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Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
15 CFR Part 902
50 CFR Parts 300 and 679
[Docket No. 080630798–91430–02]
RIN 0648–AW92
Pacific Halibut Fisheries; Limited
Access for Guided Sport Charter
Vessels in Alaska
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AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: NMFS issues regulations
creating a limited access system for
charter vessels in the guided sport
fishery for Pacific halibut in waters of
International Pacific Halibut
Commission Regulatory Areas 2C
(Southeast Alaska) and 3A (Central Gulf
of Alaska). This limited access system
limits the number of charter vessels that
may participate in the guided sport
fishery for halibut in these areas. NMFS
will issue a charter halibut permit to a
licensed charter fishing business owner
based on his or her past participation in
the charter halibut fishery and to a
Community Quota Entity representing
specific rural communities. All charter
halibut permit holders are subject to
limits on the number of permits they
may hold and on the number of charter
vessel anglers who may catch and retain
halibut on permitted charter vessels.
This action is necessary to achieve the
approved 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: February 4, 2010, except for
§ 300.66(b), (i), and (o), and § 300.66(r)
through (v), and § 300.67(a), which will
be effective on February 1, 2011.
ADDRESSES: Electronic copies of the
Environmental Assessment (EA),
Regulatory Impact Review (RIR), and
Final Regulatory Flexibility Analysis
(FRFA) (collectively, Analysis) prepared
for this action may be obtained from
http://www.Regulations.gov or from the
Alaska Region, NMFS on the Alaska
Region Web site at http://
www.alaskafisheries.noaa.gov.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this proposed
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rule may be submitted by mail to NMFS,
Alaska Region, P.O. Box 21668, Juneau,
AK, 99802–1668, Attn: Ellen Sebastian,
Records Officer; in person at NMFS,
Alaska Region, 709 West 9th Street,
Room 420A, Juneau, AK; and by e-mail
to [email protected] or fax to
202–395–7285.
FOR FURTHER INFORMATION CONTACT:
Rachel Baker, 907–586–7228.
SUPPLEMENTARY INFORMATION: The
International Pacific Halibut
Commission (IPHC) and National
Marine Fisheries Service (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, DC, on March 29, 1979).
Regulations developed by the IPHC are
subject to approval by the Secretary of
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 19,
2009, at 74 FR 11681. IPHC regulations
affecting sport fishing for halibut and
charter vessels in Areas 2C (Southeast
Alaska) and 3A (Central Gulf of Alaska)
may be found in sections 3, 25, and 28
(74 FR 11681, March 19, 2009).
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 (USCG) 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
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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 a step
in the development of that regulatory
program and has been approved by the
Secretary pursuant to section 773c(c).
Background and Need for Action
A comprehensive history of
management of the guided sport fishery
for halibut was presented in the
proposed rule for this action published
April 21, 2009 (74 FR 18178). This
description focused on the history and
rationale leading to the Council’s
development of limited access
management for the charter vessel
fishery and its recommendation of this
limited access system in 2007. In brief,
the principal concern was overcrowding
of productive halibut grounds due to the
growth of the charter vessel sector. The
Council found that the charter vessel
sector was the only halibut harvesting
sector that was exhibiting growth in
IPHC Areas 2C and 3A. Other harvesting
sectors have specified catch limits that
cause fishery closures when reached or
are relatively stable over time. The
Council recommended this limited
access system to provide stability for the
guided sport halibut fishery and
decrease the need for regulatory
adjustments affecting charter vessel
anglers while the Council continues to
develop a long-term policy of allocation
between the commercial and charter
vessel sectors.
The Council adopted its limited
access policy on March 31, 2007, and
submitted it for review to the Secretary
pursuant to section 773c(c). By
publishing this rule, NMFS announces
Secretarial approval of this Council
recommendation. A proposed rule for
the recommended limited access system
was published April 21, 2009 (74 FR
18178) soliciting public comments on
the proposal until June 5, 2009. All
comments received during this
comment period are summarized and
responded to below. Some changes from
the proposed rule are made as a logical
outgrowth from the proposed rule.
These changes also are described below.
Following is a summary description
of the charter halibut limited access
system and how it is designed to
operate. A more thorough description of
the action is presented in the preamble
to the proposed rule published April 21,
2009 (74 FR 18178). Additional detail is
presented in responses to comments
below.
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Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations
Charter Halibut Limited Access
System—Operational Aspects
General
This action limits the entry of charter
vessels into the guided sport fishery for
halibut in waters of IPHC Regulatory
Areas 2C (Southeast Alaska) and 3A
(Central Gulf of Alaska). After the
effective date of this rule (see DATES),
any person operating a charter vessel
engaged in halibut fishing in Areas 2C
or 3A is required to have on board the
vessel a charter halibut permit
designated for that area. Qualifications
for a charter halibut permit in each area
are determined independently. A
charter halibut permit can be either
transferable or non-transferable
depending on the qualifications of
permit applicants. Each permit will
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. In addition, this action
provides for two special permits—a
community charter halibut permit and a
military charter halibut permit.
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Qualifications for Charter Halibut
Permit
To receive an initial allocation of a
charter halibut permit, an applicant
must demonstrate participation in the
charter halibut fishery during an
historic qualifying period and during a
recent participation period. The historic
qualifying period is 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. Minimum
participation criteria need be met in
only one of these years—2004 or 2005.
The recent participation period is the
sport fishing season established by the
IPHC in 2008. This year was selected as
the recent participation period because
it is the most recent year for which
NMFS has a complete record of
saltwater charter vessel logbook data
from the State of Alaska Department of
Fish and Game (ADF&G).
The minimum participation
qualifications include documentation of
at least five logbook fishing trips during
one of the qualifying years—2004 or
2005—and at least five logbook fishing
trips during 2008. Meeting these
minimum participation qualifications
could qualify an applicant for a nontransferable charter halibut permit. The
minimum participation qualifications
for a transferable charter halibut permit
include at least 15 logbook fishing trips
during one of the qualifying years—
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2004 or 2005—and at least 15 logbook
fishing trips during 2008.
The basic unit of participation for
receiving a charter halibut permit will
be a logbook fishing trip. A ‘‘logbook
fishing trip’’ is a bottomfish logbook
fishing trip during the qualifying years,
2004 and 2005, and as a halibut logbook
fishing trip in 2008. A logbook fishing
trip is 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.
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 will
determine how many permits the
applicant will receive and how many of
those, if any, will be transferable
permits. If an applicant qualifies for any
permits, NMFS will issue to the
applicant the number of permits equal
to (a) the applicant’s total number of
bottomfish 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
applicant will select which year in the
qualifying period—2004 or 2005—
NMFS will use in making this
calculation.
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 rule,
NMFS will calculate 23 ÷ 5 = 4.6 which
will be rounded down to four. But this
number of permits will be limited by the
number of vessels that made all the
logbook trips in the applicant-selected
year which was three. Hence, the
applicant will be awarded three permits.
Transferable Permits
After determining the total number of
permits, NMFS will determine which
permits are transferable and which are
nontransferable. An applicant will
receive a transferable permit for each
vessel that made at least 15 trips in the
applicant-selected year (2004 or 2005)
and at least 15 trips in the recent
participation year (2008). The same
vessel must have made all the trips
within a year; however, the same vessel
did not have to be used in the qualifying
year and the recent participation year.
The rest of the applicant’s permits, if
any, will be non-transferable permits.
Applicants that do not have the
minimum of 15 logbook fishing trips
from the same vessel in each period but
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qualify for one or more permit(s) with
a minimum of five logbook fishing trips,
will receive only non-transferable
permit(s). Hence, in the example above
of an applicant with 23 logbook trips
using three vessels, that applicant will
receive three permits. Based on the 15trip minimum criterion, however, this
applicant will receive only one
transferable permit and the other two
permits will be non-transferable.
Angler Endorsements
Each charter halibut permit will have
an angler endorsement number. The
angler endorsement number on the
permit is the maximum number of
charter vessel anglers that may catch
and retain halibut on board the vessel.
The angler endorsement does not limit
the number of passengers that an
operator may carry, only the number
that may catch and retain halibut. The
angler endorsement will be equal to the
highest number of anglers that the
applicant reported on any logbook
fishing trip in 2004 or 2005, subject to
a minimum endorsement of four.
The term ‘‘charter vessel angler’’ is
defined by this action to include all
persons, paying or non-paying, who use
the services of the charter vessel guide.
The charter halibut permit, once issued
with its angler endorsement, will limit
the number of charter vessel anglers
authorized to catch and retain halibut
on the permitted vessel.
A vessel operator will be able to stack
permits to increase the number of
charter vessel anglers on board. 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 can 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 forhire operation regulations, prevent 10
anglers from being on board the vessel,
the charter halibut permits will not
authorize the vessel operator to violate
those provisions of law.
Initial Allocation Process
Several basic standards are required
to initially receive a charter halibut
permit. These standards include (1)
timely application for a permit, (2)
documentation of participation in the
charter vessel fishery during the
qualifying and recent participation
periods by ADF&G logbooks, and (3)
ownership of a business that was
licensed by the State of Alaska to
conduct the guided sport fishing
reported in the logbooks.
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Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations
Timely application. To be an initial
recipient of a charter halibut permit, an
applicant must apply for the permit
during the application period. An
application period of no less than 60
days will be announced in the Federal
Register. Applications submitted by
mail, hand delivery, or facsimile will be
accepted if postmarked, hand delivered,
or received by fax no later than the last
day of the application period. Electronic
submissions other than facsimile will
not be acceptable. 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 will
not credit the same logbook fishing trip
to more than one applicant and will not
allow the participation history of one
business owner to support issuance of a
permit(s) to more than one applicant.
Application forms will 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
will not be acceptable, however,
because a signature on the application
will be required. The application form
will 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.
Documentation of participation. The
principal documentation necessary to
prove qualifying participation in the
charter halibut fishery will 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. 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
the Council’s Analysis of alternatives
and on subsequent ADF&G charter
vessel logbook data to approve this
action.
As stated above, the basic unit of
participation for receiving a charter
halibut permit will be a logbook fishing
trip, which is a trip that was reported to
ADF&G in a saltwater charter logbook in
accordance with the time limit required
for reporting such a trip that was in
effect at the time of the trip. If a trip was
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not reported within those time limits,
NMFS will not consider it a logbook
fishing trip for purposes of a charter
halibut permit application.
NMFS will use the same method of
counting logbook fishing trips that was
used by the Council in developing its
recommendation for this action. Each
trip in a multi-trip day will count as one
logbook fishing trip, and each day on a
multi-day trip will count as one logbook
fishing trip. For example, if an operator
documented two trips in one day,
NMFS will consider that as two logbook
fishing trips. Another operator that
documented a trip that lasted two days
also will be considered to have made
two logbook fishing trips. This
accounting of trips deviates from the
ADF&G method of counting logbook
trips when fishing continues over
multiple days. The same issue does not
exist for half-day trips. Consistent with
ADF&G logbook data and the Council’s
Analysis, NMFS will consider a half day
trip as one trip.
A halibut logbook fishing trip also can
be a logbook fishing trip where the
business owner, within ADF&G time
limits, reported ‘‘boat hours that the
vessel engaged in bottomfish fishing.’’
An applicant may 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
bottomfish would capture trips where
charter vessel anglers were targeting
halibut but did not catch any. Hence,
this action defines 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.
Documentation of participation will
be recorded in the official record of
charter vessel participation in Areas 2C
and 3A during the qualifying and recent
participation years. The official record
will be based on data from ADF&G and
will 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 will 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
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each logbook fishing trip; and the vessel
that made each logbook fishing trip.
NMFS will compare all timely
applications to the official record. If an
applicant submits a claim that is not
consistent with the official record,
NMFS will 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
record, NMFS will 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 will issue
an initial administrative determination
(IAD). The IAD will describe why NMFS
is initially denying some or all of an
applicant’s claim and will provide
instructions on how to appeal the IAD.
An applicant may appeal the IAD to
the Office of Administrative Appeals
(OAA) pursuant to 50 CFR 679.43.
NMFS will issue interim permits to
applicants that filed timely applications
and whose appeal is accepted by OAA.
NMFS will 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. All
permits issued during an appeal will be
interim, non-transferable permits. Until
NMFS makes a final decision on the
appeal, the permit holder will not be
able to transfer any permits.
Licensed business owners. Charter
halibut permits will 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).
Hence, on successful application, NMFS
will 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 has no obligation to determine
the owners of a corporation or members
of a partnership that successfully
applied for a permit. NMFS will 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 will
be the same entity that held the ADF&G
Business Owner License that authorized
the trips that met the participation
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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 nonindividual entity, such as a corporation
or partnership, that has dissolved.
NMFS will 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.
NMFS will apply a guiding principle
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 when NMFS might award
a permit to successors-in-interest to a
dissolved entity. Even then, NMFS will
not issue a permit to each successor-ininterest, but will issue the number of
permits for which the dissolved entity
qualified in the names of all successorsin-interest. Subject to that exception,
this guiding principle prohibits NMFS
from crediting more than one applicant
for the same logbook fishing trip, from
crediting more than one applicant for
logbook fishing trips made pursuant to
the same ADF&G Business Owners
License, and from issuing permits to
more than one applicant for
participation by one person in the
charter halibut fishing business.
Unavoidable circumstances. NMFS
recognizes that certain unavoidable
circumstances could have prevented 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 for groundfish and
crab fisheries at 50 CFR 679.4(k).
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
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• The unavoidable circumstance
actually occurred.
The unavoidable circumstance
exception will be limited to persons that
will be excluded from the fishery
entirely unless their unavoidable
circumstance is recognized. The
unavoidable circumstance exception is
not intended to upgrade the number or
type of permits an applicant could
receive. For example, NMFS will 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 intends a
narrow interpretation of the
unavoidable circumstance exception,
and that, if an applicant can get any
charter halibut permit based on the
applicant’s actual participation, then the
applicant will be limited to that permit.
This rule also recognizes a particular
type of unavoidable circumstance,
military service. The military exemption
is designed to benefit persons that will
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 can receive any
permits based on the applicant’s actual
participation in the qualifying period,
the applicant will be limited to that
number and type of permits and cannot
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
successful military exemption applicant
will receive one non-transferable permit
with an angler endorsement of six
unless the applicant can demonstrate
that it likely would have met
participation requirements for a
transferable permit or a higher angler
endorsement.
Transfers
A person holding a transferable
charter halibut permit may transfer the
permit to another person (individual or
non-individual entity) with certain
limitations. Non-transferable charter
halibut permits may not be transferred.
Transferability of permits will allow
limited new entry into the charter
halibut fishery while preventing an
uncontrolled expansion of the charter
halibut fishery.
NMFS expects consolidation in the
charter halibut fishery as holders of
non-transferable permits leave the
fishery and as charter halibut operators
acquire multiple permits by transfer.
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557
Excessive consolidation will be
prevented by imposing an excessive
share limit of five charter halibut
permits.
Two important exceptions to this
excessive share limit, however, will
allow a person to hold more than five
permits. First, a person that is the initial
recipient of more than five permits will
be able to continue to hold all of the
permits for which the person initially
qualified. Such a person will be
prevented from receiving transfers of
additional permits. This exception will
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 will
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 will not apply to the new entity.
Upon notification of a change, NMFS
would (1) invalidate transferable charter
halibut permits held by the permit
holder and provide notification that the
permit holder must divest themselves of
the permit; and (2) revoke nontransferable charter halibut permits held
by the permit holder.
The second exception will allow a
transfer that results in the person
receiving the transfer holding more than
five permits if the person meets the
following three conditions:
• The existing permit holder that
holds more than five permits under the
first exception will be transferring all of
the transferable permits that were
initially issued;
• The existing permit holder will be
transferring all assets—such as vessels
owned by the business, lodges, and
fishing equipment—of its charter vessel
fishing business along with the permits;
and
• The person that will receive the
permits in excess of the excessive share
limit does not hold any permits at the
time of the proposed transfer.
Although no citizenship standards
will apply to the initial allocation of
charter halibut permits, a person
receiving a charter halibut permit by
transfer must be a United States (U.S.)
citizen. Issuance of charter halibut
permits to non-U.S. citizens 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 not applying
citizenship standards for the initial
allocation of charter halibut permits. A
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transfer to an individual will be
approved only if the individual is a U.S.
citizen, and a transfer to a corporate
entity will be approved only if it is a
U.S. business with at least 75 percent
U.S. citizen ownership of the business.
This rule 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.
A nontransferable permit cannot be
transferred from the name of the
individual once the individual dies. A
nontransferable permit cannot be
transferred from a non-individual
permit holder (a corporation,
partnership, or other entity) if the nonindividual permit holder dissolves or
changes. This rule 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 nonindividual entity.’’
These limitations on the transfer of
charter halibut permits will be made
effective by a requirement for NMFS
approval for all transfers. No transfer of
a permit will be effective unless it is
first approved by NMFS. A transfer
application provided by NMFS is
required to be completed by the person
transferring and the person receiving the
transferred permit. Completion of the
transfer application and examination of
it by NMFS will assure that the
excessive share and citizenship
requirements of this rule are
maintained, and that non-transferable
permits are dissolved on the death or
change of the permit holder and will not
be transferred to a new entity.
Special Permits
Two types of special permits are
provided by this action for limited
guided sport fishing for halibut outside
of the requirements for charter halibut
permits. First, community charter
halibut permits are intended to allow
development of a charter vessel fishery
in certain rural communities that do not
have a developed charter vessel
industry. Second, a military charter
halibut permit will exempt from this
limited access system charter vessels
operated by the U.S. Military’s Morale,
Welfare and Recreation (MWR)
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programs for recreational use by service
members.
Community charter halibut permit.
One or more community charter halibut
permits may be issued to Community
Quota Entities (CQEs) representing
specified communities that do not
currently have a fully developed charter
halibut fleet. The CQE concept 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). CQEs are defined in
existing regulations at 50 CFR 679.2.
A CQE representing a community or
communities in Area 2C can receive a
maximum of four community charter
halibut permits for each eligible
community the CQE represents. A CQE
representing a community or
communities in Area 3A can receive a
maximum of seven community charter
halibut permits for each eligible
community it represents. The larger
number of community permits allowed
in Area 3A reflects the larger resource
base in that area. A community charter
halibut permit will have an angler
endorsement of six and will be nontransferable.
In addition to community charter
halibut permits, a CQE may acquire
charter halibut permits by transfer. A
unique excessive share limit will apply
to each CQE in Area 2C of a maximum
of four charter halibut permits for each
eligible community the CQE represents
in that area. The combined permit limit
for a CQE in Area 2C is four community
charter halibut permits plus four charter
halibut permits for an overall limit of
eight permits per eligible community.
Similarly, the excessive share limit for
a CQE in Area 3A is a combined permit
limit of seven community charter
halibut permits plus seven charter
halibut permits for an overall limit of 14
permits per eligible community.
A charter vessel fishing trip for
halibut that is authorized by a
community charter halibut permit is
required to either begin or end within
the community designated on the
community charter halibut permit. This
requirement will apply only to
community charter halibut permits and
not to any additional charter halibut
permits that a CQE may acquire by
transfer.
The Council intended to limit the
benefits of community charter halibut
permits to rural communities that have
an emerging but not a fully developed
charter vessel fleet. Instead of listing in
regulations the criteria used by the
Council in selecting community
eligibility, this rule simply specifies
those communities in Areas 2C and 3A
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(see Table 21 to part 679) that meet the
Council’s criteria and will qualify for
community charter halibut permits
issued to CQE(s) representing them. To
add or subtract a community from the
proposed list will require separate
Council action and a regulatory
amendment.
Military charter halibut permit. This
action provides for special permits for
charter vessels operated by any U.S.
Military 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 military charter halibut permit
by application to NMFS. Each military
charter halibut permit will be nontransferable and valid only in the
regulatory area designated on the
permit. NMFS reserves the right to limit
the number of these permits.
Consistency With Halibut Act
As described at the beginning of this
preamble, this action is authorized by
the Halibut Act at section 773c. Section
773c(c) specifically authorizes the
Council to develop and the Secretary to
approve limited access regulations
applicable to nationals or vessels of the
United States or both. Such regulations
are required by this section of the
Halibut Act to be consistent with four
basic standards. The following
discussion summarizes these statutory
standards and the rationale used by the
Secretary in approving the Council’s
recommendation and this rule
implementing a limited access system
for charter vessels in the guided sport
fishery for halibut in IPHC regulatory
Areas 2C and 3A.
Section 773c(c) of the Halibut Act
requires limited access regulations to
be—
• In addition to and not in conflict
with regulations adopted by the IPHC;
• Non-discriminatory between
residents of different States;
• Consistent with the limited entry
criteria set forth in 16 U.S.C 1853(b);
and
• Fair and equitable to all fishermen,
based on the rights and obligations in
Federal law, reasonably calculated to
promote conservation, and carried out
in such a manner that no particular
individual, corporation, or other entity
acquires an excessive share of halibut
fishing privileges.
No Conflict With IPHC Regulations
Regulations governing halibut
fisheries that are recommended by the
IPHC are accepted or rejected on behalf
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of the United States by the Secretary of
State, with the concurrence of the
Secretary, pursuant to section 773b of
the Halibut Act. Accepted IPHC
regulations are published as annual
management measures pursuant to 50
CFR 300.62. The current annual
management measures were published
in the Federal Register on March 19,
2009 (74 FR 11681). IPHC regulations
affecting sport fishing for halibut and
charter vessels in Areas 2C and 3A may
be found in sections 3, 25, and 28 of the
IPHC regulations (74 FR 11681, March
19, 2009).
The IPHC regulations at section 3 of
the annual management measures
include definitions of terms, some of
which are related to this action, such as
‘‘charter vessel’’ and ‘‘sport fishing.’’
This action removes a different
definition of ‘‘charter vessel’’ from 50
CFR 300.61 that could have raised a
conflict question. The definition of the
term ‘‘charter vessel’’ at 50 CFR 300.61
resulted from 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 integrates 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. The
universal definition of ‘‘charter vessel’’
will continue to be that used by the
IPHC and appearing in the annual
management measures. Hence, no
conflict is found between this action
and the IPHC regulations concerning
this definition.
The IPHC regulations at section 25 of
the annual management measures
specify the legal gear for sport fishing
for halibut, specify which halibut count
toward the daily bag limit, and prohibit
possession of halibut on board a vessel
while fishing in a closed area and when
other fish or shellfish on board the
vessel are intended for commercial use.
Section 25 also prohibits halibut caught
by sport fishing from being offered for
sale, sold, traded, or bartered. Finally,
section 25 makes an operator of a
charter vessel liable for any violation of
the IPHC regulations by a passenger on
board the vessel. Regulations in this
action are in addition to, and not in
conflict with, the IPHC regulations at
section 25.
The IPHC regulations at section 28 of
the annual management measures
establish sport fishing rules specific to
Convention waters in and off of Alaska.
Specifically, these regulations specify
the sport fishing season, daily bag limit
of halibut per person, the possession
limit, and a prohibition against filleting
halibut to support enforcement of the
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daily bag and possession limits.
Exceptions to the filleting prohibition
also are provided at section 28.
Regulations in this action are in
addition to, and not in conflict with, the
IPHC regulations at section 28.
No Discrimination Between Residents of
Different States
Regulations in this action do not
discriminate between residents of
different states. All charter business
owners are treated the same regardless
of their residency with respect to their
eligibility to receive an initial allocation
of a charter halibut permit or a transfer
of a charter halibut permit. Likewise,
neither the community charter halibut
permit nor the military charter halibut
permit is restricted in terms of the State
of residency of the person who will use
the permit. Charter vessel anglers who
receive sport fishing guide services from
businesses affected by this rule also are
not discriminated against in terms of the
State of their residence. Such anglers
will have the same opportunity to
contract with businesses that possess
charter halibut permits regardless of the
location of the angler’s residence.
Consistency With Limited Entry Criteria
The limited entry criteria referred to
in section 773c(c) of the Halibut Act
appear at section 303(b)(6) of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act, 16 U.S.C. 1801
et seq.). These criteria appear under the
heading of discretionary provisions for
the Council and Secretary, and they
read, and are discussed in turn, as
follows:)
(b) Discretionary provisions. [The Council
or Secretary] with respect to any fishery,
may—
(6) Establish a limited access system for the
fishery in order to achieve optimum yield if,
in developing such a system, the Council and
the Secretary take into account—
(A) Present participation in the fishery;
(B) Historical fishing practices in, and
dependence on, the fishery;
(C) The economics of the fishery;
(D) The cultural and social framework
relevant to the fishery and any affected
fishing communities;
(F) The fair and equitable distribution of
access privileges in the fishery; and
(G) Any other relevant considerations.
Optimum yield. This term is defined
in the Magnuson-Stevens Act at section
3(33) in terms of providing the greatest
overall benefit to the Nation, and
prescribed on the basis of maximum
sustainable yield as reduced by any
relevant economic, social, or ecological
factor. Also, at section 301(a)(1), the
Magnuson-Stevens Act states that
conservation and management measures
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559
must prevent overfishing while
achieving optimum yield. This is one of
ten national standards established by
the Magnuson-Stevens Act with which
any fishery management plan (FMP) or
regulation implementing an FMP must
be consistent.
The U.S. halibut fisheries are not
managed under an FMP because the
halibut fisheries are governed under the
authority of the Halibut Act, not the
Magnuson-Stevens Act. The Halibut Act
does not require the U.S. halibut
fisheries to be managed under an FMP.
Therefore, specification of optimum
yield for halibut is not required by
statute and has not been determined.
Nevertheless, the IPHC takes a
conservative approach in setting the
commercial fishery catch limits for the
areas in and off Alaska while leaving
economic and social balance questions
to the Council. In essence, IPHC
biologists determine a biologically
acceptable level of harvest from all
sources of halibut mortality, estimate
the anticipated harvest from all noncommercial sources of fishing mortality,
subtract the latter from the former, and
set a commercial fishery catch limit
based on the remainder. The overall
harvest rate targeted by the IPHC is 20
percent of the exploitable biomass. The
realized rate in recent years, however,
has been substantially above the
targeted harvest rate. Therefore, to the
extent that the limited access system
established by this rule can stabilize the
halibut harvest by the charter halibut
fishery, it will contribute to the
achievement of the overall target harvest
rate of halibut.
Present participation. The Council
took into account present participation
in the charter halibut fisheries as it
considered alternative participation
criteria. The Council took its action to
recommend this rule to the Secretary on
March 31, 2007. At that time, the most
recent information on participation in
these fisheries was from 2004 and 2005
ADF&G saltwater charter vessel
logbooks. Logbook data from
participation in 2006 was not yet
available for the Council’s Analysis (see
ADDRESSES). In addition, the ADF&G
logbook data were not specific to charter
vessel fishing trips targeting halibut, per
se, but indicated ‘‘bottomfish’’ fishing
instead. However, the predominate
bottomfish targeted in Alaska saltwater
sport fisheries is halibut. Hence,
bottomfish was assumed to be a
reasonable proxy for halibut fishing.
Further, the Council chose to accept any
ADF&G saltwater logbook entry
indicating a bottomfish statistical area,
rods, or boat hours as evidence of
participation during 2004 and 2005. The
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Council was aware that this would
result in a liberal estimate of
participation in the charter halibut
fisheries, but this decision was
reasonably based on the best available
information. With this understanding,
the Council proceeded to consider
alternative levels of participation, in
terms of numbers of logbook fishing
trips ranging from 1 to 20 trips or more,
as an indication of participation during
2004 and 2005.
The Council has recommended, and
the Secretary has approved, several
other limited access systems before this
action, and the Council knew that two
or three years could pass before its
recommendation for this limited access
system was fully reviewed, approved,
and implemented. In developing this
limited access system, the Council
addressed the potential of a rush of new
entrants into the charter halibut fishery
during the period of time the Council
and the Secretary worked to develop
and implement the system by specifying
a minimum participation criterion in a
recent participation period. The Council
referred to this recent participation
period as the ‘‘year prior to
implementation.’’ In 2007, the year of
Council action, the year prior to
implementation was an unknown year
in the future. In the proposed rule (April
21, 2009, 74 FR 18178), NMFS
interpreted the ‘‘year prior to
implementation’’ for practical purposes
to mean the most recent year for which
participation data are available. The
most recent year for which ADF&G
saltwater log book data are available
now is 2008. Therefore, the Council’s
original Analysis of participation
patterns was supplemented with 2008
logbook data indicating participation in
the most recent year. This is currently
the best information available on
present participation in the charter
halibut fisheries in IPHC Areas 2C and
3A.
The Council’s policy recommendation
to grant charter halibut permits based in
part on participation in at least two
years—one of the qualifying years, 2004
or 2005, and the recent participation
year, 2008—served several purposes.
One was to comply with the MagnusonStevens Act 303(b)(6) criteria of taking
into account present and historical
participation.
The second purpose was to stabilize
growth in the charter halibut fisheries,
a long-term objective of this limited
access system. Due to the length of time
needed to develop a limited access
policy, conduct analyses of alternative
policies, consider public comments,
review and approve (or disapprove) a
Council recommendation, and (if
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approved) implement the
recommendation with Federal
regulations, the entry of new charter
halibut fishing effort during this time
could significantly change the halibut
harvesting capacity from when the
Council’s policy decision was made in
March 2007. Specifying minimum
participation criteria in a recent
participation year in addition to a
qualifying year served the purpose of
discouraging new entry into the affected
charter halibut fisheries during the
intervening years.
The Council and the Secretary
provided further public notice to
discourage prospective new entry into
the charter halibut fisheries when the
Council acted to establish a control date
of December 9, 2005. The Council
determined that anyone entering the
charter halibut fishery in and off Alaska
after this date would not be assured of
future access to that fishery if a limited
access system of management was
developed and implemented under
authority of the Halibut Act. In addition
to public announcement of this action at
its meeting in December 2005, the
Council also published this date in its
December 2005 and February 2006
newsletters (http://
www.alaskafisheries.noaa.gov/npfmc/
newsletters/newsletters.htm). The
Secretary also published a notice of this
date in the Federal Register on February
8, 2006 (71 FR 6442).
The third purpose served by the
Council’s choice of present and
historical participation years to qualify
for an initial allocation of a charter
halibut permit is to establish an
objective and measurable indicator of
dependence on the fishery. The Council
reasoned in developing this and several
other limited access systems that
participation is a good indication of
dependence on the fishery. Fishermen
with a relatively greater participation in
a fishery likely have a relatively greater
dependence on the fishery for their
livelihood than do other fishermen with
relatively less participation. The
difficult policy choice for the Council
and Secretary is to determine where on
the range, from little to large amount of
participation, a decision should be
made affecting future participation in
the fishery. The Analysis of the
potential effects of alternative decisions
supports the ultimate policy choice (see
ADDRESSES).
For commercial fisheries,
participation is often measured in
pounds of the targeted fish species
landed. Charter vessel businesses,
however, primarily market a sport
fishing experience rather than pounds of
fish caught. Logbook fishing trips are a
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better measure of participation in the
charter halibut fisheries than are pounds
of halibut caught and retained. Hence,
the Council used logbook fishing trips
as a measure of participation in the
charter halibut fisheries.
Further, the Council determined the
level of minimum participation in both
years—the historical, 2004 or 2005, and
present participation, 2008—indicated a
reasonable dependence on the charter
halibut fishery. Using participation in a
past and a recent year together
demonstrates dependence on the fishery
to a greater extent than using only one
year of participation as a qualifying
criterion. A charter halibut business
with a record of at least minimal
participation in both years likely
participated also in the intervening
years, and likely continues to
participate now. Therefore, these are the
businesses that the Council decided
should receive an initial allocation of
charter halibut permits. On the other
hand, charter halibut businesses that
participated only in the historical
period but not in the recent
participation period likely exited the
charter halibut industry before the
recent participation period and,
therefore, are no longer dependent on
the fishery. Conversely, charter halibut
businesses that participated only in the
recent period but not in the historical
period likely entered the fishery after
the control date. These businesses
comprise a group of charter halibut
participants that the Council and
Secretary specifically discouraged from
entry by announcing that their
participation would not necessarily be
recognized (71 FR 6442, February 8,
2006).
The Secretary has approved and
adopted this rational basis for taking
into account present participation.
Historical fishing practices. The
Analysis took into account historical
fishing practices in and dependence on
the charter halibut fisheries (see
ADDRESSES). The Council examined the
potential effects of several alternative
minimum qualifying logbook trips
during this period before making its
recommendation. As explained above,
the choice of minimum qualifying
logbook trips during this historical
participation period in combination
with those during the recent
participation period (2008) was critical
to a determination of dependence on the
charter halibut fishery. Those charter
halibut businesses that met the
minimum logbook trip criteria were
determined to be sufficiently dependent
on the charter halibut industry to
warrant them receiving an initial
allocation of one or more charter halibut
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permits. The Secretary has approved
and adopted the Council’s rational basis
for taking into account historical fishing
practices in and dependence on the
charter halibut fisheries.
Economics. The Council and the
Secretary have taken into account the
economics of the charter halibut fishery.
The Analysis prepared by the Council
and supplemented and approved by the
Secretary includes a Regulatory Impact
Review (RIR) and Final Regulatory
Flexibility Analysis (FRFA) (see
ADDRESSES). These documents
respectively include analysis of
potential costs and benefits and analysis
of potential impacts on small entities as
defined by the Regulatory Flexibility
Act. This Analysis contains information
describing the principal sectors that fish
for halibut and incorporates earlier
descriptions by reference. Each of the
components of the preferred alternative
is analyzed separately in the RIR. The
impacts of the preferred alternative, and
two other significant alternatives, on
user industry and consumer groups in
the commercial and charter halibut
fisheries are compared in the RIR. A
FRFA provides an analysis of the
impacts of the preferred alternative on
small entities. The Council accepted
testimony from the public, much of
which addressed economic concerns.
NMFS has supplemented the Analysis,
prepared for the Council’s decisionmaking and to accompany the
publication of the proposed rule, with
an updated analysis of the impacts of
the preferred alternative in light of
specification of the recent participation
period (see ADDRESSES). This
information was not previously
available. NMFS accepted and evaluated
comments on the proposed rule, many
of which raised economic issues. The
summary of public comments and
NMFS’s responses to them may be
found below.
