[Federal Register: May 28, 2008 (Volume 73, Number 103)]
[Rules and Regulations]
[Page 30504-30524]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my08-15]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 300
[Docket No. 071031633-8385-02]
RIN 0648-AW23
Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery
for Halibut
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 30505]]
ACTION: Final rule.
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SUMMARY: NMFS implements regulations to limit the harvest of Pacific
halibut by guided sport charter vessel anglers in International Pacific
Halibut Commission Area 2C of Southeast Alaska to the guideline harvest
level (GHL) of 931,000 lb (422.3 mt). The intended effect of this
action is to reduce the poundage of halibut harvested by the guided
sport charter vessel sector in Area 2C to the GHL while minimizing
adverse impacts on the charter fishery, its sport fishing clients, the
coastal communities that serve as home ports for this fishery, and
fisheries for other species. This final rule implements three
restrictions for the guided sport charter vessel fishery for halibut in
Area 2C: a one-fish daily bag limit, no harvest by the charter vessel
guide and crew, and a line limit equal to the number of charter vessel
anglers onboard, not to exceed six lines.
DATES: Effective June 1, 2008.
ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA)
prepared for this action may be obtained from the North Pacific Fishery
Management Council (Council) at 605 West 4th, Suite 306, Anchorage,
Alaska 99501-2252, 907-271-2809, or the NMFS Alaska Region, P.O. Box
21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS
Alaska Region Web site at http://www.noaa.fakr.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection of information requirements contained in this
rule may be submitted to NMFS at the above address, and by e-mail to
David_Rostker@omb.eop.gov or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Sue Salveson, 907-586-7228, or Julie
Scheurer, 907-586-7356.
SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission
(IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus
stenolepis) through regulations established under the authority of the
Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC
promulgates regulations governing the halibut fishery under the
Convention between the United States and Canada for the Preservation of
the Halibut Fishery of the Northern Pacific Ocean and Bering Sea
(Convention). The IPHC's regulations are subject to approval by the
Secretary of State with concurrence by the Secretary of Commerce
(Secretary). After approval by the Secretaries of State and Commerce,
the IPHC regulations are published in the Federal Register as annual
management measures pursuant to 50 CFR 300.62. The annual management
measures for 2008 were published on March 7, 2008 (73 FR 12280).
The Halibut Act also provides the Council with authority to
recommend regulations to the Secretary to allocate harvesting
privileges among U.S. fishermen. This process requires the Council to
submit a recommendation to the Secretary as a proposed rule for
publication in the Federal Register along with supporting analyses as
required by other applicable law. The Council is developing a
regulatory program to manage the guided sport charter vessel fishery
for halibut. This final rule is a step toward the Council's effort to
stabilize relative harvest between the Area 2C charter vessel and
commercial halibut fisheries while a longer term management program is
developed and implemented. The proposed longer term program under
development currently includes a proposed limited entry program for
charter businesses, a catch sharing plan, and compensated reallocation
from the commercial to charter fishing sectors. This final rule is
linked to the overall management of the halibut fisheries by the IPHC
and a previous regulation approved by the Secretary that establishes a
guideline harvest level (GHL) for managing the harvest of halibut by
the guided sport charter vessel fishery (August 8, 2003; 68 FR 47256).
Background and Need for Action
The background and need for this action were described in the
preamble of the proposed rule published in the Federal Register on
December 31, 2007 (72 FR 74257). In summary, this final rule will
implement a one-fish daily bag limit for guided sport charter vessel
anglers in Area 2C to reduce the poundage of halibut harvested by the
guided sport charter vessel sector in Area 2C to the GHL while
minimizing adverse impacts on the charter fishery, its sport fishing
clients, the coastal communities that serve as home ports for this
fishery, and fisheries for other species.
Management of the Halibut Fisheries
A complete description of how the halibut fisheries are managed can
be found in the preamble to the proposed rule. In short, the IPHC
annually determines the amount of halibut that may be removed from the
resource without causing biological or conservation problems on an
area-by-area basis in all areas of Convention waters. The IPHC
estimates the exploitable biomass and calculates the target amount of
allowable mortality for a given area. This target level is called the
total constant exploitation yield (CEY) and it represents the target
level for total removals (in net pounds) for that area in the coming
year. The IPHC subtracts estimates of all non-commercial removals
(sport, subsistence, bycatch, and wastage) from the Total CEY. The
remaining CEY, after the removals are subtracted, is the maximum catch
or AFishery CEY'' for an area's directed commercial fixed gear fishery.
Guideline Harvest Level
A more thorough discussion of the development of the guideline
harvest level (GHL) is provided in the preamble to the proposed rule
(December 31, 2007; 72 FR 74257) and in the rule that first implemented
the GHL (August 8, 2003; 68 FR 47256). The Area 2C GHL is established
in regulations at 50 CFR 300.65(c) and is a benchmark for monitoring
the charter vessel fishery relative to the commercial fishery and other
sources of fishing mortality. The fishery is not closed when the GHL is
reached, but it is the Council's policy that the charter vessel fishery
should not exceed the GHL.
To accommodate fluctuations in halibut abundance, the Council
adjusts the GHL step-wise according to the total CEY determined
annually by the IPHC. Specifically, the Council linked a step-wise
reduction in the GHL in any one year to the decrease in the total CEY
as compared to the 1999-2000 stock abundance. Since 2003 when the GHL
became effective, it has never been reduced below its maximum level
because declines in the total CEY have not been sufficient to trigger
the first step reduction of the GHL. This situation changed in 2008
when the total CEY for Area 2C was markedly reduced, resulting in a GHL
of 931,000 lb (422.3 mt). If the CEY were to increase in the future,
the GHL could increase up to a maximum of 1.432 million lb (649.5 mt)
for Area 2C.
Recent Harvests of Halibut in Area 2C
The GHL was implemented in 2003, and the charter vessel fishery has
exceeded the GHL for Area 2C every year since 2004. In 2006, the
charter harvest exceeded its 2006 Area 2C GHL by 380,000 lb (172.4 mt)
or 26.5 percent. In 2007, the Secretary of Commerce took regulatory
action to reduce sport fish harvest of halibut in Area 2C by amending
the two-fish bag limit with
[[Page 30506]]
the restriction that at least one of the two halibut retained could be
no longer than 32 in (81.3 cm) with its head on. Alaska Department of
Fish and Game (ADF&G) preliminary estimates of the Area 2C halibut
harvest by the charter vessel fishery in 2007 again indicated that the
GHL was exceeded, although by a smaller amount.
The Council recommended this final rule specifically to maintain
the charter vessel fishery at its GHL. In June 2007, the Council
adopted a preferred alternative that contained two options. The Council
recommended that the selection between the options would depend on
whether the CEY decreased substantially for 2008. Not knowing in June
2007 how the GHL might be affected by total CEY established by the IPHC
in January 2008, the Council recommended a suite of charter vessel
fishery restrictions if the GHL were to remain the same in 2008
(proposed rule Option A) and a more restrictive suite of restrictions
if the GHL were to decrease in 2008 (proposed rule Option B).
At the IPHC annual meeting in January 2008, the IPHC set the 2008
total CEY for Area 2C was set at 6.5 million lb (2,948.4 mt). This is a
4.3 million lb (1,950.4 mt) reduction from the 2007 total CEY of 10.8
million lb (4,899.0 mt).
2008 GHL for Area 2C
NMFS published a notice of the guideline harvest levels for Areas
2C and 3A for 2008 on February 5, 2008 (73 FR 6709). As established by
the original rule that implemented the GHL (August 8, 2003; 68 FR
47256), the GHL will step down if the IPHC reduces the CEY below
certain benchmarks. The 2008 CEY resulted in a three-step reduction in
the GHL for Area 2C. The 2008 GHL for Area 2C is 931,000 lb (422.3 mt).
The Action
With this final rule, NMFS implements the following management
measures to restrict halibut harvest by the charter vessel sector to
the GHL for Area 2C:
The number of halibut caught and retained by each charter
vessel angler in Area 2C is limited to no more than one halibut of any
size per calendar day;
A charter vessel guide, a charter vessel operator, and
crew of a charter vessel must not catch and retain halibut during a
charter vessel fishing trip; and
The number of lines used to fish for halibut must not
exceed six or the number of charter vessel anglers onboard the charter
vessel, whichever is less.
No annual limit for individual anglers will be implemented in Area 2C
for 2008. NMFS notes that a two-fish daily bag limit for sport fish
anglers is established under annual IPHC regulations for all waters off
Alaska. If an angler onboard a charter vessel in Area 2C retains a
halibut, then that angler may retain only one additional halibut that
day and only if that additional halibut was caught in an IPHC
regulatory area other than Area 2C. This is most pertinent to charter
vessels that may fish adjacent Areas 2C and 3A in a single day. While
charter vessel guides, operators, and crew will be prohibited from
catching and retaining halibut, they are not prohibited from
demonstrating fishing techniques to their clients.
Summary of Comments
The proposed rule was published in the Federal Register on December
31, 2007 (72 FR 74257), and invited public comments until January 30,
2008. NMFS received 273 letters, e-mails, and faxes before the deadline
containing 107 unique comments on the proposed rule. NMFS received 162
letters in favor, 102 letters in opposition, 8 letters in partial
support, and one letter stating an ambiguous position on the proposed
rule. Of the letters from which affiliations could be determined, 96
were from the commercial industry, 61 from the charter industry, 14
from local businesses, 2 from fisheries management organizations (IPHC
and ADF&G), and 24 letters were received from anglers and members of
the general public. Three form letters were received. Ten copies of one
letter in support of the one-fish daily bag limit were received. One
form letter was received from 51 individuals who opposed the proposed
rule because it did not include a sunset provision. The third form
letter was from 13 businesses that opposed the proposed rule citing
negative economic effects to their communities. Additionally, two
letters in favor of the proposed rule were received, one signed by 24
commercial fisherman, and another signed by 15 deckhands. Comments in
favor of the rule generally expressed support for limiting the guided
sport charter vessel sector harvest to the GHL to ensure conservation
of the halibut stock and to avoid further reallocations from the
commercial sector. Most comments against the rule cited economic
hardship to businesses and communities, inability to retain clients who
will choose to fish in other areas with more lenient restrictions, and
the need for what was perceived by the commenters as a more equitable
allocation split between the commercial and charter sectors, as reasons
for their opposition.
Comments and Responses
Allocation Issue
Comment 1: NMFS should impose restrictions on the commercial
fishing sector, including reducing commercial bycatch levels and the
commercial set-line quota instead of limiting the halibut charter
fishery.
Response: This rule is not designed to impose further restrictions
on commercial fisheries that take halibut. The commercial fishery for
halibut as well as the commercial fishery for groundfish that takes
halibut as bycatch to the harvest of other species are limited to a
specified amount of halibut mortality. Unlike the charter vessel
fishery for halibut, these commercial fisheries are closed each year
when their limits are reached.
Comment 2: All sectors need to stay within their allocations and
measures should be implemented to restrict the charter sector to the
GHL. Due to a declining estimate in biomass, and charter fishery
overages of the GHL, the Area 2C commercial fishery has taken a 42
percent reduction in allowable harvest between 2006 and 2008.
Achievement of IPHC's harvest goals and management objectives depends
on implementation of the proposed action. To choose an option that
won't hold the charter sector at or below the GHL would result in
continued reallocation of the halibut resource. Option B in the
proposed rule is the only option that will reduce harvest to the 2008
GHL.
Response: NMFS is implementing management measures in the final
rule that are intended to reduce the Area 2C charter halibut harvest
amount to the 2008 GHL.
Comment 3: Change how allocations are divided between the charter
and commercial sectors.
Response: Establishing a new process for allocating Pacific halibut
among different sectors is outside the scope of the proposed action;
however, the Council is considering options for reallocating halibut
between the commercial and charter sectors and received public
testimony at its April 2008 meeting. Final action is scheduled for
October 2008.
Comment 4: The Council has stated that its intent is to manage the
charter halibut fishery to the GHL until a long term plan is adopted
including a limited entry program for halibut charter businesses and
potentially new regulations on the allocation of halibut
[[Page 30507]]
between the commercial and charter fisheries.
Response: NMFS agrees. See response to Comment 3.
Comment 5: The IFQ program has allowed commercial fisherman to fish
shallower waters and deplete fish that sport fisherman would otherwise
catch.
Response: Current data do not clearly indicate whether nearshore
depletions are occurring, or what the causes, magnitude, and
geographical distribution of nearshore depletions might be. While it is
accurate that commercial fishermen may fish in areas that are
accessible to sport fishermen, any localized depletions resulting from
high halibut catch rates may be offset by egg and larval drift and
migrations of juveniles and adults. Information about local biomass,
immigration and emigration rates, seasonal changes, and the
relationship of these factors with environmental characteristics is not
available at a fine enough scale to indicate whether localized
depletions are occurring in Area 2C.
This final rule is not expected to significantly impact the
sustainability of the halibut stock. As discussed in the EA/RIR/IRFA,
the IPHC sets catch limits for the commercial fishery in proportion to
the amount of halibut that may be sustainably removed. This strategy
protects against overharvest and distributes the fishing effort over
the entire geographic range for halibut to prevent regional depletion.
The IPHC does not expect small scale local depletion to have a
significant biological effect on the resource as a whole.
Comment 6: There is no balance between the commercial and sport
fisheries. Commercial catch is increasing while the charter industry is
being faced with a cut. The proposed rule states that, ``from 1997 to
2006, the average annual removal of halibut was about 12.454 million
pounds and of this, the commercial fishery harvested 76.7 percent or
9.522 million pounds per year. From 2004 to 2006, the average annual
removal of halibut was 14.142 million pounds, and of this the
commercial fishery harvested 73.8 percent or 10.437 million pounds per
year.'' While it is true there has been some growth in the charter
sector harvest, the commercial harvest did not decrease, but in fact,
increased. While sport fish catch is being reduced, the commercial
sector will be able to harvest 2.28 million pounds over the IPHC's CEY
for 2008.
Response: The catch limit for the commercial halibut fishery and
the guideline harvest level for the sport fishery are derived from the
same estimate of total halibut biomass. The biomass allocation among
areas is estimated from the annual setline survey data and estimates of
bottom area. The catch limits are biologically based.
NMFS acknowledges that the commercial catch increased from the
period 2000-2003 to somewhat higher levels in 2004-2006 (reflecting
improved biological factors and technical improvements to the IPHC
assessments in those years); however, it is incorrect that the
commercial catch is increasing while the charter industry is being
faced with a cut. IPHC data show that the commercial catch declined in
each year from 2006 to 2008. Between 2007 and 2008, the commercial
catch limit in Area 2C was reduced from 8,510,000 pounds in 2007 to
6,210,000 pounds in 2008. This is a reduction of 27 percent and follows
a 20 percent reduction in the commercial catch limit in 2007 from the
2006 level.
