Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut, 30504-30524 [08-1301]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 103 (Wednesday, May 28, 2008)]
[Rules and Regulations]
[Pages 30504-30524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1301]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 300

[Docket No. 071031633-8385-02]
RIN 0648-AW23


Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery 
for Halibut

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

[[Page 30505]]


ACTION: Final rule.

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SUMMARY: NMFS implements regulations to limit the harvest of Pacific 
halibut by guided sport charter vessel anglers in International Pacific 
Halibut Commission Area 2C of Southeast Alaska to the guideline harvest 
level (GHL) of 931,000 lb (422.3 mt). The intended effect of this 
action is to reduce the poundage of halibut harvested by the guided 
sport charter vessel sector in Area 2C to the GHL while minimizing 
adverse 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. This final rule implements three 
restrictions for the guided sport charter vessel fishery for halibut in 
Area 2C: a one-fish daily bag limit, no harvest by the charter vessel 
guide and crew, and a line limit equal to the number of charter vessel 
anglers onboard, not to exceed six lines.

DATES: Effective June 1, 2008.

ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) 
prepared for this action may be obtained from the North Pacific Fishery 
Management Council (Council) at 605 West 4th, Suite 306, Anchorage, 
Alaska 99501-2252, 907-271-2809, or the NMFS Alaska Region, P.O. Box 
21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS 
Alaska Region Web site at https://www.noaa.fakr.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection of information requirements contained in this 
rule may be submitted to NMFS at the above address, and by e-mail to 
David_Rostker@omb.eop.gov or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Sue Salveson, 907-586-7228, or Julie 
Scheurer, 907-586-7356.

SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission 
(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 halibut fishery under the 
Convention between the United States and Canada for the Preservation of 
the Halibut Fishery of the Northern Pacific Ocean and Bering Sea 
(Convention). The IPHC's regulations are subject to approval by the 
Secretary of State with concurrence by the Secretary of Commerce 
(Secretary). After approval by the Secretaries of State and Commerce, 
the IPHC regulations are published in the Federal Register as annual 
management measures pursuant to 50 CFR 300.62. The annual management 
measures for 2008 were published on March 7, 2008 (73 FR 12280).
    The Halibut Act also provides the Council with authority to 
recommend regulations to the Secretary to allocate harvesting 
privileges among U.S. fishermen. This process requires the Council to 
submit a recommendation to the Secretary as a proposed rule for 
publication in the Federal Register along with supporting analyses as 
required by other applicable law. The Council is developing a 
regulatory program to manage the guided sport charter vessel fishery 
for halibut. This final rule is a step toward the Council's effort to 
stabilize relative harvest between the Area 2C charter vessel and 
commercial halibut fisheries while a longer term management program is 
developed and implemented. The proposed longer term program under 
development currently includes a proposed limited entry program for 
charter businesses, a catch sharing plan, and compensated reallocation 
from the commercial to charter fishing sectors. This final rule is 
linked to the overall management of the halibut fisheries by the IPHC 
and a previous regulation approved by the Secretary that establishes a 
guideline harvest level (GHL) for managing the harvest of halibut by 
the guided sport charter vessel fishery (August 8, 2003; 68 FR 47256).

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 
December 31, 2007 (72 FR 74257). In summary, this final rule will 
implement a one-fish daily bag limit for guided sport charter vessel 
anglers in Area 2C to reduce the poundage of halibut harvested by the 
guided sport charter vessel sector in Area 2C to the GHL while 
minimizing adverse 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.

Management of the Halibut Fisheries

    A complete description of how the halibut fisheries are managed can 
be found in the preamble to the proposed rule. In short, the IPHC 
annually determines the amount of halibut that may be removed from the 
resource without causing biological or conservation problems on an 
area-by-area basis in all areas of Convention waters. The IPHC 
estimates the exploitable biomass and calculates the target amount of 
allowable mortality for a given area. This target level is called the 
total constant exploitation yield (CEY) and 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 AFishery CEY'' for an area's directed commercial fixed gear fishery.

Guideline Harvest Level

    A more thorough discussion of the development of the guideline 
harvest level (GHL) is provided in the preamble to the proposed rule 
(December 31, 2007; 72 FR 74257) and in the rule that first implemented 
the GHL (August 8, 2003; 68 FR 47256). The Area 2C GHL is established 
in regulations at 50 CFR 300.65(c) and is a benchmark for monitoring 
the charter vessel fishery relative to the commercial fishery and other 
sources of fishing mortality. The fishery is not closed when the GHL is 
reached, but it is the Council's policy that the charter vessel fishery 
should not exceed the GHL.
    To accommodate fluctuations in halibut abundance, the Council 
adjusts the GHL step-wise according to 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 1999-2000 stock abundance. Since 2003 when the GHL 
became effective, it has never been reduced below its maximum level 
because declines in the total CEY have not been sufficient to trigger 
the first step reduction of the GHL. This situation changed in 2008 
when the total CEY for Area 2C was markedly reduced, resulting in a GHL 
of 931,000 lb (422.3 mt). If the CEY were to increase in the future, 
the GHL could increase up to a maximum of 1.432 million lb (649.5 mt) 
for Area 2C.

Recent Harvests of Halibut in Area 2C

    The GHL was implemented in 2003, and the charter vessel fishery has 
exceeded the GHL for Area 2C every year since 2004. In 2006, the 
charter harvest exceeded its 2006 Area 2C GHL by 380,000 lb (172.4 mt) 
or 26.5 percent. In 2007, the Secretary of Commerce took regulatory 
action to reduce sport fish harvest of halibut in Area 2C by amending 
the two-fish bag limit with

[[Page 30506]]

the restriction that at least one of the two halibut retained could be 
no longer than 32 in (81.3 cm) with its head on. Alaska Department of 
Fish and Game (ADF&G) preliminary estimates of the Area 2C halibut 
harvest by the charter vessel fishery in 2007 again indicated that the 
GHL was exceeded, although by a smaller amount.
    The Council recommended this final rule specifically to maintain 
the charter vessel fishery at its GHL. In June 2007, the Council 
adopted a preferred alternative that contained two options. The Council 
recommended that the selection between the options would depend on 
whether the CEY decreased substantially for 2008. Not knowing in June 
2007 how the GHL might be affected by total CEY established by the IPHC 
in January 2008, the Council recommended a suite of charter vessel 
fishery restrictions if the GHL were to remain the same in 2008 
(proposed rule Option A) and a more restrictive suite of restrictions 
if the GHL were to decrease in 2008 (proposed rule Option B).
    At the IPHC annual meeting in January 2008, the IPHC set the 2008 
total CEY for Area 2C was set at 6.5 million lb (2,948.4 mt). This is a 
4.3 million lb (1,950.4 mt) reduction from the 2007 total CEY of 10.8 
million lb (4,899.0 mt).

