Pacific Halibut Fisheries; Limited Access for Guided Sport Charter Vessels in Alaska, 18178-18197 [E9-9110]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 75 (Tuesday, April 21, 2009)]
[Proposed Rules]
[Pages 18178-18197]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9110]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 080630798-9258-01]
RIN 0648-AW92


Pacific Halibut Fisheries; Limited Access for Guided Sport 
Charter Vessels in Alaska

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations that would implement a limited 
access system for charter vessels in the guided sport fishery for 
Pacific halibut in waters of International Pacific Halibut Commission 
(IPHC) Regulatory Areas 2C (Southeast Alaska) and 3A (Central Gulf of 
Alaska). If approved, this limited access system would limit the number 
of charter vessels that may participate in the guided sport fishery for 
halibut in these areas. NMFS would issue a charter halibut permit to a 
licensed charter fishing business owner based on his or her past 
participation in the charter halibut fishery for halibut and to a 
Community Quota Entity representing specific rural communities. All 
charter halibut permit holders would be subject to limits on the number 
of permits they could hold and on the number of charter vessel anglers 
who could catch and retain halibut on their charter vessels. This 
action is necessary to achieve the halibut fishery management goals of 
the North Pacific Fishery Management Council. The intended effect is to 
curtail growth of fishing capacity in the guided sport fishery for 
halibut.

DATES: Written comments must be received by June 5, 2009.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments identified by 0648-AW92 
by any one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at https://www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK 99802-1668.
     Fax: 907-586-7557.
     Hand delivery: 709 West 9\th\ Street, Room 420A, Juneau, 
AK.
    All comments received are part of the public record and will be 
posted to https://www.regulations.gov without change. All personal 
identifying information (such as name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file format only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS at the above address and by e-
mail to David_Rostker@omb.eop.gov or fax to 202-395-7285.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis prepared for this action may be 
obtained from the Alaska Region, NMFS at the address above or from the 
Alaska Region website at https://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228.

SUPPLEMENTARY INFORMATION: The IPHC and NMFS manage fishing for Pacific 
halibut (Hippoglossus stenolepis) through regulations established under 
authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). 
The IPHC promulgates regulations governing the Pacific halibut fishery 
under the Convention between the United States and Canada for the 
Preservation of the Halibut Fishery of the North Pacific Ocean and 
Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, 
as amended by a Protocol Amending the Convention (signed at Washington, 
D.C., on March 29, 1979). Regulations developed by the IPHC are subject 
to approval by the Secretary of

[[Page 18179]]

State with concurrence from the Secretary of Commerce (Secretary). 
After approval by the Secretary of State and the Secretary, the IPHC 
regulations are published in the Federal Register as annual management 
measures pursuant to 50 CFR 300.62. The most recent IPHC regulations 
were published March 7, 2008 at 73 FR 12280. IPHC regulations affecting 
sport fishing for halibut and charter vessels in Areas 2C and 3A may be 
found in sections 3, 25, and 28 (73 FR 12280, March 7, 2008).
    The Halibut Act, at Sections 773c(a) and (b), provides the 
Secretary with general responsibility to carry out the Convention and 
the Halibut Act. In adopting regulations that may be necessary to carry 
out the purposes and objectives of the Convention and the Halibut Act, 
the Secretary is directed to consult with the Secretary of the 
department in which the U.S. Coast Guard is operating.
    The Halibut Act at, Section 773c(c), also provides the North 
Pacific Fishery Management Council (Council) with authority to develop 
regulations, including limited access regulations, that are in addition 
to, and not in conflict with, approved IPHC regulations. Such Council-
developed regulations may be implemented by NMFS only after approval by 
the Secretary. The Council has exercised this authority most notably in 
the development of its Individual Fishing Quota (IFQ) Program, codified 
at 50 CFR part 679, and subsistence halibut fishery management 
measures, codified at 50 CFR 300.65. The Council also has been 
developing a regulatory program to manage the guided sport charter 
vessel fishery for halibut. This action is proposed as a step in the 
development of that regulatory program.

Management of the Halibut Fisheries

    The harvest of halibut occurs in three basic fisheries--the 
commercial, sport, and subsistence fisheries. Additional fishing 
mortality occurs as bycatch or incidental catch while targeting other 
species and wastage of halibut that are caught but cannot be used for 
human food.
    The IPHC annually determines the amount of halibut that may be 
removed from the resource without causing biological conservation 
problems on an area-by-area basis in all areas of Convention waters. It 
imposes catch limits, however, only on the commercial sector in areas 
in and off of Alaska. The IPHC estimates the exploitable biomass of 
halibut using a combination of harvest data from the commercial, 
recreational, subsistence fisheries, and information collected during 
scientific surveys and sampling of bycatch in other fisheries. The 
target amount of allowable harvest for a given area is calculated by 
multiplying a fixed harvest rate by the estimate of exploitable 
biomass. This target level is called the total constant exploitation 
yield (CEY) as it represents the target level for total removals (in 
net pounds) for that area in the coming year. The IPHC subtracts 
estimates of all non-commercial removals (sport, subsistence, bycatch, 
and wastage) from the total CEY. The remaining CEY, after the removals 
are subtracted, is the maximum catch or ``fishery CEY'' for an area's 
directed commercial fixed gear fishery.
    This method of determining the commercial fishery's catch limit in 
an area results in a decrease in the commercial fishery's use of the 
resource as other non-commercial users increase their proportion of the 
total CEY. As conservation of the halibut resource is the overarching 
goal of the IPHC, it attempts to include all sources of fishing 
mortality of halibut within the total CEY. This method for determining 
the limit for the commercial use of halibut has worked well for many 
years to conserve the halibut resource, provided that the other non-
commercial uses of the resource have remained relatively stable and 
small. Although most of the non-commercial uses of halibut have been 
relatively stable, growth in the guided sport charter vessel fishery in 
recent years has resulted in this fishery harvesting a larger amount of 
halibut than it did in earlier years. Increases in the halibut harvest 
of any non-commercial fishery reduce the amount available to the 
commercial fishery.