Comment 7: The preliminary 2007 charter harvest estimate is 1.7
million pounds, only 270,000 pounds over the GHL. NMFS is giving
poundage back to the commercial fleet and cutting the charter catch.
Response: As described in the preamble to this rule, the 2008 GHL
was reduced to 931,000 lb. While the preliminary estimate of 2007
charter vessel harvest is 270,000 lb over the 2007 GHL, this level of
harvest would exceed the 2008 GHL by about 770,000 lb. The one-fish
daily limit implemented under this final rule is the only proposed
measure that may adequately reduce harvest to the current GHL.
The commercial Area 2C Fishery CEY is set by the IPHC and includes
a buffering provision for large changes in catch limits. The amount of
this buffer does not affect the GHL and does not represent pounds of
fish given back to the commercial sector at the expense of the charter
sector.
The charter vessel GHL is established in regulations at Sec.
300.65(c) and is adjusted in a stepwise manner based on the Total CEY
established annually by the IPHC. The GHL table in regulations at Sec.
300.65(c), adjusts the GHL to 931,000 lb when the Total CEY for Area 2C
is more than 5.841 million lb, but less than 6.903 million lb. The IPHC
set the 2008 Total CEY to 6.50 million lb, which is above 5.841 million
lb. In 2007, the GHL was set at 1.432 million lb under Sec. 300.65(c)
and the 2007 Total CEY of 11.40 million lb. The difference between the
2008 GHL of 931,000 lb and the 2007 GHL of 1,432,000 lb is about
500,000 lb. This 500,000 is not cut from the 2007 GHL. Rather, the 2008
GHL is reduced consistent with the lower Total CEY in 2008 and the
stepwise manner in which GHL is established under Sec. 300.65(c).
Community Effects
Comment 8: Tourism benefits more Alaskans than commercial fishing.
Tourism supports a wide variety of businesses that will be affected by
reduced demand for halibut charter trips. Lodges and charter industry
bring jobs and money to local communities and businesses, including
Alaska Airlines and the Alaska Marine Highway System. Communities have
invested a lot of money to encourage tourism and this rule will
undermine those efforts.
Response: NMFS agrees that the charter industry is an important
industry for many communities, generating jobs and revenue for the
communities involved as well as direct employment for the guides and
crew. A reduction in the daily bag limit for guided charter clients
will affect those communities and their efforts to develop guided
charter industries. The analysis indicates that the segment of the
charter industry that caters to cruise ship tourists will not be
impacted by changes to the daily bag limit to the same extent as the
lodge-based guided charter businesses. Moreover, tourists on the four
hour charter fishing trips associated with cruise ships often do not
have enough time to harvest two halibut. Tourists coming to communities
on cruise ships and choosing to take a charter trip for halibut will
likely continue to do so and businesses that cater to these tourists
will continue to benefit from their visits. NMFS acknowledges that
independent or repeat tourists who book day vacations at lodges may
consider the reduced halibut bag limit in their decision to book a
vacation, along with considerations for alternative fishing or tourist
opportunities that may be offered. The potential impact on bookings and
demands for tourist activities is discussed in the analysis supporting
this final rule, but quantitative estimates of how such impacts will
influence demand for these services and commensurate impacts on local
communities are unavailable.
Comment 9: Tourist hopes and expectations of catching a ``barn
door'' (i.e., a very large halibut) are fading along with their
willingness to pay for trips. Sufficient incentive must remain to
attract visitors.
Response: A tourist's expectation to catch a large halibut still
exists if the bag limit is one fish. This expectation and the fishing
experience itself often are the key factors in deciding to board
[[Page 30508]]
a charter vessel, not the daily bag limit. Furthermore, for much of the
charter fishing season, there are opportunities to catch other sport
fish species during a trip. This contributes to one of the incentives
to hire a charter vessel, which is to optimize the experience of sport
fishing in Alaska by fishing for more than one species.
Comment 10: Announcing new regulations at the beginning of a season
creates confusion and frustration and makes it hard to attract and
retain business. The proposed restrictions on the charter fishery will
negatively impact the ability of lodge owners to book trips and many
lodges have already pre-booked vacations for the 2008 season.
Response: NMFS agrees that a change in charter fishing regulations
in the months prior to a fishing season will be disruptive and may
cause some clients to reconsider bookings. However, information about
the potential for this action has been available since mid-2007. In
June 2007, the Council announced its intention to adopt a one-fish bag
limit if necessary to reduce the charter fishery harvest to the 2008
GHL. The proposed rule for this action was published in the Federal
Register on December 31, 2007 (72 FR 74257), with a public comment
period that closed on January 30, 2008. The results of the IPHC annual
meeting were published on January 22, 2008, and included an Area 2C CEY
that triggered a reduction in the GHL to 931,000 lb GHL. This reduced
GHL prompted selection of the Council's proposed one-fish bag limit as
the preferred management option to limit harvest to the GHL. NMFS took
action to inform the public and charter industry about the proposed
regulation changes as soon as possible through an information bulletin
published on its Web site and a press release.
Comment 11: The proposed annual limit disproportionately affects
multi-day lodge and charter operations while allowing cruise-based day
charters, the sector that comprises the main growth of the industry, to
continue. Both Options A and B would have profound negative effects on
lodge-based charter operations.
Response: The EA/RIR/IRFA and the proposed rule acknowledged that
the proposed actions may have greater adverse impacts on the lodge-
based sector of the guided charter vessel industry than on the day-boat
sector (see response to Comment 8).
Comment 12: This rule creates a marketing disadvantage for
businesses in Area 2C and will discourage clients from coming to
Southeast Alaska. Our businesses rely on repeat customers. Many of
these customers will now go to fish in other areas.
Response: NMFS believes this comment applies primarily to the
lodge-based segment of the guided charter industry. As indicated in the
analysis, the cruise-based component relies primarily on people
arriving in Alaska for one-time visits who have little opportunity to
fish in other areas and are not likely to be repeat customers. NMFS
acknowledges that lodge-based guided charter clients have more
opportunities to substitute fishing experiences to other regions of
Alaska or outside of Alaska. They also may shift to targeting a
different species. Models are not available to predict the number of
clients that will choose to not take a charter vessel trip in Area 2C
as a direct result of this final rule, or to estimate the proportion of
clients who would choose to maximize their experience with some other
type of fishing experience. Other than acknowledging the potential for
lost business, as was done in the EA/RIR/IRFA, NMFS cannot forecast the
probability or extent to which this might occur.
Comment 13: The bag limit should be the same for the entire British
Columbia and Alaska coastline so that no one area is more desirable
than another to anglers.
Response: NMFS lacks the authority to manage halibut in British
Columbia. This action is in response to concerns that are specific to
Area 2C.
Comment 14: Small charter operations will not be able to survive
this restriction.
Response: NMFS agrees that this action may have adverse impacts on
charter businesses and that some may fail or leave the business. This
possibility is mentioned in the analysis. Likewise, some businesses may
benefit from reduced competition if other businesses close. NMFS does
not agree that all small charter businesses will be forced to leave the
business.
Alternative and Future Management Measures
Comment 15: Allow the proposed limited entry program (moratorium)
for guided sport charter vessel businesses to go into place to preserve
the current charter vessel fleet. The number of boats should be
limited, not the number of fish.
Response: The Council adopted a proposal at its April 2007 meeting
to limit the number of businesses and vessels permitted to participate
in the guided sport charter vessel fishery for halibut. NMFS currently
is developing a proposed rule to implement the Council's action.
Publication of the proposed rule is scheduled for Spring 2008. Pending
consideration of public comment and approval of the proposed limited
entry program by the Secretary of Commerce, fishing under the limited
entry program would begin in 2010.
A limited entry program would limit the number of businesses and
vessels, but not the amount of halibut harvested. The amount of halibut
harvested in this fishery would need to be regulated by other
management measures, including GHL restrictions (if the GHL program is
not replaced with a different allocation) or an individual fishing
quota program designed specifically for the guided sport charter vessel
fishery for halibut. Limited entry programs in commercial fisheries
only weakly influence the amount of fish harvested because harvesters
adapt by changing their fishing effort and methods. Ancillary
regulations are needed to control the amount of harvest. If the number
of halibut charter vessel businesses was limited, the fishery could
still maximize harvest by modifying vessel size, capital inputs, number
of trips, length of trips, and the number of people in a fishing party.
Thus, harvest restrictions such as those implemented under this final
rule are necessary because effort controls alone are not sufficient to
reduce harvest.
Comment 16: Don't impose an annual catch limit; instead impose a
one-fish daily limit and move toward a limited entry program.
Response: NMFS agrees that a one-fish daily bag limit is an
appropriate management measure to limit the harvest of the guided sport
charter vessel for halibut to the reduced GHL established for 2008.
Even the most conservative annual catch limit considered by the Council
(4 fish a year) would not result in a harvest reduction sufficient to
meet the objective of this final rule. Thus, an annual catch limit is
not included as a provision of the final rule. NMFS is developing a
proposed rule to establish a limited entry program for the halibut
guided sport charter vessel businesses and expects a proposed rule to
be published in Spring 2008 for public review and comment. Also see
response to Comment 15.
Comment 17: Under the moratorium [limited entry program], charter
operators will have to buy their rights to fish while the original
commercial IFQs were given away.
Response: The nature and restrictions of the proposed limited entry
program for guided sport charter vessel businesses will be best
addressed under the proposed rule to implement that program once it is
published. However,
[[Page 30509]]
charter vessel business owners who initially qualify under the limited
entry program for participation in the guided sport charter vessel
fishery for halibut would not be required to purchase their privilege
for ongoing participation. This is similar to the initial allocation of
commercial IFQ.
Comment 18: With a new allocation decision and interim management
plan due this October from the Council, it seems unnecessary to inflict
serious harm on the charter industry in the meantime.
Response: NMFS disagrees that it is unnecessary to reduce the
guided sport charter vessel fishery harvest of halibut to the GHL. The
purpose of this final rule is to reduce harvest to the GHL, and to
provide a measure of stability to the halibut industry and coastal
communities while the Council develops a long-term plan for the charter
sector. The Council has initiated additional analyses of sector
allocations and a means for compensated reallocation of halibut from
the commercial to the charter vessel halibut fishery that would allow
the charter sector to grow. The Council also is exploring options for a
share-based program for the charter halibut fishery. Pending timely
Council action and Secretarial review and approval, regulations
implementing alternative allocations and associated management measures
are unlikely to be effective until 2010 or 2011, and would become
effective concurrently or after a proposed limited entry program for
halibut charter businesses is implemented if approved by the Secretary
(see response to Comment 15). To wait several years to reduce the
harvest in the halibut charter fishery to the GHL while longer term
allocation solutions are developed and implemented would frustrate the
IPHC's attempt to manage halibut mortality to the Total CEY based on
projected charter fishery harvests at the GHL level, and would continue
the ongoing de facto reallocation of halibut from the commercial sector
to the charter sector.
NMFS acknowledges that a policy decision to maintain the charter
fishery harvest at the GHL until such time a different allocation
system is implemented will constrain the growth of charter sector
harvest of halibut and impose costs on charter businesses. The EA/RIR/
IRFA supporting the final rule addresses these costs, although the
assessment of the economic effects is qualitative due to lack of data.
Comment 19: Develop a stable, long-term management plan for the
halibut charter sector.
Response: NMFS agrees that a more stable management program for the
halibut charter sector is necessary and is coordinating with the
Council and other management agencies to accomplish this through a
sequence of proposed management changes. The first step in this
sequence is the proposed implementation of a limited entry program for
halibut charter sector businesses. Also see response to Comment 18.
Comment 20: Develop a catch sharing plan for Area 2C.
Response: The Council is considering a catch sharing plan for the
halibut charter vessel and commercial fishery sectors. The Council
initially reviewed the alternatives for a catch sharing plan at its
April 2008 meeting and final action is scheduled for October 2008. Also
see responses to Comments 3, 18, and 19.
Comment 21: The Council is moving toward long-term solutions. To
change management now will disrupt ongoing analyses.
Response: The Council and NMFS' management objective for the
halibut guided sport charter vessel fishery since 2003 has been to
maintain harvest amounts to the GHL. Since 2004, the charter vessel
fishery in Area 2C has exceeded GHL by amounts that range between 122
percent and 136 percent. Until 2006, administrative and implementation
issues delayed responsive management actions to reduce harvest of
halibut in the Area 2C charter vessel fishery. In cooperation with
ADF&G, these issues largely have been resolved and NMFS and the Council
are moving forward to manage the charter vessel fishery consistent with
management objectives set forth since 2003. NMFS disagrees that
management of this fishery to reduce harvest to the GHL would disrupt
ongoing analyses; this final rule does not change the long-term
solutions for the charter vessel fishery under consideration by the
Council nor does it prevent future management actions that the Council
may wish to consider as new information becomes available. See also
response to Comment 18.
Comment 22: Restrict the guided sport charter vessel fishery to
only allow retention of halibut greater than 32 inches in length like
the commercial sector in order to protect recruits of the halibut
biomass. Halibut only twenty inches in length and weighing five pounds
have been brought back to the dock by charter vessel anglers. Charter
vessel anglers should also have a maximum poundage.
Response: Restricting the charter vessel fishery to retention of
fish over 32 inches without other harvest constraints would not meet
the intent of reducing harvest in this fishery to the GHL. Implementing
a size limit in addition to the one-fish daily bag limit would be
overly restrictive. Other reasons may exist to consider size
restrictions in the charter fishery in the future, but not as a
provision of this final rule.
NMFS notes that the Council did consider minimum size limits of 45
and 50 inches on a second fish (assuming a two-fish bag limit) as part
of the EA/RIR/IRFA supporting this final rule. A key reason why the
Council rejected alternatives with minimum size limits was the
difficulty in measuring larger fish.
Comment 23: Maintain the status quo for the Area 2C charter harvest
restrictions.
Response: NMFS disagrees. The estimated harvests under status quo
(1.333 to 1.448 million lb) substantially exceed the GHL of 0.931
million lb. Thus, the status quo alternative would not achieve the
policy objective of the Council, NMFS, and other management agencies to
maintain charter sector harvest amounts to the GHL while longer term
solutions are developed and implemented for stabilizing the allocation
of halibut between the commercial and charter sectors.
Comment 24: Implement a compensated reallocation program to use
taxpayer money to buy back IFQ for the sport fishery sector. It is only
reasonable that the responsible government agencies fund this
reallocation because they have been shortsighted and inactive in
response to increasing charter demand.