Capability to engage in other fisheries.
The Council and the Secretary have
taken into account the capability of
vessels used in the guided sport fishery
for halibut to engage in other fisheries.
The Analysis prepared by the Council,
supplemented and approved by the
Secretary, includes a description of the
affected fleet and industry. In brief, the
charter halibut industry provides
marine transportation and sport fishing
guide services to anglers wishing to
catch halibut. Charter vessel businesses
provide these services also to anglers
wishing to catch salmon, rockfish,
lingcod, and other bottomfish. In
addition, charter vessel businesses may
provide marine transportation for bird
watching, whale watching, and general
sightseeing. Passengers using these
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services may be independent tourists,
guests at lodges, or travelers on cruise
ships. Charter vessel businesses may
focus their business plan on sport
anglers wishing to catch halibut, but
other business plans are possible given
the variety of reasons why an individual
may want to engage the services of a
charter vessel.
Cultural and social framework. The
Council and the Secretary have taken
into account the cultural and social
framework relevant to the charter
halibut fishery and affected fishing
communities. The Council received
substantial public testimony during the
early development of this rule which
influenced the design of elements
included for Secretarial consideration.
The Secretary in turn has received
public comments on cultural and
socioeconomic aspects of this rule, has
considered these comments and
responded to them below. The Analysis
of alternatives (see ADDRESSES) reflects
this consideration by finding numerous
communities with little charter vessel
activity while a few communities have
a well-established charter vessel
industry, as indicated by the numbers of
vessels that terminated charter vessel
trips in coastal communities during the
qualifying years. Hence, this action
supports limited development of a
charter halibut fishery in specific rural
communities through a special
community charter halibut permit
program.
Community charter halibut permits
will be issued under this rule at no cost
to CQEs representing communities that
do not currently have a fully developed
charter halibut fleet. The CQE provision
was previously developed by the
Council for the IFQ program to help
certain rural communities become more
involved in the commercial fisheries for
halibut and sablefish. In this action, the
CQE provision serves the same purpose
for the development of the charter
vessel industry based in any of 18 rural
communities in Area 2C and 14 rural
communities in Area 3A. The purpose
and design of the CQE provision is more
fully described in the proposed rule
published April 21, 2009 (74 FR 18178).
The Council also recommended, and
the Secretary approved, another special
permit for military recreation purposes.
This took into account the existence of
morale, welfare, and recreation (MWR)
programs operated by the U.S. military
and their importance to the recreational
opportunities afforded to military
services.
The Council and Secretary also have
taken into account unique social and
cultural aspects of the charter halibut
fishery by providing for certain
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561
hardships or unavoidable circumstances
in qualifying for a charter halibut
permit. The design and conditions for a
charter halibut permit based on
unavoidable circumstances are fully
described in the proposed rule
published April 21, 2009 (74 FR 18178).
Fair and equitable distribution of
access privileges. The Council and the
Secretary have taken into account the
fair and equitable distribution of access
privileges to the halibut resource.
Although this action may cause some
restructuring within the charter vessel
industry, no individual sport angler will
be prevented from having access to the
halibut resource for sport fishing. Sport
fishermen wishing to fish for halibut on
a charter vessel likely will be able to
hire an operator or guide with a charter
halibut permit as easily after the
implementation of this rule as was done
before that time.
Further, persons wishing to enter the
charter vessel industry will be able to do
so. This rule does not prevent any
person from entering the charter vessel
industry or becoming an operator of a
charter vessel. An operator or business
with a halibut fishing clientele, but that
does not qualify for an initial allocation
of one or more charter halibut permits,
would have to obtain a transferable
charter halibut permit by transfer.
Alternatively, a charter vessel business
that had such minimal participation that
it does not qualify for a charter halibut
permit under the Council’s qualification
criteria could change its business model
to one that does not involve fishing for
halibut. Although this rule does not
prevent most persons from entering the
charter halibut fishery, those persons
that receive an initial allocation of
charter halibut permits will have a
competitive advantage over those that
will have to pay for transfer of these
permits. The rationale for making a
distinction between these two groups is
to end the opportunities for unlimited
growth in charter vessel operations that
may fish for halibut by establishing a
finite number of charter vessels
authorized for guided sport halibut
fishing based on the historical and
present participation criteria outlined
above. This action is intended to
support the Council’s approved policy
of allocating the halibut resource among
all fishing sectors and providing
continued participation by those
operations most dependent on the
halibut resource.
Other relevant considerations. The
Council and the Secretary have taken
into account other factors to allow
limited additional participation in the
charter halibut fisheries than would
otherwise be allowed without certain
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exceptions to the qualifying criteria.
First, an initial allocation of nontransferable charter halibut permits will
be allocated to persons with a low level
of participation. The minimum number
of logbook fishing trips in one of the
qualifying years—2004 or 2005—and in
the recent participation year—2008—is
five. Dependence on the halibut
resource will be difficult to demonstrate
for charter vessel businesses that made
only 5 to 14 logbook fishing trips,
relative to those businesses that made
15 or more trips. These lowparticipation charter businesses likely
are small and operate part time, but
together they supply a significant
market for charter vessel anglers.
Excluding the low-participation charter
businesses from initial allocation of
charter halibut permits could have
constrained charter vessel angler
opportunities. Allowing lowparticipation charter businesses to
qualify for transferable charter halibut
permits, however, would have created a
large latent capacity to expand charter
vessel angler opportunities. Hence,
these low-participation charter
businesses are allowed to qualify for
non-transferable charter halibut permits
to continue their current operations but
not provide a source for significant
expansion of charter halibut fishing in
the future.
Second, consideration of unavoidable
circumstances is specifically recognized
by the Council and the Secretary. Such
circumstances must have been unique to
a particular person, unforeseen and
unavoidable, and must have prevented
a potential participant in the charter
halibut fishery from participation as
intended during either the qualifying or
recent participation years. This
hardship provision allows for an
appeals process that may result in the
potential allocation of non-transferable
or transferable charter halibut permits
that would otherwise be denied. A
special military service hardship
provision was included for a charter
halibut permit applicant that meets the
participation requirement during the
recent participation period but not
during the qualifying period due to U.S.
military service.
Finally, the Council and Secretary
allowed an exemption for charter
vessels operated by any U.S. Military
MWR program in Alaska. A special nontransferable military charter halibut
permit will be issued to a MWR program
without regard for previous
participation in the charter halibut
fisheries. NMFS reserves the right to
limit the number of these permits.
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Fair and Equitable, Promotes
Conservation, and Avoids Excessive
Share
The Halibut Act at 16 U.S.C. 773c(c)
states the following:
If it becomes necessary to allocate or assign
halibut fishing privileges among various
United States fishermen, such allocation
shall be fair and equitable to all such
fishermen, based upon the rights and
obligations in Federal law, reasonably
calculated to promote conservation, and
carried out in such a manner that no
particular individual, corporation, or other
entity acquires an excessive share of halibut
fishing privileges.
The following discusses the
consistency of this action with each of
these three standards.
Fair and equitable. The ‘‘fair and
equitable’’ requirement in the Halibut
Act quoted above is substantially the
same as the ‘‘fair and equitable’’
requirement found at 16 U.S.C.
1851(a)(4), i.e., National Standard 4 of
the Magnuson-Stevens Act. The only
difference is the addition of the word
‘‘halibut’’ before ‘‘fishing privileges’’ in
the provision in 16 U.S.C. 773c(c).
Because of this similarity, the National
Standard 4 guidelines promulgated by
NMFS help to illustrate why this action,
even though it is taken under the
Halibut Act and not the MagnusonStevens Act, meets the statutory
requirement. An allocation of fishing
privileges should be rationally
connected to the achievement of
optimum yield or the furtherance of a
legitimate fishery management objective
under the guidelines to National
Standard 4 (50 CFR 600.325(c)(3)(i)(A)).
The Council and NMFS have articulated
a legitimate objective for this action,
that is, to be a step toward establishing
a comprehensive program of allocating
the halibut resource among the various
halibut fisheries (guided and unguided
recreational, commercial, and
subsistence). To accomplish this
objective, the Council and NMFS found
a need to stabilize growth in the charter
halibut sector.
Further, the guidelines to National
Standard 4 acknowledge that inherent
in an allocation is the advantaging of
one group to the detriment of another.
The motive for taking a particular
allocation should be justified in terms of
fishery management objectives;
otherwise, the disadvantaged user
groups or individuals will suffer
without cause (50 CFR
600.325(c)(3)(i)(A)). The fishery
management objective of this action has
been articulated by the Council and
NMFS, starting with the 1995 problem
statement by the Council and
continuing through this final rule (cf.,
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history of charter vessel fishery
management concerns and limited
access development published on
February 8, 2006 [71 FR 6442], and
April 29, 2009 [74 FR 18178]). These
statements demonstrate that the Council
was concerned about overcrowding of
productive halibut grounds due to the
growth of the charter vessel sector and
that expansion of this sector may affect
‘‘the Council’s ability to maintain the
stability, economic viability, and
diversity of the halibut industry, the
quality of the recreational experience,
the access of subsistence users, and the
socioeconomic well-being of the coastal
communities dependent on the halibut
resource.’’
Finally, the guidelines to National
Standard 4 state that an allocation may
impose a hardship on one group if it is
outweighed by the total benefits
received by another group or groups.
‘‘An allocation need not preserve the
status quo in the fishery to qualify as
‘fair and equitable,’ if a restructuring of
fishing privileges would maximize
overall benefits’’ (50 CFR
600.325(c)(3)(i)(B)). In this action, the
Council and NMFS found that the total
benefits to the charter halibut fishery
will be increased relative to the status
quo. The hardship of not qualifying for
an initial allocation of a charter halibut
permit will be borne by those who
entered the charter halibut fishery after
2005 despite the Council’s control date
notice that such persons would not be
assured of future access to this fishery
if a limited access system is
implemented (71 FR 6442, February 8,
2006). Overall benefits of this rule,
however, will accrue to those businesses
in the charter halibut fishery that were
established and participating during the
qualifying and recent participation
years.
Promotes conservation. Although
biological conservation of the halibut
resource is not the principal purpose of
this rule, it will promote conservation
by fostering a more easily managed
charter halibut fishery. When any
fishery resource is fully subscribed
among the various fishery sectors using
it, the uncontrolled growth in one sector
will disadvantage the other sectors. The
Analysis (see ADDRESSES) indicates that
the charter sector is the second largest
(after the commercial fishery) of all the
sectors using the halibut resource in the
two IPHC regulatory areas to which this
rule applies. Whereas growth of the
commercial fishery sector is constrained
by the IFQ program and catch limits
stipulated by the IPHC, growth in the
non-commercial sectors is not similarly
constrained. This presents no fishery
management problem provided that all
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of the non-commercial sectors exhibit
relatively static growth over time such
that year-to-year assumptions about
their harvest prove to be correct. The
charter halibut fishery has grown in
recent years, however, depending on the
demand for halibut by charter vessel
anglers. Although this rule is not
designed primarily to limit the harvest
by the charter halibut fisheries, it will
make existing and future harvest
restrictions more effective because
conservation gains from individual
harvest restrictions will not be eroded
by unlimited growth in the fleet of
charter vessels fishing for halibut. In
this manner, this rule will contribute to
the achievement of the overall target
harvest rate of halibut established by the
IPHC.
Avoids excessive share. An excessive
share of halibut fishing privilege is not
defined in either the Halibut Act or in
the National Standard 4 guidelines. The
latter states simply that an allocation
must deter any entity from acquiring an
excessive share of fishing privileges,
and avoid creating conditions that foster
inordinate control by buyers and sellers
(50 CFR 600.325(c)(3)(iii)).
This rule sets an excessive share
standard of five charter halibut permits.
Existing businesses that initially qualify
for more than five permits will be able
to continue business at levels above this
excessive share standard; however, they
will be prevented from acquiring more
permits than their initial allocation.
Transfers of a permit or permits that
will result in the person, business, or
other entity receiving the permit(s)
holding more than five permits will not
be approved by NMFS with limited
exception.
Some consolidation of charter halibut
permits may occur under this rule, but
will be limited by the five-permit
excessive share standard. Further, the
number of businesses that are allowed
an initial allocation of permits in excess
of this standard will not increase. A 10
percent ownership criterion will apply
to prevent a corporation from exceeding
the excessive share standard by owning
or controlling subsidiary businesses
each holding the maximum number of
permits. The 10 percent ownership
criterion is the same as that 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 owns
or controls 10 percent or more of the
other. Hence, an excessive share of
privileges to operate charter vessels
fishing for halibut is prevented and the
dominance of any businesses in the
charter halibut fishery will not be
allowed to increase any more than it is
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at the time of initial allocation of
permits.
Comments and Responses
This action was published as a
proposed rule on April 21, 2009 (74 FR
18178), and public comments on it were
solicited until June 5, 2009. NMFS
received 166 comment submissions
containing 157 unique comments. These
comments were reviewed, organized
into seven topical categories, and
responded to as follows:
Fairness and Legal Authority
Comment 1: The proposed rule does
not meet the National Standards for
Fishery Conservation and Management
as defined in the Magnuson-Stevens Act
(16 U.S.C. 1851(a)(4)).
Response: This action is authorized
by the Halibut Act at section 773c, not
the Magnuson-Stevens Act. Section
773c(c) of the Halibut Act provides the
requirements that must be met by the
Council and the Secretary when
developing and implementing
regulations for halibut. The Secretary
has found this rule to be consistent with
this requirement of the Halibut Act as
explained above under the heading
‘‘Consistency with Halibut Act.’’
Comment 2: The Halibut Act of 1982,
(at section 773c(c)) states that rules shall
be fair and equitable and they shall not
discriminate among participants.
Response: The Halibut Act at the
section cited actually prohibits
discrimination between residents of
different States. This rule does not
discriminate between residents of
different States as the criteria for an
initial allocation of charter halibut
permits applies to all applicants
regardless of the State in which they
reside. This action complies with the
requirements of the Halibut Act, as
discussed in the ‘‘Consistency with
Halibut Act’’ section above.
Comment 3: Several comments stated
that the proposed rule is not fair and
equitable because it requires applicants
to demonstrate participation in the
halibut charter fisheries in 2004 or 2005
(historical participation period). The
comments note that the historical
participation requirement illegally
discriminates against businesses that are
currently in operation because:
• The proposed rule would impose ex
post facto regulations, contrary to the
Constitution of the United States;
• The Magnuson-Stevens Act at 16
U.S.C. 1853(b)(6) states that when
implementing a limited entry program,
present participation and historical
practices must be considered. It does
not say anything about historical
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563
participation on which NMFS is basing
this rule;
• While obtaining all relevant
licenses and permits to operate a charter
business, there was no notification by
the licensing agencies that rules were
being made that would retroactively
disallow charter operators from
continuing to operate their businesses;
• Many small business owners will
not have the right to appeal under the
unavoidable circumstances provision as
the proposed rule states that an
applicant must demonstrate that it had
a specific intent to participate in the
qualifying period; and
• The proposed rule clearly shows
the Council’s intention to act favorably
towards the charter vessels that
operated during 2004 and 2005 by
excluding charter businesses that started
operating between 2006 and 2009.
Response: This rule is not illegal or
contrary to the U.S. Constitution. An ex
post facto law is a law passed after the
occurrence of an event or action which
retrospectively changes the legal
consequences of the event or action.
That is not the case with this rule. This
rule does not make charter halibut
fishing that was legally performed after
2005 and before the effective date of this
rule illegal, but instead establishes
specific eligibility criteria for receiving
a harvest privilege. Hence, this rule does
not change the legal consequences of
past participation in the charter halibut
fishery. Persons who entered the fishery
after 2005, however, had constructive
notice, published February 8, 2006 (71
FR 6442), that they were not assured of
future access to the charter halibut
fishery if a management regime, such as
the one implemented by this rule, were
implemented.
The Council and the Secretary
considered historical practices in the
charter halibut fisheries in Areas 2C and
3A by looking at the number of charter
vessel businesses and vessels
participating in these fisheries, the
range in the number of logbook fishing
trips made, and the number and
distribution of communities in which
these fishing trips terminated in 2004
and 2005. These factors are reasonable
measures of dependence on the charter
halibut fisheries. See also the discussion
of historical fishing practices above
under the heading ‘‘Consistency with
Halibut Act.’’
Prior to this rule, NMFS has not
implemented any licensing
requirements for operators of vessels
with one or more charter anglers
onboard. However, the Council has a
long history of developing management
measures for the charter halibut fishery,
as described in the preamble to the
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proposed rule (74 FR 18178, April 21,
2009), and the control date notice
published February 8, 2006 (71 FR
6442). Persons entering the charter
halibut fishery for the first time after
2005 were on notice that their future
access to that fishery was not assured.
Regarding an appeal, all charter
halibut permit applicants have a right to
an appeal under § 300.67(h)(6) of this
rule. However, if a charter vessel
business was not started until 2006 or
later and cannot demonstrate that it
intended to participate in prior years, it
will not be able to meet the criteria for
the unavoidable circumstance
exception. See the response to Comment
109 for a discussion of the unavoidable
circumstances exception to the charter
halibut permit qualification
requirements.
The Council selected 2004 and 2005
as the qualifying years because those
were the most recent years for which the
Council had information on
participation in the charter halibut
fishery when it acted in early 2007. The
Council did not select a larger number
of qualifying years because the normal
entry and exit from the charter halibut
fishery from year to year could result in
more charter halibut permits than
vessels participating in any one year
with a qualifying period of too many
years. The choice of combining
minimum participation during a
qualifying year and the recent
participation year further serves the
purpose of limiting charter halibut
permits to those businesses that have
demonstrated a long-term commitment
to the charter halibut fishery and gives
consideration to present participation
and historical dependence, factors that
must be considered pursuant to the
Halibut Act.
Before developing eligibility criteria
for the charter halibut limited access
system, the Council announced a
control date of December 9, 2005, to
provide notice to any person
contemplating entry into the charter
halibut fishery after that date. A control
date notice published in the Federal
Register on February 8, 2006 (71 FR
6442), further indicated that future
access to the charter halibut fishery was
not necessarily assured to persons
entering the fishery for the first time
after that date.
Comment 4: One commenter
proposed changes to the moratorium to
make it fair, equitable, and nondiscriminatory. These changes included
revising the charter halibut permit
qualification criteria to require
participation only in more recent years
and making all charter halibut permits
transferable to allow established
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businesses to grow by purchasing
permits.
Response: Although alternative
programs might be found to be fair and
equitable and non-discriminatory, as
required by the Halibut Act, this rule
was developed by the Council to meet
its stated objectives. The Council
intended to recognize historical and
recent participation by granting permits
to charter businesses that demonstrate
consistent participation in and
dependence on the charter halibut
fisheries. The Council also
recommended a higher participation
requirement for transferable permits
than for non-transferable permits to
balance its objective to reduce fishing
effort and its objective to minimize
disruption to the charter fishing
industry. The Council’s recommended
qualifying criteria for transferable
charter halibut permits will allow
businesses to grow by purchasing
additional permits up to the excessive
share limit of five charter halibut
permits, which is consistent with the
commenter’s suggestion. NMFS finds
that this rule meets the requirements of
the Halibut Act (see discussion above
under the heading ‘‘Consistency with
Halibut Act’’).
Comment 5: The Council does not
have the authority to ban charter
businesses that began operating between
2006 and 2009 from operating a guided
halibut fishing business, or to include
rules that merely allocate the harvest
level among users rather than reduce the
harvest level as required by agency
goals.
Response: The Halibut Act, at section
773c(c), provides authority to the
Council and the Secretary to ‘‘develop
regulations governing the United States
portion of Convention waters, including
limited access regulations, applicable to
nationals or vessels of the United States
or both’’ The Halibut Act, at 16 U.S.C.
773c(a) and (b), also provides the
Secretary with general responsibility to
carry out the Convention, the Halibut
Act, and to adopt such regulations as
may be necessary. In reviewing this
rule, the Secretary has found that the
Council’s recommendation for this
limited access system is consistent with
the Halibut Act (see the discussion
above under the heading ‘‘Consistency
with Halibut Act’’).
Fishery management generally, and
management of the halibut fisheries in
particular, is not necessarily limited to
the direct control of harvests. Allocation
of fishing privileges also is specifically
authorized by the Halibut Act if the
regulations that allocate fishing
privileges meet certain criteria. See the
‘‘Consistency with Halibut Act’’ section
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above for further discussion of how this
rule is consistent with all Halibut Act
requirements.
Comment 6: A limited access program
on charter vessels is not a conservation
measure to protect the halibut but an
attempt to limit individuals from the
resource. Since halibut is a resource that
belongs to all citizens, it is only
reasonable that they should have the
first opportunity to harvest what is
rightfully theirs. Charter operators
afford citizens a reasonable opportunity
to catch fish. The people should have
the first opportunity to gather, and the
remains of the annual surplus can then
be opened to commercial harvesting.
Citizens should not be limited from
harvesting their resource until there is a
conservation concern.
Response: This rule is reasonably
calculated to promote conservation as
described above under the heading
‘‘Consistency with Halibut Act.’’ NMFS
agrees that halibut are a public resource;
however, the limited access system
established by this rule does not limit
individual anglers from opportunities to
access the halibut resource. This rule
limits the number of charter vessels in
the guided sport fishery for halibut in
only two of the 10 IPHC regulatory
areas. The Analysis prepared for this
action (see ADDRESSES) estimates that
charter vessel capacity will be sufficient
to meet the demand for the number of
anglers who took guided charter vessel
trips in 2008 in Areas 2C and 3A (see
also response to Comments 21 and 43).
Although charter vessels provide an
important means of access to the halibut
resource, they are not the only way that
the public can access the resource. The
commercial fishery provides access to
halibut to those who prefer to purchase
it in grocery stores or restaurants. The
subsistence fishery provides access to
the halibut resource by those who
qualify to conduct subsistence halibut
fishing. Non-guided recreational fishing
also is a source of public access to the
halibut resource. This rule does not
constrain or limit any of these other
means of public access to the halibut
resource. In fact, the catch limits
specified annually for the commercial
halibut fishery by the IPHC for areas in
and off of Alaska are set after estimated
harvests by all other non-commercial
removals are subtracted from the
constant exploitation yield (see
discussion under ‘‘Management of the
Halibut Fisheries’’ in the preamble to
the proposed rule (74 FR 18178, April
21, 2009).
Comment 7: Commenter urged you to
pass the proposed rule for the guided
halibut fishery. All businesses need
stable, predictable regulation to plan
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and prosper. To foster socioeconomic
stability in our coastal communities and
for the benefit of all Americans and the
resource, I urge you to proceed forward
now with implementation of a longterm, market-based solution that will
put commercial setline and charter
sectors on the same playing field with
equitable rules.
Response: NMFS agrees that this
action establishing a limited access
system for the charter halibut fisheries
in Areas 2C and 3A will contribute to
stabilizing these charter halibut fisheries
and communities with charter vessel
activity. NMFS supports long-term
market based solutions to allocation
problems, such as this program.
Comment 8: The Council should
develop an FMP for halibut and NMFS
should explain the legal basis behind
the absence of an FMP for halibut. An
FMP would assist the Council in
recognizing the differences among user
groups and treating all user groups
equally.
Response: The legal basis for not
having an FMP for Pacific halibut
fisheries is that Pacific halibut fisheries
are managed under the Halibut Act and
the Halibut Act does not require the
Council to develop an FMP. The
comment correctly points out that
section 773c(c) of the Halibut Act also
provides authority to develop
regulations to the regional fishery
management councils, but that this is
limited to regulations ‘‘which are in
addition to and not in conflict with
regulations adopted by the [IPHC].’’
Hence, the Halibut Act speaks only to
the development of regulations, and not
to the development of an FMP. NMFS
agrees that the Halibut Act’s reference to
the limited entry criteria at 16 U.S.C.
1853(b)(6) applies to all halibut fishery
regulations developed by the Council
and approved by the Secretary under
authority of the Halibut Act. These
criteria are essential when
contemplating any regulatory scheme
that would allocate a fishery resource
among competing users. However, an
FMP is not required to make these
criteria effective in the regulatory
process.
An FMP is not needed to recognize
differences among user groups and to
treat all those groups fairly and
equitably. Regardless of an FMP, halibut
fishery regulations must have a rational
basis for their effects. In developing this
rule, the Council and the Secretary
provided a rational basis which in part
is summarized as follows.
First, this rule recognizes that,
although there are communities with
highly developed charter halibut
fisheries, there are also communities
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with unrealized development potential
and has provided for special community
charter halibut permits. These special
permits are intended for start-up charter
vessel operations in communities that
do not have highly developed charter
fisheries and do not have the same
participation criteria as transferable and
non-transferable charter halibut permits.
Hence, this rule recognizes variations in
charter halibut fishing effort among
communities and provides for
communities with potential for charter
industry growth.
Second, this rule focuses on the
guided charter halibut fisheries in Areas
2C and 3A instead of the non-guided
sport fisheries in these areas because the
harvests of the former have been
persistently greater and growing over
time relative to the latter. However,
recreational anglers remain free to
choose between guided and unguided
sport fishing. See also the response to
Comments 6, 21, and 43.
Comment 9: Several comments noted
that a limited entry program being
promulgated under the Halibut Act
must meet the section 303(b)(6)
standards of the Magnuson-Stevens Act.
To ensure that the standards are met,
the comments recommended that NMFS
explicitly address each standard and
explain how each standard is met in the
final rule.
Response: NMFS agrees and addresses
each standard as part of the discussion
above under the heading ‘‘Consistency
with Halibut Act.’’
Comment 10: There is a commercial
bias in the IPHC and the Council. The
IPHC and Council have supported the
commercial sector to the detriment of
the charter fleet. This creates concerns
about the impartiality of the Council
and raises questions as to whether the
Council is making decisions solely to
benefit the commercial sector. The
commercial sector has so many
representatives on the Council that it is
impossible for guided charter operators
to get the Council to acknowledge their
suggestions, comments, or proposals to
work with the commercial sector. Only
the commercial sector is in favor of the
moratorium for the guided charter
sector.
Response: This action is being taken
by NMFS based on a recommendation
by the Council. Actions by the IPHC are
evaluated and approved under a
different process. The process for
selecting Council members is set in
statute and employs mechanisms to
assure representation of the various
States represented on the Council and
fair and balanced apportionment to the
extent practicable. The Council makes
decisions through a public process, and
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in a manner that is consistent with the
requirements of the relevant statutes.
The Council has the authority to
develop regulations to address
allocation issues among different
domestic sector users of halibut in and
off the waters of Alaska, including the
commercial and guided sport fisheries.
This final rule does not unfairly favor
the commercial sector. In December
2005 the Council appointed a Charter
Halibut Stakeholder Committee to
address alternatives for long-term
management of the charter halibut
fishery. The committee had
representation from the sport guided,
unguided, and commercial sectors. The
Council recommended a charter halibut
permit program that was based, in large
part, on recommendations from the
Charter Halibut Stakeholder Committee.
Additionally, the draft EA/RIR/IRFA
prepared for the charter halibut
moratorium (see ADDRESSES was
available for public review throughout
program development and Council
meetings are open to the public. The
Council received oral and written
testimony on the charter halibut
moratorium. Some of the testimony in
support of the charter halibut
moratorium came from charter
operators. Furthermore, NMFS reviewed
the Council’s recommendations for
consistency with the Halibut Act, the
Convention, and other applicable law
and found the current program to be
consistent with those requirements.
Comment 11: An IFQ or quota for
halibut charter fishing is not an
appropriate management solution.
Response: This rule does not
implement an IFQ program for halibut
charter fishing nor does it establish a
quota allocation for the guided charter
vessel sector or individual charter
operators. This action establishes a
limited access system that limits the
number of persons engaged in the
charter halibut fishery in Area 2C and
Area 3A.
Comment 12: The allocation of
halibut between the commercial and
charter sectors is not fair and equitable.
The percentage allocation of the halibut
guideline harvest level (GHL) to the
recreational fisherman in Alaska is
grossly unfair. If this percentage were
increased there would not be a need for
a limited charter fleet.
Response: Adjustments to the GHL are
outside the scope of this action. See the
response to Comments 34 and 35. This
rule is fair and equitable as required by
the Halibut Act (see discussion above
under heading ‘‘Consistency with
Halibut Act’’). Also, harvest amounts by
all sectors do not have to be equal for
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regulations to meet the fair and
equitable standard.
Comment 13: NMFS should limit
commercial halibut catch instead of
limiting the number of charter
operators. According to the Council’s
problem statement, ‘‘overcrowding of
productive halibut grounds [is] due to
the growth of the charter vessel sector.’’
However, a majority of the productive
halibut grounds in Areas 2C and 3A are
currently open to commercial halibut
harvesting. A 15 percent reduction in
the commercial catch limit within 12
miles of shore could relieve the
Council’s concerns with overharvest.
Instead of focusing on limiting the
sport/charter industry, get the
commercial boats that set miles of gear
offshore where they belong and restrict
the large IFQ longliners from fishing
near coastal Alaska communities so they
don’t deplete near-shore halibut stocks
that subsistence and sport users depend
on.
Response: This rule is intended to
curtail growth of fishing capacity in the
guided sport fishery for halibut, which
is consistent with the Council’s problem
statement. Limited access systems are
commonly used to limit the capacity of
fishing fleets that are in need of
management to meet conservation and
socioeconomic objectives as determined
by the Council.
Further restrictions on the
commercial halibut fishery are outside
the scope of this action. The problem
statement referenced in the comment
refers to a problem statement adopted
by the Council that guided its decision
making during the 1995 through 2000
period. The statement was provided in
the proposed rule for this action to
demonstrate that the Council has
discussed and considered the expansion
of the guided sport charter vessel fishery
for halibut since 1995. The problem
statement adopted by the Council that
led to this action can be found in the
executive summary of the Analysis
(ADDRESSES) and speaks to stabilizing
the growth in the charter sector and
addressing allocation issues; it does not
mention overcrowding of productive
halibut grounds.
Comment 14: Several comments noted
that this action is an allocation, and the
Halibut Act requires that allocations of
fishing privileges must be fair and
equitable. The comments assert that the
proposed rule would limit the number
of halibut charter operators in order to
benefit the commercial sector by
reducing the amount of halibut taken by
the charter sector. This is in direct
conflict with the fair and equitable
standard applicable to the allocation of
fishing privileges.
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Response: NMFS agrees that this rule
has an allocation effect which the
Council and the Secretary see as
necessary and which is authorized by
the Halibut Act at section 773c(c).
According to the proposed rule (at 74
FR 18178, April, 21, 2009), the intended
effect of this rule is to ‘‘curtail growth
of fishing capacity in the guided sport
fishery for halibut.’’ NMFS does not
expect growth curtailment to result in
harvest curtailment, at least in the short
term. Any reduction in the harvest by
the charter halibut sector during the
short term more likely will result from
direct harvest controls, such as the daily
bag limit reduction for charter vessel
anglers in Area 2C this year (74 FR
21194, May 6, 2009). Hence, increasing
the halibut harvest by the commercial
setline fishery is not the intent or
expected outcome of this rule.
The Council’s Charter Halibut
Stakeholder Committee developed most
elements of the charter vessel
moratorium program and recommended
it to Council. These elements were
designed to respond to the Council’s
problem statement. The Council
developed the program further after
hearing public testimony on the subject.
The Council subsequently
recommended it to the Secretary under
its Halibut Act authority to do so.
Comment 15: Charter boats should be
limited in Southeast Alaska. Too many
vessels and operations are not owned by
Alaskans and these operations grew
quickly while fishing opportunities
were available. This is particularly true
for operations with six to 30 vessels
(large operations) rather than small
operations with one to three vessels.
The large operations have no regard for
the resource and hire help from down
south and pay low wages. As most of
their captains are from down south as
well, and I question whether they are
qualified to be guiding in a very
unforgiving environment. Why are we
rewarding this behavior by giving them
‘‘forever’’ rights and exclusivity to the
fishery?
Response: Sport fishing lodge
operations with a large number of
charter vessels are as legitimately in
business as are operations with a small
number of charter vessels. Both types of
charter vessel operations provide a
recreational service. The growth in
operations referred to by the comment
may have been associated with growth
in tourism and cruise ship visits to
Southeast Alaska; however, NMFS does
not have information that identifies the
specific reasons for growth in charter
vessel operations.
The assertion that many charter vessel
operations are not owned by Alaskans
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or that some operations hire non-Alaska
residents is not relevant to this final
rule. The Halibut Act prohibits the
Secretary from approving halibut
regulations that discriminate between
residents of different States. This rule
applies to all applicants for charter
halibut permits and permit holders,
regardless of their place of residence.
Wages paid to the staff of charter vessel
operations and the required
qualifications for operators of vessels
with one or more charter anglers
onboard are outside the scope of this
action.
Finally, this rule does not create
permanent exclusive rights to operate in
the charter halibut fishery. A permit is
a privilege that can be revoked if the
permit holder violates specified
conditions of the law. In addition,
holders of transferable charter halibut
permits are expected to transfer some
permits to new entrants to the charter
halibut fisheries. NMFS expects that
over time, transferable permits will
migrate to those operators and areas
where they will be most efficiently
used. Non-transferable permits may be
used by the business owner(s) to whom
they are initially issued but may not be
transferred to another business or
operator. These permits will expire
when an individual permit holder dies.
If the permit holder is a non-individual
entity, non-transferable permits issued
to the business will expire when the
business changes as defined in
regulation at § 679.42(j)(4)(i).
Comment 16: The proposed halibut
charter moratorium is unfair to the
charter boat captains and to the clients
that spend money to come to Alaska and
fish. The prices of charters have gone up
significantly in the past two years
because of high fuel prices. Now the
government will collect money for the
proposed halibut charter moratorium
permit. I am a small operator trying to
make a living taking people out fishing.
The limited entry permit for halibut
charter operators is just another way for
the government to collect money.
Response: This rule does not establish
any fee on halibut charter businesses or
operators to participate in the charter
halibut moratorium program. Under this
action applicants for a charter halibut
permit are not required to submit a fee
with their application nor will a fee be
charged to issue or transfer a charter
halibut permit. If such fees are charged
in the future, they will be established by
a separate regulatory action.
