[Federal Register Volume 74, Number 86 (Wednesday, May 6, 2009)]
[Rules and Regulations]
[Pages 21194-21228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10337]



[[Page 21193]]

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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 300



 Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for 
Halibut; Final Rule

  Federal Register / Vol. 74, No. 86 / Wednesday, May 6, 2009 / Rules 
and Regulations  

[[Page 21194]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 0808061071-9666-02]
RIN 0648-AX17


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 implements regulations to limit the harvest of Pacific 
halibut by guided sport charter vessel anglers in International Pacific 
Halibut Commission (IPHC) Regulatory Area 2C (Area 2C) of Southeast 
Alaska to one halibut per day. This action is necessary to reduce the 
halibut harvest in the guided sport charter vessel (guided) sector. The 
intended effect of this action is to manage the harvest of halibut in 
Area 2C consistent with an allocation strategy recommended by the North 
Pacific Fishery Management Council for the guided fishery and the 
commercial fishery. This final rule implements three restrictions for 
the guided fishery for halibut in Area 2C: a one-fish daily bag limit, 
no harvest by the charter vessel guide and crew, and a line limit equal 
to the number of charter vessel anglers onboard, not to exceed six 
lines.

DATES: Effective June 5, 2009.

ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) 
prepared for this action may be obtained from NMFS Alaska Region, P.O. 
Box 21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS 
Alaska Region Web site at http://www.alaskafisheries.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection of information requirements contained in this 
rule may be submitted to NMFS at the above address, and by e-mail to 
[email protected] or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Sue Salveson or Jay Ginter, 907-586-
7228.

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 halibut fishery 
under the Convention between the United States and Canada for the 
Preservation of the Halibut Fishery of the Northern Pacific Ocean and 
Bering Sea (Convention). The IPHC's regulations are subject to 
acceptance by the Secretary of State with concurrence by the Secretary 
of Commerce (Secretary). After acceptance by the Secretaries of State 
and Commerce, the IPHC regulations are published in the Federal 
Register as annual management measures pursuant to 50 CFR 300.62. The 
annual management measures for 2009 were published on March 19, 2009 
(74 FR 11681).
    The Halibut Act also provides the North Pacific Fishery Management 
Council (Council) with authority to recommend regulations to the 
Secretary to allocate harvesting privileges among U.S. fishermen. The 
Council, under 16 U.S.C. 773c(c), may develop regulations applicable to 
U.S. nationals or vessels, which are in addition to, and not in 
conflict with, regulations adopted by the IPHC. Regulations developed 
by the Council shall be implemented only with the approval of the 
Secretary, and must meet criteria outlined in section 773c(c).
    The Secretary, under 16 U.S.C. 773c(a) and (b) has general 
responsibility to carry out the Convention and Halibut Act. According 
to section 773c(b),

    In fulfilling this responsibility, the Secretary shall, in 
consultation with the Secretary of the department in which the Coast 
Guard is operating, adopt such regulations as may be necessary to 
carry out the purposes and objectives of the Convention and [the 
Halibut Act].

    The Secretary's authority to take action under the Halibut Act has 
been delegated to NMFS. NMFS takes this action under section 773c(b) to 
adopt such regulations as may be necessary to carry out the purposes 
and objectives of the Convention and the Halibut Act. This action 
implements, among other measures, a one-halibut daily bag limit on 
charter vessel anglers in IPHC Area 2C. This bag limit originally was 
recommended by the Council in June 2007 and implemented by NMFS by 
final rule on May 28, 2008, with an effective date of June 1, 2008 (73 
FR 30504). The June 1, 2008 rule was withdrawn following a legal 
challenge as described in the preamble to the proposed rule for this 
action published on December 22, 2008 (73 FR 78276).

Background and Need for Action

    The respective roles of the IPHC and the Council in managing the 
commercial, sport and subsistence fisheries for halibut are described 
in the preamble to the proposed rule for this action (73 FR 78276, 
December 22, 2008).
    Each year, the IPHC establishes an annual total Constant 
Exploitation Yield (Total CEY) for Pacific halibut based on the most 
recent estimates of the overall halibut biomass. The IPHC then 
subtracts estimates of all noncommercial removals (sport, subsistence, 
bycatch, and wastage) from the Total CEY. The remainder, after the 
noncommercial removals are subtracted, is the Fishery CEY for an area's 
directed commercial fishery. Any increases in non-commercial removals 
of halibut will necessarily decrease the portion of the Total CEY 
available as Fishery CEY for use by the commercial sector. The IPHC 
annually sets a catch limit for the commercial longline fishery in each 
regulatory area in and off Alaska that is based on the Fishery CEY but 
not necessarily limited to the Fishery CEY.
    In 2003, NMFS approved and established (at 50 CFR 300.65(c)(1)) the 
Council's recommended guideline harvest level (GHL) policy to serve as 
a benchmark for monitoring the charter vessel fishery's harvests of 
Pacific halibut. The GHL does not limit harvests by charter vessel 
anglers, however. Subsequent regulatory action, such as this action, is 
necessary to control the charter vessel fishery's harvests to the GHL. 
Harvests by charter vessel anglers exceeded the GHL in Area 2C each 
year from 2004 to 2007, and the best available estimates indicate that 
the 2008 GHL also was exceeded (Table 1 and Figure 1 of this preamble). 
Harvests of halibut by the charter sector above its GHL reduce the 
Fishery CEY. By reducing the amount of fish available to the commercial 
sector, the charter harvests create an allocation concern. Charter 
removals should be close to the GHL or the methodology used by the IPHC 
to determine the Fishery CEY is undermined and results in a de facto 
reallocation from the commercial sector in subsequent years.
    Charter vessel harvests in excess of the GHL also create a 
conservation concern by compromising the overall harvest strategy 
developed by the IPHC to conserve the halibut resource. The Total CEY 
and the Fishery CEY have decreased each year since 2004 reflecting 
declines in the estimated halibut biomass. As the Total CEY decreases, 
harvests of halibut should decrease to help conserve the resource. 
Hence, the GHL is linked to the Total CEY so that the GHL decreases in 
a stepwise fashion as the Total CEY decreases. Despite a decrease in 
Total CEY and the GHL in recent years,

[[Page 21195]]

charter vessel harvests have remained high and in excess of the GHL. As 
conservation of the halibut resource is the overarching goal of the 
IPHC, the magnitude of charter vessel harvests over the GHL in Area 2C 
has raised concern that such overharvesting by the charter sector poses 
a conservation risk, with the potential to undermine the IPHC's 
conservation and management goals for the overall halibut stock. 
Therefore, restraining charter sector harvests to approximately the GHL 
would contribute to the conservation of the halibut resource.

Objective of This Action

    As indicated in the proposed rule for this action (73 FR 78276, 
December 22, 2008), NMFS is implementing a one-halibut daily bag limit 
in Area 2C to give effect to the Council's intent to keep the harvest 
of charter vessel anglers to approximately the GHL. In the years 2003 
through 2007, the GHL was 1,432,000 lbs (649.5 mt). In 2008, the GHL 
was reduced to 931,000 lbs (422.3 mt), and in 2009, the GHL was further 
reduced to 788,000 lbs (357.4 mt). Harvests by charter vessel anglers 
were below the GHL in 2003 and above the GHL in 2004 through 2008. 
Table 1 provides the GHL for each year, the specific amounts of charter 
vessel angler harvest, and the percentages of those amounts compared to 
the GHL. Figure 1 provides a graphical representation of the GHL and 
the specific amounts harvested. Table 7 in the analysis (see ADDRESSES) 
shows that implementation of a one-halibut daily bag limit would reduce 
charter vessel angler catch to a range of 1,495,000 lbs (678.1 mt) to 
602,000 lbs (310.7 mt), depending on various average weight scenarios 
and assumptions about reductions in demand. NMFS determined that the 
one-halibut daily bag limit was the best alternative to bring charter 
vessel angler harvest close to the 931,000 lb (422.3 mt) level, after 
comparing it with other options and reviewing the range of potential 
harvests under the one-halibut daily bag limit based on various weight 
scenarios and demand reduction assumptions. Taking this action is 
consistent with the action proposed at 73 FR 78276. Also, it will bring 
the harvest of halibut by charter vessel anglers in Area 2C closer to 
the 788,000 lb (357.4 mt) level than will the status quo, consistent 
with the Council's intent.
    From 2003 to 2007, the GHL for Area 2C was 1,432,000 lbs (649.6 
mt). In 2008, the IPHC reduced the Total CEY to 6,500,000 lbs (2,948.4 
mt) from the 2007 Total CEY of 10,800,000 lbs (4,899.0 mt). This was a 
reduction of 4,300,000 lbs (1,950.5 mt) from the 2007 Total CEY. The 
reduction in the Total CEY triggered a reduction of the GHL for Area 2C 
from 1,432,000 lbs (649.6 mt) to 931,000 lbs (422.3 mt) for 2008. In 
2009, the IPHC again reduced the Total CEY to 5,570,000 lbs (2,526.5 
mt), which again triggered a reduction of the Area 2C GHL from 931,000 
lbs (422.3 mt) to 788,000 lbs (357.4 mt) for 2009. As shown in Table 1 
and Figure 1, the average charter vessel angler harvest in Area 2C for 
the four years 2004 through 2007 was 1,856,000 lbs (841.9 mt).

                                              Table 1--Guided and Unguided Sport Harvest by Year in Area 2C
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Charter
                                                                          Unguided sport      Charter       Total sport       Charter       harvest as
                          Year                             GHL (million       harvest         harvest         harvest       harvest as     percentage of
                                                              pounds)        (million        (million        (million      percentage of    total sport
                                                                              pounds)         pounds)         pounds)           GHL           harvest
--------------------------------------------------------------------------------------------------------------------------------------------------------
2002....................................................             n/a           0.814           1.275           2.089             n/a            61.0
2003....................................................           1.432           0.846           1.412           2.258            98.6            62.5
2004....................................................           1.432           1.187           1.750           2.937           122.2            59.6
2005....................................................           1.432           0.845           1.952           2.797           136.3            69.8
2006....................................................           1.432           0.723           1.804           2.527           126.0            71.4
2007....................................................           1.432           1.131           1.918           3.049           133.9            62.9
2008....................................................           0.931             n/a         * 1.914             n/a         * 205.6             n/a
2009....................................................           0.788             n/a             n/a             n/a             n/a             n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
n/a = not available.
* Harvest estimates are the best available.


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[GRAPHIC] [TIFF OMITTED] TR06MY09.072

    NMFS proposed this action on December 22, 2008 (73 FR 78276). 
Public comments were invited on the proposed rule for a period of 30 
days ending on January 21, 2009. NMFS received 179 public submissions 
containing 141 unique comments. These comments are grouped into topical 
areas, summarized, and responded to below.

Comments and Responses

Conservation Concerns

    Comment 1: The proposed rule is an allocation measure and does not 
have a conservation objective.
    Response: This action addresses conservation of the halibut 
resource by constraining overall harvest to meet yield. In the presence 
of multiple user groups, conservation and allocation cannot be 
separated. Instead conservation objectives are advanced by 
conservation-sensitive allocation procedures. By reducing harvest in 
the Area 2C charter vessel fishery more than it would be without this 
rule, the fleet can contribute to achievement of the overall target 
exploitation rate for halibut in Area 2C and bring the charter vessel 
fishery closer to its GHL in this area.
    In recent years, the Total CEY for Area 2C halibut has been 
declining. In response, it is important that the harvests of the 
principal user groups also decline to control the yield from the 
fisheries for conservation purposes. In the evaluation of these 
fisheries, different mechanisms have been created to limit the harvests 
of different user groups. Some user groups, such as subsistence and 
unguided sport users, are not currently subject to measures designed to 
control aggregate harvests. A major user group, the commercial setline 
fishery, has a strictly managed annual catch limit, however. This catch 
limit is set by the IPHC based on the Fishery CEY and distributed to 
the commercial harvesters through the individual fishing quota (IFQ) 
system. The commercial catch limit has been cut by just over 50 percent 
between 2005 and 2009.
    Harvest controls also have been created for the guided component of 
the sport fishery. This operates through the Council and Secretarial 
GHL system and regulatory measures implemented to limit guided harvests 
to the GHL. The guided sport fishery has exceeded its GHL since 2004 
and the best available harvest estimates in 2008 indicate that the 
fishery exceeded its GHL 100 percent. A size limit on one of the two 
halibut in the bag limit in 2007 did not substantially constrain the 
charter vessel angler harvest in 2007. To control harvest to 
approximately the GHL in 2009, NMFS is implementing a one-halibut daily 
bag limit.
    Comment 2: IPHC statements demonstrate there is no conservation 
concern. In 2008, the IPHC said the halibut stocks in Area 2C are 
``well above a level of concern'' and there is no cause for ``undue 
alarm.'' The IPHC has projected increases in the available harvestable 
biomass over the next 10 years. The IPHC has stated the proposed 
alternatives are not expected to have a significant impact on the 
halibut stocks or affect the overall harvest determined by the IPHC.
    Response: The statements attributed to the IPHC in the first 
sentence are not presented in context. The comment concerning ``well 
above a level of concern'' was made on page 83 of the IPHC 2008 Annual 
Meeting Bluebook and referred to the ``coastwide'' biomass of halibut, 
not the biomass of halibut in Area 2C. The complete statement was: 
``The coastwide assessment indicates a declining spawning biomass but 
one that is still well above a level of concern or anything close to a 
historic minimum.''
    The second statement concerning no cause for ``undue alarm'' is 
also taken out of context. The complete statement is on page 84 of the 
IPHC 2008 Annual Meeting Bluebook and states, ``Taken together, the 
decline in exploitable biomass in Area 2 is understandable and is not 
cause for undue alarm. However, under a constant exploitation harvest 
strategy, removals by the fishery must come down as the biomass 
declines. Our present view of Area 2 is that harvest rates have been 
much higher than the target harvest rate of 0.20 over the past 
decade.''
    The coastwide biomass of halibut is projected to increase, as the 
comment notes, but only if harvests are restrained within the target 
harvest rates of 0.20 for Areas 2 and 3, and 0.15 for Area 4. Such 
projections do not incorporate the much higher harvests taken in Area 2 
over the past decade.
    The statement that the proposed alternatives are not expected to 
have a significant impact on the halibut stocks or affect the overall 
harvest determined by the IPHC was not made by the IPHC. That comment 
appears to be based on language in the executive summary of the 
analysis (see ADDRESSES) supporting the proposed rule. The commenter's

[[Page 21197]]

statement about a lack of significant impact on halibut stocks 
correctly characterizes the conclusions of the analysis. However, the 
statement about not affecting the overall harvest does not. The 
analysis indicated that harvest rates might be exceeded in the short 
run, but that the IPHC had the ability to offset these by reduced catch 
limits in the longer term. See response to Comment 7 for further 
discussion of this issue. The executive summary of the analysis has 
been revised to more accurately reflect the conclusions of the 
analysis.
    Comment 3: The IPHC's action in basing the 2008 and 2009 commercial 
catch limits on the GHL, rather than on a scientific projection of 
guided harvests in the coming year is evidence that there is no 
conservation concern. In 2008 and 2009, the IPHC deviated from its past 
approach to estimating guided sport harvests for the coming year, and 
based its estimates on the GHL. Because the GHL is likely to be smaller 
than actual harvests, this tends to increase the IPHC's Fishery 
Constant Exploitation Yield (Fishery CEY), on which the longline 
fishery's catch limit is based. The IPHC essentially gave Area 2C 
longline IFQ holders millions of additional pounds of halibut through 
its manipulation of the Fishery CEY formula by using the much lower 
charter halibut GHL number rather than the best available estimate of 
charter catch.
    Response: Through 2007, the IPHC made its allocation decisions 
using a formula that deducted estimated non-commercial user harvests 
for the year, including the guided sport sector harvests, from an 
overall Total CEY. The residual (the Fishery CEY) then formed the basis 
for determining the amount of halibut to allocate to the commercial 
longline fishermen as a catch limit. The catch limit could be greater 
than or less than the residual, depending on whether the stock was 
increasing or decreasing and on the speed with which the IPHC proposed 
to adjust the catch limit to this residual. In 2008, the IPHC used the 
GHL to project charter vessel angler harvests, following a commitment 
by NMFS to implement a one-fish bag limit for the 2008 Area 2C charter 
fishery. NMFS issued a final rule implementing the one-fish bag limit, 
but that rule was enjoined by a court order and was subsequently 
withdrawn. In 2009, the IPHC, assuming that NMFS would implement 
management measures to limit harvest to approximately the GHL, again 
used the GHL to project the guided sport harvest.
    At its 2009 Annual Meeting, the IPHC stated ``* * *national parties 
are cautioned that any departure from these assumed levels of removal 
by the recreational sector will compromise achievement of IPHC harvest 
targets for 2009'' (IPHC 2009 Annual Meeting Bluebook page 138). The 
IPHC use of the GHL as the assumed level of removal for the guided 
fishery reflects the Council's and NMFS' intent to limit the guided 
sport fishery harvest of halibut to a level consistent with GHL trends.
    The concept that using the GHL rather than actual halibut harvests 
increases the amount of fish available to commercial fishermen is 
misleading. The correct context of this result is that when charter 
vessel harvests are close to the GHL, the commercial fishery is not 
penalized through a reduction caused by charter vessel harvests in 
excess of the GHL. This issue is further discussed in the response to 
Comment 9.
    Comment 4: The IPHC's use of its ``Slow Up/Fast Down'' (SUFD) 
policy is evidence that there is no conservation concern. One commenter 
notes that in the last four years through its SUFD policy the IPHC has 
intentionally exceeded the Fishery CEY to the direct benefit of the 
longline fleet by 300,000 lbs in 2006, 900,000 lbs in 2007, and 
2,300,000 lbs in 2008; and has approved another 2,210,000 lbs in 2009. 
The total excess over the Fishery CEY over this period exceeds 
5,680,000 lbs. How can the IPHC and NMFS express a conservation concern 
with a charter vessel catch exceeding a non-binding GHL by 500,000 lbs, 
while at the same time promote harvest by the longline fleet in excess 
of its Fishery CEY by more than 2,000,000 lbs? If this level of overage 
is not considered a conservation issue, how can the 1,400,000 lbs 
allocated to the recreational fishery be considered a conservation 
issue?
    Response: The SUFD policy is an integral part of the IPHC's 
management regime. If the Fishery CEY is bigger than the previous 
year's catch limit, then the IPHC staff's recommended catch limit 
increases by only 33 percent of the difference. If the Fishery CEY is 
less than the previous year's catch limit, the recommended catch limit 
reduction is limited to 50 percent of the difference, as illustrated in 
Figure 2. The commercial catch limit increases and decreases with 
changes in biomass, even with a static GHL, whereas changes to the 
charter sector's GHL occur in a stepwise manner only when specific 
Fishery CEY levels are established by the IPHC (see 50 CFR 
300.65(c)(1)).

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[GRAPHIC] [TIFF OMITTED] TR06MY09.073

    The SUFD component of the IPHC's management regime was not designed 
to advantage the commercial sector. It is designed to ameliorate the 
impacts of large changes in biomass.
    The IPHC's management decisions on annual catch limits are based on 
the underlying stock assessment and the application of its harvest 
management policies to the identified biomass levels in that 
assessment. Accordingly, the Fishery CEY levels of the assessment are 
only one component of the process to determine catch limits and 
conservation targets. The Fishery CEY levels are further modified by 
harvest policy considerations (e.g., the SUFD harvest control rule) in 
deciding on final catch limits. For regulatory areas with Catch Sharing 
Plans, all directed fisheries are affected by these additional policy 
considerations, but this is not the case for GHL-governed fisheries in 
the absence of a Catch Sharing Plan. Notably, the Council's proposed 
Catch Sharing Plan for Areas 2C and 3A charter vessel fisheries could 
bring the charter fisheries under such policy adjustments. Also see 
responses to Comments 10 and 111.
    The Fishery CEY is only one component of the IPHC's harvest 
strategy. The overall harvest rate and the harvest control rules, such 
as SUFD, also are part of the harvest strategy. The IPHC establishes 
its annual conservation targets by considering the underlying stock 
assessment, the harvest rate, and the harvest control rules. The IPHC 
staff has evaluated the impacts of the harvest control rules and the 
application of these rules to establish annual conservation limits to 
ensure that the stock is not compromised by their application. This 
approach has been endorsed by the IPHC. The important part of this 
approach is that it is based on the achievement of the identified 
conservation targets. If these targets are exceeded, the length of time 
that the stock is projected to be below threshold reference points 
increases. This creates a conservation concern and requires reductions 
in the harvest rate. In the case of regulatory areas with Catch Sharing 
Plans, such concerns have not existed because the conservation targets 
for those directed fisheries have not been exceeded.
    The IPHC's mandate under the Convention requires that it enact 
measures to conserve halibut stocks. The IPHC therefore has taken 
strong actions to decrease the catch limits for Area 2C in order to 
lower the realized harvest rate on the exploitable biomass. Catch 
limits adopted by the IPHC for Area 2C over the 2005 to 2009 period 
have decreased by 54 percent. Despite the establishment of the GHL for 
Area 2C guided sport fishery, the benefits of protecting the stock 
biomass have not been realized by the lack of sufficient restrictions 
on the guided sport fishery.
    The 2009 commercial catch limit exceeds the Fishery CEY by about 
2,300,000 lbs, while the best available harvest information indicates 
the charter vessel fishery exceeded the 2008 GHL by almost one million 
pounds. Overages of this magnitude raise conservation concerns. The 
IPHC, the Council, and NMFS, have been attempting to address each 
fishery within the regulatory structure created for it. The Fishery CEY 
and the GHL are different concepts, and different mechanisms are 
available for setting them and for reducing catches to them. The IPHC 
reduced the catch limit by 54 percent between 2005 and 2009. If the 
Fishery CEY remains low, the catch limit would continue to decrease in 
coming years until it became equal to the Fishery CEY. The Council and 
NMFS tried, with the 32-inch size limit in 2007, and with a one-fish 
daily bag limit in 2008, to reduce charter vessel harvests to 
approximately the GHL. The present action imposing a one-fish daily bag 
limit is one part of the effort to reduce overall harvests.
    NMFS notes that the measured response to changing stock conditions 
incorporated in the SUFD policy is similar to the way the charter 
vessel fishery has been managed in practice. The GHL allows for 
moderate reductions in Total CEY without triggering harvest reductions 
for the charter vessel fishery.
    Comment 5: The IPHC Commissioners increased the allocation to the 
commercial sector beyond the amount recommended by IPHC staff by 
reducing the recommended commercial allocations for other regulatory 
areas to increase the allocations for all of Area 2, including Area 2C. 
This is evidence that there is no conservation concern.

[[Page 21199]]

    Response: Biological issues in different management areas are 
related since there is a single coastwide stock of halibut. However, 
IPHC determinations about Area 2C commercial catch limits were made 
independently of determinations about commercial catch limits in other 
areas.
    The IPHC staff recommended commercial catch limit for Area 2C for 
2009 was 4,540,000 lbs (2,059.3 mt) and the IPHC adopted a catch limit 
of 5,020,000 lbs (2,277.0 mt) a difference of 480,000 lbs (217.7 mt). 
The staff recommendation was based on the assessment and application of 
harvest control rules as described in the response to Comment 4. The 
IPHC's adoption of the 5,020,000 lbs (2,277.0 mt) commercial catch 
limit was a reduction of 1,190,000 lbs (539.8 mt or 19 percent) from 
the 2008 commercial catch limit for Area 2C. By adopting a catch limit 
that is higher than its staff's recommendation but lower than last 
year's catch limit, the IPHC was choosing a more gradual reduction than 
that proposed by the staff.
    Comment 6: The IPHC decision to shift from a closed area assessment 
model to the coastwide model is responsible for a decrease in the 
amount of halibut available for harvest in Area 2C. This decision moved 
12 percent of traditional harvest from coastal areas to western Alaska 
where it will be harvested primarily by boats from Seattle. The shift 
in models did not fare well in peer review and is contrary to 76 years 
of halibut management experience. It causes hardship to fishing 
operations in Southeast Alaska, while benefitting large vessel owners 
based far from the resource. Do not adopt a one-fish bag limit at this 
time, and request the IPHC to reinstate the closed area assessment 
model. Doing so would allow continuation of the two-fish daily bag 
limit, and the proposed limited entry and current economic reality 
would reduce charter vessel effort to bring down guided sport halibut 
harvest numbers.
    Response: IPHC shifted from a closed-area to a coastwide approach 
for area-specific biomass determination beginning with the assessment 
for 2007. This has resulted in lower estimates of biomass for Area 2C. 
Growing concerns about net migration from the western to the eastern 
Gulf of Alaska led the IPHC to doubt the accuracy of the closed-area 
biomass assessments that had been done for many years. In 2006, the 
IPHC staff changed the orientation of its stock assessment because new 
scientific information conflicted with previous model assumptions about 
migration between regulatory areas. The new assessment approach 
considered tagging data and mortality rates that suggested that a 
larger fraction of halibut beyond eight years of age continue to 
migrate eastward than previously assumed. The IPHC staff submitted its 
revised stock assessment to independent scientific peer review and the 
IPHC Commissioners were satisfied with the results of the peer review.
    Comment 7: The analysis (see ADDRESSES) for this action says that 
there is no conservation concern. One commenter quoted from sections of 
the analysis at pages xiv, 29, 56, and 57, that state the action will 
not have significant impacts, that the objective of the action is 
distributive, and that no adverse impacts are expected because the IPHC 
takes account all significant resource removals.
    Response: The analysis finds that the action would not have 
significant environmental impacts. The purpose of an analysis is to 
determine whether an action of the federal government will have a 
significant impact on the human environment, and whether an 
environmental impact statement is necessary. The draft analysis for 
this action evaluated the environmental impacts of the action and found 
that it would not have a significant environmental impact. This 
conclusion is not the same as a statement that an action does not have 
a management or conservation purpose.
    As noted in the response to Comment 1, when multiple user groups 
must operate within a shared overall harvest, distribution and 
conservation questions are inseparable. Any conservation mandated 
increase or decrease in the shared overall harvest must be shared among 
the different user groups. If one group exceeds its allocation, either 
the conservation limit will be exceeded, or another user group must 
find its share of the harvest reduced.
    No adverse impacts are expected because the IPHC takes account of 
resource removals, but as the analysis goes on to state, there is a 
potential for exploitation rates to be exceeded in the short run under 
the status quo, and that the IPHC can address this in the longer run 
with offsetting policy measures. This consideration reflects the issues 
raised when multiple user groups fish against a common overall harvest 
objective that were discussed in the second paragraph of this response.
    Finally, NMFS has new information at this time that was not 
available at the time the analysis was completed. This new information 
includes the best available logbook-based information on the 2008 
guided angler harvest from ADF&G in November 2008, the Area 2C Total 
CEY, Fishery CEY, and catch limit determinations made by the IPHC in 
January 2009, and the new GHL published February 24, 2009 (74 FR 8232). 
The best available 2008 harvest information indicating that the GHL was 
exceeded again in 2008 and that the 32-inch maximum size limit on one 
fish was not effective in 2008, and the continued declines of the Total 
CEY, Fishery CEY, and GHL in 2009, heighten management and conservation 
concerns.
    Comment 8: The proposed rule does not identify a conservation 
objective.
    Response: The preamble to the proposed rule clearly identified the 
following conservation objective:

    This action addresses conservation of the resource, by 
restricting catch to approximately the GHL, so that the IPHC's 
projected harvest of halibut by guided anglers, which is assumed by 
the IPHC to equal the GHL, adequately reflects actual catches for 
purposes of managing sustainable removals of the halibut resource. 
This action also addresses an allocation of halibut fishing 
privileges among various U.S. fishermen, by giving effect to a 
Council recommendation on how to assign such privileges consistent 
with the criteria found in section 773c(c) of the Halibut Act.

