[Federal Register Volume 68, Number 153 (Friday, August 8, 2003)]
[Rules and Regulations]
[Pages 47256-47264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20285]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 011206293-3182-02; I.D. 101501A]
RIN 0648-AK17


Pacific Halibut Fisheries; Guideline Harvest Levels for the 
Guided Recreational Halibut Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to implement a guideline harvest 
level (GHL) for managing the harvest of Pacific halibut in the guided 
recreational fishery in International Pacific Halibut Commission 
(Commission) areas 2C and 3A in and off of Alaska. The GHL establishes 
an amount of halibut that will be monitored annually in the guided 
recreational fishery. This action is necessary to allow NMFS to manage 
more comprehensively the Pacific halibut stocks in waters off Alaska. 
It is intended to further the management and conservation goals of the 
Northern Pacific Halibut Act of 1982 (Halibut Act).

DATES: Effective September 8, 2003.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared 
for the proposed rule and Final Regulatory Flexibility Analysis (FRFA) 
prepared for this final rule may be obtained from the Alaska Region, 
NMFS, P.O. Box 21668, Juneau, AK 99802 1668, Attn: Lori Gravel-Durall.

FOR FURTHER INFORMATION CONTACT: Glenn Merrill, (907) 586-7228 or e-
mail at [email protected].

[[Page 47257]]


SUPPLEMENTARY INFORMATION: The Commission makes recommendations 
regarding management of the Pacific halibut fishery under the 
Convention between the United States and Canada. The Commission's 
recommendations are subject to approval by the Secretary of State with 
concurrence of the Secretary of Commerce (Secretary). Additional 
management regulations that are not in conflict with regulations 
adopted by the Commission, may be developed by the North Pacific 
Fishery Management Council (Council) to allocate harvesting privileges 
among U.S. fishermen.
    The Halibut Act provides NMFS, in consultation with the Council, 
with authority to implement such allocation measures through regulatory 
amendments approved by the Secretary. In addition to the Commission 
regulations, the commercial halibut fishery off Alaska is managed under 
the halibut Individual Fishing Quota (IFQ) Program implemented in 1995.
    Each year the Commission staff assesses the abundance and potential 
yield of Pacific halibut using all available data from the commercial 
fishery and scientific surveys. Harvest limits for ten regulatory areas 
are determined by fitting a detailed population model to the abundance 
and harvest data from each area. A biological target level for total 
removals in a given area is then calculated by multiplying a fixed 
harvest rate presently 20 percent to the estimate of exploitable 
biomass. This target level is called the ``constant exploitation 
yield'' (CEY) for that area in the coming year. Each CEY represents the 
target level for total removals (in net pounds) for that area. The 
Commission then estimates the sport and personal use, subsistence 
harvests, wastage, and bycatch mortalities for each area. These are 
subtracted from the CEY and the remaining amount of fish may be set as 
the catch quota or ``setline CEY'' for each area's directed commercial 
fixed gear fishery. The setline CEY is a fixed quota, but other 
removals of fish are not allocated a specific quota.
    Harvests by the guided recreational fishery and other non-
commercial harvests are thus unrestricted within the CEY because no 
specific amount is allocated to the guided fishery. This represents an 
open-ended allocation to the guided recreational fishery from quota 
available to the commercial halibut fishery. Hence, as the guided 
recreational fishery expands, its harvests reduce the pounds available 
to be fished in the commercial halibut fishery and, subsequently, the 
value of quota shares (QS) in the IFQ Program.
    The Council recognized the growth of harvests in the guided 
recreational fishery and adopted a problem statement in 1995 that 
recognized that ever increasing harvests in this fishery may make 
achievement of Magnuson-Stevens Act National Standards more difficult. 
Of concern was the Council's ability to maintain the stability, 
economic viability, and diversity of the halibut industry, the quality 
of the recreational experience, the access of subsistence users, and 
the socioeconomic well-being of the coastal communities dependent on 
the halibut resource. This policy statement led to the development of a 
GHL policy that would address allocative concerns in the Council's 
problem statement. More detail on the development of the GHL policy is 
provided in the preamble to the proposed rule, published in the Federal 
Register on January 28, 2002 (67 FR 3867).