This rule, however, does not affect the
requirements for permits or other
certifications by other State or Federal
agencies that charter halibut businesses
must obtain to operate in Areas 2C or
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3A and for which fees may be charged.
NMFS does not have information to
estimate the number of charter business
owners that may purchase charter
halibut permits, a private transaction.
Also, NMFS does not have information
to estimate the cost of such transactions,
or the effect of those costs on the prices
the charter operators will charge for
their services (see also Section 2.8 of the
Analysis at ADDRESSES).
Comment 17: The moratorium is
legally vulnerable.
Response: As indicated above, NMFS
finds this rule to be consistent with
applicable law (see discussion above
under the heading ‘‘Consistency with
Halibut Act’’). This rule was developed
through a public process used by the
Council and NMFS to formulate and
implement fishery management policy.
In doing so, the Council and NMFS
heard from members of the public,
including representatives of the charter
vessel sector. Some members of the
public were in favor of this action,
others were not. NMFS respectfully
understands that some charter business
owners are opposed to this rule.
Comment 18: The Analysis states on
page 153, paragraph 2 that ‘‘[t]he
moratorium is not expected to limit the
number of halibut charter trips in the
near future.’’ Wasn’t the ‘‘growing
number of charter fleets’’ the main
reason this moratorium was being
pushed by the Council and NOAA?
Response: As stated in the Analysis
(see ADDRESSES), NMFS does not expect
the limited access system established by
this rule, by itself, to limit the growth
in charter halibut trips, charter halibut
harvest, or charter vessel anglers over
the short term. Instead, this rule is
expected to stabilize the charter halibut
sector by curtailing the growth in
numbers of charter vessels in Areas 2C
and 3A and thereby improve the
effectiveness of other management
measures, now and in the future, to
control the rate of halibut harvest.
Comment 19: The Environmental
Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis
(EA/RIR/IRFA) states on page 58,
‘‘It is possible that commercial IFQ halibut
fishermen could also benefit, if the constraint
slows the growth in charter catches in the
future. However, given the excess capacity
that is likely to exist in the fleet after
implementation of the moratorium, this
outcome is unlikely, all else equal.’’
If the Council is attempting to limit
the fleets then how could this scenario
be unlikely? If the Council is attempting
to limit the fleets then why do they
anticipate excess capacity in charter
fleets after the implementation of the
proposed rule? If this proposed rule is
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not expected to constrain harvests, why
is it being proposed?
Response: It is not possible to
determine the optimal amount of
capacity in the charter vessel sector
with available data. The intended effect
of this action is to curtail growth in
capacity. Although limited entry on the
number of vessels is a commonly used
fishery management tool to limit
capacity growth, it is an imprecise tool
because individual operators can
increase capacity to increase effort over
historical levels. For example, charter
vessels operating under this rule may
increase the number of fishing trips they
make, increase the average number of
anglers they carry, or improve their
ability to find halibut. All of these
outcomes and others are possible under
this limited access system, in which
case the actual harvest of halibut by the
charter vessel sector may actually
increase over current levels.
Limited entry provides a basis for the
development of a long-term
comprehensive effort limitation program
for the charter halibut fishery, if it is
determined that such a program is
needed in the future. The RIR (at page
46) prepared for this action determined
that limited entry could serve to better
stabilize fishing effort than the status
quo, because only permitted vessels
would be capable of increased effort.
Further, a reduction in fishing capacity
will occur as non-transferable permits
are eliminated as their holders leave the
fishery.
Comment 20: The Federal
Government has a duty to not
discriminate. The summary of costs and
benefits table in the EA/RIR/IRFA
presents the reasons why the Council
chose Alternative 2. However, this table
is extremely biased. For example, in
columns 3 and 4, the table states,
‘‘Limiting the number of vessels that
may operate would help limit
competition. * * *’’ Why limit
competition, especially if that may lead
to business failure for some operations?
Response: NMFS has a duty to not
discriminate based on constitutional
and statutory rights. The response to
Comment 2 describes why this action is
not discrimination against charter
operators that do not receive a charter
halibut permit on initial allocation.
The quote from Table 42 on page 156
of the EA/RIR/IRFA (see ADDRESSES)
presented in the comment is
incomplete. The complete sentence
reads, ‘‘Limiting the number of vessels
that may operate would help limit
competition from new entrants in the
fishery, but competition from existing
permit holders is expected to keep
businesses from earning above normal
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profits.’’ The statement makes clear that
although the charter halibut permit
program will reduce competition from
new entrants, the program is not
expected to prevent competition within
the charter halibut sector. As discussed
in the response to Comments 21 and 43,
NMFS anticipates that permit holders
will have sufficient opportunities to
ensure that capacity meets demand for
halibut charters in Areas 2C and 3A.
Comment 21: The rule unfairly
restricts guided access to the resource
while not considering unguided access.
The Halibut Act requires that ‘‘if it
becomes necessary to allocate or assign
halibut fishing privileges among various
U.S. fishermen, such allocation shall be
fair and equitable to all such
fishermen.’’ Many anglers require
guided services for financial, health,
safety, or other practical reasons. This
restriction violates the ‘‘fair and
equitable’’ provisions of the Halibut Act
because guided recreational anglers are
being restricted while there is no such
limitation proposed for unguided
recreational anglers.
Response: This rule is consistent with
the fair and equitable requirement of the
Halibut Act (see discussion above under
the heading ‘‘Consistency with Halibut
Act’’). The fair and equitable
requirement of the Halibut Act does not
require that different sectors of the
halibut fisheries be managed using the
same tools or restrictions. In Areas 2C
and 3A, the charter halibut fishery is the
second largest, in terms of volume of
halibut, after the commercial setline
fishery. The non-guided sport fishery
has the third largest harvest in both
areas. Of these three harvesting sectors,
the charter halibut fishery has
demonstrated growth in participation
over time while the commercial and
non-guided recreational sectors have
declined or remained relatively steady.
This information was in the Analysis
(see ADDRESSES) considered by the
Council and the Secretary when taking
this action.
This rule will not unreasonably
restrict guided angler access to the
halibut resource. NMFS estimates that
502 charter halibut permits will be
issued to charter businesses operating in
Area 2C, of which 347 (or 69.1 percent)
will be transferable, and 418 charter
halibut permits will be issued to charter
businesses operating in Area 3A, of
which 319 (or 76.3 percent) will be
transferable. In Area 2C, the estimated
total (for transferable and nontransferable permits combined) angler
endorsements on all charter halibut
permits is 3,028 of which 2,152 will be
associated with transferable permits. In
Area 3A, the estimated total angler
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endorsement on all charter halibut
permits is 3,577 of which 2,834 will be
associated with transferable permits.
Available data indicate that charter
vessels in the guided sport fishery for
halibut in 2008 averaged 36 trips per
season in Area 2C and 38 trips per
season in Area 3A. Using all
endorsements prior to the expiration of
non-transferable permits, charter vessels
under this rule would have to average
52 trips in Area 2C and 56 trips in Area
3A to supply the aggregate number of
fishing trips supplied in 2008. This
estimate does not include the potential
supply from the community charter
halibut permits and endorsements
associated with the CQE program. In
Area 2C, a potential total of 72 permits
and 432 angler endorsements may be
added, and in Area 3A, a potential total
of 98 permits and 588 angler
endorsements may be added under the
CQE program. These figures indicate
that the charter halibut industry will be
able to meet recent charter vessel angler
demand levels with the number of
permits expected to be issued under this
rule. Hence, no restriction in guided
angler access to the halibut resource is
expected under this rule.
Comment 22: Two of my charter
vessel captains will come up a year
short of the 2004–2005 qualification
period. I truly feel my history in this
business is long enough to warrant
receiving a moratorium permit.
Response: The limited access system
established by this rule allocates charter
halibut permits to the person that meets
the eligibility requirements during the
qualifying and recent participation
years. If a sport fishing business meets
the eligibility requirements, then it
likely would receive one or more charter
halibut permits and could continue to
hire charter vessel captains as it has in
the past. Hence, charter vessel captains
who do not meet these requirements
would not be eligible for an initial
allocation of a charter halibut permit
although the businesses that they
worked for may be eligible for a
permit(s). Nevertheless, persons not
eligible for an initial allocation of a
charter halibut permit(s), may be
eligible to receive a transfer of a charter
halibut permit from a person with a
transferable permit.
Conservation
Comment 23: The Alaska charter fleet
has become overcapitalized in the last
decade and is rapidly expanding. The
fleet should not be allowed to grow and
negatively impact current users and
endanger the sustainability of the
fishery by exceeding the GHL. Charter
operators must become a part of the
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conservation effort and regulations
limiting access are long overdue. NMFS
should limit the number of participants
in the commercial sport halibut industry
and reduce the number of fish they
catch. Too many charter businesses are
competing for too few customers, which
results in overcrowding, a lower quality
Alaskan experience for travelers, and
increased pressure on local halibut
populations.
Response: This rule limits the number
of charter vessels that may participate in
the charter halibut fishery and the
number of charter vessel anglers that
may catch and retain halibut on charter
vessels. This rule is not intended, by
itself, to reduce the charter harvest of
halibut or the number of fish each
angler may catch and retain.
The IPHC takes into account halibut
removals by all user groups in
establishing the constant exploitation
yield (CEY). Past increases in charter
halibut harvests have created
conservation and allocation concerns
that the Council and NMFS have taken
steps to address, but the halibut
resource in Area 2C and 3A is being
managed in a sustainable manner.
NMFS does not have information to
verify or refute the claims that charter
businesses are competing for too few
customers, that halibut fishing grounds
are overcrowded, or that charter vessel
anglers are experiencing low quality
charter fishing trips. Finally, NMFS
does not have scientific information to
discern local depletion or attribute it to
any particular user group.
Comment 24: Near-shore depletion of
halibut and gear conflicts have
increased since the implementation of
the IFQ program for commercial setline
fishermen. Before the IFQ program,
large commercial vessels fished farther
from shore than they do today. Now,
under the IFQ program, commercial
fishermen do not have to go as far
offshore to fish for halibut and there is
always some form of gear in our near
shore areas off Sitka. Protection of
halibut would be improved with short
specified open seasons for commercial
halibut fishing. Charter fishing is not the
problem.
Response: Further restrictions on the
commercial fishery would not achieve
the objective of this action and are
outside the scope of this rule. NMFS
does not have sufficient scientific
information to discern localized
depletion of halibut or, if it exists, to
attribute it to a particular user group in
Area 2C or 3A.
Comment 25: This rule has nothing to
do with conservation or management of
the resource and concerns allocation
only. Page 18191 of the proposed rule
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states that, ‘‘the NMFS Assistant
Administrator has determined that this
proposed rule is necessary for the
conservation and management of the
halibut fishery.’’ The rule places no
direct restrictions on guided anglers or
their overall harvest, only limits on the
number of boats available to transport
guided anglers to the fishing grounds.
The Environmental Assessment states,
‘‘[t]he proposed action addresses access
to the Pacific Halibut resource. There
are no expected impacts on the halibut
subsistence, personal use, or unguided
sport fisheries because these takes are
not limited and are not affected by any
allocation decisions in other sectors
* * * [t]here are no significant impacts
on the halibut stock expected from the
proposed action.’’ National Standard 5
states that ‘‘Conservation and
management measures shall, where
practicable, consider efficiency in the
utilization of fishery resources; except
that no such measure shall have
economic allocation as its sole
purpose.’’ How does this action meet
National Standard 5?
Response: The National Standards in
the Magnuson-Stevens Act (section 301)
do not apply directly to this rule
because it is authorized under the
Halibut Act. Two connections exist
between the Halibut Act and the
Magnuson-Stevens Act, however. First,
the Halibut Act references section
303(b)(6) of the Magnuson-Stevens Act,
and second, the Halibut Act uses
virtually the same language as National
Standard 4 (section 301(a)(4)) of the
Magnuson-Stevens Act. The language at
National Standard 4 is particularly
relevant to this comment in that it
requires conservation and management
measures that allocate or assign fishing
privileges (as this action does) to be
‘‘reasonably calculated to promote
conservation’’ among other things. The
discussion above under the heading
‘‘Consistency with Halibut Act’’
describes how this rule meets this
conservation standard. In brief, this
action is intended to stabilize the
charter vessel industry, which will
enhance the effectiveness of existing
and potential future harvest restrictions.
This will assist the IPHC to meet its
overall harvest rate targets.
The EA finds that the action will not
have significant environmental impacts.
The purpose of the EA is to determine
whether the action will have a
significant impact on the human
environment, and whether an
environmental impact statement is
necessary. The Analysis for this action
evaluated the environmental impacts of
the action and found that it would not
have a significant environmental
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impact. This conclusion is not
inconsistent with the statement that this
action is generally necessary for
conservation and management
purposes.
Comment 26: NMFS inaccurately
implies that this is a conservation
measure in the proposed rule. It simply
is not. American sportsmen and women
have one of the best records when it
comes to conservation. Reducing
recreational angler access will not
increase conservation or reduce the total
allowable catch. Those available fish
will only be reallocated and harvested
by other sectors, primarily the
commercial sector.
Response: As discussed above under
the heading ‘‘Consistency with Halibut
Act,’’ this action is reasonably
calculated to promote conservation, as
required by the Halibut Act. Although
biological conservation is not its
principal purpose, the effectiveness of
other biological conservation measures
will be enhanced over time by this
action. Conservation and allocation
management measures often are
inextricably linked. Hence, although the
intent of this action is not to directly
reduce the halibut harvest by charter
vessel anglers in Areas 2C and 3A in the
short term, it will enhance conservation
of the halibut resource in the long term.
Also see the response to Comments 21
and 43.
Comment 27: The proposal for the
charter limited entry program has been
written to specifically list numbers
relating to the charter GHL yet leaves
out that the longliners receive a larger
amount of the halibut quota than charter
and private anglers. These numbers
would show the imbalance between the
charter fleet and the commercial fleet
and highlight that limiting the charter
fleet is not about conservation.
Response: The IPHC is generally
responsible for the conservation of the
halibut resource. In Area 2C, the IPHC
preliminary estimate of the halibut
harvest in 2008 was that the commercial
setline fishery harvested 59 percent of
the total removals by all sectors (IPHC
2009 Annual Meeting ‘‘bluebook’’ Table
1). The second largest harvest in Area
2C in 2008 was made by the sport
fishery (guided charter and non-guided
combined) at 30 percent of the total
halibut removals. Of that 30 percent,
over half is harvested by charter vessel
anglers. Hence, in Area 2C, about 89
percent of the total halibut removals can
be attributed to the combined
commercial and sport sectors. By
comparison, in Area 3A, the commercial
setline fishery for halibut in 2008 was
estimated to harvest 70 percent and the
combined sport fishery was estimated to
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harvest 16 percent of the total halibut
removals. These fisheries account for
about 86 percent of the total halibut
removals in Area 3A. Hence, the
regulatory burden justifiably falls
mostly on the commercial and sport
(charter vessel) harvesting sectors. The
commercial setline sector has been
managed under a limited access system
since 1995. Although it is less than the
commercial setline fishery, the
combined sport harvest (comprised
predominately by the charter vessel
sector) is not trivial in Areas 2C and 3A.
Comment 28: There is no mention of
the amount of wastage and incidental
bycatch of halibut caused by the
commercial fleet. The issue of bycatch
in the commercial setline fishery is
important also because the numbers of
yelloweye rockfish and lingcod that are
pulled off a single commercial set
significantly exceed the numbers taken
by charter or private anglers, who are
only allowed two per person.
Response: The comment raises several
different bycatch issues. One is the
bycatch of rockfish and lingcod in the
commercial setline fishery directed at
halibut. The commercial setline fishery
is managed under the IFQ program.
Regulations implementing this program
generally prohibit the discard of
rockfish and Pacific cod when IFQ
halibut or IFQ sablefish are on board the
vessel (§ 679.7(f)(8)). These regulations
create an incentive for commercial
setline fishermen to avoid areas of high
rockfish bycatch. Although bycatch of
lingcod is not addressed by the IFQ
regulations, a similar incentive exists
unless an IFQ fisherman has a market
for lingcod. Ideally the bycatch of these
species should be adequately controlled
by economic incentives. However, this
issue is beyond the scope of this rule.
The second issue raised is waste of
halibut in the commercial setline fishery
for halibut. The preliminary estimate of
wastage in 2008 in Areas 2C and 3A
amounts to about two percent and three
percent, respectively, of the total halibut
removals in each area. Wasted halibut
have no value to the commercial halibut
fishery, which already has a strong
economic incentive to minimize this
source of halibut mortality.
The third issue concerns the
incidental removals of halibut in
commercial fisheries targeting other
species. The bycatch of halibut in Area
2C fisheries for other species is
estimated to account for only three
percent of the total removals from that
area, and in Area 3A, bycatch was
estimated to account for about nine
percent of the total removals from that
area.
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Comment 29: Four comments support
the charter halibut moratorium, but
suggest that further restrictions are
needed to limit charter angler harvest in
Southeast Alaska to address localized
depletion.
Response: NMFS notes the support for
the charter halibut permit program.
NMFS does not have sufficient scientific
information to discern localized
depletion of halibut or, if it exists, to
attribute it to a particular user group in
Area 2C or 3A. This rule is not designed
primarily to limit the harvest by the
charter halibut fisheries, but it will
make existing and future harvest
restrictions more effective because
harvest restrictions in other regulations
will not be eroded by unlimited growth
in the fleet of charter vessels fishing for
halibut. In this manner, this rule will
contribute to the achievement of the
overall target harvest rate of halibut
established by the IPHC.
Comment 30: I support limited access
as it will help limit over-fishing in the
charter sector. The proposed limited
entry program provides part of the
sustainable management equation. As
the proposed rule indicates, the charter
sector has exceeded its guideline
harvest level in Area 2C for the past 5
years and in Area 3A for the past 3
years. Charter overharvest is
contributing to resource declines at both
the local and the area-wide level, yet
charter operators object that their
businesses will be unsustainable if
conservation measures are
implemented. This downward spiral
can only result in resource depletion
unless both capacity and effort are
curtailed.
Response: This action is not intended
to limit charter angler harvest to the
GHL in Areas 2C and 3A. By stabilizing
growth in the charter industry, however,
this rule will enable other harvest
control regulations to be more effective.
Comment 31: Charter sport fishing is
a very effective form of commercial
fishing. The charter sector continues to
overfish its quota every year, which is
hurting the stocks and is unfair to all
halibut fishermen. It is irresponsible
resource management to allow this
fishery to continue to grow while the
commercial setline fishery is limited.
Southeast Alaska commercial setline
halibut fishermen have seen quotas cut
in half the past four years. The annual
excessive harvest by the charter sector
reduces future harvests of both the
commercial setline fishery and of local
residents doing sport or subsistence
fishing for halibut to feed their families.
The charter fishermen should
acknowledge their responsibility for
conservation. If both the commercial
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and charter fleets do not work together,
the future of halibut fishing in Southeast
Alaska is in jeopardy.
Response: NMFS agrees that
cooperation among all fishermen and
management agencies is essential to
assure sustainable fisheries. The charter
industry does not have a catch limit
quota as does the commercial setline
industry. Instead, the GHL serves as a
benchmark for monitoring the charter
vessel fishery’s harvests of Pacific
halibut in Areas 2C and 3A. By itself,
the GHL does not limit harvests by
charter vessel anglers.
This rule is designed to limit the
number of charter vessels that may
participate in the charter halibut fishery.
Although this rule is not designed
primarily to limit the harvest of the
charter halibut fisheries, it will make
existing and future harvest restrictions
more effective because conservation
gains from individual harvest
restrictions will not be eroded by
unlimited growth in the fleet of charter
vessels fishing for halibut.
Comment 32: The charter halibut
fishermen are fishing during the
summer for the most part, a time when
the large female halibut (males seldom
reach a size over 30 pounds) are in
shallow water. Instead of harvesting a
cross-section of the biomass as the
commercial fleet does, the charter
halibut fleet targets the large females
that are the future of this resource. This
causes great concern for the health of
halibut stocks. The biologists have
noted the truncated age class structure
and lack of large females in the
Southeast Alaska halibut stocks.
Response: This comment presumes
that large halibut generally are females
that contribute disproportionately to the
reproductive potential of the stock, and
that harvest of these females will
substantially decrease future juvenile
halibut abundance. To test this
presumption in 1999, the IPHC
reviewed options for a maximum size
limit of 60 inches (150 cm) in the
commercial setline fishery and
concluded, based on the research at the
time, that preservation of large halibut
in the setline fishery did not add
substantial production to the stock.
Applying the limit to the sport fishery
would have an even smaller benefit (if
any) because the sport fishery harvest is
smaller than commercial harvest.
Suggestions for a maximum size limit in
both fisheries, commercial and sport,
could be considered again by the IPHC
but are beyond the scope of this rule.
Comment 33: Virtually every fishery
in Alaska is sustainably managed under
a State ‘‘limited entry’’ program. All are
viable and allow for new entrants as
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others choose to leave the fishery. Long
term stability in these fisheries has been
achieved since the inception of this
management plan by Alaska in the
1970s, and world-class fisheries have
resulted from the ability of fishery
managers to exercise conservation
measures through the State’s limited
entry program. It is inconceivable that
any fishery can be efficiently or
sustainably managed without all user
groups exercising restraint to avoid
over-utilization of its resource. There
are numerous examples worldwide of
fisheries, which can be shown to
exemplify the depletion of fish stocks
because of over-harvesting practices.
Response: NMFS acknowledges the
comment and notes that limited entry
has been used as a fishery management
tool in Alaska since 1973. Pacific
halibut fisheries, however, are not
managed by the State of Alaska. The
Halibut Act authorizes the Council, with
respect to halibut fisheries in and off
Alaska, to develop limited access
regulations and for the Secretary to
approve and implement them, as is
done by this action.
Comment 34: We oppose the
proposed limited access system to cap
the number of halibut charter boats and
anglers. Instead, we support an increase
in the GHL for the charter fleet in IPHC
Areas 2C and 3A.
Response: Changes to the GHL in
Areas 2C and 3A are not within the
scope of this action and would not
achieve the objective of this rule.
Changes to the GHL should be suggested
to the Council for potential
recommendation to the Secretary.
Comment 35: The proposed rule
indicates that the Council’s policy is
that the charter vessel fisheries should
not exceed the GHLs; however, no
constraints were initially recommended
by the Council or imposed on the
charter vessel fisheries for exceeding a
GHL. Examination of the GHL final rule
reveals that the GHL is advisory in
nature, requiring no action by the
Council, NMFS, or the Secretary other
than its annual publication in the
Federal Register. Since the GHL is not
an allocation, there has never been
analysis by NMFS or subsequent
determination by the Secretary of the
fairness and equity of the GHL as an
allocation. Until an allocation has been
set in compliance with the requirements
of the Halibut Act, the limited access
program described in the proposed rule
is premature and contrary to the law.
Response: The GHLs developed by the
Council and approved by the Secretary
represent an allocation policy. A final
rule implementing that policy was
published August 8, 2003 (68 FR
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47256). The rule implementing the
GHLs was determined to be consistent
with the Halibut Act including its ‘‘fair
and equitable’’ provision. The potential
effects of this allocation policy were
addressed in an analysis that supported
that action.
As explained in the preamble to the
proposed rule (74 FR 18178, April 21,
2009) on page 18179, the Council’s
policy is that the charter halibut
fisheries should not exceed the GHLs
established for Areas 2C and 3A.
However, the GHLs themselves do not
limit the harvest of the charter halibut
fishery. A separate regulatory action is
necessary to impose such a harvest
restriction. NMFS promulgated a
harvest restriction on the charter halibut
fishery in Area 2C most recently on May
6, 2009 (74 FR 21194). That action was
determined to be consistent with the
‘‘fair and equitable’’ standard of the
Halibut Act. Although not directly
related to that harvest restriction, this
rule also is determined to be consistent
with the Halibut Act (see discussion
above under heading ‘‘Consistency with
Halibut Act’’).
Comment 36: The claim in the
proposed rule that the fishery CEY is the
maximum catch for an area’s directed
commercial fixed gear fishery is false.
The fishery CEY is not the maximum
catch for an area’s directed fishery. The
fishery CEY is the basis for IPHC staff
recommendations that result from
application of a buffering algorithm
known as ‘‘Slow-Up Fast Down’’ (SUFD)
to the fishery CEY in a predictable
fashion for each IPHC regulatory area.
At the IPHC annual meeting, IPHC
commissioners review staff
recommendations as well as Conference
Board and Processor Advisory Group
recommendations. The commissioners
then decide on catch limits, which
rarely if ever equal the fishery CEY.
SUFD also buffers any change in the
fishery CEY, be it from a decrease in
biomass or an increase in noncommercial removals, in both Slow-Up
and Fast-Down years. The statement
should be corrected in the final rule.
Response: NMFS agrees with this
explanation. The preamble to the
proposed rule did not elaborate on the
SUFD policy because it is an additional
complexity to the IPHC process that is
irrelevant to this limited access action.
Moreover, the preamble to the proposed
rule never stated that the fishery CEY
was equal to the commercial catch limit.
The principal message in that part of the
proposed rule preamble was that the
IPHC takes into account all noncommercial sources of halibut mortality
in setting the catch limit for the
commercial setline fishery. NMFS
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acknowledges that the SUFD policy
technically is part of this fundamental
process.
Economic Impacts
Comment 37: This action seeks to
limit the guided angler catch when it
should be limiting the commercial
catch. This rule limits guided angler
catch, leaving commercial longliners
with minimal limits.
Response: This rule is not designed to
limit the harvest of halibut by charter
vessel anglers, but rather to curtail the
growth of fishing capacity by the charter
halibut fishery. Commercial harvests are
heavily regulated by the IPHC and
NMFS through the IFQ program.
Commercial fishermen have made
contributions to resource conservation
and, for example, have had their catch
limit cut by just over half in Area 2C
between 2005 and 2009.
Comment 38: Several comments
expressed concerns about the impacts of
the growth of the charter halibut fishery
on Pelican, Petersburg, and Gustavus in
Southeast Alaska (IPHC Area 2C). These
comments indicated that growth of the
guided sport fishery destabilized the
local economy in various ways and in
some cases expressed support for this
limited entry program. Destabilizing
impacts cited include localized
depletion, use of community resources
by lodges located outside city limits and
thus beyond city taxation, displacement
of local residents from dock facilities in
the summer by heavy charter vessel
activity, sliming of docks, and
environmental concerns as guided
operations began to operate in Glacier
Bay National Park in May through
September. These concerns included
habituating the bears and sea lions and
endangering the food source of the killer
whale resident population.
Response: Charter industry harvest
levels have remained well above the
GHL in Area 2C. NMFS acknowledges
that the growth of the charter halibut
fishery since the late 1990s has led to
changes, competition with other
resource user groups, and social tension
in Southeast Alaska communities. This
action does not address all of these
concerns. The purpose of this action is
to stabilize the charter halibut fishery by
limiting the future growth in numbers of
charter vessels that may participate in
the fishery. NMFS notes, however, that
the charter halibut fishery is a legitimate
resource user that provides economic
benefits to Alaskan coastal communities
and to the Nation. Further, this program
will not by itself limit the number of
charter vessel anglers that may use sport
fishing guide services or their harvest of
halibut. Instead, this program will
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define and limit the number of charter
operators. Potential future regulations to
address the issues raised by this
comment will be easier to implement
because of this program.
Comment 39: My community has a
community quota entity program and is
entitled to use it under the final rule but
does not have the financial resources to
use it effectively.
Response: Specified Area 2C
communities may receive up to four
community charter halibut permits per
community and specified Area 3A
communities may receive up to seven
permits per community issued to CQEs
at no cost. Some costs are likely,
however, in establishing and
administering CQEs. Growth of a charter
halibut fishery beyond the CQE permits
provided by this rule, however, would
require the purchase of transferable
charter halibut permits. When NMFS
originally authorized CQEs to acquire
commercial halibut or sablefish quota
share under the IFQ program, the State
of Alaska responded by modifying its
fisheries loan programs to provide
financing for the purchase of halibut
and sablefish quota share by CQEs. The
State may adapt this program for loans
to allow CQEs to acquire charter halibut
permits. Also, CQEs eligible to receive
community charter halibut permits may
consider joint venture arrangements
with private sector partners to share the
costs of forming and operating a CQE.
Comment 40: For many years there
has been significant discussion and
motions regarding charter IFQs,
moratoriums, limited entry programs,
etc. These discussions and motions, in
some cases passed and rescinded, have
caused confusion in the charter halibut
industry. This confusion has likely
caused charter operators to hold on to
businesses that they would have retired
from or would have sold long ago. This
affected the natural management of
charter operations and is a factor that
you have not considered.
Response: The Council and NMFS
considered speculative participation in
the charter vessel industry when
developing this rule. Uncertainty about
the intent of the Council and
uncertainty about the potential criteria
may have led some individuals to
participate in the fishery at levels that
they hoped would qualify them for a
future permit, when they might
otherwise not have operated. This type
of speculative activity could have led to
increased effort levels in the guided
sport fishery. The publication of a
control date of December 9, 2005 (71 FR
6442, February 8, 2006), was intended
to discourage such speculative behavior.
The use of minimum participation
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571
thresholds to qualify for permits and for
transferable permits should further
reduce the control of permits by
speculative operators.
The Council subsequently developed
and recommended this limited access
system using 2005 as the last year in
which at least minimal participation in
the charter halibut fishery will qualify a
person for a charter halibut permit. The
Council took over a year to develop this
program and listened to substantial
public testimony. Anyone entering the
charter halibut fishery during this time
should have been well aware of the
speculative risk of doing so.
Comment 41: There has been a steady
decline in the number of halibut charter
vessels in Valdez. For example, in 1995
there were approximately 35 halibut
charter boats operating out of Valdez.
Last summer there were fewer than 20.
This is not due to the lack of customers,
but to the long distances we are being
forced to travel to find quality halibut
fishing grounds for our clients, and the
cost to operate a vessel under these
circumstances. The proposed
moratorium will cripple the economy
for seasonal businesses that rely on
tourists and locals alike to come to
Valdez and go fishing. If anything you
should make provisions to allow a small
expansion of charter vessels in Valdez.
Similarly, another comment stated that
aside from the CQE provision, some
growth, particularly in places like
Kodiak, Yakutat, and Whittier, should
be allowed.
Response: Valdez, Kodiak, Yakutat,
and Whittier, Alaska, are in IPHC Area
3A. A charter halibut permit endorsed
for Area 3A may be used anywhere
within that area. This rule allows for
market-based responses to changing
fishing conditions in different parts of
Area 3A. As halibut fishing conditions
or business conditions fluctuate, holders
of Area 3A charter halibut permits could
enter or leave the charter halibut fishery
based in any Area 3A community.
Hence, no special allowance for
expansion of the charter halibut
business is necessary as this rule will
not inhibit such expansion. NMFS
expects also that holders of charter
halibut permits will shift their
operations to the communities where
the demand for guided angling is
greatest and can be served most
profitably.
Comment 42: The proposed action
will suppress private enterprise and
competition, creating monopoly power
that will trigger anti-trust laws. The
Council, dominated by commercial
fisheries interests, is privatizing a public
resource by prohibiting free enterprise
and allowing selected individuals or
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companies to own a part of the public
resource to which they are not entitled.
Response: A monopoly is exclusive
control of a commodity or service in a
particular market that makes possible
the manipulation of prices. This action
does not create a monopoly in the
charter vessel industry. NMFS estimates
that about 231 businesses will qualify
for charter halibut permits in Area 2C
and 296 businesses will qualify for
charter halibut permits in Area 3A.
These qualifying businesses likely will
receive a total of about 502 transferable
and non-transferable permits in Area 2C
and 418 transferable and nontransferable permits in Area 3A. With
this number of businesses competing to
provide sport fishing guide services for
halibut fishing in each area, none is
likely to be able to control the market
for these services or manipulate prices.
Further, this rule has an excessive share
provision that prevents any one
business or individual from acquiring
more than five permits by transfer (see
discussion above under the heading
‘‘Consistency with Halibut Act’’).
Although more than five permits may be
initially allocated to a business,
consolidation within the charter halibut
fishery will be no more than it was
during the qualifying and recent
participation years. Thus NMFS expects
that the charter industries in Areas 2C
and 3A will be competitive, and no antitrust issues are expected.
This rule does not privatize the
halibut resource. A charter halibut
permit creates no right, title, or interest
in any halibut before the halibut is
harvested by a charter vessel angler on
the vessel for which the operator holds
a permit. A charter halibut permit
confers no right of compensation to the
holder of the permit if it is revoked,
limited, or modified. A charter halibut
permit is considered a grant of
permission to the holder of the permit
to engage in the charter halibut fishery
by allowing charter vessel anglers on the
vessel operated by the permit holder to
catch and retain halibut. Anglers may
continue accessing the halibut resource
through non-guided sport fishing which
is not affected by this rule.
This action does not interfere with
free enterprise. It provides use
privileges that, with respect to
transferable charter halibut permits,
create a climate for the effective
functioning of a free enterprise market
for sport fishing guide services. Markets
function well when they are founded on
clearly defined rules that explain the
nature of the privileges each market
participant has to the scarce resources
needed to operate their businesses. This
rule creates permits that will provide
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fishing privileges and provide the
charter halibut fishery stability
necessary for effective conservation and
management of the halibut resource.
Comment 43: This action will limit
the number of guided charter operations
and the ability of this industry to meet
the demand for guided charter fishing.
The limit on supply of guided angling
opportunities will mean that fewer
persons will be able to take advantage
of guided services and that the cost of
these services will increase. This will
reduce the benefits to anglers and
prompt some anglers, who would
otherwise have used guide services, to
substitute less attractive guided or nonguided fishing activity. Reduced guided
angler activity will have adverse
economic impacts on the guided
industry and on regions of Alaska where
guides are based. There will be fewer
jobs and less income, and this will hurt
local businesses that depend on revenue
generated by charter operations.
Response: Although the number of
vessels with charter halibut permits
operating under this rule is limited,
their passenger carrying capacity
exceeds current 2008 levels of
participation. The numbers of charter
halibut permits and associated
endorsements issued under this rule
create significant opportunities for
charter halibut operations to expand
their capacity to meet existing and
higher levels of angler demand for
guided halibut fishing.