    These criteria include expectations for harvest limits that are 
reasonably calculated to promote conservation.
    Comment 9: The rule would not leave any more fish in the water as a 
result of the one-fish limit. Any charter vessel reduction simply 
increases the longline harvest.
    Response: The objective of this action is explained above under the 
heading ``objective of this action.'' This action should reduce the 
overall harvest rate from all fisheries in Area 2C to a level closer to 
the 20 percent harvest rate target set by the IPHC for conservation of 
the resource. If successful, a reduction in the charter vessel harvest 
should leave more halibut in the water to the benefit of all fisheries 
now and in future years, as well as benefit the health and reproductive 
potential of the resource.
    Comment 10: If this is a conservation issue, why is it going to be 
all right for the charter business to buy guided angler fish from the 
longline sector for that second fish?
    Response: The term ``guided angler fish'' refers to part of a Catch 
Sharing Plan proposed by the Council in October 2008, for resolving 
halibut resource allocation issues between the commercial and charter 
vessel fisheries. The proposed Catch Sharing Plan has not been 
submitted to NMFS for review and is outside the scope of this final 
rule. Once the Catch Sharing Plan is submitted, NMFS will publish a

[[Page 21200]]

proposed rule in the Federal Register for public review and comment.
    Comment 11: In an editorial in the Juneau Empire dated September 
21, 2008, the Deputy Director of the Council stated that no stock of 
groundfish off Alaska is overfished or subject to overfishing.
    Response: NMFS notes that the reference to groundfish is to the 
species managed under the Council's two groundfish fishery management 
plans. Pacific halibut is not a ``groundfish'' as that term is defined 
in those plans or in their implementing regulations.
    Comment 12: Because the 32-inch rule in 2008 applied to charter 
boats only, the implication is that the action was not designed to 
protect resources, but rather to target charter boats.
    Response: The 32-inch rule in 2008 applicable to charter vessel 
anglers in Area 2C was first implemented in 2007 (72 FR 30714, June 4, 
2007). That rule allowed a daily bag limit of two halibut but required 
at least one of the two fish to be no more than 32 inches (81.3 cm) in 
length. This rule was applied to charter vessel anglers in Area 2C 
because the number of guided vessels participating in the charter 
fishery was increasing rapidly and the charter vessel sector (about 67 
percent of the combined charter and non-charter sport harvest), had 
exceeded its GHL in Area 2C in 2004, 2005, and 2006.
    The 32-inch rule was designed to maintain a two-halibut bag limit 
and reduce the halibut harvest by the charter vessel sector in Area 2C 
to a level comparable to the seasonal one-halibut bag limit proposed 
that year by the IPHC. The 32-inch rule did not appear to have its 
intended effect. The charter vessel harvest in 2007 actually increased 
about six percent compared to the charter vessel harvest in 2006. 
Because the 32-inch rule proved ineffective at reducing the Area 2C 
charter vessel harvest to a level consistent with GHL trends while 
maintaining a two-halibut daily bag limit, more restrictive measures 
are warranted.
    Comment 13: In the responses to several comments in the final rule 
that implemented a one-fish halibut bag limit in 2008 (73 FR 30504, May 
28, 2008), NMFS asserted that there was no conservation rationale in 
its defense of the 2008 one-fish limit. In the response to Comment 79, 
NMFS agreed that the rule dealt with a pure allocation issue and did 
not present any resource conservation questions. NMFS went on to say, 
``* * * the healthy status of the halibut resource is evidence that 
IPHC policies are conservative and successful.'' In the response to 
Comment 81, NMFS said, ``The best available evidence indicates that the 
Area 2C stock is not over fished and the IPHC has not made that 
determination.'' In the response to Comment 82, NMFS said, ``* * * the 
environmental analysis prepared for this rule did not find that failure 
to limit the guided sport charter vessel halibut harvest to the GHL 
would cause significant environmental impacts on the resource.'' Thus, 
there is no conservation concern.
    Response: As noted in the response to Comment 1, conservation 
issues are inherent when the harvests of multiple user groups are being 
constrained to stay within an overall aggregate harvest limit.
    The essence of last year's Comment 79 was that conservation of the 
halibut resource is an objective of the IPHC's policies and the need 
for restrictions on the charter vessel sector is primarily one of 
allocation. NMFS acknowledged the long history of the IPHC in 
maintaining a relatively healthy halibut resource coastwide. This final 
rule thus supports the appropriateness of the IPHC's caution that 
departures from assumed levels of harvest, such as the GHL, will 
compromise the IPHC's ability to achieve its overall harvest strategy. 
NMFS would modify that response now in light of recent information 
indicating the effects of several previous years of excessively high 
harvest rates in Area 2C. Hence, this action has a conservation effect 
of helping to reduce the overall harvest rate in Area 2C while also 
serving an allocation purpose.
    Comment 81 did not say that the rule does not have a conservation 
objective. It says that the fishery was not over fished at the time of 
the publication of the final rule (May 2008). An action may have a 
conservation objective under those circumstances. Both Comment 81 and 
Comment 82 discuss the role of the one-fish bag limit in helping the 
IPHC achieve its exploitation yield objectives for the fishery.
    Comment 82 referred to the significance determination made in the 
environmental assessment for the 2008 action. A NEPA analysis is meant 
to determine whether or not the action would have a significant impact 
on the human environment in order to determine whether or not an EIS 
would be necessary, but does not preclude an action from having a 
conservation objective. The analysis concluded that the action would 
not have a significant impact on the human environment. This is not the 
same thing as determining that the action would have no impact on the 
halibut resource or on resource management.
    Comment 14: The final rule should provide a clearer explanation of 
the conservation rationale. The proposed rule does not fully explain 
the conservation imperative for holding the charter harvest to the 2009 
GHL. The rule must be corrected to explain the conservation basis, 
including area-wide and local depletion issues, and the imperative 
conservation mandate to restrict charter harvest to the GHL given the 
status of the Area 2C halibut resource.
    Response: The response to Comment 1 describes the conservation 
rationale for this action. As explained in the response to Comment 65, 
NMFS does not have scientific information to characterize localized 
depletion or attribute it to a particular gear group. This action was 
not intended to address localized depletion of the halibut resource.
    Comment 15: According to the 2008 IPHC Annual Report, North Pacific 
halibut stocks have declined fishery wide by 10 percent from 2007 
levels. The Area 2C exploitable biomass of halibut has declined by an 
estimated 58 percent over the past three years and is near historic low 
levels. Halibut catch rates, or the amount of fish caught per hook set 
or hours fished, have declined in all Area 2C sectors including the 
catch rates of charter halibut anglers. This drop in catch rates is 
evidence that all fishermen are working harder to catch halibut because 
there are less halibut to catch. The IPHC now understands that 
assessment models used before 2008 overestimated abundance in Area 2 
(which includes the Pacific Northwest (2A), British Columbia (2B), and 
Southeast Alaska (2C)). In a summary of the 2007 stock assessment, IPHC 
staff said that a disproportionate share of the halibut catch has been 
coming from Area 2. Other resource considerations, such as slowed 
growth rates and the overharvest of older, more fecund fish from the 
population also indicate the need for caution and reduced harvest.
    Response: NMFS agrees with the comment that the overall harvest 
rate from all sources of fishing mortality in Area 2 should be reduced. 
This action will contribute to that goal by reducing the harvest of 
charter vessel anglers in Area 2C and will work in concert with actions 
taken by the IPHC to reduce the overall exploitation rate in Area 2C.
    Comment 16: The IPHC has expressed concern about the Area 2C 
halibut stocks and has emphasized the need to reduce Area 2C 
exploitation rates for conservation reasons. The IPHC has stated that 
failure to control the charter sector harvests in Area 2C exacerbates

[[Page 21201]]

conservation concerns for halibut in that area.
    Response: Reducing charter vessel angler harvests in Area 2C likely 
would have conservation benefits by reducing the overall harvest rate 
in this area. This action is intended to have this effect. Also see 
response to Comment 14.
    Comment 17: The IPHC has taken action to address conservation in 
Area 2C by reducing the commercial fishery catch limits. Area 2C 
longline catch limits have been reduced by an unprecedented amount, 
totaling 53 percent over the past three years.
    Response: NMFS agrees that the commercial halibut fishery in Area 
2C has faced large reductions in its catch limits in recent years.
    Comment 18: Catch limits must be adhered to for protection of the 
resource. In the absence of a one-halibut daily limit, the Area 2C 
charter industry can be reasonably expected to once again double its 
GHL because status quo management resulted in a 2008 charter vessel 
harvest of 1,900,000 lbs in Area 2C. This 2008 harvest marked the fifth 
consecutive year in which the Area 2C harvest of halibut by the charter 
sector exceeded the conservation target established for the sector by 
the IPHC. Quoting again from an IPHC statement in May, 2008, 
``Exceeding the GHL specified for 2008 in Area 2C will mean that the 
combined removals by all sectors in 2008 will exceed the IPHC's 
conservation targets, which have been accepted by the U.S. government, 
to the detriment of the halibut stock in this area.''
    Response: The premise of this comment is that the overall harvest 
rate target that the IPHC has for Area 2C can not be achieved without 
all sources of fishing mortality staying at about the level that the 
IPHC uses as the best available estimate of harvest. The best available 
estimate of 2008 charter vessel harvest for Area 2C is based on ADF&G 
logbook and creel survey information. The ADF&G estimated a charter 
vessel harvest of 1,914,000 lbs for 2008. The Council, the public, and 
NMFS will likely receive the final 2008 charter vessel harvest 
estimate, based on the statewide postal survey, in November or December 
2009.
    However, the best available estimates indicate that the 2008 GHL of 
931,000 lbs was exceeded. The GHL is not a conservation target 
established by the IPHC. The Council developed the GHL as a level of 
harvest to target for the guided sector, and NMFS implemented it as 
such. Nevertheless, exceeding the GHL likely would contribute to 
exceeding the overall harvest rate target estimated by the IPHC for 
Area 2C for conservation purposes.
    The overall target harvest rate set by the IPHC for Area 2C would 
be undermined in the absence of controls on fisheries that take 
significant amounts of halibut. Without knowledge of the economic 
demand for charter vessel fishing trips in Area 2C and other factors 
that are difficult or impossible to forecast, NMFS can not estimate 
what the charter vessel fishery would harvest in the absence of this 
action. NMFS can say, however, that without this action, the Area 2C 
charter vessel fishery would likely substantially exceed its GHL. 
Further, harvest controls implemented in 2007 (two-halibut daily bag 
limit if one is no more than 32 inches) did not appear to reduce the 
guided harvest as intended. In fact, guided harvest increased from 2006 
to 2007. This experience indicates a need for the more restrictive 
controls implemented by this action.
    Comment 19: Until 2007, increased charter harvest resulted in a 
direct reallocation of halibut from the longline to the charter sector. 
This occurred as a result of the IPHC quota setting process, which 
subtracts from the total area CEY the estimated sport, subsistence, 
charter, bycatch and wastage removals of halibut, then establishes the 
remainder as the Fishery CEY, or longline catch limit. Longline 
fishermen expected the reallocation to end when the GHL was 
established. However, because charter harvest control measures were not 
in place in 2005 and 2006, the IPHC used projected catch, instead of 
the GHL, to estimate charter harvest, and charter GHL overages were 
deducted from the longline quota in an effort to constrain total 
harvest to the area CEY. In other words, the charter sector's overages, 
totaling over one million pounds, continued to be deducted from the 
IFQs of longline fishermen even after the GHL was implemented, despite 
the substantial investments longline fishermen have made in those quota 
shares under the IFQ program, and the adherence of longline fishermen 
to IPHC catch limits. It is unfair and inequitable to punish fishermen 
who are living within restrictive catch limits for the excess harvest 
of a sector that ignores resource constraints and consistently 
overfishes.
    Response: The GHL for Area 2C was established in 2003 (August 8, 
2003, 68 FR 47256). As stated in that action, the GHL is an acceptable 
amount of halibut harvest by charter vessel anglers during a year in an 
area. By itself, it does not impose any restriction on the charter 
vessel fleet. Hence, an expectation by longline fishermen that the GHL 
would automatically limit the charter vessel fishery to the GHL was 
mistaken.
    The Council has the authority to develop regulations that would 
restrict the charter vessel fishery to the GHL if that is determined by 
the Council to be necessary. In June 2007, the Council took final 
action to limit guided harvest to approximately the GHL. It was that 
June 2007 final action that led to this final rule.
    Policy making, including data collection, analysis, and rulemaking, 
is a time-consuming process. NMFS will act as promptly as it can with 
the best information available to give effect to Council action. NMFS 
understands the frustration of IFQ fishermen who have seen their shares 
eroded by increasing harvests above the GHL by the guided sector. This 
action is designed in part to remedy this situation.
    Comment 20: The IPHC recommended a one-halibut daily limit for 
charter vessel anglers in Area 2C and, assuming the management measure 
would be implemented, did not subtract charter halibut overages from 
the longline catch limit for 2007. In 2008, the IPHC again assumed the 
one-halibut daily limit would be in place to prevent GHL overages, and 
established the longline catch limit accordingly. For this reason, the 
lawsuit filed by Southeast charter operators that stayed implementation 
of the one-halibut daily limit resulted in an unaccounted-for overage 
of the Southeast Total CEY in 2008.
    Response: NMFS acknowledges the comment. If the IPHC bases its 
estimate of the Fishery CEY and the catch limit on the assumption that 
charter vessel anglers will harvest the GHL, the Total CEY will be 
exceeded if charter vessel anglers exceed the GHL, the commercial 
fishery harvests its catch limit, and other user groups take the 
harvests the IPHC expected they would.
    Comment 21: Because NMFS published the one-halibut daily limit 
proposed rule on December 22, 2008, the IPHC assumed that the 2009 
charter harvest would be restricted to the Area 2C GHL and recommended 
longline catch limits accordingly. Failure to implement the rule will, 
in the short-term, result in overharvest of the Area 2C resource.
    Response: NMFS acknowledges the IPHC's assumption of timely 
implementation of the one-fish bag limit rule for the 2009 guided 
fishery season. Although this final rule will contribute to the 
conservation of halibut in Area 2C, by itself, a one-fish bag limit may 
not prevent the total halibut harvest in Area 2C from exceeding the 
harvest rate target set for this area by the IPHC.

[[Page 21202]]

    Comment 22: In the absence of this action, the cuts to the longline 
fleet will have no effect on helping the halibut stocks recover. 
Continuing to allow the charter vessel sector to exceed its GHL 
compromises the halibut resource and undermines the IPHC's effort to 
rebuild the stocks.
    Response: NMFS disagrees. Even in the absence of this action, cuts 
to commercial catch limits would help constrain harvest in Area 2C and 
contribute to the achievement of exploitation yield targets. Also see 
responses to Comments 1 and 19.
    Comment 23: The commercial halibut fishery is under stress because 
of overfishing by charter and sports sectors. The charter sector has 
exceeded GHL for several years.
    Response: NMFS agrees that guided harvest in excess of the GHL for 
several years in Area 2C is a contributing factor to harvests in this 
area exceeding harvest targets set by the IPHC.
    Comment 24: It is important to the IPHC goal of lowering the 
historical harvest rate in Area 2C that the schedule of annual catch 
limits and harvest rates adopted by the IPHC be met. Uncontrolled 
harvest by the charter vessel fishery or harvests in excess of 
established GHL levels that formed part of the IPHC's decision on 
commercial annual catch limits will result in negative impacts on the 
IPHC's ability to achieve its stock management goal. Not implementing a 
one-halibut daily limit for the charter vessel fishery in 2009 could 
result in a harvest rate approximately 15 percent higher than that 
assumed for the IPHC's commercial catch limit. The impact of a 
consistent overage of this level puts at risk various stock metrics of 
production, including potentially falling below the threshold reference 
point for this stock at which the harvest rate must be decreased 
linearly with biomass. Ultimately, the associated harvest rate could 
fall to zero (no directed fishery) if the spawning biomass falls to the 
limit reference point.
    Response: NMFS agrees that the target exploitation rate of 20 
percent set by the IPHC for Area 2C would be undermined to the extent 
that the amount of halibut harvested by charter vessel anglers exceeds 
the GHL for Area 2C.
    Comment 25: The halibut harvests by charter vessel anglers are 
overestimated. The charter vessels are not even close to taking the GHL 
on a yearly basis.
    Response: The best scientific information available on the harvests 
of halibut in Area 2C comes from the ADF&G's postal survey, logbook, 
and creel survey programs. This information indicates a steady increase 
in halibut harvest by charter vessel anglers starting from 1999 to 
2005. In 1999, the guided harvest in Area 2C was estimated at 939,000 
lbs (425.9 mt). The guided harvest increased annually to a peak in 2005 
of 1,952,000 lbs (885.4 mt). In 2006 the charter harvest declined 
slightly to 1,804,000 lbs (818.3 mt) but increased again in 2007 to 
1,918,000 lbs (870.0 mt). The charter harvest in 2004 through 2007 was 
consistently above the GHL as indicated in Table 1 of this preamble. 
The final estimate of guided harvest in 2008 has not been developed by 
ADF&G, but the best available estimates indicate that the harvest 
exceeded the GHL.
    Comment 26: The halibut harvests by charter vessel anglers are 
underestimated. One commenter has seen suspiciously large volumes of 
halibut being shipped out of Wrangell. One charter operator shipped 428 
lbs of halibut for one client and said that there were no weight limits 
on charter halibut. Once, two fishermen left Wrangell with 28 boxes of 
fish or about 1,900 lbs. Overfishing is not rare. Therefore, the 
commenter supports the one-fish daily bag limit.
    Response: NMFS appreciates the commenter's notes and regards 
potential retention violations as an enforcement issue. Halibut can 
grow quite large. It is possible that charter vessel anglers could 
harvest hundreds of pounds of halibut and other fish in full compliance 
with existing daily bag limits. The charter operator is correct in that 
there are no poundage limits on sport charter halibut catch. Limits on 
the sport harvest of halibut are on the number of fish caught and 
retained, not on the total pounds of halibut harvested as the 
commercial fishery is regulated. Nevertheless, information regarding 
illegal halibut harvests should be reported to the NOAA Office of Law 
Enforcement.
    Comment 27: Because the charter vessel fleet's catching capacity 
has outgrown monitoring and accounting systems, impacts of charter 
catch on the halibut resource likely are underestimated. A 2008 report 
prepared by ADF&G states that existing catch accounting systems for the 
charter harvest of halibut in Southeast Alaska may underestimate that 
harvest by 20 percent. Hence, the actual GHL overages in recent years 
may be far greater than reported and are a significant cause of the 
rapid decline of the Area 2C halibut stocks.
    Response: The comment refers to a study of logbook and Statewide 
Harvest Survey data prepared by ADF&G in 2008. The study reported that 
estimates of numbers of charter halibut derived from logbook 
information and creel census information were 23 percent greater than 
similar estimates derived from the Statewide Harvest Survey, and that 
estimates of halibut weight were 16 percent greater. The report, 
however, did not say that catch accounting systems may underestimate 
harvest. ADF&G is scheduled to present an expanded report to the 
Council in late 2009 that compares additional years of data to better 
assess the comparison between logbook and Statewide Harvest Survey 
estimates of halibut harvest by anglers on board charter vessels. Until 
this study is completed, ADF&G has indicated that it will continue to 
rely on the estimates of harvest derived from the survey as best 
representing charter vessel fishery harvests.

Guideline Harvest Level

    Comment 28: The GHL is a guideline, advisory in nature, and was not 
meant to constrain overall guided sport harvests. It is not a hard cap, 
either in the sense that the fishery would be closed within a year if 
it were reached, or in the sense that the guided fishing must be more 
heavily regulated so as to keep overall guided harvests within it if it 
has been or is likely to be exceeded. It represents a non-binding 
random political reference number. According to the December 31, 2007 
proposed rule to limit charter vessel anglers to one halibut per day 
(72 FR 74258), the GHL is not supposed to restrict or limit in any way 
angler harvests from charter vessels.
    Response: The Area 2C GHL was established in 2003 as a benchmark 
for a level of guided harvest (August 8, 2003, 68 FR 47256). By itself, 
the GHL does not restrict or limit charter vessel anglers, as 
demonstrated by the fact that charter vessel harvest exceeded the Area 
2C GHL in four consecutive years, 2004 through 2007.
    The GHL is not a limit above which further fishing is prohibited, 
which is often referred to as a ``hard cap.'' NMFS normally manages 
commercial fisheries for groundfish off Alaska in this manner, closing 
a fishery when it reaches its specified catch limit regardless of 
whether time remains in the fishing season. In recommending the GHL, 
however, the Council's intent was that guided harvests would not lead 
to a mid-season closure of the fishery because of the nature of guided 
businesses. Hence, the GHL is a benchmark and not a limit like a hard 
cap.
    The GHL was developed by the Council and approved by NMFS as an 
allowable level of harvest for the charter vessel fishery that is 
linked to halibut

[[Page 21203]]

abundance. Hence, this allowable level of harvest decreases in stepwise 
increments as the abundance of halibut decreases. Further, the Council 
and NMFS have the authority to take subsequent regulatory action to 
control the harvest of the charter vessel fishery as necessary to stay 
within its GHL. Thus, this regulatory action to reduce the harvest of 
halibut by charter vessel anglers in Area 2C is completely within the 
authority of NMFS, and is being implemented to meet the policy of the 
Council when it recommended the GHL.
    The citation from 72 FR 74258 does not provide the full context of 
the remark, which reads,

    The GHLs serve as benchmarks for monitoring the charter vessel 
fishery relative to the commercial fishery and other sources of 
fishing mortality. The GHLs do not limit the charter vessel 
fisheries. Although it is the Council's policy that the charter 
vessel fisheries should not exceed the GHLs, no constraints have 
been imposed on the charter vessel fisheries for GHLs that have been 
exceeded in the past.

