Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut, 30714-30728 [E7-10736]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 106 (Monday, June 4, 2007)]
[Rules and Regulations]
[Pages 30714-30728]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10736]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 070326070-7110-02; I.D. 032107A]
RIN 0648-AV47


Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery 
for Halibut

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to restrict the harvest of halibut by 
persons fishing on a guided sport charter vessel in International 
Pacific Halibut Commission (IPHC) Regulatory Area 2C. The current sport 
fishing catch or bag limit of two halibut per day is changed for a 
person sport fishing on a charter vessel in Area 2C. The final rule 
would require at least one of the two fish taken in a day to be no more 
than 32 inches (81.3 cm) in length. This regulatory change is necessary 
to reduce the halibut harvest in the charter vessel sector while 
minimizing negative impacts on this sector, its sport fishing clients, 
and the coastal communities that serve as home ports for the fishery. 
The intended effect of this action is a reduction in the poundage of 
halibut harvested by the guided sport charter vessel sector in Area 2C.

DATES: Effective June 1, 2007.

ADDRESSES: Copies of the Environmental Assessment, Regulatory Impact 
Review, and Final Regulatory Flexibility Analysis (EA/RIR/FRFA) 
prepared for this action are available from: NMFS, Alaska Region, P.O. 
Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records 
Officer; NMFS, Alaska Region, 709 West 9th Street, Room 420, Juneau, 
AK; or NMFS Alaska Region Website at https://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jay Ginter, telephone (907) 586-7228, 
e-mail jay.ginter@noaa.gov; or Jason Gasper, telephone (907) 586-7228, 
e-mail jason.gasper@noaa.gov.

SUPPLEMENTARY INFORMATION: The IPHC and NMFS manage fishing for Pacific 
halibut (Hippoglossus stenolepis) through regulations established under 
the authority of the Northern Pacific Halibut Act of 1982 (Halibut 
Act). The IPHC promulgates regulations governing the Pacific halibut 
fishery under the Convention between the United States and Canada for 
the Preservation of the Halibut Fishery of the North Pacific Ocean and 
Bering Sea (Convention), signed in Ottawa, Ontario, on March 2, 1953, 
as amended by a Protocol Amending the Convention signed at Washington, 
D.C., on March 29, 1979. The IPHC's regulations are subject to approval 
by the Secretary of State with concurrence of the Secretary of Commerce 
(Secretary). Approved regulations developed by the IPHC are published 
as annual management measures pursuant to 50 CFR 300.62. The annual 
management measures for 2007 were published on March 14, 2007 (72 FR 
11792).
    The Halibut Act provides the Secretary with the authority and 
general responsibility to carry out the requirement of the Convention 
and Halibut Act. Regulations that are not in conflict with approved 
IPHC regulations may be recommended by the North Pacific Fishery 
Management Council (Council) and implemented by the Secretary through 
NMFS to allocate harvesting privileges among U.S. fishermen in and off 
of Alaska. 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 and is continuing this work. This program 
could include harvest restrictions in regulatory Area 2C and 3A for 
2008, and a moratorium on new entry into the Area 2C and Area 3A 
charter vessel fishery.

Background and Need for Action

    The background and need for this action were described in the 
preamble of the proposed rule published in the Federal Register on 
April 6, 2007 (72 FR 17071). In summary, this final rule will reduce 
sport fishing mortality of halibut in the Area 2C charter vessel sector 
to a level comparable to the level that would have been achieved by the 
one-fish bag limit recommended by the IPHC. Of the alternatives 
analyzed in the EA/RIR/FRFA, the alternative selected for the final 
rule is expected to provide the necessary level of harvest reduction 
while also reducing adverse impacts on the charter fishery, its sport 
fishing clients, the coastal communities served by the charter sector, 
and on the fisheries for other species.
    The harvest of halibut occurs in three basic fisheries the 
commercial, sport, and subsistence fisheries. An additional amount of 
fishing mortality occurs as bycatch, wastage, and incidental catch 
while targeting other species. The IPHC annually determines the amount 
of halibut that may be removed from a regulatory area without causing 
biological conservation concerns for the entire Pacific halibut stock. 
In Convention waters in and off Alaska, the IPHC sets an annual catch 
limit specific for the commercial fishery. Thus, to maintain 
conservation goals, the IPHC reduces commercial catch when other 
sources of fishing mortality (e.g., sport fishing) grow. Although most 
of the non-commercial uses of halibut have been stable, growth in the 
charter vessel fishery in recent years, particularly in Area 2C, has 
resulted in a shift of the halibut resource away from the commercial 
fishery to the charter fishery. Moreover, the rate of growth in the 
charter vessel sector in Area 2C has made it difficult for the IPHC to 
forecast future removals of halibut in the charter vessel sector and 
set appropriate commercial harvest limits.
    The IPHC addressed the increase in the harvest of halibut by the 
charter vessel fishery at its annual meeting in January 2007. The IPHC 
adopted a motion to reduce the daily bag limit for anglers fishing on 
charter vessels in Areas 2C and 3A from two halibut to one halibut per 
day during certain time periods. Specifically, the IPHC recommended a 
one-fish bag limit apply to guided anglers in Area 2C from June 15 
through July 30, and in Area 3A from

[[Page 30715]]