History of Charter Vessel Fishery Management

    Until 2007, guided sport fishing for halibut on charter vessels was 
governed only by regulations developed by the IPHC that were applicable 
to all halibut sport fishing. Current IPHC sport fishing regulations 
may be found in the annual management measures referenced above (at in 
sections 3, 25, and 28 (73 FR 12280, March 7, 2008)). In summary, the 
basic IPHC sport fishing rules for Alaska stipulate the following:
     A single line with no more than two hooks attached or a 
spear;
     A daily bag limit of two halibut of any size (except for 
charter vessel anglers in Area 2C, as explained below);
     A possession limit of two daily bag limits;
     A sport fishing season of February 1 through December 31;
     A prohibition on sale, trade, or barter of sport-caught 
halibut; and
     A prohibition on filleting, mutilating, or otherwise 
disfiguring halibut on board a fishing vessel except that each halibut 
may be cut into no more than two ventral, two dorsal pieces and two 
cheeks with skin on.
    The IPHC first adopted sport halibut fishing rules in 1973, in 
response to Federal, state, and provincial agencies seeking consistency 
and uniformity in sport fishing regulations in all IPHC areas. The IPHC 
bag limit rule was first established as three fish per day per person 
in 1973, was reduced to one fish per day in 1974, and raised to two 
fish per day in 1975, where it has remained until present. Similarly, 
the IPHC established the sport fishing season for halibut originally 
from March 1 through October 31 in 1973, and changed it for several 
years until the current 11-month season was set in 1986. Finally, 
during the years 1984 through 1997, the IPHC required sport charter 
vessels to have IPHC licenses.
    The Council has discussed the expansion of the guided sport charter 
vessel fishery for halibut, and the need to manage it, since 1993. A 
guideline harvest level (GHL) for Area 2C and a separate GHL for Area 
3A were adopted by the Council in 1997. The GHLs by themselves do not 
limit the charter vessel fisheries. Although the Council's policy is 
that the charter vessel fisheries should not exceed the GHLs, no 
constraints were initially recommended by the Council or imposed on the 
charter vessel fisheries for exceeding a GHL. The Council stated its 
intent to maintain a stable charter vessel fishing season without a 
mid-season closure. The Council envisioned ``framework'' regulations of 
increasing restrictiveness depending on the extent to which a GHL was 
exceeded. Proposed framework regulations were published in 2002 
(January 28, 2002; 67 FR 3867); however, NMFS informed the Council 
later that year that its framework regulations could not be implemented 
as envisioned. Hence, proposed and final rule notices were published 
(January 28, 2002, 67 FR 3867 and August 8, 2003, 68 FR 47256, 
respectively) establishing the GHLs without restrictive regulations and 
codified at 50 CFR 300.65(c).
    The GHLs represent a pre-season specification of acceptable annual 
halibut harvests in the charter vessel fisheries in Areas 2C and 3A. To 
accommodate some growth in the charter vessel sector while 
approximating historical harvest levels, the Council recommended GHLs 
based on 125 percent of the average 1995 through 1999 charter vessel 
harvest. For Area 2C the GHL was set at 1,432,000

[[Page 18180]]

lb (649.5 mt) net weight, and in Area 3A the GHL was set at 3,650,000 
lb (1,655.6 mt) net weight.
    When the Council recommended these GHLs, halibut stocks were 
considered to be near record high levels of abundance. To accommodate 
decreases and subsequent increases in abundance, the Council 
recommended a system of step-wise adjustments in each GHL based on a 
predetermined uniform measure of stock abundance. The measure used was 
the total CEY determined annually by the IPHC. Specifically, the 
Council linked a step-wise reduction in the GHL in any one year to the 
decrease in the total CEY as compared to the 1999 through 2000 average 
CEY. For example, if the halibut stock in Area 2C were to fall from 15 
to 24 percent below its 1999 through 2000 average CEY, then the GHL for 
Area 2C would be reduced by 15 percent. Conversely, as the CEY 
increased from low levels, the GHL also would increase in the same 
step-wise manner. However, regardless of how high the total CEY may 
rise above its 1999 through 2000 average, the GHLs were not designed to 
increase above their maximum amounts.
    Annually in October, the Alaska Department of Fish and Game (ADF&G) 
informs the Council and IPHC of the guided (charter vessel) and non-
guided sport harvest of halibut in Areas 2C and 3A during the previous 
year. These estimated harvests are based on a survey of anglers who 
report numbers of fish harvested and the estimated average weight of 
fish harvested in each sport fishery. Because the sport harvest in one 
year is estimated and reported in the following year, the Council does 
not know the amount of the sport harvest of halibut in a particular 
year until close to the end of the following year.
    Charter vessel harvests of halibut have steadily increased in 
recent years especially in Area 2C and to a lesser extent in Area 3A. 
Sport fishing statistics from ADF&G for Area 2C indicate an annual 
increase in charter vessel halibut harvests from 0.939 million pounds 
in 1999 to 1.952 million pounds in 2005. In 2006, the Area 2C harvest 
declined 7.6 percent to 1.804 million pounds. In 2007, the most recent 
year of charter vessel harvest estimates, however, the Area 2C harvest 
increased again by 6.3 percent to 1.918 million pounds. The GHL for 
Area 2C was first implemented in regulations in 2003 at 1.432 million 
pounds, and remained at that amount through 2007. The charter vessel 
harvest of halibut in Area 2C in 2003 was 1.412 million pounds, 
slightly under the GHL. However, the annual harvest in the following 
four years (2004 through 2007) averaged 1.856 million pounds, 0.424 
million pounds or about 30 percent in excess of the GHL.
    Charter vessel harvests of halibut in Area 3A during the same time 
period (1999 through 2007) indicate a slower but steady growth since 
2003 when the Area 3A GHL was first implemented at 3.65 million pounds. 
The harvest in 2003 was 3.382 million pounds. This amount was under the 
GHL, but harvests the following four years (2004 through 2007) averaged 
3.756 million pounds. This annual average harvest in the most recent 
four years of charter vessel harvest statistics is slightly less than 
three percent above the GHL for Area 3A. In 2007, the Area 3A harvest 
increased to 4.002 million pounds which exceeded the GHL for this area 
by 9.6 percent.
    Although the charter vessel halibut fishery in Area 3A has been at 
or slightly above its GHL, the Area 2C fishery clearly has been 
exceeding its GHL in recent years. A management response to the excess 
halibut harvests in Area 2C was initiated in 2007 by the IPHC, NMFS, 
ADF&G, and subsequently by the Council. At its annual meeting in 
January 2007, the IPHC adopted a motion to recommend reducing the daily 
bag limit for anglers on charter vessels in Areas 2C and 3A from two 
halibut to one halibut during certain time periods. Specifically, for 
Area 2C, the IPHC recommended that the one-fish daily bag limit should 
apply to charter vessel anglers from June 15 through July 30. The IPHC 
recommended this temporary bag limit reduction because it believed its 
management goals were at risk by the magnitude of the charter halibut 
harvest in excess of the GHL, especially in Area 2C. The IPHC's action 
was not explicitly designed to manage the charter fishery to the 
Council's GHLs but rather to initiate some control on what appeared to 
be an ever increasing charter vessel harvest.
    In a letter to the IPHC on March 1, 2007, the Secretary of State, 
with concurrence from the Secretary, rejected the recommended one-fish 
daily bag limit in Areas 2C and 3A, and indicated that appropriate 
reduction in the charter vessel harvest in these areas would be 
achieved by a combination of ADF&G and NMFS regulatory actions. For 
Area 2C, the State of Alaska Commissioner of Fish and Game (State 
Commissioner) issued an emergency order to prohibit retention of fish 
by charter vessel guides and crew members (No. 1-R-02-07). This 
emergency order was similar to one issued for 2006. This action was 
intended, in conjunction with other measures to be implemented by the 
Secretary, to reduce the 2007 charter vessel harvest of halibut to 
levels comparable to the IPHC-recommended bag limit reduction which was 
estimated to range from 397,000 (180.1 mt) pounds to 432,000 pounds 
(195.9 mt).
    Regulatory action to remedy this problem by June 2007, the seasonal 
beginning of the principal sport fishing effort, required the 
Secretary, through NMFS, to develop regulations independent of the 
Council process. The preferred alternative selected by NMFS maintained 
a two-fish daily bag limit provided that at least one of the harvested 
halibut has a head-on length of no more than 32 inches (81.3 cm). If a 
charter vessel angler retains only one halibut in a calendar day, that 
fish may be of any length. NMFS published regulations implementing this 
partial maximum size limit on June 4, 2007 (72 FR 30714).
    The Council also during the first half of 2007 was considering 
management alternatives for the charter vessel halibut fishery in Area 
2C. Unlike the IPHC, ADF&G, and NMFS actions, however, the Council's 
alternatives were designed specifically to maintain the charter vessel 
fishery to its GHL. In June 2007, the Council adopted a preferred 
alternative that contained two options. The Council recommended that 
the selection between the options should depend on whether the CEY 
decreased substantially for 2008. As explained above, the GHLs for Area 
2C and 3A are linked to the total CEY determined annually by the IPHC 
as a basis for setting the commercial fishery catch limits in these 
areas. A sufficient decrease in the total CEY causes the GHL for Area 
2C to decrease from its previous level. The Council did not know in 
June 2007 how the GHL would be affected by IPHC action in January 2008. 
Hence, the Council recommended a suite of charter vessel fishery 
restrictions if the GHL in Area 2C were to remain the same in 2008 
(Option A) and a different, more restrictive, suite of restrictions if 
the GHL were to decrease in 2008 (Option B). The Council recommended no 
change in management of the charter vessel fishery in Area 3A because 
that fishery appeared stable at about its GHL. A proposed rule was 
published December 31, 2007 (at 72 FR 74257) soliciting comments on 
both options for management of the charter vessel fishery in Area 2C
    At its annual meeting in January 2008, the IPHC set the 2008 total 
CEY for Area 2C at 6.5 million pounds (2,948.4 mt). This was a 4.3 
million pound (1,950.4