    The text states that the GHLs themselves do not constrain harvest, 
but that the Council policy is that the guided sector should not exceed 
the GHLs. More details on the Council's policy response to GHL overages 
may be found in the responses to Comments 19 and 29.
    Comment 29: The final rule implementing the GHL states that the GHL 
is the ``level of allowable harvest by the charter vessel fishery'' (68 
FR 47256, 47257). The GHL is not a benchmark but is meant to be a 
maximum harvest amount. The Council intended that the GHLs would not 
close the fishery in season but would instead trigger other management 
measures in years following attainment of the GHL (68 FR 47259). In 
October 2008, the Council stated its intent to maintain the GHL and 
manage halibut charter vessel harvest to their allocation limits. Each 
year since the GHL was implemented the charter fleet has exceeded their 
allowable harvest. The charter fleet is still growing with an increased 
number of anglers served, fishing trips, and active vessels. NMFS 
should not use the words ``benchmark'' or ``approximately to the GHL'' 
in the final rule.
    Response: No changes from the proposed rule are made in the final 
rule. As noted in our response to Comment 28 above, the Area 2C GHL was 
established in 2003 as a benchmark for a level of guided harvest, and 
the approved GHL policy contemplates that the Council and NMFS would 
take subsequent regulatory action to control the harvest of the charter 
vessel fishery as necessary to stay within its GHL. NMFS uses the term 
``approximately to the GHL'' because it does not have tools to manage 
guided harvest to precisely the GHL.
    Comment 30: There is no analysis of the interaction between 
removals in excess of the Total CEY and the GHL, and this is not 
covered in the proposed rule.
    Response: The IPHC takes all sources of halibut fishing mortality 
into account when setting the Total CEY. Hence, to the extent that 
harvests of halibut by charter vessel anglers in Area 2C can be 
reduced, any removals in excess of the Total CEY for this area also 
should be reduced.
    Comment 31: The IPHC substituted the GHL for the best estimate of 
guided recreational harvest in its calculation of Area 2C and 3A 
directed fisheries and set a GHL of 931,000 lbs instead of a more 
realistic harvest estimate of 1,900,000 lbs. This policy resulted in 
the Fishery CEY being inflated by approximately one million pounds and 
the subsequent overharvest of the total CEY by the same amount. It is 
obvious that an allocation scheme, which allocates millions of pounds 
of fish in excess of the Fishery CEY to commercial fishermen at the 
expense of the GHL in following years, is neither fair nor equitable.
    Response: NMFS disagrees. The IPHC's use of the GHL in the 
calculation of catch limits reflects the stated intent of NMFS and the 
Council to manage charter fisheries to stay within its GHL (see the 
response to Comment 28). The statement that the policy would result in 
an ``* * * overharvest of the total CEY by the same amount [one million 
pounds]'' is based on a conclusion that the charter fishery will not be 
managed to its GHL in 2009. This is counter to the Council's intent and 
the NMFS's management goals for 2009.
    Comment 32: NMFS and the Secretary have failed to validate the need 
for the arbitrary and capricious GHL allocation. The charter fishery 
has only grown one percent a year since 1993 and only accounts for 
seven percent of the removals in Alaska, while the commercial industry 
removes 90 percent. Although GHL policy recognized a 25 percent growth 
in the charter fishery from the 1995 to 1999 catch, it did not provide 
for a fair and equitable allowance considering the 100 percent free 
increase in commercial quota shares during 1997 and 1998. Moreover, it 
is not fair and equitable to impose the one-fish bag limit on the 
guided halibut anglers when the longline fishermen already enjoy a 
disproportionate share of the resource. Some commenters characterized 
the large longline share as an excessive share.
    Response: The GHL for Area 2C was determined to be consistent with 
the Halibut Act and other applicable federal law when it was 
implemented in 2003 (August 8, 2003, 68 FR 47256).
    Growth in the halibut harvests by the charter vessel fishery may be 
slight on an Alaska-wide basis; however, this action is focused on 
reducing harvests only in Area 2C. In this area, charter vessel fishery 
harvests increased from 939,000 lbs (425.9 mt) in 1999 to 1,952,000 lbs 
(885.4 mt) in 2005. This is an increase of 1,013,000 lbs (459.5 mt) or 
107 percent over six years. In 2006 and 2007, charter vessel anglers in 
Area 2C did not increase their halibut harvest above the record high 
harvest in 2005; however, the harvest in 2007 (the most recent year for 
which final sport harvest estimates are available) remained slightly 
more than 100 percent above the harvest in 1999. The percentage of the 
sport harvest generally and charter vessel harvest in particular also 
is much higher in Area 2C than in other areas of Alaska. In 2007, total 
removals of halibut from Area 2C are estimated to be 12,210,000 lbs 
(5,538.4 mt). Of this total amount the commercial fishery harvested 
68.3 percent and the combined sport fisheries (charter and non-charter) 
harvested 24.7 percent. The charter vessel fishery harvested 15.7 
percent and the non-charter sport fishery harvested 9.3 percent of the 
total removals from Area 2C in 2007. Hence, charter vessel anglers in 
Area 2C have demonstrated rapid growth in their Area 2C halibut 
harvests since 1999, and their contribution to the total harvest in 
Area 2C, the area this action affects, is greater than the statewide 
percentages stated in the comment.
    Comment 33: The GHL allocation is fair and equitable. The initial 
allocation was established as 125 percent of the historically highest 
catch levels of the charter sector, thus allowing new and existing 
businesses in the charter fishery some amount of growth. In contrast, 
when NMFS implemented the halibut IFQ program in 1995, the average 
commercial QS holder received only about 80 percent of his historical 
catch levels. Many of these participants had to purchase additional IFQ 
to maintain a viable fishing business, and new commercial entrants are 
required to buy IFQ to participate in the fishery. The Council process 
to set the allocation was based on the testimony and the historical 
resource dependence of all user groups and included detailed debate and 
analysis. The current allocation balances the needs of all

[[Page 21204]]

halibut sectors, including subsistence, recreational and commercial.
    The Halibut Act indicates that if it becomes necessary to allocate 
or assign halibut fishing privileges among U.S. fishermen, such 
allocation shall be ``carried out in such manner that no particular 
individual, corporation, or other entity acquires an excessive share of 
the halibut fishing privileges.'' (16 U.S.C. 773c(c)) This requirement 
refers to individual entities rather than the sectoral allocation made 
in this rule. Under the terms of the IFQ program, no person may hold or 
control more than one percent of the Southeast Alaska quota. Only one 
quota share holder is currently at this cap, and most are significantly 
below it. Moreover, the harvest supports thousands of fishermen and 
crew, others involved in downstream processing and distribution, and 
millions of consumers.
    Response: NMFS notes support for the GHL.
    Comment 34: The GHL was set using incorrect, inconsistent or dated 
information, and therefore is not fair and equitable. Section 
1853(b)(6)(A) of the Halibut Act clearly states that the Secretary must 
take into account present participation in the fishery. The GHL was 
built upon angler harvest and trend data generated more than a decade 
ago for a recreational industry that at the time was in its infancy in 
Southeast Alaska. Under the Halibut Act, no GHL allocation can be fair 
and equitable until the Secretary evaluates current participation by 
each sector.
    The GHL is nothing more than a historical snapshot of the Area 2C 
guided angler catch and stock status for a certain period of time. The 
historical catch data upon which the GHL is based is 1995 to 1999, 
while the step-down mechanism is based on halibut stock distribution in 
1999 and 2000. Thus, the data used to create the GHL is between nine 
and fifteen years old. Since the GHL was established the number of 
guided anglers has increased nearly 79 percent. Meanwhile, there has 
been a decline of 16 percent in the number of commercial quota 
shareholders. In order for present participation to be properly 
considered, the Secretary would have to look at more recent catch data 
for guided anglers and commercial harvesters, numbers that are readily 
available and are set forth in the analysis, as well as the current 
distribution of the halibut stock.
    Response: NMFS disagrees that incorrect, inconsistent, or dated 
information was used for the GHL or this action. The Council and NMFS 
have used the best information available at each step of the process, 
beginning with the GHL, and continuing through this final rule. The 
Council and NMFS analyzed and considered data that relate to the 
criteria found at 16 U.S.C. 1853(b)(6) (Magnuson-Stevens Act), and 
referenced at 16 U.S.C. 773c(c) (Halibut Act), when it developed and 
implemented the GHL. These data included past and present 
participation, historical dependence of various sectors on the halibut 
resource, economic impacts of the action on various sectors, cultural 
and social framework of the various sectors, impacts on other 
fisheries, and other relevant considerations. Data that relate to the 
criteria at 16 U.S.C. 1853(b)(6) were also analyzed and considered in 
issuing this final rule, including past and present participation 
levels, economic impacts of the action on various sectors and fishing 
communities, impacts on other fisheries, etc. The commenter is referred 
to the GHL analysis and the analysis that accompanies this action for 
further details on the data considered in developing these actions. The 
GHL analysis is available on the Council Web site at http://www.fakr.noaa.gov/npfmc/current_issues/halibut_issues/halibut.htm and 
the analysis for this action is available on the NMFS Alaska Region Web 
site at http://www.alaskafisheries.noaa.gov/sustainablefisheries/halibut/charters.htm.
    Comment 35: The GHL was implemented as a reference measure to 
evaluate guided angler catches under the IPHC ``closed area 
assessment'' model. The GHL did not take into account exclusive, post-
CEY overage allowances to the longline sector through implementation of 
the SUFD policy. The GHL also did not account for changes in IPHC 
methodology, such as the switch to coastwide assessment modeling.
    Response: The GHL is responsive to the IPHC's switch to a coastwide 
assessment model for developing its estimate of the halibut biomass. 
Regulations at 50 CFR 300.65(c)(1) establish that the annual GHLs will 
be based on the Total CEY established for the year by the IPHC. 
Regulations at 50 CFR 300.65(c)(2) require that GHLs for IPHC 
regulatory Areas 2C and 3A be specified by NMFS and announced by 
publication in the Federal Register no later than 30 days after 
receiving information from the IPHC on the annual Total CEY for halibut 
in regulatory Areas 2C and 3A, and regulations. To the extent that the 
IPHC develops the Total CEY from a coastwide assessment model, the GHL 
will be based on and reflect that method of estimating the halibut 
biomass. The SUFD process is described in the response to Comment 4.
    Comment 36: The Secretary is obligated to issue regulations 
implementing the GHL for the charter fishery, under 16 U.S.C. 773c(a) 
and (b). The Halibut Act states that the Secretary ``shall'' issue 
regulations necessary to carry out the purposes and objectives of the 
Halibut Act. The GHL became one of those purposes and objectives, upon 
its establishment and approval. Failure to manage to the GHL results in 
a reallocation in violation of the Halibut Act and of the Council's 
policy and intent in establishing the GHL.
    Response: NMFS implemented the GHL in 2003 (August 8, 2003; 68 FR 
47256) with regulations that appear at 50 CFR 300.65(c), as revised by 
this final rule. These regulations provided the responsibilities of 
NMFS in regard to the GHL. However, NMFS agrees that implementing the 
one-fish bag limit is necessary to carry out those purposes and 
objectives of the Council in recommending the GHL and, hence, is 
consistent with the Halibut Act.
    Comment 37: The Council has stated its intent to manage the charter 
halibut fishery to the GHL until a long-term plan is adopted. This 
includes a limited entry program for halibut charter businesses and new 
regulations for the allocation of halibut between the commercial and 
charter fisheries.
    Response: NMFS agrees. In March 2007, the Council adopted a 
recommendation to implement a limited access program for the guided 
charter vessel fishery in Areas 2C and 3A. A proposed rule and 
solicitation for public comment on the recommended limited access 
proposal was published on April 21, 2009 (74 FR 18178).
    Comment 38: Rescind the GHL.
    Response: Rescinding the GHL is outside the scope of this action.
    Comment 39: The final rule should clearly explain the conservation 
and fairness elements used as the basis for the initial allocation 
incorporated into the GHL regime. The GHL for the charter fishery was 
based on 125 percent of the historic catch and should not be changed 
due to the lack of other management measures to stabilize the fishery.
    Response: This final rule does not change the GHL. Instead, this 
rule is expected to reduce the harvest of halibut by charter anglers in 
Area 2C to better meet the objectives for the GHL and to contribute to 
reaching the overall harvest rate target set for this area by the IPHC. 
This action is a rational response to charter harvests in excess of the 
GHL and was developed with public

[[Page 21205]]

participation at the Council and Secretarial levels.
    Comment 40: This proposed rule circumvents the proper rule making 
procedures for changing the definition of GHL. This action 
inappropriately changes the definition of the GHL (50 CFR 300.61) and 
allocates resources between charter and commercial users. Therefore, 
this rule is required to follow additional rulemaking procedures such 
as proper notification to the public, public comment periods in both 
Areas 2C and 3A, adequate analysis, and a reasonable explanation for 
the change.
    Response: This action complies fully with Administrative Procedure 
Act (APA) rulemaking procedures. All comments received on the proposed 
rule were considered and changes were made where they were deemed 
appropriate. This action was proposed in a Federal Register notice 
published on December 22, 2008 (73 FR 78276). The proposed rule 
proposed changing the GHL definition by substituting the word ``the'' 
for the word ``a'' at 50 CFR 300.61. This change is designed to more 
precisely define the GHL as it relates to the GHL table at 50 CFR 
300.65(c)(1). The phrase ``a level'' in the former definition could be 
misinterpreted to mean any level in the table whereas ``the level'' 
more clearly indicates the level in the GHL table that is annually 
announced pursuant to 50 CFR 300.65(c)(2). As discussed in the proposed 
rule preamble under the heading ``other proposed changes,'' these 
changes were proposed to clarify NMFS's authority to limit charter 
angler harvest to the GHL.
    Comment 41: The Secretary has failed to explain his change in the 
GHL regulations. Specifically, the agency has failed to explain why it 
has abandoned the position the court found in Van Valin that it had 
adopted when it promulgated the GHL in 2003. That is, that the schedule 
for adopting management measures would be backward looking. 
Specifically, the Secretary hasn't explained why he no longer intends 
that GHL-based management measures lag behind a GHL reduction by a year 
or two. There is nothing in the record to explain the reason for this 
change. If the Secretary does not correct that failure in the final 
rule (after first publishing those reasons for comment in a 
supplemental proposed rule), then the proposed rule will be subject to 
reversal on review on that ground as well.
    Response: The proposed rule for this action (73 FR 78276, December 
22, 2008) indicated that NMFS was proposing language changes to clarify 
its ``authority to take action at any time to limit the charter angler 
catch to the GHL.'' (page 78279, column 3). Despite interpretations to 
the contrary, NMFS never intended that GHL-based management measures 
lag behind a GHL reduction by a year or two and this clarification is 
not a change in policy. According to the preamble to the GHL final rule 
(68 FR 47256, August 8, 2003), ``[i]f end-of-season harvest data 
indicated that the guided recreational sector likely would reach or 
exceed its area-specific GHL in the following season, NMFS would 
implement management measures to reduce guided recreational halibut 
harvest.'' (page 47257, column 3). This clearly indicates that NMFS can 
take prospective action based on past information, behavior that is not 
uncommon in NMFS's management of other fisheries under its purview. 
However, the following sentence in the GHL final rule preamble could 
have caused confusion, and is why NMFS chose to clarify its authority 
at 50 CFR 300.65. At page 47257, column 3, the preamble continues, 
``[g]iven the one-year lag between the end of the fishing season and 
the availability of that year's harvest data, management measures in 
response to the guided recreational fleet's meeting or exceeding the 
GHL would take up to two years to become effective.'' (emphasis added) 
This statement was meant as an explanation to why management measures 
might not be imposed immediately, not as a restriction on NMFS that it 
had to wait a period of time before it could implement management 
measures. Even if this sentence could be read as a restriction, as 
opposed to an explanation regarding the timing of data availability 
(that changes over time, as data source change) and the rulemaking 
process (that has certain time determinative requirements that can be 
waived with good cause), the sentence states ``up to two years.'' This 
phrase is generally interpreted as a range--any time between now and 
two years from now, and not usually interpreted as a guarantee of any 
amount of time. However, to be very clear about its intent, NMFS 
proposed a change to its regulations to clarify that it did not have to 
wait for a time period before taking action. This was not a change in 
policy. The proposed regulatory language for 50 CFR 300.65 is a 
clarification of NMFS's authority and this response is an explanation 
of NMFS's intent for language used in the preamble of the GHL final 
rule, which has been misinterpreted in the past.
    There are several other places in the preamble to the GHL final 
rule where statements could be taken out of context and be misconstrued 
as restrictions as opposed to examples. For instance, on page 47258, 
column 3, NMFS explains that under the GHL final rule, ``if the GHL 
were exceeded, subsequent harvest restrictions could be implemented as 
needed under normal APA rulemaking with accompanying analyses,'' and 
``this final rule would establish the GHL policy and require NMFS to 
notify the Council when a GHL is exceeded, which could serve as a 
trigger for subsequent rulemaking.'' (emphasis added) Emphasis was 
added to show that NMFS was aware of the difference between the 
mandatory portions of the GHL policy, i.e., NMFS is required to 
``notify the Council,'' and the example of actions that could occur, 
i.e., ``subsequent harvest restrictions could be implemented as 
needed,'' and notification to the Council ``could serve as a trigger 
for subsequent rulemaking.''
    Perhaps the best way to illustrate that NMFS has not changed its 
intent or policy, but only clarified its authority, is the found in the 
preamble to the GHL final rule. On page 47257, column 2, NMFS states:

    This final rule establishes a GHL policy which specifies the 
level of harvest for the guided sport recreational fishery. If the 
GHL is exceeded, then NMFS will notify the Council within 30 days of 
receiving information that the GHL has been exceeded. At that time 
the Council may initiate analysis of possible harvest restrictions 
and NMFS may initiate subsequent rulemaking to reduce guided 
recreational harvests. This final rule does not establish specific 
harvest restrictions for the guided recreational fishery. This final 
rule does not prevent the Council from recommending management 
measures before the guided recreational fishery exceeds the GHL, nor 
does it obligate the Council to take specific action if the GHL is 
exceeded.

    In other words, the final rule preamble indicated that the Council 
could take action after it is informed that the guided sport fishery 
exceeded its GHL, but it was not obligated to do so. More importantly, 
however, in response to this comment about changes in policy, the final 
rule preamble indicates that the final rule does not prevent the 
Council from taking action before the guided sport fishery exceeds the 
GHL. Any action by the Council would require NMFS's approval, and would 
need to be promulgated pursuant to the APA, whether it occurred before 
or after the guided recreational fishery exceeded the GHL. The changes 
in regulatory text proposed in 73 FR 78276, and made final by this 
rule, are consistent with the final rule for the GHL, do not represent 
a change in policy, and clarify the authority of

[[Page 21206]]

NMFS to act consistent with Council recommendations and the purposes 
and objectives of the Halibut Act.
    Comment 42: There are troubling similarities between the situation 
in Hawaii Longline v. NMFS, 281 F.Supp.2d 1 (D.D.C. 2003) and the 
current instance. That case dealt with a situation in which a court had 
struck down a NMFS rule because of an inadequate Endangered Species Act 
biological opinion. NMFS represented to the court that it would issue a 
new rule based on a new biological opinion. In fact, the new rule was 
ultimately based on the old, invalidated, biological opinion. The court 
struck down the new rule because the Secretary had not provided a new 
record and new rationale for it. In this instance, NMFS convinced the 
court to dismiss Van Valin saying that any new rule would be 
accompanied by a new rationale and new record. In this instance, the 
new rationale is simply a stated desire for a different outcome this 
time, unaccompanied by an explanation of the policy considerations that 
led to the outcome last time. The analysis for this action is in all 
material respects identical to the analysis that supported the rule 
enjoined in Van Valin. Specifically, this analysis re-confirms that: 
(1) This is an allocation action without significance for the health of 
the halibut stock; (2) lodge-based guide operations are likely to be 
forced out of business; (3) no consideration has been given to whether 
the allocation levels are fair and equitable; (4) guided angler catch 
levels are down from their peaks and are likely to remain stable for at 
least long enough to put a long-term solution in place in 2011.
    Response: On December 22, 2008, NMFS published a proposed rule to 
``reduce the halibut harvest in the charter vessel sector to 
approximately the guideline harvest for Area 2C'' (73 FR 78276, 
December 22, 2008). NMFS indicated that its intent for the rule ``is to 
manage the harvest of halibut consistent with an allocation strategy 
recommended by the North Pacific Fishery Management Council for the 
guided sport charter vessel fishery and the commercial fishery.'' NMFS 
published the proposed rule, and this final rule, under its authority 
found at 16 U.S.C. 773c(a) and (b) (Halibut Act), which unlike the 
example biological opinion provided in the comment, has not been 
invalidated by a court. Sections 773c(a) and (b) provide that NMFS has 
the general authority to carry out the Convention between the United 
States of America and Canada for the Preservation of the Halibut 
Fishery of the Northern Pacific Ocean and the Bering Sea (the 
Convention) and the Halibut Act and the authority to adopt regulations 
consistent with its general authority. The allocation strategy 
recommended by the Council was the GHL, as explained in response to 
Comment 41. The Council had the authority to make the recommendation to 
NMFS under the Halibut Act sec. 773c(c), and NMFS published those 
recommendations as regulations at 50 CFR 300.61 and 300.65.
    These regulations defined the GHL, provided a table with various 
levels of the GHL based on the annual Total CEY, and requirements for 
NMFS to publish a notice in the Federal Register establishing the GHL 
on an annual basis and to notify the Council when the GHL has been 
exceeded. As explained in the response to Comment 41, examples of how 
future harvest restrictions could be implemented should not be read as 
how future harvest restrictions must be implemented. NMFS is not aware 
of any legal reason preventing the Council from recommending management 
measures to limit the guided fishery under the Halibut Act sec. 
773c(c), whether or not the guided fishery exceeded the GHL. Further, 
NMFS has the authority to approve such recommendations and implement 
them as regulations.
    Comment 43: The intended effect of this action is to manage the 
harvest of halibut consistent with an allocation strategy recommended 
by the North Pacific Management Council for the guided sport charter 
vessel fishery and the commercial fishery. Has NMFS taken upon itself 
to follow Council recommendations before the Secretary has approved 
them?
    Response: No. This question appears to be based on a 
misunderstanding. NMFS is acting on behalf of the Secretary, and 
appropriately so under a delegation of authority. The one-fish bag 
limit will not become effective without delegated Secretarial approval.
    Comment 44: The Magnuson-Stevens Act National Standard 1: Annual 
Catch Limits (ACL) guidelines reinforce the importance of restricting 
charter harvest to the GHL cap. The ACL guidelines are clear that 
accountability measures are to be used ``to prevent ACLs, including 
sector-ACLs, from being exceeded, and to correct or mitigate overages 
of the ACL if they occur'' (74 FR 3178-3213). It would be inconsistent 
and legally suspect for NMFS to manage halibut stocks by a different 
standard.
    Response: Section 301(a) of the Magnuson-Stevens Act requires any 
fishery management plan and regulations implementing such plan to be 
consistent with the ten national standards. This requirement does not 
apply to this action because it is implemented under the authority of 
the Halibut Act and not the Magnuson-Stevens Act. Hence, the National 
Standard 1 guidelines published January 16, 2009 (74 FR 3178) do not 
apply to this action or to the GHL.
    Comment 45: The final rule should be clear that the GHL is a cap, 
not a benchmark. The proposed rule describes the GHL as a benchmark, 
which conflicts with the definition of GHL, ``Mean[ing] the level of 
allowable harvest by the charter vessel fishery.'' NMFS should correct 
all references to a benchmark found in the proposed rule prior to the 
issuance of the final rule. For example, the preamble to the proposed 
rule states that the guided industry will be managed ``near'' their 
GHL. This section needs to be corrected to state that the intent of 
this rule is to follow Council action and manage the guided fleet so it 
does not exceed the GHL.
    Response: No changes from the proposed rule are made in the final 
rule. The rule refers to the GHL as a benchmark (at Sec.  300.65(c)(3)) 
because that is the purpose the GHL was designed to serve. Essentially, 
the GHL serves as a standard or reference point against which the 
harvest of halibut by the charter vessel fishery is measured or judged. 
Also see responses to Comments 28 and 29.
    If the Council or NMFS finds it necessary to limit harvest by the 
guided sector, the approach recommended by the Council and approved by 
NMFS is to use various restrictive rules to reduce the charter vessel 
sector harvest to approximately the GHL. Such restrictions are often 
imprecise in their effect. Therefore, NMFS can not be certain that 
these restrictions will prevent the charter vessel fishery from 
harvesting no more halibut than the GHL amount. As such, the GHL is a 
harvest level target to which NMFS can try to get close but likely will 
never exactly hit.
    Comment 46: IPHC allocation procedures setting the GHL violate the 
fair and equitable clause of the Halibut Act. This proposed rule halves 
the charter bag limit while commercial catch is allowed to exceed catch 
limits. The IPHC GHL management serves a few commercial fishermen at 
the cost of the many sport fishermen. For 15 years, the Council and 
NMFS have pursued an unfair and inequitable ``allocation'' policy 
solely for the benefit of the halibut longline sector. It is 
irresponsible of NMFS to continue to circumvent analysis and 
implementation of a legally binding, fair

[[Page 21207]]

and equitable allocation between user groups. This proposed rule is 
based on outdated ``GHL Policy'' that seeks only to financially benefit 
the commercial sector.
    Response: The IPHC does not set the GHL, although the GHL in any 
particular year is linked to the Total CEY, which is set by the IPHC. 
Any resource allocation policy likely will result in some resource 
users feeling unfairly burdened with the costs of reducing their use of 
the resource.
    As the halibut resource has declined in abundance in Area 2C in 
recent years, the commercial longline fishery's catch limits have been 
substantially reduced from 10,930,000 lbs (4,957.8 mt) in 2005 to 
5,020,000 lbs (2,277.0 mt) in 2009. This represents a 54 percent 
reduction over four years.
    During part of this period (2005 through 2007) charter vessel 
anglers in Area 2C have had record high levels of harvest. If there is 
a policy to benefit the commercial longline fishery at the expense of 
the charter vessel fishery, it is not apparent under the facts 
described above. Regarding the claim of violating the fairness and 
equity provision of the Halibut Act, see the response to Comment 74.
    Comment 47: The final rule should be based on the 2009 Area 2C GHL, 
instead of the 2008 GHL, as the proposed rule is. For 2009 the IPHC has 
adopted catch limits based on the Area 2C CEY of 5,570,000 lbs. The GHL 
rule published August 8, 2003 (68 FR 47256; corrected on May 28, 2008, 
73 FR 30504) describes the procedure to identify the Area 2C GHL on the 
basis of the IPHC's approved CEY for Area 2C. The GHL in Area 2C was 
931,000 lbs in 2008. The final rule should clearly state that the GHL 
in place for the 2009 season is 788,000 lbs.
    Response: NMFS agrees that the GHL for Area 2C in 2009 is 788,000 
lbs (357.4 mt) and not 931,000 lbs (422.3 mt). This change is based on 
new Total CEY information from the IPHC meeting in January 2009, 
shortly after the proposed rule was published. The notice of the 2009 
GHL for Area 2C was published in a Federal Register notice on February 
24, 2009 (74 FR 8232). NMFS is not changing the proposed management 
measures, however, because the one-halibut daily bag limit and 
accompanying measures have the best chance of achieving the objectives 
of this action of all the alternatives analyzed. Requiring a new 
analysis of other, possibly more restrictive management measures would 
mean that those measures would not be in effect for the 2009 summer 
fishing season.
    Comment 48: This action will not constrain the guided industry to 
stay within the GHL. NMFS has relied on 2007 data because final 2008 
harvest numbers are not yet available. The proposed rule indicates that 
a one-halibut daily limit will not reduce the guided harvest to the GHL 
unless demand reduction further reduces harvest. The rule also states 
that in 2008 the guided sport harvest may have been near double the GHL 
of 931,000 lbs under the status quo management option (73 FR 78278), 
which translates to an estimated harvest of 1,862,000 lbs. The 
Council's 2007 Area 2C GHL analysis indicated that a one-fish bag limit 
for the entire 2008 season would have resulted in a harvest reduction 
of 808,000 lbs of halibut in Area 2C (Table 4 in analysis). Given that 
the correct 2009 GHL in Area 2C is 788,000 lbs, the one-halibut daily 
limit can be expected to allow a GHL overage of 200,000 to 700,000 lbs. 
Clearly an overage of this magnitude does not meet the Council's intent 
to limit harvest to the GHL. Therefore, NMFS should adopt measures in 
addition to those identified in the proposed rule to achieve the goal 
of limiting guided harvest in Area 2C to the 2009 GHL. Establishing a 
maximum size limit on the retained halibut is the management measure 
identified to control guided harvest at times of low abundance in the 
recently adopted Council Catch Sharing Plan (October 2008). This 
measure was identified by the Council as less onerous to the guided 
industry than a season closure, but reasonably calculated to achieve 
the necessary reductions based on existing analysis.
    Response: The analysis indicates that it would take a 30 percent to 
40 percent reduction in the demand for guided trips to bring the guided 
harvest down to approximately the GHL level along with the one-fish bag 
limit. NMFS does not have information to project the precise impact of 
this action on demand for guided trips. Guides commenting on this 
action and a similar action in 2008 have indicated that a demand 
decrease of this magnitude may take place. Moreover, the current 
financial crisis and recession may reduce demand independently of this 
action. NMFS believes that the combination of the one-fish limit and 
the reduction in demand may reduce harvest to approximately the GHL. 
NMFS also notes that the GHL itself is not meant to be a hard cap. See 
also the responses to Comments 28 and 47.
    Comment 49: The one-fish limit alone will not constrain guided 
harvest to the GHL. The proposal must be supplemented by a maximum size 
limit or a non-retention period. A maximum size limit may be less 
onerous to the charter industry than a non-retention period. Retain 
carcass retention, as it has considerably improved data quality and is 
necessary for maximum size limit enforcement.
    Response: The ability of the one-fish limit to control guided 
harvests to the GHL is discussed in responses to Comments 29 and 48. 
The response to Comment 110 addresses the proposal for a maximum size 
limit, and the responses to Comments 105 and 114 deals with carcass 
retention comments.
    Comment 50: Annual guided catch limits are less conservative than 
the commercial catch limits. The annual commercial fishing management 
target is set by a precautionary method. The IPHC SUFD policy 
fluctuates catch limits with stock abundance, leaving more fish in the 
water than a policy of managing catch limits to CEY. The guided 
industry requested and received a GHL ``stair step'' policy to 
implement catch limits that is similar to the commercial sector's SUFD 
approach. The SUFD approach increases catch limits slowly as halibut 
biomass increases and decreases catch limits quickly as biomass 
decreases, while the guided sector uses the same rates to modify catch 
limits regardless of halibut abundance trends. The stair-step down 
provisions allow the biomass to change by 15 percent before dropping to 
the next level. This was implemented at the guided sector's request to 
provide a more stable fishery before management measures were changed.
    Response: As noted in the response to Comment 4, the SUFD policy 
has a measured response to changing stock conditions. The GHL is not a 
catch limit in the same sense as the commercial catch limit set by the 
IPHC. However, the GHL also is linked to halibut abundance through the 
Total CEY.
    Comment 51: The GHL should include step up as well as step down 
provisions. The method used to set the GHL does not allow for increases 
in annual catch limits regardless of halibut abundance trends. This 
method is incompatible with the SUFD approach that allows the 
commercial sector IFQ allocations to exceed the Fishery CEY by 300,000 
lbs in 2006, 900,000 lbs in 2007, 3,070,000 lbs in 2008, and up to 
3,290,000 lbs this year, at a time of decreasing abundance. The IPHC 
has applied its SUFD policy solely to the commercial fleet and there is 
no analog for the charter fleet. The IPHC policy ignores conservation 
by awarding charter ``underages'' to the commercial fleet with a SUFD 
policy to benefit the seafood industry.

