Application to transfer charter halibut permit

Revised: 12/03/2009
CHARTER
HALIBUT
PROGRAM

OMB Control No. 0648-0592; Expiration Date: 08/31/2012

APPLICATION
FOR TRANSFER OF
CHARTER HALIBUT PERMIT

U.S. Dept. of Commerce
NOAA/National Marine Fisheries Service
Alaska Region
Restricted Access Management
P.O. Box 21668
Juneau, Alaska 99802-1668
(800) 304-4846 toll free / 586-7202 in Juneau
(907) 586-7354 fax

BLOCK A - REQUIRED DOCUMENTATION
Use this block to determine which forms and other information must be included with your transfer. Please check each
applicable box below to ensure that your application is complete and can be processed in a timely manner.
[ ]

Completed Application

[ ] Power of Attorney (if applicable)
[ ] Transferee Ownership and affiliation

[ ] Original charter halibut permit(s) attached

[ ] Copy of business sale contract (if applicable)

BLOCK B - IDENTIFICATION OF CHARTER HALIBUT PERMIT(S) TO BE TRANSFERRED
1. List Charter Halibut Permit Number(s):
2. Is this transfer a single group of “grandfathered” Charter Halibut Permits?
[ ] YES
[ ] NO
If YES, does the transfer of these permits include the sale or purchase of the transferor’s entire charter
halibut business?
[ ] YES
[ ] NO
If YES, a copy of the business sale contract must be provided
NOTE: The charter halibut moratorium permits (CHMPs) that were grandfathered together over the ownership use caps
may continue to transfer together provided that the transferor (seller) is selling the entire charter halibut business to the
transferee (buyer). The transfer of “grandfathered” CHMPs cannot be approved if the transferee currently holds other
CHMPs.
BLOCK C – TRANSFEROR (SELLER) INFORMATION
1. Name of Transferor (as it appears on the permits)
2. NMFS Person ID
3. Permanent Business Mailing Address

5. Business Telephone No.

4. Temporary Mailing Address (if applicable)

6. Business Fax No.

Charter Halibut Vessel Permit Transfer Application
Page 1 of 8

7. E-mail Address

BLOCK D – TRANSFEREE (RECEIVER) INFORMATION
1. Is the person applying to receive the permit(s) an U.S. Citizen or a U.S. Business with 75% U.S. ownership
(individual, corporation, partnership, or other association)?
[ ] YES

[ ] NO

If NO, STOP HERE. This person is not eligible to receive a permit.
3. NMFS Person ID

2. Name of Receiver(s) (as it will appear on the permit)
4. Business Mailing Address

6. Business Telephone No.

5. Temporary Mailing Address (if applicable)

7. Business Fax No.

8. E-mail Address

BLOCK E1 – OWNERSHIP DOCUMENTATION
To be completed by the Transferee (Receiver)

Provide the names of all persons, to the individual level, holding an ownership interest in the Charter Halibut Permit(s)
being transferred and the percentage ownership each person and individual will hold in the Charter Halibut Permit(s).
Name
% Ownership
Name
% Ownership

BLOCK E2-- IDENTIFICATION OF AFFILIATION
Duplicate this block as necessary to display all of the persons with whom the applicant is affiliated

Affiliation means a relationship between two or more entities in which one directly or indirectly owns or controls a
10 percent or greater interest in, or otherwise controls, another; or a third entity directly or indirectly owns or controls a
10 percent or greater interest in, or otherwise controls, both.
Provide the names of the persons with whom the applicant is affiliated at 10% or greater level of ownership or control.
You do not need to repeat owner names provided in Block E.1.
Name of Affiliate
% Interest
Name of Affiliate
% Interest

REQUIRED SUPPLEMENTAL INFORMATION
APPLICATIONS WILL NOT BE PROCESSED UNLESS ALL INFORMATION
REQUESTED IN BLOCKS E, F, & G IS PROVIDED

BLOCK F - TO BE COMPLETED BY THE TRANSFEROR (SELLER)
Charter Halibut Vessel Permit Transfer Application
Page 2 of 8

1. What is the total amount being paid for the permit(s) in this transaction, including all fees?
_________________
Does this price include the price of the charter halibut business

[

] YES

$
[

] NO

2. What is your reason(s) for transferring the permit? (check all that apply)
[ ] Retirement from the fishery(ies)

[ ] Enter other fishery(ies)

[ ] Other (explain)

[ ] Health problems

[ ] Pursue non-fishing activities

BLOCK G – TO BE COMPLETED BY THE TRANSFEREE (RECEIVER)
Note: Leasing of Charter Halibut Permits is prohibited.
1. Is the permit being used as collateral for a loan?

[ ] YES

[ ] NO

If YES, name of party holding security interest or lien:

2. Does the transfer of this Charter Halibut Permit include the sale of the charter halibut business?
[ ] YES

[ ] NO

If YES, identify Name of Business and provide a copy of the business sales contract

3. Does the transferee currently hold other Charter Halibut Permits?
[ ] YES

[ ] NO

If YES, the transfer of “grandfathered” Charter Halibut Permits cannot be approved.
4. Is there an agreement
to return the permit to the transferor (seller)

[ ] YES

[ ] NO

to transfer it to any other person,

[ ] YES

[ ] NO

If YES, please explain (use attachment if necessary):
5. Is there any condition requiring the resale or conveyance of the permit?
[ ] YES

[ ] NO

If YES, please explain (use attachment if necessary):

Charter Halibut Vessel Permit Transfer Application
Page 3 of 8

BLOCK H – CERTIFICATION OF TRANSFEROR (SELLER)
Under penalty of perjury, I hereby declare that I have examined this application, and the information presented herein is
true, accurate, and complete to the best of my knowledge and belief.
1. Signature of Transferor (Seller) or Authorized Agent

2. Date

3. Printed Name of Transferor (Seller) or Authorized Agent
4. Notary Public Signature

ATTEST

5. Affix Notary Stamp or Seal Here

6. Commission Expires

BLOCK I - TRANSFEREE (RECEIVER)
Under penalty of perjury, I hereby declare that I have examined this application, and the information presented herein
is true, accurate, and complete to the best of my knowledge and belief.
1. Signature of Transferee (Receiver) or Authorized Agent

2. Date

3. Printed Name of Transferee (Receiver) or Authorized Agent
4. Notary Public Signature

ATTEST

5. Affix Notary Stamp or Seal Here

6. Commission Expires

__________________________________________________________________________________________
PUBLIC REPORTING BURDEN STATEMENT
Public reporting burden for this collection of information is estimated to average two hours per response, including the time for
reviewing the instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region,
NMFS, P.O. Box 21668, Juneau, AK 99802-1668.
ADDITIONAL INFORMATION
Before completing this form please note the following: 1) NMFS may not conduct or sponsor this information request, and you are not
required to respond to this information request, unless the form displays a currently valid OMB control number; 2) This information is
being used to implement the Charter Halibut Vessel Program for IPHC Regulatory Areas 2C or 3A; 3) Federal law and regulations
require and authorize NMFS to manage charter halibut programs in Alaska; 4) Submission of this information is mandatory for any
entity participating in charter halibut fishing; 5) This information is used to monitor the charter vessel program under the Northern
Pacific Halibut Act of 1982; 6) Responses to this information request are not confidential.
___________________________________________________________________________________________________________

Charter Halibut Vessel Permit Transfer Application
Page 4 of 8

OMB Control No. 0648-0592; Expiration Date: 08/31/2012

Instructions For
APPLICATION FOR TRANSFER
CHARTER HALIBUT PERMIT
General Information
Application forms are available from National Marine Fisheries Service (NMFS) offices and on the
NMFS, Alaska Region, web site at http://www.alaskafisheries.noaa.gov. Electronic submittal of the
application is not accepted, because each application requires the original, notarized signature of the
applicant to be complete.
9 Both the proposed transferor (seller) and the proposed transferee (receiver) must complete and sign this
application.
9 Original permits must be attached, unless they have been lost or destroyed (see Block A instructions)
9 Copy of business sales contract if transfer of license includes sale of the charter halibut business.
9 When completed, the application should be mailed to:
NMFS Alaska Region
Restricted Access Management (RAM)
P.O. Box 21668
Juneau, Alaska 99802-1668
or delivered to:
709 West 9th Street Suite 713
Juneau, Alaska 99801
9 Please allow at least ten working days for your application to be processed. Items will be sent by
first class mail, unless you provide alternate instructions and include a prepaid mailer with appropriate
postage or corporate account number for express delivery.
9 It is important that all blocks are completed and attachments provided. Failure to answer any of the
questions or provide any of the required documents could result in delays in the processing of your
request for a transfer.
9 Direct any questions you may have to NMFS, RAM at 1-800-304-4846 (option 2) or 907-586-7202
(option 2).

Completing the Application Form - Specific Instructions
BLOCK A - REQUIRED DOCUMENTATION
Use this list as a guide to make sure you have included all the necessary items in the mailing of your
application. This will ensure timely processing of your transfer application. If you have lost your original
permit, you will need to complete a replacement application form. This application is available on the
NMFS, Alaska Region web site at http://alaskafisheries.noaa.gov. You may also call RAM at one of the
numbers listed above and request the application be mailed or faxed to you; or you may visit the RAM
office (709 W 9th Street, 7th Floor, Suite 713, Juneau, Alaska) and pick up the application.
Charter Halibut Vessel Permit Transfer Application
Page 5 of 8

BLOCK B - IDENTIFICATION OF PERMIT TO BE TRANSFERRED
Enter the identity of the charter halibut permit(s) to be transferred. You may use one application to
transfer multiple permits held by the same transferor to the same transferee.
1. List Permit Number(s)
2. Indicate if this transfer is a single group of “grandfathered” Charter Halibut Permits.
If YES, indicate whether the transfer of these permits includes the sale or purchase of the
transferor’s entire charter halibut business. The transfer of charter halibut permits that
were grandfathered together over the ownership use caps may continue to transfer
together provided that the transferor (seller) is selling the entire charter halibut business
to the transferee (buyer). A copy of the business sale contract must be provided.
If NO, your transfer will not be approved as submitted
BLOCK C – TRANSFEROR (SELLER) INFORMATION
1. Enter the full name as it appears on the permit.
2. Enter NMFS Person ID.
3. Enter the permanent business mailing address includes address, city, state, and zip code.
4. Enter the temporary mailing address (include city, state, and zip code), if you would like the transfer
documentation sent somewhere other than to your permanent address.
5-6. Enter the business telephone and fax numbers, including area code.
7. Enter the e-mail address (if available).
BLOCK D – TRANSFEREE (RECEIVER) INFORMATION
1. Indicate if the person applying to receive the permit(s) by transfer is a U.S. Citizen or U.S business with
at least 25% U.S. ownership (i.e., an individual, corporation, partnership or other U.S. association, as
defined at chapter 121, title 46, U.S.C.).
If NO, STOP, this person is not eligible to receive a permit by transfer.
Being an initial recipient of one or more Charter Halibut Permits does not entitle you to receive additional
permits by transfer if you do not meet the U.S. Citizen or U.S. business requirement.
2. Enter the full name as it will appear on the permit.
3. Enter NMFS Person ID.
4. Enter the permanent business mailing address includes address, city, state, and zip code.
5. Enter the temporary mailing address (include address, city, state, and zip code), if you would like the
transfer documentation sent somewhere other than to your permanent address.
6-7. Enter the business telephone and fax numbers, including area code.
Charter Halibut Vessel Permit Transfer Application
Page 6 of 8

8. Enter the e-mail address (if available).
REQUIRED SUPPLEMENTAL INFORMATION
APPLICATION WILL NOT BE PROCESSED
UNLESS ALL INFORMATION REQUESTED IN BLOCKS E, F AND G IS PROVIDED

BLOCK E1 – CHARTER HALIBUT PERMIT OWNERSHIP DOCUMENTATION (to be provided by the
transferee/receiver)
Enter the names of all persons, to the individual level, who will hold an ownership or control interest of 10% or
more in the Charter Halibut Permit being transferred and the percentage ownership each person and individual
will hold in the permit.
If the Transferee is a non-individual (i.e., a corporation, partnership or other entity), provide the names of, and the
percentage of ownership held by, all of its owners. Information should be provided to the individual level. See
example below:
Name of Owner

% Interest

Joe Groundfish

25%

Alice Groundfish

25%

LLP Family Holdings, Inc.

50%

A. LLP Holder

25% (of 50%)

B. LLP Holder

25% (of 50%)

C. LLP Holder

25% (of 50%)

D. LLP Holder

25% (of 50%)

BLOCK E2 -- IDENTIFICATION OF AFFILIATION
Provide the names of the persons with whom the applicant is affiliated.
♦

Affiliation means a relationship between two or more entities in which one directly or indirectly owns or controls
a 10 percent or greater interest in, or otherwise controls, another, or a third entity directly or indirectly owns or
controls a 10 percent or greater interest in, or otherwise controls, both.

♦

An indirect interest is one that passes through one or more intermediate entities. An entity's percentage of
indirect interest is equal to the entity's percentage of direct interest in an intermediate entity multiplied by the
intermediate entity's percentage of direct, or indirect, interest in the applicant.

♦

The term control includes:
Ownership of more than 10% of the entity;
The right to direct the business of the entity;
The right to limit the actions of or replace the chief executive officer, a majority of the board of directors, any
general partner, or any person serving in a management capacity of the entity; or
The right to direct the operation of the applicant’s business.
The term "control" does not include the right to simply participate in the above actions.

BLOCK F - TO BE COMPLETED BY THE TRANSFEROR (SELLER)
Charter Halibut Vessel Permit Transfer Application
Page 7 of 8

1. Indicate the total amount being paid for the permit(s) in this transaction, including all fees. The total amount
entered should include any and all monies collected on behalf of the seller for the subject permit(s).
Indicate whether this amount includes the price of the charter halibut business. If the sale of the permit(s) is
combined with, or part of, the sale of some other asset (i.e., a charter halibut business), the sales price of the
permit must be specified, including any fees that will later be paid out to other parties for the expenses of
brokering or assisting in the sale of this permit.
2. Indicate reason(s) for transferring the permit(s). Please check all boxes that apply to this transaction.
BLOCK G - TO BE COMPLETED BY THE TRANSFEREE (RECEIVER)
1. Indicate if the Charter Halibut Permit will be used as collateral for a loan.
If YES, enter the name of entity or person(s) who will hold the lien or security interest.
2. Indicate if the transfer of this Charter Halibut Permit includes the sale of the charter halibut business.
If YES, identify the name of the business.
3. Indicate whether the transferee currently holds other Charter Halibut Permits.
If YES, the transfer of “grandfathered” Charter Halibut Permits cannot be approved
4. Indicate whether or not there is an agreement to return the permit to the transferor (seller), or any other
person, or a condition placed on resale.
If YES, provide details.
Note: Leasing of Charter Halibut Permits is prohibited.
BLOCKS H & I - CERTIFICATION OF TRANSFEROR AND TRANSFEREE
Certify with signature and enter printed name and date signed. If completed by authorized representative, attach
authorization. A Notary Public must attest and affix a Notary Stamp or Seal.

Charter Halibut Vessel Permit Transfer Application
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18178

Federal Register / Vol. 74, No. 75 / Tuesday, April 21, 2009 / Proposed Rules

the requirements of the Clean Air Act
(Act).
DATES: Comments must be received on
or before May 21, 2009.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2007–1045, by one of the
following methods:
1. http://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. E-mail: [email protected].
3. Fax: (312) 886–5824.
4. Mail: John M. Mooney, Chief,
Criteria Pollutant Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: John M. Mooney,
Chief, Criteria Pollutant Section, Air
Programs Branch (AR–18J), U.S.
Environmental Protection Agency, 77
West Jackson Boulevard, Chicago,
Illinois 60604. Such deliveries are only
accepted during the Regional Office
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information. The
Regional Office official hours of
business are Monday through Friday,
8:30 a.m. to 4:30 p.m. excluding Federal
holidays.
Please see the direct final rule which
is located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.

tjames on PRODPC75 with PROPOSALS

FOR FURTHER INFORMATION CONTACT:

Christos Panos, Environmental
Engineer, Criteria Pollutant Section, Air
Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–8328,
[email protected].
SUPPLEMENTARY INFORMATION: In the
Rules section of this Federal Register,
EPA is approving the State’s SIP
submittal as a direct final rule without
prior proposal because the Agency
views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,

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14:16 Apr 20, 2009

Jkt 217001

or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment. For additional information,
see the direct final rule which is located
in the Rules section of this Federal
Register.
Dated: March 30, 2009.
Walter W Kovalick Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. E9–9043 Filed 4–20–09; 8:45 am]
BILLING CODE P

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 080630798–9258–01]
RIN 0648–AW92

Pacific Halibut Fisheries; Limited
Access for Guided Sport Charter
Vessels in Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:

SUMMARY: NMFS proposes regulations
that would implement a limited access
system for charter vessels in the guided
sport fishery for Pacific halibut in
waters of International Pacific Halibut
Commission (IPHC) Regulatory Areas 2C
(Southeast Alaska) and 3A (Central Gulf
of Alaska). If approved, this limited
access system would limit the number
of charter vessels that may participate in
the guided sport fishery for halibut in
these areas. NMFS would issue a charter
halibut permit to a licensed charter
fishing business owner based on his or
her past participation in the charter
halibut fishery for halibut and to a
Community Quota Entity representing
specific rural communities. All charter
halibut permit holders would be subject
to limits on the number of permits they
could hold and on the number of charter
vessel anglers who could catch and
retain halibut on their charter vessels.
This action is necessary to achieve the
halibut fishery management goals of the
North Pacific Fishery Management
Council. The intended effect is to curtail
growth of fishing capacity in the guided
sport fishery for halibut.
DATES: Written comments must be
received by June 5, 2009.

