[Federal Register Volume 72, Number 106 (Monday, June 4, 2007)]
[Rules and Regulations]
[Pages 30714-30728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10736]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 070326070-7110-02; I.D. 032107A]
RIN 0648-AV47


Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery 
for Halibut

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 restrict the harvest of halibut by 
persons fishing on a guided sport charter vessel in International 
Pacific Halibut Commission (IPHC) Regulatory Area 2C. The current sport 
fishing catch or bag limit of two halibut per day is changed for a 
person sport fishing on a charter vessel in Area 2C. The final rule 
would require at least one of the two fish taken in a day to be no more 
than 32 inches (81.3 cm) in length. This regulatory change is necessary 
to reduce the halibut harvest in the charter vessel sector while 
minimizing negative impacts on this sector, its sport fishing clients, 
and the coastal communities that serve as home ports for the fishery. 
The intended effect of this action is a reduction in the poundage of 
halibut harvested by the guided sport charter vessel sector in Area 2C.

DATES: Effective June 1, 2007.

ADDRESSES: Copies of the Environmental Assessment, Regulatory Impact 
Review, and Final Regulatory Flexibility Analysis (EA/RIR/FRFA) 
prepared for this action are available from: NMFS, Alaska Region, P.O. 
Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records 
Officer; NMFS, Alaska Region, 709 West 9th Street, Room 420, Juneau, 
AK; or NMFS Alaska Region Website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jay Ginter, telephone (907) 586-7228, 
e-mail [email protected]; or Jason Gasper, telephone (907) 586-7228, 
e-mail [email protected].

SUPPLEMENTARY INFORMATION: The 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 Pacific halibut 
fishery under the Convention between the United States and Canada for 
the Preservation of the Halibut Fishery of the North Pacific Ocean and 
Bering Sea (Convention), signed in Ottawa, Ontario, on March 2, 1953, 
as amended by a Protocol Amending the Convention signed at Washington, 
D.C., on March 29, 1979. The IPHC's regulations are subject to approval 
by the Secretary of State with concurrence of the Secretary of Commerce 
(Secretary). Approved regulations developed by the IPHC are published 
as annual management measures pursuant to 50 CFR 300.62. The annual 
management measures for 2007 were published on March 14, 2007 (72 FR 
11792).
    The Halibut Act provides the Secretary with the authority and 
general responsibility to carry out the requirement of the Convention 
and Halibut Act. Regulations that are not in conflict with approved 
IPHC regulations may be recommended by the North Pacific Fishery 
Management Council (Council) and implemented by the Secretary through 
NMFS to allocate harvesting privileges among U.S. fishermen in and off 
of Alaska. The Council has exercised this authority, most notably in 
the development of its Individual Fishing Quota (IFQ) Program, codified 
at 50 CFR part 679, and subsistence halibut fishery management 
measures, codified at 50 CFR 300.65. The Council also has been 
developing a regulatory program to manage the guided sport charter 
vessel fishery for halibut and is continuing this work. This program 
could include harvest restrictions in regulatory Area 2C and 3A for 
2008, and a moratorium on new entry into the Area 2C and Area 3A 
charter vessel fishery.

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 
April 6, 2007 (72 FR 17071). In summary, this final rule will reduce 
sport fishing mortality of halibut in the Area 2C charter vessel sector 
to a level comparable to the level that would have been achieved by the 
one-fish bag limit recommended by the IPHC. Of the alternatives 
analyzed in the EA/RIR/FRFA, the alternative selected for the final 
rule is expected to provide the necessary level of harvest reduction 
while also reducing adverse impacts on the charter fishery, its sport 
fishing clients, the coastal communities served by the charter sector, 
and on the fisheries for other species.
    The harvest of halibut occurs in three basic fisheries the 
commercial, sport, and subsistence fisheries. An additional amount of 
fishing mortality occurs as bycatch, wastage, and incidental catch 
while targeting other species. The IPHC annually determines the amount 
of halibut that may be removed from a regulatory area without causing 
biological conservation concerns for the entire Pacific halibut stock. 
In Convention waters in and off Alaska, the IPHC sets an annual catch 
limit specific for the commercial fishery. Thus, to maintain 
conservation goals, the IPHC reduces commercial catch when other 
sources of fishing mortality (e.g., sport fishing) grow. Although most 
of the non-commercial uses of halibut have been stable, growth in the 
charter vessel fishery in recent years, particularly in Area 2C, has 
resulted in a shift of the halibut resource away from the commercial 
fishery to the charter fishery. Moreover, the rate of growth in the 
charter vessel sector in Area 2C has made it difficult for the IPHC to 
forecast future removals of halibut in the charter vessel sector and 
set appropriate commercial harvest limits.
    The IPHC addressed the increase in the harvest of halibut by the 
charter vessel fishery at its annual meeting in January 2007. The IPHC 
adopted a motion to reduce the daily bag limit for anglers fishing on 
charter vessels in Areas 2C and 3A from two halibut to one halibut per 
day during certain time periods. Specifically, the IPHC recommended a 
one-fish bag limit apply to guided anglers in Area 2C from June 15 
through July 30, and in Area 3A from

[[Page 30715]]

June 15 through June 30. In Area 3A, the one-fish bag limit would 
reduce the charter vessel harvest of halibut by an estimated 326,000 lb 
(147.9 mt). In Area 2C, the one-fish bag limit restriction would reduce 
the charter vessel harvest of halibut by an amount estimated to range 
from 397,000 lb (180.1 mt) to 432,000 lb (195.9 mt).
    In a letter to the IPHC on March 1, 2007, the Secretary of State, 
with concurrence from the Secretary of Commerce, rejected the IPHC-
recommended one-fish bag limit in Areas 2C and 3A, and indicated that 
appropriate reduction in the charter vessel harvest in these areas 
would be achieved by a combination of State of Alaska Department of 
Fish and Game (ADF&G) and NMFS regulatory actions. Prior to Secretarial 
rejection of the IPHC-recommended harvest measures, ADF&G promulgated 
regulations for Area 3A that prohibited skipper and crew from 
harvesting halibut onboard a charter vessel and limited the number of 
lines that could be fished from a charter vessel. ADF&G estimates that 
its action in Area 3A would reduce harvest the charter halibut harvest 
to or close to the Area 3A guideline harvest level (GHL). Thus, NMFS 
believed this level of harvest reduction was sufficient to meet 
management goals for the halibut fishery in Area 3A.
    The one-fish bag limit recommended by the IPHC would have had 
negative economic impacts on the charter vessel industry. Comments from 
charter vessel guides before, during, and after the IPHC meeting in 
January 2007 indicated that changing the bag limit for anglers on 
charter vessels from two fish to one fish per day for the six-week 
period in Area 2C would have an adverse impact on charter vessel 
bookings that had been or were in the process of being made for the 
2007 charter fishing season. Charter vessel operators and 
representatives stated that the ability to offer an opportunity to 
harvest more than one fish was important for their charter business. To 
reduce potential negative impacts on the charter fishing sector, NMFS 
considered regulatory alternatives for analysis that reduced the 
charter vessel fishery's amount of halibut harvest in Area 2C to a 
level comparable to the level that would have been achieved by the IPHC 
recommended one-fish bag limit while preserving a two-fish bag limit. 
The preamble to the proposed rule provides a detailed description of 
these analytical alternatives (March 14, 2007, 72 FR 11792).
    Current Federal halibut fishing regulations published in the annual 
management measures (March 14, 2007, 72 FR 11792) allow sport anglers 
to retain two halibut of any size, per calender day. This action will 
amend those regulations to allow a daily bag limit of two halibut per 
sport fishing client on a charter vessel operating in Area 2C provided 
that at least one of the two halibut retained is no longer than 32 in 
(81.3 cm) with its head on. If only one halibut is retained by the 
sport fishing client, it could be of any length. The regulations in 
this final action would apply for the entire fishing season.
    This action will require enforcement officers to determine the size 
of some halibut caught during a charter vessel trip. To accommodate 
this enforcement need, halibut must remain in measurable form until all 
halibut fillets are offloaded from the charter vessel. Thus, persons 
onboard a charter vessel are prohibited from possessing halibut that 
have been mutilated or disfigured in a way that prevents determining 
the size or number of halibut. Charter operators may fillet halibut 
onboard their vessels if the entire carcass is retained as a single 
piece until all fillets are offloaded. This requirement also is 
expected to improve the quality of data collected on the length 
composition of halibut harvested in the sport fishery. This requirement 
may increase the number of carcasses brought back to a port which may 
lead to disposal problems at some ports. NMFS strongly encourages 
charter operators to properly dispose of carcasses, including following 
all port-specific policies.

Expected Harvest Reduction

    The draft EA/RIR/IRFA and the proposed rule (April 6, 2007, 72 FR 
17071) indicated that the IPHC-recommended one fish bag limit would 
result in a harvest reduction by the charter vessel sector in Area 2C 
of between 397,000 lb (180.1 mt) and 432,000 lb (195.9 mt). The best 
scientific information available when these documents were prepared 
included an ADF&G estimate that the proposed regulation would reduce 
the charter vessel fishery harvest in Area 2C by 425,000 lb (192.8 mt). 
The proposed action appeared to be the best of several alternatives 
considered in the EA/RIR/IRFA, in part because the estimated reduction 
in poundage of halibut taken by the charter vessel sector was about 98 
percent of the poundage range estimated for the IPHC-recommended 
action.
    After publication of the proposed rule, however, ADF&G discovered a 
calculation error and corrected its harvest estimates. The correction 
changed the harvest reduction estimate for the proposed regulation from 
425,000 lb (192.8 mt) to 518,000 lb (235.0 mt). This ADF&G correction 
increased the estimated poundage reduction of the proposed regulation 
by 93,000 lb (42.2 mt).
    The revised poundage reduction estimate based on the ADF&G 
correction does not change the preferred alternative selected by NMFS. 
That preferred alternative published as a proposed rule on April 6 2007 
(72 FR 17071), and implemented by this final rule, will achieve a 
harvest reduction that is comparable to the IPHC-recommended action 
while maintaining the traditional two-fish bag limit and reducing 
negative impacts on the charter vessel sector. NMFS is not changing its 
preferred alternative in light of the ADF&G correction for several 
reasons. First, the additional 93,000 lb (42.2 mt) reduction of charter 
vessel halibut harvest in Area 2C based on the revised estimates 
amounts to about four percent of the estimated 2,113,000 lb (958.4 mt) 
of halibut harvested by the charter vessel fishery in Area 2C in 2006. 
Second, changing the preferred alternative to the next more lenient 
alternative of a 35-inch (88.9-cm) maximum size limit would result in a 
difference of only 46,000 lb (20.9 mt) or about two percent of the Area 
2C charter vessel harvest in 2006. Although the revised ADF&G estimates 
of predicted halibut poundage reductions are based on the best 
scientific information available, they are based on confidence ranges 
that have not been calculated, but are believed to be high based on the 
type of data available. Therefore, no change is made in the preferred 
alternative and no change is made from the proposed rule to this final 
rule.