Development of the GHL

    This final rule establishes a GHL policy which specifies a level of 
harvest for the guided recreational fishery. If the GHL is exceeded, 
then NMFS will notify the Council within 30 days of receiving 
information that the GHL has been exceeded. At that time the Council 
may initiate analysis of possible harvest restrictions and NMFS may 
initiate subsequent rulemaking to reduce guided recreational harvests. 
This final rule does not establish specific harvest restrictions for 
the guided recreational fishery. This final rule does not prevent the 
Council from recommending management measures before the guided 
recreational fishery exceeds a GHL, nor does it obligate the Council to 
take specific action if the GHL is exceeded. Under this GHL policy, 
NMFS would notify the Council if a GHL for the guided recreational 
harvests has been met or exceeded.
    This final rule is the result of ongoing efforts by the Council to 
address allocation concerns between the commercial IFQ halibut fishery 
and the guided recreational fishery. The Council has discussed the 
expansion of the guided recreational halibut fishery since 1993. In 
September 1997, the Council adopted two management actions affecting 
the halibut guided recreational fishery, culminating more than 4 years 
of discussion, debate, public testimony, and analysis.
    First, the Council adopted recording and reporting requirements for 
the halibut guided recreational fishery. To implement this requirement, 
the Alaska Department of Fish and Game (ADF&G) Sport Fish Division, 
instituted a Saltwater Charter Vessel logbook (Logbook) in 1998. It 
complemented additional sportfish data collected by the State of Alaska 
(State) through the Statewide Harvest Survey (Harvest Survey), 
conducted annually since 1977, and the on-site (creel and catch 
sampling) surveys conducted separately by ADF&G in Southeast and 
Southcentral Alaska.
    The Council's second management action recommended GHLs for the 
guided recreational halibut fishery in Commission regulatory areas 2C 
and 3A. The GHLs were based on the guided recreational sector receiving 
an allocation of 125 percent of its 1995 harvest. This amount was 
equivalent to 12.76 percent and 15.61 percent of the combined 
commercial/guided recreational halibut quota in areas 2C and 3A, 
respectively.
    The Council stated its intent that guided recreational harvests in 
excess of the GHL would not lead to a mid-season closure of the 
fishery, but instead would trigger other management measures to take 
effect in years following attainment of the GHL. These measures would 
restrict the guided recreational fishery and maintain harvests within 
the GHL allocation. The overall intent was to maintain a stable guided 
recreational season of historic length, using area-specific harvest 
restrictions. If end-of-season harvest data indicated that the guided 
recreational sector likely would reach or exceed its area-specific GHL 
in the following season, NMFS would implement measures to reduce guided 
recreational halibut harvest.
    Given the one-year lag between the end of the fishing season and 
availability of that year's harvest data, management measures in 
response to the guided recreational fleet's meeting or exceeding the 
GHL would take up to two years to become effective. However, the 
Council did not recommend specific management measures to be 
implemented by NMFS if the GHL were reached.
    In December 1997, the NMFS Alaska Regional Administrator informed 
the Council that publishing the GHL as a regulation without specific 
management measures would have no regulatory effect on the guided 
recreational fleet. Further, because the Council had not recommended 
specific management measures by which to limit harvests if the GHL were 
reached, no formal approval decision by the Secretary would be required 
for the Council's proposed GHL policy. Hence, a GHL proposed rule would 
not be developed and forwarded for review by the Secretary.
    After being notified that its 1997 GHL policy recommendation would 
not be submitted for Secretarial review, the Council initiated a public 
process to

[[Page 47258]]

develop potential harvest restrictions to implement if the GHL were 
exceeded. The Council formed a GHL Committee to recommend alternative 
management measures for analysis that would constrain guided 
recreational harvests below the GHL. In April 1999, the Council 
identified alternatives for analysis.
    In February 2000, after 7 years of discussing the guided 
recreational halibut fishery, the Council adopted a redefined guided 
recreational GHL and a system of management measures for recommendation 
to the Secretary. The Council's recommendation would have established a 
suite of varying harvest restrictions that would be triggered depending 
on the degree to which the GHL was exceeded. Once the GHL is reached or 
exceeded, these measures would be implemented by notice published in 
the Federal Register. Essentially, the Council's recommendation 
included a ``framework'' of restrictions that were explicitly designed 
to be implemented without proceeding through public notice and comment 
before becoming effective.
    NMFS sent a letter to the Council on April 2, 2002, informing the 
Council that ``[t]he current framework cannot be implemented as 
conceived by the Council because the Administrative Procedure Act (APA) 
requires that any regulatory action have prior notice and opportunity 
for public comment before becoming effective.''
    The notification process described in the proposed rule 
contemplated compliance with the APA in establishing the framework of 
harvest restrictions that would be scaled to match the extent to which 
the guided recreational fishery exceeded the GHL. This framework of 
potential restrictions, which would be automatically triggered 
depending on how much the GHL is exceeded, was designed by the Council 
to minimize the time between exceeding a GHL and the implementation of 
one or more restrictions. Public comment was specifically invited on 
the range of restrictions and the link between this range and the level 
that the guided recreational fishery exceeded the GHL.
    This process of implementing pre-conceived and non-discretionary 
restrictions by notice, depending on how much the GHL is exceeded, 
however, would not have provided for additional public comment at the 
time of implementing a restriction. The NMFS letter to the Council 
indicated that this lack of additional public comment would not be 
consistent with the APA.
    The public comment required by the APA can be waived only for 
``good cause.'' The harvest restrictions in the proposed rule likely 
could not be implemented under the ``good cause'' exemption of the APA. 
The APA provides for a ``good cause'' finding only when the agency 
finds that notice and opportunity for public comment would be 
impracticable, unnecessary, or contrary to the public interest (5 
U.S.C. 553(b)(B)). These terms are narrowly defined. Because this 
``good cause'' finding would need to be made at the time the harvest 
restrictions are implemented, NMFS could not conclude in advance that a 
``good cause'' finding would exist in every instance the GHL was 
exceeded and harvest restrictions triggered. This requirement would 
effectively undermine the goal of the framework measures to expedite 
implementation of harvest restriction measures on the guided 
recreational fishery.
    NMFS presented this letter to the Council at its April 2002 
meeting, but no action was taken. NMFS sent a second letter to the 
Council on September 6, 2002, which further clarified factors that may 
affect the approval of the GHL program and suggested alternative ways 
to meet the Council's intent.
    The September 6, 2002, letter noted that the proposed rule could be 
approved only if it were changed to explicitly provide for an 
opportunity for public comment before implementing any harvest 
restrictions. This change would increase the amount of time between 
when the GHL is exceeded and implementing any harvest restrictions, 
because the APA rulemaking process would require an analysis of 
alternatives to the proposed harvest restrictions recommended by the 
Council under the requirements of the Regulatory Flexibility Act, the 
National Environmental Policy Act, Executive Order (E.O.) 12866 (which 
requires a Regulatory Impact Review), and other applicable laws.
    The Council discussed this letter in October 2002. The Council 
indicated that its preferred course of action would be to implement the 
GHL policy as a rule and to develop possible harvest restriction 
measures as necessary at a later time through a separate analytical and 
rulemaking process. Under this scenario, the Council would undertake 
its usual process of forwarding recommendations to NMFS based on 
analysis of alternatives each time recreational guided harvests exceed 
the GHL.
    On December 2, 2002, NMFS informed the Council by letter that NMFS 
intended to proceed as recommended by the Council in October, with a 
final rule to implement the GHL policy without the associated harvest 
restriction measures. NMFS presented this letter to the Council at its 
December 2002 meeting. This letter noted that if the GHL were exceeded, 
subsequent harvest restrictions could be implemented as needed under 
normal APA rulemaking with the accompanying analyses (e.g., EA/RIR/
IRFA). In other words, this final rule would establish the GHL policy 
and require NMFS to notify the Council when a GHL is exceeded, which 
could serve as a trigger for subsequent rulemaking.
    Hence, this final rule deviates from the proposed rule (January 28, 
2002, 67 FR 3867) by omitting all of the proposed restrictions. The 
specific changes in this final rule from the proposed rule are 
described in the Changes from the Proposed Rule section of this final 
rule.

