[Federal Register Volume 73, Number 177 (Thursday, September 11, 2008)]
[Rules and Regulations]
[Pages 52795-52797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21131]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 0808211134-81140-01]
RIN 0648-AX21


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 withdraws regulations that placed limits on charter 
vessel anglers, including a one-halibut daily bag limit in 
International Pacific Halibut Commission Area 2C. The U.S. District 
Court for the District of Columbia issued a Temporary Restraining Order 
(TRO) on June 10, 2008 (amended on June 13, 2008), and a Preliminary 
Injunction (PI) on June 20, 2008, enjoining and restraining NMFS from 
giving any effect to or otherwise taking any action to enforce the one-
halibut daily bag limit restriction for charter vessel anglers.

[[Page 52796]]

The TRO (as amended) and the PI direct that the daily bag limit should 
revert to the two-fish daily bag limit with one fish no more than 32 
inches (81.3 cm) head-on length that was in place prior to the one-fish 
daily bag limit. This action ensures that regulatory text provides 
accurate information to the regulated public. The intended effect is to 
make regulatory requirements consistent with a duly issued court order.

DATES: Effective September 8, 2008.

ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory 
Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), 
and Final Regulatory Flexibility Analysis (FRFA) prepared for the 
action withdrawn by this rule and a copy of the Categorical Exclusion 
prepared for this rule may be obtained from NMFS Alaska Region, P.O. 
Box 21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS 
Alaska Region website at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Julie Scheurer or Jay Ginter, (907) 
586-7228.

SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission 
(IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus 
stenolepis) through regulations established under the authority of the 
Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k. (Halibut 
Act). The IPHC promulgates regulations governing the Pacific halibut 
fishery under the Convention between Canada and the United States of 
America for the Preservation of the Halibut Fishery of the Northern 
Pacific Ocean and Bering Sea (Convention), signed in Ottawa, Ontario, 
on March 2, 1953, as amended by a Protocol Amending the Convention, 
signed in Washington, DC, on March 29, 1979. Regulations developed by 
the IPHC are subject to approval by the Secretary of State with 
concurrence of the Secretary of Commerce (Secretary). After approval by 
the Secretary of State and concurrence by the Secretary, the IPHC 
regulations are published in the Federal Register as annual management 
measures pursuant to 50 CFR 300.62.
    The Halibut Act at section 773c(c) authorizes the Regional Fishery 
Management Council that has the authority for the geographic area 
concerned to develop regulations, subject to approval by the Secretary. 
These regulations are in addition to, and cannot conflict with, 
regulations recommended by the IPHC and approved by the Secretary of 
State. The North Pacific Fishery Management Council (Council) has the 
authority for the waters off Alaska. The Council has exercised its 
authority under the Halibut Act, most notably in the development of the 
Individual Fishing Quota (IFQ) Program, codified at 50 CFR part 679, 
and subsistence halibut fishery measures, codified at 50 CFR 300.65.
    The Halibut Act at sections 773c(a) and (b) provides the Secretary 
with the general responsibility to carry out the Convention with the 
authority to, in consultation with the Secretary of the department in 
which the Coast Guard is operating (currently the Secretary of Homeland 
Security), adopt such regulations as may be necessary to carry out the 
purposes and objectives of the Convention and the Halibut Act. Actions 
by NMFS are under delegated authority of the Secretary.
    The Council, at its June 2007 meeting in Sitka, Alaska, initiated 
action to develop regulations to limit charter vessel angler catch to 
the guideline harvest level (GHL) for 2008. The GHL is an amount 
determined by taking the Annual Total Constant Exploitation Yield for 
Pacific halibut, which is the target amount of allowable mortality for 
a given area as determined by the IPHC, and comparing that to various 
levels in the table at 50 CFR 300.65(c)(1). After the appropriate yield 
is found in the table, a corresponding GHL amount can be determined. In 
June 2007, the GHL was at 1,432,000 lb (649.5 mt), and management 
measures had already been put into place to limit charter vessel angler 
catch. However, forecasts of the 2008 Annual Total Constant 
Exploitation Yield indicated that a potential reduction in that amount 
might be sufficient to reduce the Annual Total Constant Exploitation 
Yield to a lower level in the table at 50 CFR 300.65(c)(1), thus 
resulting in a lower corresponding GHL. Based on that information, the 
Council recommended that two alternative regulatory options be 
proposed, one option (Option A) to accommodate a GHL that would be the 
same as the one in 2007, and one option (Option B) to accommodate a 
lower GHL.
    On December 31, 2007, NMFS published a proposed rule (72 FR 74257) 
that included the two options as explained above. The comment period 
for that proposed rule ended on January 30, 2008. On February 5, 2008, 
NMFS published a notice (73 FR 6709) pursuant to 50 CFR 300.65(c) 
indicating that the 2008 GHL for IPHC Area 2C was 931,000 lb (422.3 
mt), based on the 2008 Annual Total Constant Exploitation Yield and the 
corresponding GHL in the table at 50 CFR 300.65(c)(1). The 2008 GHL was 
lower than the 2007 GHL. Based on information in the analysis that 
accompanied the proposed rule, NMFS published a final rule on May 28, 
2008 (73 FR 30504), with management measures sufficient to limit the 
charter vessel angler catch to an amount close to the 2008 GHL (i.e., 
Option B, or the lower GHL scenario in the proposed rule). These 
management measures included a one-halibut daily bag limit for charter 
vessel anglers in IPHC Area 2C.
    On June 2, 2008, various members of the charter vessel halibut 
fishery, including lodge owners and charter vessel owners in Southeast 
Alaska (Plaintiffs), brought action requesting a TRO against 
enforcement of the one-halibut daily bag limit (Van Valin, et al. v. 
Gutierrez, Civil Action No. 1:08-cv-941). On June 10, 2008, the U.S. 
District Court for the District of Columbia determined that the 
Plaintiffs had met their burden for the issuance of a TRO and granted 
the order (Order to Grant the Plaintiffs Motion for a Temporary 
Restraining Order, issued June 10, 2008, and Amended Order, issued June 
13, 2008). On June 20, 2008, the Court issued a PI enjoining NMFS from 
enforcing its one-halibut daily bag limit. The Court determined that 
the Plaintiffs had met the burden for granting a PI, including 
demonstrating a likelihood of success on the merits of their claims.
    Based on the TRO and the PI invalidating the one-halibut daily bag 
limit, and the decreasing level of effectiveness of any management 
measures as the fishing season approaches its end (the majority of 
halibut is caught during June, July, and August), NMFS has decided to 
withdraw its regulations at 50 CFR part 300 that were published on May 
28, 2008 (73 FR 30504).