Summary of Comments

    The proposed rule was published in the Federal Register on April 6, 
2007 (72 FR 17071), and invited public comments until April 23, 2007. 
NMFS received 477 comments in 128 letters and e-mail messages.

Comments Supporting the Proposed Rule

    NMFS received 23 letters that supported, either in whole or in 
part, the adoption of the proposed rule to restrict the size of one of 
two harvested halibut caught by anglers fishing from a charter vessel 
in Area 2C. Of these letters, 18 were from the commercial fishing 
sector, including two commercial fishing associations. Comments in 
support of the proposed rule from the commercial fishing industry 
generally indicated a preference that halibut harvest in the

[[Page 30716]]

charter halibut fishery be reduced to the GHL, but believed the NMFS 
action was a first step towards managing the level of halibut harvest 
in the charter sector. These letters indicated that a long term 
solution is needed to manage the charter vessel sector to the GHL. 
Several letters, including two from the charter industry, indicated 
partial support of the action and that the chosen preferred alternative 
was better than Alternative 2, which would require one of two harvested 
halibut to be at least 45 inches (114.3 cm), 50 inches (127.0 cm), 55 
inches (139.7 cm), or 60 inches (152.4 cm) in head-on length. The 
principle reasons given for supporting the proposed rule were that it 
would accomplish the following:
    (1) Provide a necessary first step in reducing the charter halibut 
harvest to the GHL;
    (2) Be the best choice for lessening the impact on the charter 
industry and associated sport mortality of the halibut resource by 
handling larger halibut;
    (3) Reduce the erosion of the commercial quota by halibut harvested 
in the charter fishery; and
    (4) Improve data collection and enforcement because charter 
operators would be required to keep the entire carcass until fillets 
are offloaded.

Comments Opposing the Proposed Rule

    NMFS received a total of 103 letters opposed to the proposed rule. 
Of these letters, 11 were from the commercial fishing industry, 33 were 
from the charter industry, 54 were from recreational anglers, and 5 
letters were of other origin. Many of the letters from commercial 
fishermen did not explicitly indicate disapproval of the NMFS action. 
These letters indicated that charter fishery harvest should be limited 
to the GHL instead of a level comparable to the IPHC-recommended action 
and requested that NMFS promulgate a rule to maintain charter harvest 
of halibut within the GHL.
    Several letters from the commercial industry indicated that the 
proposed rule did not provide a long-term solution to manage the 
charter fishery to the GHL. Several letters indicated that a one-fish 
bag limit should have been included in the EA/RIR/IRFA because the 
amount of harvest reduction and assumptions associated with bycatch 
mortality are easier to predict with a bag limit than with any size 
limit. Two letters indicated that NMFS should support continued efforts 
by the Council to develop market-based allocation solutions for the 
charter fishery. Two letters indicated the Council should identify and 
NMFS should implement management measures that can be annually adjusted 
to control charter harvest. Several letters from the commercial and 
charter sectors indicated support for the moratorium adopted by the 
Council. One letter from a commercial fisherman indicated he would not 
be satisfied until an IFQ program is implemented for the charter 
fishery.
    The majority of letters from the commercial sector noted the 
substantial investment made by the commercial industry to obtain 
halibut quota shares and how the lack of controls on the charter vessel 
fishery will compromise their investment, negatively impact coastal 
communities, crew, and the processing sector, and reduce the surplus 
for seafood consumers. Other letters noted that localized depletion of 
halibut and other species caused by the guided recreational vessels and 
commercial vessels is a concern that must be controlled. Several 
letters suggested that NMFS needs to manage the fishery to the GHL to 
prevent over harvesting the halibut resource. Two letters indicated 
that NMFS should enhance current data collection methods to include an 
electronic monitoring program. Three letters recommended that NMFS 
increase enforcement effort in the charter fishery. Several commercial 
operators expressed that NMFS should have taken action in Area 3A to 
reduce charter halibut harvest because of confusion associated with the 
accounting of skipper and crew fish in the ADF&G postal survey and 
whether skipper and crew fish were included in the calculation of the 
original GHL. These letters also indicated that NMFS' decision to take 
no action in Area 3A will lead to a GHL overage in 2007; especially if 
anglers substitute Area 2C halibut trips with those in Area 3A. Several 
letters indicated that halibut harvest above the GHL has a negative 
impact on subsistence users, non-guided anglers, and other resource 
users that rely on a healthy halibut stock, and indicated that the 
problem statement should have included these groups. Three letters also 
expressed concerns about increased mortality of demersal shelf rockfish 
(DSR), lingcod, and halibut. These letters indicated that the 
regulation would likely increase discards of these species, which would 
create more allocative concerns, result in local depletion, and 
increase conservation concerns.
    Several letters from the commercial industry supported the 
preferred alternative over Alternative 2 because of concerns associated 
with harvesting and handling large halibut, which may lead to increased 
mortality rates. These letters also supported the requirement to retain 
carcasses because it would improve data quality and enforcement 
efforts.
    Many of the letters from charter operators indicated the proposed 
rule would harm their business because charter trips in Area 2C will be 
less desirable to anglers. The majority of letters indicated that 
charter clients would be disappointed and confused when they learned 
that the daily bag limit for halibut had changed. Several letters 
indicated general support for the Council process and believed NMFS 
should not implement the final action because the Council is currently 
developing long-term management measures for the charter fishery. Three 
letters were received from travel agents that sell charter vessel trips 
in Alaska. These letters all indicated that the proposed rule would 
reduce tourism and disappoint charter clients. One letter indicated 
that they were obligated under Arizona State law to refund trips if 
clients were not satisfied because of the harvest regulation. Twelve 
letters from charter vessel operators indicated that a fishery 
management plan for the halibut fishery should be developed by the 
Council and approved by the Secretary to comply with the Magnuson 
Stevens Fishery Conservation and Management Act.
    Most letters from the charter industry indicated support for the 
NMFS decision to disapprove the IPHC-recommended bag limit. Several 
letters suggested NMFS create slot limits to allow anglers to harvest 
two fish, but maintain the opportunity to harvest two large halibut. 
Eight letters from charter vessel operators and several letters from 
the commercial industry expressed concerns for increased catch-and-
release mortality of halibut and other species. Authors of thirteen 
letters believed the rule would increase the number of halibut caught 
and released, and four letters believed the rule would increase the 
mortality of species other than halibut.
    Most of the letters from recreational anglers were form letters. 
The majority of these letters indicated that the current GHL was not a 
fair allocation for the sport fishing sector for the following reasons:
    (1) The GHL fails to account for recent growth in the charter 
industry and is set too low;
    (2) The sport fishery harvests much less of the exploitable biomass 
than the commercial fishery (including bycatch and wastage) and should 
thus be allowed to increase its allocation;
    (3) The GHL discriminates between guided and non-guided anglers and

[[Page 30717]]

should be the same for both angling groups; and
    (4) The GHL should increase stepwise if the abundance of halibut 
also increases.
    Letters from recreational anglers generally indicated their 
disappointment in a reduction in the amount of halibut they may 
harvest. These anglers provided a description of their angling 
experience and indicated they may not return to Area 2C for halibut 
fishing if the harvest regulation is approved. The majority of letters 
indicated that the halibut harvest by charter anglers should not be 
restricted because the commercial fishery accounts for a large portion 
of the halibut removals, including bycatch and wastage. The letters 
also indicated that the proposed rule should reduce commercial harvest 
and bycatch, that the sport fishery should not be restricted because 
the data used to determine sport harvest for 2006 is preliminary, the 
rule discriminates based on the state of residency, and that the 
proposed rule will limit growth in the charter sector. Twenty-one 
letters indicated that the Council should develop a fishery management 
plan for halibut to protect the halibut resource and fairly allocate 
between the commercial and sport sectors. Many letters indicated that 
NMFS should not reallocate halibut from the sport sector to the 
commercial sector with this action.
    NMFS received 10 comments that could not be categorized as having a 
commercial, charter, or recreational angler perspective. Three of these 
comments were from government agencies. Of the non-government comments, 
two supported the NMFS action, but believed harvest should be reduced 
to the GHL, and five did not support the action because it did not 
reduce harvest to the GHL.
    A detailed response to the comments is provided in the following 
section entitled ``Comments and Responses.''

