[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Proposed Rules]
[Pages 3403-3410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01912]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 180426419-8419-01]
RIN 0648-BH91
Pacific Halibut Fisheries; Revisions to Catch Sharing Plan and
Domestic Management Measures in Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed action would apply the daily bag limits,
possession limits, size restrictions, and carcass retention
requirements for guided fishing to all Pacific halibut on board a
fishing vessel when Pacific halibut caught and retained by anglers that
were guided and by anglers that were not guided are on the same fishing
vessel. Currently, sport fishing activities for halibut in
International Pacific Halibut Commission Regulatory Areas 2C (Southeast
Alaska) and 3A (Southcentral Alaska) are subject to different
regulations, depending on whether those activities are guided or
unguided. This proposed action is intended to aid the enforcement and
to ensure the proper accounting of halibut taken when sport fishing in
Areas 2C and 3A.
DATES: Comments must be received no later than March 14, 2019.
ADDRESSES: You may submit comments, identified by FDMS Docket Number
NOAA-NMFS-2018-0057, by either of the following methods:
Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0057, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau,
AK 99802-1668.
Instructions: NMFS may not consider comments sent by any other
method, to any other address or individual, or received after the end
of the comment period. All comments received are a part of the public
record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying
information (e.g., name, address),
[[Page 3404]]
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender will be publicly accessible. NMFS
will accept anonymous comments (enter N/A in the required fields if you
wish to remain anonymous).
Electronic copies of the Categorical Exclusion and the Regulatory
Impact Review (RIR) prepared for this action are available from http://www.regulations.gov or from the NMFS Alaska Region website at http://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 email to
[email protected] or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Kurt Iverson, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Authority for Action
The International Pacific Halibut Commission (IPHC) and NMFS manage
fishing for Pacific halibut (Hippoglossus stenolepis) through
regulations established under authority of the Northern Pacific Halibut
Act of 1982 (Halibut Act). The IPHC adopts regulations governing the
Pacific halibut fishery under the Convention between the United States
and Canada for the Preservation of the Halibut Fishery of the North
Pacific Ocean and Bering Sea (Convention), signed in Ottawa, Ontario,
on March 2, 1953, as amended by a Protocol Amending the Convention
(signed in Washington, DC, on March 29, 1979). For the United States,
regulations developed by the IPHC are subject to acceptance by the
Secretary of State with concurrence from the Secretary of Commerce.
After acceptance by the Secretary of State and the Secretary of
Commerce, NMFS publishes the IPHC regulations in the Federal Register
as annual management measures pursuant to 50 CFR 300.62.
The Halibut Act, at sections 773c(a) and (b), provides the
Secretary of Commerce with general responsibility to carry out the
Convention and the Halibut Act. In adopting regulations that may be
necessary to carry out the purposes and objectives of the Convention
and the Halibut Act, the Secretary of Commerce is directed to consult
with the Secretary of the department in which the U.S. Coast Guard is
operating, which is currently the Department of Homeland Security.
The Halibut Act, at section 773c(c), also provides the North
Pacific Fishery Management Council (Council) with authority to develop
regulations, including limited access regulations, that are in addition
to, and not in conflict with, approved IPHC regulations. Regulations
developed by the Council may be implemented by NMFS only after approval
by the Secretary of Commerce. The Council has exercised this authority
in the development of subsistence halibut fishery management measures,
the limited access program for charter operators in the charter halibut
fishery, and the catch sharing plan and domestic management measures in
waters in and off Alaska, codified at 50 CFR 300.61, 300.65, 300.66,
and 300.67. The Council also developed the Individual Fishing Quota
(IFQ) Program for the commercial halibut and sablefish fisheries,
codified at 50 CFR part 679, under the authority of section 5 of the
Halibut Act (16 U.S.C. 773c(c)) and section 303(b) of the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et
seq.).
Management of the Halibut Fishery
Description of the Action Area
This proposed rule would change regulations for the management of
the sport halibut fishery in IPHC Regulatory Areas 2C (Southeast
Alaska) and 3A (Southcentral Alaska). These regulatory areas are
referred to as ``IFQ regulatory areas'' throughout the IFQ Program
regulations at 50 CFR part 679 and as ``Commission regulatory areas''
throughout the halibut management regulations at 50 CFR 300.61, 300.65,
300.66, and 300.67. These terms are synonymous with ``IPHC regulatory
areas.'' This preamble uses the term ``Area 2C'' and ``Area 3A'' to
refer to IPHC Regulatory Areas 2C and 3A, respectively.