Guideline Harvest Level

    The GHL establishes a pre-season estimate of acceptable annual 
harvests for the guided recreational halibut fishery in Commission 
areas 2C and 3A. To accommodate limited growth of the guided 
recreational fleet while approximating historical harvest levels, the 
GHL for each area is based on 125 percent of the average of 1995-99 
guided recreational harvest estimates as reported by the ADF&G's 
Harvest Survey. The average harvest during the 1995-1999 time period 
was chosen as being representative of recent trends in guided fishery 
harvests with the additional 25 percent over this average added to 
accommodate limited future growth based on estimated guided fishery 
harvest trends. The GHLs equal 1,432,000 lb (649.5 mt) net weight in 
area 2C, and 3,650,000 lb (1,655.6 mt) net weight in area 3A. These 
amounts equate to 13.05 percent, and 14.11 percent, respectively, of 
the combined guided recreational and commercial allowable harvest.
    The GHLs are established as a total maximum poundage, which is 
responsive to annual reductions in stock abundance. In the event of a 
reduction in either area's halibut stocks, as determined by the 
Commission, the area GHL is reduced incrementally in a stepwise fashion 
in proportion to the stock reduction. The GHL is reduced by fixed 
percentages if the stock abundance falls below the average 1999-2000 
stock abundance. The 1999-2000 time frame was chosen because these were 
the two years most recent to the Council's action.

[[Page 47259]]

    To compare the stock abundance among years using a uniform measure, 
the stock abundance will be compared to the average 1999-2000 CEY using 
the CEY established for that year by the Commission. The CEY 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 Commission. As such, it may reflect uncertainty, or 
changes in the stock assessment modeling. However, comparing the CEY 
each year to the average 1999-2000 CEY, provides the best available 
measure of stock abundance trends between years.
    The GHL in each area is reduced in stepwise increments based on a 
reduction in the CEY. This reduction would occur the year following the 
availability of the data indicating that a GHL in a given area has been 
exceeded. This stepwise incremental reduction was chosen by the Council 
to provide some consideration for the natural variability of halibut 
stocks and not require the adoption of a new GHL every year if the 
stock varies only slightly. For example, if the halibut stock in area 
2C were to fall from 15 to 24 percent below its 1999-2000 average CEY, 
then the area 2C GHL would be reduced by 15 percent from 1,432,000 lb 
(649.5 mt) to 1,217,200 lb (552.1 mt). If the Area 2C stock abundance 
were to fall at least 25 to 34 percent, then the GHL would be reduced 
by an additional 10 percent from 1,217,200 lb (552.1 mt) to 1,095,480 
lb (496.9 mt). If the stock abundance continued to decline by at least 
10 percent increments, the GHL in Area 2C would be reduced by an 
additional 10 percent once the stock abundance was reduced by at least 
10 percent.
    If abundance returns to its pre-reduction level (the 1999-2000 
average CEY), the GHL would be stepped back up in the following year by 
commensurate incremental percentage points to its initial level of 125 
percent of the average of 1995-99 guided recreational harvest 
estimates. As an example, if the Area 2C stock abundance was 19 percent 
lower than the 1999-2000 average stock abundance, the GHL would be 15 
percent lower than the initial level. The Area 2C GHL would be 
1,217,200 lbs. (552.1 mt). If the stock abundance in Area 2C increased 
by 15 percent over this level, the GHL in Area 2C would be stepped up 
to its maximum initial level of 1,432,000 lbs (649.5 mt).
    If halibut stock abundance were to increase above its 1999-2000 
average CEY, then the GHL would never exceed its initial level of 
1,432,000 lb (649.5 mt) in Area 2C and 3,650,000 lb (1,655.6 mt) in 
Area 3A. Setting the GHL at a maximum of 125 percent of the 1995-1999 
harvest estimates would allow for limited growth of the guided 
recreational fishery, but would effectively limit further growth at 
this level. The Council chose not to provide a mechanism to increase 
the GHL above this initial level if the stock abundance increases. The 
Council clarified that its goal for the GHL was to provide a limit on 
the total amount of harvests in the guided fishery that would be 
designated as a fixed poundage based on an amount equal to 125 percent 
of the average 1995-1999 harvests. This amount was set higher than 
existing harvest levels to accommodate some future growth in the 
recreational sector. The Council stated its intent that the GHLs would 
not close the fishery, but instead would trigger other management 
measures in years following attainment of the GHL. The overall intent 
was to maintain a stable guided recreational fishery season of historic 
length, using area-specific measures.
    Once the Commission determines the stock abundance for the year 
during its January meeting, NMFS will review the Commission's CEY 
relative to the baseline 1999-2000 average CEY and announce the GHL for 
the year in the Federal Register by notice before the beginning of the 
guided fishery. If the GHL is exceeded in any year, then NMFS will 
notify the Council in writing that the GHL has been exceeded as soon as 
that information is available. Currently, the only source of 
information on guided recreational harvests comes from the Harvest 
Survey. The final results from the Harvest Survey are typically 
available by August of the year following the survey. Under this data 
collection system, NMFS would not have data that the GHL was exceeded 
until eight months after the end of the prior guided recreational 
season. NMFS has established a contract to develop a data collection 
system independent of the State's Harvest Survey. That system is still 
under development.