Comments and Responses

    Of the 477 comments NMFS received on the proposed rule and EA/RIR/
IRFA, 60 were considered unique and are summarized and responded to as 
follows:
    Comment 1: The EA/RIR/IRFA underestimates the expected landed catch 
(and therefore overestimates the reduction in catch) by the sport 
charter sector by using an inappropriate average weight for the 
retained halibut less than 32 inches (81.3 cm). The analysis uses an 
average weight of 9.0 lbs (4.05 kg, net weight) to estimate the landed 
catch under the preferred alternative. The average weight of the 
smaller halibut will be closer to the weight of 32-inch (81.3 cm) 
halibut because anglers will highgrade to keep the largest fish 
possible.
    Response: A considerable amount of highgrading occurred in the 2006 
charter halibut fishery under a two-fish bag limit with no size limits. 
The Area 2C length distribution of halibut 32 inches or under that were 
harvested in the 2006 charter vessel fishery is strongly skewed, 
presumably as a result of highgrading. Although additional highgrading 
would increase the skewness towards the 32-inch (81.3 cm) size limit, 
no information exists to indicate whether or to what degree highgrading 
would increase beyond the level observed in 2006. A substantial portion 
of the 2006 charter halibut harvest consisted of halibut under 29 
inches (73.4 cm) even without size limits imposed on the charter 
fishery. The size distribution of halibut also varies by port, with 
halibut smaller than 32 inches (81.3 cm) halibut composing a large 
portion of the total harvest in some ports. Hence, the analysis assumes 
that anglers highgrade smaller halibut to the greatest extent possible. 
This assumption is believed to be reasonable because very small halibut 
generally are less desirable than larger halibut, and the abundance of 
halibut and amount of time available for fishing is often limited 
(especially for charter vessel anglers who are cruise ship passengers). 
This action also may change fishing behavior such that anglers increase 
their ability or desire to highgrade halibut. However, the harvest 
selection process for anglers in the Area 2C halibut fishery is poorly 
understood and NMFS believes the 9 lb (4.1 kg) average used reflects 
the best available data.
    Comment 2: The proposed rule is a violation of the Halibut Act, 
Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the 
Convention because it changes allocation between the commercial and 
sport sectors without a re-allocation recommendation from the Council.
    Response: This rule does not violate the Halibut Act, MSA, or 
Convention. As discussed in the preamble to this action, the Secretary 
has the general authority and responsibility to carry out the 
Convention and Halibut Act. This includes the authority to promulgate 
regulations without Council consultation. This final rule is necessary 
to address management concerns expressed by the IPHC and NMFS about the 
magnitude of the charter halibut harvest and its impact on the IPHC's 
ability to set the appropriate commercial catch limits that are 
necessary to maintain the sustainability of the halibut stock.
    Comment 3: The EA/RIR/IRFA fails to consider local depletion of 
demersal shelf rockfish assemblage (DSR) and lingcod stocks, which 
results in an incorrect conclusion that the proposed rule will not have 
a significant impact on these species.
    Response: The EA/RIR/IRFA references current management practices 
by ADF&G and NMFS that establish harvest limits for DSR and lingcod. In 
establishing these harvest limits, both agencies rely on scientific 
information and solicit public comment through their respective 
processes, including the Gulf of Alaska Plan Team, State of Alaska 
Board of Fish, Council, and the Federal regulatory process. The 
analysis indicates that an increase in sport harvest of these species 
may lead to increased allocation problems between the sport and 
commercial sectors. However, these allocation problems occur within the 
confines of the management measures established by each government to 
maintain sustainable stocks.
    Comment 4: The sport charter fleet should be required to contribute 
money to the research of the halibut biomass.
    Response: The purpose of this final rule is not to collect fees 
from the charter vessel fishery. However, the State of Alaska (State) 
currently collects fees from charter businesses and recreational 
anglers to support management and research of the halibut biomass. 
Charter businesses and charter vessel operators are required to pay 
business and guide license fees, which are used in part to fund the 
State's charter logbook program. Businesses and guides paid over a 
quarter-million dollars in license fees in 2006. Charter vessel 
operators and clients, as well as unguided anglers, also are required 
to purchase State fishing licenses. The sport fishing license money is 
used by the State to match Federal Aid in Sport Fish Restoration funds 
to pay for creel surveys that estimate fishery statistics for halibut 
and other species such as rockfish and salmon. The State's survey 
information is used by the Council and NMFS to develop management 
policy for the charter halibut fishery.
    Comment 5: The preamble to the proposed rule incorrectly uses ten 
and three year averages to estimate halibut harvest in the charter and 
commercial sectors. The proposed rule should have compared harvest that 
occurred two years prior to the GHL implementation (2003 and 2002), 
with two years under the GHL (2004 and 2005). This would have shown the 
magnitude of the commercial harvest increase when

[[Page 30718]]

compared with the increase of harvest in the charter vessel sector and 
would not have included a partial year under the GHL.
    Response: The years selected in the preamble were used to provide a 
general example of the difference in the proportion of the total amount 
of halibut removals in the commercial and charter sectors, and the 
difference in harvests between the charter and non-charter sport 
fisheries. The preamble to the proposed rule is not an analytical 
document. However, the numbers used in the preamble accurately 
illustrate recent removals in the charter sector, and recent quota 
levels for the commercial IFQ fishery. Using the three most recent 
years provides a more robust average. Moreover, the GHL does not impose 
a harvest restriction on the charter fishery and thus would not likely 
be directly responsible for changes in charter harvest during pre-GHL 
and post-GHL periods. The 10-year average was used to illustrate the 
general long-term ratio of harvest between the non-guided and guided 
fishing sectors; not the commercial fishing sector in comparison with 
the sport fishing sector.
    Comment 6: This action will interfere with the progress of the 
Council's Charter Halibut Stakeholders Committee.
    Response: This action does not change charter management measures 
currently being developed by the Charter Halibut Stakeholder Committee 
(CHSC), nor does it prevent the Council from adopting management 
measures currently being considered by the CHSC. The intent of this 
action is to implement a harvest reduction for the 2007 Area 2C charter 
fishing season. Management options developed by the Council and CHSC to 
reduce halibut harvested in Area 2C could not be implemented in time 
for the 2007 fishing season. However, the Council is considering 
management measures for the Area 2C charter sector that would reduce 
charter vessel harvest of halibut to the Area 2C GHL. If adopted, the 
Council's Area 2C management measures would likely replace this action. 
In addition, the Council and CHSC are developing measures for the long-
term management of the charter and commercial halibut sectors.
    Comment 7: The proposed rule will increase the number of halibut 
harvested that are under 32 inches (81.3 cm) which will reduce the 
number of larger halibut available for the recreational and commercial 
fisheries, and potentially endanger recruitment.
    Response: The final rule is expected to increase the harvest of 
halibut that are 32 inches (81.3 cm) and smaller. Under the previous 
two-fish bag limit, some charter vessel anglers likely would have 
released more halibut that are 32 inches (81.3 cm) or under in favor of 
a larger halibut. However, the number of these halibut that would have 
been released, survived to a large size, and would have been available 
for the commercial and sport fisheries in Area 2C is unknown. To grow 
beyond 32 inches (81.3 cm) in length and be available for the Area 2C 
sport and commercial fisheries, a halibut must survive to an older age 
and reside in Area 2C. Natural mortality, fishing mortality (including 
catch-and- release mortality in the sport and commercial fisheries), 
migration rates, and immigration rates complicate any attempt to 
estimate the probability of a halibut under 32 inches (81.3 cm) being 
caught in Area 2C several years later. Further, the management methods 
used by the IPHC carefully consider age structure in the halibut stock 
to ensure the long-term sustainability of the halibut stock. Hence, the 
EA/RIR/FRFA concludes that this action will not have a significant 
impact on the halibut stock.
    Comment 8: The proposed rule violates Executive Order (E.O.) 12962 
because it reduces the amount of halibut recreational anglers may 
harvest, resulting in a loss of angling opportunity.
    Response: This final rule does not violate 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. 
Although this rule is designed to reduce the poundage of halibut 
harvested in Area 2C by the charter vessel fishery, it maintains the 
opportunity of charter vessel anglers to harvest two halibut per day, 
and has no effect on recreational anglers not fishing from a charter 
vessel.
    In addition, this final rule is promulgated to meet the management 
goals set forth in the Halibut Act and Convention and implemented by 
the Secretary. These management goals include setting annual limits on 
the amount of halibut that may be removed without endangering the long-
term sustainability of the halibut stock, including the achievement of 
maximum sustainable yield for halibut fisheries including commercial 
and subsistence, as well as recreational. This final rule does not 
diminish that productivity or violate E.O. 12962.
    Comment 9: A two-fish bag limit with no size limit should be 
maintained because the 2006 ADF&G mail survey estimates are preliminary 
and thus not likely to be accurate.
    Response: This action is designed to achieve a harvest reduction 
that is comparable to the IPHC-recommended one-fish bag limit. In 
making its recommendation, the IPHC used a preliminary estimate from 
the ADF&G mail survey in conjunction with ADF&G weight data collected 
from the creel survey to predict the amount of halibut harvested in 
2006. The IPHC relies on preliminary estimates from the ADF&G mail 
survey because final mail survey results for the year immediately prior 
to the IPHC's annual meeting in January are typically not available. 
During its January meeting, the IPHC must determine the commercial 
catch limit using the best available information that includes the 
preliminary ADF&G mail survey estimate. Hence, the 2006 mail survey 
numbers were used by the IPHC to set the commercial halibut catch limit 
in 2007. The analysis also uses the mail survey data, as well as 
logbook and creel data to estimate potential impacts from this action. 
These data sources represent the best available scientific information. 
The use of the projected mail survey estimate is consistent with the 
goal of this action, which is to achieve a comparable reduction to the 
IPHC-recommended action.
    Comment 10: The proposed rule should not be adopted because the 
current composition of the Council does not represent recreational 
fishing interests.
    Response: This final rule was not developed by the Council nor does 
it affect membership of the Council or that of its Scientific and 
Statistical Science Committee and Advisory Panel. The final rule was 
initiated in response to a recommendation by the IPHC to reduce the 
harvest of halibut in Area 2C by the charter vessel fishery. In making 
its recommendation, the IPHC Commissioners highlighted their preference 
for the Council to resolve allocation issues between the commercial and 
sport fishing sectors. However, an action could not be approved by the 
Council and promulgated by the Secretary in time for the 2007 fishing 
season. Therefore, consistent with his responsibility under the 
Convention and Halibut Act, the Secretary is taking action to manage 
the halibut resource for 2007. This final rule may be replaced by 
regulations developed by the Council and approved by the Secretary.
    Comment 11: It is unlikely that charter vessel logbook records will 
accurately reflect catch and discards. Reported discards are likely to 
be less

[[Page 30719]]