June 15 through June 30. In Area 3A, the one-fish bag limit would 
reduce the charter vessel harvest of halibut by an estimated 326,000 lb 
(147.9 mt). In Area 2C, the one-fish bag limit restriction would reduce 
the charter vessel harvest of halibut by an amount estimated to range 
from 397,000 lb (180.1 mt) to 432,000 lb (195.9 mt).
    In a letter to the IPHC on March 1, 2007, the Secretary of State, 
with concurrence from the Secretary of Commerce, rejected the IPHC-
recommended one-fish 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 State of Alaska Department of 
Fish and Game (ADF&G) and NMFS regulatory actions. Prior to Secretarial 
rejection of the IPHC-recommended harvest measures, ADF&G promulgated 
regulations for Area 3A that prohibited skipper and crew from 
harvesting halibut onboard a charter vessel and limited the number of 
lines that could be fished from a charter vessel. ADF&G estimates that 
its action in Area 3A would reduce harvest the charter halibut harvest 
to or close to the Area 3A guideline harvest level (GHL). Thus, NMFS 
believed this level of harvest reduction was sufficient to meet 
management goals for the halibut fishery in Area 3A.
    The one-fish bag limit recommended by the IPHC would have had 
negative economic impacts on the charter vessel industry. Comments from 
charter vessel guides before, during, and after the IPHC meeting in 
January 2007 indicated that changing the bag limit for anglers on 
charter vessels from two fish to one fish per day for the six-week 
period in Area 2C would have an adverse impact on charter vessel 
bookings that had been or were in the process of being made for the 
2007 charter fishing season. Charter vessel operators and 
representatives stated that the ability to offer an opportunity to 
harvest more than one fish was important for their charter business. To 
reduce potential negative impacts on the charter fishing sector, NMFS 
considered regulatory alternatives for analysis that reduced the 
charter vessel fishery's amount of halibut harvest in Area 2C to a 
level comparable to the level that would have been achieved by the IPHC 
recommended one-fish bag limit while preserving a two-fish bag limit. 
The preamble to the proposed rule provides a detailed description of 
these analytical alternatives (March 14, 2007, 72 FR 11792).
    Current Federal halibut fishing regulations published in the annual 
management measures (March 14, 2007, 72 FR 11792) allow sport anglers 
to retain two halibut of any size, per calender day. This action will 
amend those regulations to allow a daily bag limit of two halibut per 
sport fishing client on a charter vessel operating in Area 2C provided 
that at least one of the two halibut retained is no longer than 32 in 
(81.3 cm) with its head on. If only one halibut is retained by the 
sport fishing client, it could be of any length. The regulations in 
this final action would apply for the entire fishing season.
    This action will require enforcement officers to determine the size 
of some halibut caught during a charter vessel trip. To accommodate 
this enforcement need, halibut must remain in measurable form until all 
halibut fillets are offloaded from the charter vessel. Thus, persons 
onboard a charter vessel are prohibited from possessing halibut that 
have been mutilated or disfigured in a way that prevents determining 
the size or number of halibut. Charter operators may fillet halibut 
onboard their vessels if the entire carcass is retained as a single 
piece until all fillets are offloaded. This requirement also is 
expected to improve the quality of data collected on the length 
composition of halibut harvested in the sport fishery. This requirement 
may increase the number of carcasses brought back to a port which may 
lead to disposal problems at some ports. NMFS strongly encourages 
charter operators to properly dispose of carcasses, including following 
all port-specific policies.

Expected Harvest Reduction

    The draft EA/RIR/IRFA and the proposed rule (April 6, 2007, 72 FR 
17071) indicated that the IPHC-recommended one fish bag limit would 
result in a harvest reduction by the charter vessel sector in Area 2C 
of between 397,000 lb (180.1 mt) and 432,000 lb (195.9 mt). The best 
scientific information available when these documents were prepared 
included an ADF&G estimate that the proposed regulation would reduce 
the charter vessel fishery harvest in Area 2C by 425,000 lb (192.8 mt). 
The proposed action appeared to be the best of several alternatives 
considered in the EA/RIR/IRFA, in part because the estimated reduction 
in poundage of halibut taken by the charter vessel sector was about 98 
percent of the poundage range estimated for the IPHC-recommended 
action.
    After publication of the proposed rule, however, ADF&G discovered a 
calculation error and corrected its harvest estimates. The correction 
changed the harvest reduction estimate for the proposed regulation from 
425,000 lb (192.8 mt) to 518,000 lb (235.0 mt). This ADF&G correction 
increased the estimated poundage reduction of the proposed regulation 
by 93,000 lb (42.2 mt).
    The revised poundage reduction estimate based on the ADF&G 
correction does not change the preferred alternative selected by NMFS. 
That preferred alternative published as a proposed rule on April 6 2007 
(72 FR 17071), and implemented by this final rule, will achieve a 
harvest reduction that is comparable to the IPHC-recommended action 
while maintaining the traditional two-fish bag limit and reducing 
negative impacts on the charter vessel sector. NMFS is not changing its 
preferred alternative in light of the ADF&G correction for several 
reasons. First, the additional 93,000 lb (42.2 mt) reduction of charter 
vessel halibut harvest in Area 2C based on the revised estimates 
amounts to about four percent of the estimated 2,113,000 lb (958.4 mt) 
of halibut harvested by the charter vessel fishery in Area 2C in 2006. 
Second, changing the preferred alternative to the next more lenient 
alternative of a 35-inch (88.9-cm) maximum size limit would result in a 
difference of only 46,000 lb (20.9 mt) or about two percent of the Area 
2C charter vessel harvest in 2006. Although the revised ADF&G estimates 
of predicted halibut poundage reductions are based on the best 
scientific information available, they are based on confidence ranges 
that have not been calculated, but are believed to be high based on the 
type of data available. Therefore, no change is made in the preferred 
alternative and no change is made from the proposed rule to this final 
rule.

Summary of Comments

    The proposed rule was published in the Federal Register on April 6, 
2007 (72 FR 17071), and invited public comments until April 23, 2007. 
NMFS received 477 comments in 128 letters and e-mail messages.

Comments Supporting the Proposed Rule

    NMFS received 23 letters that supported, either in whole or in 
part, the adoption of the proposed rule to restrict the size of one of 
two harvested halibut caught by anglers fishing from a charter vessel 
in Area 2C. Of these letters, 18 were from the commercial fishing 
sector, including two commercial fishing associations. Comments in 
support of the proposed rule from the commercial fishing industry 
generally indicated a preference that halibut harvest in the

[[Page 30716]]

charter halibut fishery be reduced to the GHL, but believed the NMFS 
action was a first step towards managing the level of halibut harvest 
in the charter sector. These letters indicated that a long term 
solution is needed to manage the charter vessel sector to the GHL. 
Several letters, including two from the charter industry, indicated 
partial support of the action and that the chosen preferred alternative 
was better than Alternative 2, which would require one of two harvested 
halibut to be at least 45 inches (114.3 cm), 50 inches (127.0 cm), 55 
inches (139.7 cm), or 60 inches (152.4 cm) in head-on length. The 
principle reasons given for supporting the proposed rule were that it 
would accomplish the following:
    (1) Provide a necessary first step in reducing the charter halibut 
harvest to the GHL;
    (2) Be the best choice for lessening the impact on the charter 
industry and associated sport mortality of the halibut resource by 
handling larger halibut;
    (3) Reduce the erosion of the commercial quota by halibut harvested 
in the charter fishery; and
    (4) Improve data collection and enforcement because charter 
operators would be required to keep the entire carcass until fillets 
are offloaded.