Background on the Halibut Fishery
The harvest of halibut in Alaska occurs in three fisheries--the
commercial, sport, and subsistence fisheries. The commercial halibut
fishery is managed under the IFQ Program. The sport fishery includes
guided and unguided anglers. Guided anglers are also referred to as
``charter vessel anglers'' herein; ``charter vessel anglers'' is also
defined in Sec. 300.61, and means persons, paying or non-paying,
receiving sport fishing guide services for halibut. Throughout this
preamble, the term ``charter halibut fishery'' is used to refer to the
sport fishery prosecuted by charter operators who hold Charter Halibut
Permits and offer sport fishing guide services for halibut. This
preamble uses the terms ``guided fishing'' to refer to sport fishing by
an angler who receives sport fishing guide services for halibut, and
``guided angler'' to an angler receiving those sport fishing guide
services. This preamble uses the terms ``unguided fishing'' to refer to
sport fishing by an angler who does not receive sport fishing guide
services for halibut sport fishing, and ``unguided angler'' to an
angler who does not receive those sport fishing guide services.
This proposed rule would not apply to the subsistence fishery,
which provides an opportunity for rural residents and members of an
Alaska Native tribe to retain halibut for personal use or customary
trade.
The following sections of the preamble summarize charter halibut
fishery management. Section 2.7 of the RIR prepared for this proposed
action provides additional detail on charter halibut management
programs that have been implemented in Areas 2C and 3A.
Charter Halibut Fishery
Sport fishing activities for Pacific halibut in Areas 2C and 3A are
subject to different regulations, depending on whether those activities
are guided or unguided. Guided sport fishing (charter fishing) for
halibut is subject to charter restrictions under Federal regulations
that are generally more restrictive than the regulations for unguided
anglers. NMFS regulations at Sec. 300.61 describe guided and unguided
fishing. Guided fishing occurs if a charter vessel guide receives
compensation to provide assistance or to physically direct a person who
is sport fishing, and that person takes or attempts to take fish during
any part of a charter vessel fishing trip. Unguided fishing occurs when
anglers do not fish with the assistance of a guide. In some instances,
halibut caught and retained by guided anglers are on the same vessel as
halibut caught and retained by unguided anglers. This proposed action
is limited to those instances.
Over the years, the Council and NMFS have developed specific
management programs for the charter halibut fishery to achieve
allocation and conservation objectives. These management programs
maintain stability and economic viability in the charter fishery by (1)
limiting the number of charter vessel operators, (2) allocating halibut
to the charter fishery that vary with abundance, and (3) establishing a
process for determining harvest restrictions for charter vessel anglers
to keep the charter halibut fishery within its allocations.
The charter halibut fisheries in Areas 2C and 3A are currently
managed under
[[Page 3405]]
the Charter Halibut Limited Access Program (CHLAP) and the Catch
Sharing Plan (CSP). The CHLAP limits the number of operators in the
charter halibut fishery, while the CSP establishes annual allocations
to the charter and commercial fisheries. The CSP also describes a
process for determining annual management measures to limit charter
harvest to the allocations in each management area. The CHLAP and the
CSP are summarized below.
Description of CHLAP
The CHLAP established Federal charter halibut permits (CHPs) for
operators in the charter fisheries in Areas 2C and 3A. Since 2011, all
vessel operators in Areas 2C and 3A with charter vessel anglers on
board must have an original, valid permit on board during every charter
vessel fishing trip on which Pacific halibut are caught and retained.
CHPs are endorsed for the appropriate regulatory area and the number of
anglers that may catch and retain charter halibut on a trip.
NMFS implemented this program, based on recommendations by the
Council, to meet allocation objectives in the charter halibut fishery.
This program provides stability in the fishery by limiting the number
of charter vessels that may participate in Areas 2C and 3A. Vessel
operators had to meet minimum participation requirements to receive an
initial issuance of CHPs. Implementation of the CHLAP has resulted in
consolidation in the charter halibut fishery as operators who did not
meet the qualification criteria exited the fishery. Complete
regulations for the CHLAP are published at 50 CFR 300.65, 300.66, and
300.67.
Description of CSP and Limits on Charter Vessel Anglers
The CSP in Areas 2C and 3A was adopted by the Council and
implemented by NMFS in January 2014 (78 FR 75844, December 12, 2013).
The CSP defines an annual process for allocating halibut between the
charter and commercial halibut fisheries in Areas 2C and 3A. It
establishes sector allocations that vary proportionally with changing
levels of annual halibut abundance and that balance the differing needs
of the charter and commercial halibut fisheries over a wide range of
halibut abundance in each area. The CSP describes a public process by
which the Council develops recommendations to the IPHC for charter
harvest restrictions that are intended to maintain harvest within the
annual charter halibut fishery catch limit for each area.
The CSP also authorizes limited annual leases of commercial IFQ for
use in the charter fishery as guided angler fish (GAF). Charter vessel
anglers can use GAF to retain halibut up to the limits provided for
unguided halibut anglers.