than those reported under the current two-fish bag limit, because 
charter skippers and anglers will know that discard mortality will 
decrease the amount of catch available to them in the future. An 
alternate method of estimating discards, instead of self-reporting in 
logbooks, will be required. That method could be based on IPHC survey 
of length frequencies, since those data would likely be a minimum 
estimate of the size frequency encountered by anglers.
    Response: The ADF&G resumed mandatory collection of halibut harvest 
data in its charter logbooks in 2006 to gather data on harvest that is 
specific to individual businesses and vessels. Data required to be 
reported in ADF&G charter vessel logbooks include the number of halibut 
retained and released by individual anglers. Additional data collection 
measures implemented by ADF&G include (1) validation of the numbers of 
halibut offloaded by creel survey technicians whenever possible, (2) 
increased logbook inspections by deputized ADF&G staff, (3) increased 
review of submitted logbooks and follow-up calls to charter operators 
to resolve missing or misreported information, and (4) a mail survey of 
a random sample of clients to compare their reported harvest to logbook 
data recorded by operators. The evaluation of logbook data quality is 
ongoing. The ADF&G can also directly or indirectly estimate the numbers 
of released halibut through logbooks, the statewide sport fish mail 
survey, and creel survey interviews. Therefore, alternate methods of 
estimating discards exist; however, uncertainties exist in estimating 
discards by any method, including the use of the IPHC length frequency 
data.
    Comment 12: The proposed rule will confuse anglers that booked 
charter trips that thought the daily bag limit is two-halibut of any 
size.
    Response: Disapproval of the IPHC one-fish bag limit was described 
in the annual management measures for the Pacific halibut fishery, 
which published on March 14, 2007 (72 FR 11792). NMFS indicated in the 
annual management measures that the IPHC-recommended reduced bag limits 
for the charter vessel halibut fishery in Area 2C were rejected in 
favor of alternative restrictions that would be implemented through a 
separate domestic action. The proposed rule for this final action 
published in the Federal Register on April 6, 2007, with a public 
comment period that closed on April 23, 2007 (72 FR 17071). Thus, the 
public was notified about this action as required by law. In addition, 
NMFS published an information bulletin on its website and press release 
notifying the charter industry about the proposed regulation changes. 
Further public outreach will be conducted by NMFS and ADF&G when this 
final rule is published.
    Comment 13: The proposed rule fails to consider the need for 
increased halibut harvest in the charter fishery to accommodate growth.
    Response: Growth in the charter vessel fishery for halibut would be 
at the expense of other resource users, principally the commercial 
fishery. The question of what is the right proportion of the allowable 
halibut harvest to allocate between the commercial and sport fishing 
sectors is a fundamental question that will be answered later with 
Council involvement. The purpose of this action is to prevent further 
defacto reallocation to the charter vessel sector to allow the Council 
time to develop the fundamental resource allocation policies. The 
Council process is appropriate to determine whether and how much growth 
in the charter vessel fishery should be accommodated.
    Comment 14: The proposed rule should discriminate between non-
Alaska residents and Alaska residents by requiring that the harvest 
limit only be applied to non-Alaska residents.
    Response: Federal law prohibits discrimination based on state 
residency. This rule applies to all anglers who harvest halibut on 
charter vessels regardless of their state of residency.
    Comment 15: The language in the proposed rule fails to acknowledge 
that the total Constant Exploitation Yield (CEY) is threatened because 
of the overharvest of halibut by the sport fishery.
    Response: The proposed rule describes the IPHC process in 
determining the total CEY, including a discussion about how it may be 
exceeded. In summary, the IPHC considers removals from all directed 
fisheries, including the sport and subsistence fisheries and removals 
resulting from bycatch and wastage, when setting the commercial harvest 
limit. This process allows an increase of harvest from one removal 
source to be balanced against other sources of removals. For example, 
an increase of halibut harvest in the charter fishery may result in a 
decline in the commercial catch limit. With this method, the IPHC 
attempts to maintain fishery removals within biological conservation 
limits.
    Only halibut bycatch in directed commercial fisheries for other 
species (prohibited species catch limits, (PSC)) and the directed 
commercial fishery for halibut have an allocation that requires the 
fishery to be closed, or IFQ holders to stop fishing, when PSC or IFQ 
limits are reached. The charter halibut fishery is not restricted to an 
annual amount of halibut that when reached closes the fishery. Thus, 
the amount of halibut harvested in the charter fishery increases with 
increases in angling effort on charter vessels. As discussed in the 
preamble to the proposed rule, the IPHC must predict the annual growth 
of charter harvest, bycatch, subsistence, and wastage based on the 
previous year's level. The proposed rule states that ``this method has 
worked well for many years to conserve the halibut-resource, provided 
that the other non-commercial uses of the resource have been relatively 
stable.'' If any of the removal categories grow beyond the IPHC's 
annual prediction, the total CEY may be exceeded, which occurred in 
2006 and may occur again in 2007. Generally, bycatch, wastage, and 
subsistence harvests of halibut have been relatively stable, while 
charter halibut harvest has increased in recent years. To compensate 
for the increase in charter harvest, the IPHC has reduced the 
commercial set line catch limit and recommended a catch reduction in 
the charter sport fishery.
    Comment 16: The problem statement was not properly defined because 
it did not include a statement about protecting resource health by 
managing to the CEY and preventing disruptive impacts to all sectors by 
reducing halibut harvest in the charter sector to the GHL.
    Response: This rule is not designed to manage the halibut fishery 
to either the CEY or GHL. The CEY is a biological conservation 
objective of the IPHC and the GHL is an allocation objective of the 
Council. Those resource management institutions make regulatory 
recommendations as needed to achieve their respective objectives. This 
action is not intended to usurp these functions, and consequently, the 
problem statement did not include the goals of achieving the CEY or 
GHL.
    The problem statement in the preamble to the proposed rule for this 
final action indicates the alternatives in the EA/RIR/IRFA were 
developed to reduce the amount of halibut harvested in the Area 2C 
charter halibut fishery to a comparable level that would have been 
achieved by the IPHC-recommended one-fish bag limit. The problem 
statement also requires that the harvest reduction occur in a manner 
that, when compared to the one-fish bag limit, reduces negative 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. Of the alternatives considered, this action met the 
goals

[[Page 30720]]

described in the problem statement, including protecting resource 
health by meeting the harvest reduction the IPHC indicated was 
necessary for its management and limiting the negative economic impacts 
associated with the IPHC-recommended level of harvest reduction.
    Comment 17: The proposed action should not be implemented until 
NMFS and the Council implement a fishery management plan for Pacific 
halibut.
    Response: A fishery management plan for halibut developed under the 
Magnuson-Stevens Fishery Conservation and Management Act is not 
necessary because the Halibut Act provides sufficient authority to the 
Secretary to implement regulations for the conservation and management 
of the halibut resource.
    Comment 18: NOAA Fisheries should implement regulations in Area 3A 
because the data are not certain as to the actual harvest level and the 
GHL is likely to be exceeded in future years.
    Response: The preamble of the proposed rule for this final action 
provides a detailed discussion about why NMFS decided not to impose 
additional harvest restrictions in Area 3A. In summary, on January 26, 
2007, ADF&G issued an Emergency Order (2-R-3-02-07) for the 2007 
charter halibut season that prohibited the retention of halibut by 
skipper and crew and limited the number of lines that could be fished 
on a charter vessel. The State estimates its action will reduce charter 
harvest by 7.7 to 10.6 percent of the 2006 harvest or 306,000 lb (138.8 
mt) to 421,000 lb (191.0 mt). Assuming the 2007 charter halibut fishery 
is similar to the 2006 fishery, this reduction in charter harvest is 
expected to be at or near the Area 3A GHL. In 2006, the GHL was 
predicted to be exceeded by nine percent, or 297,000 lb (134.7 mt).
    The amount of harvest in the 2006 charter fishery is based on 
preliminary estimates of charter fishery halibut harvests from the 
State. These preliminary estimates have been used historically by the 
IPHC in determining the most recent year's sport harvest and represent 
the best information available. The Council recognizes the potential 
for growth in the charter fishery in Area 3A and currently is 
developing alternatives to allocate halibut between the commercial and 
the charter vessel sport fishery. NMFS supports the Council's continued 
progress in developing long-term management policies for the halibut 
fisheries.
    Comment 19: The proposed rule will reduce the number of charter 
anglers in Area 2C and encourage them to fish in Canada or Area 3A. An 
increase of halibut anglers in Area 3A would exacerbate that area's GHL 
overage.
    Response: Data 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 rule. Likewise, no data exist on the portion of 
clients that would choose to maximize their experience with some other 
type of fishing experience. For example, some anglers may value the 
opportunity to catch a large halibut more than the need to harvest a 
large amount of halibut, or a segment of anglers may value harvesting 
halibut more than the experience of catching and releasing halibut. 
Other than acknowledging these possibilities, as was done in the EA/
RIR/IRFA, NMFS cannot forecast their probability.
    Comment 20: Because halibut that are 32 inches (81.3 cm) or under 
are not included as part of the set-line commercial quota limit, they 
should not be included in the charter vessel sport harvest estimate.
    Response: The annual management measures (72 FR 11792, March 14, 
2007) prohibit the harvest of halibut less than 32 inches (81.3) in the 
commercial set line fishery. These halibut are not counted towards a 
person's IFQ because they are not landed and do not enter commerce. The 
sport fishery does not have a minimum size limit. Thus, halibut that 
are 32 inches (81.3 cm) or under in total length are targeted and 
retained by sport anglers and are not required to be discarded as they 
would be in the commercial fishery. Therefore, it is reasonable to 
include halibut 32 inches (81.3 cm) and under in the charter vessel 
harvest estimate.
    Comment 21: The proposed rule should not be adopted by NMFS until 
the Council develops and approves an allocation solution to the 
commercial and charter vessel halibut fisheries.
    Response: As explained in the preamble to this final action, NMFS 
is taking this action because of concerns by the IPHC that its 
management goals were in danger by the unpredictable growth of halibut 
harvest in the charter fishery. In making its recommendation, the IPHC 
expressed its desire for the Council to manage the harvest of halibut 
in the charter fishery, but believed a harvest reduction was needed for 
the 2007 charter fishing season. A Council action to reduce charter 
halibut harvest could not be implemented for the 2007 fishing season. 
Hence, NMFS is promulgating this regulation in response to the 
recommendation by the IPHC that its management goals were thwarted by 
the magnitude of charter halibut harvest in excess of the GHL. The 
Council is considering harvest reduction measure for Area 2C and 
management measures that would resolve the allocation issues between 
the commercial and charter vessel sectors. Future Council actions to 
manage the charter fishery may replace the regulations in this final 
rule.
    Comment 22: The EA/RIR/IRFA incorrectly states that the preferred 
alternative will have a similar level of discard (catch and release) 
mortality as the current (two fish of any size) regulation. The release 
mortality associated with the proposed rule will be higher than the 
status quo, if for no other reason than the preferred alternative 
requires discard of fish above the 32-inch (81.3 cm) maximum size 
limit. In addition, it is reasonable to expect that anglers will catch 
and release a number of small fish in order to take home the largest 
fish possible under the 32-inch (81.3 cm) size limit.
    Response: The EA/RIR/IRFA discusses the potential impacts of this 
rule on the number of halibut that may die soon after release. Only a 
qualitative discussion was provided in the analysis, however, because 
of limited information about how anglers may respond to changes in the 
traditional two-fish bag limit. All available data were collected under 
the traditional two fish bag limit, and information about size 
distribution of halibut released in the sport fishery was not 
available. The analysis provided a qualitative discussion about the 
relative impact the final rule may have on the number of halibut 
released, including the impact local catch rates may have on the number 
of fish released, the type of charter trip taken (half-day or full-
day), and the amount of catch and release and high grading of fish that 
currently occurs in the fishery.
    Based on differences in the length composition of the charter 
halibut harvest among Area 2C ports, it is reasonable to assume that 
the size composition of discarded fish also varies among ports. For 
Area 2C overall, however, halibut under 32 inches comprised nearly half 
of the charter harvest in 2006. Therefore the analysis assumed that the 
majority of discarded fish were under 32 inches in length because, 
under the traditional two-fish bag limit, anglers were highgrading to 
the maximum extent possible or optimizing the size of harvested halibut 
based on individual preferences. While some larger halibut may be 
released in pursuit of a fish under 32 inches (81.3 cm) 
(``lowgrading'') in areas where halibut under 32 inches (81.3 cm) are 
less common, size data from the 2006 charter fishery indicated that in 
most areas halibut that are 32 inches or under in length would be more 
readily available than larger halibut. Under the

