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Federal Register Vol 75, No 2 Tuesday, January 5, 2010 Rules and

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Federal Register Vol 75, No 2 Tuesday, January 5, 2010 Rules and Powered By Docstoc
					                                               554                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               DEPARTMENT OF COMMERCE                                  rule may be submitted by mail to NMFS,                 development of its Individual Fishing
                                                                                                       Alaska Region, P.O. Box 21668, Juneau,                 Quota (IFQ) Program, codified at 50 CFR
                                               National Oceanic and Atmospheric                        AK, 99802–1668, Attn: Ellen Sebastian,                 part 679, and subsistence halibut fishery
                                               Administration                                          Records Officer; in person at NMFS,                    management measures, codified at 50
                                                                                                       Alaska Region, 709 West 9th Street,                    CFR 300.65. The Council also has been
                                               15 CFR Part 902                                         Room 420A, Juneau, AK; and by e-mail                   developing a regulatory program to
                                                                                                       to David_Rostker@omb.eop.gov or fax to                 manage the guided sport charter vessel
                                               50 CFR Parts 300 and 679                                202–395–7285.                                          fishery for halibut. This action is a step
                                               [Docket No. 080630798–91430–02]                         FOR FURTHER INFORMATION CONTACT:                       in the development of that regulatory
                                                                                                       Rachel Baker, 907–586–7228.                            program and has been approved by the
                                               RIN 0648–AW92                                                                                                  Secretary pursuant to section 773c(c).
                                                                                                       SUPPLEMENTARY INFORMATION: The
                                               Pacific Halibut Fisheries; Limited                      International Pacific Halibut                          Background and Need for Action
                                               Access for Guided Sport Charter                         Commission (IPHC) and National                            A comprehensive history of
                                               Vessels in Alaska                                       Marine Fisheries Service (NMFS)                        management of the guided sport fishery
                                                                                                       manage fishing for Pacific halibut                     for halibut was presented in the
                                               AGENCY: National Marine Fisheries                       (Hippoglossus stenolepis) through                      proposed rule for this action published
                                               Service (NMFS), National Oceanic and                    regulations established under authority                April 21, 2009 (74 FR 18178). This
                                               Atmospheric Administration (NOAA),                      of the Northern Pacific Halibut Act of                 description focused on the history and
                                               Commerce.                                               1982 (Halibut Act). The IPHC                           rationale leading to the Council’s
                                               ACTION: Final rule.                                     promulgates regulations governing the                  development of limited access
                                                                                                       Pacific halibut fishery under the                      management for the charter vessel
                                               SUMMARY: NMFS issues regulations                        Convention between the United States
                                               creating a limited access system for                                                                           fishery and its recommendation of this
                                                                                                       and Canada for the Preservation of the                 limited access system in 2007. In brief,
                                               charter vessels in the guided sport                     Halibut Fishery of the North Pacific
                                               fishery for Pacific halibut in waters of                                                                       the principal concern was overcrowding
                                                                                                       Ocean and Bering Sea (Convention),                     of productive halibut grounds due to the
                                               International Pacific Halibut                           signed at Ottawa, Ontario, on March 2,
                                               Commission Regulatory Areas 2C                                                                                 growth of the charter vessel sector. The
                                                                                                       1953, as amended by a Protocol                         Council found that the charter vessel
                                               (Southeast Alaska) and 3A (Central Gulf                 Amending the Convention (signed at
                                               of Alaska). This limited access system                                                                         sector was the only halibut harvesting
                                                                                                       Washington, DC, on March 29, 1979).                    sector that was exhibiting growth in
                                               limits the number of charter vessels that               Regulations developed by the IPHC are
                                               may participate in the guided sport                                                                            IPHC Areas 2C and 3A. Other harvesting
                                                                                                       subject to approval by the Secretary of                sectors have specified catch limits that
                                               fishery for halibut in these areas. NMFS                State with concurrence from the
                                               will issue a charter halibut permit to a                                                                       cause fishery closures when reached or
                                                                                                       Secretary of Commerce (Secretary).                     are relatively stable over time. The
                                               licensed charter fishing business owner                 After approval by the Secretary of State               Council recommended this limited
                                               based on his or her past participation in               and the Secretary, the IPHC regulations                access system to provide stability for the
                                               the charter halibut fishery and to a                    are published in the Federal Register as               guided sport halibut fishery and
                                               Community Quota Entity representing                     annual management measures pursuant                    decrease the need for regulatory
                                               specific rural communities. All charter                 to 50 CFR 300.62. The most recent IPHC                 adjustments affecting charter vessel
                                               halibut permit holders are subject to                   regulations were published March 19,                   anglers while the Council continues to
                                               limits on the number of permits they                    2009, at 74 FR 11681. IPHC regulations                 develop a long-term policy of allocation
                                               may hold and on the number of charter                   affecting sport fishing for halibut and                between the commercial and charter
                                               vessel anglers who may catch and retain                 charter vessels in Areas 2C (Southeast                 vessel sectors.
                                               halibut on permitted charter vessels.                   Alaska) and 3A (Central Gulf of Alaska)                   The Council adopted its limited
                                               This action is necessary to achieve the                 may be found in sections 3, 25, and 28                 access policy on March 31, 2007, and
                                               approved halibut fishery management                     (74 FR 11681, March 19, 2009).                         submitted it for review to the Secretary
                                               goals of the North Pacific Fishery                         The Halibut Act, at sections 773c(a)                pursuant to section 773c(c). By
                                               Management Council. The intended                        and (b), provides the Secretary with                   publishing this rule, NMFS announces
                                               effect is to curtail growth of fishing                  general responsibility to carry out the                Secretarial approval of this Council
                                               capacity in the guided sport fishery for                Convention and the Halibut Act. In                     recommendation. A proposed rule for
                                               halibut.                                                adopting regulations that may be                       the recommended limited access system
                                               DATES: February 4, 2010, except for                     necessary to carry out the purposes and                was published April 21, 2009 (74 FR
                                               § 300.66(b), (i), and (o), and § 300.66(r)              objectives of the Convention and the                   18178) soliciting public comments on
                                               through (v), and § 300.67(a), which will                Halibut Act, the Secretary is directed to              the proposal until June 5, 2009. All
                                               be effective on February 1, 2011.                       consult with the Secretary of the                      comments received during this
                                               ADDRESSES: Electronic copies of the                     department in which the U.S. Coast                     comment period are summarized and
                                               Environmental Assessment (EA),                          Guard (USCG) is operating.                             responded to below. Some changes from
                                               Regulatory Impact Review (RIR), and                        The Halibut Act, at section 773c(c),                the proposed rule are made as a logical
                                               Final Regulatory Flexibility Analysis                   also provides the North Pacific Fishery                outgrowth from the proposed rule.
                                               (FRFA) (collectively, Analysis) prepared                Management Council (Council) with                      These changes also are described below.
                                               for this action may be obtained from                    authority to develop regulations,                         Following is a summary description
                                               http://www.Regulations.gov or from the                  including limited access regulations,                  of the charter halibut limited access
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                                               Alaska Region, NMFS on the Alaska                       that are in addition to, and not in                    system and how it is designed to
                                               Region Web site at http://                              conflict with, approved IPHC                           operate. A more thorough description of
                                               www.alaskafisheries.noaa.gov.                           regulations. Such Council-developed                    the action is presented in the preamble
                                                  Written comments regarding the                       regulations may be implemented by                      to the proposed rule published April 21,
                                               burden-hour estimates or other aspects                  NMFS only after approval by the                        2009 (74 FR 18178). Additional detail is
                                               of the collection-of-information                        Secretary. The Council has exercised                   presented in responses to comments
                                               requirements contained in this proposed                 this authority most notably in the                     below.


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                            555

                                               Charter Halibut Limited Access                          2004 or 2005—and at least 15 logbook                   qualify for one or more permit(s) with
                                               System—Operational Aspects                              fishing trips during 2008.                             a minimum of five logbook fishing trips,
                                                                                                          The basic unit of participation for                 will receive only non-transferable
                                               General                                                 receiving a charter halibut permit will                permit(s). Hence, in the example above
                                                  This action limits the entry of charter              be a logbook fishing trip. A ‘‘logbook                 of an applicant with 23 logbook trips
                                               vessels into the guided sport fishery for               fishing trip’’ is a bottomfish logbook                 using three vessels, that applicant will
                                               halibut in waters of IPHC Regulatory                    fishing trip during the qualifying years,              receive three permits. Based on the 15-
                                               Areas 2C (Southeast Alaska) and 3A                      2004 and 2005, and as a halibut logbook                trip minimum criterion, however, this
                                               (Central Gulf of Alaska). After the                     fishing trip in 2008. A logbook fishing                applicant will receive only one
                                               effective date of this rule (see DATES),                trip is an event that was reported to                  transferable permit and the other two
                                               any person operating a charter vessel                   ADF&G in a logbook in accordance with                  permits will be non-transferable.
                                               engaged in halibut fishing in Areas 2C                  the time limit required for reporting
                                                                                                       such a trip that was in effect at the time             Angler Endorsements
                                               or 3A is required to have on board the
                                               vessel a charter halibut permit                         of the trip.                                              Each charter halibut permit will have
                                               designated for that area. Qualifications                                                                       an angler endorsement number. The
                                                                                                       Number of Permits                                      angler endorsement number on the
                                               for a charter halibut permit in each area
                                               are determined independently. A                           If an applicant for a charter halibut                permit is the maximum number of
                                                                                                       permit meets the minimum                               charter vessel anglers that may catch
                                               charter halibut permit can be either
                                                                                                       participation requirements during a                    and retain halibut on board the vessel.
                                               transferable or non-transferable
                                                                                                       qualifying year and the recent                         The angler endorsement does not limit
                                               depending on the qualifications of
                                                                                                       participation year, NMFS will                          the number of passengers that an
                                               permit applicants. Each permit will
                                                                                                       determine how many permits the                         operator may carry, only the number
                                               have an angler endorsement that
                                                                                                       applicant will receive and how many of                 that may catch and retain halibut. The
                                               specifies the maximum number of
                                                                                                       those, if any, will be transferable                    angler endorsement will be equal to the
                                               anglers authorized to catch and retain
                                                                                                       permits. If an applicant qualifies for any             highest number of anglers that the
                                               halibut under the authority of the
                                                                                                       permits, NMFS will issue to the                        applicant reported on any logbook
                                               permit under which the vessel is
                                                                                                       applicant the number of permits equal                  fishing trip in 2004 or 2005, subject to
                                               operating. In addition, this action                     to (a) the applicant’s total number of                 a minimum endorsement of four.
                                               provides for two special permits—a                      bottomfish logbook fishing trips in a                     The term ‘‘charter vessel angler’’ is
                                               community charter halibut permit and a                  qualifying year, divided by 5, or (b) the              defined by this action to include all
                                               military charter halibut permit.                        number of vessels that made those trips,               persons, paying or non-paying, who use
                                               Qualifications for Charter Halibut                      whichever number is lower. The                         the services of the charter vessel guide.
                                               Permit                                                  applicant will select which year in the                The charter halibut permit, once issued
                                                                                                       qualifying period—2004 or 2005—                        with its angler endorsement, will limit
                                                  To receive an initial allocation of a                NMFS will use in making this                           the number of charter vessel anglers
                                               charter halibut permit, an applicant                    calculation.                                           authorized to catch and retain halibut
                                               must demonstrate participation in the                     For example, an applicant in its                     on the permitted vessel.
                                               charter halibut fishery during an                       selected qualifying year reported 23                      A vessel operator will be able to stack
                                               historic qualifying period and during a                 logbook trips using three vessels. One                 permits to increase the number of
                                               recent participation period. The historic               vessel made 16 trips, another vessel                   charter vessel anglers on board. For
                                               qualifying period is the sport fishing                  made five trips, and another vessel                    example, if a vessel operator has two
                                               season established by the IPHC in 2004                  made only two trips. Under the rule,                   charter permits on board, one with an
                                               and 2005. The sport fishing season in                   NMFS will calculate 23 ÷ 5 = 4.6 which                 angler endorsement of four and one
                                               both of those years was February 1                      will be rounded down to four. But this                 with an endorsement of six, then the
                                               through December 31. Minimum                            number of permits will be limited by the               vessel operator can have a maximum of
                                               participation criteria need be met in                   number of vessels that made all the                    10 charter vessel anglers on board who
                                               only one of these years—2004 or 2005.                   logbook trips in the applicant-selected                are catching and retaining halibut if the
                                               The recent participation period is the                  year which was three. Hence, the                       operator is otherwise authorized to carry
                                               sport fishing season established by the                 applicant will be awarded three permits.               10 passengers. If other provisions of
                                               IPHC in 2008. This year was selected as                                                                        law, such as safety regulations or for-
                                               the recent participation period because                 Transferable Permits
                                                                                                                                                              hire operation regulations, prevent 10
                                               it is the most recent year for which                       After determining the total number of               anglers from being on board the vessel,
                                               NMFS has a complete record of                           permits, NMFS will determine which                     the charter halibut permits will not
                                               saltwater charter vessel logbook data                   permits are transferable and which are                 authorize the vessel operator to violate
                                               from the State of Alaska Department of                  nontransferable. An applicant will                     those provisions of law.
                                               Fish and Game (ADF&G).                                  receive a transferable permit for each
                                                  The minimum participation                            vessel that made at least 15 trips in the              Initial Allocation Process
                                               qualifications include documentation of                 applicant-selected year (2004 or 2005)                    Several basic standards are required
                                               at least five logbook fishing trips during              and at least 15 trips in the recent                    to initially receive a charter halibut
                                               one of the qualifying years—2004 or                     participation year (2008). The same                    permit. These standards include (1)
                                               2005—and at least five logbook fishing                  vessel must have made all the trips                    timely application for a permit, (2)
                                               trips during 2008. Meeting these                        within a year; however, the same vessel                documentation of participation in the
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                                               minimum participation qualifications                    did not have to be used in the qualifying              charter vessel fishery during the
                                               could qualify an applicant for a non-                   year and the recent participation year.                qualifying and recent participation
                                               transferable charter halibut permit. The                The rest of the applicant’s permits, if                periods by ADF&G logbooks, and (3)
                                               minimum participation qualifications                    any, will be non-transferable permits.                 ownership of a business that was
                                               for a transferable charter halibut permit               Applicants that do not have the                        licensed by the State of Alaska to
                                               include at least 15 logbook fishing trips               minimum of 15 logbook fishing trips                    conduct the guided sport fishing
                                               during one of the qualifying years—                     from the same vessel in each period but                reported in the logbooks.


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                                               556                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                                  Timely application. To be an initial                 not reported within those time limits,                 each logbook fishing trip; and the vessel
                                               recipient of a charter halibut permit, an               NMFS will not consider it a logbook                    that made each logbook fishing trip.
                                               applicant must apply for the permit                     fishing trip for purposes of a charter                    NMFS will compare all timely
                                               during the application period. An                       halibut permit application.                            applications to the official record. If an
                                               application period of no less than 60                      NMFS will use the same method of                    applicant submits a claim that is not
                                               days will be announced in the Federal                   counting logbook fishing trips that was                consistent with the official record,
                                               Register. Applications submitted by                     used by the Council in developing its                  NMFS will allow the applicant to
                                               mail, hand delivery, or facsimile will be               recommendation for this action. Each                   submit documentation or further
                                               accepted if postmarked, hand delivered,                 trip in a multi-trip day will count as one             evidence in support of the claim during
                                               or received by fax no later than the last               logbook fishing trip, and each day on a                a 30-day evidentiary period. If NMFS
                                               day of the application period. Electronic               multi-day trip will count as one logbook               accepts the applicant’s documentation
                                               submissions other than facsimile will                   fishing trip. For example, if an operator              as sufficient to change the official
                                               not be acceptable. A finite application                 documented two trips in one day,                       record, NMFS will change the official
                                               period of reasonable length is necessary                NMFS will consider that as two logbook                 record and issue charter halibut
                                               to resolve potential claims for permits                 fishing trips. Another operator that                   permit(s) accordingly. If NMFS does not
                                               by two or more persons for the same                     documented a trip that lasted two days                 agree that the further evidence supports
                                               logbook fishing trip history. NMFS will                 also will be considered to have made                   the applicant’s claim, NMFS will issue
                                               not credit the same logbook fishing trip                two logbook fishing trips. This                        an initial administrative determination
                                               to more than one applicant and will not                 accounting of trips deviates from the                  (IAD). The IAD will describe why NMFS
                                               allow the participation history of one                  ADF&G method of counting logbook                       is initially denying some or all of an
                                               business owner to support issuance of a                 trips when fishing continues over                      applicant’s claim and will provide
                                               permit(s) to more than one applicant.                   multiple days. The same issue does not                 instructions on how to appeal the IAD.
                                                  Application forms will be available                  exist for half-day trips. Consistent with                 An applicant may appeal the IAD to
                                               through ADF&G and NMFS offices and                      ADF&G logbook data and the Council’s                   the Office of Administrative Appeals
                                               on the NMFS, Alaska Region, Web site                    Analysis, NMFS will consider a half day                (OAA) pursuant to 50 CFR 679.43.
                                               at http://www.alaskafisheries.noaa.gov/.                trip as one trip.                                      NMFS will issue interim permits to
                                               Electronic submission of the application                   A halibut logbook fishing trip also can             applicants that filed timely applications
                                               will not be acceptable, however,                        be a logbook fishing trip where the                    and whose appeal is accepted by OAA.
                                               because a signature on the application                  business owner, within ADF&G time                      NMFS will limit interim permits on
                                               will be required. The application form                  limits, reported ‘‘boat hours that the                 appeal to applicants who applied for
                                               will include a statement that, by                       vessel engaged in bottomfish fishing.’’                charter halibut permits within the
                                               signature, the applicant attests that legal             An applicant may use such a report as                  application period specified in the
                                               requirements were met and all                           one way to document a halibut logbook                  Federal Register. This means that an
                                               statements on the application are correct               fishing trip. The logbook data for ‘‘boat              applicant that is denied a permit
                                               under penalty of perjury.                               hours’’ that a business had to report in               because its application was late would
                                                  Documentation of participation. The                  2007 and 2008 was ‘‘No. of Boat Hours                  not receive an interim permit. All
                                               principal documentation necessary to                    Fished this Trip’’ with bottomfish as a                permits issued during an appeal will be
                                               prove qualifying participation in the                   targeted species. ADF&G instructions for               interim, non-transferable permits. Until
                                               charter halibut fishery will be limited to              the 2007 and 2008 logbooks state that                  NMFS makes a final decision on the
                                               saltwater charter vessel logbooks issued                bottomfish include halibut.                            appeal, the permit holder will not be
                                               by the ADF&G. There are several                         Documentation of boat hours fishing for                able to transfer any permits.
                                               reasons for relying only on the ADF&G                   bottomfish would capture trips where                      Licensed business owners. Charter
                                               charter vessel logbook database. First,                 charter vessel anglers were targeting                  halibut permits will be issued to
                                               ADF&G has regulated saltwater charter                   halibut but did not catch any. Hence,                  persons that were the ADF&G licensed
                                               fishing in the State of Alaska through                  this action defines a halibut logbook                  business owners that met the minimum
                                               registrations, licenses, and logbooks                   fishing trip as a logbook fishing trip in              qualifications. The term ‘‘person’’
                                               since 1998. These requirements apply to                 which the applicant reported the                       includes an individual, corporation,
                                               all charter fishing, including vessels                  number of halibut kept or released or                  firm, or association (50 CFR 300.61).
                                               targeting halibut. Second, ADF&G                        the boat hours that the vessel engaged                 Hence, on successful application, NMFS
                                               supplied aggregated charter vessel                      in bottomfish fishing.                                 will issue a charter halibut permit to the
                                               logbook data to the Council to assist it                   Documentation of participation will                 entity—individual, corporation,
                                               in its analysis of past participation in                be recorded in the official record of                  partnership, or other entity—that held
                                               the charter halibut fishery in Areas 2C                 charter vessel participation in Areas 2C               the ADF&G Business Owner License
                                               and 3A. Third, the Council relied on                    and 3A during the qualifying and recent                that authorized the logbook fishing trips
                                               these data in part to make its decision                 participation years. The official record               that met the participation requirements.
                                               to recommend limiting entry into this                   will be based on data from ADF&G and                   NMFS has no obligation to determine
                                               fishery and NMFS, in turn, has relied on                will link each logbook fishing trip to an              the owners of a corporation or members
                                               the Council’s Analysis of alternatives                  ADF&G Business Owner License and to                    of a partnership that successfully
                                               and on subsequent ADF&G charter                         the person—individual, corporation,                    applied for a permit. NMFS will follow
                                               vessel logbook data to approve this                     partnership, or other entity—that                      the form of ownership—individual or
                                               action.                                                 obtained the license. Thus, the official               otherwise—that the business used to
                                                  As stated above, the basic unit of                   record will include information from                   obtain legal authorization from the State
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                                               participation for receiving a charter                   ADF&G on the persons that obtained                     of Alaska for its past participation in the
                                               halibut permit will be a logbook fishing                ADF&G Business Owner Licenses in the                   charter halibut fishery.
                                               trip, which is a trip that was reported to              qualifying period and the recent                          Generally, the entity that applies for
                                               ADF&G in a saltwater charter logbook in                 participation period; the logbook fishing              one or more charter halibut permits will
                                               accordance with the time limit required                 trips in those years that met the State of             be the same entity that held the ADF&G
                                               for reporting such a trip that was in                   Alaska’s legal requirements; the                       Business Owner License that authorized
                                               effect at the time of the trip. If a trip was           Business Owner License that authorized                 the trips that met the participation


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                              557

                                               requirements in the qualifying period                      • The unavoidable circumstance                      Excessive consolidation will be
                                               and in the recent participation period.                 actually occurred.                                     prevented by imposing an excessive
                                               The only exception to this requirement                     The unavoidable circumstance                        share limit of five charter halibut
                                               is if the entity that held these licenses               exception will be limited to persons that              permits.
                                               is an individual who has died, or a non-                will be excluded from the fishery                         Two important exceptions to this
                                               individual entity, such as a corporation                entirely unless their unavoidable                      excessive share limit, however, will
                                               or partnership, that has dissolved.                     circumstance is recognized. The                        allow a person to hold more than five
                                                  NMFS will not determine percentage                   unavoidable circumstance exception is                  permits. First, a person that is the initial
                                               of ownership of a dissolved partnership                 not intended to upgrade the number or                  recipient of more than five permits will
                                               or corporation. If a dispute exists among               type of permits an applicant could                     be able to continue to hold all of the
                                               former partners or shareholders as to                   receive. For example, NMFS will not                    permits for which the person initially
                                               how they should share ownership of a                    accept an unavoidable circumstance                     qualified. Such a person will be
                                               permit or permits, that dispute is                      claim to upgrade a non-transferable                    prevented from receiving transfers of
                                               properly resolved as a civil matter by a                permit to a transferable permit based on               additional permits. This exception will
                                               court.                                                  an anticipated 15 logbook trips in 2005                not apply if an individual permit holder
                                                  NMFS will apply a guiding principle                  that did not occur. NMFS intends a                     dies or a corporate permit holder
                                               in evaluating applications for charter                  narrow interpretation of the                           dissolves or changes its ownership by
                                               halibut permits; the logbook fishing trip               unavoidable circumstance exception,                    adding one or more new owner(s) or
                                               activity of one person that is used for                 and that, if an applicant can get any                  partner(s). In this event, NMFS will
                                               permit qualification cannot lead to more                charter halibut permit based on the                    consider a successor-in-interest or a
                                               than one person receiving a charter                     applicant’s actual participation, then the             changed corporate structure to be a
                                               halibut permit. The only possible                       applicant will be limited to that permit.              different entity from the one that was
                                               exception is when NMFS might award                         This rule also recognizes a particular              the initial recipient of the permits and
                                               a permit to successors-in-interest to a                 type of unavoidable circumstance,                      the exception to the excessive share
                                               dissolved entity. Even then, NMFS will                  military service. The military exemption               limit will not apply to the new entity.
                                               not issue a permit to each successor-in-                is designed to benefit persons that will               Upon notification of a change, NMFS
                                               interest, but will issue the number of                  otherwise be completely excluded from                  would (1) invalidate transferable charter
                                               permits for which the dissolved entity                  receiving any charter halibut permits                  halibut permits held by the permit
                                               qualified in the names of all successors-               despite their intention to meet the                    holder and provide notification that the
                                               in-interest. Subject to that exception,                 participation requirement during the                   permit holder must divest themselves of
                                               this guiding principle prohibits NMFS                   qualifying period. If a military                       the permit; and (2) revoke non-
                                               from crediting more than one applicant                  exemption applicant can receive any                    transferable charter halibut permits held
                                               for the same logbook fishing trip, from                 permits based on the applicant’s actual                by the permit holder.
                                               crediting more than one applicant for                   participation in the qualifying period,                   The second exception will allow a
                                               logbook fishing trips made pursuant to                  the applicant will be limited to that                  transfer that results in the person
                                               the same ADF&G Business Owners                          number and type of permits and cannot                  receiving the transfer holding more than
                                               License, and from issuing permits to                    use the military exemption. An                         five permits if the person meets the
                                               more than one applicant for                             applicant may not claim a military                     following three conditions:
                                               participation by one person in the                      exemption to excuse lack of                               • The existing permit holder that
                                               charter halibut fishing business.                       participation in the qualifying period                 holds more than five permits under the
                                                  Unavoidable circumstances. NMFS                      and an unavoidable circumstance to                     first exception will be transferring all of
                                               recognizes that certain unavoidable                     excuse a lack of participation in the                  the transferable permits that were
                                               circumstances could have prevented an                   recent participation period. The                       initially issued;
                                               applicant from participating in either                  successful military exemption applicant                   • The existing permit holder will be
                                               the qualifying period or recent                         will receive one non-transferable permit               transferring all assets—such as vessels
                                               participation period despite the                        with an angler endorsement of six                      owned by the business, lodges, and
                                               applicant’s intention. In developing a                  unless the applicant can demonstrate                   fishing equipment—of its charter vessel
                                               limited exception to allow for                          that it likely would have met                          fishing business along with the permits;
                                               unavoidable circumstances, NMFS was                     participation requirements for a                       and
                                               guided in part by the unavoidable                       transferable permit or a higher angler                    • The person that will receive the
                                               circumstance provisions in the License                  endorsement.                                           permits in excess of the excessive share
                                               Limitation Program for groundfish and                                                                          limit does not hold any permits at the
                                                                                                       Transfers                                              time of the proposed transfer.
                                               crab fisheries at 50 CFR 679.4(k).
                                               Basically, an applicant must                               A person holding a transferable                        Although no citizenship standards
                                               demonstrate that—                                       charter halibut permit may transfer the                will apply to the initial allocation of
                                                  • It participated during either the                  permit to another person (individual or                charter halibut permits, a person
                                               qualifying period or the recent                         non-individual entity) with certain                    receiving a charter halibut permit by
                                               participation period;                                   limitations. Non-transferable charter                  transfer must be a United States (U.S.)
                                                  • It had a specific intent to participate            halibut permits may not be transferred.                citizen. Issuance of charter halibut
                                               in the period, either the qualifying                    Transferability of permits will allow                  permits to non-U.S. citizens is not
                                               period or the recent participation                      limited new entry into the charter                     authorized by section 773c(c) of the
                                               period, that the applicant missed;                      halibut fishery while preventing an                    Halibut Act. The Secretary, however,
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                                                  • The circumstance that thwarted the                 uncontrolled expansion of the charter                  has general responsibility and authority
                                               intended participation was (a)                          halibut fishery.                                       to adopt regulations as may be necessary
                                               unavoidable, (b) unique to the                             NMFS expects consolidation in the                   under section 773c(a) and (b) of the
                                               applicant, (c) unforeseen and                           charter halibut fishery as holders of                  Halibut Act. Therefore, the Secretary is
                                               unforeseeable;                                          non-transferable permits leave the                     exercising this authority in not applying
                                                  • The applicant took all reasonable                  fishery and as charter halibut operators               citizenship standards for the initial
                                               steps to overcome the problem; and                      acquire multiple permits by transfer.                  allocation of charter halibut permits. A


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                                               558                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               transfer to an individual will be                       programs for recreational use by service               (see Table 21 to part 679) that meet the
                                               approved only if the individual is a U.S.               members.                                               Council’s criteria and will qualify for
                                               citizen, and a transfer to a corporate                     Community charter halibut permit.                   community charter halibut permits
                                               entity will be approved only if it is a                 One or more community charter halibut                  issued to CQE(s) representing them. To
                                               U.S. business with at least 75 percent                  permits may be issued to Community                     add or subtract a community from the
                                               U.S. citizen ownership of the business.                 Quota Entities (CQEs) representing                     proposed list will require separate
                                               This rule adopts the 75 percent U.S.                    specified communities that do not                      Council action and a regulatory
                                               ownership criterion for a U.S. business                 currently have a fully developed charter               amendment.
                                               from the American Fisheries Act (111                    halibut fleet. The CQE concept was                        Military charter halibut permit. This
                                               Stat. 2681, Oct. 21, 1998), which is a key              developed by the Council originally to                 action provides for special permits for
                                               piece of Federal legislation designed to                help rural communities become more                     charter vessels operated by any U.S.
                                               Americanize the fleet fishing off                       involved in the commercial fisheries for               Military MWR program in Alaska. The
                                               American waters.                                        halibut and sablefish (84 FR 23681,                    only MWR program in Alaska that
                                                  A nontransferable permit cannot be                   April 30, 2004). CQEs are defined in                   currently offers recreational charter
                                               transferred from the name of the                        existing regulations at 50 CFR 679.2.                  halibut fishing to service members is the
                                               individual once the individual dies. A                     A CQE representing a community or                   Seward Resort based at Fort Richardson
                                               nontransferable permit cannot be                        communities in Area 2C can receive a                   in Anchorage, Alaska. To operate a
                                               transferred from a non-individual                       maximum of four community charter                      charter vessel, the MWR program must
                                               permit holder (a corporation,                           halibut permits for each eligible                      obtain a military charter halibut permit
                                               partnership, or other entity) if the non-               community the CQE represents. A CQE                    by application to NMFS. Each military
                                               individual permit holder dissolves or                   representing a community or                            charter halibut permit will be non-
                                               changes. This rule incorporates the                     communities in Area 3A can receive a                   transferable and valid only in the
                                               definition of ‘‘change’’ in a corporation               maximum of seven community charter                     regulatory area designated on the
                                               or partnership from the IFQ program at                  halibut permits for each eligible                      permit. NMFS reserves the right to limit
                                               50 CFR 679.42(j)(4)(i). This paragraph in               community it represents. The larger                    the number of these permits.
                                               the IFQ regulations defines ‘‘a change’’                number of community permits allowed
                                               for corporations, partnerships, or other                in Area 3A reflects the larger resource                Consistency With Halibut Act
                                               non-individual entity to mean ‘‘the                     base in that area. A community charter                    As described at the beginning of this
                                               addition of any new shareholder(s) or                   halibut permit will have an angler                     preamble, this action is authorized by
                                               partner(s), except that a court appointed               endorsement of six and will be non-                    the Halibut Act at section 773c. Section
                                               trustee to act on behalf of a shareholder               transferable.                                          773c(c) specifically authorizes the
                                               or partner who becomes incapacitated is                    In addition to community charter                    Council to develop and the Secretary to
                                               not a change in the corporation,                        halibut permits, a CQE may acquire                     approve limited access regulations
                                               partnership, association, or other non-                 charter halibut permits by transfer. A                 applicable to nationals or vessels of the
                                               individual entity.’’                                    unique excessive share limit will apply                United States or both. Such regulations
                                                  These limitations on the transfer of                 to each CQE in Area 2C of a maximum                    are required by this section of the
                                               charter halibut permits will be made                    of four charter halibut permits for each               Halibut Act to be consistent with four
                                               effective by a requirement for NMFS                     eligible community the CQE represents                  basic standards. The following
                                               approval for all transfers. No transfer of              in that area. The combined permit limit                discussion summarizes these statutory
                                               a permit will be effective unless it is                 for a CQE in Area 2C is four community                 standards and the rationale used by the
                                               first approved by NMFS. A transfer                      charter halibut permits plus four charter              Secretary in approving the Council’s
                                               application provided by NMFS is                         halibut permits for an overall limit of                recommendation and this rule
                                               required to be completed by the person                  eight permits per eligible community.                  implementing a limited access system
                                               transferring and the person receiving the               Similarly, the excessive share limit for               for charter vessels in the guided sport
                                               transferred permit. Completion of the                   a CQE in Area 3A is a combined permit                  fishery for halibut in IPHC regulatory
                                               transfer application and examination of                 limit of seven community charter                       Areas 2C and 3A.
                                               it by NMFS will assure that the                         halibut permits plus seven charter                        Section 773c(c) of the Halibut Act
                                               excessive share and citizenship                         halibut permits for an overall limit of 14             requires limited access regulations to
                                               requirements of this rule are                           permits per eligible community.                        be—
                                               maintained, and that non-transferable                      A charter vessel fishing trip for                      • In addition to and not in conflict
                                               permits are dissolved on the death or                   halibut that is authorized by a                        with regulations adopted by the IPHC;
                                               change of the permit holder and will not                community charter halibut permit is                       • Non-discriminatory between
                                               be transferred to a new entity.                         required to either begin or end within                 residents of different States;
                                               Special Permits
                                                                                                       the community designated on the                           • Consistent with the limited entry
                                                                                                       community charter halibut permit. This                 criteria set forth in 16 U.S.C 1853(b);
                                                 Two types of special permits are                      requirement will apply only to                         and
                                               provided by this action for limited                     community charter halibut permits and                     • Fair and equitable to all fishermen,
                                               guided sport fishing for halibut outside                not to any additional charter halibut                  based on the rights and obligations in
                                               of the requirements for charter halibut                 permits that a CQE may acquire by                      Federal law, reasonably calculated to
                                               permits. First, community charter                       transfer.                                              promote conservation, and carried out
                                               halibut permits are intended to allow                      The Council intended to limit the                   in such a manner that no particular
                                               development of a charter vessel fishery                 benefits of community charter halibut                  individual, corporation, or other entity
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                                               in certain rural communities that do not                permits to rural communities that have                 acquires an excessive share of halibut
                                               have a developed charter vessel                         an emerging but not a fully developed                  fishing privileges.
                                               industry. Second, a military charter                    charter vessel fleet. Instead of listing in
                                               halibut permit will exempt from this                    regulations the criteria used by the                   No Conflict With IPHC Regulations
                                               limited access system charter vessels                   Council in selecting community                            Regulations governing halibut
                                               operated by the U.S. Military’s Morale,                 eligibility, this rule simply specifies                fisheries that are recommended by the
                                               Welfare and Recreation (MWR)                            those communities in Areas 2C and 3A                   IPHC are accepted or rejected on behalf


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             559

                                               of the United States by the Secretary of                daily bag and possession limits.                       must prevent overfishing while
                                               State, with the concurrence of the                      Exceptions to the filleting prohibition                achieving optimum yield. This is one of
                                               Secretary, pursuant to section 773b of                  also are provided at section 28.                       ten national standards established by
                                               the Halibut Act. Accepted IPHC                          Regulations in this action are in                      the Magnuson-Stevens Act with which
                                               regulations are published as annual                     addition to, and not in conflict with, the             any fishery management plan (FMP) or
                                               management measures pursuant to 50                      IPHC regulations at section 28.                        regulation implementing an FMP must
                                               CFR 300.62. The current annual                                                                                 be consistent.
                                                                                                       No Discrimination Between Residents of                    The U.S. halibut fisheries are not
                                               management measures were published
                                                                                                       Different States                                       managed under an FMP because the
                                               in the Federal Register on March 19,
                                               2009 (74 FR 11681). IPHC regulations                       Regulations in this action do not                   halibut fisheries are governed under the
                                               affecting sport fishing for halibut and                 discriminate between residents of                      authority of the Halibut Act, not the
                                               charter vessels in Areas 2C and 3A may                  different states. All charter business                 Magnuson-Stevens Act. The Halibut Act
                                               be found in sections 3, 25, and 28 of the               owners are treated the same regardless                 does not require the U.S. halibut
                                               IPHC regulations (74 FR 11681, March                    of their residency with respect to their               fisheries to be managed under an FMP.
                                               19, 2009).                                              eligibility to receive an initial allocation           Therefore, specification of optimum
                                                  The IPHC regulations at section 3 of                 of a charter halibut permit or a transfer              yield for halibut is not required by
                                               the annual management measures                          of a charter halibut permit. Likewise,                 statute and has not been determined.
                                               include definitions of terms, some of                   neither the community charter halibut                  Nevertheless, the IPHC takes a
                                               which are related to this action, such as               permit nor the military charter halibut                conservative approach in setting the
                                               ‘‘charter vessel’’ and ‘‘sport fishing.’’               permit is restricted in terms of the State             commercial fishery catch limits for the
                                               This action removes a different                         of residency of the person who will use                areas in and off Alaska while leaving
                                               definition of ‘‘charter vessel’’ from 50                the permit. Charter vessel anglers who                 economic and social balance questions
                                               CFR 300.61 that could have raised a                     receive sport fishing guide services from              to the Council. In essence, IPHC
                                               conflict question. The definition of the                businesses affected by this rule also are              biologists determine a biologically
                                               term ‘‘charter vessel’’ at 50 CFR 300.61                not discriminated against in terms of the              acceptable level of harvest from all
                                               resulted from a final rule published                    State of their residence. Such anglers                 sources of halibut mortality, estimate
                                               September 24, 2008 (73 FR 54932), for                   will have the same opportunity to                      the anticipated harvest from all non-
                                               purposes of a prohibition against using                 contract with businesses that possess                  commercial sources of fishing mortality,
                                               a charter vessel for subsistence fishing                charter halibut permits regardless of the              subtract the latter from the former, and
                                               for halibut. This action integrates the                 location of the angler’s residence.                    set a commercial fishery catch limit
                                               definition into the prohibition language                                                                       based on the remainder. The overall
                                               to which it directly applies at 50 CFR                  Consistency With Limited Entry Criteria                harvest rate targeted by the IPHC is 20
                                               300.66(i) to clarify that the definition                   The limited entry criteria referred to              percent of the exploitable biomass. The
                                               does not apply universally. The                         in section 773c(c) of the Halibut Act                  realized rate in recent years, however,
                                               universal definition of ‘‘charter vessel’’              appear at section 303(b)(6) of the                     has been substantially above the
                                               will continue to be that used by the                    Magnuson-Stevens Fishery                               targeted harvest rate. Therefore, to the
                                               IPHC and appearing in the annual                        Conservation and Management Act                        extent that the limited access system
                                               management measures. Hence, no                          (Magnuson-Stevens Act, 16 U.S.C. 1801                  established by this rule can stabilize the
                                               conflict is found between this action                   et seq.). These criteria appear under the              halibut harvest by the charter halibut
                                               and the IPHC regulations concerning                     heading of discretionary provisions for                fishery, it will contribute to the
                                               this definition.                                        the Council and Secretary, and they                    achievement of the overall target harvest
                                                  The IPHC regulations at section 25 of                read, and are discussed in turn, as                    rate of halibut.
                                               the annual management measures                          follows:)                                                 Present participation. The Council
                                               specify the legal gear for sport fishing                   (b) Discretionary provisions. [The Council          took into account present participation
                                               for halibut, specify which halibut count                or Secretary] with respect to any fishery,             in the charter halibut fisheries as it
                                               toward the daily bag limit, and prohibit                may—                                                   considered alternative participation
                                               possession of halibut on board a vessel                    (6) Establish a limited access system for the       criteria. The Council took its action to
                                               while fishing in a closed area and when                 fishery in order to achieve optimum yield if,          recommend this rule to the Secretary on
                                               other fish or shellfish on board the                    in developing such a system, the Council and           March 31, 2007. At that time, the most
                                               vessel are intended for commercial use.                 the Secretary take into account—                       recent information on participation in
                                               Section 25 also prohibits halibut caught                   (A) Present participation in the fishery;           these fisheries was from 2004 and 2005
                                                                                                          (B) Historical fishing practices in, and
                                               by sport fishing from being offered for                 dependence on, the fishery;                            ADF&G saltwater charter vessel
                                               sale, sold, traded, or bartered. Finally,                  (C) The economics of the fishery;                   logbooks. Logbook data from
                                               section 25 makes an operator of a                          (D) The cultural and social framework               participation in 2006 was not yet
                                               charter vessel liable for any violation of              relevant to the fishery and any affected               available for the Council’s Analysis (see
                                               the IPHC regulations by a passenger on                  fishing communities;                                   ADDRESSES). In addition, the ADF&G
                                               board the vessel. Regulations in this                      (F) The fair and equitable distribution of          logbook data were not specific to charter
                                               action are in addition to, and not in                   access privileges in the fishery; and                  vessel fishing trips targeting halibut, per
                                               conflict with, the IPHC regulations at                     (G) Any other relevant considerations.
                                                                                                                                                              se, but indicated ‘‘bottomfish’’ fishing
                                               section 25.                                               Optimum yield. This term is defined                  instead. However, the predominate
                                                  The IPHC regulations at section 28 of                in the Magnuson-Stevens Act at section                 bottomfish targeted in Alaska saltwater
                                               the annual management measures                          3(33) in terms of providing the greatest               sport fisheries is halibut. Hence,
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                                               establish sport fishing rules specific to               overall benefit to the Nation, and                     bottomfish was assumed to be a
                                               Convention waters in and off of Alaska.                 prescribed on the basis of maximum                     reasonable proxy for halibut fishing.
                                               Specifically, these regulations specify                 sustainable yield as reduced by any                    Further, the Council chose to accept any
                                               the sport fishing season, daily bag limit               relevant economic, social, or ecological               ADF&G saltwater logbook entry
                                               of halibut per person, the possession                   factor. Also, at section 301(a)(1), the                indicating a bottomfish statistical area,
                                               limit, and a prohibition against filleting              Magnuson-Stevens Act states that                       rods, or boat hours as evidence of
                                               halibut to support enforcement of the                   conservation and management measures                   participation during 2004 and 2005. The