Catch Monitoring and Estimation in the Sport Halibut Fisheries
The Alaska Department of Fish and Game (ADF&G) Saltwater Charter
Logbook (hereafter, logbook) is the primary reporting requirement for
operators in the charter fisheries for all species harvested in
saltwater in Areas 2C and 3A. ADF&G developed the logbook program in
1998 to provide information on participation and harvest by individual
vessels and businesses in charter fisheries for halibut and for state-
managed species, such as salmon and other bottomfish. Please consult
State of Alaska regulations for the logbook requirements. These
requirements are currently found at 5 AAC 75.076. Logbook data are
compiled to show where fishing occurs, the extent of participation, and
the species and the numbers of fish caught and retained by individual
charter vessel anglers. This information is essential to estimate
harvest for regulation and management of the charter fisheries in Areas
2C and 3A. ADF&G collects logbook information from charter vessel
guides on halibut harvested by charter vessel anglers to accommodate
the information requirements for implementing and enforcing Federal
charter halibut fishing regulations, such as the current Area 2C one-
halibut per day bag limit and the CHLAP.
ADF&G uses the Statewide Harvest Survey (SWHS) to estimate halibut
harvests in the unguided sport halibut fishery. The SWHS is a mail
survey of households containing at least one licensed angler. Survey
respondents are asked to report the numbers of fish caught and kept by
all members of the entire household, and the data are expanded to cover
all households.
IPHC Annual Management Measures
Each year, through an open public process, the Council reviews and
recommends annual management measures for implementation in the charter
halibut fishery. Each fall, the Council reviews an analysis of
potential charter management measures for the Area 2C and Area 3A
charter fisheries for the upcoming fishing year. The Council considers
stakeholder input and the most current information regarding the
charter halibut fishery and its management. After reviewing the
analysis and considering public testimony, the Council identifies the
charter halibut management measures to recommend to the IPHC that will
most likely constrain charter halibut harvest for each area to its
catch limit, while considering impacts on charter operations.
The IPHC considers the Council's recommendations, along with the
analysis upon which those recommendations were based, and input from
its stakeholders and staff. The IPHC then adopts either the Council's
recommendations or alternative charter halibut management measures
designed to keep charter harvest in Area 2C and Area 3A to the
allocations specified under the CSP. These measures are necessary to
limit the combined commercial and charter harvest in Area 2C and 3A
within each area's combined catch limit.
Once accepted by the Secretary of State with the concurrence of the
Secretary of Commerce, NMFS publishes in the Federal Register the
charter halibut management measures for each area as part of the IPHC
annual management measures. NMFS published the 2018 IPHC annual
management measures on March 9, 2018 (83 FR 10390). Subsequently, NMFS
revised portions of the annual management measures with an interim
final rule on March 20, 2018 (83 FR 12133).
Unguided anglers are currently managed under a two-fish of any size
daily bag limit in Alaska. Since 2008, guided anglers in Area 2C have
been managed under more restrictive limits than unguided anglers. In
Area 3A, guided anglers have been managed under more restrictive limits
since 2014. For example, in 2018, guided anglers in Area 2C are limited
to a daily bag limit of one fish and size limits that prohibit
retention of halibut greater than 38 inches and less than 80 inches. In
2018, guided anglers in Area 3A may retain two halibut per day;
however, one fish must be 28 inches or less, and guided anglers are
allowed to retain a maximum of four fish in a calendar year.
Additionally, guided anglers in Area 3A in 2018 are prohibited from
retaining halibut on any Wednesday, and on six Tuesdays from July 10
through August 14. To enforce the halibut size limit restrictions in
Areas 2C and 3A, if the fish are filleted on board the charter vessel,
guided anglers are required to retain the carcasses of fish until the
vessel offloads at the end of the fishing trip.
The maximum number of halibut an angler may possess at any one time
in Areas 2C and 3A is two daily bag limits.
[[Page 3406]]
Those possession limits correspond to the respective daily bag limits
for guided or unguided anglers. For example, the 2018 daily bag limit
for unguided anglers in Area 2C is two halibut, so the possession limit
for unguided anglers is four halibut; however, for guided anglers in
Area 2C in 2018, the daily bag limit is one halibut (within the size
limit), so the possession limit for that sector is two halibut (within
the size limit).
Mixing of Guided and Unguided Halibut
Some sport fishing businesses offer anglers the option to fish
either guided or unguided. A charter vessel fishing trip is defined in
Sec. 300.61 and is the period of time between the first deployment of
fishing gear by a charter vessel angler, to the point when one or more
charter vessel anglers or any halibut from the vessel are offloaded.
Typically, if there is a mix of guided and unguided fishing, it occurs
on larger charter vessels that transport clients on trips that span
more than one day. The unguided portion of the fishing trip most
commonly occurs on small vessels deployed away from the main vessel.
Unguided fishing can also occur on the main vessel itself. In either
case, anglers who do not receive sport fishing guide services are
unguided anglers.
Sport fishing guide services are defined in NMFS regulations, and
were recently clarified in a final rule published June 19, 2015 (80 FR
35195). The definition of sport fishing guide services in Sec. 300.61
means assisting a sport fisherman by accompanying or physically
directing the sport fisherman's fishing activities, and being
compensated for doing so. ``Compensation,'' as defined in Sec. 300.61,
is purposely broad and includes direct or indirect payment,
remuneration, or other benefits received in return for services,
regardless of the source.