[[Page 30721]]

preferred alternative, many of the smaller fish that would have been 
released in pursuit of larger halibut would be retained, reducing some 
highgrading that occurred under the traditional two-fish bag limit. 
Anglers could continue to highgrade. Therefore, it was assumed that on 
balance, reductions in discard mortality from highgrading would offset 
discard mortality from lowgrading, although NMFS has no data to test 
this assumption.
    In addition, the selection process used by anglers under the each 
of the options is poorly understood. The analysis relies on gross 
assumptions regarding highgrading and angler responses to management. 
Some anglers likely prefer to harvest large fish, while others select a 
halibut based on other attributes such as perceived differences in the 
taste of the fish, the amount of halibut they may transport home, the 
amount of fishing time is limited, the local catch rates, discards, and 
other factors. Thus, a high degree of uncertainty exists on the amount 
of discard that occurred in the fishery in the past and the amount of 
discard that may occur under this rule. The conclusions reached in the 
analysis represent the best qualitative estimate based on assumptions 
regarding highgrading and angler behavior.
    Comment 23: There was no discussion or analysis in the EA/RIR/IRFA 
of the amount of halibut discards. While size composition data on 
discards have not been collected, an analysis using the size 
composition of the landed catch or from IPHC survey data could have 
been used for illustrative purposes to describe the relative 
differences between the alternatives.
    Response: The EA/RIR/IRFA discussed problems associated with 
estimating the amount of discards, including the lack of information 
about the size composition of halibut released in the sport fishery and 
a lack of information about angler preferences concerning the size of 
fish caught. The analysis also provided a qualitative discussion about 
whether discards from this action were likely to increase or decrease 
in comparison to the traditional two-fish bag limit. Data were not 
available for the EA/RIR/IRFA to quantitatively evaluate the magnitude 
of changes in the size composition of halibut released in the sport 
fishery under the final rule. Length data collected in the IPHC survey 
and ADF&G creel survey represent halibut harvested in the charter 
fishery under the traditional two-fish bag limit. Given that anglers 
highgrade the size of halibut harvested under the traditional two-fish 
bag limit, the size composition of released fish is likely smaller than 
harvested halibut. Hence, the IPHC length frequency data may not 
provide a baseline representation of fish released under the 
traditional two fish bag limit. The lack of an accurate baseline from 
which to compare the size frequency is further compounded by unknown 
behavioral responses to the rule. For these reasons, the EA/RIR/IRFA 
did not provide a point estimate for the number of halibut discarded in 
the charter fishery.
    Comment 24: The EA/RIR/IRFA is not adequate because it does not 
contain an analysis for a one-fish bag limit.
    Response: In formulating alternatives for the EA/RIR/IRFA, NMFS 
considered and rejected options that reduced the daily bag limit for 
anglers fishing from a charter vessel. The preamble to the proposed 
rule provides a detailed explanation about why the one-fish bag limit 
was rejected as an alternative for analysis. In summary, a reduced bag 
limit would impose a considerable economic burden on the charter sector 
that could be mitigated by maintaining the traditional two-fish bag 
limit. Charter operators commenting on the IPHC recommended action 
indicated that it was important for their business to maintain a two-
fish bag limit. NMFS rejected an alternative for one-fish bag limit 
because: (1) it likely would not reduce the economic burden on the 
charter industry; and (2) a comparable harvest reduction could be 
achieved with alternatives that maintained a two-fish bag limit in the 
charter fishery.
    Comment 25: Failure to reduce halibut harvest to the GHL will 
result in overfishing of the halibut resource and is thus in violation 
of the Convention and Halibut Act.
    Response: This rule is designed to reduce the charter vessel 
harvest of halibut in Area 2C to a level comparable to the IPHC-
recommended one-fish bag limit. The IPHC recommended a reduction in the 
harvest of halibut by the charter vessel sector to achieve its 
conservation and management goals pursuant to the Halibut Act and 
Convention. The EA/RIR/FRFA concludes that the expected level of 
halibut removals from the charter vessel fishery after this rule is 
implemented will not significantly impact the sustainability of the 
halibut stock. Therefore, a reduction of the Area 2C charter vessel 
halibut harvest to a level comparable to the IPHC-recommended action is 
not likely to result in overfishing of the halibut resource, regardless 
of whether the GHL is achieved or exceeded.
    Comment 26: The final rule introduces management complexity to the 
charter fishery without a reliable catch accounting program.
    Response: The final rule does not require additional data 
collection. ADF&G currently has an extensive data collection program 
for Alaska recreational fisheries including halibut. Because sport 
fishery landings happen over long periods, throughout most hours of the 
day, and at hundreds of access points including private lodges, ADF&G 
uses a variety of assessment methods including on-site creel surveys, 
and offsite methods including logbooks and postal surveys. In 2006, the 
ADF&G resumed collection of halibut harvest data in charter logbooks to 
gather data on halibut harvest specific to individual businesses and 
vessels. In addition, several measures were implemented to ensure 
accurate reporting of halibut harvest. These measures included (1) 
requiring reporting of fishing license numbers and numbers of halibut 
kept and released by individual anglers, (2) validation of the numbers 
of halibut offloaded by creel survey technicians whenever possible, (3) 
increased logbook inspections by deputized ADF&G staff, (4) increased 
review of submitted logbooks and follow-up calls to charter operators 
to resolve missing or misreported information, and (5) a mail survey of 
a random sample of clients to compare their reported harvest to logbook 
data recorded by operators. The evaluation of logbook data quality is 
ongoing.
    Comment 27: The EA/RIR/IRFA does not analyze the impact the final 
rule will have on crews, processors, and coastal communities.
    Response: The EA/RIR/IRFA provides an analysis of the potential 
socioeconomic impacts on commercial fishermen, charter guides, their 
customers, and other parties. This information is summarized in table 
22 of the analysis.
    Comment 28: The problem statement fails to identify impacts on 
commercial fishermen, subsistence users, non-guided sport anglers, the 
non-angler public, and coastal communities that result from the charter 
sector's harvest of halibut in excess of the GHL.
    Response: The goal of this action is reduce halibut harvest in the 
Area 2C charter fishery to a level that is comparable to the IPHC-
recommended action while lessening the negative impacts of that action 
on the charter industry, its sport fishing clients, the coastal 
communities that serve as home ports for this fishery, and on fisheries 
for other species. This goal does not include lessening the impact on 
subsistence users, non-guided sport anglers, or commercial fishermen,

[[Page 30722]]

although that may be an indirect effect. This rule is not designed to 
change current regulations that govern the subsistence fishery or non-
guided sport fishery, including personal bag and harvest limits. 
Commercial fishermen were not included in the problem statement because 
this action does not change the regulations associated with the 
commercial fishery nor does it establish an annual allocation of 
halibut for the commercial and sport fisheries. While a harvest 
reduction in the charter sport fishery may benefit the commercial 
fishery in the future, this rule is intended to meet the management 
goals of the IPHC, and in doing so, the charter sport fishery is the 
entity directly regulated by this final rule.
    Comment 29: The creel survey, postal survey, and logbook data 
collected by ADF&G and used in the EA/RIR/IRFA do not accurately 
estimate halibut removals or the average weight of halibut harvested in 
the charter fishery.
    Response: The EA/RIR/IRFA for 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 all 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 30: The preferred alternative will not result in a level of 
savings that is comparable to the IPHC-recommended action because the 
second fish harvested by most anglers is not 32 inches (81.3 cm).
    Response: The 32-inch (81.3 cm) maximum size limit proposed in the 
final action applies to persons who harvest two halibut regardless of 
the order in which those fish are caught. If a person harvests only one 
halibut, it may be of any size. Thus, a person may choose whether the 
first or second halibut harvested is 32 inches (81.3 cm) or less.
    The reduction in guided sport harvests described in the EA/RIR/IRFA 
was determined by multiplying the proportion of halibut taken as a 
second fish by the proportion of harvest weight associated with halibut 
that would have been under the 32-inch (81.3 cm) size restriction in 
this final rule. The analysis did not predict the probability of 
harvesting one or two fish and instead assumed persons would maximize 
the size of their first halibut and harvest the smaller 32-inch (81.3 
cm) halibut as their second fish. Using this assumption, the analysis 
shows that approximately 518,000 lb (233,100 kg) of halibut would not 
be harvested in the Area 2C charter vessel fishery under this rule.
    Comment 31: The weight estimates for the Area 2C charter fishery 
are not accurate and should not be used in the EA/RIR/IRFA because they 
do not represent a random sample of harvested halibut.
    Response: See response to comment 29.
    Comment 32: The proposed rule is misleading because it insinuates 
growth in the charter vessel sector without providing supporting 
information.
    Response: The preamble of the proposed rule on page 1073 under the 
heading ``Recent Harvests of Halibut in Areas 3A and 2C'' states: `` In 
Area 2C, based on ADF&G sport fishing survey data, the charter vessel 
harvest in 2003 was one percent under the GHL, but in 2004 and 2005, it 
was 22 percent and 36 percent over the GHL, respectively. In 2006, 
based on sport fishing survey data [,] the GHL for Area 2C was 
projected to be exceeded by 42 percent, or 596,000 lb (270.3 mt).'' The 
preamble does not discuss the average annual increase of charter 
harvest since 1995. However, information that is provided in the 
background section of the EA/RIR/IRFA shows that the guided sport 
harvest of halibut in Area 2C has increased from approximately 0.986 
million lb (443,700 kg) in 1995 to 2.028 million lbs (912,600 kg) in 
2007. In addition to increased harvests in the charter fishery for 
halibut, the number of trips, businesses, vessels, and the number of 
second trips per day has increased since 2004.
    Comment 33: The description of the fishery CEY in the preamble to 
the proposed rule as it relates to the commercial catch limit is 
incorrect because the commercial catch limit is not equal to the 
fishery CEY and bycatch and wastage are commercial removals.
    Response: The preamble to the proposed rule states that the IPHC 
subtracts estimates of all non-commercial removals (sport, subsistence, 
bycatch, and wastage) from the total CEY. The remaining CEY, after 
removals are subtracted, is the maximum catch or ``fishery CEY'' for an 
area's directed commercial fixed gear fishery. The description in the 
preamble is not accurate because while the commercial catch limit for 
the fixed gear fishery may be set below the fishery CEY, it may exceed 
the fishery CEY. IPHC staff recommendations are based on estimates for 
the fishery CEY, but may be higher or lower depending on a number of 
biological, statistical, and policy considerations. Similarly, the IPHC 
commissioners final quota decisions for the commercial fishery may be 
higher or lower than the fishery CEY.
    In addition, the description in the preamble of the proposed rule 
does not accurately indicate that bycatch and wastage are non-
commercial removals. These removal categories are a result of 
commercial fisheries operating in Convention waters.
    Comment 34: The description of the relationship between the total 
CEY and halibut removals in the preamble to the proposed rule is not 
correct. The preamble incorrectly states that: ``As conservation of the 
halibut resource is the overarching goal of the IPHC, it attempts to 
include all sources of fishing mortality of halibut within the total 
CEY.'' The preamble is not correct because the IPHC accounts for 
commercial wastage and bycatch of halibut 32 inches (81.3 cm) or 
smaller in the exploitation rate, which is applied before the total CEY 
is calculated.
    Response: NMFS agrees that halibut under 32 inches (81.3 cm) caught 
as bycatch and wastage are accounted for in the exploitation rate that 
is used to determine the total CEY. On an annual basis, the IPHC 
deducts projected halibut removals resulting from bycatch, wastage, 
sport fishing, and subsistence from the total CEY. The total CEY is the 
product of an area-specific harvest rate and the exploitable 
(recruited) biomass. Only the bycatch and wastage of halibut 32 inches 
(81.3 cm) or greater are deducted from the total CEY.
    Comment 35: The proposed rule should not be adopted because it will 
not achieve the GHL or result in a long-term solution to the allocation 
issues between the commercial sector and charter halibut sector.
    Response: The purpose and need for this final rule is to reduce 
halibut harvest in the charter vessel sector in Area 2C to levels that 
are comparable to the IPHC-recommended one-fish bag limit. Based on the 
2006 harvest level for the charter vessel sector in Area 2C, the IPHC-
recommended action was determined to result in a reduction between 
397,000 lb (180.1 mt) and 432,000 lb (195.9 mt). This level of 
reduction would not reduce harvest to the GHL, which was exceeded by 
approximately 596,000 lb (270.3 mt) in 2006. Management measures 
designed to achieve the GHL and resolve long-term allocation issues are 
being