Classification

    This final rule has been determined to be not significant for 
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 
Pacific halibut fishery.
    An Initial Regulatory Flexibility Analysis (IRFA) and a Final 
Regulatory Flexibility Analysis (FRFA) were prepared for the 
regulations that are withdrawn by this final rule. The IRFA and FRFA 
described the economic impact the withdrawn regulations would have had 
on directly regulated small entities compared with the status quo. The 
status quo evaluated in those analyses depicts the economic and 
regulatory conditions that will be in effect when the action is 
withdrawn. Summary descriptions of the IRFA and

[[Page 52797]]

FRFA are contained in the proposed rule published December 31, 2007 (72 
FR 74257) and the final rule published May 28, 2008 (73 FR 30504), 
respectively.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive notice and public procedure on this action because it is 
contrary to the public interest, as provided by 5 U.S.C. 553(b)(B). 
This action ensures that regulatory text provides accurate information 
to the regulated public consistent with a duly issued court order. No 
alternative exists to compliance with the court order; therefore, 
opportunity for public comment would have no effect other than to slow 
the process of making the affected regulations consistent with the 
court order. The public would be best served by having accurate 
information in regulatory text immediately. Furthermore, the Assistant 
Administrator for Fisheries waives the 30-day delayed effectiveness 
period, as provided by 5 U.S.C. 553(d)(3) for the reasons stated above 
and because the impacts of this action (primarily the removal of a one-
halibut daily bag limit for charter anglers in Area 2C) is already 
effective based on the court order and this will bring the codified 
regulations into compliance with currently effective bag limits. These 
waivers make the rule effective immediately upon filing with the Office 
of the Federal Register. Because notice and comment is not required, no 
additional regulatory flexibility analysis is required, and none has 
been prepared.

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: September 8, 2008.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

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


Sec.  300.61  [Amended]

0
2. In Sec.  300.61, remove definitions for ``Area 3A'', ``Charter 
vessel angler'', ``Charter vessel fishing trip'', ``Charter vessel 
guide'', ``Charter vessel operator'', ``Charter vessel services'', 
``Crew member'', and ``Sport fishing guide services''.

0
3. In Sec.  300.65, revise paragraph (d) 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.
* * * * *

0
4. In Sec.  300.66, remove paragraphs (n), (o), and (p), and revise 
paragraph (m) 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 a single piece, is retained onboard until all fillets are 
offloaded.
[FR Doc. E8-21131 Filed 9-8-08; 4:15 pm]
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