Comments Opposing the Proposed Rule

    NMFS received a total of 103 letters opposed to the proposed rule. 
Of these letters, 11 were from the commercial fishing industry, 33 were 
from the charter industry, 54 were from recreational anglers, and 5 
letters were of other origin. Many of the letters from commercial 
fishermen did not explicitly indicate disapproval of the NMFS action. 
These letters indicated that charter fishery harvest should be limited 
to the GHL instead of a level comparable to the IPHC-recommended action 
and requested that NMFS promulgate a rule to maintain charter harvest 
of halibut within the GHL.
    Several letters from the commercial industry indicated that the 
proposed rule did not provide a long-term solution to manage the 
charter fishery to the GHL. Several letters indicated that a one-fish 
bag limit should have been included in the EA/RIR/IRFA because the 
amount of harvest reduction and assumptions associated with bycatch 
mortality are easier to predict with a bag limit than with any size 
limit. Two letters indicated that NMFS should support continued efforts 
by the Council to develop market-based allocation solutions for the 
charter fishery. Two letters indicated the Council should identify and 
NMFS should implement management measures that can be annually adjusted 
to control charter harvest. Several letters from the commercial and 
charter sectors indicated support for the moratorium adopted by the 
Council. One letter from a commercial fisherman indicated he would not 
be satisfied until an IFQ program is implemented for the charter 
fishery.
    The majority of letters from the commercial sector noted the 
substantial investment made by the commercial industry to obtain 
halibut quota shares and how the lack of controls on the charter vessel 
fishery will compromise their investment, negatively impact coastal 
communities, crew, and the processing sector, and reduce the surplus 
for seafood consumers. Other letters noted that localized depletion of 
halibut and other species caused by the guided recreational vessels and 
commercial vessels is a concern that must be controlled. Several 
letters suggested that NMFS needs to manage the fishery to the GHL to 
prevent over harvesting the halibut resource. Two letters indicated 
that NMFS should enhance current data collection methods to include an 
electronic monitoring program. Three letters recommended that NMFS 
increase enforcement effort in the charter fishery. Several commercial 
operators expressed that NMFS should have taken action in Area 3A to 
reduce charter halibut harvest because of confusion associated with the 
accounting of skipper and crew fish in the ADF&G postal survey and 
whether skipper and crew fish were included in the calculation of the 
original GHL. These letters also indicated that NMFS' decision to take 
no action in Area 3A will lead to a GHL overage in 2007; especially if 
anglers substitute Area 2C halibut trips with those in Area 3A. Several 
letters indicated that halibut harvest above the GHL has a negative 
impact on subsistence users, non-guided anglers, and other resource 
users that rely on a healthy halibut stock, and indicated that the 
problem statement should have included these groups. Three letters also 
expressed concerns about increased mortality of demersal shelf rockfish 
(DSR), lingcod, and halibut. These letters indicated that the 
regulation would likely increase discards of these species, which would 
create more allocative concerns, result in local depletion, and 
increase conservation concerns.
    Several letters from the commercial industry supported the 
preferred alternative over Alternative 2 because of concerns associated 
with harvesting and handling large halibut, which may lead to increased 
mortality rates. These letters also supported the requirement to retain 
carcasses because it would improve data quality and enforcement 
efforts.
    Many of the letters from charter operators indicated the proposed 
rule would harm their business because charter trips in Area 2C will be 
less desirable to anglers. The majority of letters indicated that 
charter clients would be disappointed and confused when they learned 
that the daily bag limit for halibut had changed. Several letters 
indicated general support for the Council process and believed NMFS 
should not implement the final action because the Council is currently 
developing long-term management measures for the charter fishery. Three 
letters were received from travel agents that sell charter vessel trips 
in Alaska. These letters all indicated that the proposed rule would 
reduce tourism and disappoint charter clients. One letter indicated 
that they were obligated under Arizona State law to refund trips if 
clients were not satisfied because of the harvest regulation. Twelve 
letters from charter vessel operators indicated that a fishery 
management plan for the halibut fishery should be developed by the 
Council and approved by the Secretary to comply with the Magnuson 
Stevens Fishery Conservation and Management Act.
    Most letters from the charter industry indicated support for the 
NMFS decision to disapprove the IPHC-recommended bag limit. Several 
letters suggested NMFS create slot limits to allow anglers to harvest 
two fish, but maintain the opportunity to harvest two large halibut. 
Eight letters from charter vessel operators and several letters from 
the commercial industry expressed concerns for increased catch-and-
release mortality of halibut and other species. Authors of thirteen 
letters believed the rule would increase the number of halibut caught 
and released, and four letters believed the rule would increase the 
mortality of species other than halibut.
    Most of the letters from recreational anglers were form letters. 
The majority of these letters indicated that the current GHL was not a 
fair allocation for the sport fishing sector for the following reasons:
    (1) The GHL fails to account for recent growth in the charter 
industry and is set too low;
    (2) The sport fishery harvests much less of the exploitable biomass 
than the commercial fishery (including bycatch and wastage) and should 
thus be allowed to increase its allocation;
    (3) The GHL discriminates between guided and non-guided anglers and

[[Page 30717]]

should be the same for both angling groups; and
    (4) The GHL should increase stepwise if the abundance of halibut 
also increases.
    Letters from recreational anglers generally indicated their 
disappointment in a reduction in the amount of halibut they may 
harvest. These anglers provided a description of their angling 
experience and indicated they may not return to Area 2C for halibut 
fishing if the harvest regulation is approved. The majority of letters 
indicated that the halibut harvest by charter anglers should not be 
restricted because the commercial fishery accounts for a large portion 
of the halibut removals, including bycatch and wastage. The letters 
also indicated that the proposed rule should reduce commercial harvest 
and bycatch, that the sport fishery should not be restricted because 
the data used to determine sport harvest for 2006 is preliminary, the 
rule discriminates based on the state of residency, and that the 
proposed rule will limit growth in the charter sector. Twenty-one 
letters indicated that the Council should develop a fishery management 
plan for halibut to protect the halibut resource and fairly allocate 
between the commercial and sport sectors. Many letters indicated that 
NMFS should not reallocate halibut from the sport sector to the 
commercial sector with this action.
    NMFS received 10 comments that could not be categorized as having a 
commercial, charter, or recreational angler perspective. Three of these 
comments were from government agencies. Of the non-government comments, 
two supported the NMFS action, but believed harvest should be reduced 
to the GHL, and five did not support the action because it did not 
reduce harvest to the GHL.
    A detailed response to the comments is provided in the following 
section entitled ``Comments and Responses.''