Response: The Secretary of Commerce does not have statutory
authority to use government funds to purchase halibut quota share (QS)
or lease halibut IFQ for use in the charter vessel fishery; this would
require congressional action and funding and was outside the scope of
the proposed rule. NMFS notes that the Council is considering a
provision that would allow charter vessel businesses to lease IFQ from
commercial halibut QS holders. The Council is scheduled to take final
action on this and other provisions supporting a compensated
reallocation program for the charter and commercial fishing sectors at
its October 2008 meeting.
Comment 25: Implement a charter individual fishing quota program.
If charter IFQs had been enacted shortly after they were proposed in
1993, the rapid growth of the charter fleet could have been controlled.
Response: The Council did propose an IFQ program for the halibut
charter sector in 2001, but NMFS declined to
[[Page 30510]]
publish a proposed rule to implement the Council's program for several
reasons, including questions about the reliability of data supporting
the proposed program. Had an acceptable IFQ program been implemented,
NMFS agrees that the current allocation problems between the commercial
and charter sectors could have been reduced and easier to address.
Comment 26: Consider a slot limit based on size or weight that both
commercial and charter boats abide by to protect the long-term
recruitment of future halibut stocks. It also would be much easier for
the resource agencies to monitor and audit such a rule with at-sea
inspections and audits of landed fish at processing facilities.
Response: The purpose of the final rule is to reduce the charter
vessel fishery harvest to the GHL established for this fishery.
Restricting the charter vessel fishery to size or weight limits without
other harvest constraints would not meet the intent of reducing harvest
to the GHL. The EA/RIR/IRFA developed by the Council did consider
halibut slot limits; these were rejected because this approach could
potentially result in an increased harvest, contrary to the objective
of this final rule. Further, the options that would implement minimum
size limits of 45 or 50 inches in length were rejected in large part
because of the difficulty in measuring and releasing large fish without
injuring them. There are safety concerns for crew and clients when
attempting to measure large, heavy, muscular fish. Other reasons may
exist to consider size or weight restrictions in the charter fishery in
the future, but not as a provision of this final rule
Comment 27: Subsistence issues need to be addressed before this
issue. The subsistence limits are too high and the amount of
subsistence fish that is sold is not monitored.
Response: NMFS acknowledges that the halibut resource is fully
utilized in Area 2C and that the three major categories of use are
commercial, sport, and subsistence harvest. This final rule addresses
an allocation issue between two of the larger users of halibut: the
commercial and charter halibut fisheries, which account for 72 percent
and 13 percent of total removals in Area 2C, respectively. While
subsistence harvest of halibut is a source of mortality, it comprises
the smallest use at 4 percent of total removals (See section 1.10.1 of
the EA/RIR/IRFA). The Council, through regulations, established an
allowed use of the halibut resource by subsistence users. The Council
and NMFS disagree that the subsistence use of halibut is too high and
must be further restricted prior to proceeding with this final rule.
NMFS acknowledges that monitoring catch and total mortality
(retained and discard) in the subsistence fishery poses unique concerns
and challenges and has asked ADF&G for estimates of subsistence
removals to evaluate trends in subsistence harvests. Subsistence
harvest is estimated using specialized survey methods tailored for that
sector. ADF&G staff report that the subsistence harvest has remained
relatively stable during recent years, which is another reason why NMFS
does not believe that subsistence harvest needs to be reduced before
taking this action.
Comment 28: Female halibut should all be catch and release.
Discourage retention of small halibut. A rule should be developed to
release sport caught halibut over 200 pounds.
Response: The comment presumes that large females contribute
disproportionately to reproduction and that harvest of these females
will substantially decrease juvenile halibut abundance. In 1999, the
IPHC reviewed options for a maximum size limit of 60 inches (150 cm) in
the commercial fishery and concluded that, based on the research at the
time, it did not add substantial production to the stock. Applying the
limit to the sport fishery would have an even smaller benefit because
the sport fishery harvest is much smaller than commercial harvest, and
also because this action would only apply to Area 2C. The halibut stock
is managed as a single population throughout its entire range. See also
the response to Comment 26.
Comment 29: The one-fish daily bag limit should be imposed on the
whole state, not just one area.
Response: The harvest of halibut by the charter vessel fishery in
Area 2C has exceeded the annual GHL each year since 2004 by significant
amounts. Conversely, the charter vessel harvest of halibut in Area 3A
has not exceeded the annual GHL and restrictions on this fishery are
unwarranted at this time. NMFS recognizes that different restrictions
for the charter vessel sector in different IPHC regulatory areas off
Alaska may influence where potential clients choose to fish. However,
applying different regulations and bag limits to different areas is a
common practice in fishery management. Although a one-fish daily bag
limit in Area 2C may change the demand for charter trips if anglers are
unwilling to substitute other species, many clients associated with
cruise vessels likely will continue to fish in Area 2C because their
fishing time is limited to half-day trips, which may not provide enough
time to harvest two halibut.
Comment 30: Implement the Federal prohibition on skipper and crew
harvest of halibut. Making this a Federal regulation will relieve the
restriction on skipper and crew harvest of other species. Skipper and
crew harvest is abused, sold to restaurants, or used as a guarantee
that clients will have fish to take home.
Response: NMFS notes the support for the part of the final rule
that prohibits the catch and retention of halibut by charter vessel
guides, operators, and crew. This action allows ADF&G to remove the
emergency order that prevents skippers and crew from retaining any
species of fish while on a saltwater charter trip. Thus, this rule
could relieve a burden on crew compared to the previous emergency
order. This prohibition also will help attain the management objective
of limiting the charter vessel harvest of halibut in Area 2C to the GHL
while minimizing adverse impacts on the charter fishery, its clients,
and its home ports.
Comment 31: Modify the skipper and crew provision to allow personal
use fishing before May 16 and after August 15, or some other dates
outside the tourist season, for halibut. Making a special trip wastes
resources. This would minimize the impact of the regulation on skipper
and crew by compensating them and allowing them to catch fish for food
while working.
Response: NMFS acknowledges that the prohibition on retention of
halibut by charter vessel guides, operators, and crew could lead to
higher operating costs for harvesting halibut for personal use.
However, as noted in the response to Comment 30, this final rule will
improve the opportunity for charter vessel guides, operators, and crew
to retain non-halibut catch while clients are onboard, thus enhancing
personal use fishing opportunities for species other than halibut.
Comment 32: Remove the prohibition on skipper and crew harvest. No
one at ADF&G, the Council, or IPHC can say or prove that skipper and
crew harvest was included in the original GHL calculations. Crew
harvest records began voluntarily in 1998 with the logbook program.
Uncertainty exists whether this harvest was included with ``other''
sport harvest and whether policy makers considered skipper and crew
harvest as part of the GHL when it was established. Thus, it is
unethical to continue this prohibition based on the GHL.
Response: The Council and NMFS, working with stakeholders, have
[[Page 30511]]
approved a prohibition on charter vessel guide, operator, and crew
catch and retention of halibut as a preferred first tool for
restricting harvest. Notwithstanding whether crew harvest of halibut
was voluntarily reported in charter vessel logbooks submitted to ADF&G
when the logbook program first was established, the Council and NMFS
have specified their intent that this harvest be part of the existing
GHL. As noted in Section 2.6.3.2 of the EA/RIR/FRFA supporting this
final rule, the ADF&G estimates that the State prohibition on crew-
caught halibut reduced harvest in the charter vessel fishery by between
78,000 lb and 84,000 lb in 2006. See also responses to Comments 30 and
31.
Comment 33: Maintain the status quo regulations and add a six-fish
annual limit.
Response: The status quo restrictions on the Area 2C charter vessel
fishery with a six-fish annual catch limit would not reduce harvest to
the current GHL of 931,000 lb. Instead, this option would result in an
estimated harvest of between 1.3 and 1.4 million pounds, an
unacceptable overage of the GHL. A one-fish daily bag limit, the
primary provision implemented by NMFS in this final rule, is the only
management measure that may reduce the harvest to the GHL, as indicated
by the analysis.
Enforcement and Recordkeeping and Reporting Requirements
Comment 34: Better enforcement and better data are needed for
existing regulations. Many charter operators are not obeying
restrictions because they know there is no enforcement in their area.
As a result, harvest estimates are not accurate. Improve funding for
better logbook analysis and more active enforcement by the USCG and
NMFS. Many charter clients are transporting many more fish than allowed
under the existing regulations.
Response: Significant effort is being made to improve reporting.
ADF&G has made numerous changes to their logbook program in recent
years. For example, ADF&G has conducted dockside checks and post season
client verifications to validate logbooks. In addition, NMFS has
coordinated with ADF&G to establish new logbook requirements that will
further validate halibut harvest information recorded in the state's
Saltwater Sport Fishing Charter Trip Logbook, including requiring the
signatures of anglers to verify that the number of halibut caught and
recorded is accurate. ADF&G supports this requirement as it will lead
to more reliable logbook data and more accurate estimates of charter
halibut harvest. NMFS believes that enhanced recordkeeping and
reporting, together with ongoing cooperative monitoring and enforcement
by State and Federal enforcement personnel as time and resources allow
will serve as a deterrent to large scale violations of sport fish
regulations.
Comment 35: There is a lack of monitoring and enforcement of
commercial catch. The published commercial catch data are flawed and
commercial fisherman are not being held to their targets.
Response: NMFS disagrees. Although no fishery is exempt from
illegal fishing activity, NMFS believes that current monitoring and
enforcement efforts are sufficient to maintain control of the
commercial halibut fishery and that reported catch is sufficiently
accurate for management of the fishery and the halibut resource. The
commercial quota system for halibut is administered, regulated, and
enforced by NMFS to insure harvests are within quota limits and to
monitor and enforce the amount of quota that each commercial fisherman
is allowed to harvest. Enforcement of halibut regulations for Alaska is
accomplished through complementary efforts of NMFS Office for Law
Enforcement (OLE), Alaska State enforcement agencies, and the U.S.
Coast Guard.
Alaska Wildlife Troopers (Alaska Department of Public Safety) also
perform inspections, audits, and patrol hours to monitor and enforce
Federal commercial halibut fishery regulations under a Joint
Enforcement Agreement between NOAA OLE and the Alaska Wildlife
Troopers.
Comment 36: Many charter operators are illegal and do not comply
with Alaska Statute 38.05. If we enforced this statute, there would be
less of a problem with the charter harvest levels.
Response: The Secretary is not responsible for enforcing State of
Alaska statutes. Comments regarding the enforcement of State statutes
are more appropriately addressed to the State of Alaska.
Comment 37: Enforcement of the regulations is impossible. When
considering enforcement of annual limits, charter operators cannot be
held responsible for client actions because the operator doesn't know
what the client may have previously harvested.
Response: NMFS believes that enforcement of this final rule is
possible. This final rule does not include provisions for an annual
catch limit. Thus, recordkeeping and reporting requirements proposed to
monitor and enforce such a limit have been removed from the final rule.
All other proposed federal recordkeeping requirements are retained to
increase the accuracy of data collection and recorded information (see
response to Comment 34).
Comment 38: Keep the angler signature provision. This will lead to
more accurate reporting.
Response: NMFS agrees and has maintained this requirement (see
response to Comment 34).
Comment 39: The current carcass retention provisions are
unreasonable. On live-aboard charters, it is not reasonable to carry
around whole fish for days when they could be processed and vacuum
packed onboard. The current requirements create storage issues, reduce
meat quality, and create a timing problem after returning to port to
process fish and transport clients and their fish to the airport in
time. Inspectors should be able to estimate the number of fish from the
packages.
Response: This final rule does not require the retention of halibut
carcasses. When the rule that implemented a 2-fish daily bag limit with
one-fish under 32 inches in length went into effect in Area 2C in 2007,
the carcass retention requirement was necessary to determine head-on
length for enforcement purposes. This final rule will rescind the
requirement at Sec. 300.66(m) to retain carcasses onboard. However,
IPHC regulations require that for Convention waters off the coast of
Alaska no person shall possess onboard a fishing vessel, including
charter vessels and pleasure craft, halibut that have been filleted,
mutilated, or otherwise disfigured in any manner except that each
halibut may be cut into no more than two ventral and two dorsal pieces,
and two cheeks, all with skin on (paragraph (28)(2) of the Pacific
Halibut Annual Management Measures; March 7, 2008; 73 FR 12280). This
change allows enforcement officers to count the number of fish in
possession by an angler.
Comment 40: NMFS should retain the requirement to bring halibut
carcasses to shore for measurement. Accurate creel survey lengths are
fundamental to estimating the catch of the charter fleet. Fish that are
filleted at sea cannot be measured.
Response: NMFS agrees that carcass retention facilitates
enforcement and more accurate data collection, but it is unnecessarily
burdensome to charter operators given that this final rule does not
implement a size limit on retained halibut. Further, charter operators
have expressed concerns about disposal of carcasses at ports, time
constraints, the diminished meat quality of fish that are not processed
immediately, and limited
[[Page 30512]]
storage space onboard some vessels. These concerns were especially
pronounced for charter operators who run multi-day trips or more than
one trip in a day. To respond to these concerns and to address the need
for better enforcement, the IPHC adopted a regulation that is described
in the response to Comment 39.
Comment 41: The proposed paperwork requirement for monitoring the
annual catch limit is burdensome and time consuming for operators and
anglers. The requirement to print the angler name is redundant. It
would be better to collect youth and senior angler information for
inclusion in the database when issuing the harvest cards. Furthermore,
the proposed requirement for anglers to retain their licenses for three
years is unreasonable, the license paper is flimsy and hard to keep
track of, and retention is a burden for clients.
Response: Under Option A, which would have implemented an annual
catch limit for Area 2C, it would have been necessary for anglers to
retain their licenses in the event that discrepancies arose in the
logbook data. However, because NMFS is implementing Option B, the one-
fish daily bag limit, the requirement to retain angler licenses is no
longer necessary and has been removed from the final rule. Other
requirements for recording the angler name and license number are
retained to improve accuracy of recorded information. Also see response
to Comment 34.
Comment 42: Issue harvest tags with licenses instead of the
burdensome recordkeeping and reporting requirements proposed to monitor
and enforce an annual catch limit.
Response: NMFS is not implementing the proposed annual catch limit
because this management tool would not reduce the Area 2C charter
vessel harvest to the 2008 GHL. Harvest tags are not required for the
monitoring and enforcement of a one-fish daily bag limit.
Guideline Harvest Level
Comment 43: Rescind the GHL.
Response: Rescinding the GHL is outside the scope of this action.
See Response to Comment 46.
Comment 44: Maintain the GHL and manage halibut charter vessel
harvest to that level. The GHL was set at 125 percent of the charter
vessel fishery's highest historic harvest to allow for growth in the
industry. The GHL was exceeded in 2004-2007 and the charter fleet is
still growing with an increased number of clients served, fishing
trips, and active vessels.
