Daily Rules, Proposed Rules, and Notices of the Federal Government
* Mail: P.O. Box 21668, Juneau, AK 99802-1668.
* Fax: 907-586-7557.
* Hand delivery: 709 West 9
All comments received are part of the public record and will be posted to
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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
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
The IPHC and NMFS manage fishing for Pacific halibut (
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.
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.
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
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 (ADFG) 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 ADFG 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, ADFG, 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 ADFG 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, ADFG, 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
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,
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
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.
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
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
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.
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 ADFG. The proposed rule would adopt the Council's recommendation and award permits to applicants that participated as ADFG licensed fishing guide business owners in a qualifying period and a recent participation period.
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
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 ADFG 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.
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
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.
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 ADFG 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.
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 ADFG 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.
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 ADFG 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 ADFG method of counting logbook trips when fishing continues over multiple days. ADFG 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. ADFG required business owners to submit a logbook trip entry after a half-day trip. Hence, ADFG 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, ADFG 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, ADFG 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. ADFG 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 ADFG 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 ADFG.
In 2006, ADFG 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 ADFG time limits, reported to ADFG 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 ADFG 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. ADFG 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.
Issuing charter halibut permits only to qualified holders of ADFG 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 ADFG. Second, the business owner was required to register with ADFG the vessel to be used as a charter vessel. Third, the ADFG 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 ADFG within the required time limits. In summary, every charter vessel fishing trip was authorized by, and made pursuant to, an ADFG business owner license. This license has been variously referred to as a sport fishing operator license, a sport fish business owner license, an ADFG sport fish business license, or simply an ADFG business license. This action proposes the term “ADFG business owner license” exclusively to refer to this license issued by ADFG.
As noted above, an application period of no less than 60 days would be officially announced in the
Application forms would be available through ADFG and NMFS offices and on the NMFS, Alaska Region, web site at
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.
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.
Generally, the entity that applies for one or more charter halibut permits would be the same entity that held the ADFG 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
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