Opportunities likely exist for
operators to increase the number of
anglers they carry under this rule.
NMFS expects that, if charter vessel
angler demand warrants, operators will
increase investments in their fishing
vessels to increase their fishing
efficiency, the average number of clients
they carry (subject to the endorsement
and other licensing restrictions), and the
number of days each season that their
vessels operate.
The Analysis (see ADDRESSES)
indicates that the number of permits
issued under this rule will allow
permitted vessels to meet 2008 levels of
charter trips by increasing the average
number of trips they make in Area 2C
from 36 to 52, and in Area 3A from 38
to 56. These levels of increased activity
are within the capacity of the charter
halibut fleet that will have permits
under this rule. Further increases in
numbers of trips also are possible.
Members of the charter vessel industry
indicated in public testimony to the
Council that the charter fishing season
lasts for about 100 days. Many of these
trips would be half day trips so that
multiple trips might be made per day.
Even after assuming for days off due to
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bad weather and mechanical
breakdown, it is likely that the number
of days fished could double. Hence, it
is not apparent that this rule will result
in constraining operations of charter
vessels with charter halibut permits or
in constraining guided angling
opportunities (see also response to
Comment 21).
As discussed in the Analysis, NMFS
expects, over a wide range of demand
conditions, that increasing the number
of passengers in a trip, or increasing the
number of trips in a season, can be done
at relatively constant incremental cost.
This suggests that charter halibut
permits under this rule can meet
demand without price increases.
Comment 44: Halibut are a common
property resource and everyone is
entitled to make a living off a resource
that belongs to no one person or group.
Management is necessary but it should
not stifle capitalism. This limited entry
program is solely about taking more
away from the general public who have
a right to this resource. Guided angler
caught halibut are worth five times as
much to the State and fisherman as a
commercial fish. Management should
seek to maximize the value of the fish.
Response: NMFS agrees that the
Pacific halibut resource in Areas 2C and
3A is a common property resource. As
such, all resource users should be
benefitted by fishery management
policies implemented by NMFS. This
action does not change the allocation of
halibut between sport or commercial
users. The U.S. Government is
authorized to regulate access to this
resource consistent with the Halibut Act
and other applicable law. This action
creates a limited set of access rights or
privileges for a resource that cannot
support unlimited access. Any citizen of
the United States will be free to enter
the guided angling business in Alaska
and to guide charter vessel anglers in
harvesting halibut by purchasing the
relevant permits. NMFS estimates that
about 231 charter vessel businesses will
qualify for charter halibut permits in
Area 2C and about 296 charter vessel
businesses will qualify for charter
halibut permits in Area 3A. Many of
these businesses will qualify for
transferable charter halibut permits, and
a robust market for these permits is
expected to develop. Therefore, this rule
is not likely to stifle capitalism.
The public’s access to the halibut
resource is not diminished by this rule.
The general public may access this
resource as it does now through
purchases of halibut in commercial
markets (e.g., grocery stores,
restaurants), and through non-guided
and guided sport fishing. The intent of
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this rule is to stabilize the growth of
charter vessel operations in the guided
sport fishery for halibut. Relative to the
present, this rule will not diminish
charter vessel angler opportunity in the
foreseeable future. Instead, it is
designed to restrict the entry of
additional charter halibut operations.
Comment 45: The analysis in the EA/
RIR/IRFA is inadequate. There is no
information about the adverse impacts
this action will impose on a large
percentage of the operations in the fleet.
It does not include information about
operations that entered the business in
the years from 2006 to 2009. The IRFA
does not provide adequate information
on the impact to operations that will not
receive permits under this rule. It
should include information on lost
revenue or expenses to all entities
involved. Not allowing small businesses
starting after 2005 to compete in the
fishery is inconsistent with the
Regulatory Flexibility Act.
Response: The Analysis (see
ADDRESSES) estimates numbers of
operations affected by this action, and
examines the costs and benefits of the
action accruing to different sectors.
Much of the Analysis is qualitative,
reflecting the limited information that
exists on the charter vessel business
generally and on the angler demand.
The Council’s recommendation to the
Secretary looked primarily at charter
vessel businesses that were active
during the qualifying years of 2004 and
2005. These were the participants that
the Council sought to confirm in their
business patterns when it made its
decision to recommend this action in
2007. An ‘‘Active’’ charter business was
determined to be one that made at least
five logbook trips in at least one of the
two qualifying years and at least five
logbook trips in the recent participation
year (2008). This two-tier qualification
requirement was designed to assure that
limited access permits were allocated to
historically active charter businesses
that were still active when the program
was implemented. The five-logbook-trip
minimum was chosen in part because it
is a relatively low standard of activity.
A charter vessel business with less than
five logbook trips in a year is not likely
in most instances to generate a
significant annual income. The
Council’s Analysis that was made
available to the public for review with
the proposed rule (74 FR 18178, April
21, 2009) did not consider the effect of
the participation requirement in 2008
because that year had not yet occurred
at the time of Council action. However,
the Council was aware that the numbers
of businesses receiving permits under
this rule would be no more than those
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that were active in 2004 or 2005, and
likely would be somewhat less as some
firms active in 2004 and 2005 left the
charter business during 2006 and 2007.
The Council and Secretary reasonably
assumed that the number of businesses
that would enter the fishery during 2006
through 2009 would be small. Such
businesses contemplating entry into the
charter halibut fishery during those
years should have been aware of the
control date of December 9, 2005, set by
the Council and published by the
Secretary on February 8, 2006 (71 FR
6442). Being put on notice of potentially
not qualifying for initial allocation of
charter halibut permit(s), businesses
entering the fishery after the control
date should have structured their
operations on the assumption that they
may be in the charter halibut business
temporarily. Alternatively, these
businesses could have planned on
purchasing one or more transferable
charter halibut permits after they were
issued. Other than assuming this
outcome, no basis existed for estimating
the number of businesses that would
make a post-control date entry decision.
More recently, NMFS has prepared a
supplementary analysis, with estimates
of the number of businesses that are
expected to qualify for charter halibut
permits based on the 2004 and 2005
qualifying years and the recent
participation year of 2008. The RIR and
RFA analyses have been updated to
reflect this new information (see
ADDRESSES). In summary, the updated
analyses indicate that about 231
businesses are expected to qualify for
charter halibut permits in Area 2C and
about 296 are expected to qualify in
Area 3A. An estimated 115 businesses
were active (i.e., at least five logbook
trips) in Area 2C in 2008 but not during
either of the qualifying years indicating
that these businesses may have entered
the charter halibut fishery during the
period 2006 through 2008. The
comparable estimate of new entry
businesses in Area 3A is 111.
Comment 46: Will the government
offer a compensation package of
vocational retraining, financial aid, or
other compensation to guided charter
operators who will not be able to
continue in this business? This
compensation may be appropriate since
these persons will no longer be able to
honor private agreements with clients,
and will lose the value of vessels
purchased for the fishery.
Response: No compensation is
planned or provided in this rule for
persons that do not qualify for a charter
halibut permit. No legitimate
investment-backed expectations exist
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for businesses that profit from free
access to a public fishery resource.
Comment 47: By designating certain
permits as non-transferable, the
proposed rule seeks to create a second
class of charter operators who can
operate but cannot transfer their permit.
No analysis has been made of the losses
involved in selling surplus charter
halibut fishing assets without a permit.
A regulation designed solely to benefit
the commercial sector to the
disadvantage of a small number of
charter operators is unconscionable.
This classification of charter permit
holders does not meet the requirements
of the Halibut Act and should be
removed from the rule.
Response: As discussed under the
heading ‘‘Consistency with Halibut
Act,’’ this rule was determined to meet
the requirements of the Halibut Act. The
purpose and rational basis of this rule
are described above and in the preamble
of the proposed rule published April 21,
2009 (75 FR 18178).
The non-transferable permits
provision of this rule provides a
temporal buffer to reduce the overall
impact of this rule on persons that
demonstrated relatively low levels of
activity. Qualifying businesses will be
issued transferable permits for vessels
that made 15 or more logbook trips in
one of the qualifying period years and
in 2008. Participation in the charter
halibut fishery during these years at
between five and 15 logbook trips
indicates a relatively low level of
participation in the guided charter
business. However, these businesses
will qualify for non-transferable charter
halibut permit(s). Businesses that
receive an initial allocation of nontransferable permits will be able to
continue their charter halibut operations
as they previously had done, or may
increase their participation in the
charter halibut fishery by acquiring
additional permits by transfer.
Holding non-transferable permits does
not destroy the total value of business
assets. A person or business with nontransferable permits may transfer
ownership of vessels, fishing
equipment, and real estate associated
with the business to other persons that
wish to enter the business and acquire
charter halibut permits by transfer.
Alternatively, the assets of a charter
business could have value to persons
that do not need charter halibut permits
because their business plan does not
involve the harvest of halibut. A
business issued non-transferable
permits may also purchase transferable
permits.
Comment 48: If this proposal is
approved it will set a precedent and
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could potentially affect thousands in the
charter industry. I have been told by
NMFS that there are no other charter
limited entry programs currently in
effect in the United States.
Response: This rule does not establish
the first limited entry management of
charter vessels. A moratorium for
charter vessels and headboats operating
in Federal waters of the Gulf of Mexico
was effective beginning on June 16,
2003 (67 FR 43558, June 28, 2002).
Comment 49: I believe that this
limited entry program is going to be a
‘‘free’’ government retirement package
for many who have just held on for this
permit and will immediately sell it.
Their business will become more
valuable overnight while other
businesses will not. To illustrate this
point, the State of Alaska issued a
Legislative Resolve No. 5 in 1983 that
stated ‘‘a share system could result in
the concentration of ownership of the
fishery resource in the hands of a few
fishermen,’’ that it ‘‘could encourage
speculation and the making of
exorbitant profits at the expense of
Alaska fishermen,’’ and that it ‘‘could
tend to eliminate competition among
halibut fishermen.’’ The State
Constitution does not support a
limitation on charter vessels.
Response: Some persons may have
participated in the charter halibut
fishery before 2005, solely in a
speculative effort to acquire permits
should a limited entry program with
transferable permits be adopted.
Speculative entry is a common concern
when limited entry programs are under
consideration. The Council addressed
this concern in two ways. First, to
discourage speculative entry during
program development, the Council
adopted a control date of December 9,
2005, at the start of its deliberations.
Announcement of this control date by
the Council and Secretary (71 FR 6442,
February 8, 2006) notified the public
that anyone entering the charter sport
fishery for halibut after the control date
would not be assured of future access to
the fishery if a management regime that
limits the number of participants is
developed and implemented. The
Council continued to publicize this
control date through the development of
this rule.
Secondly, the Council adopted a
minimum participation standard for
initial allocation of charter halibut
permits. A qualifying business may
receive a transferable permit only if the
business has a record of making at least
15 logbook trips in one year of the
2004–2005 qualifying period, and in
2008. The reasons that each person has
for participating in the guided sport
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fishery are highly subjective, and NMFS
does not have information available to
discriminate among resource users on
the basis of their reasons for
participation.
This rule is being implemented under
the authority of the Halibut Act, not the
Alaska Constitution. Legislative
resolutions by the Alaska legislature are
not legally binding on this action.
However, allowing excessive shares of
halibut fishing privileges to be acquired
is prohibited by the Halibut Act. The
excessive share provision in this rule
that limits persons to five permits (with
some exceptions) assures that excessive
consolidation will not occur and
competition among operators will
remain.
Comment 50: The proposed rule states
the intended effect of this program is to
curtail growth of fishing capacity in the
guided sport fishery for halibut. This
rule will not only curtail growth, it will
eliminate it without compensation.
Based on the qualifying criteria, the
immediate effect will reduce the fleet
size by an estimated 10 percent now,
and over time as non-transferable
permits are retired, an additional 15
percent of the current fleet will cease to
exist. This does not include the ‘‘private
agreement’’ and ‘‘same vessel’’ clauses
that will eliminate even more vessels.
Although there may be enough capacity
in the fleet to meet current demand,
with such a large reduction during peak
periods anglers in the future may not be
able to find an available charter.
Response: NMFS has supplemented
the Council’s earlier analyses using new
information on charter halibut
participation levels in 2008, the recent
participation year (see Section 2.8 of the
Analysis at ADDRESSES). The
supplementary analysis takes into
account the anticipated effect of the
recent participation year reducing the
number of charter halibut permits
issued below a number based solely on
participation in the qualifying years of
2004 and 2005.
Based on the earlier analysis and its
supplement, the charter halibut industry
will have sufficient capacity to meet
existing angler demand and to meet
some increases in that demand (see
responses to Comments 21 and 43).
Comment 51: The proposed control
date for qualifying for the limited entry
halibut charter vessels is December 9,
2005. I respectfully request the control
date be moved up until at least 2008 so
companies that started after 2005 can
qualify for a permit. If our company is
unable to obtain a limited entry halibut
permit for our charter vessel, our lodge
would be forced to go out of business.
Presently we have employees, vendors,
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and tourists from around the world and
that would all be adversely affected if
we were forced to close. Local, State,
and Federal governments would also be
adversely affected due to the loss of
revenue from utilities fees, fuel taxes,
payroll taxes, bed taxes, various license
fees, and of course payroll taxes. With
the present economic conditions, a
number of charter fishing boat and lodge
operators will be forced out of business
this year regardless of the limited entry
proposal. The 2004–2005 qualifying
period is not only damaging to the
economy, but is also extremely
damaging to the charter businesses that
have started operating since 2006. All
charter operations already vested in the
industry should remain in business.
Response: The control date, December
9, 2005, was recommended by the
Council and published by NMFS in the
Federal Register on February 8, 2006
(71 FR 6442). The purpose of the control
date announcement was to announce
that anyone entering the charter sport
fishery for halibut in and off Alaska
after the control date will not be assured
of future access to that fishery if a
management regime that limits the
number of participants is developed and
implemented. The Council and NMFS
intent in making the control date
announcement was to discourage
speculative entry into the charter
halibut fishery while potential entry or
access control rules were being
developed by the Council and, if
approved, implemented by the
Secretary.
The notification of a control date does
not compel the Council or the Secretary
to use that date. In this case, the Council
used the date in part by recommending
a two-year qualifying period that ran
through the end of 2005. The Secretary
has approved the Council’s
recommended charter halibut
moratorium recommendation which
includes this qualifying period. The
comment actually is seeking a new,
more recent qualifying period. This
cannot be done under the approved
policy of 2004 and 2005 as the
qualifying period without revising the
entire Council recommendation. A more
recent qualifying period would be a
significant change to the recommended
charter halibut moratorium policy and
this rule. NMFS has determined that
such a significant change is not
warranted and the approved policy and
this rule are consistent with the Halibut
Act and other applicable law.
Moratorium Elements
Comment 52: If limited entry is
adopted, the permits should not be
allowed to be sold when they are no
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longer used. A lottery should be held
and the winner would then have the
same opportunity as the first person.
Response: This rule does not include
a lottery to distribute charter halibut
permits when they are no longer used or
on a periodic basis. Such a lottery
would be a substantial change from the
policy recommended by the Council
and approved by the Secretary.
However, this suggestion could be made
to the Council for its consideration as an
amendment to this rule in the future.
This rule implements the Council’s
original recommendation to establish a
market-based system for permit
transfers. The Council and Secretary
determined that this would be more
reasonable and efficient than to have a
continual permit-application and
permit-award process by the
government.
Comment 53: I recommend that a
permit be used for five years before it
can be sold. This would keep people
from hanging on so they can get a
permit to sell. This would thin out the
crowd and a new business would be
forced to use the permit before it gains
any value. Any charter business that is
over five years old would be exempt.
Response: The proposal to require
some use of a charter halibut permit
before transferring would inhibit the
exit and entry of charter halibut
businesses and could increase costs of
doing so. Requiring some permit use
before transfer also would add
administrative costs to this program.
However, this suggestion could be made
to the Council for its consideration as an
amendment to this rule in the future.
Comment 54: Several comments
requested clarification of how NMFS
will determine the number of
transferable moratorium permits each
charter business will receive if they
operated different vessels in the
qualification period and the recent
participation period. Many charter
operators have replaced older vessels
with newer ones for safety or other
business reasons. The proposed rule
provided that 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.
However, the proposed regulatory text
would require these minimum number
of logbook trips to be made on the
‘‘same vessel.’’ It would be inconsistent
with Council intent for NMFS to require
that the same vessel be used in both the
qualifying and recent participation
periods. The Council did not intend to
exclude a charter operator from the
moratorium for upgrading or replacing a
vessel for safety reasons as long as it did
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not increase capacity. Requiring the
same vessel to be used in the qualifying
period and the recent participation
period also could result in these
businesses not meeting the
qualifications for a moratorium permit.
In the final rule, NMFS should provide
clarifying language for this statement
and in the proposed regulations.
Response: NMFS agrees that the
‘‘same vessel’’ language in the proposed
rule at § 300.67(b)(2)(ii) and (iii) should
be clarified. NMFS has added text to
§ 300.67(b)(2)(iii) stating that the vessel
used to meet the 15-trip criterion during
the recent participation period (2008)
need not be the same vessel used to
meet the 15-trip criterion during the
qualifying period (2004 or 2005) (see
discussion below under ‘‘Changes from
the Proposed Rule’’). NMFS agrees that
the Council did not intend to
disadvantage charter businesses for
upgrading or replacing vessels.
The same vessel does not need to be
used in both years—a qualifying year
and the recent participation year—to
meet the fishing trip criteria for a
transferable charter halibut permit.
However, the minimum 15-trip criterion
in at least one of the qualifying years
had to be met by a single vessel and the
15-trip criterion in 2008 had to be met
by a single vessel (either the same or
different vessel as used in 2004 or
2005). Upgrading a vessel, whether for
safety or other reasons, will not prevent
a person from qualifying for a
transferable permit under this rule if the
15-trip criteria are met.
NMFS will rely on the ADF&G
Saltwater Logbook record of fishing
trips by each charter vessel to determine
the qualifications for transferable or
non-transferable charter halibut permits
during the qualifying and recent
participation period years. A major
breakdown of a charter vessel within
one of those years could prevent a
business from qualifying for a
transferable or non-transferable permit.
Such cases may be appealed pursuant to
50 CFR 679.43.
Comment 55: What if a business
replaced a vessel between 2004 and
2005? Does the applicant still have the
ability to choose its ‘‘best year’’ in the
qualifying period if it used different
vessels in the qualifying period and the
recent participation period?
Response: Yes. The Council used the
term ‘‘best year,’’ but the proposed rule
used the term ‘‘applicant-selected year.’’
NMFS determined that the applicant
should choose between 2004 or 2005 for
purposes of determining the applicant’s
number of transferable or nontransferable permits.
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Comment 56: The proposed rule
regarding non-transferable and
transferable permits uses the phrase
‘‘same vessel’’ for transferable permits,
but not for non-transferable permits.
What is the reason for this?
Response: The Council specified a
higher standard of participation for
charter businesses to qualify for a
transferable permit. This standard
requires that a charter business
demonstrate its participation in the
charter halibut fishery by operating a
vessel that made at least 15 bottomfish
logbook trips in a qualifying year and a
(potentially different) vessel that made
at least 15 halibut logbook trips in the
recent participation year. This ‘‘same
vessel’’ standard is not required,
however, to meet the minimum logbook
fishing trips criterion needed for a nontransferable permit. For example, a
charter halibut business that used five
separate vessels that made one logbook
trip each in 2005 and again in 2008, will
qualify for one non-transferable charter
halibut permit. A different charter
halibut business that used three separate
vessels that made five logbook trips
each in 2005 and again in 2008 (totaling
15 trips in each year), will not qualify
for one transferable charter halibut
permit because at least 15 logbooks the
trips were not made on the same vessel
in 2005 and another single vessel in
2008. This business will qualify,
however, for three non-transferable
charter halibut permits. Meeting the
‘‘same vessel’’ standard for a
transferable permit demonstrates a
higher level of participation in the
charter halibut fishery than is required
for a non-transferable permit, which
appropriately reflects the higher value
of a transferable permit.
Comment 57: Will NMFS still look at
both qualifying years (2004 and 2005)
for the angler endorsement number if
the applicant used different vessels in
the qualification period and the recent
participation period?
Response: Yes. This rule stipulates
that 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 as provided at 50 CFR
300.67(e). The qualifying period is the
sport fishing season in 2004 and 2005.
Hence, the angler endorsement is
determined regardless of the recent
participation period (2008). Using a
vessel in 2008 that is different from the
one used in one or both of the qualifying
years will have no effect on the angler
endorsement determination.
Comment 58: All permits should be
transferable.
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Response: NMFS disagrees. The twotiered qualification criteria 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. On the
other hand, a business with relatively
more participation in the charter halibut
fishery is allocated a transferable permit
that allows new charter halibut
businesses to enter the fishery by
allowing the market for charter halibut
permits to allocate access to the fishery
in the future.
This policy reflects the intent of the
Council and Secretary to balance the
objective to reduce fishing capacity in
the charter halibut fishery and its
objective to minimize disruption to the
charter fishing industry. If only
transferable permits were initially
allocated based on a relatively high
minimum number of logbook fishing
trips, the sudden reduction of charter
halibut operations would be too
disruptive to the industry. On the other
hand, if only transferable permits were
initially allocated based on a relatively
low minimum number of logbook
fishing trips, then little or no reduction
in fishing capacity would be realized.
Over time, as the non-transferable
permits exit the fishery, only
transferable permits will remain.
Comment 59: Eligibility
considerations should be established for
those who may be interested in
purchasing a transferable permit after
the limited entry program is established.
This would be compatible with the
seven factors in section 303(b)(6) of the
Magnuson-Stevens Act, which the
Secretary must consider in approving a
limited entry program. These seven
points could be used to establish
‘‘eligibility criteria’’ for receiving a
transferred permit. The criteria could
give priority to those who have
committed themselves to the industry
and may have a history in running or
crewing on vessels for charter
businesses. This group of people often
gets lost in resource rationalization
programs; this needs to be avoided as
new rationalization plans develop. The
criteria can also be tailored to help tie
owners and operators to the Alaskan
community they are based in, improve
local economics for the industry, and
still provide fair and equitable access
based on intentional rather than passive
participation that comes with absentee
ownership.
Response: This rule establishes some
criteria to qualify for receiving a
transferred charter halibut permit. These
criteria are listed at § 300.67(i)(2) of this
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rule. In brief, the criteria require U.S.
citizenship (or 75 percent U.S.
ownership of a business); a complete
transfer application; a determination
that the transfer will not cause the
person receiving the permit(s) to exceed
the excessive share limitation (unless an
exception applies); the parties to the
transfer do not owe NMFS any fines,
civil penalties, or any other payments;
and the transfer is not inconsistent with
any sanctions. This rule includes no
Alaska residency requirement because
the Halibut Act prohibits discrimination
between residents of different States.
The Council could consider further
criteria for transferring permits to
achieve socioeconomic objectives in
future actions.
Comment 60: The April 25, 2008, EA/
RIR/IRFA analyzed 1, 5, 10, 15, and 20
minimum logbook trips but suggests
that a five logbook-trip minimum
requirement would allow up to 35 more
vessels to operate in Area 2C over 2005
levels. Although it is unknown how
many of these vessels would meet the
recent participation requirement, this
permit qualification criterion may not
immediately meet the NMFS stated
objective to ‘‘limit the number of
participating charter vessels.’’ Moreover,
with no limit on the number of trips a
permitted business can take within a
season once permitted, permitting those
businesses that meet the minimum
criteria of five logbook trips during the
qualifying period and five logbook trips
during the recent participation period
will likely allow for increased fishing
capacity given increasing client
demand. We request that NMFS
implement the option for a minimum of
10 logbook trips for permit qualification
in lieu of the five logbook trip
minimum.
Another commenter suggested that 30
to 50 days of logged halibut trips would
be a more appropriate requirement.
Response: The design of the limited
access system established by this rule
will likely reduce the number of vessels
in the charter halibut fleet relative to the
fleet size in 2005, despite the relatively
low participation standard of five
logbook trips for a non-transferable
permit. Table 46 in Section 2.8 of the
Analysis (see ADDRESSES) indicates that
646 vessels participated in the charter
halibut fisheries in Area 2C during
2005. Under this rule, a total of 502
charter halibut permits are expected to
be issued for vessels in Area 2C. This
represents a decrease in the potential
charter halibut fleet size in Area 2C of
about 22 percent. Comparable estimates
for Area 3A are that 564 vessels
participated in the charter halibut
fisheries during 2005, and a total of 418
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charter halibut permits are expected to
be issued under this rule. This
represents a decrease in the potential
charter halibut fleet size in Area 3A of
about 26 percent. A higher participation
standard would reduce the fleet too fast
and be too disruptive to these fisheries.
Comment 61: Leaving paid skippers
out of the permitting issuance is wrong.
An independent contractor who has
operated vessels in all the proposed
qualifying years for more than 50 days
should qualify for a permit.
Response: The proposed rule for this
action (74 FR 18178, April 21, 2009)
described the rationale for limiting
eligibility to receive a charter halibut
permit to charter business owners that
were licensed by the State of Alaska. In
brief, eligibility for charter halibut
permits is limited to the holder of an
ADF&G business owner license because
information on participation in the
charter vessel fishery is organized by
this license. Also, paid charter vessel
skippers or guides will continue to be in
the same position they were in before
this rule by being able to hire their
services to charter businesses.
Comment 62: The charter halibut
moratorium provisions for small
communities will not benefit some of
these businesses due to the complexity
of the provisions and the qualifying
requirements. The comment offered
alternative community qualifying
criteria and suggested that NMFS
remove the requirement for
communities to form a Community
Quota Entity to qualify for a community
charter halibut permit.
Response: NMFS appreciates
alternative suggestions to promote
charter vessel businesses that operate in
rural communities. However, the
proposed community provisions in the
proposed rule are unchanged in the
final rule. This rule meets the intent of
removing a new economic barrier for
small isolated communities with
undeveloped or underdeveloped charter
industry to participate in the charter
halibut fishery.
The rationale that governed the
development of the community
provisions is one of balance. The
Council and the Secretary are
attempting to balance the economic
development interests of rural
communities with the overall intent of
this action to curtail growth of fishing
capacity in the charter halibut fishery. A
more lenient policy could allow too
many charter businesses to enter the
fishery and a more restrictive policy
could allow too few. If the Council’s
approved community policy needs to be
adjusted in the future, it can entertain
proposals to do so and make regulatory
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amendment recommendations to the
Secretary.
Comment 63: My concern is fairness
related to urban and rural businesses in
deciding who receives a transferable
permit. A rural charter business faces
much more difficulty in maintaining
and operating a business than their
urban counterpart. The rule for
participation in the charter halibut
fishery should be revised to allow for
transferable permits to be issued to rural
charter businesses.
Response: This rule is not revised
based on this comment. This rule allows
a market-based system of allocating
access to the fishery after the initial
allocation of permits. With the
exception of community charter halibut
permits, transferable and nontransferable charter halibut permits may
be used anywhere within the IPHC area
for which they are designated.
Insufficient information exists to
distinguish between rural and non-rural
charter businesses for purposes of
transferable permit qualifying criteria.
Hence, these criteria are the same for
rural and non-rural charter businesses.
Comment 64: I strongly oppose this
proposal and ask that you reject it or
restructure it to include anyone that was
licensed during the qualifying period. I
am a crab fisherman and a charter boat
owner and captain with a very large
investment, both in money and time, in
my business. The business is my
livelihood. I do not take enough halibut
charters in the year to qualify under the
proposed rule. I take people out for a
variety of things, including guided
fishing, and I will lose business without
the ability to offer halibut fishing. I need
both crab and halibut charter incomes or
my business will fail.
Response: The minimum
participation number of logbook trips
was the second lowest participation
standard considered by the Council and
the Secretary. Participation in the
charter halibut fishery at lower levels is
not indicative of a significant
commitment to this fishery, and
including participants at lower levels
would run counter to the objectives of
this rule. Businesses that do not qualify
for an initial allocation of a charter
halibut permit may choose to alter their
charter vessel business plan to focus on
other species, acquire a transferable
permit to expand operation in the
charter halibut fishery, or leave the
charter industry to focus on other
commercial fisheries or ventures.
Alternatively, the business could seek a
special community charter halibut
permit.
Comment 65: The eligibility years are
unfair and reward certain people. I
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would qualify for the moratorium but I
do not think it is right.
Response: NMFS has determined that
this rule is fair and equitable as
discussed above under the heading
‘‘Consistency with Halibut Act.’’
Comment 66: I am in favor of limited
entry with the 2004 and 2005 qualifying
years, but opposed to the recent
participation period. That is why I
bought my business. My two sons have
completed the required time to get their
captain’s licenses and are working
toward the day they can take over the
business. All my planning and their
hard work will come to naught if this
plan is adopted. Please reject the 2008
qualifying date and keep with the
original 2004 and 2005 dates, so we can
maintain our business and support the
community.
Response: The Council chose the
qualifying period and recent
participation period in consideration of
historical dependence and recent
participation in the charter fishery, two
factors that the Council and Secretary
must take into account pursuant to the
Halibut Act. Demonstrating at least
minimal participation during both
periods is critical to the design of this
limited access system. Persons not
eligible to be an initial recipient of a
charter halibut permit may obtain
permit(s) through transfer.
Comment 67: Two comments
questioned the description of the charter
halibut permit program in the proposed
rule as a moratorium. The comments
cite several instances where Council
language refers to its action as a
moratorium and in one case refers to it
as an interim measure of stability in the
guided sport halibut sector during the
step-wise process toward a long-term
solution. Why, if the Council submitted
a moratorium to be published as an
interim solution, is the Secretary
proposing a permanent program in its
proposed rule?
Response: The proposed rule (74 FR
18178, April 21, 2009) at page 18182
speaks to this point. In essence, a
moratorium on entry into a fishery
limits entry into that fishery. Hence, a
moratorium is a limited access system
in which permits are initially limited to
those participants that meet specified
criteria. This rule implements such a
limited access system and it will remain
in effect until it is changed or replaced
through subsequent Council and
Secretarial action. Such subsequent
action may involve refinements to this
limited access system or it may remove
or replace this limited access system
with a different limited access system.
The Council has indicated that this rule
is an important step toward a
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comprehensive scheme to allocate the
halibut resource among users of the
resource. It is intended to have a
stabilizing effect on the charter halibut
industry while a comprehensive system
is developed and implemented that will
work in concert with other management
measures.
Comment 68: This program should
have a sunset clause. The proposed rule
should not be passed or should have the
control date changed to a sunset clause.
Also, logbooks were changed in 2006 to
allow for the collection of data specific
to halibut. This will help capture the
necessary data to keep the Council and
NMFS informed regarding charter fleets
and harvest levels.
Response: A date for ending this
limited access system—commonly
called a sunset date—was never
contemplated by the Council or
Secretary because the system is
perceived as necessary now and in the
future. Changes to the system, including
removing it, are possible through the
development of a separate regulatory
recommendation by the Council for the
Secretary to review. A control date was
published by the Council and the
Secretary on February 8, 2006 (71 FR
6442). The control date notice
announced to the public that no person
was assured of future access to the
charter halibut fishery if that person
entered the fishery after December 9,
2005. A control date and a sunset date
are not the same. The former signals the
start of a potential limited access
system, and the latter refers to a future
expiration date for a regulation or
program. This rule is not intended to
end at a predetermined date. Instead, it
is designed to be a step toward
establishing a comprehensive program
of allocating the halibut resource among
resource users.
NMFS is aware of the change in
logbook reporting required by ADF&G.
This is explained in the preamble to the
proposed rule (74 FR 18178, April 21,
2009) on page 18185. In 2004 and 2005,
ADF&G required charter businesses to
report bottomfish effort for each logbook
trip. ADF&G further instructed logbook
users that bottomfish fishing effort
included effort targeting halibut.
Comment 69: Limits should be based
on fleet size per community and limit
fleet size generally for Area 2C. In
Gustavus, nine seasons ago there were
19 operating charter boats; now there
are 24. While our growth has been very
small over 10 years, other areas have
increased significantly. Some areas
within Area 2C may need to be capped,
whereas other areas should have a
maximum capacity ceiling for halibut
guide boats. Another concern is
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absentee ownership. Many of the charter
business owners do not even fish. A
community-based cap would prevent
more people like this, or new people,
from overwhelming specific
communities.
Response: With the exception of the
community charter halibut permits, the
Council did not specify how many
permits should be allocated to
individual communities. Permit limits
for specific communities would be more
complex and more expensive to
administer than this rule because it
contemplates a separate limited access
system for each community. However,
such proposals could be made to the
Council.
Comment 70: The ‘‘recent
participation period’’ should be fixed as
either 2007 or 2008. Another comment
suggested that 2007 should be used for
the recent participation period because
the nationwide economic downturn
caused a number of cancellations in
2008 and recorded logbook trips fell
over 50 percent for that year.
Response: This rule establishes 2008
as the recent participation period, or
recent participation year, for purposes
of qualifying for a charter halibut
permit. The purpose of this
requirement, along with the
qualification years of 2004 and 2005, is
to ensure that both historical
dependence and recent participation are
recognized, two factors that must be
taken into account under the Halibut
Act. The approved Council
recommendation contemplated that
either 2007 or 2008 could be the recent
participation year, but refers to the
‘‘year prior to implementation.’’ NMFS
interpreted this phrase to mean the most
recent year for which a full year of
logbook fishing trip data are available,
and therefore established 2008 as the
recent participation year.
Comment 71: I support the proposed
regulations. The tremendous growth of
the guided sport charter industry over
the past decade has put serious pressure
on fish stocks. I would like to see more
reduction in permits than proposed but
allowing special consideration for lodge
operators who have a larger investment
and contribute more to the economy.
Perhaps a buy-back program makes
sense for reducing the total outstanding
permits or increasing the minimum
number of trips in the qualifying years.
