[Federal Register: April 21, 2009 (Volume 74, Number 75)]
[Proposed Rules]
[Page 18178-18197]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ap09-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 080630798-9258-01]
RIN 0648-AW92
Pacific Halibut Fisheries; Limited Access for Guided Sport
Charter Vessels 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: NMFS proposes regulations that would implement a limited
access system for charter vessels in the guided sport fishery for
Pacific halibut in waters of International Pacific Halibut Commission
(IPHC) Regulatory Areas 2C (Southeast Alaska) and 3A (Central Gulf of
Alaska). If approved, this limited access system would limit the number
of charter vessels that may participate in the guided sport fishery for
halibut in these areas. NMFS would issue a charter halibut permit to a
licensed charter fishing business owner based on his or her past
participation in the charter halibut fishery for halibut and to a
Community Quota Entity representing specific rural communities. All
charter halibut permit holders would be subject to limits on the number
of permits they could hold and on the number of charter vessel anglers
who could catch and retain halibut on their charter vessels. This
action is necessary to achieve the halibut fishery management goals of
the North Pacific Fishery Management Council. The intended effect is to
curtail growth of fishing capacity in the guided sport fishery for
halibut.
DATES: Written comments must be received by June 5, 2009.
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian. You may submit comments identified by 0648-AW92
by any one of the following methods:
Electronic submissions: Submit all electronic public
comments via the Federal eRulemaking Portal website at http://
www.regulations.gov.
Mail: P.O. Box 21668, Juneau, AK 99802-1668.
Fax: 907-586-7557.
Hand delivery: 709 West 9\th\ Street, Room 420A, Juneau,
AK.
All comments received are part of the public record and will be
posted to http://www.regulations.gov without change. All personal
identifying information (such as name, address, etc.) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file format only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS at the above address and by e-
mail to David_Rostker@omb.eop.gov or fax to 202-395-7285.
Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis prepared for this action may be
obtained from the Alaska Region, NMFS at the address above or from the
Alaska Region website at http://www.fakr.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228.
SUPPLEMENTARY INFORMATION: The 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 promulgates regulations governing the Pacific halibut fishery
under the Convention between the United States and Canada for the
Preservation of the Halibut Fishery of the North Pacific Ocean and
Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953,
as amended by a Protocol Amending the Convention (signed at Washington,
D.C., on March 29, 1979). Regulations developed by the IPHC are subject
to approval by the Secretary of
[[Page 18179]]
State with concurrence from the Secretary of Commerce (Secretary).
After approval by the Secretary of State and the Secretary, the IPHC
regulations are published in the Federal Register as annual management
measures pursuant to 50 CFR 300.62. The most recent IPHC regulations
were published March 7, 2008 at 73 FR 12280. IPHC regulations affecting
sport fishing for halibut and charter vessels in Areas 2C and 3A may be
found in sections 3, 25, and 28 (73 FR 12280, March 7, 2008).
The Halibut Act, at Sections 773c(a) and (b), provides the
Secretary 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 is directed to consult with the Secretary of the
department in which the U.S. Coast Guard is operating.
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. Such Council-
developed regulations may be implemented by NMFS only after approval by
the Secretary. The Council has exercised this authority most notably in
the development of its Individual Fishing Quota (IFQ) Program, codified
at 50 CFR part 679, and subsistence halibut fishery management
measures, codified at 50 CFR 300.65. The Council also has been
developing a regulatory program to manage the guided sport charter
vessel fishery for halibut. This action is proposed as a step in the
development of that regulatory program.
Management of the Halibut Fisheries
The harvest of halibut occurs in three basic fisheries--the
commercial, sport, and subsistence fisheries. Additional fishing
mortality occurs as bycatch or incidental catch while targeting other
species and wastage of halibut that are caught but cannot be used for
human food.
The IPHC annually determines the amount of halibut that may be
removed from the resource without causing biological conservation
problems on an area-by-area basis in all areas of Convention waters. It
imposes catch limits, however, only on the commercial sector in areas
in and off of Alaska. The IPHC estimates the exploitable biomass of
halibut using a combination of harvest data from the commercial,
recreational, subsistence fisheries, and information collected during
scientific surveys and sampling of bycatch in other fisheries. The
target amount of allowable harvest for a given area is calculated by
multiplying a fixed harvest rate by the estimate of exploitable
biomass. This target level is called the total constant exploitation
yield (CEY) as it represents the target level for total removals (in
net pounds) for that area in the coming year. The IPHC subtracts
estimates of all non-commercial removals (sport, subsistence, bycatch,
and wastage) from the total CEY. The remaining CEY, after the removals
are subtracted, is the maximum catch or ``fishery CEY'' for an area's
directed commercial fixed gear fishery.
This method of determining the commercial fishery's catch limit in
an area results in a decrease in the commercial fishery's use of the
resource as other non-commercial users increase their proportion of the
total CEY. As conservation of the halibut resource is the overarching
goal of the IPHC, it attempts to include all sources of fishing
mortality of halibut within the total CEY. This method for determining
the limit for the commercial use of halibut has worked well for many
years to conserve the halibut resource, provided that the other non-
commercial uses of the resource have remained relatively stable and
small. Although most of the non-commercial uses of halibut have been
relatively stable, growth in the guided sport charter vessel fishery in
recent years has resulted in this fishery harvesting a larger amount of
halibut than it did in earlier years. Increases in the halibut harvest
of any non-commercial fishery reduce the amount available to the
commercial fishery.
History of Charter Vessel Fishery Management
Until 2007, guided sport fishing for halibut on charter vessels was
governed only by regulations developed by the IPHC that were applicable
to all halibut sport fishing. Current IPHC sport fishing regulations
may be found in the annual management measures referenced above (at in
sections 3, 25, and 28 (73 FR 12280, March 7, 2008)). In summary, the
basic IPHC sport fishing rules for Alaska stipulate the following:
A single line with no more than two hooks attached or a
spear;
A daily bag limit of two halibut of any size (except for
charter vessel anglers in Area 2C, as explained below);
A possession limit of two daily bag limits;
A sport fishing season of February 1 through December 31;
A prohibition on sale, trade, or barter of sport-caught
halibut; and
A prohibition on filleting, mutilating, or otherwise
disfiguring halibut on board a fishing vessel except that each halibut
may be cut into no more than two ventral, two dorsal pieces and two
cheeks with skin on.
The IPHC first adopted sport halibut fishing rules in 1973, in
response to Federal, state, and provincial agencies seeking consistency
and uniformity in sport fishing regulations in all IPHC areas. The IPHC
bag limit rule was first established as three fish per day per person
in 1973, was reduced to one fish per day in 1974, and raised to two
fish per day in 1975, where it has remained until present. Similarly,
the IPHC established the sport fishing season for halibut originally
from March 1 through October 31 in 1973, and changed it for several
years until the current 11-month season was set in 1986. Finally,
during the years 1984 through 1997, the IPHC required sport charter
vessels to have IPHC licenses.
The Council has discussed the expansion of the guided sport charter
vessel fishery for halibut, and the need to manage it, since 1993. A
guideline harvest level (GHL) for Area 2C and a separate GHL for Area
3A were adopted by the Council in 1997. The GHLs by themselves do not
limit the charter vessel fisheries. Although the Council's policy is
that the charter vessel fisheries should not exceed the GHLs, no
constraints were initially recommended by the Council or imposed on the
charter vessel fisheries for exceeding a GHL. The Council stated its
intent to maintain a stable charter vessel fishing season without a
mid-season closure. The Council envisioned ``framework'' regulations of
increasing restrictiveness depending on the extent to which a GHL was
exceeded. Proposed framework regulations were published in 2002
(January 28, 2002; 67 FR 3867); however, NMFS informed the Council
later that year that its framework regulations could not be implemented
as envisioned. Hence, proposed and final rule notices were published
(January 28, 2002, 67 FR 3867 and August 8, 2003, 68 FR 47256,
respectively) establishing the GHLs without restrictive regulations and
codified at 50 CFR 300.65(c).
The GHLs represent a pre-season specification of acceptable annual
halibut harvests in the charter vessel fisheries in Areas 2C and 3A. To
accommodate some growth in the charter vessel sector while
approximating historical harvest levels, the Council recommended GHLs
based on 125 percent of the average 1995 through 1999 charter vessel
harvest. For Area 2C the GHL was set at 1,432,000
[[Page 18180]]
lb (649.5 mt) net weight, and in Area 3A the GHL was set at 3,650,000
lb (1,655.6 mt) net weight.
When the Council recommended these GHLs, halibut stocks were
considered to be near record high levels of abundance. To accommodate
decreases and subsequent increases in abundance, the Council
recommended a system of step-wise adjustments in each GHL based on a
predetermined uniform measure of stock abundance. The measure used was
the total CEY determined annually by the IPHC. Specifically, the
Council linked a step-wise reduction in the GHL in any one year to the
decrease in the total CEY as compared to the 1999 through 2000 average
CEY. For example, if the halibut stock in Area 2C were to fall from 15
to 24 percent below its 1999 through 2000 average CEY, then the GHL for
Area 2C would be reduced by 15 percent. Conversely, as the CEY
increased from low levels, the GHL also would increase in the same
step-wise manner. However, regardless of how high the total CEY may
rise above its 1999 through 2000 average, the GHLs were not designed to
increase above their maximum amounts.
Annually in October, the Alaska Department of Fish and Game (ADF&G)
informs the Council and IPHC of the guided (charter vessel) and non-
guided sport harvest of halibut in Areas 2C and 3A during the previous
year. These estimated harvests are based on a survey of anglers who
report numbers of fish harvested and the estimated average weight of
fish harvested in each sport fishery. Because the sport harvest in one
year is estimated and reported in the following year, the Council does
not know the amount of the sport harvest of halibut in a particular
year until close to the end of the following year.
Charter vessel harvests of halibut have steadily increased in
recent years especially in Area 2C and to a lesser extent in Area 3A.
Sport fishing statistics from ADF&G for Area 2C indicate an annual
increase in charter vessel halibut harvests from 0.939 million pounds
in 1999 to 1.952 million pounds in 2005. In 2006, the Area 2C harvest
declined 7.6 percent to 1.804 million pounds. In 2007, the most recent
year of charter vessel harvest estimates, however, the Area 2C harvest
increased again by 6.3 percent to 1.918 million pounds. The GHL for
Area 2C was first implemented in regulations in 2003 at 1.432 million
pounds, and remained at that amount through 2007. The charter vessel
harvest of halibut in Area 2C in 2003 was 1.412 million pounds,
slightly under the GHL. However, the annual harvest in the following
four years (2004 through 2007) averaged 1.856 million pounds, 0.424
million pounds or about 30 percent in excess of the GHL.
Charter vessel harvests of halibut in Area 3A during the same time
period (1999 through 2007) indicate a slower but steady growth since
2003 when the Area 3A GHL was first implemented at 3.65 million pounds.
The harvest in 2003 was 3.382 million pounds. This amount was under the
GHL, but harvests the following four years (2004 through 2007) averaged
3.756 million pounds. This annual average harvest in the most recent
four years of charter vessel harvest statistics is slightly less than
three percent above the GHL for Area 3A. In 2007, the Area 3A harvest
increased to 4.002 million pounds which exceeded the GHL for this area
by 9.6 percent.
Although the charter vessel halibut fishery in Area 3A has been at
or slightly above its GHL, the Area 2C fishery clearly has been
exceeding its GHL in recent years. A management response to the excess
halibut harvests in Area 2C was initiated in 2007 by the IPHC, NMFS,
ADF&G, and subsequently by the Council. At its annual meeting in
January 2007, the IPHC adopted a motion to recommend reducing the daily
bag limit for anglers on charter vessels in Areas 2C and 3A from two
halibut to one halibut during certain time periods. Specifically, for
Area 2C, the IPHC recommended that the one-fish daily bag limit should
apply to charter vessel anglers from June 15 through July 30. The IPHC
recommended this temporary bag limit reduction because it believed its
management goals were at risk by the magnitude of the charter halibut
harvest in excess of the GHL, especially in Area 2C. The IPHC's action
was not explicitly designed to manage the charter fishery to the
Council's GHLs but rather to initiate some control on what appeared to
be an ever increasing charter vessel harvest.
In a letter to the IPHC on March 1, 2007, the Secretary of State,
with concurrence from the Secretary, rejected the recommended one-fish
daily bag limit in Areas 2C and 3A, and indicated that appropriate
reduction in the charter vessel harvest in these areas would be
achieved by a combination of ADF&G and NMFS regulatory actions. For
Area 2C, the State of Alaska Commissioner of Fish and Game (State
Commissioner) issued an emergency order to prohibit retention of fish
by charter vessel guides and crew members (No. 1-R-02-07). This
emergency order was similar to one issued for 2006. This action was
intended, in conjunction with other measures to be implemented by the
Secretary, to reduce the 2007 charter vessel harvest of halibut to
levels comparable to the IPHC-recommended bag limit reduction which was
estimated to range from 397,000 (180.1 mt) pounds to 432,000 pounds
(195.9 mt).
Regulatory action to remedy this problem by June 2007, the seasonal
beginning of the principal sport fishing effort, required the
Secretary, through NMFS, to develop regulations independent of the
Council process. The preferred alternative selected by NMFS maintained
a two-fish daily bag limit provided that at least one of the harvested
halibut has a head-on length of no more than 32 inches (81.3 cm). If a
charter vessel angler retains only one halibut in a calendar day, that
fish may be of any length. NMFS published regulations implementing this
partial maximum size limit on June 4, 2007 (72 FR 30714).