Changes from the Proposed Rule

    This final rule does not implement the framework harvest 
restrictions recommended by the Council and published in the Federal 
Register as a proposed rule on January 28, 2002 (67 FR 3867). The final 
rule regulatory text includes: (1) the GHL in Areas 2C and 3A; (2) the 
mechanism for reducing the GHL in years of low abundance as determined 
by the Commission; (3) a requirement for NMFS to publish the GHL on an 
annual basis in the Federal Register; and (4) a requirement for NMFS to 
notify the Council in writing within 30 days of receiving information 
that the GHL has been exceeded. At that time, the Council may choose to 
initiate an analysis of alternative management restrictions on the 
guided recreational fishery and propose harvest reduction restrictions 
through the usual APA rulemaking process.
    This final rule also revises the regulatory language to better 
clarify the mechanism for reducing the GHLs if the stock abundance 
declines. This change does not modify the intent or effect of the 
language in the proposed rule but improves its readability and 
accuracy. The final rule also removes the definition of ``guided 
recreational vessel'' because existing regulations (at 50 CFR 300.61) 
define a ``charter vessel'' and an additional definition would be 
duplicative. This change does not modify the intent or effect of the 
language in the proposed rule. The term ``guided recreational fishery'' 
is used in the preamble to the proposed rule because that term has been 
used consistently throughout the analytical process. Retaining the term 
in this final rule assists the public by maintaining consistent 
terminology.
    The suite of harvest restrictions recommended by the Council and 
published in the proposed rule may be one of the alternatives that is 
analyzed in subsequent rulemaking if the GHL is exceeded. The Council 
may choose other reasonable alternative harvest reduction restrictions 
if the GHL is exceeded.
    The specific regulatory language in the proposed rule that is not 
implemented in this final rule includes: (1) the suite of harvest 
restrictions that would apply if the GHL were exceeded; (2) the 
notification process for implementing the harvest restriction measures; 
and (3) regulatory language that would require the Council to review 
the harvest restriction measures after their implementation to evaluate 
their efficacy in preventing further excess harvests and recommend that 
NMFS adjust those measures as necessary to ensure that the following 
season's harvest levels do not exceed the GHL.
    This final rule imposes no restrictions on the guided recreational 
fishery as outlined in the proposed rule. This change from the proposed 
rule is necessary to address concerns raised about the ability to 
implement the harvest restriction measures without providing 
opportunity for public comment under APA rulemaking procedures.

[[Page 47260]]

    The effect of removing this regulatory language in this final rule 
is to establish the GHL as a notification to the Council for 
consideration of possible subsequent rulemaking, but not to establish 
specific harvest restriction measures. While this change substantially 
modifies the regulatory language in the proposed rule, it does not 
impose new restrictions on the guided recreational fishery. The only 
regulatory effect of this action is to codify the GHL policy, require 
the publication of the GHL on an annual basis in Areas 2C and 3A, and 
to require NMFS to notify the Council if the GHL is exceeded.

Response to Comments

    The proposed rule was published in the Federal Register on January 
28, 2002 (67 FR 3867), and invited public comments until February 27, 
2002. NMFS received 241 public comments.

Letters Supporting the Proposed Rule

    NMFS received 228 letters that supported, either in whole or in 
part, the adoption of the proposed rule to implement a GHL and 
associated management measures for the guided halibut fishery. These 
comments do not provide specific suggestions or comments on modifying 
the proposed rule, but urge its Secretarial approval. Therefore, the 
supportive comments summarized are not individually addressed and 
responded to in this action.
    Many of the public comments supporting the proposed rule are form 
letters from individual commercial fishermen that urge NMFS to approve 
the proposed rule. Approximately half of these letters also contain 
personalized information on the specific nature of the individual's 
commercial fishing operation and how that individual would be harmed if 
the proposed rule were not adopted. NMFS received seven letters that 
support the adoption of the proposed rule from organizations 
representing fishermen or processors. NMFS also received one petition 
signed by 69 individuals supporting the GHL proposed rule. The 
individuals signing the petition indicated they owned or operated 
vessels primarily homeported in Homer, Alaska. Based on a review of the 
names on the petition, most of these individuals did not submit 
separate personal letters.
    NMFS received three letters from resident sport anglers who 
expressed support for the GHL as a means to control effort in the 
fishery and ensure sport fishing opportunities for local residents. One 
commercial fisherman and guided recreational lodge owner catering to 
guided recreational fishery clients also expressed support for the GHL 
proposed rule as a means to curtail effort that could adversely affect 
his lodge operations.
    The principal reasons given for supporting the proposed rule in 
these letters were that it would:
    (1) Establish an equitable allocation between sport and commercial 
harvests;
    (2) Provide additional security for commercial fishermen who have 
invested in the IFQ Program and believe that they should be provided a 
stable percentage of the total halibut resource; and
    (3) Provide a control on guided recreational fishery harvests in 
nearshore waters that are used by smaller commercial vessels.
    Many of the letters noted that commercial fishermen have made 
substantial investments in the IFQ program and the lack of controls on 
guided recreational fishery harvests will compromise their investment 
because no explicit controls exist on the future growth of the guided 
recreational harvests relative to the commercial fishery. Other letters 
noted that consumers would benefit from a healthy commercial resource 
and not all individuals can afford a guided fishing experience if they 
want to eat Pacific halibut from Alaska. Several letters indicated that 
the value of commercial fisheries extends to the numerous services 
(e.g., grocery stores, supply stores) that commercial fisheries support 
in small rural communities. Other letters noted that localized 
depletion by guided recreational vessels is a concern and must be 
controlled. Some letters mention that guided recreational operators are 
in fact ``commercial fishermen'' because they derive their income by 
their ability to find fish for their clients to harvest. Several 
letters indicate that the Council process that resulted in the 
recommendation to adopt a GHL for the guided recreational fishery fleet 
was a long, open process, that allowed ample public participation.
    Generally, these letters express support for the Secretary's 
decision to publish the proposed rule and proceed with the GHL. A 
number of the comments are no longer pertinent given the restructuring 
of the final rule to remove the frameworked harvest restrictions.