Sport fishing businesses that have multi-day trips typically offer
a suite of activities to their clients that includes marine fishing for
halibut, salmon, and various species of groundfish; freshwater fishing
for salmon, char, and trout; personal use shellfish harvesting;
sightseeing; bird and wildlife viewing; photography; and small boat and
kayak excursions. This diversity of services allows businesses the
flexibility to respond to different social, environmental, and
regulatory conditions and to broaden their appeal to potential clients.
Some unguided sport fishing may be a reaction to the more restrictive
regulations imposed on guided halibut anglers. For example, in Area 3A,
unguided fishing provides an opportunity for persons to keep halibut on
days when catching and retaining halibut by guided anglers is closed.
Public testimony to the Council suggests that pricing, convenience, and
the personal preferences of the clients can also be reasons for sport
fishing businesses to offer unguided fishing.
Section 2.7.5 of the RIR indicates there is a lack of systematic
information or data sources that can precisely identify which sport
fishing businesses offer unguided fishing, or the number of fishing
trips where there is a mix of guided and unguided fishing. In an
attempt to establish an upper-bound estimate of the current number of
businesses potentially affected by this action, Section 2.7.5 of the
RIR cites an informal survey performed by the NOAA Office of Law
Enforcement (OLE). OLE determined there are approximately 30 fishing
vessel businesses currently operating in Area 2C and 14 similar
businesses in Area 3A that offer multi-day fishing trips for their
clients. However, among these businesses, the specific number of
vessels where halibut are comingled from both guided and unguided
fishing is unknown. Note that businesses that offer exclusively guided
fishing or exclusively unguided fishing would not be affected by this
proposed action.
Although the intention of this proposed action is specific to
fishing vessels that simultaneously have halibut caught and retained by
guided and unguided anglers, the Council recognizes that some shoreside
sport fishing businesses or stationary floating facilities also offer
saltwater fishing. In some cases, unguided anglers leave the facility
in boats provided by the operator to fish for salmon, halibut, or other
species without receiving sport fishing guide services. Other
operations offer a mix of both guided and unguided fishing, which
allows anglers to alternate between fishing with and without a charter
vessel guide. The Council received public comments that indicated mixed
guided and unguided fishing occurs when anglers based out of shoreside
businesses or stationary floating facilities spend part of their time
with a guide and part of their time unguided. Typically, at the end of
the day, the anglers return to the facility to offload their catch. The
fundamental difference between shoreside or stationary floating
facilities and the businesses that are the subject of this proposed
rule is that in most cases, at shoreside or stationary floating
facilities, an angler's catch is offloaded and is no longer on a
fishing vessel as defined by the Halibut Act. The Council determined
that these proposed regulations should apply to fishing vessels on
Convention waters.
Need for Action
This proposed rule would address a concern initially raised at the
Council's Enforcement Committee meeting in June 2016. When halibut are
caught and retained by both guided and unguided anglers and those
halibut are on the same fishing vessel, it presents enforcement
challenges due to the different regulations for guided versus unguided
anglers. The greatest challenge is for accountability under the bag and
possession limits and halibut size restrictions. Under the current
regulations, when halibut are caught and retained by guided and
unguided anglers and those halibut are on the same fishing vessel,
enforcement officers have no positive means to verify which angler
harvested a particular fish, or whether that angler harvested the fish
while fishing unguided or while being guided. It is important to note
these enforcement challenges occur when the halibut from guided and
unguided anglers is on board a fishing vessel on Convention waters.
Therefore, this proposed rule would not apply to Pacific halibut that
is not on a fishing vessel. Section 2.3 of the RIR provides additional
information on the history of this proposed action.
This Proposed Rule
To address the purpose and need for this action, the Council and
NMFS considered three alternatives, which are described in Sections 2.4
and 2.8 of the RIR. Under the preferred alternative (Alternative 3),
anglers would have the option to fish guided or to fish unguided.
However, if Pacific halibut caught and retained by one or more unguided
anglers is on board a fishing vessel in the Convention waters with
Pacific halibut caught and retained by one or more guided anglers, then
all Pacific halibut on board and the anglers that caught and retained
that Pacific halibut would be subject to the daily bag limits,
possession limits, size limits, and carcass retention requirements for
guided anglers for that IPHC area. For example, if halibut caught and
retained by an unguided angler is on board a fishing vessel with
halibut caught and retained by a guided angler in Area 2C, then all
halibut on board would be subject to the guided angler daily bag limit
and possession limit for Area 2C. To enforce size limits, if
applicable, the fish must be retained whole, or if the halibut are
filleted on the vessel, the carcasses must be retained in one piece and
a patch of skin must be left on each fillet until the fish are
offloaded.
[[Page 3407]]
Similarly, in Area 3A, if halibut caught and retained from guided and
unguided anglers are on the same vessel at the same time, then all
halibut on board would be subject to the Area 3A guided angler daily
limit and possession limit. As in 2C, if any halibut are filleted
before the end of the fishing trip, a patch of skin must be left on
each fillet and the carcasses of a size-restricted halibut must be
retained on board the vessel until the fish are offloaded.