The Council also during the first half of 2007 was considering
management alternatives for the charter vessel halibut fishery in Area
2C. Unlike the IPHC, ADF&G, and NMFS actions, however, the Council's
alternatives were designed specifically to maintain the charter vessel
fishery to its GHL. In June 2007, the Council adopted a preferred
alternative that contained two options. The Council recommended that
the selection between the options should depend on whether the CEY
decreased substantially for 2008. As explained above, the GHLs for Area
2C and 3A are linked to the total CEY determined annually by the IPHC
as a basis for setting the commercial fishery catch limits in these
areas. A sufficient decrease in the total CEY causes the GHL for Area
2C to decrease from its previous level. The Council did not know in
June 2007 how the GHL would be affected by IPHC action in January 2008.
Hence, the Council recommended a suite of charter vessel fishery
restrictions if the GHL in Area 2C were to remain the same in 2008
(Option A) and a different, more restrictive, suite of restrictions if
the GHL were to decrease in 2008 (Option B). The Council recommended no
change in management of the charter vessel fishery in Area 3A because
that fishery appeared stable at about its GHL. A proposed rule was
published December 31, 2007 (at 72 FR 74257) soliciting comments on
both options for management of the charter vessel fishery in Area 2C
At its annual meeting in January 2008, the IPHC set the 2008 total
CEY for Area 2C at 6.5 million pounds (2,948.4 mt). This was a 4.3
million pound (1,950.4
[[Page 18181]]
mt) reduction from the 2007 total CEY of 10.8 million pounds (4,899.0
mt), which triggered a reduction in the Area 2C GHL to 931,000 pounds
(422.3 mt). This reduction in the GHL compelled selection of the more
restrictive Option B for the Area 2C final rule. Option B imposed a
daily bag limit of one halibut for each charter vessel angler,
prevented charter vessel guides, operators and crew from harvesting
halibut, restricted the number of lines used to fish for halibut on a
charter vessel, and added certain recordkeeping and reporting
requirements. These regulations were published in the Area 2C final
rule on May 28, 2008 (73 FR 30504) that was effective on June 1, 2008.
The May 28, 2008, final rule was enjoined by U.S. District Court
for the District of Columbia on June 10, 2008, (see Order Granting
Plaintiffs' Motion for a Temporary Restraining Order (TRO), dated June
11, 2008, and Order Granting Plaintiffs' Motion for a Preliminary
Injunction (PI), dated June 19, 2008, Van Valin, et al. v. Gutierrez,
Civil Action No. 1:08-cv-941). Instead of the one-halibut daily bag
limit contained in the May 28, 2008 rule, the court ordered that the
previous (2007) rule become effective, which allowed a two-fish daily
bag limit provided that at least one of the harvested halibut had a
head-on length of no more than 32 inches (81.3 cm).
In its Order Granting the Plaintiffs' Motion for a Preliminary
Injunction, dated June 19, 2007, the U.S. District Court determined
that the Plaintiffs had met the burden for granting a preliminary
injunction, including demonstrating a likelihood of success on the
merits of their claims. The Plaintiffs argued that NMFS, by referencing
the 2003 GHL rule (68 FR 47256, August 8, 2003) in the May 28, 2008,
final rule, bound itself to use certain procedures found in the
preamble to the 2003 GHL rule, including the requirement that a GHL had
to be exceeded in order for management measures to be implemented.
Although such a result arguably could be read into the rulemaking
discussion found in the preamble to the 2003 GHL rule, as evidenced by
the U.S. District Court's granting of the TRO and PI, NMFS specifically
repudiates such a ``policy.''
To further clarify NMFS' position on repudiating the above policy,
NMFS subsequently withdrew the May 28, 2008, rule that was the basis
for the Van Valin lawsuit (73 FR 52795), and on December 22, 2008,
proposed a separate rulemaking to implement the one fish daily bag
limit (73 FR 78276). This new proposal would give effect to the
Council's intent to keep the harvest of charter vessel anglers as close
to the established GHL as the Council's proposed management measures
will allow.
This brief history of management of the charter vessel fishery for
halibut demonstrates its contentiousness. Charter vessel operators and
anglers strongly resist anything more restrictive than a two-fish daily
bag limit, but open access in the charter vessel fleet has resulted in
virtual unlimited increases in charter halibut harvests. The IPHC
balances such increases by decreases in the commercial halibut catch
limit. To assure the future productivity of the halibut resource, the
IPHC must maintain the total halibut harvest within the total CEY. The
limited access program recommended by the Council and proposed by this
action is designed to be a step toward establishing a comprehensive
program of allocating the halibut resource between the commercial and
charter vessel fisheries.
Limited Access Management for the Charter Vessel Fishery
A problem statement adopted by the Council to guide its decision
making during the 1995 through 2000 period cited as a concern the
overcrowding of productive halibut grounds due to the growth of the
charter vessel sector as a concern. In April 1997, during its initial
review of an analysis of management alternatives, the Council added a
potential cut-off date or ``control date'' of April 15, 1997--a date
after which new entrants into the charter vessel fishery are not
assured of qualifying for participation under a moratorium on new entry
or other limited access program. The next time the Council considered
charter vessel management issues was in September 1997. At that
meeting, however, it backed away from further development of a limited
access policy and instead recommended improved recordkeeping and
reporting requirements and a GHL for Area 2C and 3A designed to give
the charter vessel fleet 125 percent of its 1995 harvest in each of
these areas.
The Council revisited limited access management for the charter
vessel fishery for halibut in February 2000. At that meeting the
Council made a final decision on its GHL policy. It also (a)
established a committee to develop a program that would integrate the
charter vessel fishery into the existing IFQ program for the commercial
fishery, and (b) decided not to proceed with a moratorium for the
charter vessel fishery in Areas 2C and 3A in deference to the State of
Alaska developing localized moratoria within the local area management
plan process. In April 2000, the Council unanimously decided to begin
analysis of alternatives for integrating the charter vessel fishery
into the commercial IFQ program. The Council also accepted its
committee's recommendation that the new charter/commercial IFQ program
would replace the GHL program but clarified that the GHL program must
be implemented first.
In February 2001, the Council revised its problem statement for
expansion of the IFQ program to charter vessels and added a moratorium
alternative to the analysis, among other changes. Finally, in April
2001, the Council adopted the IFQ program alternative for the charter
vessel fishery, culminating eight years of debate and Council
consideration of ways to manage the guided sport charter vessel fishery
for halibut. The pool of halibut that would be allocated under the
charter IFQ program was to be the same as the GHL--that is 125 percent
of the 1995 through 1999 average harvest.
In June 2001, however, the State of Alaska representative on the
Council notified the Council of the State's intention to move to
rescind the Council's April 2001 action. The motion to rescind was made
and considered by the Council at its October 2001 meeting and it
failed. The State's objections were based in part on its concerns about
the State charter vessel logbook data on which initial allocations of
charter vessel fish to individual operators in the charter vessel
sector would be based. The State was concerned that data from its 1999
and 2000 charter vessel logbooks did not accurately reflect halibut
harvest and should not be used in any management decision-making
process. After months of additional analysis by the State and review by
the Council's Scientific and Statistical Committee (SSC), the Council,
in January 2003, accepted its SSC report that the charter vessel
logbook data were suitable as a basis for determining eligibility and
initial allocation of charter vessel quota shares.
In August 2003, NMFS published a final rule implementing the
Council's recommended GHL policy (68 FR 47256, August 8, 2003).
Following the Council's request to implement its GHL policy before its
IFQ policy, NMFS developed regulations and administrative systems to
integrate the charter vessel fishery into the commercial IFQ program.
After extensive development and review of a proposed rule for the IFQ
program during 2003 and 2004, NMFS sought confirmation of the Council's
continued support for the program. In a letter to the Council dated
August 3, 2005, the
[[Page 18182]]
NOAA Assistant Administrator for Fisheries requested the Council to
confirm its 2001 decision to incorporate the charter vessel sector into
the commercial IFQ program. In December 2005, after two days of hearing
public testimony, the Council failed to confirm its 2001 decision. The
Council decided, however, to create a charter halibut stakeholder
committee to examine a suite of options proposed by the State of Alaska
representative on the Council. In addition, the Council established a
new control date of December 9, 2005, to notice the charter vessel
industry that anyone entering the fishery after the control date would
not be assured of future access should a moratorium or other limited
access system be developed and implemented that limits participants in
the charter vessel halibut fishery.
In April 2006, the Council initiated an analysis for a moratorium
on the entry of new participants in the charter vessel fishery for
halibut in Areas 2C and 3A using the December 9, 2005 control date. A
year later on March 31, 2007, the Council adopted a moratorium motion
to recommend to the Secretary. The motion is available at http://
www.fakr.noaa.gov/npfmc/current_issues/halibut_issues/
CharterHalibutMotion307.pdf. The essence of the proposed moratorium is
to limit entry in the charter vessel fishery to charter halibut permit
holders. The moratorium is a limited access system in which permits
would be initially limited to those businesses that have historically
and recently participated in the fishery according to certain criteria.
The following describes these proposed criteria, conditions for
transfer of permits, and other aspects of the program in detail.
The Proposed Action
This action proposes regulations that would limit the entry of
additional charter vessels into the guided sport fishery for Pacific
halibut in waters of IPHC Regulatory Areas 2C (Southeast Alaska) and 3A
(Central Gulf of Alaska). For purposes of this action, a charter vessel
is a vessel that is registered, or should be registered, as a sport
fishing guide vessel with the Alaska Department of Fish and Game. This
definition is consistent with the current definition of ``charter
vessel'' at 50 CFR 300.61. If approved, any person operating a charter
vessel engaged in halibut fishing in Area 2C or Area 3A would be
required to have on board the vessel a charter halibut permit
designated for that area.
A charter halibut permit would be issued to an applicant based on
the applicant's participation in Area 2C or Area 3A during the
qualifying period and recent participation period. Qualifications for a
permit in each area would be determined independently. To receive a
permit endorsed for Area 2C, NMFS would only examine that applicant's
participation in Area 2C. To receive a permit endorsed for Area 3A,
NMFS would only examine that applicant's participation in Area 3A. A
charter halibut permit would be transferrable or not transferrable
based on certain minimum participation criteria. Each permit would have
an angler endorsement that specifies the maximum number of anglers
authorized to catch and retain halibut under the authority of the
permit under which the vessel is operating.
This action also proposes two special permits: a community charter
halibut permit and a military charter halibut permit. A community
charter halibut permit would be issued to a Community Quota Entity
(CQE) as defined at 50 CFR 679.2. A military charter permit would be
issued to a United States Military Morale, Welfare and Recreation (MWR)
Program. The unique features of these permits are described below.
Qualifications for Charter Halibut Permit
The Council recommended participation requirements for permit
qualification that take into account historic participation during a
qualifying period and during a recent participation period.
Participation during both periods would demonstrate a qualifying
dependence on the charter vessel fishery for halibut. Charter halibut
permits would be awarded only to persons who participated as owners of
a charter halibut business that was licensed by the ADF&G. The proposed
rule would adopt the Council's recommendation and award permits to
applicants that participated as ADF&G licensed fishing guide business
owners in a qualifying period and a recent participation period.
Qualifying period and recent participation period. The qualifying
period would be the sport fishing season established by the IPHC in
2004 and 2005. The sport fishing season in both of those years was
February 1 through December 31. The recent participation year would be
the year prior to implementation of this proposed action. In
recommending this action, the Council was not certain exactly what year
this proposed action, if approved, would be implemented; hence, the
year prior to that also was unknown.
The Council contemplated that the year prior to implementation
could be 2007 or 2008. If approved, the final rule for this action will
specify the year prior to implementation and the rationale for that
specification. In specifying this year, NMFS will take into account the
most recent year for which data are available, among other things. This
proposed rule does not attempt to define the start of the program and
thereby the year prior to it, but instead refers to the Council's
``year prior to implementation'' as the ``recent participation period''
or ``recent participation year.'' Hence, the proposed rule text that
follows does not specify the recent participation year. That
specification will occur in the final rule, pending approval of this
action.
To qualify for a permit, an applicant would have to have reported
at least five logbook trips during the qualifying period and five
logbook trips during the recent participation period. The Council
wanted to ensure that permits went only to persons who were active in
the charter halibut fishery at or above a minimal level in both
periods. The Council concluded that a five-trip level of participation
showed active participation in the charter halibut fishery. The purpose
of requiring active participation in both periods is to make sure that
the applicant is an historical participant and a recent participant in
the charter halibut fishery. The Council did not intend a permit to be
issued to an applicant to operate in this fishery unless the applicant
met both criteria. Thus, an applicant that operated a charter halibut
fishing business during the recent participation period, but not the
qualifying period, would not qualify for a charter halibut permit.
Conversely, an applicant that operated a charter halibut fishing
business during the qualifying period, but not the recent participation
period, would not qualify for a charter halibut permit.
Charter halibut permits would not be awarded to persons who
purchased a charter fishing business that met some or all of the
participation requirements but who themselves do not meet the
participation requirements. The Council did not recommend that NMFS
award permits based on business purchase agreements and therefore it
did not analyze criteria to recognize such agreements. Hence, NMFS does
not propose to recognize private agreements for the following reasons:
(a) the Council did not recommend this policy; (b) a person who met all
the participation requirements for a transferable permit could apply
for the permit and transfer it to another person, if that is required
by their private agreement; (c) a person who meets only the
requirements for a nontransferable
[[Page 18183]]
permit, should not be able to transfer that permit; and (d) awarding a
permit based on one person meeting the participation requirements in
the qualifying period and another person meeting the participation
requirements in the recent period would increase the total number of
permits which would be contrary to the Council's intent. NMFS concluded
that if one person did not participate in both periods--the qualifying
period and the recent participation period--that person should not
receive a charter halibut permit in the initial award of permits. To
enter the fishery, that person would have to buy a permit from a person
that met the participation requirements in both periods.