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ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. You may submit
comments identified by 0648–AW92 by
any one of the following methods:
• Electronic submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal website at
http://www.regulations.gov.
• Mail: P.O. Box 21668, Juneau, AK
99802–1668.
• Fax: 907–586–7557.
• Hand delivery: 709 West 9th Street,
Room 420A, Juneau, AK.
All comments received are part of the
public record and will be posted to
http://www.regulations.gov without
change. All personal identifying
information (such as name, address,
etc.) voluntarily submitted by the
commenter may be publicly accessible.
Do not submit confidential business
information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file format only.
Written comments regarding the
burden-hour estimates or other aspects
of the collection–of–information
requirements contained in this proposed
rule may be submitted to NMFS at the
above address and by e–mail to
[email protected] or fax to
202–395–7285.
Copies of the Environmental
Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis
prepared for this action may be obtained
from the Alaska Region, NMFS at the
address above or from the Alaska Region
website at http://www.fakr.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Jay
Ginter, 907–586–7228.
SUPPLEMENTARY INFORMATION: The IPHC
and NMFS manage fishing for Pacific
halibut (Hippoglossus stenolepis)
through regulations established under
authority of the Northern Pacific Halibut
Act of 1982 (Halibut Act). The IPHC
promulgates regulations governing the
Pacific halibut fishery under the
Convention between the United States
and Canada for the Preservation of the
Halibut Fishery of the North Pacific
Ocean and Bering Sea (Convention),
signed at Ottawa, Ontario, on March 2,
1953, as amended by a Protocol
Amending the Convention (signed at
Washington, D.C., on March 29, 1979).
Regulations developed by the IPHC are
subject to approval by the Secretary of

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tjames on PRODPC75 with PROPOSALS

State with concurrence from the
Secretary of Commerce (Secretary).
After approval by the Secretary of State
and the Secretary, the IPHC regulations
are published in the Federal Register as
annual management measures pursuant
to 50 CFR 300.62. The most recent IPHC
regulations were published March 7,
2008 at 73 FR 12280. IPHC regulations
affecting sport fishing for halibut and
charter vessels in Areas 2C and 3A may
be found in sections 3, 25, and 28 (73
FR 12280, March 7, 2008).
The Halibut Act, at Sections 773c(a)
and (b), provides the Secretary with
general responsibility to carry out the
Convention and the Halibut Act. In
adopting regulations that may be
necessary to carry out the purposes and
objectives of the Convention and the
Halibut Act, the Secretary is directed to
consult with the Secretary of the
department in which the U.S. Coast
Guard is operating.
The Halibut Act at, Section 773c(c),
also provides the North Pacific Fishery
Management Council (Council) with
authority to develop regulations,
including limited access regulations,
that are in addition to, and not in
conflict with, approved IPHC
regulations. Such Council–developed
regulations may be implemented by
NMFS only after approval by the
Secretary. The Council has exercised
this authority most notably in the
development of its Individual Fishing
Quota (IFQ) Program, codified at 50 CFR
part 679, and subsistence halibut fishery
management measures, codified at 50
CFR 300.65. The Council also has been
developing a regulatory program to
manage the guided sport charter vessel
fishery for halibut. This action is
proposed as a step in the development
of that regulatory program.
Management of the Halibut Fisheries
The harvest of halibut occurs in three
basic fisheries—the commercial, sport,
and subsistence fisheries. Additional
fishing mortality occurs as bycatch or
incidental catch while targeting other
species and wastage of halibut that are
caught but cannot be used for human
food.
The IPHC annually determines the
amount of halibut that may be removed
from the resource without causing
biological conservation problems on an
area–by–area basis in all areas of
Convention waters. It imposes catch
limits, however, only on the commercial
sector in areas in and off of Alaska. The
IPHC estimates the exploitable biomass
of halibut using a combination of
harvest data from the commercial,
recreational, subsistence fisheries, and
information collected during scientific

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surveys and sampling of bycatch in
other fisheries. The target amount of
allowable harvest for a given area is
calculated by multiplying a fixed
harvest rate by the estimate of
exploitable biomass. This target level is
called the total constant exploitation
yield (CEY) as it represents the target
level for total removals (in net pounds)
for that area in the coming year. The
IPHC subtracts estimates of all non–
commercial removals (sport,
subsistence, bycatch, and wastage) from
the total CEY. The remaining CEY, after
the removals are subtracted, is the
maximum catch or ‘‘fishery CEY’’ for an
area’s directed commercial fixed gear
fishery.
This method of determining the
commercial fishery’s catch limit in an
area results in a decrease in the
commercial fishery’s use of the resource
as other non–commercial users increase
their proportion of the total CEY. As
conservation of the halibut resource is
the overarching goal of the IPHC, it
attempts to include all sources of fishing
mortality of halibut within the total
CEY. This method for determining the
limit for the commercial use of halibut
has worked well for many years to
conserve the halibut resource, provided
that the other non–commercial uses of
the resource have remained relatively
stable and small. Although most of the
non–commercial uses of halibut have
been relatively stable, growth in the
guided sport charter vessel fishery in
recent years has resulted in this fishery
harvesting a larger amount of halibut
than it did in earlier years. Increases in
the halibut harvest of any non–
commercial fishery reduce the amount
available to the commercial fishery.
History of Charter Vessel Fishery
Management
Until 2007, guided sport fishing for
halibut on charter vessels was governed
only by regulations developed by the
IPHC that were applicable to all halibut
sport fishing. Current IPHC sport fishing
regulations may be found in the annual
management measures referenced above
(at in sections 3, 25, and 28 (73 FR
12280, March 7, 2008)). In summary, the
basic IPHC sport fishing rules for Alaska
stipulate the following:
• A single line with no more than two
hooks attached or a spear;
• A daily bag limit of two halibut of
any size (except for charter vessel
anglers in Area 2C, as explained below);
• A possession limit of two daily bag
limits;
• A sport fishing season of February 1
through December 31;
• A prohibition on sale, trade, or
barter of sport–caught halibut; and

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18179

• A prohibition on filleting,
mutilating, or otherwise disfiguring
halibut on board a fishing vessel except
that each halibut may be cut into no
more than two ventral, two dorsal
pieces and two cheeks with skin on.
The IPHC first adopted sport halibut
fishing rules in 1973, in response to
Federal, state, and provincial agencies
seeking consistency and uniformity in
sport fishing regulations in all IPHC
areas. The IPHC bag limit rule was first
established as three fish per day per
person in 1973, was reduced to one fish
per day in 1974, and raised to two fish
per day in 1975, where it has remained
until present. Similarly, the IPHC
established the sport fishing season for
halibut originally from March 1 through
October 31 in 1973, and changed it for
several years until the current 11-month
season was set in 1986. Finally, during
the years 1984 through 1997, the IPHC
required sport charter vessels to have
IPHC licenses.
The Council has discussed the
expansion of the guided sport charter
vessel fishery for halibut, and the need
to manage it, since 1993. A guideline
harvest level (GHL) for Area 2C and a
separate GHL for Area 3A were adopted
by the Council in 1997. The GHLs by
themselves do not limit the charter
vessel fisheries. Although the Council’s
policy is that the charter vessel fisheries
should not exceed the GHLs, no
constraints were initially recommended
by the Council or imposed on the
charter vessel fisheries for exceeding a
GHL. The Council stated its intent to
maintain a stable charter vessel fishing
season without a mid–season closure.
The Council envisioned ‘‘framework’’
regulations of increasing restrictiveness
depending on the extent to which a GHL
was exceeded. Proposed framework
regulations were published in 2002
(January 28, 2002; 67 FR 3867);
however, NMFS informed the Council
later that year that its framework
regulations could not be implemented
as envisioned. Hence, proposed and
final rule notices were published
(January 28, 2002, 67 FR 3867 and
August 8, 2003, 68 FR 47256,
respectively) establishing the GHLs
without restrictive regulations and
codified at 50 CFR 300.65(c).
The GHLs represent a pre–season
specification of acceptable annual
halibut harvests in the charter vessel
fisheries in Areas 2C and 3A. To
accommodate some growth in the
charter vessel sector while
approximating historical harvest levels,
the Council recommended GHLs based
on 125 percent of the average 1995
through 1999 charter vessel harvest. For
Area 2C the GHL was set at 1,432,000

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lb (649.5 mt) net weight, and in Area 3A
the GHL was set at 3,650,000 lb (1,655.6
mt) net weight.
When the Council recommended
these GHLs, halibut stocks were
considered to be near record high levels
of abundance. To accommodate
decreases and subsequent increases in
abundance, the Council recommended a
system of step–wise adjustments in each
GHL based on a predetermined uniform
measure of stock abundance. The
measure used was the total CEY
determined annually by the IPHC.
Specifically, the Council linked a step–
wise reduction in the GHL in any one
year to the decrease in the total CEY as
compared to the 1999 through 2000
average CEY. For example, if the halibut
stock in Area 2C were to fall from 15 to
24 percent below its 1999 through 2000
average CEY, then the GHL for Area 2C
would be reduced by 15 percent.
Conversely, as the CEY increased from
low levels, the GHL also would increase
in the same step–wise manner.
However, regardless of how high the
total CEY may rise above its 1999
through 2000 average, the GHLs were
not designed to increase above their
maximum amounts.
Annually in October, the Alaska
Department of Fish and Game (ADF&G)
informs the Council and IPHC of the
guided (charter vessel) and non–guided
sport harvest of halibut in Areas 2C and
3A during the previous year. These
estimated harvests are based on a survey
of anglers who report numbers of fish
harvested and the estimated average
weight of fish harvested in each sport
fishery. Because the sport harvest in one
year is estimated and reported in the
following year, the Council does not
know the amount of the sport harvest of
halibut in a particular year until close
to the end of the following year.
Charter vessel harvests of halibut have
steadily increased in recent years
especially in Area 2C and to a lesser
extent in Area 3A. Sport fishing
statistics from ADF&G for Area 2C
indicate an annual increase in charter
vessel halibut harvests from 0.939
million pounds in 1999 to 1.952 million
pounds in 2005. In 2006, the Area 2C
harvest declined 7.6 percent to 1.804
million pounds. In 2007, the most
recent year of charter vessel harvest
estimates, however, the Area 2C harvest
increased again by 6.3 percent to 1.918
million pounds. The GHL for Area 2C
was first implemented in regulations in
2003 at 1.432 million pounds, and
remained at that amount through 2007.
The charter vessel harvest of halibut in
Area 2C in 2003 was 1.412 million
pounds, slightly under the GHL.
However, the annual harvest in the

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following four years (2004 through
2007) averaged 1.856 million pounds,
0.424 million pounds or about 30
percent in excess of the GHL.
Charter vessel harvests of halibut in
Area 3A during the same time period
(1999 through 2007) indicate a slower
but steady growth since 2003 when the
Area 3A GHL was first implemented at
3.65 million pounds. The harvest in
2003 was 3.382 million pounds. This
amount was under the GHL, but
harvests the following four years (2004
through 2007) averaged 3.756 million
pounds. This annual average harvest in
the most recent four years of charter
vessel harvest statistics is slightly less
than three percent above the GHL for
Area 3A. In 2007, the Area 3A harvest
increased to 4.002 million pounds
which exceeded the GHL for this area by
9.6 percent.
Although the charter vessel halibut
fishery in Area 3A has been at or
slightly above its GHL, the Area 2C
fishery clearly has been exceeding its
GHL in recent years. A management
response to the excess halibut harvests
in Area 2C was initiated in 2007 by the
IPHC, NMFS, ADF&G, and subsequently
by the Council. At its annual meeting in
January 2007, the IPHC adopted a
motion to recommend reducing the
daily bag limit for anglers on charter
vessels in Areas 2C and 3A from two
halibut to one halibut during certain
time periods. Specifically, for Area 2C,
the IPHC recommended that the one–
fish daily bag limit should apply to
charter vessel anglers from June 15
through July 30. The IPHC
recommended this temporary bag limit
reduction because it believed its
management goals were at risk by the
magnitude of the charter halibut harvest
in excess of the GHL, especially in Area
2C. The IPHC’s action was not explicitly
designed to manage the charter fishery
to the Council’s GHLs but rather to
initiate some control on what appeared
to be an ever increasing charter vessel
harvest.
In a letter to the IPHC on March 1,
2007, the Secretary of State, with
concurrence from the Secretary, rejected
the recommended one–fish daily bag
limit in Areas 2C and 3A, and indicated
that appropriate reduction in the charter
vessel harvest in these areas would be
achieved by a combination of ADF&G
and NMFS regulatory actions. For Area
2C, the State of Alaska Commissioner of
Fish and Game (State Commissioner)
issued an emergency order to prohibit
retention of fish by charter vessel guides
and crew members (No. 1–R–02–07).
This emergency order was similar to one
issued for 2006. This action was
intended, in conjunction with other

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measures to be implemented by the
Secretary, to reduce the 2007 charter
vessel harvest of halibut to levels
comparable to the IPHC–recommended
bag limit reduction which was
estimated to range from 397,000 (180.1
mt) pounds to 432,000 pounds (195.9
mt).
Regulatory action to remedy this
problem by June 2007, the seasonal
beginning of the principal sport fishing
effort, required the Secretary, through
NMFS, to develop regulations
independent of the Council process. The
preferred alternative selected by NMFS
maintained a two–fish daily bag limit
provided that at least one of the
harvested halibut has a head–on length
of no more than 32 inches (81.3 cm). If
a charter vessel angler retains only one
halibut in a calendar day, that fish may
be of any length. NMFS published
regulations implementing this partial
maximum size limit on June 4, 2007 (72
FR 30714).
The Council also during the first half
of 2007 was considering management
alternatives for the charter vessel
halibut fishery in Area 2C. Unlike the
IPHC, ADF&G, and NMFS actions,
however, the Council’s alternatives were
designed specifically to maintain the
charter vessel fishery to its GHL. In June
2007, the Council adopted a preferred
alternative that contained two options.
The Council recommended that the
selection between the options should
depend on whether the CEY decreased
substantially for 2008. As explained
above, the GHLs for Area 2C and 3A are
linked to the total CEY determined
annually by the IPHC as a basis for
setting the commercial fishery catch
limits in these areas. A sufficient
decrease in the total CEY causes the
GHL for Area 2C to decrease from its
previous level. The Council did not
know in June 2007 how the GHL would
be affected by IPHC action in January
2008. Hence, the Council recommended
a suite of charter vessel fishery
restrictions if the GHL in Area 2C were
to remain the same in 2008 (Option A)
and a different, more restrictive, suite of
restrictions if the GHL were to decrease
in 2008 (Option B). The Council
recommended no change in
management of the charter vessel
fishery in Area 3A because that fishery
appeared stable at about its GHL. A
proposed rule was published December
31, 2007 (at 72 FR 74257) soliciting
comments on both options for
management of the charter vessel
fishery in Area 2C
At its annual meeting in January 2008,
the IPHC set the 2008 total CEY for Area
2C at 6.5 million pounds (2,948.4 mt).
This was a 4.3 million pound (1,950.4