[[Page 30723]]

developed currently by the Council. NMFS supports the Council's 
continued efforts to develop a long-term solution to the allocation 
issues between the commercial and charter vessel sectors.
    Comment 36: The proposed rule is a misuse of the GHL because 
downward adjustments to the GHLs are only to be taken when there is a 
decline in Pacific halibut abundance. The GHL should stair-step with 
increases in halibut abundance.
    Response: This rule was not designed to change either the 2007 GHL 
published in the Federal Register (72 FR 12771, March 19, 2007) 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.
    Comment 37: The proposed rule discriminates between Alaska resident 
and non-Alaska resident anglers because a large portion of anglers 
fishing from a charter vessel in Area 2C are not Alaska residents. 
Discriminating between residents of different states violates the 
Halibut Act Section 773c and the Magnuson-Stevens Act National Standard 
4.
    Response: This final rule does not discriminate between U.S. 
citizens based on their state of residence because the regulations 
apply equally to Alaska residents and non-Alaska residents who harvest 
halibut from a charter vessel in Area 2C. This action is consistent 
with the Halibut Act, based upon rights and obligations in existing 
Federal law, and reasonably calculated to promote conservation.
    Comment 38: The proposed regulation is in violation of the Halibut 
Act and Convention because it treats recreational halibut anglers 
fishing from a charter vessel differently than halibut anglers not 
fishing from a charter vessel.
    Response: The Halibut Act and Convention does not prevent the 
Secretary from tailoring a management action so that it addresses the 
concern that prompted action in a reasonable manner. This management 
action was designed to address the current allocation problem between 
the halibut charter fishery and the commercial fishery and does not 
directly address other user groups, i.e., non-guided anglers and 
subsistence users. The reason for this action is clearly indicated in 
the preamble to the proposed and final rules. Therefore, this rule is 
consistent with the Halibut Act and Convention.
    Comment 39: The EA/RIR/IRFA incorrectly concludes that impacts from 
the final action on groundfish stocks, notably the Demersal Shelf 
Rockfish Assemblage (DSR) and lingcod, will not be significant. The 
proposed action will increase the mortality on species other than 
halibut because anglers will catch these species while targeting 
halibut.
    Response: The EA/RIR/IRFA indicated that this action is not 
expected to significantly increase the mortality of DSR and lingcod 
over that which would have been experienced under the traditional two-
fish bag limit for halibut. Moreover, the EA/RIR/IRFA indicates that 
these groundfish stocks are managed by the State of Alaska and Federal 
governments using biological benchmarks that prompt agency response to 
constrain harvest to maintain sustainable stocks.
    Comment 40: The EA/RIR/IRFA fails to note that the preliminary 
catch estimate for DSR harvested in the charter fishery that is 
provided in the analysis has been updated by ADF&G.
    Response: The EA/RIR/IRFA used a preliminary estimate in the 
December 2006 Stock Assessment and Fishery Evaluation Report of 64 mt 
of directed harvest and 7 mt of discard mortality in the Area 2C sport 
fishery. In January 2007 ADF&G updated its discard estimate for the 
sport fishery from about 7 mt to 9 mt. The EA/RIR/IRFA has been 
corrected to reflect the ADF&G correction for DSR harvest in the sport 
fishery.
    Comment 41: The EA/RIR/IRFA incorrectly states that overall lingcod 
harvest has been stable for the sport fishery in Area 2C.
    Response: The EA/RIR/IRFA states that lingcod harvests in recent 
years have remained stable under strict regulations on the sport 
fishery imposed by the State. Table 4 in the draft EA/RIR/IRFA did not 
include harvest estimates for 2005. Table 4 has been updated in the EA/
RIR/FRFA to show that 16,281 lingcod were harvested in 2005. Inclusion 
of the 2005 lingcod harvest data show that lingcod harvest in the sport 
fishery has increased since 2002.
    Comment 42: The EA/RIR/IRFA did not analyze a sufficient range of 
alternatives, including length limits, slot limits, or boat limit on 
the number of halibut harvested.
    Response: The EA/RIR/IRFA analyzed a range of reasonable 
alternatives that would achieve the purpose and need of the action in 
this final rule. As stated in the preamble to the proposed rule, the 
purpose and need for this action is to reduce harvest in the charter 
vessel halibut fishery in Area 2C to level that is comparable to the 
IPHC-recommended one-fish bag limit, but in a manner that produces 
smaller adverse impacts on the charter fishery, its sport fishing 
clients, the coastal communities that serve as home ports for this 
fishery, and on fisheries for other species. The alternatives 
considered provide a range tailored to the purpose and need for this 
final action, which focused on maintaining the opportunity for a sport 
angler to harvest two halibut per day. The alternatives also provide a 
wide range of limits on the size of halibut harvested, including length 
limits that span the distribution of halibut currently caught in the 
sport fishery.
    Comment 43: The retention requirement associated with the proposed 
rule will create pollution problems at the dock where charter operators 
offload fish and clients. It will also increase the burden on charter 
operators because of an increase in the amount of time to properly 
dispose of carcasses.
    Response: This rule would require charter operators to retain 
halibut carcasses intact onboard the charter vessel until fillets are 
offloaded. This regulation will likely increase the number of carcasses 
brought back to the dock in some ports and may thus increase the burden 
on ports and charter operations to dispose of carcasses. The current 
carcass disposal practices by charter operators is largely unknown. 
Anecdotal information suggests that some ports require charter 
operators to properly dispose of carcasses on land or at sea. In 
addition, it may be common practice for charter operators to bring 
whole halibut back to ports that do not have a port offal policy. The 
EA/RIR/IRFA concludes that the costs associated with carcass disposal 
may be placed on charter operators if discard is prohibited by the port 
authority or such casts may be spread more widely if the port authority 
provides discard services.
    Comment 44: The proposed action will increase the harvest of large 
female halibut because anglers will attempt to maximize the size of one 
of their two halibut. An increase in the harvest of halibut that have a 
higher fecundity will endanger the halibut stock.
    Response: The EA/RIR/IRFA considers the IPHC catch accounting and 
stock assessment process and concludes, based on the IPHC management 
measures, that the final action would not have a significant impact on 
the halibut stock.
    The comment presumes that harvesting large female halibut will 
substantially decrease egg production and the resultant abundance of 
juvenile halibut. In 1999, the IPHC reviewed options for a maximum size 
limit of 60 inches (150 cm) in the commercial

[[Page 30724]]