Comments and Responses

    Of the 477 comments NMFS received on the proposed rule and EA/RIR/
IRFA, 60 were considered unique and are summarized and responded to as 
follows:
    Comment 1: The EA/RIR/IRFA underestimates the expected landed catch 
(and therefore overestimates the reduction in catch) by the sport 
charter sector by using an inappropriate average weight for the 
retained halibut less than 32 inches (81.3 cm). The analysis uses an 
average weight of 9.0 lbs (4.05 kg, net weight) to estimate the landed 
catch under the preferred alternative. The average weight of the 
smaller halibut will be closer to the weight of 32-inch (81.3 cm) 
halibut because anglers will highgrade to keep the largest fish 
possible.
    Response: A considerable amount of highgrading occurred in the 2006 
charter halibut fishery under a two-fish bag limit with no size limits. 
The Area 2C length distribution of halibut 32 inches or under that were 
harvested in the 2006 charter vessel fishery is strongly skewed, 
presumably as a result of highgrading. Although additional highgrading 
would increase the skewness towards the 32-inch (81.3 cm) size limit, 
no information exists to indicate whether or to what degree highgrading 
would increase beyond the level observed in 2006. A substantial portion 
of the 2006 charter halibut harvest consisted of halibut under 29 
inches (73.4 cm) even without size limits imposed on the charter 
fishery. The size distribution of halibut also varies by port, with 
halibut smaller than 32 inches (81.3 cm) halibut composing a large 
portion of the total harvest in some ports. Hence, the analysis assumes 
that anglers highgrade smaller halibut to the greatest extent possible. 
This assumption is believed to be reasonable because very small halibut 
generally are less desirable than larger halibut, and the abundance of 
halibut and amount of time available for fishing is often limited 
(especially for charter vessel anglers who are cruise ship passengers). 
This action also may change fishing behavior such that anglers increase 
their ability or desire to highgrade halibut. However, the harvest 
selection process for anglers in the Area 2C halibut fishery is poorly 
understood and NMFS believes the 9 lb (4.1 kg) average used reflects 
the best available data.
    Comment 2: The proposed rule is a violation of the Halibut Act, 
Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the 
Convention because it changes allocation between the commercial and 
sport sectors without a re-allocation recommendation from the Council.
    Response: This rule does not violate the Halibut Act, MSA, or 
Convention. As discussed in the preamble to this action, the Secretary 
has the general authority and responsibility to carry out the 
Convention and Halibut Act. This includes the authority to promulgate 
regulations without Council consultation. This final rule is necessary 
to address management concerns expressed by the IPHC and NMFS about the 
magnitude of the charter halibut harvest and its impact on the IPHC's 
ability to set the appropriate commercial catch limits that are 
necessary to maintain the sustainability of the halibut stock.
    Comment 3: The EA/RIR/IRFA fails to consider local depletion of 
demersal shelf rockfish assemblage (DSR) and lingcod stocks, which 
results in an incorrect conclusion that the proposed rule will not have 
a significant impact on these species.
    Response: The EA/RIR/IRFA references current management practices 
by ADF&G and NMFS that establish harvest limits for DSR and lingcod. In 
establishing these harvest limits, both agencies rely on scientific 
information and solicit public comment through their respective 
processes, including the Gulf of Alaska Plan Team, State of Alaska 
Board of Fish, Council, and the Federal regulatory process. The 
analysis indicates that an increase in sport harvest of these species 
may lead to increased allocation problems between the sport and 
commercial sectors. However, these allocation problems occur within the 
confines of the management measures established by each government to 
maintain sustainable stocks.
    Comment 4: The sport charter fleet should be required to contribute 
money to the research of the halibut biomass.
    Response: The purpose of this final rule is not to collect fees 
from the charter vessel fishery. However, the State of Alaska (State) 
currently collects fees from charter businesses and recreational 
anglers to support management and research of the halibut biomass. 
Charter businesses and charter vessel operators are required to pay 
business and guide license fees, which are used in part to fund the 
State's charter logbook program. Businesses and guides paid over a 
quarter-million dollars in license fees in 2006. Charter vessel 
operators and clients, as well as unguided anglers, also are required 
to purchase State fishing licenses. The sport fishing license money is 
used by the State to match Federal Aid in Sport Fish Restoration funds 
to pay for creel surveys that estimate fishery statistics for halibut 
and other species such as rockfish and salmon. The State's survey 
information is used by the Council and NMFS to develop management 
policy for the charter halibut fishery.
    Comment 5: The preamble to the proposed rule incorrectly uses ten 
and three year averages to estimate halibut harvest in the charter and 
commercial sectors. The proposed rule should have compared harvest that 
occurred two years prior to the GHL implementation (2003 and 2002), 
with two years under the GHL (2004 and 2005). This would have shown the 
magnitude of the commercial harvest increase when

[[Page 30718]]