Letters Opposing the Proposed Rule

    NMFS received 12 letters opposing the establishment of a GHL. The 
authors of all of these letters identified themselves as guided 
recreational fishermen. Writers of these 12 letters made 10 unique 
comments on the proposed rule.
    Most of these comments specifically address the harvest restriction 
measures that were part of the proposed rule but are not included in 
this final rule. These comments may no longer be pertinent given the 
removal of the harvest restriction framework.
    Comment 1: The guided recreational fishery harvests comprise a 
relatively small portion of overall harvest of halibut in Areas 2C and 
3A. The percentage of harvest is not increasing, and controls or other 
limits on the guided fishery are not needed.
    Response: This rule does not impose any restrictions on the guided 
fishery, but serves to notify the public of the GHLs on an annual basis 
and to notify the Council when the GHL is exceeded. The Council 
recommended that NMFS allocate resources between the guided 
recreational and commercial sectors to address longstanding concerns 
raised by the absence of a specific allocation of the halibut resource 
to the guided recreational sector. Although this rule does not directly 
implement harvest restrictions, establishing an upper limit of harvest 
for the guided recreational fishery is appropriate and necessary if the 
commercial and guided recreational fleets wish to maintain the existing 
harvest distributions between these sectors.
    The GHL was explicitly designed to allow a limited degree of growth 
in the guided recreational fishery without reallocating the historic 
distribution of harvests between the commercial and recreational 
sectors. The guided fishery has not yet met or exceeded the proposed 
GHL in either Area 2C or 3A.
    Comment 2: Guided recreational fishery operations provide a greater 
economic benefit to Alaska and rural communities than the commercial 
fishery and the GHL would impede this economic benefit and the exercise 
of free-markets.
    Response: This analysis is provided in the EA/RIR/IRFA, and 
indicates that the relative economic impacts of implementing harvest 
restrictions may vary depending on the measures used, area, and 
particular aspects of the fishery operation. This analysis did not 
explicitly indicate that guided recreational fishery operations 
uniformly provided a greater economic benefit to Alaska and rural 
communities. This final rule does not impose harvest restrictions on 
the guided fishery, however, and is not expected to have a direct 
economic effect on the guided fishery.
    NMFS considered the economic effects of this regulation, among 
other

[[Page 47261]]

factors. Economic value of the fishery is one basis for making an 
allocation decision, but not the only consideration. The Halibut Act 
requires consideration of a range of factors when recommending new 
management measures, such as the GHL, that allocate or assign halibut 
fishing privileges among various United States fishermen. The Halibut 
Act requires that such allocation shall be fair and equitable to all 
such fishermen, based upon the rights and obligations in existing 
Federal law, reasonably calculated to promote conservation, and carried 
out in such manner that no particular individual, corporation, or other 
entity acquires an excessive share of the halibut fishing privileges.
    Comment 3: The GHL will not conserve the resource. The EA/RIR/IRFA 
prepared for the GHL proposed rule states that ``the [Commission] has 
determined that resource conservation is not a factor in such 
allocative decisions,'' and by implication establishing a GHL based on 
concerns about possible localized depletion of the halibut resource are 
inappropriate.
    Response: In 1993, the Council became concerned about both 
localized depletion and ``the potential reallocation of greater 
percentages of the CEY from the IFQ fishery to the guided recreational 
fishery `` (See 67 FR 3867, January 28, 2002). While the EA/RIR/IRFA 
notes that ``the effect on the halibut resource of allocating halibut 
between user groups is negligible,'' it also notes that ``if there was 
a resource conservation concern, the [Commission] would be the 
responsible management body, however, since this is an allocative 
issue, the management responsibility is delegated to the Council.''
    The EA/RIR/IRFA notes that ``while there may be biological concerns 
associated with localized depletion of halibut stocks, the guided 
recreational fishery sector may not be the only contributor to 
localized depletions. In summary, none of the alternatives would be 
expected to have a significant impact on the environment.'' This 
indicates that the basis for this action is largely one based on 
concerns for allocation and that the potential effect of this action on 
the environment is not significant. The commenter correctly notes that 
the EA/RIR/IRFA does not provide conclusive evidence of localized 
depletion attributable to the guided recreational fleet.
    Although concerns about the potential effects of the guided fishery 
on localized depletion of halibut stocks may have diminished over the 
past several years while the Council considered this action and NMFS 
developed this final rule, the allocative concerns have not. The 
Council and NMFS have the authority and responsibility to address 
allocation concerns. This rule addresses those concerns by establishing 
a mechanism for notifying the Council that it may wish to consider 
additional rulemaking to restrict the guided recreational fleet if the 
GHL is exceeded.
    Comment 4: The GHL could constrain harvests and force guided 
recreational fishery vessels to target other stocks (e.g., salmon and 
lingcod) that may be fully exploited. The EA/RIR/IRFA notes that 
``other species of salmon, as well as rockfish and lingcod stocks would 
be impacted if guided recreational fishery operators increased their 
fishing effort on these stocks in response to a GHL on halibut. ADF&G 
has expressed conservation concerns for lingcod and rockfish stocks in 
most areas of Southeast Alaska. Based on these concerns the Board has 
adopted very restrictive regulations for yelloweye rockfish in the 
Sitka and Ketchikan areas and for lingcod in the Sitka area. Increased 
exploitation by the guided sector due to a GHL would add to these 
conservation concerns.''
    Response: The implementation of the GHL without any regulatory 
restrictions would not be expected to have any distributional effects 
on the guided fishery fleet, and is not expected to have a significant 
effect on the human environment. Additionally, ADF&G and the Board may 
choose to implement additional management measures if the 
implementation of the GHL is perceived to have an adverse effect on 
state managed resources. At the time that any additional management 
measures are developed, those considerations may be addressed.
    Comment 5: The GHL proposed rule contradicts NMFS' commitment to 
promote recreational fisheries under E.O. 12962. (E.O. directing 
Federal agencies to enhance recreational fishing opportunities).
    Response: This rule does not diminish that productivity or 
countermand the intent of E.O. 12962. Because this final rule does not 
impose any regulatory restrictions on the guided recreational fishery 
it would not limit or otherwise curtail participation in the guided 
recreational fishery. E.O. 12962 was signed in 1995, and 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 that NMFS or the 
Council 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.
    Comment 6: The Council developed the proposed rule without any 
consideration of analysis of potential socio-economic impacts.
    Response: The EA/RIR/IRFA analyzes, among other issues, the socio-
economic impacts of the proposed rule for the GHL and the associated 
harvest restriction measures. This analysis addresses the potential 
socio-economic impacts of the GHL proposed rule using the best 
available data. The FRFA prepared for this final rule reviews the 
economic effects of this final rule.
    Comment 7: Public access to the resource will be diminished by the 
implementation of the GHL.
    Response: This rule does not limit guided recreational harvests or 
public access to fishery resources. This rule serves only to notify the 
public on an annual basis of the GHLs in Areas 2C and 3A, to codify the 
GHL policy and to provide a mechanism for NMFS to notify the Council 
once the GHL has been exceeded.
    Comment 8: The accuracy of the Logbook data used to determine the 
GHL is suspect, should not have been used in this process, and should 
not be used in any future management decisions. The author of the 
letter notes that in a September 2001 memorandum, ADF&G raised some 
concerns about the use of Logbook data for management purposes.
    Response: The GHL is based on 125 percent of the average of 1995-
1999 guided recreational harvests using data gathered from the ADF&G 
Harvest Survey. The GHL is not based on data from the Logbook. The 
Harvest Survey is considered accurate for purposes of estimating guided 
recreational harvests on a fleetwide basis. ADF&G is no longer 
collecting data on halibut harvests using the Logbook. Fleetwide 
harvests would be monitored relative to the GHL using the Harvest 
Survey. Because this rule does not implement harvest restriction 
measures, data from the Logbook would not be used to implement this 
final rule. NMFS currently is reviewing alternative means of gathering 
data for collecting data and monitoring harvests in the guided 
recreational fleet for other management purposes.
    Comment 9: The absence of Logbook data will not allow NMFS to 
implement any possible GHL restrictions without a two-year delay, which 
is unacceptable.