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                                               Council was aware that this would                       approved) implement the                                better measure of participation in the
                                               result in a liberal estimate of                         recommendation with Federal                            charter halibut fisheries than are pounds
                                               participation in the charter halibut                    regulations, the entry of new charter                  of halibut caught and retained. Hence,
                                               fisheries, but this decision was                        halibut fishing effort during this time                the Council used logbook fishing trips
                                               reasonably based on the best available                  could significantly change the halibut                 as a measure of participation in the
                                               information. With this understanding,                   harvesting capacity from when the                      charter halibut fisheries.
                                               the Council proceeded to consider                       Council’s policy decision was made in                     Further, the Council determined the
                                               alternative levels of participation, in                 March 2007. Specifying minimum                         level of minimum participation in both
                                               terms of numbers of logbook fishing                     participation criteria in a recent                     years—the historical, 2004 or 2005, and
                                               trips ranging from 1 to 20 trips or more,               participation year in addition to a                    present participation, 2008—indicated a
                                               as an indication of participation during                qualifying year served the purpose of                  reasonable dependence on the charter
                                               2004 and 2005.                                          discouraging new entry into the affected               halibut fishery. Using participation in a
                                                  The Council has recommended, and                     charter halibut fisheries during the                   past and a recent year together
                                               the Secretary has approved, several                     intervening years.                                     demonstrates dependence on the fishery
                                               other limited access systems before this                   The Council and the Secretary                       to a greater extent than using only one
                                               action, and the Council knew that two                   provided further public notice to                      year of participation as a qualifying
                                               or three years could pass before its                    discourage prospective new entry into                  criterion. A charter halibut business
                                               recommendation for this limited access                  the charter halibut fisheries when the                 with a record of at least minimal
                                               system was fully reviewed, approved,                    Council acted to establish a control date              participation in both years likely
                                               and implemented. In developing this                     of December 9, 2005. The Council                       participated also in the intervening
                                               limited access system, the Council                      determined that anyone entering the                    years, and likely continues to
                                               addressed the potential of a rush of new                charter halibut fishery in and off Alaska              participate now. Therefore, these are the
                                               entrants into the charter halibut fishery               after this date would not be assured of                businesses that the Council decided
                                               during the period of time the Council                   future access to that fishery if a limited             should receive an initial allocation of
                                               and the Secretary worked to develop                     access system of management was                        charter halibut permits. On the other
                                               and implement the system by specifying                  developed and implemented under                        hand, charter halibut businesses that
                                               a minimum participation criterion in a                  authority of the Halibut Act. In addition              participated only in the historical
                                               recent participation period. The Council                to public announcement of this action at               period but not in the recent
                                               referred to this recent participation                   its meeting in December 2005, the                      participation period likely exited the
                                               period as the ‘‘year prior to                           Council also published this date in its                charter halibut industry before the
                                               implementation.’’ In 2007, the year of                  December 2005 and February 2006                        recent participation period and,
                                               Council action, the year prior to                       newsletters (http://                                   therefore, are no longer dependent on
                                               implementation was an unknown year                      www.alaskafisheries.noaa.gov/npfmc/                    the fishery. Conversely, charter halibut
                                               in the future. In the proposed rule (April              newsletters/newsletters.htm). The                      businesses that participated only in the
                                               21, 2009, 74 FR 18178), NMFS                            Secretary also published a notice of this              recent period but not in the historical
                                               interpreted the ‘‘year prior to                         date in the Federal Register on February               period likely entered the fishery after
                                               implementation’’ for practical purposes                 8, 2006 (71 FR 6442).                                  the control date. These businesses
                                               to mean the most recent year for which                     The third purpose served by the                     comprise a group of charter halibut
                                               participation data are available. The                   Council’s choice of present and                        participants that the Council and
                                               most recent year for which ADF&G                        historical participation years to qualify              Secretary specifically discouraged from
                                               saltwater log book data are available                   for an initial allocation of a charter                 entry by announcing that their
                                               now is 2008. Therefore, the Council’s                   halibut permit is to establish an                      participation would not necessarily be
                                               original Analysis of participation                      objective and measurable indicator of                  recognized (71 FR 6442, February 8,
                                               patterns was supplemented with 2008                     dependence on the fishery. The Council                 2006).
                                               logbook data indicating participation in                reasoned in developing this and several                   The Secretary has approved and
                                               the most recent year. This is currently                 other limited access systems that                      adopted this rational basis for taking
                                               the best information available on                       participation is a good indication of                  into account present participation.
                                               present participation in the charter                    dependence on the fishery. Fishermen                      Historical fishing practices. The
                                               halibut fisheries in IPHC Areas 2C and                  with a relatively greater participation in             Analysis took into account historical
                                               3A.                                                     a fishery likely have a relatively greater             fishing practices in and dependence on
                                                  The Council’s policy recommendation                  dependence on the fishery for their                    the charter halibut fisheries (see
                                               to grant charter halibut permits based in               livelihood than do other fishermen with                ADDRESSES). The Council examined the
                                               part on participation in at least two                   relatively less participation. The                     potential effects of several alternative
                                               years—one of the qualifying years, 2004                 difficult policy choice for the Council                minimum qualifying logbook trips
                                               or 2005, and the recent participation                   and Secretary is to determine where on                 during this period before making its
                                               year, 2008—served several purposes.                     the range, from little to large amount of              recommendation. As explained above,
                                               One was to comply with the Magnuson-                    participation, a decision should be                    the choice of minimum qualifying
                                               Stevens Act 303(b)(6) criteria of taking                made affecting future participation in                 logbook trips during this historical
                                               into account present and historical                     the fishery. The Analysis of the                       participation period in combination
                                               participation.                                          potential effects of alternative decisions             with those during the recent
                                                  The second purpose was to stabilize                  supports the ultimate policy choice (see               participation period (2008) was critical
                                               growth in the charter halibut fisheries,                ADDRESSES).                                            to a determination of dependence on the
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                                               a long-term objective of this limited                      For commercial fisheries,                           charter halibut fishery. Those charter
                                               access system. Due to the length of time                participation is often measured in                     halibut businesses that met the
                                               needed to develop a limited access                      pounds of the targeted fish species                    minimum logbook trip criteria were
                                               policy, conduct analyses of alternative                 landed. Charter vessel businesses,                     determined to be sufficiently dependent
                                               policies, consider public comments,                     however, primarily market a sport                      on the charter halibut industry to
                                               review and approve (or disapprove) a                    fishing experience rather than pounds of               warrant them receiving an initial
                                               Council recommendation, and (if                         fish caught. Logbook fishing trips are a               allocation of one or more charter halibut


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                                               permits. The Secretary has approved                     services may be independent tourists,                  hardships or unavoidable circumstances
                                               and adopted the Council’s rational basis                guests at lodges, or travelers on cruise               in qualifying for a charter halibut
                                               for taking into account historical fishing              ships. Charter vessel businesses may                   permit. The design and conditions for a
                                               practices in and dependence on the                      focus their business plan on sport                     charter halibut permit based on
                                               charter halibut fisheries.                              anglers wishing to catch halibut, but                  unavoidable circumstances are fully
                                                  Economics. The Council and the                       other business plans are possible given                described in the proposed rule
                                               Secretary have taken into account the                   the variety of reasons why an individual               published April 21, 2009 (74 FR 18178).
                                               economics of the charter halibut fishery.               may want to engage the services of a                      Fair and equitable distribution of
                                               The Analysis prepared by the Council                    charter vessel.                                        access privileges. The Council and the
                                               and supplemented and approved by the                       Cultural and social framework. The                  Secretary have taken into account the
                                               Secretary includes a Regulatory Impact                  Council and the Secretary have taken                   fair and equitable distribution of access
                                               Review (RIR) and Final Regulatory                       into account the cultural and social                   privileges to the halibut resource.
                                               Flexibility Analysis (FRFA) (see                        framework relevant to the charter                      Although this action may cause some
                                               ADDRESSES). These documents                             halibut fishery and affected fishing                   restructuring within the charter vessel
                                               respectively include analysis of                        communities. The Council received                      industry, no individual sport angler will
                                               potential costs and benefits and analysis               substantial public testimony during the                be prevented from having access to the
                                               of potential impacts on small entities as               early development of this rule which                   halibut resource for sport fishing. Sport
                                               defined by the Regulatory Flexibility                   influenced the design of elements                      fishermen wishing to fish for halibut on
                                               Act. This Analysis contains information                 included for Secretarial consideration.                a charter vessel likely will be able to
                                               describing the principal sectors that fish              The Secretary in turn has received                     hire an operator or guide with a charter
                                               for halibut and incorporates earlier                    public comments on cultural and                        halibut permit as easily after the
                                               descriptions by reference. Each of the                  socioeconomic aspects of this rule, has                implementation of this rule as was done
                                               components of the preferred alternative                 considered these comments and                          before that time.
                                               is analyzed separately in the RIR. The                  responded to them below. The Analysis                     Further, persons wishing to enter the
                                               impacts of the preferred alternative, and               of alternatives (see ADDRESSES) reflects               charter vessel industry will be able to do
                                               two other significant alternatives, on                  this consideration by finding numerous                 so. This rule does not prevent any
                                               user industry and consumer groups in                    communities with little charter vessel                 person from entering the charter vessel
                                               the commercial and charter halibut                      activity while a few communities have                  industry or becoming an operator of a
                                               fisheries are compared in the RIR. A                    a well-established charter vessel                      charter vessel. An operator or business
                                               FRFA provides an analysis of the                        industry, as indicated by the numbers of               with a halibut fishing clientele, but that
                                               impacts of the preferred alternative on                 vessels that terminated charter vessel                 does not qualify for an initial allocation
                                               small entities. The Council accepted                    trips in coastal communities during the                of one or more charter halibut permits,
                                               testimony from the public, much of                      qualifying years. Hence, this action                   would have to obtain a transferable
                                               which addressed economic concerns.                      supports limited development of a                      charter halibut permit by transfer.
                                               NMFS has supplemented the Analysis,                     charter halibut fishery in specific rural              Alternatively, a charter vessel business
                                               prepared for the Council’s decision-                    communities through a special                          that had such minimal participation that
                                               making and to accompany the                             community charter halibut permit                       it does not qualify for a charter halibut
                                               publication of the proposed rule, with                  program.                                               permit under the Council’s qualification
                                               an updated analysis of the impacts of                      Community charter halibut permits                   criteria could change its business model
                                               the preferred alternative in light of                   will be issued under this rule at no cost              to one that does not involve fishing for
                                               specification of the recent participation               to CQEs representing communities that                  halibut. Although this rule does not
                                               period (see ADDRESSES). This                            do not currently have a fully developed                prevent most persons from entering the
                                               information was not previously                          charter halibut fleet. The CQE provision               charter halibut fishery, those persons
                                               available. NMFS accepted and evaluated                  was previously developed by the                        that receive an initial allocation of
                                               comments on the proposed rule, many                     Council for the IFQ program to help                    charter halibut permits will have a
                                               of which raised economic issues. The                    certain rural communities become more                  competitive advantage over those that
                                               summary of public comments and                          involved in the commercial fisheries for               will have to pay for transfer of these
                                               NMFS’s responses to them may be                         halibut and sablefish. In this action, the             permits. The rationale for making a
                                               found below.                                            CQE provision serves the same purpose                  distinction between these two groups is
                                                  Capability to engage in other fisheries.             for the development of the charter                     to end the opportunities for unlimited
                                               The Council and the Secretary have                      vessel industry based in any of 18 rural               growth in charter vessel operations that
                                               taken into account the capability of                    communities in Area 2C and 14 rural                    may fish for halibut by establishing a
                                               vessels used in the guided sport fishery                communities in Area 3A. The purpose                    finite number of charter vessels
                                               for halibut to engage in other fisheries.               and design of the CQE provision is more                authorized for guided sport halibut
                                               The Analysis prepared by the Council,                   fully described in the proposed rule                   fishing based on the historical and
                                               supplemented and approved by the                        published April 21, 2009 (74 FR 18178).                present participation criteria outlined
                                               Secretary, includes a description of the                   The Council also recommended, and                   above. This action is intended to
                                               affected fleet and industry. In brief, the              the Secretary approved, another special                support the Council’s approved policy
                                               charter halibut industry provides                       permit for military recreation purposes.               of allocating the halibut resource among
                                               marine transportation and sport fishing                 This took into account the existence of                all fishing sectors and providing
                                               guide services to anglers wishing to                    morale, welfare, and recreation (MWR)                  continued participation by those
                                               catch halibut. Charter vessel businesses                programs operated by the U.S. military                 operations most dependent on the
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                                               provide these services also to anglers                  and their importance to the recreational               halibut resource.
                                               wishing to catch salmon, rockfish,                      opportunities afforded to military                        Other relevant considerations. The
                                               lingcod, and other bottomfish. In                       services.                                              Council and the Secretary have taken
                                               addition, charter vessel businesses may                    The Council and Secretary also have                 into account other factors to allow
                                               provide marine transportation for bird                  taken into account unique social and                   limited additional participation in the
                                               watching, whale watching, and general                   cultural aspects of the charter halibut                charter halibut fisheries than would
                                               sightseeing. Passengers using these                     fishery by providing for certain                       otherwise be allowed without certain


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                                               exceptions to the qualifying criteria.                  Fair and Equitable, Promotes                           history of charter vessel fishery
                                               First, an initial allocation of non-                    Conservation, and Avoids Excessive                     management concerns and limited
                                               transferable charter halibut permits will               Share                                                  access development published on
                                               be allocated to persons with a low level                  The Halibut Act at 16 U.S.C. 773c(c)                 February 8, 2006 [71 FR 6442], and
                                               of participation. The minimum number                    states the following:                                  April 29, 2009 [74 FR 18178]). These
                                               of logbook fishing trips in one of the                                                                         statements demonstrate that the Council
                                                                                                          If it becomes necessary to allocate or assign       was concerned about overcrowding of
                                               qualifying years—2004 or 2005—and in                    halibut fishing privileges among various
                                               the recent participation year—2008—is                   United States fishermen, such allocation
                                                                                                                                                              productive halibut grounds due to the
                                               five. Dependence on the halibut                         shall be fair and equitable to all such                growth of the charter vessel sector and
                                               resource will be difficult to demonstrate               fishermen, based upon the rights and                   that expansion of this sector may affect
                                               for charter vessel businesses that made                 obligations in Federal law, reasonably                 ‘‘the Council’s ability to maintain the
                                               only 5 to 14 logbook fishing trips,                     calculated to promote conservation, and                stability, economic viability, and
                                               relative to those businesses that made                  carried out in such a manner that no                   diversity of the halibut industry, the
                                                                                                       particular individual, corporation, or other           quality of the recreational experience,
                                               15 or more trips. These low-                            entity acquires an excessive share of halibut
                                               participation charter businesses likely                                                                        the access of subsistence users, and the
                                                                                                       fishing privileges.
                                               are small and operate part time, but                                                                           socioeconomic well-being of the coastal
                                                                                                          The following discusses the                         communities dependent on the halibut
                                               together they supply a significant
                                                                                                       consistency of this action with each of                resource.’’
                                               market for charter vessel anglers.
                                                                                                       these three standards.                                    Finally, the guidelines to National
                                               Excluding the low-participation charter                    Fair and equitable. The ‘‘fair and
                                               businesses from initial allocation of                                                                          Standard 4 state that an allocation may
                                                                                                       equitable’’ requirement in the Halibut                 impose a hardship on one group if it is
                                               charter halibut permits could have                      Act quoted above is substantially the                  outweighed by the total benefits
                                               constrained charter vessel angler                       same as the ‘‘fair and equitable’’                     received by another group or groups.
                                               opportunities. Allowing low-                            requirement found at 16 U.S.C.                         ‘‘An allocation need not preserve the
                                               participation charter businesses to                     1851(a)(4), i.e., National Standard 4 of               status quo in the fishery to qualify as
                                               qualify for transferable charter halibut                the Magnuson-Stevens Act. The only                     ‘fair and equitable,’ if a restructuring of
                                               permits, however, would have created a                  difference is the addition of the word                 fishing privileges would maximize
                                               large latent capacity to expand charter                 ‘‘halibut’’ before ‘‘fishing privileges’’ in           overall benefits’’ (50 CFR
                                               vessel angler opportunities. Hence,                     the provision in 16 U.S.C. 773c(c).                    600.325(c)(3)(i)(B)). In this action, the
                                               these low-participation charter                         Because of this similarity, the National               Council and NMFS found that the total
                                               businesses are allowed to qualify for                   Standard 4 guidelines promulgated by                   benefits to the charter halibut fishery
                                               non-transferable charter halibut permits                NMFS help to illustrate why this action,               will be increased relative to the status
                                               to continue their current operations but                even though it is taken under the                      quo. The hardship of not qualifying for
                                               not provide a source for significant                    Halibut Act and not the Magnuson-                      an initial allocation of a charter halibut
                                               expansion of charter halibut fishing in                 Stevens Act, meets the statutory                       permit will be borne by those who
                                               the future.                                             requirement. An allocation of fishing                  entered the charter halibut fishery after
                                                  Second, consideration of unavoidable                 privileges should be rationally                        2005 despite the Council’s control date
                                               circumstances is specifically recognized                connected to the achievement of                        notice that such persons would not be
                                               by the Council and the Secretary. Such                  optimum yield or the furtherance of a                  assured of future access to this fishery
                                               circumstances must have been unique to                  legitimate fishery management objective                if a limited access system is
                                               a particular person, unforeseen and                     under the guidelines to National                       implemented (71 FR 6442, February 8,
                                               unavoidable, and must have prevented                    Standard 4 (50 CFR 600.325(c)(3)(i)(A)).               2006). Overall benefits of this rule,
                                               a potential participant in the charter                  The Council and NMFS have articulated                  however, will accrue to those businesses
                                               halibut fishery from participation as                   a legitimate objective for this action,                in the charter halibut fishery that were
                                               intended during either the qualifying or                that is, to be a step toward establishing              established and participating during the
                                               recent participation years. This                        a comprehensive program of allocating                  qualifying and recent participation
                                               hardship provision allows for an                        the halibut resource among the various                 years.
                                                                                                       halibut fisheries (guided and unguided                    Promotes conservation. Although
                                               appeals process that may result in the
                                                                                                       recreational, commercial, and                          biological conservation of the halibut
                                               potential allocation of non-transferable
                                                                                                       subsistence). To accomplish this                       resource is not the principal purpose of
                                               or transferable charter halibut permits
                                                                                                       objective, the Council and NMFS found                  this rule, it will promote conservation
                                               that would otherwise be denied. A
                                                                                                       a need to stabilize growth in the charter              by fostering a more easily managed
                                               special military service hardship
                                                                                                       halibut sector.                                        charter halibut fishery. When any
                                               provision was included for a charter                       Further, the guidelines to National                 fishery resource is fully subscribed
                                               halibut permit applicant that meets the                 Standard 4 acknowledge that inherent                   among the various fishery sectors using
                                               participation requirement during the                    in an allocation is the advantaging of                 it, the uncontrolled growth in one sector
                                               recent participation period but not                     one group to the detriment of another.                 will disadvantage the other sectors. The
                                               during the qualifying period due to U.S.                The motive for taking a particular                     Analysis (see ADDRESSES) indicates that
                                               military service.                                       allocation should be justified in terms of             the charter sector is the second largest
                                                  Finally, the Council and Secretary                   fishery management objectives;                         (after the commercial fishery) of all the
                                               allowed an exemption for charter                        otherwise, the disadvantaged user                      sectors using the halibut resource in the
                                               vessels operated by any U.S. Military                   groups or individuals will suffer                      two IPHC regulatory areas to which this
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                                               MWR program in Alaska. A special non-                   without cause (50 CFR                                  rule applies. Whereas growth of the
                                               transferable military charter halibut                   600.325(c)(3)(i)(A)). The fishery                      commercial fishery sector is constrained
                                               permit will be issued to a MWR program                  management objective of this action has                by the IFQ program and catch limits
                                               without regard for previous                             been articulated by the Council and                    stipulated by the IPHC, growth in the
                                               participation in the charter halibut                    NMFS, starting with the 1995 problem                   non-commercial sectors is not similarly
                                               fisheries. NMFS reserves the right to                   statement by the Council and                           constrained. This presents no fishery
                                               limit the number of these permits.                      continuing through this final rule (cf.,               management problem provided that all


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             563

                                               of the non-commercial sectors exhibit                   at the time of initial allocation of                   participation on which NMFS is basing
                                               relatively static growth over time such                 permits.                                               this rule;
                                               that year-to-year assumptions about                                                                               • While obtaining all relevant
                                                                                                       Comments and Responses                                 licenses and permits to operate a charter
                                               their harvest prove to be correct. The
                                               charter halibut fishery has grown in                      This action was published as a                       business, there was no notification by
                                               recent years, however, depending on the                 proposed rule on April 21, 2009 (74 FR                 the licensing agencies that rules were
                                               demand for halibut by charter vessel                    18178), and public comments on it were                 being made that would retroactively
                                               anglers. Although this rule is not                      solicited until June 5, 2009. NMFS                     disallow charter operators from
                                               designed primarily to limit the harvest                 received 166 comment submissions                       continuing to operate their businesses;
                                               by the charter halibut fisheries, it will               containing 157 unique comments. These                     • Many small business owners will
                                               make existing and future harvest                        comments were reviewed, organized                      not have the right to appeal under the
                                               restrictions more effective because                     into seven topical categories, and                     unavoidable circumstances provision as
                                               conservation gains from individual                      responded to as follows:                               the proposed rule states that an
                                               harvest restrictions will not be eroded                                                                        applicant must demonstrate that it had
                                               by unlimited growth in the fleet of                     Fairness and Legal Authority                           a specific intent to participate in the
                                               charter vessels fishing for halibut. In                    Comment 1: The proposed rule does                   qualifying period; and
                                               this manner, this rule will contribute to               not meet the National Standards for                       • The proposed rule clearly shows
                                               the achievement of the overall target                   Fishery Conservation and Management                    the Council’s intention to act favorably
                                               harvest rate of halibut established by the              as defined in the Magnuson-Stevens Act                 towards the charter vessels that
                                               IPHC.                                                   (16 U.S.C. 1851(a)(4)).                                operated during 2004 and 2005 by
                                                  Avoids excessive share. An excessive                    Response: This action is authorized                 excluding charter businesses that started
                                               share of halibut fishing privilege is not               by the Halibut Act at section 773c, not                operating between 2006 and 2009.
                                               defined in either the Halibut Act or in                                                                           Response: This rule is not illegal or
                                                                                                       the Magnuson-Stevens Act. Section
                                               the National Standard 4 guidelines. The                                                                        contrary to the U.S. Constitution. An ex
                                                                                                       773c(c) of the Halibut Act provides the
                                               latter states simply that an allocation                                                                        post facto law is a law passed after the
                                                                                                       requirements that must be met by the
                                               must deter any entity from acquiring an                                                                        occurrence of an event or action which
                                                                                                       Council and the Secretary when
                                               excessive share of fishing privileges,                                                                         retrospectively changes the legal
                                                                                                       developing and implementing
                                               and avoid creating conditions that foster                                                                      consequences of the event or action.
                                                                                                       regulations for halibut. The Secretary
                                               inordinate control by buyers and sellers                                                                       That is not the case with this rule. This
                                                                                                       has found this rule to be consistent with
                                               (50 CFR 600.325(c)(3)(iii)).                                                                                   rule does not make charter halibut
                                                                                                       this requirement of the Halibut Act as
                                                  This rule sets an excessive share                                                                           fishing that was legally performed after
                                                                                                       explained above under the heading
                                               standard of five charter halibut permits.                                                                      2005 and before the effective date of this
                                                                                                       ‘‘Consistency with Halibut Act.’’                      rule illegal, but instead establishes
                                               Existing businesses that initially qualify
                                                                                                          Comment 2: The Halibut Act of 1982,                 specific eligibility criteria for receiving
                                               for more than five permits will be able
                                                                                                       (at section 773c(c)) states that rules shall           a harvest privilege. Hence, this rule does
                                               to continue business at levels above this
                                                                                                       be fair and equitable and they shall not               not change the legal consequences of
                                               excessive share standard; however, they
                                                                                                       discriminate among participants.                       past participation in the charter halibut
                                               will be prevented from acquiring more
                                               permits than their initial allocation.                     Response: The Halibut Act at the                    fishery. Persons who entered the fishery
                                               Transfers of a permit or permits that                   section cited actually prohibits                       after 2005, however, had constructive
                                               will result in the person, business, or                 discrimination between residents of                    notice, published February 8, 2006 (71
                                               other entity receiving the permit(s)                    different States. This rule does not                   FR 6442), that they were not assured of
                                               holding more than five permits will not                 discriminate between residents of                      future access to the charter halibut
                                               be approved by NMFS with limited                        different States as the criteria for an                fishery if a management regime, such as
                                               exception.                                              initial allocation of charter halibut                  the one implemented by this rule, were
                                                  Some consolidation of charter halibut                permits applies to all applicants                      implemented.
                                               permits may occur under this rule, but                  regardless of the State in which they                     The Council and the Secretary
                                               will be limited by the five-permit                      reside. This action complies with the                  considered historical practices in the
                                               excessive share standard. Further, the                  requirements of the Halibut Act, as                    charter halibut fisheries in Areas 2C and
                                               number of businesses that are allowed                   discussed in the ‘‘Consistency with                    3A by looking at the number of charter
                                               an initial allocation of permits in excess              Halibut Act’’ section above.                           vessel businesses and vessels
                                               of this standard will not increase. A 10                   Comment 3: Several comments stated                  participating in these fisheries, the
                                               percent ownership criterion will apply                  that the proposed rule is not fair and                 range in the number of logbook fishing
                                               to prevent a corporation from exceeding                 equitable because it requires applicants               trips made, and the number and
                                               the excessive share standard by owning                  to demonstrate participation in the                    distribution of communities in which
                                               or controlling subsidiary businesses                    halibut charter fisheries in 2004 or 2005              these fishing trips terminated in 2004
                                               each holding the maximum number of                      (historical participation period). The                 and 2005. These factors are reasonable
                                               permits. The 10 percent ownership                       comments note that the historical                      measures of dependence on the charter
                                               criterion is the same as that used for                  participation requirement illegally                    halibut fisheries. See also the discussion
                                               implementing the American Fisheries                     discriminates against businesses that are              of historical fishing practices above
                                               Act and defined at 50 CFR 679.2. Under                  currently in operation because:                        under the heading ‘‘Consistency with
                                               this definition, two entities are                          • The proposed rule would impose ex                 Halibut Act.’’
                                               considered the same entity if one owns                  post facto regulations, contrary to the                   Prior to this rule, NMFS has not
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                                               or controls 10 percent or more of the                   Constitution of the United States;                     implemented any licensing
                                               other. Hence, an excessive share of                        • The Magnuson-Stevens Act at 16                    requirements for operators of vessels
                                               privileges to operate charter vessels                   U.S.C. 1853(b)(6) states that when                     with one or more charter anglers
                                               fishing for halibut is prevented and the                implementing a limited entry program,                  onboard. However, the Council has a
                                               dominance of any businesses in the                      present participation and historical                   long history of developing management
                                               charter halibut fishery will not be                     practices must be considered. It does                  measures for the charter halibut fishery,
                                               allowed to increase any more than it is                 not say anything about historical                      as described in the preamble to the


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                                               proposed rule (74 FR 18178, April 21,                   businesses to grow by purchasing                       above for further discussion of how this
                                               2009), and the control date notice                      permits.                                               rule is consistent with all Halibut Act
                                               published February 8, 2006 (71 FR                          Response: Although alternative                      requirements.
                                               6442). Persons entering the charter                     programs might be found to be fair and                    Comment 6: A limited access program
                                               halibut fishery for the first time after                equitable and non-discriminatory, as                   on charter vessels is not a conservation
                                               2005 were on notice that their future                   required by the Halibut Act, this rule                 measure to protect the halibut but an
                                               access to that fishery was not assured.                 was developed by the Council to meet                   attempt to limit individuals from the
                                                  Regarding an appeal, all charter                     its stated objectives. The Council                     resource. Since halibut is a resource that
                                               halibut permit applicants have a right to               intended to recognize historical and                   belongs to all citizens, it is only
                                               an appeal under § 300.67(h)(6) of this                  recent participation by granting permits               reasonable that they should have the
                                               rule. However, if a charter vessel                      to charter businesses that demonstrate                 first opportunity to harvest what is
                                               business was not started until 2006 or                  consistent participation in and                        rightfully theirs. Charter operators
                                               later and cannot demonstrate that it                    dependence on the charter halibut                      afford citizens a reasonable opportunity
                                               intended to participate in prior years, it              fisheries. The Council also                            to catch fish. The people should have
                                               will not be able to meet the criteria for               recommended a higher participation                     the first opportunity to gather, and the
                                               the unavoidable circumstance                            requirement for transferable permits                   remains of the annual surplus can then
                                               exception. See the response to Comment                  than for non-transferable permits to                   be opened to commercial harvesting.
                                               109 for a discussion of the unavoidable                 balance its objective to reduce fishing                Citizens should not be limited from
                                               circumstances exception to the charter                  effort and its objective to minimize                   harvesting their resource until there is a
                                               halibut permit qualification                            disruption to the charter fishing                      conservation concern.
                                               requirements.                                           industry. The Council’s recommended                       Response: This rule is reasonably
                                                  The Council selected 2004 and 2005                   qualifying criteria for transferable                   calculated to promote conservation as
                                               as the qualifying years because those                   charter halibut permits will allow                     described above under the heading
                                               were the most recent years for which the                businesses to grow by purchasing                       ‘‘Consistency with Halibut Act.’’ NMFS
                                               Council had information on                              additional permits up to the excessive                 agrees that halibut are a public resource;
                                               participation in the charter halibut                    share limit of five charter halibut                    however, the limited access system
                                               fishery when it acted in early 2007. The                permits, which is consistent with the                  established by this rule does not limit
                                               Council did not select a larger number                  commenter’s suggestion. NMFS finds                     individual anglers from opportunities to
                                               of qualifying years because the normal                  that this rule meets the requirements of               access the halibut resource. This rule
                                               entry and exit from the charter halibut                 the Halibut Act (see discussion above                  limits the number of charter vessels in
                                               fishery from year to year could result in               under the heading ‘‘Consistency with                   the guided sport fishery for halibut in
                                               more charter halibut permits than                       Halibut Act’’).                                        only two of the 10 IPHC regulatory
                                               vessels participating in any one year                      Comment 5: The Council does not                     areas. The Analysis prepared for this
                                               with a qualifying period of too many                    have the authority to ban charter                      action (see ADDRESSES) estimates that
                                               years. The choice of combining                          businesses that began operating between                charter vessel capacity will be sufficient
                                               minimum participation during a                          2006 and 2009 from operating a guided                  to meet the demand for the number of
                                               qualifying year and the recent                          halibut fishing business, or to include                anglers who took guided charter vessel
                                               participation year further serves the                   rules that merely allocate the harvest                 trips in 2008 in Areas 2C and 3A (see
                                               purpose of limiting charter halibut                     level among users rather than reduce the               also response to Comments 21 and 43).
                                               permits to those businesses that have                   harvest level as required by agency                       Although charter vessels provide an
                                               demonstrated a long-term commitment                     goals.                                                 important means of access to the halibut
                                               to the charter halibut fishery and gives                   Response: The Halibut Act, at section               resource, they are not the only way that
                                               consideration to present participation                  773c(c), provides authority to the                     the public can access the resource. The
                                               and historical dependence, factors that                 Council and the Secretary to ‘‘develop                 commercial fishery provides access to
                                               must be considered pursuant to the                      regulations governing the United States                halibut to those who prefer to purchase
                                               Halibut Act.                                            portion of Convention waters, including                it in grocery stores or restaurants. The
                                                  Before developing eligibility criteria               limited access regulations, applicable to              subsistence fishery provides access to
                                               for the charter halibut limited access                  nationals or vessels of the United States              the halibut resource by those who
                                               system, the Council announced a                         or both’’ The Halibut Act, at 16 U.S.C.                qualify to conduct subsistence halibut
                                               control date of December 9, 2005, to                    773c(a) and (b), also provides the                     fishing. Non-guided recreational fishing
                                               provide notice to any person                            Secretary with general responsibility to               also is a source of public access to the
                                               contemplating entry into the charter                    carry out the Convention, the Halibut                  halibut resource. This rule does not
                                               halibut fishery after that date. A control              Act, and to adopt such regulations as                  constrain or limit any of these other
                                               date notice published in the Federal                    may be necessary. In reviewing this                    means of public access to the halibut
                                               Register on February 8, 2006 (71 FR                     rule, the Secretary has found that the                 resource. In fact, the catch limits
                                               6442), further indicated that future                    Council’s recommendation for this                      specified annually for the commercial
                                               access to the charter halibut fishery was               limited access system is consistent with               halibut fishery by the IPHC for areas in
                                               not necessarily assured to persons                      the Halibut Act (see the discussion                    and off of Alaska are set after estimated
                                               entering the fishery for the first time                 above under the heading ‘‘Consistency                  harvests by all other non-commercial
                                               after that date.                                        with Halibut Act’’).                                   removals are subtracted from the
                                                  Comment 4: One commenter                                Fishery management generally, and                   constant exploitation yield (see
                                               proposed changes to the moratorium to                   management of the halibut fisheries in                 discussion under ‘‘Management of the
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                                               make it fair, equitable, and non-                       particular, is not necessarily limited to              Halibut Fisheries’’ in the preamble to
                                               discriminatory. These changes included                  the direct control of harvests. Allocation             the proposed rule (74 FR 18178, April
                                               revising the charter halibut permit                     of fishing privileges also is specifically             21, 2009).
                                               qualification criteria to require                       authorized by the Halibut Act if the                      Comment 7: Commenter urged you to
                                               participation only in more recent years                 regulations that allocate fishing                      pass the proposed rule for the guided
                                               and making all charter halibut permits                  privileges meet certain criteria. See the              halibut fishery. All businesses need
                                               transferable to allow established                       ‘‘Consistency with Halibut Act’’ section               stable, predictable regulation to plan


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                            565

                                               and prosper. To foster socioeconomic                    with unrealized development potential                  in a manner that is consistent with the
                                               stability in our coastal communities and                and has provided for special community                 requirements of the relevant statutes.
                                               for the benefit of all Americans and the                charter halibut permits. These special                 The Council has the authority to
                                               resource, I urge you to proceed forward                 permits are intended for start-up charter              develop regulations to address
                                               now with implementation of a long-                      vessel operations in communities that                  allocation issues among different
                                               term, market-based solution that will                   do not have highly developed charter                   domestic sector users of halibut in and
                                               put commercial setline and charter                      fisheries and do not have the same                     off the waters of Alaska, including the
                                               sectors on the same playing field with                  participation criteria as transferable and             commercial and guided sport fisheries.
                                               equitable rules.                                        non-transferable charter halibut permits.                 This final rule does not unfairly favor
                                                  Response: NMFS agrees that this                      Hence, this rule recognizes variations in              the commercial sector. In December
                                               action establishing a limited access                    charter halibut fishing effort among                   2005 the Council appointed a Charter
                                               system for the charter halibut fisheries                communities and provides for                           Halibut Stakeholder Committee to
                                               in Areas 2C and 3A will contribute to                   communities with potential for charter                 address alternatives for long-term
                                               stabilizing these charter halibut fisheries             industry growth.                                       management of the charter halibut
                                               and communities with charter vessel                        Second, this rule focuses on the                    fishery. The committee had
                                               activity. NMFS supports long-term                       guided charter halibut fisheries in Areas              representation from the sport guided,
                                               market based solutions to allocation                    2C and 3A instead of the non-guided                    unguided, and commercial sectors. The
                                               problems, such as this program.                         sport fisheries in these areas because the             Council recommended a charter halibut
                                                  Comment 8: The Council should                        harvests of the former have been                       permit program that was based, in large
                                               develop an FMP for halibut and NMFS                     persistently greater and growing over                  part, on recommendations from the
                                               should explain the legal basis behind                   time relative to the latter. However,                  Charter Halibut Stakeholder Committee.
                                               the absence of an FMP for halibut. An                   recreational anglers remain free to                    Additionally, the draft EA/RIR/IRFA
                                               FMP would assist the Council in                         choose between guided and unguided                     prepared for the charter halibut
                                               recognizing the differences among user                  sport fishing. See also the response to                moratorium (see ADDRESSES was
                                               groups and treating all user groups                     Comments 6, 21, and 43.                                available for public review throughout
                                               equally.                                                   Comment 9: Several comments noted                   program development and Council
                                                  Response: The legal basis for not                    that a limited entry program being                     meetings are open to the public. The
                                               having an FMP for Pacific halibut                       promulgated under the Halibut Act
                                                                                                                                                              Council received oral and written
                                               fisheries is that Pacific halibut fisheries             must meet the section 303(b)(6)
                                                                                                                                                              testimony on the charter halibut
                                               are managed under the Halibut Act and                   standards of the Magnuson-Stevens Act.
                                                                                                                                                              moratorium. Some of the testimony in
                                               the Halibut Act does not require the                    To ensure that the standards are met,
                                               Council to develop an FMP. The                                                                                 support of the charter halibut
                                                                                                       the comments recommended that NMFS
                                               comment correctly points out that                                                                              moratorium came from charter
                                                                                                       explicitly address each standard and
                                               section 773c(c) of the Halibut Act also                                                                        operators. Furthermore, NMFS reviewed
                                                                                                       explain how each standard is met in the
                                               provides authority to develop                                                                                  the Council’s recommendations for
                                                                                                       final rule.
                                               regulations to the regional fishery                        Response: NMFS agrees and addresses                 consistency with the Halibut Act, the
                                               management councils, but that this is                   each standard as part of the discussion                Convention, and other applicable law
                                               limited to regulations ‘‘which are in                   above under the heading ‘‘Consistency                  and found the current program to be
                                               addition to and not in conflict with                    with Halibut Act.’’                                    consistent with those requirements.
                                               regulations adopted by the [IPHC].’’                       Comment 10: There is a commercial                      Comment 11: An IFQ or quota for
                                               Hence, the Halibut Act speaks only to                   bias in the IPHC and the Council. The                  halibut charter fishing is not an
                                               the development of regulations, and not                 IPHC and Council have supported the                    appropriate management solution.
                                               to the development of an FMP. NMFS                      commercial sector to the detriment of                     Response: This rule does not
                                               agrees that the Halibut Act’s reference to              the charter fleet. This creates concerns               implement an IFQ program for halibut
                                               the limited entry criteria at 16 U.S.C.                 about the impartiality of the Council                  charter fishing nor does it establish a
                                               1853(b)(6) applies to all halibut fishery               and raises questions as to whether the                 quota allocation for the guided charter
                                               regulations developed by the Council                    Council is making decisions solely to                  vessel sector or individual charter
                                               and approved by the Secretary under                     benefit the commercial sector. The                     operators. This action establishes a
                                               authority of the Halibut Act. These                     commercial sector has so many                          limited access system that limits the
                                               criteria are essential when                             representatives on the Council that it is              number of persons engaged in the
                                               contemplating any regulatory scheme                     impossible for guided charter operators                charter halibut fishery in Area 2C and
                                               that would allocate a fishery resource                  to get the Council to acknowledge their                Area 3A.
                                               among competing users. However, an                      suggestions, comments, or proposals to                    Comment 12: The allocation of
                                               FMP is not required to make these                       work with the commercial sector. Only                  halibut between the commercial and
                                               criteria effective in the regulatory                    the commercial sector is in favor of the               charter sectors is not fair and equitable.
                                               process.                                                moratorium for the guided charter                      The percentage allocation of the halibut
                                                  An FMP is not needed to recognize                    sector.                                                guideline harvest level (GHL) to the
                                               differences among user groups and to                       Response: This action is being taken                recreational fisherman in Alaska is
                                               treat all those groups fairly and                       by NMFS based on a recommendation                      grossly unfair. If this percentage were
                                               equitably. Regardless of an FMP, halibut                by the Council. Actions by the IPHC are                increased there would not be a need for
                                               fishery regulations must have a rational                evaluated and approved under a                         a limited charter fleet.
                                               basis for their effects. In developing this             different process. The process for                        Response: Adjustments to the GHL are
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                                               rule, the Council and the Secretary                     selecting Council members is set in                    outside the scope of this action. See the
                                               provided a rational basis which in part                 statute and employs mechanisms to                      response to Comments 34 and 35. This
                                               is summarized as follows.                               assure representation of the various                   rule is fair and equitable as required by
                                                  First, this rule recognizes that,                    States represented on the Council and                  the Halibut Act (see discussion above
                                               although there are communities with                     fair and balanced apportionment to the                 under heading ‘‘Consistency with
                                               highly developed charter halibut                        extent practicable. The Council makes                  Halibut Act’’). Also, harvest amounts by
                                               fisheries, there are also communities                   decisions through a public process, and                all sectors do not have to be equal for


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                                               regulations to meet the fair and                           Response: NMFS agrees that this rule                or that some operations hire non-Alaska
                                               equitable standard.                                     has an allocation effect which the                     residents is not relevant to this final
                                                  Comment 13: NMFS should limit                        Council and the Secretary see as                       rule. The Halibut Act prohibits the
                                               commercial halibut catch instead of                     necessary and which is authorized by                   Secretary from approving halibut
                                               limiting the number of charter                          the Halibut Act at section 773c(c).                    regulations that discriminate between
                                               operators. According to the Council’s                   According to the proposed rule (at 74                  residents of different States. This rule
                                               problem statement, ‘‘overcrowding of                    FR 18178, April, 21, 2009), the intended               applies to all applicants for charter
                                               productive halibut grounds [is] due to                  effect of this rule is to ‘‘curtail growth             halibut permits and permit holders,
                                               the growth of the charter vessel sector.’’              of fishing capacity in the guided sport                regardless of their place of residence.
                                               However, a majority of the productive                   fishery for halibut.’’ NMFS does not                   Wages paid to the staff of charter vessel
                                               halibut grounds in Areas 2C and 3A are                  expect growth curtailment to result in                 operations and the required
                                               currently open to commercial halibut                    harvest curtailment, at least in the short             qualifications for operators of vessels
                                               harvesting. A 15 percent reduction in                   term. Any reduction in the harvest by                  with one or more charter anglers
                                               the commercial catch limit within 12                    the charter halibut sector during the                  onboard are outside the scope of this
                                               miles of shore could relieve the                        short term more likely will result from                action.
                                               Council’s concerns with overharvest.                    direct harvest controls, such as the daily                Finally, this rule does not create
                                               Instead of focusing on limiting the                     bag limit reduction for charter vessel                 permanent exclusive rights to operate in
                                               sport/charter industry, get the                         anglers in Area 2C this year (74 FR                    the charter halibut fishery. A permit is
                                               commercial boats that set miles of gear                 21194, May 6, 2009). Hence, increasing                 a privilege that can be revoked if the
                                               offshore where they belong and restrict                 the halibut harvest by the commercial                  permit holder violates specified
                                               the large IFQ longliners from fishing                   setline fishery is not the intent or                   conditions of the law. In addition,
                                               near coastal Alaska communities so they                 expected outcome of this rule.                         holders of transferable charter halibut
                                               don’t deplete near-shore halibut stocks                    The Council’s Charter Halibut                       permits are expected to transfer some
                                               that subsistence and sport users depend                 Stakeholder Committee developed most                   permits to new entrants to the charter
                                               on.                                                     elements of the charter vessel                         halibut fisheries. NMFS expects that
                                                  Response: This rule is intended to                   moratorium program and recommended                     over time, transferable permits will
                                               curtail growth of fishing capacity in the               it to Council. These elements were                     migrate to those operators and areas
                                               guided sport fishery for halibut, which                 designed to respond to the Council’s                   where they will be most efficiently
                                               is consistent with the Council’s problem                problem statement. The Council                         used. Non-transferable permits may be
                                               statement. Limited access systems are                   developed the program further after                    used by the business owner(s) to whom
                                               commonly used to limit the capacity of                  hearing public testimony on the subject.               they are initially issued but may not be
                                               fishing fleets that are in need of                      The Council subsequently                               transferred to another business or
                                               management to meet conservation and                     recommended it to the Secretary under                  operator. These permits will expire
                                               socioeconomic objectives as determined                  its Halibut Act authority to do so.                    when an individual permit holder dies.
                                               by the Council.                                            Comment 15: Charter boats should be                 If the permit holder is a non-individual
                                                  Further restrictions on the                          limited in Southeast Alaska. Too many                  entity, non-transferable permits issued
                                               commercial halibut fishery are outside                  vessels and operations are not owned by                to the business will expire when the
                                               the scope of this action. The problem                   Alaskans and these operations grew                     business changes as defined in
                                               statement referenced in the comment                     quickly while fishing opportunities                    regulation at § 679.42(j)(4)(i).
                                               refers to a problem statement adopted                   were available. This is particularly true                 Comment 16: The proposed halibut
                                               by the Council that guided its decision                 for operations with six to 30 vessels                  charter moratorium is unfair to the
                                               making during the 1995 through 2000                     (large operations) rather than small                   charter boat captains and to the clients
                                               period. The statement was provided in                   operations with one to three vessels.                  that spend money to come to Alaska and
                                               the proposed rule for this action to                    The large operations have no regard for                fish. The prices of charters have gone up
                                               demonstrate that the Council has                        the resource and hire help from down                   significantly in the past two years
                                               discussed and considered the expansion                  south and pay low wages. As most of                    because of high fuel prices. Now the
                                               of the guided sport charter vessel fishery              their captains are from down south as                  government will collect money for the
                                               for halibut since 1995. The problem                     well, and I question whether they are                  proposed halibut charter moratorium
                                               statement adopted by the Council that                   qualified to be guiding in a very                      permit. I am a small operator trying to
                                               led to this action can be found in the                  unforgiving environment. Why are we                    make a living taking people out fishing.
                                               executive summary of the Analysis                       rewarding this behavior by giving them                 The limited entry permit for halibut
                                               (ADDRESSES) and speaks to stabilizing                   ‘‘forever’’ rights and exclusivity to the              charter operators is just another way for
                                               the growth in the charter sector and                    fishery?                                               the government to collect money.
                                               addressing allocation issues; it does not                  Response: Sport fishing lodge                          Response: This rule does not establish
                                               mention overcrowding of productive                      operations with a large number of                      any fee on halibut charter businesses or
                                               halibut grounds.                                        charter vessels are as legitimately in                 operators to participate in the charter
                                                  Comment 14: Several comments noted                   business as are operations with a small                halibut moratorium program. Under this
                                               that this action is an allocation, and the              number of charter vessels. Both types of               action applicants for a charter halibut
                                               Halibut Act requires that allocations of                charter vessel operations provide a                    permit are not required to submit a fee
                                               fishing privileges must be fair and                     recreational service. The growth in                    with their application nor will a fee be
                                               equitable. The comments assert that the                 operations referred to by the comment                  charged to issue or transfer a charter
                                               proposed rule would limit the number                    may have been associated with growth                   halibut permit. If such fees are charged
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                                               of halibut charter operators in order to                in tourism and cruise ship visits to                   in the future, they will be established by
                                               benefit the commercial sector by                        Southeast Alaska; however, NMFS does                   a separate regulatory action.
                                               reducing the amount of halibut taken by                 not have information that identifies the                  This rule, however, does not affect the
                                               the charter sector. This is in direct                   specific reasons for growth in charter                 requirements for permits or other
                                               conflict with the fair and equitable                    vessel operations.                                     certifications by other State or Federal
                                               standard applicable to the allocation of                   The assertion that many charter vessel              agencies that charter halibut businesses
                                               fishing privileges.                                     operations are not owned by Alaskans                   must obtain to operate in Areas 2C or