Response: This action stabilizes the
guided charter fleet by capping the
number of separate vessels that may be
operated. The Council recommended
the use of non-transferable permits to
reduce the numbers of charter halibut
permits over time. NMFS estimates that
502 permits will initially be issued in
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Area 2C, and that this will eventually
decline to 347 permits as nontransferable permits expire. An
additional 72 permits may be issued to
CQE groups in Area 2C. In Area 3A, an
initial 418 permits should decline to
319 as non-transferable permits expire.
An additional 98 permits may be issued
for CQEs in Area 3A.
The Council’s use of non-transferable
permits was meant to lead to the
withdrawal from the fleet of operations
that had only minimal participation
without imposing a serious burden on
their traditional operations in the short
run. Allowing non-transferable permits
to expire over time will prevent these
operations from increasing participation
in the long run. This rule accommodates
the special needs of lodge operations by
(a) issuing permits to businesses, (b)
allowing them to hold multiple permits
up to the five-permit excessive share
limit, (c) allowing businesses to hold
initially allocated permits in excess of
the excessive share limit, and (d)
allowing businesses to hire guides and
vessel operators to use the permits.
This rule lays the groundwork for
future management measures, which
might include buyback, individual
quotas, or further measures to modify
the numbers of permits. Such proposals
should be made to the Council. After
Council development and analysis of
such proposals, changes may be
recommended to the Secretary for a
separate regulatory amendment.
Comment 72: A commenter has noted
an apparent conflict between text in the
preamble to the rule stating that 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 did not meet that
participation requirement, and text
stating that NMFS would have no
obligation to determine the owners of a
corporation or members of a partnership
that successfully applied for a permit.
The commenter points out that a person
could have bought a business after the
2004–2005 qualifying period, and before
the 2008 recent participation period.
Without checking business ownership,
it would be impossible to know if the
business owners were the same in both
periods.
Response: This apparent conflict is
due to confusing a business with its
owners. The initial allocation of permits
is to businesses, and the criterion for a
continuous business is not the
continuity of the owners but the
continuity of the business. The term
‘‘person’’ has been previously defined in
§ 300.61 to include an individual,
corporation, firm, or association. This
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rule makes clear that NMFS will not
recognize agreements that allow two
businesses to match their logbook
history to qualify for one or more
charter halibut permits. For example,
charter business ‘‘A’’ may have the
necessary logbook trips for the
qualifying period but not the recent
participation period and charter
business ‘‘B’’ may have the necessary
logbook trips for the recent participation
period but not the qualifying period.
Charter business ‘‘A’’ agrees to sell its
logbook history to charter business ‘‘B.’’
NMFS will not recognize this
agreement. In this case, neither business
will qualify for a charter halibut permit.
NMFS will issue a charter halibut
permit to the person or entity—
individual, corporation, firm, or
association—that held the ADF&G
Business Owner License that authorized
the logbook fishing trips that met the
participation requirements in both
participation periods, qualifying and
recent. NMFS does not intend to
determine the individual owners of
charter vessel businesses in part to
avoid dividing permits among the
owners or partners of dissolved
corporations or partnerships. See also
the response to Comment 105.
Comment 73: It would be very helpful
for full-time residents of rural
communities (the same that qualify for
subsistence) to be able to get a nontransferable permit to run one boat for
halibut if they captained a boat during
the qualifying years. Most of the
commercial fishermen would support
this as they are opposed to the bigger
charter operators, not the one-boat local
operators. It would be very good for the
small town economies, and it would
provide opportunities in towns where
opportunities are scarce.
Response: This rule includes
provisions to assist the development of
the charter halibut fishery in small rural
communities (see § 300.67(k)). In
addition, some charter halibut permits
are transferable, and persons in rural
areas will be able to acquire them in the
market if it makes economic sense for
the permits to migrate to those areas. If
the Council determines that rural
communities need further assistance to
develop small scale charter halibut
fisheries, it could develop a regulatory
amendment to recommend to the
Secretary.
Comment 74: Our industry is facing
very uncertain times and the stocks of
halibut have been declining. Controlling
growth of the charter industry is critical
for both the health of the halibut
biomass and all users of the resource.
NMFS needs to make provisions for
these permits to be eligible for financing
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through the NMFS Financial Services
Loan Division. This important rule has
been a long time coming.
Response: NMFS Financial Services
Division does not have the statutory
authority to make loans for this purpose.
Congressional action would be
necessary to provide this authority.
Comment 75: Is it possible to assign
a cost recovery fee to each limited
access permit to recover enforcement
costs and will that be a part of this
program?
Response: Cost recovery is not
authorized for this program as it is not
a limited access privilege program or a
community development quota program
as defined by the Magnuson-Stevens
Act. A limited access privilege is a
Federal permit issued as part of a
limited access system to harvest a
specific quantity of fish. A charter
halibut permit is a Federal permit
issued as part of a limited access system
but it does not provide a privilege to
harvest a specific quantity of halibut.
Hence a cost recovery fee for charter
halibut permits is not authorized under
section 304(d)(2) of the MagnusonStevens Act.
Comment 76: Although the Analysis
states that the Council intended to
curtail the growth of the charter sector,
the ‘‘recent participation’’ and ‘‘same
vessel’’ clauses of the rule will
effectively eliminate 40 percent of
current operators. Moreover, the
Council intention to curtail the growth
seems to be inconsistent with the
provision to provide for 192 new CQE
permits. The Analysis states that it is
the purpose of this action to place a
moratorium on ‘‘new’’ entry; however,
this action actually limits any entry
since 2005.
Response: ‘‘New’’ in this context
refers to entry into the charter halibut
fishery in Areas 2C or 3A after
December 2005 (see response to
Comments 40 and 45 concerning the
control date). Hence, this action limits
entry to operations that were active in
the fishery during the qualifying period
and that continued to operate with at
least minimal logbook fishing trips in
2008. This potential outcome was
published in the Federal Register on
February 8, 2006 (71 FR 6442), and in
the Council newsletter and other media.
This notice specifically stated that
anyone entering the charter halibut
fishery after the control date of
December 9, 2005, will not be assured
of future access to that fishery if a
limited access system is established that
limits participation in the fishery.
The ‘‘recent participation’’
requirement is an important element in
this rule as it serves to initially allocate
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charter halibut permits to businesses
that were participating in the fishery
during the historical qualifying years
and are still participating during the
most recent year for which NMFS has
complete logbook information. This also
demonstrates that the Council and
Secretary have taken into account
present participation as required by the
Magnuson-Stevens Act section
303(b)(6). The ‘‘same vessel’’
requirement is clarified in response to
Comments 54 and 56 and by the change
in this rule from the proposed rule (see
‘‘Changes from the Proposed Rule’’
below).
This rule may allow up to 72
community charter halibut permits to be
issued to CQEs representing
communities in Area 2C and up to 98
in Area 3A, for a total of 170. These are
the maximum number of community
charter halibut permits allowed under
this rule and they may not all be issued.
Comment 77: It is difficult to
comment on the proposed rule because
it is confusing and ambiguous in several
places. The proposed rule has many
stated objectives depending on the
agency providing information. The
Analysis (at page 2) states that the
purpose and need for action is due to
the reallocation of halibut harvest to the
charter sector from the commercial
sector. Since 1997, the commercial
sector has been trying to protect their
fisheries by submitting different
proposals from quota share programs to
limited entry programs. This proposal
begins with an inaccurate statement and
continues with inaccuracies throughout
including the data used for this
proposal.
Response: The problem statement on
page 3 of the Analysis (see ADDRESSES),
describes the evolution of the issue and
then succinctly states the problem:
‘‘To address the potential rush of new
entrants into the charter fishery, the Council
is considering establishing a moratorium on
the charter sector. The moratorium is to
provide an interim measure of stability in the
guided sport halibut sector during the stepwise process toward a long-term solution. In
doing so, however, the Council is also
concerned with maintaining access to the
halibut charter fishery by small, rural, coastal
communities. To address this, the Council is
considering establishing a separate program
to allow these communities to enter the
halibut charter fishery.’’
The Analysis accurately points to a de
facto allocation of the halibut resource
over the years from the commercial
fishery to the charter fishery as the
charter fishery expanded its activity.
The Analysis states that the Council
began to consider methods to cap the
growth of charter halibut harvests in
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1993. The historical information
presented in the Analysis is accurate.
Further, the Analysis incorporates the
best scientific information available.
Comment 78: I am in favor of limited
access for the charter fishery for halibut
similar to the commercial program. I am
a small stakeholder in both fisheries and
have seen my small commercial IFQ for
halibut cut in half from its original
allocated poundage. My only concern is
that I will not have enough years in the
charter business to qualify for an
allocation. I would like to see a
provision in the new regulations that
would allow a commercial fisherman to
use his allocation as a charter
fisherman.
Response: This rule makes no
connection between the commercial IFQ
halibut fishery and the charter halibut
fishery. A charter halibut permit under
this rule does not specify an amount of
halibut that may be harvested as does an
IFQ permit. The Council has adopted a
new recommendation for a catch
sharing plan that contains a proposal for
a limited transfer of IFQ halibut to a
charter halibut permit holder. A future
proposed rule may be developed that
will describe this proposal.
Comment 79: Is the definition of a
‘‘halibut logbook fishing trip’’ in the
proposed rule consistent with the
Council motion? Footnote 8 in the
motion specifies that, for the year prior
to implementation, evidence of
participation includes ‘‘actual halibut
statistical area, rods, or boat hours.’’ We
presume that this means that a
bottomfish statistical area or bottomfish
boat-hours must be reported along with
at least one halibut kept or released for
that boat-trip. The definition of a halibut
logbook fishing trip in the proposed
rule, however, appears to exclude the
requirement that a bottomfish statistical
area be reported if bottomfish boathours are not reported. It is common for
vessels targeting salmon to catch
halibut. Charter operators targeting
salmon were instructed in 2007 and
2008 to report the statistical area and
boat-hours under the salmon target
category. Therefore, the proposed
definition of ‘‘halibut logbook fishing
trip’’ might include some unknown
number of trips without bottomfish
effort as long as at least one halibut was
reported kept or released. This suggests
that the Council’s intent was that the
boat had to have reported a bottomfish
statistical area or bottomfish boat-hours
along with any halibut kept or released
as evidence of participation.
Response: Credit for participation in
2008 (the recent participation year)
depends on the number of halibut
logbook fishing trips in that year. A
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halibut logbook fishing trip will be a
trip for which a business owner
reported, within ADF&G time limits, the
number of halibut kept or released, the
number of boat hours that the vessel
engaged in bottomfish fishing, or the
statistical area(s) where the halibut
fishing occurred. Footnote 8 in the
Council’s motion explains that evidence
of participation includes ‘‘[a]ctual
halibut statistical areas, rods, or boat
hours as reported in ADF&G logbooks
* * *.’’
The Council’s motion uses the
conjunction ‘‘or’’ indicating that actual
halibut statistical areas and boat hours
are alternative ways to meet this
requirement. This parallels the use of
the word ‘‘or’’ in the paragraph on
‘‘Evidence of participation.’’ This rule
uses the same construction in the
definition of ‘‘halibut logbook fishing
trip’’ at § 300.67(f)(3) and specifies that
any one of the pieces of information—
the number of halibut kept, the number
of halibut released, the boat hours that
the vessel engaged in bottomfish fishing,
or the statistical area(s) where halibut
fishing occurred—would be sufficient.
The Council’s motion language may
lead to some businesses qualifying for
charter halibut permits because their
charter vessels anglers caught halibut
incidentally to salmon catches. The
2008 logbook did not include
information on the number of rods, but
did include information on the number
of halibut kept and released, and NMFS
used this information along with the
statistical area and boat hours
information. NMFS interprets the
Council’s reference to boat hours as a
reference to bottomfish target boat
hours. While the number of rods might
have been included in the definition of
halibut logbook fishing trip to be
consistent with the Council’s motion, it
would not make sense because that data
field was not included in 2008 logbooks.
Comment 80: The definition of a
charter vessel angler is in conflict with
the definition of sport fishing guide
services, since a non-paying angler
included in the first definition is not
receiving ‘‘assistance for
compensation.’’ This definition should
be replaced with ‘‘charter vessel client’’
and not include non-paying anglers.
Also, the definition of charter vessel
operator should be changed to specify
that the operator is in ‘‘physical control
of the vessel’’ in order to distinguish
this from other types of control (e.g.,
financial).
Response: No change is made to the
definition of charter vessel angler or
sport fishing guide services. NMFS
intends the definition of ‘‘charter vessel
angler’’ at § 300.61 of this rule to
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include non-paying anglers. The
definition of ‘‘sport fishing guide
services’’ is not limited to situations
where charter vessel anglers are directly
compensating someone for services. If
someone is compensated in any manner
by any person to provide sport fishing
assistance, then that person is providing
sport fishing guide services according to
this definition. NMFS acknowledges the
need to clarify the proposed definition
of charter vessel operator. See
discussion below under the heading
‘‘Changes from the Proposed Rule.’’
Comment 81: Revise § 300.66(b) ‘‘Fish
for halibut except in accordance * * *’’
to read ‘‘Catch and retain halibut except
in accordance * * *.’’ This change is
suggested to ensure that limited entry
permit requirement prohibitions are not
applied to vessels that may incidentally
catch, but not retain, halibut. Likewise,
most of the bulleted descriptions of
prohibitions on page 18190 of the
proposed rule refer to vessels fishing for
halibut, when in fact these prohibitions
are only in effect for vessels with
anglers catching and retaining halibut. It
is virtually impossible to define a vessel
or angler that is ‘‘fishing for halibut’’
because the gear and fishing technique
used for halibut are similar to that used
for other bottomfish species.
Response: No change is made. The
prohibition at § 300.66(b) previously
read, ‘‘fish for halibut except * * *.’’
The only change proposed in the
proposed rule published April 21, 2009
(74 FR 18178), and made final by this
rule is to add a reference to § 300.67.
The phrase ‘‘fish for halibut’’ existed
previously and was not proposed. It is
used deliberately, so that the
prohibition will apply to vessels fishing
for halibut. Vessels fishing for halibut
may not be successful, but if they are
successful, they may not retain the
halibut unless authorized to do so.
Only one of the prohibitions on page
18190 of the proposed rule refers to
‘‘fishing for halibut.’’ This bulleted
point is actually more general than the
corresponding changes to regulations in
§ 300.66. Most of the prohibitions in the
regulatory text at § 300.66 refer to
vessels ‘‘with one or more charter vessel
anglers on board catching and retaining
halibut.’’
Comment 82: The requirement to have
a logbook on board is not consistent
with current ADF&G regulations, nor is
it necessary to enforce logbook
reporting. ADF&G regulations and
instructions do not currently require
that the logbook be carried on board the
vessel, only that it be completed before
offloading any fish (or clients, if no fish
kept), or if operating a trailer boat, that
it be completed before offloading any
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fish and departing the launch site. This
is because some guides that operate
small skiffs keep the logbook in the
vehicle pulling the boat trailer to protect
the logbook from the elements. This
prohibition should be revised to say:
‘‘Operate a vessel in Area 2C or Area 3A
with one or more charter vessel clients
on board that are catching and retaining
halibut without completing a State of
Alaska Department of Fish and Game
saltwater charter logbook that specifies
the following * * *.’’
Response: The saltwater charter
logbook needs to be onboard the charter
vessel during a fishing trip, similar to
the commercial IPHC logbook
requirements. NOAA Office of Law
Enforcement and USCG enforcement
personnel depend on being able to
review the logs while the vessel is
engaged in fishing. The optimum time
to enforce charter halibut regulations is
either at sea during the fishing trip or
dockside when the fishing trip is
terminating. Effective enforcement is
compromised if the logbook is not
available to an authorized officer during
these encounters. A logbook may be
kept in a dry bag or dry container to
protect it from the weather or sea spray
while onboard a small open boat. NMFS
acknowledges that ADF&G regulations
and instructions do not currently
require that the ADF&G saltwater
charter logbook be carried on board the
vessel. As this erroneous information
was not in the proposed regulatory text,
no change is made in this rule.
Comment 83: All references to
‘‘licensed business owners’’ or
‘‘business owner licenses’’ during the
qualifying years (2004–2005) should be
replaced with ‘‘registered or licensed
business owner’’ or ‘‘business owner
license or registration.’’ There was no
business license in 2004, only a
business registration.
Response: NMFS acknowledges the
need for this correction. See discussion
below under the heading ‘‘Changes from
the Proposed Rule.’’
Comment 84: The final rule needs to
clarify if there will be an annual
permitting process. Page 18192 of the
proposed rule states that there would be
a start of the program application
process and then no additional
application would be required. In the
next paragraph it states NMFS would
require additional reports only when the
structure of the business owning the
permit changes or the permit is
transferred. The executive summary of
the Analysis, on page xxv, under
business ownership information, states
that persons would need to annually
disclose affiliation and ownership
through an application and affidavit to
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NMFS and that enforcement of this
provision would require NMFS to have
the authority to suspend a permit until
the business provides the necessary
annual documentation.
Response: The proposed rule is
correct; no change is made in this rule.
This rule at § 300.67(h) provides for a
single application period for an initial
allocation of charter halibut permit(s).
The permit(s) will not expire annually.
A charter halibut permit will cease to be
valid, as stated at § 300.67(j)(3), if the
permit holder is an individual and the
individual dies, or if the permit holder
is a non-individual entity and the entity
dissolves or changes as defined at
§ 300.67(j)(5). NMFS must be notified
within 30 days of the death of an
individual who holds a transferable or
non-transferable permit. For a nonindividual entity, NMFS must be
notified within 15 days of the effective
date of a change as required at
§ 300.67(j)(5)(ii). A ‘‘change’’ is defined
at § 300.67(j)(5). The purpose of this
requirement is to monitor and enforce
the expiration of non-transferable
permits and the excessive share limit
and its exceptions under § 300.67(j).
NMFS determined that an annual
statement of ownership or affiliation is
not necessary and would save
administrative costs for affected
business and NMFS. Most other limited
access systems administered by NMFS
for Alaska fisheries do not require
annual permit applications. Compliance
with the notification requirement when
there is a ‘‘change’’ in the status of the
permit holder as defined at § 300.67(j)(5)
should be sufficient to monitor and
enforce the excessive share limit and its
exceptions under § 300.67(j).
Comment 85: Absentee ownership of
access privileges has been identified by
Congress as a significant threat to
fishery dependent communities.
However, this rule seeks only to
discourage, not prohibit, leasing. If
implemented as written, this program
will allow limited entry permit holders
to divest themselves of all aspects of a
charter business except the permit, then
lease owned permits to active charter
boat operators. Entities with no working
connection to the charter industry and
fishery dependent communities will be
authorized to draw rents from the
resource. The prospect of permit leasing
raises concerns about the impact on
transferable permit prices, the potential
for permit concentration with
individual owners, the potential for
permits to become concentrated in ports
with the greatest number of summer
visitors (exacerbating identified fishing
ground congestion and localized
depletion in those areas), undercutting
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commitment to stewardship often
associated with the receipt of a permit
in a limited access program. The
impacts of leasing on communities and
the resource have not been adequately
addressed. Various proposals were
made for reducing the potential for
leasing, including requiring (except in
limited circumstances) permit holders
to be on board when permit-authorized
fishing takes place, limiting leasing
operations by geographic area, limiting
pure leasing without full investment in
the capital or operations of the business,
and requiring the charter permit holder
to be present in the Alaska community
where the charters originate.
Response: This rule does not have an
explicit prohibition against leasing,
although the Council recommended
one, for the reasons discussed in the
proposed rule (74 FR 18178, April 21,
2009) at page 18191. 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. For example, the owner of a
charter business or of a business such as
a wilderness lodge, that also provides
charter services, employs hired skippers
and guides to operate one or more
vessels. The charter business may or
may not own the vessels. The rules
governing the identification of qualified
businesses and the number of permits
they would receive did not require
vessel ownership by the qualified
business. Operations by these
businesses may be difficult to
distinguish from leasing. There is no
bright line between how these types of
businesses operate and what would be
considered leasing arrangements. For
this reason, enforcement of a
prohibition on leasing would be
difficult, time consuming, and costly.
NMFS determined that the benefits
derived from a leasing prohibition did
not justify the costs of enforcement and
the disruption to existing business
operations.
Comment 86: Several comments
requested clarification on what an
angler endorsement authorizes.
Specifically, does it apply only to the
number of halibut clients (presumably
paying but not non-paying halibut
fishermen) and does not govern the total
number of people on board?
Response: Each charter halibut permit
will have an angler endorsement
number. The angler endorsement
number on the permit is the maximum
number of charter vessel anglers that
may catch and retain halibut on board
the vessel authorized by the permit (see
50 CFR 300.66(s) and (t)). The angler
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endorsement does not limit the number
of passengers that an operator may
carry, only the number that may catch
and retain halibut. The term ‘‘charter
vessel angler’’ is defined in this rule (50
CFR 300.61) to include all persons,
paying or non-paying, who use the
services of the charter vessel guide. The
charter halibut permit, once issued with
its angler endorsement, would limit the
number of charter vessels anglers who
can catch and retain halibut on the
permitted vessel.
Comment 87: The proposed rule is not
clear about how angler endorsements
will be determined for an applicant who
qualifies for more than one permit. Does
that applicant receive an endorsement
for the highest number of anglers in any
one logbook for all of their vessels being
issued to that applicant or is each vessel
permit issued an angler endorsement
based on its own individual history?
Response: Charter halibut permits
under this rule are issued to individuals
or businesses which held ADF&G
Business Owner Licenses (or
registration) that authorized logbook
fishing trips during the qualifying and
recent participation periods. Hence, this
rule is oriented toward the charter
vessel activity of a qualifying business
rather than the activity of specific
vessels. The regulatory text at 50 CFR
300.67(e) states simply that, ‘‘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 as
provided at 50 CFR 300.67(e)(1) and
(2)). Therefore, a qualifying charter
vessel business will receive charter
halibut permit(s) with an angler
endorsement based on the highest
number of charter vessel anglers
reported by that business on any
logbook trip in the qualifying period
regardless of the number of vessels
involved. The same endorsement will
apply to all permits initially issued to
the qualifying business. As explained in
the preamble of the proposed rule (74
FR 18178, April 21, 2009) at page 18184,
this action is designed to limit the
number of charter vessels participating
in the charter halibut fishery, not to
prevent all expansion of fishing effort.
Of course, any such expansion would be
constrained by safety, USCG licensing,
and other regulations that limit the
number of anglers that may be on board
a vessel.
Comment 88: Angler endorsements
should be based on the year chosen by
the applicant for determining the
number of permits. This might work out
as more permits and less anglers per
boat, or they might choose to go with
less permits but the permit would have
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a higher angler endorsement. They
should not receive the highest
endorsement value unless earned within
the same year or you add additional
latent capacity to the program that is not
necessary.
Response: This rule implements the
Council’s recommendation with regard
to angler endorsements. Other more
constraining alternatives are possible
and may be necessary in the future.
Proposals for such alternatives could be
made to, and developed by, the Council
for recommendation to the Secretary.
Comment 89: Under the section
‘‘Angler endorsement on permits’’ the
proposed rule states ‘‘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 minimum endorsement of
four.’’ In some cases charter owners,
including myself, have upgraded our
vessels after the ‘‘applicant selected
year’’ from traditional four angler
configurations to more environmentally
efficient six or more angler
configurations. We should not be
penalized for investing in and
upgrading our equipment to be more
environmentally friendly, safer, more
cost effective, and remain competitive
in our industry. I suggest grandfathering
consideration be given to such
situations, especially for those of us that
have been in this business for a decade
or more.
Response: The Council’s motion was
meant to reflect the fleet composition
and practices as they were in the
qualifying period (2004 and 2005). The
recent participation year was meant to
screen out operations that had not
continued to be active in recent years
and is not included to reflect capacity
upgrades since the qualifying period. As
a result, permit endorsements reflect
business activity levels in 2004 and
2005. The endorsement provisions are
relatively liberal, reflecting the highest
number of clients included on a trip
taken by a qualifying business during
the two year qualifying period. This
endorsement is applied to all the
permits received by the qualifying
business. To the extent that a qualifying
business does not receive charter
halibut permits with endorsements that
match its increased carrying capacity,
the business could enter the permit
market and obtain by transfer one or
more permits with the appropriate
number of endorsements, or ‘‘stack’’ two
or more permits on a vessel.
Comment 90: The angler endorsement
system is cumbersome and inflexible.
Special identification cards equal to the
number of angler endorsements should
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be issued to each halibut charter permit
holder. The permit holder may fish,
lease, or sell any or all of the angler
endorsements. The proper number of
angler endorsement cards must be on
the vessels when engaged in the
catching and retention of halibut equal
to halibut anglers. All angler
endorsements will have the proper
identifying information, and this
information will be entered into the
ADF&G logbooks. The maximum
number of angler endorsements per
permit should be capped at six and the
minimum at one. Allowing halibut
charter permit holders to buy and sell
individual angler endorsements will
provide flexibility and a more affordable
means for new entrants into the
fisheries. The present proposal allows
only for the buying or stacking of four,
five, or six angler endorsements with a
halibut charter permit. The buying and
selling of angler endorsement cards will
be similar to the process of buying and
selling transferable halibut charter
permits and can only be engaged in by
entities that presently own halibut
charter permits.
Response: This is not the approach to
endorsements recommended by the
Council and implemented by this rule.
Alternative approaches to angler
endorsements are possible. Proposals for
such alternatives could be made to, and
developed by, the Council for
recommendation to the Secretary.
Comment 91: The types of permits
proposed in the moratorium are
unacceptable. The six-person and fourperson permits will only allow
operators to take six or four charter
anglers, depending upon which permit
is granted. Our vessel is certified for
four to six anglers, and the number of
anglers we carry varies by trip. We
cannot run a profitable business with
this restriction.
Response: The angler endorsement
represents the maximum number of
anglers that may catch and retain
halibut. This rule does not require that
the number of charter vessel anglers on
a vessel operating under a charter
halibut permit exactly equal the angler
endorsement on the permit.
Comment 92: The proposed rule uses
the term ‘‘angler’’ rather than ‘‘client,’’
and states, ‘‘The term ‘angler’ includes
all persons, paying or non-paying, who
use the services of the charter vessel
guide.’’ This is problematic for two
reasons.
First, in 2004 and 2005 the ADF&G
logbook required charter operators to
report only the number of ‘‘clients and
crew that fished.’’ Anglers that fished
from a charter vessel without
compensating the operator (comps) were
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not, and currently are not, considered
‘‘clients’’ or ‘‘guided anglers’’ because
the operator was not compensated for
services. Limiting charters to a number
of anglers (including non-paying) equal
to the number of paying clients in the
past is inconsistent.
Second, the proposed definition of
‘‘charter vessel angler’’ is not consistent
with the proposed definition of ‘‘sport
fishing guide services.’’ This is because
the definition of ‘‘charter vessel angler’’
includes non-paying anglers that use the
services of a charter vessel guide. The
definition of a charter vessel guide
includes a person that ‘‘provides sport
fishing guide services’’ and the
definition of ‘‘sport fishing guide
services’’ requires that assistance is
provided ‘‘for compensation.’’
Therefore, a non-paying angler cannot
be using the services of a charter vessel
guide if that angler is not providing
compensation.
NMFS should consider defining
charter clients as anglers that receive
assistance for compensation (including
any compensation, not just ‘‘paying’’
clients). There should also be a
distinction between charter clients and
anglers that fish on private boats but
share the cost of bait and fuel with the
owner, as this is a common practice.
Response: The comment is correct
that logbooks from 2004 and 2005 did
not explicitly request information on
non-paying anglers or ‘‘comps.’’
Reporting in this period is likely to have
differed among businesses, with some
including non-paying anglers under the
heading of ‘‘comps’’ and others not. The
Council recommendation was for the
number of endorsements to be the
highest number of reported anglers on
any trip conducted by the guide
business in 2004 and 2005. In some
instances, the number of endorsements
may be lower than they would have
been if the trip with the most anglers
had included comps, and the operator
had not reported comps under the client
heading.
A charter vessel angler includes the
non-paying anglers that use sport
fishing guide services. The definition of
‘‘sport fishing guide services’’ at 50 CFR
300.61 does not require each angler to
be individually compensating the
person providing sport fishing
assistance for this definition to be
applicable. This definition applies if
there is any compensation from any
source for assistance to a person who is
sport fishing. Hence, no conflict exists
between this definition and the
definition for charter vessel angler.
NMFS agrees that a distinction exists
between a charter vessel angler and a
non-guided angler. The former uses the
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services of a charter vessel guide
(pursuant to the definitions at 50 CFR
300.61) and the latter does not. Several
friends in a boat sport fishing for halibut
and sharing the costs of bait, fuel, or
other supplies are not charter vessel
anglers unless one of them is providing
sport fishing guide services.
Comment 93: The proposed rule talks
about stacking permits. There is no
mention of not being able to split a
permit between boats. This would best
fit our business plan as most operators
may only need one or two more
endorsements to add to a permit with
four endorsements. (In Southeast
Alaska, the maximum number of lines
fishing per vessel is six.)
Response: Stacking permits in this
action means having more than one
permit on a charter vessel to use the
total number of angler endorsements.
For example, an operator could hold
two charter halibut permits, one with an
endorsement of four and another with
an endorsement of six. Both of these
permits combined, or ‘‘stacked,’’ would
authorize this operator to have up to 10
charter vessel anglers on board the
vessel, unless this number of passengers
is prohibited by USCG licensing or other
safety rules or regulations. This rule
does not provide for splitting permits as
this would potentially multiply the
number of permits initially allocated
contrary to the intent of this rule.
Comment 94: NMFS should issue
permits only to charter businesses
which have been in full compliance
with the law. NMFS should require
charter businesses to show proof of
enrollment in a random drug testing
program (as required by the USCG) in
the qualifying as well as recent
participation years, and proof of paying
city sales tax in these years.
Response: Enforcement of drug testing
and sales tax rules is beyond the scope
of this action.
Comment 95: Why is Area 3A being
treated the same as Area 2C? The
proposed rule states that ‘‘the Council
recommended no change in
management of the charter vessel
fishery in Area 3A because that fishery
appeared stable.’’
Also, a comparison of the number of
active vessels and the level of harvest
shows cases where the number of
vessels appears to be inversely related to
the level of harvest. The proposed rule
states that ‘‘the intended effect is to
curtail growth of fishing capacity in the
guided sport fishery for halibut’’ and
that ‘‘open access in the charter vessel
fleet has resulted in virtual unlimited
increases in charter harvests.’’ The
vessel and harvest data cited refute this.
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Response: The first quote in the
comment is from the preamble to the
proposed rule published April 21, 2009
(74 FR 18178) in the third column on
page 18180 in a discussion of Council
actions in 2007 with respect to the GHL.
In fact, the quoted sentence has
additional text the reads, ‘‘* * *
appeared stable at about its GHL.’’ In
developing and implementing this rule,
the Council and Secretary determined
that applying a limited access system in
Area 2C only would quickly result in
excessive charter capacity in the
adjacent Area 3A. Hence, applying this
limited access system to both areas at
the same time avoids a disjointed stepwise approach which would be more
disruptive to the charter industry than
this rule. While, the highest growth rate
in the charter halibut fishery has been
observed in Area 2C, the charter halibut
fishery also has exhibited growth
between 1999 and 2007 in Area 3A.
Elements of this rule accommodate
different circumstances in Area 2C and
3A. Large lodges with multiple permits
are more common in Area 2C. This rule
accommodates this by allowing
businesses to hold multiple permits,
meeting lodge owners’ needs. Large
party boats are more common in Area
3A. This rule accommodates this by
allowing stacking of permits and angler
endorsements that vary on permits.
The long-term trend in halibut
harvests by the charter vessel sector
does not refute the quoted statements.
The trend in charter halibut fishery
harvests between 2003 and 2007 in Area
3A is one of slow but steadily increasing
halibut harvests from 2,724,000 pounds
(1,235.6 mt) in 2002 to 4,002,000
pounds (1,815.3 mt) in 2007. A slight
decline in the charter halibut harvest in
2006 is not significant.
Comment 96: Community charter
halibut permits are inconsistent with
the purpose of this program. Issuing
permits to communities is also unfair to
persons who recently participated in the
fishery but will not qualify for a permit
under the program.
Response: The Council recommended
using the CQE program to help develop
the charter vessel sector in certain rural
communities. The Council balanced the
objectives of stabilizing the guided
charter sector and its rural development
objectives. There will be constraints on
CQE permits; they will be anchored in
the rural communities. The Council has
consistently included the objective of
providing for the development of rural
communities through the use of fishery
resources. This is consistent with
requirements of the Halibut Act. The
Bering Sea Community Development
Quota Program and the IFQ CQE
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programs are similar examples. All of
these programs involve tradeoffs
between rural communities and other
user groups.
The community charter halibut
permits will be issued to CQEs, not
directly to businesses. It is possible that,
under agreement with the CQEs that
hold community charter halibut
permits, some of these permits will be
used by businesses that entered the
charter halibut fishery after 2005 and do
not otherwise qualify for an initial
allocation of charter halibut permit(s).
Also, acquiring a transferable charter
halibut permit through the market,
contracting with another business that
holds a charter halibut permit, arranging
to use a community charter halibut
permit, or changing the business plan to
avoid targeting halibut are all
alternatives for a person that does not
qualify for an initial allocation of a
charter halibut permit.
Comment 97: The CQE program
would allow expansion of the guided
charter fleet and undercut the
stabilization objectives of the program.
Limits should be placed on the
community permit program including:
(a) No more than four permits be
allowed in a community; (b) charter
boats should be required to begin and
end their trips in the community
designated on the permit; (c)
community eligibility should be based
on whether or not 10 charter vessels
terminated trips in the community in
the qualifying years, not on whether or
not 10 charter businesses did; (d)
impose a recency qualification
requirement on CQE groups (10 charter
vessel businesses terminate charter trips
in the year prior to implementation).
Response: While other management
schemes can be envisioned, the Council
indicated that stability in the charter
halibut fishery was one of the principal
objectives of this action. The Council
also sought to support rural
development objectives similar to those
addressed in other Council programs.