[[Page 47262]]

    Response: The EA/RIR/IRFA indicated that the Harvest Survey could 
be used and the one-year lag between the end of the fishing season and 
availability of that year's harvest data was anticipated as was the 
possibility that it would take up to two years for management measures 
to be implemented. This final rule does not implement harvest 
restrictions and Logbook data are not required for monitoring fleetwide 
harvests. NMFS currently is reviewing alternative data collection 
methods for the guided recreational fleet and reduce this delay between 
exceeding the GHL and notification of the Council. These data 
collection methods would supplement the existing Harvest Survey and 
provide additional information on fleetwide and individual vessel 
harvests.
    Comment 10: The proposed rule does not provide a mechanism for the 
GHL to increase if the stocks increase and therefore limits guided 
recreational harvests if halibut abundance increases. This would limit 
the guided recreational fleet to a smaller percentage of the overall 
available exploitable biomass relative to the commercial fleet. The GHL 
should be modified to increase during periods of higher stock 
abundance.
    Response: The goal for the GHL is to provide a limit on the total 
amount of harvests in the guided fishery that would be designated as a 
fixed poundage based on an amount equal to 125 percent of the average 
1995-1999 harvests. This amount was set higher than existing harvest 
levels to accommodate some future growth in the recreational sector. 
The intent is not to close the fishery, but additional management 
measures may be triggered in years following attainment of the GHL. The 
overall intent was to maintain a stable guided recreational fishing 
season of historic length, using area-specific measures.
    The GHL is not a fixed percentage of the total halibut biomass 
available for exploitation and it was not envisioned that the GHL would 
increase if stock abundance increased. The decision to fix the GHL at a 
maximum level with some reduction in the GHL as stock abundance 
decreases was based on several factors including: (1) Halibut are 
believed to be at high abundance but are declining, according to recent 
Commission stock assessments, making it unlikely that stock abundance 
will increase; (2) the current level of harvests by the guided 
recreational sector are below the GHLs in both Area 2C and 3A; and (3) 
public comment received during the Council deliberations advocated 
setting the GHL as a fixed poundage that would be adjusted in a 
stepwise fashion if abundance decreases.
    Based on these factors, the GHL is not designed to increase if 
stock abundance increases. However, this final rule does not impose 
specific harvest restrictions if the GHL is exceeded. If stock 
abundance does increase and the GHL is exceeded in a specific area, 
then the Council can review the appropriateness of pursuing additional 
subsequent rulemaking at that time, including a review of the mechanism 
used to set the GHL.