Response: NMFS acknowledges the comment. This final rule does not
change the GHL provisions, only the management measures necessary to
control harvest to the GHL.
Comment 45: If the GHL doesn't increase with the CEY, why should
the GHL decrease with the CEY? Commercial IFQ shareholders are afforded
a buffering mechanism by the IPHC to soften the economic impacts of a
rapidly declining CEY. The guided sport halibut fleet should be
afforded similar buffering. Also, the stair step feature of the GHL is
not compatible with the slow up/fast down (SUFD) policy of the IPHC.
Response: This rule was not designed to change either the 2008 GHL
published in the Federal Register (73 FR 6709, February 5, 2008) or the
GHL regulations at 50 CFR 300.65. The GHL ``stair steps'' down only
during periods when the CEY established by the IPHC falls below
benchmark levels in the GHL regulation. To change the GHL regulations
would require separate rulemaking. The Council incorporated an element
of buffering into the GHL rule by setting the maximum at 125 percent of
the 1995-1999 average harvest to allow for growth in the charter
industry. NMFS notes that, should the CEY increase from the 2008 level,
the GHL could increase as well to a maximum of 1.432 million lb,
consistent with the procedures described in regulations.
The SUFD procedure used by the IPHC is not incompatible with the
stair step feature of the GHL. Federal regulations require certain
levels for the GHL based on the annual Total CEY, not procedures used
by the IPHC to derive that annual Total CEY.
Comment 46: The GHL setting process is flawed. The GHL is too low
and needs to be changed. The GHL was proposed and implemented with only
commercial interests voting on the Council. The GHL has been the same
for 14 years and deserves some kind of update or allowance.
Response: The Council first began discussing the guided charter
fishery for halibut in 1993. After 10 years of debate, the GHLs were
established for Areas 2C and 3A (August 8, 2003; 68 FR 47259). This
rule set the maximum GHL for Area 2C at 1.432 million lb (649.5 mt),
and included a mechanism for reducing the GHL in years of low abundance
as determined by the IPHC. Since implementation, the GHL has remained
at its maximum level until this year when reduced stock abundance
estimates triggered a reduction. Guided sport charter vessel harvest
exceeded the maximum GHL in 2004, 2005, and 2006 and is estimated to
have again exceeded the GHL in 2007. The maximum GHL cannot be
increased without a change to regulations. Revising the GHL and the
halibut sector allocations are beyond the scope of this final rule.
Comment 47: The GHL is just a guideline, not a hard cap.
Response: NMFS acknowledges that area-specific GHLs were
established in 2003 as a guideline that, if exceeded, could prompt
responsive management action to reduce charter vessel harvest amounts.
The GHL has been exceeded since 2004. Thus, management action to reduce
harvest to the GHL is completely within the management objective for
the GHL provisions. The fact that a time lag exists between when a GHL
overage occurs and responsive management action is implemented through
rulemaking also was acknowledged when the GHLs were established.
Comment 48: Modify the final rule to accurately reflect the charter
GHL that is associated with the IPHC-adopted Total CEY and the effect
of Option B compared to that GHL, not the GHL of 1.217 million lb.
Response: NMFS agrees and has reported the new GHL of 931,000 lb
(422.3 mt) in this final rule and its associated EA/RIR/FRFA. A notice
of the 2008 GHLs for Areas 2C and 3A was published in the Federal
Register on February 5, 2008 (73 FR 6709). When the proposed rule was
written, NMFS anticipated that the IPHC might reduce the CEY,
triggering a reduction in the GHL, and wrote the proposed rule in a
manner to allow final action notwithstanding the reduction.
Comment 49: The proposal to simultaneously reduce the GHL and
implement management measures to reduce harvest to the new GHL is
contrary to the existing regulations regarding use of GHLs. Option B
violates the Administrative Procedures Act (APA), and both options
violate the purpose and intent of the charter fishery regulatory
regime.
Response: NMFS disagrees. The Council recognized that the GHL might
be adjusted downward from the maximum GHL that was in place when it
recommended the management measures for this final rule in June 2007.
Thus, the Council proposed two different sets of management measures;
one if the GHL remained unchanged in 2008, and a second more
restrictive set of management measures if GHL was reduced. Both sets of
management measures were published in the Federal Register for public
review and comment. The comment period on the proposed rule extended
beyond the IPHC meeting in mid-January, when the new and reduced total
halibut CEY of
[[Page 30513]]
6,500,000 lb (2,948.4 mt) for Area 2C was established for 2008. This
CEY resulted in a reduced GHL based on existing regulations at 50 CFR
300.65(c). NMFS published a notice in the Federal Register of this
downward adjustment on February 5, 2008 (73 FR 6709). This was a
nondiscretionary action given that the regulations at 50 CFR 300.65
clearly established how the GHL steps down when Total CEY is reduced
below certain benchmarks. Given that a one-fish bag limit was proposed
by the Council if the GHL was reduced, analyzed in the EA/RIR/IRFA
supporting this action, and noticed in the proposed rule under APA
rulemaking procedures, NMFS believes the public had adequate notice and
opportunity for review and comment on the actions implemented under
this final rule and that this action is consistent with the APA and the
GHL management provisions.
Applicability of the Rule
Comment 50: The proposed rule discriminates against anglers fishing
from charter vessels, especially those who because of age, physical
ability, or financial limits cannot operate or buy their own boat. It
is not fair to discriminate against charter clients so the status quo
should be maintained. Equal access and equal protection rights are
being violated.
Response: NMFS does not agree that this rule discriminates against
charter anglers because age, physical ability, and financial status are
not the subject of this regulation. This final rule was designed to
reduce the harvest of halibut in the charter vessel fishery to the GHL
to address the current allocation problem between the halibut charter
fishery and the commercial fishery. Recreational anglers who wish to
fish from a charter vessel may still elect to do so. The final rule
does not discriminate between U.S. citizens based on age, physical
ability, or ownership of a vessel.
Comment 51: Support 6-fish annual catch limit for non-resident
anglers only.
Response: NMFS disagrees. If this rule were applied only to non-
resident anglers, then Federal management of this Federal resource
would discriminate among U.S. citizens based on their state of
residence. This would be contrary to the Halibut Act, contrary to basic
rights and obligations in existing Federal law, and could not
reasonably be considered necessary to promote conservation. Moreover,
this action would not reduce charter harvest to the 2008 GHL and
therefore would not accomplish the objective of this action.
Comment 52: Apply restrictions to self-guided anglers as well. The
proposed action discriminates between sport fishermen with and without
their own boats. Self-directed anglers are only held to the 2-fish
daily limit. Include bare boat charters or self-guided trips in
restriction. Including self-directed anglers in the 2-fish with size
limits regulation would further decrease sport harvest. Self-directed
harvest equals about 67 percent of the guided harvest. If all sport
anglers in Area 2C were held to the limit, perhaps further restrictions
would not be necessary.
Response: The Halibut Act under the Convention does not prevent the
Secretary from tailoring a management action so that it addresses the
concern that prompted action in a reasonable manner. The objective of
this final rule is to reduce the harvest of halibut in the Area 2C
guided sport charter vessel fishery to the GHL. The reason for this
action is clearly indicated in the preambles to the proposed and final
rules. The Council did not recommend limiting other recreational
harvest, subsistence harvest, or bycatch and wastage in the commercial
fishery because harvest data in the EA/RIR/IRFA show that removals from
categories other than the guided charter vessel sector have remained
relatively stable during the past 5 years and have not grown at the
rate of the guided charter vessel fishery. Therefore, self-guided
anglers were not considered part of the problem addressed by the
Council and this final rule. Guided charter harvests rose each year
from about 1.28 million pounds in 2003 to 2.03 million pounds in 2006.
It is this information that prompted the Council to propose provisions
to limit Area 2C charter vessel angler harvest consistent with the
Halibut Act under the Convention.
Comment 53: Expand the proposed harvest restriction to all non-
resident anglers, guided and unguided.
Response: Federal law prohibits applying different regulations to
anglers based on state residency. The regulations will apply to all
charter vessel anglers, regardless of state of residency. Expanding the
restriction beyond the guided charter vessel fishery is beyond the
scope of this action. See also responses to Comments 51 and 52.
Comment 54: Apply restrictions to all anglers, but only during
June, July, and August, with more lenient restrictions during the rest
of the season.
Response: NMFS interprets the comment as suggesting that the one-
fish daily bag limit for charter vessel anglers be applied to both
guided and unguided recreational anglers, and be limited for both to
the months of June, July, and August. The application of the rule to
the unguided sport fishery would not address the problem identified by
the Council, or the objectives defined for this action.
Comment 55: The charter industry should not be considered part of
the sport fishery. The charter and lodge fishers are, in effect,
commercial fishers.
Response: Fish caught in commercial fisheries enter commerce, that
is, they are sold to consumers, whereas fish caught in recreational
fisheries are for personal consumption. This is a fundamental
difference between commercial and sport fisheries and the reason why
the guided sport charter vessel industry is not considered a commercial
fishery.
Data and Data Quality
Comment 56: ADF&G catch data are flawed, and no scientific basis
exists for imposing increased restrictions on the halibut charter
fishery.
Response: The analysis supporting this final action uses sport
fishing data collected by ADF&G through its postal survey, logbook
program, and creel survey program. These data comprise the best
scientific information available for the EA/RIR/IRFA and are
appropriate for use in estimating the impact of the final rule on the
charter halibut and commercial sectors. These data collection programs
have been reviewed by the Council's Scientific and Statistical
Committee and use statistical methods accepted by the scientific
community to collect and extrapolate sport fishing information,
including the disclosure of known statistical biases and verification
of data collection methodology.
Comment 57: The Council motion for this action was based on the
ADF&G's projection that the 2006 charter harvest was 46 percent over
the GHL. ADF&G's final estimate for 2006 charter halibut catch was less
than the initial estimate. Update the analysis to recognize that 2006
harvest was substantially lower than initially estimated.
Response: NMFS acknowledges that the preliminary estimate of 2006
charter halibut harvest in Area 2C was higher than the final estimate;
however, both estimates were above the GHL of 1.432 million lb (649.5
mt). The preliminary estimate for 2006 was 2.029 million lb (920.3 mt),
42 percent over the GHL, and the final estimate was 1.804 million lb
(818.3 mt), 26 percent over the GHL. This overage indicates the ongoing
need for management measures to reduce harvest to the GHL. The EA/RIR/
IRFA was updated to reflect the final harvest
[[Page 30514]]
estimate for the Area 2C halibut charter fishery (See Table A4-1).
Comment 58: The regulation that went into place in 2007 for a two-
fish bag limit with one fish under 32 inches in length substantially
reduced the guided sport charter vessel harvest of halibut. Data from
2007 are not yet available to evaluate the effectiveness of this
regulation or the need for further restriction.
Response: The management measures implemented for the halibut
charter fishery in 2007 were expected to reduce charter halibut harvest
by 518,000 lb (235.0 mt). The preliminary estimate of charter halibut
harvest in Area 2C for 2007 is 1.70 million lb (771.1 mt), plus or
minus 15 percent (between 1.45 million lb (657.7 mt) and 1.96 million
lb (889.0 mt)). Even at the lower end of this range, harvest was still
slightly above the 2007 GHL. In 2008 a reduction in the Total CEY set
by the IPHC triggered a reduction of the Area 2C GHL to 931,000 lb
(422.3 mt). The 2007 rule would not reduce harvest enough to meet the
new 2008 GHL. According to the analysis for this action, the one-fish
daily bag limit is the only alternative analyzed that may reduce
harvest enough to meet the new 2008 GHL.
Comment 59: Sport landings of halibut contribute minimally to the
overall mortality in the fishery. Projections based on historical data
indicate that halibut sport landings are stable and not likely to
increase dramatically in the near future. Even the best recreational
data collection programs can not accurately estimate harvest. As such,
managers need to look at trends and not yearly estimates in setting
limits.
Response: The guided sport charter vessel sector's contribution to
overall mortality is not minimal and has been increasing. It was noted
in the analysis that between 2002-2006, guided sport charter vessel
harvests accounted for 13 percent of the removals from Area 2C, and
were the second largest source of removals after commercial harvest.
Table 17 of the analysis provides information on harvests from 1995 to
2006 for the guided and unguided components of the sport fishery.
Unguided harvests have fluctuated between 0.723 million lb and 1.187
million lb with no clear increasing or decreasing trend. In contrast,
guided sport charter vessel fishery harvests have increased. Between
1999 and 2006 guided harvest amounts rose each year from 0.938 million
lb in 1999 to 2.035 million lb in 2006. The Area 2C charter fishery has
consistently harvested more than the GHL. By Council policy, this
necessitates corrective action to limit the charter fishery to the GHL.
Comment 60: Charter harvest is overestimated. Operators inflate
logbook numbers in hopes of receiving extra quota share. Most charter
fish are in the 5-10 lb range, much smaller than the 18-20 lb average
that is used by ADF&G as an estimator.
Response: The analysis supporting this final action uses sport
fishing data collected by ADF&G through its postal survey, logbook
program, and creel survey program. These data comprise the best
scientific information available for the EA/RIR/IRFA and are
appropriate for use in estimating the impact of the final rule on the
charter halibut and commercial sectors (see Comment 56). The weight
estimates for the charter halibut fishery used in the analysis
supporting this final rule were obtained from halibut measurements
taken by the ADF&G creel survey that are extrapolated using a length-
to-weight relationship published by the IPHC. These measurements are
taken in port with a creel sampling technician and represent a sample
of harvested halibut that have not been mutilated in such a way that
they cannot be measured. Length information from all sampled ports is
used in determining the average size of halibut for Area 2C. The
proportion of harvested fish that are measured by ADF&G varies by port;
however, these estimates provide the best available information about
the size and weight composition of halibut harvested in the guided
sport charter vessel fishery. These data collection programs have been
reviewed by the Council's Scientific and Statistical Committee and use
statistical methods accepted by the scientific community to collect and
extrapolate sport fishing information, including the disclosure of
known statistical biases and verification of data collection
methodology.
Comment 61: Page ix of the Executive Summary of the EA/RIR/IRFA
states that the analysis ``employs the best information available, in
this case, 2006 ADF&G Saltwater Charter Vessel Logbook data.'' We
believe this is erroneous. Most ADF&G data for the charter fishery
comes from a combination of the Statewide Harvest Survey and logbook
data.
Response: The ADF&G released its final estimate of the 2006 charter
harvest in September 2007. This final estimate was based on the 2006
Statewide Harvest Survey. This new information became available after
the Council's initial review of the analysis when it made its
recommendations in June 2007. However, this new information was used to
prepare Appendix IV to the EA/RIR/IRFA that was released in November
2007. This appendix updates the earlier results. The Secretary is
considering this new information in making the final decision about
this action. The wording in the Executive Summary of the November 2007
EA/RIR/IRFA was not updated to accurately reflect the full range of
information being considered by the Secretary and will be corrected.