The Council and NMFS considered an alternative (Alternative 2),
that would prohibit the possession of halibut caught and retained by a
guided angler and by an unguided angler on the same fishing vessel
simultaneously. This alternative would likely maximize regulatory
compliance. However, the Council also expressed concern that an
outright prohibition on having Pacific halibut caught and retained by a
guided angler and Pacific halibut caught and retained by an unguided
angler on the same fishing vessel could be overly restrictive,
especially to sport fishing businesses that currently offer guided and
unguided fishing options for anglers.
Under this proposed rule, sport fishing businesses that currently
offer a mix of guided and unguided fishing opportunities could continue
to do so, but unguided anglers would be subject to the daily bag
limits, possession limits, size limits, and carcass retention
requirements for guided anglers for that IPHC regulatory area if
halibut caught and retained by the unguided angler is onboard a fishing
vessel with halibut caught and retained by a guided angler. This
proposed rule would provide uniform halibut retention regulations,
provide clearer regulatory standards for the public, reduce the amount
of time needed by enforcement officers when boarding fishing vessels,
and improve overall compliance with daily bag limits, possession
limits, size limits, and carcass retention requirements.
Other regulations for guided and unguided anglers would remain
unchanged under this proposed rule. This proposed rule would not
require halibut harvested by an unguided angler to be accounted for in
charter logbooks. This proposed rule would not apply halibut harvested
by an unguided angler to the charter halibut allocation in the CSP.
Section 2.8.3 of the RIR provides additional information on reporting
harvests in logbooks.
This proposed rule would not impose day-of-the-week closures on
unguided anglers, but guided anglers would continue to fish under those
restrictions. The Council and NMFS recognize that uniform day-of-the-
week closures for all anglers who comingle halibut from guided and
unguided fishing on a vessel could potentially enhance the enforcement
of their preferred alternative; however, this proposed rule balances
the enforcement objective with rules that could present an unnecessary
burden on businesses offering guided and unguided fishing
opportunities.
Under this proposed rule, halibut harvested by unguided anglers
would not be included in the annual harvest limit assigned to persons
when they fish with a guide. Currently, guided anglers in Area 3A can
harvest no more than four fish per year, and are required to record
each retained fish on the back of their Alaska sport fishing license or
on an ADF&G Sport Fishing Harvest Record Card. This proposed rule would
not require maintaining harvest records of halibut harvested while
anglers are unguided. Section 2.8.3 of the RIR discusses annual harvest
limits and recordkeeping in additional detail.
This proposed action would apply to fishing vessels, as they are
defined in the Halibut Act. The term ``fishing vessel' in the Halibut
Act means: ``(1) any vessel engaged in catching fish in Convention
waters or in processing or transporting fish loaded in Convention
waters; (2) any vessel outfitted to engage in any activity described in
paragraph (1); or (3) any vessel in normal support of any vessel
described in paragraph (1) or (2).'' 16 U.S.C. 773(f).
In general, Sec. 300.65(d)(3) restricts a charter vessel guide,
charter vessel operator, or crew member from catching and retaining
halibut on charter vessel fishing trips in Areas 2C and 3A. However,
that regulation does not prohibit crew members and other charter vessel
support persons from participating as unguided anglers and retaining
halibut if there are no sport fishing guide services being rendered.
For example, on a multi-day charter vessel trip, crew members may use
their free time to fish unguided. Under this proposed rule, if that
halibut is on board a fishing vessel with halibut caught and retained
by a guided angler, then the daily bag limit, the possession limit,
size restrictions, and carcass retention requirements for guided
anglers for that IPHC Area applies to all halibut on board that fishing
vessel and applies to all anglers that caught and retained halibut on
board that fishing vessel.
This proposed rule would not modify regulations related to the
management of GAF. Regulations for GAF are principally found in Sec.
300.65(c)(5). The regulations allow transfers of commercial halibut IFQ
to a charter operator, where the IFQ is translated to fish that
individual anglers can use to increase their harvests up to the limits
of unguided anglers, which is currently two fish of any size per day,
with no annual limit. Under this proposed rule, guided anglers will be
able to continue to use GAF on charter vessel fishing trips.
Regulations applicable to GAF permitting, transfer, use, and reporting
requirements in Sec. 300.65 would still apply.
Proposed Revisions to the CSP Regulations in Sec. 300.65
This proposed rule would add a new paragraph at Sec. 300.65(d)(6).
The new paragraph at Sec. 300.65(d)(6) would require that all Pacific
halibut on board a fishing vessel be subject to the daily bag limit,
the possession limit, size restrictions, and carcass retention
requirements for guided anglers for that IPHC Area if any halibut
caught and retained by a guided angler is on board that vessel. This
paragraph applies to Pacific halibut caught and retained by guided and
unguided anglers when those halibut are on the same fishing vessel. If
sport fishing guide services are performed at any point during a
charter fishing trip, then all anglers on board, for the full extent of
the fishing trip, would be subject to the daily bag limits, possession
limits, size restrictions, and carcass retention requirements for
guided charter vessel anglers, as specified for the applicable IPHC
regulatory area, and determined by the annual management measures
recommended by the IPHC and NMFS and published by NMFS in the Federal
Register.