State Comments on the Proposed Rule

    The ADF&G also provided written comments on the proposed rule.
    Comment 1: The description of CEY in the preamble to the proposed 
rule as it relates to total allowable harvests is incorrect.
    Response: The preamble to the proposed rule described the CEY as a 
specific allocation to the commercial fishery, which is not accurate. 
The statement in the preamble to this final rule has been corrected to 
more accurately describe CEY as an estimate of the total allowable 
harvests, including harvests by the guided fishery, sport anglers, and 
as bycatch in other fisheries.
    Comment 2: The preamble to the proposed rule does not adequately 
define how stock biomass is defined. Differences exist between the 
Commission model estimates of CEY and the setline CEY actually approved 
by the Commission for the commercial fishery. These differences could 
affect how stock abundance is measured and applied relative to the GHL.
    Response: The Commission determines the total biomass based on a 
variety of model estimates, data sources, and consideration of 
uncertainty in the model estimates. The proposed rule did not specify 
the particular method that would be used to estimate changes in stock 
biomass and model estimates may vary among years. An appropriate 
measure is the CEY. The CEY is a numerical determination of the amount 
of biomass available for total removals (i.e., harvests, bycatch) from 
the fishery.
    The CEY incorporates uncertainty that may exist in the fishery 
stock assessment models and may vary from the stock assessment models 
based on the professional judgment of the Commission. The CEY reflects 
the amount of biomass available for harvest on an annual basis and is 
therefore a reasonable proxy for comparing stock abundance on an 
interannual basis. The CEY is distinct from the ``setline CEY'' which 
is the specific catch limit for the commercial fishery, and is a 
portion of the overall CEY. The final rule has been modified from the 
proposed rule to clarify that the CEY will be used as the means for 
comparing stock abundance among years.
    Comment 3: The proposed rule does not specifically address 
localized depletion concerns that are described in the Council's 
Problem Statement which guided the development of this proposed rule. 
The proposed rule does not address these concerns because the GHL and 
associated harvest restriction measures would apply on an area-wide 
basis.
    Response: This action does not directly resolve all of the problems 
raised in the Problem Statement adopted by the Council. This final rule 
does not impose harvest restrictions and the specific management 
measures which may address any possible localized depletion would need 
to be developed by additional future rulemaking.
    At the time the Council developed the Problem Statement, it was 
concerned about the potential adverse effects of localized depletion 
and cited localized depletion as well as allocation debates as problems 
in the management of the guided halibut fishery. The EA/RIR/IRFA 
indicated that localized depletion may not be as great of a concern as 
originally assumed. Allocation issues also are addressed by the 
proposed rule. Because this final rule does not impose harvest 
restriction measures, it would not address potential localized 
depletion.
    Comment 4: The preamble to the proposed rule does not provide 
adequate consideration of overall economic efficiency and the impact of 
this rule on the guided recreational halibut fishery.
    Response: The preamble to the proposed rule notes that the Council 
prepared an EA/RIR/IRFA that examines the economic effect of this rule. 
The EA/RIR/IRFA notes that the economic effects on the guided 
recreational fishery were calculated with the best available data which 
was limited for some aspects of the analysis. The preamble to the 
proposed rule provides a brief review of the effects of this action on 
economic efficiency. The preamble to the proposed rule refers the 
reader to the EA/RIR/IRFA for additional discussion. An FRFA was 
prepared and it addresses the economic impacts of this final rule.
    Comment 5: Logbook data should not be used for the estimation of 
harvests or management of the guided recreational fishery.

[[Page 47263]]

    Response: This final rule does not rely on the Logbook for 
monitoring the GHL. The Harvest Survey will be used to estimate annual 
harvests by the guided recreational fleet since the Logbook no longer 
collects data on halibut harvest in the guided recreational fleet. NMFS 
is exploring the development of a data collection system to augment the 
Harvest Survey. This final rule does not implement harvest restrictions 
and data on individual vessel harvests are not required at this time.
    Comment 6: The mechanism for implementing the harvest restriction 
measures without the use of the Logbook for monitoring and enforcement 
is unclear.
    Response: This final rule does not impose harvest restrictions on 
the guided recreational fleet. As stated earlier, NMFS is in the 
process of developing a new data collection program for the guided 
recreational fishery. That program could be used if the Council were to 
recommend, and the Secretary were to adopt, any additional management 
measures during subsequent rulemaking.

Classification

    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) that contains the items specified in 5 U.S.C. 604(a). 
The FRFA consists of the IRFA, the comments and responses to the 
proposed rule, and the analyses completed in support of this action. A 
copy of the IRFA is available from the Council (see ADDRESSES). The 
preamble to the proposed rule included a detailed summary of the 
analyses contained in the IRFA, and that discussion is not repeated in 
its entirety here.

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action are contained in 
the preamble to the proposed rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

    Comments received prior to the close of the comment period for the 
proposed rule focused on a range of issues. Specifically, many comments 
addressed issues related to the implementation of a framework of 
harvest restriction measures which are no longer a part of this final 
rule. These comments are addressed in detail in the preamble. For a 
summary of the comments received, refer to the section above titled 
``Comments and Responses.''

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    A description and estimate of the number of small entities to which 
the rule will apply is provided in the IRFA and IRFA summary contained 
in the Classification section of the proposed rule and is not repeated 
here. The final rule has been modified from the proposed rule and the 
number of small entities to which the rule will apply has been affected 
by these changes. As noted in the preamble, no entities are directly 
regulated by this action. This action serves as a notification for the 
public and the Council that a specific harvest level has been reached. 
NMFS provides this notification process and no small entities are 
regulated once a GHL is reached without additional action by the 
Council and NMFS. This FRFA is being undertaken because an IRFA was 
prepared for the proposed rule which contained measures that would have 
regulated small entities. Those measures are no longer part of this 
final rule.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    A description of projected reporting, recordkeeping, and other 
compliance requirements is provided in the IRFA and IRFA summary 
contained in the Classification section of the proposed rule and is not 
repeated here.