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mt) reduction from the 2007 total CEY
of 10.8 million pounds (4,899.0 mt),
which triggered a reduction in the Area
2C GHL to 931,000 pounds (422.3 mt).
This reduction in the GHL compelled
selection of the more restrictive Option
B for the Area 2C final rule. Option B
imposed a daily bag limit of one halibut
for each charter vessel angler, prevented
charter vessel guides, operators and
crew from harvesting halibut, restricted
the number of lines used to fish for
halibut on a charter vessel, and added
certain recordkeeping and reporting
requirements. These regulations were
published in the Area 2C final rule on
May 28, 2008 (73 FR 30504) that was
effective on June 1, 2008.
The May 28, 2008, final rule was
enjoined by U.S. District Court for the
District of Columbia on June 10, 2008,
(see Order Granting Plaintiffs’ Motion
for a Temporary Restraining Order
(TRO), dated June 11, 2008, and Order
Granting Plaintiffs’ Motion for a
Preliminary Injunction (PI), dated June
19, 2008, Van Valin, et al. v. Gutierrez,
Civil Action No. 1:08–cv–941). Instead
of the one–halibut daily bag limit
contained in the May 28, 2008 rule, the
court ordered that the previous (2007)
rule become effective, which allowed a
two–fish daily bag limit provided that at
least one of the harvested halibut had a
head–on length of no more than 32
inches (81.3 cm).
In its Order Granting the Plaintiffs’
Motion for a Preliminary Injunction,
dated June 19, 2007, the U.S. District
Court determined that the Plaintiffs had
met the burden for granting a
preliminary injunction, including
demonstrating a likelihood of success
on the merits of their claims. The
Plaintiffs argued that NMFS, by
referencing the 2003 GHL rule (68 FR
47256, August 8, 2003) in the May 28,
2008, final rule, bound itself to use
certain procedures found in the
preamble to the 2003 GHL rule,
including the requirement that a GHL
had to be exceeded in order for
management measures to be
implemented. Although such a result
arguably could be read into the
rulemaking discussion found in the
preamble to the 2003 GHL rule, as
evidenced by the U.S. District Court’s
granting of the TRO and PI, NMFS
specifically repudiates such a ‘‘policy.’’
To further clarify NMFS’ position on
repudiating the above policy, NMFS
subsequently withdrew the May 28,
2008, rule that was the basis for the Van
Valin lawsuit (73 FR 52795), and on
December 22, 2008, proposed a separate
rulemaking to implement the one fish
daily bag limit (73 FR 78276). This new
proposal would give effect to the

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Council’s intent to keep the harvest of
charter vessel anglers as close to the
established GHL as the Council’s
proposed management measures will
allow.
This brief history of management of
the charter vessel fishery for halibut
demonstrates its contentiousness.
Charter vessel operators and anglers
strongly resist anything more restrictive
than a two–fish daily bag limit, but open
access in the charter vessel fleet has
resulted in virtual unlimited increases
in charter halibut harvests. The IPHC
balances such increases by decreases in
the commercial halibut catch limit. To
assure the future productivity of the
halibut resource, the IPHC must
maintain the total halibut harvest within
the total CEY. The limited access
program recommended by the Council
and proposed by this action is designed
to be a step toward establishing a
comprehensive program of allocating
the halibut resource between the
commercial and charter vessel fisheries.
Limited Access Management for the
Charter Vessel Fishery
A problem statement adopted by the
Council to guide its decision making
during the 1995 through 2000 period
cited as a concern the overcrowding of
productive halibut grounds due to the
growth of the charter vessel sector as a
concern. In April 1997, during its initial
review of an analysis of management
alternatives, the Council added a
potential cut–off date or ‘‘control date’’
of April 15, 1997—a date after which
new entrants into the charter vessel
fishery are not assured of qualifying for
participation under a moratorium on
new entry or other limited access
program. The next time the Council
considered charter vessel management
issues was in September 1997. At that
meeting, however, it backed away from
further development of a limited access
policy and instead recommended
improved recordkeeping and reporting
requirements and a GHL for Area 2C
and 3A designed to give the charter
vessel fleet 125 percent of its 1995
harvest in each of these areas.
The Council revisited limited access
management for the charter vessel
fishery for halibut in February 2000. At
that meeting the Council made a final
decision on its GHL policy. It also (a)
established a committee to develop a
program that would integrate the charter
vessel fishery into the existing IFQ
program for the commercial fishery, and
(b) decided not to proceed with a
moratorium for the charter vessel
fishery in Areas 2C and 3A in deference
to the State of Alaska developing
localized moratoria within the local area

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management plan process. In April
2000, the Council unanimously decided
to begin analysis of alternatives for
integrating the charter vessel fishery
into the commercial IFQ program. The
Council also accepted its committee’s
recommendation that the new charter/
commercial IFQ program would replace
the GHL program but clarified that the
GHL program must be implemented
first.
In February 2001, the Council revised
its problem statement for expansion of
the IFQ program to charter vessels and
added a moratorium alternative to the
analysis, among other changes. Finally,
in April 2001, the Council adopted the
IFQ program alternative for the charter
vessel fishery, culminating eight years
of debate and Council consideration of
ways to manage the guided sport charter
vessel fishery for halibut. The pool of
halibut that would be allocated under
the charter IFQ program was to be the
same as the GHL—that is 125 percent of
the 1995 through 1999 average harvest.
In June 2001, however, the State of
Alaska representative on the Council
notified the Council of the State’s
intention to move to rescind the
Council’s April 2001 action. The motion
to rescind was made and considered by
the Council at its October 2001 meeting
and it failed. The State’s objections were
based in part on its concerns about the
State charter vessel logbook data on
which initial allocations of charter
vessel fish to individual operators in the
charter vessel sector would be based.
The State was concerned that data from
its 1999 and 2000 charter vessel
logbooks did not accurately reflect
halibut harvest and should not be used
in any management decision–making
process. After months of additional
analysis by the State and review by the
Council’s Scientific and Statistical
Committee (SSC), the Council, in
January 2003, accepted its SSC report
that the charter vessel logbook data were
suitable as a basis for determining
eligibility and initial allocation of
charter vessel quota shares.
In August 2003, NMFS published a
final rule implementing the Council’s
recommended GHL policy (68 FR
47256, August 8, 2003). Following the
Council’s request to implement its GHL
policy before its IFQ policy, NMFS
developed regulations and
administrative systems to integrate the
charter vessel fishery into the
commercial IFQ program. After
extensive development and review of a
proposed rule for the IFQ program
during 2003 and 2004, NMFS sought
confirmation of the Council’s continued
support for the program. In a letter to
the Council dated August 3, 2005, the

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NOAA Assistant Administrator for
Fisheries requested the Council to
confirm its 2001 decision to incorporate
the charter vessel sector into the
commercial IFQ program. In December
2005, after two days of hearing public
testimony, the Council failed to confirm
its 2001 decision. The Council decided,
however, to create a charter halibut
stakeholder committee to examine a
suite of options proposed by the State of
Alaska representative on the Council. In
addition, the Council established a new
control date of December 9, 2005, to
notice the charter vessel industry that
anyone entering the fishery after the
control date would not be assured of
future access should a moratorium or
other limited access system be
developed and implemented that limits
participants in the charter vessel halibut
fishery.
In April 2006, the Council initiated an
analysis for a moratorium on the entry
of new participants in the charter vessel
fishery for halibut in Areas 2C and 3A
using the December 9, 2005 control
date. A year later on March 31, 2007, the
Council adopted a moratorium motion
to recommend to the Secretary. The
motion is available at http://
www.fakr.noaa.gov/npfmc/
currentlissues/halibutlissues/
CharterHalibutMotion307.pdf. The
essence of the proposed moratorium is
to limit entry in the charter vessel
fishery to charter halibut permit
holders. The moratorium is a limited
access system in which permits would
be initially limited to those businesses
that have historically and recently
participated in the fishery according to
certain criteria. The following describes
these proposed criteria, conditions for
transfer of permits, and other aspects of
the program in detail.
The Proposed Action
This action proposes regulations that
would limit the entry of additional
charter vessels into the guided sport
fishery for Pacific halibut in waters of
IPHC Regulatory Areas 2C (Southeast
Alaska) and 3A (Central Gulf of Alaska).
For purposes of this action, a charter
vessel is a vessel that is registered, or
should be registered, as a sport fishing
guide vessel with the Alaska
Department of Fish and Game. This
definition is consistent with the current
definition of ‘‘charter vessel’’ at 50 CFR
300.61. If approved, any person
operating a charter vessel engaged in
halibut fishing in Area 2C or Area 3A
would be required to have on board the
vessel a charter halibut permit
designated for that area.
A charter halibut permit would be
issued to an applicant based on the

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applicant’s participation in Area 2C or
Area 3A during the qualifying period
and recent participation period.
Qualifications for a permit in each area
would be determined independently. To
receive a permit endorsed for Area 2C,
NMFS would only examine that
applicant’s participation in Area 2C. To
receive a permit endorsed for Area 3A,
NMFS would only examine that
applicant’s participation in Area 3A. A
charter halibut permit would be
transferrable or not transferrable based
on certain minimum participation
criteria. Each permit would have an
angler endorsement that specifies the
maximum number of anglers authorized
to catch and retain halibut under the
authority of the permit under which the
vessel is operating.
This action also proposes two special
permits: a community charter halibut
permit and a military charter halibut
permit. A community charter halibut
permit would be issued to a Community
Quota Entity (CQE) as defined at 50 CFR
679.2. A military charter permit would
be issued to a United States Military
Morale, Welfare and Recreation (MWR)
Program. The unique features of these
permits are described below.
Qualifications for Charter Halibut
Permit
The Council recommended
participation requirements for permit
qualification that take into account
historic participation during a
qualifying period and during a recent
participation period. Participation
during both periods would demonstrate
a qualifying dependence on the charter
vessel fishery for halibut. Charter
halibut permits would be awarded only
to persons who participated as owners
of a charter halibut business that was
licensed by the ADF&G. The proposed
rule would adopt the Council’s
recommendation and award permits to
applicants that participated as ADF&G
licensed fishing guide business owners
in a qualifying period and a recent
participation period.
Qualifying period and recent
participation period. The qualifying
period would be the sport fishing season
established by the IPHC in 2004 and
2005. The sport fishing season in both
of those years was February 1 through
December 31. The recent participation
year would be the year prior to
implementation of this proposed action.
In recommending this action, the
Council was not certain exactly what
year this proposed action, if approved,
would be implemented; hence, the year
prior to that also was unknown.
The Council contemplated that the
year prior to implementation could be

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2007 or 2008. If approved, the final rule
for this action will specify the year prior
to implementation and the rationale for
that specification. In specifying this
year, NMFS will take into account the
most recent year for which data are
available, among other things. This
proposed rule does not attempt to define
the start of the program and thereby the
year prior to it, but instead refers to the
Council’s ‘‘year prior to
implementation’’ as the ‘‘recent
participation period’’ or ‘‘recent
participation year.’’ Hence, the
proposed rule text that follows does not
specify the recent participation year.
That specification will occur in the final
rule, pending approval of this action.
To qualify for a permit, an applicant
would have to have reported at least five
logbook trips during the qualifying
period and five logbook trips during the
recent participation period. The Council
wanted to ensure that permits went only
to persons who were active in the
charter halibut fishery at or above a
minimal level in both periods. The
Council concluded that a five–trip level
of participation showed active
participation in the charter halibut
fishery. The purpose of requiring active
participation in both periods is to make
sure that the applicant is an historical
participant and a recent participant in
the charter halibut fishery. The Council
did not intend a permit to be issued to
an applicant to operate in this fishery
unless the applicant met both criteria.
Thus, an applicant that operated a
charter halibut fishing business during
the recent participation period, but not
the qualifying period, would not qualify
for a charter halibut permit. Conversely,
an applicant that operated a charter
halibut fishing business during the
qualifying period, but not the recent
participation period, would not qualify
for a charter halibut permit.
Charter halibut permits would not be
awarded to persons who purchased a
charter fishing business that met some
or all of the participation requirements
but who themselves do not meet the
participation requirements. The Council
did not recommend that NMFS award
permits based on business purchase
agreements and therefore it did not
analyze criteria to recognize such
agreements. Hence, NMFS does not
propose to recognize private agreements
for the following reasons: (a) the
Council did not recommend this policy;
(b) a person who met all the
participation requirements for a
transferable permit could apply for the
permit and transfer it to another person,
if that is required by their private
agreement; (c) a person who meets only
the requirements for a nontransferable

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permit, should not be able to transfer
that permit; and (d) awarding a permit
based on one person meeting the
participation requirements in the
qualifying period and another person
meeting the participation requirements
in the recent period would increase the
total number of permits which would be
contrary to the Council’s intent. NMFS
concluded that if one person did not
participate in both periods—the
qualifying period and the recent
participation period—that person
should not receive a charter halibut
permit in the initial award of permits.
To enter the fishery, that person would
have to buy a permit from a person that
met the participation requirements in
both periods.
Number of permits. If an applicant for
a charter halibut permit meets the
minimum participation requirements
during a qualifying year and the recent
participation year, NMFS would
determine how many permits the
applicant would receive and how many
of those, if any, would be transferable
permits.
If an applicant qualified for any
permits, NMFS would issue to the
applicant the number of permits equal
to (a) the applicant’s total number of
bottom fish logbook fishing trips in a
qualifying year, divided by 5, or (b) the
number of vessels that made those trips,
whichever number is lower. The
Council recommended that the number
of permits issued to a charter fishing
business would be ‘‘based on the
number of trips summed for all vessels
in [its] best year of the qualification
period.’’ Further, ‘‘[a] business would be
limited to the number of permits equal
to the highest number of vessels used in
any one year during the qualifying
period.’’ NMFS interprets this to mean
that the number of permits would be the
number of bottomfish logbook trips in
2004 or 2005 divided by five or the
number of charter vessels operated by a
business during 2004 or 2005,
whichever number is lower. The
applicant would select which year in
the qualifying period—2004 or 2005—
NMFS would use.
A conservative interpretation is
reasonable because an objective of
limited access programs, including this
one, is to reduce the amount of fishing
effort in a fishery. Hence, NMFS would
issue the number of permits equal to the
lesser of (a) bottom fish logbook fishing
trips divided by five (the minimum
number of trips to qualify for a non–
transferable permit) or (b) the number of
charter vessels that made those trips in
one of the qualifying years.
Although the Council motion refers to
an applicant’s ‘‘best year of the

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qualification period,’’ the Council was
silent on how an applicant’s ‘‘best year’’
is determined. NMFS proposes that the
applicant should select its best year.
Thus, the proposed rule uses the term
‘‘applicant–selected year’’ rather than
the applicant’s ‘‘best year.’’ The
‘‘applicant–selected year’’ means the
year in the qualifying period—2004 or
2005—that the applicant selects for
NMFS to use in determining how many
permits the applicant will receive and
whether the permits will be transferable
or non–transferable. NMFS proposes
that the applicant select the applicant’s
best year because applying the rules for
the number of permits and transferable
permits could have different results. For
example, an applicant may receive a
greater number of permits using the
applicant’s participation in one year but
a greater number of transferable permits
using the applicant’s participation in
another year. Because the year selected
could make a difference, the applicant
should choose which outcome is more
important to the applicant.
To determine the number of permits
an applicant may be awarded and
whether those permits are transferable
or nontransferable, NMFS would create
the official charter halibut record. This
record would contain the information
about participation in the charter
halibut fishery that NMFS would use to
evaluate applications for charter halibut
permits. NMFS would derive the official
record from ADF&G logbook records.
For each applicant, NMFS would make
two determinations for each of the two
qualifying years based on the official
record. First, NMFS would determine
the number of trips that the applicant
reported, divide that number by five,
and round it down to the nearest whole
number. Second, NMFS would
determine the number of vessels that
made those trips. NMFS would then
inform the applicant of these numbers
for the years 2004 and 2005.
The applicant would select 2004 or
2005 as the year that NMFS should use
to determine the applicant’s permits.
Using the applicant–selected year,
NMFS would award the applicant the
number of permits that is equal to the
lower of the first determination—the
total number of trips reported in the
applicant–selected year, divided by five
and rounded down to the nearest whole
number, or the second determination—
the number of vessels that made those
trips in the applicant–selected year. For
example, an applicant in its selected
qualifying year reported 23 logbook
trips using three vessels. One vessel
made 16 trips, another vessel made five
trips, and another vessel made only two
trips. Under the proposed rule, NMFS