[[Page 21208]]

    Response: Revising the GHL is outside the scope of this action. 
NMFS notes that while the GHL does not increase beyond the maximum GHL 
established by the Council regardless of halibut abundance trends, it 
does increase above current GHL levels if there is an increase in the 
Total CEY, up to the maximum GHL of 1,400,000 lbs. The stair-step down 
provision of the GHL (see the response to Comment 50) provides the 
guided sector with a lagged GHL decrease in response to declining 
halibut biomass levels. The SUFD component of the IPHC's management 
regime is not necessarily advantageous to the commercial sector, as 
discussed in the response to Comment 4.
    Comment 52: The proposed rule assumes all guided anglers catch 
their limit. Guided anglers are seeking a fair opportunity to catch two 
halibut per day. This does not mean each angler catches two halibut per 
day.
    Response: NMFS acknowledges the comment. Based 2007 data, the 
analysis of the harvest impacts of the proposed rule assumed that 
approximately 60 percent of charter vessel anglers in Area 2C would 
catch two halibut.

Economics

    Comment 53: This action will reduce tourist demand for Southeast 
guided trips. A one-fish limit will make halibut fishing less 
attractive to charter vessel anglers, and will increase the cost per 
pound of halibut harvested with the assistance of guides. Quality 
differences mean that fish purchased in a store are an imperfect 
substitute for fish harvested in a recreational fishery. Evidence from 
declining bookings in 2008, questions about bag limits from guided 
clients and potential clients, cancellations in 2009, and statements 
made by potential clients, indicate that the one-fish limit will lead 
to large reductions in visits. Typical comments noted that many 
operations had reported a decline in bookings, for example, of about 15 
percent because of the published one-fish rule in 2008; reduced 2009 
bookings; a 20 percent to 30 percent estimate of reduced visits is not 
unreasonable. One fish per day is too few to justify the high expense 
of a trip to Area 2C for many potential clients. Many customers will go 
elsewhere, for example, to other parts of Alaska, British Columbia, or 
Mexico. It may not be easy for the guided industry demand to recover; 
the business depends on repeat customers and many of these will now go 
elsewhere. Uncertainty interferes with willingness of customers to make 
bookings. The impacts of surprise regulatory changes outlast the 
regulation by many years. It takes years to build up a client base.
    Response: NMFS acknowledges that the reduced bag limit is likely to 
reduce the demand for guided fishing in Southeast Alaska. Other than 
acknowledging the potential for lost business, as was done in the 
analysis, NMFS cannot predict the number of charter vessel anglers that 
will choose to not take a guided sport fishing trip in Area 2C as a 
direct result of this final rule. NMFS notes that the current financial 
climate may be affecting bookings at this time, so that the entire 
decline in 2009 bookings may not be solely attributable to the pending 
one-fish bag limit.
    Comment 54: Guided charter operations will be badly hurt by the 
demand decrease associated with this action. Many comments from within 
the guided industry pointed to concrete instances of the adverse 
business impacts because of the proposed 2008 one-fish bag limit, and 
to adverse word of mouth and bookings impacts already observed from the 
proposed 2009 limit. For example, one lodge operation with 1,000 
clients a year is only successful and profitable when booked to 85 
percent of capacity. At the time the comment was submitted, bookings 
were 60 percent, down from 80 percent at the same time the previous 
year. The business has a very thin margin. A sustained loss of 20 
percent of customers means the lodge will no longer be viable. 
Ultimately the statement in the analysis that some businesses will fail 
is a gross underestimate. Reductions in demand on the scale necessary 
to bring harvest within the GHL means bankruptcy for all but a few 
guided operations. Halibut charter businesses will be devastated and 
many forced out of business.
    Response: NMFS agrees that this action is likely to have adverse 
impacts on charter business profitability in 2009 and that some charter 
operators may fail or leave the business, however, NMFS does not agree 
that all but a few guided operations will go bankrupt. NMFS agrees that 
an action taken in one year may have impacts on marketing and bookings 
in subsequent years.
    Comment 55: This action will have severe adverse impacts on the 
businesses, jobs, and communities that depend on guided charter 
operations. The businesses include firms that supply food, fuel, 
material and capital equipment to the charter operations, and 
businesses that supply transportation, food, lodging, fish processing, 
gifts, and other tourist services to clients. Jobs include jobs 
provided by the charter operations and these other firms. Communities 
also suffer from lost income spent by people who would have worked in 
the guided charter business. Communities suffer from the direct losses 
of jobs and businesses, indirect impacts, and loss of tax revenue. 
These jobs and businesses are important to small local Alaskan 
communities. National Standard 8, which requires NMFS to ``take into 
account the importance of fishery resources to fishing communities to 
provide for the sustained participation of, and minimize adverse 
impacts to, such communities (consistent with conservation 
requirements) requires a consideration of these issues.
    Response: NMFS agrees that the guided sport charter vessel industry 
is an important industry for many communities, generating jobs and 
revenue for the communities involved as well as direct employment for 
the guides and crew. A reduction in the daily bag limit for charter 
vessel anglers will affect those communities and their efforts to 
develop guided businesses.
    The potential impact on bookings and demands for tourist activities 
is discussed in the analysis supporting this final rule, but 
quantitative estimates of how such impacts will influence demand for 
these services and commensurate impacts on local communities are 
unavailable. The response to Comment 72 describes recent studies on the 
relationship between sport and commercial fishing and regional 
economies, but notes that these analyses do not provide enough 
information to evaluate the impacts of this action on individual 
communities.
    Finally, NMFS and the Council considered impacts to communities, as 
is evident in sections 2.3.5 and 2.5.5 of the analysis for this action. 
However, National Standard 8 does not directly apply to this action as 
it is taken under the Halibut Act and not the Magnuson-Stevens Act.
    Comment 56: The one-fish bag limit proposal in Area 2C has adverse 
impacts in Area 3A, because potential Area 3A out-of-state clients do 
not understand the geographical differences between areas. Area 3A 
guides report adverse impacts on business and cancellations and adverse 
word of mouth at trade shows for this reason. Commenters noted that the 
Area 2C rule would provide an incentive for charter vessel anglers to 
substitute fishing trips to Area 3A for trips to Area 2C. Commenters 
noted that this could increase guided harvests in Area 3A, potentially 
causing Area 3A fishermen to exceed the 3A GHL and become subject to 
new regulatory restriction, causing economic harm to guides in 3A. One 
commenter

[[Page 21209]]

recommended that the one-fish bag limit be adopted throughout Alaska 
and the Pacific Northwest. This would limit shifts out of Area 2C, 
protecting Area 2C guides, and would protect the resource in other 
areas from excessive harvest as fishermen substitute out of Area 2C. 
One commenter noted that the proposed action is necessary because the 
conservation and management problem in Area 2C will likely come to Area 
3A soon and it should be addressed and corrected now to prepare NMFS 
and the guided charter vessel fleet for its later implementation in 
Area 3A.
    Response: NMFS agrees that the one-fish bag limit could adversely 
affect bookings in Area 3A if charter vessel anglers outside of Alaska 
are unable to discriminate between geographic areas within Alaska. NMFS 
has no data that would allow it to estimate the potential impact on 3A 
guided operations because of this confusion.
    NMFS notes that this could be offset to an unknown extent, if 
anglers substitute guided charters in Area 3A for guided charters in 
Area 2C because of a difference in bag limits. NMFS agrees that a shift 
of charter vessel anglers from Area 2C to Area 3A could lead to 
increases in Area 3A harvest that cause harvests to rise above the 3A 
GHL. It is not known whether or not increased guided fishing activity 
in Area 3A will increase harvest sufficiently to require additional 
fishing restrictions within Area 3A.
    NMFS is taking the current action to address GHL overages in Area 
2C and must evaluate events in Area 3A independently. The action taken 
for Area 2C is not being taken because of speculation regarding future 
events in Area 3A.
    Comment 57: Captains, guides, and crew would like to consume 
halibut, and it is more cost-effective for them to catch it when they 
are already on the water guiding than if they have to make a separate 
independent trip to catch halibut. They can economize on fuel, and 
other costs, if they take their recreational harvest incidental to 
their work as guides and not make special trips. It is recommended that 
guide and crew personal use fishing be allowed, consistent with 
regulations, prior to May 16 and after August 15, or some other agreed 
upon dates outside of the busy tourist season. This would allow taking 
fish for summer use, then taking fish for winter use. Total restriction 
of fishing by guides and crew does not achieve the goal of ``minimizing 
the adverse impacts on the charter fishery'' which was a NMFS goal in 
its 2008 proposed rule, or of optimizing benefit to the Nation. 
Minimization of the adverse impacts will be achieved by allowing 
personal use fishing by guides and crew to eliminate the expenditure 
for fuel and other resources that they will unnecessarily incur while 
trying to put food on their tables.
    Response: Prohibitions on retention of halibut by charter vessel 
guides, operators, and crew may make it more costly for them to harvest 
halibut for personal use.
    In 2006 and 2007, the State Commissioner of the ADF&G 
(Commissioner), consistent with his authority, issued emergency orders 
prohibiting the retention of all fish by the skipper and crew of a 
charter vessel in Area 2C (ADF&G Emergency Orders 1-R-01-06, 1-R-02-
07). The Commissioner could not make his emergency order apply only to 
halibut because the State of Alaska is not authorized to directly 
regulate halibut fishing. The comprehensive application of the 
emergency order to all fish effectively prevented charter vessel 
skippers and crews from harvest of salmon, rockfish, lingcod, and other 
species. No emergency order was issued in 2008 when NMFS implemented a 
similar prohibition, but which would only apply to halibut, as a part 
of the one-fish bag limit rulemaking. No emergency order has been 
issued as of March 2009.
    This action provides charter vessel operators relief from a 
potential comprehensive state prohibition on skipper and crew harvests 
by having a federal prohibition on skipper and crew harvest apply only 
to halibut. Assuming that the Commissioner would issue an emergency 
order prohibiting skipper crew and harvest if a federal prohibition was 
not forthcoming, this action would relieve charter vessel skippers and 
crew from the more comprehensive prohibition against retention of all 
fish on charter vessels but would impose this prohibition on the 
retention of halibut. This substitution of the federal restriction for 
the more burdensome state restriction helps minimize the burden on 
guided charter operators.
    Comment 58: This action will increase enforcement costs.
    Response: This action may or may not increase enforcement costs. 
The analysis noted that this action will increase incentives for 
charter vessel anglers to illegally harvest more than one fish a day, 
and for guides to help them do it. However, it also noted that the 
enforcement procedures for enforcing a one-fish bag limit were not 
substantially different from those for enforcing a two-fish a day limit 
or a size limit and that this action may reduce the number of separate 
operations to be monitored, as explained in the analysis. The analysis 
also noted that the level of enforcement effort was a policy decision.
    Comment 59: The one-fish limit will lead to legal and illegal 
avoidance activity. People will try to get around the rules. They may 
switch to bare boat charters, fail to register as guides or charters, 
fish for other species and ``incidentally'' catch halibut, or take 
other actions. These measures will defeat the purpose of the rules. 
Some commenters indicated that because of problems they saw with the 
proposed rule, they would not accept the regulations.
    Response: NMFS agrees that this action will increase incentives for 
anglers to substitute non-guided fishing for guided fishing, and for 
guides and anglers to conspire to illegally evade the bag limit for 
guided anglers. To the extent this happens, the reduction in guided 
sport fishing may be offset to a greater or lesser extent by an 
increase in unguided sport fishing.
    NMFS, however, does not have the information to estimate the extent 
to which the substitution of unguided for guided sport fishing will 
take place. Much will depend on the preferences of anglers, their 
opportunities to fish elsewhere, and the ability of businesses to 
substitute unguided for guided capacity.
    NMFS notes that it would expect proportionately more substitution 
of unguided for guided sport fishing by persons visiting on multi-day 
and overnight trips than by persons visiting Alaska on cruise ships.
    Comment 60: The adverse impacts to the guided sport fishery will be 
in addition to adverse impacts associated with the economic crisis, and 
to adverse impacts associated with restrictions on harvests of other 
species targeted by sport fishermen. The depressed economy on its own 
is projected to decrease tourism to Alaska by 30 percent. The 
combination of the recession and one-fish limit could reduce total 
demand by 50 percent. Consideration of the one-fish limit must take 
account of the 48-inch minimum size limit for king salmon in the second 
half of the summer, and the prohibition on taking ling cod from June 16 
to August 15.
    Response: NMFS agrees that the current recession and financial 
crisis are likely to reduce demand for guided sport fishing trips in 
the summer of 2009, and perhaps in subsequent years. Moreover, in 
recent years the State of Alaska has tightened regulations governing 
the harvest of other species of fish targeted by sport anglers. These 
tighter restrictions can be assumed to

[[Page 21210]]

reduce the attractiveness of a Southeast Alaska fishing trip and to 
reduce the demand for guided charters. The adverse impact of this final 
rule on guides will be in addition to these other impacts. Although 
NMFS is unable to quantify these other impacts, they were considered 
qualitatively in developing the final rule.
    Comment 61: This action creates a paperwork burden for guided 
charter operations. A five-minute response per angler for new reporting 
requirements adds about a half hour to the paperwork time at the start 
of each four-hour half-day charter. Did NMFS consider the capabilities 
of non-English speaking, younger, and older anglers when estimating the 
compliance burden associated with these requirements?
    Response: In the proposed rule, NMFS reported that the new logbook 
information required for this action includes the regulatory area in 
which halibut were caught and kept during the fishing trip, the printed 
name of the charter vessel angler, including youth anglers under 16 
years of age, and the signature of the angler on the back of the 
logbook sheet to verify that the number of halibut caught and recorded 
is accurate. NMFS estimated that the additional time requirement for 
each trip was four minutes for the guide and one minute for each 
angler. For example, for a guided charter vessel with six anglers, 
total elapsed time to comply with this reporting requirement could be 
10 minutes. Actual total elapsed time is likely to be shorter. The 
discussion in the preamble to the proposed rule did not estimate a 
reporting burden of five minutes per angler. Only the charter vessel 
guide would need to have an ability to read and write English. A 
charter vessel angler would be required only to sign his or her name. 
This can be done in a minute, on average, even considering the groups 
identified in the comment.
    Comment 62: It is erroneous to assume that all guided sport fishing 
lodges are small entities. In testimony before the Council owners of 
certain Area 2C lodges have said that their businesses annually gross 
between $7 million and $12 million. The threshold for identifying large 
and small entities in the fishing guide service industry is $7 million. 
The number of large lodges should be documented in the record.
    Response: The Regulatory Flexibility Act (RFA) required NMFS to 
provide an estimate of the numbers of small entities that are directly 
regulated by the action. The threshold for discriminating between large 
and small entities under the RFA in this case is $7 million in gross 
revenues. NMFS does not have access to systematic estimates of lodge 
operation gross revenue estimates similar to those that are available 
for the commercial setline fishery, or for many other commercial 
fisheries in Alaska. Moreover, the RFA requirement is to provide an 
estimate of the number of small entities, not the number of large ones. 
While the analysis did indicate that there may be large lodges 
according to this criterion, it did not subtract an estimate of their 
number, which was unavailable, from the count of total entities to 
estimate the number of small entities. Since the number of large 
entities is likely to be small in comparison to all entities, it is 
unlikely that this would seriously bias the estimate of small entities.
    Comment 63: This action will not significantly adversely impact 
angler demand for guided charters and charter operators can address 
adverse impacts by modifying their operations. One guide indicated that 
the customers will still come. This was a very small minority among the 
guides. Similarly, a very small proportion of comments from anglers 
indicated that they, personally, would not reconsider a trip to Alaska. 
Another comment indicated that, based on a study given to the Council 
in June 2007, when asked about the impact of a one-fish limit, as many 
respondents (26 percent) said it wouldn't make a difference as said 
they would be much less likely to return (24 percent). One commenter 
notes that this will not put the guided charter companies out of 
business, but will force them to move to a charter business that is 
friendlier on the natural resource such as catch-and-release and 
sightseeing.
    Response: As noted in its response to Comment 53, this action is 
likely to reduce the demand for guided sport fishing in Southeast 
Alaska, as indicated in the analysis. The comment that charter 
operations may modify their operations so as to take advantage of other 
Southeast Alaska resources, or to engage in more catch-and-release 
fishing, is most likely accurate.
    Comment 64: The guided sport fishery, as conducted, is adversely 
impacting the commercial longline fishery. Charter GHL overages affect 
the long-term constant exploitation yield, and potentially the long-
term sustainability of the halibut stock. This has an adverse indirect 
impact on longline fishermen. Guided angler harvest overages have been 
deducted from the longline catch limit, imposing a direct burden on 
longline fishermen. Guided anglers operate in the summer when larger 
females are inshore and more susceptible to rod and reel gear. Thus 
they tend to target the larger fish that contribute more in proportion 
than smaller fish to the reproductive capacity of the halibut stock. 
This has an adverse indirect impact on commercial fishermen. Many 
commercial fishermen have had to borrow money, sometimes mortgaging 
their homes, to buy the halibut quota share (QS) they needed to operate 
in the fishery. The decline in current and prospective longline 
revenues and profits makes it harder for them to repay these loans. 
Moreover, declines in current and prospective profits reduce the market 
value of their QS.
    Response: NMFS acknowledges that guided charter harvests in excess 
of the GHL can have direct and indirect adverse impacts on commercial 
fishermen, and that many commercial longline fishermen have had to 
borrow money to purchase quota shares. NMFS agrees that allocative and 
stock impacts can reduce their ability to repay those loans. See also 
responses to Comments 1 and 19.
    In 1999, the IPHC reviewed options for a maximum size limit of 60 
inches (150 cm) in the commercial fishery and concluded that, based on 
the research at the time, it did not add substantial production to the 
stock. Applying the limit to the sport fishery would have an even 
smaller benefit because the sport fishery harvest is much smaller than 
commercial harvest, and also because this action would only apply to 
Area 2C. The halibut stock is managed as a single population throughout 
its entire range. Also see response to Comment 103.
    Comment 65: The guided sport fishery, as conducted, is adversely 
impacting subsistence, personal use, and unguided sport fisheries. Two 
issues have been raised: (1) Excessive harvest hurts these user groups 
in the same way it hurts commercial fishermen; (2) localized depletion 
of stocks creates a special burden for these other user groups. 
Subsistence can be an important source of food, particularly in remote, 
rural communities with high poverty rates. Excessive harvest by the 
guided sector requires subsistence and local sport anglers to travel 
farther to catch halibut and can result in fishing grounds preemption 
by charter vessels anglers. The distance issue becomes worse when fuel 
costs are high. Guided sector harvests violate the subsistence 
priority. The area within which localized depletion is occurring is 
getting larger as charter operations upgrade their equipment. Localized 
depletion may have cultural impacts for Native fishing communities via 
the impact on subsistence harvests. Commenters report localized 
depletion near Sitka, Juneau, Craig, Prince of

[[Page 21211]]

Wales Island, and in the Icy Straits area. Commenters cite ADF&G 
estimates of catch per rod hour as evidence of localized depletion near 
Sitka and Craig. Localized depletion may also occur for species such as 
rockfish, taken as bycatch by sport fishermen. Localized depletion was 
recognized by the Council in its 1993 problem statement and played an 
important part in the Council's GHL allocation decision. Halibut 
harvest by the guided fishery should be managed to stay below the GHL 
because of concerns about depletion of local stocks and the long-term 
effects on local businesses.
    The record should be supplemented to include the effect of guided 
charter fishing in excess of the GHL on local depletion, the effect of 
local depletion on subsistence harvesters, and the weight given to 
subsistence concerns when the Council recommended the GHL allocation 
adopted in 2003.
    Response: NMFS agrees that subsistence harvests of halibut are an 
important use of halibut in Southeast Alaska, and that a key factor in 
their importance is the significant cultural role they play in the 
lives of Alaska Natives. While there is no direct allocative effect, 
NMFS agrees that harvest in excess of the GHL can complicate the 
sustainable management of the halibut stock and potentially indirectly 
impact other non-commercial users.
    With respect to localized depletion, NMFS does not have data to 
confirm that short-term localized depletions of halibut are due to 
focused harvest activity by one or more fishing sectors. Current data 
do not clearly indicate what the causes, magnitude, and geographical 
distribution of nearshore depletions might be. While it is accurate 
that commercial fishermen may fish in areas that are accessible to 
sport fishermen, any localized depletions resulting from high halibut 
catch rates may be offset in the medium-to-long term by egg and larval 
drift and migrations of juveniles and adults.
    Comment 66: The guided sport fishery, as conducted, is adversely 
impacting communities that depend on the commercial fishery. The Area 
2C halibut fishery is the economic lifeblood of many longline fishermen 
and the fishery dependent communities in which they live. The 
livelihoods of too many Alaskans that live away from the major 
transportation corridors of Juneau, Sitka, and Ketchikan have been 
seriously harmed. The guided fishery harvest must be limited to 
established GHL amounts. The unrestricted growth of the guided charter 
fishery is creating stress in coastal communities. The economic 
insecurity inflicted by the combination of reduced quotas, reduced 
access to subsistence resources due to charter-driven local depletion, 
and the federal government's stalled effort to restrict guided sport 
harvest to established catch limits, after 15 years of policy reversals 
and ineffective actions, has intensified conflicts in small coastal 
communities. These tensions are manifested as stress, hostility, and 
other socially destructive responses that are pitting neighbor against 
neighbor. The failure of the management system to adequately regulate 
and enforce existing regulations on the guided sport fishery near Sitka 
has led to social unrest in the community and increasing conflicts on 
the grounds.
    Response: As noted in the responses to Comments 64 and 65, NMFS 
agrees that the commercial longline fishery, and potentially the 
unguided sport and subsistence fisheries, may be adversely impacted 
when the guided charter fishery exceeds its GHL. This occurs through 
allocative impacts to the commercial fishery, and by complicating the 
sustainable management of the halibut stock. NMFS does not have data to 
confirm that short-term localized depletions of halibut are due to 
focused harvest activity by a particular user group. NMFS believes that 
adverse impacts to these fisheries listed above affect the communities 
in Southeast Alaska in which these fisheries are based. As noted in the 
analysis, the information that would make it possible to measure these 
impacts is not available.
    NMFS acknowledges that the controversy has created conflict in some 
Southeast Alaska communities; the analysis (see ADDRESSES) cited a 
study from the U.S. Forest Service's Northwest Research Center that 
noted that ``[c]ompetition for fish has created tension within 
communities with sizeable charter fishing fleets, such as Craig and 
Sitka.''
    Comment 67: When the guided sport fishery exceeds its GHL, there 
are secondary impacts on the commercial crab fishery. Many of the small 
processors around Southeast are being affected by the lowered halibut 
quotas and face insufficient production to cover overhead costs. The 
processor that would usually service the upcoming crab season is saying 
that it can't afford to cover the overhead to open the plant earlier 
without the additional halibut production.
    Response: NMFS acknowledges the potential for secondary impacts of 
any fishery exceeding harvest targets. This action should reduce the 
effects of these impacts by maintaining the guided sport fishery in 
Area 2C to its harvest target.
    Comment 68: The guided sport fishery is not or is minimally 
adversely impacting the commercial longline fishery. Estimates of the 
loss to the commercial sector in the analysis appear to be minimal and 
are based on arbitrary assumptions. When the longline fishery has quota 
reductions, the decrease in production generally results in an increase 
in price that buffers the impact. Quota reductions in the sport fish 
industry do not have a similar buffering impact. In fact, the opposite 
happens in that the product becomes harder to sell. A number of metrics 
indicate that the longline fishery has been doing well during the 
period when the guided sport harvests have been increasing, 
contradicting the problem statement. IPHC policy changes have provided 
catch limit windfalls to the commercial fishery that have not been 
enjoyed by other gear sectors; QS values, ex-vessel prices, and overall 
ex-vessel earnings have increased a great deal; 75 percent of 
commercial ex-vessel revenues are personal profit; and two-thirds of QS 
holders are initial recipients who have enjoyed massive financial 
windfalls with no economic responsibility (presumably without having to 
take out loans).
    Response: Halibut harvests in the guided charter fishery appear to 
impact the commercial setline fishery. NMFS does not have the 
information to prepare a quantitative analysis of the impacts although 
the analysis includes an illustrative table (Table 5) showing the scale 
of the potential gross revenue impacts. NMFS agrees that halibut prices 
have risen in recent years. In inflation-adjusted terms, the ex-vessel 
price for halibut rose by about 79 percent between 2001 and 2007.
    NMFS agrees that a reduction in the quantity supplied may lead to 
an increase in price, all other factors held equal, and that this may 
buffer the impact of harvest reductions. However, NMFS does not believe 
that the impact of Area 2C harvest reductions on Area 2C price will be 
large as a result of this action. Halibut from Southeast Alaska compete 
with halibut produced from California to the Bering Sea in a regional 
(and international) market. Prices in this market are determined by 
overall supply, the prices of substitute goods, income, exchange rates, 
inventories, and other factors. Area 2C fishermen only contribute a 
part of the overall market supply, and thus a change in their 
production is likely to only have a modest impact on the price they 
receive.
    IPHC statistics show that Area 2C longline harvests have fluctuated