compared with the increase of harvest in the charter vessel sector and 
would not have included a partial year under the GHL.
    Response: The years selected in the preamble were used to provide a 
general example of the difference in the proportion of the total amount 
of halibut removals in the commercial and charter sectors, and the 
difference in harvests between the charter and non-charter sport 
fisheries. The preamble to the proposed rule is not an analytical 
document. However, the numbers used in the preamble accurately 
illustrate recent removals in the charter sector, and recent quota 
levels for the commercial IFQ fishery. Using the three most recent 
years provides a more robust average. Moreover, the GHL does not impose 
a harvest restriction on the charter fishery and thus would not likely 
be directly responsible for changes in charter harvest during pre-GHL 
and post-GHL periods. The 10-year average was used to illustrate the 
general long-term ratio of harvest between the non-guided and guided 
fishing sectors; not the commercial fishing sector in comparison with 
the sport fishing sector.
    Comment 6: This action will interfere with the progress of the 
Council's Charter Halibut Stakeholders Committee.
    Response: This action does not change charter management measures 
currently being developed by the Charter Halibut Stakeholder Committee 
(CHSC), nor does it prevent the Council from adopting management 
measures currently being considered by the CHSC. The intent of this 
action is to implement a harvest reduction for the 2007 Area 2C charter 
fishing season. Management options developed by the Council and CHSC to 
reduce halibut harvested in Area 2C could not be implemented in time 
for the 2007 fishing season. However, the Council is considering 
management measures for the Area 2C charter sector that would reduce 
charter vessel harvest of halibut to the Area 2C GHL. If adopted, the 
Council's Area 2C management measures would likely replace this action. 
In addition, the Council and CHSC are developing measures for the long-
term management of the charter and commercial halibut sectors.
    Comment 7: The proposed rule will increase the number of halibut 
harvested that are under 32 inches (81.3 cm) which will reduce the 
number of larger halibut available for the recreational and commercial 
fisheries, and potentially endanger recruitment.
    Response: The final rule is expected to increase the harvest of 
halibut that are 32 inches (81.3 cm) and smaller. Under the previous 
two-fish bag limit, some charter vessel anglers likely would have 
released more halibut that are 32 inches (81.3 cm) or under in favor of 
a larger halibut. However, the number of these halibut that would have 
been released, survived to a large size, and would have been available 
for the commercial and sport fisheries in Area 2C is unknown. To grow 
beyond 32 inches (81.3 cm) in length and be available for the Area 2C 
sport and commercial fisheries, a halibut must survive to an older age 
and reside in Area 2C. Natural mortality, fishing mortality (including 
catch-and- release mortality in the sport and commercial fisheries), 
migration rates, and immigration rates complicate any attempt to 
estimate the probability of a halibut under 32 inches (81.3 cm) being 
caught in Area 2C several years later. Further, the management methods 
used by the IPHC carefully consider age structure in the halibut stock 
to ensure the long-term sustainability of the halibut stock. Hence, the 
EA/RIR/FRFA concludes that this action will not have a significant 
impact on the halibut stock.
    Comment 8: The proposed rule violates Executive Order (E.O.) 12962 
because it reduces the amount of halibut recreational anglers may 
harvest, resulting in a loss of angling opportunity.
    Response: This final rule does not violate E.O. 12962. To the 
extent permitted by law, E.O. 12962 directs Federal agencies to improve 
the quality, function, sustainability, productivity, and distribution 
of aquatic resources for increased recreational fishing opportunities. 
Although this rule is designed to reduce the poundage of halibut 
harvested in Area 2C by the charter vessel fishery, it maintains the 
opportunity of charter vessel anglers to harvest two halibut per day, 
and has no effect on recreational anglers not fishing from a charter 
vessel.
    In addition, this final rule is promulgated to meet the management 
goals set forth in the Halibut Act and Convention and implemented by 
the Secretary. These management goals include setting annual limits on 
the amount of halibut that may be removed without endangering the long-
term sustainability of the halibut stock, including the achievement of 
maximum sustainable yield for halibut fisheries including commercial 
and subsistence, as well as recreational. This final rule does not 
diminish that productivity or violate E.O. 12962.
    Comment 9: A two-fish bag limit with no size limit should be 
maintained because the 2006 ADF&G mail survey estimates are preliminary 
and thus not likely to be accurate.
    Response: This action is designed to achieve a harvest reduction 
that is comparable to the IPHC-recommended one-fish bag limit. In 
making its recommendation, the IPHC used a preliminary estimate from 
the ADF&G mail survey in conjunction with ADF&G weight data collected 
from the creel survey to predict the amount of halibut harvested in 
2006. The IPHC relies on preliminary estimates from the ADF&G mail 
survey because final mail survey results for the year immediately prior 
to the IPHC's annual meeting in January are typically not available. 
During its January meeting, the IPHC must determine the commercial 
catch limit using the best available information that includes the 
preliminary ADF&G mail survey estimate. Hence, the 2006 mail survey 
numbers were used by the IPHC to set the commercial halibut catch limit 
in 2007. The analysis also uses the mail survey data, as well as 
logbook and creel data to estimate potential impacts from this action. 
These data sources represent the best available scientific information. 
The use of the projected mail survey estimate is consistent with the 
goal of this action, which is to achieve a comparable reduction to the 
IPHC-recommended action.
    Comment 10: The proposed rule should not be adopted because the 
current composition of the Council does not represent recreational 
fishing interests.
    Response: This final rule was not developed by the Council nor does 
it affect membership of the Council or that of its Scientific and 
Statistical Science Committee and Advisory Panel. The final rule was 
initiated in response to a recommendation by the IPHC to reduce the 
harvest of halibut in Area 2C by the charter vessel fishery. In making 
its recommendation, the IPHC Commissioners highlighted their preference 
for the Council to resolve allocation issues between the commercial and 
sport fishing sectors. However, an action could not be approved by the 
Council and promulgated by the Secretary in time for the 2007 fishing 
season. Therefore, consistent with his responsibility under the 
Convention and Halibut Act, the Secretary is taking action to manage 
the halibut resource for 2007. This final rule may be replaced by 
regulations developed by the Council and approved by the Secretary.
    Comment 11: It is unlikely that charter vessel logbook records will 
accurately reflect catch and discards. Reported discards are likely to 
be less

[[Page 30719]]

than those reported under the current two-fish bag limit, because 
charter skippers and anglers will know that discard mortality will 
decrease the amount of catch available to them in the future. An 
alternate method of estimating discards, instead of self-reporting in 
logbooks, will be required. That method could be based on IPHC survey 
of length frequencies, since those data would likely be a minimum 
estimate of the size frequency encountered by anglers.
    Response: The ADF&G resumed mandatory collection of halibut harvest 
data in its charter logbooks in 2006 to gather data on harvest that is 
specific to individual businesses and vessels. Data required to be 
reported in ADF&G charter vessel logbooks include the number of halibut 
retained and released by individual anglers. Additional data collection 
measures implemented by ADF&G include (1) validation of the numbers of 
halibut offloaded by creel survey technicians whenever possible, (2) 
increased logbook inspections by deputized ADF&G staff, (3) increased 
review of submitted logbooks and follow-up calls to charter operators 
to resolve missing or misreported information, and (4) a mail survey of 
a random sample of clients to compare their reported harvest to logbook 
data recorded by operators. The evaluation of logbook data quality is 
ongoing. The ADF&G can also directly or indirectly estimate the numbers 
of released halibut through logbooks, the statewide sport fish mail 
survey, and creel survey interviews. Therefore, alternate methods of 
estimating discards exist; however, uncertainties exist in estimating 
discards by any method, including the use of the IPHC length frequency 
data.
    Comment 12: The proposed rule will confuse anglers that booked 
charter trips that thought the daily bag limit is two-halibut of any 
size.
    Response: Disapproval of the IPHC one-fish bag limit was described 
in the annual management measures for the Pacific halibut fishery, 
which published on March 14, 2007 (72 FR 11792). NMFS indicated in the 
annual management measures that the IPHC-recommended reduced bag limits 
for the charter vessel halibut fishery in Area 2C were rejected in 
favor of alternative restrictions that would be implemented through a 
separate domestic action. The proposed rule for this final action 
published in the Federal Register on April 6, 2007, with a public 
comment period that closed on April 23, 2007 (72 FR 17071). Thus, the 
public was notified about this action as required by law. In addition, 
NMFS published an information bulletin on its website and press release 
notifying the charter industry about the proposed regulation changes. 
Further public outreach will be conducted by NMFS and ADF&G when this 
final rule is published.
    Comment 13: The proposed rule fails to consider the need for 
increased halibut harvest in the charter fishery to accommodate growth.
    Response: Growth in the charter vessel fishery for halibut would be 
at the expense of other resource users, principally the commercial 
fishery. The question of what is the right proportion of the allowable 
halibut harvest to allocate between the commercial and sport fishing 
sectors is a fundamental question that will be answered later with 
Council involvement. The purpose of this action is to prevent further 
defacto reallocation to the charter vessel sector to allow the Council 
time to develop the fundamental resource allocation policies. The 
Council process is appropriate to determine whether and how much growth 
in the charter vessel fishery should be accommodated.
    Comment 14: The proposed rule should discriminate between non-
Alaska residents and Alaska residents by requiring that the harvest 
limit only be applied to non-Alaska residents.
    Response: Federal law prohibits discrimination based on state 
residency. This rule applies to all anglers who harvest halibut on 
charter vessels regardless of their state of residency.
    Comment 15: The language in the proposed rule fails to acknowledge 
that the total Constant Exploitation Yield (CEY) is threatened because 
of the overharvest of halibut by the sport fishery.
    Response: The proposed rule describes the IPHC process in 
determining the total CEY, including a discussion about how it may be 
exceeded. In summary, the IPHC considers removals from all directed 
fisheries, including the sport and subsistence fisheries and removals 
resulting from bycatch and wastage, when setting the commercial harvest 
limit. This process allows an increase of harvest from one removal 
source to be balanced against other sources of removals. For example, 
an increase of halibut harvest in the charter fishery may result in a 
decline in the commercial catch limit. With this method, the IPHC 
attempts to maintain fishery removals within biological conservation 
limits.
    Only halibut bycatch in directed commercial fisheries for other 
species (prohibited species catch limits, (PSC)) and the directed 
commercial fishery for halibut have an allocation that requires the 
fishery to be closed, or IFQ holders to stop fishing, when PSC or IFQ 
limits are reached. The charter halibut fishery is not restricted to an 
annual amount of halibut that when reached closes the fishery. Thus, 
the amount of halibut harvested in the charter fishery increases with 
increases in angling effort on charter vessels. As discussed in the 
preamble to the proposed rule, the IPHC must predict the annual growth 
of charter harvest, bycatch, subsistence, and wastage based on the 
previous year's level. The proposed rule states that ``this method has 
worked well for many years to conserve the halibut-resource, provided 
that the other non-commercial uses of the resource have been relatively 
stable.'' If any of the removal categories grow beyond the IPHC's 
annual prediction, the total CEY may be exceeded, which occurred in 
2006 and may occur again in 2007. Generally, bycatch, wastage, and 
subsistence harvests of halibut have been relatively stable, while 
charter halibut harvest has increased in recent years. To compensate 
for the increase in charter harvest, the IPHC has reduced the 
commercial set line catch limit and recommended a catch reduction in 
the charter sport fishery.
    Comment 16: The problem statement was not properly defined because 
it did not include a statement about protecting resource health by 
managing to the CEY and preventing disruptive impacts to all sectors by 
reducing halibut harvest in the charter sector to the GHL.
    Response: This rule is not designed to manage the halibut fishery 
to either the CEY or GHL. The CEY is a biological conservation 
objective of the IPHC and the GHL is an allocation objective of the 
Council. Those resource management institutions make regulatory 
recommendations as needed to achieve their respective objectives. This 
action is not intended to usurp these functions, and consequently, the 
problem statement did not include the goals of achieving the CEY or 
GHL.
    The problem statement in the preamble to the proposed rule for this 
final action indicates the alternatives in the EA/RIR/IRFA were 
developed to reduce the amount of halibut harvested in the Area 2C 
charter halibut fishery to a comparable level that would have been 
achieved by the IPHC-recommended one-fish bag limit. The problem 
statement also requires that the harvest reduction occur in a manner 
that, when compared to the one-fish bag limit, reduces negative impacts 
on the charter fishery, its sport fishing clients, the coastal 
communities that serve as home ports for this fishery, and fisheries 
for other species. Of the alternatives considered, this action met the 
goals