Number of permits. If an applicant for a charter halibut permit
meets the minimum participation requirements during a qualifying year
and the recent participation year, NMFS would determine how many
permits the applicant would receive and how many of those, if any,
would be transferable permits.
If an applicant qualified for any permits, NMFS would issue to the
applicant the number of permits equal to (a) the applicant's total
number of bottom fish logbook fishing trips in a qualifying year,
divided by 5, or (b) the number of vessels that made those trips,
whichever number is lower. The Council recommended that the number of
permits issued to a charter fishing business would be ``based on the
number of trips summed for all vessels in [its] best year of the
qualification period.'' Further, ``[a] business would be limited to the
number of permits equal to the highest number of vessels used in any
one year during the qualifying period.'' NMFS interprets this to mean
that the number of permits would be the number of bottomfish logbook
trips in 2004 or 2005 divided by five or the number of charter vessels
operated by a business during 2004 or 2005, whichever number is lower.
The applicant would select which year in the qualifying period--2004 or
2005--NMFS would use.
A conservative interpretation is reasonable because an objective of
limited access programs, including this one, is to reduce the amount of
fishing effort in a fishery. Hence, NMFS would issue the number of
permits equal to the lesser of (a) bottom fish logbook fishing trips
divided by five (the minimum number of trips to qualify for a non-
transferable permit) or (b) the number of charter vessels that made
those trips in one of the qualifying years.
Although the Council motion refers to an applicant's ``best year of
the qualification period,'' the Council was silent on how an
applicant's ``best year'' is determined. NMFS proposes that the
applicant should select its best year. Thus, the proposed rule uses the
term ``applicant-selected year'' rather than the applicant's ``best
year.'' The ``applicant-selected year'' means the year in the
qualifying period--2004 or 2005--that the applicant selects for NMFS to
use in determining how many permits the applicant will receive and
whether the permits will be transferable or non-transferable. NMFS
proposes that the applicant select the applicant's best year because
applying the rules for the number of permits and transferable permits
could have different results. For example, an applicant may receive a
greater number of permits using the applicant's participation in one
year but a greater number of transferable permits using the applicant's
participation in another year. Because the year selected could make a
difference, the applicant should choose which outcome is more important
to the applicant.
To determine the number of permits an applicant may be awarded and
whether those permits are transferable or nontransferable, NMFS would
create the official charter halibut record. This record would contain
the information about participation in the charter halibut fishery that
NMFS would use to evaluate applications for charter halibut permits.
NMFS would derive the official record from ADF&G logbook records. For
each applicant, NMFS would make two determinations for each of the two
qualifying years based on the official record. First, NMFS would
determine the number of trips that the applicant reported, divide that
number by five, and round it down to the nearest whole number. Second,
NMFS would determine the number of vessels that made those trips. NMFS
would then inform the applicant of these numbers for the years 2004 and
2005.
The applicant would select 2004 or 2005 as the year that NMFS
should use to determine the applicant's permits. Using the applicant-
selected year, NMFS would award the applicant the number of permits
that is equal to the lower of the first determination--the total number
of trips reported in the applicant-selected year, divided by five and
rounded down to the nearest whole number, or the second determination--
the number of vessels that made those trips in the applicant-selected
year. For example, an applicant in its selected qualifying year
reported 23 logbook trips using three vessels. One vessel made 16
trips, another vessel made five trips, and another vessel made only two
trips. Under the proposed rule, NMFS would calculate 23 / 5 = 4.6 which
would be rounded down to four. But this number of permits would be
limited by the number of vessels that made all the logbook trips in the
applicant-selected year which was three. Hence, the applicant would be
awarded three permits.
A limit on the number of permits equal to the number of vessels
used in the applicant-selected year is necessary to prevent expansion
in the number of vessels that could operate in the charter halibut
fishery if this program were approved. If the number of permits were
based only on the number of trips divided by five, the number of
vessels could exceed the number of vessels that participated before
adoption of this limited access program, which would be antithetical to
the purposes of this program.
Designation of transferable permits. After determining the total
number of permits, NMFS would determine which permits are transferable
and which are nontransferable. An applicant would receive a
transferable permit for each vessel that made at least 15 trips in the
applicant-selected year and at least 15 trips in the recent
participation year. The rest of the applicant's permits, if any, would
be non-transferable permits.
Under the proposed rule, NMFS would issue to an applicant the
number of transferable permits equal to the number of vessels that made
at least 15 logbook fishing trips or more in the applicant-selected
year and at least 15 trips in the recent participation year. Applicants
that do not have the minimum of 15 logbook fishing trips in each period
but qualify for one or more permit(s) with a minimum of five logbook
fishing trips, would receive only non-transferable permit(s). Hence, in
the example above of an applicant with 23 logbook trips using three
vessels, that applicant would receive three permits. Based on the 15-
trip minimum criterion, however, this applicant would receive only one
transferable permit and the other two permits would be non-
transferable.
This two-tiered qualification criterion would create two types of
permits: a nontransferable permit that would cease to exist when the
entity that holds the permit no longer exists and a transferable permit
that would have value as an asset that could be transferred to another
business when the permit holder decided to leave the fishery. The
Council recommended transferable permits to establish a market-based
system of allocating access to the fishery after the initial allocation
of permits. Persons wanting to enter the charter halibut fishery could
[[Page 18184]]
obtain permits from persons leaving the fishery. The Council concluded
this would be more reasonable and efficient than a continual permit-
application-and-permit-award process by the government. But the Council
did not recommend that all permits be transferable. The Council
recommended two types of permits--transferable and non-transferable--as
proposed by this action.
This part of the Council's recommendation reflects a balance of the
Council's objective to reduce fishing effort and its objective to
minimize disruption to the charter fishing industry. Requiring a high
minimum number of logbook fishing trips would result in a sudden
reduction of charter halibut operations because many existing charter
vessel operators would not be able to qualify. On the other hand,
requiring a low minimum number of logbook fishing trips would result in
little or no reduction in potential harvesting capacity. The two-tiered
qualification criterion is designed to allow a business with relatively
less participation in the charter halibut fishery to continue its
operation while reducing potential harvesting capacity over time by not
allowing that permit to be transferred to another entity.
Angler endorsement on permits. Each charter halibut permit would
have an angler endorsement number. The angler endorsement number on the
permit would be the maximum number of anglers who are catching and
retaining halibut that a vessel operator can have on board the vessel.
The angler endorsement would not limit the number of passengers that a
charter vessel operator could carry, only the number who may catch and
retain halibut.
The Council recommended that the angler endorsement number on an
applicant's permits would be the highest number of clients that the
applicant reported on any logbook fishing trip in 2004 or 2005, subject
to a minimum endorsement of four. The proposed rule adopts that
recommendation, except that it uses the term ``angler'' rather than
``client.'' The term ``angler'' includes all persons, paying or non-
paying, who use the services of the charter vessel guide. The charter
halibut permit, once issued, would limit the number of charter vessels
anglers--paying or non-paying persons who use the services of a charter
vessel guide--who can catch and retain halibut. Thus, under the
proposed rule, the ``angler endorsement number'' on the permit would be
the highest number of anglers who caught and retained halibut reported
on any of the applicant's logbook fishing trips in 2004 or 2005.
A vessel operator would be able to stack permits. For example, if a
vessel operator has two charter permits on board, one with an angler
endorsement of four and one with an endorsement of six, then the vessel
operator could have a maximum of 10 charter vessel anglers on board who
are catching and retaining halibut if the operator is otherwise
authorized to carry 10 passengers. If other provisions of law, such as
safety regulations or operation for hire regulations, prevent 10
anglers from being on board the vessel, the charter halibut permits
would not allow the vessel operator to violate those provisions of law.
The rationale for the proposed angler endorsement is that this
proposed action is designed to limit the number of charter vessels
participating in the charter halibut fishery; not to prevent all
expansion of effort by charter vessel operators. This provision allows
permit holders to increase their effort somewhat by increasing the
number of anglers that permit holders take on some charter vessel
fishing trips, assuming that vessel operators did not take their
historical maximum number of anglers out on every trip in the
qualifying period. This expansion would be constrained by factors such
as the maximum number of anglers recorded in an ADF&G logbook during
2004 or 2005, the size of the charter vessel using the permit, the
market for charter trips, and any safety or other regulations that
limit the number of anglers that may be on board a vessel.
The rationale for the minimum angler endorsement number of four,
regardless of a lower number reported for an applicant's logbook
fishing trip, is that this provision would not increase the number of
permits in the fishery, and an angler endorsement of less than four may
not allow economically viable fishing trips.
The applicant-selected year, as it is described above, would not
apply to the determination of angler endorsements for the number and
type of permits. NMFS would endorse the permits with an angler
endorsement number equal to the highest number of anglers on any of the
applicant's logbook trips in 2004 or 2005, except as noted above for a
minimum angler endorsement. This would be consistent with the Council's
motion. Thus, the applicant's selected year--2004 or 2005--that NMFS
would use to determine the number and type of permits may not be the
same year that NMFS would use to determine the angler endorsement
number on those permits. For example, an applicant may select 2004 for
purposes of determining the number and type of permits, but the highest
number of anglers recorded on any trip during the qualification period
may have occurred in 2005. In this case, NMFS would award the applicant
the number and type of permits based on the applicant's 2004 trips and
would endorse the permits with an angler endorsement number based on a
2005 trip.
Standards for Initial Allocation
A person would be required to meet several basic standards to
initially receive a charter halibut permit. These standards include (a)
timely application for a permit, (b) documentation of participation in
the charter vessel fishery during the qualifying and recent
participation periods by ADF&G logbooks, and (c) ownership of a
business that was licensed by the State of Alaska to conduct the guided
sport fishing reported in the logbooks.
Timely application. The application process is discussed more fully
below; however, a basic standard for eligibility to receive an initial
charter halibut permit would be to apply for the permit during an
application period. An application period of no less than 60 days would
be announced in the Federal Register. Applications submitted by mail,
hand delivery, or facsimile would be accepted if postmarked or hand
delivered or faxed no later than the last day of the application
period. Electronic submissions other than facsimile would not be
acceptable.
Logbook documentation. The documentation to prove qualifying
participation in the charter vessel fishery would be limited to
saltwater charter vessel logbooks issued by the ADF&G. There are
several reasons for relying only on the ADF&G charter vessel logbook
database. First, ADF&G has regulated saltwater charter fishing in the
State of Alaska through registrations, licenses, and logbooks since
1998. These requirements apply to all charter fishing, including
vessels targeting halibut. Although ADF&G regulations use the term
``sport fishing services,'' the business activity that ADF&G regulates
is essentially the same as the guided sport charter vessel fishery for
halibut that is the subject of this proposed rule. Second,ADF&G
supplied aggregated charter vessel logbook data to the Council to
assist it in its analysis of past participation in the charter halibut
fishery in Areas 2C and 3A. Third, the Council relied on these data in
part to make its decision to recommend limiting entry into this fishery
and NMFS, in turn, has relied on
[[Page 18185]]
the Council's analysis of alternatives to approve publication of this
proposed rule.
The basic unit of participation for receiving a charter halibut
permit would be a logbook fishing trip. As defined in the proposed
rule, a ``logbook fishing trip'' would be a bottom fish logbook fishing
trip during the qualifying years, 2004 and 2005, and a halibut logbook
fishing trip in the recent participation year. A logbook fishing trip
would be an event that was reported to ADF&G in a logbook in accordance
with the time limit required for reporting such a trip that was in
effect at the time of the trip. The required time limit differed in
minor ways in 2004, 2005, 2007, and 2008, and depended on when the trip
occurred; however, the latest date for reporting a trip was January 15
of the year after it occurred. If a trip was not reported within those
time limits, NMFS would not consider it a logbook fishing trip for
purposes of this proposed rule, and it would not serve as the basis for
NMFS to issue a charter halibut permit. Hence, a permit applicant could
not add a trip to the official record years after the trip should have
been reported to the State.
The proposed rule, like the Council's preferred alternative, relies
on the same method of counting trips that was used in the Council's
analysis. In the analysis, each trip in a multi-trip day counts as one
logbook trip, and each day on a multi-day trip counts as one logbook
trip. For example, a business owner who had two trips in one day would
be considered to have had two logbook trips. Another business owner
that had a trip that lasted two days also would be considered to have
had two logbook trips. This accounting of trips deviates from the ADF&G
method of counting logbook trips when fishing continues over multiple
days. ADF&G required a business that took anglers on a multiday trip to
submit logbook information at the end of the trip, not at the end of
the day. Hence, a trip could represent different measures of effort
depending on the number of days a charter vessel fished with the same
group of anglers. The Council analysis standardized the measure of
effort of a trip by separating each day fished on a multi-day trip and
counted each day as a trip. The Council relied on its analysis in
adopting its preferred alternative. Therefore, the proposed rule is
based on the same method of counting trips that was used in the
analysis.
The same issue does not exist for half-day trips. ADF&G required
business owners to submit a logbook trip entry after a half-day trip.
Hence, ADF&G logbook data, the Council's analysis, and the proposed
rule count a half day trip as one trip.