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would calculate 23 ÷ 5 = 4.6 which
would be rounded down to four. But
this number of permits would be limited
by the number of vessels that made all
the logbook trips in the applicant–
selected year which was three. Hence,
the applicant would be awarded three
permits.
A limit on the number of permits
equal to the number of vessels used in
the applicant–selected year is necessary
to prevent expansion in the number of
vessels that could operate in the charter
halibut fishery if this program were
approved. If the number of permits were
based only on the number of trips
divided by five, the number of vessels
could exceed the number of vessels that
participated before adoption of this
limited access program, which would be
antithetical to the purposes of this
program.
Designation of transferable permits.
After determining the total number of
permits, NMFS would determine which
permits are transferable and which are
nontransferable. An applicant would
receive a transferable permit for each
vessel that made at least 15 trips in the
applicant–selected year and at least 15
trips in the recent participation year.
The rest of the applicant’s permits, if
any, would be non–transferable permits.
Under the proposed rule, NMFS
would issue to an applicant the number
of transferable permits equal to the
number of vessels that made at least 15
logbook fishing trips or more in the
applicant–selected year and at least 15
trips in the recent participation year.
Applicants that do not have the
minimum of 15 logbook fishing trips in
each period but qualify for one or more
permit(s) with a minimum of five
logbook fishing trips, would receive
only non–transferable permit(s). Hence,
in the example above of an applicant
with 23 logbook trips using three
vessels, that applicant would receive
three permits. Based on the 15–trip
minimum criterion, however, this
applicant would receive only one
transferable permit and the other two
permits would be non–transferable.
This two–tiered qualification criterion
would create two types of permits: a
nontransferable permit that would cease
to exist when the entity that holds the
permit no longer exists and a
transferable permit that would have
value as an asset that could be
transferred to another business when
the permit holder decided to leave the
fishery. The Council recommended
transferable permits to establish a
market–based system of allocating
access to the fishery after the initial
allocation of permits. Persons wanting
to enter the charter halibut fishery could

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obtain permits from persons leaving the
fishery. The Council concluded this
would be more reasonable and efficient
than a continual permit–application–
and–permit–award process by the
government. But the Council did not
recommend that all permits be
transferable. The Council recommended
two types of permits—transferable and
non–transferable—as proposed by this
action.
This part of the Council’s
recommendation reflects a balance of
the Council’s objective to reduce fishing
effort and its objective to minimize
disruption to the charter fishing
industry. Requiring a high minimum
number of logbook fishing trips would
result in a sudden reduction of charter
halibut operations because many
existing charter vessel operators would
not be able to qualify. On the other
hand, requiring a low minimum number
of logbook fishing trips would result in
little or no reduction in potential
harvesting capacity. The two–tiered
qualification criterion is designed to
allow a business with relatively less
participation in the charter halibut
fishery to continue its operation while
reducing potential harvesting capacity
over time by not allowing that permit to
be transferred to another entity.
Angler endorsement on permits. Each
charter halibut permit would have an
angler endorsement number. The angler
endorsement number on the permit
would be the maximum number of
anglers who are catching and retaining
halibut that a vessel operator can have
on board the vessel. The angler
endorsement would not limit the
number of passengers that a charter
vessel operator could carry, only the
number who may catch and retain
halibut.
The Council recommended that the
angler endorsement number on an
applicant’s permits would be the
highest number of clients that the
applicant reported on any logbook
fishing trip in 2004 or 2005, subject to
a minimum endorsement of four. The
proposed rule adopts that
recommendation, except that it uses the
term ‘‘angler’’ rather than ‘‘client.’’ The
term ‘‘angler’’ includes all persons,
paying or non–paying, who use the
services of the charter vessel guide. The
charter halibut permit, once issued,
would limit the number of charter
vessels anglers—paying or non–paying
persons who use the services of a
charter vessel guide—who can catch
and retain halibut. Thus, under the
proposed rule, the ‘‘angler endorsement
number’’ on the permit would be the
highest number of anglers who caught
and retained halibut reported on any of

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the applicant’s logbook fishing trips in
2004 or 2005.
A vessel operator would be able to
stack permits. For example, if a vessel
operator has two charter permits on
board, one with an angler endorsement
of four and one with an endorsement of
six, then the vessel operator could have
a maximum of 10 charter vessel anglers
on board who are catching and retaining
halibut if the operator is otherwise
authorized to carry 10 passengers. If
other provisions of law, such as safety
regulations or operation for hire
regulations, prevent 10 anglers from
being on board the vessel, the charter
halibut permits would not allow the
vessel operator to violate those
provisions of law.
The rationale for the proposed angler
endorsement is that this proposed
action is designed to limit the number
of charter vessels participating in the
charter halibut fishery; not to prevent all
expansion of effort by charter vessel
operators. This provision allows permit
holders to increase their effort
somewhat by increasing the number of
anglers that permit holders take on some
charter vessel fishing trips, assuming
that vessel operators did not take their
historical maximum number of anglers
out on every trip in the qualifying
period. This expansion would be
constrained by factors such as the
maximum number of anglers recorded
in an ADF&G logbook during 2004 or
2005, the size of the charter vessel using
the permit, the market for charter trips,
and any safety or other regulations that
limit the number of anglers that may be
on board a vessel.
The rationale for the minimum angler
endorsement number of four, regardless
of a lower number reported for an
applicant’s logbook fishing trip, is that
this provision would not increase the
number of permits in the fishery, and an
angler endorsement of less than four
may not allow economically viable
fishing trips.
The applicant–selected year, as it is
described above, would not apply to the
determination of angler endorsements
for the number and type of permits.
NMFS would endorse the permits with
an angler endorsement number equal to
the highest number of anglers on any of
the applicant’s logbook trips in 2004 or
2005, except as noted above for a
minimum angler endorsement. This
would be consistent with the Council’s
motion. Thus, the applicant’s selected
year—2004 or 2005—that NMFS would
use to determine the number and type
of permits may not be the same year that
NMFS would use to determine the
angler endorsement number on those
permits. For example, an applicant may

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select 2004 for purposes of determining
the number and type of permits, but the
highest number of anglers recorded on
any trip during the qualification period
may have occurred in 2005. In this case,
NMFS would award the applicant the
number and type of permits based on
the applicant’s 2004 trips and would
endorse the permits with an angler
endorsement number based on a 2005
trip.
Standards for Initial Allocation
A person would be required to meet
several basic standards to initially
receive a charter halibut permit. These
standards include (a) timely application
for a permit, (b) documentation of
participation in the charter vessel
fishery during the qualifying and recent
participation periods by ADF&G
logbooks, and (c) ownership of a
business that was licensed by the State
of Alaska to conduct the guided sport
fishing reported in the logbooks.
Timely application. The application
process is discussed more fully below;
however, a basic standard for eligibility
to receive an initial charter halibut
permit would be to apply for the permit
during an application period. An
application period of no less than 60
days would be announced in the
Federal Register. Applications
submitted by mail, hand delivery, or
facsimile would be accepted if
postmarked or hand delivered or faxed
no later than the last day of the
application period. Electronic
submissions other than facsimile would
not be acceptable.
Logbook documentation. The
documentation to prove qualifying
participation in the charter vessel
fishery would be limited to saltwater
charter vessel logbooks issued by the
ADF&G. There are several reasons for
relying only on the ADF&G charter
vessel logbook database. First, ADF&G
has regulated saltwater charter fishing
in the State of Alaska through
registrations, licenses, and logbooks
since 1998. These requirements apply to
all charter fishing, including vessels
targeting halibut. Although ADF&G
regulations use the term ‘‘sport fishing
services,’’ the business activity that
ADF&G regulates is essentially the same
as the guided sport charter vessel
fishery for halibut that is the subject of
this proposed rule. Second,ADF&G
supplied aggregated charter vessel
logbook data to the Council to assist it
in its analysis of past participation in
the charter halibut fishery in Areas 2C
and 3A. Third, the Council relied on
these data in part to make its decision
to recommend limiting entry into this
fishery and NMFS, in turn, has relied on

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the Council’s analysis of alternatives to
approve publication of this proposed
rule.
The basic unit of participation for
receiving a charter halibut permit would
be a logbook fishing trip. As defined in
the proposed rule, a ‘‘logbook fishing
trip’’ would be a bottom fish logbook
fishing trip during the qualifying years,
2004 and 2005, and a halibut logbook
fishing trip in the recent participation
year. A logbook fishing trip would be an
event that was reported to ADF&G in a
logbook in accordance with the time
limit required for reporting such a trip
that was in effect at the time of the trip.
The required time limit differed in
minor ways in 2004, 2005, 2007, and
2008, and depended on when the trip
occurred; however, the latest date for
reporting a trip was January 15 of the
year after it occurred. If a trip was not
reported within those time limits,
NMFS would not consider it a logbook
fishing trip for purposes of this
proposed rule, and it would not serve as
the basis for NMFS to issue a charter
halibut permit. Hence, a permit
applicant could not add a trip to the
official record years after the trip should
have been reported to the State.
The proposed rule, like the Council’s
preferred alternative, relies on the same
method of counting trips that was used
in the Council’s analysis. In the
analysis, each trip in a multi–trip day
counts as one logbook trip, and each day
on a multi-day trip counts as one
logbook trip. For example, a business
owner who had two trips in one day
would be considered to have had two
logbook trips. Another business owner
that had a trip that lasted two days also
would be considered to have had two
logbook trips. This accounting of trips
deviates from the ADF&G method of
counting logbook trips when fishing
continues over multiple days. ADF&G
required a business that took anglers on
a multiday trip to submit logbook
information at the end of the trip, not at
the end of the day. Hence, a trip could
represent different measures of effort
depending on the number of days a
charter vessel fished with the same
group of anglers. The Council analysis
standardized the measure of effort of a
trip by separating each day fished on a
multi-day trip and counted each day as
a trip. The Council relied on its analysis
in adopting its preferred alternative.
Therefore, the proposed rule is based on
the same method of counting trips that
was used in the analysis.
The same issue does not exist for halfday trips. ADF&G required business
owners to submit a logbook trip entry
after a half-day trip. Hence, ADF&G
logbook data, the Council’s analysis,

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and the proposed rule count a half day
trip as one trip.
This action proposes additional
definitions for a ‘‘bottomfish logbook
fishing trip’’ and a ‘‘halibut logbook
fishing trip.’’ To document participation
in 2004 and 2005, an applicant must
prove bottomfish logbook fishing trips,
and to prove participation in the recent
participation year an applicant must
prove halibut logbook fishing trips. The
Council anticipated the distinction
between these terms in its moratorium
motion. The reason for this distinction
is that in 2004 and 2005, ADF&G did
not require businesses to report the
number of halibut that were kept, or
kept and released, for each logbook
fishing trip. In 2004 and 2005, ADF&G
required businesses to report bottomfish
effort for each logbook fishing trip. The
bottomfish effort data was (1) the State
statistical area where bottomfish fishing
occurred, (2) the boat hours that the
vessel engaged in bottomfish fishing and
(3) the number of rods used from the
vessel in bottomfish fishing. ADF&G
attached instructions to each logbook
that stated that bottomfish fishing effort
included effort targeting halibut.
Therefore, for purposes of this action,
NMFS would count any of these three
types of bottomfish information about a
trip in the qualifying period as a
bottomfish logbook fishing trip for
purposes of qualifying for one or more
permit(s). As with the reporting of the
trip itself, the business owner would
have had to report these data within
ADF&G time limits. An applicant could
not change or add data that would make
a trip a bottomfish logbook fishing trip
or halibut logbook fishing trip after the
trip should have been reported to
ADF&G.
In 2006, ADF&G changed its required
logbook report to specify halibut data
for each logbook fishing trip. The
required logbook data included the
number of halibut kept, the number
released, and the boat hours that the
vessel engaged in bottomfish fishing.
Because these data will be more specific
to halibut in the recent participation
year, NMFS intends to rely on the
halibut logbook data as proof of an
applicant’s participation during the
recent participation year. If a business
owner, within ADF&G time limits,
reported to ADF&G the number of
halibut kept or caught and released,
NMFS would count that trip as a halibut
logbook fishing trip and the trip would
count toward the applicant’s
participation requirement in the recent
participation year.
A halibut logbook fishing trip also
could be a trip where the business
owner, within ADF&G time limits,

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reported ‘‘boat hours that the vessel
engaged in bottomfish fishing.’’ An
applicant could use such a report as one
way to document a halibut logbook
fishing trip. The logbook data for ‘‘boat
hours’’ that a business had to report in
2007 and 2008 was ‘‘No. of Boat Hours
Fished this Trip’’ with bottomfish as a
targeted species. ADF&G instructions for
the 2007 and 2008 logbooks state that
bottomfish include halibut.
Documentation of boat hours fishing for
bottom fish would capture trips where
charter vessel anglers were targeting
halibut but did not catch any. Therefore,
this action proposes to define a halibut
logbook fishing trip as a logbook fishing
trip in which the applicant reported the
number of halibut kept or released or
the boat hours that the vessel engaged
in bottomfish fishing.
Licensed business owner. Charter
halibut permits would be issued to the
ADF&G licensed business owner. The
Council’s moratorium recommendation
and this action propose eligibility for a
charter halibut permit to be limited to
the holder of an ADF&G business owner
license because information on
participation in the charter vessel
fishery for halibut is organized by this
license. Hence, a person would not meet
this standard and qualify for a charter
halibut permit if he or she held only a
guide license or owned a charter vessel
but did not hold an ADF&G business
owner license during the qualifying and
recent participation years.
Issuing charter halibut permits only to
qualified holders of ADF&G business
owner licenses is appropriate for several
reasons. First, the owner of the charter
vessel fishing business had to obtain a
business owner license from ADF&G.
Second, the business owner was
required to register with ADF&G the
vessel to be used as a charter vessel.
Third, the ADF&G business owner
license number was required to be
recorded on each sheet of the logbook
because this license authorized the
guide to provide fishing guide services
to the charter vessel anglers. Finally, the
business owner was responsible for
submitting the logbook sheets to ADF&G
within the required time limits. In
summary, every charter vessel fishing
trip was authorized by, and made
pursuant to, an ADF&G business owner
license. This license has been variously
referred to as a sport fishing operator
license, a sport fish business owner
license, an ADF&G sport fish business
license, or simply an ADF&G business
license. This action proposes the term
‘‘ADF&G business owner license’’
exclusively to refer to this license issued
by ADF&G.

