03-9232. Fishing Capacity Reduction Program for the Crab Species Covered by the Fishery Management Plan for the Bering Sea/Aleutian Islands King and Tanner Crabs

AGENCY:

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Reopening proposed rule public comment period.

SUMMARY:

This document reopens for 15 days the public comment period for a proposed rule establishing a fishing capacity reduction program for the crab species managed under the Bering Sea/Aleutian Islands King and Tanner Crab Fishery Management Plan. The reopening's intent is to seek additional public comment about, and clarification of, issues in previous public comments about the proposed rule.

DATES:

Comments will be accepted until April 30, 2003.

ADDRESSES:

Mail or fax written comments to Michael L. Grable. The mailing address is: Michael L. Grable, Chief, Financial Services Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3282. The fax number is [phone]. NMFS will not accept e-mail or internet comments.

If a comment involves any aspect of the collection of information requirements, send the comment both to Michael L. Grable and to the National Oceanic and Atmospheric Administration Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, D.C. 20503. Anyone who wants the Environmental Assessment, Regulatory Impact Review, and Initial Regulatory Flexibility Analysis for this proposed rule may obtain it from Michael L. Grable.

Anyone who wants to contact the Restricted Access Management Program (which issues crab species fishing licenses) may do so at this address: Restricted Access Management Program, National Marine Fisheries Service, P.O. Box 21668, Juneau AK 99802-1668. The fax number is [phone].

FOR FURTHER INFORMATION CONTACT:

Michael L. Grable, [phone].

SUPPLEMENTARY INFORMATION:

I. Proposed Rule Background

General

NMFS published the proposed rule in the Federal Register (67 FR 76329) on December 12, 2002. The rule proposed a fishing capacity reduction program (program) for the crab species (crab) managed under the Bering Sea/Aleutian Islands King and Tanner Crab Fishery Management Plan.

The rule proposed to reduce crab fishing capacity by paying bidders whose bids the program accepts to surrender their crab fishing interests for revocation or restriction. A loan, repaid by post-reduction crab landing fees, would finance 100% of program cost.

On December 30, 2002, NMFS corrected (67 FR 79550) the proposed rule and, on January 28, 2003, responded to public comment by extending (68 FR 4161) the proposed rule's comment period until February 27, 2003.

NMFS is reopening the comment period for 15 days to seek additional public comment about, and clarification of, issues in previous public comments about the proposed rule.

Reduction Vessel and Reduction Vessel Fishing History

The rule proposed to require each program bidder's reduction fishing interest to include the bidder's:

(1) Crab reduction permit,

(2) Reduction vessel fishing history,

(3) Non-crab reduction permit, and

(4) Reduction vessel fishing privilege.

Proposed rule § 600.1018(a) defines the first two of these bid elements as follows:

(1) “Crab reduction permit” means a non-interim crab license [under the license limitation program] endorsed for one or more reduction endorsement fisheries, regardless of whether it is also endorsed for the Norton Sound fishery, and

(2) “Reduction vessel fishing history” means, for each bid, the reduction vessel's complete history of documented harvest upon any part of which NMFS based issuance of the bidder's crab reduction permit and non-crab reduction permit.

The rule proposed the following basic requirements (which are here paraphrased) for the four bid elements:

(1) Proposed rule § 600.1018(h)(2) requires the reduction vessel in each bid to be the same vessel whose crab fishing history during the general qualification period (GQP), endorsement qualification period (EQP), and recent participation period (RPP) gave rise to the crab license which the bidder includes in its bid as its crab reduction permit.

(2) Proposed rule § 600.1018(h)(3) defines the reduction vessel fishing privilege in each bid as the reduction vessel's fisheries trade endorsement, its qualification for ever being placed under foreign registry or operational authority, and its worldwide fishing privileges of every kind,

(3) Proposed rule § 600.1018(h)(4) requires the crab reduction permit in each bid to be the crab license which NMFS issued on the basis of the GQP, EQP, and RPP crab fishing history of the bidder's reduction vessel. The crab reduction permit must be non-interim and include at least one area/species endorsement for any one or more reduction endorsement fisheries, and

(4) Proposed rule § 600.1018(h)(6) requires the reduction vessel fishing history in each bid to be the whole of the fishing history of the reduction vessel upon any part of which NMFS based issuance of the crab reduction permit and the non-crab reduction permit which the bidder includes in its bid.