Comments Regarding the Economic Analysis
Comment 62: The analysis did not fully consider the economic
effects on small businesses and coastal communities. The analysis is
not based on the best available data.
Response: NMFS used data including the most recent logbook and
statewide fishery survey information available from ADF&G, a 2005 study
of the charter fishery in Sitka conducted by the McDowell Group, an
analysis of charter anglers in South Central Alaska prepared by the
University of Alaska, and the key informant interviews that were noted
in the EA/RIR/IRFA. This is the best available information. However,
the data available for the analysis of this action are limited. The
information that would be necessary to provide a complete quantitative
analysis of the impacts of this action on the commercial or charter
boat sectors, and to estimate the impacts these sectors would have on
the regional economy, is not available. This information would include
survey-based models of anglers' behavioral responses to the regulation,
detailed information on the revenues and costs of commercial and guided
charter operations, a model of guided charter responses to changing
client behavior, and income and employment impact multipliers for the
regional communities in Southeast Alaska.
In the absence of more detailed information, the EA/RIR/FRFA
provides a qualitative discussion of the impacts on the charter
operations and on the communities dependent on them. Specific community
concerns are reflected in the choice of the alternatives. Commenters
have noted that the analysis recognizes that the options would have
significant negative impacts on the guided charter fishery and might
put some operators out of business, and that the notice of proposed
rulemaking describes the disproportionate impact on lodge-based charter
operations.
Comment 63: This final rule will have adverse economic impacts on
Juneau area businesses. The guided sport charter vessel industry
supports a wide variety of local businesses, including
[[Page 30515]]
restaurants, souvenir shops, hotels, fish processors, and outdoor
stores.
Response: NMFS acknowledges that limitations on the charter vessel
harvest of halibut in Area 2C could have an impact on demand for
charter services and on local businesses supporting fishing
opportunities. The analysis supporting this action assesses these
impacts to the extent possible with the information available. See also
response to Comment 62.
Comment 64: The Council does not understand and is unwilling to
examine the true economic value of halibut to the guided sport charter
vessel industry. There is no evidence that the charter fishery is
growing exponentially. A thorough economic analysis of the guided sport
charter vessel industry is needed before making decisions that affect
the recreational fishing industry.
Response: The analysis does not claim that the guided charter
fishery is growing exponentially. However, the charter industry has
grown in recent years, in terms of pounds of fish harvested (see
response to Comment 59), and in the number of businesses, vessels, and
trips (see response to Comment 105). The EA/RIR/FRFA recognizes the
value of halibut to the guided sport charter vessel fishery and to
local communities dependent on the charter fishery, and acknowledges
the potential for losses because of a one-fish bag limit.
Comment 65: The Council's intent in its motion was misrepresented
in the purpose statement in the EA/RIR/IRFA and proposed rule, which
state that the proposed measures to restrict charter halibut harvest if
the GHL would be implemented if the GHL is reduced to 1.217 million lb
in 2008. The Council motion only states, ``if the GHL is reduced,'' and
does not specify the amount of the reduction.
Response: NMFS did not intend to misrepresent the Council's intent.
At the time of the Council action, IPHC staff indicated that there was
the potential for the Total CEY to fall below the point that would
trigger a change in the GHL. However, the CEY established by the IPHC
after its 2008 annual meeting was 6.5 million lb in Area 2C--a level
low enough to trigger a three step drop in the GHL from 1.432 million
lb to 0.931 million lb, effectively bypassing the 1.217 million lb
level. The Council's intent is clear that it intended Option B to be
implemented if the drop in the CEY was large enough to trigger any
reduction in the GHL. At the time of the Council's action it was not
anticipated that the GHL would stair step down more than one level.
Comment 66: A quantitative rather than qualitative analysis of the
impacts to the guided sport charter vessel industry is needed. In the
absence of a comprehensive economic analysis that accurately assesses
the economic impact of all options to both guided recreational and
commercial sectors, the Secretary has no meaningful economic data upon
which to fairly base his decision. This supports continuation of the
status quo until the analysis shortfalls are fully addressed. Although
some quantitative estimates are made of the impact to longline
fishermen, there is no quantitative discussion of adverse impacts on
charter fishermen and there is no quantitative comparison of impacts to
the longline and charter sectors.
Response: NMFS notes that there are fundamental differences between
the longline and charter operations that affect the ability to estimate
gross revenues impacts on the two sectors. The output of the commercial
longline sector is halibut. The output of the commercial longline
sector in Area 2C is small enough compared to overall output on the
West Coast that the impact of changes in Area 2C production on Area 2C
halibut prices are probably small. Under these conditions, NMFS has
been able to estimate the gross revenues of the status quo and other
alternatives on the commercial longline sector. However the situation
is very different in the charter sector. The output in the charter
sector is not halibut, but days of client fishing time. To estimate
gross revenue changes in the guided charter fleets, NMFS would have to
have separate demand models based on survey research, which would
permit the determination of changes in client participation in the
lodge-based and cruise ship-based industry segments in response to
changes in the bag limit, and the competitive adaptations that the
charter operations would make. The information necessary for these
estimates for the charter sector is not available. NMFS did make
inferences using survey research from South Central Alaska to the
extent possible. NMFS notes that the gross revenue estimates provided
for the longline sector are an incomplete quantitative analysis of that
sector as well since they do not address the issue of the impact of the
alternatives on the profitability of these fishing operations.
NMFS must choose a management option to restrict harvest to the
GHL. To maintain the status quo would be, in fact, a choice of a
particular policy to allow charter harvests to continue to exceed the
GHL despite the current regulations in place. Status quo with respect
to the regulations is not status quo in the fishery due to the growth
of the guided sport charter vessel industry in Area 2C and the new
stock information from the coastwide model.
Comment 67: There is no economic analysis of the cost of
enforcement of an annual limit.
Response: The Regulatory Impact Review contains an economic
analysis of the cost of enforcement of the annual limit in section
2.7.4.3. Additionally, this section references a discussion paper that
was presented to the Council in October 2006 that contains a more
thorough analysis of the cost of implementing and enforcing an annual
limit. This discussion paper is available on the North Pacific Fishery
Management Council's Web site at http://www.fakr.noaa.gov/npfmc.
Enforcement issues and costs are discussed, as well as the estimated
costs for compliance that would be imposed on the industry. However,
because Option B was selected, NMFS is not implementing an annual
limit. Therefore the costs associated with enforcing an annual limit
will not apply. NMFS believes that sufficient information was provided
to permit a decision among the alternatives.
Comment 68: The appropriate geographic scope of the analysis should
be the coastal home ports for the guided sport charter vessel fleet,
not the national economy.
Response: NMFS is required to examine net benefits to the Nation
under Executive Order 12866. NMFS also examines regional and sector
impacts in the analysis. However, in the section of the analysis
referred to by this comment, NMFS explicitly examines the effects on
net benefits to the Nation and makes the point that from a national
perspective, the benefits of an alternative to one sector are likely to
be offset by the costs to another. The analysis states that some
impacts that adversely affect regional and community interests have
distributive elements that prevent them from being considered either
benefits or costs at the national level. This is a standard cost-
benefit convention, in which the accounting stance affects evaluations
of net benefits or costs. It considers the costs to local and regional
interests. The choice of the preferred alternative, in fact, depends in
part on local impact considerations evaluated in the analysis. For
example, the analysis notes that Option 1 of Alternative 2 (one trip
per vessel per day) would disproportionately impact small charter
operators in major cruise ports and was thus rejected.
[[Page 30516]]
Comment 69: The cost of this action to the guided sport charter
vessel industry is not justified by the benefit to the longline
fishery. The rule will provide virtually no benefit to the commercial
sector before it is superseded in 2010 by the long-term allocation
program currently under development. The negative consequences of the
proposed rule on the charter sector far outweigh any potential benefit
to the commercial sector.
Response: While the Council is considering new management measures
to replace those in this action, and while it has stated its intent to
implement those measures in 2010, NMFS cannot assume that this will, in
fact, take place, or that it will take place by 2010. The Council has
not yet agreed on which management measures to implement and it may be
several years before a decision is reached. The proposed program then
would need to be approved by the Secretary of Commerce. The analysis
suggests that the expected burden on the longline fishery and its
consumers rises significantly in the years after 2010.
The objective of this action is to limit halibut harvest by the
guided sport charter vessel industry to the GHL. Inherently and
inevitably, this will constrain overall charter harvests and will have
adverse economic impacts on charter fishing operations. NMFS notes that
cost-benefit analysis, economic impact analysis, and evaluations of the
costs and benefits to different sectors of the industry are only some
of the factors that the Council and Secretary are required to take into
account when they make policy decisions.
It is not possible to conduct a comprehensive quantitative cost and
benefit analysis or compare quantitatively the benefits and costs to
the commercial longline or charter industries, or to the regional
economy with the information available, and such an analysis is not
required before action can be taken.
There is limited information available on the economics of longline
halibut fishing, charter operations that cater to cruise ship clients,
and lodge-based operations. Similarly, there is limited information on
how these types of operations interact with the local community and
regional economies to generate secondary or indirect income and jobs in
firms supplying the commercial firms or the guided charter operations
and their clients. Given that lack of information, NMFS has used the
best available scientific information.
Comment 70: Tables 56 and 58 in the EA/RIR/IRFA project
hypothetical ex-vessel losses and consumers' surplus losses to the
commercial fishery associated with guided sport catches over the period
from 2006 to 2015. The following changes and revisions to these tables
are necessary: (a) Change the 2006 guided sport catch estimates in
Appendix IV to reflect the final 2006 catch estimate; (b) use a more
appropriate projection for annual growth in the guided sport charter
vessel industry; (c) account for the IPHC's practice of increasing and
decreasing commercial harvest limits with a lag to changes in the CEY
(the ``slow-up/fast-down'' or SUFD approach).
Response: Revised versions of Tables 56 and 58 have been added to
Appendix IV. The revisions include the final 2006 guided sport charter
vessel sector harvest, updated charter industry growth rates, the
IPHC's 2008 CEY, and the 0.931 million lb GHL that will take effect in
2008 as a result of the lowered CEY. However, the tables were not
prepared to provide predictions of actual revenue losses over the time
period. The purpose of the original tables in the body of the text, and
the revised versions in the appendix was to illustrate the potential
magnitudes of the revenue losses that might accrue to the longline
sector if a number of factors remain constant. The tables were not
meant to provide forecasts. For example, the tables incorporate a
number of simplifying factors such as constant values for the Total
CEY, ex-vessel prices, commercial underage, and unguided sport fish
catch. The tables do not estimate these values or incorporate official
estimates from other agencies as these estimates change regularly and
materially. As a result NMFS has not made change (c), and has made
change (b) only to the extent of updating the growth rate to reflect
new information for 2006.
Comment 71: The analysis does not address losses to recreational
anglers denied access to halibut.
Response: It is accurate that the analysis focuses primarily on the
impacts of the actions on the longline and charter industries, and the
communities dependent on them. The analysis does not estimate the loss
in consumers' surplus from the preferred alternative. The information
to estimate this does not exist since models of angler behavior in
Southeast Alaska are unavailable. The discussion in Section 2.7.5
indicates that recreational anglers can expect a reduction in their
benefits from charter fishing from this action. The analysts based
their assessments on modeling that had been done in other areas of
Alaska. The analysis points out that clients would no longer be able to
take a second fish, and has a long section discussing the impact in
terms of the change in anglers' cost per fish, of the potential
reduction in angler demand for fishing experiences in Southeast Alaska,
and of the potential for anglers to shift to other activities in
Southeast Alaska or in other areas.
Comment 72: The EA/RIR/IRFA identifies the lack of socioeconomic
information on the charter fishery as a source of concern to the
Council. If the Council lacks the socioeconomic information to
adequately evaluate comparative loss scenarios, it does not have a
valid problem statement, by definition. Commercial quota share values
have not been reduced, contrary to the problem statement, and there has
been no resultant economic hardship to the commercial sector. The
analysis fails to use readily available information, including
information on quota share prices, to address this issue.
Response: Although the Council and Secretary are always striving to
obtain more information to assist in determinations, the Council had
sufficient information to develop a problem statement. Furthermore, the
analysis developed for this action, based on the best available
information, provided the Council and Secretary with sufficient
information to take action. See response to Comment 73 regarding trends
in commercial quota share values.
Comment 73: Restrict the charter sector because their overages are
reducing the commercial sector's allowance and devaluing purchased
IFQs.
Response: NMFS examined a time series of the value of transferred
quota share units from before the charter fishery began exceeding the
GHL to the present and there was no evidence of a cause and effect
relationship between harvest overages and the value of quota shares.
The only trend these data demonstrated was an overall increase in the
value of shares transferred from 2000 through 2007. Many factors
contribute to valuation of quota shares at any particular time
including cold storage holdings, timing within the fishing season, pre-
season market prices, availability of lower interest loans, seller
motivation, and whether the IFQ pounds are transferred with the quota
share.
Comment 74: Commercial fishermen receive more money as supply
declines. This is not the case for charter operators.
Response: NMFS agrees that market-driven prices paid to commercial
halibut fishermen for halibut can
[[Page 30517]]
increase when supply becomes limited and market demand is high. This
can offset quantity-driven revenue losses. It is unlikely that
commercial fishermen will obtain higher prices for halibut as a result
of this rule because the Area 2C commercial halibut fishery contributes
only modestly to the overall coastwide halibut production.
The guided sport charter vessel industry is selling a fishing
experience, one part of which is the possibility of catching halibut.
NMFS agrees that a one-fish bag limit that reduces the amount of
halibut an angler may catch and retain could reduce the price that
charter operators can charge for their service. The actual impact on
price is unclear and will depend, for example, on the ways that charter
operations modify their services to adapt to the new limit.
Comment 75: The analysis incorrectly concludes that ``increases in
regional expenditures associated with increases in charter-based sport
fishing are likely to be offset by decreases in regional expenditures
associated with commercial fishing.''
Response: This commenter refers to a statement in a paragraph in
the analysis discussing net national benefits under Alternative 1. The
analysis notes that the principal source of benefits from the charter
fishery is the benefits to clients, because the competitive nature of
the charter fishery is likely to drive profits close to zero. The
author notes that it is unlikely that changes in regional expenditures
will result in changes in net national benefits, in part because
increased charter-based regional expenditures are likely to be offset
by decreases in regional expenditures associated with commercial
fishing. This is clearly advanced as one reason not to expect increased
national benefits, in a cost-benefit analysis sense, from an expanding
charter fishery. The author is using ``expenditures'' here as a proxy
for sectoral activity and sectoral profits and rents--which he has
already indicated are likely to be small. The author indicates that an
offset is likely, not certain. The author clearly did not intend to
assert a dollar for dollar offset. The language in the analysis has
been modified to insert the words, ``at least partially'' before the
word ``offset'' to clarify this.