2008 GHL for Area 2C

    NMFS published a notice of the guideline harvest levels for Areas 
2C and 3A for 2008 on February 5, 2008 (73 FR 6709). As established by 
the original rule that implemented the GHL (August 8, 2003; 68 FR 
47256), the GHL will step down if the IPHC reduces the CEY below 
certain benchmarks. The 2008 CEY resulted in a three-step reduction in 
the GHL for Area 2C. The 2008 GHL for Area 2C is 931,000 lb (422.3 mt).

The Action

    With this final rule, NMFS implements the following management 
measures to restrict halibut harvest by the charter vessel sector to 
the GHL for Area 2C:
     The number of halibut caught and retained by each charter 
vessel angler in Area 2C is limited to no more than one halibut of any 
size per calendar day;
     A charter vessel guide, a charter vessel operator, and 
crew of a charter vessel must not catch and retain halibut during a 
charter vessel fishing trip; and
     The number of lines used to fish for halibut must not 
exceed six or the number of charter vessel anglers onboard the charter 
vessel, whichever is less.

No annual limit for individual anglers will be implemented in Area 2C 
for 2008. NMFS notes that a two-fish daily bag limit for sport fish 
anglers is established under annual IPHC regulations for all waters off 
Alaska. If an angler onboard a charter vessel in Area 2C retains a 
halibut, then that angler may retain only one additional halibut that 
day and only if that additional halibut was caught in an IPHC 
regulatory area other than Area 2C. This is most pertinent to charter 
vessels that may fish adjacent Areas 2C and 3A in a single day. While 
charter vessel guides, operators, and crew will be prohibited from 
catching and retaining halibut, they are not prohibited from 
demonstrating fishing techniques to their clients.

Summary of Comments

    The proposed rule was published in the Federal Register on December 
31, 2007 (72 FR 74257), and invited public comments until January 30, 
2008. NMFS received 273 letters, e-mails, and faxes before the deadline 
containing 107 unique comments on the proposed rule. NMFS received 162 
letters in favor, 102 letters in opposition, 8 letters in partial 
support, and one letter stating an ambiguous position on the proposed 
rule. Of the letters from which affiliations could be determined, 96 
were from the commercial industry, 61 from the charter industry, 14 
from local businesses, 2 from fisheries management organizations (IPHC 
and ADF&G), and 24 letters were received from anglers and members of 
the general public. Three form letters were received. Ten copies of one 
letter in support of the one-fish daily bag limit were received. One 
form letter was received from 51 individuals who opposed the proposed 
rule because it did not include a sunset provision. The third form 
letter was from 13 businesses that opposed the proposed rule citing 
negative economic effects to their communities. Additionally, two 
letters in favor of the proposed rule were received, one signed by 24 
commercial fisherman, and another signed by 15 deckhands. Comments in 
favor of the rule generally expressed support for limiting the guided 
sport charter vessel sector harvest to the GHL to ensure conservation 
of the halibut stock and to avoid further reallocations from the 
commercial sector. Most comments against the rule cited economic 
hardship to businesses and communities, inability to retain clients who 
will choose to fish in other areas with more lenient restrictions, and 
the need for what was perceived by the commenters as a more equitable 
allocation split between the commercial and charter sectors, as reasons 
for their opposition.

Comments and Responses

Allocation Issue

    Comment 1: NMFS should impose restrictions on the commercial 
fishing sector, including reducing commercial bycatch levels and the 
commercial set-line quota instead of limiting the halibut charter 
fishery.
    Response: This rule is not designed to impose further restrictions 
on commercial fisheries that take halibut. The commercial fishery for 
halibut as well as the commercial fishery for groundfish that takes 
halibut as bycatch to the harvest of other species are limited to a 
specified amount of halibut mortality. Unlike the charter vessel 
fishery for halibut, these commercial fisheries are closed each year 
when their limits are reached.
    Comment 2: All sectors need to stay within their allocations and 
measures should be implemented to restrict the charter sector to the 
GHL. Due to a declining estimate in biomass, and charter fishery 
overages of the GHL, the Area 2C commercial fishery has taken a 42 
percent reduction in allowable harvest between 2006 and 2008. 
Achievement of IPHC's harvest goals and management objectives depends 
on implementation of the proposed action. To choose an option that 
won't hold the charter sector at or below the GHL would result in 
continued reallocation of the halibut resource. Option B in the 
proposed rule is the only option that will reduce harvest to the 2008 
GHL.
    Response: NMFS is implementing management measures in the final 
rule that are intended to reduce the Area 2C charter halibut harvest 
amount to the 2008 GHL.
    Comment 3: Change how allocations are divided between the charter 
and commercial sectors.
    Response: Establishing a new process for allocating Pacific halibut 
among different sectors is outside the scope of the proposed action; 
however, the Council is considering options for reallocating halibut 
between the commercial and charter sectors and received public 
testimony at its April 2008 meeting. Final action is scheduled for 
October 2008.
    Comment 4: The Council has stated that its intent is to manage the 
charter halibut fishery to the GHL until a long term plan is adopted 
including a limited entry program for halibut charter businesses and 
potentially new regulations on the allocation of halibut

[[Page 30507]]