[[Page 21212]]

between 8,410,000 lbs and 10,630,000 lbs over the last ten years, 
although since 2005, the IPHC catch limit has dropped in each year, 
falling by 54 percent overall. This decline in the catch limit is 
indicative of a large adverse impact to the longline fishery in recent 
years. Only part of this impact is attributable to the guided charter 
fishery GHL overages. Many factors affect ex-vessel prices and the 
value of QS. The fact that these values have increased in the past does 
not mean that guided charter operations have not had an adverse impact 
on these operations, although guided charter overages were a 
contributory factor during the years when the IPHC based its 
projections of guided landings on extrapolations from past landings and 
not on the GHL.
    The comment about profitability appears to refer to a McDowell 
Group study prepared in April 2007 for The Halibut Coalition titled, 
``Economic Impact of the Commercial Halibut Fisheries in Areas 2C and 
3A.'' While the McDowell group estimates that 75 percent of ex-vessel 
earnings become personal income for halibut fishery participants, this 
includes earnings for QS holders, management, and skipper and crew 
labor, as well as business profits. The 75 percent estimate would 
overstate profits.
    Comment 69: The commercial longline fishery, as conducted, is 
adversely impacting the guided sport fishery. Removals in a given year 
will have an effect on Total CEY in subsequent years. In 2008 
commercial catch limits were above the Fishery CEY by 2,300,000 lbs. If 
these halibut had been left in the water, assuming a 20 percent 
exploitation rate, the 2009 Total CEY would have been high enough to 
produce a GHL of 931,000 lbs rather than 788,000 lbs.
    Current longline fishing methods and regulations have allowed 
longline fishing to occur nearly year-round every year and in 
unrestricted fishing grounds. Where halibut were once plentiful before 
the IFQ system, there are now few to be caught. Sport fishermen must 
use more resources and assume more personal risk for the opportunity to 
catch two halibut. When commercial long-line fishing was limited to 
season openers over a shorter period of time, halibut were able to 
migrate closer to shore and offered sport fishermen greater opportunity 
for success. The IFQ system reduced risks for commercial fishermen, as 
intended, but shifted them to sport fishermen.
    Response: In part, this is a comment about the impact of the IFQ 
system on halibut sport fishermen. The IFQ program is not the subject 
of the current action. NMFS agrees that leaving fish unharvested 
contributes to biomass and Total CEY in subsequent years. NMFS notes 
that, as shown in Figure 2 in this preamble, Fishery CEY has exceeded 
the catch limit by large amounts in the past, so that large portions of 
the Fishery CEY have been left unharvested. The change in Total CEY is 
the result of a number of factors including changes in our 
understanding of halibut stock biology and commercial longline and 
other harvests (including guided harvests in excess of the GHL between 
2004 and 2008).
    As discussed in the response to Comment 65, NMFS does not have data 
to confirm that short-term localized depletions of halibut are due to 
focused harvest activity by one or more sectors.
    Comment 70: The environmental and cost-benefit analyses are 
inadequate. Commenters had a number of concerns: (a) The analysis 
tended to provide more information about commercial fishery impacts 
under the status quo than it did about the costs of the action 
alternative to the sports fishermen; (b) the analysis failed to 
estimate the net benefits or costs of the action; (c) additional 
economic research is necessary; (d) the analysis failed to adequately 
address the impacts of the status quo on subsistence and non-guided 
sport users; (e) the analysis failed to adequately recognize that GHL 
overages are a conservation issue; (f) NMFS erroneously assumes there 
will be an increase in charter boats and guided harvests in 2008 and 
2009 over 2007; and (g) the analysis fails to provide an estimate of 
the number of large lodges, according to the criteria of the Regulatory 
Flexibility Act.
    Response: Several of these issues have been addressed in other 
comments. Comment 70(a) is addressed in detail in the response to 
Comment 71. Comment 70(b) is addressed in response to Comment 73. 
Comment 70(c) regarding research projects underway, these are 
identified in the analysis (see ADDRESSES). The response to Comment 72 
describes two studies released since the analysis was prepared. With 
regard to Comment 70(d), NMFS has modified the analysis to provide a 
brief description of unguided sport and personal use fishing activity. 
However, the discussion also notes the lack of information on the 
causes of localized depletion.
    In response to Comment 70(e), the relationship of this action to 
conservation is discussed in detail in the responses to Comments 1 
through 27. The response to Comment 7 notes that the environmental 
assessment part of the analysis is meant to determine whether the 
impact of the action would have a significant impact on the human 
environment and does not determine whether an action has a conservation 
objective.
    In response to Comment 70(f), NMFS did not assume that there will 
be an increase in the number of operations in 2009. NMFS notes that the 
GHL for 2008 was 931,000 lbs. As shown in Table 1 of the analysis, the 
guide sector has caught more than the 931,000 lbs every year over the 
period from 1997 to 2007. The best available harvest information for 
2008 indicates that the guided fishery exceeded the 2008 GHL in that 
year as well. NMFS did not project increases in future guided angler 
activity. NMFS's conclusions about the impact of the action were based 
on the assumption that in the absence of action, if guided harvest 
levels persisted at levels observed in recent years, or even declined 
significantly, the guided fishery would harvest in excess of the GHL, 
as observed in recent years.
    The response to Comment 70(g) is addressed in the response Comment 
62.
    Comment 71: The analysis tended to provide more information, 
including quantitative information, about commercial fishery impacts 
under the status quo than it did about the impacts of the action on the 
guided charter fishery. The analysis does not include estimates of 
gross revenue impacts to the charter fleet, even though NMFS provided 
such estimates for its analysis of the Catch Sharing Plan. The analysis 
of the Catch Sharing Plan included rough estimates of revenue impacts 
accruing to the guided charter fishery from a range of options. A 
comparison of two of the Catch Sharing options (1c and 2c in Table A-
42, page 74) suggests that this action would have adverse revenue 
impacts of about $10.4 million in the year the restriction was imposed. 
Despite the fact that NMFS was able to make gross revenue estimates of 
the impacts on guided charter operators from the Catch Sharing Plan 
action, it has not done so for the current bag limit action.
    Response: The analysis includes a qualitative analysis of the 
impacts to charter vessel anglers (Section 2.5.1) and to guided 
operations (Sections 2.5.2 and 2.5.3) that is comparable to that 
provided for impacts to longline fishermen (Section 2.5.4). The 
analysis does not provide a quantitative projection of the impact on 
longline fishermen, although it does provide an illustrative table 
showing the longline costs under the status quo for one set of 
assumptions.
    NMFS has not provided a similar illustrative table for the guided 
sport fishery because the fundamentally

[[Page 21213]]

different natures of the products of the two sectors (halibut sold in 
competitive markets as opposed to fishing experiences which are 
affected by the availability of halibut) preclude guided charter gross 
revenue estimates with the information currently available. The output 
of the commercial longline sector is halibut, and this output in Area 
2C is small enough compared to overall output on the West Coast that 
the impact of changes in Area 2C production on Area 2C halibut prices 
are probably small. The quantity supplied by the longline sector 
appears to be closely related to the annual catch quota set by the 
IPHC. Under these conditions, NMFS has been able to provide 
illustrative calculations of gross revenues for the longline sector. 
However the situation is very different in the guided sector. The 
output in the guided sector is not halibut, but days of angler fishing 
time. To estimate gross revenue changes in the guided charter fleets, 
NMFS would have to have demand models based on survey research, which 
would allow the determination of changes in angler participation in the 
lodge-based and cruise ship-based industry segments in response to 
changes in the bag limit. Moreover, NMFS would need better information 
than it has on the possible guided charter operation supply responses.
    The analysis for the one-fish bag limit included the best 
scientific and commercial information available to NMFS. The Catch 
Sharing Plan analysis cited in the comment was prepared for the 
Council. This analysis has not yet been submitted to NMFS for review.
    As noted above, the analysis for the bag limit includes a 
qualitative discussion of the impacts of this action on guided anglers, 
half-day guided operations, and full and multi-day guided operations. 
Different assumptions and models will generate different approaches to 
a problem and different results. NMFS has worked with a conceptual 
model in which retained halibut catches are one input into the demand 
for guided charter fishing days. A change in the number of halibut 
retained will shift the demand curve; guided charter businesses may 
respond by altering their business models or prices. The impacts will 
be different in the half-day and full- and multi-day segments of the 
guided charter business. NMFS does not have the data necessary to 
better specify or estimate the parameters of this model. As noted in 
the analysis (see ADDRESSES), ongoing research conducted by NMFS at the 
Alaska Fisheries Science Center may change this in the future.
    The model used for the Catch Sharing Plan implicitly assumes that 
fishermen come to catch a certain weight of halibut, that the demand in 
terms of the number of angler-days is fixed for any given GHL, and that 
demand is not responsive to price or any other factor. The model 
assumes anglers come to Alaska to harvest 24 lbs of halibut (an 
estimate based on average harvests by charter vessel anglers in Area 
2C) and the model equilibrates so as to set the number of angler-days 
demanded equal to the GHL divided by 24. The quantity of halibut 
harvested is central to the Catch Sharing Plan model, while the fishing 
experience in Southeast is central to the model used in this analysis. 
As the Catch Sharing Plan analysis notes, the analysis was provided at 
the request of Council members, despite the impossibility of providing 
rigorous estimates of charter sector revenue with the information 
available.
    Comment 72: In December 2008, an economic study of the economic 
impacts and contributions of sport fishing, prepared by the Southwick 
Associates consulting firm, was published by the ADF&G. The new 
information in this study should be used in the analysis of this 
action.
    Response: NMFS appreciates this comment, bringing this report to 
its attention. In fact, since the preparation of the analysis for the 
proposed rule, two new reports describing the relationship between 
sport and commercial fisheries and regional economies have become 
available. One, prepared by consultants to ADF&G, estimates regional 
impacts for fresh and salt water sport fishing in Alaska; a second, 
prepared by consultants for a consortium of fishing industry groups, 
estimates regional impacts for Alaska commercial fisheries. While the 
two studies are useful additions to the literature on the social 
impacts of Alaska fisheries, they are of limited use in estimating the 
impacts of the proposed action in Southeast Alaska.
    Both studies are driven by changes in the quantity of the good or 
service demanded. In the case of the sport fishing study the demand is 
for days of fishing time, and in the case of the commercial study the 
demand is for volume of fish products at the first wholesale level. 
Neither study discriminates between halibut fishing and other types of 
sport or commercial fishing. This is a more important shortcoming for 
using the commercial study to evaluate the action's impacts than it is 
for the sport study, since the level of aggregation is higher in the 
commercial study. The analyses do not provide information that would 
make it possible to estimate how this action would change the quantity 
of the outputs demanded. This is a serious shortcoming since there is 
great uncertainty about the impact of this action on days of guided 
sport fishing demanded. Moreover, both studies assign impacts based on 
the location where the fishing activity takes place, and not on the 
place of residence of the individuals earning incomes. Thus, for 
example, the impacts for a charter guide or longline crew member from 
Washington State or South Central Alaska are attributed to Southeast 
Alaska, where the activity took place. However, in each case, the 
individual in question may have had very limited contact with the 
Southeast economy and may have spent all their income outside of the 
region. Finally, as noted in the response to Comment 73, these studies 
are impact studies and not designed for cost-benefit analysis. The 
sport fishing study results were based in part on survey research on 
activity and spending during 2007. The analysis did not focus on or 
provide special information about trips targeting halibut. The 
information from the commercial study must be inferred from figures 
because it contains little tabular data.
    NMFS recommends reading the actual studies for more information. 
The sport fishery study, titled ``Economic Impacts and Contributions of 
Sportfishing in Alaska, 2007'' is available online at http://www.sf.adfg.state.ak.us/Statewide/economics/; the commercial fisheries 
study, titled ``The Seafood Industry in Alaska's Economy'' is available 
at http://www.marineconservationalliance.org/docs/SIAE_Jan09.pdf.
    Comment 73: A number of comments go beyond pointing to the impacts 
that imposing a one-fish daily bag limit will have on individual 
sectors and communities and make explicit comparative statements about 
which alternative will produce the greatest balance of benefits to 
costs. For example, one commenter notes that the December 2008 report 
from ADF&G discussed in the response to Comment 72 gives NMFS the 
information needed to properly weigh the benefits and costs of this 
action. This shows that the action may cause a 2009 loss of up to 40 
percent of $175 million (in non-resident angler spending in Southeast 
Alaska) for a benefit of additional revenues to longline fishermen of 
about $2.5 million in 2009. Another commenter cites national figures 
from the NMFS

[[Page 21214]]

publication ``Fisheries Economics of the U.S.,'' to argue that, because 
implied average income per job is higher in the recreational fishery 
than in the commercial fishery, a national shift from commercial to 
recreational fishery use of fish resources could lead to significant 
increases in national income. A third asks, what is better for our 
communities: one wealthy commercial fisherman spreading his wealth or 
several tourists spreading their wealth and creating word of mouth 
about the beauty and splendor of our waters? Which supports our 
community better, transporting a commercial crew a couple times over 
the summer or transporting charter vessel anglers a couple times a 
week? Which supports our community better, a commercial crew visiting 
in town between trips or a group of tourists seeing us for the first 
time or at least the first time this year? If we accept in theory that 
the same amount of money is made by both operations, then look at which 
operation puts more dollars back into Alaska and more importantly back 
into the economy; then the only rational argument is for the charter 
operation. These are offered as examples; there are other similar 
comments.
    Response: With the limited information available, it is not 
possible to conduct quantitative cost and benefit analyses comparing 
the benefits and costs to the commercial longline and guided sport 
industries or evaluating impacts on the regional economy. In the 
absence of quantitative information, NMFS has conducted a qualitative 
analysis using the best information available to it. NMFS notes that 
many of the comparative comments about benefits and costs relate to 
costs and benefits in Southeast Alaska. While NMFS has a responsibility 
to look at impacts in Southeast Alaska, its ultimate responsibility is 
to conduct an analysis from a national accounting perspective. As noted 
in the response to Comment 72, while studies have recently become 
available that provide information on the output, income, and 
employment impacts of sport and longline fishing in Alaska and the 
Southeast Alaska region, these are not designed for use in a cost-
benefit analysis and are not adequate to support an input-output 
analysis of the proposed action. These studies are useful, but they 
don't provide enough information to do a fully meaningful impact 
analysis of this action for several reasons described earlier.
    Impact analyses such as these do not provide information that would 
be useful for a cost-benefit analysis. Impact multipliers measure gross 
changes in income and jobs. Regional impact multipliers might show 
regional income and job changes, but would be much less likely to show 
national income and job changes because income and jobs created in one 
region would come at the expense of income and jobs in other regions.

Fairness

    Comment 74: The allocation incorporated into the GHL system is not 
fair and equitable within the terms of reference of the Halibut Act. 
Although the proposed rule mentions 16 U.S.C. 773c (Halibut Act) in 
passing, it never mentions the ``fair and equitable'' standard, and it 
states that the Secretary is relying on the general rulemaking 
authority contained in subsections 773c(a) and (b). There never has 
been a determination by the Secretary that the GHL represents an 
allocation that is tied to any rational standard, much less the ``fair 
and equitable'' standard of the Halibut Act. The Secretary needs to 
explain how the ``fair and equitable'' clause in the Halibut Act is 
fulfilled in current action. The Secretary cannot merely assume that 
regulating to the GHL will result in an appropriate and legally 
defensible allocation; rather the Secretary must explain why that is 
so. The Secretary has not done this and as a result, the entire 
proposed rule is built on a faulty premise.
    Response: NMFS disagrees. This action complies with the fair and 
equitable requirement of the Halibut Act. This Halibut Act requirement 
reads as follows:

    If it becomes necessary to allocate or assign halibut fishing 
privileges among various United States fishermen, such allocation 
shall be fair and equitable to all such fishermen, based upon the 
rights and obligations in existing Federal law, reasonably 
calculated to promote conservation, and carried out in such a manner 
that no particular individual, corporation, or other entity acquires 
an excessive share of the halibut fishing privileges. (section 
773c(c)).

    The ``fair and equitable'' provision in 16 U.S.C. 773c(c) quoted 
above is substantially the same as the ``fair and equitable'' provision 
found at 16 U.S.C. 1851(a)(4), i.e., National Standard 4 of the 
Magnuson-Stevens Act. The only difference is the addition of the word 
``halibut'' before ``fishing privileges'' in the provision in 16 U.S.C. 
773c(c). Because of this similarity, NMFS determined that use of 
regulations promulgated by NMFS as guidelines for the National Standard 
4 would be helpful to illustrate why this action, even though it is 
taken under the Halibut Act and not the Magnuson-Stevens Act, meets the 
statutory requirement.
    Guidelines to National Standard 4 provide that an allocation of 
fishing privileges should be rationally connected to the achievement of 
optimum yield or the furtherance of a legitimate fishery management 
objective (50 CFR 600.325(c)(3)(i)(A)). The Council and NMFS have 
articulated a legitimate objective for this action, i.e., to limit the 
use of halibut by one sector that has grown significantly in proportion 
to the other sectors that harvest halibut.
    Further, the guidelines to National Standard 4 acknowledge that 
inherent in an allocation is the advantaging of one group to the 
detriment of another. The motive for making a particular allocation 
should be justified in terms of fishery management objectives; 
otherwise, the disadvantaged user groups or individuals will suffer 
without cause (50 CFR 600.325(c)(3)(i)(A)). Here, the fishery 
management objective has been articulated by the Council and NMFS, 
starting with the 1995 problem statement by the Council and continuing 
through this final rule. The 1995 problem statement (as revised in the 
2001 GHL analysis) demonstrates that the Council was concerned about 
the expansion of the halibut charter industry and how that expansion 
may affect ``the Council's ability to maintain the stability, economic 
viability, and diversity of the halibut industry, the quality of the 
recreational experience, the access of subsistence users, and the 
socioeconomic well-being of the coastal communities dependent on the 
halibut resource.'' The Council went on to indicate six issues of 
particular concern, including the absence of limits on the annual 
harvest of halibut by the guided sector and the rapid growth in that 
sector, which amounted to an ``open-ended reallocation from the 
commercial fishery to the charter industry.''
    To address the open-ended reallocation, the Council established a 
GHL, based on historic catches in that sector (125 percent of the 
average harvest from 1995 to 1999). The decision to make the GHL 125 
percent of actual harvest would ``allow for limited growth of the 
guided recreational fishery, but would effectively limit further growth 
at the (GHL) level'' (68 FR 47256, 47259, column 2, August 8, 2003).
    Under the fair and equitable requirement, the motive for making a 
particular allocation should be justified in terms of the objective. 
Hence, the legitimate objective is to limit the growth of one sector 
and the resulting

[[Page 21215]]

reallocation from other sectors that use the same finite resource. The 
GHL accomplished that objective by basing harvest limits on historic 
catches with some room for additional growth.
    The development of this action, and the actions that preceded it, 
illustrate how the fair and equitable standard was met throughout the 
process. The Council articulated a legitimate objective and established 
an allocation consistent with that objective, allowing some growth of 
harvests by the guided recreational sector. This action implements 
management measures to give effect to that allocation. It should be 
understood that a fair and equitable allocation does not mean that all 
U.S. fishermen should be able to harvest equal amounts of the halibut 
resource. However, a legitimate objective is required and the means to 
achieve that objective must be reasonable. This action is consistent 
with those requirements.
    Comment 75: The proposed rule is consistent with the fair and 
equitable clause of the Halibut Act. The guided charter fishery was 
given a fair and equitable GHL and allowing them (i.e., charter vessel 
anglers) to exceed it is unfair and inequitable to all other halibut 
harvesters. The original GHL allocation was fair and equitable for 
several reasons. It allowed for guided sector growth; the Council 
evaluated and balanced the needs of all halibut user groups; it is 
based on a long public record; and guided charter fishermen did not 
challenge the allocation when the GHL rule was published in 2003. 
Continuing to allow charter vessel anglers harvests to exceed the GHL 
is unfair and inequitable to other harvesters, including those who 
supported conservation through quota cuts.
    Response: NMFS acknowledges the comment and agrees that this action 
is fair and equitable as required by the Halibut Act. Also see the 
response to Comment 74.
    Comment 76: This action provides special benefits to the longline 
fishermen at the expense of the American public. Halibut is a public 
resource that belongs to all citizens of the United States, and public 
access should not be restricted to benefit commercial fishermen. The 
proposed rule would give poundage back to the commercial fleet and cut 
the guided sport catch, which discriminates against recreational 
fishermen. This violates the fair and equitable terms in the Halibut 
Act, Magnuson-Stevens Act, and other statutes. The Magnuson-Stevens Act 
clearly indicates that holders of halibut IFQ do not hold ownership or 
property rights. The citizenry is endowed with priority access to 
natural resources, yet this action reduces the non-commercial catch 
privilege by 50 percent in favor of the commercial sector.
    Response: NMFS disagrees with the commenter's assertion that this 
action disproportionately benefits the commercial setline fishery. The 
halibut catch limit for Area 2C commercial fishermen is reduced by 
about 19 percent from 2008 to 2009 and has decreased by 54 percent 
between 2005 and 2009. During the comparable period of 2005 through 
2008, the guided fishery harvest in Area 2C has remained high, 
exceeding its GHL by about 32 percent (compare Figures 1 and 2 above). 
See the response to Comment 74 with regard to fairness and equity.
    Comment 77: All Alaskans share the halibut resource and all have 
equal rights to it. Many commercial boats are not from Alaska.
    Response: Federal law prohibits NMFS from discriminating between 
residents of different states when implementing halibut fishery 
regulations that are applicable to nationals or vessels of the United 
States. Also see the responses to Comments 76 and 82.
    Comment 78: There is a commercial bias in the IPHC and Council. The 
IPHC and Council have supported growth in commercial harvest while 
stifling the guided sector. The guided charter vessel owners do not 
have representation in these bodies; therefore, all decisions tend to 
favor the commercial sector. This creates concerns about the fair and 
equitable allocation of fishing privileges, and as a result, the 
commercial sector was allocated an excessive share of the halibut 
resource. This is inconsistent with the Magnuson-Stevens Act, the 
Halibut Act, and the Alaska Constitution. The Secretary of Commerce 
needs to address the question of whether or not the membership of the 
Council is ``fair and balanced'' in accordance with the Magnuson-
Stevens Act. Guided charter vessel operators will not accept 
regulations that come from the Council or NMFS until they have a 
meaningful way to determine a ``fair and equitable'' allocation with 
``fair and balanced'' representation.
    Response: This action is being taken by NMFS based on a 
recommendation by the Council. Actions by the IPHC are evaluated and 
approved under a different process.
    The process for selecting Council members is set in statute and 
employs mechanisms to assure representation of the various states 
represented on the Council and fair and balanced apportionment to the 
extent practicable. The Council makes decisions through a transparent 
and public process, and in a manner that is consistent with the 
requirements of the relevant statutes.
    The Council has the authority to develop regulations to address 
allocation issues among different domestic sector users of halibut off 
Alaska, including the commercial and guided sport fisheries. In 1998 
the Council initiated a public process to identify GHL management 
options and formed a GHL committee including representatives from the 
guided industry. The Council has continued to use this committee to 
develop long-term management recommendations that promote harvest 
stability between the commercial and guided sport fishery sectors. The 
Council has used the recommendations from this committee to formulate 
its GHL management options. Furthermore, NMFS reviews all Council 
regulations for consistency with the Halibut Act, the Convention, and 
other applicable law. This final rule does not unfairly favor any 
sector over any other.
    Comment 79: The combination of SUFD and GHL policy has resulted in 
an annual de facto reallocation to the commercial sector solely to the 
economic benefit of the longline fleet with no consideration of 
fairness or equity for other users. The stair-step provisions of the 
GHL are compromised by three distinct non-scientific IPHC policies that 
directly result in an increased allocation to the commercial fishery: 
(1) The ``fast down'' policy sets a commercial harvest level in excess 
of the Fishery CEY in times when biomass is decreasing, which in turn 
triggers the lowering of the GHL; (2) the substitution of the GHL for 
the best estimate of guided sport fishery harvest instead of a more 
realistic harvest estimate inflates the Fishery CEY and the subsequent 
overharvest of Total CEY by the same amount; and (3) the IPHC catch 
decisions can differ from IPHC staff recommendations for political 
reasons and have resulted in allocation schemes that allocate millions 
of pounds of fish in excess of the Fishery CEY to commercial fishermen 
at the expense of the GHL in following years.
    Response: The policies followed by the IPHC in setting annual 
commercial catch limits are beyond the scope of this action. However, 
although different approaches for projecting halibut mortality in 
different sectors could be used when setting annual catch limits, the 
IPHC's approach accounts for total mortality of halibut in a manner 
that conserves the halibut resource.