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                            567

                                               3A and for which fees may be charged.                   not expected to constrain harvests, why                profits.’’ The statement makes clear that
                                               NMFS does not have information to                       is it being proposed?                                  although the charter halibut permit
                                               estimate the number of charter business                    Response: It is not possible to                     program will reduce competition from
                                               owners that may purchase charter                        determine the optimal amount of                        new entrants, the program is not
                                               halibut permits, a private transaction.                 capacity in the charter vessel sector                  expected to prevent competition within
                                               Also, NMFS does not have information                    with available data. The intended effect               the charter halibut sector. As discussed
                                               to estimate the cost of such transactions,              of this action is to curtail growth in                 in the response to Comments 21 and 43,
                                               or the effect of those costs on the prices              capacity. Although limited entry on the                NMFS anticipates that permit holders
                                               the charter operators will charge for                   number of vessels is a commonly used                   will have sufficient opportunities to
                                               their services (see also Section 2.8 of the             fishery management tool to limit                       ensure that capacity meets demand for
                                               Analysis at ADDRESSES).                                 capacity growth, it is an imprecise tool               halibut charters in Areas 2C and 3A.
                                                  Comment 17: The moratorium is                        because individual operators can                          Comment 21: The rule unfairly
                                               legally vulnerable.                                     increase capacity to increase effort over              restricts guided access to the resource
                                                  Response: As indicated above, NMFS                   historical levels. For example, charter                while not considering unguided access.
                                               finds this rule to be consistent with                   vessels operating under this rule may                  The Halibut Act requires that ‘‘if it
                                               applicable law (see discussion above                    increase the number of fishing trips they              becomes necessary to allocate or assign
                                               under the heading ‘‘Consistency with                    make, increase the average number of                   halibut fishing privileges among various
                                               Halibut Act’’). This rule was developed                 anglers they carry, or improve their                   U.S. fishermen, such allocation shall be
                                               through a public process used by the                    ability to find halibut. All of these                  fair and equitable to all such
                                               Council and NMFS to formulate and                       outcomes and others are possible under                 fishermen.’’ Many anglers require
                                               implement fishery management policy.                    this limited access system, in which                   guided services for financial, health,
                                               In doing so, the Council and NMFS                       case the actual harvest of halibut by the              safety, or other practical reasons. This
                                               heard from members of the public,                       charter vessel sector may actually                     restriction violates the ‘‘fair and
                                               including representatives of the charter                increase over current levels.                          equitable’’ provisions of the Halibut Act
                                               vessel sector. Some members of the                         Limited entry provides a basis for the              because guided recreational anglers are
                                               public were in favor of this action,                    development of a long-term                             being restricted while there is no such
                                               others were not. NMFS respectfully                      comprehensive effort limitation program                limitation proposed for unguided
                                               understands that some charter business                  for the charter halibut fishery, if it is              recreational anglers.
                                               owners are opposed to this rule.                        determined that such a program is                         Response: This rule is consistent with
                                                  Comment 18: The Analysis states on                   needed in the future. The RIR (at page                 the fair and equitable requirement of the
                                               page 153, paragraph 2 that ‘‘[t]he                      46) prepared for this action determined                Halibut Act (see discussion above under
                                               moratorium is not expected to limit the                 that limited entry could serve to better               the heading ‘‘Consistency with Halibut
                                               number of halibut charter trips in the                  stabilize fishing effort than the status               Act’’). The fair and equitable
                                               near future.’’ Wasn’t the ‘‘growing                     quo, because only permitted vessels                    requirement of the Halibut Act does not
                                               number of charter fleets’’ the main                     would be capable of increased effort.                  require that different sectors of the
                                               reason this moratorium was being                        Further, a reduction in fishing capacity               halibut fisheries be managed using the
                                               pushed by the Council and NOAA?                         will occur as non-transferable permits                 same tools or restrictions. In Areas 2C
                                                  Response: As stated in the Analysis                  are eliminated as their holders leave the              and 3A, the charter halibut fishery is the
                                               (see ADDRESSES), NMFS does not expect                   fishery.                                               second largest, in terms of volume of
                                               the limited access system established by                   Comment 20: The Federal                             halibut, after the commercial setline
                                               this rule, by itself, to limit the growth               Government has a duty to not                           fishery. The non-guided sport fishery
                                               in charter halibut trips, charter halibut               discriminate. The summary of costs and                 has the third largest harvest in both
                                               harvest, or charter vessel anglers over                 benefits table in the EA/RIR/IRFA                      areas. Of these three harvesting sectors,
                                               the short term. Instead, this rule is                   presents the reasons why the Council                   the charter halibut fishery has
                                               expected to stabilize the charter halibut               chose Alternative 2. However, this table               demonstrated growth in participation
                                               sector by curtailing the growth in                      is extremely biased. For example, in                   over time while the commercial and
                                               numbers of charter vessels in Areas 2C                  columns 3 and 4, the table states,                     non-guided recreational sectors have
                                               and 3A and thereby improve the                          ‘‘Limiting the number of vessels that                  declined or remained relatively steady.
                                               effectiveness of other management                       may operate would help limit                           This information was in the Analysis
                                               measures, now and in the future, to                     competition. * * *’’ Why limit                         (see ADDRESSES) considered by the
                                               control the rate of halibut harvest.                    competition, especially if that may lead               Council and the Secretary when taking
                                                  Comment 19: The Environmental                        to business failure for some operations?               this action.
                                               Assessment/Regulatory Impact Review/                       Response: NMFS has a duty to not                       This rule will not unreasonably
                                               Initial Regulatory Flexibility Analysis                 discriminate based on constitutional                   restrict guided angler access to the
                                               (EA/RIR/IRFA) states on page 58,                        and statutory rights. The response to                  halibut resource. NMFS estimates that
                                                  ‘‘It is possible that commercial IFQ halibut         Comment 2 describes why this action is                 502 charter halibut permits will be
                                               fishermen could also benefit, if the constraint         not discrimination against charter                     issued to charter businesses operating in
                                               slows the growth in charter catches in the              operators that do not receive a charter                Area 2C, of which 347 (or 69.1 percent)
                                               future. However, given the excess capacity              halibut permit on initial allocation.                  will be transferable, and 418 charter
                                               that is likely to exist in the fleet after                 The quote from Table 42 on page 156                 halibut permits will be issued to charter
                                               implementation of the moratorium, this                  of the EA/RIR/IRFA (see ADDRESSES)                     businesses operating in Area 3A, of
                                               outcome is unlikely, all else equal.’’                  presented in the comment is                            which 319 (or 76.3 percent) will be
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                                                  If the Council is attempting to limit                incomplete. The complete sentence                      transferable. In Area 2C, the estimated
                                               the fleets then how could this scenario                 reads, ‘‘Limiting the number of vessels                total (for transferable and non-
                                               be unlikely? If the Council is attempting               that may operate would help limit                      transferable permits combined) angler
                                               to limit the fleets then why do they                    competition from new entrants in the                   endorsements on all charter halibut
                                               anticipate excess capacity in charter                   fishery, but competition from existing                 permits is 3,028 of which 2,152 will be
                                               fleets after the implementation of the                  permit holders is expected to keep                     associated with transferable permits. In
                                               proposed rule? If this proposed rule is                 businesses from earning above normal                   Area 3A, the estimated total angler


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                                               endorsement on all charter halibut                      conservation effort and regulations                    states that, ‘‘the NMFS Assistant
                                               permits is 3,577 of which 2,834 will be                 limiting access are long overdue. NMFS                 Administrator has determined that this
                                               associated with transferable permits.                   should limit the number of participants                proposed rule is necessary for the
                                                  Available data indicate that charter                 in the commercial sport halibut industry               conservation and management of the
                                               vessels in the guided sport fishery for                 and reduce the number of fish they                     halibut fishery.’’ The rule places no
                                               halibut in 2008 averaged 36 trips per                   catch. Too many charter businesses are                 direct restrictions on guided anglers or
                                               season in Area 2C and 38 trips per                      competing for too few customers, which                 their overall harvest, only limits on the
                                               season in Area 3A. Using all                            results in overcrowding, a lower quality               number of boats available to transport
                                               endorsements prior to the expiration of                 Alaskan experience for travelers, and                  guided anglers to the fishing grounds.
                                               non-transferable permits, charter vessels               increased pressure on local halibut                    The Environmental Assessment states,
                                               under this rule would have to average                   populations.                                           ‘‘[t]he proposed action addresses access
                                               52 trips in Area 2C and 56 trips in Area                   Response: This rule limits the number               to the Pacific Halibut resource. There
                                               3A to supply the aggregate number of                    of charter vessels that may participate in             are no expected impacts on the halibut
                                               fishing trips supplied in 2008. This                    the charter halibut fishery and the                    subsistence, personal use, or unguided
                                               estimate does not include the potential                 number of charter vessel anglers that                  sport fisheries because these takes are
                                               supply from the community charter                       may catch and retain halibut on charter                not limited and are not affected by any
                                               halibut permits and endorsements                        vessels. This rule is not intended, by                 allocation decisions in other sectors
                                               associated with the CQE program. In                     itself, to reduce the charter harvest of               * * * [t]here are no significant impacts
                                               Area 2C, a potential total of 72 permits                halibut or the number of fish each                     on the halibut stock expected from the
                                               and 432 angler endorsements may be                      angler may catch and retain.                           proposed action.’’ National Standard 5
                                               added, and in Area 3A, a potential total                   The IPHC takes into account halibut                 states that ‘‘Conservation and
                                               of 98 permits and 588 angler                            removals by all user groups in                         management measures shall, where
                                               endorsements may be added under the                     establishing the constant exploitation                 practicable, consider efficiency in the
                                               CQE program. These figures indicate                     yield (CEY). Past increases in charter                 utilization of fishery resources; except
                                               that the charter halibut industry will be               halibut harvests have created                          that no such measure shall have
                                               able to meet recent charter vessel angler               conservation and allocation concerns                   economic allocation as its sole
                                               demand levels with the number of                        that the Council and NMFS have taken                   purpose.’’ How does this action meet
                                               permits expected to be issued under this                steps to address, but the halibut                      National Standard 5?
                                               rule. Hence, no restriction in guided                   resource in Area 2C and 3A is being                       Response: The National Standards in
                                               angler access to the halibut resource is                managed in a sustainable manner.                       the Magnuson-Stevens Act (section 301)
                                               expected under this rule.                               NMFS does not have information to                      do not apply directly to this rule
                                                  Comment 22: Two of my charter                        verify or refute the claims that charter               because it is authorized under the
                                               vessel captains will come up a year                     businesses are competing for too few                   Halibut Act. Two connections exist
                                               short of the 2004–2005 qualification                    customers, that halibut fishing grounds                between the Halibut Act and the
                                               period. I truly feel my history in this                 are overcrowded, or that charter vessel                Magnuson-Stevens Act, however. First,
                                               business is long enough to warrant                      anglers are experiencing low quality                   the Halibut Act references section
                                               receiving a moratorium permit.                          charter fishing trips. Finally, NMFS                   303(b)(6) of the Magnuson-Stevens Act,
                                                  Response: The limited access system                  does not have scientific information to                and second, the Halibut Act uses
                                               established by this rule allocates charter              discern local depletion or attribute it to             virtually the same language as National
                                               halibut permits to the person that meets                any particular user group.                             Standard 4 (section 301(a)(4)) of the
                                               the eligibility requirements during the                    Comment 24: Near-shore depletion of                 Magnuson-Stevens Act. The language at
                                               qualifying and recent participation                     halibut and gear conflicts have                        National Standard 4 is particularly
                                               years. If a sport fishing business meets                increased since the implementation of                  relevant to this comment in that it
                                               the eligibility requirements, then it                   the IFQ program for commercial setline                 requires conservation and management
                                               likely would receive one or more charter                fishermen. Before the IFQ program,                     measures that allocate or assign fishing
                                               halibut permits and could continue to                   large commercial vessels fished farther                privileges (as this action does) to be
                                               hire charter vessel captains as it has in               from shore than they do today. Now,                    ‘‘reasonably calculated to promote
                                               the past. Hence, charter vessel captains                under the IFQ program, commercial                      conservation’’ among other things. The
                                               who do not meet these requirements                      fishermen do not have to go as far                     discussion above under the heading
                                               would not be eligible for an initial                    offshore to fish for halibut and there is              ‘‘Consistency with Halibut Act’’
                                               allocation of a charter halibut permit                  always some form of gear in our near                   describes how this rule meets this
                                               although the businesses that they                       shore areas off Sitka. Protection of                   conservation standard. In brief, this
                                               worked for may be eligible for a                        halibut would be improved with short                   action is intended to stabilize the
                                               permit(s). Nevertheless, persons not                    specified open seasons for commercial                  charter vessel industry, which will
                                               eligible for an initial allocation of a                 halibut fishing. Charter fishing is not the            enhance the effectiveness of existing
                                               charter halibut permit(s), may be                       problem.                                               and potential future harvest restrictions.
                                               eligible to receive a transfer of a charter                Response: Further restrictions on the               This will assist the IPHC to meet its
                                               halibut permit from a person with a                     commercial fishery would not achieve                   overall harvest rate targets.
                                               transferable permit.                                    the objective of this action and are                      The EA finds that the action will not
                                                                                                       outside the scope of this rule. NMFS                   have significant environmental impacts.
                                               Conservation                                            does not have sufficient scientific                    The purpose of the EA is to determine
                                                  Comment 23: The Alaska charter fleet                 information to discern localized                       whether the action will have a
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                                               has become overcapitalized in the last                  depletion of halibut or, if it exists, to              significant impact on the human
                                               decade and is rapidly expanding. The                    attribute it to a particular user group in             environment, and whether an
                                               fleet should not be allowed to grow and                 Area 2C or 3A.                                         environmental impact statement is
                                               negatively impact current users and                        Comment 25: This rule has nothing to                necessary. The Analysis for this action
                                               endanger the sustainability of the                      do with conservation or management of                  evaluated the environmental impacts of
                                               fishery by exceeding the GHL. Charter                   the resource and concerns allocation                   the action and found that it would not
                                               operators must become a part of the                     only. Page 18191 of the proposed rule                  have a significant environmental


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             569

                                               impact. This conclusion is not                          harvest 16 percent of the total halibut                   Comment 29: Four comments support
                                               inconsistent with the statement that this               removals. These fisheries account for                  the charter halibut moratorium, but
                                               action is generally necessary for                       about 86 percent of the total halibut                  suggest that further restrictions are
                                               conservation and management                             removals in Area 3A. Hence, the                        needed to limit charter angler harvest in
                                               purposes.                                               regulatory burden justifiably falls                    Southeast Alaska to address localized
                                                  Comment 26: NMFS inaccurately                        mostly on the commercial and sport                     depletion.
                                               implies that this is a conservation                     (charter vessel) harvesting sectors. The                  Response: NMFS notes the support for
                                               measure in the proposed rule. It simply                 commercial setline sector has been                     the charter halibut permit program.
                                               is not. American sportsmen and women                    managed under a limited access system                  NMFS does not have sufficient scientific
                                               have one of the best records when it                    since 1995. Although it is less than the               information to discern localized
                                               comes to conservation. Reducing                         commercial setline fishery, the                        depletion of halibut or, if it exists, to
                                               recreational angler access will not                     combined sport harvest (comprised                      attribute it to a particular user group in
                                               increase conservation or reduce the total               predominately by the charter vessel                    Area 2C or 3A. This rule is not designed
                                               allowable catch. Those available fish                   sector) is not trivial in Areas 2C and 3A.             primarily to limit the harvest by the
                                               will only be reallocated and harvested                     Comment 28: There is no mention of                  charter halibut fisheries, but it will
                                               by other sectors, primarily the                         the amount of wastage and incidental                   make existing and future harvest
                                               commercial sector.                                      bycatch of halibut caused by the                       restrictions more effective because
                                                  Response: As discussed above under                   commercial fleet. The issue of bycatch                 harvest restrictions in other regulations
                                               the heading ‘‘Consistency with Halibut                  in the commercial setline fishery is                   will not be eroded by unlimited growth
                                               Act,’’ this action is reasonably                        important also because the numbers of                  in the fleet of charter vessels fishing for
                                               calculated to promote conservation, as                  yelloweye rockfish and lingcod that are                halibut. In this manner, this rule will
                                               required by the Halibut Act. Although                   pulled off a single commercial set                     contribute to the achievement of the
                                               biological conservation is not its                      significantly exceed the numbers taken                 overall target harvest rate of halibut
                                               principal purpose, the effectiveness of                 by charter or private anglers, who are                 established by the IPHC.
                                               other biological conservation measures                  only allowed two per person.                              Comment 30: I support limited access
                                               will be enhanced over time by this                                                                             as it will help limit over-fishing in the
                                                                                                          Response: The comment raises several
                                               action. Conservation and allocation                                                                            charter sector. The proposed limited
                                                                                                       different bycatch issues. One is the
                                               management measures often are                                                                                  entry program provides part of the
                                                                                                       bycatch of rockfish and lingcod in the
                                               inextricably linked. Hence, although the                                                                       sustainable management equation. As
                                                                                                       commercial setline fishery directed at
                                               intent of this action is not to directly                                                                       the proposed rule indicates, the charter
                                                                                                       halibut. The commercial setline fishery
                                               reduce the halibut harvest by charter                                                                          sector has exceeded its guideline
                                                                                                       is managed under the IFQ program.
                                               vessel anglers in Areas 2C and 3A in the                                                                       harvest level in Area 2C for the past 5
                                               short term, it will enhance conservation                Regulations implementing this program                  years and in Area 3A for the past 3
                                               of the halibut resource in the long term.               generally prohibit the discard of                      years. Charter overharvest is
                                               Also see the response to Comments 21                    rockfish and Pacific cod when IFQ                      contributing to resource declines at both
                                               and 43.                                                 halibut or IFQ sablefish are on board the              the local and the area-wide level, yet
                                                  Comment 27: The proposal for the                     vessel (§ 679.7(f)(8)). These regulations              charter operators object that their
                                               charter limited entry program has been                  create an incentive for commercial                     businesses will be unsustainable if
                                               written to specifically list numbers                    setline fishermen to avoid areas of high               conservation measures are
                                               relating to the charter GHL yet leaves                  rockfish bycatch. Although bycatch of                  implemented. This downward spiral
                                               out that the longliners receive a larger                lingcod is not addressed by the IFQ                    can only result in resource depletion
                                               amount of the halibut quota than charter                regulations, a similar incentive exists                unless both capacity and effort are
                                               and private anglers. These numbers                      unless an IFQ fisherman has a market                   curtailed.
                                               would show the imbalance between the                    for lingcod. Ideally the bycatch of these                 Response: This action is not intended
                                               charter fleet and the commercial fleet                  species should be adequately controlled                to limit charter angler harvest to the
                                               and highlight that limiting the charter                 by economic incentives. However, this                  GHL in Areas 2C and 3A. By stabilizing
                                               fleet is not about conservation.                        issue is beyond the scope of this rule.                growth in the charter industry, however,
                                                  Response: The IPHC is generally                         The second issue raised is waste of                 this rule will enable other harvest
                                               responsible for the conservation of the                 halibut in the commercial setline fishery              control regulations to be more effective.
                                               halibut resource. In Area 2C, the IPHC                  for halibut. The preliminary estimate of                  Comment 31: Charter sport fishing is
                                               preliminary estimate of the halibut                     wastage in 2008 in Areas 2C and 3A                     a very effective form of commercial
                                               harvest in 2008 was that the commercial                 amounts to about two percent and three                 fishing. The charter sector continues to
                                               setline fishery harvested 59 percent of                 percent, respectively, of the total halibut            overfish its quota every year, which is
                                               the total removals by all sectors (IPHC                 removals in each area. Wasted halibut                  hurting the stocks and is unfair to all
                                               2009 Annual Meeting ‘‘bluebook’’ Table                  have no value to the commercial halibut                halibut fishermen. It is irresponsible
                                               1). The second largest harvest in Area                  fishery, which already has a strong                    resource management to allow this
                                               2C in 2008 was made by the sport                        economic incentive to minimize this                    fishery to continue to grow while the
                                               fishery (guided charter and non-guided                  source of halibut mortality.                           commercial setline fishery is limited.
                                               combined) at 30 percent of the total                       The third issue concerns the                        Southeast Alaska commercial setline
                                               halibut removals. Of that 30 percent,                   incidental removals of halibut in                      halibut fishermen have seen quotas cut
                                               over half is harvested by charter vessel                commercial fisheries targeting other                   in half the past four years. The annual
                                               anglers. Hence, in Area 2C, about 89                    species. The bycatch of halibut in Area                excessive harvest by the charter sector
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                                               percent of the total halibut removals can               2C fisheries for other species is                      reduces future harvests of both the
                                               be attributed to the combined                           estimated to account for only three                    commercial setline fishery and of local
                                               commercial and sport sectors. By                        percent of the total removals from that                residents doing sport or subsistence
                                               comparison, in Area 3A, the commercial                  area, and in Area 3A, bycatch was                      fishing for halibut to feed their families.
                                               setline fishery for halibut in 2008 was                 estimated to account for about nine                    The charter fishermen should
                                               estimated to harvest 70 percent and the                 percent of the total removals from that                acknowledge their responsibility for
                                               combined sport fishery was estimated to                 area.                                                  conservation. If both the commercial


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                                               and charter fleets do not work together,                others choose to leave the fishery. Long               47256). The rule implementing the
                                               the future of halibut fishing in Southeast              term stability in these fisheries has been             GHLs was determined to be consistent
                                               Alaska is in jeopardy.                                  achieved since the inception of this                   with the Halibut Act including its ‘‘fair
                                                  Response: NMFS agrees that                           management plan by Alaska in the                       and equitable’’ provision. The potential
                                               cooperation among all fishermen and                     1970s, and world-class fisheries have                  effects of this allocation policy were
                                               management agencies is essential to                     resulted from the ability of fishery                   addressed in an analysis that supported
                                               assure sustainable fisheries. The charter               managers to exercise conservation                      that action.
                                               industry does not have a catch limit                    measures through the State’s limited                      As explained in the preamble to the
                                               quota as does the commercial setline                    entry program. It is inconceivable that                proposed rule (74 FR 18178, April 21,
                                               industry. Instead, the GHL serves as a                  any fishery can be efficiently or                      2009) on page 18179, the Council’s
                                               benchmark for monitoring the charter                    sustainably managed without all user                   policy is that the charter halibut
                                               vessel fishery’s harvests of Pacific                    groups exercising restraint to avoid                   fisheries should not exceed the GHLs
                                               halibut in Areas 2C and 3A. By itself,                  over-utilization of its resource. There                established for Areas 2C and 3A.
                                               the GHL does not limit harvests by                      are numerous examples worldwide of                     However, the GHLs themselves do not
                                               charter vessel anglers.                                 fisheries, which can be shown to                       limit the harvest of the charter halibut
                                                  This rule is designed to limit the                   exemplify the depletion of fish stocks                 fishery. A separate regulatory action is
                                               number of charter vessels that may                      because of over-harvesting practices.                  necessary to impose such a harvest
                                               participate in the charter halibut fishery.                Response: NMFS acknowledges the                     restriction. NMFS promulgated a
                                               Although this rule is not designed                      comment and notes that limited entry                   harvest restriction on the charter halibut
                                               primarily to limit the harvest of the                   has been used as a fishery management                  fishery in Area 2C most recently on May
                                               charter halibut fisheries, it will make                 tool in Alaska since 1973. Pacific                     6, 2009 (74 FR 21194). That action was
                                               existing and future harvest restrictions                halibut fisheries, however, are not                    determined to be consistent with the
                                               more effective because conservation                     managed by the State of Alaska. The                    ‘‘fair and equitable’’ standard of the
                                               gains from individual harvest                           Halibut Act authorizes the Council, with               Halibut Act. Although not directly
                                               restrictions will not be eroded by                      respect to halibut fisheries in and off                related to that harvest restriction, this
                                               unlimited growth in the fleet of charter                Alaska, to develop limited access                      rule also is determined to be consistent
                                               vessels fishing for halibut.                            regulations and for the Secretary to                   with the Halibut Act (see discussion
                                                  Comment 32: The charter halibut                      approve and implement them, as is                      above under heading ‘‘Consistency with
                                               fishermen are fishing during the                        done by this action.                                   Halibut Act’’).
                                               summer for the most part, a time when                      Comment 34: We oppose the                              Comment 36: The claim in the
                                               the large female halibut (males seldom                  proposed limited access system to cap                  proposed rule that the fishery CEY is the
                                               reach a size over 30 pounds) are in                     the number of halibut charter boats and                maximum catch for an area’s directed
                                               shallow water. Instead of harvesting a                  anglers. Instead, we support an increase               commercial fixed gear fishery is false.
                                               cross-section of the biomass as the                     in the GHL for the charter fleet in IPHC               The fishery CEY is not the maximum
                                               commercial fleet does, the charter                      Areas 2C and 3A.                                       catch for an area’s directed fishery. The
                                               halibut fleet targets the large females                    Response: Changes to the GHL in                     fishery CEY is the basis for IPHC staff
                                               that are the future of this resource. This              Areas 2C and 3A are not within the                     recommendations that result from
                                               causes great concern for the health of                  scope of this action and would not                     application of a buffering algorithm
                                               halibut stocks. The biologists have                     achieve the objective of this rule.                    known as ‘‘Slow-Up Fast Down’’ (SUFD)
                                               noted the truncated age class structure                 Changes to the GHL should be suggested                 to the fishery CEY in a predictable
                                               and lack of large females in the                        to the Council for potential                           fashion for each IPHC regulatory area.
                                               Southeast Alaska halibut stocks.                        recommendation to the Secretary.                       At the IPHC annual meeting, IPHC
                                                  Response: This comment presumes                         Comment 35: The proposed rule                       commissioners review staff
                                               that large halibut generally are females                indicates that the Council’s policy is                 recommendations as well as Conference
                                               that contribute disproportionately to the               that the charter vessel fisheries should               Board and Processor Advisory Group
                                               reproductive potential of the stock, and                not exceed the GHLs; however, no                       recommendations. The commissioners
                                               that harvest of these females will                      constraints were initially recommended                 then decide on catch limits, which
                                               substantially decrease future juvenile                  by the Council or imposed on the                       rarely if ever equal the fishery CEY.
                                               halibut abundance. To test this                         charter vessel fisheries for exceeding a               SUFD also buffers any change in the
                                               presumption in 1999, the IPHC                           GHL. Examination of the GHL final rule                 fishery CEY, be it from a decrease in
                                               reviewed options for a maximum size                     reveals that the GHL is advisory in                    biomass or an increase in non-
                                               limit of 60 inches (150 cm) in the                      nature, requiring no action by the                     commercial removals, in both Slow-Up
                                               commercial setline fishery and                          Council, NMFS, or the Secretary other                  and Fast-Down years. The statement
                                               concluded, based on the research at the                 than its annual publication in the                     should be corrected in the final rule.
                                               time, that preservation of large halibut                Federal Register. Since the GHL is not                    Response: NMFS agrees with this
                                               in the setline fishery did not add                      an allocation, there has never been                    explanation. The preamble to the
                                               substantial production to the stock.                    analysis by NMFS or subsequent                         proposed rule did not elaborate on the
                                               Applying the limit to the sport fishery                 determination by the Secretary of the                  SUFD policy because it is an additional
                                               would have an even smaller benefit (if                  fairness and equity of the GHL as an                   complexity to the IPHC process that is
                                               any) because the sport fishery harvest is               allocation. Until an allocation has been               irrelevant to this limited access action.
                                               smaller than commercial harvest.                        set in compliance with the requirements                Moreover, the preamble to the proposed
                                               Suggestions for a maximum size limit in                 of the Halibut Act, the limited access                 rule never stated that the fishery CEY
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                                               both fisheries, commercial and sport,                   program described in the proposed rule                 was equal to the commercial catch limit.
                                               could be considered again by the IPHC                   is premature and contrary to the law.                  The principal message in that part of the
                                               but are beyond the scope of this rule.                     Response: The GHLs developed by the                 proposed rule preamble was that the
                                                  Comment 33: Virtually every fishery                  Council and approved by the Secretary                  IPHC takes into account all non-
                                               in Alaska is sustainably managed under                  represent an allocation policy. A final                commercial sources of halibut mortality
                                               a State ‘‘limited entry’’ program. All are              rule implementing that policy was                      in setting the catch limit for the
                                               viable and allow for new entrants as                    published August 8, 2003 (68 FR                        commercial setline fishery. NMFS


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                                               acknowledges that the SUFD policy                       define and limit the number of charter                 thresholds to qualify for permits and for
                                               technically is part of this fundamental                 operators. Potential future regulations to             transferable permits should further
                                               process.                                                address the issues raised by this                      reduce the control of permits by
                                                                                                       comment will be easier to implement                    speculative operators.
                                               Economic Impacts                                                                                                  The Council subsequently developed
                                                                                                       because of this program.
                                                  Comment 37: This action seeks to                        Comment 39: My community has a                      and recommended this limited access
                                               limit the guided angler catch when it                   community quota entity program and is                  system using 2005 as the last year in
                                               should be limiting the commercial                       entitled to use it under the final rule but            which at least minimal participation in
                                               catch. This rule limits guided angler                   does not have the financial resources to               the charter halibut fishery will qualify a
                                               catch, leaving commercial longliners                    use it effectively.                                    person for a charter halibut permit. The
                                               with minimal limits.                                       Response: Specified Area 2C                         Council took over a year to develop this
                                                  Response: This rule is not designed to               communities may receive up to four                     program and listened to substantial
                                               limit the harvest of halibut by charter                 community charter halibut permits per                  public testimony. Anyone entering the
                                               vessel anglers, but rather to curtail the               community and specified Area 3A                        charter halibut fishery during this time
                                               growth of fishing capacity by the charter               communities may receive up to seven                    should have been well aware of the
                                               halibut fishery. Commercial harvests are                permits per community issued to CQEs                   speculative risk of doing so.
                                               heavily regulated by the IPHC and                       at no cost. Some costs are likely,                        Comment 41: There has been a steady
                                               NMFS through the IFQ program.                           however, in establishing and                           decline in the number of halibut charter
                                               Commercial fishermen have made                          administering CQEs. Growth of a charter                vessels in Valdez. For example, in 1995
                                               contributions to resource conservation                  halibut fishery beyond the CQE permits                 there were approximately 35 halibut
                                               and, for example, have had their catch                  provided by this rule, however, would                  charter boats operating out of Valdez.
                                               limit cut by just over half in Area 2C                  require the purchase of transferable                   Last summer there were fewer than 20.
                                               between 2005 and 2009.                                  charter halibut permits. When NMFS                     This is not due to the lack of customers,
                                                  Comment 38: Several comments                         originally authorized CQEs to acquire                  but to the long distances we are being
                                               expressed concerns about the impacts of                 commercial halibut or sablefish quota                  forced to travel to find quality halibut
                                               the growth of the charter halibut fishery               share under the IFQ program, the State                 fishing grounds for our clients, and the
                                               on Pelican, Petersburg, and Gustavus in                 of Alaska responded by modifying its                   cost to operate a vessel under these
                                               Southeast Alaska (IPHC Area 2C). These                  fisheries loan programs to provide                     circumstances. The proposed
                                               comments indicated that growth of the                   financing for the purchase of halibut                  moratorium will cripple the economy
                                               guided sport fishery destabilized the                   and sablefish quota share by CQEs. The                 for seasonal businesses that rely on
                                               local economy in various ways and in                    State may adapt this program for loans                 tourists and locals alike to come to
                                               some cases expressed support for this                   to allow CQEs to acquire charter halibut               Valdez and go fishing. If anything you
                                               limited entry program. Destabilizing                    permits. Also, CQEs eligible to receive                should make provisions to allow a small
                                               impacts cited include localized                         community charter halibut permits may                  expansion of charter vessels in Valdez.
                                               depletion, use of community resources                   consider joint venture arrangements                    Similarly, another comment stated that
                                               by lodges located outside city limits and               with private sector partners to share the              aside from the CQE provision, some
                                               thus beyond city taxation, displacement                 costs of forming and operating a CQE.                  growth, particularly in places like
                                               of local residents from dock facilities in                 Comment 40: For many years there                    Kodiak, Yakutat, and Whittier, should
                                               the summer by heavy charter vessel                      has been significant discussion and                    be allowed.
                                               activity, sliming of docks, and                         motions regarding charter IFQs,                           Response: Valdez, Kodiak, Yakutat,
                                               environmental concerns as guided                        moratoriums, limited entry programs,                   and Whittier, Alaska, are in IPHC Area
                                               operations began to operate in Glacier                  etc. These discussions and motions, in                 3A. A charter halibut permit endorsed
                                               Bay National Park in May through                        some cases passed and rescinded, have                  for Area 3A may be used anywhere
                                               September. These concerns included                      caused confusion in the charter halibut                within that area. This rule allows for
                                               habituating the bears and sea lions and                 industry. This confusion has likely                    market-based responses to changing
                                               endangering the food source of the killer               caused charter operators to hold on to                 fishing conditions in different parts of
                                               whale resident population.                              businesses that they would have retired                Area 3A. As halibut fishing conditions
                                                  Response: Charter industry harvest                   from or would have sold long ago. This                 or business conditions fluctuate, holders
                                               levels have remained well above the                     affected the natural management of                     of Area 3A charter halibut permits could
                                               GHL in Area 2C. NMFS acknowledges                       charter operations and is a factor that                enter or leave the charter halibut fishery
                                               that the growth of the charter halibut                  you have not considered.                               based in any Area 3A community.
                                               fishery since the late 1990s has led to                    Response: The Council and NMFS                      Hence, no special allowance for
                                               changes, competition with other                         considered speculative participation in                expansion of the charter halibut
                                               resource user groups, and social tension                the charter vessel industry when                       business is necessary as this rule will
                                               in Southeast Alaska communities. This                   developing this rule. Uncertainty about                not inhibit such expansion. NMFS
                                               action does not address all of these                    the intent of the Council and                          expects also that holders of charter
                                               concerns. The purpose of this action is                 uncertainty about the potential criteria               halibut permits will shift their
                                               to stabilize the charter halibut fishery by             may have led some individuals to                       operations to the communities where
                                               limiting the future growth in numbers of                participate in the fishery at levels that              the demand for guided angling is
                                               charter vessels that may participate in                 they hoped would qualify them for a                    greatest and can be served most
                                               the fishery. NMFS notes, however, that                  future permit, when they might                         profitably.
                                               the charter halibut fishery is a legitimate             otherwise not have operated. This type                    Comment 42: The proposed action
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                                               resource user that provides economic                    of speculative activity could have led to              will suppress private enterprise and
                                               benefits to Alaskan coastal communities                 increased effort levels in the guided                  competition, creating monopoly power
                                               and to the Nation. Further, this program                sport fishery. The publication of a                    that will trigger anti-trust laws. The
                                               will not by itself limit the number of                  control date of December 9, 2005 (71 FR                Council, dominated by commercial
                                               charter vessel anglers that may use sport               6442, February 8, 2006), was intended                  fisheries interests, is privatizing a public
                                               fishing guide services or their harvest of              to discourage such speculative behavior.               resource by prohibiting free enterprise
                                               halibut. Instead, this program will                     The use of minimum participation                       and allowing selected individuals or


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                                               companies to own a part of the public                   fishing privileges and provide the                     bad weather and mechanical
                                               resource to which they are not entitled.                charter halibut fishery stability                      breakdown, it is likely that the number
                                                  Response: A monopoly is exclusive                    necessary for effective conservation and               of days fished could double. Hence, it
                                               control of a commodity or service in a                  management of the halibut resource.                    is not apparent that this rule will result
                                               particular market that makes possible                      Comment 43: This action will limit                  in constraining operations of charter
                                               the manipulation of prices. This action                 the number of guided charter operations                vessels with charter halibut permits or
                                               does not create a monopoly in the                       and the ability of this industry to meet               in constraining guided angling
                                               charter vessel industry. NMFS estimates                 the demand for guided charter fishing.                 opportunities (see also response to
                                               that about 231 businesses will qualify                  The limit on supply of guided angling                  Comment 21).
                                               for charter halibut permits in Area 2C                  opportunities will mean that fewer                        As discussed in the Analysis, NMFS
                                               and 296 businesses will qualify for                     persons will be able to take advantage                 expects, over a wide range of demand
                                               charter halibut permits in Area 3A.                     of guided services and that the cost of                conditions, that increasing the number
                                               These qualifying businesses likely will                 these services will increase. This will                of passengers in a trip, or increasing the
                                               receive a total of about 502 transferable               reduce the benefits to anglers and                     number of trips in a season, can be done
                                               and non-transferable permits in Area 2C                 prompt some anglers, who would                         at relatively constant incremental cost.
                                               and 418 transferable and non-                           otherwise have used guide services, to                 This suggests that charter halibut
                                               transferable permits in Area 3A. With                   substitute less attractive guided or non-              permits under this rule can meet
                                               this number of businesses competing to                  guided fishing activity. Reduced guided                demand without price increases.
                                               provide sport fishing guide services for                angler activity will have adverse                         Comment 44: Halibut are a common
                                               halibut fishing in each area, none is                   economic impacts on the guided                         property resource and everyone is
                                               likely to be able to control the market                 industry and on regions of Alaska where                entitled to make a living off a resource
                                               for these services or manipulate prices.                guides are based. There will be fewer                  that belongs to no one person or group.
                                               Further, this rule has an excessive share               jobs and less income, and this will hurt               Management is necessary but it should
                                               provision that prevents any one                         local businesses that depend on revenue                not stifle capitalism. This limited entry
                                               business or individual from acquiring                   generated by charter operations.                       program is solely about taking more
                                               more than five permits by transfer (see                    Response: Although the number of                    away from the general public who have
                                               discussion above under the heading                      vessels with charter halibut permits                   a right to this resource. Guided angler
                                               ‘‘Consistency with Halibut Act’’).                      operating under this rule is limited,                  caught halibut are worth five times as
                                               Although more than five permits may be                  their passenger carrying capacity                      much to the State and fisherman as a
                                               initially allocated to a business,                      exceeds current 2008 levels of                         commercial fish. Management should
                                               consolidation within the charter halibut                participation. The numbers of charter                  seek to maximize the value of the fish.
                                               fishery will be no more than it was                     halibut permits and associated                            Response: NMFS agrees that the
                                               during the qualifying and recent                        endorsements issued under this rule                    Pacific halibut resource in Areas 2C and
                                               participation years. Thus NMFS expects                  create significant opportunities for                   3A is a common property resource. As
                                               that the charter industries in Areas 2C                 charter halibut operations to expand                   such, all resource users should be
                                               and 3A will be competitive, and no anti-                their capacity to meet existing and                    benefitted by fishery management
                                               trust issues are expected.                              higher levels of angler demand for                     policies implemented by NMFS. This
                                                  This rule does not privatize the                     guided halibut fishing.                                action does not change the allocation of
                                               halibut resource. A charter halibut                        Opportunities likely exist for                      halibut between sport or commercial
                                               permit creates no right, title, or interest             operators to increase the number of                    users. The U.S. Government is
                                               in any halibut before the halibut is                    anglers they carry under this rule.                    authorized to regulate access to this
                                               harvested by a charter vessel angler on                 NMFS expects that, if charter vessel                   resource consistent with the Halibut Act
                                               the vessel for which the operator holds                 angler demand warrants, operators will                 and other applicable law. This action
                                               a permit. A charter halibut permit                      increase investments in their fishing                  creates a limited set of access rights or
                                               confers no right of compensation to the                 vessels to increase their fishing                      privileges for a resource that cannot
                                               holder of the permit if it is revoked,                  efficiency, the average number of clients              support unlimited access. Any citizen of
                                               limited, or modified. A charter halibut                 they carry (subject to the endorsement                 the United States will be free to enter
                                               permit is considered a grant of                         and other licensing restrictions), and the             the guided angling business in Alaska
                                               permission to the holder of the permit                  number of days each season that their                  and to guide charter vessel anglers in
                                               to engage in the charter halibut fishery                vessels operate.                                       harvesting halibut by purchasing the
                                               by allowing charter vessel anglers on the                  The Analysis (see ADDRESSES)                        relevant permits. NMFS estimates that
                                               vessel operated by the permit holder to                 indicates that the number of permits                   about 231 charter vessel businesses will
                                               catch and retain halibut. Anglers may                   issued under this rule will allow                      qualify for charter halibut permits in
                                               continue accessing the halibut resource                 permitted vessels to meet 2008 levels of               Area 2C and about 296 charter vessel
                                               through non-guided sport fishing which                  charter trips by increasing the average                businesses will qualify for charter
                                               is not affected by this rule.                           number of trips they make in Area 2C                   halibut permits in Area 3A. Many of
                                                  This action does not interfere with                  from 36 to 52, and in Area 3A from 38                  these businesses will qualify for
                                               free enterprise. It provides use                        to 56. These levels of increased activity              transferable charter halibut permits, and
                                               privileges that, with respect to                        are within the capacity of the charter                 a robust market for these permits is
                                               transferable charter halibut permits,                   halibut fleet that will have permits                   expected to develop. Therefore, this rule
                                               create a climate for the effective                      under this rule. Further increases in                  is not likely to stifle capitalism.
                                               functioning of a free enterprise market                 numbers of trips also are possible.                       The public’s access to the halibut
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                                               for sport fishing guide services. Markets               Members of the charter vessel industry                 resource is not diminished by this rule.
                                               function well when they are founded on                  indicated in public testimony to the                   The general public may access this
                                               clearly defined rules that explain the                  Council that the charter fishing season                resource as it does now through
                                               nature of the privileges each market                    lasts for about 100 days. Many of these                purchases of halibut in commercial
                                               participant has to the scarce resources                 trips would be half day trips so that                  markets (e.g., grocery stores,
                                               needed to operate their businesses. This                multiple trips might be made per day.                  restaurants), and through non-guided
                                               rule creates permits that will provide                  Even after assuming for days off due to                and guided sport fishing. The intent of