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 show even smaller production benefits given the 
harvest attained by the sport fishery is substantially smaller than the 
level of commercial harvest and this action only applies to Area 2C. 
The halibut stock is managed as a single population throughout its 
entire range.
    Comment 45: The proposed action does not address the potential for 
the near-shore depletion of halibut.
    Response: The best scientific information available is not clear 
whether nearshore depletions exists and, if so, about the causes, 
magnitude, and geographical distribution of nearshore depletion of 
halibut. 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 harvest 
philosophy protects against overharvest and spreads fishing effort over 
the entire range for halibut to prevent regional depletion. Small scale 
local depletion is not expected to have a significant biological effect 
on the resource as a whole. Egg and larval drift and subsequent 
migration by young halibut cause significant mixing within the 
population. Ultimately, counter migration and local movement tend to 
fill in areas with low halibut density, although continued high 
exploitation may maintain or cause small, but temporary, localized 
depletions. However, information about local biomass, immigration and 
emigration rates, seasonal changes, and the relationship of these 
factors with environmental characteristics are not available on a 
geographical resolution that would provide information about small 
areas that may experience local depletion in Area 2C.
    Comment 46: The EA/RIR/IRFA did not discuss enforcement and data 
collection issues associated with this final action.
    Response: The RIR analysis provides a detailed discussion about 
enforcement issues associated with this final action. The analysis 
indicates that enforcement of this action would require on-the-water or 
dockside counting and measurement of harvested halibut by enforcement 
officers. For these reasons, enforcement of the bag and size limit 
would require regular visits by enforcement officers to areas where 
halibut harvested on charter vessels are landed. These include remote 
areas such as lodges as well as urbanized areas such as Sitka, 
Ketchikan, and Juneau. No reporting requirements are associated with 
this action.
    Comment 47: The final regulation will be difficult to enforce in 
situations with multiple anglers because enforcement cannot attribute 
individual halibut harvested on a charter vessel to a specific person.
    Response: Determining the number of halibut harvested by a person 
fishing from a charter vessel is difficult because halibut may be 
distributed among anglers, resulting in more successful anglers 
harvesting more than two halibut to maximize the collective daily bag 
limit for licensed anglers onboard the charter vessel. This practice is 
often referred to as a ``boat limit'' and is not legal because anglers 
are harvesting more halibut than their bag limit. The RIR analysis 
discusses this issue and indicates that these situations require NOAA 
Office of Law Enforcement (OLE) or the U.S. Coast Guard to investigate 
allegations of bag limit violations through interviews, direct 
observation of fishing or other techniques. Enforcing the two-fish bag 
limit in this rule will be no more difficult than enforcing the 
previous two-fish bag limit.
    Comment 48: The proposed rule should not be adopted because the 
minimum size limit and associated harvest reduction in this final 
action will negatively impact the charter industry, including non-
charter businesses that rely on revenue generated from the charter 
industry.
    Response: An important objective of this action is to reduce the 
Area 2C guided sport halibut harvest to a level comparable to the IPHC-
recommended action in a manner that has less adverse impact than the 
IPHC-recommended one-fish bag limit would have had on the charter 
fishery, its sport fishing clients, the coastal communities that serve 
as home ports for the charter fishery, and on fisheries for other 
species. The RIR/IRFA provides a detailed discussion on the potential 
economic impacts of this action. In summary, this rule is expected to 
reduce the charter vessel harvest of halibut, but may also reduce short 
run profit levels or create short run losses for operators when 
compared with the previous two-fish bag limit. The charter industry may 
lose revenue if the number of clients declines as a result of the 
regulation. Charter operators also may incur increased costs associated 
with disposing of halibut carcasses, due to the requirement of 
retaining carcasses until fillets are offloaded from the charter 
vessel. Guides may pass carcass disposal costs to their clients, 
depending on market conditions.
    In selecting a preferred alternative, NMFS considered the economic 
impacts of all alternatives in the RIR/IRFA. Three alternatives 
resulted in harvest reduction that was comparable to the IPHC-
recommended action: (1) a minimum size limit of 45 inches (114.3 cm) on 
one of two harvested halibut; (2) the action in this final rule; and 
(3) a maximum size limit of 35 inches (88.9 cm) on one of two harvested 
halibut. The economic impacts from alternative (1) were expected to be 
greater than the action in alternative (2) because halibut greater than 
45 inches (114.3 cm) are not abundant in some geographical areas. A 
maximum size limit of 35 inch (88.9 cm) on one of two harvested halibut 
also resulted in the appropriate level of harvest reduction. However, 
the difference between the 32 inch and 35 inch (88.9 cm) maximum size 
limit is relatively small and subject to statistical confidence ranges 
of unknown size and therefore did not justify changing the preferred 
alternative. Thus, this final rule achieves the stated objectives for 
the action, while simultaneously recognizing potential adverse economic 
impacts that may accrue to directly affected small entities and taking 
all practicable steps to reduce impacts.
    Comment 49: The proposed rule should impose restrictions on the 
commercial fishing sector, including reducing commercial bycatch levels 
and the commercial set-line quota.
    Response: This rule is not designed to impose further restrictions 
on commercial fisheries that take halibut. The commercial fishery for 
halibut and the commercial fishery for groundfish that take halibut as 
bycatch to the harvest of other species are strictly limited to a 
specified amount of halibut mortality. Unlike the charter vessel 
fishery for halibut, these commercial fisheries are closed when their 
limits are reached.
    Comment 50: The IPHC-recommended action for the Area 2C and Area 3A 
charter fishery should have been approved by the Secretary of State in 
concurrence with the Secretary.
    Response: A detailed explanation of the reasons for disapproval of 
the IPHC-recommended one-fish bag limit in the preamble to the proposed 
rule (72 FR 17071, April 6, 2007) and the annual management measures 
for the halibut fishery (72 FR 11792, March 14, 2007). In brief, the 
IPHC-recommended action was disapproved because control of the charter 
vessel harvests of halibut is more appropriately done by domestic 
agencies and could be achieved by a combination of ADF&G and NMFS 
regulatory actions.

[[Page 30725]]

    Comment 51: This final action will not address harvest by ``self-
guided'' anglers that are provided a vessel and fishing knowledge by a 
fishing operation, but do not have a hired operator.
    Response: This final rule will apply only to anglers fishing from a 
charter vessel. A charter vessel is defined at 50 CFR 300.61 as a 
vessel used for hire in sport fishing for halibut, but not including a 
vessel without a hired operator. Self-guided trips do not have a hired 
operator and are thus not subject this final rule. The harvest of 
halibut by independent anglers has been relatively stable in recent 
years. It has not demonstrated the growth rates of the charter vessel 
sector. Therefore, self-guided anglers were not considered part of the 
problem addressed by this rule.
    Comment 52: The EA/RIR/IRFA indicates that DSR harvest could be 
managed under the overfishing level (OFL) even if harvest exceeded the 
allowable biological catch (ABC).
    Response: The EA/RIR/IRFA does not imply that the DSR stocks should 
be managed to OFL, in fact, it states that removals of DSR because of 
this rule would likely not exceed the ABC or OFL. The purpose of an EA 
is to determine the potential impacts the alternatives may have on the 
human environment and if those impact are significant. The EA/RIR/IRFA 
indicates that in 2006, DSR stocks were well under their harvest and 
biological benchmarks for the sport and commercial fisheries. The 
biological benchmarks are the ABC and the OFL. The ABC is an annual 
sustainable target harvest (or range of harvests) for a stock complex, 
determined by the Council's Plan Team and the Scientific and 
Statistical Committee during the assessment process. It is derived from 
the status and dynamics of the stock, environmental conditions, and 
other ecological factors, given the prevailing technological 
characteristics of the fishery. The target reference point is set below 
the limit reference point for overfishing and is precautionary. The OFL 
is a limit reference point set annually for a stock or stock complex 
during the assessment process. Overfishing occurs whenever a stock or 
stock complex is subjected to a rate or level of fishing mortality that 
jeopardizes the capacity of a stock or stock complex to produce maximum 
sustained yield (MSY) on a continuing basis. Operationally, overfishing 
occurs when the harvest exceeds the OFL. Thus, the OFL is a valid 
biological reference point indicating that the stock cannot maintain 
long-term sustainability without a reduction in harvest.
    Comment 53: The five-percent discard mortality estimate in the EA/
RIR/IRFA does not account for halibut that were caught and released 
multiple times.
    Response: The discard estimate in Appendix A of the EA/RIR/FRFA is 
based on a survey of the scientific literature about discard mortality 
rates in the charter fishery, harvest data from the Area 2C, and 
anecdotal information about the prevalence of circle hooks in the 
charter fishery. This information in the EA/RIR/IRFA is based on the 
best available scientific information. Data is not available that would 
provide a reliable estimate about the number of times a halibut is 
caught in the halibut fishery and the amount of time between capture. .
    Comment 54: In calculating the estimated harvest reduction, the EA/
RIR/IRFA inappropriately uses the average weight of halibut harvested 
in the recreational fishery in 2006 rather than an average weight 
calculated using multiple years.
    Response: The principle goal of this rule is to achieve a harvest 
reduction that is comparable to the IPHC-recommended action. In making 
its recommendation, the IPHC used the average weight of halibut 
harvested in the charter fishery in 2006 to predict the level of 
harvest that may occur in 2007. Thus, the EA/RIR/IRFA used the same 
weight measurement as used by the IPHC to predict removals in the sport 
fishery. Use of the 2006 average weight is consistent with the goal of 
the analysis.
    Comment 55: The final rule should require the use of circle hooks 
on halibut charter vessels because this hook type has been shown in the 
scientific literature to reduce the mortality of discarded fish.
    Response: NMFS considered requiring the use of circle hooks in the 
halibut charter vessel fishery for halibut. A circle hook requirement 
was considered not practical for several reasons: (1) NMFS has the 
authority to regulate the methods used to harvest halibut but not other 
species commonly caught on a charter vessel; (2) the requirement would 
apply only to halibut because it would be impossible to determine 
whether a person was targeting halibut or a different species (e.g., 
lingcod, shark, or rockfish); and (3) halibut that would ordinarily be 
harvested using non-circle hook gear while targeting other species 
would need to be released. Hence, this may increase the discard 
mortality of halibut. In addition, anecdotal evidence described in the 
EA/RIR/IRFA suggests that the use of circle hooks is already prevalent 
in the charter fishery. In an effort to improve its discard morality 
estimate, ADF&G will be collecting information about the prevalence of 
circle hook use in the 2007 charter fishery.
    Comment 56: The proposed rule should provide notice to the public 
that NMFS may annually adjust harvest control measures to prevent 
charter harvest from exceeding the GHL.
    Response: This rule is not designed to manage the charter vessel 
fishery halibut in Area 2C to its GHL on an annual basis. NMFS believes 
it is important that management measures for the charter halibut 
fishery be developed by the Council. This final rule was developed by 
NMFS independent of the Council because management measures developed 
by the Council to reduce harvest in the charter vessel halibut fishery 
could not be implemented in time for the 2007 fishing season. NMFS does 
not anticipate that this final rule would be adjusted on an annual 
basis.
    Comment 57: The proposed rule should not be implemented because 
ADF&G regulations prohibiting skipper and crew fish in Area 2C have not 
had time to reduce harvest.
    Response: The prohibition on skipper and crew fishing in Area 2C 
was first implemented in 2006. This measure resulted in a harvest 
reduction estimated to be approximately 84,000 lb (381 mt), which 
reduced the amount that the GHL was exceeded from 47 percent to 42 
percent. The same level of reduction is expected for the 2007 charter 
fishery. Thus, the prohibition in Area 2C of skipper and crew fishing 
on charter vessels was not considered sufficient to control charter 
vessel harvest of halibut in 2007 to the level recommended by the IPHC.
    Comment 58: The proposed rule is arbitrary and capricious because 
the Secretary must have a recommendation from the Council to promulgate 
a rule that determines an allocation for a sector. The Council's policy 
is that harvest of halibut by the charter vessel sector may not exceed 
the GHL. The proposed rule selected a new allocation for the charter 
vessel fishery for halibut without Council input or technical and 
public review and is thus in violation of Federal law.
    Response: See response to comment 2.
    Comment 59: The EA/RIR/IRFA does not discuss the management history 
of the GHL, including the Council intent to trigger management measures 
when exceeded.
    Response: The EA/RIR/IRFA does provide a detailed discussion about 
the

[[Page 30726]]

management history of the GHL on page 3.
    Comment 60: The proposed rule fails to mention the economic effect 
on the commercial industry when halibut in excess of the GHL is 
harvested by the charter vessel sector.
    Response: This action is not designed to reduce halibut harvest in 
the charter sector to the GHL. The purpose of this action is to reduce 
the harvest of halibut in the charter vessel sector to a level that is 
comparable to the IPHC-recommended action. The impacts of that action 
was analyzed and the economic impacts of exceeding the GHL was not 
because it was not relevant to this rulemaking.