Attention to both the IPHC and NMFS regulations is critical because
there may be differences between the IPHC management measures and NMFS
regulations. For example, in 2018, the IPHC adopted management measures
for halibut size restrictions in Area 2C that were initially accepted
by the Secretary of State and published by NMFS (83 FR 10390, March 9,
2018), but those regulations were eventually superseded by a subsequent
action implemented by NMFS in an interim final rule (83 FR 12133, March
20, 2018).
Classification
Regulations governing the U.S. fisheries for Pacific halibut are
developed by the IPHC, the Pacific Fishery Management Council, the
North Pacific Fishery Management Council, and the Secretary of
Commerce. Section 5 of the Halibut Act (16 U.S.C. 773c) allows the
regional fishery management council having authority for a particular
geographical area to develop regulations governing fishing for halibut
in U.S. Convention waters as long as those
[[Page 3408]]
regulations do not conflict with IPHC regulations. The Halibut Act at
16 U.S.C. 773c(a) and (b) provides the Secretary of Commerce with the
general responsibility to carry out the Convention with the authority
to, in consultation with the Secretary of the department in which the
U.S. 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. This proposed rule is consistent with the Halibut
Act and other applicable laws.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866. This proposed rule also complies
with the Secretary of Commerce's authority under the Halibut Act to
implement management measures for the halibut fishery.
Regulatory Impact Review
An RIR was prepared to assess all costs and benefits of available
regulatory alternatives. A copy of this analysis is available from NMFS
(see ADDRESSES). The Council recommended this proposed action based on
those measures that maximized net benefits to the Nation. Specific
aspects of the economic analysis are discussed below in the Initial
Regulatory Flexibility Analysis section.
Initial Regulatory Flexibility Analysis (IRFA)
This IRFA was prepared for this proposed rule, as required by
section 603 of the Regulatory Flexibility Act (RFA), to describe the
economic impact this proposed rule, if adopted, would have on small
entities. An IRFA describes why this action is being proposed; the
objectives and legal basis for the proposed rule; the number of small
entities to which the proposed rule would apply; any projected
reporting, recordkeeping, or other compliance requirements of the
proposed rule; any overlapping, duplicative, or conflicting Federal
rules; and any significant alternatives to the proposed rule that would
accomplish the stated objectives, consistent with applicable statutes,
and that would minimize any significant adverse economic impacts of the
proposed rule on small entities. Descriptions of this proposed rule,
its purpose, and the legal basis are contained earlier in this preamble
and are not repeated here.
Number and Description of Small Entities Regulated by This Proposed
Rule
This proposed rule would directly regulate (1) sport fishing
businesses that currently offer, or would offer, both guided and
unguided halibut fishing opportunities, and the sport fishing guides
that work for those businesses; and (2) unguided anglers whose halibut
are on board vessels where halibut caught and retained by guided
anglers are on board at the same time.
NMFS does not collect information on the number of entities that
offer mixed guided and unguided halibut fishing, and there appears to
be no systematic means to determine an accurate number of those
entities. An informal survey by enforcement officers, combined with
testimony and comments from the public, indicates the practice of
mixing guided and unguided fishing primarily occurs on larger charter
vessels that provide multi-day fishing trips. Section 2.7.5 in the RIR
provides the best available estimate based on informal surveys by NOAA
Office of Law Enforcement. Approximately 30 fishing vessel businesses
in Area 2C and 14 similar businesses in Area 3A currently offer multi-
day fishing trips for their clients. This should be considered an
upper-bound estimate of the number of businesses directly affected by
this action at this time because the number of those operations that
offer mixed guided and unguided fishing is unknown. Public comment also
indicates that on relatively rare occasions, anglers will mix guided
and unguided fishing when they are based out of a shoreside lodge or
facility that provides rental boats.
In these cases, as with multi-day charter vessels, comingling of
retained halibut from guided and unguided fishing on the same vessel
presents enforcement and accountability issues when those vessels are
boarded by enforcement officers on Convention waters.
For RFA purposes only, the Small Business Administration has
established a small business size standard for businesses, including
their affiliates, whose primary industry is scenic and sightseeing
transportation on water, or all other amusement and recreation (NAICS
codes 487210, and 713990, respectively). A business primarily engaged
in these activities is classified as a small business if it is
independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has combined annual receipts
not in excess of $7.5 million for all its affiliated operations
worldwide.
It is unlikely that the largest of the affected charter vessel
operations would be considered large entities under Small Business
Administration (SBA) standards; however, that cannot be confirmed
because NMFS does not have or collect economic data on lodges or
charter vessels necessary to definitively determine total annual
receipts. Thus, all charter vessel operations are considered small
entities, based on SBA criteria, because NMFS cannot confirm if any
entities have annual gross revenues greater than $7.5 million.