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                                               this rule is to stabilize the growth of                 that were active in 2004 or 2005, and                  for businesses that profit from free
                                               charter vessel operations in the guided                 likely would be somewhat less as some                  access to a public fishery resource.
                                               sport fishery for halibut. Relative to the              firms active in 2004 and 2005 left the                    Comment 47: By designating certain
                                               present, this rule will not diminish                    charter business during 2006 and 2007.                 permits as non-transferable, the
                                               charter vessel angler opportunity in the                   The Council and Secretary reasonably                proposed rule seeks to create a second
                                               foreseeable future. Instead, it is                      assumed that the number of businesses                  class of charter operators who can
                                               designed to restrict the entry of                       that would enter the fishery during 2006               operate but cannot transfer their permit.
                                               additional charter halibut operations.                  through 2009 would be small. Such                      No analysis has been made of the losses
                                                  Comment 45: The analysis in the EA/                  businesses contemplating entry into the                involved in selling surplus charter
                                               RIR/IRFA is inadequate. There is no                     charter halibut fishery during those                   halibut fishing assets without a permit.
                                               information about the adverse impacts                   years should have been aware of the                    A regulation designed solely to benefit
                                               this action will impose on a large                      control date of December 9, 2005, set by               the commercial sector to the
                                               percentage of the operations in the fleet.              the Council and published by the                       disadvantage of a small number of
                                               It does not include information about                   Secretary on February 8, 2006 (71 FR                   charter operators is unconscionable.
                                               operations that entered the business in                 6442). Being put on notice of potentially              This classification of charter permit
                                               the years from 2006 to 2009. The IRFA                   not qualifying for initial allocation of               holders does not meet the requirements
                                               does not provide adequate information                   charter halibut permit(s), businesses                  of the Halibut Act and should be
                                               on the impact to operations that will not               entering the fishery after the control                 removed from the rule.
                                               receive permits under this rule. It                     date should have structured their                         Response: As discussed under the
                                               should include information on lost                      operations on the assumption that they                 heading ‘‘Consistency with Halibut
                                               revenue or expenses to all entities                     may be in the charter halibut business                 Act,’’ this rule was determined to meet
                                               involved. Not allowing small businesses                 temporarily. Alternatively, these                      the requirements of the Halibut Act. The
                                               starting after 2005 to compete in the                   businesses could have planned on                       purpose and rational basis of this rule
                                               fishery is inconsistent with the                        purchasing one or more transferable                    are described above and in the preamble
                                               Regulatory Flexibility Act.                             charter halibut permits after they were                of the proposed rule published April 21,
                                                  Response: The Analysis (see                          issued. Other than assuming this                       2009 (75 FR 18178).
                                               ADDRESSES) estimates numbers of                                                                                   The non-transferable permits
                                                                                                       outcome, no basis existed for estimating
                                               operations affected by this action, and                                                                        provision of this rule provides a
                                                                                                       the number of businesses that would
                                               examines the costs and benefits of the                                                                         temporal buffer to reduce the overall
                                                                                                       make a post-control date entry decision.
                                               action accruing to different sectors.                                                                          impact of this rule on persons that
                                                                                                          More recently, NMFS has prepared a                  demonstrated relatively low levels of
                                               Much of the Analysis is qualitative,
                                                                                                       supplementary analysis, with estimates                 activity. Qualifying businesses will be
                                               reflecting the limited information that
                                               exists on the charter vessel business                   of the number of businesses that are                   issued transferable permits for vessels
                                               generally and on the angler demand.                     expected to qualify for charter halibut                that made 15 or more logbook trips in
                                                  The Council’s recommendation to the                  permits based on the 2004 and 2005                     one of the qualifying period years and
                                               Secretary looked primarily at charter                   qualifying years and the recent                        in 2008. Participation in the charter
                                               vessel businesses that were active                      participation year of 2008. The RIR and                halibut fishery during these years at
                                               during the qualifying years of 2004 and                 RFA analyses have been updated to                      between five and 15 logbook trips
                                               2005. These were the participants that                  reflect this new information (see                      indicates a relatively low level of
                                               the Council sought to confirm in their                  ADDRESSES). In summary, the updated                    participation in the guided charter
                                               business patterns when it made its                      analyses indicate that about 231                       business. However, these businesses
                                               decision to recommend this action in                    businesses are expected to qualify for                 will qualify for non-transferable charter
                                               2007. An ‘‘Active’’ charter business was                charter halibut permits in Area 2C and                 halibut permit(s). Businesses that
                                               determined to be one that made at least                 about 296 are expected to qualify in                   receive an initial allocation of non-
                                               five logbook trips in at least one of the               Area 3A. An estimated 115 businesses                   transferable permits will be able to
                                               two qualifying years and at least five                  were active (i.e., at least five logbook               continue their charter halibut operations
                                               logbook trips in the recent participation               trips) in Area 2C in 2008 but not during               as they previously had done, or may
                                               year (2008). This two-tier qualification                either of the qualifying years indicating              increase their participation in the
                                               requirement was designed to assure that                 that these businesses may have entered                 charter halibut fishery by acquiring
                                               limited access permits were allocated to                the charter halibut fishery during the                 additional permits by transfer.
                                               historically active charter businesses                  period 2006 through 2008. The                             Holding non-transferable permits does
                                               that were still active when the program                 comparable estimate of new entry                       not destroy the total value of business
                                               was implemented. The five-logbook-trip                  businesses in Area 3A is 111.                          assets. A person or business with non-
                                               minimum was chosen in part because it                      Comment 46: Will the government                     transferable permits may transfer
                                               is a relatively low standard of activity.               offer a compensation package of                        ownership of vessels, fishing
                                               A charter vessel business with less than                vocational retraining, financial aid, or               equipment, and real estate associated
                                               five logbook trips in a year is not likely              other compensation to guided charter                   with the business to other persons that
                                               in most instances to generate a                         operators who will not be able to                      wish to enter the business and acquire
                                               significant annual income. The                          continue in this business? This                        charter halibut permits by transfer.
                                               Council’s Analysis that was made                        compensation may be appropriate since                  Alternatively, the assets of a charter
                                               available to the public for review with                 these persons will no longer be able to                business could have value to persons
                                               the proposed rule (74 FR 18178, April                   honor private agreements with clients,                 that do not need charter halibut permits
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                                               21, 2009) did not consider the effect of                and will lose the value of vessels                     because their business plan does not
                                               the participation requirement in 2008                   purchased for the fishery.                             involve the harvest of halibut. A
                                               because that year had not yet occurred                     Response: No compensation is                        business issued non-transferable
                                               at the time of Council action. However,                 planned or provided in this rule for                   permits may also purchase transferable
                                               the Council was aware that the numbers                  persons that do not qualify for a charter              permits.
                                               of businesses receiving permits under                   halibut permit. No legitimate                             Comment 48: If this proposal is
                                               this rule would be no more than those                   investment-backed expectations exist                   approved it will set a precedent and


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                                               574                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               could potentially affect thousands in the               fishery are highly subjective, and NMFS                and tourists from around the world and
                                               charter industry. I have been told by                   does not have information available to                 that would all be adversely affected if
                                               NMFS that there are no other charter                    discriminate among resource users on                   we were forced to close. Local, State,
                                               limited entry programs currently in                     the basis of their reasons for                         and Federal governments would also be
                                               effect in the United States.                            participation.                                         adversely affected due to the loss of
                                                  Response: This rule does not establish                  This rule is being implemented under                revenue from utilities fees, fuel taxes,
                                               the first limited entry management of                   the authority of the Halibut Act, not the              payroll taxes, bed taxes, various license
                                               charter vessels. A moratorium for                       Alaska Constitution. Legislative                       fees, and of course payroll taxes. With
                                               charter vessels and headboats operating                 resolutions by the Alaska legislature are              the present economic conditions, a
                                               in Federal waters of the Gulf of Mexico                 not legally binding on this action.                    number of charter fishing boat and lodge
                                               was effective beginning on June 16,                     However, allowing excessive shares of                  operators will be forced out of business
                                               2003 (67 FR 43558, June 28, 2002).                      halibut fishing privileges to be acquired              this year regardless of the limited entry
                                                  Comment 49: I believe that this                      is prohibited by the Halibut Act. The                  proposal. The 2004–2005 qualifying
                                               limited entry program is going to be a                  excessive share provision in this rule                 period is not only damaging to the
                                               ‘‘free’’ government retirement package                  that limits persons to five permits (with              economy, but is also extremely
                                               for many who have just held on for this                 some exceptions) assures that excessive                damaging to the charter businesses that
                                               permit and will immediately sell it.                    consolidation will not occur and                       have started operating since 2006. All
                                               Their business will become more                         competition among operators will                       charter operations already vested in the
                                               valuable overnight while other                          remain.                                                industry should remain in business.
                                               businesses will not. To illustrate this                    Comment 50: The proposed rule states                   Response: The control date, December
                                               point, the State of Alaska issued a                     the intended effect of this program is to              9, 2005, was recommended by the
                                               Legislative Resolve No. 5 in 1983 that                  curtail growth of fishing capacity in the              Council and published by NMFS in the
                                               stated ‘‘a share system could result in                 guided sport fishery for halibut. This                 Federal Register on February 8, 2006
                                               the concentration of ownership of the                   rule will not only curtail growth, it will             (71 FR 6442). The purpose of the control
                                               fishery resource in the hands of a few                  eliminate it without compensation.                     date announcement was to announce
                                               fishermen,’’ that it ‘‘could encourage                  Based on the qualifying criteria, the                  that anyone entering the charter sport
                                               speculation and the making of                           immediate effect will reduce the fleet                 fishery for halibut in and off Alaska
                                               exorbitant profits at the expense of                    size by an estimated 10 percent now,                   after the control date will not be assured
                                               Alaska fishermen,’’ and that it ‘‘could                 and over time as non-transferable                      of future access to that fishery if a
                                               tend to eliminate competition among                     permits are retired, an additional 15                  management regime that limits the
                                               halibut fishermen.’’ The State                          percent of the current fleet will cease to             number of participants is developed and
                                               Constitution does not support a                         exist. This does not include the ‘‘private             implemented. The Council and NMFS
                                               limitation on charter vessels.                          agreement’’ and ‘‘same vessel’’ clauses                intent in making the control date
                                                  Response: Some persons may have                      that will eliminate even more vessels.                 announcement was to discourage
                                               participated in the charter halibut                     Although there may be enough capacity                  speculative entry into the charter
                                               fishery before 2005, solely in a                        in the fleet to meet current demand,                   halibut fishery while potential entry or
                                               speculative effort to acquire permits                   with such a large reduction during peak                access control rules were being
                                               should a limited entry program with                     periods anglers in the future may not be               developed by the Council and, if
                                               transferable permits be adopted.                        able to find an available charter.                     approved, implemented by the
                                               Speculative entry is a common concern                      Response: NMFS has supplemented                     Secretary.
                                               when limited entry programs are under                   the Council’s earlier analyses using new                  The notification of a control date does
                                               consideration. The Council addressed                    information on charter halibut                         not compel the Council or the Secretary
                                               this concern in two ways. First, to                     participation levels in 2008, the recent               to use that date. In this case, the Council
                                               discourage speculative entry during                     participation year (see Section 2.8 of the             used the date in part by recommending
                                               program development, the Council                        Analysis at ADDRESSES). The                            a two-year qualifying period that ran
                                               adopted a control date of December 9,                   supplementary analysis takes into                      through the end of 2005. The Secretary
                                               2005, at the start of its deliberations.                account the anticipated effect of the                  has approved the Council’s
                                               Announcement of this control date by                    recent participation year reducing the                 recommended charter halibut
                                               the Council and Secretary (71 FR 6442,                  number of charter halibut permits                      moratorium recommendation which
                                               February 8, 2006) notified the public                   issued below a number based solely on                  includes this qualifying period. The
                                               that anyone entering the charter sport                  participation in the qualifying years of               comment actually is seeking a new,
                                               fishery for halibut after the control date              2004 and 2005.                                         more recent qualifying period. This
                                               would not be assured of future access to                   Based on the earlier analysis and its               cannot be done under the approved
                                               the fishery if a management regime that                 supplement, the charter halibut industry               policy of 2004 and 2005 as the
                                               limits the number of participants is                    will have sufficient capacity to meet                  qualifying period without revising the
                                               developed and implemented. The                          existing angler demand and to meet                     entire Council recommendation. A more
                                               Council continued to publicize this                     some increases in that demand (see                     recent qualifying period would be a
                                               control date through the development of                 responses to Comments 21 and 43).                      significant change to the recommended
                                               this rule.                                                 Comment 51: The proposed control                    charter halibut moratorium policy and
                                                  Secondly, the Council adopted a                      date for qualifying for the limited entry              this rule. NMFS has determined that
                                               minimum participation standard for                      halibut charter vessels is December 9,                 such a significant change is not
                                               initial allocation of charter halibut                   2005. I respectfully request the control               warranted and the approved policy and
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                                               permits. A qualifying business may                      date be moved up until at least 2008 so                this rule are consistent with the Halibut
                                               receive a transferable permit only if the               companies that started after 2005 can                  Act and other applicable law.
                                               business has a record of making at least                qualify for a permit. If our company is
                                               15 logbook trips in one year of the                     unable to obtain a limited entry halibut               Moratorium Elements
                                               2004–2005 qualifying period, and in                     permit for our charter vessel, our lodge                  Comment 52: If limited entry is
                                               2008. The reasons that each person has                  would be forced to go out of business.                 adopted, the permits should not be
                                               for participating in the guided sport                   Presently we have employees, vendors,                  allowed to be sold when they are no


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                           575

                                               longer used. A lottery should be held                   not increase capacity. Requiring the                      Comment 56: The proposed rule
                                               and the winner would then have the                      same vessel to be used in the qualifying               regarding non-transferable and
                                               same opportunity as the first person.                   period and the recent participation                    transferable permits uses the phrase
                                                  Response: This rule does not include                 period also could result in these                      ‘‘same vessel’’ for transferable permits,
                                               a lottery to distribute charter halibut                 businesses not meeting the                             but not for non-transferable permits.
                                               permits when they are no longer used or                 qualifications for a moratorium permit.                What is the reason for this?
                                               on a periodic basis. Such a lottery                     In the final rule, NMFS should provide                    Response: The Council specified a
                                               would be a substantial change from the                  clarifying language for this statement                 higher standard of participation for
                                               policy recommended by the Council                       and in the proposed regulations.                       charter businesses to qualify for a
                                               and approved by the Secretary.                             Response: NMFS agrees that the                      transferable permit. This standard
                                               However, this suggestion could be made                  ‘‘same vessel’’ language in the proposed               requires that a charter business
                                               to the Council for its consideration as an              rule at § 300.67(b)(2)(ii) and (iii) should            demonstrate its participation in the
                                               amendment to this rule in the future.                   be clarified. NMFS has added text to                   charter halibut fishery by operating a
                                               This rule implements the Council’s                      § 300.67(b)(2)(iii) stating that the vessel            vessel that made at least 15 bottomfish
                                               original recommendation to establish a                  used to meet the 15-trip criterion during              logbook trips in a qualifying year and a
                                               market-based system for permit                          the recent participation period (2008)                 (potentially different) vessel that made
                                               transfers. The Council and Secretary                    need not be the same vessel used to                    at least 15 halibut logbook trips in the
                                               determined that this would be more                      meet the 15-trip criterion during the                  recent participation year. This ‘‘same
                                               reasonable and efficient than to have a                 qualifying period (2004 or 2005) (see                  vessel’’ standard is not required,
                                               continual permit-application and                        discussion below under ‘‘Changes from                  however, to meet the minimum logbook
                                               permit-award process by the                             the Proposed Rule’’). NMFS agrees that                 fishing trips criterion needed for a non-
                                               government.                                             the Council did not intend to                          transferable permit. For example, a
                                                  Comment 53: I recommend that a                       disadvantage charter businesses for                    charter halibut business that used five
                                               permit be used for five years before it                 upgrading or replacing vessels.                        separate vessels that made one logbook
                                               can be sold. This would keep people                                                                            trip each in 2005 and again in 2008, will
                                                                                                          The same vessel does not need to be
                                               from hanging on so they can get a                                                                              qualify for one non-transferable charter
                                                                                                       used in both years—a qualifying year
                                               permit to sell. This would thin out the                                                                        halibut permit. A different charter
                                                                                                       and the recent participation year—to
                                               crowd and a new business would be
                                                                                                       meet the fishing trip criteria for a                   halibut business that used three separate
                                               forced to use the permit before it gains
                                                                                                       transferable charter halibut permit.                   vessels that made five logbook trips
                                               any value. Any charter business that is
                                                                                                       However, the minimum 15-trip criterion                 each in 2005 and again in 2008 (totaling
                                               over five years old would be exempt.
                                                  Response: The proposal to require                    in at least one of the qualifying years                15 trips in each year), will not qualify
                                               some use of a charter halibut permit                    had to be met by a single vessel and the               for one transferable charter halibut
                                               before transferring would inhibit the                   15-trip criterion in 2008 had to be met                permit because at least 15 logbooks the
                                               exit and entry of charter halibut                       by a single vessel (either the same or                 trips were not made on the same vessel
                                               businesses and could increase costs of                  different vessel as used in 2004 or                    in 2005 and another single vessel in
                                               doing so. Requiring some permit use                     2005). Upgrading a vessel, whether for                 2008. This business will qualify,
                                               before transfer also would add                          safety or other reasons, will not prevent              however, for three non-transferable
                                               administrative costs to this program.                   a person from qualifying for a                         charter halibut permits. Meeting the
                                               However, this suggestion could be made                  transferable permit under this rule if the             ‘‘same vessel’’ standard for a
                                               to the Council for its consideration as an              15-trip criteria are met.                              transferable permit demonstrates a
                                               amendment to this rule in the future.                      NMFS will rely on the ADF&G                         higher level of participation in the
                                                  Comment 54: Several comments                         Saltwater Logbook record of fishing                    charter halibut fishery than is required
                                               requested clarification of how NMFS                     trips by each charter vessel to determine              for a non-transferable permit, which
                                               will determine the number of                            the qualifications for transferable or                 appropriately reflects the higher value
                                               transferable moratorium permits each                    non-transferable charter halibut permits               of a transferable permit.
                                               charter business will receive if they                   during the qualifying and recent                          Comment 57: Will NMFS still look at
                                               operated different vessels in the                       participation period years. A major                    both qualifying years (2004 and 2005)
                                               qualification period and the recent                     breakdown of a charter vessel within                   for the angler endorsement number if
                                               participation period. Many charter                      one of those years could prevent a                     the applicant used different vessels in
                                               operators have replaced older vessels                   business from qualifying for a                         the qualification period and the recent
                                               with newer ones for safety or other                     transferable or non-transferable permit.               participation period?
                                               business reasons. The proposed rule                     Such cases may be appealed pursuant to                    Response: Yes. This rule stipulates
                                               provided that an applicant would                        50 CFR 679.43.                                         that a charter halibut permit will be
                                               receive a transferable permit for each                     Comment 55: What if a business                      endorsed for the highest number of
                                               vessel that made at least 15 trips in the               replaced a vessel between 2004 and                     charter vessel anglers reported on any
                                               applicant selected year and at least 15                 2005? Does the applicant still have the                logbook fishing trip in the qualifying
                                               trips in the recent participation year.                 ability to choose its ‘‘best year’’ in the             period, except as provided at 50 CFR
                                               However, the proposed regulatory text                   qualifying period if it used different                 300.67(e). The qualifying period is the
                                               would require these minimum number                      vessels in the qualifying period and the               sport fishing season in 2004 and 2005.
                                               of logbook trips to be made on the                      recent participation period?                           Hence, the angler endorsement is
                                               ‘‘same vessel.’’ It would be inconsistent                  Response: Yes. The Council used the                 determined regardless of the recent
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                                               with Council intent for NMFS to require                 term ‘‘best year,’’ but the proposed rule              participation period (2008). Using a
                                               that the same vessel be used in both the                used the term ‘‘applicant-selected year.’’             vessel in 2008 that is different from the
                                               qualifying and recent participation                     NMFS determined that the applicant                     one used in one or both of the qualifying
                                               periods. The Council did not intend to                  should choose between 2004 or 2005 for                 years will have no effect on the angler
                                               exclude a charter operator from the                     purposes of determining the applicant’s                endorsement determination.
                                               moratorium for upgrading or replacing a                 number of transferable or non-                            Comment 58: All permits should be
                                               vessel for safety reasons as long as it did             transferable permits.                                  transferable.


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                                                  Response: NMFS disagrees. The two-                   rule. In brief, the criteria require U.S.              charter halibut permits are expected to
                                               tiered qualification criteria is designed               citizenship (or 75 percent U.S.                        be issued under this rule. This
                                               to allow a business with relatively less                ownership of a business); a complete                   represents a decrease in the potential
                                               participation in the charter halibut                    transfer application; a determination                  charter halibut fleet size in Area 3A of
                                               fishery to continue its operation while                 that the transfer will not cause the                   about 26 percent. A higher participation
                                               reducing potential harvesting capacity                  person receiving the permit(s) to exceed               standard would reduce the fleet too fast
                                               over time by not allowing that permit to                the excessive share limitation (unless an              and be too disruptive to these fisheries.
                                               be transferred to another entity. On the                exception applies); the parties to the                    Comment 61: Leaving paid skippers
                                               other hand, a business with relatively                  transfer do not owe NMFS any fines,                    out of the permitting issuance is wrong.
                                               more participation in the charter halibut               civil penalties, or any other payments;                An independent contractor who has
                                               fishery is allocated a transferable permit              and the transfer is not inconsistent with              operated vessels in all the proposed
                                               that allows new charter halibut                         any sanctions. This rule includes no                   qualifying years for more than 50 days
                                               businesses to enter the fishery by                      Alaska residency requirement because                   should qualify for a permit.
                                               allowing the market for charter halibut                 the Halibut Act prohibits discrimination                  Response: The proposed rule for this
                                               permits to allocate access to the fishery               between residents of different States.                 action (74 FR 18178, April 21, 2009)
                                               in the future.                                          The Council could consider further                     described the rationale for limiting
                                                  This policy reflects the intent of the               criteria for transferring permits to                   eligibility to receive a charter halibut
                                               Council and Secretary to balance the                    achieve socioeconomic objectives in                    permit to charter business owners that
                                               objective to reduce fishing capacity in                 future actions.                                        were licensed by the State of Alaska. In
                                               the charter halibut fishery and its                        Comment 60: The April 25, 2008, EA/                 brief, eligibility for charter halibut
                                               objective to minimize disruption to the                 RIR/IRFA analyzed 1, 5, 10, 15, and 20                 permits is limited to the holder of an
                                               charter fishing industry. If only                       minimum logbook trips but suggests                     ADF&G business owner license because
                                               transferable permits were initially                     that a five logbook-trip minimum                       information on participation in the
                                               allocated based on a relatively high                    requirement would allow up to 35 more                  charter vessel fishery is organized by
                                               minimum number of logbook fishing                       vessels to operate in Area 2C over 2005                this license. Also, paid charter vessel
                                               trips, the sudden reduction of charter                  levels. Although it is unknown how                     skippers or guides will continue to be in
                                               halibut operations would be too                         many of these vessels would meet the                   the same position they were in before
                                               disruptive to the industry. On the other                recent participation requirement, this                 this rule by being able to hire their
                                               hand, if only transferable permits were                 permit qualification criterion may not                 services to charter businesses.
                                               initially allocated based on a relatively               immediately meet the NMFS stated                          Comment 62: The charter halibut
                                               low minimum number of logbook                           objective to ‘‘limit the number of                     moratorium provisions for small
                                               fishing trips, then little or no reduction              participating charter vessels.’’ Moreover,             communities will not benefit some of
                                               in fishing capacity would be realized.                  with no limit on the number of trips a                 these businesses due to the complexity
                                               Over time, as the non-transferable                      permitted business can take within a                   of the provisions and the qualifying
                                               permits exit the fishery, only                          season once permitted, permitting those                requirements. The comment offered
                                               transferable permits will remain.                       businesses that meet the minimum                       alternative community qualifying
                                                  Comment 59: Eligibility                              criteria of five logbook trips during the              criteria and suggested that NMFS
                                               considerations should be established for                qualifying period and five logbook trips               remove the requirement for
                                               those who may be interested in                          during the recent participation period                 communities to form a Community
                                               purchasing a transferable permit after                  will likely allow for increased fishing                Quota Entity to qualify for a community
                                               the limited entry program is established.               capacity given increasing client                       charter halibut permit.
                                               This would be compatible with the                       demand. We request that NMFS                              Response: NMFS appreciates
                                               seven factors in section 303(b)(6) of the               implement the option for a minimum of                  alternative suggestions to promote
                                               Magnuson-Stevens Act, which the                         10 logbook trips for permit qualification              charter vessel businesses that operate in
                                               Secretary must consider in approving a                  in lieu of the five logbook trip                       rural communities. However, the
                                               limited entry program. These seven                      minimum.                                               proposed community provisions in the
                                               points could be used to establish                          Another commenter suggested that 30                 proposed rule are unchanged in the
                                               ‘‘eligibility criteria’’ for receiving a                to 50 days of logged halibut trips would               final rule. This rule meets the intent of
                                               transferred permit. The criteria could                  be a more appropriate requirement.                     removing a new economic barrier for
                                               give priority to those who have                            Response: The design of the limited                 small isolated communities with
                                               committed themselves to the industry                    access system established by this rule                 undeveloped or underdeveloped charter
                                               and may have a history in running or                    will likely reduce the number of vessels               industry to participate in the charter
                                               crewing on vessels for charter                          in the charter halibut fleet relative to the           halibut fishery.
                                               businesses. This group of people often                  fleet size in 2005, despite the relatively                The rationale that governed the
                                               gets lost in resource rationalization                   low participation standard of five                     development of the community
                                               programs; this needs to be avoided as                   logbook trips for a non-transferable                   provisions is one of balance. The
                                               new rationalization plans develop. The                  permit. Table 46 in Section 2.8 of the                 Council and the Secretary are
                                               criteria can also be tailored to help tie               Analysis (see ADDRESSES) indicates that                attempting to balance the economic
                                               owners and operators to the Alaskan                     646 vessels participated in the charter                development interests of rural
                                               community they are based in, improve                    halibut fisheries in Area 2C during                    communities with the overall intent of
                                               local economics for the industry, and                   2005. Under this rule, a total of 502                  this action to curtail growth of fishing
                                               still provide fair and equitable access                 charter halibut permits are expected to                capacity in the charter halibut fishery. A
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                                               based on intentional rather than passive                be issued for vessels in Area 2C. This                 more lenient policy could allow too
                                               participation that comes with absentee                  represents a decrease in the potential                 many charter businesses to enter the
                                               ownership.                                              charter halibut fleet size in Area 2C of               fishery and a more restrictive policy
                                                  Response: This rule establishes some                 about 22 percent. Comparable estimates                 could allow too few. If the Council’s
                                               criteria to qualify for receiving a                     for Area 3A are that 564 vessels                       approved community policy needs to be
                                               transferred charter halibut permit. These               participated in the charter halibut                    adjusted in the future, it can entertain
                                               criteria are listed at § 300.67(i)(2) of this           fisheries during 2005, and a total of 418              proposals to do so and make regulatory


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                                               amendment recommendations to the                        would qualify for the moratorium but I                 comprehensive scheme to allocate the
                                               Secretary.                                              do not think it is right.                              halibut resource among users of the
                                                  Comment 63: My concern is fairness                      Response: NMFS has determined that                  resource. It is intended to have a
                                               related to urban and rural businesses in                this rule is fair and equitable as                     stabilizing effect on the charter halibut
                                               deciding who receives a transferable                    discussed above under the heading                      industry while a comprehensive system
                                               permit. A rural charter business faces                  ‘‘Consistency with Halibut Act.’’                      is developed and implemented that will
                                               much more difficulty in maintaining                        Comment 66: I am in favor of limited                work in concert with other management
                                               and operating a business than their                     entry with the 2004 and 2005 qualifying                measures.
                                               urban counterpart. The rule for                         years, but opposed to the recent                          Comment 68: This program should
                                               participation in the charter halibut                    participation period. That is why I                    have a sunset clause. The proposed rule
                                               fishery should be revised to allow for                  bought my business. My two sons have                   should not be passed or should have the
                                               transferable permits to be issued to rural              completed the required time to get their               control date changed to a sunset clause.
                                               charter businesses.                                     captain’s licenses and are working                     Also, logbooks were changed in 2006 to
                                                  Response: This rule is not revised                   toward the day they can take over the                  allow for the collection of data specific
                                               based on this comment. This rule allows                 business. All my planning and their                    to halibut. This will help capture the
                                               a market-based system of allocating                     hard work will come to naught if this                  necessary data to keep the Council and
                                               access to the fishery after the initial                 plan is adopted. Please reject the 2008                NMFS informed regarding charter fleets
                                               allocation of permits. With the                         qualifying date and keep with the                      and harvest levels.
                                               exception of community charter halibut                  original 2004 and 2005 dates, so we can                   Response: A date for ending this
                                               permits, transferable and non-                          maintain our business and support the                  limited access system—commonly
                                               transferable charter halibut permits may                community.                                             called a sunset date—was never
                                               be used anywhere within the IPHC area                      Response: The Council chose the                     contemplated by the Council or
                                               for which they are designated.                          qualifying period and recent                           Secretary because the system is
                                               Insufficient information exists to                      participation period in consideration of               perceived as necessary now and in the
                                               distinguish between rural and non-rural                 historical dependence and recent                       future. Changes to the system, including
                                               charter businesses for purposes of                      participation in the charter fishery, two              removing it, are possible through the
                                               transferable permit qualifying criteria.                factors that the Council and Secretary                 development of a separate regulatory
                                               Hence, these criteria are the same for                  must take into account pursuant to the                 recommendation by the Council for the
                                               rural and non-rural charter businesses.                 Halibut Act. Demonstrating at least                    Secretary to review. A control date was
                                                  Comment 64: I strongly oppose this                   minimal participation during both                      published by the Council and the
                                               proposal and ask that you reject it or                  periods is critical to the design of this              Secretary on February 8, 2006 (71 FR
                                               restructure it to include anyone that was               limited access system. Persons not                     6442). The control date notice
                                               licensed during the qualifying period. I                eligible to be an initial recipient of a               announced to the public that no person
                                               am a crab fisherman and a charter boat                  charter halibut permit may obtain                      was assured of future access to the
                                               owner and captain with a very large                     permit(s) through transfer.                            charter halibut fishery if that person
                                               investment, both in money and time, in                     Comment 67: Two comments                            entered the fishery after December 9,
                                               my business. The business is my                         questioned the description of the charter              2005. A control date and a sunset date
                                               livelihood. I do not take enough halibut                halibut permit program in the proposed                 are not the same. The former signals the
                                               charters in the year to qualify under the               rule as a moratorium. The comments                     start of a potential limited access
                                               proposed rule. I take people out for a                  cite several instances where Council                   system, and the latter refers to a future
                                               variety of things, including guided                     language refers to its action as a                     expiration date for a regulation or
                                               fishing, and I will lose business without               moratorium and in one case refers to it                program. This rule is not intended to
                                               the ability to offer halibut fishing. I need            as an interim measure of stability in the              end at a predetermined date. Instead, it
                                               both crab and halibut charter incomes or                guided sport halibut sector during the                 is designed to be a step toward
                                               my business will fail.                                  step-wise process toward a long-term                   establishing a comprehensive program
                                                  Response: The minimum                                solution. Why, if the Council submitted                of allocating the halibut resource among
                                               participation number of logbook trips                   a moratorium to be published as an                     resource users.
                                               was the second lowest participation                     interim solution, is the Secretary                        NMFS is aware of the change in
                                               standard considered by the Council and                  proposing a permanent program in its                   logbook reporting required by ADF&G.
                                               the Secretary. Participation in the                     proposed rule?                                         This is explained in the preamble to the
                                               charter halibut fishery at lower levels is                 Response: The proposed rule (74 FR                  proposed rule (74 FR 18178, April 21,
                                               not indicative of a significant                         18178, April 21, 2009) at page 18182                   2009) on page 18185. In 2004 and 2005,
                                               commitment to this fishery, and                         speaks to this point. In essence, a                    ADF&G required charter businesses to
                                               including participants at lower levels                  moratorium on entry into a fishery                     report bottomfish effort for each logbook
                                               would run counter to the objectives of                  limits entry into that fishery. Hence, a               trip. ADF&G further instructed logbook
                                               this rule. Businesses that do not qualify               moratorium is a limited access system                  users that bottomfish fishing effort
                                               for an initial allocation of a charter                  in which permits are initially limited to              included effort targeting halibut.
                                               halibut permit may choose to alter their                those participants that meet specified                    Comment 69: Limits should be based
                                               charter vessel business plan to focus on                criteria. This rule implements such a                  on fleet size per community and limit
                                               other species, acquire a transferable                   limited access system and it will remain               fleet size generally for Area 2C. In
                                               permit to expand operation in the                       in effect until it is changed or replaced              Gustavus, nine seasons ago there were
                                               charter halibut fishery, or leave the                   through subsequent Council and                         19 operating charter boats; now there
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                                               charter industry to focus on other                      Secretarial action. Such subsequent                    are 24. While our growth has been very
                                               commercial fisheries or ventures.                       action may involve refinements to this                 small over 10 years, other areas have
                                               Alternatively, the business could seek a                limited access system or it may remove                 increased significantly. Some areas
                                               special community charter halibut                       or replace this limited access system                  within Area 2C may need to be capped,
                                               permit.                                                 with a different limited access system.                whereas other areas should have a
                                                  Comment 65: The eligibility years are                The Council has indicated that this rule               maximum capacity ceiling for halibut
                                               unfair and reward certain people. I                     is an important step toward a                          guide boats. Another concern is


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                                               578                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               absentee ownership. Many of the charter                 Area 2C, and that this will eventually                 rule makes clear that NMFS will not
                                               business owners do not even fish. A                     decline to 347 permits as non-                         recognize agreements that allow two
                                               community-based cap would prevent                       transferable permits expire. An                        businesses to match their logbook
                                               more people like this, or new people,                   additional 72 permits may be issued to                 history to qualify for one or more
                                               from overwhelming specific                              CQE groups in Area 2C. In Area 3A, an                  charter halibut permits. For example,
                                               communities.                                            initial 418 permits should decline to                  charter business ‘‘A’’ may have the
                                                  Response: With the exception of the                  319 as non-transferable permits expire.                necessary logbook trips for the
                                               community charter halibut permits, the                  An additional 98 permits may be issued                 qualifying period but not the recent
                                               Council did not specify how many                        for CQEs in Area 3A.                                   participation period and charter
                                               permits should be allocated to                             The Council’s use of non-transferable               business ‘‘B’’ may have the necessary
                                               individual communities. Permit limits                   permits was meant to lead to the                       logbook trips for the recent participation
                                               for specific communities would be more                  withdrawal from the fleet of operations                period but not the qualifying period.
                                               complex and more expensive to                           that had only minimal participation                    Charter business ‘‘A’’ agrees to sell its
                                               administer than this rule because it                    without imposing a serious burden on                   logbook history to charter business ‘‘B.’’
                                               contemplates a separate limited access                  their traditional operations in the short              NMFS will not recognize this
                                               system for each community. However,                     run. Allowing non-transferable permits                 agreement. In this case, neither business
                                               such proposals could be made to the                     to expire over time will prevent these                 will qualify for a charter halibut permit.
                                               Council.                                                operations from increasing participation                  NMFS will issue a charter halibut
                                                  Comment 70: The ‘‘recent                             in the long run. This rule accommodates                permit to the person or entity—
                                               participation period’’ should be fixed as               the special needs of lodge operations by               individual, corporation, firm, or
                                               either 2007 or 2008. Another comment                    (a) issuing permits to businesses, (b)                 association—that held the ADF&G
                                               suggested that 2007 should be used for                  allowing them to hold multiple permits                 Business Owner License that authorized
                                               the recent participation period because                 up to the five-permit excessive share                  the logbook fishing trips that met the
                                               the nationwide economic downturn                        limit, (c) allowing businesses to hold                 participation requirements in both
                                               caused a number of cancellations in                     initially allocated permits in excess of               participation periods, qualifying and
                                               2008 and recorded logbook trips fell                    the excessive share limit, and (d)                     recent. NMFS does not intend to
                                               over 50 percent for that year.                          allowing businesses to hire guides and                 determine the individual owners of
                                                  Response: This rule establishes 2008                 vessel operators to use the permits.                   charter vessel businesses in part to
                                               as the recent participation period, or                     This rule lays the groundwork for                   avoid dividing permits among the
                                               recent participation year, for purposes                 future management measures, which                      owners or partners of dissolved
                                               of qualifying for a charter halibut                     might include buyback, individual                      corporations or partnerships. See also
                                               permit. The purpose of this                             quotas, or further measures to modify                  the response to Comment 105.
                                               requirement, along with the                             the numbers of permits. Such proposals                    Comment 73: It would be very helpful
                                               qualification years of 2004 and 2005, is                should be made to the Council. After                   for full-time residents of rural
                                               to ensure that both historical                          Council development and analysis of                    communities (the same that qualify for
                                               dependence and recent participation are                 such proposals, changes may be                         subsistence) to be able to get a non-
                                               recognized, two factors that must be                    recommended to the Secretary for a                     transferable permit to run one boat for
                                               taken into account under the Halibut                    separate regulatory amendment.                         halibut if they captained a boat during
                                               Act. The approved Council                                  Comment 72: A commenter has noted                   the qualifying years. Most of the
                                               recommendation contemplated that                        an apparent conflict between text in the               commercial fishermen would support
                                               either 2007 or 2008 could be the recent                 preamble to the rule stating that charter              this as they are opposed to the bigger
                                               participation year, but refers to the                   halibut permits would not be awarded                   charter operators, not the one-boat local
                                               ‘‘year prior to implementation.’’ NMFS                  to persons who purchased a charter                     operators. It would be very good for the
                                               interpreted this phrase to mean the most                fishing business that met some or all of               small town economies, and it would
                                               recent year for which a full year of                    the participation requirements but who                 provide opportunities in towns where
                                               logbook fishing trip data are available,                themselves did not meet that                           opportunities are scarce.
                                               and therefore established 2008 as the                   participation requirement, and text                       Response: This rule includes
                                               recent participation year.                              stating that NMFS would have no                        provisions to assist the development of
                                                  Comment 71: I support the proposed                   obligation to determine the owners of a                the charter halibut fishery in small rural
                                               regulations. The tremendous growth of                   corporation or members of a partnership                communities (see § 300.67(k)). In
                                               the guided sport charter industry over                  that successfully applied for a permit.                addition, some charter halibut permits
                                               the past decade has put serious pressure                The commenter points out that a person                 are transferable, and persons in rural
                                               on fish stocks. I would like to see more                could have bought a business after the                 areas will be able to acquire them in the
                                               reduction in permits than proposed but                  2004–2005 qualifying period, and before                market if it makes economic sense for
                                               allowing special consideration for lodge                the 2008 recent participation period.                  the permits to migrate to those areas. If
                                               operators who have a larger investment                  Without checking business ownership,                   the Council determines that rural
                                               and contribute more to the economy.                     it would be impossible to know if the                  communities need further assistance to
                                               Perhaps a buy-back program makes                        business owners were the same in both                  develop small scale charter halibut
                                               sense for reducing the total outstanding                periods.                                               fisheries, it could develop a regulatory
                                               permits or increasing the minimum                          Response: This apparent conflict is                 amendment to recommend to the
                                               number of trips in the qualifying years.                due to confusing a business with its                   Secretary.
                                                  Response: This action stabilizes the                 owners. The initial allocation of permits                 Comment 74: Our industry is facing
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                                               guided charter fleet by capping the                     is to businesses, and the criterion for a              very uncertain times and the stocks of
                                               number of separate vessels that may be                  continuous business is not the                         halibut have been declining. Controlling
                                               operated. The Council recommended                       continuity of the owners but the                       growth of the charter industry is critical
                                               the use of non-transferable permits to                  continuity of the business. The term                   for both the health of the halibut
                                               reduce the numbers of charter halibut                   ‘‘person’’ has been previously defined in              biomass and all users of the resource.
                                               permits over time. NMFS estimates that                  § 300.61 to include an individual,                     NMFS needs to make provisions for
                                               502 permits will initially be issued in                 corporation, firm, or association. This                these permits to be eligible for financing