This action proposes additional definitions for a ``bottomfish
logbook fishing trip'' and a ``halibut logbook fishing trip.'' To
document participation in 2004 and 2005, an applicant must prove
bottomfish logbook fishing trips, and to prove participation in the
recent participation year an applicant must prove halibut logbook
fishing trips. The Council anticipated the distinction between these
terms in its moratorium motion. The reason for this distinction is that
in 2004 and 2005, ADF&G did not require businesses to report the number
of halibut that were kept, or kept and released, for each logbook
fishing trip. In 2004 and 2005, ADF&G required businesses to report
bottomfish effort for each logbook fishing trip. The bottomfish effort
data was (1) the State statistical area where bottomfish fishing
occurred, (2) the boat hours that the vessel engaged in bottomfish
fishing and (3) the number of rods used from the vessel in bottomfish
fishing. ADF&G attached instructions to each logbook that stated that
bottomfish fishing effort included effort targeting halibut. Therefore,
for purposes of this action, NMFS would count any of these three types
of bottomfish information about a trip in the qualifying period as a
bottomfish logbook fishing trip for purposes of qualifying for one or
more permit(s). As with the reporting of the trip itself, the business
owner would have had to report these data within ADF&G time limits. An
applicant could not change or add data that would make a trip a
bottomfish logbook fishing trip or halibut logbook fishing trip after
the trip should have been reported to ADF&G.
In 2006, ADF&G changed its required logbook report to specify
halibut data for each logbook fishing trip. The required logbook data
included the number of halibut kept, the number released, and the boat
hours that the vessel engaged in bottomfish fishing. Because these data
will be more specific to halibut in the recent participation year, NMFS
intends to rely on the halibut logbook data as proof of an applicant's
participation during the recent participation year. If a business
owner, within ADF&G time limits, reported to ADF&G the number of
halibut kept or caught and released, NMFS would count that trip as a
halibut logbook fishing trip and the trip would count toward the
applicant's participation requirement in the recent participation year.
A halibut logbook fishing trip also could be a trip where the
business owner, within ADF&G time limits, reported ``boat hours that
the vessel engaged in bottomfish fishing.'' An applicant could use such
a report as one way to document a halibut logbook fishing trip. The
logbook data for ``boat hours'' that a business had to report in 2007
and 2008 was ``No. of Boat Hours Fished this Trip'' with bottomfish as
a targeted species. ADF&G instructions for the 2007 and 2008 logbooks
state that bottomfish include halibut. Documentation of boat hours
fishing for bottom fish would capture trips where charter vessel
anglers were targeting halibut but did not catch any. Therefore, this
action proposes to define a halibut logbook fishing trip as a logbook
fishing trip in which the applicant reported the number of halibut kept
or released or the boat hours that the vessel engaged in bottomfish
fishing.
Licensed business owner. Charter halibut permits would be issued to
the ADF&G licensed business owner. The Council's moratorium
recommendation and this action propose eligibility for a charter
halibut permit to be limited to the holder of an ADF&G business owner
license because information on participation in the charter vessel
fishery for halibut is organized by this license. Hence, a person would
not meet this standard and qualify for a charter halibut permit if he
or she held only a guide license or owned a charter vessel but did not
hold an ADF&G business owner license during the qualifying and recent
participation years.
Issuing charter halibut permits only to qualified holders of ADF&G
business owner licenses is appropriate for several reasons. First, the
owner of the charter vessel fishing business had to obtain a business
owner license from ADF&G. Second, the business owner was required to
register with ADF&G the vessel to be used as a charter vessel. Third,
the ADF&G business owner license number was required to be recorded on
each sheet of the logbook because this license authorized the guide to
provide fishing guide services to the charter vessel anglers. Finally,
the business owner was responsible for submitting the logbook sheets to
ADF&G within the required time limits. In summary, every charter vessel
fishing trip was authorized by, and made pursuant to, an ADF&G business
owner license. This license has been variously referred to as a sport
fishing operator license, a sport fish business owner license, an ADF&G
sport fish business license, or simply an ADF&G business license. This
action proposes the term ``ADF&G business owner license'' exclusively
to refer to this license issued by ADF&G.
[[Page 18186]]
Application and Issuance Process
As noted above, an application period of no less than 60 days would
be officially announced in the Federal Register. NMFS would use other
media in addition to the Federal Register to announce the application
period and encourage potential applicants to submit applications for
charter halibut permits. A finite application period of reasonable
length is necessary to resolve potential claims for permits by two or
more persons for the same logbook fishing trip history. NMFS would not
credit the same logbook fishing trip to more than one applicant, and
would not allow the participation history of one business owner to
support issuance of a permit(s) to more than one applicant.
Application forms would be available through ADF&G and NMFS offices
and on the NMFS, Alaska Region, web site at http://
www.alaskafisheries.noaa.gov/. Electronic submission of the application
would not be acceptable, however, because a signature on the
application would be required. The application form would include a
statement that, by signature, the applicant attests that legal
requirements were met and all statements on the application are correct
under penalty of perjury.
Official record. Before the start of the application period, NMFS
would create an official record of charter vessel participation in Area
2C and 3A during the qualifying and recent participation years. The
official record would be based on data from ADF&G because the State of
Alaska has regulated charter fishing in the past and has the data on
past participation in the charter halibut fishery. The official record
would link each logbook fishing trip to an ADF&G business owner license
and to the person--individual, corporation, partnership or other
entity--that obtained the license. Thus, the official record would
include information from ADF&G on the persons that obtained ADF&G
Business Owner Licenses in the qualifying period and the recent
participation period; the logbook fishing trips in those years that met
the State of Alaska's legal requirements; the business owner license
that authorized each logbook fishing trip; and the vessel that made
each logbook fishing trip.
NMFS would compare all timely applications to the official record.
If an applicant submits a claim that is not consistent with the
official record, NMFS would allow the applicant to submit documentation
or further evidence in support of the claim during a 30-day evidentiary
period. If NMFS accepts the applicant's documentation as sufficient to
change the official record, NMFS would change the official record and
issue charter halibut permit(s) accordingly. If NMFS does not agree
that the further evidence supports the applicant's claim, NMFS would
issue an initial administrative determination (IAD). The IAD would
describe why NMFS is initially denying some or all of an applicant's
claim and would provide instructions on how to appeal the IAD.
Appeals. An applicant may appeal the IAD to the Office of
Administrative Appeals (OAA) pursuant to 50 CFR 679.43. NMFS would
issue interim permits to applicants that filed timely applications and
whose appeal is accepted by OAA. All interim permits would be non-
transferable. NMFS would limit interim permits on appeal to applicants
who applied for charter halibut permits within the application period
specified in the Federal Register. This means that an applicant that is
denied a permit because its application was late would not receive an
interim permit. This limitation is necessary for NMFS to know the
universe of applications at the end of the application period. The
grounds for treating a late application as timely filed are extremely
narrow. Hence, NMFS would not issue an interim permit to an applicant
that filed a late application if that applicant has an extremely
limited chance of prevailing on appeal.
When an appeal is accepted by OAA, interim permits would be issued
as follows. If, according to the official record, the applicant should
receive no permits, the applicant on appeal would receive one interim
permit with a angler endorsement of four. If, according to the official
record, the applicant on appeal should receive some permits, the
applicant on appeal would receive the number of permits and the angler
endorsement number on those permits that are substantiated by the
official record as it exists when the applicant appeals, not the number
and types of permits that applicant claims on appeal.
All permits issued during an appeal would be interim, non-
transferable, permits. Until NMFS makes a final decision on the appeal,
the permit holder would not be able to transfer any permits.
Potentially, a recalculation of one variable for an applicant could
result in a redetermination of the number and type of permits. For
example, if, as a result of an appeal, an applicant selects 2004 as its
best year rather than 2005, NMFS would recalculate an applicant's
number of permits or type of permits. Making permits that are under
appeal non-transferable until the appeal is resolved would prevent an
applicant from transferring a permit for which it ultimately may not
qualify. This is necessary to prevent undermining the purpose of the
proposed limited access system.
Issuance to business owners. As noted above, charter halibut
permits would be issued to persons that were the ADF&G licensed
business owners that met the minimum qualifications. The term
``person'' includes an individual, corporation, firm, or association
(50 CFR 300.61). If a corporation held the ADF&G business owner license
that authorized the logbook fishing trips that met the participation
requirements for a charter halibut permit, NMFS would issue the permit
to the corporation. If a partnership held the ADF&G business owners
license, NMFS would issue the permit to the partnership. If an
individual held the ADF&G business owners license, NMFS would issue the
permit to that individual. Hence, on successful application, NMFS would
issue a charter halibut permit to the entity--individual, corporation,
partnership or other entity--that held the ADF&G business owner license
that authorized the logbook fishing trips that met the participation
requirements. NMFS would have no obligation to determine the owners of
a corporation or members of a partnership that successfully applied for
a permit. NMFS would follow the form of ownership--individual or
otherwise--that the business used to obtain legal authorization from
the State of Alaska for its past participation in the charter halibut
fishery.
Generally, the entity that applies for one or more charter halibut
permits would be the same entity that held the ADF&G business owners
license that authorized the trips that met the participation
requirements in the qualifying period and in the recent participation
period. The only exception to this requirement is if the entity that
held these licenses is an individual who has died, or a non-individual
entity, such as a corporation or partnership, that has dissolved.
If an individual who met the participation requirements for a
charter halibut permit has died, the personal representative of the
individual's estate may apply for the permit in place of the deceased
individual. The applicant who applies as a personal representative must
provide documentation of the individual's death and documentation that
the applicant has been appointed by a court as the personal
representative of the deceased individual's estate. If the decedent
would have received any permits, the personal representative can
instruct NMFS as to who, according to
[[Page 18187]]
the applicant's duties as personal representative, should receive those
permits.
If a non-individual entity, such as a corporation or partnership,
met the requirements for a permit but that entity has dissolved, the
successors-in-interest to the entity may apply for that permit or
permits. The applicant who is applying as a successor-in-interest to a
corporation or partnership or other dissolved entity must provide
documentation that the entity has dissolved and that the applicant is a
successor-in-interest to the dissolved entity. If more than one
applicant proves that he or she is a successor-in-interest to the
dissolved entity, NMFS would issue the permits for which the dissolved
entity qualifies in the names of all applicants that submit timely
applications and that prove they are successors-in-interest. For
example, a partnership has dissolved and two former partners submit
separate and timely applications. If each applicant proves that they
are a successor-in-interest to the partnership, NMFS would award the
permits in the names of the two successors-in-interest that applied.
Similarly, if a corporation qualifies for permits but has dissolved and
three former shareholders of the corporation submit timely
applications, each proving that they are a successor-in-interest to the
corporation; NMFS would award the permits in the names of the three
former shareholders. If only two of the three former shareholders
submit timely applications, however, NMFS would award the permits in
the names of the two former shareholders that submitted timely
applications.
NMFS would not determine percentage of ownership of a dissolved
partnership or corporation. If a dispute exists among former partners
or shareholders as to how they should share ownership of a permit or
permits, that dispute is properly resolved as a civil matter by a
court.
The proposed rule makes explicit a guiding principle NMFS would
apply in evaluating applications for charter halibut permits. The
logbook fishing trip activity of one person that is used for permit
qualification cannot lead to more than one person receiving a charter
halibut permit. The only possible exception is described above, when
NMFS might award a permit in the name of several persons who are
successors-in-interest to a dissolved entity. Even then, NMFS would not
issue multiple permits, but only issue permits in the names of several
persons the number of permits for which the dissolved entity qualified.
Subject to that exception, the proposed rule prohibits NMFS from
crediting the same logbook fishing trip to more than one applicant,
from crediting logbook fishing trips made pursuant to the same ADF&G
Business Owners License to more than one applicant, and from allowing
participation by one person in the charter halibut fishing business to
support issuance of permits to more than one applicant.
Unavoidable Circumstances
The Council and NMFS recognize that certain unavoidable
circumstances could prevent an applicant from participating in either
the qualifying period or recent participation period despite the
applicant's intention. In developing a limited exception to allow for
unavoidable circumstances, NMFS was guided in part by the unavoidable
circumstance provisions in the License Limitation Program (LLP) for
groundfish and crab fisheries at 50 CFR 679.4(k). This action proposes
similar criteria for an unavoidable circumstance as used in the LLP
regulations (50 CFR 679.4(k)(8) and (9)). Basically, an applicant must
demonstrate that:
It participated during either the qualifying period or the
recent participation period;
It had a specific intent to participate in the period,
either the qualifying period or the recent participation period, that
the applicant missed;
The circumstance that thwarted the intended participation
was (a) unavoidable, (b) unique to the applicant, (c) unforeseen and
unforeseeable;
The applicant took all reasonable steps to overcome the
problem; and
The unavoidable circumstance actually occurred.
Missed recent participation period. An applicant who meets the
participation requirements for the qualifying period (2004 and 2005)
may claim that it did not meet the participation requirement in the
recent participation period year due to an unavoidable circumstance.
Assuming the applicant is able to successfully demonstrate that it
meets the criteria for an unavoidable circumstance, NMFS proposes to
award the applicant the number and type of permits that the applicant
would have received if its participation during the recent
participation period had been the same as its participation during the
qualifying period. The Council did not address this issue. However,
NMFS determined that substituting the qualifying period participation
for actual participation during the recent participation period best
reflects what the Council was trying to achieve by recommending that an
unavoidable circumstance exception be included in this program.
Missed qualifying period participation. Similarly, an applicant who
met the recent participation requirement may claim that it did not meet
the qualifying period (2004 or 2005) participation requirement because
of an unavoidable circumstance. Assuming the applicant is able to
successfully demonstrate that it meets the criteria for an unavoidable
circumstance, NMFS could not use logbook data from the qualifying
period to determine the applicant's number of permits, whether the
permits would be transferable, or the area and the angler endorsements
on the permits, because the applicant would have either no logbook data
from the qualifying period or insufficient logbook trips to receive any
permits. NMFS proposes that the applicant who proves an unavoidable
circumstance in the qualifying period would receive one non-
transferable permit with an angler endorsement of four, unless the
applicant demonstrates that it likely would have met the participation
requirements for more permits, one or more transferable permits, or a
higher angler endorsement. In that case, the applicant would receive
the number and type of permits, and the angler endorsement on those
permits, that result from the level of participation that the applicant
demonstrates that it likely would have attained.