Comment 76: Table 56 of the EA/RIR/IRFA assumes an inappropriate
constant rate of growth in charter sector harvest when the actual data
indicate that charter rates decreased in both 2006 and 2007. The
analysis is inadequate, biased, devoid of data, and uses arbitrary
assumptions, and speculative data and scenarios. The analysis depends
on interviews with a small number of key informants instead of on a
survey of 696 potentially affected charter vessel operators. NMFS has
been remiss in not collecting, presenting, and evaluating the best
available data.
Response: Table 56 has been revised in Appendix IV (Table A4-2) to
assume a growth rate for the charter sector harvest of 5.7 percent.
This is the growth rate that was observed from 1995 to 2006. The rate
was adjusted down from an earlier estimate rate of 6.8 percent to
reflect the lower final participation rate estimate for 2006 based on
the Statewide Harvest Survey (SWHS).
Limited information was available for the preparation of this
analysis. The analysts however, drew on available data and modified the
analysis to reflect newer data as it became available (in particular,
adding Appendix IV to update the analysis to take account of the SWHS
information for 2006 that became available in the fall of 2007). The
analysts consistently sought to ground the analysis in concrete numbers
and information. As noted in the response to Comment 70, the results in
this table are not meant to provide a forecast of future impacts, but
to illustrate possible revenue losses under certain assumptions. The
analysis is not biased; analysts sought to identify and qualitatively
describe the impacts of the actions on all the parties. The key
informant information was not used in place of or as a substitute for
phone, mail or personal interview surveys. Key informant information
was used to provide factual information and to provide context for
information obtained from other sources. NMFS has drawn on the best
available information to inform this discussion, including the most
recent logbook and statewide fishery survey information available from
the ADF&G, a 2005 study of the charter fishery in Sitka conducted by
the McDowell Group, an analysis of charter anglers in South Central
Alaska prepared by the University of Alaska, and the key informant
interviews that were noted.
Conservation
Comment 77: Halibut harvest by the guided sport charter vessel
fishery should be managed to stay below the GHL because of concerns
about depletion of local stocks and the long term effects on local
businesses. Overharvest by the charter sector requires subsistence and
local sport anglers to travel farther to catch halibut.
Response: See response to Comment 15 concerning localized
depletion. NMFS does not have data to confirm that short term localized
depletions of halibut are due to focused harvest activity by one or
more sectors.
Comment 78: There is no evidence that the proposed regulations will
have any effect on halibut recovery or that the charter fishery has a
negative effect on the fishery. NMFS should use the best available
science.
Response: Neither the EA/RIR/IRFA nor the proposed rule for this
action identify overfished halibut stocks as the problem, or halibut
recovery as an objective of this action. The IPHC sets allowable
commercial catch limits taking account of the status of the stocks and
projections of overall removals by all sectors. The charter fishery is
not subject to a harvest quota, but estimated charter harvests are
subtracted from the Total CEY to determine the Fishery CEY that forms
the basis of the catch limit for the commercial fishery. While the
procedures used by the IPHC can lead to harvests in excess of the Total
CEY in a year, over time they should constrain harvests to biologically
sustainable levels.
Comment 79: The IPHC does not view this as a conservation issue.
The IPHC would never allow an overharvest of the Total CEY if there was
a conservation issue. It should be very clear that due to the
conservative nature of IPHC harvest calculations, overharvest of the
Area 2 Total CEY by 60 to 85 percent is possible without resulting in a
conservation issue. The proposed rule deals with a pure allocation
issue and does not present any resource conservation questions.
Response: NMFS agrees. The healthy status of the halibut stock is
evidence that IPHC policies are conservative and successful.
Comment 80: Hunters and fishermen have strong conservation values
and are willing to pay for conservation initiatives. Increasing
restrictions will discourage people from participating in these
activities and will undermine their support for conservation causes.
Response: NMFS believes that this comment refers to recreational
hunters and fishermen who have been, and continue to be, an important
source of funding and support for conservation programs. As user
numbers increase, regulatory regimes governing sport, personal use, and
subsistence harvests of fish and game have become much more restrictive
and complex. Many programs, such as those that issue limited numbers of
permits through lotteries, are much more restrictive than this action.
However, hunters and fishermen have continued to be supportive of
conservation. NMFS does
[[Page 30518]]
not believe that this action will appreciably reduce that support.
Comment 81: There is a conservation issue. The Area 2C stock is
overfished and fishing needs to be limited to an extent that ensures
the long term sustainability of the stock.
Response: NMFS disagrees. The best available evidence indicates
that the Area 2C stock is not overfished and the IPHC has not made that
determination. Overages of the GHL are accounted for in the methods the
IPHC uses to set the annual commercial catch limit to ensure that the
halibut stock is not overfished. NMFS agrees that fishing limits need
to be adhered to, in order to maintain the long term health of the
halibut stock, and has therefore proposed this rule to reduce the
charter fleet harvest to the GHL.
Comment 82: Unconstrained growth of the charter industry threatens
the health of the fishery. In any one year, CEY may be overharvested if
the projected charter harvest is higher than the assumed GHL level.
These overages result in adjustments to the CEY and commercial catch
limit the following year. Thus the issue poses a potential conservation
concern, as well as a reallocation of allowable harvest.
Response: NMFS agrees that if the guided charter fishery grows in
any single year, halibut removals will exceed planned IPHC removals in
the short run and the actual harvest rate may be greater than the rate
on which the CEY for a year is based. However, in the medium and long
term, the IPHC will adjust its harvest allowances for the commercial
setline fishery to take account of changes in guided charter harvests.
While this process will take place gradually over time, NMFS does not
expect it to seriously affect the health of the halibut stock, unless
the guided charter fishery were to grow at an unexpectedly high rate.
Halibut are a long-lived species and the health of the stock depends
less on removals in any single year (the short run) than it does on
removals over a longer multiple-year period. The IPHC has also adopted
conservative harvest policies to protect against resource damage.
Furthermore, the environmental analysis prepared for this rule did not
find that failure to limit the guided sport charter vessel halibut
harvest to the GHL would cause significant environmental impacts on the
resource.
Comment 83: We disagree with the statement in the Executive Summary
of the EA/RIR/IRFA that states, ``none of the alternatives would affect
the health of the halibut stock since the IPHC sets limits on total
halibut removals.'' The IPHC does consider all removals, but if one
sector continually over-harvests the amount the IPHC uses for the
calculations when setting catch limits, damage to the resource occurs.
The charter sector's harvest in excess of the GHL is one of the
contributing factors to the biomass decline in Area 2C. The IPHC
appropriately uses the associated GHL for the charter sector as
determined by the Total CEY.
Response: NMFS agrees that the charter fishery has exceeded the GHL
for several years and that is one of the primary reasons for taking
this action. As stated in the response to Comment 81, the IPHC has not
determined that the Area 2C stock is overfished (see also response to
Comment 82).
Comment 84: Both the commercial and charter sectors are facing
large cuts. These are necessary for the long term sustainability of the
resource. Both sectors must reduce harvests and share in the
conservation of the resource.
Response: The reduction in the 2008 Area 2C CEY will be shared by
the commercial fishery, through the reduction in the Fishery CEY, and
by the guided sport fishery, through the reduction of the GHL from
1.432 million lb to 0.931 million lb and the implementation of a one-
fish daily limit. This reduction in the GHL is not a part of this
action, but is a consequence of the final rule adopting the stair-
stepped GHL that was promulgated on August 8, 2003 (68 FR 47256).
Unguided angler harvests and subsistence harvests are not restricted;
however, these have been relatively minor components of the overall
harvest to date, accounting for an average of 11 percent of the harvest
between them. Miscellaneous other uses have accounted for about 6
percent.
Coastwide Model and IPHC Issues
Comment 85: The coastwide model represents the best available
scientific information and thus should be used for setting the CEY. It
is not appropriate to use the coastwide model in some areas and the
closed area model in others.
Response: NMFS agrees that the coastwide assessment is considered
the best available science to estimate the entire biomass of the stock
of Pacific halibut and that using this total biomass to estimate the
Total CEY is the best approach available at this time. The IPHC adopted
the coastwide assessment in 2008 after rigorous external review to
evaluate the technical merit; this approach is used to estimate biomass
in all IPHC management areas. The closed area model is no longer used
by IPHC.
Comment 86: The GHL triggers were based on the 1999-2000 average
Total CEY, which was calculated using the Closed Area assessment model.
If we continued to use the Closed Area model, the Area 2C Total CEY
would be 9.8 million pounds, well above the first stair step for the
GHL. Careful review of the 2003 final rule for the GHL shows that there
is no mention of which Total CEY the GHL must be based upon. Because
both have been published by the IPHC, the Secretary has the discretion
to choose which Total CEY to use. The GHL was established using the
Closed Area model and should continue to be based on that model.
Response: The IPHC adopted the coastwide assessment in 2008 after
rigorous external review to evaluate its technical merit. This approach
is used to estimate biomass in all IPHC management areas. This
assessment was used to make the IPHC's recommendations for the CEY that
were approved by the Secretary.
The final rule establishing the GHLs for the halibut charter
fishery in 2003 acknowledged that the Total CEY used to stair step the
GHLs is ``the total target biomass that may be removed each year. The
Commission sets the CEY based on the best available information and the
professional judgment of the IPHC. As such, it may reflect uncertainty
or changes in the stock assessment modeling'' (68 FR 47259, August 8,
2003). Thus, the 2003 GHL final rule is correctly silent on setting any
requirement for how the CEYs should be determined, other than stating
that it is up to the IPHC to use the best available information and its
professional judgment.
NMFS continues to support the IPHC's decision to adopt the
coastwide assessment as the best available science. Further, the
resultant 2008 Total CEY and downward adjustment of GHL in Area 2C is
based on the best available science and is consistent with the intent
of the Council and NMFS when the GHLs were established in 2003.
Unintended Effects of the Rule
Comment 87: The proposed action will shift charter fishing effort
to other groundfish species.
Response: NMFS acknowledges that this action may cause some charter
businesses to modify their operations to provide alternative or
supplementary fishing experiences for their clients. The environmental
assessment reviewed the potential impacts on other species, such as
salmon or rockfish, and found that they would not have significant
impacts on those resources. These stocks are managed by the State of
Alaska and NMFS using biological benchmarks that prompt agency response
to constrain harvest to maintain sustainable stocks. Thus, an increase
in sport harvest of
[[Page 30519]]
these species may lead to increased allocation problems between sport
and commercial sectors. However, any such allocation problem would
occur within the confines of the management measures established by
Federal and State governments to maintain sustainable stocks.
Comment 88: The proposed limits on the charter fishery will result
in increased catch and release or bycatch mortality as charter anglers
try to catch the largest fish possible.
Response: NMFS acknowledges that this action may cause increased
catch and release or bycatch mortality, but NMFS believes that the
impact on the resource will not be significant. Appendix II of the EA/
RIR/FRFA discusses the choice of a hook and release mortality rate for
the Area 2C charter halibut fishery. It concludes that the overall
estimate of hooking mortality is 4.8 percent. The environmental
assessment took account of release mortality in its analysis of the
various alternatives and did find that the preferred alternative
(Alternative 2, Option 4) had the highest catch and release mortality
of the alternatives. However, the analysis concluded that none of the
alternatives would increase release mortality substantially above the
status quo and did not find that any of the alternatives would have a
significant impact on the halibut resource.
Comment 89: A one-fish annual limit will not impede an angler's
ability to catch and release fish and will not keep anglers from
fishing in Area 2C any more than the status quo. With a one-fish daily
limit, anglers can keep fish of any size and will only lose the
opportunity to keep a second fish smaller than 32 inches in length or
about 11 pounds.
Response: NMFS acknowledges the comment.
Consistency With Other Laws
Comment 90: The intent of Executive Order 12962 is to provide
guidance to NMFS to improve the potential productivity of aquatic
resources for recreational fisheries. The proposed rule improves
productivity for commercial fisheries.
Response: This rule does not violate Executive Order (E.O.) 12962.
To the extent permitted by law, E.O. 12962 directs Federal agencies to
improve the quality, function, sustainability, productivity, and
distribution of aquatic resources for increased recreational fishing
opportunities. This rule is promulgated to meet the management goals
set forth in the Halibut Act under the Convention and implemented by
the Secretary. These management goals include setting annual limits on
the amount of halibut that may be removed without compromising the
long-term sustainability of the halibut stock, including the
achievement of maximum sustainable yield for halibut fisheries.
Comment 91: This rule does not comply with the Halibut Act which
states that allocations shall be fair and equitable to all such
fishermen. The fast down portion of the SUFD gives an advantage to the
commercial sector that the charter sector does not receive.
Response: This final rule was not designed to change either the
2008 GHL published in the Federal Register (73 FR 6709, February 5,
2008) or the GHL regulations at 50 CFR 300.65. The GHL steps down only
when the CEY established by the IPHC falls below benchmark levels in
the GHL regulation. To change the GHL regulations would require
separate rulemaking.
The ``slow-up/fast-down'' (SUFD) component of the IPHC's management
regime is not necessarily advantageous to the commercial sector. It is
designed to ameliorate the impacts of large changes in biomass. If the
CEY is bigger than the previous year's catch limit, then the IPHC
staff's recommended catch limit is only allowed to increase by 33
percent of the difference. If the CEY is less than the previous year's
catch limit, the recommended catch limit reduction is limited to 50
percent of the difference. The commercial catch limit increases and
decreases with changes in biomass, even with a static GHL, whereas
changes to the charter sector's GHL occur in a stepwise manner only
when specific CEY levels are established by the IPHC (see Sec.
300.65(i)(1)).
NMFS believes the commercial longline fishery and guided sport
charter vessel fishery situations are not comparable. The longline
fishery is controlled by a hard cap that is extended, through the IFQ
system, to individual longline fishermen. The hard cap is modified
through time to reflect changes in the fishery biomass and the harvest
by other sectors. The hard cap modification takes place gradually over
a series of years. The guided sport charter fishery has not been
subject to a hard cap, and this action will not impose a hard cap on
the output of the guided sport fishery as a whole, or on individual
businesses within it.
Miscellaneous
Comment 92: Halibut is a public resource and the public should not
be denied the opportunity to fish for it.