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             579

                                               through the NMFS Financial Services                     charter halibut permits to businesses                  1993. The historical information
                                               Loan Division. This important rule has                  that were participating in the fishery                 presented in the Analysis is accurate.
                                               been a long time coming.                                during the historical qualifying years                 Further, the Analysis incorporates the
                                                  Response: NMFS Financial Services                    and are still participating during the                 best scientific information available.
                                               Division does not have the statutory                    most recent year for which NMFS has                       Comment 78: I am in favor of limited
                                               authority to make loans for this purpose.               complete logbook information. This also                access for the charter fishery for halibut
                                               Congressional action would be                           demonstrates that the Council and                      similar to the commercial program. I am
                                               necessary to provide this authority.                    Secretary have taken into account                      a small stakeholder in both fisheries and
                                                  Comment 75: Is it possible to assign                 present participation as required by the               have seen my small commercial IFQ for
                                               a cost recovery fee to each limited                     Magnuson-Stevens Act section                           halibut cut in half from its original
                                               access permit to recover enforcement                    303(b)(6). The ‘‘same vessel’’                         allocated poundage. My only concern is
                                               costs and will that be a part of this                   requirement is clarified in response to                that I will not have enough years in the
                                               program?                                                Comments 54 and 56 and by the change                   charter business to qualify for an
                                                  Response: Cost recovery is not                       in this rule from the proposed rule (see               allocation. I would like to see a
                                               authorized for this program as it is not                ‘‘Changes from the Proposed Rule’’                     provision in the new regulations that
                                               a limited access privilege program or a                 below).                                                would allow a commercial fisherman to
                                               community development quota program                        This rule may allow up to 72                        use his allocation as a charter
                                               as defined by the Magnuson-Stevens                      community charter halibut permits to be                fisherman.
                                               Act. A limited access privilege is a                    issued to CQEs representing                               Response: This rule makes no
                                               Federal permit issued as part of a                      communities in Area 2C and up to 98                    connection between the commercial IFQ
                                               limited access system to harvest a                      in Area 3A, for a total of 170. These are              halibut fishery and the charter halibut
                                               specific quantity of fish. A charter                    the maximum number of community                        fishery. A charter halibut permit under
                                               halibut permit is a Federal permit                      charter halibut permits allowed under                  this rule does not specify an amount of
                                               issued as part of a limited access system               this rule and they may not all be issued.              halibut that may be harvested as does an
                                               but it does not provide a privilege to                     Comment 77: It is difficult to                      IFQ permit. The Council has adopted a
                                               harvest a specific quantity of halibut.                 comment on the proposed rule because                   new recommendation for a catch
                                               Hence a cost recovery fee for charter                   it is confusing and ambiguous in several               sharing plan that contains a proposal for
                                               halibut permits is not authorized under                 places. The proposed rule has many                     a limited transfer of IFQ halibut to a
                                               section 304(d)(2) of the Magnuson-                      stated objectives depending on the                     charter halibut permit holder. A future
                                               Stevens Act.                                            agency providing information. The                      proposed rule may be developed that
                                                  Comment 76: Although the Analysis                                                                           will describe this proposal.
                                                                                                       Analysis (at page 2) states that the
                                               states that the Council intended to                                                                               Comment 79: Is the definition of a
                                                                                                       purpose and need for action is due to
                                               curtail the growth of the charter sector,                                                                      ‘‘halibut logbook fishing trip’’ in the
                                                                                                       the reallocation of halibut harvest to the
                                               the ‘‘recent participation’’ and ‘‘same                                                                        proposed rule consistent with the
                                                                                                       charter sector from the commercial
                                               vessel’’ clauses of the rule will                                                                              Council motion? Footnote 8 in the
                                                                                                       sector. Since 1997, the commercial
                                               effectively eliminate 40 percent of                                                                            motion specifies that, for the year prior
                                                                                                       sector has been trying to protect their
                                               current operators. Moreover, the                                                                               to implementation, evidence of
                                                                                                       fisheries by submitting different
                                               Council intention to curtail the growth                                                                        participation includes ‘‘actual halibut
                                                                                                       proposals from quota share programs to
                                               seems to be inconsistent with the                                                                              statistical area, rods, or boat hours.’’ We
                                                                                                       limited entry programs. This proposal
                                               provision to provide for 192 new CQE                                                                           presume that this means that a
                                                                                                       begins with an inaccurate statement and
                                               permits. The Analysis states that it is                                                                        bottomfish statistical area or bottomfish
                                                                                                       continues with inaccuracies throughout
                                               the purpose of this action to place a                                                                          boat-hours must be reported along with
                                                                                                       including the data used for this
                                               moratorium on ‘‘new’’ entry; however,                                                                          at least one halibut kept or released for
                                                                                                       proposal.
                                               this action actually limits any entry                                                                          that boat-trip. The definition of a halibut
                                                                                                          Response: The problem statement on
                                               since 2005.                                                                                                    logbook fishing trip in the proposed
                                                  Response: ‘‘New’’ in this context                    page 3 of the Analysis (see ADDRESSES),
                                                                                                                                                              rule, however, appears to exclude the
                                               refers to entry into the charter halibut                describes the evolution of the issue and
                                                                                                                                                              requirement that a bottomfish statistical
                                               fishery in Areas 2C or 3A after                         then succinctly states the problem:
                                                                                                                                                              area be reported if bottomfish boat-
                                               December 2005 (see response to                             ‘‘To address the potential rush of new              hours are not reported. It is common for
                                               Comments 40 and 45 concerning the                       entrants into the charter fishery, the Council         vessels targeting salmon to catch
                                               control date). Hence, this action limits                is considering establishing a moratorium on            halibut. Charter operators targeting
                                                                                                       the charter sector. The moratorium is to
                                               entry to operations that were active in                                                                        salmon were instructed in 2007 and
                                                                                                       provide an interim measure of stability in the
                                               the fishery during the qualifying period                guided sport halibut sector during the step-           2008 to report the statistical area and
                                               and that continued to operate with at                   wise process toward a long-term solution. In           boat-hours under the salmon target
                                               least minimal logbook fishing trips in                  doing so, however, the Council is also                 category. Therefore, the proposed
                                               2008. This potential outcome was                        concerned with maintaining access to the               definition of ‘‘halibut logbook fishing
                                               published in the Federal Register on                    halibut charter fishery by small, rural, coastal       trip’’ might include some unknown
                                               February 8, 2006 (71 FR 6442), and in                   communities. To address this, the Council is           number of trips without bottomfish
                                               the Council newsletter and other media.                 considering establishing a separate program            effort as long as at least one halibut was
                                               This notice specifically stated that                    to allow these communities to enter the                reported kept or released. This suggests
                                                                                                       halibut charter fishery.’’
                                               anyone entering the charter halibut                                                                            that the Council’s intent was that the
                                               fishery after the control date of                          The Analysis accurately points to a de              boat had to have reported a bottomfish
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                                               December 9, 2005, will not be assured                   facto allocation of the halibut resource               statistical area or bottomfish boat-hours
                                               of future access to that fishery if a                   over the years from the commercial                     along with any halibut kept or released
                                               limited access system is established that               fishery to the charter fishery as the                  as evidence of participation.
                                               limits participation in the fishery.                    charter fishery expanded its activity.                    Response: Credit for participation in
                                                  The ‘‘recent participation’’                         The Analysis states that the Council                   2008 (the recent participation year)
                                               requirement is an important element in                  began to consider methods to cap the                   depends on the number of halibut
                                               this rule as it serves to initially allocate            growth of charter halibut harvests in                  logbook fishing trips in that year. A


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                                               halibut logbook fishing trip will be a                  include non-paying anglers. The                        fish and departing the launch site. This
                                               trip for which a business owner                         definition of ‘‘sport fishing guide                    is because some guides that operate
                                               reported, within ADF&G time limits, the                 services’’ is not limited to situations                small skiffs keep the logbook in the
                                               number of halibut kept or released, the                 where charter vessel anglers are directly              vehicle pulling the boat trailer to protect
                                               number of boat hours that the vessel                    compensating someone for services. If                  the logbook from the elements. This
                                               engaged in bottomfish fishing, or the                   someone is compensated in any manner                   prohibition should be revised to say:
                                               statistical area(s) where the halibut                   by any person to provide sport fishing                 ‘‘Operate a vessel in Area 2C or Area 3A
                                               fishing occurred. Footnote 8 in the                     assistance, then that person is providing              with one or more charter vessel clients
                                               Council’s motion explains that evidence                 sport fishing guide services according to              on board that are catching and retaining
                                               of participation includes ‘‘[a]ctual                    this definition. NMFS acknowledges the                 halibut without completing a State of
                                               halibut statistical areas, rods, or boat                need to clarify the proposed definition                Alaska Department of Fish and Game
                                               hours as reported in ADF&G logbooks                     of charter vessel operator. See                        saltwater charter logbook that specifies
                                               * * *.’’                                                discussion below under the heading                     the following * * *.’’
                                                  The Council’s motion uses the                        ‘‘Changes from the Proposed Rule.’’                       Response: The saltwater charter
                                               conjunction ‘‘or’’ indicating that actual                  Comment 81: Revise § 300.66(b) ‘‘Fish               logbook needs to be onboard the charter
                                               halibut statistical areas and boat hours                for halibut except in accordance * * *’’               vessel during a fishing trip, similar to
                                               are alternative ways to meet this                       to read ‘‘Catch and retain halibut except              the commercial IPHC logbook
                                               requirement. This parallels the use of                  in accordance * * *.’’ This change is                  requirements. NOAA Office of Law
                                               the word ‘‘or’’ in the paragraph on                     suggested to ensure that limited entry                 Enforcement and USCG enforcement
                                               ‘‘Evidence of participation.’’ This rule                permit requirement prohibitions are not                personnel depend on being able to
                                               uses the same construction in the                       applied to vessels that may incidentally               review the logs while the vessel is
                                               definition of ‘‘halibut logbook fishing                 catch, but not retain, halibut. Likewise,              engaged in fishing. The optimum time
                                               trip’’ at § 300.67(f)(3) and specifies that             most of the bulleted descriptions of                   to enforce charter halibut regulations is
                                               any one of the pieces of information—                   prohibitions on page 18190 of the                      either at sea during the fishing trip or
                                               the number of halibut kept, the number                  proposed rule refer to vessels fishing for             dockside when the fishing trip is
                                               of halibut released, the boat hours that                halibut, when in fact these prohibitions               terminating. Effective enforcement is
                                               the vessel engaged in bottomfish fishing,               are only in effect for vessels with                    compromised if the logbook is not
                                               or the statistical area(s) where halibut                anglers catching and retaining halibut. It             available to an authorized officer during
                                               fishing occurred—would be sufficient.                   is virtually impossible to define a vessel             these encounters. A logbook may be
                                                  The Council’s motion language may                    or angler that is ‘‘fishing for halibut’’              kept in a dry bag or dry container to
                                               lead to some businesses qualifying for                  because the gear and fishing technique                 protect it from the weather or sea spray
                                               charter halibut permits because their                   used for halibut are similar to that used              while onboard a small open boat. NMFS
                                               charter vessels anglers caught halibut                  for other bottomfish species.                          acknowledges that ADF&G regulations
                                               incidentally to salmon catches. The                        Response: No change is made. The                    and instructions do not currently
                                               2008 logbook did not include                            prohibition at § 300.66(b) previously                  require that the ADF&G saltwater
                                               information on the number of rods, but                  read, ‘‘fish for halibut except * * *.’’               charter logbook be carried on board the
                                               did include information on the number                   The only change proposed in the                        vessel. As this erroneous information
                                               of halibut kept and released, and NMFS                  proposed rule published April 21, 2009                 was not in the proposed regulatory text,
                                               used this information along with the                    (74 FR 18178), and made final by this                  no change is made in this rule.
                                               statistical area and boat hours                         rule is to add a reference to § 300.67.                   Comment 83: All references to
                                               information. NMFS interprets the                        The phrase ‘‘fish for halibut’’ existed                ‘‘licensed business owners’’ or
                                               Council’s reference to boat hours as a                  previously and was not proposed. It is                 ‘‘business owner licenses’’ during the
                                               reference to bottomfish target boat                     used deliberately, so that the                         qualifying years (2004–2005) should be
                                               hours. While the number of rods might                   prohibition will apply to vessels fishing              replaced with ‘‘registered or licensed
                                               have been included in the definition of                 for halibut. Vessels fishing for halibut               business owner’’ or ‘‘business owner
                                               halibut logbook fishing trip to be                      may not be successful, but if they are                 license or registration.’’ There was no
                                               consistent with the Council’s motion, it                successful, they may not retain the                    business license in 2004, only a
                                               would not make sense because that data                  halibut unless authorized to do so.                    business registration.
                                               field was not included in 2008 logbooks.                   Only one of the prohibitions on page                   Response: NMFS acknowledges the
                                                  Comment 80: The definition of a                      18190 of the proposed rule refers to                   need for this correction. See discussion
                                               charter vessel angler is in conflict with               ‘‘fishing for halibut.’’ This bulleted                 below under the heading ‘‘Changes from
                                               the definition of sport fishing guide                   point is actually more general than the                the Proposed Rule.’’
                                               services, since a non-paying angler                     corresponding changes to regulations in                   Comment 84: The final rule needs to
                                               included in the first definition is not                 § 300.66. Most of the prohibitions in the              clarify if there will be an annual
                                               receiving ‘‘assistance for                              regulatory text at § 300.66 refer to                   permitting process. Page 18192 of the
                                               compensation.’’ This definition should                  vessels ‘‘with one or more charter vessel              proposed rule states that there would be
                                               be replaced with ‘‘charter vessel client’’              anglers on board catching and retaining                a start of the program application
                                               and not include non-paying anglers.                     halibut.’’                                             process and then no additional
                                               Also, the definition of charter vessel                     Comment 82: The requirement to have                 application would be required. In the
                                               operator should be changed to specify                   a logbook on board is not consistent                   next paragraph it states NMFS would
                                               that the operator is in ‘‘physical control              with current ADF&G regulations, nor is                 require additional reports only when the
                                               of the vessel’’ in order to distinguish                 it necessary to enforce logbook                        structure of the business owning the
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                                               this from other types of control (e.g.,                 reporting. ADF&G regulations and                       permit changes or the permit is
                                               financial).                                             instructions do not currently require                  transferred. The executive summary of
                                                  Response: No change is made to the                   that the logbook be carried on board the               the Analysis, on page xxv, under
                                               definition of charter vessel angler or                  vessel, only that it be completed before               business ownership information, states
                                               sport fishing guide services. NMFS                      offloading any fish (or clients, if no fish            that persons would need to annually
                                               intends the definition of ‘‘charter vessel              kept), or if operating a trailer boat, that            disclose affiliation and ownership
                                               angler’’ at § 300.61 of this rule to                    it be completed before offloading any                  through an application and affidavit to


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                                               NMFS and that enforcement of this                       commitment to stewardship often                        endorsement does not limit the number
                                               provision would require NMFS to have                    associated with the receipt of a permit                of passengers that an operator may
                                               the authority to suspend a permit until                 in a limited access program. The                       carry, only the number that may catch
                                               the business provides the necessary                     impacts of leasing on communities and                  and retain halibut. The term ‘‘charter
                                               annual documentation.                                   the resource have not been adequately                  vessel angler’’ is defined in this rule (50
                                                  Response: The proposed rule is                       addressed. Various proposals were                      CFR 300.61) to include all persons,
                                               correct; no change is made in this rule.                made for reducing the potential for                    paying or non-paying, who use the
                                               This rule at § 300.67(h) provides for a                 leasing, including requiring (except in                services of the charter vessel guide. The
                                               single application period for an initial                limited circumstances) permit holders                  charter halibut permit, once issued with
                                               allocation of charter halibut permit(s).                to be on board when permit-authorized                  its angler endorsement, would limit the
                                               The permit(s) will not expire annually.                 fishing takes place, limiting leasing                  number of charter vessels anglers who
                                               A charter halibut permit will cease to be               operations by geographic area, limiting                can catch and retain halibut on the
                                               valid, as stated at § 300.67(j)(3), if the              pure leasing without full investment in                permitted vessel.
                                               permit holder is an individual and the                  the capital or operations of the business,                Comment 87: The proposed rule is not
                                               individual dies, or if the permit holder                and requiring the charter permit holder                clear about how angler endorsements
                                               is a non-individual entity and the entity               to be present in the Alaska community                  will be determined for an applicant who
                                               dissolves or changes as defined at                      where the charters originate.                          qualifies for more than one permit. Does
                                               § 300.67(j)(5). NMFS must be notified                      Response: This rule does not have an                that applicant receive an endorsement
                                               within 30 days of the death of an                       explicit prohibition against leasing,                  for the highest number of anglers in any
                                               individual who holds a transferable or                  although the Council recommended                       one logbook for all of their vessels being
                                               non-transferable permit. For a non-                     one, for the reasons discussed in the                  issued to that applicant or is each vessel
                                               individual entity, NMFS must be                         proposed rule (74 FR 18178, April 21,                  permit issued an angler endorsement
                                               notified within 15 days of the effective                2009) at page 18191. The charter                       based on its own individual history?
                                               date of a change as required at                         industry has a variety of business                        Response: Charter halibut permits
                                               § 300.67(j)(5)(ii). A ‘‘change’’ is defined             models, and the way some of these                      under this rule are issued to individuals
                                               at § 300.67(j)(5). The purpose of this                  business models function is                            or businesses which held ADF&G
                                               requirement is to monitor and enforce                   substantially similar to a lease between               Business Owner Licenses (or
                                               the expiration of non-transferable                      the permit holder and the vessel                       registration) that authorized logbook
                                               permits and the excessive share limit                   operator. For example, the owner of a                  fishing trips during the qualifying and
                                               and its exceptions under § 300.67(j).                   charter business or of a business such as              recent participation periods. Hence, this
                                               NMFS determined that an annual                          a wilderness lodge, that also provides                 rule is oriented toward the charter
                                               statement of ownership or affiliation is                charter services, employs hired skippers               vessel activity of a qualifying business
                                               not necessary and would save                            and guides to operate one or more                      rather than the activity of specific
                                               administrative costs for affected                       vessels. The charter business may or                   vessels. The regulatory text at 50 CFR
                                               business and NMFS. Most other limited                   may not own the vessels. The rules                     300.67(e) states simply that, ‘‘a charter
                                               access systems administered by NMFS                     governing the identification of qualified              halibut permit will be endorsed for the
                                               for Alaska fisheries do not require                     businesses and the number of permits                   highest number of charter vessel anglers
                                               annual permit applications. Compliance                  they would receive did not require                     reported on any logbook fishing trip in
                                               with the notification requirement when                  vessel ownership by the qualified                      the qualifying period’’ (except as
                                               there is a ‘‘change’’ in the status of the              business. Operations by these                          provided at 50 CFR 300.67(e)(1) and
                                               permit holder as defined at § 300.67(j)(5)              businesses may be difficult to                         (2)). Therefore, a qualifying charter
                                               should be sufficient to monitor and                     distinguish from leasing. There is no                  vessel business will receive charter
                                               enforce the excessive share limit and its               bright line between how these types of                 halibut permit(s) with an angler
                                               exceptions under § 300.67(j).                           businesses operate and what would be                   endorsement based on the highest
                                                  Comment 85: Absentee ownership of                    considered leasing arrangements. For                   number of charter vessel anglers
                                               access privileges has been identified by                this reason, enforcement of a                          reported by that business on any
                                               Congress as a significant threat to                     prohibition on leasing would be                        logbook trip in the qualifying period
                                               fishery dependent communities.                          difficult, time consuming, and costly.                 regardless of the number of vessels
                                               However, this rule seeks only to                        NMFS determined that the benefits                      involved. The same endorsement will
                                               discourage, not prohibit, leasing. If                   derived from a leasing prohibition did                 apply to all permits initially issued to
                                               implemented as written, this program                    not justify the costs of enforcement and               the qualifying business. As explained in
                                               will allow limited entry permit holders                 the disruption to existing business                    the preamble of the proposed rule (74
                                               to divest themselves of all aspects of a                operations.                                            FR 18178, April 21, 2009) at page 18184,
                                               charter business except the permit, then                   Comment 86: Several comments                        this action is designed to limit the
                                               lease owned permits to active charter                   requested clarification on what an                     number of charter vessels participating
                                               boat operators. Entities with no working                angler endorsement authorizes.                         in the charter halibut fishery, not to
                                               connection to the charter industry and                  Specifically, does it apply only to the                prevent all expansion of fishing effort.
                                               fishery dependent communities will be                   number of halibut clients (presumably                  Of course, any such expansion would be
                                               authorized to draw rents from the                       paying but not non-paying halibut                      constrained by safety, USCG licensing,
                                               resource. The prospect of permit leasing                fishermen) and does not govern the total               and other regulations that limit the
                                               raises concerns about the impact on                     number of people on board?                             number of anglers that may be on board
                                               transferable permit prices, the potential                  Response: Each charter halibut permit               a vessel.
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                                               for permit concentration with                           will have an angler endorsement                           Comment 88: Angler endorsements
                                               individual owners, the potential for                    number. The angler endorsement                         should be based on the year chosen by
                                               permits to become concentrated in ports                 number on the permit is the maximum                    the applicant for determining the
                                               with the greatest number of summer                      number of charter vessel anglers that                  number of permits. This might work out
                                               visitors (exacerbating identified fishing               may catch and retain halibut on board                  as more permits and less anglers per
                                               ground congestion and localized                         the vessel authorized by the permit (see               boat, or they might choose to go with
                                               depletion in those areas), undercutting                 50 CFR 300.66(s) and (t)). The angler                  less permits but the permit would have


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                                               a higher angler endorsement. They                       be issued to each halibut charter permit               not, and currently are not, considered
                                               should not receive the highest                          holder. The permit holder may fish,                    ‘‘clients’’ or ‘‘guided anglers’’ because
                                               endorsement value unless earned within                  lease, or sell any or all of the angler                the operator was not compensated for
                                               the same year or you add additional                     endorsements. The proper number of                     services. Limiting charters to a number
                                               latent capacity to the program that is not              angler endorsement cards must be on                    of anglers (including non-paying) equal
                                               necessary.                                              the vessels when engaged in the                        to the number of paying clients in the
                                                  Response: This rule implements the                   catching and retention of halibut equal                past is inconsistent.
                                               Council’s recommendation with regard                    to halibut anglers. All angler                            Second, the proposed definition of
                                               to angler endorsements. Other more                      endorsements will have the proper                      ‘‘charter vessel angler’’ is not consistent
                                               constraining alternatives are possible                  identifying information, and this                      with the proposed definition of ‘‘sport
                                               and may be necessary in the future.                     information will be entered into the                   fishing guide services.’’ This is because
                                               Proposals for such alternatives could be                ADF&G logbooks. The maximum                            the definition of ‘‘charter vessel angler’’
                                               made to, and developed by, the Council                  number of angler endorsements per                      includes non-paying anglers that use the
                                               for recommendation to the Secretary.                    permit should be capped at six and the                 services of a charter vessel guide. The
                                                  Comment 89: Under the section                        minimum at one. Allowing halibut                       definition of a charter vessel guide
                                               ‘‘Angler endorsement on permits’’ the                   charter permit holders to buy and sell                 includes a person that ‘‘provides sport
                                               proposed rule states ‘‘that the angler                  individual angler endorsements will                    fishing guide services’’ and the
                                               endorsement number on an applicant’s                    provide flexibility and a more affordable              definition of ‘‘sport fishing guide
                                               permits would be the highest number of                  means for new entrants into the                        services’’ requires that assistance is
                                               clients that the applicant reported on                  fisheries. The present proposal allows                 provided ‘‘for compensation.’’
                                               any logbook fishing trip in 2004 or 2005,               only for the buying or stacking of four,               Therefore, a non-paying angler cannot
                                               subject to minimum endorsement of                       five, or six angler endorsements with a                be using the services of a charter vessel
                                               four.’’ In some cases charter owners,                   halibut charter permit. The buying and                 guide if that angler is not providing
                                               including myself, have upgraded our                     selling of angler endorsement cards will               compensation.
                                               vessels after the ‘‘applicant selected                  be similar to the process of buying and                   NMFS should consider defining
                                               year’’ from traditional four angler                     selling transferable halibut charter                   charter clients as anglers that receive
                                               configurations to more environmentally                  permits and can only be engaged in by                  assistance for compensation (including
                                               efficient six or more angler                            entities that presently own halibut                    any compensation, not just ‘‘paying’’
                                               configurations. We should not be                        charter permits.                                       clients). There should also be a
                                               penalized for investing in and                             Response: This is not the approach to               distinction between charter clients and
                                               upgrading our equipment to be more                      endorsements recommended by the                        anglers that fish on private boats but
                                               environmentally friendly, safer, more                   Council and implemented by this rule.                  share the cost of bait and fuel with the
                                               cost effective, and remain competitive                  Alternative approaches to angler                       owner, as this is a common practice.
                                               in our industry. I suggest grandfathering               endorsements are possible. Proposals for                  Response: The comment is correct
                                               consideration be given to such                          such alternatives could be made to, and                that logbooks from 2004 and 2005 did
                                               situations, especially for those of us that             developed by, the Council for                          not explicitly request information on
                                               have been in this business for a decade                 recommendation to the Secretary.                       non-paying anglers or ‘‘comps.’’
                                               or more.                                                   Comment 91: The types of permits                    Reporting in this period is likely to have
                                                  Response: The Council’s motion was                   proposed in the moratorium are                         differed among businesses, with some
                                               meant to reflect the fleet composition                  unacceptable. The six-person and four-                 including non-paying anglers under the
                                               and practices as they were in the                       person permits will only allow                         heading of ‘‘comps’’ and others not. The
                                               qualifying period (2004 and 2005). The                  operators to take six or four charter                  Council recommendation was for the
                                               recent participation year was meant to                  anglers, depending upon which permit                   number of endorsements to be the
                                               screen out operations that had not                      is granted. Our vessel is certified for                highest number of reported anglers on
                                               continued to be active in recent years                  four to six anglers, and the number of                 any trip conducted by the guide
                                               and is not included to reflect capacity                 anglers we carry varies by trip. We                    business in 2004 and 2005. In some
                                               upgrades since the qualifying period. As                cannot run a profitable business with                  instances, the number of endorsements
                                               a result, permit endorsements reflect                   this restriction.                                      may be lower than they would have
                                               business activity levels in 2004 and                       Response: The angler endorsement                    been if the trip with the most anglers
                                               2005. The endorsement provisions are                    represents the maximum number of                       had included comps, and the operator
                                               relatively liberal, reflecting the highest              anglers that may catch and retain                      had not reported comps under the client
                                               number of clients included on a trip                    halibut. This rule does not require that               heading.
                                               taken by a qualifying business during                   the number of charter vessel anglers on                   A charter vessel angler includes the
                                               the two year qualifying period. This                    a vessel operating under a charter                     non-paying anglers that use sport
                                               endorsement is applied to all the                       halibut permit exactly equal the angler                fishing guide services. The definition of
                                               permits received by the qualifying                      endorsement on the permit.                             ‘‘sport fishing guide services’’ at 50 CFR
                                               business. To the extent that a qualifying                  Comment 92: The proposed rule uses                  300.61 does not require each angler to
                                               business does not receive charter                       the term ‘‘angler’’ rather than ‘‘client,’’            be individually compensating the
                                               halibut permits with endorsements that                  and states, ‘‘The term ‘angler’ includes               person providing sport fishing
                                               match its increased carrying capacity,                  all persons, paying or non-paying, who                 assistance for this definition to be
                                               the business could enter the permit                     use the services of the charter vessel                 applicable. This definition applies if
                                               market and obtain by transfer one or                    guide.’’ This is problematic for two                   there is any compensation from any
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                                               more permits with the appropriate                       reasons.                                               source for assistance to a person who is
                                               number of endorsements, or ‘‘stack’’ two                   First, in 2004 and 2005 the ADF&G                   sport fishing. Hence, no conflict exists
                                               or more permits on a vessel.                            logbook required charter operators to                  between this definition and the
                                                  Comment 90: The angler endorsement                   report only the number of ‘‘clients and                definition for charter vessel angler.
                                               system is cumbersome and inflexible.                    crew that fished.’’ Anglers that fished                   NMFS agrees that a distinction exists
                                               Special identification cards equal to the               from a charter vessel without                          between a charter vessel angler and a
                                               number of angler endorsements should                    compensating the operator (comps) were                 non-guided angler. The former uses the


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                                               services of a charter vessel guide                         Response: The first quote in the                    programs are similar examples. All of
                                               (pursuant to the definitions at 50 CFR                  comment is from the preamble to the                    these programs involve tradeoffs
                                               300.61) and the latter does not. Several                proposed rule published April 21, 2009                 between rural communities and other
                                               friends in a boat sport fishing for halibut             (74 FR 18178) in the third column on                   user groups.
                                               and sharing the costs of bait, fuel, or                 page 18180 in a discussion of Council                     The community charter halibut
                                               other supplies are not charter vessel                   actions in 2007 with respect to the GHL.               permits will be issued to CQEs, not
                                               anglers unless one of them is providing                 In fact, the quoted sentence has                       directly to businesses. It is possible that,
                                               sport fishing guide services.                           additional text the reads, ‘‘* * *                     under agreement with the CQEs that
                                                  Comment 93: The proposed rule talks                  appeared stable at about its GHL.’’ In                 hold community charter halibut
                                               about stacking permits. There is no                     developing and implementing this rule,                 permits, some of these permits will be
                                               mention of not being able to split a                    the Council and Secretary determined                   used by businesses that entered the
                                               permit between boats. This would best                   that applying a limited access system in               charter halibut fishery after 2005 and do
                                               fit our business plan as most operators                 Area 2C only would quickly result in                   not otherwise qualify for an initial
                                               may only need one or two more                           excessive charter capacity in the                      allocation of charter halibut permit(s).
                                               endorsements to add to a permit with                    adjacent Area 3A. Hence, applying this                    Also, acquiring a transferable charter
                                               four endorsements. (In Southeast                        limited access system to both areas at                 halibut permit through the market,
                                               Alaska, the maximum number of lines                     the same time avoids a disjointed step-                contracting with another business that
                                               fishing per vessel is six.)                             wise approach which would be more                      holds a charter halibut permit, arranging
                                                  Response: Stacking permits in this                   disruptive to the charter industry than                to use a community charter halibut
                                               action means having more than one                       this rule. While, the highest growth rate              permit, or changing the business plan to
                                               permit on a charter vessel to use the                   in the charter halibut fishery has been                avoid targeting halibut are all
                                               total number of angler endorsements.                    observed in Area 2C, the charter halibut               alternatives for a person that does not
                                               For example, an operator could hold                     fishery also has exhibited growth                      qualify for an initial allocation of a
                                               two charter halibut permits, one with an                between 1999 and 2007 in Area 3A.                      charter halibut permit.
                                               endorsement of four and another with                    Elements of this rule accommodate                         Comment 97: The CQE program
                                               an endorsement of six. Both of these                    different circumstances in Area 2C and                 would allow expansion of the guided
                                               permits combined, or ‘‘stacked,’’ would                 3A. Large lodges with multiple permits                 charter fleet and undercut the
                                               authorize this operator to have up to 10                are more common in Area 2C. This rule                  stabilization objectives of the program.
                                               charter vessel anglers on board the                     accommodates this by allowing                          Limits should be placed on the
                                               vessel, unless this number of passengers                businesses to hold multiple permits,                   community permit program including:
                                               is prohibited by USCG licensing or other                meeting lodge owners’ needs. Large                     (a) No more than four permits be
                                               safety rules or regulations. This rule                  party boats are more common in Area                    allowed in a community; (b) charter
                                               does not provide for splitting permits as               3A. This rule accommodates this by                     boats should be required to begin and
                                               this would potentially multiply the                     allowing stacking of permits and angler                end their trips in the community
                                               number of permits initially allocated                   endorsements that vary on permits.
                                                                                                                                                              designated on the permit; (c)
                                                                                                          The long-term trend in halibut
                                               contrary to the intent of this rule.                                                                           community eligibility should be based
                                                                                                       harvests by the charter vessel sector
                                                  Comment 94: NMFS should issue                        does not refute the quoted statements.                 on whether or not 10 charter vessels
                                               permits only to charter businesses                      The trend in charter halibut fishery                   terminated trips in the community in
                                               which have been in full compliance                      harvests between 2003 and 2007 in Area                 the qualifying years, not on whether or
                                               with the law. NMFS should require                       3A is one of slow but steadily increasing              not 10 charter businesses did; (d)
                                               charter businesses to show proof of                     halibut harvests from 2,724,000 pounds                 impose a recency qualification
                                               enrollment in a random drug testing                     (1,235.6 mt) in 2002 to 4,002,000                      requirement on CQE groups (10 charter
                                               program (as required by the USCG) in                    pounds (1,815.3 mt) in 2007. A slight                  vessel businesses terminate charter trips
                                               the qualifying as well as recent                        decline in the charter halibut harvest in              in the year prior to implementation).
                                               participation years, and proof of paying                2006 is not significant.                                  Response: While other management
                                               city sales tax in these years.                             Comment 96: Community charter                       schemes can be envisioned, the Council
                                                  Response: Enforcement of drug testing                halibut permits are inconsistent with                  indicated that stability in the charter
                                               and sales tax rules is beyond the scope                 the purpose of this program. Issuing                   halibut fishery was one of the principal
                                               of this action.                                         permits to communities is also unfair to               objectives of this action. The Council
                                                  Comment 95: Why is Area 3A being                     persons who recently participated in the               also sought to support rural
                                               treated the same as Area 2C? The                        fishery but will not qualify for a permit              development objectives similar to those
                                               proposed rule states that ‘‘the Council                 under the program.                                     addressed in other Council programs.
                                               recommended no change in                                   Response: The Council recommended                   Although community charter halibut
                                               management of the charter vessel                        using the CQE program to help develop                  permits may allow for some increased
                                               fishery in Area 3A because that fishery                 the charter vessel sector in certain rural             effort, this rule also is designed to
                                               appeared stable.’’                                      communities. The Council balanced the                  reduce overall effort over time. The
                                                  Also, a comparison of the number of                  objectives of stabilizing the guided                   elements that provide for such
                                               active vessels and the level of harvest                 charter sector and its rural development               reduction in effort include minimum
                                               shows cases where the number of                         objectives. There will be constraints on               participation criteria to receive an initial
                                               vessels appears to be inversely related to              CQE permits; they will be anchored in                  allocation of a charter halibut permit,
                                               the level of harvest. The proposed rule                 the rural communities. The Council has                 and the reduction in effort as non-
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                                               states that ‘‘the intended effect is to                 consistently included the objective of                 transferable permits expire. With
                                               curtail growth of fishing capacity in the               providing for the development of rural                 respect to the specific proposals:
                                               guided sport fishery for halibut’’ and                  communities through the use of fishery                    (a) No more than four community
                                               that ‘‘open access in the charter vessel                resources. This is consistent with                     charter halibut permits per eligible
                                               fleet has resulted in virtual unlimited                 requirements of the Halibut Act. The                   community are permitted in Area 2C,
                                               increases in charter harvests.’’ The                    Bering Sea Community Development                       while seven are permitted in Area 3A.
                                               vessel and harvest data cited refute this.              Quota Program and the IFQ CQE                          The larger number of permits permitted


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                                               in Area 3A reflects the larger resource                 permits. Individual businesses in Kake                    Comment 102: The commenter
                                               base available in that area.                            are not limited by this provision from                 supports the excessive share limit
                                                  (b) This rule requires all charter vessel            acquiring additional charter halibut                   section as written. This issue was
                                               fishing trips authorized by a community                 permits.                                               debated and the Council recommended
                                               charter halibut permit begin or end                        Comment 99: The CQE-eligible                        that larger businesses retain their
                                               within the boundaries of the community                  communities within the Gulf of Alaska                  grandfather rights if the business is sold
                                               designated on the permit. This is meant                 would have preferred, under optimal                    with all assets and permits. NMFS did
                                               to ensure that charter vessel anglers on                conditions, an open access system.                     a good job of writing this section to
                                               the vessel have an opportunity to use                   Given the current conditions which                     provide the balance that was
                                               the goods and services available in the                 render an open access management                       recommended by the stakeholder
                                               community.                                              system completely inappropriate, the                   committee and chosen by the Council as
                                                  (c) The approved Council                             measures provided for CQE                              the preferred alternative.
                                               recommendation clearly states that                      communities in the proposed rule are                      Response: NMFS acknowledges the
                                               eligible communities are those ‘‘in                     fair and equitable. It has been                        support.
                                               which 10 or fewer active charter                        previously demonstrated that the                          Comment 103: The proposed rule
                                               businesses terminated trips’’ in each of                Halibut and Sablefish IFQ program                      ‘‘grandfathers’’ current participants that
                                               the qualifying years (2004 and 2005).                   disadvantaged these 42 communities.                    qualify for more than five permits to
                                               Regardless of this condition, this rule                 The resulting Amendment 66 to the                      receive and operate more than five
                                               specifically names the eligible                         Halibut and Sablefish Program created                  permits while restricting all other
                                               communities.                                            the CQE program and made CQEs                          entities to five. Grandfathering in this
                                                  (d) The approved Council                             eligible to purchase halibut and                       manner has become an accepted
                                               recommendation does not include a                       sablefish quota share. The proposed                    practice in Alaska’s quota share
                                               recent participation requirement for                    community charter halibut permit will                  programs; however, other programs do
                                               community charter halibut permits.                      help to provide much needed economic                   not allow the grandfather rights (i.e.,
                                               Such a requirement would be a                           opportunity to the eligible CQE
                                               substantive change to the proposed rule                                                                        access privileges in excess of the
                                                                                                       communities.                                           excessive share cap defined for the
                                               and will require a separate Council                        Response: NMFS acknowledges the
                                               action and regulatory amendment to this                                                                        fishery) to be sold in total as is proposed
                                                                                                       support for the CQE program.
                                               rule.                                                      Comment 100: Special permits for                    in this rule. Allowing grandfathering to
                                                  Comment 98: The Organized Village                    U.S. Military Morale, Welfare, and                     continue after a business is sold raises
                                               of Kake Council would like to see the                   Recreation vessels should be limited to                serious social equity issues. While a
                                               Kake area be left open for local six-pack               the number of vessels that were                        case can be made for allowing large
                                               charter boats that would like to enter                  operated by the military for morale,                   operations to continue to operate above
                                               into the guided sport halibut fishery.                  welfare, and recreational purposes                     the cap for a given amount of time,
                                               Although the amount of sport charters                   during the qualification periods. Also,                providing the opportunity for those
                                               in Kake is limited, the dozen that                      the vessels authorized by these permits                licenses to all be sold to one entity
                                               enrolled in the six-pack license class                  should allow participation only to                     perpetuates the inequity. We
                                               this past winter indicates an interest in               active military personnel and their                    recommend that NMFS modify the
                                               guided sport halibut in our small town                  immediate family. The stakeholder                      proposed regulations to restrict
                                               and should be given a chance to enter.                  committee was provided information                     purchasers of halibut guided sport
                                               We have witnessed the large number of                   that indicated that an extensive list of               limited entry permits to the defined
                                               charter businesses in the larger cities                 qualified people go on military morale                 excessive share limit of five permits.
                                               and can see that they need to be limited,               vessels including YMCA members,                           At a minimum we strongly
                                               but to shut down all of Southeast                       guests, and a wide variety of others that              recommend that NMFS remove the
                                               Alaska, including rural areas, to a                     did not have anything to do with active                requirement that transfer of more than
                                               limited license on sport halibut fisheries              military personnel and their immediate                 five permits be contingent upon the
                                               is too extensive and favors larger                      family.                                                transfer of all assets, including lodges,
                                               communities over rural villages. NOAA                      Response: This rule is designed, based              vessels, and other assets. This provision
                                               should study Kake to see what we are                    on Council recommendation, to have a                   will inflate the overall value of
                                               doing to develop a sustainable economy,                 minimal effect on a Moral, Welfare and                 businesses holding more than five
                                               which includes developing six pack                      Recreation Program of the U.S. Armed                   permits, providing them with a
                                               charter boats that will help sustain the                Services. A special military charter                   windfall. There is simply no need for
                                               two or three lodges that we have in our                 halibut permit issued to such a program                NMFS to tie all business assets to the
                                               community.                                              is non-transferable and restricted to the              transfer of more than five permits; this
                                                  Response: This rule has a special                    regulatory area designated on the                      is a market decision between buyer and
                                               provision for rural communities like                    permit. NMFS is aware of only one of                   seller, and is outside of NMFS’s
                                               Kake through its CQE program. Kake is                   these programs in Alaska currently                     purview. This provision does not seem
                                               specifically listed in this rule as an Area             offering recreational charter halibut                  to be administratively feasible or
                                               2C community that is eligible to receive                fishing to service members. If it is                   appropriate.
                                               community charter halibut permits (50                   determined that additional restrictions                   Response: The approved Council
                                               CFR 300.67(k)(2)(i)). As such, a CQE                    are needed on the use of military charter              recommendation specifically provides
                                               representing Kake can receive a                         halibut permits, NMFS can issue a rule                 for a conditional exception to the
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                                               maximum of four community charter                       with those restrictions.                               excessive share limit of five charter
                                               halibut permits at no charge and can                       Comment 101: The commenter                          halibut permits. This provision,
                                               acquire a maximum of four additional                    supports the prohibition on operating a                commonly called the ‘‘grandfather’’
                                               charter halibut permits through the                     charter vessel in Area 2C and Area 3A                  provision, applies only to an initial
                                               market for transferable charter halibut                 during a single charter vessel trip.                   recipient of charter halibut permits that
                                               permits. Hence, a CQE representing                         Response: NMFS acknowledges the                     initially qualifies for more than five
                                               Kake can hold a maximum of eight                        support.                                               permits. The Secretary has approved


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                                               this recommendation and it is                           transferring grandfathered permits are                 not meet the participation
                                               implemented in this rule.                               increased by the ‘‘all assets’’                        requirements.’’ The proposed rule
                                                  One condition to this grandfather                    requirement at 50 CFR 300.67(j)(6)(iv).                specifies that NMFS would not
                                               provision is that it applies as long as the                NMFS will require applicants for                    recognize private business purchase
                                               initial recipient of more than five                     transfers of charter halibut permits in                agreements when issuing permits
                                               charter halibut permits continues to                    excess of the excessive share limit to                 because the Council did not recommend
                                               exist as it does at the time it is initially            attest that (1) the existing permit holder             it.
                                               issued the permits. If the initial                      that holds more than five permits will                     The comments disagree with the
                                               recipient is an individual and dies, then               be transferring all of the transferable                proposal to not recognize private
                                               the exception stops and the individual’s                permits that were initially issued                     business purchase agreements when
                                               successor-in-interest may not hold more                 together, (2) the current permit holder                issuing permits, stating that they
                                               than five permits. If the initial recipient             will be transferring all assets of its                 purchased charter businesses that had
                                               is a non-individual corporate entity that               charter vessel fishing business along                  sufficient participation in the qualifying
                                               dissolves or changes, then the exception                with the permits, and (3) the person that              period and continued to operate the
                                               also stops and the new or changed                       will receive the permits in excess of the              business in the recent participation
                                               entity may not hold more than five                      excessive share limit does not hold any                period. Some comments specified that
                                               permits. This rule refers to 50 CFR                     permits at the time of the proposed                    their business purchases included the
                                               679.42(j)(4)(i) for the meaning of                      transfer. NMFS also will require                       fishing history of the business’s vessels,
                                               ‘‘change’’ for a non-individual entity.                 applicants to submit a copy of the                     rights to any limited entry program
                                                  The other condition allows                           charter vessel fishing business sale                   benefits, and in some cases, the
                                               grandfathered permits in excess of the                  contract with the application for transfer             purchasers have taken possession of the
                                               five-permit limit to be transferred to a                of charter halibut permits. The comment                business’s logbooks from the qualifying
                                               new person (i.e., individual or non-                    is correct that NMFS does not define or                period. One comment requested
                                               individual entity) without application of               describe all of the assets that will have              analysis of the impacts of either
                                               the five-permit limit providing, among                  to be included in the sale of a charter                including or excluding a number of
                                               other things, that the person transferring              vessel fishing business because each                   potential initial recipients due to private
                                               its grandfathered permits also is                       sale will be unique. NMFS may require                  agreements to transfer participation
                                               transferring its entire charter vessel                  additional documentation of the items                  history with a business. Another
                                               fishing business, including all assets of               included in the sale of the business.                  commenter stated that he consulted a
                                               that business, to the person designated                    Comment 104: The excessive share                    lawyer when drafting the contract of
                                               to receive the permits. The language of                 limit section in the proposed rule limits              sale to prevent problems with the
                                               the Council recommendation stated that                  any charter owner from growing beyond                  transfer of the future limited entry
                                               ‘‘grandfathered permits that are sold in                five vessels or its current size. We                   permit and any future IFQs and notified
                                               total when a business owner sells his                   understand the desire to limit                         NOAA General Counsel of the sale.
                                               entire business/fleet maintain that                     consolidation of permits to only a few                 Another commenter stated a belief that
                                               grandfathered status.’’ This rule                       owners; however, this provision is                     the Council intended for persons that
                                               implements this language by stating that                overly restrictive. Further it would                   purchased rights and operating histories
                                               ‘‘NMFS may approve a permit transfer                    prevent a permit holder from selling to                and met other application criteria (e.g.,
                                               application that would result in the                    another entity that has any permits thus               operated the year prior to
                                               person that would receive the                           limiting market value. An alternative                  implementation) to be eligible for
                                               transferred permit(s) holding more than                 needs to be developed.                                 permits. One comment suggested that
                                               five (5) * * * permits if * * * [t]he                      Response: An excessive share limit to               NMFS should change the rule to specify
                                               person transferring its permits also is                 prevent excessive consolidation under a                that if a charter operation met the
                                               transferring its entire charter vessel                  limited access system is a requirement                 minimum qualifications in 2004 or 2005
                                               fishing business, including all assets of               of the Halibut Act (see discussion above               but was sold after 2005 and kept the
                                               that business, to the designated person                 under the heading ‘‘Consistency with                   same name, that charter company will
                                               that would receive the transferred                      Halibut Act’’). Determining what is                    qualify for a permit if it met the
                                               permits’’ (50 CFR 300.67(j)(6)).                        excessive is a public policy judgment of               minimum requirements in the recent
                                                  These exceptions are designed to                     the Council that is based on the current               participation period. The comment
                                               balance the need to apply the excessive                 structure of the charter halibut fishery.              suggests that NMFS establish an appeal
                                               share limit to the charter halibut fishery              Alternative excessive share limits                     process to address this issue if the rule
                                               in these areas with the need to recognize               should be suggested to the Council for                 is not changed.
                                               that some charter vessel businesses will                development and potential                                  Response: NMFS did not propose to
                                               qualify for more than five permits and                  recommendation to the Secretary. Also,                 recognize private agreements for several
                                               should be allowed to continue business                  permit holders would be prevented from                 reasons that were stated in the proposed
                                               with the same number of charter vessels                 receiving permits by transfer only if the              rule preamble. Prominent among these
                                               for which they initially qualified. The                 transfer would result in that person                   was that the Council did not
                                               Council and Secretary intend, however,                  holding more than five permits.                        recommend this policy. The Council has
                                               to have more charter vessel businesses                     Comment 105: Several comments                       expressed its intent to recognize private
                                               comply with the excessive share limit                   stated that charter businesses had been                agreements that transfer participation
                                               over time than may do so at the time of                 purchased between the qualifying                       history in the establishment of other
                                               initial allocation of permits. As charter               period (2004 or 2005) and the recent                   limited access systems, but not for this
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                                               businesses change, exit, and enter the                  participation period (2008). Page 18182                action. Because the Council did not
                                               charter halibut fishery over time, the                  of the proposed rule (74 FR 18178)                     recommend to recognize private
                                               number of businesses holding                            states that ‘‘[c]harter halibut permits                agreements for this action, NMFS did
                                               grandfathered permits should decrease                   would not be awarded to persons who                    not include such a provision in the rule
                                               relative to the number that received                    purchased a charter fishing business                   implementing this program.
                                               them at initial allocation. This outcome                that met some or all of the participation                  Notwithstanding the narrative in the
                                               is encouraged to the extent that costs of               requirements but who themselves do                     proposed rule (74 FR 18178, April 21,