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Application and Issuance Process
As noted above, an application period
of no less than 60 days would be
officially announced in the Federal
Register. NMFS would use other media
in addition to the Federal Register to
announce the application period and
encourage potential applicants to
submit applications for charter halibut
permits. A finite application period of
reasonable length is necessary to resolve
potential claims for permits by two or
more persons for the same logbook
fishing trip history. NMFS would not
credit the same logbook fishing trip to
more than one applicant, and would not
allow the participation history of one
business owner to support issuance of a
permit(s) to more than one applicant.
Application forms would be available
through ADF&G and NMFS offices and
on the NMFS, Alaska Region, web site
at http://www.alaskafisheries.noaa.gov/.
Electronic submission of the application
would not be acceptable, however,
because a signature on the application
would be required. The application
form would include a statement that, by
signature, the applicant attests that legal
requirements were met and all
statements on the application are correct
under penalty of perjury.
Official record. Before the start of the
application period, NMFS would create
an official record of charter vessel
participation in Area 2C and 3A during
the qualifying and recent participation
years. The official record would be
based on data from ADF&G because the
State of Alaska has regulated charter
fishing in the past and has the data on
past participation in the charter halibut
fishery. The official record would link
each logbook fishing trip to an ADF&G
business owner license and to the
person—individual, corporation,
partnership or other entity—that
obtained the license. Thus, the official
record would include information from
ADF&G on the persons that obtained
ADF&G Business Owner Licenses in the
qualifying period and the recent
participation period; the logbook fishing
trips in those years that met the State of
Alaska’s legal requirements; the
business owner license that authorized
each logbook fishing trip; and the vessel
that made each logbook fishing trip.
NMFS would compare all timely
applications to the official record. If an
applicant submits a claim that is not
consistent with the official record,
NMFS would allow the applicant to
submit documentation or further
evidence in support of the claim during
a 30-day evidentiary period. If NMFS
accepts the applicant’s documentation
as sufficient to change the official

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record, NMFS would change the official
record and issue charter halibut
permit(s) accordingly. If NMFS does not
agree that the further evidence supports
the applicant’s claim, NMFS would
issue an initial administrative
determination (IAD). The IAD would
describe why NMFS is initially denying
some or all of an applicant’s claim and
would provide instructions on how to
appeal the IAD.
Appeals. An applicant may appeal the
IAD to the Office of Administrative
Appeals (OAA) pursuant to 50 CFR
679.43. NMFS would issue interim
permits to applicants that filed timely
applications and whose appeal is
accepted by OAA. All interim permits
would be non–transferable. NMFS
would limit interim permits on appeal
to applicants who applied for charter
halibut permits within the application
period specified in the Federal Register.
This means that an applicant that is
denied a permit because its application
was late would not receive an interim
permit. This limitation is necessary for
NMFS to know the universe of
applications at the end of the
application period. The grounds for
treating a late application as timely filed
are extremely narrow. Hence, NMFS
would not issue an interim permit to an
applicant that filed a late application if
that applicant has an extremely limited
chance of prevailing on appeal.
When an appeal is accepted by OAA,
interim permits would be issued as
follows. If, according to the official
record, the applicant should receive no
permits, the applicant on appeal would
receive one interim permit with a angler
endorsement of four. If, according to the
official record, the applicant on appeal
should receive some permits, the
applicant on appeal would receive the
number of permits and the angler
endorsement number on those permits
that are substantiated by the official
record as it exists when the applicant
appeals, not the number and types of
permits that applicant claims on appeal.
All permits issued during an appeal
would be interim, non–transferable,
permits. Until NMFS makes a final
decision on the appeal, the permit
holder would not be able to transfer any
permits. Potentially, a recalculation of
one variable for an applicant could
result in a redetermination of the
number and type of permits. For
example, if, as a result of an appeal, an
applicant selects 2004 as its best year
rather than 2005, NMFS would
recalculate an applicant’s number of
permits or type of permits. Making
permits that are under appeal non–
transferable until the appeal is resolved
would prevent an applicant from

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transferring a permit for which it
ultimately may not qualify. This is
necessary to prevent undermining the
purpose of the proposed limited access
system.
Issuance to business owners. As noted
above, charter halibut permits would be
issued to persons that were the ADF&G
licensed business owners that met the
minimum qualifications. The term
‘‘person’’ includes an individual,
corporation, firm, or association (50 CFR
300.61). If a corporation held the
ADF&G business owner license that
authorized the logbook fishing trips that
met the participation requirements for a
charter halibut permit, NMFS would
issue the permit to the corporation. If a
partnership held the ADF&G business
owners license, NMFS would issue the
permit to the partnership. If an
individual held the ADF&G business
owners license, NMFS would issue the
permit to that individual. Hence, on
successful application, NMFS would
issue a charter halibut permit to the
entity—individual, corporation,
partnership or other entity—that held
the ADF&G business owner license that
authorized the logbook fishing trips that
met the participation requirements.
NMFS would have no obligation to
determine the owners of a corporation
or members of a partnership that
successfully applied for a permit. NMFS
would follow the form of ownership—
individual or otherwise—that the
business used to obtain legal
authorization from the State of Alaska
for its past participation in the charter
halibut fishery.
Generally, the entity that applies for
one or more charter halibut permits
would be the same entity that held the
ADF&G business owners license that
authorized the trips that met the
participation requirements in the
qualifying period and in the recent
participation period. The only exception
to this requirement is if the entity that
held these licenses is an individual who
has died, or a non–individual entity,
such as a corporation or partnership,
that has dissolved.
If an individual who met the
participation requirements for a charter
halibut permit has died, the personal
representative of the individual’s estate
may apply for the permit in place of the
deceased individual. The applicant who
applies as a personal representative
must provide documentation of the
individual’s death and documentation
that the applicant has been appointed
by a court as the personal representative
of the deceased individual’s estate. If
the decedent would have received any
permits, the personal representative can
instruct NMFS as to who, according to

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the applicant’s duties as personal
representative, should receive those
permits.
If a non–individual entity, such as a
corporation or partnership, met the
requirements for a permit but that entity
has dissolved, the successors–in–
interest to the entity may apply for that
permit or permits. The applicant who is
applying as a successor–in–interest to a
corporation or partnership or other
dissolved entity must provide
documentation that the entity has
dissolved and that the applicant is a
successor–in–interest to the dissolved
entity. If more than one applicant
proves that he or she is a successor–in–
interest to the dissolved entity, NMFS
would issue the permits for which the
dissolved entity qualifies in the names
of all applicants that submit timely
applications and that prove they are
successors–in–interest. For example, a
partnership has dissolved and two
former partners submit separate and
timely applications. If each applicant
proves that they are a successor–in–
interest to the partnership, NMFS would
award the permits in the names of the
two successors–in–interest that applied.
Similarly, if a corporation qualifies for
permits but has dissolved and three
former shareholders of the corporation
submit timely applications, each
proving that they are a successor–in–
interest to the corporation; NMFS would
award the permits in the names of the
three former shareholders. If only two of
the three former shareholders submit
timely applications, however, NMFS
would award the permits in the names
of the two former shareholders that
submitted timely applications.
NMFS would not determine
percentage of ownership of a dissolved
partnership or corporation. If a dispute
exists among former partners or
shareholders as to how they should
share ownership of a permit or permits,
that dispute is properly resolved as a
civil matter by a court.
The proposed rule makes explicit a
guiding principle NMFS would apply in
evaluating applications for charter
halibut permits. The logbook fishing trip
activity of one person that is used for
permit qualification cannot lead to more
than one person receiving a charter
halibut permit. The only possible
exception is described above, when
NMFS might award a permit in the
name of several persons who are
successors–in–interest to a dissolved
entity. Even then, NMFS would not
issue multiple permits, but only issue
permits in the names of several persons
the number of permits for which the
dissolved entity qualified. Subject to
that exception, the proposed rule

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prohibits NMFS from crediting the same
logbook fishing trip to more than one
applicant, from crediting logbook
fishing trips made pursuant to the same
ADF&G Business Owners License to
more than one applicant, and from
allowing participation by one person in
the charter halibut fishing business to
support issuance of permits to more
than one applicant.
Unavoidable Circumstances
The Council and NMFS recognize that
certain unavoidable circumstances
could prevent an applicant from
participating in either the qualifying
period or recent participation period
despite the applicant’s intention. In
developing a limited exception to allow
for unavoidable circumstances, NMFS
was guided in part by the unavoidable
circumstance provisions in the License
Limitation Program (LLP) for groundfish
and crab fisheries at 50 CFR 679.4(k).
This action proposes similar criteria for
an unavoidable circumstance as used in
the LLP regulations (50 CFR 679.4(k)(8)
and (9)). Basically, an applicant must
demonstrate that:
• It participated during either the
qualifying period or the recent
participation period;
• It had a specific intent to participate
in the period, either the qualifying
period or the recent participation
period, that the applicant missed;
• The circumstance that thwarted the
intended participation was (a)
unavoidable, (b) unique to the
applicant, (c) unforeseen and
unforeseeable;
• The applicant took all reasonable
steps to overcome the problem; and
• The unavoidable circumstance
actually occurred.
Missed recent participation period.
An applicant who meets the
participation requirements for the
qualifying period (2004 and 2005) may
claim that it did not meet the
participation requirement in the recent
participation period year due to an
unavoidable circumstance. Assuming
the applicant is able to successfully
demonstrate that it meets the criteria for
an unavoidable circumstance, NMFS
proposes to award the applicant the
number and type of permits that the
applicant would have received if its
participation during the recent
participation period had been the same
as its participation during the qualifying
period. The Council did not address this
issue. However, NMFS determined that
substituting the qualifying period
participation for actual participation
during the recent participation period
best reflects what the Council was trying
to achieve by recommending that an

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unavoidable circumstance exception be
included in this program.
Missed qualifying period
participation. Similarly, an applicant
who met the recent participation
requirement may claim that it did not
meet the qualifying period (2004 or
2005) participation requirement because
of an unavoidable circumstance.
Assuming the applicant is able to
successfully demonstrate that it meets
the criteria for an unavoidable
circumstance, NMFS could not use
logbook data from the qualifying period
to determine the applicant’s number of
permits, whether the permits would be
transferable, or the area and the angler
endorsements on the permits, because
the applicant would have either no
logbook data from the qualifying period
or insufficient logbook trips to receive
any permits. NMFS proposes that the
applicant who proves an unavoidable
circumstance in the qualifying period
would receive one non–transferable
permit with an angler endorsement of
four, unless the applicant demonstrates
that it likely would have met the
participation requirements for more
permits, one or more transferable
permits, or a higher angler endorsement.
In that case, the applicant would receive
the number and type of permits, and the
angler endorsement on those permits,
that result from the level of
participation that the applicant
demonstrates that it likely would have
attained.
The proposed rule, in essence, adopts
a default provision for an applicant that
successfully demonstrates that it meets
the criteria for unavoidable
circumstances, namely a non–
transferable permit with an angler
endorsement of four. This provision, at
a minimum, would allow an applicant
to participate in the fishery. This
provision also would allow an applicant
to receive more permits, or transferable
permits, or an angler endorsement
greater than four, only if the applicant
shows that it likely would have
participated at that higher level but for
the unavoidable circumstance.
For example, if an applicant states
that it should receive one transferable
charter halibut permit with an angler
endorsement of six, then the applicant
must show that the applicant likely
would have reported at least 15 logbook
fishing trips with a vessel in 2004 or
2005 and would have taken six anglers
on one of those trips. The applicant
would be required to show this by a
preponderance of the evidence. This
means that the applicant must show that
it is more likely than not that it would
have met that participation requirement,
were it not for the unavoidable

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circumstance. In the example, if the
applicant experienced an unavoidable
circumstance in 2004, the applicant
could introduce evidence of its
participation in 2003. Or if the applicant
already had bookings in 2004, it could
introduce evidence of those bookings.
These are just examples and are not
intended to indicate that any of these
submissions would be sufficient to
demonstrate unavoidable
circumstances.
Limitation on unavoidable
circumstance provision. NMFS is
proposing that the unavoidable
circumstance exception be limited to
persons who would be excluded from
the fishery entirely unless their
unavoidable circumstance was
recognized. The unavoidable
circumstance exception is not intended
to upgrade the number or type of
permits an applicant could receive. For
example, NMFS would not accept an
unavoidable circumstance claim to
upgrade a non–transferable permit to a
transferable permit based on an
anticipated 15 logbook trips in 2005 that
did not occur. NMFS concluded that the
proposed unavoidable circumstance
exception should be narrow, and that, if
an applicant could get any charter
halibut permit based on the applicant’s
actual participation, the applicant
would be limited to that permit.
Military exemption. This action
proposes a military exemption from the
participation requirement during the
qualifying period. This exception is
designed to benefit persons assigned to
active military duty in the qualifying
period. An applicant for the military
exception would have to meet the recent
participation requirement, i.e., at least
five halibut logbook trips in the recent
participation period.
To qualify for a military exemption, a
person would have had to be assigned
to active military duty as a member of
the National Guard or a reserve
component. This limitation stems from
public testimony to the Council about
the need for a military exemption for
persons called up to serve during the
qualifying period as a member of the
National Guard or a reserve component.
This exemption would not apply to
persons in the regular armed forces. The
rational for not including persons in the
regular armed forces is that a person’s
decision to enlist in the regular armed
services is a voluntary career choice and
is not unavoidable. Hence, such a
person serving during the qualifying
period chose a military occupation in
lieu of a charter vessel occupation.
NMFS recently considered a similar
issue in the context of allowing a
temporary military transfer of IFQ Quota

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Share and, for similar reasons, only
allowed such a transfer by a member of
the National Guard or a member of a
reserve component (73 FR 28733, May
19, 2008).
In addition, to receive a military
exemption, an applicant would have to
demonstrate that the applicant intended
to participate in the charter halibut
fishery and that the applicant’s intent
was thwarted by the applicant’s order to
report for military service. The Council
motion stated that a military service
applicant would have to show intent to
participate before the qualifying period.
NMFS concludes, however, that the
Council did not intend to exclude a
military applicant who could show an
intent to participate during the
qualifying period. Therefore, NMFS
would treat an applicant who can show
an intent to participate during the
qualifying period the same as it would
treat an applicant who could show an
intent to participate before the
qualifying period, as requested by the
Council, as long as an applicant could
demonstrate their intent to participate
was thwarted by their order to report for
military service.
The military exemption is designed to
benefit persons who would otherwise be
completely excluded from receiving any
charter halibut permits despite their
intention to meet the participation
requirement during the qualifying
period. If a military exemption
applicant could receive any permits
based on the applicant’s actual
participation in the qualifying period,
the applicant would be limited to that
number and type of permits and could
not use the military exemption. An
applicant may not claim a military
exemption to excuse lack of
participation in the qualifying period
and an unavoidable circumstance to
excuse a lack of participation in the
recent participation period.
The proposed rule adopts the Council
recommendation that an applicant
receiving a permit under the military
service exemption receive a charter
halibut permit with an angler
endorsement of six. The Council was
silent, however, as to whether the
permit should be transferable or non–
transferable. This action proposes to
treat a military exemption applicant the
same as other unavoidable circumstance
applicants. The military exemption
applicant would receive one non–
transferable permit with an angler
endorsement of six unless the applicant
could demonstrate that it likely would
have met participation requirements for
a transferable permit or a higher angler
endorsement.

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Transfers
After charter halibut permits are
initially distributed by NMFS, a person
holding a transferable permit could
transfer the permit to another individual
or non–individual entity with certain
limitations. Transferability of permits
would allow limited new entry into the
charter vessel sector while the limited
access program generally would prevent
an uncontrolled expansion of the
charter vessel fishing sector and provide
for some consolidation in the sector.
However, limits would be placed on
consolidation to prevent any one person
from holding an excessive share of
charter vessel privileges.
To enforce limitations on the transfer
of charter halibut permits, no transfer of
a permit would be effective unless it is
first approved by NMFS. NMFS would
provide a transfer application to the
person transferring and the person
receiving the transferred permit.
Completion of the transfer application
would be required. Generally, NMFS
would approve any transfer that is
consistent with the following standards.
Transferable permit. NMFS would
approve the transfer of only transferable
charter halibut permits. Nontransferable
permits could not be transferred to any
entity different from the one to which it
is initially issued. Hence, a
nontransferable permit could not be
transferred from the name of the
individual once the individual dies. A
nontransferable permit could not be
transferred from a non–individual
permit holder (a corporation,
partnership or other entity) if the non–
individual permit holder dissolves or
changes. The proposed regulation
incorporates the definition of ‘‘change’’
in a corporation or partnership from the
IFQ program at 50 CFR 679.42(j)(4)(i).
This paragraph in the IFQ regulations
defines ‘‘a change’’ for corporations,
partnerships, or other non–individual
entity to mean ‘‘the addition of any new
shareholder(s) or partner(s), except that
a court appointed trustee to act on
behalf of a shareholder or partner who
becomes incapacitated is not a change
in the corporation, partnership,
association, or other non–individual
entity.’’
Citizenship. The Council
recommended that the charter vessel
fishery under limited access should be
primarily owned and controlled by
United States citizens. The Council’s
authority under the Halibut Act at
section 773c(c), however, is limited to
developing regulations ‘‘...applicable to
nationals or vessels of the United
States....’’ Hence, the development of
regulations that include non–citizens of

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the U.S. is not authorized by section
773c(c) of the Halibut Act. The
Secretary, however, has general
responsibility and authority to adopt
regulations as may be necessary under
section 773c(a) and (b) of the Halibut
Act. Therefore, the Secretary is
exercising this authority in proposing
the citizenship requirements
recommended by the Council.
Based on the Council’s
recommendation, the Secretary is
proposing two different eligibility
standards. First, for initial allocation of
charter halibut permits, this action
proposes no distinction between U.S.
citizens and nationals of other
countries. Any person that meets the
standards for initial allocation described
above would be issued a charter halibut
permit or permits according to those
standards. No citizenship standards
would apply to the initial allocation of
charter halibut permits to avoid
excluding persons who had legitimately
participated in the charter vessel fishery
during the qualifying and recent
participation years. Second, for transfers
of charter halibut permits, this action
proposes to allow transfers only to U.S.
citizens. That is, a transfer to an
individual would be approved only if
the individual is a U.S. citizen, and a
transfer to a corporate entity would be
approved only if it is a U.S. business
with at least 75 percent U.S. citizen
ownership of the business. This
proposal adopts the 75 percent U.S.
ownership criterion for a U.S. business
from the American Fisheries Act (111
Stat. 2681, Oct. 21, 1998), which is a key
piece of federal legislation designed to
Americanize the fleet fishing off
American waters. Hence, as non–U.S.
citizens leave the fishery their charter
halibut permits either would cease to
exist (if the permits were
nontransferable) or they would be
replaced by U.S. citizens or U.S.
businesses.
Excessive share limit. Although the
proposed limited access system would
allow for some consolidation in the
charter vessel sector, a concern about
too much consolidation caused the
Council to recommend that a person
should be prevented from holding more
than five permits by transfer. Hence,
five permits would be the excessive
share limit and NMFS would not
approve a transfer that would result in
the person receiving the transferred
permit holding more than five permits.
Two important exceptions to this
excessive share limit, however, would
allow a person to hold more than five
permits. First, a person that is the initial
recipient of more than five permits
would be able to continue to hold all of