[[Page 18181]]

mt) reduction from the 2007 total CEY of 10.8 million pounds (4,899.0 
mt), which triggered a reduction in the Area 2C GHL to 931,000 pounds 
(422.3 mt). This reduction in the GHL compelled selection of the more 
restrictive Option B for the Area 2C final rule. Option B imposed a 
daily bag limit of one halibut for each charter vessel angler, 
prevented charter vessel guides, operators and crew from harvesting 
halibut, restricted the number of lines used to fish for halibut on a 
charter vessel, and added certain recordkeeping and reporting 
requirements. These regulations were published in the Area 2C final 
rule on May 28, 2008 (73 FR 30504) that was effective on June 1, 2008.
    The May 28, 2008, final rule was enjoined by U.S. District Court 
for the District of Columbia on June 10, 2008, (see Order Granting 
Plaintiffs' Motion for a Temporary Restraining Order (TRO), dated June 
11, 2008, and Order Granting Plaintiffs' Motion for a Preliminary 
Injunction (PI), dated June 19, 2008, Van Valin, et al. v. Gutierrez, 
Civil Action No. 1:08-cv-941). Instead of the one-halibut daily bag 
limit contained in the May 28, 2008 rule, the court ordered that the 
previous (2007) rule become effective, which allowed a two-fish daily 
bag limit provided that at least one of the harvested halibut had a 
head-on length of no more than 32 inches (81.3 cm).
    In its Order Granting the Plaintiffs' Motion for a Preliminary 
Injunction, dated June 19, 2007, the U.S. District Court determined 
that the Plaintiffs had met the burden for granting a preliminary 
injunction, including demonstrating a likelihood of success on the 
merits of their claims. The Plaintiffs argued that NMFS, by referencing 
the 2003 GHL rule (68 FR 47256, August 8, 2003) in the May 28, 2008, 
final rule, bound itself to use certain procedures found in the 
preamble to the 2003 GHL rule, including the requirement that a GHL had 
to be exceeded in order for management measures to be implemented. 
Although such a result arguably could be read into the rulemaking 
discussion found in the preamble to the 2003 GHL rule, as evidenced by 
the U.S. District Court's granting of the TRO and PI, NMFS specifically 
repudiates such a ``policy.''
    To further clarify NMFS' position on repudiating the above policy, 
NMFS subsequently withdrew the May 28, 2008, rule that was the basis 
for the Van Valin lawsuit (73 FR 52795), and on December 22, 2008, 
proposed a separate rulemaking to implement the one fish daily bag 
limit (73 FR 78276). This new proposal would give effect to the 
Council's intent to keep the harvest of charter vessel anglers as close 
to the established GHL as the Council's proposed management measures 
will allow.
    This brief history of management of the charter vessel fishery for 
halibut demonstrates its contentiousness. Charter vessel operators and 
anglers strongly resist anything more restrictive than a two-fish daily 
bag limit, but open access in the charter vessel fleet has resulted in 
virtual unlimited increases in charter halibut harvests. The IPHC 
balances such increases by decreases in the commercial halibut catch 
limit. To assure the future productivity of the halibut resource, the 
IPHC must maintain the total halibut harvest within the total CEY. The 
limited access program recommended by the Council and proposed by this 
action is designed to be a step toward establishing a comprehensive 
program of allocating the halibut resource between the commercial and 
charter vessel fisheries.