Changes From the Proposed Rule

    No changes are made in this final rule from the proposed rule.

Classification

    This final rule does not require recordkeeping or reporting 
requirements, or duplicate, overlap, or conflict with any Federal 
rules. 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 Secretary's authority to implement allocation 
measures for the management of the halibut fishery.
    Included in this final rule is a 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 analysis completed in support of this action. A 
copy of the FRFA is available from the NMFS Alaska Region Office (see 
ADDRESSES). The preamble of the proposed rule for this action includes 
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 as 
well as the objectives and legal basis for the action are contained in 
the preamble to this final 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, the majority 
of comments from the charter industry that did not support the action 
indicated that the action would cause economic hardship on the charter 
vessel industry. These comments indicated that the action would result 
in a reduction of revenue (reduced clients) for Area 2C charter 
operators and businesses that rely on the charter industry. Comments 
received from the commercial sector generally indicated that halibut 
harvest above the GHL would reduce the amount of halibut available to 
the commercial industry and this reduction would cause economic 
hardship for IFQ quota holders, their crew, seafood consumers, 
processors, and the communities that rely on the commercial fishing 
industry. For detailed summary of the comments received, refer to the 
section of this final rule 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 final rule will apply is provided in the FRFA (SEE ADDRESSES) and 
the IRFA summary contained in the Classification section of the 
proposed rule for this action (72 FR 17071, April 6, 2007) and is not 
repeated here.

Steps Taken to Minimize Economic Impacts on Small Entities

    This final rule limits the harvest of halibut by sport anglers 
fishing from a charter vessel in Area 2C to a daily limit of two 
halibut, except one halibut shall not be larger than 32 inches (81 cm) 
as measured from the head to the middle of the caudal fin. This final 
rule is expected to achieve the level of harvest reduction needed by 
the IPHC to meet its management goals while reducing potential adverse 
impacts on the charter fishery, its sport fishing clients, the coastal 
communities that serve as home ports for this fishery, and on fisheries 
for other species. This final rule is expected to reduce the halibut 
harvest in the Area 2C charter fishery by approximately 518,000 lb 
(235.0 mt), which is comparable to a harvest reduction of between 
397,000 lb (180.1 mt) and 432,000 lb (195.9 mt) that is associated with 
the IPHC-recommended action. This final rule also requires charter 
vessel operators to retain intact carcasses of halibut until all 
fillets are offloaded from the charter vessel. The potential economic 
impacts of these measures are described in detail in the IRFA and the 
IRFA summary contained in the Classification section of the proposed 
rule.
    In summary, this final rule will have different effects on the 
charter and commercial sectors, and persons relying on those 
industries. This regulation is expected to reduce the overall harvests 
in the charter fishery, and may reduce growth of the charter sector. In 
the short run, the charter industry may experience a reduction in 
revenues and profit levels due to a reduction in the demand for charter 
services, although the extent of this outcome is unknown. In the medium 
to long term, charter businesses are likely to exit the industry, so 
the prices and profits of the remaining operations may tend to recover 
towards previous levels, although the equilibrium level cannot be 
estimated at present. Charter operations may incur costs if they are 
required by port authorities to change current disposal methods for 
halibut offal. The extent of these costs are unknown. In some 
situations, the costs may be borne by the charter operator and in 
others the cost may be distributed by the port authority. This 
regulation will also impose a burden on charter vessel operators to 
measure some halibut before landing.
    While not directly regulated by this action, the commercial 
industry may realize positive economic benefit from this action. For 
the commercial industry, this action is expected to reduce the amount 
of halibut harvested by the charter sector, which may increase future 
commercial quota levels and associated revenues generated from the 
quota. An increase in revenue in the commercial fishery also may 
increase consumer surplus for seafood consumers, and have a positive 
economic impact on persons and communities that are relatively more 
involved with the commercial sector than charter sector.
    This action incorporates several provisions specifically intended 
to reduce the potential economic and operational burden on small 
entities, relative to the other alternatives considered. Other 
alternatives considered for this action that would have resulted in a 
comparable reduction to the IPHC-recommended action include a 
regulation that would allow anglers to harvest two halibut if one 
halibut was greater than 45 inches (114.3 cm) in head-on length. This 
provision was rejected for two primary reasons: (1) operators may be 
required to incur physical risk associated with measuring a large 
halibut; (2) some locations in Southeast Alaska may have a small 
abundance of larger fish that would result in the regulation 
effectively being a one-fish bag limit. Another alternative that would 
have met the harvest reduction goal is a regulation that would have 
allowed anglers to harvest two halibut, except one must be smaller than 
35 inches (88.9 cm), in head-on length. This alternative was rejected 
for the reasons

[[Page 30727]]

explained in the preamble to this final rule. NMFS also considered and 
rejected a one-fish bag limit for inclusion in the EA/RIR/IRFA. 
However, for the reasons explained in the preamble to the proposed 
rule, this option was not considered reasonable because it would defeat 
part of the purpose of this action to reduce economic impacts on the 
charter vessel and related businesses.
    The no action alternative would have no direct impact on small 
entities. Under this alternative, current regulations for the charter 
sport fishery would not be changed. This would not meet the objectives 
of this action which were to achieve a harvest reduction that is 
comparable to the one-fish bag limit recommended for Area 2C.
    For the previous described reasons, this final rule meets the 
objectives of this action while recognizing the potential adverse 
economic impacts that may accrue to directly regulated small entities, 
and taking all practical means to limit these impacts. NMFS is not 
aware of any alternatives in addition to those considered for this 
action that would practicably achieve a harvest reduction comparable to 
the IPHC-recommended action while limiting the potential negative 
economic impacts on the charter industry, its sport fishing clients, 
and coastal communities that serve as home ports for this fishery, and 
on fisheries for other species.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 state 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 will explain the actions a small entity is 
required to take to comply with the rule or group of rules.
    NMFS will post a small entity compliance guide on the Internet at 
https://www.fakr.noaa.gov and provide the compliance guide to sport 
anglers through ADF&G. The guide and this final rule will be available 
upon request (see ADDRESSES).
    This final rule is effective on filing with the Office of the 
Federal Register. The 30-day delayed effectiveness period required by 
the Administrative Procedure Act, if applied to this final rule, would 
substantially reduce it ability to fulfill its conservation and 
management objectives. These objectives are NOAA Fisheries' attempt to 
fulfill its international treaty obligations regarding the management 
of Pacific halibut. This action is intended to achieve a reduction in 
Area 2C charter halibut harvest that is comparable to the reduction 
that would have resulted from the bag limit reduction recommended by 
the IPHC, the international body authorized to make recommendations to 
the domestic parties (United States and Canada) of the Convention. 
Estimates of halibut poundage reduction in the Area 2C charter vessel 
fishery were based on an assumption that this final rule would be 
effective for the full charter fishing season of June, July, and 
August.
    Furthermore, the determination by the Secretaries of State and 
Commerce to implement these management measures by domestic regulations 
did not occur until March 1, 2007. NOAA Fisheries published a proposed 
rule on April 6, 2007, with a public comment period that closed on 
April 23, 2007. NOAA Fisheries received a large number of detailed 
comments from the public representing divergent points of view. The 
need to provide meaningful analysis and responses to these comments 
prevented NOAA Fisheries from publishing the final rule with enough 
time to allow for a 30-day delayed effectiveness period and a June 1 
effective date.
    As stated above, if this final rule is not effective by June 1, 
2007, the conservation and management objectives of this action will be 
jeopardized. The analysis indicates that approximately 25 percent of 
the halibut harvested by the charter sector occurs in June. Therefore, 
if this rule is not effective during the month of June, approximately 
25 percent of the reduction that this rule was designed to achieve will 
not occur, frustrating the IPHC and NOAA Fisheries' conservation and 
management objectives in Area 2C and resulting in potential economic 
harm to the commercial halibut sector. Therefore, the Assistant 
Administrator for Fisheries, NOAA, finds good cause to waive the 30-day 
delay in the effective date of this action under 5 U.S.C. 553(d)(3).

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: May 30, 2007.
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 50 CFR part 300 as 
follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart E--Pacific Halibut Fisheries

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

    Authority: 16 U.S.C. 773-773k.

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2. In Sec.  300.61, definitions for ``Area 2C'' and ``Head-on length'' 
are added, in alphabetical order, to read as follows:


Sec.  300.61  Definitions.

* * * * *
    Area 2C includes all waters off Alaska that are east of a line 
running 340[deg] true from Cape Spencer Light (58[deg] 11' 54'' N. 
lat., 136[deg] 38' 24'' W. long.) and south and east of a line running 
205[deg] true from said light.
* * * * *
    Head-on length means a straight line measurement passing over the 
pectoral fin from the tip of the lower jaw with the mouth closed to the 
extreme end of the middle of the tail.
* * * * *

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3. In Sec.  300.65, paragraphs (d) through (k) are redesignated as 
paragraphs (e) through (l), respectively, and new paragraph (d) is 
added to read as follows:


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

* * * * *
    (d) In Commission Regulatory Area 2C, halibut harvest on a charter 
vessel is limited to no more than two halibut per person per calendar 
day provided that at least one of the harvested halibut has a head-on 
length of no more than 32 inches (81.3 cm). If a person sport fishing 
on a charter vessel in Area 2C retains only one halibut in a calendar 
day, that halibut may be of any length.
* * * * *

[[Page 30728]]


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4. In Sec.  300.66, paragraph (m) is added to read as follows:


Sec.  300.66  Prohibitions.

* * * * *
    (m) Possess halibut onboard a charter vessel in Area 2C that has 
been mutilated or otherwise disfigured in a manner that prevents the 
determination of size or number of fish, notwithstanding the 
requirements of the Annual Management Measure 25(2) and (7) (as 
promulgated in accordance with Sec.  300.62 and relating to Sport 
Fishing for Halibut). Filleted halibut may be possessed onboard the 
charter vessel provided that the entire carcass, with the head and tail 
connected as single piece, is retained onboard until all fillets are 
offloaded.
[FR Doc. E7-10736 Filed 6-1-07; 8:45 am]
BILLING CODE 3510-22-S