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the permits for which the person
initially qualified. No approval would
be granted for additional permits to be
transferred to a person holding more
than five permits under this exception.
Also, this exception would not apply if
an individual permit holder dies or a
corporate permit holder dissolves or
changes its ownership by adding one or
more new owner(s) or partner(s). In this
event, NMFS would consider a
successor–in–interest or a changed
corporate structure to be a different
entity from the one that was the initial
recipient of the permits and the
exception to the excessive share limit
would not apply to the new entity.
Under the second exception, NMFS
would approve a transfer that resulted
in the person receiving the transfer
holding more than five permits if the
person were to meet the following three
conditions:
• The existing permit holder that
holds more than five permits under the
first exception would be transferring all
of the transferable permits that were
initially issued;
• The existing permit holder would be
transferring all assets—such as vessels
owned by the business, lodges, fishing
equipment, etc.—of its charter vessel
fishing business along with the permits;
and
• The person that would receive the
permits in excess of the excessive share
limit does not hold any permits at the
time of the proposed transfer.
In making this recommendation, the
Council reasoned that these exceptions
would not increase the number of
charter vessel businesses beyond those
existing at the start of the limited access
program. Allowing the transfer of a
group of permits in excess of the
excessive share limit along with an
entire business would be simply
substituting one business for another
one and would not add to the overall
charter fishing sector. These exceptions
essentially ‘‘grandfather’’ businesses
that would receive more permits, at the
initial allocation of permits, than the
excessive share limit would otherwise
allow. Further, these exceptions allow
the transfer of this grandfather right to
a new business. A transfer of anything
less than all the permits and assets,
however, would end the grandfather
right.
The Council and NMFS recognize that
a corporate entity at the excessive share
limit of five permits may be closely
affiliated with another corporate entity
that is under the limit and could apply
to receive a transferred permit. To
prevent a permit holder from exceeding
the limit by affiliation, this action
proposes to apply the 10 percent

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ownership criterion used for
implementing the American Fisheries
Act and defined at 50 CFR 679.2. Under
this definition, two entities are
considered the same entity if one entity
owns or controls 10 percent or more
interest in the other entity.
Owed penalties. Finally, this action
proposes to prevent the transfer of a
charter halibut permit to or from any
person that owes NMFS any fines, civil
penalties, or other payments. In
addition, a transfer of a permit would
not be approved if it would be
inconsistent with any sanctions
resulting from federal fishing violations.
NMFS concluded that this was a
reasonable way to enforce fishing
sanctions and payment of fines,
penalties, and payments owed to NMFS
by parties to a proposed transfer.
Special Permits
In developing its charter vessel
limited access policy, the Council was
faced with a goal of constraining
development of the charter vessel
fishery for halibut on one hand while on
the other hand recognizing the potential
importance of this fishery to the
economic development of some rural
communities. The Council
recommended providing a special
permit to allow development of a
charter vessel fishery in certain rural
communities. In addition, the Council
recognized charter vessels operated by
the U.S. Military’s Morale, Welfare and
Recreational (MWR) programs for
recreational use by service members,
and recommended no limited access
limitations on these military charter
vessels. Hence, two types of special
permits are proposed—one for
community development and one for
military use.
Community charter halibut permit.
The Council recommended and this
action proposes to allow for a special
community charter halibut permit that
would be awarded, at no cost, to
Community Quota Entities (CQEs)
representing communities that do not
currently have a fully developed charter
halibut fleet. The CQE provision was
developed by the Council originally to
help rural communities become more
involved in the commercial fisheries for
halibut and sablefish (84 FR 23681,
April 30, 2004). In that context, CQEs
are already defined at 50 CFR 679.2. The
Council recommended that existing or
future CQEs could serve a similar
purpose in developing the charter vessel
sector in certain rural communities.
This action proposes that a CQE
representing a community or
communities in Area 2C could receive
a maximum of four community charter

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halibut permits for each eligible
community the CQE represents. A CQE
representing a community or
communities in Area 3A could receive
a maximum of seven community charter
halibut permits for each eligible
community it represents. The larger
number of community permits that
would be allowed in Area 3A reflects
the larger resource base in that area. A
community charter halibut permit
would have an angler endorsement of
six and would be non–transferable.
This action proposes to limit the
communities eligible for community
charter halibut permits based on the
Council’s rationale that eligible
communities should be those that have
an emerging but not a fully developed
charter vessel fleet because they could
most benefit from the permits and from
the economic benefits of new charter
businesses. The Council recommended
that eligible communities are those CQE
communities (listed in Table 21 to part
679) in which 10 or fewer ‘‘active’’
charter vessel businesses terminated
charter vessel trips in the community in
each of the qualifying years (2004 and
2005). The term ‘‘active’’ means at least
five logbook fishing trips per year. The
five–trip criterion is based on the basic
qualification proposed for a charter
halibut permit of five logbook trips in
each of two years. Communities with
more than 10 active charter vessel
businesses were considered developed
enough to not require the benefit of the
community permit program.
Communities with no active charter
vessel businesses were not considered
likely prospects for developing future
charter vessel businesses. In addition,
the Council specifically named the
communities that would meet these
criteria. Therefore, this action proposes
eligibility of the specific communities
named by the Council. To add or
subtract a community from the
proposed list would require separate
Council action and a regulatory
amendment.
The list of communities proposed to
be eligible for community charter
halibut permits under a CQE are a
subset of those listed in Table 21 to part
679. In Area 2C, the following 18
communities would be eligible for a
community charter halibut permit:
Angoon, Coffman Cove, Edna Bay,
Hollis, Hoonah, Hydaburg, Kake,
Kassan, Klawock, Metlakatla, Meyers
Chuck, Pelican, Point Baker, Port
Alexander, Port Protection, Tenakee,
Thorne Bay and Whale Pass. In Area 3A,
the following 14 communities would be
eligible for a community charter halibut
permit: Akhiok, Chenega, Halibut Cove,
Karluk, Larsen Bay, Nanwalek, Old

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Harbor, Ouzinkie, Port Graham, Port
Lions, Seldovia, Tatitlek, Tyonek, and
Yakutat.
In addition to the community charter
halibut permits available to a CQE
under this proposed action, a CQE could
acquire other charter halibut permits
through transfer as described above.
Therefore, this action proposes a unique
excessive share limitation
recommended by the Council to apply
specifically to CQEs as potential permit
holders. The limitation for a CQE
representing Area 2C communities
would be four community charter
halibut permits per eligible community.
Additional permits that the CQE may
acquire by transfer would be limited to
an additional four per eligible
community for Area 2C. Hence, the
overall limit of permits that such a CQE
may hold would be eight per eligible
community for Area 2C. This overall
area–wide limit would apply to all
community charter halibut permits
issued to a CQE or to community charter
halibut permits in combination with
charter halibut permits acquired
through transfer. For example, a CQE
representing two eligible communities
in Area 2C could request and receive
four community charter halibut permits
for one community and four community
charter halibut permits for the other
community. The CQE could receive an
additional four charter halibut permits
acquired by transfer for each
community. The total number of
permits—eight community charter
halibut permits plus eight acquired
charter halibut permits by transfer—
would be the limit for the CQE to hold
in Area 2C. However, if the CQE
subsequently represents another
community in Area 2C, the limit would
change based on the number of
communities that the CQE represents in
that area.
A similar excessive share limitation
would apply also to a CQE representing
communities in Area 3A. The overall
limit on the number of permits that a
CQE representing eligible communities
in Area 3A may hold would be 14 per
eligible community the CQE represents
in that area. Hence, the overall limit for
any one CQE in any area would be two
times the number of community charter
halibut permits it may hold per eligible
community.
The proposed limit on the number of
community charter halibut permits that
can be held by a CQE is intended to
assist the development of an emerging
charter halibut fishery in eligible
communities without undermining the
purpose of the limited access system
proposed by this action. Also, the
Council recommended that a charter

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vessel fishing trip for halibut that is
authorized by a community charter
halibut permit would be required to
either begin or end within the
community designated on the
community charter halibut permit. The
purpose of this requirement is to assure
that the charter vessel anglers on such
a fishing trip have an opportunity to use
the goods and services of the
community. This requirement would
apply only to community charter
halibut permits and not to any
additional charter halibut permits that a
CQE may acquire by transfer.
Military charter halibut permit. The
proposed action would grant permits for
charter vessels operated by any U.S.
Military Morale, Welfare, and
Recreation (MWR) program in Alaska.
The only MWR program in Alaska that
currently offers recreational charter
halibut fishing to service members is the
Seward Resort based at Fort Richardson
in Anchorage, Alaska. To operate a
charter vessel, the MWR program must
obtain a special military charter halibut
permit by application to NMFS. Each
military charter halibut permit would be
non–transferable and valid only in the
regulatory area designated on the
permit.
Prohibitions
This action proposes eight
prohibitions. Six prohibitions mirror the
requirements of the rule and need not be
discussed separately. These six are
prohibitions against:
• Fishing for halibut in violation of
this program;
• Failing to comply with the
requirements of this program;
• Failing to submit or submitting
inaccurate information that is required
to be submitted;
• A charter vessel operating with
charter vessel anglers on board the
vessel that are catching and retaining
halibut in Area 2C or Area 3A without
a charter halibut permit designated for
that area;
• Having a number of anglers on board
a charter vessel that exceeds the total
angler endorsement number on the
permit or permits that are on board the
vessel; and
• Having a number of anglers on board
a charter vessel that exceeds the total
angler endorsement number on the
community permit or permits that are
on board the vessel.
Two additional prohibitions are
proposed. First, a charter vessel operator
would be prohibited from operating a
charter vessel in Area 2C and Area 3A
during a single charter vessel trip. The
Council recommended this limitation
on the use of permits. The analysis

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indicated that few vessels operate in
both areas. The prohibition therefore
would not significantly undermine
existing business operations in the
charter fishery. This prohibition would
aid in collection of harvest and logbook
data and simplify compliance
monitoring. Further, because each
permit would have its own angler
endorsement number, this prohibition
would facilitate enforcement of the
maximum angler endorsement
designation on the permit.
Second, a charter vessel operator
would be prohibited from operating a
charter vessel where anglers are
catching and retaining halibut, without
having on board the vessel a State of
Alaska Saltwater Charter Vessel
Logbook issued to the person named on
the charter halibut permit or permits on
board the vessel. The Council
recommended this prohibition. This
prohibition would not conflict with any
State of Alaska logbook requirement and
it would likely promote involvement by
the permit holder with the operation of
the charter halibut fishing operation and
with the collection of accurate logbook
data.
The proposed rule does not have a
prohibition against leasing although the
Council recommended a prohibition
against leasing. The proposed rule does
not contain a comprehensive
prohibition on leasing because such a
prohibition would not lead to a permit
holder being on board the vessel or
having any direct connection with the
charter operation. Under the proposed
rule, a permit holder would not have to
own a vessel or operate a vessel. A
permit holder could legitimately allow a
vessel operator to use the permit
holder’s permit as authority for the
vessel operator to take anglers out
charter halibut fishing, even though the
permit holder does not own or operate
the vessel and has nothing directly to do
with the charter vessel fishing
operation. The vessel operator may pay
the permit holder for the right to use the
permit or the permit holder may pay the
vessel operator to take out anglers
organized by the permit holder. The
charter industry has a variety of
business models and the way some of
these business models function is
substantially similar to a lease between
the permit holder and the vessel
operator.
Further, it would be difficult to
enforce a prohibition on leasing. NMFS
would have to collect additional
information attendant to a transfer.
Simply prohibiting a transfer called ‘‘a
lease’’ would result in the prohibition
being enforced only against legally
unsophisticated persons who did not

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draft their document to avoid such a
term. For NMFS to examine the
substance of any transaction would be
difficult, time–consuming and
undermine the principle that the
permits are relatively freely transferable.
In light of this difficulty, the Council
recommended three specific measures
to discourage leasing:
• Prohibit the charter halibut permit
from being used on board a vessel
unless that vessel is identified in an
ADF&G Saltwater Charter Logbook;
• Require that a charter vessel operator
have on board the vessel an ADF&G
Saltwater Charter Logbook issued in the
name of the charter halibut permit
holder; and
• Require the authorizing charter
halibut permit number to be recorded in
the ADF&G Saltwater Charter Logbook
for each trip.
This action proposes all of these
Council recommendations as part of the
requirement to have the Saltwater
Charter Logbook on board. The
requirement to identify the vessel in the
logbook is intended to be consistent
with an existing State of Alaska
requirement that a charter vessel
operator have on board the vessel an
ADF&G Saltwater Charter Logbook. This
logbook must be specific to the vessel
on which it is used.
Technical Regulatory Change
This action proposes a technical
change relevant to the definition of the
term ‘‘charter vessel’’ at 50 CFR 300.61.
The definition for this term was revised
by a final rule published September 24,
2008 (73 FR 54932) for purposes of a
prohibition against using a charter
vessel for subsistence fishing for
halibut. This action proposes to
integrate the definition into the
prohibition language to which it directly
applies at 50 CFR 300.66(i) to clarify
that the definition does not apply
universally to all other regulations. The
universal definition of charter vessel
would continue to be that used by the
IPHC and appearing in the annual
management measures required by 50
CFR 300.62. The most recent annual
management measures were published
March 7, 2008 (73 FR 12280).
Classification
The NMFS Assistant Administrator
has determined that this proposed rule
is necessary for the conservation and
management of the halibut fishery and
that it is consistent with the Halibut Act
and other applicable law, subject to
further consideration after public
comment.
This proposed rule has been
determined to be not significant for

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18191

purposes of Executive Order 12866.
This proposed rule also complies with
the Secretary’s authority under the
Halibut Act to implement management
measures for the halibut fishery.
An initial regulatory flexibility
analysis (IRFA) was prepared as
required by section 603 of the
Regulatory Flexibility Act. The IRFA
describes the economic impact this
proposed rule, if adopted, would have
on small entities. A description of the
action, why it is being considered, and
the legal basis for this action may be
found at the beginning of this preamble.
A summary of the IRFA follows. Copies
of the IRFA are available from the
Council or NMFS (see ADDRESSES).
The number of businesses that
submitted ADF&G logbooks for
bottomfish activity in IPHC Area 2C
between 1999 and 2005, and that may
be directly regulated by this action,
ranged from 412 in 2000 to 352 in 2002.
The number of businesses over the same
time in IPHC Area 3A period ranged
from 455 in 2000 to 402 in 2003. The
proposed limited access program
(Alternative 2) would issue permits
based on whether a business achieved a
specified level of participation during
2004 or 2005, and in the year prior to
implementation of the program. The
Council’s preferred alternative would
issue an estimated maximum of 689
permits to 380 businesses in Area 2C
and 611 permits to 471 businesses in
Area 3A. These represent maximum
estimates because a business also would
have to meet the qualifying criteria in
the recent participation period year,
which is likely 2007 or 2008. Thus, the
exact number of businesses that may
qualify for a permit cannot be
determined until the implementation of
the program.
The SBA specifies that for marinas
and charter/party boats, a small
business is one with annual receipts less
than $6.0 million. The largest of these
charter operations, which are lodges,
may be considered large entities under
SBA standards, but that cannot be
confirmed because NMFS does not
collect economic data on lodges. All of
the other 800–plus charter operations
would likely be considered small
entities, based on SBA criteria, because
they would be expected to have gross
revenues of less than $6.0 million on an
annual basis.
Regulations that directly regulate
communities are included in the permit
allotment part of this action. That part
seeks to help small, remote
communities in Areas 2C and 3A to
develop charter businesses by mitigating
the economic barrier associated with
purchasing a charter halibut permit and