[[Page 21216]]

    The response to Comment 4 discusses the SUFD management policy and 
why this policy is not necessarily advantageous to the commercial 
sector. See also the response to Comment 3 for why the IPHC adopted the 
GHL as its projection of the guided sport harvest in response to a 
commitment by NMFS to implement the one-fish bag limit for 2008 and 
again in 2009. Finally, the response to Comment 5 addresses the IPHC's 
rationale for deviating from its staff recommendations for Area 2C 
fishery CEY while managing the halibut resource area-wide in a manner 
intended to meet overall objectives for resource exploitation rates.
    Comment 80: This action discriminates inappropriately between 
guided and unguided sport fishermen. Sport fishermen without their own 
boats, who choose to fish from charter vessels, would be penalized, 
especially those who because of residence, age, physical ability, or 
financial limits cannot operate or buy their own boat. Unguided anglers 
would still have the two-fish daily limit. This violates equal access 
and equal protection rights. All recreational anglers should be treated 
equally and be subject to the same regulations.
    Response: NMFS disagrees that this action inappropriately 
discriminates between guided and unguided anglers. The problem the 
Council and NMFS are addressing was the growth of the guided 
recreational sector compared to other halibut user groups. According to 
the analysis, participation and harvest levels for the unguided 
recreational sector has remained relatively steady, while participation 
and harvest levels for the guided recreational sector has increased to 
a level that prompted action by the Council and NMFS. The Council 
articulated the objective of limiting the guided recreational sector, 
which by its growth was affecting other user groups that historically 
utilized the halibut resource. The Council established an allocation 
level consistent with that objective, i.e., the GHL. The one-fish daily 
bag limit was determined by NMFS to be a reasonable means to achieve 
the objective of limiting the guided recreational sector to 
approximately the GHL established for that sector.
    Comment 81: The proposed action does not discriminate 
inappropriately between guided and unguided sport fishermen. A charter 
vessel angler receives the benefit of the guide's knowledge and skill, 
which provides a higher harvest success rate. In addition, when the GHL 
was adopted, the guided sport sector was growing, while other sport 
sectors remained stable.
    Response: NMFS agrees. NMFS also notes that the guided sport 
harvest in Area 2C grew every year from 1999 to 2005. During that time 
the non-guided sport harvest fluctuated from year to year, not showing 
any strong increasing trend. In 2006 and 2007, the guided sport harvest 
was slightly down from its 2005 peak but remained high and 
substantially above the GHL, while the non-guided sport harvest grew 
slightly but stayed within its 1999 through 2005 range. Therefore, 
self-guided angler harvest is not restricted by this action. It is the 
increase in halibut harvest by the guided industry that prompted the 
Council and NMFS to propose controls on the Area 2C charter vessel 
angler harvest consistent with the Halibut Act.
    Comment 82: The proposed rule discriminates between residents of 
different states. The supplementary information states, ``In Area 2C, 
the sport fishery is comprised of guided fishing on charter vessels and 
unguided angling. Residents of Southeast Alaska and their family and 
friends are the primary unguided anglers, while non-resident tourists 
are the main clients for guided fishing on charter vessels.'' From this 
passage, it is clear that the rule is primarily intended to restrict 
non-resident tourists while not restricting Southeast Alaska residents 
and their family and friends. This is in direct violation of the 
Halibut Act, which states it is illegal to differentiate between users 
from different states.
    Response: Regulations established by this action apply to all 
charter vessel anglers, regardless of their state of residency. See the 
response to Comment 80. NMFS did not propose to limit halibut harvests 
by non-guided sport and subsistence fisheries, or halibut mortality 
from bycatch and wastage in commercial fisheries because the analysis 
(see ADDRESSES) indicated that removals from categories other than the 
guided sport sector have remained relatively stable during the past 
five years and have not grown at the rate of the guided fishery. It is 
this information that originally prompted the Council to recommend 
restrictions in 2007 to limit Area 2C charter vessel angler harvest, 
and prompted NMFS to take this action.
    Comment 83: The prohibition of captain and crew fishing unfairly 
discriminates against the sport fishing rights of these individuals and 
may not comply with the non-discrimination clause in the Halibut Act. 
The prohibition is not justified because skipper and crew harvest was 
not included in the GHL allocation. Captain and crew members are 
required to have a current fishing license while they are on the 
vessel, and their catch should be considered unguided sport harvest and 
limited to two halibut per day. Captain and crew are simply trying to 
minimize the costs of fuel and use of their time by combining personal 
use fishing with their charter trips, rather than making a separate 
trip for their recreational limit. Many captain and crew depend on 
halibut for food at home and should not be penalized for trying to 
gather halibut in an efficient manner.
    Response: NMFS disagrees. The Council and NMFS, working with 
stakeholders, approved a prohibition on the catch and retention of 
halibut by charter vessel guides, operators, and crew as a preferred 
first tool for restricting harvest in the guided fishery. The Council 
intended that the GHL include halibut harvested by captain and crew. 
The ADF&G estimated that its prohibition on crew-caught fish reduced 
halibut harvest in the guided sport fishery by between 78,000 lbs and 
84,000 lbs in 2006.
    Captains, guides, and crew are on guided charter vessels in their 
commercial capacity to operate the charter vessel and to direct charter 
vessel anglers on fishing expeditions, and their commercial status is 
fundamentally different from other individuals doing non-guided sport 
fishing. Also, their ability to retain one or two halibut could 
disguise the retention of halibut in excess of the bag limit applicable 
to charter vessel anglers. Preventing this potential circumvention of 
daily bag limits is a rational means of achieving the objective of NMFS 
for this action.
    NMFS acknowledges that the prohibition on retention of halibut by 
charter vessel guides, operators, and crew could lead to higher costs 
for these individuals to harvest halibut for their personal use. 
Requiring a separate fishing trip for this purpose, however, does not 
make fishing any more expensive than it is for any other individual 
engaged in recreational fishing. Also see the response to Comment 57.
    Comment 84: This action will have an unfair economic burden on 
lodges, hotels, B&Bs and charter operators that offer full day or 
multi-day trips. The number of cruise ship visitors to Alaska has grown 
over the last 10 years. Many of these cruise visitors take half-day 
charters and have significantly contributed to the increase in halibut 
catch over that time period. Therefore, the economic burden of this 
rule will be borne unfairly by those businesses that depend on full day 
or multi-day charter trips.
    Response: The analysis (see ADDRESSES) indicates that the segment

[[Page 21217]]

of the charter industry that caters to cruise ship tourists will not be 
impacted by changes to the daily bag limit to the same extent as the 
lodge-based guided charter businesses. Tourists on the four-hour 
charter fishing trips associated with cruise ships often do not have 
enough time to harvest two halibut. Tourists coming to communities on 
cruise ships and choosing to take a charter trip for halibut will 
likely continue to do so and businesses that cater to these tourists 
will continue to benefit from their visits.
    NMFS acknowledges that independent or repeat tourists who take 
multi-day vacations at lodges within Area 2C may consider the reduced 
halibut bag limit in their decision to book a vacation, along with 
considerations for alternative fishing or tourist opportunities. The 
potential impact on bookings and demands for tourist activities is 
discussed in the analysis supporting this final rule, but quantitative 
estimates of how such impacts will influence demand for these services 
and commensurate impacts on local communities are unavailable. Other 
than acknowledging the potential for lost business, NMFS cannot 
quantify the probability or extent to which this might occur.
    Comment 85: The commercial fishery benefits a few participants, and 
the recreational fishery spreads benefits more broadly. This action 
represents the big commercial interests trying to drive out the smaller 
guided charter operators.
    Response: NMFS disagrees that the recreational fishery necessarily 
has more beneficiaries than the commercial fishery. In addition to 
commercial fishermen, the commercial fishery benefits persons working 
in the processing, transport, wholesale and retail industries, and 
ultimately the large number of persons who buy halibut in grocery 
stores or restaurants. Businesses that serve commercial fishermen in 
communities in which the commercial halibut fishing industry is based 
also are beneficiaries. Of course, there are also many beneficiaries of 
the guided sport fishing industry other than the charter vessel 
anglers. However, claims that the guided industry or the commercial 
fishing industry has more or less beneficiaries than the other misses 
the objective of this action, which is explained above under 
``Objective of this action.'' Regarding the relative size of commercial 
interests in the guided and commercial fishing industries, NMFS 
observes that both industries have large and small operations and both 
industries participate in Council meetings.
    Comment 86: The timing of this action is unfair to sport fishermen 
and guided businesses. It is unfair to those who have already made 
reservations or paid nonrefundable deposits for 2009. The timing is 
also unfair to those recreational fishermen considering whether to make 
advance reservations; many are leery of planning a trip when the season 
bag limits are uncertain. Finally, this is unfair to guided businesses 
dependent on long reservation lead times, which are often made two 
years in advance.
    Response: NMFS acknowledges that a change in guided sport fishing 
regulations can be disruptive at any time of the year and may cause 
some charter vessel anglers to reconsider bookings. However, 
information about the potential for this action has been available 
since June 2007 when Council action indicated a potential for a one-
halibut daily bag limit for charter vessel anglers in 2008. A final 
rule was published to implement this requirement in 2008 (73 FR 30504, 
May 28, 2008), but NMFS withdrew this final rule in response to a court 
order (73 FR 52795, September 11, 2008). This action to implement a 
reduced daily bag limit in 2009 was proposed on December 22, 2008 (73 
FR 78276), and invited public comments until January 21, 2009. Most 
recently, a notice of the GHL that resulted from the 2009 IPHC annual 
meeting was published on February 24, 2009 (74 FR 8232) announced a 
reduction in the GHL for Area 2C to 788,000 lbs (357.4 mt), a further 
indication that some limit on the harvest of halibut by charter vessel 
anglers would be likely. NMFS took action to inform the public and the 
guided sport industry about the proposed regulation changes as soon as 
possible through an information bulletin and a press release published 
on its Web site. Hence, sport fishermen and guided businesses have had 
nearly two years to become informed and prepare for the potential of 
this action.
    Comment 87: The burden of conservation cutbacks should fall on the 
commercial fishermen. Recreational fishermen take a very small 
percentage of halibut compared to the commercial fleet. Individual 
commercial boats can take large amounts of fish at one time compared to 
individual anglers with a single hook. Reducing commercial harvests to 
accommodate the two-fish guided sport bag limit would impose a small 
burden on individual longliners in terms of lost average harvest. 
Commercial fishing has a significant impact on the ecosystem and on 
food supplies for wildlife. In addition, the amount of halibut 
``bycatch and wastage'' by the commercial fleet is greater than the 
total amount of recreational catch. Sport anglers have a smaller 
environmental impact. If there is a conservation concern, NMFS should 
impose more restrictions on commercial catch, such as reduced harvest 
limits or better bycatch controls.
    Response: The burden of conservation cutbacks appears to have 
fallen primarily on commercial fishermen. Between 2005 and 2009, the 
commercial catch limit has been reduced by about 54 percent. Between 
2005 and 2008, however, the guided sport harvest was relatively high 
and steady (see Figures 1 and 2). NMFS agrees that the commercial 
fishery removes more halibut than the recreational fishery, but 
disagrees that the recreational harvest of halibut in Area 2C is a very 
small percentage. The best available estimates of 2008 removals 
indicate that the commercial fishery took 59.2 percent of the total 
halibut harvest in Area 2C while guided and unguided sport fisheries 
took 29.7 percent (IPHC 2009 annual meeting ``blue book'' Table 1). 
Based on this information, the combined commercial and sport harvest 
removed 88.9 of the total halibut removals in Area 2C during 2008 
leaving all other sources of halibut mortality (i.e., subsistence, 
bycatch, wastage, and research) to account for about 11 percent of 
total halibut removals. Looking only at the proportions of the 
commercial and sport harvests combined, the commercial sector took 
about two-thirds and the sport sector took about one third of the 
combined harvest in Area 2C during 2008. Hence, the sport harvest of 
halibut in Area 2C is not trivial. Estimates of sport harvests of 
halibut in this area during the four-year period 2004 through 2007 
indicate that charter vessel anglers took an average of two thirds of 
the total sport harvest annually.
    The commercial fishery for halibut, although larger than the sport 
fishery in Area 2C, is governed by an annual catch limit. The catch 
limit is distributed among commercial fishermen under the IFQ program. 
Fishing must stop when each fisherman reaches the limit of his or her 
IFQ, thus assuring that the commercial catch limit is not exceeded. By 
contrast, the sport fisheries are governed primarily by daily bag and 
gear limitations, but are not required to stop fishing when an overall 
annual limit is reached. An overall annual catch limit for the sport 
fisheries in Area 2C similar to the commercial catch limit was not 
considered as an alternative to this action because further 
restrictions on halibut mortality in the non-guided

[[Page 21218]]

sport fishery, the subsistence fishery, or on bycatch and wastage in 
the commercial fisheries were not considered as an alternative to this 
action and because harvest estimates indicate that halibut removals 
from these categories have remained relatively stable during the since 
1999 and have not grown at the rate of the guided sport fishery.
    In implementing the reduced daily bag limit for the guided sport 
fishery, NMFS has considered conservation and management objectives for 
this resource that have been reflected in the recommendations by the 
Council and management decisions by the IPHC. Hence, this final rule is 
objective and necessary to reduce the harvest of halibut in the guided 
sport fishery to address conservation concerns expressed by the IPHC 
and the competition for the halibut resource between the commercial and 
guided fisheries.
    Comment 88: This action is inconsistent with the requirements of 
the Americans with Disabilities Act.
    Response: NMFS disagrees. This rule is not inconsistent with the 
Americans with Disabilities Act because physical access to guided sport 
fishing opportunities is not the subject of this action. This final 
rule is designed to reduce the harvest of halibut in the guided sport 
fishery to approximately the GHL to address conservation and allocation 
problems. Recreational anglers who could be physically accommodated as 
a charter vessel angler under the former regulations may be similarly 
accommodated under this action. This final rule does not discriminate 
based on physical ability.
    Comment 89: Guided charter fishing is a recreational fishery. A 
sport fisherman with a valid sport fishing license catches the fish, 
not the charter operator.
    Response: NMFS agrees. Also see response to Comment 92.
    Comment 90: It is unfair for commercial halibut fishermen to make 
sacrifices for conservation when guided sport fishermen do not. All 
user groups must bear the economic burden of managing the halibut 
fishery in a way that is fair and sustainable. Retrospective analysis 
shows that the IPHC has been overestimating abundance for the last four 
years and halibut harvest should be reduced. The commercial harvests of 
halibut were reduced in Area 2C over the past three years to address 
the long-term sustainability of the resource, which resulted in 
significant reductions in income for commercial fishermen. The guided 
sport fishery also must reduce its halibut harvest. Implementing the 
one-halibut daily limit for Area 2C is essential for rebuilding the 
halibut stocks and addresses the continued overharvest of the halibut 
resource by charter vessel anglers.
    Response: NMFS agrees that implementing the one-halibut daily bag 
limit for the guided sport fishery, as well as managing other sectors 
consistent with conservation principles, is essential to proper 
management of the halibut resource. The reduction in the 2009 Area 2C 
Total CEY will be shared by the commercial fishery, through the 
reduction in the Fishery CEY, and by the charter vessel fishery, 
through the reduction of the GHL to 788,000 lbs (357.4 mt). This 
reduction in the GHL is not a part of this action, but is a consequence 
of the GHL rule promulgated on August 8, 2003 (68 FR 47256).
    Comment 91: Increased guided charter effort and concentration have 
caused local depletion in some areas, which reduces the availability of 
halibut and decreases catch rates for subsistence and unguided sport 
fishermen. In Alaska, subsistence harvest has priority over all other 
uses. The lack of charter regulation has violated that priority, 
imposing impacts that are unfair, inequitable, and legally suspect. 
Subsistence is not only culturally important in Alaska; it is an 
economic imperative for many residents, particularly native residents 
who have an extensive history of depending on cultural and traditional 
foods. Because charter vessel angler harvest is concentrated near towns 
to accommodate day anglers, allowing this harvest disproportionate to 
halibut abundance is directly and immediately causing irreparable harm 
to subsistence residents of rural communities throughout Southeast 
Alaska. In times of low halibut abundance in Area 2C, halibut should be 
allotted to residents with subsistence needs. The majority of Alaska's 
subsistence halibut harvest occurs in Area 2C, and it is unfair for the 
guided sector overages to negatively impact residents of local 
communities who rely on halibut for food.
    Response: NMFS is implementing management measures in the final 
rule to achieve the objective of this action (see ``Objective of this 
action'' above). The extent to which a one-halibut daily bag limit will 
reduce the guided sport harvest depends on numerous factors, including 
the possibility that current economic conditions will limit the amount 
of disposable income that potential anglers will choose to spend on a 
charter vessel fishing trip and the costs of alternative fishing trips.
    NMFS agrees that subsistence fishing in Alaska is culturally 
important. As explained in the response to Comment 65, NMFS does not 
have scientific information indicating localized depletion of halibut. 
Addressing localized depletion is not the purpose of this action.
    Comment 92: Guided charter fishing is not a recreational fishery. 
Charter operators receive income based on use of the halibut resource. 
In addition, the volume of charter vessel anglers and the amount of 
fish they catch and take with them, along with a lack of catch and 
release behavior, qualify the charter sector for commercial status.
    Response: Charter vessel anglers are recreational fishermen. 
Charter vessel operators run commercial businesses. These terms are 
defined in this action.
    Comment 93: Commercial setline fishermen provide the Alaskan and 
American public with millions of meals yearly that are available in 
restaurants, supermarkets, and fish markets. This is the only access to 
halibut for most consumers, unless they can afford an expensive trip to 
Alaska to catch their own.
    Response: NMFS acknowledges the comment although a sport fishing 
trip in Alaska (e.g., in Area 2C) may or may not be considered 
expensive by the angler, depending on individual circumstances.
    Comment 94: Charter vessel anglers are highly motivated to take 
home large quantities of halibut, usually at least two 50-lb boxes of 
filleted halibut or more per angler. After taking four large fillets 
off each fish, the carcasses are dumped overboard, with considerable 
wastage of fish meat, including all the belly meat. Many people in our 
community are upset about the waste, greed, and the depletion of the 
halibut stock in our area.
    Response: The purpose of this action is to limit the harvest of 
halibut by charter vessel anglers in Area 2C. It is not intended to 
control what anglers choose to do with legally harvested halibut, how 
they butcher their halibut, or whether they choose to keep or give away 
the meat. During the past few years, charter vessel anglers have been 
required to retain carcasses until an angler leaves the vessel at the 
end of a trip so that angler compliance with halibut size limits can be 
monitored and enforced. This final rule removes the size restriction on 
halibut, so carcasses no longer must be retained until the guided 
charter vessel reaches port.
    Comment 95: Commercial fishermen should not profit from leasing 
their halibut quota to others and never setting foot on a boat. If 
commercial fishermen

[[Page 21219]]

transfer their halibut quota for any reason, they should lose their 
permit.
    Response: This action makes no change to rules concerning the 
transfer of halibut IFQ or quota share. No such changes were proposed 
and are beyond the scope of this action. However, the Council has 
recommended a program that would allow commercial IFQ holders to lease 
some IFQ poundage to guided charter business owners. This proposed 
program will be the subject of a future proposed rule for public 
comment.

Alternative Management Measures

    Comment 96: It is important to keep the guided charter bag limit at 
two fish per day. Some respondents to a survey of charter vessel 
anglers proposed increasing the bag limit to three or five halibut per 
day, while others submitted that there should be no bag limit at all.
    Response: The analysis (see ADDRESSES) indicates that a two-halibut 
daily bag limit for charter vessel anglers would not be sufficient to 
meet the objective of the action (see ``Objective of this action'' 
above). Daily bag limits higher than two halibut per day could result 
in total halibut harvests by charter vessel anglers that are larger 
than recent harvests which have been substantially in excess of the GHL 
in Area 2C. Hence, a higher daily bag limit would not accomplish the 
objective of this action.
    Comment 97: Better data and additional monitoring and enforcement 
measures are needed for the guided charter fishery. NMFS should adopt 
the National Research Council's recommendation that recreational 
fisheries need to be managed more like the commercial sector in terms 
of survey and reporting requirements. Management agencies need better 
survey, reporting, and in-season monitoring information for the guided 
charter fleet. Guided charter operators should record real-time harvest 
either with cameras on board their vessels or on a punch ticket to 
improve the precision of catch estimates. All guided charter halibut 
should be weighed and logbooks checked at the dock to ensure they are 
not taking more than their limit. NMFS should also check boxes that are 
shipped from lodges to anglers to ensure that anglers are in compliance 
with regulations, just as commercial shipments are checked.
    Response: Significant effort is being made to improve reporting. 
ADF&G has made numerous changes to its logbook program in recent years. 
For example, ADF&G has conducted dockside checks and post-season 
charter vessel angler verifications to validate logbook data. In 
addition, NMFS has coordinated with ADF&G to establish new logbook 
requirements that will further validate halibut harvest information 
recorded in the State's Saltwater Sport Fishing Charter Trip Logbook, 
including requiring the signatures of anglers to verify that the number 
of halibut caught and recorded is accurate. ADF&G supports this 
requirement as it will lead to more reliable logbook data and more 
accurate estimates of guided charter halibut harvest. Enhanced 
recordkeeping and reporting, together with ongoing monitoring and 
enforcement by state and federal enforcement personnel as time and 
resources allow will serve as a deterrent to large scale violations of 
sport fish regulations. NMFS has been exploring the possible use of 
electronic monitoring of small vessels. See the response to Comment 
122.
    Comment 98: Reduce halibut harvest in the commercial sector by 
buying back IFQ from Areas 2C and 3A when it comes available on the 
market. Government agencies should fund this reallocation. For example, 
the State of Alaska could purchase IFQ to take it off the market and 
reduce the amount of commercial harvest.
    Response: Government purchasing commercial quota share or IFQ was 
not proposed and would not address the objective of this action (see 
``Objectives of this action'' above).
    Comment 99: Implement a charter IFQ program. If charter IFQs had 
been implemented at the time they were proposed in 1993, the rapid 
growth of the guided charter fleet would have been controlled.
    Response: The Council adopted a recommendation in 2001 to include 
the guided sport fishery in the existing IFQ system. In 2005, however, 
on request from NMFS, the Council failed to confirm its 2001 decision. 
The proposed rule for the charter IFQ program was never published as a 
consequence. If an effective IFQ program had been implemented, NMFS 
agrees that the current allocation problems between the commercial and 
guided sectors might have been easier to resolve.
    Comment 100: Any plan to limit charter harvest should include a 
requirement that they pay back their overages for the last few years.
    Response: This final rule is intended to reduce the guided sport 
harvest in Area 2C. The GHL for this area was designed to serve as a 
benchmark or harvest policy target and not as a ``hard cap'' or firm 
catch limit that can not be exceeded. Harvests above or below the GHL 
could occur because the management measures used are not so finely 
tuned that they can control guided sport harvests precisely to a 
specific point. Amounts of harvest in excess of the GHL can not be 
attributed as a violation to a person who legally harvested halibut in 
the guided sport fishery under the regulations that existed at that 
time.
    Comment 101: Delay implementation of the one-fish bag limit.
    Response: NMFS disagrees. The GHL has been exceeded in Area 2C 
every year since 2004. Delaying the one-halibut daily bag limit would 
not achieve the policy objective of the Council and NMFS to limit the 
guided sport halibut harvest to approximately the GHL. The one-fish bag 
limit will reduce the harvest of charter vessel anglers to a range of 
1,495,000 lbs (678.1 mt) to 602,000 lbs (273.1 mt) and was the only 
management option that could reduce guided sport harvest consistent 
with the objective of this action.
    Comment 102: Guided charter anglers should not have to lease Guided 
Angler Fish from the commercial fleet to catch more than one halibut 
per day.
    Response: The concept of Guided Angler Fish is associated with the 
Council's proposed Catch Sharing Plan. This was not proposed and is not 
part of this action. NMFS is assisting the Council to develop 
regulations that may implement the proposed Catch Sharing Plan if it is 
approved. A proposed rule for the Catch Sharing Plan, including the 
Guided Angler Fish concept, likely will be published in the future for 
public comment.
    Comment 103: Adopt female catch and release.
    Response: This comment presumes that large halibut generally are 
females that contribute disproportionately to the reproductive 
potential of the stock, and that harvest of these females will 
substantially decrease juvenile halibut abundance. In 1999, the IPHC 
reviewed options for a maximum size limit of 60 inches (150 cm) in the 
commercial fishery and concluded, based on the research at the time, 
that it did not add substantial production to the stock. Applying the 
limit to the sport fishery would have an even smaller benefit (if any) 
because the sport fishery harvest is smaller than commercial harvest, 
and it would apply only to Area 2C. The halibut stock is managed as a 
single population throughout its entire range. See also the response to 
Comment 64.
    Comment 104: Consider in-season closures in the event of charter 
overages.
    Response: At this time, charter vessel angler harvest data do not 
become available to NMFS in a timely manner that would permit this 
regulatory approach. Moreover, the Council stated its intent that 
guided sport harvests in