The proposed rule, in essence, adopts a default provision for an
applicant that successfully demonstrates that it meets the criteria for
unavoidable circumstances, namely a non-transferable permit with an
angler endorsement of four. This provision, at a minimum, would allow
an applicant to participate in the fishery. This provision also would
allow an applicant to receive more permits, or transferable permits, or
an angler endorsement greater than four, only if the applicant shows
that it likely would have participated at that higher level but for the
unavoidable circumstance.
For example, if an applicant states that it should receive one
transferable charter halibut permit with an angler endorsement of six,
then the applicant must show that the applicant likely would have
reported at least 15 logbook fishing trips with a vessel in 2004 or
2005 and would have taken six anglers on one of those trips. The
applicant would be required to show this by a preponderance of the
evidence. This means that the applicant must show that it is more
likely than not that it would have met that participation requirement,
were it not for the unavoidable
[[Page 18188]]
circumstance. In the example, if the applicant experienced an
unavoidable circumstance in 2004, the applicant could introduce
evidence of its participation in 2003. Or if the applicant already had
bookings in 2004, it could introduce evidence of those bookings. These
are just examples and are not intended to indicate that any of these
submissions would be sufficient to demonstrate unavoidable
circumstances.
Limitation on unavoidable circumstance provision. NMFS is proposing
that the unavoidable circumstance exception be limited to persons who
would be excluded from the fishery entirely unless their unavoidable
circumstance was recognized. The unavoidable circumstance exception is
not intended to upgrade the number or type of permits an applicant
could receive. For example, NMFS would not accept an unavoidable
circumstance claim to upgrade a non-transferable permit to a
transferable permit based on an anticipated 15 logbook trips in 2005
that did not occur. NMFS concluded that the proposed unavoidable
circumstance exception should be narrow, and that, if an applicant
could get any charter halibut permit based on the applicant's actual
participation, the applicant would be limited to that permit.
Military exemption. This action proposes a military exemption from
the participation requirement during the qualifying period. This
exception is designed to benefit persons assigned to active military
duty in the qualifying period. An applicant for the military exception
would have to meet the recent participation requirement, i.e., at least
five halibut logbook trips in the recent participation period.
To qualify for a military exemption, a person would have had to be
assigned to active military duty as a member of the National Guard or a
reserve component. This limitation stems from public testimony to the
Council about the need for a military exemption for persons called up
to serve during the qualifying period as a member of the National Guard
or a reserve component. This exemption would not apply to persons in
the regular armed forces. The rational for not including persons in the
regular armed forces is that a person's decision to enlist in the
regular armed services is a voluntary career choice and is not
unavoidable. Hence, such a person serving during the qualifying period
chose a military occupation in lieu of a charter vessel occupation.
NMFS recently considered a similar issue in the context of allowing a
temporary military transfer of IFQ Quota Share and, for similar
reasons, only allowed such a transfer by a member of the National Guard
or a member of a reserve component (73 FR 28733, May 19, 2008).
In addition, to receive a military exemption, an applicant would
have to demonstrate that the applicant intended to participate in the
charter halibut fishery and that the applicant's intent was thwarted by
the applicant's order to report for military service. The Council
motion stated that a military service applicant would have to show
intent to participate before the qualifying period. NMFS concludes,
however, that the Council did not intend to exclude a military
applicant who could show an intent to participate during the qualifying
period. Therefore, NMFS would treat an applicant who can show an intent
to participate during the qualifying period the same as it would treat
an applicant who could show an intent to participate before the
qualifying period, as requested by the Council, as long as an applicant
could demonstrate their intent to participate was thwarted by their
order to report for military service.
The military exemption is designed to benefit persons who would
otherwise be completely excluded from receiving any charter halibut
permits despite their intention to meet the participation requirement
during the qualifying period. If a military exemption applicant could
receive any permits based on the applicant's actual participation in
the qualifying period, the applicant would be limited to that number
and type of permits and could not use the military exemption. An
applicant may not claim a military exemption to excuse lack of
participation in the qualifying period and an unavoidable circumstance
to excuse a lack of participation in the recent participation period.
The proposed rule adopts the Council recommendation that an
applicant receiving a permit under the military service exemption
receive a charter halibut permit with an angler endorsement of six. The
Council was silent, however, as to whether the permit should be
transferable or non-transferable. This action proposes to treat a
military exemption applicant the same as other unavoidable circumstance
applicants. The military exemption applicant would receive one non-
transferable permit with an angler endorsement of six unless the
applicant could demonstrate that it likely would have met participation
requirements for a transferable permit or a higher angler endorsement.
Transfers
After charter halibut permits are initially distributed by NMFS, a
person holding a transferable permit could transfer the permit to
another individual or non-individual entity with certain limitations.
Transferability of permits would allow limited new entry into the
charter vessel sector while the limited access program generally would
prevent an uncontrolled expansion of the charter vessel fishing sector
and provide for some consolidation in the sector. However, limits would
be placed on consolidation to prevent any one person from holding an
excessive share of charter vessel privileges.
To enforce limitations on the transfer of charter halibut permits,
no transfer of a permit would be effective unless it is first approved
by NMFS. NMFS would provide a transfer application to the person
transferring and the person receiving the transferred permit.
Completion of the transfer application would be required. Generally,
NMFS would approve any transfer that is consistent with the following
standards.
Transferable permit. NMFS would approve the transfer of only
transferable charter halibut permits. Nontransferable permits could not
be transferred to any entity different from the one to which it is
initially issued. Hence, a nontransferable permit could not be
transferred from the name of the individual once the individual dies. A
nontransferable permit could not be transferred from a non-individual
permit holder (a corporation, partnership or other entity) if the non-
individual permit holder dissolves or changes. The proposed regulation
incorporates the definition of ``change'' in a corporation or
partnership from the IFQ program at 50 CFR 679.42(j)(4)(i). This
paragraph in the IFQ regulations defines ``a change'' for corporations,
partnerships, or other non-individual entity to mean ``the addition of
any new shareholder(s) or partner(s), except that a court appointed
trustee to act on behalf of a shareholder or partner who becomes
incapacitated is not a change in the corporation, partnership,
association, or other non-individual entity.''
Citizenship. The Council recommended that the charter vessel
fishery under limited access should be primarily owned and controlled
by United States citizens. The Council's authority under the Halibut
Act at section 773c(c), however, is limited to developing regulations
``...applicable to nationals or vessels of the United States....''
Hence, the development of regulations that include non-citizens of
[[Page 18189]]
the U.S. is not authorized by section 773c(c) of the Halibut Act. The
Secretary, however, has general responsibility and authority to adopt
regulations as may be necessary under section 773c(a) and (b) of the
Halibut Act. Therefore, the Secretary is exercising this authority in
proposing the citizenship requirements recommended by the Council.
Based on the Council's recommendation, the Secretary is proposing
two different eligibility standards. First, for initial allocation of
charter halibut permits, this action proposes no distinction between
U.S. citizens and nationals of other countries. Any person that meets
the standards for initial allocation described above would be issued a
charter halibut permit or permits according to those standards. No
citizenship standards would apply to the initial allocation of charter
halibut permits to avoid excluding persons who had legitimately
participated in the charter vessel fishery during the qualifying and
recent participation years. Second, for transfers of charter halibut
permits, this action proposes to allow transfers only to U.S. citizens.
That is, a transfer to an individual would be approved only if the
individual is a U.S. citizen, and a transfer to a corporate entity
would be approved only if it is a U.S. business with at least 75
percent U.S. citizen ownership of the business. This proposal adopts
the 75 percent U.S. ownership criterion for a U.S. business from the
American Fisheries Act (111 Stat. 2681, Oct. 21, 1998), which is a key
piece of federal legislation designed to Americanize the fleet fishing
off American waters. Hence, as non-U.S. citizens leave the fishery
their charter halibut permits either would cease to exist (if the
permits were nontransferable) or they would be replaced by U.S.
citizens or U.S. businesses.
Excessive share limit. Although the proposed limited access system
would allow for some consolidation in the charter vessel sector, a
concern about too much consolidation caused the Council to recommend
that a person should be prevented from holding more than five permits
by transfer. Hence, five permits would be the excessive share limit and
NMFS would not approve a transfer that would result in the person
receiving the transferred permit holding more than five permits.
Two important exceptions to this excessive share limit, however,
would allow a person to hold more than five permits. First, a person
that is the initial recipient of more than five permits would be able
to continue to hold all of the permits for which the person initially
qualified. No approval would be granted for additional permits to be
transferred to a person holding more than five permits under this
exception. Also, this exception would not apply if an individual permit
holder dies or a corporate permit holder dissolves or changes its
ownership by adding one or more new owner(s) or partner(s). In this
event, NMFS would consider a successor-in-interest or a changed
corporate structure to be a different entity from the one that was the
initial recipient of the permits and the exception to the excessive
share limit would not apply to the new entity.
Under the second exception, NMFS would approve a transfer that
resulted in the person receiving the transfer holding more than five
permits if the person were to meet the following three conditions:
The existing permit holder that holds more than five
permits under the first exception would be transferring all of the
transferable permits that were initially issued;
The existing permit holder would be transferring all
assets--such as vessels owned by the business, lodges, fishing
equipment, etc.--of its charter vessel fishing business along with the
permits; and
The person that would receive the permits in excess of the
excessive share limit does not hold any permits at the time of the
proposed transfer.
In making this recommendation, the Council reasoned that these
exceptions would not increase the number of charter vessel businesses
beyond those existing at the start of the limited access program.
Allowing the transfer of a group of permits in excess of the excessive
share limit along with an entire business would be simply substituting
one business for another one and would not add to the overall charter
fishing sector. These exceptions essentially ``grandfather'' businesses
that would receive more permits, at the initial allocation of permits,
than the excessive share limit would otherwise allow. Further, these
exceptions allow the transfer of this grandfather right to a new
business. A transfer of anything less than all the permits and assets,
however, would end the grandfather right.
The Council and NMFS recognize that a corporate entity at the
excessive share limit of five permits may be closely affiliated with
another corporate entity that is under the limit and could apply to
receive a transferred permit. To prevent a permit holder from exceeding
the limit by affiliation, this action proposes to apply the 10 percent
ownership criterion used for implementing the American Fisheries Act
and defined at 50 CFR 679.2. Under this definition, two entities are
considered the same entity if one entity owns or controls 10 percent or
more interest in the other entity.
Owed penalties. Finally, this action proposes to prevent the
transfer of a charter halibut permit to or from any person that owes
NMFS any fines, civil penalties, or other payments. In addition, a
transfer of a permit would not be approved if it would be inconsistent
with any sanctions resulting from federal fishing violations. NMFS
concluded that this was a reasonable way to enforce fishing sanctions
and payment of fines, penalties, and payments owed to NMFS by parties
to a proposed transfer.
Special Permits
In developing its charter vessel limited access policy, the Council
was faced with a goal of constraining development of the charter vessel
fishery for halibut on one hand while on the other hand recognizing the
potential importance of this fishery to the economic development of
some rural communities. The Council recommended providing a special
permit to allow development of a charter vessel fishery in certain
rural communities. In addition, the Council recognized charter vessels
operated by the U.S. Military's Morale, Welfare and Recreational (MWR)
programs for recreational use by service members, and recommended no
limited access limitations on these military charter vessels. Hence,
two types of special permits are proposed--one for community
development and one for military use.
Community charter halibut permit. The Council recommended and this
action proposes to allow for a special community charter halibut permit
that would be awarded, at no cost, to Community Quota Entities (CQEs)
representing communities that do not currently have a fully developed
charter halibut fleet. The CQE provision was developed by the Council
originally to help rural communities become more involved in the
commercial fisheries for halibut and sablefish (84 FR 23681, April 30,
2004). In that context, CQEs are already defined at 50 CFR 679.2. The
Council recommended that existing or future CQEs could serve a similar
purpose in developing the charter vessel sector in certain rural
communities.
This action proposes that a CQE representing a community or
communities in Area 2C could receive a maximum of four community
charter
[[Page 18190]]
halibut permits for each eligible community the CQE represents. A CQE
representing a community or communities in Area 3A could receive a
maximum of seven community charter halibut permits for each eligible
community it represents. The larger number of community permits that
would be allowed in Area 3A reflects the larger resource base in that
area. A community charter halibut permit would have an angler
endorsement of six and would be non-transferable.
This action proposes to limit the communities eligible for
community charter halibut permits based on the Council's rationale that
eligible communities should be those that have an emerging but not a
fully developed charter vessel fleet because they could most benefit
from the permits and from the economic benefits of new charter
businesses. The Council recommended that eligible communities are those
CQE communities (listed in Table 21 to part 679) in which 10 or fewer
``active'' charter vessel businesses terminated charter vessel trips in
the community in each of the qualifying years (2004 and 2005). The term
``active'' means at least five logbook fishing trips per year. The
five-trip criterion is based on the basic qualification proposed for a
charter halibut permit of five logbook trips in each of two years.
Communities with more than 10 active charter vessel businesses were
considered developed enough to not require the benefit of the community
permit program. Communities with no active charter vessel businesses
were not considered likely prospects for developing future charter
vessel businesses. In addition, the Council specifically named the
communities that would meet these criteria. Therefore, this action
proposes eligibility of the specific communities named by the Council.