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creating a number of non–transferable
permits that can only be held by the
non–profit entity representing the
eligible community. Under the preferred
alternative, 18 Area 2C communities
could be eligible to each receive up to
4 halibut charter permits at no cost; 14
Area 3A communities could be eligible
to each receive up to 7 halibut charter
permits at no cost. Note that their
eligibility is also conditioned on the fact
that they must form an approved non–
profit community quota entity through
NMFS; thus, the permits available for
eligible communities at no cost are
maximum estimates. All of these
communities would be considered small
entities under the SBA definitions.
This action would impose new
recordkeeping requirements. Permit
applications would be required to be
submitted before the start of the
program. The application would require
information about the business applying
for the permit including the ownership
structure of the business and
information on the charter activities of
the business. After submitting the initial
permit application, additional
applications would not be required.
NMFS would require additional reports
only when the structure of the business
owning the permit changes or the
permit is transferred. NMFS also may
require some additional reports,
depending on how well the current
ADF&G logbooks meet their
management and enforcement needs
and the level of access NMFS has to
those data. In addition, communities
eligible to receive permits at no cost
would be required to submit
information to NMFS: (1) on application
for a charter halibut permit, and (2) on
the use of the permit on an annual basis.
In and of itself, the proposed
recordkeeping and reporting
requirements would not likely represent
a ‘‘significant’’ economic burden on the
small entities operating in this fishery.
NMFS has not identified other
Federal rules that may duplicate,
overlap, or conflict with the proposed
rule.
An IRFA is required to describe
significant alternatives to the proposed
rule that accomplish the stated
objectives of the Magnuson–Stevens Act
and other applicable statutes and that
would minimize any significant
economic impact of the proposed rule
on small entities.
The status quo alternative specifies
the GHL as a target amount of halibut
that the charter fleet can harvest, but the
number of charter vessels that can enter
the fishery is not limited. NMFS is
authorized to implement management
measures to keep the charter fleet to

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approximately the GHL. Absent
decreases in demand for charter fishing
created by restrictions on harvest,
increases in the charter fleet could
undermine these restrictions and
prevent long–term stability of the
charter sector and continue the need for
further restrictions on harvest.
The Council considered options to the
preferred alternative that presented a
range for various aspects of the program.
In particular, ten options for minimum
qualification requirements for receipt of
a permit under the program were
considered in each area. These options
varied depending on the number of trips
needed to qualify for a permit, and
whether the trips for boats in a multi–
boat operation had to be considered
individually, or whether the business’s
total trips could be averaged over
vessels. The Council chose the option
that distributed the second largest
number of permits possible among the
range of options. One option, a one trip
threshold for permit issuance would
have distributed more permits; seven
options would have distributed fewer
permits in each area. The analysis noted
that it was unlikely that a one–trip
minimum qualification requirement
would reduce the number of permits to
2005 participation levels. Additional
numbers of permits would make it
harder to meet the objectives of this
action to stabilize this fleet and its
fishing capacity. Hence, the Council
chose the option that best met its
objectives with the least impact to
affected entities.
This proposed rule contains a
collection–of–information requirement
subject to review and approval by OMB
under the Paperwork Reduction Act
(PRA). This requirement has been
submitted to OMB for approval. Public
reporting burden estimates per response
for these requirements are: Two hours
for charter halibut permit application;
two hours for community charter
halibut permit application; two hours
for military charter halibut permit
application; two hours for transfer of a
charter halibut permit; and four hours
for appeal of permit denial. These
estimates include the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection–of–
information.
Public comment is sought regarding:
whether this proposed collection–of–
information is necessary for the proper
performance of the functions of the
agency, including whether the
information shall have practical utility;
the accuracy of the burden estimate;
ways to enhance the quality, utility, and

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clarity of the information to be
collected; and ways to minimize the
burden of the collection of information,
including through the use of automated
collection techniques or other forms of
information technology. Send comments
on these or any other aspects of the
collection of information to NMFS at the
ADDRESSES above, and e–mail to
[email protected], or fax to
202–395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
This proposed rule is consistent with
Executive Order 12962 as amended
September 26, 2008, which required
Federal agencies to ensure that
recreational fishing is managed as a
sustainable activity and is consistent
with existing law.
List of Subjects in 50 CFR Part 300
Fisheries, Fishing, Reporting and
recordkeeping requirements, Treaties.
Dated: April 15, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.

For the reasons set out in the
preamble, NMFS proposes to amend 50
CFR part 300, subpart E as follows:
PART 300—INTERNATIONAL
FISHERIES REGULATIONS
1. The authority citation for part 300,
subpart E continues to read as follows:
Authority: 16 U.S.C. 773–773k.

2. In § 300.61, as proposed to be
amended on December 22, 2008, at 73
FR 78282 is further amended by:
A. Removing the definition for
‘‘Charter vessel’’.
B. Revising definitions for ‘‘Charter
vessel angler’’, ‘‘Charter vessel fishing
trip’’, ‘‘Charter vessel guide’’, ‘‘Charter
vessel operator’’, ‘‘Crew member’’, and
‘‘Sport fishing guide services’’.
C. Adding definitions for ‘‘Charter
halibut permit’’, ‘‘Community charter
halibut permit’’, and ‘‘Military charter
halibut permit’’ in alphabetical order.
The revisions and additions read as
follows:
§ 300.61

Definitions.

*

*
*
*
*
Charter halibut permit means a permit
issued by the National Marine Fisheries
Service pursuant to § 300.67.

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Charter vessel angler, for purposes of
§§ 300.66, and 300.67, means a person,
paying or non–paying, using the
services of a charter vessel guide.
Charter vessel fishing trip, for
purposes of §§ 300.65(d), 300.66, and
300.67, means the time period between
the first deployment of fishing gear into
the water from a vessel after any charter
vessel angler is onboard and the
offloading of one or more charter vessel
anglers or any halibut from that vessel.
Charter vessel guide, for purposes of
§§ 300.65(d), 300.66 and 300.67, means
a person who holds an annual sport
guide license issued by the Alaska
Department of Fish and Game, or a
person who provides sport fishing guide
services.
Charter vessel operator, for purposes
of §§ 300.65(d), and 300.67, means the
person in control of the vessel during a
charter vessel fishing trip.
*
*
*
*
*
Community charter halibut permit
means a permit issued by NMFS to a
Community Quota Entity pursuant to
§ 300.67.
Crew member, for purposes of
§§ 300.65(d), and 300.67, means an
assistant, deckhand, or similar person
who works directly under the
supervision of, and on the same vessel
as, a charter vessel guide or charter
vessel operator.
*
*
*
*
*
Military charter halibut permit means
a permit issued by NMFS to a United
States Military Morale, Welfare and
Recreation Program pursuant to
§ 300.67.
*
*
*
*
*
Sport fishing guide services, for
purposes of §§ 300.65(d) and 300.67,
means assistance, for compensation, to
a person who is sport fishing, to take or
attempt to take fish by being onboard a
vessel with such person during any part
of a charter vessel fishing trip. Sport
fishing guide services do not include
services provided by a crew member.
*
*
*
*
*
3. In § 300.66, as proposed to be
amended on December 22, 2008, at 73
FR 78283 is further amended by:
A. Revising paragraphs (b), (i), (o),
and (p).
B. Adding paragraphs (r), (s), (t), (u),
(v), and (w).
The revisions and additions read as
follows:
§ 300.66

Prohibitions.

*

*
*
*
*
(b) Fish for halibut except in
accordance with the catch sharing plans
and domestic management measures

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implemented under §§ 300.63, 300.65,
and 300.67.
*
*
*
*
*
(i) Fish for subsistence halibut from a
charter vessel or retain subsistence
halibut onboard a charter vessel if
anyone other than the owner of record,
as indicated on the State of Alaska
vessel registration, or the owner’s
immediate family is aboard the charter
vessel and unless each person engaging
in subsistence fishing onboard the
charter vessel holds a subsistence
halibut registration certificate in the
person’s name pursuant to § 300.65(i)
and complies with the gear and harvest
restrictions found at § 300.65(h). For
purposes of this paragraph (i), the term
‘‘charter vessel’’ means a vessel that is
registered, or that should be registered,
as a sport fishing guide vessel with the
Alaska Department of Fish and Game.
*
*
*
*
*
(o) Fail to comply with the
requirements of §§ 300.65 and 300.67.
(p) Fail to submit or submit inaccurate
information on any report, license, catch
card, application or statement required
or submitted under §§ 300.65 and
300.67.
*
*
*
*
*
(r) Operate a vessel with one or more
charter vessel anglers on board that are
catching and retaining halibut without a
valid charter halibut permit for the
regulatory area in which the vessel is
operating.
(s) Operate a vessel with more charter
vessel anglers on board catching and
retaining halibut than the total angler
endorsement number specified on the
charter halibut permit or permits on
board the vessel.
(t) Operate a vessel with more charter
vessel anglers on board catching and
retaining halibut than the angler
endorsement number specified on the
community charter halibut permit or
permits on board the vessel.
(u) Operate a vessel in Area 2C and
Area 3A during one charter vessel
fishing trip.
(v) Operate a vessel in Area 2C or
Area 3A with one or more charter vessel
anglers on board that are catching and
retaining halibut without having on
board the vessel a State of Alaska
Department of Fish and Game Saltwater
Charter Logbook that specifies the
following:
(1) The person named on the charter
halibut permit or permits being used on
board the vessel;
(2) The charter halibut permit or
permits number(s) being used on board
the vessel; and
(3) The name and state issued boat
registration (AK number) or U.S. Coast

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Guard documentation number of the
vessel.
(w) Operate a vessel with one or more
charter vessel anglers on board that are
catching and retaining halibut without
the full compliance of the crew
member(s) on the vessel with
requirements of §§ 300.65 and 300.67.
4. Add § 300.67 to subpart E to read
as follows:
§ 300.67 Charter Halibut Limited Access
Program.

This section establishes limitations on
using a vessel on which charter vessel
anglers catch and retain Pacific halibut
in International Pacific Halibut
Commission (IPHC) regulatory areas 2C
and 3A.
(a) General permit requirements. (1) In
addition to other applicable permit and
licensing requirements, any charter
vessel operator with one or more charter
vessel anglers catching and retaining
Pacific halibut on board a vessel must
have on board the vessel a valid charter
halibut permit or permits endorsed for
the regulatory area in which the vessel
is operating and endorsed for the
number of charter vessel anglers who
are catching and retaining Pacific
halibut.
(2) Area endorsement. A charter
halibut permit is valid only in the
International Pacific Halibut
Commission regulatory area for which it
is endorsed. Regulatory areas are
defined in the annual management
measures published pursuant to
§ 300.62.
(3) Charter vessel angler endorsement.
A charter halibut permit is valid only
for the maximum number of charter
vessel anglers for which the charter
halibut permit is endorsed.
(b) Qualifications for a charter halibut
permit. A charter halibut permit for
IPHC regulatory area 2C must be based
on meeting participation requirements
in area 2C. A charter halibut permit for
IPHC regulatory area 3A must be based
on meeting participation requirements
in area 3A. Qualifications for a charter
halibut permit in each area must be
determined separately and must not be
combined.
(1) Non–transferable permit. NMFS
will issue a non–transferable charter
halibut permit to a person that:
(i) Is the person to which the State of
Alaska Department of Fish and Game
(ADF&G) issued the ADF&G Business
Owner Licenses that authorized logbook
fishing trips during the time periods in
paragraphs (b)(1)(ii) and (iii) of this
section;
(ii) Reported five (5) bottomfish
logbook fishing trips or more during one
year of the qualifying period; and

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(iii) Reported five (5) halibut logbook
fishing trips or more during the recent
participation period.
(2) Transferable permit. NMFS will
issue a transferable charter halibut
permit to a person that:
(i) Is the person to which the ADF&G
issued one or more ADF&G Business
Owner Licenses that authorized logbook
fishing trips during the time periods in
paragraphs (b)(2)(ii) and (iii) of this
section;
(ii) Reported fifteen (15) bottomfish
logbook fishing trips or more from the
same vessel during one year of the
qualifying period; and
(iii) Reported fifteen (15) halibut
logbook fishing trips or more from the
same vessel during the recent
participation period.
(3) NMFS will issue a charter halibut
permit to a person who meets the
following requirements:
(i) The person applies for a charter
halibut permit within the application
period specified in the Federal Register
and completes the application process
pursuant to paragraph (h) of this
section.
(ii) The person is the individual or
non–individual entity to which ADF&G
issued Business Owner Licenses that
authorized logbook fishing trips that
meet the participation requirements
described in paragraphs (b)(1) and (b)(2)
of this section for one or more charter
halibut permits, unless the person is
applying as a successor–in–interest.
(iii) If the person is applying as a
successor–in–interest to the person to
which ADF&G issued the Business
Owner Licenses that authorized logbook
fishing trips that meet the participation
requirements described in paragraphs
(b)(1) and (b)(2) of this section for one
or more charter halibut permits, NMFS
will require the following written
documentation:
(A) If the applicant is applying on
behalf of a deceased individual, the
applicant must document that the
individual is deceased, that the
applicant is the personal representative
of the deceased’s estate appointed by a
court and that the applicant specifies
who, pursuant to the applicant’s
personal representative duties, should
receive the permit(s) for which
application is made; or
(B) If the applicant is applying as a
successor–in–interest to an entity that is
not an individual, the applicant must
document that the entity has been
dissolved and that the applicant is the
successor–in–interest to the dissolved
entity.
(4) If more than one applicant claims
that they are the successor–in–interest
to a dissolved entity, NMFS will award

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the permit or permits for which the
dissolved entity qualified in the name(s)
of the applicants that submitted a timely
application and proved that they are a
successor–in–interest to the dissolved
entity.
(5) Notwithstanding any other
provision in this subpart, and except as
provided in paragraph (b)(4) of this
section,
(i) One logbook fishing trip shall not
be credited to more than one applicant;
(ii) One logbook fishing trip made
pursuant to the one ADF&G Business
Owners License shall not be credited to
more than one applicant; and
(iii) Participation by one charter
halibut fishing business shall not be
allowed to support issuance of permits
to more than one applicant.
(c) Number of charter halibut permits.
An applicant that meets the
participation requirements in paragraph
(b) of this section will be issued the
number of charter halibut permits equal
to the lesser of the number of permits
determined by paragraphs (c)(1) or (c)(2)
of this section as follows:
(1) The total number of bottomfish
logbook fishing trips made pursuant to
the applicant’s ADF&G Business License
in the applicant–selected year divided
by five, and rounded down to a whole
number; or
(2) The number of vessels that made
the bottomfish logbook fishing trips in
the applicant–selected year.
(d) Designation of transferability.
Each permit issued under paragraph (c)
of this section will be designated as
transferable or non–transferable. The
number of transferable charter halibut
permits issued to an applicant will be
equal to the number of vessels that
made 15 bottomfish logbook fishing
trips or more in the applicant–selected
year. If the applicant qualifies for
additional charter halibut permits, they
will be issued as non–transferable
permits.
(e) Angler endorsement. A charter
halibut permit will be endorsed for the
highest number of charter vessel anglers
reported on any logbook fishing trip in
the qualifying period except that:
(1) The angler endorsement number
will be four (4) if the highest number of
charter vessel anglers reported on any
logbook fishing trip in the qualifying
period is less than four (4) or no charter
vessel anglers were reported on any of
the applicant’s logbook fishing trips in
the applicant–selected year; and
(2) The angler endorsement number
will be six (6) on a charter halibut
permit issued pursuant to military
service under paragraph (g)(3) of this
section.