between the commercial and charter fisheries.
    Response: NMFS agrees. See response to Comment 3.
    Comment 5: The IFQ program has allowed commercial fisherman to fish 
shallower waters and deplete fish that sport fisherman would otherwise 
catch.
    Response: Current data do not clearly indicate whether nearshore 
depletions are occurring, or what the causes, magnitude, and 
geographical distribution of nearshore depletions might be. While it is 
accurate that commercial fishermen may fish in areas that are 
accessible to sport fishermen, any localized depletions resulting from 
high halibut catch rates may be offset by egg and larval drift and 
migrations of juveniles and adults. Information about local biomass, 
immigration and emigration rates, seasonal changes, and the 
relationship of these factors with environmental characteristics is not 
available at a fine enough scale to indicate whether localized 
depletions are occurring in Area 2C.
    This final rule is not expected to significantly impact the 
sustainability of the halibut stock. As discussed in the EA/RIR/IRFA, 
the IPHC sets catch limits for the commercial fishery in proportion to 
the amount of halibut that may be sustainably removed. This strategy 
protects against overharvest and distributes the fishing effort over 
the entire geographic range for halibut to prevent regional depletion. 
The IPHC does not expect small scale local depletion to have a 
significant biological effect on the resource as a whole.
    Comment 6: There is no balance between the commercial and sport 
fisheries. Commercial catch is increasing while the charter industry is 
being faced with a cut. The proposed rule states that, ``from 1997 to 
2006, the average annual removal of halibut was about 12.454 million 
pounds and of this, the commercial fishery harvested 76.7 percent or 
9.522 million pounds per year. From 2004 to 2006, the average annual 
removal of halibut was 14.142 million pounds, and of this the 
commercial fishery harvested 73.8 percent or 10.437 million pounds per 
year.'' While it is true there has been some growth in the charter 
sector harvest, the commercial harvest did not decrease, but in fact, 
increased. While sport fish catch is being reduced, the commercial 
sector will be able to harvest 2.28 million pounds over the IPHC's CEY 
for 2008.
    Response: The catch limit for the commercial halibut fishery and 
the guideline harvest level for the sport fishery are derived from the 
same estimate of total halibut biomass. The biomass allocation among 
areas is estimated from the annual setline survey data and estimates of 
bottom area. The catch limits are biologically based.
    NMFS acknowledges that the commercial catch increased from the 
period 2000-2003 to somewhat higher levels in 2004-2006 (reflecting 
improved biological factors and technical improvements to the IPHC 
assessments in those years); however, it is incorrect that the 
commercial catch is increasing while the charter industry is being 
faced with a cut. IPHC data show that the commercial catch declined in 
each year from 2006 to 2008. Between 2007 and 2008, the commercial 
catch limit in Area 2C was reduced from 8,510,000 pounds in 2007 to 
6,210,000 pounds in 2008. This is a reduction of 27 percent and follows 
a 20 percent reduction in the commercial catch limit in 2007 from the 
2006 level.
    Comment 7: The preliminary 2007 charter harvest estimate is 1.7 
million pounds, only 270,000 pounds over the GHL. NMFS is giving 
poundage back to the commercial fleet and cutting the charter catch.
    Response: As described in the preamble to this rule, the 2008 GHL 
was reduced to 931,000 lb. While the preliminary estimate of 2007 
charter vessel harvest is 270,000 lb over the 2007 GHL, this level of 
harvest would exceed the 2008 GHL by about 770,000 lb. The one-fish 
daily limit implemented under this final rule is the only proposed 
measure that may adequately reduce harvest to the current GHL.
    The commercial Area 2C Fishery CEY is set by the IPHC and includes 
a buffering provision for large changes in catch limits. The amount of 
this buffer does not affect the GHL and does not represent pounds of 
fish given back to the commercial sector at the expense of the charter 
sector.
    The charter vessel GHL is established in regulations at Sec.  
300.65(c) and is adjusted in a stepwise manner based on the Total CEY 
established annually by the IPHC. The GHL table in regulations at Sec.  
300.65(c), adjusts the GHL to 931,000 lb when the Total CEY for Area 2C 
is more than 5.841 million lb, but less than 6.903 million lb. The IPHC 
set the 2008 Total CEY to 6.50 million lb, which is above 5.841 million 
lb. In 2007, the GHL was set at 1.432 million lb under Sec.  300.65(c) 
and the 2007 Total CEY of 11.40 million lb. The difference between the 
2008 GHL of 931,000 lb and the 2007 GHL of 1,432,000 lb is about 
500,000 lb. This 500,000 is not cut from the 2007 GHL. Rather, the 2008 
GHL is reduced consistent with the lower Total CEY in 2008 and the 
stepwise manner in which GHL is established under Sec.  300.65(c).

Community Effects

    Comment 8: Tourism benefits more Alaskans than commercial fishing. 
Tourism supports a wide variety of businesses that will be affected by 
reduced demand for halibut charter trips. Lodges and charter industry 
bring jobs and money to local communities and businesses, including 
Alaska Airlines and the Alaska Marine Highway System. Communities have 
invested a lot of money to encourage tourism and this rule will 
undermine those efforts.
    Response: NMFS agrees that the charter industry is an important 
industry for many communities, generating jobs and revenue for the 
communities involved as well as direct employment for the guides and 
crew. A reduction in the daily bag limit for guided charter clients 
will affect those communities and their efforts to develop guided 
charter industries. The analysis indicates that the segment of the 
charter industry that caters to cruise ship tourists will not be 
impacted by changes to the daily bag limit to the same extent as the 
lodge-based guided charter businesses. Moreover, tourists on the four 
hour charter fishing trips associated with cruise ships often do not 
have enough time to harvest two halibut. Tourists coming to communities 
on cruise ships and choosing to take a charter trip for halibut will 
likely continue to do so and businesses that cater to these tourists 
will continue to benefit from their visits. NMFS acknowledges that 
independent or repeat tourists who book day vacations at lodges may 
consider the reduced halibut bag limit in their decision to book a 
vacation, along with considerations for alternative fishing or tourist 
opportunities that may be offered. The potential impact on bookings and 
demands for tourist activities is discussed in the analysis supporting 
this final rule, but quantitative estimates of how such impacts will 
influence demand for these services and commensurate impacts on local 
communities are unavailable.
    Comment 9: Tourist hopes and expectations of catching a ``barn 
door'' (i.e., a very large halibut) are fading along with their 
willingness to pay for trips. Sufficient incentive must remain to 
attract visitors.
    Response: A tourist's expectation to catch a large halibut still 
exists if the bag limit is one fish. This expectation and the fishing 
experience itself often are the key factors in deciding to board

[[Page 30508]]

a charter vessel, not the daily bag limit. Furthermore, for much of the 
charter fishing season, there are opportunities to catch other sport 
fish species during a trip. This contributes to one of the incentives 
to hire a charter vessel, which is to optimize the experience of sport 
fishing in Alaska by fishing for more than one species.
    Comment 10: Announcing new regulations at the beginning of a season 
creates confusion and frustration and makes it hard to attract and 
retain business. The proposed restrictions on the charter fishery will 
negatively impact the ability of lodge owners to book trips and many 
lodges have already pre-booked vacations for the 2008 season.
    Response: NMFS agrees that a change in charter fishing regulations 
in the months prior to a fishing season will be disruptive and may 
cause some clients to reconsider bookings. However, information about 
the potential for this action has been available since mid-2007. In 
June 2007, the Council announced its intention to adopt a one-fish bag 
limit if necessary to reduce the charter fishery harvest to the 2008 
GHL. The proposed rule for this action was published in the Federal 
Register on December 31, 2007 (72 FR 74257), with a public comment 
period that closed on January 30, 2008. The results of the IPHC annual 
meeting were published on January 22, 2008, and included an Area 2C CEY 
that triggered a reduction in the GHL to 931,000 lb GHL. This reduced 
GHL prompted selection of the Council's proposed one-fish bag limit as 
the preferred management option to limit harvest to the GHL. NMFS took 
action to inform the public and charter industry about the proposed 
regulation changes as soon as possible through an information bulletin 
published on its Web site and a press release.
    Comment 11: The proposed annual limit disproportionately affects 
multi-day lodge and charter operations while allowing cruise-based day 
charters, the sector that comprises the main growth of the industry, to 
continue. Both Options A and B would have profound negative effects on 
lodge-based charter operations.
    Response: The EA/RIR/IRFA and the proposed rule acknowledged that 
the proposed actions may have greater adverse impacts on the lodge-
based sector of the guided charter vessel industry than on the day-boat 
sector (see response to Comment 8).
    Comment 12: This rule creates a marketing disadvantage for 
businesses in Area 2C and will discourage clients from coming to 
Southeast Alaska. Our businesses rely on repeat customers. Many of 
these customers will now go to fish in other areas.
    Response: NMFS believes this comment applies primarily to the 
lodge-based segment of the guided charter industry. As indicated in the 
analysis, the cruise-based component relies primarily on people 
arriving in Alaska for one-time visits who have little opportunity to 
fish in other areas and are not likely to be repeat customers. NMFS 
acknowledges that lodge-based guided charter clients have more 
opportunities to substitute fishing experiences to other regions of 
Alaska or outside of Alaska. They also may shift to targeting a 
different species. Models 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 final rule, or to estimate the proportion of 
clients who would choose to maximize their experience with some other 
type of fishing experience. Other than acknowledging the potential for 
lost business, as was done in the EA/RIR/IRFA, NMFS cannot forecast the 
probability or extent to which this might occur.
    Comment 13: The bag limit should be the same for the entire British 
Columbia and Alaska coastline so that no one area is more desirable 
than another to anglers.
    Response: NMFS lacks the authority to manage halibut in British 
Columbia. This action is in response to concerns that are specific to 
Area 2C.
    Comment 14: Small charter operations will not be able to survive 
this restriction.
    Response: NMFS agrees that this action may have adverse impacts on 
charter businesses and that some may fail or leave the business. This 
possibility is mentioned in the analysis. Likewise, some businesses may 
benefit from reduced competition if other businesses close. NMFS does 
not agree that all small charter businesses will be forced to leave the 
business.

