[Federal Register Volume 76, Number 68 (Friday, April 8, 2011)]
[Rules and Regulations]
[Pages 19708-19709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8431]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 110325225-1224-02]
RIN 0648-BA96
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: Final rule; interpretation.
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SUMMARY: This interpretation clarifies regulations that apply to
vessels operating in the guided sport (charter) fishery for halibut in
International Pacific Halibut Commission Management Area 2C (Southeast
Alaska) and Area 3A (Central Gulf of Alaska). Under regulations
implementing the charter halibut limited access program, all vessel
operators in Area 2C and Area 3A with charter vessel anglers on board
catching and retaining halibut must have a valid charter halibut permit
that was issued by NMFS on board the vessel. This interpretation
clarifies that a valid charter halibut permit must be on board a vessel
when the charter vessel guide on board is being compensated to provide
assistance to persons catching and retaining halibut. A charter vessel
guide is not required to have a charter halibut permit on board a
vessel during a recreational halibut fishing trip on which he or she is
not being compensated to provide assistance to persons catching and
retaining halibut.
DATES: This rule is effective on April 8, 2011.
ADDRESSES: Electronic copies of this action and other related documents
are available from http://www.regulations.gov or from the NMFS Alaska
Region Web site at http://alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Rachel Baker, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The International Pacific Halibut Commission (IPHC) and NMFS manage
fishing for Pacific halibut (Hippoglossus stenolepis) through
regulations established under authority of the Northern Pacific Halibut
Act of 1982 (Halibut Act) (16 U.S.C. 773 et seq.). Sections 773c(a) and
(b) of the Halibut Act provide the Secretary of Commerce (Secretary)
with general responsibility to carry out the Convention between the
United States and Canada for the Preservation of the Halibut Fishery of
the North Pacific Ocean and Bering Sea and the Halibut Act. Section
773c(c) of the Halibut Act also authorizes the North Pacific Fishery
Management Council (Council) 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 in the development of its limited access
program for charter vessels in the guided sport fishery, codified at 50
CFR 300.67.
Charter Halibut Limited Access Program
In March 2007, the Council recommended a limited access program for
charter vessels in IPHC Regulatory Area 2C and Area 3A. The intent of
the program was to manage growth of fishing capacity in the charter
sector by limiting the number of charter vessels that may participate
in the guided sport fishery for halibut in Areas 2C and 3A. NMFS
published a final rule implementing the program on January 5, 2010 (75
FR 554). Under the program, NMFS initially issued a charter halibut
permit (CHP) to qualified applicants. A person who was not initially
issued a CHP by NMFS may obtain a transferable CHP from another person
by submitting a transfer application and meeting CHP transfer
requirements. A permit holder may use a CHP on board any vessel that
meets Federal and State requirements to operate as a charter vessel in
the guided sport fishery for halibut in Areas 2C and 3A.
Beginning February 1, 2011, any person operating a vessel on which
charter vessel anglers are catching and retaining halibut in Area 2C or
Area 3A is required to have on board the vessel a CHP designated for
that area. This requirement is codified in the regulations as a
prohibition. The regulation at Sec. 300.66(r) prohibits a person from
being an operator of 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 a valid CHP for the regulatory area in which the vessel
is operating.
Interpretation
This interpretation clarifies that a CHP is required to be on board
a vessel in Area 2C or Area 3A if both of the following conditions are
met: (1) One or more persons on board are catching and retaining
halibut, and (2) a charter vessel guide on board the vessel is
receiving compensation to assist a person to take, or attempt to take,
halibut.
Regulations at Sec. 300.61 include three definitions that are
relevant for determining whether a CHP is required to be on board a
vessel in Area 2C or Area 3A. These definitions are ``charter vessel
angler,'' ``charter vessel guide,'' and ``sport fishing guide
services.'' For purposes of regulations at Sec. Sec. 300.65(d),
300.66, and 300.67:
1. ``Charter vessel angler'' means a person, paying or non-paying,
using the services of the charter vessel guide.
2. ``Charter vessel guide'' 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.
3. ``Sport fishing guide services'' means assistance, for
compensation, to a person who is sport fishing, to take or attempt to
take fish by being on board a vessel with such person during any part
of a charter vessel fishing trip.
NMFS interprets ``services'' in the definition of ``charter vessel
angler'' to mean ``sport fishing guide services'' as defined at Sec.
300.61. Under this interpretation, a person who takes or attempts to
take halibut would only be
[[Page 19709]]
a charter vessel angler if that person is receiving sport fishing guide
services from a charter vessel guide. Section 300.61 defines ``sport
fishing guide services'' as assistance, for compensation, to a person
who is sport fishing, to take or attempt to take fish by being on board
a vessel with such person during any part of a charter vessel fishing
trip. Therefore, a person would be a charter vessel angler only if that
person is receiving assistance to catch and retain halibut from a
charter vessel guide who is being compensated to assist the person to
take or attempt to take halibut.
Compensation is generally defined as something given or received as
payment or remuneration, as for a service. For purposes of the
definition of ``sport fishing guide services'' at Sec. 300.61,
compensation is not strictly limited to a monetary exchange and can
include a trade of goods or services in exchange for taking someone
fishing. Therefore, assistance for compensation is not limited to
situations where persons are directly compensating someone for sport
fishing guide services. The definition of ``sport fishing guide
services'' at Sec. 300.61 does not require any person on board the
vessel to be individually compensating the person providing assistance
for this definition to be applicable. If the charter vessel guide is
compensated in any way to provide assistance, then that charter vessel
guide is providing sport fishing guide services under Sec. 300.61.
NMFS recognizes that compensation for assistance can take many
forms. For purposes of applying the regulations at Sec. Sec. 300.61,
300.66, and 300.67, NMFS will evaluate the specific circumstances of a
fishing trip to determine if a charter vessel guide is receiving
compensation for providing persons with assistance to take or attempt
to take halibut.
Effects of This Interpretation
NMFS did not intend for a charter vessel guide's recreational
fishing activities in Area 2C and Area 3A to be restricted by the
charter halibut limited access program regulations. This interpretation
clarifies that the regulation at Sec. 300.66(r) does not require a
person holding an annual sport guide license issued by the Alaska
Department of Fish and Game, defined as a charter vessel guide at Sec.
300.61, to have a CHP on board the vessel for recreational fishing
trips that are not undertaken as part of charter halibut business
operations. For example, NMFS recognizes that while a charter vessel
guide on board a vessel with friends or family may offer his or her
expertise to assist those persons to catch and retain halibut, the
charter vessel guide may not be compensated for providing such
assistance. Thus, if the charter vessel guide is not compensated for
providing sport fishing guide services, as defined at Sec. 300.61, the
persons on board the vessel are not charter vessel anglers as defined
at Sec. 300.61. If the persons on board are not charter vessel
anglers, the fishing trip would not be considered a charter vessel
fishing trip.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this interpretation is consistent with the Halibut Act and other
applicable law.
This action is administrative in nature and is exempt from the
requirement to prepare an environmental assessment in accordance with
NAO 216-6 because this interpretive rule will have no effect on the
environment.
This interpretive rule has been determined to be not significant
for purposes of Executive Order 12866.
The notice and comment requirements and the 30-day delay in the
effective date requirements of the Administrative Procedure Act do not
apply to this interpretive rule as provided in 5 U.S.C. 553(b)(A) and 5
U.S.C. 553(d)(2).
Authority: 16 U.S.C. 773 et seq.
Dated: April 4, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 2011-8431 Filed 4-5-11; 4:15 pm]
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