Community quota entities may apply for and receive community CHPs
and some of those charter operations could potentially offer mixed
guided and unguided halibut fishing; therefore, this proposed rule may
directly regulate entities representing small, remote communities in
Areas 2C and 3A. There are 20 communities in Area 2C and 14 in Area 3A
eligible to receive community CHPs. Of these 34 communities, 20 hold
community CHPs. Again, the number of these CHP holders who offer, or
would offer, mixed guided and unguided fishing is unknown; however,
this proposed action is not expected to adversely impact communities
that hold CHPs.
This proposed rule would apply more restrictive halibut bag and
possession limits on clients that take multi-day charters with mixed
guided and unguided halibut fishing activity. These individuals are not
considered directly regulated small entities under the RFA. However,
the proposed action will also apply these more restrictive catch and
possession limits on vessel crew and guides who choose to fish for
halibut in any time off they may have during a guided trip. It is
possible that these crew and guides may operate as subcontractors to
the primary vessel and, as such, may be defined as small entities.
However, the applicability of the more restrictive limits to any of
these potential small entities is as an indirect consequence of their
being aboard the vessel on a mixed guided and unguided trip. Thus, they
are not considered to be directly regulated small entities for RFA
purposes.
Based on this analysis, NMFS preliminarily determines that there
are a substantial number of directly regulated small entities affected
by this action. However, no small entities would be subject to
significant adverse effects by this proposed rule. Due to the
assumptions necessary to come to this conclusion and the lack of
information available to conduct this analysis, NMFS has prepared this
IRFA in order to provide potentially affected entities an opportunity
to provide comments on this IRFA. NMFS will evaluate any comments
received on the IRFA and may consider certifying that this action will
not have a significant economic impact on a substantial number of small
[[Page 3409]]
entities prior to publication of the final rule.
Recordkeeping, Reporting, and Other Compliance Requirements
Under this proposed rule, the current recording and reporting
requirements for guided and unguided halibut anglers will not change.
Therefore, on charter vessels where mixed guided and unguided fishing
occurs, aligning the bag limits, possession limits, size limits, and
carcass retention requirements so they are the same for both guided and
unguided anglers will not change recordkeeping and reporting costs for
fishery participants or impose any additional or new costs on
participants.
Duplicate, Overlapping, or Conflicting Federal Rules
No duplication, overlap, or conflict between this proposed rule and
existing Federal rules has been identified.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
An IRFA is required to describe significant alternatives to the
proposed rule that accomplish the stated objectives of the Halibut Act
and other applicable statutes and that would minimize any significant
economic impact of the proposed rule on small entities.
The Council recognizes, and NMFS agrees that unguided fishing by
charter operations is largely used as an option to attract clients who
have diverse desires and needs. Charter vessels, especially those that
offer multi-day trips, offer a broad range of services. In addition to
transportation, food, and lodging on the boat, a typical trip might
include marine fishing for salmon, halibut, and various species of
groundfish, freshwater fishing for trout, salmon, and char, wildlife
and bird viewing, small boat and shore excursions, photography, and
personal-use shellfish fishing. The flexibility for competent anglers
to fish unguided is attractive to some clients; unguided fishing often
includes reduced fees relative to guided fishing, and for halibut
anglers, unguided fishing offers less restrictive bag and size limits
and no day of the week closures.
Alternative 1, the status quo, would continue to maintain different
daily bag limits, possession limits, size restrictions, and carcass
retention requirements for guided anglers and unguided anglers even if
halibut caught and retained by both guided and unguided anglers are on
the same fishing vessel simultaneously. The benefit of status quo is
the flexibility and business advantages for operators seeking to
accommodate the desires of a broad range of clients, and their anglers
can choose guided fishing, unguided fishing, or alternating between
guided and unguided fishing at different times.
The concerns about status quo are expressed in the Council's
purpose and need statement and in the discussion of alternatives in
Section 2.8 of the RIR. In Areas 2C or 3A, guided anglers are
frequently subject to greater harvest restrictions than unguided
anglers. When halibut from guided and unguided fishing are commingled
on a vessel in these management areas, it is difficult for enforcement
officers to determine whether the halibut were caught by guided or
unguided anglers. When vessels are boarded by enforcement officers,
establishing each person's catch and whether that person was guided or
unguided can become a lengthy and complicated process for both officers
and charter operators.
Alternative 2 would prevent the commingling of halibut catches from
guided and unguided anglers on fishing vessels by prohibiting the
possession of halibut retained by guided anglers with halibut retained
by unguided anglers on the same fishing vessel simultaneously. The
primary advantage of this alternative is that it would maximize
compliance of the regulations and likely reduce the duration of at-sea
boardings by enforcement officers.
The RIR describes the disadvantages of Alternative 2, which is
primarily the reduced flexibility and potential lost revenue for multi-
day fishing vessels that currently provide, or would seek to provide,
the option of mixed guided and unguided fishing. If charter operations
wanted to switch from guided to unguided fishing, the vessels would
need to assume the time and cost of returning to port, offloading the
fish, and then beginning a new trip to prevent comingling of halibut.