Alternative and Future Management Measures

    Comment 15: Allow the proposed limited entry program (moratorium) 
for guided sport charter vessel businesses to go into place to preserve 
the current charter vessel fleet. The number of boats should be 
limited, not the number of fish.
    Response: The Council adopted a proposal at its April 2007 meeting 
to limit the number of businesses and vessels permitted to participate 
in the guided sport charter vessel fishery for halibut. NMFS currently 
is developing a proposed rule to implement the Council's action. 
Publication of the proposed rule is scheduled for Spring 2008. Pending 
consideration of public comment and approval of the proposed limited 
entry program by the Secretary of Commerce, fishing under the limited 
entry program would begin in 2010.
    A limited entry program would limit the number of businesses and 
vessels, but not the amount of halibut harvested. The amount of halibut 
harvested in this fishery would need to be regulated by other 
management measures, including GHL restrictions (if the GHL program is 
not replaced with a different allocation) or an individual fishing 
quota program designed specifically for the guided sport charter vessel 
fishery for halibut. Limited entry programs in commercial fisheries 
only weakly influence the amount of fish harvested because harvesters 
adapt by changing their fishing effort and methods. Ancillary 
regulations are needed to control the amount of harvest. If the number 
of halibut charter vessel businesses was limited, the fishery could 
still maximize harvest by modifying vessel size, capital inputs, number 
of trips, length of trips, and the number of people in a fishing party. 
Thus, harvest restrictions such as those implemented under this final 
rule are necessary because effort controls alone are not sufficient to 
reduce harvest.
    Comment 16: Don't impose an annual catch limit; instead impose a 
one-fish daily limit and move toward a limited entry program.
    Response: NMFS agrees that a one-fish daily bag limit is an 
appropriate management measure to limit the harvest of the guided sport 
charter vessel for halibut to the reduced GHL established for 2008. 
Even the most conservative annual catch limit considered by the Council 
(4 fish a year) would not result in a harvest reduction sufficient to 
meet the objective of this final rule. Thus, an annual catch limit is 
not included as a provision of the final rule. NMFS is developing a 
proposed rule to establish a limited entry program for the halibut 
guided sport charter vessel businesses and expects a proposed rule to 
be published in Spring 2008 for public review and comment. Also see 
response to Comment 15.
    Comment 17: Under the moratorium [limited entry program], charter 
operators will have to buy their rights to fish while the original 
commercial IFQs were given away.
    Response: The nature and restrictions of the proposed limited entry 
program for guided sport charter vessel businesses will be best 
addressed under the proposed rule to implement that program once it is 
published. However,

[[Page 30509]]