Limited Access Management for the Charter Vessel Fishery

    A problem statement adopted by the Council to guide its decision 
making during the 1995 through 2000 period cited as a concern the 
overcrowding of productive halibut grounds due to the growth of the 
charter vessel sector as a concern. In April 1997, during its initial 
review of an analysis of management alternatives, the Council added a 
potential cut-off date or ``control date'' of April 15, 1997--a date 
after which new entrants into the charter vessel fishery are not 
assured of qualifying for participation under a moratorium on new entry 
or other limited access program. The next time the Council considered 
charter vessel management issues was in September 1997. At that 
meeting, however, it backed away from further development of a limited 
access policy and instead recommended improved recordkeeping and 
reporting requirements and a GHL for Area 2C and 3A designed to give 
the charter vessel fleet 125 percent of its 1995 harvest in each of 
these areas.
    The Council revisited limited access management for the charter 
vessel fishery for halibut in February 2000. At that meeting the 
Council made a final decision on its GHL policy. It also (a) 
established a committee to develop a program that would integrate the 
charter vessel fishery into the existing IFQ program for the commercial 
fishery, and (b) decided not to proceed with a moratorium for the 
charter vessel fishery in Areas 2C and 3A in deference to the State of 
Alaska developing localized moratoria within the local area management 
plan process. In April 2000, the Council unanimously decided to begin 
analysis of alternatives for integrating the charter vessel fishery 
into the commercial IFQ program. The Council also accepted its 
committee's recommendation that the new charter/commercial IFQ program 
would replace the GHL program but clarified that the GHL program must 
be implemented first.
    In February 2001, the Council revised its problem statement for 
expansion of the IFQ program to charter vessels and added a moratorium 
alternative to the analysis, among other changes. Finally, in April 
2001, the Council adopted the IFQ program alternative for the charter 
vessel fishery, culminating eight years of debate and Council 
consideration of ways to manage the guided sport charter vessel fishery 
for halibut. The pool of halibut that would be allocated under the 
charter IFQ program was to be the same as the GHL--that is 125 percent 
of the 1995 through 1999 average harvest.
    In June 2001, however, the State of Alaska representative on the 
Council notified the Council of the State's intention to move to 
rescind the Council's April 2001 action. The motion to rescind was made 
and considered by the Council at its October 2001 meeting and it 
failed. The State's objections were based in part on its concerns about 
the State charter vessel logbook data on which initial allocations of 
charter vessel fish to individual operators in the charter vessel 
sector would be based. The State was concerned that data from its 1999 
and 2000 charter vessel logbooks did not accurately reflect halibut 
harvest and should not be used in any management decision-making 
process. After months of additional analysis by the State and review by 
the Council's Scientific and Statistical Committee (SSC), the Council, 
in January 2003, accepted its SSC report that the charter vessel 
logbook data were suitable as a basis for determining eligibility and 
initial allocation of charter vessel quota shares.
    In August 2003, NMFS published a final rule implementing the 
Council's recommended GHL policy (68 FR 47256, August 8, 2003). 
Following the Council's request to implement its GHL policy before its 
IFQ policy, NMFS developed regulations and administrative systems to 
integrate the charter vessel fishery into the commercial IFQ program. 
After extensive development and review of a proposed rule for the IFQ 
program during 2003 and 2004, NMFS sought confirmation of the Council's 
continued support for the program. In a letter to the Council dated 
August 3, 2005, the

[[Page 18182]]

NOAA Assistant Administrator for Fisheries requested the Council to 
confirm its 2001 decision to incorporate the charter vessel sector into 
the commercial IFQ program. In December 2005, after two days of hearing 
public testimony, the Council failed to confirm its 2001 decision. The 
Council decided, however, to create a charter halibut stakeholder 
committee to examine a suite of options proposed by the State of Alaska 
representative on the Council. In addition, the Council established a 
new control date of December 9, 2005, to notice the charter vessel 
industry that anyone entering the fishery after the control date would 
not be assured of future access should a moratorium or other limited 
access system be developed and implemented that limits participants in 
the charter vessel halibut fishery.
    In April 2006, the Council initiated an analysis for a moratorium 
on the entry of new participants in the charter vessel fishery for 
halibut in Areas 2C and 3A using the December 9, 2005 control date. A 
year later on March 31, 2007, the Council adopted a moratorium motion 
to recommend to the Secretary. The motion is available at https://www.fakr.noaa.gov/npfmc/current_issues/halibut_issues/CharterHalibutMotion307.pdf. The essence of the proposed moratorium is 
to limit entry in the charter vessel fishery to charter halibut permit 
holders. The moratorium is a limited access system in which permits 
would be initially limited to those businesses that have historically 
and recently participated in the fishery according to certain criteria. 
The following describes these proposed criteria, conditions for 
transfer of permits, and other aspects of the program in detail.

The Proposed Action

    This action proposes regulations that would limit the entry of 
additional charter vessels into the guided sport fishery for Pacific 
halibut in waters of IPHC Regulatory Areas 2C (Southeast Alaska) and 3A 
(Central Gulf of Alaska). For purposes of this action, a charter vessel 
is a vessel that is registered, or should be registered, as a sport 
fishing guide vessel with the Alaska Department of Fish and Game. This 
definition is consistent with the current definition of ``charter 
vessel'' at 50 CFR 300.61. If approved, any person operating a charter 
vessel engaged in halibut fishing in Area 2C or Area 3A would be 
required to have on board the vessel a charter halibut permit 
designated for that area.
    A charter halibut permit would be issued to an applicant based on 
the applicant's participation in Area 2C or Area 3A during the 
qualifying period and recent participation period. Qualifications for a 
permit in each area would be determined independently. To receive a 
permit endorsed for Area 2C, NMFS would only examine that applicant's 
participation in Area 2C. To receive a permit endorsed for Area 3A, 
NMFS would only examine that applicant's participation in Area 3A. A 
charter halibut permit would be transferrable or not transferrable 
based on certain minimum participation criteria. Each permit would have 
an angler endorsement that specifies the maximum number of anglers 
authorized to catch and retain halibut under the authority of the 
permit under which the vessel is operating.
    This action also proposes two special permits: a community charter 
halibut permit and a military charter halibut permit. A community 
charter halibut permit would be issued to a Community Quota Entity 
(CQE) as defined at 50 CFR 679.2. A military charter permit would be 
issued to a United States Military Morale, Welfare and Recreation (MWR) 
Program. The unique features of these permits are described below.