[[Page 30720]]

described in the problem statement, including protecting resource 
health by meeting the harvest reduction the IPHC indicated was 
necessary for its management and limiting the negative economic impacts 
associated with the IPHC-recommended level of harvest reduction.
    Comment 17: The proposed action should not be implemented until 
NMFS and the Council implement a fishery management plan for Pacific 
halibut.
    Response: A fishery management plan for halibut developed under the 
Magnuson-Stevens Fishery Conservation and Management Act is not 
necessary because the Halibut Act provides sufficient authority to the 
Secretary to implement regulations for the conservation and management 
of the halibut resource.
    Comment 18: NOAA Fisheries should implement regulations in Area 3A 
because the data are not certain as to the actual harvest level and the 
GHL is likely to be exceeded in future years.
    Response: The preamble of the proposed rule for this final action 
provides a detailed discussion about why NMFS decided not to impose 
additional harvest restrictions in Area 3A. In summary, on January 26, 
2007, ADF&G issued an Emergency Order (2-R-3-02-07) for the 2007 
charter halibut season that prohibited the retention of halibut by 
skipper and crew and limited the number of lines that could be fished 
on a charter vessel. The State estimates its action will reduce charter 
harvest by 7.7 to 10.6 percent of the 2006 harvest or 306,000 lb (138.8 
mt) to 421,000 lb (191.0 mt). Assuming the 2007 charter halibut fishery 
is similar to the 2006 fishery, this reduction in charter harvest is 
expected to be at or near the Area 3A GHL. In 2006, the GHL was 
predicted to be exceeded by nine percent, or 297,000 lb (134.7 mt).
    The amount of harvest in the 2006 charter fishery is based on 
preliminary estimates of charter fishery halibut harvests from the 
State. These preliminary estimates have been used historically by the 
IPHC in determining the most recent year's sport harvest and represent 
the best information available. The Council recognizes the potential 
for growth in the charter fishery in Area 3A and currently is 
developing alternatives to allocate halibut between the commercial and 
the charter vessel sport fishery. NMFS supports the Council's continued 
progress in developing long-term management policies for the halibut 
fisheries.
    Comment 19: The proposed rule will reduce the number of charter 
anglers in Area 2C and encourage them to fish in Canada or Area 3A. An 
increase of halibut anglers in Area 3A would exacerbate that area's GHL 
overage.
    Response: Data are not available to predict the number of clients 
that will choose to not take a charter vessel trip in Area 2C as a 
direct result of this rule. Likewise, no data exist on the portion of 
clients that would choose to maximize their experience with some other 
type of fishing experience. For example, some anglers may value the 
opportunity to catch a large halibut more than the need to harvest a 
large amount of halibut, or a segment of anglers may value harvesting 
halibut more than the experience of catching and releasing halibut. 
Other than acknowledging these possibilities, as was done in the EA/
RIR/IRFA, NMFS cannot forecast their probability.
    Comment 20: Because halibut that are 32 inches (81.3 cm) or under 
are not included as part of the set-line commercial quota limit, they 
should not be included in the charter vessel sport harvest estimate.
    Response: The annual management measures (72 FR 11792, March 14, 
2007) prohibit the harvest of halibut less than 32 inches (81.3) in the 
commercial set line fishery. These halibut are not counted towards a 
person's IFQ because they are not landed and do not enter commerce. The 
sport fishery does not have a minimum size limit. Thus, halibut that 
are 32 inches (81.3 cm) or under in total length are targeted and 
retained by sport anglers and are not required to be discarded as they 
would be in the commercial fishery. Therefore, it is reasonable to 
include halibut 32 inches (81.3 cm) and under in the charter vessel 
harvest estimate.
    Comment 21: The proposed rule should not be adopted by NMFS until 
the Council develops and approves an allocation solution to the 
commercial and charter vessel halibut fisheries.
    Response: As explained in the preamble to this final action, NMFS 
is taking this action because of concerns by the IPHC that its 
management goals were in danger by the unpredictable growth of halibut 
harvest in the charter fishery. In making its recommendation, the IPHC 
expressed its desire for the Council to manage the harvest of halibut 
in the charter fishery, but believed a harvest reduction was needed for 
the 2007 charter fishing season. A Council action to reduce charter 
halibut harvest could not be implemented for the 2007 fishing season. 
Hence, NMFS is promulgating this regulation in response to the 
recommendation by the IPHC that its management goals were thwarted by 
the magnitude of charter halibut harvest in excess of the GHL. The 
Council is considering harvest reduction measure for Area 2C and 
management measures that would resolve the allocation issues between 
the commercial and charter vessel sectors. Future Council actions to 
manage the charter fishery may replace the regulations in this final 
rule.
    Comment 22: The EA/RIR/IRFA incorrectly states that the preferred 
alternative will have a similar level of discard (catch and release) 
mortality as the current (two fish of any size) regulation. The release 
mortality associated with the proposed rule will be higher than the 
status quo, if for no other reason than the preferred alternative 
requires discard of fish above the 32-inch (81.3 cm) maximum size 
limit. In addition, it is reasonable to expect that anglers will catch 
and release a number of small fish in order to take home the largest 
fish possible under the 32-inch (81.3 cm) size limit.
    Response: The EA/RIR/IRFA discusses the potential impacts of this 
rule on the number of halibut that may die soon after release. Only a 
qualitative discussion was provided in the analysis, however, because 
of limited information about how anglers may respond to changes in the 
traditional two-fish bag limit. All available data were collected under 
the traditional two fish bag limit, and information about size 
distribution of halibut released in the sport fishery was not 
available. The analysis provided a qualitative discussion about the 
relative impact the final rule may have on the number of halibut 
released, including the impact local catch rates may have on the number 
of fish released, the type of charter trip taken (half-day or full-
day), and the amount of catch and release and high grading of fish that 
currently occurs in the fishery.
    Based on differences in the length composition of the charter 
halibut harvest among Area 2C ports, it is reasonable to assume that 
the size composition of discarded fish also varies among ports. For 
Area 2C overall, however, halibut under 32 inches comprised nearly half 
of the charter harvest in 2006. Therefore the analysis assumed that the 
majority of discarded fish were under 32 inches in length because, 
under the traditional two-fish bag limit, anglers were highgrading to 
the maximum extent possible or optimizing the size of harvested halibut 
based on individual preferences. While some larger halibut may be 
released in pursuit of a fish under 32 inches (81.3 cm) 
(``lowgrading'') in areas where halibut under 32 inches (81.3 cm) are 
less common, size data from the 2006 charter fishery indicated that in 
most areas halibut that are 32 inches or under in length would be more 
readily available than larger halibut. Under the