charter vessel business owners who initially qualify under the limited 
entry program for participation in the guided sport charter vessel 
fishery for halibut would not be required to purchase their privilege 
for ongoing participation. This is similar to the initial allocation of 
commercial IFQ.
    Comment 18: With a new allocation decision and interim management 
plan due this October from the Council, it seems unnecessary to inflict 
serious harm on the charter industry in the meantime.
    Response: NMFS disagrees that it is unnecessary to reduce the 
guided sport charter vessel fishery harvest of halibut to the GHL. The 
purpose of this final rule is to reduce harvest to the GHL, and to 
provide a measure of stability to the halibut industry and coastal 
communities while the Council develops a long-term plan for the charter 
sector. The Council has initiated additional analyses of sector 
allocations and a means for compensated reallocation of halibut from 
the commercial to the charter vessel halibut fishery that would allow 
the charter sector to grow. The Council also is exploring options for a 
share-based program for the charter halibut fishery. Pending timely 
Council action and Secretarial review and approval, regulations 
implementing alternative allocations and associated management measures 
are unlikely to be effective until 2010 or 2011, and would become 
effective concurrently or after a proposed limited entry program for 
halibut charter businesses is implemented if approved by the Secretary 
(see response to Comment 15). To wait several years to reduce the 
harvest in the halibut charter fishery to the GHL while longer term 
allocation solutions are developed and implemented would frustrate the 
IPHC's attempt to manage halibut mortality to the Total CEY based on 
projected charter fishery harvests at the GHL level, and would continue 
the ongoing de facto reallocation of halibut from the commercial sector 
to the charter sector.
    NMFS acknowledges that a policy decision to maintain the charter 
fishery harvest at the GHL until such time a different allocation 
system is implemented will constrain the growth of charter sector 
harvest of halibut and impose costs on charter businesses. The EA/RIR/
IRFA supporting the final rule addresses these costs, although the 
assessment of the economic effects is qualitative due to lack of data.
    Comment 19: Develop a stable, long-term management plan for the 
halibut charter sector.
    Response: NMFS agrees that a more stable management program for the 
halibut charter sector is necessary and is coordinating with the 
Council and other management agencies to accomplish this through a 
sequence of proposed management changes. The first step in this 
sequence is the proposed implementation of a limited entry program for 
halibut charter sector businesses. Also see response to Comment 18.
    Comment 20: Develop a catch sharing plan for Area 2C.
    Response: The Council is considering a catch sharing plan for the 
halibut charter vessel and commercial fishery sectors. The Council 
initially reviewed the alternatives for a catch sharing plan at its 
April 2008 meeting and final action is scheduled for October 2008. Also 
see responses to Comments 3, 18, and 19.
    Comment 21: The Council is moving toward long-term solutions. To 
change management now will disrupt ongoing analyses.
    Response: The Council and NMFS' management objective for the 
halibut guided sport charter vessel fishery since 2003 has been to 
maintain harvest amounts to the GHL. Since 2004, the charter vessel 
fishery in Area 2C has exceeded GHL by amounts that range between 122 
percent and 136 percent. Until 2006, administrative and implementation 
issues delayed responsive management actions to reduce harvest of 
halibut in the Area 2C charter vessel fishery. In cooperation with 
ADF&G, these issues largely have been resolved and NMFS and the Council 
are moving forward to manage the charter vessel fishery consistent with 
management objectives set forth since 2003. NMFS disagrees that 
management of this fishery to reduce harvest to the GHL would disrupt 
ongoing analyses; this final rule does not change the long-term 
solutions for the charter vessel fishery under consideration by the 
Council nor does it prevent future management actions that the Council 
may wish to consider as new information becomes available. See also 
response to Comment 18.
    Comment 22: Restrict the guided sport charter vessel fishery to 
only allow retention of halibut greater than 32 inches in length like 
the commercial sector in order to protect recruits of the halibut 
biomass. Halibut only twenty inches in length and weighing five pounds 
have been brought back to the dock by charter vessel anglers. Charter 
vessel anglers should also have a maximum poundage.
    Response: Restricting the charter vessel fishery to retention of 
fish over 32 inches without other harvest constraints would not meet 
the intent of reducing harvest in this fishery to the GHL. Implementing 
a size limit in addition to the one-fish daily bag limit would be 
overly restrictive. Other reasons may exist to consider size 
restrictions in the charter fishery in the future, but not as a 
provision of this final rule.
    NMFS notes that the Council did consider minimum size limits of 45 
and 50 inches on a second fish (assuming a two-fish bag limit) as part 
of the EA/RIR/IRFA supporting this final rule. A key reason why the 
Council rejected alternatives with minimum size limits was the 
difficulty in measuring larger fish.
    Comment 23: Maintain the status quo for the Area 2C charter harvest 
restrictions.
    Response: NMFS disagrees. The estimated harvests under status quo 
(1.333 to 1.448 million lb) substantially exceed the GHL of 0.931 
million lb. Thus, the status quo alternative would not achieve the 
policy objective of the Council, NMFS, and other management agencies to 
maintain charter sector harvest amounts to the GHL while longer term 
solutions are developed and implemented for stabilizing the allocation 
of halibut between the commercial and charter sectors.
    Comment 24: Implement a compensated reallocation program to use 
taxpayer money to buy back IFQ for the sport fishery sector. It is only 
reasonable that the responsible government agencies fund this 
reallocation because they have been shortsighted and inactive in 
response to increasing charter demand.
    Response: The Secretary of Commerce does not have statutory 
authority to use government funds to purchase halibut quota share (QS) 
or lease halibut IFQ for use in the charter vessel fishery; this would 
require congressional action and funding and was outside the scope of 
the proposed rule. NMFS notes that the Council is considering a 
provision that would allow charter vessel businesses to lease IFQ from 
commercial halibut QS holders. The Council is scheduled to take final 
action on this and other provisions supporting a compensated 
reallocation program for the charter and commercial fishing sectors at 
its October 2008 meeting.
    Comment 25: Implement a charter individual fishing quota program. 
If charter IFQs had been enacted shortly after they were proposed in 
1993, the rapid growth of the charter fleet could have been controlled.
    Response: The Council did propose an IFQ program for the halibut 
charter sector in 2001, but NMFS declined to

[[Page 30510]]