To add or subtract a community from the proposed list would require
separate Council action and a regulatory amendment.
The list of communities proposed to be eligible for community
charter halibut permits under a CQE are a subset of those listed in
Table 21 to part 679. In Area 2C, the following 18 communities would be
eligible for a community charter halibut permit: Angoon, Coffman Cove,
Edna Bay, Hollis, Hoonah, Hydaburg, Kake, Kassan, Klawock, Metlakatla,
Meyers Chuck, Pelican, Point Baker, Port Alexander, Port Protection,
Tenakee, Thorne Bay and Whale Pass. In Area 3A, the following 14
communities would be eligible for a community charter halibut permit:
Akhiok, Chenega, Halibut Cove, Karluk, Larsen Bay, Nanwalek, Old
Harbor, Ouzinkie, Port Graham, Port Lions, Seldovia, Tatitlek, Tyonek,
and Yakutat.
In addition to the community charter halibut permits available to a
CQE under this proposed action, a CQE could acquire other charter
halibut permits through transfer as described above. Therefore, this
action proposes a unique excessive share limitation recommended by the
Council to apply specifically to CQEs as potential permit holders. The
limitation for a CQE representing Area 2C communities would be four
community charter halibut permits per eligible community. Additional
permits that the CQE may acquire by transfer would be limited to an
additional four per eligible community for Area 2C. Hence, the overall
limit of permits that such a CQE may hold would be eight per eligible
community for Area 2C. This overall area-wide limit would apply to all
community charter halibut permits issued to a CQE or to community
charter halibut permits in combination with charter halibut permits
acquired through transfer. For example, a CQE representing two eligible
communities in Area 2C could request and receive four community charter
halibut permits for one community and four community charter halibut
permits for the other community. The CQE could receive an additional
four charter halibut permits acquired by transfer for each community.
The total number of permits--eight community charter halibut permits
plus eight acquired charter halibut permits by transfer--would be the
limit for the CQE to hold in Area 2C. However, if the CQE subsequently
represents another community in Area 2C, the limit would change based
on the number of communities that the CQE represents in that area.
A similar excessive share limitation would apply also to a CQE
representing communities in Area 3A. The overall limit on the number of
permits that a CQE representing eligible communities in Area 3A may
hold would be 14 per eligible community the CQE represents in that
area. Hence, the overall limit for any one CQE in any area would be two
times the number of community charter halibut permits it may hold per
eligible community.
The proposed limit on the number of community charter halibut
permits that can be held by a CQE is intended to assist the development
of an emerging charter halibut fishery in eligible communities without
undermining the purpose of the limited access system proposed by this
action. Also, the Council recommended that a charter vessel fishing
trip for halibut that is authorized by a community charter halibut
permit would be required to either begin or end within the community
designated on the community charter halibut permit. The purpose of this
requirement is to assure that the charter vessel anglers on such a
fishing trip have an opportunity to use the goods and services of the
community. This requirement would apply only to community charter
halibut permits and not to any additional charter halibut permits that
a CQE may acquire by transfer.
Military charter halibut permit. The proposed action would grant
permits for charter vessels operated by any U.S. Military Morale,
Welfare, and Recreation (MWR) program in Alaska. The only MWR program
in Alaska that currently offers recreational charter halibut fishing to
service members is the Seward Resort based at Fort Richardson in
Anchorage, Alaska. To operate a charter vessel, the MWR program must
obtain a special military charter halibut permit by application to
NMFS. Each military charter halibut permit would be non-transferable
and valid only in the regulatory area designated on the permit.
Prohibitions
This action proposes eight prohibitions. Six prohibitions mirror
the requirements of the rule and need not be discussed separately.
These six are prohibitions against:
Fishing for halibut in violation of this program;
Failing to comply with the requirements of this program;
Failing to submit or submitting inaccurate information
that is required to be submitted;
A charter vessel operating with charter vessel anglers on
board the vessel that are catching and retaining halibut in Area 2C or
Area 3A without a charter halibut permit designated for that area;
Having a number of anglers on board a charter vessel that
exceeds the total angler endorsement number on the permit or permits
that are on board the vessel; and
Having a number of anglers on board a charter vessel that
exceeds the total angler endorsement number on the community permit or
permits that are on board the vessel.
Two additional prohibitions are proposed. First, a charter vessel
operator would be prohibited from operating a charter vessel in Area 2C
and Area 3A during a single charter vessel trip. The Council
recommended this limitation on the use of permits. The analysis
[[Page 18191]]
indicated that few vessels operate in both areas. The prohibition
therefore would not significantly undermine existing business
operations in the charter fishery. This prohibition would aid in
collection of harvest and logbook data and simplify compliance
monitoring. Further, because each permit would have its own angler
endorsement number, this prohibition would facilitate enforcement of
the maximum angler endorsement designation on the permit.
Second, a charter vessel operator would be prohibited from
operating a charter vessel where anglers are catching and retaining
halibut, without having on board the vessel a State of Alaska Saltwater
Charter Vessel Logbook issued to the person named on the charter
halibut permit or permits on board the vessel. The Council recommended
this prohibition. This prohibition would not conflict with any State of
Alaska logbook requirement and it would likely promote involvement by
the permit holder with the operation of the charter halibut fishing
operation and with the collection of accurate logbook data.
The proposed rule does not have a prohibition against leasing
although the Council recommended a prohibition against leasing. The
proposed rule does not contain a comprehensive prohibition on leasing
because such a prohibition would not lead to a permit holder being on
board the vessel or having any direct connection with the charter
operation. Under the proposed rule, a permit holder would not have to
own a vessel or operate a vessel. A permit holder could legitimately
allow a vessel operator to use the permit holder's permit as authority
for the vessel operator to take anglers out charter halibut fishing,
even though the permit holder does not own or operate the vessel and
has nothing directly to do with the charter vessel fishing operation.
The vessel operator may pay the permit holder for the right to use the
permit or the permit holder may pay the vessel operator to take out
anglers organized by the permit holder. The charter industry has a
variety of business models and the way some of these business models
function is substantially similar to a lease between the permit holder
and the vessel operator.
Further, it would be difficult to enforce a prohibition on leasing.
NMFS would have to collect additional information attendant to a
transfer. Simply prohibiting a transfer called ``a lease'' would result
in the prohibition being enforced only against legally unsophisticated
persons who did not draft their document to avoid such a term. For NMFS
to examine the substance of any transaction would be difficult, time-
consuming and undermine the principle that the permits are relatively
freely transferable. In light of this difficulty, the Council
recommended three specific measures to discourage leasing:
Prohibit the charter halibut permit from being used on
board a vessel unless that vessel is identified in an ADF&G Saltwater
Charter Logbook;
Require that a charter vessel operator have on board the
vessel an ADF&G Saltwater Charter Logbook issued in the name of the
charter halibut permit holder; and
Require the authorizing charter halibut permit number to
be recorded in the ADF&G Saltwater Charter Logbook for each trip.
This action proposes all of these Council recommendations as part
of the requirement to have the Saltwater Charter Logbook on board. The
requirement to identify the vessel in the logbook is intended to be
consistent with an existing State of Alaska requirement that a charter
vessel operator have on board the vessel an ADF&G Saltwater Charter
Logbook. This logbook must be specific to the vessel on which it is
used.
Technical Regulatory Change
This action proposes a technical change relevant to the definition
of the term ``charter vessel'' at 50 CFR 300.61. The definition for
this term was revised by a final rule published September 24, 2008 (73
FR 54932) for purposes of a prohibition against using a charter vessel
for subsistence fishing for halibut. This action proposes to integrate
the definition into the prohibition language to which it directly
applies at 50 CFR 300.66(i) to clarify that the definition does not
apply universally to all other regulations. The universal definition of
charter vessel would continue to be that used by the IPHC and appearing
in the annual management measures required by 50 CFR 300.62. The most
recent annual management measures were published March 7, 2008 (73 FR
12280).
Classification
The NMFS Assistant Administrator has determined that this proposed
rule is necessary for the conservation and management of the halibut
fishery and that it is consistent with the Halibut Act and other
applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866. This proposed rule also complies
with the Secretary's authority under the Halibut Act to implement
management measures for the halibut fishery.
An initial regulatory flexibility analysis (IRFA) was prepared as
required by section 603 of the Regulatory Flexibility Act. The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered, and the legal basis for this action may be found at the
beginning of this preamble. A summary of the IRFA follows. Copies of
the IRFA are available from the Council or NMFS (see ADDRESSES).
The number of businesses that submitted ADF&G logbooks for
bottomfish activity in IPHC Area 2C between 1999 and 2005, and that may
be directly regulated by this action, ranged from 412 in 2000 to 352 in
2002. The number of businesses over the same time in IPHC Area 3A
period ranged from 455 in 2000 to 402 in 2003. The proposed limited
access program (Alternative 2) would issue permits based on whether a
business achieved a specified level of participation during 2004 or
2005, and in the year prior to implementation of the program. The
Council's preferred alternative would issue an estimated maximum of 689
permits to 380 businesses in Area 2C and 611 permits to 471 businesses
in Area 3A. These represent maximum estimates because a business also
would have to meet the qualifying criteria in the recent participation
period year, which is likely 2007 or 2008. Thus, the exact number of
businesses that may qualify for a permit cannot be determined until the
implementation of the program.
The SBA specifies that for marinas and charter/party boats, a small
business is one with annual receipts less than $6.0 million. The
largest of these charter operations, which are lodges, may be
considered large entities under SBA standards, but that cannot be
confirmed because NMFS does not collect economic data on lodges. All of
the other 800-plus charter operations would likely be considered small
entities, based on SBA criteria, because they would be expected to have
gross revenues of less than $6.0 million on an annual basis.
Regulations that directly regulate communities are included in the
permit allotment part of this action. That part seeks to help small,
remote communities in Areas 2C and 3A to develop charter businesses by
mitigating the economic barrier associated with purchasing a charter
halibut permit and
[[Page 18192]]
creating a number of non-transferable permits that can only be held by
the non-profit entity representing the eligible community. Under the
preferred alternative, 18 Area 2C communities could be eligible to each
receive up to 4 halibut charter permits at no cost; 14 Area 3A
communities could be eligible to each receive up to 7 halibut charter
permits at no cost. Note that their eligibility is also conditioned on
the fact that they must form an approved non-profit community quota
entity through NMFS; thus, the permits available for eligible
communities at no cost are maximum estimates. All of these communities
would be considered small entities under the SBA definitions.
This action would impose new recordkeeping requirements. Permit
applications would be required to be submitted before the start of the
program. The application would require information about the business
applying for the permit including the ownership structure of the
business and information on the charter activities of the business.
After submitting the initial permit application, additional
applications would not be required. NMFS would require additional
reports only when the structure of the business owning the permit
changes or the permit is transferred. NMFS also may require some
additional reports, depending on how well the current ADF&G logbooks
meet their management and enforcement needs and the level of access
NMFS has to those data. In addition, communities eligible to receive
permits at no cost would be required to submit information to NMFS: (1)
on application for a charter halibut permit, and (2) on the use of the
permit on an annual basis. In and of itself, the proposed recordkeeping
and reporting requirements would not likely represent a ``significant''
economic burden on the small entities operating in this fishery.
NMFS has not identified other Federal rules that may duplicate,
overlap, or conflict with the proposed rule.
An IRFA is required to describe significant alternatives to the
proposed rule that accomplish the stated objectives of the Magnuson-
Stevens Act and other applicable statutes and that would minimize any
significant economic impact of the proposed rule on small entities.
The status quo alternative specifies the GHL as a target amount of
halibut that the charter fleet can harvest, but the number of charter
vessels that can enter the fishery is not limited. NMFS is authorized
to implement management measures to keep the charter fleet to
approximately the GHL. Absent decreases in demand for charter fishing
created by restrictions on harvest, increases in the charter fleet
could undermine these restrictions and prevent long-term stability of
the charter sector and continue the need for further restrictions on
harvest.
The Council considered options to the preferred alternative that
presented a range for various aspects of the program. In particular,
ten options for minimum qualification requirements for receipt of a
permit under the program were considered in each area. These options
varied depending on the number of trips needed to qualify for a permit,
and whether the trips for boats in a multi-boat operation had to be
considered individually, or whether the business's total trips could be
averaged over vessels. The Council chose the option that distributed
the second largest number of permits possible among the range of
options. One option, a one trip threshold for permit issuance would
have distributed more permits; seven options would have distributed
fewer permits in each area. The analysis noted that it was unlikely
that a one-trip minimum qualification requirement would reduce the
number of permits to 2005 participation levels. Additional numbers of
permits would make it harder to meet the objectives of this action to
stabilize this fleet and its fishing capacity. Hence, the Council chose
the option that best met its objectives with the least impact to
affected entities.
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. Public
reporting burden estimates per response for these requirements are: Two
hours for charter halibut permit application; two hours for community
charter halibut permit application; two hours for military charter
halibut permit application; two hours for transfer of a charter halibut
permit; and four hours for appeal of permit denial. These estimates
include the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection-of-information.
Public comment is sought regarding: whether this proposed
collection-of-information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS at
the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov, or fax
to 202-395-7285.
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.
This proposed rule is consistent with Executive Order 12962 as
amended September 26, 2008, which required Federal agencies to ensure
that recreational fishing is managed as a sustainable activity and is
consistent with existing law.
List of Subjects in 50 CFR Part 300
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: April 15, 2009.
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, subpart E as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
1. The authority citation for part 300, subpart E continues to read
as follows:
Authority: 16 U.S.C. 773-773k.