Although community charter halibut
permits may allow for some increased
effort, this rule also is designed to
reduce overall effort over time. The
elements that provide for such
reduction in effort include minimum
participation criteria to receive an initial
allocation of a charter halibut permit,
and the reduction in effort as nontransferable permits expire. With
respect to the specific proposals:
(a) No more than four community
charter halibut permits per eligible
community are permitted in Area 2C,
while seven are permitted in Area 3A.
The larger number of permits permitted
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in Area 3A reflects the larger resource
base available in that area.
(b) This rule requires all charter vessel
fishing trips authorized by a community
charter halibut permit begin or end
within the boundaries of the community
designated on the permit. This is meant
to ensure that charter vessel anglers on
the vessel have an opportunity to use
the goods and services available in the
community.
(c) The approved Council
recommendation clearly states that
eligible communities are those ‘‘in
which 10 or fewer active charter
businesses terminated trips’’ in each of
the qualifying years (2004 and 2005).
Regardless of this condition, this rule
specifically names the eligible
communities.
(d) The approved Council
recommendation does not include a
recent participation requirement for
community charter halibut permits.
Such a requirement would be a
substantive change to the proposed rule
and will require a separate Council
action and regulatory amendment to this
rule.
Comment 98: The Organized Village
of Kake Council would like to see the
Kake area be left open for local six-pack
charter boats that would like to enter
into the guided sport halibut fishery.
Although the amount of sport charters
in Kake is limited, the dozen that
enrolled in the six-pack license class
this past winter indicates an interest in
guided sport halibut in our small town
and should be given a chance to enter.
We have witnessed the large number of
charter businesses in the larger cities
and can see that they need to be limited,
but to shut down all of Southeast
Alaska, including rural areas, to a
limited license on sport halibut fisheries
is too extensive and favors larger
communities over rural villages. NOAA
should study Kake to see what we are
doing to develop a sustainable economy,
which includes developing six pack
charter boats that will help sustain the
two or three lodges that we have in our
community.
Response: This rule has a special
provision for rural communities like
Kake through its CQE program. Kake is
specifically listed in this rule as an Area
2C community that is eligible to receive
community charter halibut permits (50
CFR 300.67(k)(2)(i)). As such, a CQE
representing Kake can receive a
maximum of four community charter
halibut permits at no charge and can
acquire a maximum of four additional
charter halibut permits through the
market for transferable charter halibut
permits. Hence, a CQE representing
Kake can hold a maximum of eight
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permits. Individual businesses in Kake
are not limited by this provision from
acquiring additional charter halibut
permits.
Comment 99: The CQE-eligible
communities within the Gulf of Alaska
would have preferred, under optimal
conditions, an open access system.
Given the current conditions which
render an open access management
system completely inappropriate, the
measures provided for CQE
communities in the proposed rule are
fair and equitable. It has been
previously demonstrated that the
Halibut and Sablefish IFQ program
disadvantaged these 42 communities.
The resulting Amendment 66 to the
Halibut and Sablefish Program created
the CQE program and made CQEs
eligible to purchase halibut and
sablefish quota share. The proposed
community charter halibut permit will
help to provide much needed economic
opportunity to the eligible CQE
communities.
Response: NMFS acknowledges the
support for the CQE program.
Comment 100: Special permits for
U.S. Military Morale, Welfare, and
Recreation vessels should be limited to
the number of vessels that were
operated by the military for morale,
welfare, and recreational purposes
during the qualification periods. Also,
the vessels authorized by these permits
should allow participation only to
active military personnel and their
immediate family. The stakeholder
committee was provided information
that indicated that an extensive list of
qualified people go on military morale
vessels including YMCA members,
guests, and a wide variety of others that
did not have anything to do with active
military personnel and their immediate
family.
Response: This rule is designed, based
on Council recommendation, to have a
minimal effect on a Moral, Welfare and
Recreation Program of the U.S. Armed
Services. A special military charter
halibut permit issued to such a program
is non-transferable and restricted to the
regulatory area designated on the
permit. NMFS is aware of only one of
these programs in Alaska currently
offering recreational charter halibut
fishing to service members. If it is
determined that additional restrictions
are needed on the use of military charter
halibut permits, NMFS can issue a rule
with those restrictions.
Comment 101: The commenter
supports the prohibition on operating a
charter vessel in Area 2C and Area 3A
during a single charter vessel trip.
Response: NMFS acknowledges the
support.
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Comment 102: The commenter
supports the excessive share limit
section as written. This issue was
debated and the Council recommended
that larger businesses retain their
grandfather rights if the business is sold
with all assets and permits. NMFS did
a good job of writing this section to
provide the balance that was
recommended by the stakeholder
committee and chosen by the Council as
the preferred alternative.
Response: NMFS acknowledges the
support.
Comment 103: The proposed rule
‘‘grandfathers’’ current participants that
qualify for more than five permits to
receive and operate more than five
permits while restricting all other
entities to five. Grandfathering in this
manner has become an accepted
practice in Alaska’s quota share
programs; however, other programs do
not allow the grandfather rights (i.e.,
access privileges in excess of the
excessive share cap defined for the
fishery) to be sold in total as is proposed
in this rule. Allowing grandfathering to
continue after a business is sold raises
serious social equity issues. While a
case can be made for allowing large
operations to continue to operate above
the cap for a given amount of time,
providing the opportunity for those
licenses to all be sold to one entity
perpetuates the inequity. We
recommend that NMFS modify the
proposed regulations to restrict
purchasers of halibut guided sport
limited entry permits to the defined
excessive share limit of five permits.
At a minimum we strongly
recommend that NMFS remove the
requirement that transfer of more than
five permits be contingent upon the
transfer of all assets, including lodges,
vessels, and other assets. This provision
will inflate the overall value of
businesses holding more than five
permits, providing them with a
windfall. There is simply no need for
NMFS to tie all business assets to the
transfer of more than five permits; this
is a market decision between buyer and
seller, and is outside of NMFS’s
purview. This provision does not seem
to be administratively feasible or
appropriate.
Response: The approved Council
recommendation specifically provides
for a conditional exception to the
excessive share limit of five charter
halibut permits. This provision,
commonly called the ‘‘grandfather’’
provision, applies only to an initial
recipient of charter halibut permits that
initially qualifies for more than five
permits. The Secretary has approved
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this recommendation and it is
implemented in this rule.
One condition to this grandfather
provision is that it applies as long as the
initial recipient of more than five
charter halibut permits continues to
exist as it does at the time it is initially
issued the permits. If the initial
recipient is an individual and dies, then
the exception stops and the individual’s
successor-in-interest may not hold more
than five permits. If the initial recipient
is a non-individual corporate entity that
dissolves or changes, then the exception
also stops and the new or changed
entity may not hold more than five
permits. This rule refers to 50 CFR
679.42(j)(4)(i) for the meaning of
‘‘change’’ for a non-individual entity.
The other condition allows
grandfathered permits in excess of the
five-permit limit to be transferred to a
new person (i.e., individual or nonindividual entity) without application of
the five-permit limit providing, among
other things, that the person transferring
its grandfathered permits also is
transferring its entire charter vessel
fishing business, including all assets of
that business, to the person designated
to receive the permits. The language of
the Council recommendation stated that
‘‘grandfathered permits that are sold in
total when a business owner sells his
entire business/fleet maintain that
grandfathered status.’’ This rule
implements this language by stating that
‘‘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) * * * permits if * * * [t]he
person transferring its permits also is
transferring its entire charter vessel
fishing business, including all assets of
that business, to the designated person
that would receive the transferred
permits’’ (50 CFR 300.67(j)(6)).
These exceptions are designed to
balance the need to apply the excessive
share limit to the charter halibut fishery
in these areas with the need to recognize
that some charter vessel businesses will
qualify for more than five permits and
should be allowed to continue business
with the same number of charter vessels
for which they initially qualified. The
Council and Secretary intend, however,
to have more charter vessel businesses
comply with the excessive share limit
over time than may do so at the time of
initial allocation of permits. As charter
businesses change, exit, and enter the
charter halibut fishery over time, the
number of businesses holding
grandfathered permits should decrease
relative to the number that received
them at initial allocation. This outcome
is encouraged to the extent that costs of
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transferring grandfathered permits are
increased by the ‘‘all assets’’
requirement at 50 CFR 300.67(j)(6)(iv).
NMFS will require applicants for
transfers of charter halibut permits in
excess of the excessive share limit to
attest that (1) the existing permit holder
that holds more than five permits will
be transferring all of the transferable
permits that were initially issued
together, (2) the current permit holder
will be transferring all assets of its
charter vessel fishing business along
with the permits, and (3) the person that
will receive the permits in excess of the
excessive share limit does not hold any
permits at the time of the proposed
transfer. NMFS also will require
applicants to submit a copy of the
charter vessel fishing business sale
contract with the application for transfer
of charter halibut permits. The comment
is correct that NMFS does not define or
describe all of the assets that will have
to be included in the sale of a charter
vessel fishing business because each
sale will be unique. NMFS may require
additional documentation of the items
included in the sale of the business.
Comment 104: The excessive share
limit section in the proposed rule limits
any charter owner from growing beyond
five vessels or its current size. We
understand the desire to limit
consolidation of permits to only a few
owners; however, this provision is
overly restrictive. Further it would
prevent a permit holder from selling to
another entity that has any permits thus
limiting market value. An alternative
needs to be developed.
Response: An excessive share limit to
prevent excessive consolidation under a
limited access system is a requirement
of the Halibut Act (see discussion above
under the heading ‘‘Consistency with
Halibut Act’’). Determining what is
excessive is a public policy judgment of
the Council that is based on the current
structure of the charter halibut fishery.
Alternative excessive share limits
should be suggested to the Council for
development and potential
recommendation to the Secretary. Also,
permit holders would be prevented from
receiving permits by transfer only if the
transfer would result in that person
holding more than five permits.
Comment 105: Several comments
stated that charter businesses had been
purchased between the qualifying
period (2004 or 2005) and the recent
participation period (2008). Page 18182
of the proposed rule (74 FR 18178)
states that ‘‘[c]harter 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
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585
not meet the participation
requirements.’’ The proposed rule
specifies that NMFS would not
recognize private business purchase
agreements when issuing permits
because the Council did not recommend
it.
The comments disagree with the
proposal to not recognize private
business purchase agreements when
issuing permits, stating that they
purchased charter businesses that had
sufficient participation in the qualifying
period and continued to operate the
business in the recent participation
period. Some comments specified that
their business purchases included the
fishing history of the business’s vessels,
rights to any limited entry program
benefits, and in some cases, the
purchasers have taken possession of the
business’s logbooks from the qualifying
period. One comment requested
analysis of the impacts of either
including or excluding a number of
potential initial recipients due to private
agreements to transfer participation
history with a business. Another
commenter stated that he consulted a
lawyer when drafting the contract of
sale to prevent problems with the
transfer of the future limited entry
permit and any future IFQs and notified
NOAA General Counsel of the sale.
Another commenter stated a belief that
the Council intended for persons that
purchased rights and operating histories
and met other application criteria (e.g.,
operated the year prior to
implementation) to be eligible for
permits. One comment suggested that
NMFS should change the rule to specify
that if a charter operation met the
minimum qualifications in 2004 or 2005
but was sold after 2005 and kept the
same name, that charter company will
qualify for a permit if it met the
minimum requirements in the recent
participation period. The comment
suggests that NMFS establish an appeal
process to address this issue if the rule
is not changed.
Response: NMFS did not propose to
recognize private agreements for several
reasons that were stated in the proposed
rule preamble. Prominent among these
was that the Council did not
recommend this policy. The Council has
expressed its intent to recognize private
agreements that transfer participation
history in the establishment of other
limited access systems, but not for this
action. Because the Council did not
recommend to recognize private
agreements for this action, NMFS did
not include such a provision in the rule
implementing this program.
Notwithstanding the narrative in the
proposed rule (74 FR 18178, April 21,
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2009) preamble on page 18182, the
proposed rule also makes clear on page
18186 that NMFS will issue a charter
halibut permit to the entity that held the
ADF&G Business Owner License that
authorized the logbook fishing trips that
met the participation requirements.
Further, the proposed rule at page
18186, states that NMFS will follow the
form of ownership that the business
used to obtain legal authorization from
the State of Alaska for its past
participation in the charter halibut
fishery. NMFS will not determine the
owners of a corporate entity or the
members of a partnership that held the
appropriate license. An applicant that
receives an initial administrative
determination finding that the applicant
does not qualify for a permit may appeal
that determination as specified in this
rule at 50 CFR 300.67(h)(6) and
described in the proposed rule on page
18186 and 18195.
Comment 106: The criteria for a
permit should be based on currently
licensed guides’ total catch records. Do
not allow any newcomers to qualify for
charter halibut permits but grandfather
current charter operators into the
program.
Response: The Council could have
chosen alternative qualifying criteria for
demonstrating participation in the
charter halibut fishery. The Council
noted in its problem statement that it
had previously considered other options
including awarding quota share based
on catch records. In this action,
however, the Council selected 2004 and
2005 as the qualifying period which is
consistent with the problem statement
and the Halibut Act as described above
under the heading ‘‘Consistency with
Halibut Act.’’ Anyone who started a
charter halibut fishing business after the
December 9, 2005, control date (71 FR
6442, February 8, 2006) was on notice
that they may not qualify for
participation under a future moratorium
on new entry or other limited access
program.
Comment 107: Magnuson Stevens
1853(b)(6)(A) requires that a limited
access system take into account present
participation in the fishery. With 2004
or 2005 being the qualifying years for
participation in the proposed limited
access fishery and 2009 being the year
of promulgation, we are looking at data
that is four to five years old being used
to establish who gets a permit. In
Alliance Against IFQs v Brown, while
upholding the agency decision, the
Ninth Circuit held that, the three-year
delay ‘‘pushed the limits of
reasonableness,’’ but did not constitute
arbitrary and capricious agency action.
Reliance on data four to five years old
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may exceed the limits referenced by the
Court. If NMFS chooses to press forward
with the rule, it should drop the
qualifying year requirement and
consider only the year prior to
implementation.
Response: As discussed above under
the heading ‘‘Consistency with Halibut
Act,’’ the Council is required to consider
present participation in the fishery and
historical fishing practices in, and
dependence on, the fishery when
developing a limited access system. The
charter halibut permit program is
consistent with this requirement. The
Council intended to require active
participation in the qualifying period
(historical) and the recent participation
period (present) because it determined a
business that participated in both
periods demonstrates an acceptable
level of dependence on the charter
halibut fishery.
Comment 108: If qualification for a
charter halibut permit is based on the
2004 and 2005 logbooks, many charter
captains will be adversely affected.
Although some may have the funds to
buy the limited entry permits they need
to keep operating, I am not likely to be
able to afford to buy any permits.
Response: At the beginning of the
development of this rule, the Council
announced a control date of December
9, 2005, to alert potential businesses of
the possibility of a limited access
system for the charter halibut fishery.
This announcement was made by a
Federal Register notice published
February 8, 2006 (71 FR 6442). This
notice informed any business entering
the charter halibut fishery in Areas 2C
and 3A after 2005 that they were not be
assured of future access to the fishery if
a limited access system was developed
and implemented.
Comment 109: Two separate
comments noted that their participation
in the charter halibut fishery during the
qualifying period was prevented
because of problems with vessels.
Response: The Council recognized
that certain unavoidable circumstances
could prevent a permit applicant from
participating in either the qualifying
period or recent participation period.
The preamble to the proposed rule (74
FR 18178, April 21, 2009) on page
18187 contains a detailed description of
the unavoidable circumstances
exception to the qualification
requirements. To qualify for the
unavoidable circumstances exception in
the charter halibut permit program, an
applicant must demonstrate that (1) it
participated in either the qualifying
period or the recent participation
period, (2) it had a specific intent to
participate in the period the applicant
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missed, (3) the circumstance that
thwarted participation was unavoidable,
unique to the applicant, and unforeseen
and unforeseeable, (4) the applicant
took all reasonable steps to overcome
the problem, and (5) the unavoidable
circumstance actually occurred. Permit
applicants that are initially denied a
charter halibut permit may make an
unavoidable circumstances appeal
through the NOAA Office of
Administrative Appeals.
Comment 110: Please rewrite the rule
to include regular active duty soldiers.
Under the proposed rule, those who
volunteered for active military duty in
2004 and 2005 do not qualify for the
military exemption, unlike those called
up from the reserves. The proposed rule
states that volunteers will not qualify for
a charter halibut permit since they
chose to serve this country instead of
staying home and fishing. As stated
under Military Exemptions: ‘‘This
exemption would not apply to persons
in the regular armed forces. The
rationale 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.’’
In the Council motion, the military
exemption in footnote 10 reads: ‘‘The
military exemption refers to an
individual who was assigned to active
military duty during 2004 or 2005, who
qualifies as ‘active’ during the year prior
to implementation, and who
demonstrated an intent to participate in
the charter fishery in Area 2C or 3A
(prior to the qualifying period).’’ What
is NMFS’s interpretation of ‘‘active
duty’’? As stated above, it does not
address active duty or reserve
components specifically.
Response: NMFS agrees that it
misinterpreted the Council’s motion.
Regulatory text at 50 CFR 300.67(g)(3)(i)
is changed in this rule to add ‘‘active
U.S. military’’ to active service in the
National Guard or military reserve (see
discussion below under the heading
‘‘Changes from the Proposed Rule’’).
The approved Council recommendation,
as correctly quoted in the comment,
does not limit ‘‘active military duty’’ to
service in the National Guard or military
reserve. The proposed rule
misinterpreted this phrase to apply only
to the National Guard or military reserve
due to experience with a different
exception for service in the National
Guard or military reserve that applies to
the IFQ fisheries for halibut and
sablefish (73 FR 28733, May 19, 2008).
In this rule, however, active military
duty is functionally the same regardless
of what military unit a person is
assigned. NMFS understands that
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enlistment in a regular branch of the
U.S. military is not necessarily a career
choice due to the fact that enlistment
periods are short relative to a typical
career of 20 or 30 years.
Comment 111: The halibut stocks
would be better protected if the
qualifying years (2004 and 2005) were
moved back at least one year.
Response: NMFS determined that the
halibut stocks are adequately protected
under this rule. The selection of the
qualifying years involved consideration
of participation in the charter halibut
fishery as required by the Halibut Act.
Comment 112: Two comments noted
that representatives of the charter
industry took part in developing the
charter halibut permit program and held
different views on its rationale.
Response: The history of management
of the charter halibut fishery generally,
and limited access management, in
particular, was summarized in the
preamble to the proposed rule (74 FR
18178, April 21, 2009) on pages 18179
to 18182. That summary references the
Council’s charter halibut stakeholder
committee. Although this committee
made specific recommendations to the
Council regarding the elements and
options under consideration, the
Council’s development of this rule also
was influenced by its problem
statement, analysis of alternatives (see
ADDRESSES), and extensive public
testimony.
Comment 113: We support the criteria
for awarding permits and anticipate that
most charter operators in our area will
qualify under the number of vessels.
This should effectively reduce fleet size
and fishing capacity from current levels
for charter businesses that have
overcapitalized in recent years. Charter
operators will still be able to lease
additional vessels beyond those for
which they receive permits under the
limited access program or will
eventually procure additional permits.
Response: NMFS acknowledges the
support for this rule.
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Other Management Measures
Comment 114: The charter industry
should support scientific research on
the halibut resource. This scientific
research can be funded in part by a
percentage of charter businesses’
earnings going to the halibut and
salmon commissions for the studies that
are necessary to sustain these stocks.
There is enough room in the fishery for
the commercial and charter businesses
to exist. Let’s work together to assure
that this natural resource will remain
abundant forever. We all want healthy
abundant stocks.
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Response: This rule does not establish
a fee on the distribution or use of
charter halibut permits, nor does it
establish cost recovery fees for holding
charter halibut permits. Cost recovery
fees are not authorized for this rule
because charter halibut permits do not
allocate a percentage of the total
allowable catch to each permit holder.
Comment 115: Does paragraph
300.66(i) of the proposed rule mean
only the vessel owner and immediate
family can use the vessel for subsistence
fishing, or does it mean the vessel
owner or immediate family must be
onboard, and any other individual is
allowed as long as he or she has a
subsistence permit? We are strongly
against the former interpretation, as it
restricts the use of our vessel when we
are not chartering.
Response: The prohibition at 50 CFR
300.66(i) was established by the rule
published September 24, 2008, at 73 FR
54932. This paragraph is amended in
this rule to include a unique definition
of the term ‘‘charter vessel’’ that
pertains only to this prohibition. This
prohibition was developed by the
Council in 2004 to allow an individual
who holds a subsistence halibut
registration certificate (SHARC) and also
owns a charter vessel to use the vessel
for subsistence fishing for halibut. This
can be done only if the vessel’s owner
of record and his/her immediate family
are on board and each individual
engaging in subsistence fishing on board
the charter vessel holds a SHARC.
Hence, the prohibition at 50 CFR
300.66(i) prohibits any person other
than the charter vessel’s owner of record
and immediate family from being on
board a charter vessel if anyone on
board the vessel is engaged in
subsistence fishing for halibut.
Subsistence halibut regulations,
published April 15, 2003 (68 FR 18145),
prohibited retention of any subsistence
halibut that were harvested using a
charter vessel. The Council and
Secretary subsequently authorized an
exception for individuals who owned a
charter vessel and also held a SHARC to
use the vessel for their harvest of
subsistence halibut. The exception does
not apply if anyone other than the
owner and his/her immediate family is
on board the vessel. This rule simply
adds a unique definition of ‘‘charter
vessel’’ for purposes of this prohibition.
Comment 116: Subsistence and
commercial halibut participation rights
should be changed. Subsistence use
should be based on need, not where you
live. A return to the old two hook
subsistence gear would be nice, as
would having to adhere to sport fishing
regulations on daily limits. There is no
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587
need for allowing one individual to take
15 or 30 halibut a day just because he
or she lives in a ‘‘rural’’ community.
Also, since the implementation of the
IFQ program for commercial halibut
fisheries, there has been an increase in
commercial fishing gear in areas that
traditionally were free of this gear.
Response: This rule does not make
any changes to fishery management
regulations for the subsistence or
commercial setline fisheries.
Suggestions for such changes should be
directed to the Council for
recommendation to the Secretary.
Comment 117: Ban all charter fishing
in the area for all time.
Response: Prohibiting the charter
halibut fishery was not considered as an
option or alterative to this rule. Guided
sport fishing for halibut is a legitimate
use of the Pacific halibut resource and
the second largest fishery (after the
commercial setline fishery) for halibut
in Areas 2C and 3A. Prohibiting the
charter halibut fishery in these areas
would severely diminish economic
benefits to Alaska and other States.
Moreover, prohibiting the charter
halibut fishery would not achieve the
objectives of this action.
Comment 118: I disagree with the
limited entry program. Could NMFS
allow only Alaska residents to fish for
halibut and keep the money with
Alaskans?
Response: The Halibut Act prohibits
discrimination between residents of
different States when making
allocations of the halibut resource.
Regulations established by this action
apply to all permit holders, regardless of
their business location or place of
residence.
Comment 119: Why limit charter
operations? Why not also limit sport
fishing permits and commercial
operating permits for halibut fishing?
When limits are placed on halibut for all
entities involved, there are fewer boats
on the water and fewer fish removed,
and everyone is subject to the same
rules.
Response: Additional restrictions on
the commercial setline and unguided
sport fisheries for halibut are outside the
scope of this action. The commercial
setline fishery for halibut already
operates under a limited access system.
Since its implementation in 1995, the
IFQ program for commercial setline
fishery for halibut and sablefish limits
entry to quota share and IFQ permit
holders. A market for the distribution of
these permits has developed just as is
expected for charter halibut permits. In
addition, the commercial setline fishery
has taken large reductions in its catch
limits in recent years.
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The unguided sport fishery for halibut
is different from either the commercial
setline fishery or the commercial charter
halibut fishery. Participation and
harvest levels have remained relatively
steady in the unguided sport fishery for
over 10 years (1995 to 2007) and amount
to roughly seven percent of total halibut
removals. By comparison, the harvest
and participation levels in the guided
sport sector have increased over the
same period and amount to roughly 14
percent of total removals. This growth
in estimated halibut removals by the
charter halibut fishery prompted action
by the Council and NMFS. For now, the
IPHC regulations governing unguided
sport fishing for halibut appear to be
sufficient for managing this relatively
small fishery.
Comment 120: The moratorium
ignores the rapid and recent growth of
the unguided recreational fishery and
growth in the subsistence fishery. State
of Alaska annual harvest estimates show
that unguided halibut harvest in Area
2C increased from 122,562 pounds in
2006 to 1.131 million pounds in 2007.
The commercial catch limit is set by
subtracting all other removals from the
total CEY (constant exploitation yield);
therefore, an allocation decision should
not be made without taking into
consideration the present participation
in not only the commercial quota share
and guided recreational fisheries but
also the unguided recreational fisheries.
Response: Actually, the ADF&G
annual harvest estimates indicate that
the unguided fishery in Area 2C
harvested about 723,000 pounds (328.0
mt) in 2006, 1,131,000 pounds (513.0
mt) in 2007, and 1,265,000 pounds
(573.8 mt) in 2008. These estimates are
point estimates at the midpoint of a
range of possibilities. For example, the
95 percent confidence interval for the
estimated harvest by the private
unguided sport fishery in 2007 ranges
between 987,000 pounds (447.7 mt) and
1,274,000 pounds (577.9 mt). In
addition, a growth trend is not apparent
in the long-term harvest estimates of the
unguided sport fishery. For example,
over the 10-year period 1997 through
2006, the ADF&G estimated unguided
sport harvest of halibut ranged from a
low of 723,000 pounds (328.0 mt) in
2001 and 2006 to a high of 1,187,000
pounds (538.4 mt) in 2004. The average
estimated unguided sport harvest of
halibut over this period was 922,400
pounds (418.4 mt). With this
perspective, the single year estimate of
1,131,000 pounds (513.0 mt) in 2007
does not appear to be a significant
increase. The Council considered the
unguided recreational fishery harvest
levels when it developed this rule (see
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Table 3 of the EA/RIR/IRFA prepared
for this action [see ADDRESSES]). It did
not recommend any restrictions on the
unguided sport harvest of halibut
because that did not appear to be
necessary from the relatively stable
long-term trend in estimated harvests by
this sector. If this trend changes in the
future, the Council or the IPHC may
consider further restrictions on the
unguided sport harvest of halibut in
Areas 2C and 3A.
Comment 121: Some rural Southeast
Alaska communities are heavily
dependent on commercial and
subsistence fishing. Residents in rural
Southeast Alaska, where there is no
store and transportation in and out is by
boat or seaplane service, must live off
the surrounding land and seas. The
moratorium must be limited to the
guided sport charter sector only. Any
extension to subsistence users would be
an added hardship on the local
economy already suffering from
regulations that have unforeseen longterm effects on rural fishing towns.
Response: This rule directly affects
only the charter halibut fisheries in
Areas 2C and 3A. No changes are made
by this action to restrict commercial
setline fishing or subsistence halibut
fishing opportunity.
Comment 122: I support the idea of
limiting the number of participants in
the charter halibut fleet. However, as an
operator who runs trips that do not
return to port for 7 to 10 days at a time,
compliance with some rules is difficult.
These include the requirement to save
carcasses, not being able to skin halibut,
not being able to freeze halibut on
board, and having different size limits
for a second halibut. Implementing such
complicated rules should be avoided in
the future, and the needs of operations
that do not return to port each day
should be considered.
Response: NMFS acknowledges the
support for this rule. No restrictions
exist on freezing sport-caught halibut on
board a vessel. The comment is referring
to an allowance under ADF&G
regulations that discounts sport-caught
fish preserved for human consumption
from any daily bag limit that may apply
to that fish. These ADF&G regulations
do not apply to sport-caught halibut,
however. All halibut on board a vessel
are counted toward the daily bag and
possession limits that apply in the
regulatory area in which the vessel is
operating. Hence, sport-caught halibut
possessed onboard a vessel must not be
filleted, mutilated, or otherwise
disfigured in any manner. An exception
allows cutting halibut into two dorsal
pieces, two ventral pieces, and two
cheek pieces, with skin on all pieces
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(see section 28(2) of the annual
management measures published
March 19, 2009 (74 FR 11681)). If
charter operators and sport fishermen
have freezers on their vessels large
enough to accommodate such pieces of
halibut, no regulation prohibits them
from being frozen.
A requirement to save halibut
carcasses is not included in this rule
and is not currently in effect. The
requirement that limits the extent to
which sport-caught halibut may be cut
and to leave the skin on is necessary to
enforce the existing daily bag and
possession limits. Because this
regulation is needed to enforce other
restrictions, it is not designed to
discriminate against any particular
charter vessel business model or sector
of the industry. The current
configuration of the charter sector fleet
was considered by the Council and the
Secretary when this rule was developed
and implemented.
Comment 123: I support limited
access as it will help limit over fishing
in the charter sector. Also, I believe that
NMFS and the Council should continue
to pursue an IFQ program for halibut
charter operators. Commercial setline
fishermen understand that lower quotas
are due to stress on the stocks, but it is
hard to see the commercial quota
lowered due to continued pressure on
the stocks by commercial sport charter
operators who have consistently
exceeded their harvest guidelines. The
only fair way to resolve this is to
develop an IFQ system for the charter
fleet. This is the only way to protect the
resource for all users—commercial,
subsistence, and guided and unguided
sport fishermen—and minimize
conflicts between the sectors.
Response: NMFS acknowledges the
support for this rule. The preamble to
the proposed rule for this action (74 FR
18178, April 21, 2009) and the notice for
the December 9, 2005, control date for
the guided sport fishery for halibut (71
FR 6442, February 8, 2006) describe the
development of a charter vessel IFQ
program and the reasons why it was not
implemented. The Council may revisit
this type of limited access system in the
future. If so, the Council will develop
regulations for such a system and
recommend them to the Secretary as a
separate action.
Comment 124: I do not support
establishing an IFQ program for the
charter halibut fishery in IPHC Areas 2C
and 3A.
Response: This action does not
implement an IFQ program for the
charter halibut fishery. The preamble to
the proposed rule for this action (74 FR
18178, April 21, 2009) and the notice for
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the December 9, 2005, control date for
the guided sport fishery for halibut (71
FR 6442, February 8, 2006) describe the
development of a charter vessel IFQ
program and the reasons why it was not
implemented at that time.
Comment 125: I support the onehalibut daily bag limit to protect the
halibut resource. It is very frustrating to
watch the Area 2C halibut charter
industry consistently over fish its GHL
every year while the commercial setline
fishermen must quit fishing when their
quota is met. The same requirement
should be placed on the charter sector.
Please keep the one-halibut daily bag
limit in place.
Response: The one-halibut daily bag
limit that was implemented in 2009 on
charter vessel anglers in Area 2C (74 FR
21194, May 6, 2009) is designed to keep
the overall harvest of charter vessel
anglers in Area 2C close to the GHL for
that area. That action is different from
this rule.
Comment 126: I generally support the
necessity to conserve the halibut
fishery. However, my concern is to the
impact on the sports fisherman and the
guided sport charter vessel as a small
entity in a vast industry. The one-fish
bag limit in Area 2C will virtually end
charter fishing for halibut and reduce
the guided angler harvest to the lowest
level in the last 10 years.
Please reconsider not only the stated
intent to ‘‘* * * limit the harvest of
Pacific halibut by guided sport charter
vessel anglers * * *’’ but reassess this
action’s impact to the non-resident
fisherman and the industry that
provides this service. There are other
means to accomplish conservation
objectives without targeting or
destabilizing one halibut fishery in favor
of another.
Response: This comment appears to
be a reaction to the final rule published
on May 6, 2009 (74 FR 21194). That
action reduced the daily bag limit of
halibut for charter vessel anglers from
two halibut per day to one halibut per
day. This rule to establish a limited
access system for the charter halibut
fishery in Areas 2C and 3A does not
affect the earlier one-halibut bag limit
rule.
Comment 127: I believe the goal of the
Council is to put the charter operations
out of business. The Council is
considering an option of having the
tourist buy the second fish from the
commercial side. If IFQs are being sold
at $25 per pound, my guests will have
to pay $2,500 for a 100-pound fish.
Response: The objective of this rule is
not to put charter vessel operations out
of business. NMFS has estimated that
about 527 charter vessel businesses (231
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in Area 2C and 296 in Area 3A) will
qualify for initial allocation of charter
halibut permits under this rule. Those
businesses that do not qualify for
initially allocated permits may acquire
them by transfer. The option the
comment refers to is a component of the
Catch Sharing Plan adopted by the
Council in October 2008. A proposed
rule that would implement the Catch
Sharing Plan, if it is approved, will be
published by NMFS for public
comment.
Comment 128: One comment
suggested that if NMFS intends to limit
recreational removals of halibut, it
should establish a fair and equitable
baseline allocation for the recreational
sector, establish a near real-time
recreational harvest accounting method,
and implement harvest control
measures for recreational harvest effort
to ensure that the recreational sector
does not exceed its allocation.
Response: The intended effect of this
rule is to curtail growth of fishing
capacity in the guided sport fishery for
halibut, not to directly limit recreational
removals of halibut. The suggestions
provided in the comment are beyond
the scope of this action. These
suggestions could be made to the
Council, IPHC, or ADF&G with respect
to timely estimation of recreational
harvests.
Comment 129: Supply and demand
will limit the charter fleet. If a charter
service cannot compete, it will and
should be forced out by market forces.
When the economy, tourism, weather,
or other factors impact businesses,
operations will close; consequently,
there will be fewer people fishing and
fewer fish caught. Those who work hard
will likely survive and those who do not
will fail; it does not matter how long
they have been chartering. This is a
service industry and businesses will
generally succeed or fail based on their
service.
Response: NMFS agrees that charter
vessel operations provide a service and
that they operate in a competitive
market. However, NMFS disagrees that
supply and demand alone will
sufficiently control harvesting capacity
in the charter halibut fleet to the desired
levels. Experience in Area 2C
demonstrates that under profitable price
and cost considerations, excessive
capacity will occur in the fishery. This
is due primarily to the fact that access
to the fish is free in an open access
fishery.