[[Page 30721]]

preferred alternative, many of the smaller fish that would have been 
released in pursuit of larger halibut would be retained, reducing some 
highgrading that occurred under the traditional two-fish bag limit. 
Anglers could continue to highgrade. Therefore, it was assumed that on 
balance, reductions in discard mortality from highgrading would offset 
discard mortality from lowgrading, although NMFS has no data to test 
this assumption.
    In addition, the selection process used by anglers under the each 
of the options is poorly understood. The analysis relies on gross 
assumptions regarding highgrading and angler responses to management. 
Some anglers likely prefer to harvest large fish, while others select a 
halibut based on other attributes such as perceived differences in the 
taste of the fish, the amount of halibut they may transport home, the 
amount of fishing time is limited, the local catch rates, discards, and 
other factors. Thus, a high degree of uncertainty exists on the amount 
of discard that occurred in the fishery in the past and the amount of 
discard that may occur under this rule. The conclusions reached in the 
analysis represent the best qualitative estimate based on assumptions 
regarding highgrading and angler behavior.
    Comment 23: There was no discussion or analysis in the EA/RIR/IRFA 
of the amount of halibut discards. While size composition data on 
discards have not been collected, an analysis using the size 
composition of the landed catch or from IPHC survey data could have 
been used for illustrative purposes to describe the relative 
differences between the alternatives.
    Response: The EA/RIR/IRFA discussed problems associated with 
estimating the amount of discards, including the lack of information 
about the size composition of halibut released in the sport fishery and 
a lack of information about angler preferences concerning the size of 
fish caught. The analysis also provided a qualitative discussion about 
whether discards from this action were likely to increase or decrease 
in comparison to the traditional two-fish bag limit. Data were not 
available for the EA/RIR/IRFA to quantitatively evaluate the magnitude 
of changes in the size composition of halibut released in the sport 
fishery under the final rule. Length data collected in the IPHC survey 
and ADF&G creel survey represent halibut harvested in the charter 
fishery under the traditional two-fish bag limit. Given that anglers 
highgrade the size of halibut harvested under the traditional two-fish 
bag limit, the size composition of released fish is likely smaller than 
harvested halibut. Hence, the IPHC length frequency data may not 
provide a baseline representation of fish released under the 
traditional two fish bag limit. The lack of an accurate baseline from 
which to compare the size frequency is further compounded by unknown 
behavioral responses to the rule. For these reasons, the EA/RIR/IRFA 
did not provide a point estimate for the number of halibut discarded in 
the charter fishery.
    Comment 24: The EA/RIR/IRFA is not adequate because it does not 
contain an analysis for a one-fish bag limit.
    Response: In formulating alternatives for the EA/RIR/IRFA, NMFS 
considered and rejected options that reduced the daily bag limit for 
anglers fishing from a charter vessel. The preamble to the proposed 
rule provides a detailed explanation about why the one-fish bag limit 
was rejected as an alternative for analysis. In summary, a reduced bag 
limit would impose a considerable economic burden on the charter sector 
that could be mitigated by maintaining the traditional two-fish bag 
limit. Charter operators commenting on the IPHC recommended action 
indicated that it was important for their business to maintain a two-
fish bag limit. NMFS rejected an alternative for one-fish bag limit 
because: (1) it likely would not reduce the economic burden on the 
charter industry; and (2) a comparable harvest reduction could be 
achieved with alternatives that maintained a two-fish bag limit in the 
charter fishery.
    Comment 25: Failure to reduce halibut harvest to the GHL will 
result in overfishing of the halibut resource and is thus in violation 
of the Convention and Halibut Act.
    Response: This rule is designed to reduce the charter vessel 
harvest of halibut in Area 2C to a level comparable to the IPHC-
recommended one-fish bag limit. The IPHC recommended a reduction in the 
harvest of halibut by the charter vessel sector to achieve its 
conservation and management goals pursuant to the Halibut Act and 
Convention. The EA/RIR/FRFA concludes that the expected level of 
halibut removals from the charter vessel fishery after this rule is 
implemented will not significantly impact the sustainability of the 
halibut stock. Therefore, a reduction of the Area 2C charter vessel 
halibut harvest to a level comparable to the IPHC-recommended action is 
not likely to result in overfishing of the halibut resource, regardless 
of whether the GHL is achieved or exceeded.
    Comment 26: The final rule introduces management complexity to the 
charter fishery without a reliable catch accounting program.
    Response: The final rule does not require additional data 
collection. ADF&G currently has an extensive data collection program 
for Alaska recreational fisheries including halibut. Because sport 
fishery landings happen over long periods, throughout most hours of the 
day, and at hundreds of access points including private lodges, ADF&G 
uses a variety of assessment methods including on-site creel surveys, 
and offsite methods including logbooks and postal surveys. In 2006, the 
ADF&G resumed collection of halibut harvest data in charter logbooks to 
gather data on halibut harvest specific to individual businesses and 
vessels. In addition, several measures were implemented to ensure 
accurate reporting of halibut harvest. These measures included (1) 
requiring reporting of fishing license numbers and numbers of halibut 
kept and released by individual anglers, (2) validation of the numbers 
of halibut offloaded by creel survey technicians whenever possible, (3) 
increased logbook inspections by deputized ADF&G staff, (4) increased 
review of submitted logbooks and follow-up calls to charter operators 
to resolve missing or misreported information, and (5) a mail survey of 
a random sample of clients to compare their reported harvest to logbook 
data recorded by operators. The evaluation of logbook data quality is 
ongoing.
    Comment 27: The EA/RIR/IRFA does not analyze the impact the final 
rule will have on crews, processors, and coastal communities.
    Response: The EA/RIR/IRFA provides an analysis of the potential 
socioeconomic impacts on commercial fishermen, charter guides, their 
customers, and other parties. This information is summarized in table 
22 of the analysis.
    Comment 28: The problem statement fails to identify impacts on 
commercial fishermen, subsistence users, non-guided sport anglers, the 
non-angler public, and coastal communities that result from the charter 
sector's harvest of halibut in excess of the GHL.
    Response: The goal of this action is reduce halibut harvest in the 
Area 2C charter fishery to a level that is comparable to the IPHC-
recommended action while lessening the negative impacts of that action 
on the charter industry, its sport fishing clients, the coastal 
communities that serve as home ports for this fishery, and on fisheries 
for other species. This goal does not include lessening the impact on 
subsistence users, non-guided sport anglers, or commercial fishermen,