publish a proposed rule to implement the Council's program for several 
reasons, including questions about the reliability of data supporting 
the proposed program. Had an acceptable IFQ program been implemented, 
NMFS agrees that the current allocation problems between the commercial 
and charter sectors could have been reduced and easier to address.
    Comment 26: Consider a slot limit based on size or weight that both 
commercial and charter boats abide by to protect the long-term 
recruitment of future halibut stocks. It also would be much easier for 
the resource agencies to monitor and audit such a rule with at-sea 
inspections and audits of landed fish at processing facilities.
    Response: The purpose of the final rule is to reduce the charter 
vessel fishery harvest to the GHL established for this fishery. 
Restricting the charter vessel fishery to size or weight limits without 
other harvest constraints would not meet the intent of reducing harvest 
to the GHL. The EA/RIR/IRFA developed by the Council did consider 
halibut slot limits; these were rejected because this approach could 
potentially result in an increased harvest, contrary to the objective 
of this final rule. Further, the options that would implement minimum 
size limits of 45 or 50 inches in length were rejected in large part 
because of the difficulty in measuring and releasing large fish without 
injuring them. There are safety concerns for crew and clients when 
attempting to measure large, heavy, muscular fish. Other reasons may 
exist to consider size or weight restrictions in the charter fishery in 
the future, but not as a provision of this final rule
    Comment 27: Subsistence issues need to be addressed before this 
issue. The subsistence limits are too high and the amount of 
subsistence fish that is sold is not monitored.
    Response: NMFS acknowledges that the halibut resource is fully 
utilized in Area 2C and that the three major categories of use are 
commercial, sport, and subsistence harvest. This final rule addresses 
an allocation issue between two of the larger users of halibut: the 
commercial and charter halibut fisheries, which account for 72 percent 
and 13 percent of total removals in Area 2C, respectively. While 
subsistence harvest of halibut is a source of mortality, it comprises 
the smallest use at 4 percent of total removals (See section 1.10.1 of 
the EA/RIR/IRFA). The Council, through regulations, established an 
allowed use of the halibut resource by subsistence users. The Council 
and NMFS disagree that the subsistence use of halibut is too high and 
must be further restricted prior to proceeding with this final rule.
    NMFS acknowledges that monitoring catch and total mortality 
(retained and discard) in the subsistence fishery poses unique concerns 
and challenges and has asked ADF&G for estimates of subsistence 
removals to evaluate trends in subsistence harvests. Subsistence 
harvest is estimated using specialized survey methods tailored for that 
sector. ADF&G staff report that the subsistence harvest has remained 
relatively stable during recent years, which is another reason why NMFS 
does not believe that subsistence harvest needs to be reduced before 
taking this action.
    Comment 28: Female halibut should all be catch and release. 
Discourage retention of small halibut. A rule should be developed to 
release sport caught halibut over 200 pounds.
    Response: The comment presumes that large females contribute 
disproportionately to reproduction and that harvest of these females 
will substantially decrease juvenile halibut abundance. In 1999, the 
IPHC reviewed options for a maximum size limit of 60 inches (150 cm) in 
the commercial fishery and concluded that, based on the research at the 
time, it did not add substantial production to the stock. Applying the 
limit to the sport fishery would have an even smaller benefit because 
the sport fishery harvest is much smaller than commercial harvest, and 
also because this action would only apply to Area 2C. The halibut stock 
is managed as a single population throughout its entire range. See also 
the response to Comment 26.
    Comment 29: The one-fish daily bag limit should be imposed on the 
whole state, not just one area.
    Response: The harvest of halibut by the charter vessel fishery in 
Area 2C has exceeded the annual GHL each year since 2004 by significant 
amounts. Conversely, the charter vessel harvest of halibut in Area 3A 
has not exceeded the annual GHL and restrictions on this fishery are 
unwarranted at this time. NMFS recognizes that different restrictions 
for the charter vessel sector in different IPHC regulatory areas off 
Alaska may influence where potential clients choose to fish. However, 
applying different regulations and bag limits to different areas is a 
common practice in fishery management. Although a one-fish daily bag 
limit in Area 2C may change the demand for charter trips if anglers are 
unwilling to substitute other species, many clients associated with 
cruise vessels likely will continue to fish in Area 2C because their 
fishing time is limited to half-day trips, which may not provide enough 
time to harvest two halibut.
    Comment 30: Implement the Federal prohibition on skipper and crew 
harvest of halibut. Making this a Federal regulation will relieve the 
restriction on skipper and crew harvest of other species. Skipper and 
crew harvest is abused, sold to restaurants, or used as a guarantee 
that clients will have fish to take home.
    Response: NMFS notes the support for the part of the final rule 
that prohibits the catch and retention of halibut by charter vessel 
guides, operators, and crew. This action allows ADF&G to remove the 
emergency order that prevents skippers and crew from retaining any 
species of fish while on a saltwater charter trip. Thus, this rule 
could relieve a burden on crew compared to the previous emergency 
order. This prohibition also will help attain the management objective 
of limiting the charter vessel harvest of halibut in Area 2C to the GHL 
while minimizing adverse impacts on the charter fishery, its clients, 
and its home ports.
    Comment 31: Modify the skipper and crew provision to allow personal 
use fishing before May 16 and after August 15, or some other dates 
outside the tourist season, for halibut. Making a special trip wastes 
resources. This would minimize the impact of the regulation on skipper 
and crew by compensating them and allowing them to catch fish for food 
while working.
    Response: NMFS acknowledges that the prohibition on retention of 
halibut by charter vessel guides, operators, and crew could lead to 
higher operating costs for harvesting halibut for personal use. 
However, as noted in the response to Comment 30, this final rule will 
improve the opportunity for charter vessel guides, operators, and crew 
to retain non-halibut catch while clients are onboard, thus enhancing 
personal use fishing opportunities for species other than halibut.
    Comment 32: Remove the prohibition on skipper and crew harvest. No 
one at ADF&G, the Council, or IPHC can say or prove that skipper and 
crew harvest was included in the original GHL calculations. Crew 
harvest records began voluntarily in 1998 with the logbook program. 
Uncertainty exists whether this harvest was included with ``other'' 
sport harvest and whether policy makers considered skipper and crew 
harvest as part of the GHL when it was established. Thus, it is 
unethical to continue this prohibition based on the GHL.
    Response: The Council and NMFS, working with stakeholders, have

[[Page 30511]]

approved a prohibition on charter vessel guide, operator, and crew 
catch and retention of halibut as a preferred first tool for 
restricting harvest. Notwithstanding whether crew harvest of halibut 
was voluntarily reported in charter vessel logbooks submitted to ADF&G 
when the logbook program first was established, the Council and NMFS 
have specified their intent that this harvest be part of the existing 
GHL. As noted in Section 2.6.3.2 of the EA/RIR/FRFA supporting this 
final rule, the ADF&G estimates that the State prohibition on crew-
caught halibut reduced harvest in the charter vessel fishery by between 
78,000 lb and 84,000 lb in 2006. See also responses to Comments 30 and 
31.
    Comment 33: Maintain the status quo regulations and add a six-fish 
annual limit.
    Response: The status quo restrictions on the Area 2C charter vessel 
fishery with a six-fish annual catch limit would not reduce harvest to 
the current GHL of 931,000 lb. Instead, this option would result in an 
estimated harvest of between 1.3 and 1.4 million pounds, an 
unacceptable overage of the GHL. A one-fish daily bag limit, the 
primary provision implemented by NMFS in this final rule, is the only 
management measure that may reduce the harvest to the GHL, as indicated 
by the analysis.