Qualifications for Charter Halibut Permit

    The Council recommended participation requirements for permit 
qualification that take into account historic participation during a 
qualifying period and during a recent participation period. 
Participation during both periods would demonstrate a qualifying 
dependence on the charter vessel fishery for halibut. Charter halibut 
permits would be awarded only to persons who participated as owners of 
a charter halibut business that was licensed by the ADF&G. The proposed 
rule would adopt the Council's recommendation and award permits to 
applicants that participated as ADF&G licensed fishing guide business 
owners in a qualifying period and a recent participation period.
    Qualifying period and recent participation period. The qualifying 
period would be the sport fishing season established by the IPHC in 
2004 and 2005. The sport fishing season in both of those years was 
February 1 through December 31. The recent participation year would be 
the year prior to implementation of this proposed action. In 
recommending this action, the Council was not certain exactly what year 
this proposed action, if approved, would be implemented; hence, the 
year prior to that also was unknown.
    The Council contemplated that the year prior to implementation 
could be 2007 or 2008. If approved, the final rule for this action will 
specify the year prior to implementation and the rationale for that 
specification. In specifying this year, NMFS will take into account the 
most recent year for which data are available, among other things. This 
proposed rule does not attempt to define the start of the program and 
thereby the year prior to it, but instead refers to the Council's 
``year prior to implementation'' as the ``recent participation period'' 
or ``recent participation year.'' Hence, the proposed rule text that 
follows does not specify the recent participation year. That 
specification will occur in the final rule, pending approval of this 
action.
    To qualify for a permit, an applicant would have to have reported 
at least five logbook trips during the qualifying period and five 
logbook trips during the recent participation period. The Council 
wanted to ensure that permits went only to persons who were active in 
the charter halibut fishery at or above a minimal level in both 
periods. The Council concluded that a five-trip level of participation 
showed active participation in the charter halibut fishery. The purpose 
of requiring active participation in both periods is to make sure that 
the applicant is an historical participant and a recent participant in 
the charter halibut fishery. The Council did not intend a permit to be 
issued to an applicant to operate in this fishery unless the applicant 
met both criteria. Thus, an applicant that operated a charter halibut 
fishing business during the recent participation period, but not the 
qualifying period, would not qualify for a charter halibut permit. 
Conversely, an applicant that operated a charter halibut fishing 
business during the qualifying period, but not the recent participation 
period, would not qualify for a charter halibut permit.
    Charter halibut permits would not be awarded to persons who 
purchased a charter fishing business that met some or all of the 
participation requirements but who themselves do not meet the 
participation requirements. The Council did not recommend that NMFS 
award permits based on business purchase agreements and therefore it 
did not analyze criteria to recognize such agreements. Hence, NMFS does 
not propose to recognize private agreements for the following reasons: 
(a) the Council did not recommend this policy; (b) a person who met all 
the participation requirements for a transferable permit could apply 
for the permit and transfer it to another person, if that is required 
by their private agreement; (c) a person who meets only the 
requirements for a nontransferable

[[Page 18183]]

permit, should not be able to transfer that permit; and (d) awarding a 
permit based on one person meeting the participation requirements in 
the qualifying period and another person meeting the participation 
requirements in the recent period would increase the total number of 
permits which would be contrary to the Council's intent. NMFS concluded 
that if one person did not participate in both periods--the qualifying 
period and the recent participation period--that person should not 
receive a charter halibut permit in the initial award of permits. To 
enter the fishery, that person would have to buy a permit from a person 
that met the participation requirements in both periods.
    Number of permits. If an applicant for a charter halibut permit 
meets the minimum participation requirements during a qualifying year 
and the recent participation year, NMFS would determine how many 
permits the applicant would receive and how many of those, if any, 
would be transferable permits.
    If an applicant qualified for any permits, NMFS would issue to the 
applicant the number of permits equal to (a) the applicant's total 
number of bottom fish logbook fishing trips in a qualifying year, 
divided by 5, or (b) the number of vessels that made those trips, 
whichever number is lower. The Council recommended that the number of 
permits issued to a charter fishing business would be ``based on the 
number of trips summed for all vessels in [its] best year of the 
qualification period.'' Further, ``[a] business would be limited to the 
number of permits equal to the highest number of vessels used in any 
one year during the qualifying period.'' NMFS interprets this to mean 
that the number of permits would be the number of bottomfish logbook 
trips in 2004 or 2005 divided by five or the number of charter vessels 
operated by a business during 2004 or 2005, whichever number is lower. 
The applicant would select which year in the qualifying period--2004 or 
2005--NMFS would use.
    A conservative interpretation is reasonable because an objective of 
limited access programs, including this one, is to reduce the amount of 
fishing effort in a fishery. Hence, NMFS would issue the number of 
permits equal to the lesser of (a) bottom fish logbook fishing trips 
divided by five (the minimum number of trips to qualify for a non-
transferable permit) or (b) the number of charter vessels that made 
those trips in one of the qualifying years.
    Although the Council motion refers to an applicant's ``best year of 
the qualification period,'' the Council was silent on how an 
applicant's ``best year'' is determined. NMFS proposes that the 
applicant should select its best year. Thus, the proposed rule uses the 
term ``applicant-selected year'' rather than the applicant's ``best 
year.'' The ``applicant-selected year'' means the year in the 
qualifying period--2004 or 2005--that the applicant selects for NMFS to 
use in determining how many permits the applicant will receive and 
whether the permits will be transferable or non-transferable. NMFS 
proposes that the applicant select the applicant's best year because 
applying the rules for the number of permits and transferable permits 
could have different results. For example, an applicant may receive a 
greater number of permits using the applicant's participation in one 
year but a greater number of transferable permits using the applicant's 
participation in another year. Because the year selected could make a 
difference, the applicant should choose which outcome is more important 
to the applicant.
    To determine the number of permits an applicant may be awarded and 
whether those permits are transferable or nontransferable, NMFS would 
create the official charter halibut record. This record would contain 
the information about participation in the charter halibut fishery that 
NMFS would use to evaluate applications for charter halibut permits. 
NMFS would derive the official record from ADF&G logbook records. For 
each applicant, NMFS would make two determinations for each of the two 
qualifying years based on the official record. First, NMFS would 
determine the number of trips that the applicant reported, divide that 
number by five, and round it down to the nearest whole number. Second, 
NMFS would determine the number of vessels that made those trips. NMFS 
would then inform the applicant of these numbers for the years 2004 and 
2005.
    The applicant would select 2004 or 2005 as the year that NMFS 
should use to determine the applicant's permits. Using the applicant-
selected year, NMFS would award the applicant the number of permits 
that is equal to the lower of the first determination--the total number 
of trips reported in the applicant-selected year, divided by five and 
rounded down to the nearest whole number, or the second determination--
the number of vessels that made those trips in the applicant-selected 
year. For example, an applicant in its selected qualifying year 
reported 23 logbook trips using three vessels. One vessel made 16 
trips, another vessel made five trips, and another vessel made only two 
trips. Under the proposed rule, NMFS would calculate 23 / 5 = 4.6 which 
would be rounded down to four. But this number of permits would be 
limited by the number of vessels that made all the logbook trips in the 
applicant-selected year which was three. Hence, the applicant would be 
awarded three permits.
    A limit on the number of permits equal to the number of vessels 
used in the applicant-selected year is necessary to prevent expansion 
in the number of vessels that could operate in the charter halibut 
fishery if this program were approved. If the number of permits were 
based only on the number of trips divided by five, the number of 
vessels could exceed the number of vessels that participated before 
adoption of this limited access program, which would be antithetical to 
the purposes of this program.
    Designation of transferable permits. After determining the total 
number of permits, NMFS would determine which permits are transferable 
and which are nontransferable. An applicant would receive a 
transferable permit for each vessel that made at least 15 trips in the 
applicant-selected year and at least 15 trips in the recent 
participation year. The rest of the applicant's permits, if any, would 
be non-transferable permits.
    Under the proposed rule, NMFS would issue to an applicant the 
number of transferable permits equal to the number of vessels that made 
at least 15 logbook fishing trips or more in the applicant-selected 
year and at least 15 trips in the recent participation year. Applicants 
that do not have the minimum of 15 logbook fishing trips in each period 
but qualify for one or more permit(s) with a minimum of five logbook 
fishing trips, would receive only non-transferable permit(s). Hence, in 
the example above of an applicant with 23 logbook trips using three 
vessels, that applicant would receive three permits. Based on the 15-
trip minimum criterion, however, this applicant would receive only one 
transferable permit and the other two permits would be non-
transferable.
    This two-tiered qualification criterion would create two types of 
permits: a nontransferable permit that would cease to exist when the 
entity that holds the permit no longer exists and a transferable permit 
that would have value as an asset that could be transferred to another 
business when the permit holder decided to leave the fishery. The 
Council recommended transferable permits to establish a market-based 
system of allocating access to the fishery after the initial allocation 
of permits. Persons wanting to enter the charter halibut fishery could

