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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 firstname.lastname@example.com 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 srobinson on DSKHWCL6B1PROD with RULES3 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. VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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. VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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, srobinson on DSKHWCL6B1PROD with RULES3 • 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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, srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 560 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 561 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 562 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 564 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 566 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 568 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 570 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 571 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 572 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 573 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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. VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 576 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 577 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 580 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 581 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. srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 582 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 583 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- srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 584 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 585 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 srobinson on DSKHWCL6B1PROD with RULES3 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, VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 586 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 587 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 srobinson on DSKHWCL6B1PROD with RULES3 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. VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 588 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 589 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 srobinson on DSKHWCL6B1PROD with RULES3 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, VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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. VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 591 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 592 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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. srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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'' srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 598 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 * * * * * firstname.lastname@example.com, 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 srobinson on DSKHWCL6B1PROD with RULES3 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: * * * * * VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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, VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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; VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 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 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 603 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 srobinson on DSKHWCL6B1PROD with RULES3 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. VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3 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 srobinson on DSKHWCL6B1PROD with RULES3 VerDate Nov<24>2008 17:13 Jan 04, 2010 Jkt 220001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\05JAR3.SGM 05JAR3
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