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                                               2009) preamble on page 18182, the                       may exceed the limits referenced by the                missed, (3) the circumstance that
                                               proposed rule also makes clear on page                  Court. If NMFS chooses to press forward                thwarted participation was unavoidable,
                                               18186 that NMFS will issue a charter                    with the rule, it should drop the                      unique to the applicant, and unforeseen
                                               halibut permit to the entity that held the              qualifying year requirement and                        and unforeseeable, (4) the applicant
                                               ADF&G Business Owner License that                       consider only the year prior to                        took all reasonable steps to overcome
                                               authorized the logbook fishing trips that               implementation.                                        the problem, and (5) the unavoidable
                                               met the participation requirements.                        Response: As discussed above under                  circumstance actually occurred. Permit
                                               Further, the proposed rule at page                      the heading ‘‘Consistency with Halibut                 applicants that are initially denied a
                                               18186, states that NMFS will follow the                 Act,’’ the Council is required to consider             charter halibut permit may make an
                                               form of ownership that the business                     present participation in the fishery and               unavoidable circumstances appeal
                                               used to obtain legal authorization from                 historical fishing practices in, and                   through the NOAA Office of
                                               the State of Alaska for its past                        dependence on, the fishery when                        Administrative Appeals.
                                               participation in the charter halibut                    developing a limited access system. The                   Comment 110: Please rewrite the rule
                                               fishery. NMFS will not determine the                    charter halibut permit program is                      to include regular active duty soldiers.
                                               owners of a corporate entity or the                     consistent with this requirement. The                  Under the proposed rule, those who
                                               members of a partnership that held the                  Council intended to require active                     volunteered for active military duty in
                                               appropriate license. An applicant that                  participation in the qualifying period                 2004 and 2005 do not qualify for the
                                               receives an initial administrative                      (historical) and the recent participation              military exemption, unlike those called
                                               determination finding that the applicant                period (present) because it determined a               up from the reserves. The proposed rule
                                               does not qualify for a permit may appeal                business that participated in both                     states that volunteers will not qualify for
                                               that determination as specified in this                 periods demonstrates an acceptable                     a charter halibut permit since they
                                               rule at 50 CFR 300.67(h)(6) and                         level of dependence on the charter                     chose to serve this country instead of
                                               described in the proposed rule on page                  halibut fishery.                                       staying home and fishing. As stated
                                               18186 and 18195.                                           Comment 108: If qualification for a                 under Military Exemptions: ‘‘This
                                                  Comment 106: The criteria for a                      charter halibut permit is based on the                 exemption would not apply to persons
                                               permit should be based on currently                     2004 and 2005 logbooks, many charter                   in the regular armed forces. The
                                               licensed guides’ total catch records. Do                captains will be adversely affected.                   rationale for not including persons in
                                               not allow any newcomers to qualify for                  Although some may have the funds to                    the regular armed forces is that a
                                               charter halibut permits but grandfather                 buy the limited entry permits they need                person’s decision to enlist in the regular
                                               current charter operators into the                      to keep operating, I am not likely to be               armed services is a voluntary career
                                               program.                                                able to afford to buy any permits.                     choice and is not unavoidable.’’
                                                  Response: The Council could have                        Response: At the beginning of the                      In the Council motion, the military
                                               chosen alternative qualifying criteria for              development of this rule, the Council                  exemption in footnote 10 reads: ‘‘The
                                               demonstrating participation in the                      announced a control date of December                   military exemption refers to an
                                               charter halibut fishery. The Council                    9, 2005, to alert potential businesses of              individual who was assigned to active
                                               noted in its problem statement that it                  the possibility of a limited access                    military duty during 2004 or 2005, who
                                               had previously considered other options                 system for the charter halibut fishery.                qualifies as ‘active’ during the year prior
                                               including awarding quota share based                    This announcement was made by a                        to implementation, and who
                                               on catch records. In this action,                       Federal Register notice published                      demonstrated an intent to participate in
                                               however, the Council selected 2004 and                  February 8, 2006 (71 FR 6442). This                    the charter fishery in Area 2C or 3A
                                               2005 as the qualifying period which is                  notice informed any business entering                  (prior to the qualifying period).’’ What
                                               consistent with the problem statement                   the charter halibut fishery in Areas 2C                is NMFS’s interpretation of ‘‘active
                                               and the Halibut Act as described above                  and 3A after 2005 that they were not be                duty’’? As stated above, it does not
                                               under the heading ‘‘Consistency with                    assured of future access to the fishery if             address active duty or reserve
                                               Halibut Act.’’ Anyone who started a                     a limited access system was developed                  components specifically.
                                               charter halibut fishing business after the              and implemented.                                          Response: NMFS agrees that it
                                               December 9, 2005, control date (71 FR                      Comment 109: Two separate                           misinterpreted the Council’s motion.
                                               6442, February 8, 2006) was on notice                   comments noted that their participation                Regulatory text at 50 CFR 300.67(g)(3)(i)
                                               that they may not qualify for                           in the charter halibut fishery during the              is changed in this rule to add ‘‘active
                                               participation under a future moratorium                 qualifying period was prevented                        U.S. military’’ to active service in the
                                               on new entry or other limited access                    because of problems with vessels.                      National Guard or military reserve (see
                                               program.                                                   Response: The Council recognized                    discussion below under the heading
                                                  Comment 107: Magnuson Stevens                        that certain unavoidable circumstances                 ‘‘Changes from the Proposed Rule’’).
                                               1853(b)(6)(A) requires that a limited                   could prevent a permit applicant from                  The approved Council recommendation,
                                               access system take into account present                 participating in either the qualifying                 as correctly quoted in the comment,
                                               participation in the fishery. With 2004                 period or recent participation period.                 does not limit ‘‘active military duty’’ to
                                               or 2005 being the qualifying years for                  The preamble to the proposed rule (74                  service in the National Guard or military
                                               participation in the proposed limited                   FR 18178, April 21, 2009) on page                      reserve. The proposed rule
                                               access fishery and 2009 being the year                  18187 contains a detailed description of               misinterpreted this phrase to apply only
                                               of promulgation, we are looking at data                 the unavoidable circumstances                          to the National Guard or military reserve
                                               that is four to five years old being used               exception to the qualification                         due to experience with a different
                                               to establish who gets a permit. In                      requirements. To qualify for the                       exception for service in the National
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                                               Alliance Against IFQs v Brown, while                    unavoidable circumstances exception in                 Guard or military reserve that applies to
                                               upholding the agency decision, the                      the charter halibut permit program, an                 the IFQ fisheries for halibut and
                                               Ninth Circuit held that, the three-year                 applicant must demonstrate that (1) it                 sablefish (73 FR 28733, May 19, 2008).
                                               delay ‘‘pushed the limits of                            participated in either the qualifying                  In this rule, however, active military
                                               reasonableness,’’ but did not constitute                period or the recent participation                     duty is functionally the same regardless
                                               arbitrary and capricious agency action.                 period, (2) it had a specific intent to                of what military unit a person is
                                               Reliance on data four to five years old                 participate in the period the applicant                assigned. NMFS understands that


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                                               enlistment in a regular branch of the                      Response: This rule does not establish              need for allowing one individual to take
                                               U.S. military is not necessarily a career               a fee on the distribution or use of                    15 or 30 halibut a day just because he
                                               choice due to the fact that enlistment                  charter halibut permits, nor does it                   or she lives in a ‘‘rural’’ community.
                                               periods are short relative to a typical                 establish cost recovery fees for holding               Also, since the implementation of the
                                               career of 20 or 30 years.                               charter halibut permits. Cost recovery                 IFQ program for commercial halibut
                                                  Comment 111: The halibut stocks                      fees are not authorized for this rule                  fisheries, there has been an increase in
                                               would be better protected if the                        because charter halibut permits do not                 commercial fishing gear in areas that
                                               qualifying years (2004 and 2005) were                   allocate a percentage of the total                     traditionally were free of this gear.
                                               moved back at least one year.                           allowable catch to each permit holder.                    Response: This rule does not make
                                                  Response: NMFS determined that the                      Comment 115: Does paragraph                         any changes to fishery management
                                               halibut stocks are adequately protected                 300.66(i) of the proposed rule mean                    regulations for the subsistence or
                                               under this rule. The selection of the                   only the vessel owner and immediate                    commercial setline fisheries.
                                               qualifying years involved consideration                 family can use the vessel for subsistence              Suggestions for such changes should be
                                               of participation in the charter halibut                 fishing, or does it mean the vessel                    directed to the Council for
                                               fishery as required by the Halibut Act.                 owner or immediate family must be                      recommendation to the Secretary.
                                                  Comment 112: Two comments noted                      onboard, and any other individual is                      Comment 117: Ban all charter fishing
                                               that representatives of the charter                     allowed as long as he or she has a                     in the area for all time.
                                                                                                       subsistence permit? We are strongly                       Response: Prohibiting the charter
                                               industry took part in developing the
                                                                                                       against the former interpretation, as it               halibut fishery was not considered as an
                                               charter halibut permit program and held
                                                                                                       restricts the use of our vessel when we                option or alterative to this rule. Guided
                                               different views on its rationale.                                                                              sport fishing for halibut is a legitimate
                                                                                                       are not chartering.
                                                  Response: The history of management                                                                         use of the Pacific halibut resource and
                                                                                                          Response: The prohibition at 50 CFR
                                               of the charter halibut fishery generally,                                                                      the second largest fishery (after the
                                                                                                       300.66(i) was established by the rule
                                               and limited access management, in                       published September 24, 2008, at 73 FR                 commercial setline fishery) for halibut
                                               particular, was summarized in the                       54932. This paragraph is amended in                    in Areas 2C and 3A. Prohibiting the
                                               preamble to the proposed rule (74 FR                    this rule to include a unique definition               charter halibut fishery in these areas
                                               18178, April 21, 2009) on pages 18179                   of the term ‘‘charter vessel’’ that                    would severely diminish economic
                                               to 18182. That summary references the                   pertains only to this prohibition. This                benefits to Alaska and other States.
                                               Council’s charter halibut stakeholder                   prohibition was developed by the                       Moreover, prohibiting the charter
                                               committee. Although this committee                      Council in 2004 to allow an individual                 halibut fishery would not achieve the
                                               made specific recommendations to the                    who holds a subsistence halibut                        objectives of this action.
                                               Council regarding the elements and                      registration certificate (SHARC) and also                 Comment 118: I disagree with the
                                               options under consideration, the                        owns a charter vessel to use the vessel                limited entry program. Could NMFS
                                               Council’s development of this rule also                 for subsistence fishing for halibut. This              allow only Alaska residents to fish for
                                               was influenced by its problem                           can be done only if the vessel’s owner                 halibut and keep the money with
                                               statement, analysis of alternatives (see                of record and his/her immediate family                 Alaskans?
                                               ADDRESSES), and extensive public                        are on board and each individual                          Response: The Halibut Act prohibits
                                               testimony.                                              engaging in subsistence fishing on board               discrimination between residents of
                                                  Comment 113: We support the criteria                 the charter vessel holds a SHARC.                      different States when making
                                               for awarding permits and anticipate that                Hence, the prohibition at 50 CFR                       allocations of the halibut resource.
                                               most charter operators in our area will                 300.66(i) prohibits any person other                   Regulations established by this action
                                               qualify under the number of vessels.                    than the charter vessel’s owner of record              apply to all permit holders, regardless of
                                               This should effectively reduce fleet size               and immediate family from being on                     their business location or place of
                                               and fishing capacity from current levels                board a charter vessel if anyone on                    residence.
                                               for charter businesses that have                        board the vessel is engaged in                            Comment 119: Why limit charter
                                               overcapitalized in recent years. Charter                subsistence fishing for halibut.                       operations? Why not also limit sport
                                               operators will still be able to lease                      Subsistence halibut regulations,                    fishing permits and commercial
                                               additional vessels beyond those for                     published April 15, 2003 (68 FR 18145),                operating permits for halibut fishing?
                                               which they receive permits under the                    prohibited retention of any subsistence                When limits are placed on halibut for all
                                               limited access program or will                          halibut that were harvested using a                    entities involved, there are fewer boats
                                               eventually procure additional permits.                  charter vessel. The Council and                        on the water and fewer fish removed,
                                                  Response: NMFS acknowledges the                      Secretary subsequently authorized an                   and everyone is subject to the same
                                               support for this rule.                                  exception for individuals who owned a                  rules.
                                                                                                       charter vessel and also held a SHARC to                   Response: Additional restrictions on
                                               Other Management Measures                                                                                      the commercial setline and unguided
                                                                                                       use the vessel for their harvest of
                                                 Comment 114: The charter industry                     subsistence halibut. The exception does                sport fisheries for halibut are outside the
                                               should support scientific research on                   not apply if anyone other than the                     scope of this action. The commercial
                                               the halibut resource. This scientific                   owner and his/her immediate family is                  setline fishery for halibut already
                                               research can be funded in part by a                     on board the vessel. This rule simply                  operates under a limited access system.
                                               percentage of charter businesses’                       adds a unique definition of ‘‘charter                  Since its implementation in 1995, the
                                               earnings going to the halibut and                       vessel’’ for purposes of this prohibition.             IFQ program for commercial setline
                                               salmon commissions for the studies that                    Comment 116: Subsistence and                        fishery for halibut and sablefish limits
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                                               are necessary to sustain these stocks.                  commercial halibut participation rights                entry to quota share and IFQ permit
                                               There is enough room in the fishery for                 should be changed. Subsistence use                     holders. A market for the distribution of
                                               the commercial and charter businesses                   should be based on need, not where you                 these permits has developed just as is
                                               to exist. Let’s work together to assure                 live. A return to the old two hook                     expected for charter halibut permits. In
                                               that this natural resource will remain                  subsistence gear would be nice, as                     addition, the commercial setline fishery
                                               abundant forever. We all want healthy                   would having to adhere to sport fishing                has taken large reductions in its catch
                                               abundant stocks.                                        regulations on daily limits. There is no               limits in recent years.


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                                                  The unguided sport fishery for halibut               Table 3 of the EA/RIR/IRFA prepared                    (see section 28(2) of the annual
                                               is different from either the commercial                 for this action [see ADDRESSES]). It did               management measures published
                                               setline fishery or the commercial charter               not recommend any restrictions on the                  March 19, 2009 (74 FR 11681)). If
                                               halibut fishery. Participation and                      unguided sport harvest of halibut                      charter operators and sport fishermen
                                               harvest levels have remained relatively                 because that did not appear to be                      have freezers on their vessels large
                                               steady in the unguided sport fishery for                necessary from the relatively stable                   enough to accommodate such pieces of
                                               over 10 years (1995 to 2007) and amount                 long-term trend in estimated harvests by               halibut, no regulation prohibits them
                                               to roughly seven percent of total halibut               this sector. If this trend changes in the              from being frozen.
                                               removals. By comparison, the harvest                    future, the Council or the IPHC may                       A requirement to save halibut
                                               and participation levels in the guided                  consider further restrictions on the                   carcasses is not included in this rule
                                               sport sector have increased over the                    unguided sport harvest of halibut in                   and is not currently in effect. The
                                               same period and amount to roughly 14                    Areas 2C and 3A.                                       requirement that limits the extent to
                                               percent of total removals. This growth                     Comment 121: Some rural Southeast                   which sport-caught halibut may be cut
                                               in estimated halibut removals by the                    Alaska communities are heavily                         and to leave the skin on is necessary to
                                               charter halibut fishery prompted action                 dependent on commercial and                            enforce the existing daily bag and
                                               by the Council and NMFS. For now, the                   subsistence fishing. Residents in rural                possession limits. Because this
                                               IPHC regulations governing unguided                     Southeast Alaska, where there is no                    regulation is needed to enforce other
                                               sport fishing for halibut appear to be                  store and transportation in and out is by              restrictions, it is not designed to
                                               sufficient for managing this relatively                 boat or seaplane service, must live off                discriminate against any particular
                                               small fishery.                                          the surrounding land and seas. The                     charter vessel business model or sector
                                                  Comment 120: The moratorium                          moratorium must be limited to the                      of the industry. The current
                                               ignores the rapid and recent growth of                  guided sport charter sector only. Any                  configuration of the charter sector fleet
                                               the unguided recreational fishery and                   extension to subsistence users would be                was considered by the Council and the
                                               growth in the subsistence fishery. State                an added hardship on the local                         Secretary when this rule was developed
                                               of Alaska annual harvest estimates show                 economy already suffering from                         and implemented.
                                               that unguided halibut harvest in Area                   regulations that have unforeseen long-                    Comment 123: I support limited
                                               2C increased from 122,562 pounds in                     term effects on rural fishing towns.                   access as it will help limit over fishing
                                               2006 to 1.131 million pounds in 2007.                      Response: This rule directly affects                in the charter sector. Also, I believe that
                                               The commercial catch limit is set by                    only the charter halibut fisheries in                  NMFS and the Council should continue
                                               subtracting all other removals from the                 Areas 2C and 3A. No changes are made                   to pursue an IFQ program for halibut
                                               total CEY (constant exploitation yield);                by this action to restrict commercial                  charter operators. Commercial setline
                                               therefore, an allocation decision should                setline fishing or subsistence halibut                 fishermen understand that lower quotas
                                               not be made without taking into                         fishing opportunity.                                   are due to stress on the stocks, but it is
                                               consideration the present participation                    Comment 122: I support the idea of                  hard to see the commercial quota
                                               in not only the commercial quota share                  limiting the number of participants in                 lowered due to continued pressure on
                                               and guided recreational fisheries but                   the charter halibut fleet. However, as an              the stocks by commercial sport charter
                                               also the unguided recreational fisheries.               operator who runs trips that do not                    operators who have consistently
                                                  Response: Actually, the ADF&G                        return to port for 7 to 10 days at a time,             exceeded their harvest guidelines. The
                                               annual harvest estimates indicate that                  compliance with some rules is difficult.               only fair way to resolve this is to
                                               the unguided fishery in Area 2C                         These include the requirement to save                  develop an IFQ system for the charter
                                               harvested about 723,000 pounds (328.0                   carcasses, not being able to skin halibut,             fleet. This is the only way to protect the
                                               mt) in 2006, 1,131,000 pounds (513.0                    not being able to freeze halibut on                    resource for all users—commercial,
                                               mt) in 2007, and 1,265,000 pounds                       board, and having different size limits                subsistence, and guided and unguided
                                               (573.8 mt) in 2008. These estimates are                 for a second halibut. Implementing such                sport fishermen—and minimize
                                               point estimates at the midpoint of a                    complicated rules should be avoided in                 conflicts between the sectors.
                                               range of possibilities. For example, the                the future, and the needs of operations                   Response: NMFS acknowledges the
                                               95 percent confidence interval for the                  that do not return to port each day                    support for this rule. The preamble to
                                               estimated harvest by the private                        should be considered.                                  the proposed rule for this action (74 FR
                                               unguided sport fishery in 2007 ranges                      Response: NMFS acknowledges the                     18178, April 21, 2009) and the notice for
                                               between 987,000 pounds (447.7 mt) and                   support for this rule. No restrictions                 the December 9, 2005, control date for
                                               1,274,000 pounds (577.9 mt). In                         exist on freezing sport-caught halibut on              the guided sport fishery for halibut (71
                                               addition, a growth trend is not apparent                board a vessel. The comment is referring               FR 6442, February 8, 2006) describe the
                                               in the long-term harvest estimates of the               to an allowance under ADF&G                            development of a charter vessel IFQ
                                               unguided sport fishery. For example,                    regulations that discounts sport-caught                program and the reasons why it was not
                                               over the 10-year period 1997 through                    fish preserved for human consumption                   implemented. The Council may revisit
                                               2006, the ADF&G estimated unguided                      from any daily bag limit that may apply                this type of limited access system in the
                                               sport harvest of halibut ranged from a                  to that fish. These ADF&G regulations                  future. If so, the Council will develop
                                               low of 723,000 pounds (328.0 mt) in                     do not apply to sport-caught halibut,                  regulations for such a system and
                                               2001 and 2006 to a high of 1,187,000                    however. All halibut on board a vessel                 recommend them to the Secretary as a
                                               pounds (538.4 mt) in 2004. The average                  are counted toward the daily bag and                   separate action.
                                               estimated unguided sport harvest of                     possession limits that apply in the                       Comment 124: I do not support
                                               halibut over this period was 922,400                    regulatory area in which the vessel is                 establishing an IFQ program for the
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                                               pounds (418.4 mt). With this                            operating. Hence, sport-caught halibut                 charter halibut fishery in IPHC Areas 2C
                                               perspective, the single year estimate of                possessed onboard a vessel must not be                 and 3A.
                                               1,131,000 pounds (513.0 mt) in 2007                     filleted, mutilated, or otherwise                         Response: This action does not
                                               does not appear to be a significant                     disfigured in any manner. An exception                 implement an IFQ program for the
                                               increase. The Council considered the                    allows cutting halibut into two dorsal                 charter halibut fishery. The preamble to
                                               unguided recreational fishery harvest                   pieces, two ventral pieces, and two                    the proposed rule for this action (74 FR
                                               levels when it developed this rule (see                 cheek pieces, with skin on all pieces                  18178, April 21, 2009) and the notice for


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                                               the December 9, 2005, control date for                  in Area 2C and 296 in Area 3A) will                    crew fish. For this reason, retention of
                                               the guided sport fishery for halibut (71                qualify for initial allocation of charter              halibut by skipper and crew needs to be
                                               FR 6442, February 8, 2006) describe the                 halibut permits under this rule. Those                 eliminated. The final rule should
                                               development of a charter vessel IFQ                     businesses that do not qualify for                     include a permanent prohibition against
                                               program and the reasons why it was not                  initially allocated permits may acquire                retention of halibut by skipper and crew
                                               implemented at that time.                               them by transfer. The option the                       for 3A and 2C (if necessary) as part of
                                                  Comment 125: I support the one-                      comment refers to is a component of the                this action. A prohibition on skipper
                                               halibut daily bag limit to protect the                  Catch Sharing Plan adopted by the                      and crew retaining halibut was enacted
                                               halibut resource. It is very frustrating to             Council in October 2008. A proposed                    in 2009 in the one-fish bag limit for
                                               watch the Area 2C halibut charter                       rule that would implement the Catch                    Area 2C.
                                               industry consistently over fish its GHL                 Sharing Plan, if it is approved, will be                  Response: NMFS will enforce the
                                               every year while the commercial setline                 published by NMFS for public                           daily bag limit for sport-caught halibut
                                               fishermen must quit fishing when their                  comment.                                               based on the area being fished and
                                               quota is met. The same requirement                         Comment 128: One comment                            whether the anglers are charter vessel
                                               should be placed on the charter sector.                 suggested that if NMFS intends to limit                anglers or non-guided anglers. For
                                               Please keep the one-halibut daily bag                   recreational removals of halibut, it                   example, under current regulations, the
                                               limit in place.                                         should establish a fair and equitable                  daily bag limit for charter vessel anglers
                                                  Response: The one-halibut daily bag                  baseline allocation for the recreational               in Area 2C is one halibut per day (50
                                               limit that was implemented in 2009 on                   sector, establish a near real-time                     CFR 300.65(d)(2)), while non-guided
                                               charter vessel anglers in Area 2C (74 FR                recreational harvest accounting method,                anglers in that area and all anglers in
                                               21194, May 6, 2009) is designed to keep                 and implement harvest control                          Area 3A may catch and retain two
                                               the overall harvest of charter vessel                   measures for recreational harvest effort               halibut per day (section 28(1)(b) of the
                                               anglers in Area 2C close to the GHL for                 to ensure that the recreational sector                 annual management measures
                                               that area. That action is different from                does not exceed its allocation.                        published March 19, 2009, at 74 FR
                                               this rule.                                                 Response: The intended effect of this               11681). Under this rule and current bag
                                                  Comment 126: I generally support the                 rule is to curtail growth of fishing                   limit regulations, a charter vessel with
                                               necessity to conserve the halibut                       capacity in the guided sport fishery for               three charter vessel anglers on board in
                                               fishery. However, my concern is to the                  halibut, not to directly limit recreational            Area 2C will be limited to three halibut
                                               impact on the sports fisherman and the                  removals of halibut. The suggestions                   per day, regardless of whether the
                                               guided sport charter vessel as a small                  provided in the comment are beyond                     charter halibut permit on board the
                                               entity in a vast industry. The one-fish                 the scope of this action. These                        vessel was endorsed for a larger number
                                               bag limit in Area 2C will virtually end                 suggestions could be made to the                       of anglers.
                                               charter fishing for halibut and reduce                  Council, IPHC, or ADF&G with respect                      Currently, the guide and crew on a
                                               the guided angler harvest to the lowest                 to timely estimation of recreational                   charter vessel in Area 2C are prohibited
                                               level in the last 10 years.                             harvests.                                              from catching and retaining halibut
                                                  Please reconsider not only the stated                   Comment 129: Supply and demand                      during a charter fishing trip, and the
                                               intent to ‘‘* * * limit the harvest of                  will limit the charter fleet. If a charter             number of lines used to fish for halibut
                                               Pacific halibut by guided sport charter                 service cannot compete, it will and                    are limited to the number of charter
                                               vessel anglers * * *’’ but reassess this                should be forced out by market forces.                 vessel anglers on board or six,
                                               action’s impact to the non-resident                     When the economy, tourism, weather,                    whichever is less (50 CFR 300.65(d)(2)).
                                               fisherman and the industry that                         or other factors impact businesses,                    In 2009, and in several previous years,
                                               provides this service. There are other                  operations will close; consequently,                   ADF&G also prohibited skipper and
                                               means to accomplish conservation                        there will be fewer people fishing and                 crew retention of all fish and limited the
                                               objectives without targeting or                         fewer fish caught. Those who work hard                 number of rods to the number of
                                               destabilizing one halibut fishery in favor              will likely survive and those who do not               (paying) charter vessel anglers onboard
                                               of another.                                             will fail; it does not matter how long                 in Area 3A (Emergency Order No.
                                                  Response: This comment appears to                    they have been chartering. This is a                   2–R–3–03–09). The Council could
                                               be a reaction to the final rule published               service industry and businesses will                   recommend to the Secretary that the
                                               on May 6, 2009 (74 FR 21194). That                      generally succeed or fail based on their               same guide/crew and line limit applied
                                               action reduced the daily bag limit of                   service.                                               currently in Area 2C also apply in Area
                                               halibut for charter vessel anglers from                    Response: NMFS agrees that charter                  3A. That change is outside the scope of
                                               two halibut per day to one halibut per                  vessel operations provide a service and                this action.
                                               day. This rule to establish a limited                   that they operate in a competitive                        Comment 131: The final rule should
                                               access system for the charter halibut                   market. However, NMFS disagrees that                   limit the number of rods a charter vessel
                                               fishery in Areas 2C and 3A does not                     supply and demand alone will                           may fish to the number of angler
                                               affect the earlier one-halibut bag limit                sufficiently control harvesting capacity               endorsements on the charter halibut
                                               rule.                                                   in the charter halibut fleet to the desired            permit. This should be added to the rule
                                                  Comment 127: I believe the goal of the               levels. Experience in Area 2C                          so that a charter vessel could not fish
                                               Council is to put the charter operations                demonstrates that under profitable price               extra rods if the number of passengers
                                               out of business. The Council is                         and cost considerations, excessive                     on board exceeds the number of angler
                                               considering an option of having the                     capacity will occur in the fishery. This               endorsements. It would also prevent
                                               tourist buy the second fish from the                    is due primarily to the fact that access               fishing by skipper and crew fishing
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                                               commercial side. If IFQs are being sold                 to the fish is free in an open access                  under the claim that they are fishing for
                                               at $25 per pound, my guests will have                   fishery.                                               another species.
                                               to pay $2,500 for a 100-pound fish.                        Comment 130: The Analysis stated                       Response: Current NMFS regulations
                                                  Response: The objective of this rule is              that for enforcement the number of                     (at 50 CFR 300.65(d)(2)(iii)) already
                                               not to put charter vessel operations out                harvested halibut on the vessel should                 limit the number of lines used to fish for
                                               of business. NMFS has estimated that                    not exceed the client endorsement                      halibut in Area 2C to six or the number
                                               about 527 charter vessel businesses (231                through the ‘‘gifting’’ of skipper and                 of charter vessel anglers on board,


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                                               590                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               whichever is less. This action limits the               trips that were taken in 2004 or 2005,                 sport fishing) sport fishing is less safe.
                                               number of charter vessel anglers                        multiplied by the most people that were                Therefore this action may lead to
                                               catching and retaining halibut to the                   taken fishing on that boat. Issuing                    increased levels of injury and possibly
                                               angler endorsement specified on the                     permits for trips would not work                       death among recreational anglers.
                                               charter halibut permit.                                 because you cannot always fill the seats.              Magnuson-Stevens Act National
                                                  Comment 132: Localized moratoria                     It would be preferable if the permits                  Standard 10, which requires that
                                               within local area management plan                       were issued with a yearly amount of fish               conservation and management measures
                                               (LAMP) areas could also be                              that can be retained. Each permit should               promote the safety of human life at sea
                                               implemented to achieve sustainable                      be issued with the number of fish                      to the extent practicable, should not be
                                               halibut harvests without having to limit                stamped on it. There would be no need                  ignored.
                                               halibut charter operators.                              to renew the permits yearly; they could                   The other comment recalled the safety
                                                  Response: One LAMP currently exists                  be permanent, with a transferable                      comment that NMFS responded to in
                                               for Sitka Sound and no others are being                 option. The permit should not be                       the final rule establishing the Area 2C
                                               considered. Although alternative means                  limited to the type of boat that it is                 one-halibut daily bag limit (Comment
                                               may be found that would achieve the                     issued to. If a person runs a six pack                 124 on page 21222 published May 6,
                                               objectives of this rule, the Council and                boat and wanted to run a larger boat and               2009 at 74 FR 21194). In its response,
                                               NMFS found that this limited access                     take more fishermen per trip, then it                  NMFS claimed to be unable to confirm
                                               system best fit the Council’s objectives                should be allowed to do that, as long as               when the last charter fatality in Alaskan
                                               and is consistent with the requirements                 it stays within the overall fish issued for            saltwater occurred. NMFS should
                                               of the Halibut Act.                                     that permit.                                           contact USCG Alaska and ask them
                                                  Comment 133: A 100-pound fish limit                     There would be concerns about                       specifically for this information. The
                                               for the charter fisherman will do little                tracking the amount of fish caught per                 information is available and it is the
                                               to protect the spawning population of                   boat to make sure no one is cheating.                  responsibility of NMFS to secure it from
                                               halibut. It would be a waste of time to                 The best thing may be to eliminate                     the USCG, especially when the issue in
                                               put a limit on the sport fish size and not              logbooks and issue punch cards. They                   question is safety.
                                               the size of fish caught in the commercial               could be generic with a line on them for                  Response: This rule will not create
                                               fishery.                                                the captain to write the date that fish                new safety risks. The number of charter
                                                  Response: No weight limit exists on                  were caught, and once they are                         halibut permits that NMFS expects to
                                               fish caught by charter vessel anglers in                punched, they become void. The punch                   issue under this rule, and the numbers
                                               either Area 2C or 3A. This rule does not                cards could be thrown out the following                of associated endorsements, create
                                               establish a weight limit on halibut                     day. When you are out of punch cards,                  significant opportunities for operators to
                                               harvested by charter vessel anglers in                  you are done for the year.                             meet existing levels of angler demand
                                               these areas. The comment is irrelevant                     Response: Under this rule, charter                  for guided halibut fishing, as well as
                                               to this rule.                                           halibut permits will be issued to                      expanded demand. Although National
                                                  Comment 134: Several comments                        qualifying businesses, not to individual               Standard 10 does not apply to this rule
                                               suggested that NMFS should implement                    vessels. Each charter halibut permit will              because it is authorized under the
                                               harvest restrictions instead of the                     have an angler endorsement number                      Halibut Act, not the Magnuson-Stevens
                                               limited access system. Suggestions                      specifying the largest number of charter               Act, promoting the safety of human life
                                               included (1) a one halibut per day rule                 vessel anglers that may be catching and                at sea is a good standard for all fishery
                                               with an annual limit of four to six fish                retaining halibut on a vessel carrying                 regulations. This rule adheres to this
                                               for charter anglers, (2) regulations                    the permit. The angler endorsement                     standard by not creating new safety
                                               similar to Oregon’s one fish per day,                   number on the permit will be based on                  risks and by stabilizing the charter
                                               minimum size 32 inches, and the first                   the highest number of charter vessel                   halibut fishery. In its analysis of the
                                               fish you catch over 32 inches is your                   anglers that the applicant reported on                 potential effects of this rule the Council
                                               limit for the day, (3) limit the size of                any logbook fishing trip in 2004 or 2005,              and NMFS found no safety concern.
                                               halibut to a number of inches or to a                   subject to a minimum endorsement of
                                                                                                       four. The number of halibut that may be                Data Quality
                                               weight under 100 pounds, and (4) a slot
                                               limit.                                                  retained by charter vessel anglers is                     Comment 137: Logbooks are not a
                                                  Response: This rule does not impose                  limited by the daily bag limits in                     good source of information for issuing
                                               additional catch limit restrictions                     regulation for the area in which the                   charter halibut permits. The government
                                               because the objective of this action is to              vessel is operating, not by the charter                has no way to verify the accuracy of a
                                               curtail growth in the capacity of the                   halibut permit. In-season closures of the              logbook. The IRS should do an
                                               charter halibut fishery, not to control                 charter halibut fishery were not                       extensive audit to see if the money
                                               charter angler harvest. None of the                     proposed and are not implemented by                    reported to the IRS matches what was
                                               suggested alternatives would achieve                    this rule. A charter halibut permit will               put in the logbook. If the business is
                                               the objective of this action and are                    not limit the permit holder to any                     legitimate, then they could receive a
                                               outside the scope of this rule.                         number of fishing trips, and does not                  valuable limited entry permit.
                                                  Comment 135: A moratorium by itself                  limit the type of charter vessel on which                 Response: Charter halibut permits
                                               will not stabilize the charter vessel                   the permit is used. A one-halibut daily                allocated under this rule will be based
                                               industry. The charter industry does not                 bag limit for charter vessel anglers in                solely on logbook fishing trips; not the
                                               need in-season closures or a one-fish                   Area 2C was effective on June 5, 2009                  amount of halibut reported as harvested
                                               limit. A larger GHL with a moratorium                   (74 FR 21194, May 6, 2009), and is not                 in the logbooks. The Council chose to
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                                               would work, however, as it would                        affected by this action.                               rely on the fishing trip data in ADF&G
                                               guarantee an amount of fish that could                     Comment 136: Two comments raised                    Saltwater Charter Logbooks as the best
                                               be caught. That would help create a                     safety concerns. One stated that guides                available source of information on
                                               stable business plan.                                   have to meet high standards, have local                participation in the charter fishery.
                                                  As I understand the moratorium, each                 experience and knowledge, and have a                   NMFS expects that the logbook trip
                                               charter boat will be given a permit                     good safety record. Unguided (either                   information recorded is reasonably
                                               which is good for the highest number of                 outfitted or completely independent                    accurate for purposes of this action.


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                                                  Comment 138: A non-resident but                      this behavior address the objectives of                2005) and the recent participation
                                               frequent visitor to Southeast Alaska                    this action?                                           period (2008) are the best available
                                               expressed concern that more halibut                        Response: The intended effect of this               information for purposes of this rule.
                                               regulations would be necessary. The                     rule is to curtail growth of fishing                      Comment 142: The proposed rule
                                               commenter encouraged implementation                     capacity in the guided sport fishery for               discriminates against any charter
                                               of a solid regulatory foundation based                  halibut. This rule does not directly                   operation that began operating between
                                               on good science that would provide                      control the harvest of halibut nor does                2006 and 2009. The RIR does not
                                               healthy halibut populations for future                  it reduce this harvest. Under this rule,               contain any numbers on charters from
                                               generations. The commenter wanted to                    NMFS will issue charter halibut permits                2006 to 2009. The data in the Secretarial
                                               see only regulations that are necessary                 to sport fishing businesses that were                  Review Draft EA/RIR/IRFA only
                                               to ensure a healthy population for the                  authorized by ADF&G to conduct                         demonstrate activity from the charter
                                               years to come and to rest on a solid                    logbook fishing trips. The number of                   fleets from 1999 to 2005.
                                               foundation of good science.                             logbook fishing trips that will be                        Response: The Council announced a
                                                  Response: NMFS agrees that fishery                   conducted by these qualifying                          control date of December 9, 2005. NMFS
                                               management policy and the regulations                   businesses under this rule will be                     published that control date in the
                                               implementing that policy should be                      roughly the same as those taken in                     Federal Register on February 8, 2006
                                               based on the best scientific information                recent years immediately prior to this                 (71 FR 6442). The purpose of this
                                               available. This rule is not designed to                 rule. These businesses will be able to                 control date announcement was to
                                               directly control the biological condition               grow to meet potentially increased                     provide notice to persons entering the
                                               of the halibut population. To the extent                charter vessel angler demand in the                    charter halibut fishery after the control
                                               that this rule will stabilize the fishing               future by increasing their average                     date that they would not be assured of
                                               capacity of the charter halibut fishery, it             number of trips per season, increasing                 future access to the charter halibut
                                               may indirectly enhance the                              the average number of anglers carried on               fishery if a limited access system were
                                               effectiveness of other regulations that                 each trip, and other operational                       developed and implemented. Because
                                               are designed to control halibut harvests                efficiencies. Charter halibut fishing                  the Council decided to develop this
                                               and thereby support conservation of the                 opportunity will be enhanced under this                limited access system based on the
                                               stock.                                                  rule through the community charter                     control date, it did not give
                                                  Comment 139: Halibut is a finite                     halibut permits. Hence, NMFS does not                  participation credit to charter
                                               resource and needs to be managed very                   expect a shortage of charter halibut                   businesses that entered after that date as
                                               carefully using the most accurate data                  fishing opportunities. Sport fishermen                 eligible. Moreover, when the Council
                                               possible. I strongly support a halibut                  may freely choose whether to use a                     finally decided to recommend its
                                               charter limited entry program for the                   charter vessel or a unguided vessel to                 charter halibut moratorium to the
                                               guided charter sector.                                  fish for halibut. See also responses to                Secretary on March 31, 2007, the most
                                                  Response: NMFS agrees that the best                  Comments 21 and 136.                                   recent information on participation in
                                               scientific information available should                    Comment 141: The data used to                       the charter halibut fishery was from
                                               be used in fishery management and                       establish permit criteria is based on                  2005. Saltwater charter logbook data for
                                               acknowledges support for this rule.                     secondhand data with no level of                       2006 through the present was not
                                                  Comment 140: The reason stated for                   accuracy. The catch record system in                   available at that time. Since the
                                               the moratorium is to curtail growth of a                place does not have a recorded weight                  Secretarial Review Draft EA/RIR/IRFA
                                               particular industry. However, there is                  for the species being reviewed. If the                 was made available for public comment,
                                               insufficient information to prove that by               intent is to better manage the halibut                 NMFS has supplemented the Analysis
                                               passing this moratorium the desired                     fishery, reporting a certified scale                   using ADF&G logbook data from 2008.
                                               outcome will be achieved. We can only                   weight in the round should be required                 This updated Analysis is contained
                                               assume the desired outcome (based on                    in the bottomfish logbooks. This would                 within the final EA/RIR/FRFA (see
                                               this statement) is fewer charter fleet                  assist in having the best scientific                   ADDRESSES) and that information was
                                               vessels. But other statements by NMFS                   information for making management                      considered when NMFS approved this
                                               indicate that the permits available to the              decisions.                                             action and published this rule.
                                               charter industry will allow for                            Response: NMFS agrees that fishery                     Comment 143: There exists neither
                                               continued growth. Further, any charter                  management should be based on the                      proper analysis identifying the number
                                               vessels removed from the fleet will be                  best scientific information available.                 of vessels excluded nor a remedy for
                                               replaced by unguided vessels. This                      However, the intended effect of this rule              those that have made substantial
                                               proposed rule does not support the                      is to curtail growth of fishing capacity               investments.
                                               desired outcome. It only succeeds in                    in the guided sport fishery for halibut.                  Response: NMFS recently
                                               putting charter operations out of                       This rule does not directly control the                supplemented the Analysis using
                                               business, and placing more financial                    harvest of halibut. Therefore, highly                  ADF&G logbook data from 2008. This
                                               burden on the economy of all Southeast                  precise and accurate estimates of the                  updated Analysis is contained within
                                               Alaska communities and on individual                    weight of each halibut harvested by                    the final EA/RIR/FRFA (see ADDRESSES).
                                               families that rely on charter industry                  charter vessel anglers are not necessary.              This rule does not compensate charter
                                               businesses and jobs. It also places                     Charter halibut permits will be allocated              businesses that do not qualify for any
                                               unguided, unsafe, non-certified drivers                 under this rule based on the                           charter halibut permits. One reason
                                               on boats in the same area. Any client                   participation of businesses in the                     compensation is not necessary is that
                                               visiting one of the many charter resorts                charter halibut fishery using logbook                  the control date announcement (71 FR
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                                               can use his or her sport fishing license                fishing trips as evidence of                           6442, February 8, 2006) provided notice
                                               to fish for halibut, but instead of hiring              participation. The numbers of halibut                  to businesses about the risk of entering
                                               a safe, trained, USCG-licensed captain                  harvested in the past or their weight                  the charter halibut fishery after the
                                               to operate the boat, he or she can rent                 will have no bearing on the initial                    control date. Another reason
                                               the same boat from the same charter                     distribution of charter halibut permits.               compensation is not provided is that
                                               resorts and go to the same spot and fish                The ADF&G saltwater charter logbook                    businesses have value even without
                                               for the same fish. How does allowing                    data for the qualifying period (2004 and               charter permits. Charter vessel assets