Alternative 3, the preferred alternative, is intended to balance
the enforcement concerns that result from commingling of halibut from
guided and unguided fishing with an allowance for charter operations to
maintain the flexibility of offering a mix of guided and unguided
fishing, as they do now. Moreover, Alternative 3 allows other
operations to assume the practice of offering both guided and unguided
fishing in the future. The Council's enforcement concerns are addressed
by establishing uniform bag limits, possession limits, size
restrictions, and carcass retention requirements for all halibut
retained by anglers on a fishing vessel, irrespective of whether the
angler was guided or unguided. These harvest restrictions would align
with the rules specified for guided anglers in the respective
regulatory areas, as determined by annual IPHC and NMFS management
measures and specified in NMFS regulations in 50 CFR part 300, subparts
A and E.
Under Alternative 3, some of the requirements for guided anglers
would not be imposed on unguided anglers, largely because the proposed
alignment of bag and possession limits, size restrictions, and carcass
retention requirements effectively serve to mitigate the compliance
risks associated with the commingling of halibut on a fishing vessel
that were caught and retained by both guided and unguided anglers. For
example, halibut caught by unguided anglers would not be entered into
the charter operator's logbook and would not be recorded on the ADF&G
charter harvest database. Section 2.3.3 of the RIR indicates that
revising logbooks and logbook databases to accommodate entries of
halibut caught and retained by unguided anglers would not only add an
unnecessary burden, it would add difficult complications and
significant cost to the managing agencies. This proposed rule would not
require unguided anglers to individually record their daily catch and
accrue it toward guided angler annual limits, which is currently a
maximum of four fish in Area 3A. Additionally, day of the week closures
for guided anglers, which is a restriction to catching and retaining
Pacific halibut on specific days and is currently used in Area 3A,
would not apply to unguided anglers.
The RIR examines the potential negative effects of this proposed
action, which largely relate to reduced harvest limits for unguided
anglers who have their halibut on the same fishing vessel as guided
anglers. One of the advantages of fishing unguided is that anglers are
allowed to keep two fish of any size per day and keep a possession
limit of four fish. Relative to the status quo, it is possible that
this proposed action, which would reduce the number and size of halibut
that can be retained by unguided anglers in some situations, could also
reduce the incentive to purchase charter halibut trips.
As noted above, the entities directly regulated under this proposed
action are assumed to be small, by the SBA definition, and substantial
in number. Overall, this action is likely to have a limited effect on
net benefits to the Nation. The majority of Area 2C and 3A halibut
charter operations, which includes business owners, guides and crew
members, would not be subject to significant negative economic impacts
[[Page 3410]]
by this proposed rule. Thus, NMFS is not aware of any alternatives, in
addition to the alternatives considered, that would more effectively
meet the RFA criteria with the objectives of the Halibut Act and other
applicable statutes at a lower economic cost to directly regulated
small entities.
Collection-of-Information Requirements
This proposed rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA) and which have been
approved by the Office of Management and Budget (OMB) under OMB control
number 0648-0575 (Alaska Pacific Halibut Fisheries: Charter
Recordkeeping). Public reporting burden per response is estimated to
average 4 minutes for the ADF&G Saltwater Sport Fishing Charter Trip
Logbook, 5 minutes for the GAF Landing Report, and 2 minutes for the
GAF Permit Log. The response time includes time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The ADF&G Saltwater Sport Fishing Charter Trip Logbook, GAF
Electronic Landing Report, and GAF Permit Log are mentioned in this
proposed rule. These requirements apply only to the harvest accounting
of charter vessel anglers by charter vessel guides. Under this proposed
rule, the harvests of unguided charter vessel anglers would not be
subject to these requirements; therefore, this rulemaking imposes no
additional burden or cost on the regulated community.
Send comments regarding this burden estimate, or any other aspect
of this data collection, including suggestions for reducing the burden,
to NMFS (see ADDRESSES), and by email to [email protected],
or fax to (202) 395-5806.
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. All currently approved NOAA
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Antarctica, Canada, Exports,
Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources,
Reporting and recordkeeping requirements, Russian Federation,
Transportation, Treaties, Wildlife.
Dated: February 6, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 300 as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart E--Pacific Halibut Fisheries
0
1. The authority citation for part 300, subpart E, continues to read as
follows:
Authority: 16 U.S.C. 773-773k.
0
2. Amend Sec. 300.65 by adding paragraph (d)(6) to read as follows:
Sec. 300.65 Catch sharing plan and domestic management measures in
waters in and off Alaska.
* * * * *
(d) * * *
(6) If a charter vessel angler catches and retains halibut, and
that halibut is on board a fishing vessel with halibut caught and
retained by persons who are not charter vessel anglers, then the daily
bag limit, possession limit, size limit, and carcass retention
regulations applicable to charter vessel anglers shall apply to all
halibut on board the fishing vessel.
* * * * *
[FR Doc. 2019-01912 Filed 2-11-19; 8:45 am]
BILLING CODE 3510-22-P