[[Page 21220]]

excess of the GHL should not lead to mid-season closure of the fishery 
because such closures would be disruptive to guided operations and 
anglers who booked a charter fishing trip after the date on which the 
fishery was closed. The potential for in-season closures for guided 
charter anglers would likely discourage anglers from booking charter 
vessel fishing trips in advance.
    Comment 105: NMFS should keep the carcass retention provisions. 
This requirement, implemented in 2007, has greatly improved data 
quality, and the need for fish to cross the dock for enforcement. 
Carcass retention is also necessary to implement size restrictions, 
which should be implemented in conjunction with the one-fish limit, to 
restrict the guided harvest to the GHL.
    Response: In 2007, NMFS implemented a size limit in Area 2C on one 
of the two halibut that could be harvested under the two-fish daily bag 
limit at that time. To help enforce this size limit, NMFS prohibited 
mutilating or otherwise disfiguring a halibut carcass such that the 
head-on length could not be determined. This requirement to retain 
carcasses is no longer necessary with a one-halibut daily bag limit and 
no size limit. This action requires only an ability to count the number 
of halibut retained by a charter vessel angler. Hence, IPHC regulations 
in the annual management measures published March 19, 2009 (74 FR 
11681) prohibit the possession of halibut ``* * * that has been 
filleted, mutilated, or otherwise disfigured in any manner except that 
each halibut may be cut into no more than 2 ventral pieces, 2 dorsal 
pieces, and 2 cheek pieces, with skin on all pieces'' (section 28). 
This allows sport fishermen to butcher their halibut before returning 
to port while improving the enforcement officers' ability to count the 
number of fish in possession by an angler. Discussion of the need for a 
size limit is deferred to the responses to Comments 64 and 110.
    NMFS agrees that carcass retention facilitates enforcement and more 
accurate data collection, but it is burdensome to guide operators given 
that this action does not include a size limit on retained halibut. 
Guide operators have expressed concerns about disposal of carcasses at 
ports, time constraints, the diminished meat quality of fish that are 
not processed immediately, and limited storage space onboard some 
vessels.
    Comment 106: Limit entry into the guided charter fishery rather 
than the number of fish they may catch.
    Response: In March 2007, the Council adopted a recommendation to 
implement a moratorium on entry into the guided sport halibut fisheries 
in Areas 2C and 3A. The proposed moratorium program is a limited entry 
program. The April 2007 Council newsletter provides an overview of the 
proposed program. A proposed rule and solicitation for public comment 
on the recommended limited access proposal was published on April 21, 
2009 (74 FR 18178). NMFS expects that, if approved, the limited entry 
program would complement but not substitute for the harvest controls 
implemented by this action.
    Comment 107: The one-fish bag limit for halibut could shift guided 
charter fishing effort to other groundfish species such as lingcod and 
red snapper. NMFS should monitor these fisheries if the rule is 
implemented.
    Response: NMFS acknowledges that this action may cause some charter 
vessel businesses to modify their operations to supplement fishing 
experiences for their anglers. The analysis (see ADDRESSES) reviewed 
the potential impacts on other species, such as salmon or rockfish, and 
found no significant impacts on those resources. Sport fishing for 
these stocks currently is managed by the State of Alaska. An increase 
in the sport harvest of these species may lead to increased allocation 
problems between sport and commercial sectors. However, any such 
allocation problems that may occur because of this action would be 
resolved by state and federal governments to maintain sustainable 
stocks.
    Comment 108: Relax minimum size and bag limit restrictions on 
lingcod caught in the recreational fishery.
    Response: The State of Alaska, not NMFS, currently manages lingcod 
fisheries and has established seasons, size, possession, and annual 
limits for sport lingcod fisheries. Also, the suggested change in 
restrictions on sport fishing for lingcod is beyond the scope of this 
action, which is to restrict guided sport halibut harvests in Area 2C.
    Comment 109: Rather than impose substantial economic hardship and 
further litigation on the guided charter sector, NMFS should withdraw 
the one-fish daily limit rule and focus its efforts on establishing a 
long-term, fair, and equitable solution to the issue of allocation 
among recreational anglers (both guided and unguided), subsistence 
users, and commercial halibut fishermen. Develop a stable, long-term 
management plan for the guided charter sector.
    Response: This action is complementary to long-term management of 
the guided sport halibut fishery. The Council has adopted a limited 
access system for this fishery and a Catch Sharing Plan to promote the 
stable, long-term management of the halibut fisheries. Consistent with 
approved Council policy, this action is necessary to manage the halibut 
harvest of the guided sport fishery to the GHL until a different 
allocation system is proposed, approved, and implemented. NMFS 
acknowledges that this will impose costs on certain charter businesses. 
The analysis (see ADDRESSES) supporting this action addresses these 
costs.
    Comment 110: The one-fish daily limit rule may not adequately 
control harvest to the GHL and additional measures may be necessary. 
NMFS should also implement a maximum size limit on the retained halibut 
for guided charter anglers.
    Response: The analysis (see ADDRESSES) provides a range for the 
potential harvest reduction that the one-fish bag limit may realize. 
The analysis notes that even in the absence of the current uncertain 
economic climate, a reduction in demand may result from the one-halibut 
daily bag limit. NMFS does not have information that will allow it to 
select an estimate of the likely reduction in demand, which is why a 
range of potential reductions is provided. For future regulatory 
actions, consideration of size restrictions or other controls may be 
necessary. The Council considered minimum size limits of 45 and 50 
inches on a second fish (assuming a two-fish bag limit). A key reason 
why the Council rejected alternatives with minimum size limits was the 
difficulty in measuring larger fish. Also see the response to Comment 
115.
    This action imposes additional restrictions to the one-halibut 
daily bag limit to achieve the objective of this action (see 
``Objective of this action'' above). This action prohibits harvest by 
the vessel's guide, operator, and crew members during a guided sport 
fishing trip for halibut and limits the number of lines that could be 
fished to the number of charter vessel anglers onboard the vessel or 
six, whichever is less. See the response to Comment 57 for more 
details.
    Comment 111: Develop a Catch Sharing Plan for Area 2C. The plan 
should include a mechanism for guided charter anglers to lease IFQ from 
the commercial fleet so commercial fishermen are compensated for any 
reallocation between the sectors.
    Response: The Council took final action on a Catch Sharing Plan in 
October 2008. The plan includes a

[[Page 21221]]

Guided Angler Fish provision that allows for the transfer of halibut 
IFQ pounds to fish that may be harvested by charter vessel anglers. The 
details of the Guided Angler Fish provision will be explained in a 
proposed rule for the Catch Sharing Plan, which currently is under 
development. That proposed rule will allow additional public comment on 
the Catch Sharing Plan and its Guided Angler Fish proposal.
    Comment 112: Do not impose annual halibut limits on guided charter 
anglers.
    Response: The Council and NMFS considered but did not choose to 
include an annual limit as a recommended management measure for this 
action.
    Comment 113: Impose an annual limit on numbers or pounds of fish 
taken by guided charter anglers rather than a daily limit.
    Response: NMFS has reviewed the potential for annual catch limits 
of four, five, and six fish, alone and in combination with other 
measures. Annual catch limits create an additional monitoring burden, 
and in comparison to this action, were not as effective in achieving 
the objectives of this action. An annual limit on the pounds of halibut 
retained by charter vessel anglers is similar to an annual limit on 
numbers halibut retained and it would have similar effects.
    Comment 114: Eliminate carcass retention provisions or skin-on 
requirements.
    Response: This action removes the previous requirement to retain 
halibut carcasses. The previous carcass retention requirement was 
necessary to enforce the previous maximum size limit on one of two 
halibut retained by charter vessel anglers. Substitution of this size 
limit by the one-halibut daily bag limit removes the need for the size 
limit, and therefore the need to retain halibut carcasses. Current IPHC 
regulations (at section 28(2)) published March 19, 2009 (74 FR 11681) 
prohibit the possession on board a vessel of halibut that has been 
filleted, mutilated, or otherwise disfigured in any manner except that 
each halibut may be cut into no more than two ventral pieces, two 
dorsal pieces, and two cheek pieces, with skin on all pieces. See also 
the response to comment 105.
    Comment 115: Adopt a slot limit based on size or weight, such as a 
poundage limit between 20 and 80 lbs. Large numbers of small halibut 
are taken by sport fishers coming to Alaska, and this harvest reduces 
recruitment. The safety concerns from measuring large fish could be 
addressed with a pre-measured mark on the hull of the vessel and the 
fish could be measured without bringing them on board.
    Response: The purpose of this action is to limit the harvest of 
halibut by charter vessel anglers in Area 2C. Restrictions on the size 
or weight of halibut retained by charter vessel anglers would not 
achieve this purpose without other harvest constraints. The analysis 
developed by the Council in support of its June 2007 recommendation for 
a one-halibut daily bag limit considered halibut slot limits. These 
slot limits were rejected because they potentially could result in an 
increased harvest, and with other options, they could increase 
monitoring and enforcement costs beyond what is necessary to achieve 
the objective of this action. Minimum size limits of 45 or 50 inches in 
length were rejected in part because of the difficulty in measuring and 
releasing large fish without injuring them. Also, safety concerns were 
raised for charter vessel anglers and crew when attempting to measure 
large muscular fish. Moreover, the previous maximum size limit has not 
been effective in reducing the halibut harvest of charter vessel 
anglers. To minimize the burden on the guided charter fishery, NMFS 
implemented a 32-inch maximum size on one fish in 2007, without 
apparent effect on guided harvests. The Council and NMFS have looked at 
the potential efficacy of a large number of alternative restrictions 
and none appear to be able to achieve the objectives of this action.
    Comment 116: The bag limit should be the same for the entire Alaska 
and British Columbia coastline so that no one area is more desirable 
than another to anglers. This would prevent overharvest in other 
regions if guided sport fishermen substitute other areas for Area 2C. 
It will also reduce the incentive for Area 2C fishermen to leave Area 
2C for those other areas and help protect the Area 2C economy.
    Response: This action responds to concerns that are specific to 
Area 2C. The harvest of halibut by charter vessel anglers in Area 2C 
has substantially exceeded the annual GHL for this area each year since 
2004. Conversely, the harvest of halibut by charter vessel anglers in 
other areas off Alaska has not posed the level of management concern 
that warrants restriction at this time.
    NMFS recognizes that different restrictions for the guided sector 
in different IPHC regulatory areas off Alaska and British Columbia may 
influence where charter vessel anglers choose to fish. However, 
applying different regulations and bag limits to different areas to 
respond to management needs specific to those areas is a common 
practice in fishery management. Although a one-halibut daily bag limit 
in Area 2C may change the demand for guided charter trips if anglers 
are unwilling to substitute other species, as noted in response to 
Comment 53, charter vessel anglers traveling by cruise ship may show 
little inclination to change their behavior.
    NMFS lacks authority to manage halibut fisheries in British 
Columbia. NMFS notes that in 2009, the recreational fishery in British 
Columbia will open its season with a one-halibut daily bag limit. This 
may be increased to a two-halibut daily bag limit later in the season, 
depending on recreational harvest levels.
    Comment 117: The rule needs a sunset provision. Without it, the 
rule may continue well beyond 2009 and NMFS will not have a mechanism 
to rescind the one-fish bag limit in a timely manner when other long-
term management measures are developed for the guided charter sector.
    Response: NMFS disagrees that the rule needs a sunset provision. 
Although proposed rules are being developed for a limited access system 
for guided sport businesses and a Catch Sharing Plan, fishing under 
these proposed new programs, if approved, likely will not occur before 
2010 or 2011, respectively. NMFS may rescind or change this action in 
subsequent rulemaking if necessary. In the interim, the proposed action 
is needed to restrict the halibut harvest of guided sector to 
approximately the GHL until these long-term management measures are 
implemented.
    Comment 118: Adopt the Charter Halibut Task Force proposal.
    Response: The Charter Halibut Task Force proposal, as presented to 
the Council in October 2008, would adopt a coastwide halibut spawning 
biomass of 225,000,000 lbs (102,059.3 mt) as a threshold. When the 
halibut biomass is above this threshold, the daily bag limit would be 
two halibut for guided and unguided sport fishermen alike. When the 
biomass is below that threshold, the daily sport bag limit would be one 
halibut. This proposal was advanced at the Council meeting as an 
alternative to the Catch Sharing Plan. The Council did not endorse this 
proposal. Implementing the Charter Halibut Task Force proposal is 
beyond the scope of this action, which is to limit the guided sport 
fishery harvest to the GHL adopted for that harvest by the Council and 
NMFS.
    Comment 119: A two-fish bag limit with a 32-inch maximum size limit 
on one of the fish will not have a positive effect on halibut stocks.
    Response: NMFS agrees that the previous bag limit and size limit

[[Page 21222]]

combination will not achieve the objective. NMFS implemented this 
combination first in 2007 as an alternative to a seasonal one-halibut 
daily bag limit. The combination bag and size limit was expected to 
have a comparable effect as the seasonal one-halibut daily bag limit in 
reducing the guided sport fishery harvest. Instead, the guided sport 
harvest in Area 2C actually increased in 2007 under this combination 
rule relative to 2006. The GHL in Area 2C in 2007 was 1,432,000 lbs 
(649.6 mt) and the guided sport harvest of halibut was 1,918,000 lbs 
(870.0 mt), or 486,000 lbs (220.4 mt) over the 2007 GHL and more than 
twice the 2008 GHL of 931,000 lbs (422.3 mt) (see Table 1 above). 
Because the two-halibut daily bag limit in combination with a maximum 
size limit proved ineffective, it is likely, even if the current 
economic recession leads to a substantial decrease in guided fishing 
activity, that the 2009 harvest would exceed the 2009 GHL in the 
absence of this action.
    Comment 120: Adopt a two-fish bag limit, with no size limits.
    Response: A two-halibut daily bag limit with no size limit would be 
less restrictive than the previous two-halibut daily bag limit with a 
maximum size limit on one halibut that was first implemented in 2007. 
This two-halibut daily bag limit combined with a maximum size limit 
proved ineffective in reducing the halibut harvest by charter vessel 
anglers in Area 2C that year (see response to Comment 125). Therefore, 
a less restrictive two-halibut daily bag limit with no size limit would 
not achieve the objective of this action.
    Comment 121: Instead of a one-fish bag limit, the halibut resource 
could be better managed using other measures, such as a halibut tag to 
fund halibut farming or ranching.
    Response: The suggested alternative of raising funds through a fish 
tag to support halibut farming would not address the objective of this 
action.
    Comment 122: Do not implement a one-fish bag limit on guided 
charter anglers. If conservation of the halibut resource is a concern, 
NMFS should implement additional commercial catch regulations to reduce 
that sector's halibut harvest. These could include implementing 
requirements for video monitoring on commercial halibut vessels to 
improve recording of catch, discards, and wastage; reducing commercial 
bycatch by prohibiting bottom trawling or reallocating some of the 
commercial bycatch limit to the recreational sector; reducing the 
length of the commercial fishing season; or developing markets for 
bycatch species in the halibut longline fishery such as arrowtooth 
flounder and dogfish.
    Response: Implementing additional restrictions on the commercial 
fishing sector would not address the objective of this action and is 
outside the scope of this action. The commercial halibut setline and 
groundfish trawl fisheries currently are subject to binding limits set 
by the IPHC and Council, respectively, as a part of their efforts to 
maintain sustainable groundfish stocks. These commercial fisheries are 
required to stop fishing when their halibut limits (IFQ or prohibited 
species catch limit) are taken. Commercial groundfish fisheries are 
often closed before quotas of their target species have been fully 
harvested. Participants in these fisheries incur significant costs to 
stay within their halibut catch limits. These halibut resource user 
groups are adequately constrained by their catch limits, which have not 
been increasing. For example, the catch limit for Area 2C commercial 
halibut fishermen has decreased 54 percent between 2005 and 2009.
    Halibut vessels are often small, and it has not been feasible to 
place observers on them. The IPHC and NMFS are investigating the use of 
electronic monitoring measures to provide more comprehensive monitoring 
at sea. A report on a workshop on electronic fisheries monitoring, held 
at the Alaska Fisheries Science Center in July 2008, may be found at 
http://www.alaskafisheries.noaa.gov/npfmc/misc_pub/EMproceedings.pdf.
    Comment 123: Restrict the guided sport charter vessel fishery to 
only allow retention of halibut greater than 32 inches in length like 
the commercial sector to protect recruits of the halibut biomass.
    Response: Implementing a size limit in addition to the one-fish 
daily bag limit would be overly restrictive. Other reasons may exist to 
consider size restrictions in the guided charter fishery in the future, 
but not as a provision of this final rule. NMFS notes that the Council 
has considered minimum size limits of 45 and 50 inches on a second fish 
(assuming a two-fish bag limit), but determined that these measures 
would not accomplish the objectives of the proposed action. Thus, these 
options were rejected without further consideration in the analysis 
supporting this final rule. A key reason why the Council rejected 
alternatives with minimum size limits was the difficulty in measuring 
larger fish.

General Comments

    Comment 124: This action will adversely affect the safety of sport 
fishing in Southeast Alaska since it will encourage guided anglers to 
substitute unguided for guided fishing days.
    Unguided days are not as safe as guided days. In order to become a 
licensed sport fishing guide on a charter boat in Southeast Alaska, a 
person must meet the following requirements set by the U.S. Coast 
Guard: (1) A minimum of 365 days at eight hours/day or the equivalent 
of 2,920 hours on the water; (2) attend a U.S. Coast Guard approved sea 
school; (3) pass four tests including: rules of the road, general deck 
knowledge, navigation, and charting; (4) enroll in a random drug 
testing program; and (5) obtain a transportation worker identification 
card. As the Coast Guard will attest, the saltwater charter fleet has 
the finest safety record of all boaters in Alaska, with the last 
accidental fatality on a charter boat occurring in 1998. In contrast, 
unguided angler fatalities occur in Alaska every year. It should be 
readily apparent to NMFS that any movement of anglers from guided 
access to unguided access will be accompanied by a statistically 
measurable decrease in safety.
    Magnuson-Stevens Act National Standard 10 requires that 
conservation and management plans shall, to the extent practicable, 
promote the safety of human life at sea. While National Standard 10 
does not apply to halibut, it is a common sense standard that should 
not be overlooked just because halibut is managed under the Halibut 
Act.
    Safety status affects the enjoyment of a halibut fishing trip, even 
in the absence of an accident; as one commenter said, ``We know we will 
be much safer on a charter boat that meets U.S. Coast Guard regulations 
and we do not have to worry about being safe while we are having fun 
catching our halibut.''
    Response: NMFS agrees that this action may create some incentives 
for anglers to substitute non-guided fishing in Southeast Alaska for 
guided fishing. New information from an ADF&G study on sport fishing 
activity in Alaska indicates that non-guided fishing is a popular 
alternative to guided fishing for resident and non-resident anglers. In 
2007, about 60 percent of salt water sport fishing days in Southeast 
Alaska were unguided and about 40 percent were guided. The non-guided 
proportion was higher for resident anglers and lower (about 40 percent) 
for non-resident anglers.
    This rule may prompt some charter vessel anglers to substitute 
unguided fishing in Southeast Alaska for guided fishing so as to retain 
a two-fish bag limit. These anglers may make arrangements to go fishing 
with friends or relatives in Southeast Alaska, to

[[Page 21223]]

patronize lodges and rentals with associated skiffs, or to patronize 
businesses providing access to supported (lodging, meals, instructions, 
and gear) fishing from unguided small boats. This latter business model 
is already present in Southeast Alaska. Firms with this business model 
are likely to see an increase in demand for their product, and some 
guided firms may shift to this business model. This possibility is 
discussed in the analysis (see ADDRESSES).
    NMFS, however, does not have the information to estimate the extent 
to which this substitution will take place. Much will depend on the 
preferences of anglers, their opportunities to fish elsewhere, and the 
ability of business to substitute unguided for guided capacity. 
Proportionately more such substitution could be expected by persons 
visiting on multi-day and overnight trips than by persons visiting 
Alaska on cruise ships. The U.S. Coast Guard is not convinced that a 
significant increase in the use of ``bareboat'' or non-guided charters 
will occur and does not see an overarching safety concern with this 
action.
    NMFS has been unable to confirm with the Coast Guard the number of 
guided saltwater charter business fatalities since 1998. Guided sport 
fishing activity is included in commercial boating accident statistics. 
Coast Guard statistics show non-commercial boating deaths every year, 
with 12 fatalities throughout coastal Alaska in 2008. NMFS cannot rule 
out the possibility that some guided anglers will shift to unguided 
sport fishing in Southeast, and that a fatal accident may occur to one 
or more of these persons, just as it cannot rule out the possibility of 
fatal accidents on guided charter vessels.
    Nevertheless, NMFS believes it is appropriate to implement this 
final rule for several reasons. First, a potential shift from guided to 
unguided fishing within Southeast Alaska focuses on one option 
available for guided anglers. While some may make this substitution, 
others may substitute activities in other regions, and those activities 
may be associated with their own risks which may be greater or less 
than those of guided charters in Southeast Alaska. While the guided 
charter vessel fleet may have a good safety record on the water, travel 
to and from the fishing site is often done in small airplanes which, in 
Alaska, has inherent dangers. It is possible that some charter vessel 
anglers may substitute activities with less overall risk considering 
all the elements involved in a guided charter fishing trip. The net 
effect of this action on risk when all elements are considered cannot 
be determined with the available information.
    Second, NMFS anticipates that the potential for accidents among the 
persons making this switch will be smaller than for recreational 
boaters in Alaska in general. This is because at least a part of this 
switch is likely to be associated with tourist-service businesses 
providing supported recreational fishing. Some of these businesses will 
be firms that formerly provided guide services, or that begin to offer 
guided and unguided services. These firms are likely to provide 
monitoring of, and support to, anglers despite the absence of a guide 
on board a vessel.
    Third, large proportions of resident and non-resident sport anglers 
already are involved in non-guided sport fishing in Southeast Alaska, 
and non-guided business models already are used to provide resident and 
non-resident access to halibut fishing opportunities. The risks 
associated with this practice and business model clearly are considered 
acceptable by sport anglers, businesses, and the broader community.
    Therefore, the safety of anglers was considered for this action.
    Comment 125: The proposed action would increase halibut mortality 
from catch-and-release fishing, because guided anglers would release 
many small halibut in order to take home the largest fish possible. In 
addition, many fishermen would substitute king salmon fishing for 
halibut fishing and increase the mortality rate for this species. The 
king salmon size limits for recreational anglers that are currently in 
place result in a high mortality rate, because many smaller fish are 
killed but must be released. Under this action, guided charter anglers 
will do more catch-and-release fishing and sightseeing. While this may 
be less environmentally damaging, the halibut mortality rate could 
increase. If the proposed action is adopted, NMFS should offer angler 
education to minimize release mortality and do a careful evaluation of 
the effects of increased catch-and-release on halibut mortality.
    Response: NMFS acknowledges that this action may cause increased 
halibut catch-and-release mortality, but the impact on the resource 
will not be significant. The analysis (see ADDRESSES) discusses the 
halibut catch-and-release mortality rate for the Area 2C guided charter 
fishery. It noted that catch-and-release mortality for halibut is 
estimated to be small (about 5 percent) and that there may be limited 
opportunities for practicing catch-and-release fishing in the hope of 
harvesting a larger halibut in the sector of the guided fishery that 
serves anglers from cruise ships, given the relatively short (four 
hour) guided trips in this sector. NMFS agrees that there may be some 
substitution of king salmon for halibut fishing and that there could be 
additional king salmon catch-and-release mortality from this source. To 
the extent that charter vessel anglers fish for salmon and halibut 
together on the same trips, this action would tend to decrease demand 
for salmon fishing. This should ameliorate any adverse impacts on the 
salmon stocks from this source.
    Comment 126: The proposed rule does not explain how this action is 
consistent with E.O. 12962. The one-fish bag limit is a de facto 
reallocation to the commercial sector. In addition, the proposed rule 
states that the one-fish bag limit does not diminish ``the potential 
productivity of aquatic resources for recreational fisheries'' or 
``countermand the intent'' of E.O. 12962, which is ``to improve the 
quantity, function, sustainable productivity, and distribution of 
aquatic resources for increased recreational fishing opportunities.'' 
The proposed rule does not mention how it is improving or increasing 
recreational fishing opportunities by decreasing the halibut bag limit 
from two to one fish.
    Response: This rule is consistent with Executive Order (E.O.) 
12962. The pertinent part of E.O. 12962 as amended by E.O. 13474 
appears in Section I of the E.O. under the heading, ``Federal Agency 
Duties.'' In part, this section requires Federal agencies, ``to the 
extent permitted by law and where practicable,'' to improve the 
quantity, function, sustainable productivity, and distribution of U.S. 
aquatic resources for increased recreational fishing opportunities. Of 
the means listed to accomplish this mandate, the one most applicable to 
this action requires management of recreational fishing as a 
sustainable activity. Exceeding the GHL in Area 2C year after year as 
has been done since 2004 is not a sustainable activity, under the 
approved GHL policy of the Council. Although the current GHL policy 
could be changed to allocate a greater portion of the halibut resource 
to the guided sport fishery, doing so is outside the scope and purpose 
of this action. To the extent that the overall realized harvest rate of 
halibut can be reduced closer to the IPHC's target harvest rate by this 
action, the abundance of halibut in Area 2C is fostered which would 
improve the quantity, function, sustainable productivity, and 
distribution of halibut