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(f) For purposes of this section, the
following terms are defined as follows:
(1) Applicant–selected year means the
year in the qualifying period, 2004 or
2005, selected by the applicant for
NMFS to use in determining the
applicant’s number of transferable and
nontransferable permits.
(2) Bottomfish logbook fishing trip
means a logbook fishing trip in the
qualifying period that was reported to
the State of Alaska in a Saltwater
Charter Logbook with one of the
following pieces of information: the
statistical area(s) where bottomfish
fishing occurred, the boat hours that the
vessel engaged in bottomfish fishing, or
the number of rods used from the vessel
in bottomfish fishing.
(3) Halibut logbook fishing trip means
a logbook fishing trip in the recent
participation period that was reported to
the State of Alaska in a Saltwater
Charter Logbook within the time limit
for reporting the trip in effect at the time
of the trip with one of the following
pieces of information: the number of
halibut that was kept, the number of
halibut that was released, or the boat
hours that the vessel engaged in
bottomfish fishing.
(4) Logbook fishing trip means a
bottomfish logbook fishing trip or a
halibut logbook fishing trip that was
reported as a trip to the State of Alaska
in a Saltwater Charter Logbook within
the time limits for reporting the trip in
effect at the time of the trip, except that
for multi-day trips, the number of trips
will be equal to the number of days of
the multi-day trip, e.g., a two day trip
will be counted as two trips.
(5) Official charter halibut record
means the information prepared by
NMFS on participation in charter
halibut fishing in Area 2C and Area 3A
that NMFS will use to implement the
Charter Halibut Limited Access Program
and evaluate applications for charter
halibut permits.
(6) Qualifying period means the sport
fishing season established by the
International Pacific Halibut
Commission (February 1 through
December 31) in 2004 and 2005.
(7) Recent participation period means
the sport fishing season established by
the International Pacific Halibut
Commission (February 1 through
December 31) in [insert the recent
participation year].
(g) Unavoidable circumstance—(1)
Recent participation period. An
applicant for a charter halibut permit
that meets the participation requirement
for the qualifying period, but does not
meet the participation requirement for
the recent participation period, may
receive one or more charter halibut

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permits if the applicant proves
paragraphs (g)(1)(i) through (iv) of this
section as follows:
(i) The applicant had a specific intent
to operate a charter halibut fishing
business in the recent participation
period;
(ii) The applicant’s specific intent was
thwarted by a circumstance that was:
(A) Unavoidable;
(B) Unique to the owner of the charter
halibut fishing business; and
(C) Unforeseen and reasonably
unforeseeable by the owner of the
charter halibut fishing business;
(iii) The circumstance that prevented
the applicant from operating a charter
halibut fishing business actually
occurred; and
(iv) The applicant took all reasonable
steps to overcome the circumstance that
prevented the applicant from operating
a charter halibut fishing business in the
recent participation period.
(v) If the applicant proves the
foregoing (see paragraphs (g)(1)(i)
through (iv) of this section), the
applicant will receive the number of
transferable and non–transferable
permits and the angler endorsements on
these permits that result from the
application of criteria in paragraphs (b),
(c), (d), (e), and (f) of this section.
(2) Qualifying period. An applicant
for a charter halibut permit that meets
the participation requirement for the
recent participation period but does not
meet the participation requirement for
the qualifying period, may receive one
or more permits if the applicant proves
paragraphs (g)(2)(i) through (iv) of this
section as follows:
(i) The applicant had a specific intent
to operate a charter halibut fishing
business in at least one year of the
qualifying period;
(ii) The applicant’s specific intent was
thwarted by a circumstance that was:
(A) Unavoidable;
(B) Unique to the owner of the charter
halibut fishing business; and
(C) Unforeseen and reasonably
unforeseeable by the owner of the
charter halibut fishing business;
(iii) The circumstance that prevented
the applicant from operating a charter
halibut fishing business actually
occurred; and
(iv) The applicant took all reasonable
steps to overcome the circumstance that
prevented the applicant from operating
a charter halibut fishing business in at
least one year of the qualifying period.
(v) If the applicant proves the
foregoing (see paragraphs (g)(2)(i)
through (iv) of this section), the
applicant will receive either:
(A) One non–transferable permit with
an angler endorsement of four (4); or

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(B) The number of transferable and
non–transferable permits, and the angler
endorsement on those permits, that
result from the logbook fishing trips that
the applicant proves likely would have
taken by the applicant but for the
circumstance that thwarted the
applicant’s specific intent to operate a
charter halibut fishing business in one
year of the qualifying period and the
applicant did not participate during the
other year of the qualifying period.
(3) Military service. An applicant for
a charter halibut permit that meets the
participation requirement in the recent
participation period, but does not meet
the participation requirement for the
qualifying period, may receive one or
more permits if the applicant proves the
following:
(i) The applicant was ordered to
report for military service as a member
of a branch of the National Guard or
military reserve during the qualifying
period; and
(ii) The applicant had a specific intent
to operate a charter halibut fishing
business that was thwarted by the
applicant’s order to report for military
service.
(h) Application for a charter halibut
permit. (1) An application period of no
less than 60 days will be specified by
notice in the Federal Register during
which any person may apply for a
charter halibut permit. Any application
that is submitted by mail and
postmarked, or submitted by hand
delivery or facsimile, after the last day
of the application period will be denied.
Electronic submission other than by
facsimile will be denied. Applications
must be submitted to the address given
in the Federal Register notice of the
application period.
(2) Charter halibut permit. To be
complete, a charter halibut permit
application must be signed and dated by
the applicant, and the applicant must
attest that, to the best of the applicant’s
knowledge, all statements in the
application are true and the applicant
complied with all legal requirements for
logbook fishing trips in the qualifying
period and recent participation period
that were reported under the applicant’s
ADF&G Business Owner Licenses. An
application for a charter halibut permit
will be made available by NMFS.
Completed applications may be
submitted by mail, hand delivery, or
facsimile at any time during the
application period announced in the
Federal Register notice of the
application period described at
paragraph (h)(1) of this section.
(3) Application procedure. NMFS will
create the official charter halibut record
and will accept all application claims

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that are consistent with the official
charter halibut record. If an applicant’s
claim is not consistent with the official
charter halibut record, NMFS will
respond to the applicant by letter
specifying a 30-day evidentiary period
during which the applicant may provide
additional information or argument to
support the applicant’s claim. Limits on
the 30-day evidentiary period are as
follows:
(i) An applicant shall be limited to
one 30-day evidentiary period; and
(ii) Additional information received
after the 30-day evidentiary period has
expired will not be considered for
purposes of the initial administrative
determination.
(4) After NMFS evaluates the
additional information submitted by the
applicant during the 30-day evidentiary
period, it will take one of the following
two actions.
(i) If NMFS determines that the
applicant has met its burden of proving
that the official charter halibut record is
incorrect, NMFS will amend the official
charter halibut record and use the
official charter halibut record, as
amended, to determine whether the
applicant is eligible to receive one or
more charter halibut permits, the nature
of those permits and the angler and area
endorsements on those permits; or
(ii) If NMFS determines that the
applicant has not met its burden of
proving that the official charter halibut
record is incorrect, NMFS will notify
the applicant by an initial
administration determination, pursuant
to paragraph (h)(5) of this section.
(5) Initial Administration
Determination (IAD). NMFS will send
an IAD to the applicant following the
expiration of the 30-day evidentiary
period if NMFS determines that the
applicant has not met its burden of
proving that the official charter halibut
record is incorrect or that other reasons
exist to initially deny the application.
The IAD will indicate the deficiencies
in the application and the deficiencies
with the information submitted by the
applicant in support of its claim.
(6) Appeal. An applicant that receives
an IAD may appeal to the Office of
Administrative Appeals (OAA) pursuant
to § 679.43 of this title.
(i) If the applicant does not apply for
a charter halibut permit within the
application period specified in the
Federal Register, the applicant will not
receive any interim permits pending
final agency action on the application.
(ii) If the applicant applies for a
permit within the specified application
period and OAA accepts the applicant’s
appeal, the applicant will receive the
number and kind of interim permits

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which are not in dispute, according to
the information in the official charter
halibut record.
(iii) If the applicant applies for a
permit within the specified application
period and OAA accepts the applicant’s
appeal, but according to the information
in the official charter halibut record, the
applicant would not be issued any
permits, the applicant will receive one
interim permit with an angler
endorsement of four (4).
(iv) All interim permits will be non–
transferable and will expire when
NMFS takes final agency action on the
application.
(i) Transfer of a charter halibut
permit—(1) General. A transfer of a
charter halibut permit is valid only if it
is approved by NMFS. NMFS will
approve a transfer of a charter halibut
permit if the permit to be transferred is
a transferable permit issued under
paragraph (b)(2) of this section, if a
complete transfer application is
submitted, and if the transfer
application meets the standards for
approval in paragraph (i)(2) of this
section.
(2) Standards for approval of
transfers. NMFS will transfer a
transferable charter halibut permit to a
person designated by the charter halibut
permit holder if, at the time of the
transfer the following standards are met:
(i) The person designated to receive
the transferred permit is a U.S. citizen
or a U.S. business with a minimum of
75 percent U.S. ownership;
(ii) The parties to the transfer do not
owe NMFS any fines, civil penalties or
any other payments;
(iii) The transfer is not inconsistent
with any sanctions resulting from
Federal fishing violations;
(iv) The transfer will not cause the
designated recipient of the permit to
exceed the permit limit at paragraph (j)
of this section, unless an exception to
that limit applies;
(v) A transfer application is
completed and approved by NMFS; and
(vi) The transfer does not violate any
other provision in this part.
(3) For purposes of paragraph (i)(2) of
this section, a U.S. business with a
minimum of 75 percent U.S. ownership
means a corporation, partnership,
association, trust, joint venture, limited
liability company, limited liability
partnership, or any other entity where at
least 75 percent of the interest in such
entity, at each tier of ownership of such
entity and in the aggregate, is owned
and controlled by citizens of the United
States.
(4) Application to transfer a charter
halibut permit. To be complete, a
charter halibut permit transfer

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application must have notarized and
dated signatures of the applicants, and
the applicants must attest that, to the
best of the applicants’ knowledge, all
statements in the application are true.
An application to transfer a charter
halibut permit will be made available by
NMFS. Completed transfer applications
may be submitted by mail or hand
delivery at any time to the addresses
listed on the application. Electronic or
facsimile deliveries will not be
accepted.
(5) Denied transfer applications. If
NMFS does not approve a charter
halibut permit transfer application,
NMFS will inform the applicant of the
basis for its disapproval.
(6) Transfer due to court order,
operation of law or as part of a security
agreement. NMFS will transfer a charter
halibut permit based on a court order,
operation of law or a security
agreement, if NMFS determines that a
transfer application is complete and the
transfer will not violate an eligibility
criterion for transfers.
(j) Charter halibut permit
limitations—(1) General. A person may
not own, hold, or control more than five
(5) charter halibut permits except as
provided by paragraph (j)(4) of this
section. NMFS will not approve a
transfer application that would result in
the applicant that would receive the
transferred permit holding more than
five (5) charter halibut permits except as
provided by paragraph (j)(6) of this
section.
(2) Ten percent ownership criterion.
In determining whether two or more
persons are the same person for
purposes of paragraph (j)(1) of this
section, NMFS will apply the definition
of an ‘‘affiliation for the purpose of
defining AFA entities’’ at § 679.2 of this
title.
(3) A permit will cease to be a valid
permit if the permit holder is:
(i) An individual and the individual
dies; or
(ii) A non–individual (e.g.,
corporation or partnership) and
dissolves or changes as defined at
paragraph (j)(5) of this section.
(iii) A transferable permit may be
made valid by transfer to an eligible
recipient.
(4) Exception for initial recipients of
permits. Notwithstanding the limitation
at paragraph (j)(1) of this section, NMFS
may issue more than five (5) charter
halibut permits to an initial recipient
that meets the requirements described
in paragraphs (b), (d), and (e) of this
section for more than five (5) charter
halibut permits, subject to the following
limitations:

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(i) This exception applies only to an
initial recipient as the recipient exists at
the time that it is initially issued the
permits;
(ii) If an initial recipient of
transferable permit(s) who is an
individual dies, the individual’s
successor–in–interest may not hold
more than five (5) charter halibut
permits;
(iii) If an initial recipient permit
holder that is a non–individual, such as
a corporation or a partnership, dissolves
or changes, NMFS will consider the new
entity a new permit holder and the new
permit holder may not hold more than
five (5) charter halibut permits.
(5) For purposes of this paragraph (j),
a ‘‘change’’ means:
(i) For an individual, the individual
has died, in which case NMFS must be
notified within 30 days of the
individual’s death; and
(ii) For a non–individual entity, the
same as defined at § 679.42(j)(4)(i) of
this title in which case the permit
holder must notify NMFS within 15
days of the effective date of the change
as required at § 679.42(j)(5) of this title.
(6) Exception for transfer of permits.
Notwithstanding the limitation at
paragraph (j)(1) of this section, NMFS
may approve a permit transfer
application that would result in the
person that would receive the
transferred permit(s) holding more than
five (5) transferable charter halibut
permits if the parties to the transfer
meet the following conditions:
(i) The designated person that would
receive the transferred permits does not
hold any charter halibut permits;
(ii) All permits that would be
transferred are transferable permits;
(iii) The permits that would be
transferred are all of the transferable
permits that were awarded to an initial
recipient who exceeded the permit
limitation of five (5) permits; and
(iv) The person transferring its
permits also is transferring its entire
charter vessel fishing business,
including all the assets of that business,
to the designated person that would
receive the transferred permits.
(k) Community charter halibut
permit—(1) General. A Community
Quota Entity (CQE), as defined in
§ 679.2 of this title, representing an
eligible community listed in paragraph
(k)(2) of this section, may receive one or
more community charter halibut
permits. A community charter halibut
permit issued to a CQE will be
designated for area 2C or area 3A, will
be non–transferable, and will have an
angler endorsement of six (6).
(2) Eligible communities. Each
community charter halibut permit

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issued to a CQE under paragraph (k)(1)
of this section will specify the name of
an eligible community on the permit.
Only the following communities are
eligible to receive community charter
halibut permits:
(i) For Area 2C: Angoon, Coffman
Cove, Edna Bay, Hollis, Hoonah,
Hydaburg, Kake, Kassan, Klawock,
Metlakatla, Meyers Chuck, Pelican,
Point Baker, Port Alexander, Port
Protection, Tenakee, Thorne Bay, Whale
Pass.
(ii) For Area 3A: Akhiok, Chenega
Bay, Halibut Cove, Karluk, Larsen Bay,
Nanwalek, Old Harbor, Ouzinkie, Port
Graham, Port Lyons, Seldovia, Tatitlek,
Tyonek, Yakutat.
(3) Limitations. The maximum
number of community charter halibut
permits that may be issued to a CQE for
each eligible community the CQE
represents is as follows:
(i) A CQE representing an eligible
community or communities in
regulatory area 2C may receive a
maximum of four (4) community charter
halibut permits per eligible community
designated for Area 2C.
(ii) A CQE representing an eligible
community or communities in
regulatory area 3A may receive a
maximum of seven (7) community
charter halibut permits per eligible
community designated for Area 3A.
(4) NMFS will not approve a transfer
that will cause a CQE representing a
community or communities to hold
more than the following total number of
permits, per community, including
community charter halibut permits

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granted to the CQE under this paragraph
(k) and any charter halibut permits
acquired by the CQE by transfer under
paragraph (i) of this section.
(i) The maximum number of charter
halibut and community charter halibut
permits that may be held by a CQE per
community represented by the CQE in
regulatory area 2C is eight (8).
(ii) The maximum number of charter
halibut and community charter halibut
permits that may be held by a CQE per
community represented by the CQE in
regulatory area 3A is fourteen (14).
(5) Limitation on use of permits. The
following limitations apply to
community charter halibut permits
issued to a CQE under paragraph (k)(1)
of this section.
(i) Every charter vessel fishing trip
authorized by such a permit and on
which halibut are caught and retained
must begin or end at a location(s)
specified on the application for a
community charter halibut permit and
that is within the boundaries of the
eligible community designated on the
permit. The geographic boundaries of
the eligible community will be those
defined by the United States Census
Bureau.
(ii) Community charter halibut
permits may be used only within the
regulatory area for which they are
designated to catch and retain halibut.
(6) Application procedure. To be
complete, a community charter halibut
permit application must be signed and
dated by the applicant, and the
applicant must attest that, to the best of
the applicants’ knowledge, all

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statements in the application are true
and complete. An application for a
community charter halibut permit will
be made available by NMFS and may be
submitted by mail, hand delivery, or
facsimile at any time to the address(s)
listed on the application. Electronic
deliveries other than facsimile will not
be accepted.
(l) Military charter halibut permit.
NMFS will issue a military charter
halibut permit without an angler
endorsement to an applicant provided
that the applicant is a Morale, Welfare
and Recreation Program of the United
States Armed Services.
(1) Limitations. A military charter
halibut permit is non–transferable and
may be used only in the regulatory area
(2C or 3A) designated on the permit.
(2) Application procedure. An
applicant may apply for a military
charter halibut permit at any time. To be
complete, a military charter halibut
permit application must be signed and
dated by the applicant, and the
applicant must attest that, to the best of
the applicants’ knowledge, all
statements in the application are true
and complete. An application for a
military charter halibut permit will be
made available by NMFS and may be
submitted by mail, hand delivery, or
facsimile at any time to the address(s)
listed on the application. Electronic
deliveries other than facsimile will not
be accepted.
[FR Doc. E9–9110 Filed 4–20–09; 8:45 am]
BILLING CODE 3510–22–S

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