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                                               may be used in fishing for species other                for the charter halibut fishery is                     purposes of this rule is a logbook fishing
                                               than halibut or for other endeavors.                    described in the proposed rule (74 FR                  trip. During the qualifying period of
                                               Also, a market for transferable charter                 18178, April 21, 2009) beginning on                    2004 and 2005, participation will be
                                               halibut permits is expected to emerge                   page 18181. The Council’s earlier                      measured by bottomfish logbook fishing
                                               under this rule that will allow                         attempts, especially that to develop an                trips because ADF&G did not require
                                               acquisition of permit(s).                               IFQ program for the charter halibut                    halibut kept or released to be reported
                                                  Comment 144: The proposed rule is                    fishery relied heavily on charter logbook              as a distinct species. Halibut were
                                               based on inadequate or projected data.                  data to determine the historical harvest               considered to be bottomfish during that
                                               IPHC clearly acknowledges the lack of                   of halibut by individual operators. In                 period. ADF&G attached instructions to
                                               recent accurate data to determine the                   contrast, this rule is based on logbook                each logbook that stated that bottomfish
                                               harvest levels for sport fishing. It has                fishing trips—not pounds of halibut                    fishing effort included effort targeting
                                               recently posted comments from its 2009                  harvested—as a measure of participation                halibut. Reporting of any one of three
                                               annual meeting stating that it will work                in the charter halibut fishery.                        types of bottomfish effort data would
                                               with sport representatives to review                       The evidence of a logbook fishing trip              qualify a trip as a bottomfish logbook
                                               Alaska sport regulations and determine                  is not so rigorous that highly accurate                trip for purposes of this rule.
                                               if changes are necessary and will work                  reporting is essential. For example,                      In 2006, ADF&G changed its required
                                               with ADF&G and NMFS staff to provide                    during the qualifying period, an ADF&G                 logbook report to specify halibut data
                                               clearer documentation of the Alaska                     saltwater charter logbook that shows the               for each logbook fishing trip. If a
                                               sport regulations. They noted support                   statistical areas where bottomfish                     business owner did not comply with
                                               for clearer data collection for accuracy                fishing occurred, or boat hours that the               specified reporting requirements, then
                                               and timely accounting and have                          vessel engaged in bottomfish fishing, or               the fishing trip will not be counted as
                                               recommended lowering the harvest rate                   the number of rods used from the vessel                either a bottomfish logbook fishing trip
                                               in Area 2, which will permit rebuilding                 in bottomfish fishing, will serve as                   during the qualifying period or a halibut
                                               of the exploitable biomass in this area.                evidence of a bottomfish logbook fishing               logbook fishing trip during the recent
                                                  Response: This rule relies on ADF&G                  trip. Using the ADF&G saltwater charter                participation period for purposes of this
                                               saltwater charter logbook data to                       logbook as the basis for this information              rule. Regardless of what any particular
                                               determine participation in the charter                  is the best available information for                  ADF&G personnel may say to an
                                               halibut fishery during the qualifying                   purposes of this rule and is consistent                operator, each operator or business is
                                               period (2004 and 2005) and recent                       with the historical and present                        responsible for complying with
                                               participation period (2008), which was                  participation requirements of the                      applicable Federal halibut fishery
                                               determined by the Council and NMFS to                   Halibut Act.                                           regulations and ADF&G reporting
                                               be the best available information on                       Comment 146: Several comments                       requirements.
                                               which to base the qualifying criteria.                  concerned the fact that halibut, as a                     Comment 147: NMFS should consider
                                               This participation is determined by                     species, were not required to be                       implementing or being prepared to
                                               numbers of logbook fishing trips; not by                reported by ADF&G in logbooks during                   implement its own logbook program for
                                               numbers or weight of halibut harvested.                 2004 and 2005. Some confusion resulted                 halibut to gather the information needed
                                               The IPHC projected sport harvest                        about whether and how to report halibut                to manage the fishery and for
                                               estimates are not pertinent to this rule.               harvested on charter vessel trips.                     development of any long term
                                               However, NMFS supports improved                         ADF&G stopped having halibut harvest                   management programs. The Alaska State
                                               accuracy and timeliness of recreational                 recorded in the logbooks after the 2001                Legislature had legislation in front of it
                                               harvest estimates of halibut and all                    season; therefore, halibut harvest was                 to repeal the sunset date in the current
                                               other species.                                          not recorded during 2004 and 2005.                     guide licensing program, which is the
                                                  Comment 145: Several comments                        Many charter operators recorded                        authorizing legislation for the logbook
                                               contend that the Council’s previous                     ‘‘bottomfishing’’ information when                     program, and at the last minute what
                                               attempts at developing limited access                   conducting halibut charters and others                 passed extended the sunset date for one
                                               for the charter halibut fishery failed due              recorded the ADF&G area fished, the                    year to January 1, 2010. Another piece
                                               to poor data. The Secretarial Review                    number of rods used, and the number of                 of legislation was introduced that again
                                               Draft EA/RIR/IRFA indicates that other                  hours fished for my halibut charter trips              will extend the sunset date for only one
                                               Council attempts at curtailing charter                  after 2001. There was no ADF&G record                  year; therefore we are concerned about
                                               halibut vessels were rejected primarily                 of harvest. Many charter operators did                 the advisability of relying on the State
                                               due to the lack of adequate data for                    not record any halibut fishing activity                logbook program.
                                               individual charter businesses. The                      because there was no place in the                         Response: The NMFS, IPHC, and
                                               proposed rule also provides a lengthy                   logbook to record it. When the ADF&G                   Council have relied, and continue to
                                               history of the Council’s consideration of               was asked how to handle halibut charter                rely, on ADF&G to collect recreational
                                               limited entry for charter vessels                       trips, some charter operators were told                fishing information regarding halibut.
                                               indicating that its 1997 control date and               by ADF&G personnel that they did not                   This information is essential to the
                                               2001 charter IFQ program failed because                 have to record halibut charter trips.                  management policies and regulations
                                               of poor data. Those data have not                       Consequently, for those operators who                  developed respectively by the IPHC and
                                               changed in respect to this proposal; the                conducted halibut charters during the                  Council. The Paperwork Reduction Act
                                               Council has used the same inaccurate                    qualifying time but did not record them                of 1995 (Pub. L. 104–13) requires
                                               data throughout this process. The data                  in the ADF&G logbooks, NMFS should                     Federal agencies to minimize the
                                               used to create the GHL is between 5 and                 consider alternative qualifying                        paperwork burden on individuals and
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                                               15 years old. It is impossible to address               documentation such as personal log                     small businesses, to minimize the cost
                                               the present participation in the fishery                books, fishing license records, and                    to the Federal government of
                                               and to determine the dependence on                      affidavits from clients.                               information collection, and to
                                               and the economics of the fishery using                     Response: As discussed in the                       strengthen the partnership between
                                               old data.                                               preamble to the proposed rule (74 FR                   Federal and State governments by
                                                  Response: The history of the Council’s               18178, April 21, 2009) on page 18185,                  minimizing the burden and maximizing
                                               work to develop a limited access system                 the basic unit of participation for                    the utility of data collection. ADF&G has


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             593

                                               a sport fishing data collection program,                Moreover, these surveys are not being                  particular management regime or
                                               staff, and infrastructure to collect                    used to establish the limited access                   criteria for entry to the charter halibut
                                               recreational fishing data. The Alaska                   system under this rule. Because the                    fishery. All previous control date
                                               Region, NMFS, by comparison does not                    intended effect of this rule is to curtail             notices also have language to this effect.
                                               have a sport fisheries division and data                growth of fishing capacity in the guided               Similarly, the public is not required by
                                               collection system. Establishing a system                sport fishery for halibut in Areas 2C and              a control date notice to invest or not
                                               to monitor the sport harvest of one                     3A, the exact number of halibut                        invest in a fishing business that may be
                                               species would be costly.                                harvested in any one area in any one                   affected by the development and
                                                  Comment 148: NMFS lacks sufficient                   year is of less concern than the growth                implementation of a limited access rule
                                               information to establish a moratorium                   trend in harvests and fishing capacity                 in the future. That decision is left to the
                                               because there was no accurate logbook                   over time.                                             business owner. The primary purpose of
                                               data on charter halibut harvests by                        Comment 150: The Council and                        a control date notice is to give notice to
                                               charter vessels in 2004 and 2005.                       NMFS have completely failed to gather                  persons contemplating an investment in
                                                  Response: The limited access system                  or evaluate data relative to the charter               a business that may be affected by a
                                               established by this rule does not rely on               sector. The Council states that the need               future limited access system that such a
                                               an accurate accounting of halibut                       for implementing a moratorium is to                    system may be developed and
                                               harvests by charter vessel anglers during               manage the fisheries within the GHL                    implemented. Affected persons can then
                                               2004 and 2005. During those years,                      policy, which the commenter asserts is                 incorporate the risk of potentially not
                                               ADF&G did not require charter vessel                    unfair and outdated. Despite the                       receiving an initial allocation of
                                               business to report the number of halibut                Council failing to present economic data               permit(s) into their investment decision
                                               that were kept or released. Instead,                    supporting its supposition, NOAA Web                   making. Risk-averse persons may decide
                                               businesses were required to report                      site data clearly show increases in quota              to delay their investment pending
                                               bottomfish effort for each logbook                      share equity and ex-vessel value                       potential regulatory changes; risk-taking
                                               fishing trip. ADF&G attached                            between 300 percent and 400 percent                    persons may not let this information
                                               instructions to each logbook stating that               statewide and within areas. This                       affect their investment decisions. In
                                               bottomfish fishing effort included effort               massive increase in profitability does                 either case, the control date notice
                                               targeting halibut. Hence, the bottomfish                not lend credence to the need for wiping               provides the public with information
                                               logbook fishing trip data are sufficiently              out the charter sector.                                that a limited access system may be
                                               accurate as evidence of participation in                   Response: NMFS estimates that a total               developed for a fishery and, if so, that
                                               the fishery for purposes of this rule. See              of 527 charter businesses will qualify for             entering the fishery after the control
                                               also responses to Comments 145 and                      an initial allocation of either a                      date may not lead to an initial allocation
                                               146.                                                    transferable or non-transferable charter               of a limited access permit.
                                                  Comment 149: A couple of comments                    halibut permit. The Analysis (see                         Comment 152: Use of the government
                                               expressed concern about the sport                       ADDRESSES) indicates this number of                    Web site to submit comments is too
                                               halibut harvest estimates based on the                  businesses is sufficient to accommodate                complicated. It was difficult to find and
                                               mail survey conducted by ADF&G. One                     market demand for guided sport fishing                 I required 30 minutes of assistance from
                                               comment noted the time lag in the                       for halibut. This rule is designed to                  a very patient NOAA employee on the
                                               survey that delayed estimates of                        curtail growth of fishing capacity in the              phone to navigate to this URL to provide
                                               harvests in one year until close to the                 charter halibut fishery as intended by                 comments.
                                               end of the following year. The other                    the Council and based on its problem                      Response: The Web site,
                                               comment noted that data published on                    statement. The GHL policy                              ‘‘Regulations.gov’’ is a Federal
                                               the Council’s Web site did not match                    implemented in 2003 (68 FR 47256,                      government Web site serving many
                                               ADF&G records, and that the mail                        August 8, 2003) was designed to                        agencies. Currently the Web site is
                                               survey conducted by ADF&G in 2007                       establish an amount of halibut harvest                 operating successfully, and NMFS has
                                               had less than 50 percent of the survey                  by the charter halibut sector that will be             received thousands of letters of
                                               forms returned. When determining any                    monitored annually. The purpose of the                 comment through it. A person
                                               action on a proposed rule in regard to                  GHL is different from this rule.                       experiencing problems with
                                               the harvest levels, all data must be                                                                           Regulations.gov should contact
                                               accurate.                                               Other Issues                                           Regulations.gov directly. In addition,
                                                  Response: The annual estimate of                        Comment 151: The public received                    help can be provided by contacting the
                                               recreational halibut harvests is based on               insufficient information about the                     individual listed under the preamble
                                               the statewide harvest survey, a mail                    moratorium and its impact on recently                  heading FOR FURTHER INFORMATION
                                               survey conducted by ADF&G to assess                     started charter halibut businesses.                    CONTACT and comments may be
                                               the harvest of all species of fish taken                Uncertainty over whether or when a                     submitted by mail, fax, or hand delivery
                                               from freshwater and saltwater in sport                  fishery is going to be managed under a                 if the electronic alternative proves too
                                               fishing. It provides a reasonably                       limited access system adversely affects                difficult.
                                               accurate estimate of these sport harvests               business activity. Investment-backed                      Comment 153: The current
                                               and is especially useful for revealing                  expectations need to be protected.                     Administration fully supports
                                               long-term trends. This rule, however,                   Council control dates and final action                 recreational fishing and its benefits to
                                               does not rely on the statewide harvest                  twice before (April 1997 and April                     the Nation, and calls for efforts to
                                               survey data. The limited access system                  2001) but neither of these rules were                  allocate a fair percentage of managed
                                               established by this rule is based on                    signed into law. This is probably why                  coastal fisheries to sport fishing.
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                                               participation in the charter halibut                    charter businesses started in later years.                Response: NMFS acknowledges that
                                               fisheries during certain years as                          Response: A control date notice is not              sport fishing in general and guided sport
                                               indicated by logbook fishing trips. The                 by itself a Federal rule. The control date             fishing in particular generates
                                               statewide harvest survey does not rely                  notice published in advance of this                    substantial economic benefits for the
                                               on a high percent of survey returns to                  action on February 8, 2006 (71 FR 6442),               Nation. This action addresses the
                                               produce reasonably accurate and precise                 stated that it did not commit the                      problem identified by the Council in its
                                               estimates of sport fishing harvests.                    Council or the Secretary to any                        problem statement and has been


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                                               594                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               determined to be fair and equitable as                  charter vessels under this rule to                     new entry to businesses that buy
                                               required by the Halibut Act (see                        increase their average number of trips                 permits from persons exiting in the
                                               discussion above under the heading                      per season in response to increased                    fishery, and provides appropriate
                                               ‘‘Consistency with Halibut Act’’).                      angler demand. Hence, this action is not               opportunities for small coastal
                                                  Comment 154: This action violates                    expected to reduce or eliminate charter                communities to enter the charter vessel
                                               Executive Order 12962. The primary                      vessel angler access to the halibut                    fishery through community charter
                                               intent of the E.O. is ‘‘to provide for                  resource in Alaska, as suggested by the                halibut permits. The program also
                                               increased recreational fishing                          comment.                                               establishes appropriate standards for
                                               opportunities nationwide.’’ Reducing                       Comment 155: Several comments                       transferable versus non-transferable
                                               and eliminating access to a public                      expressed general support for the                      permits. The commenters supported the
                                               resource is not consistent with the                     limited access system for the charter                  rule because it will in their view
                                               language contained in E.O. 12962.                       halibut fishery and urged                              ultimately curtail fishing capacity
                                                  Response: This final rule is consistent              implementation of it as soon as possible.              growth in the charter vessel sector.
                                               with E.O. 12962. This action limits the                 One comment asserted that the                             Response: NMFS acknowledges the
                                               number of charter vessels that may carry                administrative record proves a long                    support for this rule. Stakeholders from
                                               anglers catching and retaining halibut in               history of trying to address the                       all halibut user groups have provided
                                               Areas 2C and 3A. This action does not                   unchecked growth of the halibut charter                useful information during the Council
                                               reduce or eliminate charter vessel angler               industry and that the charter                          development and rulemaking process
                                               access to the Pacific halibut resource.                 community has unfortunately resisted                   for this action. Although litigation can
                                               Under this rule, an estimated 502                       these efforts as proven by their litigation            slow this process, plaintiffs have the
                                               charter halibut permits will be issued in               efforts to challenge regulatory limits.                right to challenge government rules.
                                               Area 2C and 418 permits will be issued                  Another comment expressed the view                     This fosters the development of robust
                                               in Area 3A. Each permit will have an                    that guided sport charter operations are               rulemaking that ultimately benefits all
                                               angler endorsement that specifies the                   commercial endeavors with substantial                  participants in the fishery management
                                               maximum number of charter vessel                        and growing impacts on halibut                         process.
                                               anglers that may be harvesting halibut                  populations that Federal managers have                    With regard to accounting for sport
                                               on the vessel. Multiplying the average                  for too long failed to control. Continued              harvests of halibut, the best available
                                               angler endorsement level in each area                   growth of the charter fleet is especially              information on the recreational harvest
                                               by the number of permits expected in                    damaging because it occurs without                     of halibut is derived from ADF&G sport
                                               the area yields an estimate of the total                effective means to accurately account                  fishing data sources including the
                                               number of charter vessel anglers that                   for the catch and without an effective                 Statewide Harvest Survey of sport
                                               may be served on any day. For Area 2C                   enforcement mechanism to hold the                      fishermen, the Saltwater Sport Fishing
                                               this estimate is 3,028 anglers and for 3A               fleet within its GHL. Limited access may               Charter Logbook, and creel census
                                               it is 3,577 anglers. In other words, this               improve the ability of the charter sector              surveys. NMFS finds that the
                                               rule will allow a total of 6,605 charter                to maintain a two-fish bag limit without               recreational harvest estimates provided
                                               vessel anglers to have access to the                    excessive pressure on the resource and                 by ADF&G from these data sources are
                                               halibut resource on any day. To the                     other user groups. Another comment                     reasonably accurate.
                                               extent that some charter vessel                         stated that the rapid growth of the                       This rule is not designed to directly
                                               operations, particularly in Area 2C, offer              charter boat industry and its catch of                 limit the amount of halibut harvested in
                                               half-day trips, this estimate is                        halibut in these areas is out of control               the charter halibut fishery, nor is it
                                               conservative. In addition, this estimate                and not sustainable and that NMFS                      designed to limit the sport harvest of
                                               of charter vessel angler opportunity                    should implement this moratorium in                    halibut in localized areas. Scientific
                                               does not include the potential                          Areas 2C and 3A because the halibut                    information does not exist that would
                                               additional community charter halibut                    stocks, particularly in Area 2C, are in                discern localized depletion at a scale
                                               permits that may be available to CQEs.                  desperate need of rebuilding. This view                smaller than an IPHC area or attribute it
                                                  Another way of judging whether                       was expressed also by a recreational                   to a particular gear group within Area
                                               charter vessel angler opportunity for                   angler who wrote that this is an                       2C or Area 3A. The purpose of this
                                               access to the resource is constrained                   important step toward controlling the                  action is to curtail growth of fishing
                                               under this rule is to compare the                       continued over utilization of the near                 capacity in the charter halibut fishery.
                                               average number of logbook fishing trips                 shore resource and that this step to limit             By stabilizing the number of vessels
                                               per vessel per season in 2008 with the                  the number of halibut charters is long                 participating in this fishery, other
                                               average number of trips per vessel per                  overdue. The angler strongly urged the                 regulations that restrict the harvest of
                                               season that will be needed under this                   Secretary of Commerce to approve the                   charter vessel anglers may have
                                               rule to serve the same number of charter                charter halibut moratorium and to                      improved effectiveness.
                                               vessel anglers that fished in 2008.                     implement it as soon as possible.                         Comment 156: As a halibut charter
                                               Charter halibut vessels in Area 2C                         Other comments from participants in                 operator, I have been adversely affected
                                               averaged 36 trips per season in 2008.                   the charter vessel and commercial                      by the publicity and rumors of reduced
                                               Based on the total number of permits                    setline sectors indicated that the                     halibut harvests and draconian
                                               expected to be initially issued under                   program will be a first step in                        measures such as a one-fish bag limit
                                               this rule, charter vessels will need to                 developing a long-term solution to                     that confuse recreational anglers about
                                               make 52 trips in Area 2C to serve the                   ongoing conservation concerns and                      their opportunities to access to the
                                               same number of charter vessel anglers                   allocation disputes between the two                    halibut resource. The limited access
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                                               that fished in 2008. In Area 3A, charter                sectors. The comments indicated that                   system may help alleviate some of this
                                               vessels took an average of 38 trips                     the program will stabilize the fishery                 uncertainty for business owners. The
                                               during the season in 2008. Under this                   and provide a foundation for additional                length of time the Council and NMFS
                                               rule, the same number of anglers could                  market-based management programs                       have taken to get to this point has made
                                               be served by 56 trips. Based on a                       such as individual quotas. The charter                 it difficult for those in the fishery to
                                               practical halibut fishing season of 100                 halibut permit program fairly balances                 make business decisions. Unfortunately,
                                               days, opportunity exists for permitted                  past and current participation, limits                 there has been significant charter


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                              595

                                               turnover and new businesses have                        charter vessel angler. On June 5, 2009,                action proposed to apply this
                                               started or existing businesses have                     NMFS implemented regulations limiting                  prohibition to §§ 300.65 and 300.67. The
                                               expanded. Support for the program is                    charter vessel anglers in Area 2C to                   change in § 300.66(p) from the proposed
                                               declining because many of these new                     catching and retaining one halibut per                 to final rule clarifies that persons are
                                               businesses say they will not qualify for                day (May 6, 2009, 73 FR 21194). These                  also prohibited from submitting
                                               the program.                                            regulations added a definition of charter              inaccurate information to an authorized
                                                  Response: NMFS acknowledges the                      vessel angler to § 300.61 for purposes of              officer.
                                               time that has transpired between the                    § 300.65(d). The proposed rule to                         6. In § 300.66, the word ‘‘operate’’ is
                                               Council action to adopt the charter                     implement a charter halibut permit                     changed to ‘‘be an operator of’’ in
                                               halibut moratorium and Secretarial                      program (April 21, 2009, 74 FR 18178),                 paragraphs (r), (s), (t), (u), and (v). This
                                               action to promulgate this rule. During                  proposed a revision to the definition of               change from the proposed rule is made
                                               this time, NMFS also implemented a                      charter vessel angler that inadvertently               to ensure consistency with the
                                               one-halibut daily bag limit for charter                 excluded the reference to § 300.65(d).                 definition of operator in § 300.2, as
                                               vessel anglers in Area 2C (74 FR 21194,                 To maintain the current definition of                  described in change 2 from the
                                               May 6, 2009). Limited access systems                    charter vessel angler in § 300.61, the                 proposed rule.
                                               including this one typically are                        reference to § 300.65(d) is added in this                 7. In § 300.66(r) and § 300.67(a)(1), the
                                               complicated to implement. NMFS                          final rule.                                            word ‘‘original’’ is added before ‘‘valid
                                               acknowledges also that the entry and                       2. In § 300.61, the definition of charter           charter halibut permit’’. This addition
                                               exit rate of charter vessel fishing                     vessel operator is not revised. The                    clarifies that an operator of a vessel with
                                               businesses may be high relative to other                current definition of charter vessel                   one or more charter vessel anglers
                                               businesses. Publication of the December                 operator is for purposes of § 300.65(d),               catching and retaining Pacific halibut on
                                               9, 2005, control date (71 FR 6442;                      and the proposed rule would have                       board must have on board an original
                                               February 8, 2006), however, announced                   applied the definition for purposes of                 valid charter halibut permit. A copy or
                                               that persons entering the charter halibut               § 300.67 in addition to § 300.65(d). On                facsimile of a valid charter halibut
                                               fishery after the control date will not be              further examination of the proposed                    permit would not meet the requirements
                                               assured of future access to the fishery if              rule text, NMFS determined that the                    of §§ 300.66 and 300.67.
                                               a limited access system is implemented.                 definition of charter vessel operator is                  8. In § 300.66, paragraph (w) is not
                                               With the intended stability that this rule              not needed for purposes of § 300.67.                   included in the final rule. On further
                                               will bring to the charter halibut fishery,              This final rule, at §§ 300.66 and 300.67               examination of the proposed rule text,
                                               confusion among recreational anglers                    (see changes 3, 6, and 9 from the                      NMFS determined that regulations in
                                               should dissipate.                                       proposed rule), references the definition              § 300.67 regarding crew member
                                                  Comment 157: Halibut charter fishery                 of operator in § 300.2. Operator means,                compliance would be unnecessarily
                                               participation rules should be simple,                   with respect to any vessel, the master or              redundant. The prohibition on crew
                                               easy to implement, and easy to enforce.                 other individual aboard and in charge of               members catching and retaining halibut
                                               I like the idea of a limited number of                  that vessel. This definition is consistent             during a charter fishing trip at
                                               permits awarded to established fishing                  with the intended definition of charter                § 300.65(d)(ii) is not changed with this
                                               guides on a seniority basis. Limiting the               vessel operator in the proposed rule.                  final rule.
                                               number of boats fishing seems like a                    This change is also consistent with the                   9. In § 300.67(a)(1), general permit
                                               straightforward way to control the                      suggestion in Comment 80 to clarify the                requirements, ‘‘charter vessel operator’’
                                               harvest of halibut taken by sports                      proposed definition of charter vessel                  is changed to ‘‘operator’’. This change is
                                               charter.                                                operator.                                              made for consistency with the definition
                                                  Response: This action is intended to                    3. In § 300.61, the definition of crew              of operator in § 300.2, as described in
                                               curtail growth of fishing capacity in the               member is revised. This final rule                     change 2 from the proposed rule.
                                               guided sport fishery for halibut. This                  changes the reference to ‘‘charter vessel                 10. In § 300.67(a)(1), text is added at
                                               action, by itself, is not designed to limit             operator’’ from the proposed rule to                   the end of the paragraph to clarify that
                                               the number of charter vessel anglers                    ‘‘operator of a vessel with one or more                a charter halibut permit holder must
                                               who may use sport fishing guide                         charter vessel anglers on board’’. This                insure that the operator of the permitted
                                               services or their harvest of halibut.                   change reflects NMFS’s determination                   vessel complies with all requirements of
                                               However, by stabilizing the number of                   to replace charter vessel operator with                §§ 300.65 and 300.67.
                                               vessels participating in this fishery, the              operator, as defined in § 300.2, for                      11. In § 300.67(a)(1) and (a)(3), text is
                                               effectiveness of other regulations that                 purposes of § 300.67. This                             added to clarify that the angler
                                               limit the harvest of halibut by charter                 determination is described in change 2                 endorsement on a charter vessel
                                               vessel anglers may be improved.                         from the proposed rule.                                permit(s) must be equal to or greater
                                                                                                          4. In § 300.61, a definition of ‘‘valid’’           than the number of charter vessel
                                               Changes From the Proposed Rule                          is added to clarify its meaning with                   anglers who are catching and retaining
                                                  This action was proposed and public                  respect to a charter halibut permit. For               halibut. In paragraph (a)(1) the phrase
                                               comments were solicited for 45 days                     purposes of §§ 300.66 and 300.67, a                    ‘‘at least’’ is added to the last phrase of
                                               beginning on April 21, 2009 (74 FR                      valid charter halibut permit is the                    the sentence to read, ‘‘* * * endorsed
                                               18178), and ending June 5, 2009. By the                 permit currently in effect.                            for at least the number of charter vessel
                                               end of the comment period 166 public                       5. In § 300.66(p), text is added to                 anglers who are catching and retaining
                                               submissions were received. All                          clarify that a person is prohibited from               Pacific halibut.’’ The language of the
                                               comments received by the comment                        submitting inaccurate information to an                proposed rule, without the ‘‘at least’’
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                                               ending date are summarized and                          authorized officer as defined in § 300.2.              phrase, implied that a charter halibut
                                               responded to above under the heading                    The paragraph at § 300.66(p) currently                 permit endorsement had to be equal to
                                               ‘‘comments and responses.’’ The                         prohibits a person from failing to submit              the number of charter vessel anglers on
                                               following 24 changes are made from the                  or submitting inaccurate information on                board. This implied meaning was not
                                               proposed rule in this final rule.                       any report, license, catch card,                       intended. For the same reason, in
                                                  1. In § 300.61, a reference to                       application or statement required under                paragraph (a)(3), the phrase ‘‘up to’’ is
                                               § 300.65(d) is added to the definition of               § 300.65. The proposed rule for this                   substituted for the word ‘‘only’’ to


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                                               596                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                               clarify that the angler endorsement does                also includes ‘‘sport fish business owner              transferable. Finally, in the Analysis
                                               not require a charter vessel to have the                license,’’ ‘‘sport fish business license,’’            (ADDRESSES) section 2.5.5 makes clear
                                               maximum number of anglers on board                      and ‘‘ADF&G business license.’’ The                    that the Council intended that the
                                               to make the charter halibut permit valid.               proposed rule (at page 18185) discussed                number of permits designated
                                               Rather, the number of charter vessel                    the various terms used to describe this                transferable would be controlled by the
                                               anglers on board a charter vessel must                  authority from the State of Alaska,                    lesser of the number of vessels that met
                                               not exceed the angler endorsement on                    ADF&G, granted as a registration or                    the 15-trip minimum criteria in one year
                                               its permit. These clarifying words also                 license that authorized every charter                  of the qualifying period or the number
                                               respond in part to a question raised in                 vessel fishing trip. Although discussed                of vessels that met the 15-trip minimum
                                               Comment 86.                                             in the proposed rule preamble, this                    criteria in the recent participation year.
                                                  12. In § 300.67, paragraphs (b) and (d),             clarification did not appear in the                       17. In § 300.67(f)(3), the information
                                               are revised to clarify the order of                     proposed rule text. This oversight was                 element, ‘‘the statistical area(s) where
                                               determining whether an applicant for                    pointed out in Comment 83.                             bottomfish fishing occurred,’’ is added
                                               one or more charter halibut permits is                     15. In § 300.67(d)(1)(iii), a sentence is           to correct an oversight of not including
                                               eligible for any permits, and if so, how                added to clarify that the vessel used to               this information element in the
                                               many, and whether any will be                           qualify for a transferable permit during               proposed rule. The proposed rule
                                               designated as transferable. The                         one of the qualifying years (2004 or                   preamble, on page 18185, discussed the
                                               organization of paragraph (b) may have                  2005) does not have to be the same                     various information elements that
                                               confused qualifying criteria for a                      vessel used to qualify during the recent               would be required as evidence of a
                                               transferable permit with the                            participation year (2008). The proposed                halibut logbook fishing trip during the
                                               determination of how many permits                       rule regulatory text at paragraph                      recent participation period (2008). The
                                               could qualify for a transferable                        (b)(2)(ii) and (iii) stated that qualifying            proposed rule proposed a definition of
                                               designation and whether the same                        for a transferable permit would require                ‘‘halibut logbook fishing trip’’ to include
                                               logbook fishing trips that qualified an                 meeting the minimum of 15 logbook                      information about the number of halibut
                                               applicant for a transferable permit(s)                  fishing trips with the same vessel in                  kept or released or the number of boat
                                               could be used also to qualify for a non-                each year (qualifying and recent                       hours that the vessel engaged in
                                               transferable permit(s). The revised                     participation year). This text could be                bottomfish fishing. The 2008 ADF&G
                                               paragraphs also better reflect the                      interpreted to mean that the logbook                   saltwater sport fishing charter trip
                                               explanation in the preamble to the                      trips had to have been made on the                     logbook required the recording of the
                                               proposed rule than did the proposed                     same vessel in both years (See                         primary ADF&G statistical area fished
                                               rule regulatory text in paragraphs (b)                  Comments 54 through 57). This is not                   when boat hours fished for bottomfish
                                               and (d). The revised paragraphs make                    the intended interpretation. What is                   were recorded. Hence, reporting the
                                               no substantive changes in the qualifying                intended, as clarified in this change, is              statistical area(s) where bottomfish
                                               criteria, but rather reorganize the                     that the minimum 15 bottomfish                         fishing occurred as optional evidence of
                                               proposed rule text of these paragraphs                  logbook fishing trips had to have been                 participation is consistent the 2008
                                               to make clear the following sequence.                   made from the same vessel in either                    logbook reporting procedures. Adding
                                               First, to qualify for any type of permit—               2004 or 2005. Also, the minimum 15                     statistical area(s) also is consistent with
                                               non-transferable or transferable—an                     halibut logbook fishing trips during                   the logbook fishing trip information
                                               applicant must apply within the                         2008 had to have been made from the                    elements in § 300.67(f)(2) and with the
                                               application period and meet the logbook                 same vessel during that year, but the                  evidence of participation
                                               fishing trip requirements described in                  vessel used in 2008 is not required to be              recommendation by the Council (Issue 9
                                               paragraph (b)(1). Second, if the                        the same vessel that was used in either                in the March 31, 2007, motion adopted
                                               applicant meets the standards described                 2004 or 2005.                                          by the Council). The number of rods
                                               in paragraph (b), then the number of                       16. In § 300.67(d), paragraph (d)(2) is             used from the vessel in bottomfish
                                               permits will be determined as described                 added for consistency with the                         fishing is not included in § 300.67(f)(3)
                                               in paragraph (c), which is unchanged                    qualifications for a transferable permit               because it was not required to be
                                               from the proposed rule. Finally, the                    described in the preceding paragraph                   reported in 2008 logbooks. Moreover,
                                               designation of one or more of the                       (d)(1) (previously paragraph (b)(2) in the             any guided bottomfish fishing in 2008
                                               permits as transferable will require                    proposed rule), the preamble to the                    should have been reported in terms of
                                               meeting the standards described in                      proposed rule, and the Analysis. The                   boat hours and bottomfish statistical
                                               paragraph (d).                                          proposed rule language suggested that                  area, which would be the requisite
                                                  13. In § 300.67(b)(2)(ii) (previously                the number of transferable permits                     evidence of participation.
                                               paragraph (b)(5)(ii) in the proposed                    would be equal to the number of vessels                   18. In § 300.67(f)(7), the year ‘‘2008’’
                                               rule), a minor technical edit is made to                that met the minimum logbook trip                      is substituted for the proposed rule
                                               remove the word ‘‘the’’ and to change                   criterion of 15 during only the                        place holder text that read, ‘‘[insert the
                                               the word ‘‘owners’’ to its singular form                applicant-selected year of the qualifying              recent participation year].’’ As
                                               ‘‘owner.’’ These minor changes correct                  period. NMFS found several                             explained in the proposed rule on page
                                               an editorial oversight in the proposed                  inconsistencies between this language                  18182 of the proposed rule, specifying
                                               rule and make the word ‘‘owner’’ in its                 and other statements in the proposed                   the year that would be the recent
                                               singular form consistent throughout the                 rule and in the Analysis. First, a permit              participation period was held pending a
                                               regulatory text.                                        designation of transferable requires that              NMFS determination of the most recent
                                                  14. In § 300.67(b), a new paragraph (3)              the 15-trip minimum criteria be met in                 year for which ADF&G charter logbook
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                                               is added to clarify that the term                       one year of the qualifying period and in               data would be available. In adopting its
                                               ‘‘ADF&G Business Owner License’’                        the recent participation year. Second,                 charter halibut moratorium
                                               includes an ‘‘ADF&G business owner                      the preamble to the proposed rule at                   recommendation to the Secretary, the
                                               registration.’’ The latter term was used                page 18183 states that the minimum                     Council contemplated that the recent
                                               by ADF&G in 2004; however, the former                   participation criteria in both years                   participation period or ‘‘year prior to
                                               term was used in 2005 and 2008. The                     would be taken into account in                         implementation’’ would be either 2007
                                               term ‘‘ADF&G Business Owner License’’                   designating a charter halibut permit as                or 2008. Based on the availability of


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             597

                                               logbook data, NMFS has determined                       endorsements of six by cross reference                 Classification
                                               that 2008 is the recent participation                   to paragraph (e)(2).                                      Regulations governing the U.S.
                                               period.                                                    21. In § 300.67(h)(3), language is                  fisheries for Pacific halibut are
                                                  19. In § 300.67(g), language is added                added to authorize NMFS to issue non-
                                                                                                                                                              developed by the International Pacific
                                               at the beginning to clarify certain                     transferable interim permit(s) for
                                                                                                                                                              Halibut Commission (IPHC), the Pacific
                                               limitations on the use of the                           undisputed permit claims. On further
                                                                                                                                                              Fishery Management Council, the North
                                               unavoidable circumstance exception.                     examination of the proposed regulatory
                                                                                                                                                              Pacific Fishery Management Council
                                               These limitations were discussed in the                 text, NMFS determined that without
                                                                                                                                                              (Council), and the Secretary of
                                               preamble to the proposed rule (74 FR                    this explicit authority, a dispute over
                                                                                                                                                              Commerce. Section 5 of the Northern
                                               18178, April 21, 2009) on page 18188,                   any one permit would prevent issuing
                                                                                                                                                              Pacific Halibut Act of 1982 (Halibut Act,
                                               but were omitted from the regulatory                    any charter halibut permit(s) for which
                                                                                                                                                              16 U.S.C. 773c) provides the Secretary
                                               text by oversight. The new regulatory                   an applicant appeared to qualify. For
                                                                                                                                                              of Commerce with the general
                                               text makes clear, first, that unavoidable               example, an applicant may claim three
                                                                                                       charter halibut permits; however, the                  responsibility to carry out the
                                               circumstance claims must be made on                                                                            Convention between Canada and the
                                               appeal pursuant to § 300.67(h)(6).                      official charter halibut record support
                                                                                                       issuing only two permits. The proposed                 United States for the management of
                                               Second, the new text clarifies that the                                                                        Pacific halibut, including the authority
                                               Office of Administrative Appeals will                   rule regulatory text at § 300.67(h)
                                                                                                       suggests that NMFS may not issue any                   to adopt regulations as may be necessary
                                               not accept an unavoidable circumstance                                                                         to carry out the purposes and objectives
                                               claim unless the person making the                      permits to the applicant until after the
                                                                                                       30-day evidentiary period, an IAD is                   of the Convention and Halibut Act. This
                                               claim would be excluded from the                                                                               final rule is consistent with the
                                               charter halibut fishery entirely unless                 issued, and OAA accepts the applicant’s
                                                                                                       appeal regarding the third disputed                    Secretary of Commerce’s authority
                                               their unavoidable circumstance was                                                                             under the Halibut Act.
                                               recognized. Finally, the new text                       permit. In this example, the applicant
                                                                                                       may eventually win the appeal for the                     This final rule has been determined to
                                               clarifies that unavoidable circumstance                                                                        be not significant for purposes of
                                               claims to increase the number of                        third disputed permit, but lose an entire
                                                                                                       fishing season waiting for the disputed                Executive Order 12866.
                                               permits issued or to change a non-                                                                                A FRFA was prepared that describes
                                               transferable permit into a transferable                 claim to be resolved. This change from
                                                                                                       the proposed rule will allow NMFS to                   the economic impact that this action has
                                               permit will not be accepted.                                                                                   on small entities. The RIR/FRFA
                                                                                                       issue interim permits for undisputed
                                                  20. In § 300.67(g)(3)(i), language is                permit claims, allowing an applicant to                prepared for this final rule is available
                                               added to clarify that proof of active                   continue charter halibut operations                    from NMFS (see ADDRESSES). The FRFA
                                               military service during the 2004 and                    while disputed permit claims are                       for this action explains the need for, and
                                               2005 qualifying period will qualify an                  processed and adjudicated.                             objectives of, the rule, summarizes the
                                               applicant for the unavoidable                              22. In § 300.67(i)(1), a reference to               public comments on the initial
                                               circumstance, military service                          paragraph (b)(2) in the proposed rule is               regulatory flexibility analysis and
                                               provision. This provision will not be                   changed to paragraph (d)(2) in the final               agency responses, describes and
                                               limited only to service in the National                 rule. This change is necessary to update               estimates the number of small entities to
                                               Guard or military reserve as indicated in               a reference to regulatory text in                      which the rule will apply, describes
                                               the proposed rule. This change is being                 § 300.67(b) in the proposed rule, which                projected reporting, recordkeeping and
                                               made in response to Comment 110. The                    is revised in this final rule as described             other compliance requirements of the
                                               comment correctly noted that in                         in changes 12 and 16.                                  rule, and describes the steps the agency
                                               adopting its charter halibut moratorium                    23. In § 300.67(k)(4), the maximum                  has taken to minimize the significant
                                               recommendation to the Secretary, the                    permit limitations on a CQE is clarified               economic impact on small entities,
                                               Council intended that the military                      by removing the word ‘‘following’’ and                 including a statement of the factual,
                                               exemption apply to an individual who                    instead referring specifically to the                  policy, and legal reasons for selecting
                                               was assigned to active military duty                    maximum number of charter halibut                      the alternative adopted in the final rule
                                               during 2004 or 2005. The proposed rule                  and community charter halibut permits                  and why each one of the other
                                               text interpreted the Council’s                          specified in paragraphs (k)(4)(i) and                  significant alternatives to the rule
                                               recommendation too narrowly in                          (k)(4)(ii).                                            considered by the agency that affect the
                                               limiting the military service provision to                 24. In § 679.2, the definition of                   impact on small entities was rejected.
                                               service only in the National Guard or                   ‘‘community quota entity (CQE)’’ is                       The need for and objectives of this
                                               military reserve. Hence, the final rule                 revised by removing the parenthetical                  action; a summary of the comments and
                                               text is revised to accurately reflect the               phrase ‘‘for purposes of the IFQ                       responses; a description of the action,
                                               Council’s approved recommendation. In                   program.’’ After further examination of                its purpose, and its legal basis; and a
                                               addition, a new paragraph (g)(3)(iii) is                the proposed rule text, NMFS                           statement of the factual, policy, and
                                               added to clarify that the criteria to be                determined that this phrase could cause                legal reasons for selecting the alternative
                                               used in determining the number and                      confusion by suggesting that the CQE                   embodied in this action are described
                                               type (transferable or non-transferable) of              definition applies only to the IFQ                     elsewhere in this preamble and are not
                                               charter halibut permit(s) initially                     program. This rule establishes another                 repeated here.
                                               allocated under this military service                   potential purpose for a CQE, which is to                  The proposed rule was published in
                                               provision is in paragraph (g)(2)(v)(B),                 hold community charter halibut                         the Federal Register on April 21, 2009
                                               immediately preceding paragraph (g)(3).                 permits. This expanded role for CQEs                   (74 FR 18178). An Initial Regulatory
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                                               The proposed rule presumed that NMFS                    that represent communities identified in               Flexibility Analysis (IRFA) was
                                               will be guided by the criteria in                       this rule does not require a substantive               prepared and described in the
                                               paragraph (g)(2)(v)(B), but the added                   change to the CQE definition. This                     classification section of the preamble to
                                               text makes this explicit. Finally, the                  clarification is consistent with the                   the rule. The public comment period
                                               added text makes clear that all permits                 proposed rule that thoroughly described                ended on June 5, 2009. NMFS received
                                               issued under this military service                      the potential role for CQEs in the charter             166 communications containing 157
                                               provision will receive angler                           halibut fishery.                                       separate comments. Comments 45 and