2. In Sec. 300.61, as proposed to be amended on December 22, 2008,
at 73 FR 78282 is further amended by:
A. Removing the definition for ``Charter vessel''.
B. Revising definitions for ``Charter vessel angler'', ``Charter
vessel fishing trip'', ``Charter vessel guide'', ``Charter vessel
operator'', ``Crew member'', and ``Sport fishing guide services''.
C. Adding definitions for ``Charter halibut permit'', ``Community
charter halibut permit'', and ``Military charter halibut permit'' in
alphabetical order.
The revisions and additions read as follows:
Sec. 300.61 Definitions.
* * * * *
Charter halibut permit means a permit issued by the National Marine
Fisheries Service pursuant to Sec. 300.67.
[[Page 18193]]
Charter vessel angler, for purposes of Sec. Sec. 300.66, and
300.67, means a person, paying or non-paying, using the services of a
charter vessel guide.
Charter vessel fishing trip, for purposes of Sec. Sec. 300.65(d),
300.66, and 300.67, 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. Sec. 300.65(d), 300.66
and 300.67, means a person who holds 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. Sec. 300.65(d), and
300.67, means the person in control of the vessel during a charter
vessel fishing trip.
* * * * *
Community charter halibut permit means a permit issued by NMFS to a
Community Quota Entity pursuant to Sec. 300.67.
Crew member, for purposes of Sec. Sec. 300.65(d), and 300.67,
means an assistant, deckhand, or similar person who works directly
under the supervision of, and on the same vessel as, a charter vessel
guide or charter vessel operator.
* * * * *
Military charter halibut permit means a permit issued by NMFS to a
United States Military Morale, Welfare and Recreation Program pursuant
to Sec. 300.67.
* * * * *
Sport fishing guide services, for purposes of Sec. Sec. 300.65(d)
and 300.67, 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.
* * * * *
3. In Sec. 300.66, as proposed to be amended on December 22, 2008,
at 73 FR 78283 is further amended by:
A. Revising paragraphs (b), (i), (o), and (p).
B. Adding paragraphs (r), (s), (t), (u), (v), and (w).
The revisions and additions read as follows:
Sec. 300.66 Prohibitions.
* * * * *
(b) Fish for halibut except in accordance with the catch sharing
plans and domestic management measures implemented under Sec. Sec.
300.63, 300.65, and 300.67.
* * * * *
(i) Fish for subsistence halibut from a charter vessel or retain
subsistence halibut onboard a charter vessel if anyone other than the
owner of record, as indicated on the State of Alaska vessel
registration, or the owner's immediate family is aboard the charter
vessel and unless each person engaging in subsistence fishing onboard
the charter vessel holds a subsistence halibut registration certificate
in the person's name pursuant to Sec. 300.65(i) and complies with the
gear and harvest restrictions found at Sec. 300.65(h). For purposes of
this paragraph (i), the term ``charter vessel'' means a vessel that is
registered, or that should be registered, as a sport fishing guide
vessel with the Alaska Department of Fish and Game.
* * * * *
(o) Fail to comply with the requirements of Sec. Sec. 300.65 and
300.67.
(p) Fail to submit or submit inaccurate information on any report,
license, catch card, application or statement required or submitted
under Sec. Sec. 300.65 and 300.67.
* * * * *
(r) Operate a vessel with one or more charter vessel anglers on
board that are catching and retaining halibut without a valid charter
halibut permit for the regulatory area in which the vessel is
operating.
(s) Operate a vessel with more charter vessel anglers on board
catching and retaining halibut than the total angler endorsement number
specified on the charter halibut permit or permits on board the vessel.
(t) Operate a vessel with more charter vessel anglers on board
catching and retaining halibut than the angler endorsement number
specified on the community charter halibut permit or permits on board
the vessel.
(u) Operate a vessel in Area 2C and Area 3A during one charter
vessel fishing trip.
(v) Operate a vessel in Area 2C or Area 3A with one or more charter
vessel anglers on board that are catching and retaining halibut without
having on board the vessel a State of Alaska Department of Fish and
Game Saltwater Charter Logbook that specifies the following:
(1) The person named on the charter halibut permit or permits being
used on board the vessel;
(2) The charter halibut permit or permits number(s) being used on
board the vessel; and
(3) The name and state issued boat registration (AK number) or U.S.
Coast Guard documentation number of the vessel.
(w) Operate a vessel with one or more charter vessel anglers on
board that are catching and retaining halibut without the full
compliance of the crew member(s) on the vessel with requirements of
Sec. Sec. 300.65 and 300.67.
4. Add Sec. 300.67 to subpart E to read as follows:
Sec. 300.67 Charter Halibut Limited Access Program.
This section establishes limitations on using a vessel on which
charter vessel anglers catch and retain Pacific halibut in
International Pacific Halibut Commission (IPHC) regulatory areas 2C and
3A.
(a) General permit requirements. (1) In addition to other
applicable permit and licensing requirements, any charter vessel
operator with one or more charter vessel anglers catching and retaining
Pacific halibut on board a vessel must have on board the vessel a valid
charter halibut permit or permits endorsed for the regulatory area in
which the vessel is operating and endorsed for the number of charter
vessel anglers who are catching and retaining Pacific halibut.
(2) Area endorsement. A charter halibut permit is valid only in the
International Pacific Halibut Commission regulatory area for which it
is endorsed. Regulatory areas are defined in the annual management
measures published pursuant to Sec. 300.62.
(3) Charter vessel angler endorsement. A charter halibut permit is
valid only for the maximum number of charter vessel anglers for which
the charter halibut permit is endorsed.
(b) Qualifications for a charter halibut permit. A charter halibut
permit for IPHC regulatory area 2C must be based on meeting
participation requirements in area 2C. A charter halibut permit for
IPHC regulatory area 3A must be based on meeting participation
requirements in area 3A. Qualifications for a charter halibut permit in
each area must be determined separately and must not be combined.
(1) Non-transferable permit. NMFS will issue a non-transferable
charter halibut permit to a person that:
(i) Is the person to which the State of Alaska Department of Fish
and Game (ADF&G) issued the ADF&G Business Owner Licenses that
authorized logbook fishing trips during the time periods in paragraphs
(b)(1)(ii) and (iii) of this section;
(ii) Reported five (5) bottomfish logbook fishing trips or more
during one year of the qualifying period; and
[[Page 18194]]
(iii) Reported five (5) halibut logbook fishing trips or more
during the recent participation period.
(2) Transferable permit. NMFS will issue a transferable charter
halibut permit to a person that:
(i) Is the person to which the ADF&G issued one or more ADF&G
Business Owner Licenses that authorized logbook fishing trips during
the time periods in paragraphs (b)(2)(ii) and (iii) of this section;
(ii) Reported fifteen (15) bottomfish logbook fishing trips or more
from the same vessel during one year of the qualifying period; and
(iii) Reported fifteen (15) halibut logbook fishing trips or more
from the same vessel during the recent participation period.
(3) NMFS will issue a charter halibut permit to a person who meets
the following requirements:
(i) The person applies for a charter halibut permit within the
application period specified in the Federal Register and completes the
application process pursuant to paragraph (h) of this section.
(ii) The person is the individual or non-individual entity to which
ADF&G issued Business Owner Licenses that authorized logbook fishing
trips that meet the participation requirements described in paragraphs
(b)(1) and (b)(2) of this section for one or more charter halibut
permits, unless the person is applying as a successor-in-interest.
(iii) If the person is applying as a successor-in-interest to the
person to which ADF&G issued the Business Owner Licenses that
authorized logbook fishing trips that meet the participation
requirements described in paragraphs (b)(1) and (b)(2) of this section
for one or more charter halibut permits, NMFS will require the
following written documentation:
(A) If the applicant is applying on behalf of a deceased
individual, the applicant must document that the individual is
deceased, that the applicant is the personal representative of the
deceased's estate appointed by a court and that the applicant specifies
who, pursuant to the applicant's personal representative duties, should
receive the permit(s) for which application is made; or
(B) If the applicant is applying as a successor-in-interest to an
entity that is not an individual, the applicant must document that the
entity has been dissolved and that the applicant is the successor-in-
interest to the dissolved entity.
(4) If more than one applicant claims that they are the successor-
in-interest to a dissolved entity, NMFS will award the permit or
permits for which the dissolved entity qualified in the name(s) of the
applicants that submitted a timely application and proved that they are
a successor-in-interest to the dissolved entity.
(5) Notwithstanding any other provision in this subpart, and except
as provided in paragraph (b)(4) of this section,
(i) One logbook fishing trip shall not be credited to more than one
applicant;
(ii) One logbook fishing trip made pursuant to the one ADF&G
Business Owners License shall not be credited to more than one
applicant; and
(iii) Participation by one charter halibut fishing business shall
not be allowed to support issuance of permits to more than one
applicant.
(c) Number of charter halibut permits. An applicant that meets the
participation requirements in paragraph (b) of this section will be
issued the number of charter halibut permits equal to the lesser of the
number of permits determined by paragraphs (c)(1) or (c)(2) of this
section as follows:
(1) The total number of bottomfish logbook fishing trips made
pursuant to the applicant's ADF&G Business License in the applicant-
selected year divided by five, and rounded down to a whole number; or
(2) The number of vessels that made the bottomfish logbook fishing
trips in the applicant-selected year.
(d) Designation of transferability. Each permit issued under
paragraph (c) of this section will be designated as transferable or
non-transferable. The number of transferable charter halibut permits
issued to an applicant will be equal to the number of vessels that made
15 bottomfish logbook fishing trips or more in the applicant-selected
year. If the applicant qualifies for additional charter halibut
permits, they will be issued as non-transferable permits.
(e) Angler endorsement. A charter halibut permit will be endorsed
for the highest number of charter vessel anglers reported on any
logbook fishing trip in the qualifying period except that:
(1) The angler endorsement number will be four (4) if the highest
number of charter vessel anglers reported on any logbook fishing trip
in the qualifying period is less than four (4) or no charter vessel
anglers were reported on any of the applicant's logbook fishing trips
in the applicant-selected year; and
(2) The angler endorsement number will be six (6) on a charter
halibut permit issued pursuant to military service under paragraph
(g)(3) of this section.
(f) For purposes of this section, the following terms are defined
as follows:
(1) Applicant-selected year means the year in the qualifying
period, 2004 or 2005, selected by the applicant for NMFS to use in
determining the applicant's number of transferable and nontransferable
permits.
(2) Bottomfish logbook fishing trip means a logbook fishing trip in
the qualifying period that was reported to the State of Alaska in a
Saltwater Charter Logbook with one of the following pieces of
information: the statistical area(s) where bottomfish fishing occurred,
the boat hours that the vessel engaged in bottomfish fishing, or the
number of rods used from the vessel in bottomfish fishing.
(3) Halibut logbook fishing trip means a logbook fishing trip in
the recent participation period that was reported to the State of
Alaska in a Saltwater Charter Logbook within the time limit for
reporting the trip in effect at the time of the trip with one of the
following pieces of information: the number of halibut that was kept,
the number of halibut that was released, or the boat hours that the
vessel engaged in bottomfish fishing.
(4) Logbook fishing trip means a bottomfish logbook fishing trip or
a halibut logbook fishing trip that was reported as a trip to the State
of Alaska in a Saltwater Charter Logbook within the time limits for
reporting the trip in effect at the time of the trip, except that for
multi-day trips, the number of trips will be equal to the number of
days of the multi-day trip, e.g., a two day trip will be counted as two
trips.
(5) Official charter halibut record means the information prepared
by NMFS on participation in charter halibut fishing in Area 2C and Area
3A that NMFS will use to implement the Charter Halibut Limited Access
Program and evaluate applications for charter halibut permits.
(6) Qualifying period means the sport fishing season established by
the International Pacific Halibut Commission (February 1 through
December 31) in 2004 and 2005.
(7) Recent participation period means the sport fishing season
established by the International Pacific Halibut Commission (February 1
through December 31) in [insert the recent participation year].
(g) Unavoidable circumstance--(1) Recent participation period. An
applicant for a charter halibut permit that meets the participation
requirement for the qualifying period, but does not meet the
participation requirement for the recent participation period, may
receive one or more charter halibut
[[Page 18195]]
permits if the applicant proves paragraphs (g)(1)(i) through (iv) of
this section as follows:
(i) The applicant had a specific intent to operate a charter
halibut fishing business in the recent participation period;
(ii) The applicant's specific intent was thwarted by a circumstance
that was:
(A) Unavoidable;
(B) Unique to the owner of the charter halibut fishing business;
and
(C) Unforeseen and reasonably unforeseeable by the owner of the
charter halibut fishing business;
(iii) The circumstance that prevented the applicant from operating
a charter halibut fishing business actually occurred; and
(iv) The applicant took all reasonable steps to overcome the
circumstance that prevented the applicant from operating a charter
halibut fishing business in the recent participation period.
(v) If the applicant proves the foregoing (see paragraphs (g)(1)(i)
through (iv) of this section), the applicant will receive the number of
transferable and non-transferable permits and the angler endorsements
on these permits that result from the application of criteria in
paragraphs (b), (c), (d), (e), and (f) of this section.
(2) Qualifying period. An applicant for a charter halibut permit
that meets the participation requirement for the recent participation
period but does not meet the participation requirement for the
qualifying period, may receive one or more permits if the applicant
proves paragraphs (g)(2)(i) through (iv) of this section as follows:
(i) The applicant had a specific intent to operate a charter
halibut fishing business in at least one year of the qualifying period;
(ii) The applicant's specific intent was thwarted by a circumstance
that was:
(A) Unavoidable;
(B) Unique to the owner of the charter halibut fishing business;
and
(C) Unforeseen and reasonably unforeseeable by the owner of the
charter halibut fishing business;
(iii) The circumstance that prevented the applicant from operating
a charter halibut fishing business actually occurred; and
(iv) The applicant took all reasonable steps to overcome the
circumstance that prevented the applicant from operating a charter
halibut fishing business in at least one year of the qualifying period.