Enforcement and Recordkeeping and Reporting Requirements

    Comment 34: Better enforcement and better data are needed for 
existing regulations. Many charter operators are not obeying 
restrictions because they know there is no enforcement in their area. 
As a result, harvest estimates are not accurate. Improve funding for 
better logbook analysis and more active enforcement by the USCG and 
NMFS. Many charter clients are transporting many more fish than allowed 
under the existing regulations.
    Response: Significant effort is being made to improve reporting. 
ADF&G has made numerous changes to their logbook program in recent 
years. For example, ADF&G has conducted dockside checks and post season 
client verifications to validate logbooks. In addition, NMFS has 
coordinated with ADF&G to establish new logbook requirements that will 
further validate halibut harvest information recorded in the state's 
Saltwater Sport Fishing Charter Trip Logbook, including requiring the 
signatures of anglers to verify that the number of halibut caught and 
recorded is accurate. ADF&G supports this requirement as it will lead 
to more reliable logbook data and more accurate estimates of charter 
halibut harvest. NMFS believes that enhanced recordkeeping and 
reporting, together with ongoing cooperative monitoring and enforcement 
by State and Federal enforcement personnel as time and resources allow 
will serve as a deterrent to large scale violations of sport fish 
regulations.
    Comment 35: There is a lack of monitoring and enforcement of 
commercial catch. The published commercial catch data are flawed and 
commercial fisherman are not being held to their targets.
    Response: NMFS disagrees. Although no fishery is exempt from 
illegal fishing activity, NMFS believes that current monitoring and 
enforcement efforts are sufficient to maintain control of the 
commercial halibut fishery and that reported catch is sufficiently 
accurate for management of the fishery and the halibut resource. The 
commercial quota system for halibut is administered, regulated, and 
enforced by NMFS to insure harvests are within quota limits and to 
monitor and enforce the amount of quota that each commercial fisherman 
is allowed to harvest. Enforcement of halibut regulations for Alaska is 
accomplished through complementary efforts of NMFS Office for Law 
Enforcement (OLE), Alaska State enforcement agencies, and the U.S. 
Coast Guard.
    Alaska Wildlife Troopers (Alaska Department of Public Safety) also 
perform inspections, audits, and patrol hours to monitor and enforce 
Federal commercial halibut fishery regulations under a Joint 
Enforcement Agreement between NOAA OLE and the Alaska Wildlife 
Troopers.
    Comment 36: Many charter operators are illegal and do not comply 
with Alaska Statute 38.05. If we enforced this statute, there would be 
less of a problem with the charter harvest levels.
    Response: The Secretary is not responsible for enforcing State of 
Alaska statutes. Comments regarding the enforcement of State statutes 
are more appropriately addressed to the State of Alaska.
    Comment 37: Enforcement of the regulations is impossible. When 
considering enforcement of annual limits, charter operators cannot be 
held responsible for client actions because the operator doesn't know 
what the client may have previously harvested.
    Response: NMFS believes that enforcement of this final rule is 
possible. This final rule does not include provisions for an annual 
catch limit. Thus, recordkeeping and reporting requirements proposed to 
monitor and enforce such a limit have been removed from the final rule. 
All other proposed federal recordkeeping requirements are retained to 
increase the accuracy of data collection and recorded information (see 
response to Comment 34).
    Comment 38: Keep the angler signature provision. This will lead to 
more accurate reporting.
    Response: NMFS agrees and has maintained this requirement (see 
response to Comment 34).
    Comment 39: The current carcass retention provisions are 
unreasonable. On live-aboard charters, it is not reasonable to carry 
around whole fish for days when they could be processed and vacuum 
packed onboard. The current requirements create storage issues, reduce 
meat quality, and create a timing problem after returning to port to 
process fish and transport clients and their fish to the airport in 
time. Inspectors should be able to estimate the number of fish from the 
packages.
    Response: This final rule does not require the retention of halibut 
carcasses. When the rule that implemented a 2-fish daily bag limit with 
one-fish under 32 inches in length went into effect in Area 2C in 2007, 
the carcass retention requirement was necessary to determine head-on 
length for enforcement purposes. This final rule will rescind the 
requirement at Sec.  300.66(m) to retain carcasses onboard. However, 
IPHC regulations require that for Convention waters off the coast of 
Alaska no person shall possess onboard a fishing vessel, including 
charter vessels and pleasure craft, halibut that have been filleted, 
mutilated, or otherwise disfigured in any manner except that each 
halibut may be cut into no more than two ventral and two dorsal pieces, 
and two cheeks, all with skin on (paragraph (28)(2) of the Pacific 
Halibut Annual Management Measures; March 7, 2008; 73 FR 12280). This 
change allows enforcement officers to count the number of fish in 
possession by an angler.
    Comment 40: NMFS should retain the requirement to bring halibut 
carcasses to shore for measurement. Accurate creel survey lengths are 
fundamental to estimating the catch of the charter fleet. Fish that are 
filleted at sea cannot be measured.
    Response: NMFS agrees that carcass retention facilitates 
enforcement and more accurate data collection, but it is unnecessarily 
burdensome to charter operators given that this final rule does not 
implement a size limit on retained halibut. Further, charter operators 
have expressed concerns about disposal of carcasses at ports, time 
constraints, the diminished meat quality of fish that are not processed 
immediately, and limited

[[Page 30512]]

storage space onboard some vessels. These concerns were especially 
pronounced for charter operators who run multi-day trips or more than 
one trip in a day. To respond to these concerns and to address the need 
for better enforcement, the IPHC adopted a regulation that is described 
in the response to Comment 39.
    Comment 41: The proposed paperwork requirement for monitoring the 
annual catch limit is burdensome and time consuming for operators and 
anglers. The requirement to print the angler name is redundant. It 
would be better to collect youth and senior angler information for 
inclusion in the database when issuing the harvest cards. Furthermore, 
the proposed requirement for anglers to retain their licenses for three 
years is unreasonable, the license paper is flimsy and hard to keep 
track of, and retention is a burden for clients.
    Response: Under Option A, which would have implemented an annual 
catch limit for Area 2C, it would have been necessary for anglers to 
retain their licenses in the event that discrepancies arose in the 
logbook data. However, because NMFS is implementing Option B, the one-
fish daily bag limit, the requirement to retain angler licenses is no 
longer necessary and has been removed from the final rule. Other 
requirements for recording the angler name and license number are 
retained to improve accuracy of recorded information. Also see response 
to Comment 34.
    Comment 42: Issue harvest tags with licenses instead of the 
burdensome recordkeeping and reporting requirements proposed to monitor 
and enforce an annual catch limit.
    Response: NMFS is not implementing the proposed annual catch limit 
because this management tool would not reduce the Area 2C charter 
vessel harvest to the 2008 GHL. Harvest tags are not required for the 
monitoring and enforcement of a one-fish daily bag limit.