Response: This final rule does not deny the public the opportunity
to harvest halibut. Although this rule is designed to reduce the
poundage of halibut harvested in Area 2C by the guided sport charter
vessel fishery, it maintains the opportunity of charter vessel anglers
to harvest one halibut per day, and has no effect on recreational
anglers not fishing from a charter vessel. In addition, this final rule
supports the management goals set forth in the Halibut Act under the
Convention and the allocation objectives set forth by the Council and
approved by the Secretary of Commerce. The management goals include
setting annual limits on the amount of halibut that may be removed
without compromising the long-term sustainability of the halibut stock,
including the achievement of maximum sustainable yield for all halibut
fisheries (commercial, subsistence, and sport). The allocation
objectives are intended to limit the harvest of halibut in the charter
fishery to the annual GHL.
Comment 93: There is no sunset provision for the rule. This goes
against the Council motion to restrict charter harvest for 2008 only
until the charter moratorium goes into place in 2009. There was a
misunderstanding during the Council process that this regulation would
continue indefinitely. Additional measures like the ``Permanent
Solution,'' ``Compensated Reallocation,'' and ``Initial Allocation''
will also go into effect before 2009. The rule needs to go through the
whole Council process again because of this misunderstanding on the
duration of the measures. The public process requires clear and
unambiguous language.
Response: NMFS disagrees that this final rule was intended by the
Council to be effective only for 2008 and that the Council is required
to reconsider this action to clarify this point. Although NMFS is
developing a proposed rule to implement a limited entry program for
charter vessel businesses, fishing under the proposed limited entry
program would not occur before 2010 pending the rule's approval by the
Secretary of Commerce. While the Council is considering other
management programs for the charter vessel fishery for halibut, the
schedule for Council action on these programs and the subsequent
rulemaking process would not allow their implementation before 2010.
NMFS intends to encourage Council consideration of changes to GHL
measures in the event the annual GHL is adjusted upward or downward
from the 2008 level with changes of Total CEY. Any such changes would
require separate Council analysis and consideration, as well as
subsequent rulemaking. This was the process intended by the Council
when it voted
[[Page 30520]]
in June 2007 to adopt the actions implemented under this final rule.
Comment 94: Adjacent management areas will have more favorable
management regimes in place that will further negatively affect Area 2C
charter fisheries and the Council may need to review this issue in a
manner that allows for adjustments in time for the 2009 fishery if
biomass abundance supports an increase in the CEY.
Response: NMFS agrees. See response to Comment 93.
Comment 95: Much of the fish caught by sport anglers is wasted and
the focus is on catching trophy fish for bragging rights, not the meat.
Many charter clients take the fish home to give away or sell to pay for
their trip.
Response: The purpose of this final rule is to reduce harvest of
halibut in the Area 2C charter vessel fishery to the GHL. It is not
intended to manage what anglers choose to do with legally harvested
halibut; including choices of keeping or giving away harvested fish. It
is illegal to commercially sell recreationally harvested halibut.
Violators are subject to civil penalties and prosecution.
Comment 96: The six-line limit puts Area 2C at a disadvantage to
other areas that can fish more lines. Larger boats that can accommodate
more than six lines are safer and more cost effective to operate. These
regulations put an undue hardship on Area 2C charter operations.
Response: NMFS recognizes that different restrictions for the
charter vessel sector in different IPHC regulatory areas may influence
where potential clients choose to fish. Line limits have been in place
under State regulations since 1997. This regulation puts that line
limit in Federal regulations.
Comment 97: The Sitka area Local Area Management Plan (LAMP) forces
charter operators to fish beyond protected waters so fishing is more
weather dependent. A one-fish daily limit combined with weather
considerations could limit clients' opportunities to such an extent
that a trip to Sitka would not be worthwhile.
Response: The EA/RIR/FRFA for this final rule acknowledges the
possibility that consumer demand for charter vessel trips in Area 2C to
fish for halibut could be impacted by the one-fish daily bag limit (see
sections 2.6.3.4 and 2.7.3.4). The analysis also notes that Sitka may
be less likely to experience this reduction in demand because it has
greater potential for multi-species charter trips compared to Inside
Passage communities such as Juneau or Ketchikan.
Comment 98: Two very large year classes will recruit into the
fishery beginning in 2010, therefore this rule is unnecessary.
Response: The current stock assessment does suggest that two
extremely large year classes--1999 and 2000--could grow to exploitable
size over the next few years. These year classes appear to be larger
than those in 1987 and 1988 that supported past higher harvests. It is
important to note that size-at-age is smaller than 20 years ago. This
has two important ramifications. First it means that the 1999 and 2000
year classes are only just beginning to reach the exploitable size
range and therefore their true contribution to the population is still
quite uncertain. Second, it means that for a given number of halibut,
biomass will be lower than in the past. By assuming the size-at-age
relationship remains the same as this year, then the projections for
the exploitable biomass and spawning biomass are very optimistic and
current declines are apt to reverse. However, the harvest rate should
remain around 20 percent of the exploitable biomass so that when the
biomass increases, higher Total CEY and commercial catch limits will
follow. If the Total CEY is increased, current GHL regulations would
allow for an increase of the GHL up to the maximum level of 1.432
million lb.
Comment 99: There is a commercial bias in the IPHC and North
Pacific Fisheries Management Council. Since the 1980s the IPHC and
Council have supported explosive growth in commercial harvest while
stifling the charter sector. The charter vessel owners do not have
representation in these bodies, therefore all decisions tend to favor
the commercial sector.
Response: The IPHC and the Council are the bodies established by
treaty and Congress and given the authority to make decisions and
recommendations about the management of the halibut fisheries. They
have made their decisions through transparent and public processes, and
in a manner that is consistent with the requirements of the relevant
statutes.
This final rule is an outgrowth of the 2003 GHL rule for the
charter vessel fishery; annual changes to the GHL are linked directly
to the Total CEY amount determined annually by the IPHC. The Council
has the authority to consider and recommend management policy to
address allocation issues among different domestic sector users of
halibut off Alaska, including the commercial and charter vessel
fisheries. In 1998 the Council initiated a public process to identify
GHL management options and formed a GHL committee comprised of numerous
representatives from the charter industry. This committee has evolved
over time to develop longer term solutions for Council consideration
that provide harvest stability between these two sectors. The Council
has used the recommendations from this committee to formulate its GHL
management options. Furthermore, the Secretary of Commerce reviews all
Council policy recommendations and actions for consistency with the
Halibut Act and Convention, as well as with other applicable law. NMFS
does not believe that this final rule inappropriately favors the
commercial fishing sector.
Comment 100: An annual limit is not needed because sport anglers
are self-limiting. As fish stocks decline, fewer anglers go fishing and
harvest decreases.
Response: This final rule does not establish an annual catch limit
and instead relies primarily on a one-fish daily bag limit to reduce
charter vessel harvest to the GHL. Harvest in the Area 2C charter
vessel fishery has exceeded the GHL every year since 2004 and harvest
amounts have consistently increased, although the rate of increase has
varied from year to year. Given this trend and the current level of
harvest, NMFS does not believe the charter vessel harvest of halibut in
Area 2C would decrease to the GHL level without the limitations
established in this final rule.
Comment 101: Clarify the definition of a charter vessel. The
definition as written creates a loophole where a hired vessel may have
a professional guide onboard who is not the ``operator'' of the vessel.
Response: NMFS agrees that the current definition of ``charter
vessel'' is problematic. NMFS intends to address this problem under
separate rulemaking as explained under Changes from the Proposed Rule,
below.
Comment 102: Commercial setline fishermen provide consumers their
only access to halibut unless they can afford an expensive trip to
Alaska to catch their own.
Response: NMFS acknowledges the comment.
Comment 103: Halibut are resilient and survive well when caught and
released properly. Support the one-fish bag limit and encourage catch
and release fishing. Catch and release policies are in place elsewhere
and do not limit tourist demand for fishing.
Response: NMFS acknowledges the comment. NMFS notes that Appendix
II of the EA/RIR/IRFA reviews the available scientific information on
hook and release mortality rates, and
[[Page 30521]]
recommended the use of a 5 percent rate for the analysis of regulatory
restrictions on the Area 2C charter vessel fishery.
Comment 104: Charter operators don't have to pay anything for the
fish they harvest whereas the commercial sector must purchase IFQs.
Response: NMFS acknowledges the comment.
Comment 105: Growth of charter industry is tapering and charter
vessel catch is declining.
Response: Final harvest information from 2007, a year subject to
new management measures, is not yet available. NMFS would expect that
the rate of growth in the Area 2C halibut harvest by charter vessels to
slow with increased harvest limitations, however, preliminary data
suggests that the 2007 harvest still exceeded the 2007 GHL. Given the
reduced GHL in 2008, harvest must be further limited by this final rule
so that GHL is not again exceeded.
The data in the EA/RIR/FRFA supporting the final rule cover the
period through 2006. The data available in the analysis show positive
growth in the number of clients in every year but one since 2000, and
accelerating growth in the number of clients in every year since 2002.
The number of active vessels showed some decline from 2000 to 2002, but
has increased in each year since then. The total number of trips by
active vessels decreased from 2000 to 2002, but has increased in each
year since then. Charter harvests of halibut have shown positive growth
in every year from 2000 to 2006. In 2007 there were 403 active licensed
guided charter businesses in Area 2C compared to 381 in 2005 and 395 in
2006. Likewise in 2007 there were 724 active vessels in Area 2C
compared to 654 in 2005 and 680 in 2006, indicating continued growth in
the industry.
Comment 106: More regulation of the charter fleet is not going to
have an appreciable positive effect on the sport fishing in our area.
Commercial fishing is what is hurting the stocks.
Response: The halibut stock is conservatively managed under the
policies and catch limitations developed annually by the IPHC (see
response to Comment 81). The objective of this final rule is to reduce
the charter vessel harvest of halibut to the established GHL level
while a longer term solution toward sector stability and resource
allocation is developed and implemented.
Comment 107: An annual limit is draconian and would devastate the
industry. If an annual limit is necessary, go with the six-fish limit.
Response: The final rule does not implement an annual harvest
limit. NMFS acknowledges that the one-fish daily bag limit implemented
under this final rule also will impose costs on the charter vessel
sector (see responses to Comments 33, 62, 66, and 69 addressing impacts
of the one-fish bag limit). However, these costs are necessary to
maintain harvest within the GHL.
Changes From the Proposed Rule
The final rule is revised from the proposed rule (72 FR 74257) in
that the option that was proposed to address the circumstance of a GHL
reduction (Option B) was chosen because the total CEY recommended by
the IPHC for Area 2C in 2008 required a reduction in the GHL for Area
2C in 2008. The selection of Option B required revisions to
recordkeeping and recording requirements to ensure that sufficient
information is collected to manage and enforce harvest limitations in
Area 2C.
The following recordkeeping and recording information is required
to enforce this final rule: charter vessel business owner license
number, charter vessel guide license number, date, regulatory area
fished, angler sport fishing license number and printed name, number of
halibut retained, charter vessel guide signature, and charter vessel
angler signature. Additionally, for charter vessels fishing for halibut
in both Areas 2C and 3A in a single trip, separate logbook data sheets
must be maintained for each area if halibut are caught and retained.
Three definitions are revised (charter vessel angler, charter
vessel fishing trip, and charter vessel guide) and four definitions are
added (charter vessel operator, charter vessel services, crew member,
and sport fishing guide services) to clarify limitations and
recordkeeping and reporting requirements. These revised and added
definitions are derived from State of Alaska definitions used to define
guided sport fishing activities and are intended to clarify who may and
may not catch and retain halibut and who is responsible for
recordkeeping and reporting requirements in Sec. 300.65(d).
The definition of charter vessel is not revised by this rule.
However, the definition of charter vessel is currently proposed for
revision in the proposed rule to revise the subsistence halibut program
(April 14, 2008; 73 FR 20008). Currently, the definition of charter
vessel is: ``Charter vessel means a vessel used for hire in sport
fishing for halibut, but not including a vessel without a hired
operator.'' The new definition of charter vessel in the subsistence
halibut program proposed rule is: ``Charter vessel means a vessel
registered as a sport fishing guide vessel with the Alaska Department
of Fish and Game.'' Due to comments received on the proposed rule to
implement GHL management measures in Area 2C , and further
consideration of the interactions between charter fishing and
subsistence fishing, NMFS believes that the charter vessel definition
proposed in the subsistence rule likely will need further refinement,
including reference to charter vessel services and the specific
regulations to which this definition would apply (i.e., Sec. 300.65(d)
and (e)). Persons interested in commenting on the definition of charter
vessel are referred to that proposed rule for more details.
The following requirements from the proposed rule for this action
to implement GHL management measures in Area 2C were removed because an
annual catch limit is not implemented in this final rule and these
requirements were determined to be no longer necessary:
Angler license record and retention. NMFS has removed from the
final rule the proposed requirements that anglers record the number of
halibut caught and retained in Area 2C on the back of their licenses,
and that they retain their licenses for three years.
Year-to-date halibut caught. To enforce an annual catch limit, NMFS
proposed requiring that guides record in the logbook the number of
halibut caught year-to-date as recorded on the back of the angler's
license. This requirement no longer is needed.
Youth angler information. NMFS proposed requiring that youth names
and birth dates be recorded in the logbook to better track and enforce
an annual catch limit. Because no annual catch limit is being
implemented, the date of birth for youth anglers will not be required
in Federal regulations; however, the State of Alaska will still require
that this information be recorded.
In addition, NMFS removes existing requirements for the retention
of halibut carcasses. To help enforce the two-fish daily bag limit with
size restrictions that went into place in Area 2C in 2007, NMFS
prohibited mutilating or otherwise disfiguring a halibut carcass such
that the head-on length could not be determined. This requirement to
retain carcasses is no longer necessary with a one-fish daily bag limit
and is removed from regulations at Sec. 300.66(m). The IPHC adopted
new standards in 2008 that were published in the annual management
measures on March 7, 2008 (73 FR 12280). The new IPHC requirement for
Alaska states that no person shall possess onboard a fishing vessel,
including charter vessels
[[Page 30522]]
and pleasure craft, halibut that have been filleted, mutilated, or
otherwise disfigured in any manner except that each halibut may be cut
into no more than two ventral and two dorsal pieces, and two cheeks,
all with skin on. This change allows enforcement officers to count the
number of fish in possession by an angler.
The organization of Sec. 300.65(d) is changed from the proposed
rule to clarify the requirements for Areas 2C and 3A. In addition,
numerous technical changes were made to clarify the regulatory intent
and to ensure that consistent terminology is used. Finally a new
prohibition (p) was added to Sec. 300.66 to ensure that charter vessel
operators, guides, anglers, and crew members do not refuse to present
any identification card, U.S. Coast Guard operator's license, permit,
license, or Alaska Department of Fish and Game Saltwater Sport Fishing
Charter Trip Logbook upon the request of an authorized officer.