[[Page 18184]]

obtain permits from persons leaving the fishery. The Council concluded 
this would be more reasonable and efficient than a continual permit-
application-and-permit-award process by the government. But the Council 
did not recommend that all permits be transferable. The Council 
recommended two types of permits--transferable and non-transferable--as 
proposed by this action.
    This part of the Council's recommendation reflects a balance of the 
Council's objective to reduce fishing effort and its objective to 
minimize disruption to the charter fishing industry. Requiring a high 
minimum number of logbook fishing trips would result in a sudden 
reduction of charter halibut operations because many existing charter 
vessel operators would not be able to qualify. On the other hand, 
requiring a low minimum number of logbook fishing trips would result in 
little or no reduction in potential harvesting capacity. The two-tiered 
qualification criterion is designed to allow a business with relatively 
less participation in the charter halibut fishery to continue its 
operation while reducing potential harvesting capacity over time by not 
allowing that permit to be transferred to another entity.
    Angler endorsement on permits. Each charter halibut permit would 
have an angler endorsement number. The angler endorsement number on the 
permit would be the maximum number of anglers who are catching and 
retaining halibut that a vessel operator can have on board the vessel. 
The angler endorsement would not limit the number of passengers that a 
charter vessel operator could carry, only the number who may catch and 
retain halibut.
    The Council recommended that the angler endorsement number on an 
applicant's permits would be the highest number of clients that the 
applicant reported on any logbook fishing trip in 2004 or 2005, subject 
to a minimum endorsement of four. The proposed rule adopts that 
recommendation, except that it uses the term ``angler'' rather than 
``client.'' The term ``angler'' includes all persons, paying or non-
paying, who use the services of the charter vessel guide. The charter 
halibut permit, once issued, would limit the number of charter vessels 
anglers--paying or non-paying persons who use the services of a charter 
vessel guide--who can catch and retain halibut. Thus, under the 
proposed rule, the ``angler endorsement number'' on the permit would be 
the highest number of anglers who caught and retained halibut reported 
on any of the applicant's logbook fishing trips in 2004 or 2005.
    A vessel operator would be able to stack permits. For example, if a 
vessel operator has two charter permits on board, one with an angler 
endorsement of four and one with an endorsement of six, then the vessel 
operator could have a maximum of 10 charter vessel anglers on board who 
are catching and retaining halibut if the operator is otherwise 
authorized to carry 10 passengers. If other provisions of law, such as 
safety regulations or operation for hire regulations, prevent 10 
anglers from being on board the vessel, the charter halibut permits 
would not allow the vessel operator to violate those provisions of law.
    The rationale for the proposed angler endorsement is that this 
proposed action is designed to limit the number of charter vessels 
participating in the charter halibut fishery; not to prevent all 
expansion of effort by charter vessel operators. This provision allows 
permit holders to increase their effort somewhat by increasing the 
number of anglers that permit holders take on some charter vessel 
fishing trips, assuming that vessel operators did not take their 
historical maximum number of anglers out on every trip in the 
qualifying period. This expansion would be constrained by factors such 
as the maximum number of anglers recorded in an ADF&G logbook during 
2004 or 2005, the size of the charter vessel using the permit, the 
market for charter trips, and any safety or other regulations that 
limit the number of anglers that may be on board a vessel.
    The rationale for the minimum angler endorsement number of four, 
regardless of a lower number reported for an applicant's logbook 
fishing trip, is that this provision would not increase the number of 
permits in the fishery, and an angler endorsement of less than four may 
not allow economically viable fishing trips.
    The applicant-selected year, as it is described above, would not 
apply to the determination of angler endorsements for the number and 
type of permits. NMFS would endorse the permits with an angler 
endorsement number equal to the highest number of anglers on any of the 
applicant's logbook trips in 2004 or 2005, except as noted above for a 
minimum angler endorsement. This would be consistent with the Council's 
motion. Thus, the applicant's selected year--2004 or 2005--that NMFS 
would use to determine the number and type of permits may not be the 
same year that NMFS would use to determine the angler endorsement 
number on those permits. For example, an applicant may select 2004 for 
purposes of determining the number and type of permits, but the highest 
number of anglers recorded on any trip during the qualification period 
may have occurred in 2005. In this case, NMFS would award the applicant 
the number and type of permits based on the applicant's 2004 trips and 
would endorse the permits with an angler endorsement number based on a 
2005 trip.