[[Page 30722]]

although that may be an indirect effect. This rule is not designed to 
change current regulations that govern the subsistence fishery or non-
guided sport fishery, including personal bag and harvest limits. 
Commercial fishermen were not included in the problem statement because 
this action does not change the regulations associated with the 
commercial fishery nor does it establish an annual allocation of 
halibut for the commercial and sport fisheries. While a harvest 
reduction in the charter sport fishery may benefit the commercial 
fishery in the future, this rule is intended to meet the management 
goals of the IPHC, and in doing so, the charter sport fishery is the 
entity directly regulated by this final rule.
    Comment 29: The creel survey, postal survey, and logbook data 
collected by ADF&G and used in the EA/RIR/IRFA do not accurately 
estimate halibut removals or the average weight of halibut harvested in 
the charter fishery.
    Response: The EA/RIR/IRFA for this final action uses sport fishing 
data collected by ADF&G through its postal survey, logbook program, and 
creel survey program. These data comprise the best scientific 
information available for the EA/RIR/IRFA and are appropriate for use 
in estimating the impact of the final rule on the charter halibut and 
commercial sectors. These data collection programs all use statistical 
methods accepted by the scientific community to collect and extrapolate 
sport fishing information, including the disclosure of known 
statistical biases and verification of data collection methodology.
    Comment 30: The preferred alternative will not result in a level of 
savings that is comparable to the IPHC-recommended action because the 
second fish harvested by most anglers is not 32 inches (81.3 cm).
    Response: The 32-inch (81.3 cm) maximum size limit proposed in the 
final action applies to persons who harvest two halibut regardless of 
the order in which those fish are caught. If a person harvests only one 
halibut, it may be of any size. Thus, a person may choose whether the 
first or second halibut harvested is 32 inches (81.3 cm) or less.
    The reduction in guided sport harvests described in the EA/RIR/IRFA 
was determined by multiplying the proportion of halibut taken as a 
second fish by the proportion of harvest weight associated with halibut 
that would have been under the 32-inch (81.3 cm) size restriction in 
this final rule. The analysis did not predict the probability of 
harvesting one or two fish and instead assumed persons would maximize 
the size of their first halibut and harvest the smaller 32-inch (81.3 
cm) halibut as their second fish. Using this assumption, the analysis 
shows that approximately 518,000 lb (233,100 kg) of halibut would not 
be harvested in the Area 2C charter vessel fishery under this rule.
    Comment 31: The weight estimates for the Area 2C charter fishery 
are not accurate and should not be used in the EA/RIR/IRFA because they 
do not represent a random sample of harvested halibut.
    Response: See response to comment 29.
    Comment 32: The proposed rule is misleading because it insinuates 
growth in the charter vessel sector without providing supporting 
information.
    Response: The preamble of the proposed rule on page 1073 under the 
heading ``Recent Harvests of Halibut in Areas 3A and 2C'' states: `` In 
Area 2C, based on ADF&G sport fishing survey data, the charter vessel 
harvest in 2003 was one percent under the GHL, but in 2004 and 2005, it 
was 22 percent and 36 percent over the GHL, respectively. In 2006, 
based on sport fishing survey data [,] the GHL for Area 2C was 
projected to be exceeded by 42 percent, or 596,000 lb (270.3 mt).'' The 
preamble does not discuss the average annual increase of charter 
harvest since 1995. However, information that is provided in the 
background section of the EA/RIR/IRFA shows that the guided sport 
harvest of halibut in Area 2C has increased from approximately 0.986 
million lb (443,700 kg) in 1995 to 2.028 million lbs (912,600 kg) in 
2007. In addition to increased harvests in the charter fishery for 
halibut, the number of trips, businesses, vessels, and the number of 
second trips per day has increased since 2004.
    Comment 33: The description of the fishery CEY in the preamble to 
the proposed rule as it relates to the commercial catch limit is 
incorrect because the commercial catch limit is not equal to the 
fishery CEY and bycatch and wastage are commercial removals.
    Response: The preamble to the proposed rule states that the IPHC 
subtracts estimates of all non-commercial removals (sport, subsistence, 
bycatch, and wastage) from the total CEY. The remaining CEY, after 
removals are subtracted, is the maximum catch or ``fishery CEY'' for an 
area's directed commercial fixed gear fishery. The description in the 
preamble is not accurate because while the commercial catch limit for 
the fixed gear fishery may be set below the fishery CEY, it may exceed 
the fishery CEY. IPHC staff recommendations are based on estimates for 
the fishery CEY, but may be higher or lower depending on a number of 
biological, statistical, and policy consider