Steps Taken to Minimize Economic Impacts on Small Entities

    This rule would (1) establish the GHL in Areas 2C and 3A; (2) 
describe the mechanism for reducing the GHL in years of low abundance 
as determined by the Commission; (3) establish a requirement for NMFS 
to publish the GHL on an annual basis in the Federal Register; and (4) 
require NMFS to notify the Council in writing within 30 days of 
receiving information that the GHL has been exceeded. The potential 
economic impacts of these measures are described in detail in the IRFA 
and IRFA summary contained in the classification section of the 
proposed rule and in the preamble of this final rule. This action does 
not directly regulate small entities and would not have an impact on 
those entities. No measures were taken to reduce impacts on small 
entities beyond those already taken with the development of 
alternatives in the IRFA. The IRFA considered an alternative that would 
have maintained the status quo. The regulatory effect described in this 
action is effectively the same as the no action alternative developed 
in the IRFA.
    NMFS is not aware of any alternatives in addition to those 
considered in this action that would accomplish the objectives of the 
Magnuson-Stevens Act and other applicable statutes while further 
minimizing the economic impact of the rule on small entities. The 
impact on small entities under this action is the same as the status 
quo for the small entities in the Pacific halibut and sablefish IFQ 
fisheries and the guided halibut recreational fishery.
    The IRFA analyzed alternatives that would have established a series 
of frameworked harvest restriction measures as well as a moratorium on 
new participants to the guided recreational halibut fishery as well as 
the no-action alternative. The no action alternative would have 
resulted in no changes to existing fishing patterns by the guided 
recreational fleet. This alternative was not chosen, however, in order 
to implement the GHL policy and notification process described in this 
proposed rule. The net economic effect of this action is the same as 
the no action alternative. The analysis supporting this statement is 
provided in the IRFA and is not repeated here.
    The IRFA also examined an alternative that would have implemented a 
series of frameworked harvest restriction measures if a GHL were 
exceeded. This alternative would have been expected to result in more 
significant economic impacts on guided recreational vessels than the 
action being implemented. The analysis supporting this statement is 
provided in the IRFA and is not repeated here.
    The IRFA also examined an alternative that would have implemented a 
moratorium on new participants in the guided recreational fishery. This 
alternative would have been expected to result in more significant 
economic impacts on guided recreational vessels than the action being 
implemented. The analysis supporting this statement is provided in the 
IRFA and is not repeated here.

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 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. This 
paragraph serves

[[Page 47264]]

as the small entity compliance guide. Small entities are not required 
to take any additional actions to comply with this action. NMFS will 
publish the GHL on an annual basis and notify the Council if the GHL is 
exceeded. These actions do not require any additional compliance from 
small entities. Copies of this final rule are available from NMFS (see 
ADDRESSES) and at the following web site: http://www.fakr.noaa.gov/

Need for and Objectives of the Final Rule

    This final rule is necessary to implement a GHL policy. The intent 
of this final rule is to notify the Council that a specific level of 
harvest has been achieved by the guided recreational fishery. This 
action is consistent with the provisions of the Halibut Act.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    This final rule complies with the Halibut Act and the Council's 
authority to implement allocation measures for the management of the 
halibut fishery.

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: August 4, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 300 is amended as 
follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
1. The authority citation for 50 CFR part 300 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.

0
2. Section 300.61 is amended by adding, in alphabetical order, the 
following definitions for ``guideline harvest level'' and ``halibut 
harvest'' to read as follows:


Sec.  300.61  Definitions.

* * * * *
    Guideline harvest level (GHL) means a level of allowable halibut 
harvest by the charter vessel fishery.
    Halibut harvest means the catching and retaining of any halibut.
* * * * *

0
3. In Sec.  300.65, paragraph (i) is added to read as follows:


Sec.  300.65  Catch sharing plan and domestic management measures in 
waters in and off Alaska.

* * * * *
    (i) Guideline harvest level. (1) The annual GHLs for regulatory 
areas 2C and 3A are determined as follows:

----------------------------------------------------------------------------------------------------------------
                                                                             If the Annual
                                                                            Total Constant
 If the Annual Total Constant Exploitation Yield for   Than the GHL for   Exploitation Yield   Than the GHL for
          Halibut in Area 2C is More Than:             Area 2C will be:     for Halibut in     Area 3A will be:
                                                                            Area 3A is More
                                                                                 Than:
----------------------------------------------------------------------------------------------------------------
(i) 9,027,000 lbs.                                       1,432,000 lbs.     21,581,000 lbs.      3,650,000 lbs.
(4094.5 mt)                                                  (649.5 mt)        (9,788.9 mt)         (1655.6 mt)
(ii) 7,965,000 lbs.                                      1,217,000 lbs.     19,042,000 lbs.      3,103,000 lbs.
(3612.9 mt)                                                  (552.0 mt)         (8637.3 mt)         (1407.0 mt)
(iii) 6,903,000 lbs.                                     1,074,000 lbs.     16,504,000 lbs.      2,734,000 lbs.
(3,131.2 mt)                                                 (496.7 mt)        (7,485.9 mt)         (1266.4 mt)
(iv) 5,841,000 lbs.                                        931,000 lbs.     13,964,000 lbs.      2,373,000 lbs.
(2,649.4 mt)                                                 (447.2 mt)         (6334.0 mt)        (1,139.9 mt)
(v) 4,779,000 lbs.                                         788,000 lbs.     11,425,000 lbs.      2,008,000 lbs.
(2,167.7 mt)                                                 (357.4 mt)        (5,182.3 mt)          (910.8 mt)
----------------------------------------------------------------------------------------------------------------

    (2) NMFS will publish a notice in the Federal Register on an annual 
basis establishing the GHL for Area 2C and Area 3B for that calendar 
year within 30 days of receiving information from the Commission which 
establishes the constant exploitation yield for that year.
    (3) If the GHL in either Area 2C or 3A is exceeded, NMFS will 
notify the Council in writing that the GHL has been exceeded within 30 
days of receiving information that the GHL has been exceeded.
[FR Doc. 03-20285 Filed 8-7-03; 8:45 am]
BILLING CODE 3510-22-S