Classification
This final rule has been determined to be not significant for the
purposes of Executive Order (E.O.) 12866. This final rule complies with
the Halibut Act and the Secretary's authority to implement allocation
measures for the management of the halibut fishery.
A Final Regulatory Flexibility Analysis (FRFA) was prepared, as
required by section 604 of the Regulatory Flexibility Act. The FRFA
describes the impact of this rule on directly regulated small entities
and compares that impact to the impacts of other alternatives that were
considered. A copy of this analysis is available from NMFS (see
ADDRESSES). A description of this action, an explanation for why it is
being considered, the legal basis for this action, and changes made to
the rule in response to public comments are discussed above.
In 2005, 381 charter businesses operated 654 charter vessels in
Area 2C; in 2007, 403 businesses operated 724 vessels. All of these
operations are assumed to be small entities, with annual gross revenues
of less than the limit of $6.5 million dollars for charter vessels. The
largest companies involved in the fishery, lodges or resorts that offer
accommodations as well as an assortment of visitor activities, may be
large entities under the Small Business Administration size standard.
Key informant interviews have indicated that the largest of these
companies may gross more than $6.5 million per year, but also that it
was possible for all the entities involved in the charter vessel
halibut of harvest to have grossed less than this amount. The number of
small entities is likely to be overestimated because of the limited
information on vessel ownership and operator revenues. However, it is
likely that nearly all entities qualify as small businesses.
The proposed regulation was published in the Federal Register on
December 31, 2007 (72 FR 74257). An Initial Regulatory Flexibility
Analysis (IRFA) was prepared, and described in the classifications
section of the preamble to the proposed rule. The public comment period
ended on January 30, 2008. NMFS received 107 unique comments in 273
letters, faxes, and e-mails on the proposed rule and 21 comments that
pertain directly to the IRFA and small entities regulated by this
action. Summaries of the comments, and NMFS' responses, may be found in
the preamble to this action.
NMFS examined two alternatives for this action: the no-action or
status quo alternative, and the action alternative. Alternative 1, the
status quo, would retain the two-fish bag limit with one of the two
fish less than or equal to 32 inches (83.1 cm) in length, without
changes. Alternative 2, the action alternative, had 13 options for
different combinations of management measures to restrict the charter
halibut harvest to the Area 2C GHL. The options included limiting
vessels to one trip per day; restricting harvest by guide and crew
while clients are onboard; limiting the number of lines to six per
vessel, not to exceed the number of paying clients onboard; daily bag
limits of one or two fish (including sub-options for size limit slots
and specific months when the bag limit would apply); and annual harvest
limits of four, five, or six fish per charter angler.
Two preferred options (Option A and Option B) were selected by
considering different combinations of management measures that would
minimize the impacts on small entities while still meeting the
management objective of restricting the charter vessel harvest of
halibut to the GHL. Option A, which would have been implemented if the
2008 GHL had been greater than 1.217 million lb, included the following
measures in addition to the existing two halibut daily limit with size
restrictions: (1) A prohibition on halibut harvest by charter vessel
guides, operators, and crew while clients were onboard; (2) a limit on
the number of fishing lines that may be used on a charter vessel of six
or the number of charter vessel anglers onboard, whichever is less; and
(3) an annual catch limit of four halibut per charter vessel angler.
Option B is being implemented because the 2008 GHL fell below 1.217
million lb. It includes the same prohibition on guide and crew harvest
and line limits as Option A. However, Option B includes a one-fish
daily bag limit rather than the two-fish daily limit with size
restrictions and the proposed four-fish annual harvest limit in Option
A.
Other options would have had a smaller impact on the directly
regulated guided charter operations because they would have reduced
guided charter harvests less and had smaller impacts on demands for
guided charter services. However, Option B was the only alternative
that would have met the objectives of this action to reduce the guided
charter harvest to the guideline harvest level. The guideline harvest
level in 2008 is 0.931 million lb. The estimates of possible production
under Option B ranged from 82 percent to 117 percent of the GHL. No
other alternative or option had a range of estimated harvest levels
that included the 2008 GHL.
Collection of Information
This rule includes a collection of information requirement subject
to the Paperwork Reduction Act (PRA) and that has been approved by OMB
under Control Number 0648-0575. The public reporting burden for charter
vessel guide respondents to fill out and submit logbook data sheets is
estimated to average four minutes per response. The public reporting
burden for charter vessel anglers to sign the logbook is estimated to
be one minute per response. These estimates include the time required
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information. The total public reporting burden for this
collection is estimated at 3,134 hours. Send comments regarding this
burden estimate, or any other aspect of this data collection, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to a penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule, or group of related rules for
which an agency is
[[Page 30523]]
required to prepare a FRFA, the agency shall publish one or more guides
to assist small entities in complying with the rule and shall designate
such publications as ``small entity compliance guides.'' The agency
shall explain the actions a small entity is required to take to comply
with a rule or group of rules. As part of this rulemaking process, NMFS
Alaska Region has developed an Internet site that provides easy access
to details of this final rule, including links to the final rule, and
frequently asked questions regarding Program. The Small Entity
Compliance Guide for the Program is available on the Internet at http:/
/www.fakr.noaa.gov. Copies of this final rule are available upon
request from the NMFS, Alaska Regional Office (see ADDRESSES).
Executive Order 12962
This action is consistent with E.O. 12962 which directs Federal
agencies to improve the quantity, function, sustainable productivity,
and distribution of aquatic resources for increased recreational
fishing opportunities ``to the extent permitted by law and where
practicable.'' This E.O. does not diminish NMFS' responsibility to
address allocation issues, nor does it require NMFS or the Council to
limit their ability to manage recreational fisheries. E.O. 12962
provides guidance to NMFS to improve the potential productivity of
aquatic resources for recreational fisheries. This rule does not
diminish that productivity or countermand the intent of E.O. 12962.
Administrative Procedure Act
A June 1, 2008 effective date for this action is necessary to
effectuate the Council's intent to limit the charter halibut sector's
harvest to the federally mandated GHL, found at 50 CFR 300.65(c). If
this action is not in place by the beginning of the peak season for the
charter halibut sector (June, July, and August), the intent of the
Council will be thwarted as this is time of peak harvest and when the
harvest limitations would have its greatest impact. During the
``shoulder seasons,'' i.e., before and after June, July, and August,
charter halibut fishing is occurring, but to a lesser extent, and hence
the harvest limitations would have a smaller impact. Also, having the
harvest limitations effective as of June 1, 2008, would avoid the
confusion that could occur to the charter halibut industry and its
clients if the rule became effective after the peak season had begun.
It is for these reasons that NMFS finds that there is good cause to
waive the 30-day delayed effectiveness period under 5 U.S.C. 553(d)(3)
to the extent that it would allow for a June 1, 2008, effective date.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 300
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: May 21, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, NMFS amends 15 CFR chapter IX,
and 50 CFR chapter III as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, in the table in paragraph (b) under the entry ``50
CFR'', add an entry for ``300.65(d)'' in alphanumeric order to read as
follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (all numbers begin with 0648-
collection requirement is located )
------------------------------------------------------------------------
* * * * *
50 CFR.................................... ............................
* * * * *
300.65(d)................................. -0575
* * * * *
------------------------------------------------------------------------
50 CFR Chapter III
PART 300--INTERNATIONAL FISHERIES REGULATIONS
0
3. The authority citation for 50 CFR part 300, subpart E, continues to
read as follows:
Authority: 16 U.S.C. 773-773k.
0
4. In Sec. 300.61, add definitions for ``Area 3A'', ``Charter vessel
angler'', ``Charter vessel fishing trip'', ``Charter vessel guide'',
``Charter vessel operator'', ``Charter vessel services'', ``Crew
member'', and ``Sport fishing guide services'' in alphabetical order to
read as follows:
Sec. 300.61 Definitions.
* * * * *
Area 3A means all waters between Area 2C and a line extending from
the most northerly point on Cape Aklek (57[deg]41'15'' N. latitude,
155[deg]35'00'' W. longitude) to Cape Ikolik (57[deg]17'17'' N.
latitude, 154[deg]47'18'' W. longitude), then along the Kodiak Island
coastline to Cape Trinity (56[deg]44'50'' N. latitude, 154[deg]08'44''
W. longitude), then 140[deg] true.
* * * * *
Charter vessel angler, for purposes of Sec. 300.65(d), means a
person, paying or nonpaying, using the services of a charter vessel
guide.
Charter vessel fishing trip, for purposes of Sec. 300.65(d), means
the time period between the first deployment of fishing gear into the
water from a charter vessel after any charter vessel angler in onboard
and the offloading of one or more charter vessel anglers or any halibut
from the charter vessel.
Charter vessel guide, for purposes of Sec. 300.65(d), means a
person who is required to have an annual sport guide license issued by
the Alaska Department of Fish and Game, or a person who provides sport
fishing guide services.
Charter vessel operator, for purposes of Sec. 300.65(d), means the
person in control of the vessel during a Charter vessel fishing trip.
Charter vessel services, for purposes of Sec. 300.65(d), means the
use of a vessel by a charter vessel guide to provide assistance for
compensation to a person who is sport fishing from that vessel.
* * * * *
Crew member, for purposes of Sec. 300.65(d), means an assistant,
deckhand, or similar person who works directly under the supervision of
and on the same vessel as a charter vessel guide.
* * * * *
Sport fishing guide services, for purposes of Sec. 300.65(d),
means assistance, for compensation, to a person who is sport fishing,
to take or attempt to take fish by accompanying or directing such
person who is sport fishing during any part of a charter vessel fishing
trip. Sport fishing guide services does not include services provided
by a crew member.
* * * * *
0
5. In `` 300.65, revise paragraph (d) to read as follows:
[[Page 30524]]
Sec. 300.65 Catch sharing plan and domestic management measures in
waters in and off Alaska.
* * * * *
(d) Charter vessels in Area 2C and Area 3A--(1) General
requirements--(i) Logbook submission. Alaska Department of Fish and
Game Saltwater Sport Fishing Charter Trip Logbook data sheets must be
submitted to the appropriate Alaska Department of Fish and Game office
according to the time schedule printed in the instructions at the
beginning of the logbook.
(ii) The charter vessel guide is responsible for complying with the
reporting requirements of this paragraph (d). The employer of the
charter vessel guide is responsible for ensuring that the charter
vessel guide complies with the reporting requirements of this paragraph
(d).
(2) Charter vessels in Area 2C--(i) Daily bag limit. The number of
halibut caught and retained by each charter vessel angler in Area 2C is
limited to no more than one halibut per calendar day.
(ii) Charter vessel guide and crew restriction. A charter vessel
guide, a charter vessel operator, and any crew member of a charter
vessel must not catch and retain halibut during a charter fishing trip.
(iii) Line limit. The number of lines used to fish for halibut must
not exceed six or the number of charter vessel anglers onboard the
charter vessel, whichever is less.
(iv) Recordkeeping and reporting requirements in Area 2C. Each
charter vessel angler and charter vessel guide onboard a charter vessel
in Area 2C must comply with the following recordkeeping and reporting
requirements (see paragraphs (d)(2)(iv)(A) and (B) of this section):
(A) Charter vessel angler signature requirement. At the end of a
charter vessel fishing trip, each charter vessel angler who retains
halibut caught in Area 2C must acknowledge that his or her information
and the number of halibut retained (kept) are recorded correctly by
signing the back of the Alaska Department of Fish and Game Saltwater
Sport Fishing Charter Trip Logbook data sheet on the line number that
corresponds to the angler's information on the front of the logbook
data sheet.
(B) Charter vessel guide requirements. For each charter vessel
fishing trip in Area 2C, the charter vessel guide onboard the charter
vessel is required to record the following information (see paragraphs
(d)(2)(iv)(B)(1) through (8) of this section) in the Alaska Department
of Fish and Game Saltwater Sport Fishing Charter Trip Logbook:
(1) Business owner license number. The sport fishing operator
business license number issued by the Alaska Department of Fish and
Game to the charter vessel guide or the charter vessel guide's
employer.
(2) Guide license number. The Alaska Department of Fish and Game
sport fishing guide license number held by charter vessel guide who
certified the logbook data sheet.
(3) Date. Month and day for each charter vessel fishing trip taken.
A separate logbook data sheet is required for each charter vessel
fishing trip if two or more trips were taken on the same day. A
separate logbook data sheet is required for each calendar day that
halibut are caught and retained during a multi-day trip.
(4) Regulatory area fished. Circle the regulatory area (Area 2C or
Area 3A) where halibut were caught and retained during each charter
vessel fishing trip. If halibut were caught and retained in Area 2C and
Area 3A during the same charter vessel fishing trip, then a separate
logbook data sheet must be used to record halibut caught and retained
for each regulatory area.
(5) Angler sport fishing license number and printed name. Before a
charter vessel fishing trip begins, record for each charter vessel
angler the Alaska Sport Fishing License number for the current year,
resident permanent license number, or disabled veteran license number,
and print the name of each paying and nonpaying charter vessel angler
onboard that will fish for halibut. Record the name of each youth
angler under 16 years of age.
(6) Number of halibut retained. For each charter vessel angler,
record the number of halibut caught and retained during the charter
vessel fishing trip.
(7) Signature. At the end of a charter vessel fishing trip,
acknowledge that the recorded information is correct by signing the
logbook data sheet.
(8) Angler signature. The charter vessel guide is responsible for
ensuring that anglers comply with the signature requirements at
paragraph (d)(2)(iv)(A) of this section.
(3) Charter vessels in Area 3A. For each charter vessel fishing
trip in Area 3A, the charter vessel guide onboard the charter vessel is
required to record the regulatory area (Area 2C or Area 3A) where
halibut were caught and kept by circling the appropriate area in the
Alaska Department of Fish and Game Saltwater Sport Fishing Charter Trip
Logbook. If halibut were caught and retained in Area 2C and Area 3A
during the same charter vessel fishing trip, then a separate logbook
data sheet must be used to record halibut caught and retained for each
regulatory area.
* * * * *
0
6. In Sec. 300.66, revise paragraph (m) and add paragraphs (n), (o),
and (p) to read as follows:
Sec. 300.66 Prohibitions.
* * * * *
(m) Exceed any of the harvest or gear limitations specified at
Sec. 300.65(d).
(n) Fail to comply with the requirements at Sec. 300.65(d).
(o) Fail to submit or submit inaccurate information on any report,
license, catch card, application or statement required under Sec.
300.65.
(p) Refuse to present any identification card, U.S. Coast Guard
operator's license, permit, license, or Alaska Department of Fish and
Game Saltwater Sport Fishing Charter Trip logbook upon the request of
an authorized officer.
[FR Doc. 08-1301 Filed 5-22-08; 2:39 pm]
BILLING CODE 3510-22-P