For vessels which were lost or destroyed before the RPP, there are proposed rule exceptions to the requirements in (1), (3), and (4) immediately above. Nevertheless, bids involving these lost or destroyed vessels still require extant reduction vessels.

The proposed rule used these definitions and requirements as a means of matching, for program reduction purposes, each crab license with the crab vessel whose fishing history gave rise to the crab license. NMFS believed it was necessary for the proposed rule to do this because:

(1) Crab licences, crab vessels, and the vessels' crab fishing histories are all independently transferable,

(2) Crab harvests are identified by crab vessels rather than by crab licenses,

(3) Crab license and crab vessel transfers are a matter of public record, but crab fishing history transfers are not,

(4) Crab vessels were not designated on crab licenses until 2002, and

(5) There was an inference in the regulations implementing Amendment 10 to the crab fishery management plan (Amendment 10) that crab fishing histories must have been completely earned on one vessel.

Although the proposed rule's approach would apparently have worked well for almost all potential program bidders, the public comments suggest that it would be problem for a few.

Fishing History Years for Bid Scoring and Reduction Loan Allocation Purposes

The program's statutory authority requires scoring bids in a reverse auction by dividing each bid price by the total value of crab landed from 1990 through 1999, under each crab reduction permit, in “the most recent five-year period” in each of seven area/species endorsement fisheries.

The statute also requires using these data, in a different calculation, to allocate the reduction loan among the six reduction endorsement fisheries whose post-reduction fees will repay the loan.

The proposed rule's § 600.1018(a) definition of the term “bid crab” defines “the most recent five-year period” as “the most recent 5 calendar years in which each reduction endorsement fishery was for any length of time open for directed crab fishing during a 10-calendar-year period beginning on January 1, 1990, and ending on December 31,1999.”

Although the proposed rule's approach would apparently have worked well for most potential program bidders, the public comments suggest it would be a problem for some.

II. Public Comments About The Proposed Rule

Reduction Vessel and Crab Fishing History for Reduction Purposes

The pertinent public comments assert (1) that the fishing history of a particular vessel functionally transfers from the vessel at the time that its fishing history gives rise to issuance of a crab license and (2) that the fishing history thereafter becomes the history of the license rather than the history of the vessel. This assertion includes not only that vessel's crab fishing history during the vessel moratorium period (VMP), GQP, EQP, and RPP, but also all the vessel's predecessor fishing history.

Accordingly, the program would no longer need to require a bid's reduction vessel to be the same vessel whose crab fishing history during the GQP, EQP, and RPP gave rise to the bid's crab reduction permit. Pre-license fishing history would no longer be a reduction-vessel determinant because that history would have transferred from the vessel which earned that history to the crab license to whose issuance that history gave rise. A program bidder's reduction vessel could be, for example, the crab vessel designated, at the time of bidding, on the bid's crab reduction permit. In most bids, this would probably be the vessel whose fishing history did, in fact, give rise to the bid's crab reduction permit; but a reduction vessel other than the vessel which did so would also be acceptable.

Additionally, each bid's pre-license crab fishing history for reduction purposes would be the fishing history of the vessel or vessels which gave rise to issuance of, and was consequently transferred (as the comments assert) to, the crab license corresponding to the bid's crab reduction permit.

Public comments also assert that, under appropriate circumstances involving lost or destroyed vessels, a reduction vessel would not need to be extant at the time of program bidding.

Fishing History Years for Bid Scoring and Reduction Loan Allocation Purposes

Instead of the years involved in these calculations being (as the rule proposed) the most recent 5 years in which each area/species endorsement fishery was open for directed fishing, the pertinent public comments assert that these years should be the most recent 5-year period in which each program bidder landed, under a crab reduction permit, crab in each area/species endorsement fishery.

III. Discussion and Questions

Reduction Vessel and Crab Fishing History for Reduction Purposes

Crab fishing history is an important program factor. Crab fishing history is the basis upon which the program must score bids and allocate repayment of the reduction loan between the six reduction endorsement fisheries. For this purpose, however, only crab fishing history during the period from January 1, 1990, through December 31, 1999, is relevant. The program's authorizing statute does not allow considering crab fishing history during any other period. Moreover, crab fishing history has been the past qualification basis for crab licenses and may potentially be the future qualification basis for other forms of crab harvesting privileges, including harvesting allocations.