[[Page 21224]]

resources for increased recreational fishing opportunities.
    Comment 127: Guided sport fishermen are harvesting more fish than 
they are legally entitled to.
    Response: The GHL is a target for the aggregate halibut harvests of 
charter vessel anglers. Guided charter operators, individually and 
collectively, do not break any laws when the GHL is exceeded. See the 
responses to Comments 26 and 97 concerning general enforcement of the 
limitations placed on individual anglers.
    Comment 128: Unconstrained growth of the guided sport sector is not 
consistent with Council intent to stabilize the longline fishery. The 
guided charter user group has grown without bounds and is displacing 
the existing fleet. This certainly does not reflect the expressed 
spirit and intent of the Council.
    Response: NMFS agrees that the Council sought to stabilize the 
growth in the guided sport halibut fishery and to respond to concerns 
from the commercial fishery participants about growing competition 
among commercial and guided sectors. The Council intends to maintain a 
stable guided sport season of historical length, using area-specific 
harvest restrictions. If end-of-the season harvest data indicates that 
the guided sport sector likely would exceed its area-specific GHL in 
the following season, regulations would be implemented to reduce the 
guided sport harvest. This action is consistent with that intent.
    Comment 129: The proposed action is necessary because the 
conservation and management problem in Area 2C will likely come to Area 
3A soon and it should be addressed and corrected now to prepare NMFS 
and the charter fleet for its later implementation in Area 3A. The 
record of charter sector harvests of halibut and other species in Area 
2C, such as rockfish and lingcod, clearly shows that the charter sector 
can have a significant impact on the abundance and availability of 
fisheries resources that are intended for the benefit of all users and 
all segments of the public. In recent years, the charter sector halibut 
harvest in Area 3A has been close to or has exceeded the GHL; long-term 
trends indicate that harvests will continue to increase steadily. It is 
only a matter of time before Area 3A is faced with the same problems 
that now plague Area 2C as a result of the growth in halibut catches by 
the guided charter sector.
    Response: NMFS acknowledges the comment, although the 
characteristics of the fisheries in Areas 2C and 3A are different. The 
Council and NMFS are committed to using area-specific harvest 
restrictions that are tailored to the circumstances of the particular 
area.
    Comment 130: Why does the IPHC include commercial bycatch and 
wastage in the ``other removals'' category instead of as a part of the 
commercial fishery quota? Isn't this a de facto reallocation away from 
the recreational sector?
    Response: With respect to halibut, the IPHC regulations define 
``commercial fishing'' in part as ``* * * fishing, the resulting catch 
of which is sold or bartered * * *'' (section 3 of annual management 
measures published March 19, 2009 at 74 FR 11681). Halibut taken as 
bycatch in directed fisheries for other species or wasted in the 
directed commercial halibut fishery are not sold or bartered and 
therefore are not considered part of the ``commercial harvest.'' The 
commercial catch limit set by the IPHC does not include bycatch and 
wastage amounts. For conservation purposes, however, the IPHC accounts 
for all sources of fishing mortality. Bycatch and wastage is not a de 
facto reallocation away from the sport fishing sector because that 
sector does not operate under a firm catch limit as does the commercial 
sector. Bycatch and wastage is a de facto reallocation away from the 
commercial sector because anticipated bycatch and wastage amounts, like 
the anticipated sport and other non-commercial harvests, are subtracted 
from the Total CEY to arrive at the Fishery CEY and ultimately the 
commercial catch limit. In Area 2C, bycatch and wastage combined 
account for about 5.5 percent of all sources of fishing mortality in 
that area, according to the IPHC 2009 annual meeting ``blue book'' 
Table 1.
    Comment 131: The rule proposes to convert the GHL from an advisory 
harvest level to a firm allocation in both Areas 2C and 3A, without 
analysis and without proper notification to Area 3A user groups, and 
without the opportunity for public comment.
    Response: This action does not change the GHL regulations at 50 CFR 
300.65(c). The GHL is not a hard cap or catch limit, and by itself, 
does not restrict or limit charter vessel anglers (see the response to 
Comment 28).
    Comment 132: The Council, NMFS, and the Secretary have failed to 
promulgate recreational harvest rules that pass the test of the Halibut 
Act and the APA. The root cause of the problem rests with the decision 
long ago by the Council to treat guided and unguided portions of the 
recreational fishery differently. Another cause is the willingness of 
NOAA Alaska General Counsel to openly seek out ways to circumvent 
published laws rather than follow them to the letter. The Secretary 
should consider peer review of future proposed recreational fishing 
rules by NOAA General Counsel based in areas other than the Pacific 
Northwest or by external parties. Hopefully, review by unbiased peers 
would reveal the flaws in proposed rules before they are published, 
saving taxpayer dollars as well as future embarrassment to NMFS 
resulting from the publication of such rules.
    Response: All rules promulgated by NMFS go through the appropriate 
layers of agency review and comply with the applicable notice and 
comment procedures required by the APA in an effort to fully comply 
with applicable law. Despite that intention, some rules are overturned, 
or like the 2008 management measures for charter vessel anglers in Area 
2C, some are stayed, i.e., have no force or effect, pending further 
adjudication. In the case of the 2008 management measures for charter 
vessel anglers in Area 2C, NMFS withdrew the rule before final 
disposition by the court.
    Comment 133: The December 22, 2008 press release announcing the 
proposed rule for this action contained conflicting and misleading 
information. While the release implies that halibut stocks are 
threatened by the growth of the guided charter fishery, this is 
contradicted by NMFS' past statements in the 2008 proposed and final 
rules for a one-fish bag limit on halibut. The proposed rule states 
that it would allow each charter vessel angler to use only one fishing 
line, that no more than six lines targeting halibut would be allowed on 
a guided charter vessel at one time and that the rule would prohibit 
guides and crew from catching and retaining halibut while charter 
halibut anglers are on board. While this statement is correct, the 
press release does not point out that ADF&G already has regulations in 
place to control these activities and in the case of one line per 
fisherman, six line maximum per boat, these regulations have been in 
place for a number of years. The purpose of the proposed rule is to 
save ADF&G from issuing emergency rules on an annual basis, which also 
has been previously stated in earlier NMFS publications and proposals. 
NMFS does not issue a sport fishing regulation booklet readily 
available to the general public.
    Response: The factual statements made in the press release are 
correct. The responses to Comments 1 through 27 discuss the 
conservation rationale for this action and this is not discussed 
further here. The proposed rule discusses the measures described above. 
A press release is often less detailed

[[Page 21225]]

than the subject it describes. NMFS plans to publish a brief summary of 
federal sport fishing regulations applicable to halibut fishing for the 
convenience of the public. Regardless of the presence or absence of 
this summary, guided or non-guided sport fishermen targeting halibut 
are obliged to comply with sport fishing regulations appearing at 50 
CFR 300.65, 50 CFR 300.66, and the annual management measures published 
March 19, 2009 (74 FR 11681).
    Comment 134: The proposed rule clarifies the issues associated with 
the Van Valin case. The proposed rule also clarifies NMFS's authority 
to implement management measures applicable to the current fishing 
season that prevent exceeding catch limits.
    Response: NMFS agrees, but further clarifies here that this action 
will remain in effect until changed by subsequent rulemaking. Hence, 
this action may apply beyond the current fishing season. Also, the GHL 
does not serve as a catch limit or hard cap on the aggregate harvest of 
charter vessel anglers. See the response to comment 31.
    Comment 135: A one-fish limit would reduce guided activity and lead 
to halibut overpopulation.
    Response: Having too may halibut in the sea is not a current 
concern of the IPHC or NMFS. Information presented to the IPHC and 
public in January 2009 (IPHC 2009 annual meeting ``blue book''), 
indicates that the population of halibut, although healthy, has been in 
decline for the past several years. This trend may reverse if strong 
year classes of juvenile halibut recruit to the adult population. This 
forecast is based to some extent on an assumption that the target 
harvest rates set by the IPHC are actually realized. In Area 2C, the 
realized harvest rates in recent years have been more than twice the 
target harvest rate. This has prompted a conservation concern by the 
IPHC and a dedicated effort to reduce the realized harvest rate in Area 
2C (and Areas 2B and 2A also). This action contributes to that effort.
    Comment 136: The proposed rule contradicts NMFS's mission to 
promote sustainable fisheries, recover protected species, and maintain 
the health of coastal marine habitats in the United States. NMFS must 
reinforce its mission as a science-based organization and ensure a 
sustainable halibut fishery by balancing sport and commercial uses.
    Response: On the contrary, this action serves the NMFS mission, as 
a science-based organization, to promote sustainable fisheries. The 
purpose of this rule is precisely to ensure a sustainable halibut 
fishery by balancing sport and commercial uses of the halibut resource.
    Comment 137: Any size limit restrictions placed on guided sport 
fishermen should also be placed on commercial fishermen.
    Response: This action does not include a maximum or minimum size 
limit on halibut retained by sport fishermen. Commercial fishermen, 
however, must comply with a minimum size limit that has been in effect 
for many years. The commercial size limit, set by the IPHC, is at 
section 13 of the annual management measures published March 19, 2009 
(74 FR 11681) and requires no possession of halibut with a head on 
length less than 32 inches (81.3 cm).
    Comment 138: Recreational anglers are one of the nation's most 
powerful forces for the environment, paying over $600 million a year in 
special federal excise taxes to support fisheries conservation and 
access. In 2006, Southwick and Associates estimated a total effect of 
recreational angling at almost $250 million annually in Alaska alone.
    Response: NMFS acknowledges the comment. Recreational fishermen 
have been, and continue to be, an important source of funding and 
support for conservation programs. Halibut, like all fishery resources, 
is a finite resource. As users of this resource increase, regulatory 
regimes governing all users necessarily become more restrictive and 
complex to meet conservation and allocation policy goals. Most 
fishermen who participate in one or more of the halibut fisheries 
continued to be supportive of conservation of the resource and 
appreciate the need for balance in allocation policies. NMFS does not 
believe that this final rule will appreciably reduce that support.
    Comment 139: Why is NMFS renaming the charter moratorium, 
established by the Council, a limited entry program? The moratorium was 
supposedly a temporary measure to allow closer examination of the 
guided charter industry. A limited entry program gives the impression 
of finality and similarity with commercial fisheries, when there is no 
similarity between guided fishing and commercial fishing.
    Response: This comment is not relevant to this action, but pertains 
instead to a proposal to establish a limited access system for vessels 
in the guided sport fishery for halibut. A proposed rule and 
solicitation for public comment on the recommended limited access 
proposal was published on April 21, 2009 (74 FR 18178).
    Comment 140: For over ten years, the ADF&G has told us their 
Statewide Harvest Survey is untouchable (even though it is not 
finalized until after the following summer) and logbook data cannot be 
relied upon. In 2007, the ADF&G did a major modification in their 
collection of halibut harvest data (prior to 2007, the ADF&G 
extrapolated pounds of halibut harvested from Sitka, with samples taken 
from Sitka that were biased and too small). Are we now supposed to have 
a high level of confidence in the logbook data, even though there is no 
other year with comparable data because of the change in methodology?
    Response: NMFS is committed to using the best available information 
when making management decisions. At this time, this includes 
information provided by ADF&G based on the Statewide Harvest Survey. It 
also includes information from other sources of data, including 
logbooks and data obtained through creel census surveys. In an effort 
to obtain information for management in the timeliest manner possible, 
NMFS has pursued, and will continue to pursue, the use of data from 
reports required to be recorded contemporaneously or as close to the 
action being recorded as possible, and that require such information to 
be reported to the management agency in a timely manner (e.g., daily or 
weekly). Questions regarding ADF&G's observations and concerns about 
fishery data collected by ADF&G should be addressed to ADF&G.
    Comment 141: Did NMFS follow all the procedures for issuing a 
guideline harvest level, published in the 2003 Federal Register on the 
GHL?
    Response: All procedures described in the GHL regulations at 50 CFR 
300.65(c) are being carried out as required, including the requirement 
at paragraph (c)(2) to publish a notice in the Federal Register on an 
annual basis establishing the GHL for Areas 2C and 3A for that calendar 
year based on the CEY set by the IPHC. The most recent such notice was 
published February 24, 2009 at 74 FR 8232. Also, the requirement at 
paragraph (c)(3) to notify the Council in writing that the GHL has been 
exceeded has occurred annually since 2004 with respect to Area 2C. 
Typically, in October each year, the Council receives a report from 
ADF&G on its estimate of the harvest of halibut by the guided and non-
guided sport fisheries during the preceding year. The Council and NMFS 
officially receive this information at the same time. NMFS subsequently 
sends a letter to the Council informing it of whether the Area 2C GHL 
or Area 3A GHL has been exceeded.

[[Page 21226]]

Changes From the Proposed Rule

    This action was proposed and public comments were solicited for 30 
days beginning on December 22, 2008 (73 FR 78276). 179 public 
submissions were received by the comment ending date of January 21, 
2009. All comments received by the comment ending date are summarized 
and responded to above under the heading ``comments and responses.'' No 
changes from the proposed rule are made in this final rule.

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 harvesting 
controls for the management of the halibut fishery.

Halibut Act

    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the International Pacific Halibut Commission (IPHC), the 
Pacific Fishery Management Council, the North Pacific Fishery 
Management Council (Council), and the Secretary of Commerce. Section 5 
of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 
773c) authorizes the Secretary of Commerce (and NMFS, through 
delegation of authority) to adopt regulations that are necessary to 
carry out the purposes and objectives of the Convention between the 
U.S. and Canada on the Pacific Halibut Fishery and the Halibut Act. 
NMFS has determined that this action meets those requirements.

Regulatory Flexibility Act

    A Final Regulatory Flexibility Analysis (FRFA) was prepared as 
required by section 604 of the Regulatory Flexibility Act. The FRFA 
describes the impact of this rule on directly regulated small entities 
and compares that impact to the impacts of other alternatives that were 
considered. A copy of this analysis is available from NMFS (see 
ADDRESSES). A description of this action, an explanation for why it was 
considered, the legal basis for this action, and changes made to the 
rule in response to public comments are discussed above. Comments on 
the economic impacts of this action are addressed in responses to 
comments 53 through 73 above. A summary of the analysis follows.
    In 2007, 403 businesses operated 724 state-licensed active charter 
vessels in Area 2C. The largest companies involved in the fishery, 
lodges or resorts that offer accommodations as well as an assortment of 
visitor activities, may be large entities under the Small Business 
Administration size standard of $7.0 million, but it is also possible 
that all the entities involved in the harvest of halibut from charter 
vessels have grossed less than this amount. Since it is not possible to 
estimate the number of large entities, and since in any event these 
would be a small proportion of the total, all of these operations are 
assumed to be small entities. The number of small entities may be 
overestimated because of the limited information on vessel ownership 
and operator revenues and operational affiliations. However, it is 
likely that nearly all entities qualify as small businesses and for 
purposes of this analysis, all entities were assumed to be small 
entities.
    This analysis examined two alternatives, the status quo and the 
preferred alternative. The objective of this action is to reduce the 
guided sport harvest of halibut in Area 2C as described in the preamble 
above under the heading ``Objective of this Action.'' The status quo 
alternative was introduced in 2007 with the intent of reducing halibut 
harvest in the charter vessel sector while minimizing negative impacts 
on the charter vessel sector, its charter vessel anglers, and the 
coastal communities that serve as home ports for the charter vessel 
sector. The status quo would retain the two-fish bag limit with one of 
the two fish less than or equal to 32 inches (83.1 cm) in length, 
without changes. Under the status quo, both the number of charter 
customers and the volume of fish harvested rose to their highest 
recorded levels. In 2007, the GHL for Area 2C was 1,432,000 lbs (649.6 
mt). Since that time reductions in the Total CEY in Area 2C have led to 
a reduction in the GHL to 931,000 lbs (422.3 mt) in 2008 and to 788,000 
lbs (357.4 mt) in 2009. The 2007 guided sport harvest in Area 2C was 
1,918,000 lbs (870.0 mt), exceeding the GHL for that area by 486,000 
lbs (220.4 mt) or 34 percent of the GHL. The best available data from 
ADF&G indicate that the 2008 guided sport harvest in Area 2C also 
substantially exceeded the 2008 GHL for that area. Thus, the status quo 
alternative would not achieve the objective of this action.
    Seven management measures, combined into 11 specific options, were 
considered for this analysis, but were ultimately rejected without 
being subjected to detailed analysis. These measures were analyzed for 
the final rule published by NMFS on May 28, 2008 (73 FR 30504), but 
prevented from taking effect in 2008 by an injunction. These 
alternatives were thoroughly analyzed at that time, and were rejected 
by the Council and NMFS for a number of reasons; primarily because none 
of these alternatives would achieve the stated objective. Additional 
reasons for rejecting these alternatives included: (1) The economic 
effect of an option falling on too few businesses; (2) the option being 
easily diluted by changes in angler behavior; and (3) the difficulty in 
measuring large fish before bringing them onboard vessels.
    The preferred alternative would implement a one-fish daily bag 
limit for charter vessel anglers, a prohibition on harvest by charter 
vessel guides, operators, and crew, and a maximum six-line limit. A 
range of harvest results are possible under the preferred alternative. 
Assuming a range of possible demand reductions from zero to 50 percent, 
the preferred alternative is estimated to reduce the halibut harvest in 
the guided sport fishery to between 1,495,000 lbs (678.1 mt) to 602,000 
lbs (273.1 mt). The GHL levels for Area 2C recently have been 1,432,000 
lbs (649.5 mt) in 2007, 931,000 lbs (422.3 mt) in 2008, and 788,000 lbs 
(357.4 mt) in 2009. Hence, under the assumptions outlined in the 
analysis about changes in demand, the preferred alternative may reduce 
the harvest to the GHL and achieve the objective of this action. 
Although the status quo would have a smaller impact on directly 
regulated small entities, it would not achieve the objectives of this 
action. The preferred alternative would minimize the impacts on small 
entities and best meet the management objective. NMFS considered 
additional alternatives to achieve the objectives of this action in 
2007 and 2008. These alternatives were analyzed in the April 2008 
Environmental Assessment/Regulatory Impact Review/Final Regulatory 
Flexibility Analysis for a Regulatory Amendment to Implement Guideline 
Harvest Level Measures in the Halibut Charter Fisheries in 
International Pacific Halibut IPHC Regulatory Area 2C (see ADDRESSES 
for availability). The 2008 analysis found that only the preferred 
alternative, the one-halibut bag limit, was capable of achieving the 
objectives of the 2008 action. The current analysis reached a similar 
conclusion.

Collection of Information

    This rule contains a collection of information requirement subject 
to the Paperwork Reduction Act (PRA) and which has been approved by OMB 
under control number 0648-0575. The public reporting burden for charter 
vessel guide respondents to fill out and submit logbook data sheets is 
estimated to average four minutes per response.

[[Page 21227]]

The public reporting burden for charter vessel anglers to sign the 
logbook is estimated to be one minute per response. These estimates 
include the time required for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS Alaska Region has developed an Internet 
site that provides easy access to details of this final rule, including 
links to the final rule. In addition, NMFS is collaborating with IPHC 
to develop a brief summary of sport fishing regulations for halibut. 
These Small Entity Compliance Guide materials are available on the 
Internet at http://www.alaskafisheries.noaa.gov. Copies of this final 
rule are available upon request from the NMFS, Alaska Regional Office 
(see ADDRESSES).

Executive Order 12962

    This action is consistent with E.O. 12962 which directs Federal 
agencies to improve the quantity, function, sustainable productivity, 
and distribution of aquatic resources for increased recreational 
fishing opportunities ``to the extent permitted by law and where 
practicable.'' This E.O. does not diminish NMFS's responsibility to 
address allocation issues, nor does it require NMFS or the Council to 
limit their ability to manage recreational fisheries. E.O. 12962 
provides guidance to NMFS to improve the potential productivity of 
aquatic resources for recreational fisheries. This rule does not 
diminish that productivity or countermand the intent of E.O. 12962.

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Treaties.

    Dated: April 29, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, 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.


0
2. In Sec.  300.61, add definitions in alphabetical order for ``Area 
3A'', ``Charter vessel angler'', ``Charter vessel fishing trip'', 
``Charter vessel guide'', ``Charter vessel operator'', ``Crew member'', 
and ``Sport fishing guide services'', and revise the definition for 
``Guideline harvest level (GHL)'' to read as follows:


Sec.  300.61   Definitions.

* * * * *
    Area 3A means all waters between Area 2C and a line extending from 
the most northerly point on Cape Aklek (57[deg]41'15'' N. latitude, 
155[deg]35'00'' W. longitude) to Cape Ikolik (57[deg]17'17'' N. 
latitude, 154[deg]47'18'' W. longitude), then along the Kodiak Island 
coastline to Cape Trinity (56[deg]44'50'' N. latitude, 154[deg]08'44'' 
W. longitude), then 140[deg] true.
* * * * *
    Charter vessel angler, for purposes of Sec.  300.65(d), means a 
person, paying or nonpaying, using the services of a charter vessel 
guide.
    Charter vessel fishing trip, for purposes of Sec.  300.65(d), means 
the time period between the first deployment of fishing gear into the 
water from a vessel after any charter vessel angler is onboard and the 
offloading of one or more charter vessel anglers or any halibut from 
that vessel.
    Charter vessel guide, for purposes of Sec.  300.65(d), means a 
person who is required to have an annual sport guide license issued by 
the Alaska Department of Fish and Game, or a person who provides sport 
fishing guide services.
    Charter vessel operator, for purposes of Sec.  300.65(d), means the 
person in control of the vessel during a charter vessel fishing trip.
* * * * *
    Crew member, for purposes of Sec.  300.65(d), means an assistant, 
deckhand, or similar person who works directly under the supervision of 
and on the same vessel as a charter vessel guide.
* * * * *
    Guideline harvest level (GHL) means the level of allowable halibut 
harvest by the charter vessel fishery.
* * * * *
    Sport fishing guide services, for purposes of Sec.  300.65(d), 
means assistance, for compensation, to a person who is sport fishing, 
to take or attempt to take fish by being onboard a vessel with such 
person during any part of a charter vessel fishing trip. Sport fishing 
guide services do not include services provided by a crew member.

* * * * *

0
3. In Sec.  300.65, revise paragraphs (c)(2) and (3) and paragraph (d) 
to read as follows:


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

* * * * *
    (c) * * *
    (2) NMFS will publish a notice in the Federal Register on an annual 
basis announcing the GHL based on the table in paragraph (c)(1) of this 
section for Area 2C and Area 3A for that calendar year after the IPHC 
establishes the constant exploitation yield for that year.
    (3) The announced GHLs for Area 2C and 3A are intended to be the 
benchmarks for charter halibut harvest in those areas for the year in 
which it is announced pursuant to paragraph (c)(2) of this section. 
NMFS may take action at any time to limit the charter halibut harvest 
to as close to the GHL as practicable.
    (d) Charter vessels in Area 2C and Area 3A--(1) General 
requirements--(i) Logbook submission. Alaska Department of Fish and 
Game Saltwater Sport Fishing Charter Trip Logbook data sheets must be 
submitted to the Alaska Department of Fish and Game, Division of Sport 
Fish, 333 Raspberry Road, Anchorage, AK 99518-1599, and postmarked no 
more than seven calendar days after the end of a charter vessel fishing 
trip.
    (ii) The charter vessel guide is responsible for complying with the 
reporting requirements of this paragraph (d). The employer of the 
charter vessel guide is responsible for ensuring that the charter 
vessel guide complies with the reporting requirements of this paragraph 
(d).
    (2) Charter vessels in Area 2C--(i) Daily bag limit. The number of 
halibut caught and retained by each charter vessel angler in Area 2C is 
limited to no more than one halibut per calendar day.

[[Page 21228]]

    (ii) Charter vessel guide and crew restriction. A charter vessel 
guide, a charter vessel operator, and any crew member of a charter 
vessel must not catch and retain halibut during a charter fishing trip.
    (iii) Line limit. The number of lines used to fish for halibut 
onboard a vessel must not exceed six or the number of charter vessel 
anglers, whichever is less.
    (iv) Recordkeeping and reporting requirements in Area 2C. Each 
charter vessel angler and charter vessel guide onboard a vessel in Area 
2C must comply with the following recordkeeping and reporting 
requirements (see paragraphs (d)(2)(iv)(A) and (B) of this section):
    (A) Charter vessel angler signature requirement. At the end of a 
charter vessel fishing trip, each charter vessel angler who retains 
halibut caught in Area 2C must acknowledge that his or her information 
and the number of halibut retained (kept) are recorded correctly by 
signing the back of the Alaska Department of Fish and Game Saltwater 
Sport Fishing Charter Trip Logbook data sheet on the line number that 
corresponds to the angler's information on the front of the logbook 
data sheet.
    (B) Charter vessel guide requirements. For each charter vessel 
fishing trip in Area 2C, the charter vessel guide must record the 
following information (see paragraphs (d)(2)(iv)(B)(1) through (8) of 
this section) in the Alaska Department of Fish and Game Saltwater Sport 
Fishing Charter Trip Logbook:
    (1) Business owner license number. The sport fishing operator 
business license number issued by the Alaska Department of Fish and 
Game to the charter vessel guide or the charter vessel guide's 
employer.
    (2) Guide license number. The Alaska Department of Fish and Game 
sport fishing guide license number held by charter vessel guide who 
certified the logbook data sheet.
    (3) Date. Month and day for each charter vessel fishing trip taken. 
A separate logbook data sheet is required for each charter vessel 
fishing trip if two or more trips were taken on the same day. A 
separate logbook data sheet is required for each calendar day that 
halibut are caught and retained during a multi-day trip.
    (4) Regulatory area fished. Circle the regulatory area (Area 2C or 
Area 3A) where halibut were caught and retained during each charter 
vessel fishing trip. If halibut were caught and retained in Area 2C and 
Area 3A during the same charter vessel fishing trip, then a separate 
logbook data sheet must be used to record halibut caught and retained 
for each regulatory area.
    (5) Angler sport fishing license number and printed name. Before a 
charter vessel fishing trip begins, record for each charter vessel 
angler the Alaska Sport Fishing License number for the current year, 
resident permanent license number, or disabled veteran license number, 
and print the name of each paying and nonpaying charter vessel angler 
onboard that will fish for halibut. Record the name of each angler not 
required to have an Alaska Sport Fishing License or its equivalent.
    (6) Number of halibut retained. For each charter vessel angler, 
record the number of halibut caught and retained during the charter 
vessel fishing trip.
    (7) Signature. At the end of a charter vessel fishing trip, 
acknowledge that the recorded information is correct by signing the 
logbook data sheet.
    (8) Angler signature. The charter vessel guide is responsible for 
ensuring that charter vessel anglers comply with the signature 
requirements at paragraph (d)(2)(iv)(A) of this section.
    (3) Recordkeeping and reporting requirements in Area 3A. For each 
charter vessel fishing trip in Area 3A, the charter vessel guide must 
record the regulatory area (Area 2C or Area 3A) where halibut were 
caught and retained by circling the appropriate area in the Alaska 
Department of Fish and Game Saltwater Sport Fishing Charter Trip 
Logbook. If halibut were caught and retained in Area 2C and Area 3A 
during the same charter vessel fishing trip, then a separate logbook 
data sheet must be used to record halibut caught and retained for each 
regulatory area.

* * * * *

0
4. In Sec.  300.66, revise paragraph (m) and add paragraphs (o), (p), 
and (q) to read as follows:


Sec.  300.66   Prohibitions.

* * * * *
    (m) Exceed any of the harvest or gear limitations specified at 
Sec.  300.65(d).
* * * * *
    (o) Fail to comply with the requirements at Sec.  300.65(d).
    (p) Fail to submit or submit inaccurate information on any report, 
license, catch card, application or statement required under Sec.  
300.65.
    (q) Refuse to present valid identification, U.S. Coast Guard 
operator's license, permit, license, or Alaska Department of Fish and 
Game Saltwater Sport Fishing Charter Trip logbook upon the request of 
an authorized officer.

[FR Doc. E9-10337 Filed 5-5-09; 8:45 am]
BILLING CODE 3510-22-P