Standards for Initial Allocation

    A person would be required to meet several basic standards to 
initially receive a charter halibut permit. These standards include (a) 
timely application for a permit, (b) documentation of participation in 
the charter vessel fishery during the qualifying and recent 
participation periods by ADF&G logbooks, and (c) ownership of a 
business that was licensed by the State of Alaska to conduct the guided 
sport fishing reported in the logbooks.
    Timely application. The application process is discussed more fully 
below; however, a basic standard for eligibility to receive an initial 
charter halibut permit would be to apply for the permit during an 
application period. An application period of no less than 60 days would 
be announced in the Federal Register. Applications submitted by mail, 
hand delivery, or facsimile would be accepted if postmarked or hand 
delivered or faxed no later than the last day of the application 
period. Electronic submissions other than facsimile would not be 
acceptable.
    Logbook documentation. The documentation to prove qualifying 
participation in the charter vessel fishery would be limited to 
saltwater charter vessel logbooks issued by the ADF&G. There are 
several reasons for relying only on the ADF&G charter vessel logbook 
database. First, ADF&G has regulated saltwater charter fishing in the 
State of Alaska through registrations, licenses, and logbooks since 
1998. These requirements apply to all charter fishing, including 
vessels targeting halibut. Although ADF&G regulations use the term 
``sport fishing services,'' the business activity that ADF&G regulates 
is essentially the same as the guided sport charter vessel fishery for 
halibut that is the subject of this proposed rule. Second,ADF&G 
supplied aggregated charter vessel logbook data to the Council to 
assist it in its analysis of past participation in the charter halibut 
fishery in Areas 2C and 3A. Third, the Council relied on these data in 
part to make its decision to recommend limiting entry into this fishery 
and NMFS, in turn, has relied on

[[Page 18185]]

the Council's analysis of alternatives to approve publication of this 
proposed rule.
    The basic unit of participation for receiving a charter halibut 
permit would be a logbook fishing trip. As defined in the proposed 
rule, a ``logbook fishing trip'' would be a bottom fish logbook fishing 
trip during the qualifying years, 2004 and 2005, and a halibut logbook 
fishing trip in the recent participation year. A logbook fishing trip 
would be an event that was reported to ADF&G in a logbook in accordance 
with the time limit required for reporting such a trip that was in 
effect at the time of the trip. The required time limit differed in 
minor ways in 2004, 2005, 2007, and 2008, and depended on when the trip 
occurred; however, the latest date for reporting a trip was January 15 
of the year after it occurred. If a trip was not reported within those 
time limits, NMFS would not consider it a logbook fishing trip for 
purposes of this proposed rule, and it would not serve as the basis for 
NMFS to issue a charter halibut permit. Hence, a permit applicant could 
not add a trip to the official record years after the trip should have 
been reported to the State.
    The proposed rule, like the Council's preferred alternative, relies 
on the same method of counting trips that was used in the Council's 
analysis. In the analysis, each trip in a multi-trip day counts as one 
logbook trip, and each day on a multi-day trip counts as one logbook 
trip. For example, a business owner who had two trips in one day would 
be considered to have had two logbook trips. Another business owner 
that had a trip that lasted two days also would be considered to have 
had two logbook trips. This accounting of trips deviates from the ADF&G 
method of counting logbook trips when fishing continues over multiple 
days. ADF&G required a business that took anglers on a multiday trip to 
submit logbook information at the end of the trip, not at the end of 
the day. Hence, a trip could represent different measures of effort 
depending on the number of days a charter vessel fished with the same 
group of anglers. The Council analysis standardized the measure of 
effort of a trip by separating each day fished on a multi-day trip and 
counted each day as a trip. The Council relied on its analysis in 
adopting its preferred alternative. Therefore, the proposed rule is 
based on the same method of counting trips that was used in the 
analysis.
    The same issue does not exist for half-day trips. ADF&G required 
business owners to submit a logbook trip entry after a half-day trip. 
Hence, ADF&G logbook data, the Council's analysis, and the proposed 
rule count a half day trip as one trip.
    This action proposes additional definitions for a ``bottomfish 
logbook fishing trip'' and a ``halibut logbook fishing trip.'' To 
document participation in 2004 and 2005, an applicant must prove 
bottomfish logbook fishing trips, and to prove participation in the 
recent participation year an applicant must prove halibut logbook 
fishing trips. The Council anticipated the distinction between these 
terms in its moratorium motion. The reason for this distinction is that 
in 2004 and 2005, ADF&G did not require businesses to report the number 
of halibut that were kept, or kept and released, for each logbook 
fishing trip. In 2004 and 2005, ADF&G required businesses to report 
bottomfish effort for each logbook fishing trip. The bottomfish effort 
data was (1) the State statistical area where bottomfish fishing 
occurred, (2) the boat hours that the vessel engaged in bottomfish 
fishing and (3) the number of rods used from the vessel in bottomfish 
fishing. ADF&G attached instructions to each logbook that stated that 
bottomfish fishing effort included effort targeting halibut. Therefore, 
for purposes of this action, NMFS would count any of these three types 
of bottomfish information about a trip in the qualifying period as a 
bottomfish logbook fishing trip for purposes of qualifying for one or 
more permit(s). As with the reporting of the trip itself, the business 
owner would have had to report these data within ADF&G time limits. An 
applicant could not change or add data that would make a trip a 
bottomfish logbook fishing trip or halibut logbook fishing trip after 
the trip should have been reported to ADF&G.
    In 2006, ADF&G changed its required logbook report to specify 
halibut data for each logbook fishing trip. The required logbook data 
included the number of halibut kept, the number released, and the boat 
hours that the vessel engaged in bottomfish fishing. Because these data 
will be more specific to halibut in the recent participation year, NMFS 
intends to rely on the halibut logbook data as proof of an applicant's 
participation during the recent participation year. If a business 
owner, within ADF&G time limits, reported to ADF&G the number of 
halibut kept or caught and released, NMFS would count that trip as a 
halibut logbook fishing trip and the trip would count toward the 
applicant's participation requirement in the recent participation year.
    A halibut logbook fishing trip also could be a trip where the 
business owner, within ADF&G time limits, reported ``boat hours that 
the vessel engaged in bottomfish fishing.'' An applicant could use such 
a report as one way to document a halibut logbook fishing trip. The 
logbook data for ``boat hours'' that a business had to report in 2007 
and 2008 was ``No. of Boat Hours Fished this Trip'' with bottomfish as 
a targeted species. ADF&G instructions for the 2007 and 2008 logbooks 
state that bottomfish include halibut. Documentation of boat hours 
fishing for bottom fish would capture trips where charter vessel 
anglers were targeting halibut but did not catch any. Therefore, this 
action proposes to define a halibut logbook fishing trip as a logbook 
fishing trip in which the applicant reported the number of halibut kept 
or released or the boat hours that the vessel engaged in bottomfish 
fishing.
    Licensed business owner. Charter halibut permits would be issued to 
the ADF&G licensed business owner. The Council's moratorium 
recommendation and this action propose eligibility for a charter 
halibut permit to be limited to the holder of an ADF&G business owner 
license because information on participation in the charter vessel 
fishery for halibut is organized by this license. Hence, a person would 
not meet this standard and qualify for a charter halibut permit if he 
or she held only a guide license or owned a charter vessel but did not 
hold an ADF&G business owner license during the qualifying and recent 
participation years.
    Issuing charter halibut permits only to qualified holders of ADF&G 
business owner licenses is appropriate for several reasons. First, the 
owner of the charter vessel fishing business had to obtain a business 
owner license from ADF&G. Second, the business owner was required to 
register with ADF&G the vessel to be used as a charter vessel. Third, 
the ADF&G business owner license number was required to be recorded on 
each sheet of the logbook because this license authorized the guide to 
provide fishing guide services to the charter vessel anglers. Finally, 
the business owner was responsible for submitting the logbook sheets to 
ADF&G within the required time limits. In summary, every charter vessel 
fishing trip was authorized by, and made pursuant to, an ADF&G business 
owner license. This license has been variously referred to as a sport 
fishing operator license, a sport fish business owner license, an ADF&G 
sport fish business license, or simply an ADF&G business license. This 
action proposes the term ``ADF&G business owner license'' exclusively 
to refer to this license issued by ADF&G.