If an identifiable vessel's pre-license crab fishing history does, as the pertinent public comments assert, transfer to the crab license to whose issuance that fishing history gave rise, then:

(1) The issued crab license acquires the vessel's pre-license crab fishing history,

(2) The vessel loses its pre-license crab fishing history,

(3) The vessel thereafter transfers without its pre-license crab fishing history, and

(4) The vessel's subsequent fishing history is its post-license fishing history.

The January 1, 1990, beginning of the crab fishing history period for program bid scoring and reduction loan allocation purposes is not earlier than the January 1, 1988, beginning of the VMP. However, the December 31, 1999, ending of the bid scoring and reduction loan allocation period is later than the ending of the RPP.

If the reduction vessel in each program bid were to be the vessel designated, at the time of bidding, on the bid's crab reduction permit, there would be two possibilities:

(1) The bid's reduction vessel could be the same as the vessel whose pre-license crab fishing history transferred to the bid's crab reduction permit. In this possibility, both the pre-license and the post-license history required for bid scoring and loan allocation purposes would be that of the bid's reduction vessel, and

(2) The bid's reduction vessel could be a vessel other than the vessel whose pre-license crab fishing history transferred to the bid's crab reduction permit. In this possibility, the pre-license history required for bid scoring and loan allocation purposes would have been earned by a vessel other than the bid's reduction vessel. Presumably, however, the post-license history required for this purpose would be the reduction vessel's remaining fishing history, which had not previously transferred to some other crab license (even though that vessel may not have been designated on the crab license corresponding to the bid's crab reduction permit until more than a year after NMFS issued that crab license).

Accordingly, to assist NMFS in considering the pertinent public comments, NMFS solicits the public's response to the following questions:

(1) Does the crab fishing history of a particular vessel always functionally transfer from the vessel at the time the history gives rise to issuance of a crab license?

(2) Does the crab fishing history, thereafter, become the history of the crab license to which the history gave rise rather than the history of the vessel which earned the history?

(3) Should the pre-license portion of the crab fishing history for reduction purposes always be the pre-license history of the vessel whose history gave rise to issuance of the crab license corresponding to the bid's crab reduction permit?

(4) What should be the ending point of this pre-license crab fishing history? The end of the RPP? The date on which a post-RPP crab license was issued? Some other date specified in the crab fishery management plan regulations? Some other date corresponding to some other point?

(5) What should be the beginning point of this pre-license crab fishing history? The point at which the vessel which earned this history first existed? Some other date corresponding to some other point?

(6) Should the post-license portion of crab fishing history for reduction purposes always be the post-license history of the bid's reduction vessel (e.g., the vessel designated, at the time of bidding, on the bid's crab reduction permit)? If not, what else should it be and why?

(7) What are the specific instances in which persons would have combined the pre-license crab fishing history of different vessels to give rise to issuance of the crab license corresponding to a bid's crab reduction permit? In each such specific instance, what should be the specific beginning and ending points which determine how much of each different vessel's pre-license crab fishing history gave rise to issuance of the crab license and, consequently, transferred from each of these vessels to the crab license?

(8) If program regulations adopted, for reduction purposes, the pertinent public comments' approach to reduction vessels and crab fishing histories, would this create any corollary problems? If so, what would they be and how should they best be resolved?

(9) If program regulations adopted the pertinent public comments' approach, are the required data for implementing the program still determinable and readily available under that approach?

(10) Overall, which approach in this regard would accomplish the most good for the most potential program bidders--the approach which the rule proposed or the approach which pertinent public comments have suggested? Why?

(11) Would it be appropriate to use both these approaches-- the first approach for some vessels and the second approach for other vessels or should only one of the two approaches be used? Why?

Moreover, what specific circumstances involving lost or destroyed vessels would be appropriate, in each conceivable instance, for not requiring a reduction vessel to be extant at the time of program bidding?

Fishing History Years for Bid Scoring and Reduction Loan Allocation Purposes

Overall, which of the approaches would accomplish the most good for the most potential program bidders? Why?

NMFS believes additional public comment about these matters will facilitate a rule which best fulfills the program's statutory objective.

Authority: 16 U.S.C. 1801 et seq.

Dated: April 9, 2003.

Rebecca Lent,

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