Guideline Harvest Level

    Comment 43: Rescind the GHL.
    Response: Rescinding the GHL is outside the scope of this action. 
See Response to Comment 46.
    Comment 44: Maintain the GHL and manage halibut charter vessel 
harvest to that level. The GHL was set at 125 percent of the charter 
vessel fishery's highest historic harvest to allow for growth in the 
industry. The GHL was exceeded in 2004-2007 and the charter fleet is 
still growing with an increased number of clients served, fishing 
trips, and active vessels.
    Response: NMFS acknowledges the comment. This final rule does not 
change the GHL provisions, only the management measures necessary to 
control harvest to the GHL.
    Comment 45: If the GHL doesn't increase with the CEY, why should 
the GHL decrease with the CEY? Commercial IFQ shareholders are afforded 
a buffering mechanism by the IPHC to soften the economic impacts of a 
rapidly declining CEY. The guided sport halibut fleet should be 
afforded similar buffering. Also, the stair step feature of the GHL is 
not compatible with the slow up/fast down (SUFD) policy of the IPHC.
    Response: This rule was not designed to change either the 2008 GHL 
published in the Federal Register (73 FR 6709, February 5, 2008) or the 
GHL regulations at 50 CFR 300.65. The GHL ``stair steps'' down only 
during periods when the CEY established by the IPHC falls below 
benchmark levels in the GHL regulation. To change the GHL regulations 
would require separate rulemaking. The Council incorporated an element 
of buffering into the GHL rule by setting the maximum at 125 percent of 
the 1995-1999 average harvest to allow for growth in the charter 
industry. NMFS notes that, should the CEY increase from the 2008 level, 
the GHL could increase as well to a maximum of 1.432 million lb, 
consistent with the procedures described in regulations.
    The SUFD procedure used by the IPHC is not incompatible with the 
stair step feature of the GHL. Federal regulations require certain 
levels for the GHL based on the annual Total CEY, not procedures used 
by the IPHC to derive that annual Total CEY.
    Comment 46: The GHL setting process is flawed. The GHL is too low 
and needs to be changed. The GHL was proposed and implemented with only 
commercial interests voting on the Council. The GHL has been the same 
for 14 years and deserves some kind of update or allowance.
    Response: The Council first began discussing the guided charter 
fishery for halibut in 1993. After 10 years of debate, the GHLs were 
established for Areas 2C and 3A (August 8, 2003; 68 FR 47259). This 
rule set the maximum GHL for Area 2C at 1.432 million lb (649.5 mt), 
and included a mechanism for reducing the GHL in years of low abundance 
as determined by the IPHC. Since implementation, the GHL has remained 
at its maximum level until this year when reduced stock abundance 
estimates triggered a reduction. Guided sport charter vessel harvest 
exceeded the maximum GHL in 2004, 2005, and 2006 and is estimated to 
have again exceeded the GHL in 2007. The maximum GHL cannot be 
increased without a change to regulations. Revising the GHL and the 
halibut sector allocations are beyond the scope of this final rule.
    Comment 47: The GHL is just a guideline, not a hard cap.
    Response: NMFS acknowledges that area-specific GHLs were 
established in 2003 as a guideline that, if exceeded, could prompt 
responsive management action to reduce charter vessel harvest amounts. 
The GHL has been exceeded since 2004. Thus, management action to reduce 
harvest to the GHL is completely within the management objective for 
the GHL provisions. The fact that a time lag exists between when a GHL 
overage occurs and responsive management action is implemented through 
rulemaking also was acknowledged when the GHLs were established.
    Comment 48: Modify the final rule to accurately reflect the charter 
GHL that is associated with the IPHC-adopted Total CEY and the effect 
of Option B compared to that GHL, not the GHL of 1.217 million lb.
    Response: NMFS agrees and has reported the new GHL of 931,000 lb 
(422.3 mt) in this final rule and its associated EA/RIR/FRFA. A notice 
of the 2008 GHLs for Areas 2C and 3A was published in the Federal 
Register on February 5, 2008 (73 FR 6709). When the proposed rule was 
written, NMFS anticipated that the IPHC might reduce the CEY, 
triggering a reduction in the GHL, and wrote the proposed rule in a 
manner to allow final action notwithstanding the reduction.
    Comment 49: The proposal to simultaneously reduce the GHL and 
implement management measures to reduce harvest to the new GHL is 
contrary to the existing regulations regarding use of GHLs. Option B 
violates the Administrative Procedures Act (APA), and both options 
violate the purpose and intent of the charter fishery regulatory 
regime.
    Response: NMFS disagrees. The Council recognized that the GHL might 
be adjusted downward from the maximum GHL that was in place when it 
recommended the management measures for this final rule in June 2007. 
Thus, the Council proposed two different sets of management measures; 
one if the GHL remained unchanged in 2008, and a second more 
restrictive set of management measures if GHL was reduced. Both sets of 
management measures were published in the Federal Register for public 
review and comment. The comment period on the proposed rule extended 
beyond the IPHC meeting in mid-January, when the new and reduced total 
halibut CEY of

[[Page 30513]]

6,500,000 lb (2,948.4 mt) for Area 2C was established for 2008. This 
CEY resulted in a reduced GHL based on existing regulations at 50 CFR 
300.65(c). NMFS published a notice in the Federal Register of this 
downward adjustment on February 5, 2008 (73 FR 6709). This was a 
nondiscretionary action given that the regulations at 50 CFR 300.65 
clearly established how the GHL steps down when Total CEY is reduced 
below certain benchmarks. Given that a one-fish bag limit was proposed 
by the Council if the GHL was reduced, analyzed in the EA/RIR/IRFA 
supporting this action, and noticed in the proposed rule under APA 
rulemaking procedures, NMFS believes the public had adequate notice and 
opportunity for review and comment on the actions implemented under 
this final rule and that this action is consistent with the APA and the 
GHL management provisions.

Applicability of the Rule

    Comment 50: The proposed rule discriminates against anglers fishing 
from charter vessels, especially those who because of age, physical 
ability, or financial limits cannot operate or buy their own boat. It 
is not fair to discriminate against charter clients so the status quo 
should be maintained. Equal access and equal protection rights are 
being violated.
    Response: NMFS does not agree that this rule discriminates against 
charter anglers because age, physical ability, and financial status are 
not the subject of this regulation. This final rule was designed to 
reduce the harvest of halibut in the charter vessel fishery to the GHL 
to address the current allocation problem between the halibut charter 
fishery and the commercial fishery. Recreational anglers who wish to 
fish from a charter vessel may still elect to do so. The final rule 
does not discriminate between U.S. citizens based on age, physical 
ability, or ownership of a vessel.
    Comment 51: Support 6-fish annual catch limit for non-resident 
anglers only.
    Response: NMFS disagrees. If this rule were applied only to non-
resident anglers, then Federal management of this Federal resource 
would discriminate among U.S. citizens based on their state of 
residence. This would be contrary to the Halibut Act, contrary to basic 
rights and obligations in existing Federal law, and could not 
reasonably be considered necessary to promote conservation. Moreover, 
this action would not reduce charter harvest to the 2008 GHL and 
therefore would not accomplish the objective of this action.
    Comment 52: Apply restrictions to self-guided anglers as well. The 
proposed action discriminates between sport fishermen with and without 
their own boats. Self-directed anglers are only held to the 2-fish 
daily limit. Include bare boat charters or self-guided trips in 
restriction. Including self-directed anglers in the 2-fish with size 
limits regulation would further decrease sport harvest. Self-directed 
harvest equals about 67 percent of the guided harvest. If all sport 
anglers in Area 2C were held to the limit, perhaps further restrictions 
would not be necessary.
    Response: The Halibut Act under the Convention does not prevent the 
Secretary from tailoring a management action so that it addresses the 
concern that prompted action in a reasonable manner. The objective of 
this final rule is to reduce the harvest of halibut in the Area 2C 
guided sport charter vessel fishery to the GHL. The reason for this 
action is clearly indicated in the preambles to the proposed and final 
rules. The Council did not recommend limiting other recreational 
harvest, subsistence harvest, or bycatch and wastage in the commercial 
fishery because harvest data in the EA/RIR/IRFA show that removals from 
categories other than the guided charter vessel sector have remained 
relatively stable during the past 5 years and have not grown at the 
rate of the guided charter vessel fishery. Therefore, self-guided 
anglers were not considered part of the problem addressed by the 
Council and this final rule. Guided charter harvests rose each year 
from about 1.28 million pounds in 2003 to 2.03 million pounds in 2006. 
It is this information that prompted the Council to propose provisions 
to limit Area 2C charter vessel angler harvest consistent with the 
Halibut Act under the Convention.
    Comment 53: Expand the proposed harvest restriction to all non-
resident anglers, guided and unguided.
    Response: Federal law prohibits applying different regulations to 
anglers based on state residency. The regulations will apply to all 
charter vessel anglers, regardless of state of residency. Expanding the 
restriction beyond the guided charter vessel fishery is beyond the 
scope of this action. See also responses to Comments 51 and 52.
    Comment 54: Apply restrictions to all anglers, but on