[[Page 18186]]

Application and Issuance Process

    As noted above, an application period of no less than 60 days would 
be officially announced in the Federal Register. NMFS would use other 
media in addition to the Federal Register to announce the application 
period and encourage potential applicants to submit applications for 
charter halibut permits. A finite application period of reasonable 
length is necessary to resolve potential claims for permits by two or 
more persons for the same logbook fishing trip history. NMFS would not 
credit the same logbook fishing trip to more than one applicant, and 
would not allow the participation history of one business owner to 
support issuance of a permit(s) to more than one applicant.
    Application forms would be available through ADF&G and NMFS offices 
and on the NMFS, Alaska Region, web site at https://www.alaskafisheries.noaa.gov/. Electronic submission of the application 
would not be acceptable, however, because a signature on the 
application would be required. The application form would include a 
statement that, by signature, the applicant attests that legal 
requirements were met and all statements on the application are correct 
under penalty of perjury.
    Official record. Before the start of the application period, NMFS 
would create an official record of charter vessel participation in Area 
2C and 3A during the qualifying and recent participation years. The 
official record would be based on data from ADF&G because the State of 
Alaska has regulated charter fishing in the past and has the data on 
past participation in the charter halibut fishery. The official record 
would link each logbook fishing trip to an ADF&G business owner license 
and to the person--individual, corporation, partnership or other 
entity--that obtained the license. Thus, the official record would 
include information from ADF&G on the persons that obtained ADF&G 
Business Owner Licenses in the qualifying period and the recent 
participation period; the logbook fishing trips in those years that met 
the State of Alaska's legal requirements; the business owner license 
that authorized each logbook fishing trip; and the vessel that made 
each logbook fishing trip.
    NMFS would compare all timely applications to the official record. 
If an applicant submits a claim that is not consistent with the 
official record, NMFS would allow the applicant to submit documentation 
or further evidence in support of the claim during a 30-day evidentiary 
period. If NMFS accepts the applicant's documentation as sufficient to 
change the official record, NMFS would change the official record and 
issue charter halibut permit(s) accordingly. If NMFS does not agree 
that the further evidence supports the applicant's claim, NMFS would 
issue an initial administrative determination (IAD). The IAD would 
describe why NMFS is initially denying some or all of an applicant's 
claim and would provide instructions on how to appeal the IAD.
    Appeals. An applicant may appeal the IAD to the Office of 
Administrative Appeals (OAA) pursuant to 50 CFR 679.43. NMFS would 
issue interim permits to applicants that filed timely applications and 
whose appeal is accepted by OAA. All interim permits would be non-
transferable. NMFS would limit interim permits on appeal to applicants 
who applied for charter halibut permits within the application period 
specified in the Federal Register. This means that an applicant that is 
denied a permit because its application was late would not receive an 
interim permit. This limitation is necessary for NMFS to know the 
universe of applications at the end of the application period. The 
grounds for treating a late application as timely filed are extremely 
narrow. Hence, NMFS would not issue an interim permit to an applicant 
that filed a late application if that applicant has an extremely 
limited chance of prevailing on appeal.
    When an appeal is accepted by OAA, interim permits would be issued 
as follows. If, according to the official record, the applicant should 
receive no permits, the applicant on appeal would receive one interim 
permit with a angler endorsement of four. If, according to the official 
record, the applicant on appeal should receive some permits, the 
applicant on appeal would receive the number of permits and the angler 
endorsement number on those permits that are substantiated by the 
official record as it exists when the applicant appeals, not the number 
and types of permits that applicant claims on appeal.
    All permits issued during an appeal would be interim, non-
transferable, permits. Until NMFS makes a final decision on the appeal, 
the permit holder would not be able to transfer any permits. 
Potentially, a recalculation of one variable for an applicant could 
result in a redetermination of the number and type of permits. For 
example, if, as a result of an appeal, an applicant selects 2004 as its 
best year rather than 2005, NMFS would recalculate an applicant's 
number of permits or type of permits. Making permits that are under 
appeal non-transferable until the appeal is resolved would prevent an 
applicant from transferring a permit for which it ultimately may not 
qualify. This is necessary to prevent undermining the purpose of the 
proposed limited access system.
    Issuance to business owners. As noted above, charter halibut 
permits would be issued to persons that were the ADF&G licensed 
business owners that met the minimum qualifications. The term 
``person'' includes an individual, corporation, firm, or association 
(50 CFR 300.61). If a corporation held the ADF&G business owner license 
that authorized the logbook fishing trips that met the participation 
requirements for a charter halibut permit, NMFS would issue the permit 
to the corporation. If a partnership held the ADF&G business owners 
license, NMFS would issue the permit to the partnership. If an 
individual held the ADF&G business owners license, NMFS would issue the 
permit to that individual. Hence, on successful application, NMFS would 
issue a charter halibut permit to the entity--individual, corporation, 
partnership or other entity--that held the ADF&G business owner license 
that authorized the logbook fishing trips that met the participation 
requirements. NMFS would have no obligation to determine the owners of 
a corporation or members of a partnership that successfully applied for 
a permit. NMFS would follow the form of ownership--individual or 
otherwise--that the business used to obtain legal authorization from 
the State of Alaska for its past participation in the charter halibut 
fishery.
    Generally, the entity that applies for one or more charter halibut