EQP catch histories from 
different vessels; purchasing the RPP fishing history to combine with 
GQP and EQP; and, purchasing GQP and EQP after the RPP to combine with 
an RPP qualification earned before January 1, 1998.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 23, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set out in the preamble, 50 CFR part 679 is proposed to 
be 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: Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 
3631 et seq.
    2. In Sec.  679.4, paragraphs (k)(5)(iii)(A) and (k)(5)(iv) are 
revised to read as follows:


Sec.  679.4  Permits.

* * * * *
    (k) * * *
    (5) * * *
    (iii) Recent participation period (RPP). (A) The RPP is the period 
from January 1, 1996, through February 7, 1998. To qualify for a crab 
species license, defined at Sec.  679.2, a person must have made at 
least one documented harvest of any amount of crab species from a 
vessel during the RPP and must have held an LLP qualifying fishing 
history at the time of that documented harvest. An LLP qualifying 
fishing history meets the documented harvest requirements at paragraphs 
(k)(5)(i) and (k)(5)(ii) of this section.
* * * * *
    (iv) Exception to allow purchase of LLP qualifying fishing history 
after the documented harvest in the RPP. To qualify for an LLP crab 
species license, a person who made a documented harvest of crab species 
during the period from January 1, 1998, through February 7, 1998, must 
have obtained, or entered

[[Page 22670]]

into a contract to obtain, the LLP qualifying fishing history by 8:36 
a.m. PST on October 10, 1998,
* * * * *
[FR Doc. 03-10556 Filed 4-28-03; 8:45 am]
BILLING CODE 3510-22-S