Comment 130: The Analysis stated
that for enforcement the number of
harvested halibut on the vessel should
not exceed the client endorsement
through the ‘‘gifting’’ of skipper and
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589
crew fish. For this reason, retention of
halibut by skipper and crew needs to be
eliminated. The final rule should
include a permanent prohibition against
retention of halibut by skipper and crew
for 3A and 2C (if necessary) as part of
this action. A prohibition on skipper
and crew retaining halibut was enacted
in 2009 in the one-fish bag limit for
Area 2C.
Response: NMFS will enforce the
daily bag limit for sport-caught halibut
based on the area being fished and
whether the anglers are charter vessel
anglers or non-guided anglers. For
example, under current regulations, the
daily bag limit for charter vessel anglers
in Area 2C is one halibut per day (50
CFR 300.65(d)(2)), while non-guided
anglers in that area and all anglers in
Area 3A may catch and retain two
halibut per day (section 28(1)(b) of the
annual management measures
published March 19, 2009, at 74 FR
11681). Under this rule and current bag
limit regulations, a charter vessel with
three charter vessel anglers on board in
Area 2C will be limited to three halibut
per day, regardless of whether the
charter halibut permit on board the
vessel was endorsed for a larger number
of anglers.
Currently, the guide and crew on a
charter vessel in Area 2C are prohibited
from catching and retaining halibut
during a charter fishing trip, and the
number of lines used to fish for halibut
are limited to the number of charter
vessel anglers on board or six,
whichever is less (50 CFR 300.65(d)(2)).
In 2009, and in several previous years,
ADF&G also prohibited skipper and
crew retention of all fish and limited the
number of rods to the number of
(paying) charter vessel anglers onboard
in Area 3A (Emergency Order No.
2–R–3–03–09). The Council could
recommend to the Secretary that the
same guide/crew and line limit applied
currently in Area 2C also apply in Area
3A. That change is outside the scope of
this action.
Comment 131: The final rule should
limit the number of rods a charter vessel
may fish to the number of angler
endorsements on the charter halibut
permit. This should be added to the rule
so that a charter vessel could not fish
extra rods if the number of passengers
on board exceeds the number of angler
endorsements. It would also prevent
fishing by skipper and crew fishing
under the claim that they are fishing for
another species.
Response: Current NMFS regulations
(at 50 CFR 300.65(d)(2)(iii)) already
limit the number of lines used to fish for
halibut in Area 2C to six or the number
of charter vessel anglers on board,
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whichever is less. This action limits the
number of charter vessel anglers
catching and retaining halibut to the
angler endorsement specified on the
charter halibut permit.
Comment 132: Localized moratoria
within local area management plan
(LAMP) areas could also be
implemented to achieve sustainable
halibut harvests without having to limit
halibut charter operators.
Response: One LAMP currently exists
for Sitka Sound and no others are being
considered. Although alternative means
may be found that would achieve the
objectives of this rule, the Council and
NMFS found that this limited access
system best fit the Council’s objectives
and is consistent with the requirements
of the Halibut Act.
Comment 133: A 100-pound fish limit
for the charter fisherman will do little
to protect the spawning population of
halibut. It would be a waste of time to
put a limit on the sport fish size and not
the size of fish caught in the commercial
fishery.
Response: No weight limit exists on
fish caught by charter vessel anglers in
either Area 2C or 3A. This rule does not
establish a weight limit on halibut
harvested by charter vessel anglers in
these areas. The comment is irrelevant
to this rule.
Comment 134: Several comments
suggested that NMFS should implement
harvest restrictions instead of the
limited access system. Suggestions
included (1) a one halibut per day rule
with an annual limit of four to six fish
for charter anglers, (2) regulations
similar to Oregon’s one fish per day,
minimum size 32 inches, and the first
fish you catch over 32 inches is your
limit for the day, (3) limit the size of
halibut to a number of inches or to a
weight under 100 pounds, and (4) a slot
limit.
Response: This rule does not impose
additional catch limit restrictions
because the objective of this action is to
curtail growth in the capacity of the
charter halibut fishery, not to control
charter angler harvest. None of the
suggested alternatives would achieve
the objective of this action and are
outside the scope of this rule.
Comment 135: A moratorium by itself
will not stabilize the charter vessel
industry. The charter industry does not
need in-season closures or a one-fish
limit. A larger GHL with a moratorium
would work, however, as it would
guarantee an amount of fish that could
be caught. That would help create a
stable business plan.
As I understand the moratorium, each
charter boat will be given a permit
which is good for the highest number of
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trips that were taken in 2004 or 2005,
multiplied by the most people that were
taken fishing on that boat. Issuing
permits for trips would not work
because you cannot always fill the seats.
It would be preferable if the permits
were issued with a yearly amount of fish
that can be retained. Each permit should
be issued with the number of fish
stamped on it. There would be no need
to renew the permits yearly; they could
be permanent, with a transferable
option. The permit should not be
limited to the type of boat that it is
issued to. If a person runs a six pack
boat and wanted to run a larger boat and
take more fishermen per trip, then it
should be allowed to do that, as long as
it stays within the overall fish issued for
that permit.
There would be concerns about
tracking the amount of fish caught per
boat to make sure no one is cheating.
The best thing may be to eliminate
logbooks and issue punch cards. They
could be generic with a line on them for
the captain to write the date that fish
were caught, and once they are
punched, they become void. The punch
cards could be thrown out the following
day. When you are out of punch cards,
you are done for the year.
Response: Under this rule, charter
halibut permits will be issued to
qualifying businesses, not to individual
vessels. Each charter halibut permit will
have an angler endorsement number
specifying the largest number of charter
vessel anglers that may be catching and
retaining halibut on a vessel carrying
the permit. The angler endorsement
number on the permit will be based on
the highest number of charter vessel
anglers that the applicant reported on
any logbook fishing trip in 2004 or 2005,
subject to a minimum endorsement of
four. The number of halibut that may be
retained by charter vessel anglers is
limited by the daily bag limits in
regulation for the area in which the
vessel is operating, not by the charter
halibut permit. In-season closures of the
charter halibut fishery were not
proposed and are not implemented by
this rule. A charter halibut permit will
not limit the permit holder to any
number of fishing trips, and does not
limit the type of charter vessel on which
the permit is used. A one-halibut daily
bag limit for charter vessel anglers in
Area 2C was effective on June 5, 2009
(74 FR 21194, May 6, 2009), and is not
affected by this action.
Comment 136: Two comments raised
safety concerns. One stated that guides
have to meet high standards, have local
experience and knowledge, and have a
good safety record. Unguided (either
outfitted or completely independent
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sport fishing) sport fishing is less safe.
Therefore this action may lead to
increased levels of injury and possibly
death among recreational anglers.
Magnuson-Stevens Act National
Standard 10, which requires that
conservation and management measures
promote the safety of human life at sea
to the extent practicable, should not be
ignored.
The other comment recalled the safety
comment that NMFS responded to in
the final rule establishing the Area 2C
one-halibut daily bag limit (Comment
124 on page 21222 published May 6,
2009 at 74 FR 21194). In its response,
NMFS claimed to be unable to confirm
when the last charter fatality in Alaskan
saltwater occurred. NMFS should
contact USCG Alaska and ask them
specifically for this information. The
information is available and it is the
responsibility of NMFS to secure it from
the USCG, especially when the issue in
question is safety.
Response: This rule will not create
new safety risks. The number of charter
halibut permits that NMFS expects to
issue under this rule, and the numbers
of associated endorsements, create
significant opportunities for operators to
meet existing levels of angler demand
for guided halibut fishing, as well as
expanded demand. Although National
Standard 10 does not apply to this rule
because it is authorized under the
Halibut Act, not the Magnuson-Stevens
Act, promoting the safety of human life
at sea is a good standard for all fishery
regulations. This rule adheres to this
standard by not creating new safety
risks and by stabilizing the charter
halibut fishery. In its analysis of the
potential effects of this rule the Council
and NMFS found no safety concern.
Data Quality
Comment 137: Logbooks are not a
good source of information for issuing
charter halibut permits. The government
has no way to verify the accuracy of a
logbook. The IRS should do an
extensive audit to see if the money
reported to the IRS matches what was
put in the logbook. If the business is
legitimate, then they could receive a
valuable limited entry permit.
Response: Charter halibut permits
allocated under this rule will be based
solely on logbook fishing trips; not the
amount of halibut reported as harvested
in the logbooks. The Council chose to
rely on the fishing trip data in ADF&G
Saltwater Charter Logbooks as the best
available source of information on
participation in the charter fishery.
NMFS expects that the logbook trip
information recorded is reasonably
accurate for purposes of this action.
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Comment 138: A non-resident but
frequent visitor to Southeast Alaska
expressed concern that more halibut
regulations would be necessary. The
commenter encouraged implementation
of a solid regulatory foundation based
on good science that would provide
healthy halibut populations for future
generations. The commenter wanted to
see only regulations that are necessary
to ensure a healthy population for the
years to come and to rest on a solid
foundation of good science.
Response: NMFS agrees that fishery
management policy and the regulations
implementing that policy should be
based on the best scientific information
available. This rule is not designed to
directly control the biological condition
of the halibut population. To the extent
that this rule will stabilize the fishing
capacity of the charter halibut fishery, it
may indirectly enhance the
effectiveness of other regulations that
are designed to control halibut harvests
and thereby support conservation of the
stock.
Comment 139: Halibut is a finite
resource and needs to be managed very
carefully using the most accurate data
possible. I strongly support a halibut
charter limited entry program for the
guided charter sector.
Response: NMFS agrees that the best
scientific information available should
be used in fishery management and
acknowledges support for this rule.
Comment 140: The reason stated for
the moratorium is to curtail growth of a
particular industry. However, there is
insufficient information to prove that by
passing this moratorium the desired
outcome will be achieved. We can only
assume the desired outcome (based on
this statement) is fewer charter fleet
vessels. But other statements by NMFS
indicate that the permits available to the
charter industry will allow for
continued growth. Further, any charter
vessels removed from the fleet will be
replaced by unguided vessels. This
proposed rule does not support the
desired outcome. It only succeeds in
putting charter operations out of
business, and placing more financial
burden on the economy of all Southeast
Alaska communities and on individual
families that rely on charter industry
businesses and jobs. It also places
unguided, unsafe, non-certified drivers
on boats in the same area. Any client
visiting one of the many charter resorts
can use his or her sport fishing license
to fish for halibut, but instead of hiring
a safe, trained, USCG-licensed captain
to operate the boat, he or she can rent
the same boat from the same charter
resorts and go to the same spot and fish
for the same fish. How does allowing
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this behavior address the objectives of
this action?
Response: The intended effect of this
rule is to curtail growth of fishing
capacity in the guided sport fishery for
halibut. This rule does not directly
control the harvest of halibut nor does
it reduce this harvest. Under this rule,
NMFS will issue charter halibut permits
to sport fishing businesses that were
authorized by ADF&G to conduct
logbook fishing trips. The number of
logbook fishing trips that will be
conducted by these qualifying
businesses under this rule will be
roughly the same as those taken in
recent years immediately prior to this
rule. These businesses will be able to
grow to meet potentially increased
charter vessel angler demand in the
future by increasing their average
number of trips per season, increasing
the average number of anglers carried on
each trip, and other operational
efficiencies. Charter halibut fishing
opportunity will be enhanced under this
rule through the community charter
halibut permits. Hence, NMFS does not
expect a shortage of charter halibut
fishing opportunities. Sport fishermen
may freely choose whether to use a
charter vessel or a unguided vessel to
fish for halibut. See also responses to
Comments 21 and 136.
Comment 141: The data used to
establish permit criteria is based on
secondhand data with no level of
accuracy. The catch record system in
place does not have a recorded weight
for the species being reviewed. If the
intent is to better manage the halibut
fishery, reporting a certified scale
weight in the round should be required
in the bottomfish logbooks. This would
assist in having the best scientific
information for making management
decisions.
Response: NMFS agrees that fishery
management should be based on the
best scientific information available.
However, the intended effect of this rule
is to curtail growth of fishing capacity
in the guided sport fishery for halibut.
This rule does not directly control the
harvest of halibut. Therefore, highly
precise and accurate estimates of the
weight of each halibut harvested by
charter vessel anglers are not necessary.
Charter halibut permits will be allocated
under this rule based on the
participation of businesses in the
charter halibut fishery using logbook
fishing trips as evidence of
participation. The numbers of halibut
harvested in the past or their weight
will have no bearing on the initial
distribution of charter halibut permits.
The ADF&G saltwater charter logbook
data for the qualifying period (2004 and
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591
2005) and the recent participation
period (2008) are the best available
information for purposes of this rule.
Comment 142: The proposed rule
discriminates against any charter
operation that began operating between
2006 and 2009. The RIR does not
contain any numbers on charters from
2006 to 2009. The data in the Secretarial
Review Draft EA/RIR/IRFA only
demonstrate activity from the charter
fleets from 1999 to 2005.
Response: The Council announced a
control date of December 9, 2005. NMFS
published that control date in the
Federal Register on February 8, 2006
(71 FR 6442). The purpose of this
control date announcement was to
provide notice to persons entering the
charter halibut fishery after the control
date that they would not be assured of
future access to the charter halibut
fishery if a limited access system were
developed and implemented. Because
the Council decided to develop this
limited access system based on the
control date, it did not give
participation credit to charter
businesses that entered after that date as
eligible. Moreover, when the Council
finally decided to recommend its
charter halibut moratorium to the
Secretary on March 31, 2007, the most
recent information on participation in
the charter halibut fishery was from
2005. Saltwater charter logbook data for
2006 through the present was not
available at that time. Since the
Secretarial Review Draft EA/RIR/IRFA
was made available for public comment,
NMFS has supplemented the Analysis
using ADF&G logbook data from 2008.
This updated Analysis is contained
within the final EA/RIR/FRFA (see
ADDRESSES) and that information was
considered when NMFS approved this
action and published this rule.
Comment 143: There exists neither
proper analysis identifying the number
of vessels excluded nor a remedy for
those that have made substantial
investments.
Response: NMFS recently
supplemented the Analysis using
ADF&G logbook data from 2008. This
updated Analysis is contained within
the final EA/RIR/FRFA (see ADDRESSES).
This rule does not compensate charter
businesses that do not qualify for any
charter halibut permits. One reason
compensation is not necessary is that
the control date announcement (71 FR
6442, February 8, 2006) provided notice
to businesses about the risk of entering
the charter halibut fishery after the
control date. Another reason
compensation is not provided is that
businesses have value even without
charter permits. Charter vessel assets
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may be used in fishing for species other
than halibut or for other endeavors.
Also, a market for transferable charter
halibut permits is expected to emerge
under this rule that will allow
acquisition of permit(s).
Comment 144: The proposed rule is
based on inadequate or projected data.
IPHC clearly acknowledges the lack of
recent accurate data to determine the
harvest levels for sport fishing. It has
recently posted comments from its 2009
annual meeting stating that it will work
with sport representatives to review
Alaska sport regulations and determine
if changes are necessary and will work
with ADF&G and NMFS staff to provide
clearer documentation of the Alaska
sport regulations. They noted support
for clearer data collection for accuracy
and timely accounting and have
recommended lowering the harvest rate
in Area 2, which will permit rebuilding
of the exploitable biomass in this area.
Response: This rule relies on ADF&G
saltwater charter logbook data to
determine participation in the charter
halibut fishery during the qualifying
period (2004 and 2005) and recent
participation period (2008), which was
determined by the Council and NMFS to
be the best available information on
which to base the qualifying criteria.
This participation is determined by
numbers of logbook fishing trips; not by
numbers or weight of halibut harvested.
The IPHC projected sport harvest
estimates are not pertinent to this rule.
However, NMFS supports improved
accuracy and timeliness of recreational
harvest estimates of halibut and all
other species.
Comment 145: Several comments
contend that the Council’s previous
attempts at developing limited access
for the charter halibut fishery failed due
to poor data. The Secretarial Review
Draft EA/RIR/IRFA indicates that other
Council attempts at curtailing charter
halibut vessels were rejected primarily
due to the lack of adequate data for
individual charter businesses. The
proposed rule also provides a lengthy
history of the Council’s consideration of
limited entry for charter vessels
indicating that its 1997 control date and
2001 charter IFQ program failed because
of poor data. Those data have not
changed in respect to this proposal; the
Council has used the same inaccurate
data throughout this process. The data
used to create the GHL is between 5 and
15 years old. It is impossible to address
the present participation in the fishery
and to determine the dependence on
and the economics of the fishery using
old data.
Response: The history of the Council’s
work to develop a limited access system
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for the charter halibut fishery is
described in the proposed rule (74 FR
18178, April 21, 2009) beginning on
page 18181. The Council’s earlier
attempts, especially that to develop an
IFQ program for the charter halibut
fishery relied heavily on charter logbook
data to determine the historical harvest
of halibut by individual operators. In
contrast, this rule is based on logbook
fishing trips—not pounds of halibut
harvested—as a measure of participation
in the charter halibut fishery.
The evidence of a logbook fishing trip
is not so rigorous that highly accurate
reporting is essential. For example,
during the qualifying period, an ADF&G
saltwater charter logbook that shows the
statistical areas where bottomfish
fishing occurred, or boat hours that the
vessel engaged in bottomfish fishing, or
the number of rods used from the vessel
in bottomfish fishing, will serve as
evidence of a bottomfish logbook fishing
trip. Using the ADF&G saltwater charter
logbook as the basis for this information
is the best available information for
purposes of this rule and is consistent
with the historical and present
participation requirements of the
Halibut Act.
Comment 146: Several comments
concerned the fact that halibut, as a
species, were not required to be
reported by ADF&G in logbooks during
2004 and 2005. Some confusion resulted
about whether and how to report halibut
harvested on charter vessel trips.
ADF&G stopped having halibut harvest
recorded in the logbooks after the 2001
season; therefore, halibut harvest was
not recorded during 2004 and 2005.
Many charter operators recorded
‘‘bottomfishing’’ information when
conducting halibut charters and others
recorded the ADF&G area fished, the
number of rods used, and the number of
hours fished for my halibut charter trips
after 2001. There was no ADF&G record
of harvest. Many charter operators did
not record any halibut fishing activity
because there was no place in the
logbook to record it. When the ADF&G
was asked how to handle halibut charter
trips, some charter operators were told
by ADF&G personnel that they did not
have to record halibut charter trips.
Consequently, for those operators who
conducted halibut charters during the
qualifying time but did not record them
in the ADF&G logbooks, NMFS should
consider alternative qualifying
documentation such as personal log
books, fishing license records, and
affidavits from clients.
Response: As discussed in the
preamble to the proposed rule (74 FR
18178, April 21, 2009) on page 18185,
the basic unit of participation for
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purposes of this rule is a logbook fishing
trip. During the qualifying period of
2004 and 2005, participation will be
measured by bottomfish logbook fishing
trips because ADF&G did not require
halibut kept or released to be reported
as a distinct species. Halibut were
considered to be bottomfish during that
period. ADF&G attached instructions to
each logbook that stated that bottomfish
fishing effort included effort targeting
halibut. Reporting of any one of three
types of bottomfish effort data would
qualify a trip as a bottomfish logbook
trip for purposes of this rule.
In 2006, ADF&G changed its required
logbook report to specify halibut data
for each logbook fishing trip. If a
business owner did not comply with
specified reporting requirements, then
the fishing trip will not be counted as
either a bottomfish logbook fishing trip
during the qualifying period or a halibut
logbook fishing trip during the recent
participation period for purposes of this
rule. Regardless of what any particular
ADF&G personnel may say to an
operator, each operator or business is
responsible for complying with
applicable Federal halibut fishery
regulations and ADF&G reporting
requirements.
Comment 147: NMFS should consider
implementing or being prepared to
implement its own logbook program for
halibut to gather the information needed
to manage the fishery and for
development of any long term
management programs. The Alaska State
Legislature had legislation in front of it
to repeal the sunset date in the current
guide licensing program, which is the
authorizing legislation for the logbook
program, and at the last minute what
passed extended the sunset date for one
year to January 1, 2010. Another piece
of legislation was introduced that again
will extend the sunset date for only one
year; therefore we are concerned about
the advisability of relying on the State
logbook program.
Response: The NMFS, IPHC, and
Council have relied, and continue to
rely, on ADF&G to collect recreational
fishing information regarding halibut.
This information is essential to the
management policies and regulations
developed respectively by the IPHC and
Council. The Paperwork Reduction Act
of 1995 (Pub. L. 104–13) requires
Federal agencies to minimize the
paperwork burden on individuals and
small businesses, to minimize the cost
to the Federal government of
information collection, and to
strengthen the partnership between
Federal and State governments by
minimizing the burden and maximizing
the utility of data collection. ADF&G has
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a sport fishing data collection program,
staff, and infrastructure to collect
recreational fishing data. The Alaska
Region, NMFS, by comparison does not
have a sport fisheries division and data
collection system. Establishing a system
to monitor the sport harvest of one
species would be costly.
Comment 148: NMFS lacks sufficient
information to establish a moratorium
because there was no accurate logbook
data on charter halibut harvests by
charter vessels in 2004 and 2005.
Response: The limited access system
established by this rule does not rely on
an accurate accounting of halibut
harvests by charter vessel anglers during
2004 and 2005. During those years,
ADF&G did not require charter vessel
business to report the number of halibut
that were kept or released. Instead,
businesses were required to report
bottomfish effort for each logbook
fishing trip. ADF&G attached
instructions to each logbook stating that
bottomfish fishing effort included effort
targeting halibut. Hence, the bottomfish
logbook fishing trip data are sufficiently
accurate as evidence of participation in
the fishery for purposes of this rule. See
also responses to Comments 145 and
146.
Comment 149: A couple of comments
expressed concern about the sport
halibut harvest estimates based on the
mail survey conducted by ADF&G. One
comment noted the time lag in the
survey that delayed estimates of
harvests in one year until close to the
end of the following year. The other
comment noted that data published on
the Council’s Web site did not match
ADF&G records, and that the mail
survey conducted by ADF&G in 2007
had less than 50 percent of the survey
forms returned. When determining any
action on a proposed rule in regard to
the harvest levels, all data must be
accurate.
Response: The annual estimate of
recreational halibut harvests is based on
the statewide harvest survey, a mail
survey conducted by ADF&G to assess
the harvest of all species of fish taken
from freshwater and saltwater in sport
fishing. It provides a reasonably
accurate estimate of these sport harvests
and is especially useful for revealing
long-term trends. This rule, however,
does not rely on the statewide harvest
survey data. The limited access system
established by this rule is based on
participation in the charter halibut
fisheries during certain years as
indicated by logbook fishing trips. The
statewide harvest survey does not rely
on a high percent of survey returns to
produce reasonably accurate and precise
estimates of sport fishing harvests.
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Moreover, these surveys are not being
used to establish the limited access
system under this rule. Because the
intended effect of this rule is to curtail
growth of fishing capacity in the guided
sport fishery for halibut in Areas 2C and
3A, the exact number of halibut
harvested in any one area in any one
year is of less concern than the growth
trend in harvests and fishing capacity
over time.
Comment 150: The Council and
NMFS have completely failed to gather
or evaluate data relative to the charter
sector. The Council states that the need
for implementing a moratorium is to
manage the fisheries within the GHL
policy, which the commenter asserts is
unfair and outdated. Despite the
Council failing to present economic data
supporting its supposition, NOAA Web
site data clearly show increases in quota
share equity and ex-vessel value
between 300 percent and 400 percent
statewide and within areas. This
massive increase in profitability does
not lend credence to the need for wiping
out the charter sector.
Response: NMFS estimates that a total
of 527 charter businesses will qualify for
an initial allocation of either a
transferable or non-transferable charter
halibut permit. The Analysis (see
ADDRESSES) indicates this number of
businesses is sufficient to accommodate
market demand for guided sport fishing
for halibut. This rule is designed to
curtail growth of fishing capacity in the
charter halibut fishery as intended by
the Council and based on its problem
statement. The GHL policy
implemented in 2003 (68 FR 47256,
August 8, 2003) was designed to
establish an amount of halibut harvest
by the charter halibut sector that will be
monitored annually. The purpose of the
GHL is different from this rule.
Other Issues
Comment 151: The public received
insufficient information about the
moratorium and its impact on recently
started charter halibut businesses.
Uncertainty over whether or when a
fishery is going to be managed under a
limited access system adversely affects
business activity. Investment-backed
expectations need to be protected.
Council control dates and final action
twice before (April 1997 and April
2001) but neither of these rules were
signed into law. This is probably why
charter businesses started in later years.
Response: A control date notice is not
by itself a Federal rule. The control date
notice published in advance of this
action on February 8, 2006 (71 FR 6442),
stated that it did not commit the
Council or the Secretary to any
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593
particular management regime or
criteria for entry to the charter halibut
fishery. All previous control date
notices also have language to this effect.
Similarly, the public is not required by
a control date notice to invest or not
invest in a fishing business that may be
affected by the development and
implementation of a limited access rule
in the future. That decision is left to the
business owner. The primary purpose of
a control date notice is to give notice to
persons contemplating an investment in
a business that may be affected by a
future limited access system that such a
system may be developed and
implemented. Affected persons can then
incorporate the risk of potentially not
receiving an initial allocation of
permit(s) into their investment decision
making. Risk-averse persons may decide
to delay their investment pending
potential regulatory changes; risk-taking
persons may not let this information
affect their investment decisions. In
either case, the control date notice
provides the public with information
that a limited access system may be
developed for a fishery and, if so, that
entering the fishery after the control
date may not lead to an initial allocation
of a limited access permit.
Comment 152: Use of the government
Web site to submit comments is too
complicated. It was difficult to find and
I required 30 minutes of assistance from
a very patient NOAA employee on the
phone to navigate to this URL to provide
comments.
Response: The Web site,
‘‘Regulations.gov’’ is a Federal
government Web site serving many
agencies. Currently the Web site is
operating successfully, and NMFS has
received thousands of letters of
comment through it. A person
experiencing problems with
Regulations.gov should contact
Regulations.gov directly. In addition,
help can be provided by contacting the
individual listed under the preamble
heading FOR FURTHER INFORMATION
CONTACT and comments may be
submitted by mail, fax, or hand delivery
if the electronic alternative proves too
difficult.
Comment 153: The current
Administration fully supports
recreational fishing and its benefits to
the Nation, and calls for efforts to
allocate a fair percentage of managed
coastal fisheries to sport fishing.
Response: NMFS acknowledges that
sport fishing in general and guided sport
fishing in particular generates
substantial economic benefits for the
Nation. This action addresses the
problem identified by the Council in its
problem statement and has been
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determined to be fair and equitable as
required by the Halibut Act (see
discussion above under the heading
‘‘Consistency with Halibut Act’’).
Comment 154: This action violates
Executive Order 12962. The primary
intent of the E.O. is ‘‘to provide for
increased recreational fishing
opportunities nationwide.’’ Reducing
and eliminating access to a public
resource is not consistent with the
language contained in E.O. 12962.
Response: This final rule is consistent
with E.O. 12962. This action limits the
number of charter vessels that may carry
anglers catching and retaining halibut in
Areas 2C and 3A. This action does not
reduce or eliminate charter vessel angler
access to the Pacific halibut resource.
Under this rule, an estimated 502
charter halibut permits will be issued in
Area 2C and 418 permits will be issued
in Area 3A. Each permit will have an
angler endorsement that specifies the
maximum number of charter vessel
anglers that may be harvesting halibut
on the vessel. Multiplying the average
angler endorsement level in each area
by the number of permits expected in
the area yields an estimate of the total
number of charter vessel anglers that
may be served on any day. For Area 2C
this estimate is 3,028 anglers and for 3A
it is 3,577 anglers. In other words, this
rule will allow a total of 6,605 charter
vessel anglers to have access to the
halibut resource on any day. To the
extent that some charter vessel
operations, particularly in Area 2C, offer
half-day trips, this estimate is
conservative. In addition, this estimate
of charter vessel angler opportunity
does not include the potential
additional community charter halibut
permits that may be available to CQEs.
Another way of judging whether
charter vessel angler opportunity for
access to the resource is constrained
under this rule is to compare the
average number of logbook fishing trips
per vessel per season in 2008 with the
average number of trips per vessel per
season that will be needed under this
rule to serve the same number of charter
vessel anglers that fished in 2008.
Charter halibut vessels in Area 2C
averaged 36 trips per season in 2008.
Based on the total number of permits
expected to be initially issued under
this rule, charter vessels will need to
make 52 trips in Area 2C to serve the
same number of charter vessel anglers
that fished in 2008. In Area 3A, charter
vessels took an average of 38 trips
during the season in 2008. Under this
rule, the same number of anglers could
be served by 56 trips. Based on a
practical halibut fishing season of 100
days, opportunity exists for permitted
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charter vessels under this rule to
increase their average number of trips
per season in response to increased
angler demand. Hence, this action is not
expected to reduce or eliminate charter
vessel angler access to the halibut
resource in Alaska, as suggested by the
comment.
Comment 155: Several comments
expressed general support for the
limited access system for the charter
halibut fishery and urged
implementation of it as soon as possible.
One comment asserted that the
administrative record proves a long
history of trying to address the
unchecked growth of the halibut charter
industry and that the charter
community has unfortunately resisted
these efforts as proven by their litigation
efforts to challenge regulatory limits.
Another comment expressed the view
that guided sport charter operations are
commercial endeavors with substantial
and growing impacts on halibut
populations that Federal managers have
for too long failed to control. Continued
growth of the charter fleet is especially
damaging because it occurs without
effective means to accurately account
for the catch and without an effective
enforcement mechanism to hold the
fleet within its GHL. Limited access may
improve the ability of the charter sector
to maintain a two-fish bag limit without
excessive pressure on the resource and
other user groups. Another comment
stated that the rapid growth of the
charter boat industry and its catch of
halibut in these areas is out of control
and not sustainable and that NMFS
should implement this moratorium in
Areas 2C and 3A because the halibut
stocks, particularly in Area 2C, are in
desperate need of rebuilding. This view
was expressed also by a recreational
angler who wrote that this is an
important step toward controlling the
continued over utilization of the near
shore resource and that this step to limit
the number of halibut charters is long
overdue. The angler strongly urged the
Secretary of Commerce to approve the
charter halibut moratorium and to
implement it as soon as possible.
Other comments from participants in
the charter vessel and commercial
setline sectors indicated that the
program will be a first step in
developing a long-term solution to
ongoing conservation concerns and
allocation disputes between the two
sectors. The comments indicated that
the program will stabilize the fishery
and provide a foundation for additional
market-based management programs
such as individual quotas. The charter
halibut permit program fairly balances
past and current participation, limits
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new entry to businesses that buy
permits from persons exiting in the
fishery, and provides appropriate
opportunities for small coastal
communities to enter the charter vessel
fishery through community charter
halibut permits. The program also
establishes appropriate standards for
transferable versus non-transferable
permits. The commenters supported the
rule because it will in their view
ultimately curtail fishing capacity
growth in the charter vessel sector.
Response: NMFS acknowledges the
support for this rule. Stakeholders from
all halibut user groups have provided
useful information during the Council
development and rulemaking process
for this action. Although litigation can
slow this process, plaintiffs have the
right to challenge government rules.
This fosters the development of robust
rulemaking that ultimately benefits all
participants in the fishery management
process.
With regard to accounting for sport
harvests of halibut, the best available
information on the recreational harvest
of halibut is derived from ADF&G sport
fishing data sources including the
Statewide Harvest Survey of sport
fishermen, the Saltwater Sport Fishing
Charter Logbook, and creel census
surveys. NMFS finds that the
recreational harvest estimates provided
by ADF&G from these data sources are
reasonably accurate.
This rule is not designed to directly
limit the amount of halibut harvested in
the charter halibut fishery, nor is it
designed to limit the sport harvest of
halibut in localized areas. Scientific
information does not exist that would
discern localized depletion at a scale
smaller than an IPHC area or attribute it
to a particular gear group within Area
2C or Area 3A. The purpose of this
action is to curtail growth of fishing
capacity in the charter halibut fishery.
By stabilizing the number of vessels
participating in this fishery, other
regulations that restrict the harvest of
charter vessel anglers may have
improved effectiveness.
Comment 156: As a halibut charter
operator, I have been adversely affected
by the publicity and rumors of reduced
halibut harvests and draconian
measures such as a one-fish bag limit
that confuse recreational anglers about
their opportunities to access to the
halibut resource. The limited access
system may help alleviate some of this
uncertainty for business owners. The
length of time the Council and NMFS
have taken to get to this point has made
it difficult for those in the fishery to
make business decisions. Unfortunately,
there has been significant charter
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turnover and new businesses have
started or existing businesses have
expanded. Support for the program is
declining because many of these new
businesses say they will not qualify for
the program.
Response: NMFS acknowledges the
time that has transpired between the
Council action to adopt the charter
halibut moratorium and Secretarial
action to promulgate this rule. During
this time, NMFS also implemented a
one-halibut daily bag limit for charter
vessel anglers in Area 2C (74 FR 21194,
May 6, 2009). Limited access systems
including this one typically are
complicated to implement. NMFS
acknowledges also that the entry and
exit rate of charter vessel fishing
businesses may be high relative to other
businesses. Publication of the December
9, 2005, control date (71 FR 6442;
February 8, 2006), however, announced
that persons entering the charter halibut
fishery after the control date will not be
assured of future access to the fishery if
a limited access system is implemented.
With the intended stability that this rule
will bring to the charter halibut fishery,
confusion among recreational anglers
should dissipate.
Comment 157: Halibut charter fishery
participation rules should be simple,
easy to implement, and easy to enforce.
I like the idea of a limited number of
permits awarded to established fishing
guides on a seniority basis. Limiting the
number of boats fishing seems like a
straightforward way to control the
harvest of halibut taken by sports
charter.
Response: This action is intended to
curtail growth of fishing capacity in the
guided sport fishery for halibut. This
action, by itself, is not designed to limit
the number of charter vessel anglers
who may use sport fishing guide
services or their harvest of halibut.
However, by stabilizing the number of
vessels participating in this fishery, the
effectiveness of other regulations that
limit the harvest of halibut by charter
vessel anglers may be improved.