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                                               143 address the IRFA. Comments 39–41,                   transferable permits equal in number to                recommendation from its Charter
                                               43, 45–47, 51, and 143 address the                      its allocation of community halibut                    Halibut Stakeholder Committee that it
                                               economic impact of the rule on small                    charter permits. This authority to                     initiate an analysis of an entry
                                               entities.                                               acquire by transfer additional                         moratorium using the December 9, 2005,
                                                  Two classes of entities are directly                 transferable charter halibut permits                   control date. At its April 2006 meeting
                                               regulated by this action: (1) guided                    makes it possible for CQEs representing                it requested staff to prepare an analysis
                                               charter businesses active in IPHC Areas                 eligible communities to hold a                         of moratorium options based on the
                                               2C and 3A, and (2) CQE-qualified                        maximum of eight permits per                           December 9, 2005, control date. The
                                               communities and CQE groups formed by                    community in Area 2C or a maximum                      Council received a discussion paper
                                               those communities in Areas 2C and 3A.                   of 14 permits per community in Area                    from staff, based on this control date in
                                               Almost all of the guided charter                        3A. These potential permit numbers are                 December 2006. It adopted a
                                               businesses are believed to be small                     different from the excessive share limits              preliminary preferred alternative based
                                               entities. This conclusion is based on a                 imposed on other entities (a five-permit               on this control date in February 2007,
                                               Small Business Administration (SBA)                     limit unless initially allocated more).                and it recommended a limited access
                                               threshold of $7.0 million in gross                         Of the directly regulated entities, only            system that included this control date in
                                               revenues on an annual basis for                         currently active guided charter                        April 2007. Newsletters for each of these
                                               facilities offering recreational services,              operations that will not receive a permit              Council meetings contained information
                                               including guided fishing services                       to continue to participate in this fishery             on the Council action and mentioned
                                               (NAICS 713990). The largest of these                    will suffer significant adverse economic               this control date. NMFS published a
                                               entities, which are lodges, may be                      impacts. These operations must enter                   notice in the Federal Register in
                                               considered large entities under SBA                     the market for transferable charter                    February 2006 stating that the Council
                                               standards, but that cannot be confirmed.                halibut permits to remain active in the                had adopted this control date (71 FR
                                               The 32 communities in Area 2C and 3A                    charter halibut fishery.                               6442, February 8, 2006) and the Council
                                               directly regulated as part of this action                  Permit applications must be                         devoted a paragraph to this notice in its
                                               would be considered small entities                      submitted prior to the start of the                    February 2006 newsletter.
                                               under the SBA definitions because they                  program. The application will require
                                                                                                                                                                 This action creates a class of non-
                                               have populations under 50,000 persons.                  information about the business applying
                                                                                                                                                              transferable permits to ease the
                                                  Under this action, NMFS will issue                   for the permit, including the ownership
                                                                                                                                                              transition from an open access fishery
                                               permits to an estimated 231 businesses                  structure of the business (U.S.
                                                                                                                                                              for a large class of businesses
                                               in Area 2C and to 296 businesses in                     citizenship papers for individuals) and
                                                                                                                                                              participating at relatively low levels of
                                               Area 3A. In Area 2C, 173 of the guided                  information on the charter activities of
                                                                                                                                                              activity. Thus, any business that
                                               businesses that show evidence of                        the business. After submitting the initial
                                                                                                                                                              reported more than five logbook trips in
                                               bottomfish fishing in 2008 will not                     permit application, additional
                                                                                                                                                              the qualifying and in the recent
                                               qualify to receive an Area 2C guided                    applications will be required only for
                                                                                                                                                              participation period, but that had no
                                               charter permit under the limited entry                  transfer of permits. NMFS will require
                                               program. In Area 3A, 154 of the guided                  additional reports when the structure of               vessel with at least 15 trips in one of the
                                               businesses that show evidence of                        the business holding the permit changes                two years, 2004 or 2005, and in 2008,
                                               bottomfish fishing in 2008 will not                     or the permit is transferred. The initial              will receive non-transferable permits.
                                               qualify to receive an Area 3A guided                    application for a charter permit could                 These permits will allow that operation
                                               charter permit.                                         take an estimated two hours to                         to continue its activity until the operator
                                                  Businesses that do not qualify to                    complete, depending on the amount of                   leaves the fishery, at which time they
                                               receive a charter halibut permit do not                 additional information the applicant                   will expire. Thus, a transitional
                                               meet activity thresholds during the                     needs to provide. The application for                  mechanism is provided for many
                                               qualifying period (2004–2005) or do not                 transfer of a charter permit is estimated              operations that otherwise would have
                                               meet the 2008 thresholds in the recency                 to take two hours to complete, based on                been forced to withdraw from the
                                               provisions of the Council’s motion.                     previous experience with the groundfish                fishery immediately.
                                                  This action seeks to help 32 small,                  License Limitation Program.                               The Council and NMFS created
                                               remote communities in Areas 2C and 3A                      Persons applying for a community                    transferable permits to allow the market
                                               develop charter businesses by mitigating                charter permit or a military charter                   to reallocate permits among recipients.
                                               the economic barrier associated with                    halibut permit must submit applications                This makes it possible for businesses
                                               purchasing a charter halibut permit and                 for these special permits. In addition,                that were active in 2008 but not during
                                               creating a number of non-transferable                   CQEs representing communities eligible                 the qualifying period to continue their
                                               permits that can be held only by the                    to receive community charter halibut                   activity by purchasing permits.
                                               non-profit entity representing the                      permits will be required to identify the                  The Council has created a class of
                                               eligible community.                                     person that will use the permit. The                   community halibut charter permits.
                                                  Under this action, 18 qualifying Area                application for a community charter                    These will be issued without charge to
                                               2C communities are eligible to each                     halibut permit or a military charter                   qualifying communities. If qualified
                                               receive up to four community halibut                    halibut permit is estimated to take two                communities in Area 2C take full
                                               charter permits per community at no                     hours to complete. In all cases, basic                 advantage of this program, an additional
                                               cost; 14 Area 3A communities are                        reading and writing skills are required                72 permits may be issued for guided
                                               eligible to each receive up to seven                    to complete the application forms.                     charter vessels. If qualified communities
                                               community halibut charter permits per                      The Council and NMFS have taken                     in Area 3A take full advantage, an
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                                               community at no cost. Guided halibut                    several steps to minimize the burden on                additional 98 permits may be available.
                                               fishing trips made with these permits                   directly regulated small entities. The                 These permits were created to provide
                                               must either begin or end within the                     Council published information about                    development opportunities for rural
                                               boundaries of the eligible community                    the control date frequently during its                 communities, but they should offer
                                               designated on the permit. In addition,                  deliberations. The Council adopted this                opportunities for businesses that do not
                                               each of these community CQE programs                    control date at its December 2005                      receive transferable or non-transferable
                                               will be able to buy additional                          meeting. In April 2006, it received a                  permits, and that are willing to enter a


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                              599

                                               joint venture with a qualified                          List of Subjects                                       ■  A. Removing the definition for
                                               community to utilize these permits.                                                                            ‘‘Charter vessel’’.
                                                                                                       15 CFR Part 902                                        ■ B. Revising definitions for ‘‘Charter
                                                 The Council and Secretary considered
                                                                                                         Recordkeeping and reporting                          vessel angler’’, ‘‘Charter vessel fishing
                                               a no-action alternative, but this was
                                                                                                       requirements.                                          trip’’, ‘‘Charter vessel guide’’, ‘‘Crew
                                               rejected because it would not
                                                                                                                                                              member’’, and ‘‘Sport fishing guide
                                               accomplish the objective of this action,                50 CFR Part 300
                                                                                                                                                              services’’.
                                               which is to stabilize the businesses in                   Fisheries, Fishing, Reporting and                    ■ C. Adding definitions for ‘‘Charter
                                               this fishery by controlling entry, while                recordkeeping requirements, Treaties.                  halibut permit’’, ‘‘Community charter
                                               providing opportunities for rural                                                                              halibut permit’’, ‘‘Military charter
                                               community development. The Council                      50 CFR Part 679
                                                                                                                                                              halibut permit’’, and ‘‘Valid’’ in
                                               also considered an option that only                       Alaska, Fisheries.                                   alphabetical order.
                                               required a single landing in 2008 to                      Dated: December 18, 2009.                               The revisions and additions read as
                                               meet the recency requirement. This                      John Oliver,                                           follows:
                                               option was rejected because this action                 Deputy Assistant Administrator for
                                               was originally taken to stabilize the                                                                          § 300.61   Definitions.
                                                                                                       Operations, National Marine Fisheries
                                               businesses in the charter halibut fishery               Service.
                                                                                                                                                              *  *    *     *     *
                                               with respect to active participants in                                                                        Charter halibut permit means a permit
                                                                                                       ■ For the reasons set out in the                   issued by the National Marine Fisheries
                                               2004 and 2005. The recency
                                               requirement was adopted because the                     preamble, NMFS amends 15 CFR                       Service pursuant to § 300.67.
                                                                                                       Chapter IX, and 50 CFR Chapters III and               Charter vessel angler, for purposes of
                                               Council was aware that implementation
                                                                                                       VI as follows:                                     §§ 300.65(d), 300.66, and 300.67, means
                                               would take several years, and it wanted
                                                                                                                                                          a person, paying or non-paying, using
                                               to limit qualifying businesses to those                 15 CFR Chapter IX
                                                                                                                                                          the services of a charter vessel guide.
                                               businesses active during the                                                                                  Charter vessel fishing trip, for
                                               qualification period and still active                   PART 902—NOAA INFORMATION
                                               close to the time the program was                       COLLECTION REQUIREMENTS UNDER purposes of §§ 300.65(d), 300.66, and
                                                                                                       THE PAPERWORK REDUCTION ACT:                       300.67, means the time period between
                                               implemented. Therefore, the Council                                                                        the first deployment of fishing gear into
                                               elected to require the same level of                    OMB CONTROL NUMBERS
                                                                                                                                                          the water from a vessel after any charter
                                               participation in the qualification period               ■ 1. The authority citation for part 902           vessel angler is onboard and the
                                               and in the recency period.                              continues to read as follows:                      offloading of one or more charter vessel
                                               Paperwork Reduction Act Collections                        Authority: 44 U.S.C. 3501 et seq.               anglers or any halibut from that vessel.
                                                                                                                                                             Charter vessel guide, for purposes of
                                               of Information                                          ■ 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
                                                 This rule contains a collection-of-                                                                      a person who holds an annual sport
                                                                                                       entries for ‘‘300.67(h), (i), (k), and (l)’’,      guide license issued by the Alaska
                                               information requirement subject to the                  in alphanumeric order to read as
                                               Paperwork Reduction Act (PRA) and                                                                          Department of Fish and Game, or a
                                                                                                       follows:                                           person who provides sport fishing guide
                                               which has been approved by OMB
                                               under control number 0648–0592.                         § 902.1 OMB control numbers assigned               services.
                                               Public reporting burden estimates per                   pursuant to the Paperwork Reduction Act.           *      *    *     *     *
                                               response for these requirements are two                 *      *        *         *    *                      Community charter halibut permit
                                               hours for charter halibut permit                           (b) * * *                                       means a permit issued by NMFS to a
                                               application, two hours for community                                                                       Community Quota Entity pursuant to
                                               charter halibut permit application, two                   CFR part or sec-                                 § 300.67.
                                                                                                        tion where the in-           Current OMB control     Crew member, for purposes of
                                               hours for military charter halibut permit               formation collection          number (all numbers  §§ 300.65(d), and 300.67, means an
                                               application, two hours for transfer of a                   requirement is              begin with 0648–)
                                                                                                                                                          assistant, deckhand, or similar person
                                               charter halibut permit, and four hours                         located
                                                                                                                                                          who works directly under the
                                               for appeal of permit denial. These                                                                         supervision of, and on the same vessel
                                               estimates include the time for reviewing                    *            *          *         *        *   as, a charter vessel guide or operator of
                                               instructions, searching existing data                   50 CFR                                             a vessel with one or more charter vessel
                                               sources, gathering and maintaining the                                                                     anglers on board.
                                               data needed, and completing and                             *            *          *         *        *
                                                                                                                                                          *      *    *     *     *
                                               reviewing the collection-of-information.                300.67(h), (i), (k),
                                                                                                          and (l) ................                  –0592
                                                                                                                                                             Military charter halibut permit means
                                               Send comments regarding this burden                                                                        a permit issued by NMFS to a United
                                               estimate, or any other aspect of this data                                                                 States Military Morale, Welfare and
                                                                                                           *            *          *         *        *
                                               collection, including suggestions for                                                                      Recreation Program pursuant to
                                               reducing the burden, to NMFS (see                                                                          § 300.67.
                                                                                                       50 CFR Chapter III
                                               ADDRESSES) and by e-mail to
                                                                                                                                                          *      *    *     *     *
                                               David_Rostker@omb.eop.gov, or fax to                    PART 300—INTERNATIONAL                                Sport fishing guide services, for
                                               202–395–7285.                                           FISHERIES REGULATIONS                              purposes of §§ 300.65(d) and 300.67,
                                                 Notwithstanding any other provision                                                                      means assistance, for compensation, to
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                                               of the law, no person is required to                    Subpart E—Pacific Halibut Fisheries                a person who is sport fishing, to take or
                                               respond to, nor shall any person be                                                                        attempt to take fish by being onboard a
                                                                                                       ■ 3. The authority citation for part 300,
                                               subject to a penalty for failure to comply                                                                 vessel with such person during any part
                                                                                                       subpart E continues to read as follows:
                                               with, a collection of information subject                                                                  of a charter vessel fishing trip. Sport
                                               to the requirements of the PRA, unless                     Authority: 16 U.S.C. 773–773k.                  fishing guide services do not include
                                               that collection of information displays a               ■ 4. In § 300.61, definitions are                  services provided by a crew member.
                                               currently valid OMB Control Number.                     amended by:                                        *      *    *     *     *


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                                               600                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                                  Valid, with respect to a charter                       (v) Be an operator of a vessel in Area               determined separately and must not be
                                               halibut permit for purposes of §§ 300.66                2C or Area 3A with one or more charter                 combined.
                                               and 300.67, means the charter halibut                   vessel anglers on board that are catching                 (1) NMFS will issue a charter halibut
                                               permit that is currently in effect.                     and retaining halibut without having on                permit to a person who meets the
                                               *       *      *    *      *                            board the vessel a State of Alaska                     following requirements:
                                                                                                       Department of Fish and Game Saltwater                     (i) The person applies for a charter
                                               ■ 5. In § 300.66, revise paragraphs (b),
                                                                                                       Charter Logbook that specifies the                     halibut permit within the application
                                               (i), (o), and (p), and add paragraphs (r),                                                                     period specified in the Federal Register
                                                                                                       following:
                                               (s), (t), (u), and (v) to read as follows:                                                                     and completes the application process
                                                                                                         (1) The person named on the charter
                                               § 300.66   Prohibitions.                                halibut permit or permits being used on                pursuant to paragraph (h) of this
                                               *      *     *     *     *                              board the vessel;                                      section.
                                                                                                         (2) The charter halibut permit or                       (ii) The person is the individual or
                                                  (b) Fish for halibut except in
                                                                                                       permits number(s) being used on board                  non-individual entity to which the State
                                               accordance with the catch sharing plans
                                                                                                       the vessel; and                                        of Alaska Department of Fish and Game
                                               and domestic management measures
                                                                                                         (3) The name and State issued boat                   (ADF&G) issued the ADF&G Business
                                               implemented under §§ 300.63, 300.65,
                                                                                                       registration (AK number) or U.S. Coast                 Owner Licenses that authorized logbook
                                               and 300.67.
                                                                                                       Guard documentation number of the                      fishing trips that meet the minimum
                                               *      *     *     *     *                                                                                     participation requirements described in
                                                  (i) Fish for subsistence halibut from a              vessel.
                                                                                                                                                              paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B)
                                               charter vessel or retain subsistence                    ■ 6. Add § 300.67 to subpart E to read
                                                                                                                                                              of this section for one or more charter
                                               halibut onboard a charter vessel if                     as follows:                                            halibut permits, unless the person is
                                               anyone other than the owner of record,                  § 300.67 Charter halibut limited access                applying as a successor-in-interest.
                                               as indicated on the State of Alaska                     program.                                                  (A) Reported five (5) bottomfish
                                               vessel registration, or the owner’s                                                                            logbook fishing trips or more during one
                                                                                                          This section establishes limitations on
                                               immediate family is aboard the charter                                                                         year of the qualifying period; and
                                                                                                       using a vessel on which charter vessel
                                               vessel and unless each person engaging                                                                            (B) Reported five (5) halibut logbook
                                                                                                       anglers catch and retain Pacific halibut
                                               in subsistence fishing onboard the                                                                             fishing trips or more during the recent
                                                                                                       in International Pacific Halibut
                                               charter vessel holds a subsistence                                                                             participation period.
                                                                                                       Commission (IPHC) regulatory areas 2C                     (iii) If the person is applying as a
                                               halibut registration certificate in the
                                                                                                       and 3A.                                                successor-in-interest to the person to
                                               person’s name pursuant to § 300.65(i)
                                               and complies with the gear and harvest                     (a) General permit requirements. (1) In             which ADF&G issued the Business
                                               restrictions found at § 300.65(h). For                  addition to other applicable permit and                Owner Licenses that authorized logbook
                                               purposes of this paragraph (i), the term                licensing requirements, any operator of                fishing trips that meet the participation
                                               ‘‘charter vessel’’ means a vessel that is               a vessel with one or more charter vessel               requirements described in paragraphs
                                               registered, or that should be registered,               anglers catching and retaining Pacific                 (b)(1)(ii) of this section for one or more
                                               as a sport fishing guide vessel with the                halibut on board a vessel must have on                 charter halibut permits, NMFS will
                                               Alaska Department of Fish and Game.                     board the vessel an original valid                     require the following written
                                                                                                       charter halibut permit or permits                      documentation:
                                               *      *     *     *     *                              endorsed for the regulatory area in
                                                  (o) Fail to comply with the                                                                                    (A) If the applicant is applying on
                                                                                                       which the vessel is operating and                      behalf of a deceased individual, the
                                               requirements of §§ 300.65 and 300.67.                   endorsed for at least the number of
                                                  (p) Fail to submit or submit inaccurate                                                                     applicant must document that the
                                                                                                       charter vessel anglers who are catching                individual is deceased, that the
                                               information on any report, license, catch               and retaining Pacific halibut. Each
                                               card, application, or statement required                                                                       applicant is the personal representative
                                                                                                       charter halibut permit holder must                     of the deceased’s estate appointed by a
                                               or submitted under §§ 300.65 and                        insure that the operator of the permitted
                                               300.67, or submit inaccurate                                                                                   court, and that the applicant specifies
                                                                                                       vessel complies with all requirements of               who, pursuant to the applicant’s
                                               information to an authorized officer.                   §§ 300.65 and 300.67.                                  personal representative duties, should
                                               *      *     *     *     *                                 (2) Area endorsement. A charter                     receive the permit(s) for which
                                                  (r) Be an operator of a vessel with one              halibut permit is valid only in the                    application is made; or
                                               or more charter vessel anglers on board                 International Pacific Halibut                             (B) If the applicant is applying as a
                                               that are catching and retaining halibut                 Commission regulatory area for which it                successor-in-interest to an entity that is
                                               without an original valid charter halibut               is endorsed. Regulatory areas are                      not an individual, the applicant must
                                               permit for the regulatory area in which                 defined in the annual management                       document that the entity has been
                                               the vessel is operating.                                measures published pursuant to                         dissolved and that the applicant is the
                                                  (s) Be an operator of a vessel with                  § 300.62.                                              successor-in-interest to the dissolved
                                               more charter vessel anglers on board                       (3) Charter vessel angler endorsement.              entity.
                                               catching and retaining halibut than the                 A charter halibut permit is valid for up                  (iv) If more than one applicant claims
                                               total angler endorsement number                         to the maximum number of charter                       that they are the successor-in-interest to
                                               specified on the charter halibut permit                 vessel anglers for which the charter                   a dissolved entity, NMFS will award the
                                               or permits on board the vessel.                         halibut permit is endorsed.                            permit or permits for which the
                                                  (t) Be an operator of a vessel with                     (b) Qualifications for a charter halibut            dissolved entity qualified in the name(s)
                                               more charter vessel anglers on board                    permit. A charter halibut permit for                   of the applicants that submitted a timely
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                                               catching and retaining halibut than the                 IPHC regulatory area 2C must be based                  application and proved that they are a
                                               angler endorsement number specified                     on meeting participation requirements                  successor-in-interest to the dissolved
                                               on the community charter halibut                        in area 2C. A charter halibut permit for               entity.
                                               permit or permits on board the vessel.                  IPHC regulatory area 3A must be based                     (2) Notwithstanding any other
                                                  (u) Be an operator of a vessel in Area               on meeting participation requirements                  provision in this subpart, and except as
                                               2C and Area 3A during one charter                       in area 3A. Qualifications for a charter               provided in paragraph (b)(1)(iv) of this
                                               vessel fishing trip.                                    halibut permit in each area must be                    section,


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                                                                   Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations                                             601

                                                  (i) One logbook fishing trip shall not               logbook fishing trip in the qualifying                 Commission (February 1 through
                                               be credited to more than one applicant;                 period is less than four (4) or no charter             December 31) in 2008.
                                                  (ii) One logbook fishing trip made                   vessel anglers were reported on any of                    (g) Unavoidable circumstance.
                                               pursuant to one ADF&G Business                          the applicant’s logbook fishing trips in               Unavoidable circumstance claims must
                                               Owner License shall not be credited to                  the applicant-selected year; and                       be made pursuant to paragraph (h)(6) of
                                               more than one applicant; and                               (2) The angler endorsement number                   this section, and will be limited to
                                                  (iii) Participation by one charter                   will be six (6) on a charter halibut                   persons who would be excluded from
                                               halibut fishing business shall not be                   permit issued pursuant to military                     the charter halibut fishery entirely
                                               allowed to support issuance of permits                  service under paragraph (g)(3) of this                 unless their unavoidable circumstance
                                               to more than one applicant.                             section.                                               is recognized. This unavoidable
                                                  (3) For purposes of this section, the                   (f) For purposes of this section, the               circumstance provision cannot be used
                                               term ‘‘ADF&G Business Owner(s)                          following terms are defined as follows:                to upgrade the number of permits issued
                                               License(s)’’ includes a ‘‘business                         (1) Applicant-selected year means the               or to change a non-transferable permit to
                                               registration,’’ ‘‘sport fish business owner             year in the qualifying period, 2004 or                 a transferable permit, and is limited to
                                               license,’’ ‘‘sport fish business license,’’             2005, selected by the applicant for                    the following circumstances.
                                               and ‘‘ADF&G business license’’.                         NMFS to use in determining the                            (1) Recent participation period. An
                                                  (c) Number of charter halibut permits.               applicant’s number of transferable and                 applicant for a charter halibut permit
                                               An applicant that meets the                             nontransferable permits.                               that meets the participation requirement
                                               participation requirements in paragraph                    (2) Bottomfish logbook fishing trip                 for the qualifying period, but does not
                                               (b) of this section will be issued the                  means a logbook fishing trip in the                    meet the participation requirement for
                                               number of charter halibut permits equal                 qualifying period that was reported to                 the recent participation period, may
                                               to the lesser of the number of permits                  the State of Alaska in a Saltwater                     receive one or more charter halibut
                                               determined by paragraphs (c)(1) or (c)(2)               Charter Logbook with one of the                        permits if the applicant proves
                                               of this section as follows:                             following pieces of information: The                   paragraphs (g)(1)(i) through (iv) of this
                                                  (1) The total number of bottomfish                   statistical area(s) where bottomfish                   section as follows:
                                               logbook fishing trips made pursuant to                  fishing occurred, the boat hours that the
                                                                                                                                                                 (i) The applicant had a specific intent
                                               the applicant’s ADF&G Business License                  vessel engaged in bottomfish fishing, or
                                                                                                                                                              to operate a charter halibut fishing
                                               in the applicant-selected year divided                  the number of rods used from the vessel
                                                                                                                                                              business in the recent participation
                                               by five, and rounded down to a whole                    in bottomfish fishing.
                                                                                                                                                              period;
                                               number; or                                                 (3) Halibut logbook fishing trip means
                                                                                                       a logbook fishing trip in the recent                      (ii) The applicant’s specific intent was
                                                  (2) The number of vessels that made                                                                         thwarted by a circumstance that was:
                                               the bottomfish logbook fishing trips in                 participation period that was reported to
                                                                                                       the State of Alaska in a Saltwater                        (A) Unavoidable;
                                               the applicant-selected year.
                                                                                                       Charter Logbook within the time limit                     (B) Unique to the owner of the charter
                                                  (d) Designation of transferability.
                                                                                                       for reporting the trip in effect at the time           halibut fishing business; and
                                               Each permit issued to an applicant
                                               under paragraph (c) of this section will                of the trip with one of the following                     (C) Unforeseen and reasonably
                                               be designated as transferable or non-                   pieces of information: The number of                   unforeseeable by the owner of the
                                               transferable.                                           halibut that was kept, the number of                   charter halibut fishing business;
                                                  (1) Minimum participation criteria for               halibut that was released, the statistical                (iii) The circumstance that prevented
                                               a transferable permit are described in                  area(s) where bottomfish fishing                       the applicant from operating a charter
                                               paragraphs (d)(1)(i) and (d)(1)(ii) of this             occurred, or the boat hours that the                   halibut fishing business actually
                                               section as follows:                                     vessel engaged in bottomfish fishing.                  occurred; and
                                                  (i) Reported fifteen (15) bottomfish                    (4) Logbook fishing trip means a                       (iv) The applicant took all reasonable
                                               logbook fishing trips or more from the                  bottomfish logbook fishing trip or a                   steps to overcome the circumstance that
                                               same vessel during one year of the                      halibut logbook fishing trip that was                  prevented the applicant from operating
                                               qualifying period; and                                  reported as a trip to the State of Alaska              a charter halibut fishing business in the
                                                  (ii) Reported fifteen (15) halibut                   in a Saltwater Charter Logbook within                  recent participation period.
                                               logbook fishing trips or more from the                  the time limits for reporting the trip in                 (v) If the applicant proves the
                                               same vessel during the recent                           effect at the time of the trip, except that            foregoing (see paragraphs (g)(1)(i)
                                               participation period.                                   for multi-day trips, the number of trips               through (iv) of this section), the
                                                  (iii) The vessel used during the recent              will be equal to the number of days of                 applicant will receive the number of
                                               participation period is not required to                 the multi-day trip, e.g., a two day trip               transferable and non-transferable
                                               be the same vessel used during the                      will be counted as two trips.                          permits and the angler endorsements on
                                               qualifying period.                                         (5) Official charter halibut record                 these permits that result from the
                                                  (2) The number of transferable charter               means the information prepared by                      application of criteria in paragraphs (b),
                                               halibut permits issued to an applicant                  NMFS on participation in charter                       (c), (d), (e), and (f) of this section.
                                               will be equal to the lesser of the number               halibut fishing in Area 2C and Area 3A                    (2) Qualifying period. An applicant
                                               of vessels that met the minimum                         that NMFS will use to implement the                    for a charter halibut permit that meets
                                               transferable permit qualifications                      Charter Halibut Limited Access Program                 the participation requirement for the
                                               described in paragraphs (d)(1)(i) or                    and evaluate applications for charter                  recent participation period but does not
                                               (d)(1)(ii) of this section.                             halibut permits.                                       meet the participation requirement for
                                                  (e) Angler endorsement. A charter                       (6) Qualifying period means the sport               the qualifying period, may receive one
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                                               halibut permit will be endorsed for the                 fishing season established by the                      or more permits if the applicant proves
                                               highest number of charter vessel anglers                International Pacific Halibut                          paragraphs (g)(2)(i) through (iv) of this
                                               reported on any logbook fishing trip in                 Commission (February 1 through                         section as follows:
                                               the qualifying period except that:                      December 31) in 2004 and 2005.                            (i) The applicant had a specific intent
                                                  (1) The angler endorsement number                       (7) Recent participation period means               to operate a charter halibut fishing
                                               will be four (4) if the highest number of               the sport fishing season established by                business in at least one year of the
                                               charter vessel anglers reported on any                  the International Pacific Halibut                      qualifying period;


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                                               602                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                                 (ii) The applicant’s specific intent was              that is submitted by mail and                             (ii) If NMFS determines that the
                                               thwarted by a circumstance that was:                    postmarked, or submitted by hand                       applicant has not met its burden of
                                                 (A) Unavoidable;                                      delivery or facsimile, after the last day              proving that the official charter halibut
                                                 (B) Unique to the owner of the charter                of the application period will be denied.              record is incorrect, NMFS will notify
                                               halibut fishing business; and                           Electronic submission other than by                    the applicant by an initial
                                                 (C) Unforeseen and reasonably                         facsimile will be denied. Applications                 administration determination, pursuant
                                               unforeseeable by the owner of the                       must be submitted to the address given                 to paragraph (h)(5) of this section.
                                               charter halibut fishing business;                       in the Federal Register notice of the                     (5) Initial Administration
                                                 (iii) The circumstance that prevented                 application period.                                    Determination (IAD). NMFS will send
                                               the applicant from operating a charter                     (2) Charter halibut permit. To be                   an IAD to the applicant following the
                                               halibut fishing business actually                       complete, a charter halibut permit                     expiration of the 30-day evidentiary
                                               occurred; and                                           application must be signed and dated by                period if NMFS determines that the
                                                 (iv) The applicant took all reasonable                the applicant, and the applicant must                  applicant has not met its burden of
                                               steps to overcome the circumstance that                 attest that, to the best of the applicant’s            proving that the official charter halibut
                                               prevented the applicant from operating                  knowledge, all statements in the                       record is incorrect or that other reasons
                                               a charter halibut fishing business in at                application are true and the applicant                 exist to initially deny the application.
                                               least one year of the qualifying period.                complied with all legal requirements for               The IAD will indicate the deficiencies
                                                 (v) If the applicant proves the                       logbook fishing trips in the qualifying                in the application and the deficiencies
                                               foregoing (see paragraphs (g)(2)(i)                     period and recent participation period                 with the information submitted by the
                                               through (iv) of this section), the                      that were reported under the applicant’s               applicant in support of its claim.
                                               applicant will receive either:                          ADF&G Business Owner Licenses. An                         (6) Appeal. An applicant that receives
                                                 (A) One non-transferable permit with                  application for a charter halibut permit               an IAD may appeal to the Office of
                                               an angler endorsement of four (4); or                   will be made available by NMFS.
                                                 (B) The number of transferable and                                                                           Administrative Appeals (OAA) pursuant
                                                                                                       Completed applications may be                          to § 679.43 of this title.
                                               non-transferable permits, and the angler                submitted by mail, hand delivery, or
                                               endorsement on those permits, that                                                                                (i) If the applicant does not apply for
                                                                                                       facsimile at any time during the                       a charter halibut permit within the
                                               result from the logbook fishing trips that              application period announced in the
                                               the applicant proves likely would have                                                                         application period specified in the
                                                                                                       Federal Register notice of the                         Federal Register, the applicant will not
                                               taken by the applicant but for the                      application period described at
                                               circumstance that thwarted the                                                                                 receive any interim permits pending
                                                                                                       paragraph (h)(1) of this section.                      final agency action on the application.
                                               applicant’s specific intent to operate a                   (3) Application procedure. NMFS will
                                               charter halibut fishing business in one                 create the official charter halibut record                (ii) If the applicant applies for a
                                               year of the qualifying period and the                   and will accept all application claims                 permit within the specified application
                                               applicant did not participate during the                that are consistent with the official                  period and OAA accepts the applicant’s
                                               other year of the qualifying period.                    charter halibut record. If an applicant’s              appeal, the applicant will receive the
                                                 (3) Military service. An applicant for                claim is not consistent with the official              number and kind of interim permits
                                               a charter halibut permit that meets the                 charter halibut record, NMFS will issue                which are not in dispute, according to
                                               participation requirement in the recent                 non-transferable interim permit(s) for all             the information in the official charter
                                               participation period, but does not meet                 undisputed permit claims, and will                     halibut record.
                                               the participation requirement for the                   respond to the applicant by letter                        (iii) If the applicant applies for a
                                               qualifying period, may receive one or                   specifying a 30-day evidentiary period                 permit within the specified application
                                               more permits if the applicant proves the                during which the applicant may provide                 period and OAA accepts the applicant’s
                                               following:                                              additional information or argument to                  appeal, but according to the information
                                                 (i) The applicant was ordered to                      support the applicant’s claim for                      in the official charter halibut record, the
                                               report for active duty military service as              disputed permit(s). Limits on the 30-day               applicant would not be issued any
                                               a member of a branch of the U.S.                        evidentiary period are as follows:                     permits, the applicant will receive one
                                               military, National Guard, or military                      (i) An applicant shall be limited to                interim permit with an angler
                                               reserve during the qualifying period;                   one 30-day evidentiary period; and                     endorsement of four (4).
                                               and                                                        (ii) Additional information received                   (iv) All interim permits will be non-
                                                 (ii) The applicant had a specific intent              after the 30-day evidentiary period has                transferable and will expire when
                                               to operate a charter halibut fishing                    expired will not be considered for                     NMFS takes final agency action on the
                                               business that was thwarted by the                       purposes of the initial administrative                 application.
                                               applicant’s order to report for military                determination.                                            (i) Transfer of a charter halibut
                                               service.                                                   (4) After NMFS evaluates the                        permit—(1) General. A transfer of a
                                                 (iii) The number of transferable and                  additional information submitted by the                charter halibut permit is valid only if it
                                               non-transferable charter halibut                        applicant during the 30-day evidentiary                is approved by NMFS. NMFS will
                                               permit(s) that an applicant may receive                 period, it will take one of the following              approve a transfer of a charter halibut
                                               under paragraph (g)(3) of this section                  two actions.                                           permit if the permit to be transferred is
                                               will be based on the criteria in                           (i) If NMFS determines that the                     a transferable permit issued under
                                               paragraph (g)(2)(v)(B) of this section.                 applicant has met its burden of proving                paragraph (d)(2) of this section, if a
                                               Angler endorsements on all such charter                 that the official charter halibut record is            complete transfer application is
                                               halibut permits will be pursuant to                     incorrect, NMFS will amend the official                submitted, and if the transfer
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                                               paragraph (e)(2) of this section.                       charter halibut record and use the                     application meets the standards for
                                                 (h) Application for a charter halibut                 official charter halibut record, as                    approval in paragraph (i)(2) of this
                                               permit. (1) An application period of no                 amended, to determine whether the                      section.
                                               less than 60 days will be specified by                  applicant is eligible to receive one or                   (2) Standards for approval of
                                               notice in the Federal Register during                   more charter halibut permits, the nature               transfers. NMFS will transfer a
                                               which any person may apply for a                        of those permits and the angler and area               transferable charter halibut permit to a
                                               charter halibut permit. Any application                 endorsements on those permits; or                      person designated by the charter halibut


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                                               permit holder if, at the time of the                    transfer application that would result in              transferred permit(s) holding more than
                                               transfer the following standards are met:               the applicant that would receive the                   five (5) transferable charter halibut
                                                  (i) The person designated to receive                 transferred permit holding more than                   permits if the parties to the transfer
                                               the transferred permit is a U.S. citizen                five (5) charter halibut permits except as             meet the following conditions:
                                               or a U.S. business with a minimum of                    provided by paragraph (j)(6) of this                      (i) The designated person that would
                                               75 percent U.S. ownership;                              section.                                               receive the transferred permits does not
                                                  (ii) The parties to the transfer do not                 (2) Ten percent ownership criterion.                hold any charter halibut permits;
                                               owe NMFS any fines, civil penalties or                  In determining whether two or more                        (ii) All permits that would be
                                               any other payments;                                     persons are the same person for                        transferred are transferable permits;
                                                  (iii) The transfer is not inconsistent               purposes of paragraph (j)(1) of this                      (iii) The permits that would be
                                               with any sanctions resulting from                       section, NMFS will apply the definition                transferred are all of the transferable
                                               Federal fishing violations;                             of an ‘‘affiliation for the purpose of                 permits that were awarded to an initial
                                                  (iv) The transfer will not cause the                 defining AFA entities’’ at § 679.2 of this             recipient who exceeded the permit
                                               designated recipient of the permit to                   title.                                                 limitation of five (5) permits; and
                                               exceed the permit limit at paragraph (j)                   (3) A permit will cease to be a valid                  (iv) The person transferring its
                                               of this section, unless an exception to                 permit if the permit holder is:                        permits also is transferring its entire
                                               that limit applies;                                        (i) An individual and the individual                charter vessel fishing business,
                                                  (v) A transfer application is                        dies; or                                               including all the assets of that business,
                                               completed and approved by NMFS; and                        (ii) A non-individual (e.g., corporation            to the designated person that would
                                                  (vi) The transfer does not violate any               or partnership) and dissolves or changes               receive the transferred permits.
                                               other provision in this part.                           as defined at paragraph (j)(5) of this                    (k) Community charter halibut
                                                  (3) For purposes of paragraph (i)(2) of              section.                                               permit—(1) General. A Community
                                               this section, a U.S. business with a                       (iii) A transferable permit may be                  Quota Entity (CQE), as defined in
                                               minimum of 75 percent U.S. ownership                    made valid by transfer to an eligible                  § 679.2 of this title, representing an
                                               means a corporation, partnership,                       recipient.                                             eligible community listed in paragraph
                                               association, trust, joint venture, limited                 (4) Exception for initial recipients of             (k)(2) of this section, may receive one or
                                               liability company, limited liability                    permits. Notwithstanding the limitation                more community charter halibut
                                               partnership, or any other entity where at               at paragraph (j)(1) of this section, NMFS              permits. A community charter halibut
                                               least 75 percent of the interest in such                may issue more than five (5) charter                   permit issued to a CQE will be
                                               entity, at each tier of ownership of such               halibut permits to an initial recipient                designated for area 2C or area 3A, will
                                               entity and in the aggregate, is owned                   that meets the requirements described                  be non-transferable, and will have an
                                               and controlled by citizens of the United                in paragraphs (b), (d), and (e) of this                angler endorsement of six (6).
                                               States.                                                 section for more than five (5) charter                    (2) Eligible communities. Each
                                                  (4) Application to transfer a charter                halibut permits, subject to the following              community charter halibut permit
                                               halibut permit. To be complete, a                       limitations:                                           issued to a CQE under paragraph (k)(1)
                                               charter halibut permit transfer                            (i) This exception applies only to an               of this section will specify the name of
                                               application must have notarized and                     initial recipient as the recipient exists at           an eligible community on the permit.
                                               dated signatures of the applicants, and                 the time that it is initially issued the               Only the following communities are
                                               the applicants must attest that, to the                 permits;                                               eligible to receive community charter
                                               best of the applicants’ knowledge, all                     (ii) If an initial recipient of                     halibut permits:
                                               statements in the application are true.                 transferable permit(s) who is an                          (i) For Area 2C: Angoon, Coffman
                                               An application to transfer a charter                    individual dies, the individual’s                      Cove, Edna Bay, Hollis, Hoonah,
                                               halibut permit will be made available by                successor-in-interest may not hold more                Hydaburg, Kake, Kassan, Klawock,
                                               NMFS. Completed transfer applications                   than five (5) charter halibut permits;                 Metlakatla, Meyers Chuck, Pelican,
                                               may be submitted by mail or hand                           (iii) If an initial recipient permit                Point Baker, Port Alexander, Port
                                               delivery at any time to the addresses                   holder that is a non-individual, such as               Protection, Tenakee, Thorne Bay, Whale
                                               listed on the application. Electronic or                a corporation or a partnership, dissolves              Pass.
                                               facsimile deliveries will not be                        or changes, NMFS will consider the new                    (ii) For Area 3A: Akhiok, Chenega
                                               accepted.                                               entity a new permit holder and the new                 Bay, Halibut Cove, Karluk, Larsen Bay,
                                                  (5) Denied transfer applications. If                 permit holder may not hold more than                   Nanwalek, Old Harbor, Ouzinkie, Port
                                               NMFS does not approve a charter                         five (5) charter halibut permits.                      Graham, Port Lyons, Seldovia, Tatitlek,
                                               halibut permit transfer application,                       (5) For purposes of this paragraph (j),             Tyonek, Yakutat.
                                               NMFS will inform the applicant of the                   a ‘‘change’’ means:                                       (3) Limitations. The maximum
                                               basis for its disapproval.                                 (i) For an individual, the individual               number of community charter halibut
                                                  (6) Transfer due to court order,                     has died, in which case NMFS must be                   permits that may be issued to a CQE for
                                               operation of law or as part of a security               notified within 30 days of the                         each eligible community the CQE
                                               agreement. NMFS will transfer a charter                 individual’s death; and                                represents is as follows:
                                               halibut permit based on a court order,                     (ii) For a non-individual entity, the                  (i) A CQE representing an eligible
                                               operation of law or a security                          same as defined at § 679.42(j)(4)(i) of                community or communities in
                                               agreement, if NMFS determines that a                    this title, in which case the permit                   regulatory area 2C may receive a
                                               transfer application is complete and the                holder must notify NMFS within 15                      maximum of four (4) community charter
                                               transfer will not violate an eligibility                days of the effective date of the change               halibut permits per eligible community
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                                               criterion for transfers.                                as required at § 679.42(j)(5) of this title.           designated for Area 2C.
                                                  (j) Charter halibut permit                              (6) Exception for transfer of permits.                 (ii) A CQE representing an eligible
                                               limitations—(1) General. A person may                   Notwithstanding the limitation at                      community or communities in
                                               not own, hold, or control more than five                paragraph (j)(1) of this section, NMFS                 regulatory area 3A may receive a
                                               (5) charter halibut permits except as                   may approve a permit transfer                          maximum of seven (7) community
                                               provided by paragraph (j)(4) of this                    application that would result in the                   charter halibut permits per eligible
                                               section. NMFS will not approve a                        person that would receive the                          community designated for Area 3A.


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                                               604                 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations

                                                  (4) NMFS will not approve a transfer                 defined by the United States Census                    permit application must be signed and
                                               that will cause a CQE representing a                    Bureau.                                                dated by the applicant, and the
                                               community or communities to hold                           (ii) Community charter halibut                      applicant must attest that, to the best of
                                               more than the total number of permits                   permits may be used only within the                    the applicants’ knowledge, all
                                               described in paragraphs (k)(4)(i) and                   regulatory area for which they are                     statements in the application are true
                                               (k)(4)(ii) of this section, per community,              designated to catch and retain halibut.                and complete. An application for a
                                               including community charter halibut                        (6) Application procedure. To be                    military charter halibut permit will be
                                               permits granted to the CQE under this                   complete, a community charter halibut                  made available by NMFS and may be
                                               paragraph (k) and any charter halibut                   permit application must be signed and                  submitted by mail, hand delivery, or
                                               permits acquired by the CQE by transfer                 dated by the applicant, and the                        facsimile at any time to the address(s)
                                               under paragraph (i) of this section.                    applicant must attest that, to the best of             listed on the application. Electronic
                                                  (i) The maximum number of charter                    the applicants’ knowledge, all                         deliveries other than facsimile will not
                                               halibut and community charter halibut                   statements in the application are true                 be accepted.
                                               permits that may be held by a CQE per                   and complete. An application for a
                                                                                                                                                              50 CFR Chapter VI
                                               community represented by the CQE in                     community charter halibut permit will
                                               regulatory area 2C is eight (8).                        be made available by NMFS and may be                   PART 679—FISHERIES OF THE
                                                  (ii) The maximum number of charter                   submitted by mail, hand delivery, or                   EXCLUSIVE ECONOMIC ZONE OFF
                                               halibut and community charter halibut                   facsimile at any time to the address(s)                ALASKA
                                               permits that may be held by a CQE per                   listed on the application. Electronic
                                               community represented by the CQE in                     deliveries other than facsimile will not               ■ 7. The authority citation for part 679
                                               regulatory area 3A is fourteen (14).                    be accepted.
                                                  (5) Limitation on use of permits. The                                                                       continues to read as follows:
                                                                                                          (l) Military charter halibut permit.
                                               following limitations apply to                          NMFS will issue a military charter                       Authority: 16 U.S.C. 773 et seq.; 1801 et
                                               community charter halibut permits                       halibut permit without an angler                       seq.; 3631 et seq.; Pub. L. 108–447.
                                               issued to a CQE under paragraph (k)(1)                  endorsement to an applicant provided                   ■ 8. In § 679.2, revise the introductory
                                               of this section.                                        that the applicant is a Morale, Welfare                text for the definition of ‘‘community
                                                  (i) Every charter vessel fishing trip                and Recreation Program of the United                   quota entity (CQE)’’ to read as follows:
                                               authorized by such a permit and on                      States Armed Services.
                                               which halibut are caught and retained                      (1) Limitations. A military charter                 § 679.2   Definitions.
                                               must begin or end at a location(s)                      halibut permit is non-transferable and                 *    *     *     *     *
                                               specified on the application for a                      may be used only in the regulatory area
                                               community charter halibut permit and                                                                             Community quota entity (CQE) means
                                                                                                       (2C or 3A) designated on the permit.
                                               that is within the boundaries of the                       (2) Application procedure. An                       a non-profit organization that:
                                               eligible community designated on the                    applicant may apply for a military                     *    *     *     *     *
                                               permit. The geographic boundaries of                    charter halibut permit at any time. To be              [FR Doc. E9–30662 Filed 1–4–10; 8:45 am]
                                               the eligible community will be those                    complete, a military charter halibut                   BILLING CODE 3510–22–P
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