(v) If the applicant proves the foregoing (see paragraphs (g)(2)(i)
through (iv) of this section), the applicant will receive either:
(A) One non-transferable permit with an angler endorsement of four
(4); or
(B) The number of transferable and non-transferable permits, and
the angler endorsement on those permits, that result from the logbook
fishing trips that the applicant proves likely would have taken by the
applicant but for the circumstance that thwarted the applicant's
specific intent to operate a charter halibut fishing business in one
year of the qualifying period and the applicant did not participate
during the other year of the qualifying period.
(3) Military service. An applicant for a charter halibut permit
that meets the participation requirement in the recent participation
period, but does not meet the participation requirement for the
qualifying period, may receive one or more permits if the applicant
proves the following:
(i) The applicant was ordered to report for military service as a
member of a branch of the National Guard or military reserve during the
qualifying period; and
(ii) The applicant had a specific intent to operate a charter
halibut fishing business that was thwarted by the applicant's order to
report for military service.
(h) Application for a charter halibut permit. (1) An application
period of no less than 60 days will be specified by notice in the
Federal Register during which any person may apply for a charter
halibut permit. Any application that is submitted by mail and
postmarked, or submitted by hand delivery or facsimile, after the last
day of the application period will be denied. Electronic submission
other than by facsimile will be denied. Applications must be submitted
to the address given in the Federal Register notice of the application
period.
(2) Charter halibut permit. To be complete, a charter halibut
permit application must be signed and dated by the applicant, and the
applicant must attest that, to the best of the applicant's knowledge,
all statements in the application are true and the applicant complied
with all legal requirements for logbook fishing trips in the qualifying
period and recent participation period that were reported under the
applicant's ADF&G Business Owner Licenses. An application for a charter
halibut permit will be made available by NMFS. Completed applications
may be submitted by mail, hand delivery, or facsimile at any time
during the application period announced in the Federal Register notice
of the application period described at paragraph (h)(1) of this
section.
(3) Application procedure. NMFS will create the official charter
halibut record and will accept all application claims that are
consistent with the official charter halibut record. If an applicant's
claim is not consistent with the official charter halibut record, NMFS
will respond to the applicant by letter specifying a 30-day evidentiary
period during which the applicant may provide additional information or
argument to support the applicant's claim. Limits on the 30-day
evidentiary period are as follows:
(i) An applicant shall be limited to one 30-day evidentiary period;
and
(ii) Additional information received after the 30-day evidentiary
period has expired will not be considered for purposes of the initial
administrative determination.
(4) After NMFS evaluates the additional information submitted by
the applicant during the 30-day evidentiary period, it will take one of
the following two actions.
(i) If NMFS determines that the applicant has met its burden of
proving that the official charter halibut record is incorrect, NMFS
will amend the official charter halibut record and use the official
charter halibut record, as amended, to determine whether the applicant
is eligible to receive one or more charter halibut permits, the nature
of those permits and the angler and area endorsements on those permits;
or
(ii) If NMFS determines that the applicant has not met its burden
of proving that the official charter halibut record is incorrect, NMFS
will notify the applicant by an initial administration determination,
pursuant to paragraph (h)(5) of this section.
(5) Initial Administration Determination (IAD). NMFS will send an
IAD to the applicant following the expiration of the 30-day evidentiary
period if NMFS determines that the applicant has not met its burden of
proving that the official charter halibut record is incorrect or that
other reasons exist to initially deny the application. The IAD will
indicate the deficiencies in the application and the deficiencies with
the information submitted by the applicant in support of its claim.
(6) Appeal. An applicant that receives an IAD may appeal to the
Office of Administrative Appeals (OAA) pursuant to Sec. 679.43 of this
title.
(i) If the applicant does not apply for a charter halibut permit
within the application period specified in the Federal Register, the
applicant will not receive any interim permits pending final agency
action on the application.
(ii) If the applicant applies for a permit within the specified
application period and OAA accepts the applicant's appeal, the
applicant will receive the number and kind of interim permits
[[Page 18196]]
which are not in dispute, according to the information in the official
charter halibut record.
(iii) If the applicant applies for a permit within the specified
application period and OAA accepts the applicant's appeal, but
according to the information in the official charter halibut record,
the applicant would not be issued any permits, the applicant will
receive one interim permit with an angler endorsement of four (4).
(iv) All interim permits will be non-transferable and will expire
when NMFS takes final agency action on the application.
(i) Transfer of a charter halibut permit--(1) General. A transfer
of a charter halibut permit is valid only if it is approved by NMFS.
NMFS will approve a transfer of a charter halibut permit if the permit
to be transferred is a transferable permit issued under paragraph
(b)(2) of this section, if a complete transfer application is
submitted, and if the transfer application meets the standards for
approval in paragraph (i)(2) of this section.
(2) Standards for approval of transfers. NMFS will transfer a
transferable charter halibut permit to a person designated by the
charter halibut permit holder if, at the time of the transfer the
following standards are met:
(i) The person designated to receive the transferred permit is a
U.S. citizen or a U.S. business with a minimum of 75 percent U.S.
ownership;
(ii) The parties to the transfer do not owe NMFS any fines, civil
penalties or any other payments;
(iii) The transfer is not inconsistent with any sanctions resulting
from Federal fishing violations;
(iv) The transfer will not cause the designated recipient of the
permit to exceed the permit limit at paragraph (j) of this section,
unless an exception to that limit applies;
(v) A transfer application is completed and approved by NMFS; and
(vi) The transfer does not violate any other provision in this
part.
(3) For purposes of paragraph (i)(2) of this section, a U.S.
business with a minimum of 75 percent U.S. ownership means a
corporation, partnership, association, trust, joint venture, limited
liability company, limited liability partnership, or any other entity
where at least 75 percent of the interest in such entity, at each tier
of ownership of such entity and in the aggregate, is owned and
controlled by citizens of the United States.
(4) Application to transfer a charter halibut permit. To be
complete, a charter halibut permit transfer application must have
notarized and dated signatures of the applicants, and the applicants
must attest that, to the best of the applicants' knowledge, all
statements in the application are true. An application to transfer a
charter halibut permit will be made available by NMFS. Completed
transfer applications may be submitted by mail or hand delivery at any
time to the addresses listed on the application. Electronic or
facsimile deliveries will not be accepted.
(5) Denied transfer applications. If NMFS does not approve a
charter halibut permit transfer application, NMFS will inform the
applicant of the basis for its disapproval.
(6) Transfer due to court order, operation of law or as part of a
security agreement. NMFS will transfer a charter halibut permit based
on a court order, operation of law or a security agreement, if NMFS
determines that a transfer application is complete and the transfer
will not violate an eligibility criterion for transfers.
(j) Charter halibut permit limitations--(1) General. A person may
not own, hold, or control more than five (5) charter halibut permits
except as provided by paragraph (j)(4) of this section. NMFS will not
approve a transfer application that would result in the applicant that
would receive the transferred permit holding more than five (5) charter
halibut permits except as provided by paragraph (j)(6) of this section.
(2) Ten percent ownership criterion. In determining whether two or
more persons are the same person for purposes of paragraph (j)(1) of
this section, NMFS will apply the definition of an ``affiliation for
the purpose of defining AFA entities'' at Sec. 679.2 of this title.
(3) A permit will cease to be a valid permit if the permit holder
is:
(i) An individual and the individual dies; or
(ii) A non-individual (e.g., corporation or partnership) and
dissolves or changes as defined at paragraph (j)(5) of this section.
(iii) A transferable permit may be made valid by transfer to an
eligible recipient.
(4) Exception for initial recipients of permits. Notwithstanding
the limitation at paragraph (j)(1) of this section, NMFS may issue more
than five (5) charter halibut permits to an initial recipient that
meets the requirements described in paragraphs (b), (d), and (e) of
this section for more than five (5) charter halibut permits, subject to
the following limitations:
(i) This exception applies only to an initial recipient as the
recipient exists at the time that it is initially issued the permits;
(ii) If an initial recipient of transferable permit(s) who is an
individual dies, the individual's successor-in-interest may not hold
more than five (5) charter halibut permits;
(iii) If an initial recipient permit holder that is a non-
individual, such as a corporation or a partnership, dissolves or
changes, NMFS will consider the new entity a new permit holder and the
new permit holder may not hold more than five (5) charter halibut
permits.
(5) For purposes of this paragraph (j), a ``change'' means:
(i) For an individual, the individual has died, in which case NMFS
must be notified within 30 days of the individual's death; and
(ii) For a non-individual entity, the same as defined at Sec.
679.42(j)(4)(i) of this title in which case the permit holder must
notify NMFS within 15 days of the effective date of the change as
required at Sec. 679.42(j)(5) of this title.
(6) Exception for transfer of permits. Notwithstanding the
limitation at paragraph (j)(1) of this section, NMFS may approve a
permit transfer application that would result in the person that would
receive the transferred permit(s) holding more than five (5)
transferable charter halibut permits if the parties to the transfer
meet the following conditions:
(i) The designated person that would receive the transferred
permits does not hold any charter halibut permits;
(ii) All permits that would be transferred are transferable
permits;
(iii) The permits that would be transferred are all of the
transferable permits that were awarded to an initial recipient who
exceeded the permit limitation of five (5) permits; and
(iv) The person transferring its permits also is transferring its
entire charter vessel fishing business, including all the assets of
that business, to the designated person that would receive the
transferred permits.
(k) Community charter halibut permit--(1) General. A Community
Quota Entity (CQE), as defined in Sec. 679.2 of this title,
representing an eligible community listed in paragraph (k)(2) of this
section, may receive one or more community charter halibut permits. A
community charter halibut permit issued to a CQE will be designated for
area 2C or area 3A, will be non-transferable, and will have an angler
endorsement of six (6).
(2) Eligible communities. Each community charter halibut permit
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issued to a CQE under paragraph (k)(1) of this section will specify the
name of an eligible community on the permit. Only the following
communities are eligible to receive community charter halibut permits:
(i) For Area 2C: Angoon, Coffman Cove, Edna Bay, Hollis, Hoonah,
Hydaburg, Kake, Kassan, Klawock, Metlakatla, Meyers Chuck, Pelican,
Point Baker, Port Alexander, Port Protection, Tenakee, Thorne Bay,
Whale Pass.
(ii) For Area 3A: Akhiok, Chenega Bay, Halibut Cove, Karluk, Larsen
Bay, Nanwalek, Old Harbor, Ouzinkie, Port Graham, Port Lyons, Seldovia,
Tatitlek, Tyonek, Yakutat.
(3) Limitations. The maximum number of community charter halibut
permits that may be issued to a CQE for each eligible community the CQE
represents is as follows:
(i) A CQE representing an eligible community or communities in
regulatory area 2C may receive a maximum of four (4) community charter
halibut permits per eligible community designated for Area 2C.
(ii) A CQE representing an eligible community or communities in
regulatory area 3A may receive a maximum of seven (7) community charter
halibut permits per eligible community designated for Area 3A.
(4) NMFS will not approve a transfer that will cause a CQE
representing a community or communities to hold more than the following
total number of permits, per community, including community charter
halibut permits granted to the CQE under this paragraph (k) and any
charter halibut permits acquired by the CQE by transfer under paragraph
(i) of this section.
(i) The maximum number of charter halibut and community charter
halibut permits that may be held by a CQE per community represented by
the CQE in regulatory area 2C is eight (8).
(ii) The maximum number of charter halibut and community charter
halibut permits that may be held by a CQE per community represented by
the CQE in regulatory area 3A is fourteen (14).
(5) Limitation on use of permits. The following limitations apply
to community charter halibut permits issued to a CQE under paragraph
(k)(1) of this section.
(i) Every charter vessel fishing trip authorized by such a permit
and on which halibut are caught and retained must begin or end at a
location(s) specified on the application for a community charter
halibut permit and that is within the boundaries of the eligible
community designated on the permit. The geographic boundaries of the
eligible community will be those defined by the United States Census
Bureau.
(ii) Community charter halibut permits may be used only within the
regulatory area for which they are designated to catch and retain
halibut.
(6) Application procedure. To be complete, a community charter
halibut permit application must be signed and dated by the applicant,
and the applicant must attest that, to the best of the applicants'
knowledge, all statements in the application are true and complete. An
application for a community charter halibut permit will be made
available by NMFS and may be submitted by mail, hand delivery, or
facsimile at any time to the address(s) listed on the application.
Electronic deliveries other than facsimile will not be accepted.
(l) Military charter halibut permit. NMFS will issue a military
charter halibut permit without an angler endorsement to an applicant
provided that the applicant is a Morale, Welfare and Recreation Program
of the United States Armed Services.
(1) Limitations. A military charter halibut permit is non-
transferable and may be used only in the regulatory area (2C or 3A)
designated on the permit.
(2) Application procedure. An applicant may apply for a military
charter halibut permit at any time. To be complete, a military charter
halibut permit application must be signed and dated by the applicant,
and the applicant must attest that, to the best of the applicants'
knowledge, all statements in the application are true and complete. An
application for a military charter halibut permit will be made
available by NMFS and may be submitted by mail, hand delivery, or
facsimile at any time to the address(s) listed on the application.
Electronic deliveries other than facsimile will not be accepted.
[FR Doc. E9-9110 Filed 4-20-09; 8:45 am]
BILLING CODE 3510-22-S