Changes From the Proposed Rule
This action was proposed and public
comments were solicited for 45 days
beginning on April 21, 2009 (74 FR
18178), and ending June 5, 2009. By the
end of the comment period 166 public
submissions were received. All
comments received by the comment
ending date are summarized and
responded to above under the heading
‘‘comments and responses.’’ The
following 24 changes are made from the
proposed rule in this final rule.
1. In § 300.61, a reference to
§ 300.65(d) is added to the definition of
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charter vessel angler. On June 5, 2009,
NMFS implemented regulations limiting
charter vessel anglers in Area 2C to
catching and retaining one halibut per
day (May 6, 2009, 73 FR 21194). These
regulations added a definition of charter
vessel angler to § 300.61 for purposes of
§ 300.65(d). The proposed rule to
implement a charter halibut permit
program (April 21, 2009, 74 FR 18178),
proposed a revision to the definition of
charter vessel angler that inadvertently
excluded the reference to § 300.65(d).
To maintain the current definition of
charter vessel angler in § 300.61, the
reference to § 300.65(d) is added in this
final rule.
2. In § 300.61, the definition of charter
vessel operator is not revised. The
current definition of charter vessel
operator is for purposes of § 300.65(d),
and the proposed rule would have
applied the definition for purposes of
§ 300.67 in addition to § 300.65(d). On
further examination of the proposed
rule text, NMFS determined that the
definition of charter vessel operator is
not needed for purposes of § 300.67.
This final rule, at §§ 300.66 and 300.67
(see changes 3, 6, and 9 from the
proposed rule), references the definition
of operator in § 300.2. Operator means,
with respect to any vessel, the master or
other individual aboard and in charge of
that vessel. This definition is consistent
with the intended definition of charter
vessel operator in the proposed rule.
This change is also consistent with the
suggestion in Comment 80 to clarify the
proposed definition of charter vessel
operator.
3. In § 300.61, the definition of crew
member is revised. This final rule
changes the reference to ‘‘charter vessel
operator’’ from the proposed rule to
‘‘operator of a vessel with one or more
charter vessel anglers on board’’. This
change reflects NMFS’s determination
to replace charter vessel operator with
operator, as defined in § 300.2, for
purposes of § 300.67. This
determination is described in change 2
from the proposed rule.
4. In § 300.61, a definition of ‘‘valid’’
is added to clarify its meaning with
respect to a charter halibut permit. For
purposes of §§ 300.66 and 300.67, a
valid charter halibut permit is the
permit currently in effect.
5. In § 300.66(p), text is added to
clarify that a person is prohibited from
submitting inaccurate information to an
authorized officer as defined in § 300.2.
The paragraph at § 300.66(p) currently
prohibits a person from failing to submit
or submitting inaccurate information on
any report, license, catch card,
application or statement required under
§ 300.65. The proposed rule for this
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595
action proposed to apply this
prohibition to §§ 300.65 and 300.67. The
change in § 300.66(p) from the proposed
to final rule clarifies that persons are
also prohibited from submitting
inaccurate information to an authorized
officer.
6. In § 300.66, the word ‘‘operate’’ is
changed to ‘‘be an operator of’’ in
paragraphs (r), (s), (t), (u), and (v). This
change from the proposed rule is made
to ensure consistency with the
definition of operator in § 300.2, as
described in change 2 from the
proposed rule.
7. In § 300.66(r) and § 300.67(a)(1), the
word ‘‘original’’ is added before ‘‘valid
charter halibut permit’’. This addition
clarifies that an operator of a vessel with
one or more charter vessel anglers
catching and retaining Pacific halibut on
board must have on board an original
valid charter halibut permit. A copy or
facsimile of a valid charter halibut
permit would not meet the requirements
of §§ 300.66 and 300.67.
8. In § 300.66, paragraph (w) is not
included in the final rule. On further
examination of the proposed rule text,
NMFS determined that regulations in
§ 300.67 regarding crew member
compliance would be unnecessarily
redundant. The prohibition on crew
members catching and retaining halibut
during a charter fishing trip at
§ 300.65(d)(ii) is not changed with this
final rule.
9. In § 300.67(a)(1), general permit
requirements, ‘‘charter vessel operator’’
is changed to ‘‘operator’’. This change is
made for consistency with the definition
of operator in § 300.2, as described in
change 2 from the proposed rule.
10. In § 300.67(a)(1), text is added at
the end of the paragraph to clarify that
a charter halibut permit holder must
insure that the operator of the permitted
vessel complies with all requirements of
§§ 300.65 and 300.67.
11. In § 300.67(a)(1) and (a)(3), text is
added to clarify that the angler
endorsement on a charter vessel
permit(s) must be equal to or greater
than the number of charter vessel
anglers who are catching and retaining
halibut. In paragraph (a)(1) the phrase
‘‘at least’’ is added to the last phrase of
the sentence to read, ‘‘* * * endorsed
for at least the number of charter vessel
anglers who are catching and retaining
Pacific halibut.’’ The language of the
proposed rule, without the ‘‘at least’’
phrase, implied that a charter halibut
permit endorsement had to be equal to
the number of charter vessel anglers on
board. This implied meaning was not
intended. For the same reason, in
paragraph (a)(3), the phrase ‘‘up to’’ is
substituted for the word ‘‘only’’ to
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clarify that the angler endorsement does
not require a charter vessel to have the
maximum number of anglers on board
to make the charter halibut permit valid.
Rather, the number of charter vessel
anglers on board a charter vessel must
not exceed the angler endorsement on
its permit. These clarifying words also
respond in part to a question raised in
Comment 86.
12. In § 300.67, paragraphs (b) and (d),
are revised to clarify the order of
determining whether an applicant for
one or more charter halibut permits is
eligible for any permits, and if so, how
many, and whether any will be
designated as transferable. The
organization of paragraph (b) may have
confused qualifying criteria for a
transferable permit with the
determination of how many permits
could qualify for a transferable
designation and whether the same
logbook fishing trips that qualified an
applicant for a transferable permit(s)
could be used also to qualify for a nontransferable permit(s). The revised
paragraphs also better reflect the
explanation in the preamble to the
proposed rule than did the proposed
rule regulatory text in paragraphs (b)
and (d). The revised paragraphs make
no substantive changes in the qualifying
criteria, but rather reorganize the
proposed rule text of these paragraphs
to make clear the following sequence.
First, to qualify for any type of permit—
non-transferable or transferable—an
applicant must apply within the
application period and meet the logbook
fishing trip requirements described in
paragraph (b)(1). Second, if the
applicant meets the standards described
in paragraph (b), then the number of
permits will be determined as described
in paragraph (c), which is unchanged
from the proposed rule. Finally, the
designation of one or more of the
permits as transferable will require
meeting the standards described in
paragraph (d).
13. In § 300.67(b)(2)(ii) (previously
paragraph (b)(5)(ii) in the proposed
rule), a minor technical edit is made to
remove the word ‘‘the’’ and to change
the word ‘‘owners’’ to its singular form
‘‘owner.’’ These minor changes correct
an editorial oversight in the proposed
rule and make the word ‘‘owner’’ in its
singular form consistent throughout the
regulatory text.
14. In § 300.67(b), a new paragraph (3)
is added to clarify that the term
‘‘ADF&G Business Owner License’’
includes an ‘‘ADF&G business owner
registration.’’ The latter term was used
by ADF&G in 2004; however, the former
term was used in 2005 and 2008. The
term ‘‘ADF&G Business Owner License’’
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17:13 Jan 04, 2010
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also includes ‘‘sport fish business owner
license,’’ ‘‘sport fish business license,’’
and ‘‘ADF&G business license.’’ The
proposed rule (at page 18185) discussed
the various terms used to describe this
authority from the State of Alaska,
ADF&G, granted as a registration or
license that authorized every charter
vessel fishing trip. Although discussed
in the proposed rule preamble, this
clarification did not appear in the
proposed rule text. This oversight was
pointed out in Comment 83.
15. In § 300.67(d)(1)(iii), a sentence is
added to clarify that the vessel used to
qualify for a transferable permit during
one of the qualifying years (2004 or
2005) does not have to be the same
vessel used to qualify during the recent
participation year (2008). The proposed
rule regulatory text at paragraph
(b)(2)(ii) and (iii) stated that qualifying
for a transferable permit would require
meeting the minimum of 15 logbook
fishing trips with the same vessel in
each year (qualifying and recent
participation year). This text could be
interpreted to mean that the logbook
trips had to have been made on the
same vessel in both years (See
Comments 54 through 57). This is not
the intended interpretation. What is
intended, as clarified in this change, is
that the minimum 15 bottomfish
logbook fishing trips had to have been
made from the same vessel in either
2004 or 2005. Also, the minimum 15
halibut logbook fishing trips during
2008 had to have been made from the
same vessel during that year, but the
vessel used in 2008 is not required to be
the same vessel that was used in either
2004 or 2005.
16. In § 300.67(d), paragraph (d)(2) is
added for consistency with the
qualifications for a transferable permit
described in the preceding paragraph
(d)(1) (previously paragraph (b)(2) in the
proposed rule), the preamble to the
proposed rule, and the Analysis. The
proposed rule language suggested that
the number of transferable permits
would be equal to the number of vessels
that met the minimum logbook trip
criterion of 15 during only the
applicant-selected year of the qualifying
period. NMFS found several
inconsistencies between this language
and other statements in the proposed
rule and in the Analysis. First, a permit
designation of transferable requires that
the 15-trip minimum criteria be met in
one year of the qualifying period and in
the recent participation year. Second,
the preamble to the proposed rule at
page 18183 states that the minimum
participation criteria in both years
would be taken into account in
designating a charter halibut permit as
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transferable. Finally, in the Analysis
(ADDRESSES) section 2.5.5 makes clear
that the Council intended that the
number of permits designated
transferable would be controlled by the
lesser of the number of vessels that met
the 15-trip minimum criteria in one year
of the qualifying period or the number
of vessels that met the 15-trip minimum
criteria in the recent participation year.
17. In § 300.67(f)(3), the information
element, ‘‘the statistical area(s) where
bottomfish fishing occurred,’’ is added
to correct an oversight of not including
this information element in the
proposed rule. The proposed rule
preamble, on page 18185, discussed the
various information elements that
would be required as evidence of a
halibut logbook fishing trip during the
recent participation period (2008). The
proposed rule proposed a definition of
‘‘halibut logbook fishing trip’’ to include
information about the number of halibut
kept or released or the number of boat
hours that the vessel engaged in
bottomfish fishing. The 2008 ADF&G
saltwater sport fishing charter trip
logbook required the recording of the
primary ADF&G statistical area fished
when boat hours fished for bottomfish
were recorded. Hence, reporting the
statistical area(s) where bottomfish
fishing occurred as optional evidence of
participation is consistent the 2008
logbook reporting procedures. Adding
statistical area(s) also is consistent with
the logbook fishing trip information
elements in § 300.67(f)(2) and with the
evidence of participation
recommendation by the Council (Issue 9
in the March 31, 2007, motion adopted
by the Council). The number of rods
used from the vessel in bottomfish
fishing is not included in § 300.67(f)(3)
because it was not required to be
reported in 2008 logbooks. Moreover,
any guided bottomfish fishing in 2008
should have been reported in terms of
boat hours and bottomfish statistical
area, which would be the requisite
evidence of participation.
18. In § 300.67(f)(7), the year ‘‘2008’’
is substituted for the proposed rule
place holder text that read, ‘‘[insert the
recent participation year].’’ As
explained in the proposed rule on page
18182 of the proposed rule, specifying
the year that would be the recent
participation period was held pending a
NMFS determination of the most recent
year for which ADF&G charter logbook
data would be available. In adopting its
charter halibut moratorium
recommendation to the Secretary, the
Council contemplated that the recent
participation period or ‘‘year prior to
implementation’’ would be either 2007
or 2008. Based on the availability of
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logbook data, NMFS has determined
that 2008 is the recent participation
period.
19. In § 300.67(g), language is added
at the beginning to clarify certain
limitations on the use of the
unavoidable circumstance exception.
These limitations were discussed in the
preamble to the proposed rule (74 FR
18178, April 21, 2009) on page 18188,
but were omitted from the regulatory
text by oversight. The new regulatory
text makes clear, first, that unavoidable
circumstance claims must be made on
appeal pursuant to § 300.67(h)(6).
Second, the new text clarifies that the
Office of Administrative Appeals will
not accept an unavoidable circumstance
claim unless the person making the
claim would be excluded from the
charter halibut fishery entirely unless
their unavoidable circumstance was
recognized. Finally, the new text
clarifies that unavoidable circumstance
claims to increase the number of
permits issued or to change a nontransferable permit into a transferable
permit will not be accepted.
20. In § 300.67(g)(3)(i), language is
added to clarify that proof of active
military service during the 2004 and
2005 qualifying period will qualify an
applicant for the unavoidable
circumstance, military service
provision. This provision will not be
limited only to service in the National
Guard or military reserve as indicated in
the proposed rule. This change is being
made in response to Comment 110. The
comment correctly noted that in
adopting its charter halibut moratorium
recommendation to the Secretary, the
Council intended that the military
exemption apply to an individual who
was assigned to active military duty
during 2004 or 2005. The proposed rule
text interpreted the Council’s
recommendation too narrowly in
limiting the military service provision to
service only in the National Guard or
military reserve. Hence, the final rule
text is revised to accurately reflect the
Council’s approved recommendation. In
addition, a new paragraph (g)(3)(iii) is
added to clarify that the criteria to be
used in determining the number and
type (transferable or non-transferable) of
charter halibut permit(s) initially
allocated under this military service
provision is in paragraph (g)(2)(v)(B),
immediately preceding paragraph (g)(3).
The proposed rule presumed that NMFS
will be guided by the criteria in
paragraph (g)(2)(v)(B), but the added
text makes this explicit. Finally, the
added text makes clear that all permits
issued under this military service
provision will receive angler
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endorsements of six by cross reference
to paragraph (e)(2).
21. In § 300.67(h)(3), language is
added to authorize NMFS to issue nontransferable interim permit(s) for
undisputed permit claims. On further
examination of the proposed regulatory
text, NMFS determined that without
this explicit authority, a dispute over
any one permit would prevent issuing
any charter halibut permit(s) for which
an applicant appeared to qualify. For
example, an applicant may claim three
charter halibut permits; however, the
official charter halibut record support
issuing only two permits. The proposed
rule regulatory text at § 300.67(h)
suggests that NMFS may not issue any
permits to the applicant until after the
30-day evidentiary period, an IAD is
issued, and OAA accepts the applicant’s
appeal regarding the third disputed
permit. In this example, the applicant
may eventually win the appeal for the
third disputed permit, but lose an entire
fishing season waiting for the disputed
claim to be resolved. This change from
the proposed rule will allow NMFS to
issue interim permits for undisputed
permit claims, allowing an applicant to
continue charter halibut operations
while disputed permit claims are
processed and adjudicated.
22. In § 300.67(i)(1), a reference to
paragraph (b)(2) in the proposed rule is
changed to paragraph (d)(2) in the final
rule. This change is necessary to update
a reference to regulatory text in
§ 300.67(b) in the proposed rule, which
is revised in this final rule as described
in changes 12 and 16.
23. In § 300.67(k)(4), the maximum
permit limitations on a CQE is clarified
by removing the word ‘‘following’’ and
instead referring specifically to the
maximum number of charter halibut
and community charter halibut permits
specified in paragraphs (k)(4)(i) and
(k)(4)(ii).
24. In § 679.2, the definition of
‘‘community quota entity (CQE)’’ is
revised by removing the parenthetical
phrase ‘‘for purposes of the IFQ
program.’’ After further examination of
the proposed rule text, NMFS
determined that this phrase could cause
confusion by suggesting that the CQE
definition applies only to the IFQ
program. This rule establishes another
potential purpose for a CQE, which is to
hold community charter halibut
permits. This expanded role for CQEs
that represent communities identified in
this rule does not require a substantive
change to the CQE definition. This
clarification is consistent with the
proposed rule that thoroughly described
the potential role for CQEs in the charter
halibut fishery.
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597
Classification
Regulations governing the U.S.
fisheries for Pacific halibut are
developed by the International Pacific
Halibut Commission (IPHC), the Pacific
Fishery Management Council, the North
Pacific Fishery Management Council
(Council), and the Secretary of
Commerce. Section 5 of the Northern
Pacific Halibut Act of 1982 (Halibut Act,
16 U.S.C. 773c) provides the Secretary
of Commerce with the general
responsibility to carry out the
Convention between Canada and the
United States for the management of
Pacific halibut, including the authority
to adopt regulations as may be necessary
to carry out the purposes and objectives
of the Convention and Halibut Act. This
final rule is consistent with the
Secretary of Commerce’s authority
under the Halibut Act.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
A FRFA was prepared that describes
the economic impact that this action has
on small entities. The RIR/FRFA
prepared for this final rule is available
from NMFS (see ADDRESSES). The FRFA
for this action explains the need for, and
objectives of, the rule, summarizes the
public comments on the initial
regulatory flexibility analysis and
agency responses, describes and
estimates the number of small entities to
which the rule will apply, describes
projected reporting, recordkeeping and
other compliance requirements of the
rule, and describes the steps the agency
has taken to minimize the significant
economic impact on small entities,
including a statement of the factual,
policy, and legal reasons for selecting
the alternative adopted in the final rule
and why each one of the other
significant alternatives to the rule
considered by the agency that affect the
impact on small entities was rejected.
The need for and objectives of this
action; a summary of the comments and
responses; a description of the action,
its purpose, and its legal basis; and a
statement of the factual, policy, and
legal reasons for selecting the alternative
embodied in this action are described
elsewhere in this preamble and are not
repeated here.
The proposed rule was published in
the Federal Register on April 21, 2009
(74 FR 18178). An Initial Regulatory
Flexibility Analysis (IRFA) was
prepared and described in the
classification section of the preamble to
the rule. The public comment period
ended on June 5, 2009. NMFS received
166 communications containing 157
separate comments. Comments 45 and
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Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations
143 address the IRFA. Comments 39–41,
43, 45–47, 51, and 143 address the
economic impact of the rule on small
entities.
Two classes of entities are directly
regulated by this action: (1) guided
charter businesses active in IPHC Areas
2C and 3A, and (2) CQE-qualified
communities and CQE groups formed by
those communities in Areas 2C and 3A.
Almost all of the guided charter
businesses are believed to be small
entities. This conclusion is based on a
Small Business Administration (SBA)
threshold of $7.0 million in gross
revenues on an annual basis for
facilities offering recreational services,
including guided fishing services
(NAICS 713990). The largest of these
entities, which are lodges, may be
considered large entities under SBA
standards, but that cannot be confirmed.
The 32 communities in Area 2C and 3A
directly regulated as part of this action
would be considered small entities
under the SBA definitions because they
have populations under 50,000 persons.
Under this action, NMFS will issue
permits to an estimated 231 businesses
in Area 2C and to 296 businesses in
Area 3A. In Area 2C, 173 of the guided
businesses that show evidence of
bottomfish fishing in 2008 will not
qualify to receive an Area 2C guided
charter permit under the limited entry
program. In Area 3A, 154 of the guided
businesses that show evidence of
bottomfish fishing in 2008 will not
qualify to receive an Area 3A guided
charter permit.
Businesses that do not qualify to
receive a charter halibut permit do not
meet activity thresholds during the
qualifying period (2004–2005) or do not
meet the 2008 thresholds in the recency
provisions of the Council’s motion.
This action seeks to help 32 small,
remote communities in Areas 2C and 3A
develop charter businesses by mitigating
the economic barrier associated with
purchasing a charter halibut permit and
creating a number of non-transferable
permits that can be held only by the
non-profit entity representing the
eligible community.
Under this action, 18 qualifying Area
2C communities are eligible to each
receive up to four community halibut
charter permits per community at no
cost; 14 Area 3A communities are
eligible to each receive up to seven
community halibut charter permits per
community at no cost. Guided halibut
fishing trips made with these permits
must either begin or end within the
boundaries of the eligible community
designated on the permit. In addition,
each of these community CQE programs
will be able to buy additional
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17:13 Jan 04, 2010
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transferable permits equal in number to
its allocation of community halibut
charter permits. This authority to
acquire by transfer additional
transferable charter halibut permits
makes it possible for CQEs representing
eligible communities to hold a
maximum of eight permits per
community in Area 2C or a maximum
of 14 permits per community in Area
3A. These potential permit numbers are
different from the excessive share limits
imposed on other entities (a five-permit
limit unless initially allocated more).
Of the directly regulated entities, only
currently active guided charter
operations that will not receive a permit
to continue to participate in this fishery
will suffer significant adverse economic
impacts. These operations must enter
the market for transferable charter
halibut permits to remain active in the
charter halibut fishery.
Permit applications must be
submitted prior to the start of the
program. The application will require
information about the business applying
for the permit, including the ownership
structure of the business (U.S.
citizenship papers for individuals) and
information on the charter activities of
the business. After submitting the initial
permit application, additional
applications will be required only for
transfer of permits. NMFS will require
additional reports when the structure of
the business holding the permit changes
or the permit is transferred. The initial
application for a charter permit could
take an estimated two hours to
complete, depending on the amount of
additional information the applicant
needs to provide. The application for
transfer of a charter permit is estimated
to take two hours to complete, based on
previous experience with the groundfish
License Limitation Program.
Persons applying for a community
charter permit or a military charter
halibut permit must submit applications
for these special permits. In addition,
CQEs representing communities eligible
to receive community charter halibut
permits will be required to identify the
person that will use the permit. The
application for a community charter
halibut permit or a military charter
halibut permit is estimated to take two
hours to complete. In all cases, basic
reading and writing skills are required
to complete the application forms.
The Council and NMFS have taken
several steps to minimize the burden on
directly regulated small entities. The
Council published information about
the control date frequently during its
deliberations. The Council adopted this
control date at its December 2005
meeting. In April 2006, it received a
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recommendation from its Charter
Halibut Stakeholder Committee that it
initiate an analysis of an entry
moratorium using the December 9, 2005,
control date. At its April 2006 meeting
it requested staff to prepare an analysis
of moratorium options based on the
December 9, 2005, control date. The
Council received a discussion paper
from staff, based on this control date in
December 2006. It adopted a
preliminary preferred alternative based
on this control date in February 2007,
and it recommended a limited access
system that included this control date in
April 2007. Newsletters for each of these
Council meetings contained information
on the Council action and mentioned
this control date. NMFS published a
notice in the Federal Register in
February 2006 stating that the Council
had adopted this control date (71 FR
6442, February 8, 2006) and the Council
devoted a paragraph to this notice in its
February 2006 newsletter.
This action creates a class of nontransferable permits to ease the
transition from an open access fishery
for a large class of businesses
participating at relatively low levels of
activity. Thus, any business that
reported more than five logbook trips in
the qualifying and in the recent
participation period, but that had no
vessel with at least 15 trips in one of the
two years, 2004 or 2005, and in 2008,
will receive non-transferable permits.
These permits will allow that operation
to continue its activity until the operator
leaves the fishery, at which time they
will expire. Thus, a transitional
mechanism is provided for many
operations that otherwise would have
been forced to withdraw from the
fishery immediately.
The Council and NMFS created
transferable permits to allow the market
to reallocate permits among recipients.
This makes it possible for businesses
that were active in 2008 but not during
the qualifying period to continue their
activity by purchasing permits.
The Council has created a class of
community halibut charter permits.
These will be issued without charge to
qualifying communities. If qualified
communities in Area 2C take full
advantage of this program, an additional
72 permits may be issued for guided
charter vessels. If qualified communities
in Area 3A take full advantage, an
additional 98 permits may be available.
These permits were created to provide
development opportunities for rural
communities, but they should offer
opportunities for businesses that do not
receive transferable or non-transferable
permits, and that are willing to enter a
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joint venture with a qualified
community to utilize these permits.
The Council and Secretary considered
a no-action alternative, but this was
rejected because it would not
accomplish the objective of this action,
which is to stabilize the businesses in
this fishery by controlling entry, while
providing opportunities for rural
community development. The Council
also considered an option that only
required a single landing in 2008 to
meet the recency requirement. This
option was rejected because this action
was originally taken to stabilize the
businesses in the charter halibut fishery
with respect to active participants in
2004 and 2005. The recency
requirement was adopted because the
Council was aware that implementation
would take several years, and it wanted
to limit qualifying businesses to those
businesses active during the
qualification period and still active
close to the time the program was
implemented. Therefore, the Council
elected to require the same level of
participation in the qualification period
and in the recency period.
srobinson on DSKHWCL6B1PROD with RULES3
Paperwork Reduction Act Collections
of Information
This rule contains a collection-ofinformation requirement subject to the
Paperwork Reduction Act (PRA) and
which has been approved by OMB
under control number 0648–0592.
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.
Send comments regarding this burden
estimate, or any other aspect of this data
collection, including suggestions for
reducing the burden, to NMFS (see
ADDRESSES) and by 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.
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List of Subjects
599
A. Removing the definition for
‘‘Charter vessel’’.
■ B. Revising definitions for ‘‘Charter
vessel angler’’, ‘‘Charter vessel fishing
trip’’, ‘‘Charter vessel guide’’, ‘‘Crew
member’’, and ‘‘Sport fishing guide
services’’.
■ C. Adding definitions for ‘‘Charter
halibut permit’’, ‘‘Community charter
halibut permit’’, ‘‘Military charter
halibut permit’’, and ‘‘Valid’’ in
alphabetical order.
The revisions and additions read as
follows:
■
15 CFR Part 902
Recordkeeping and reporting
requirements.
50 CFR Part 300
Fisheries, Fishing, Reporting and
recordkeeping requirements, Treaties.
50 CFR Part 679
Alaska, Fisheries.
Dated: December 18, 2009.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
§ 300.61
Definitions.
*
*
*
*
Charter halibut permit means a permit
■ For the reasons set out in the
issued by the National Marine Fisheries
preamble, NMFS amends 15 CFR
Service pursuant to § 300.67.
Charter vessel angler, for purposes of
Chapter IX, and 50 CFR Chapters III and
§§ 300.65(d), 300.66, and 300.67, means
VI as follows:
a person, paying or non-paying, using
15 CFR Chapter IX
the services of a charter vessel guide.
Charter vessel fishing trip, for
PART 902—NOAA INFORMATION
COLLECTION REQUIREMENTS UNDER purposes of §§ 300.65(d), 300.66, and
300.67, means the time period between
THE PAPERWORK REDUCTION ACT:
the first deployment of fishing gear into
OMB CONTROL NUMBERS
the water from a vessel after any charter
■ 1. The authority citation for part 902
vessel angler is onboard and the
continues to read as follows:
offloading of one or more charter vessel
anglers or any halibut from that vessel.
Authority: 44 U.S.C. 3501 et seq.
Charter vessel guide, for purposes of
■ 2. In § 902.1, in the table in paragraph
§§ 300.65(d), 300.66 and 300.67, means
(b), under the entry ‘‘50 CFR’’, add
a person who holds an annual sport
entries for ‘‘300.67(h), (i), (k), and (l)’’,
guide license issued by the Alaska
in alphanumeric order to read as
Department of Fish and Game, or a
follows:
person who provides sport fishing guide
services.
§ 902.1 OMB control numbers assigned
pursuant to the Paperwork Reduction Act.
*
*
*
*
*
Community charter halibut permit
*
*
*
*
*
means a permit issued by NMFS to a
(b) * * *
Community Quota Entity pursuant to
§ 300.67.
CFR part or section where the inCurrent OMB control
Crew member, for purposes of
formation collection
number (all numbers
§§ 300.65(d), and 300.67, means an
requirement is
begin with 0648–)
assistant, deckhand, or similar person
located
who works directly under the
supervision of, and on the same vessel
as, a charter vessel guide or operator of
*
*
*
*
*
50 CFR
a vessel with one or more charter vessel
anglers on board.
*
*
*
*
*
*
*
*
*
*
300.67(h), (i), (k),
Military charter halibut permit means
and (l) ................
–0592
a permit issued by NMFS to a United
States Military Morale, Welfare and
*
*
*
*
*
Recreation Program pursuant to
§ 300.67.
50 CFR Chapter III
*
*
*
*
*
PART 300—INTERNATIONAL
Sport fishing guide services, for
FISHERIES REGULATIONS
purposes of §§ 300.65(d) and 300.67,
means assistance, for compensation, to
Subpart E—Pacific Halibut Fisheries
a person who is sport fishing, to take or
attempt to take fish by being onboard a
■ 3. The authority citation for part 300,
vessel with such person during any part
subpart E continues to read as follows:
of a charter vessel fishing trip. Sport
Authority: 16 U.S.C. 773–773k.
fishing guide services do not include
services provided by a crew member.
■ 4. In § 300.61, definitions are
amended by:
*
*
*
*
*
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*
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Valid, with respect to a charter
halibut permit for purposes of §§ 300.66
and 300.67, means the charter halibut
permit that is currently in effect.
*
*
*
*
*
■ 5. In § 300.66, revise paragraphs (b),
(i), (o), and (p), and add paragraphs (r),
(s), (t), (u), and (v) to read as follows:
§ 300.66
Prohibitions.
srobinson on DSKHWCL6B1PROD with RULES3
*
*
*
*
*
(b) Fish for halibut except in
accordance with the catch sharing plans
and domestic management measures
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, or submit inaccurate
information to an authorized officer.
*
*
*
*
*
(r) Be an operator of a vessel with one
or more charter vessel anglers on board
that are catching and retaining halibut
without an original valid charter halibut
permit for the regulatory area in which
the vessel is operating.
(s) Be an operator of 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) Be an operator of 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) Be an operator of a vessel in Area
2C and Area 3A during one charter
vessel fishing trip.
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(v) Be an operator of 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
Guard documentation number of the
vessel.
■ 6. 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 operator of
a vessel with one or more charter vessel
anglers catching and retaining Pacific
halibut on board a vessel must have on
board the vessel an original valid
charter halibut permit or permits
endorsed for the regulatory area in
which the vessel is operating and
endorsed for at least the number of
charter vessel anglers who are catching
and retaining Pacific halibut. Each
charter halibut permit holder must
insure that the operator of the permitted
vessel complies with all requirements of
§§ 300.65 and 300.67.
(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 for up
to 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
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determined separately and must not be
combined.
(1) 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 the State
of Alaska Department of Fish and Game
(ADF&G) issued the ADF&G Business
Owner Licenses that authorized logbook
fishing trips that meet the minimum
participation requirements described in
paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B)
of this section for one or more charter
halibut permits, unless the person is
applying as a successor-in-interest.
(A) Reported five (5) bottomfish
logbook fishing trips or more during one
year of the qualifying period; and
(B) Reported five (5) halibut logbook
fishing trips or more during the recent
participation period.
(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)(ii) 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.
(iv) If more than one applicant claims
that they are the successor-in-interest to
a dissolved entity, NMFS will award 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.
(2) Notwithstanding any other
provision in this subpart, and except as
provided in paragraph (b)(1)(iv) of this
section,
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(i) One logbook fishing trip shall not
be credited to more than one applicant;
(ii) One logbook fishing trip made
pursuant to one ADF&G Business
Owner 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.
(3) For purposes of this section, the
term ‘‘ADF&G Business Owner(s)
License(s)’’ includes a ‘‘business
registration,’’ ‘‘sport fish business owner
license,’’ ‘‘sport fish business license,’’
and ‘‘ADF&G business license’’.
(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 to an applicant
under paragraph (c) of this section will
be designated as transferable or nontransferable.
(1) Minimum participation criteria for
a transferable permit are described in
paragraphs (d)(1)(i) and (d)(1)(ii) of this
section as follows:
(i) Reported fifteen (15) bottomfish
logbook fishing trips or more from the
same vessel during one year of the
qualifying period; and
(ii) Reported fifteen (15) halibut
logbook fishing trips or more from the
same vessel during the recent
participation period.
(iii) The vessel used during the recent
participation period is not required to
be the same vessel used during the
qualifying period.
(2) The number of transferable charter
halibut permits issued to an applicant
will be equal to the lesser of the number
of vessels that met the minimum
transferable permit qualifications
described in paragraphs (d)(1)(i) or
(d)(1)(ii) of this section.
(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
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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.
(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, the statistical
area(s) where bottomfish fishing
occurred, 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
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601
Commission (February 1 through
December 31) in 2008.
(g) Unavoidable circumstance.
Unavoidable circumstance claims must
be made pursuant to paragraph (h)(6) of
this section, and will be limited to
persons who would be excluded from
the charter halibut fishery entirely
unless their unavoidable circumstance
is recognized. This unavoidable
circumstance provision cannot be used
to upgrade the number of permits issued
or to change a non-transferable permit to
a transferable permit, and is limited to
the following circumstances.
(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
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;
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(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
(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 active duty military service as
a member of a branch of the U.S.
military, 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.
(iii) The number of transferable and
non-transferable charter halibut
permit(s) that an applicant may receive
under paragraph (g)(3) of this section
will be based on the criteria in
paragraph (g)(2)(v)(B) of this section.
Angler endorsements on all such charter
halibut permits will be pursuant to
paragraph (e)(2) of this section.
(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
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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
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 issue
non-transferable interim permit(s) for all
undisputed permit claims, and 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 for
disputed permit(s). 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
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(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
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 nontransferable 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 (d)(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
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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
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
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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:
(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
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603
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
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.
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(4) NMFS will not approve a transfer
that will cause a CQE representing a
community or communities to hold
more than the total number of permits
described in paragraphs (k)(4)(i) and
(k)(4)(ii) of this section, per community,
including community charter halibut
permits 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
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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
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
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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.
50 CFR Chapter VI
PART 679—FISHERIES OF THE
EXCLUSIVE ECONOMIC ZONE OFF
ALASKA
7. The authority citation for part 679
continues to read as follows:
■
Authority: 16 U.S.C. 773 et seq.; 1801 et
seq.; 3631 et seq.; Pub. L. 108–447.
8. In § 679.2, revise the introductory
text for the definition of ‘‘community
quota entity (CQE)’’ to read as follows:
■
§ 679.2
Definitions.
*
*
*
*
*
Community quota entity (CQE) means
a non-profit organization that:
*
*
*
*
*
[FR Doc. E9–30662 Filed 1–4–10; 8:45 am]
BILLING CODE 3510–22–P
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| File Modified | 2024-06-04 |
| File Created | 2024-06-04 |